State Consumer Disputes Redressal Commission
The Secretary vs Smt Premlata Saha on 28 March, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 SC.CASE NO. : FA/343/12 (Arisen out of Order Dated 21/09/2011 in Case No. EA/06/2010 of District Consumer Disputes Redressal Forum Uttar Dinajpur, Raigunj) DATE OF FILING : 26.06.12 DATE OF FINAL ORDER: 28.03.13 APPELLANTS : 1. The Secretary, Raiganj Rail Side Small Traders Development Co-operative Society Limited G Road, Mohanbati, P.O. and P.S. Raiganj, District- Uttar Dinajpur. 2. Raiganj Rail Side Small Traders Development Co-operative Society Limited Represented by the Chairman, MG. Road, Mohanbati, P.O & P.S Raiganj , District- Uttar Dinajpur. RESPONDENT : Smt. Premlata Saha, @Bina Saha, W/O Sri Uma Saha, At present residing at East Ashokpalli, Ward No.1 under Raiganj Municipality , P.O and PS Raiganj, District- Uttar Dinajpur Near NH34. BEFORE : MEMBER : MR. D.BHATTACHARYA MEMBER : MR. J.BAG FOR THE APPELLANTS: Mr. Prabir Maji, Ld. Advocate. FOR THE RESPONDENT.: Mr. Ritobroto Banerjee, Ld. Advocate. Mr. Rajtilak Ghoshal, Ld. Advocate. : O R D E R :
Mr. J.Bag, Ld. Member The present appeal is directed against the Order dated 21.09.2011 passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur, in Case No. EA 6 of 2010 which arose from the Complaint Case No. 02/2010 comprising the facts as stated below:
One Sonelal Saha, since deceased, was the husband of Smt. Premlata Saha @ Bina Saha being the Complainant/Respondent. The said Sonelal Saha had a shop over the land owned by Indian Railways, as some others had. The Railway authority having decided to evict the occupiers /shop owners, the latter formed a Co-operative Society under the name and style of Raiganj Rail Side Small Traders Development Co-operative Society which decided to develop the shops including that of the Complainants deceased husband who deposited Rs.10,000/- for his shop on 08.02.2005 but died on 10.04.2008 in an accident. His nominee Premlata Saha as per existing terms issued two cheques for Rs.78,105/- dated 10.03.2009 in favour of the O.P/ Appellant i.e., Secretary Raiganj Rail Side Small Traders Development Co-operative Society who asked the Complainant /Respondent to prove that she was the same and one person @ Bina Saha and the wife of Sonelal Saha since deceased. She produced local Municipal Councilors certificate and affidavit sworn before the Judicial Magistrate, Raiganj in support of the fact that Premalata and Bina Saha are one and the same person, but the O.P.s/Appellants did not receive the cheques. Premalata Saha approached several times for delivery of the possession of the stall in her favour, but in vain. In the circumstances a consumer complaint was filed. O.P.s received notice but did not turn up. So the matter was heard exparte and an order was passed by the Ld. Forum below after taking all relevant facts into consideration. The complaint was allowed ex parte with litigation cost of Rs.2,000/- apart from direction upon O.P.s/Appellants to deliver the possession of the stall in question to the Complainant upon realizing the balance money of Rs.78,145/-. The Ld. Forum also directed for payment of Rs.50,000/- as compensation for prolonged harassment by the O.P.s by refusing to deliver the possession of the stall of her husband. The final order being pronounced on 04.08.2010, it was incumbent upon the O.P.s in the complaint case No. 02/2010 to comply. The order not being complied with an Execution Case under No. 6 of 2010 was started and the Ld. Forum issued Warrant of Arrest against the O.P.s through O.C. Raiganj P.S. Uttar Dinajpur. On 15.12.2010 O.P./Jdr submitted before the Ld. Forum below that they were ready to satisfy the award passed by the Forum to the Complainant/Dhr . The Complainant was given a Draft for the amounts of the Rs.20,000/- and Rs.2,000/- . It was further stated by the O.Ps. that they were ready to deliver the possession of the stall in favour of the Dhr in terms of order of the Ld. Forum. On being satisfied that the matter was being settled outside the Forum the Execution Case was disposed of on full satisfaction and Warrant of Arrest was recalled. On 21.12.10 record being put up on call Ld. Forum in rectifying and error that took place in their order dated 15.12.2010 put the corrected amount as Rs.52,000/- as noticed in their order dated 04.08.2010 in place of Rs.22,000/-
as noted in the order dated 15.12.2010. The matter not being settled for long the Dhr filed an application and the Jdr having failed to produce any copy of order of the Ld. registrar of Co-operative Societies/West Bengal Co-operative tribunal, in support of their own contention that one appeal case was pending with the tribunal Ld. Forum below on 26.07.2011 directed O.P.s to show cause as to why a mandatory injunction shall not be issued for taking positive step to deliver the possession of the stall to Dhr. On 21.09.11 Jdr prayed for further time to show cause which was rejected on the ground of criminal liability of the Jdr. For non satisfaction of the decree in full Jdr was penalized with imprisonment for one year and fined with Rs.1 lakh i.d. to suffer six months simple imprisonment.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below dated 21.04.2011 in EA Case No. 6 of 2010 the Appellant/Jdr filed a revision petition which was ,vide Order dated 28.05.2012, rejected by this Commission with the liberty to the Revisionist to file appeal u/s 27A of the Consumer Protection Act 1986. Hence the appeal.
It has been contended in the appeal that an agreement for allotment of a stall was made on 04.01.11 between the Dhr and the Jdr in compliance with the order of the Ld. Forum below dated 04.08.10 but the fact was suppressed by Dhr in her EA petition, that there was no scope of passing order by the Ld. Forum below on 26.07.2010 and 21.09.2010 after finally pronouncing ttheir order on 21.12.2010 and that some 11 members of Raiganj Rail Side Small Traders Development Co-operative Societies Ltd. have filed an appeal Case No. 10 of 2008 before the Ld. West Bengal Co-operative Tribunal against the order of the Ld. Asst. Registrar of Co-operative Societies Uttar Dinajpur in the Disputes Case No. 2B of 2007 -08 and the appeal is pending in consequence whereof the delivery of possession of the stall in question of the Dhr has been on hold.
We have gone through the appeal together with the order dated 21.09.2011, complaint of the Respondent /Complainant and the order of the Ld. Forum dated 04.08.2010 in C.C. No. 02/2010 apart from the agreement made between the Dhr and the Jdr dated 04.01.2011 among other documents . The M.A. 361/2012 filed before this Commission which the prayer for bringing on record all orders passed in connection with E.A. Case No. 6 of 2010 has also been gone through . Ld. Advocates appearing for the Appellant and the Respondent have been heard.
Ld. Advocate appearing for the Appellant /Jdr submitted that the order of the Ld. Forum below dated 04.08.2010 in C.C. No. 2 /2010 has been substantially complied with as reflected in their subsequent order dated 21.12.2010 in EA Case No. 6/10 leaving no scope of passing further order on 26.07.2011 and 29.09.2011 in the same EA Case. Further, an appeal came by 2008 against an order of Ld. ARCS, Uttar Dinajpur in Dispute Case No. 2D of 2007-08 is pending with the Ld. West Bengal Co-operative tribunal causing delay in delivery of possession of the stall in question to the Dhr. Reopening of the Execution Case that stood finally disposed of on the prayer of the Dhr on 21.12.2010 is illegal and hence, it was argued, the appeal should be allowed setting aside the impugned order.
Ld. Advocate appearing for the Dhr /Complainant argued that the Jdr Co-operative Society has been harassing the Dhr under the pretext of pendency of an appeal before the Ld. West Bengal Co-operative tribunal and in spite of several opportunities they failed to produce any document in connection with the appeal which should be ignored all together for ends of justice.
After due consideration of all relevant facts as presented before this Commission, we find that though subsequent to the passing of orders dated 15.12.2010 and 21.12.2010 by the Ld. Forum below an agreement was made on 04.01.2011 by and between the Dhr and the Jdr for allotment of a stall, the stall has not actually been delivered to the Dhr as the Jdr is , according to their version, hindered by the pendency of an appeal from 2008 against the order of the Ld. ARCS , Uttar Dinajpur , the appeal be filed by Sri S. Bhowmik and some Members of the Jdr Co-operative Societies. The Jdr, however, failed ,as observed by Ld. Forum below, to show any documentary evidence in support of their contention in spite of several opportunities allowed. Accordingly, the Ld. Forum vide their order dated 21.09.2011 decided to penalize the Jdr with imprisonment for one year and with fine of Rs.1,00,000/- in default, another term of 6 months simple imprisonment. We are at one with the Ld. Forum below that the Appellant /Jdr has failed to produce any cogent and reliable evidence in support of their contention that they are positioned under such compelling circumstances as would not permit delivery of possession of the stall in favour of the Dhr. Deficiency in service on the part of the Jdr stands substantiated. The appeal does not have merit.
Hence, Ordered that the appeal be and the same is dismissed on contest .The impugned order is confirmed. There shall be no order as to cost .
The Miscellaneous Application bearing No. 361/2012 stands disposed of accordingly.
MR. J.BAG MR. D.BHATTACHARYA MEMBER MEMBER