KAMLESH AGGARWAL Vs NARAIN SINGH DABBAS
Bench: V. GOPALA GOWDA,R. BANUMATHI
Case number: C.A. No.-000224-000225 / 2015
Diary number: 6340 / 2014
Advocates: AJAY KUMAR SINGH Vs
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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.
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2. 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.
3. 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.
4. Since, there was non compliance of the order
dated 17.10.2003, the appellant filed Execution
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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.
5. 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
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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.
6. 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.
7. 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
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passed by the District Forum.
8. 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.
9. 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.
10. Being aggrieved by the abovesaid order, the
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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.
11. The appellant being aggrieved by the order dated
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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.
12. 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.
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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.
13. 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.
14. 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
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and passed the order and therefore he submits that
the impugned order does not warrant interference by
this Court.
15. 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
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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
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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 .
16. 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
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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.
17. 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
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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.
18. 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,
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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
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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.
19. 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.
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20. 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