Learned counsel for the appellants is present.
2. Notice was issued to respondent No.1 by regd. post with AD on 18.1.2019, but SR is not back. Since in the meantime 30 days have elapsed, notice against respondent No.1 is held to be sufficient. None appears on behalf of respondent No.1.
3. On request and consent of learned counsel for the appellants and in view of the nature of the order impugned in F.A.No. 495 of 2018, both FA No. 495 of 2018 and Misc. Case No. 1070 of 2018 are taken together for hearing and disposal simultaneously at the stage of admission.
4. In F.A.No. 495 of 2018 the appellants have assailed the legality of the impugned order dated 4.5.2018 passed by the learned District Forum, Bhawanipatna at Kalahandi in C.C.No. 68 of 2017.
5. The appellants were the opposite parties 2 to 5 respectively whereas respondent No.1 was the complainant and respondent Nos. 2 and 3 were opposite party Nos. 1 and 6 respectively.
6. Misc. Case No. 1070 of 2018 has been filed by the appellants for condonation of delay of 177 days in filing the appeal.
7. Heard learned counsel for the appellants.
8. The case of respondent No.1/complainant before the learned District Forum is that he is the beneficiary under ‘Jalnidhi Yojana’ for digging of Tube Well for which he had incurred expenditure of Rs.1,18,996/-. In the ‘Jalnidhi Yojana’ of the State Government the complainant was entitled to receive subsidy of 75% of the said amount. The grievance of the complainant is that though he approached the appellants for release of the subsidy amount, the appellants did not pay the amount to him. Prayer is made in the complaint is to direct the appellants to pay the aforesaid amount of Rs.75,000/- under ‘Jalnidhi Scheme’ and impose penalty of Rs.3.00 lacs.
9. Opposite parties filed written version and resisted the claim. It is not denied by the appellants that the complainant was allowed to dig a tube well in accordance with Government guidelines for availing subsidy under the ‘Jalnidhi Scheme’. The complainant did not inform regarding completion of the work of the tube well within time. However, he approached respondent No.2 the Collector making allegation of non-payment and misappropriation of money by the appellants. On enquiry, it was found that the complainant never dug a new tube well to avail benefit of the scheme. He had renovating the old tube well which had not been dug in accordance with specifications under the guidelines. It was further pleaded that the dispute raised by the complainant does not amount to consumer dispute inasmuch as the grievance of the complainant is denial of benefit under a Government Scheme for which the complainant never paid any consideration.
10. Upon hearing the learned counsel for the parties, the learned District Forum passed the impugned order, the operative part of which reads as follows:-
“In view of the above discussion, finding and available documents and material on record the complaint petition is allowed in part. The complaint is entitle to get the subsidy of Rs.75,000/- against the expenditure as claimed by him in construction of the dug well under Jalnidhi Scheme as a beneficiary. The OP No.2 to 5 are directed to reimburse as subsidy to the tune of Rs.75,000/- as subsidy to the complainant within 45 days of receipt of the order and non compliance of the order will attract further proceeding U/s 25 and 27 of the C.P.Act. No cost.”
11. Learned counsel for the appellants submits that it is well settled that grievance with regard to denial of benefits under a Government Scheme does not amount to consumer dispute as defined under the provision of Consumer Protection Act (C.P.Act). Benefits under Government Scheme is granted to beneficiaries without any consideration considering the eligibility of the beneficiaries. Therefore, the complaint was not maintainable before the learned District Forum. By entertaining the complaint and passing the impugned order the learned District Forum has travelled beyond the jurisdiction and the impugned order is a nullity. It is further submitted that the validity of the order which is a nullity can be challenged at any time in any proceeding including a collateral proceeding. In such circumstances, the delay, if any, is required to be condoned and the impugned order is required to be set aside.
12. Having heard the learned counsel for appellants and upon careful perusal of the rival pleadings and documents on record, we fail to understand as to how the District Forum entertained the complaint as a consumer dispute. Admittedly, the complaint did not pay any consideration for availing subsidy. The subsidy sought for by the complainant relates to a State Government Scheme. No consideration having been paid by the complainant for availing the subsidy, the complainant was not a ‘consumer’ of the O.Ps. so as to be entitled to seek remedy under the C.P.Act.
Similar view has been taken by State Consumer Disputes Redressal Commission, West Bengal in their order dated 11.2.2014 passed in National Bank for Agricultural and Rural Development v. Ajit Deogharia and another placing reliance on the decision of Hon’ble National Commission in Choudhury Ashoke Yadav v. The Rewari Central Cooperative Bank & Another (R.P. 4894 of 2012 rendered on 8.2.2013) in which it has been held that Government Subsidy is a free financial assistance and beneficiary thereof is not a ‘consumer’. In the above view of the matter, the impugned order being without jurisdiction is not sustainable and is liable to be set aside.
14. Since the impugned order has been passed without jurisdiction it amounts to a nullity. It is rightly contended that an order which has been passed without jurisdiction and is a nullity can be challenged at any time in any proceeding including in a collateral proceeding. Therefore, the delay in filing the appeal cannot constitute a ground for not entertaining the appeal. The delay in filing the appeal is to be ignored.
15. Accordingly, Misc. Case No. 1070 of 2018 for condonation of delay is allowed so also F.A. No. 495 of 2018 and order impugned therein is set aside.
