caselaws
Supreme Court of India
Kamlesh Aggarwal vs Narain Singh Dabbas & Anr on 10 January, 2015Bench: V. Gopala Gowda, R. Banumathi
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 224-225 OF 2015
KAMLESH AGGARWAL ………APPELLANT
Vs.
NARAIN SINGH DABBAS & ANR. ……RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Aggrieved by the dismissal of her First Appeal Nos. 645 and 646 of 2013
vide order dated 8.1.2014 by the National Consumer Disputes Redressal
Commission, New Delhi, purported to have been filed under Section 21 of the
Consumer Protection Act, 1986 (for short “the Act”), against the order
dated 30.7.2013 passed by the State Consumer Disputes Redressal Commission,
Lucknow in Appeal Nos. 2082 and 2083 of 2010, the appellant has filed these
appeals, urging various relevant facts and legal contentions seeking for
setting aside the said order.
The brief facts of the case are stated as under :-
The appellant filed a Complaint No. 24 of 1998 before the District Consumer
Disputes Redressal Forum, Ghaziabad (for short “the District Forum”)
against Navchetna Sahkari Awas Samiti Ltd.-the respondent in the original
complaint, for not allotting and registering plot No. 114, Village Khoda,
Ghaziabad in her name as the Awas Samiti, in a resolution passed by it,
cancelled the membership of the appellant from the Navchetna Sahkari Awas
Samiti Ltd. in default of payment by her.
The District Forum vide its order dated 17.10.2003 after conducting an
enquiry as provided under the provisions of the Act, accepted the complaint
of the appellant and directed the Navchetna Sahkari Awas Samiti Ltd. to
allot the said plot in favour of the appellant and also to register the
same in her favour within 3 months from the date of the order.
Since, there was non compliance of the order dated 17.10.2003, the
appellant filed Execution Petition before the District Forum to execute the
order and requested it to punish the respondents under Sections 25 and 27
of the Act. In the said case one Gulab Singh (the alleged subsequent
allottee of the plot in question) filed an application in the above
proceedings for impleadment before the District Forum as he was in the
possession of the plot in question, which was allotted by the respondents
and a Civil Suit No. 1510 of 2005 filed by him was pending in the Civil
Court. The District Forum vide its order dated 13.9.2006 held that the
order dated 17.10.2003 is null and void. It was further held by the
District Forum that the appellant should approach the Civil Court and only
after the rejection of the suit of Gulab Singh in the Civil Court the
execution proceedings will be heard by the District Forum and pass
appropriate order and rejected the application of impleadment of Gulab
Singh.
Being aggrieved by the order dated 13.9.2006 of the District Forum, the
appellant filed Appeal No. 2636 of 2006 before the State Consumer
Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short “the State
Commission”). The State Commission has passed an order dated 7.9.2007
holding that it was not open for the District Forum to review the same
matter on merits at the instance of the impleading applicant and declare
its earlier decree as null and void. Thus, the State Commission allowed the
appeal of the appellant and directed the District Forum to proceed afresh
with the execution proceedings.
The said order dated 7.9.2007 of the State Commission was not challenged by
the respondents, but Gulab Singh filed Revision Petition No. 4069 of 2007
before the National Consumer Disputes Redressal Commission, New Delhi (for
short “the National Commission”) against the said order.
The National Commission, having found either no illegality or material
irregularity in the order dated 7.9.2007 passed by the State Commission,
dismissed the Revision Petition of Gulab Singh on 12.8.2008 by observing
that the State Commission was fully justified in allowing the appeal filed
by the appellant and setting aside the order dated 13.9.2006 passed by the
District Forum.
The appellant filed the application for execution of the order dated
17.10.2003 before the District Forum. On 29.5.2010, the District Forum
allowed the execution petition directing for compliance of the order dated
17.10.2003. It further directed to provide alternate plot as a replacement
for the plot in question to the appellant and if there is no plot
available, in that circumstances, to pay the amount as compensation to the
appellant at the current rate equivalent to the area of the plot in
question.
The respondents filed review application before the District Forum in
Execution Case No. 96 of 2010 for review of order dated 29.5.2010. The
District Forum vide its order dated 26.11.2010 dismissed the review
application and found the respondents guilty for non-compliance of order
dated 17.10.2003 passed in Complaint Case No. 24 of 1998 and ordered for
three months imprisonment of the respondents along with penalty amount of
Rs.3000/- payable by them under provisions of Section 27 of the Act.
Being aggrieved by the abovesaid order, the respondents filed Appeal Nos.
2082 and 2083 of 2010 before the State Commission which were allowed by its
order dated 30.7.2013 by setting aside the order dated 26.11.2010 of the
District Forum. The State Commission observed that the District Forum has
not adopted the procedure of summary trial at the time of passing the order
of conviction and sentence imposed upon the respondents as provided under
the Criminal Procedure Code, 1973, for non-compliance of order dated
17.10.2003. The State Commission also observed in its order that at no
point of time the respondents were afforded an opportunity of being heard
against the disobedience of the order dated 17.10.2003 of the District
Forum, which is mandatory as per provisions of sub-clause (3) of Section 27
of the Act and it has to try them by following the summary procedure by the
District Forum empowered as Judicial Magistrate of the First Class for the
purpose of Code of Criminal Procedure. Thus, the State Commission has
allowed the appeal of the respondents and set aside the conviction and
sentence order passed against them.
The appellant being aggrieved by the order dated 30.7.2013 filed First
Appeal Nos. 645 and 646 of 2013 before the National Commission. The
National Commission vide its order dated 8.1.2014 dismissed the appeals
holding that there is no provision in the Act regarding the filing of
second appeal under Sections 27 or 27A of the Act; even under Section 21 of
the Act, a petition filed against the order passed under Section 27A of the
Act could not be entertained by it as the appellant has no right and the
National Commission has no jurisdiction to entertain such appeal. Hence,
these appeals are filed by the appellant as she is aggrieved by the order
of both the State Commission and the National Commission.
Mr. Digendra Sharma, the learned counsel appearing on behalf of the
appellant contended that the National Commission should not have dismissed
the appeals of the appellant as the same would render the appellant
remediless for executing decree passed against the respondents who have
till date not complied with the order dated 17.10.2003 passed by the
District Forum and even the same has not been challenged by the Navchetna
Sahkari Awas Samiti Ltd. and therefore, the same has attained finality. It
was further contended by him that by dismissing the second appeal of the
appellant, the order dated 17.10.2003 would become ineffective and she has
not got the fruits of the order. The order passed by the District Forum in
favour of the appellant, which has attained finality cannot be made in-
executable on technical grounds. Even if the order of the District Forum in
convicting and sentencing the respondents is found to be illegal, the State
Commission ought to have remanded the matter to the District Forum with a
direction to it to follow the procedure and pass appropriate order.
On the contrary, Mr. Anukul Chandra Pradhan, the learned senior counsel
appearing on behalf of the respondents contended that the appellant has the
remedy of revision before the National Commission as available under
Section 21(b) of the Act.
It was further contended by him that the District Forum should have
followed the provisions of Criminal Procedure Code while dealing with the
application filed by the appellant under Section 27 of the Act and passed
the order and therefore he submits that the impugned order does not warrant
interference by this Court.
We have heard both the learned counsel on behalf of the parties. In the
facts and circumstances of the case, we are of the view that the State
Commission should have remanded the matter to District Forum after setting
aside its order dated 26.11.2010 with a direction to proceed with the
matter in accordance with the procedure contemplated under the Code of
Criminal Procedure referred to supra for taking penal action against the
respondents who are the concerned officers of Navchetna Sahkari Awas Samiti
Ltd. for non-compliance of the order. The National Commission has rightly
declined to exercise the power under Section 21 of the Act to set aside the
order dated 30.7.2013 of the State Commission as no second appeal is
provided against the order of the State Commission in view of sub-Section 2
of Section 27A of the Act, which states as under :-
“27A. Appeal against order passed under Section 27.-(1) Notwithstanding
anything contained in the Code of Criminal Procedure 1973 (2 of 1974), an
appeal under Section 27, both on facts and on law, shall lie from –
the order made by the District Forum to the State Commission;
the order made by the State Commission to the National Commission; and
the order made by the National Commission to the Supreme Court
(2) Except as aforesaid, no appeal shall lie to any court from any order
of a District Forum or a State Commission or the National Commission……”
From the reading of the above provisions of the Act, it is clear that
against the order passed by the District Forum under Section 27A of the
Act, appeal lies to the State Commission and against the order of the State
Commission, the appeal lies to the National Commission and against order of
the National Commission, the appeal lies to the Supreme Court and sub-
section 2 of the Act states that except as aforesaid, no appeal shall lie
to any court from any order of a District Forum or a State Commission or
the National Commission as the case may be. Therefore, we have to hold
that the order passed by the National Commission in holding that appeals
filed by the appellant is not maintainable, is legal and valid and does not
call for interference by this Court. The petition filed under Article 136
of the Constitution of India seeking leave to file appeal against the order
of the National Commission is also not maintainable in law, however we have
to interfere with the order of the State Commission only to the extent in
not remanding the case to the District Forum for passing an order in
accordance with law, in not doing so, the right accrued in favour of the
appellant will be lost and therefore, we have to pass appropriate order in
this regard .
Having regard to the fact situation that the appellant, who is a consumer,
has been litigating the matter before the District Forum, State Commission
and the National Commission for the last 17 years to get her legitimate
right of getting the sale deed registered in respect of the allotted site
made by the Navchetna Sahkari Awas Samiti Ltd. in her favour who is its
member since 1962, therefore, we deem it proper to exercise our power under
Article 142 of the Constitution of India for the reason that the State
Commission has erred in not remanding the case to the District Forum, after
it has found fault with the order of the District Forum in convicting and
sentencing the officers of Navchetna Sahkari Awas Samiti Ltd. who are the
respondents herein for not following the procedure as provided under the
Criminal Procedure Code and for that reason we deem it just and proper to
remand the case to the District Forum with a direction to the District
Forum to follow the procedure under Section 262 read with Chapter XX,
Section 251 of the Code of Criminal Procedure to initiate penal action
against the respondents under Section 27 of the Act for non compliance of
the statutory provisions.
It is also needless to mention in this order that no remedy is available to
the appellant against the order of the District Forum even under Section 24
of the Act for the reason that the order passed by the State Commission,
which was not interfered with by the National Commission holding that
second appeal is not maintainable against the order of the State
Commission. Further, the order passed by the State Commission is under
Section 27A of the Act in the appeal against the order dated 30.7.2013 of
the District Forum which under Section 27(2) of the Act convicted and
sentenced the respondents in the execution proceedings for non
implementation of the order dated 17.10.2003 passed by the District Forum
on the original complaint. Therefore, this Court in exercise of power of
this Court under Article 142 of the Constitution of India, the order of the
State Commission is modified to the extent of remanding the case to the
District Forum to execute the decree and take penal action against the
respondents by following the procedure under Section 262 read with Chapter
XX and Section 251 of the Code of Criminal Procedure in accordance with
law.
Further, it is needless to observe in this order that apart from initiating
proceedings under Section 27 of the Act, the alternative right is also
available to the appellant to execute the order of the District Forum by
invoking the provisions of Code of Civil Procedure, 1908 under Order XXI
read with the Rule 32 for seeking direction to the respondents to get sale
deed in respect of the Plot No. 114, Village Khoda, Ghaziabad executed by
the Navchetna Sahkari Awas Samiti Ltd. and register the same before the Sub-
Registrar and put her in possession of the same in accordance with the
aforesaid provisions. The execution of the decree in the aforesaid terms is
permissible in law in view of the provisions of Section 13(4), (6) and (7)
of the Act, as the provisions of Order XXI read with the Rule 32 of Code of
Civil Procedure are applicable to the District Forum to follow the
procedure for execution of the order passed by it. In view of the aforesaid
provisions of the Act, the provisions of Order XXI read with the Rule 32 of
Code of Civil Procedure, are applicable in the execution proceedings before
the District Forum for executing the orders passed on the complaint of the
appellant to get the fruits of the same in the absence of either express or
implied exclusion of Code of Civil Procedure to execute the order of the
District Forum. The said provisions of Code of Civil Procedure are
applicable to the procedure for disposal of the complaints by the District
Forum not only in relation to the matters enumerated under Section
13(4),(6) and (7) of the Act but the other provisions of Code of Civil
Procedure viz. Order XXI read with the Rule 32 are applicable for execution
of the order of the District Forum and to give effect to the order passed
by it on the complaint as the same will be in the nature of decree as
defined under Code of Civil Procedure as the procedure contemplated under
the said order read with Rule 32 which is a substantial procedural right of
the appellant and the same can be invoked by her as the decree holder.
In addition to above, the alternative remedy is also available to the
appellant to take penal action against the concerned officers of the
Navchetna Sahkari Awas Samiti Ltd. under Section 27 of the Act and
therefore, she is at liberty to avail the said remedy also if she wants to
get the decree dated 17.10.2003 executed by the District Forum as the same
has attained finality in her favour.
With the aforesaid observation and direction to the District Forum and
liberty to the appellant, we allow these appeals to the above said extent.
No costs.
……………………………………………………………J.
[V. GOPALA GOWDA]
…………………………………………………………J.
[R. BANUMATHI]
New Delhi,
February 10, 2015
Comments