Orissa

Rayagada

CC/436/2015

Smt. Brundabati Tulo - Complainant(s)

Versus

Krushna Chandra Dardasena - Opp.Party(s)

Self

16 Mar 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 436/ 2015.                                        Date.      16  .3. 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                   President

Sri GadadharaSahu, .                               Member.

Smt.  Padmalaya  Mishra,                          Member

Smt. Brundabati Tulo, W/O  Sri   Rama Rao Tulo, At:Badobangi, Po:Gusei Gulumunda, PS:Gunupur,     Dist: Rayagada, State:  Odisha.                                                                                                                                                                                          …….Complainant

Vrs.

1.Sri Krushna Chandra Danda Sena, S/O: Late Souri Dandasena, Kenduguda Mouza, Padmapur, Dist:Rayagada.

2. Sri  Manoj Daandasena, S/O: Krushna Chanda Dandasena, Kenduguda Mouza, Padmapur, Dist:Rayagada.

3.Sri Ananda Dandasana, S/O: Krushna Chanda Dandasena, Kenduguda Mouza, Padmapur, Dist:Rayagada.

4.The Revenue  Inspector, Kenduguda, Dist: Rayagada.

5. The Tahasildar, Padmapur, Dist: Rayagada.                                  .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Self..

For the O.Ps 1 to 3  :- Set Exparte.

For the O.P  4 & 5 :- Sri R.P.Padhy, A.G.P., Gunupur.

                                J u d g e m e n t.

        The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non mutation the land by the O.P. No. 3 & 4  and restrain  the O.Ps 1 to 3 to avoid  encroachment   of his occupied land  and  for which  the complainant  sought for redressal of the grievances raised by the complainant.

 

On being noticed the O.Ps 1 to 3  neither entering in to appear before the forum nor filed their  written version inspite of more than  18 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 3 years  for which the objectives  of the legislature of the C.P. Act going to be astroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps. The action of the O.Ps is against the principles of  Lex commitatus as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

 

On being noticed the  O.Ps. No.4 & 5  appeared through   A.G.P., Gunupur  and  filed  written version  refuting the allegation made  against them.  The O.Ps taking one and  another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.Ps  prays the forum to dismiss the case against  them  to meet the ends of justice.

The O.Ps  No. 4 & 5  appeared and filed their written version.  Arguments from the    complainant  and O.Ps  heard.  Perused the record, documents, written version  filed by the parties. 

Before  traversing  in detail the several material  allegations  averments, and contentions  made in the complaint  under reply  the O.P. No.4& 5 submits the preliminary objections  regarding the maintainability of the present case. 

Heard the complaint and the counsel for the  O.Ps.  Both the parties advanced their arguments  vehemently  touching the points both on the facts  as well as on  law.

         

Now  the issues on the oust are  to be decided by this forum prior to delve in to conclusion:-

          1.Whether this forum  has   jurisdiction to entertain the complaint under the C.P. Act, 1986  ?

          2.Whether the complaint is a consumer as defined  U/S- 2(1)(d) of the C.P. Act,1986 ?

While answering  the issue  we would like to refer the citations.  It is held and reported  in CPR-2011(4) page No. 482   the  Hon’ble  National commission,  where in observed  “Conumer forum  can not adjudicate  disputes without  addressing to the basic issues”.  In  another citation  reported in CPJ 2010(1) page No. 136 where in the Hon’ble  State Commission, New Delhi  observed  “Forum should decide the dispute of jurisdiction  first, application kept open to be decided later”

At this stage, it is appropriate  to quote Section  2(1)(d) of C.P. Act,  which reads as follows:-

                “(d)”Consumer” means any person who-

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any  system of deferred payment   and includes any user of such goods other than the person who buys   such goods for consideration paid or promised or partly paid or partly  promised , or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly  promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails  of the services for consideration paid or promised, or partly paid and  partly promised, or under any system of deferred payment, when such services are availed  of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.

 

Admittedly, in the case at hand, the complainant has not availed any service nor purchased any goods from the O.P. for any consideration, as such, he cannot be a ‘consumer’ under them. Only because the Consumer Protection Act is a social benefit oriented Act, it cannot besaid that any body who files a case before the District Forum,as the case may be he can bea ‘consumer’.

                       

It is apparent from the record   that the matters relating to  non mutation of  the land by the O.P. No. 4 & 5 to avoid  encroachment  by the O.Ps  No.1 to 3 will not come under the purview of the C.P. Act, 1986. Court of law has no jurisdiction to direct matter to be govern by one statute when provisions of another statute  applicable   II   2005  C.P.J –(1) (Supreme Court). Where there is a special remedy is available to the parties under the Revenue Act. The complainants grievance be redressed having  jurisdiction where the  complaint  may agitate the claim  by approaching Civil Court provided by the legislature.  Hence   the forum did not inclined to wrongly  invoke its jurisdiction to adjudicate the matter(Supra). Non mutation of  land  by the  O.Ps 4 & 5 does not constitute consumer dispute. Hence  this forum has lack of jurisdiction to entertain the  above dispute  and adjudicate  the same under the provisions  of the C.P. Act, 1986.  The C.P. Act does not provide for application of evidence Act or CPC. A consumer  dispute is to be  decided on the yard stick of reasonable probabilities on the basis of facts brought  on record  by the parties  (GeetaJethani    Vrs. Air Port authority of India and others 2004  CPJ  1048 (N.C). The case is not maintainable in view of the above discussion.

 

          FINDINGS.

            On perusal of the written version  filed by the O.Ps 4 & 5  it is revealed that the O.Ps contended that  the complaint petition is not maintainable  under C.P. Act, 1986 since there is no hiring of service on payment of consideration  by the complainant to the O.Ps.  Again the O.Ps contended that  the statutory provisions of mutation case under the Act  can be adjudicated by the Mutation officer-cum-Tahasildar and on the event of aggrieved  party can be  preferred against the order of the mutation officer before the Sub-Collector but the consumer forum has  lack of jurisdiction to entertain such petitions.  Further the O.Ps contended aggrieved party  can file civil suit for declaration of right, title, interest and possession as such the consumer forum ought to reject  this petition.  The O.Ps  prayed the complaint petition may be dismissed  for the best interest of justice.

 

The grievance of the complainant can be raised  before the appropriate court of law and not before this forum. We  do not  think  proper to go  into merit of this case.

While considering the prayer  as short fall by the complainant in the present complaint ought to keep in mind  the well established  maxim  “ one who comes in equity  must come with clean hands “ the present  issue is barred by the law acquiescence  and waiver.

Hence, the claim of the   complainant can not be accepted under the provisions of the C.P. Act. It is open to  complainant   ordinary remedy to approach proper forum.     So  to meet the  ends of justice    the following order is passed.

                                                            ORDER.

            In  resultant the complaint petition stands  dismissed. The complainant  is free to approach the court of competent  having  its jurisdiction.   There shall be however no order as to cost..  Accordingly the case  is disposed off..

It is held and reported  in SCC 1995(3) page No. 583  the Hon’ble Supreme Court   in the case of Laxmi Engineering works Vrs. P.S.G.Industrial Institute where in observed   “The time spent before consumer forum shall be set-off  by  the  authority, where the proceedings are taken up, as per provision of Section-14 of Limitation Act.

Dictated and corrected by me

Pronounced on this             16 ^th.   Day of   March,  2018.

 

                Member.                                             Member.                                                             President