State Consumer Disputes Redressal Commission
M.R. Venkat Reddy vs Smt. N. Harshada on 11 January, 2023
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BEFORE THE TELANGANA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION : HYDERABAD.
FA.NO.654/2018
AGAINST ORDERS IN CC.NO.652/2012 ON THE FILE
OF DISTRICT CONSUMER COMMISSION-III,
HYDERABAD
Between:
M.R. Venkat Reddy, Builder,
S/o. Late M.Ranga Reddy,
Aged 53 years, Indian,
Occ: Business,
R/o. Plot No.43,
Sri Laxminarayana Colony,
Subhashnagar,
Trimulghery,
Secunderabad - 500015.
...Appellant/Respondent/Opposite Party
And Smt. N.Harshada, W/o. N.Venkata Ramana, Aged 31 years, Occ: Private Employee, Flat No.104, Sri Balaji Residency, Sri Malani Enclave, Plot No.36 & 37 part, Trimulgheryy, Secunderabad - 500015.
.....Respondent/Petitioner /Complainant Counsel for the Appellant/Respondent/Opposite Party :
M/s. K.Visweswara Rao Counsel for the Respondent/Complainant: Sri G. Ravichandran QUORUM: HON'BLE SRI K.RANGA RAO, MEMBER-(J) & HON'BLE SMT R.S. RAJESHREE, MEMBER - (NJ) WEDNESDAY, THE ELEVENTH DAY OF JANUARY TWO THOUSAND TWENTY THREE ******* (Per Hon'ble Smt.R.Rajeshree, Member-Non -Judicial) Order :
(01). This is an appeal filed under Section-27 (A) of Consumer Protection Act, 1986 by the appellant / Respondent / Opposite Party aggrieved by the orders of the 2 District Consumer Disputes Redressal Commission -III, Hyderabad dated 12.12.2018 holding appellant / Respondent / Opposite Party guilty of non-compliance of orders passed in C.C. No.652/2012 and passed the following orders in the E.A.No.37/2016.
Accordingly, the Respondent is therefore, convicted under section 255 (2) of Cr.P.C., for the offence under section 27 of the Consumer protection Act, 1986 and sentenced to undergo simple imprisonment of two (2) years and to pay fine of Rs.10,000/- (Rupees ten thousand only), in default to suffer simple imprisonment of one(1 ) month.
(02). For the sake of convenience, the parties are arrayed as Petitioner and Respondent in the E.A. before the District Consumer Commission.
(03). The case of the Petitioner is that the District Consumer Commission has allowed the CC on 23.11.2015 by giving the following directions to the Respondents.
i. The Opposite party shall arrest water leakage in the Master bedroom, children bedroom and the external walls.
ii. The Opposite party shall rectify the cracks developed on all the walls pointed out by the complainant as per Ex.A3 dated 27.10.2012. iii. The Opposite party shall pay the complainant a sum of Rs.1,000/- p.m., towards drinking water charges from December,2010 till the date of filing of the complaint i.e., 19.11.2012. The Opposite party shall earmark the parking 3 area and deliver possession of the same to the complainant.
iv. The Opposite party shall handover the Occupancy Certificate, revised sanctioned plan and completion certificate to the complainant. v. The Opposite party shall alter the window shutters which are open into the common area and fix them to open into inside the flat. And the said order copy was served on the respondent. Inspite of receiving the said order the respondent failed to comply the same within the specified period and had showed scant regard and respect to the directions of the District Consumer Commission. Hence, the respondent is liable to be dealt with in accordance with law and punished severely for willful, deliberate, intentionally dis-obeying the orders of the District Consumer Commission and the Respondent is guilty of contempt of court for having disobeyed the orders of the District Consumer Commission. As such, he be punished severely in accordance with law and filed the E.A. and prayed for the same.
After conducting trial the District Commission has passed the order as referred in para No.1. (04). Aggrieved by the above said orders the appellant / Respondent / Opposite Party had preferred the present appeal on the following grounds.
(05). The grievance of the appellant is that originally a CC.No.652/2012 was filed against him by the Respondent / Complainant and the same was allowed by the District 4 Commission by giving several direction and as the opposite party had not complied one of the direction within the stipulated time the complainant filed an E.A.No.37/2016 where in a trial was conducted and finally the District Commission -III, Hyderabad had passed the orders as said supra. Aggrieved by the said orders the present appeal is filed on the following grounds: -
The District Consumer Commission ought to have dismissed the E.A.No.37/2018 holding that the orders in C.C.No.652/2012 stands complied. The District Consumer Commission rightly observed that the appellant / Respondent / Opposite Party complied the order of arrest of leakage of water in master bed room, children bed room, rectification of cracks developed in the walls, payment of water charges of Rs.1,000/- per month from 19.11.2012, totaling Rs.24,000/- and also complied the order by earmarking the parking areas and the alteration of window shutters has been complied and also paid an amount of Rs.2,00,000/- though there was no direction. Having observed all these, the District Consumer Commission ought to have dismissed the E.A. The District Consumer Commission though rightly observed the above compliance but had erroneously observed that handing over of the Occupancy Certificate and revised sanction plan had not been complied with.5
The above direction was complied by way of filing a Memo dated 05.11.2018 by categorically stating that the said documents are filed in compliance of direction No.4. The District Consumer Commission without making any observation on the said compliance and without commenting anything on the said documents or without discussing about the admissibility of the said document had come an erroneous conclusion that direction No.4 was not complied and held the appellant / Respondent / Opposite Party liable under Section-27 of Consumer Protection Act, which is bad in law.
The District Consumer Commission failed to see that, the sanctioned plan is duly sanction by the Secunderabad Cantonment Authority and the revised plan is duly stamp by the Cantonment authority that the delivery of possession certificate is issued by the builder and that the Cantonment authority will not issue possession certificate to each flat owner but will issue it to the builder for the apartment as a whole. The District Consumer Commission failed to look into this.
The District Consumer Commission failed to see that there is no direction in the operative portion to obtain Occupancy Certificate from the Cantonment authority but, only states that the same be handed over to the complainant.6
The District Consumer Commission had erred in holding that the appellant / Respondent / Opposite Party had deliberately not complied the direction No.4 of CC order and failed to observe that, the complainant at one point has filed the Execution Application and on the other hand has filed W.P.No.9109/2012 against the Cantonment board seeking for demolition of alleged illegal structure of the same building and also filed the contempt case No.632/2013 on the file of Hon'ble High Court of AP and that the Cantonment board is made as Respondent No.1 in that petition, because of this, the Cantonment board is not proceedings further in the issuance of the Occupancy Certificate. As such, there is no deliberate non-compliance of direction No.4. The District Consumer Commission failed to observe that direction No.4 which is not in the hands of the appellant, and the fact remains that the appellant has complied all other directions of the District Consumer Commission.
The non-issuance of the Occupancy Certificate by Cantonment Board is not in the hands of the appellant / Respondent / Opposite Party and he has made all the efforts for obtaining the same by filing a petition before the Cantonment Board and also before the appellant authority and despite of the same the Cantonment Board is not issuing the same in view of the W.P. filed by the 7 complainant. Hence there is no willful dis-obedience on the part of the Appellant.
The District Consumer Commission failed to see that the complainant had failed to prove any guilty for punishing the appellant under Section-27 of Consumer Protection Act, 1986 beyond reasonable doubt.
The District Consumer Commission failed to consider the contingency of responsibility that the appellant had to perform of his niece marriage as his brother has passed away, even without considering the said request The District Commission has passed the orders in EA by sentencing the Appellant. The appellant had paid the fine amount of Rs.10,000/- and filed an I.A.No.235/2018 for suspension of sentence. The District Commission has suspended the sentence for a period of 15 days for enabling the appellant to prefer an Appeal on furnishing the surety of Rs.10,000/- each. The fixed deposit surety was not accepted and the government employee surety was rejected and the appellant was in jail for one day and the next day, the property surety furnished was accepted and the appellant was released. For no fault of appellant he was convicted hence, the conviction order is liable to be set aside. The District Consumer Commission failed to see that the order passed by it is like a Civil decree and that the execution do come under the purview of Section- 8 25 of Consumer Protection Act and the Respondent / Complainant without exhausting the said remedy under Section-25 had preferred an E.A under Section 27 of C.P. Act, 1986 which is bad in law. Hence the impugned order is to be set aside.
Based on the above grounds the appellant / Respondent / Opposite Party prayed this Commission to set aside the orders passed in E.A.37/2016 in CC.No.652/2012 by The District Commission -III, Hyderabad and consequently dismiss the said E.A., as all the directions were compiled by the appellant and that there is no deliberate disobedience of the directions of the District Consumer Commission and allow the present appeal.
(06). Heard the appellant counsel and perused the record. (07). Now the points that arise for consideration are:
1. Whether the appellant /Respondent / Opposite Party had willfully disobeyed the orders of the District Commission ?
2. Whether the impugned order as passed by the District Consumer Commission suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with in any manner?
3. To relief ?
(08). During the course of enquiry before the District Consumer Commission-III inorder to prove her case. The Petitioner examined herself as Pw1 and got marked Ex.A1 9 and on behalf of the Respondent M.R. Venkat Reddy Rw1 got himself examined and got marked Exs.B1 to B8.
Before discussing the merits of the case we would like to mention a development. On 07.07.2022 the appellant counsel filed a memo informing that the respondent died on 02.01.2022, accompanied with a death certificate. Respondent counsel failed to furnish the details of Lrs., as such no steps taken to implead the Lrs., of Respondent. Hence, on 15.11.2022 this commission an order to hear the appeal on merits and proceeded hearing the appeal and reserved the same for orders.
Now the point is whether the appeal can be continued in the absence of LRs., of respondent /Complainant. For this the provision i.e., 0rder-22, Rule- 12 is very clear which reads as under:
"Order -22 Rule-12: Application of order to proceedings - Nothing in Rules 3,4 and 8 shall apply to proceedings in execution of a decree or order."
And in Varadarajan Vs. Kanakavalli & Others the Hon'ble Supreme Court while dealing with the similar issues had relied on their own Judgment i.e., V.Uthirapathi Vs. Ashrab & Others and held that "in other words, the normal principle arising in a suit - before the decree is passed - that the legal representatives are to be brough on record within a particular period and if not, the suit could abate, - is not applicable to cases of death of the decree-holder or the judgment debtor in execution proceedings."
10And also made a reference to the "Mulla's Commentary on Civil Procedure Code.
"Rule -12 engrafts an exemption which provides that where a party to an execution proceedings dies during its pendency, provisions as to abatement do not apply. The Rule is, therefore, for the benefit of the decree-holder, for his heirs need not take steps for substitution under Rule2 but may apply immediately or at any time while the proceeding is pending, to carry on the proceeding or they may file a fresh execution application."
And held that the above statement of Mulla's Commentary on CPC. Correctly represents the legal position relating to the procedure to be adopted by the parties in execution proceedings and as to the powers of the civil court."
In view of the above the Appeal is heard and proceeded on merits.
(09). At the cost of repetition we would like to mention here that the present Appeal is filed. Aggrieved by the Conviction orders passed in EA No.37/2016 for non- compliance of direction No.4 in the CC order dated 12.12.2008 vide CC.No.652/2012.
For better clarification the said direction No.4 in CC and the relevant portion of the E.A order is being reproduced hereunder:
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Direction No.4:
The Opposite Party shall handover the Occupancy Certificate, revised sanctioned plan and completion certificate to the complainant. Relevant portion of order in EA.
The direction of this Forum by its order dated 23.11.2015 can be said to have been complied partly in so far as payment of Rs.24,000/-
(Rupees twenty four thousand only) towards drinking water, allotment of parking area, alteration of leakage of water in the children bed room and the external walls, cracks developed on all the walls..................... Thus, only with regard to handing over the occupancy certificate and Revised Sanctioned plan, the Respondent can b e said to have not complied the orders of the Forum.
That apart during the trial in Execution Application the appellant /Respondent / Opposite Party filed his evidence affidavit and got marked ex.B1 to B8 and contented that non-compliance of direction to obtain occupancy certificate and Revised sanction plan is not in his hands and the same is delayed due to the writ petitions and contempt applications filed by the Respondent / Complainant, which are marked as Ex.B1 & B3 and due to the pendency of Appeal before Appellate authority at Pune. (10). A keen perusal of Ex.B8 goes to show that the cantonment authority has returned the application for revised sanction plan of appellant /Respondent / Opposite Party by giving the following reason. "the construction was contrary to bylaws" that itself makes it clear that, for the fault of the appellant /Respondent / Opposite Party only the Occupancy Certificate and revised plans are being denied by the cantonment authority for which act of 12 appellant /Respondent / Opposite Party, the Respondent / Complainant / DHR are deprived of the necessary documents. Which are crucial to own and possess their property. For the illegal acts of a builder the genuine purchasers cannot be put to suffer loss. Considering the same the District Commission has rightly sentenced the appellant /Respondent / Opposite Party.
In Fakir Chand Gulati Vs. uppal agencies Pvt. Ltd., The Hon'ble Supreme Court has dealt with a similar issue and has held as Under:
A prayer for completion certificate and C & D Forms cannot be brushed aside by stating that the builder has already applied for the completion certificate or C & D Forms. If it is not issued, the builder owes a duty to make necessary application and obtain it. If it is wrongly withheld, he may have to approach the appropriate court or other forum to secure it. If it is justifiably withheld or refused, necessarily the builder will have to do whatever that is required to be done to bring the building in consonance with the sanctioned plan so that the municipal authorities can inspect and issue the completion certificate and also assess the property to tax. If the builder fails to do so, he will be liable to compensate the complainant for all loss/damage. Therefore, the assumption of the State Commission and National Commission that the obligation of the builder was discharged when he merely applied for a completion certificate is incorrect.13
(11). And in the instant case also the appellant /Respondent / Opposite Party by filing Ex.B8 is trying to prove that there is nothing in his hands and expressing his inability to obtain the Occupancy Certificate & sanction plan but the fact remains that non-issuance of the Occupancy Certificate and revised sanction plan by the cantonment authority is due to the illegal acts of the appellant /Respondent / Opposite Party in such case the appellant /builder shall be liable for non-compliance of the orders.
(12). Further the appellant counsel had contended that the District Commission had not considered the documents filed along with memo, but it is pertinent to mention here that since the said documents were not marked the same were not considered by the District Commission. That apart the said documents do not have any evidentiary value.
(13). Based on the foregoing discussion though we hold the appellant guilty of non-compliance of orders but keeping in view that he had complied all other directions which were within his control and probabilities of the case suggest that one can impute knowledge to the complainant with regard to the violation of construction permits because any naked eye can observe the construction done in two plots as one single building. Being the residents of Hyderabad the complainant should have visited the site when the super structure was constructed as it is a single 14 building in other words the complainant tacitly permitted the opposite party to continue with the illegal construction only after completion of major part of construction the complaint was filed for various deficiencies for the above reasons we are of the view that it is not a fit case to impose maximum punishment of imprisonment.
We are of the considered view that the order of the District Commission be modified as under:
(14). Point No.3: In the result, the Appeal is disposed of by modifying the District Commission order by reducing the sentence of appellant from 2 years to 6 months and confirming the fine imposed by the District Commission.
The District Commission is hereby directed to see that the appellant shall undergo the sentence as modified above.
Dictated to the steno; transcribed and typed by her; corrected and pronounced by us in the open court on this 11th day of January, 2023.
SD/- SD/-
-------------------- --------------------- MEMBER (M-J) MEMBER M-NJ) Dt: 11.01.2023 KPS*