State Consumer Disputes Redressal Commission
Krishnarao Dhondiba Bhegade & Ors. vs Narayan Devidas Pandit on 2 February, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Revision Petition no. 15/2010 in Date of Filing: 25/01/2010 Consumer Complaint No.104/2000in E.A.No.18/2007 District Consumer Forum: Pune.(Additional) Date of Order: 02/02/2010 1. Krishnarao Dhondiba Bhegade, Petitioners R/at- Shaniwar Peth, Talegoan-Chakan Road, Talegaon Station, Taluka- Maval District-Pune-410506. 2. Goraknath Raghunath Kalokhe., R/at- Kalokhewadi, Talegaon-Dabhade, Taluka- Maval, Distict-Pune- 410 506. 3. Mukundrao Pandharinath Khalade, R/at- Khalade Ali, Budhawar Peth, Talegaon Dabhade, Taluka- Mawal, District- Pune- 410 506. 4. Ramdas Mahadeo Kakade, R/at- Joshiwadi, Indrayani Vidyamandir Colony, Talegaon Station, Taluka- Maval, District-Pune-410 506. 5. Keshavrao Tukram Wadekar, R/at- Plot No.31, Indrayani Colony, Talegaon Dabhade, Taluka- Maval, District- Pune. 6. Suresh Dashrath Shirke, R/at- Talegaon, Staion Chowk, Taluka- Mawal, District- Pune. V/S Narayan Devidas Pandit, Respondent R/at-78, Indrayani Vidya Mandir, Talegaon- Chakan Road, Talegaon Dabhade, Taluka- Maval, District- Pune- 410507. Quorum : Justice Mr.S.B.Mhase, Hon'ble President Mr.D.Khamatkar, Honble Member.
Present: Adv.Mr.Pratap Patil @ Adv.MrA.J.Chougule For petitioners. Adv.Mr.A.Patwardhand for respondent :- ORAL ORDER :- Per Shri S.B.Mhase, Honble President :
This revision is directed against the order dated 04/01/2010. By the said order non-bailalble warrant has been issued against the petitioners in view of the application dated 23/03/2009. The said order is under challenge.
The respondent had filed initially a complaint bearing no. 104/2000 before Additional District Consumer Forum, Pune. It was decided on 30/08/2004. The order is to the following effect:
The complaint is allowed. The opponent trustees of Indrayani Vidyamandir do deliver the possession of any plot on Survey no. 21-B & 23, Talegaon Dabhade under the scheme of opponent within 8 weeks to the complainant.
OR In the alternative do pay an amount of Rs.4,50,000/- (Rupees Four Lacs and Fifty Thousand Only) being the calculated as the market value of the plot, within 8 weeks from the date of receipt of copy of the order.
The opponent is directed to comply with the order within stipulated period and report the compliance by producing affidavit of the Secretary of the society.
As against this order the revision petitioner had preferred F.A.No.2312/2004 before State Commission. It was decided on 13/07/2005 and appeal which was preferred by the revision petitioner was dismissed. Thereafter, it appears that original complainant filed miscellaneous application no.E-18/2007 purported to be application under Section 27 of Consumer Protection Act, 1986. In the said application he made following prayers:
The opponents through themselves or through Court Commissioner may be directed to execute the Conveyance Deed & to deliver the vacant, actual, physical & peaceful possession of plot no.76 or any other plot admeasuring 5 Guntha at Survey No.21-B & 23, Talegaon Dabhade under their scheme to the complainant.
It further appears that summons in the execution application was issued to the revision petitioner. Adv.Mr.Shirke appeared in the said execution proceeding and filed vakalatnama and had taken time. Thereafter, he had filed the statement on oath. However, the order passed in original complaint was not obeyed and therefore, application dated 23/03/2009 was filed by the original complainant to issue non-bailable warrant and District Forum had found that since the order had not been obeyed and satisfied, directed to issue non-bailable warrant.
What we find that the total procedure followed by the complainant including District Forum is beyond the scope of Consumer Protection Act, 1986. Both of them have not looked to the provisions of Act and Rules. What is important to be noted is that in an application under Section 27, directly the District Forum does not have a power to deliver the possession of the property and or execute the conveyance deed. Such type of execution is contemplated under provisions of Code of Civil Procedure, 1908, viz Order XXI Rules 34 and 35. However, such procedure cannot be adopted by the Consumer Fora more specifically in view of Regulation No.26 (1) of Consumer Protection Regulations of 2005 issued by Honble National Commission. Therefore, the prayer clause 6(a) in the application under Section 27 is absolutely misconceived. In such application the only prayer which can be made by the complainant is to punish the opp.party as provided under Section 27(1). In view of the deterrence of the punishment the opp.party in the said complaint shall come forward to obey the orders like that of execution of conveyance deed, delivery of the possession, but there cannot be a direct order by the District Forum for delivery of possession and execution of conveyance deed in a application under Section 27 because such machinery which is available to the Civil Court is not available to the District Forum under Consumer Protection Act, 1986 since Section 27 only permits District Forum to punish the person for non-compliance of the order as provided under Section 27(1). It is to be noted that procedure followed in Consumer Protection Act, 1986 is a summary procedure as contemplated under the Criminal Procedure Code, 1973 (Cr.P.C., in short) because the punishment is the punishment for the offences and Sub Section (3) of Section 27 stipulates that all offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be. Therefore, the procedure for punishing all offences under this Act is a summary procedure as is provided under Cr.P.C. On presentation of application under Section 27 the District Forum is supposed to take cognizance of offence under Section 190 of Cr.P.C. and shall issue summons to the opponents. After the opponents appears before District Forum, the opponents shall give application for bail. Such application shall be dealt with by District Forum in accordance with law. If bail is granted, the opponent is to give bail for attendance. If on that date being unaware of the provision of the law, if opponent have not brought the surety, they could be released on executing personal bond to attend the proceedings. Thereafter, after following the procedure as laid down under Chapter XX and XXI of Cr.P.C., the case can be disposed of by taking a trial by Consumer Fora following the procedure. Such procedure is as applicable to the proceedings under Section 27. To that extent there are administrative instructions issued by State Commission. So also there are judicial pronouncements covering the subject, but the District Foras are not looking to the said aspect and indulging into a practice which is suitable to them, which is not proper under the law. The District Forum shall also keep in mind that they are sitting as Judicial Magistrate First Class. While dealing with application under Section 27 of Consumer Protection Act, 1986, they shall also bear in mind that the procedure of complaint prescribed under Section 13, 14 is not applicable to proceeding under Section 27 of Consumer Protection Act, 1986. The District Forum together is a deemed to Judicial Magistrate First Class and not the individual member or President. These differences makes the proceeding under Section 27 of Consumer Protection Act, 1986 quite different from other proceedings under the Said Act.
What we find that in the present matter after service of summons the revision petitioner himself had not at all appeared in the District Forum and had not offered the bail. In stead of that he appeared through Advocate and filed certain undertaking etc., which is not within the scope of Section 27. Having found that revision petitioner is not present and attending the District Forum, the order of non-bailable warrant is issued and that appears to be justified in the facts and circumstances of the case. However, Ld.Counsel for the revision petitioner made a statement that having realised that bail has to be given before District Forum, yesterday i.e. 01/02/2010, they had appeared before District Forum and tried to give personal bond. Such procedure is also not allowed. The petitioner should give an application for grant of bail and thereafter, should have offered surety in the like amount to the satisfaction of the District Forum. If he was not possessed of such surety to grant bail, he could have made request to the District Forum to release him on executing personal bond to attend the proceedings. Thereafter, after following procedure as laid down under Chapter XX and XXI, the case can be disposed of taking a trial by Consumer Fora. Let the fact as it is.
Now what we find that there is no substance in the present revision petition. Hence, we only give a liberty to the petitioner to make a proper application when the date has been scheduled before District Forum and District Forum shall consider the said application in accordance to the law. Hence, we pass the following order:-
:-ORDER-:
1.
Revision petition stands disposed.
2. Petitioner is at liberty to make a proper application when the date has been scheduled before District Forum and District Forum shall consider the said application in accordance to the law.
3. Parties shall bear their own costs.
4. Dictated in open court.
5. Copies of the order herein be furnished to the parties as per rules.
(D.Khamatkar) (S.B.Mhase) Member President Nbh