Karnataka

Kolar

CC/18/2017

Sri.M.Jagadeseh - Complainant(s)

Versus

The Executive Engineer(BESCOM) - Opp.Party(s)

Sri.N.Mylari Gowda

24 Nov 2017

ORDER

Date of Filing: 10/02/2017

Date of Order: 24/11/2017

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 24^TH DAY OF NOVEMBER 2017

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO.18 OF 2017

Sri. M. Jagadeesh,

S/o. Late Mallayya,

Muthakadhahalli Village,

Kasaba Hobli, Malur Taluk,

Kolar District.                                                    ….  COMPLAINANT.

(Rep. by Sri. N. Mylari Gowda, Advocate)

 

- V/s -

1) The Executive Engineer (BESCOM),

K.G.F., Kolar District.

 

(Ex-parte)

 

2) The Assistant Executive Engineer

(BESCOM), Malur Division, Malur Taluk.  

(Rep. by Sri. R.C. Appaji Gowda, Advocate)         …. OPPOSITE PARTIES.

 

-: ORDERS:-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The complainant having submitted this complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred in short as “the Act”) against the opposite parties seeking reliefs as hereunder:-

(i) Loss spent towards roaming to Office to Office since 03 years, a sum of Rs.22,000/-.

 

(ii) Amount of Rs.5,000/- spent as expenses towards Lokayuktha and ACB Offices.

 

(iii) Rs.15,000/- spent towards illegal BESCOM Meter Connection.

 

(iv)     Rs.5,000/- as other expenses.

AND

 

(v) Cancellation of illegal electrical connection given to M.L. No.39214.

 

(vi) Issuance of directions to higher authorities to take action against the officers, who forged the signature of complainant’s father in changing of katha.

 

(vii) Issuance of recommendation as per law against Senior Executive, Shivarapattana, who issue estimation for electrical connection to commercial building in Survey No.97.

 

(viii) Issuance of recommendation for Criminal case against Sri. T.R.Ramakrishnegowda, Electrical Contractor, who created the false documents.

 

(ix) And prays for any other reliefs as this Forum deems to be fit.

 

02.   The material facts of the case:-

(a)    The complainant submitted that, one Sri. M. Mallayya, Retired Head Master, Father of this Complainant, who died on 15.02.2015 and having house in the limits of Grama Tana.  And having land bearing Survey No.97.  The Katha and Pahani stands in the name of Sri. M.Mallayya.  The said land is 02 kilometer away from Grama Tane.    

 

(b)    Further the complainant submits that, opposite parties have illegally joined the land Survey No.97 of his father to the property of Grama Tana V.P. Katha No.97 and shown his father name to Electrical R.R. Number of this commercial building of Grama Tana katha No.97, is in the name of Sri. Munivenkatappa, S/o. Duddikittappa and cheat his father intentionally by colluded with the electrical contractor Sri. Ramakrishne Gowda of Sri. Raksha Electricals, Tunasi Grama, Masti Hobli, Malur Taluk, and caused loss and trouble to him. 

 

(c)    Further it is contended that, these Ops have not taken any action even several approaches to them, intentionally to trouble him they have given electrical connection to said building by forging his father signature and helped land-maphia and gained lakhs of rupees together by issuing NOC by Grama Panchayath Shivarapattana.  Thus by giving electrical bills in the name of his father Ops caused loss.  The said NOC was given fraudly on 25.08.2008.  The complainant has filed this complaint by praying the above mentioned reliefs.

 

(d)    The complainant has filed the below mentioned documents:-

(i) Petition Copy

(ii) Copy of Taluk Panchayath Report

(iii) Copy of Attendance register issued by PDO Shivarapattana

(iv) Katha Extract V.P. Katha No.97

(v) Katha Extract 1 to 5 page

(vi) NOC copy

(vii) Illegal Electrical Estimate

(viii) Copy of Power Supply Agreement

(ix) Electricity Bill Vide No. ML 39214

(x) Electricity Bill ML No.47653

(xi)Rough Sketch of disputed area,

(xii) RTC Extract

(xiii) Gram Panchayath Endorsement

(xiv) Fake Certificate NOC issued by Grama Panchayath, Shivarapatanna

(xv) Gram Panchayath Enclosure issued by PDO Shivarapattana

(xvi) Forgery Signature preferred by BESCOM, Malur.

(xvii) Illegal Test Certificate preferred by BESCOM, Malur.

(xviii) complaint copy with electricity bill

(xix) Police Report

(xx) Attendance Register issued by PDO, Shivarapatana

(xxi) Katha Extract issued by PDO Shivarapatanna.

 

03.   As per the proceedings noted in the order-sheet OP No.1 placed exparte and OP No.2 has put in appearance through his learned counsel and filed written version by resisting the averments of the complainant as false and put the complainant to prove the said averments. 

 

(a)    OP No.2 has specifically contended that, the complaint is not maintainable for non-joinder of necessary party as one Sri. Ramakrishnegowda, Electrical Contractor, is not made as party.  The attitude of the complainant is doubtful.  The complaint is false and frivolous and the complainant is not entitle for any relief and prays for dismissal of the complaint.   

 

(b)    The OP No.2 contended that, the dispute which has been raised by the complainant is purely in civil in nature.  The villagers by name M.K.Jagadish, Rajkumar, Vijaykumar, Rajanna, Jayaramappa, Krishnappa, M.T. Narayanaswamy, B.Krishnegowda, M.D.Krishnegowda, Bychappa all of them have failed a suit against PDO and Secretary of Shivarapattana Grama Panchyath, this OP No.2 and this complainant Jagdish on the file of Hon’ble Civil Judge (Jr. Dvn) at Malur in O.S. No.100/2017 with regarding to same allegation made in the complaint and the said suit is still pending and there is serious dispute about Karagadamma temple development Trust.  By entering into a Trust the complainant and his supporters are trying to grab the property of Karagadamma Temple.  The plaintiffs in O.S. No.100/2017 have made serious allegations that this OP No.2 has colluded with Gramapanchyat officials with support of this complainant are creating documents.

 

(c)    OP No.2 has further contended that, the complainant is also making frivolous allegations against him alleging that he has colluded with the plaintiff in O.S. No.100/2017 along with Gramapanchyath officials and the documents have been manipulated.  The conduct of the complainant who is defendant No.4 in O.S. No.100/2017 and plaintiffs are involving this OP No.2 in this frivolous complaint.  When there is a serious dispute with regard to karagadamma Temple Trust property is concern this compliant is no way concern for Khatha No.97 nor for any other title deeds.  This forum is not competent to decide the title of the property concern.  A civil litigation is pending on the file of Hon’ble Principal Civil Judge & JMFC at Malur in O.S. No.100/2017.

 

(d)    Further as per the request of the complainant and their trust members and villagers they have made an application for power connection for the said Karagdamma Temple and as per their requisition, OP No.2 in his order dated: 05.08.2013 reference No.L-15581(a+b), one pole was also installed and rabbit conductor was estimate and prepared KMS-140/30-7-2017 and with 26 meters wire X2, finally RR No. was issued vide ML. No.47653/18-3-2017 and now the power connection is given to the Karagadamma Temple.  There is no deficiency of service on the part of OP No.2.  The said dispute in the complaint is purely of civil in nature between the complainant and villagers.  As per the Panchyath document the OP No.2 has given power connection to the Karagadamma Temple.  This complainant is making an allegation for disconnection of power supply to the temple.  The complainant has suppressed the facts of the case as Civil litigation is pending and he has not approached this Forum with clean hands.  And prays for dismissal of the complaint with exemplary costs.

 

(e)    The OP No.2 has filed below mentioned documents:-

(i) Copy of registered Karagadamma Devalaya Trust Deed.

 

(ii) Citation with regard to maintainability of the complaint in AIR 2017 SC 1303.

 

04.   The complainant and OP No.2 have filed their affidavit evidence and written arguments respectively.  Heard oral arguments of both the counsel appearing for both parties and proceed for orders.

05.   Now the points that arise for our consideration are that,

(1)  Whether the complainant is a “Consumer” under the provisions of Consumer Protection Act, 1986? and the complainant proves deficiency in service on the part of the OPs?

(2) Whether this Forum has jurisdiction to entertain this complaint?

(3)  Whether this complaint is bad for non-joinder of necessary party as contended by OP No.2?

(4) Whether this compliant is maintainable?

 

(5)  What order?

 

06.   Our findings on the above stated points are:-

POINT (1):   In the Negative

 

POINT (2):   In the Negative

 

POINT (3):   In the Negative

 

POINT (4):   In the Negative

 

POINT (5):   As per final order for

    the following:-

 

REASONS

POINT (1):-

 

07.   We have perused the oral and documentary evidence of the parties and so also the citation relied by the OP No.2.  At the outset it is relevant to state here that, Survey No.97 of Shivarapattana to an extent of 0.15 gunta of land stand in the name of the father of the complainant by name Sri. Mallayya and in this regard the complainant has produced the copy of the “Will” executed by the said Mallayya and so also copy of RTC Extract of the said Survey number.  The complainant has also pleaded that, his father was died on 15.02.2015.  The complainant has produced the copy of the registered “Will” dated: 11.09.2012 alleged to be executed by Sri. Mallayya in favour of Jayatha Kumar, Divyasri and Jagadish.  With regard to his self-acquired properties bearing Survey No. 55/3, house and vacant space, V.P. Katha No.87 and 88 of Muthakadhahalli Village and Survey Nos. 97 and 88 of Shivarapattana Village.  On perusal of the “Will” Survey Nos. 88 and 97 are kept in the name of his minor grand childrens by name Jayanth Kumar and Divyasri.  The said two lands are kept for better education of the above said minor grand childrens of the deceased and the complainant has nothing to do with the said properties.  The complainant has no locus-standy to file this complaint.  The complainant has also not filed this complaint by representing the said minors. 

 

08.   Further on looking any angle to the facts and circumstances of the case on hand the complainant is not at all fitted into a consumer as contemplated under the provisions of Section 2(1)(d) of the Act and is not a Consumer.

2(1)(d) “consumer” means any person who -

 

(i)       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

 

(ii)      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 payments, 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;       

 

[Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;]

And the mere allegation of rising of fraudulent electricity bill in the name of Mallayya is not a Consumer dispute.

 

09.   Further on perusal of the entire complaint, it also does not disclose about any deficiency of service by the Ops as contemplated Under Section 2(1)(g) of the Act:-

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

 

Hence as discussed above, we hold the said Point (1) in the Negative.

 

POINT (2) & (4):-

10.   These points are taken up together for discussion to avoid repetition of facts as these points are interconnected to each other. 

 

11.   The complainant has prayed for intermingled facts like issuance of directions, recommendation to Ops for cancellation of illegal electrical connection, to give criminal complaint for forging of documents and to issue of legal action against Ops and other allegations does not come under the provisions of Consumer Protection Act, 1986. 

 

12.   OP-2 in its written version submitted about pending of Civil Case in O.S. No.100/2017 on the file of Hon’ble Civil Judge (Jr.Dvn) at Malur, and the same is not disputed by the complainant, hence it deems to be true and correct.  The complainant has also stated about the fraud and forging of the signature of the father of the complainant and creation of forged documents.  On careful perusal of complainant’s pleadings and the evidence we did not find any discloser of Civil Suit as contended by OP No.2 and we are unable to understand the logic of the complainant.  The complainant has not pleaded about pendency of Civil Suit in O.S. No.100/2017 before the Hon’ble Principal Civil Judge and JMFC, Malur as contended by the OP No.2 at Para-9 and 10 of his version and the complainant has not come to the court with clean hand and the complaint before this Forum is not at all maintainable. 

 

13.   The above said allegation of fraud and forgery of signature requires elaborate recording of evidence and it should proceed to full pledged trial before competent Civil Court and it is not a fit case for consideration.  As this Forum has no jurisdiction to try this complaint.  In this regard I relay citation reported in 2002 CCC 712 (NS).  The principal of the said citation is attracted to the facts and circumstances of this case on hand.  Hence as discussed above we hold these points are in the Negative.

 

POINT (3):-

14.   The OP No.2 specifically contended that, this case is not maintainable without making concerned contractor as necessary party to the proceedings.  The complainant at Para-4 of his complaint has taken up the contention that, one T.R. Ramakrishnegowda, an Electrical Contractor, who created the false documents to cheat the complainant and the said contention is beyond the scope of the act such being so the said electrical contractor is not a necessary party to the proceedings of the case on hand to adjudicate the contraversory between the parties in view of the facts and circumstances of the case on hand.  And accordingly we hold this point is in the Negative.

 

POINT (5):-

15.   In view of our finding on Point (1) (2) and (4) and the discussion made by thereon the complainant has failed to prove that, he is a Consumer and so also failed to prove the deficiency of service against the Ops.  Further the OP No.2 has taken up the contention with respect to alleged Karagadamma Temple Trust, and the complainant is the President of the said Trust, but the same is of wrong notion and the said property involved in the complaint is with respect to Survey No.97 and the trust property is with respect to V.P. Katha No.87/2 of Muthakadhahalli Village and to the said complainant is the President of the said Trust and not seeking any relief with regard to the trust property.  The entire arguments in this regard and the citation relied by the OP No.2 in this regard are all goes in vain and it has no sanctity in the eye of law.  Further the reliefs sought by the complainant at the last page of the complaint are beyond the scope of the Act. 

 

16.   Hence under these circumstances as discussed above, we proceed to pass the following:-

ORDER

01.   The complaint stands dismissed.  We direct the complainant to pay Rs.2,000/- as costs to OP No.2.

 

02.   Send a copy of this order to both parties free of cost.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 24^th DAY OF NOVEMBER 2017)

 

 

 

 

LADY MEMBER                                PRESIDENT