State Consumer Disputes Redressal Commission
Mr. Tarachand P Dedhia & Ors. vs Vimal Co-Op Hsg Society Ltd on 29 April, 2011
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Revision
Petition No. RP/11/1
(Arisen out
of Order Dated 29/11/2010 in Case No. 102/07 of District Thane)
1.
MR. TARACHAND P
DEDHIA
2. MR. POPAT
BHAI GALA,
3. SMT.
HARIBAI HARSI GADDA,
4. MR. JAYANT
DEDHIA,
M/S SIDDHI VINAYAK ASSO.
ADDRESS:- 33-A, JASODABAI KHIMJI MAHARAJ, B-509, M.
J. ROAD MULUND (WEST), MUMBAI - 400 080.
..........Revision
Petitioners
Versus
VIMAL CO-OP HSG SOCIETY LTD
THROUGH ITS SECRETARY MR MUKUND ATTRE
M.D.I 13, VARDHAMAN NAGAR, VADAWALI, VIBHAG MIDC
ROAD AMBERNATH (EAST), DISTRICT - THANE.
...........Respondent(s)
BEFORE:
Hon'ble Mr.Justice S.B.Mhase PRESIDENT
Hon'ble Mr. Dhanraj Khamatkar Member
PRESENT:
Mr. Anand Patwardhan, Advocate for the Petitioner
Mr. Nagraj V. Hoskeri, Advocate for the
Respondent
ORDER
Per Hon'ble
Justice Mr. S. B. Mhase, President Heard both sides.
[2] This revision petition can be disposed of at the stage of admission. This revision has arisen in the following facts & circumstances, which are not in dispute
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[3] The Respondent Society - the original Complainant, had filed a Consumer Complaint No.29/2003 before the Thane District Consumer Disputes Redressal Forum, as against the Revision Petitioners - the Opponents. The said consumer complaint was decided on 05/03/2007, in following terms:-
"
1. Complaint No.29/2003 is partly allowed and disposed off.
Opponent shall pay jointly and severally the sum of Rs.5,000/- (Rs. Five Thousand Only) towards the cost of the complaint to the Complainant society and shall bear its own.
2. The Opponent builder 1 to 4 shall complete the work of garden and separate water tank and separate water pump. They shall also remove the leakage problem of the flats.
They shall also concentrate and remove the defects in the drainage chamber to stop the dumping of the same.
The Opponent builder shall issue Occupation Certificate to the Complainant society regarding building completion and shall also execute the conveyance deed of the property of Complainant society in its favour. The Opponent no.1 to 4 shall jointly and severally pay Rs.2,00,000/- (Rs. Two Lakhs Only) out of the total claims made in sub para nos.1 to 6 of para 22 to the Complainant society.
3. The above order shall be complied with, by the Opponent builder within 2 months from the date of receipt of the copy of the judgment failing which Opponent shall be liable to pay 9% p.a. from the date of filing of the complaint till its final recovery.
4. Certified copies be furnished to the parties."
[4] Said order was challenged before the State Commission, by filing First Appeal No.413/2007.
Said appeal was decided on 04/11/2008. The appeal was partly allowed. The directions given by the District Forum to the Revision Petitioners - the Opponents, to complete the work of garden, water tank and separate water pump was quashed & set aside, so also, direction to remove defects was quashed & set aside. Quantum of compensation of `2,00,000/- which was granted by the District Forum was reduced to `75,000/-. Costs of litigation, which was granted by the District Forum, namely `5,000/-, was confirmed. Direction to execute the Conveyance Deed in favour of the Respondent Society was confirmed. The Appellants - the Revision Petitioners, were directed to comply with this order within a period of 45 days and on failure, amount of `75,000/- was to carry interest @ 9% p.a. from the date of filing of the complaint till the date of realization.
[5] Learned Counsel for the Respondent - the Complainant, states that the order dtd.04/11/2008, passed by the State Commission, was challenged by the Respondent Society before the National Commission, by way of a revision. However, said revision was dismissed by the National Commission and the order of the State Commission, referred to above, was confirmed. Ultimate result is that the order dtd.04/11/2008, passed by the State Commission in First Appeal No.413/2007, has achieved finality, under Section-24 of the Consumer Protection Act, 1986.
[6] So far as monetary part of the order, as passed by the State Commission is concerned, said part has been obeyed by the Revision Petitioners - the Opponents, and the Learned Counsel for the Respondent - the Complainant, states that the Respondent has no grievance in respect of execution & compliance of the monetary part of the order. Therefore, the only part, which remains to be executed by the Revision Petitioners, is as regards direction to convey the property in favour the Respondent Society - the Complainant. Since, the conveyance deed was not executed by the Revision Petitioners - the Opponents; an execution application bearing No.102/2007 was filed before the District Forum. On perusal of the said application, it appears that it is a composite application under Sections 25 & 27 of the Consumer Protection Act, 1986. In the said application, following prayers are made -
"
(a) Property mentioned herein above may kindly be attached as per provisions of Section 25 of the Consumer Protection Act.
(b) O. P. be further committed to jail imprisonment and also be saddled with fine & costs as per provisions of Section 27 of the Act.
(c) Any other further relief as this Forum deems fit may be granted."
[7] It appears that in this execution proceeding, the District Forum had issued notice to the other side.
Thereafter, the Revision Petitioners appeared before the District Forum and filed their reply. It further appears that this execution application was pending before the District Forum during pendency of a first appeal before the State Commission. However, after modification of the order dated 05/03/2007, as was passed by the District Forum, by the State Commission on 04/11/2008 in First Appeal No.413/2007, same execution application has been continued. It further appears that during pendency of the said execution application, the Respondent Society- the Complainant, has informed the District Forum that the monetary part of the order has been satisfied. Therefore, notice was issued under Section-27 of the Consumer Protection Act, 1986; and the said notice, which was served upon the Revision Petitioners, is produced before us. By this notice, the Revision Petitioners were directed to appear before the District Forum on 24/07/2007. That also shows that this notice was served while the appeal before the State Commission was pending.
[8] It is also further an admitted fact that the original Opponents - the Revision Petitioners, had served a proposed draft of the execution of Sale Deed in favour of the Respondent Society - the Complainant, on 20/12/2008 and the Respondent Society has also replied that letter.
[9] It is to be noted that the Revision Petitioners have developed a cluster of 11 buildings and the flat-purchasers in the said 11 buildings have constituted 07 societies.
All those societies were constituted by the Revision Petitioners, as desired by the flat-purchasers. What we have come to know is that on taking into consideration the total plot available, 'I.O.D.' has been granted by the local authority, namely - Ambernath Municipal Council; and therefore, common areas & facilities, including approach road, D.P. installed, garden etc., are for the enjoyment of all flat-purchasers in the 11 buildings. Therefore, taking into consideration this aspect, proposed draft of conveyance deed has been given. There may be some dispute over the conditions in the draft. We need not go into that aspect at this stage. The question for consideration for the District Forum under Section-27(1) is to see that order, which are passed as against the Revision Petitioners, which have achieved finality are obeyed.
However, it appears that in the said proceeding some arguments have taken place between the parties and the order dated 29/11/2010 has been passed by the District Forum on order-sheet (Roznama). After hearing the parties, the District Forum noted the fact that as per the directions, conveyance has not been executed. But it also appears that the dispute between the parties at the time of execution was in respect of open spaces around the buildings 'E' & 'I', of which the Respondent Society - Complainant, was formed. It appears that the Respondent Society
- the Complainant, desires to have transfer of open spaces adjoining to these two buildings in its favour and the Revision Petitioners are not willing to execute such conveyance because according to them, it is a part of the common property of all the societies. Therefore, after hearing the parties on this issue, an order has been passed by the District Forum directing the Revision Petitioners that they shall execute conveyance in respect of the property in favour of the Respondent Society - the Complainant, after taking into consideration the provisions of Maharashtra Regional Development & Town Planning Act.
Being aggrieved & dissatisfied with this order, present revision petition has been filed.
[10] Mr. Patwardhan - Learned Counsel for the Revision Petitioners, submitted that the building permission or 'I.O.D.' was granted by the Ambernath Municipal Council, on taking into consideration total plot and as per 'I.O.D.', the Revision Petitioners are ready & willing to execute the documents in favour of the Respondent Society and all other societies also. He submitted that the scheme was constructed under the Maharashtra Ownership Flats Act, 1963; and as per said Act, building permissions, ownership documents, which were approved by the local authority for the purpose of granting 'I.O.D.' were shown to the intending flat-purchasers and on that basis agreements were entered into with each flat-purchasers and thereafter, possession was handed over and the society has also been constituted. As per said permission, the Revision Petitioners are proceeding to complete the project.
Learned Counsel submitted that directions, which have been given by the State Commission, as regards execution of conveyance deed in favour of the Respondent Society - the Complainant, have achieved finality, and therefore, those directions cannot be modified by the District Forum in a proceeding under Section-27 of the Consumer Protection Act, 1986. Duty of the District Forum is to execute the order, which have achieved finality under Section-24 of the Consumer Protection Act, 1986; and if, those directions are not obeyed, summary procedure as provided under Section-27(3) of the Consumer Protection Act, 1986; has to be followed, resulting into conviction or acquittal or discharge of the accused. Any modification in the order under execution is not permissible to the District Forum. According to the Learned Counsel for the Revision Petitioners, proceeding under Section-27 of the Consumer Protection Act, 1986; is a criminal proceeding and it should proceed in that manner only. It cannot be converted into a civil proceeding and even if, that aspect is to be considered, appropriate examination can be carried out and after that such issue can be dealt with. In absence of such material to that effect such direction cannot be considered. Any modification in the order under execution by the District Forum and/or the Forum executing the order will be in violation of judicial discipline.
According to him, it is well settled principle that executing court cannot go beyond & behind the order.
[11] Mr. Hoskeri - Learned Counsel, who appeared on behalf of the Respondent Society - the Complainant, has no dispute over this proposition that executing court cannot go beyond & behind the basic order. However, he submitted that the impugned order is not a final order affecting the rights of the parties and it is an interlocutory order, and therefore, present revision petition is not maintainable. He further submitted that the District Forum has given an opportunity to the Revision Petitioners. In support of his contentions, he relied upon the order dtd.18/02/2011, passed by the State Commission in Revision Petition No.123/2010 (In the matters of M/s. Chemisol Adhesive Pvt. Ltd. & Anr. Vs. Shri Balu Tukaram Koyande & Anr.) [12] In the facts & circumstances referred to above, we have gone through the proceeding. The order, which has achieved finality as against the Revision Petitioners, states that the Revision Petitioners shall execute the conveyance in respect of the property, which has been purchased by the members of the Respondent Society. The Respondent Society has purchased two wings, namely - 'E' & 'I', which are a part of the common cluster project developed by the Revision Petitioners, containing 11 buildings and common facilities to all the buildings together and accordingly, 'I.O.D' has been granted in favour of the Revision Petitioners. The scheme has been carried out under the Maharashtra Ownership Flats Act, 1963; and the agreements are executed on the basis of said 'I.O.D.'.
Therefore, rights of the members of the Respondent Society are crystallized by 'I.O.D.', on the basis of which agreements were executed in favour of each member of the Respondent Society, and therefore the Respondent Society will get conveyance in accordance with the said 'I.O.D.', meaning thereby if the common areas and common facilities in the said project are meant for all the members of the 11 buildings and 07 societies, then, in that circumstance, any specific portion of the common open area cannot be transferred or conveyed in favour of any one of specific society. Therefore, the District Forum has to see as to whether the conveyance is being executed in favour of the Respondent Society - Complainant; in consonance with the 'I.O.D.', on the basis of which, total project has been developed by the Revision Petitioners.
[13] The District Forum cannot give any other direction. What are the consequences of the directions given by the District Forum to keep the open spaces under the Town Planning Act cannot be understood because in a common cluster development, there would not be any open space left out for any specific society. In this case, the Revision Petitioners herein have formulated 07 societies. However, it would have been equally possible to form one society thereby total amenities could have been transferred in favour of one society also.
Since 07 societies have been formulated in view of the demand made by the flat-purchasers, the original 'I.O.D.' cannot be modified to allot a specific land and/or specific portion of the garden or common facilities in favour of any specific society because open spaces etc., have been maintained taking into consideration total area of the plot and F.S.I. has been calculated on that basis. When it is a common cluster project, subsequent division of the project cannot be carried out. Therefore, such type of direction, which contemplate a specific open space, adjoining to a specific society or buildings, to be left out for that particular society amounts to modification of 'I.O.D.' and also amounts to modification of the orders, which are under execution.
Such modification cannot be carried out in an execution proceeding under Section-27 of the Consumer Protection Act, 1986. In an execution application under Section-27 of the Consumer Protection Act, 1986; if the orders are not obeyed, the District Forum has to only follow procedure as laid down under Chapters XXI & XXII of the Code of Criminal Procedure and pass an appropriate order. However, the District Forum has ignored the administrative directions given by this State Commission. District Forum has equally ignored the orders circulated by the State Commission, as also, ignored the reported judgment of the State Commission in First Appeal No.1190/2009 (In the matters of Amir Ali Tharani Vs. Rajesh Sukhtankar) decided on 27/09/2010 and Suo Moto Revision Petition No.35/2010 (In the matters of Maharashtra State Consumer Disputes Redressal Commission, Mumbai Vs. Mr. Rajesh Sukhtankar), decided on 27/09/2010. We have noticed that Thane District Consumer Disputes Redressal Forum is following its own procedure, ignoring the directions issued by the State Commission. In fact, we have taken a serious view of the matter.
[14] So far as ground raised by the Learned Counsel for the Respondent Society that this order is an interlocutory order, is not sustainable in law. On the contrary, we have observed that impugned order has resulted into modification of order under execution and thereby substantial rights of the parties are affected. Rights, which are accrued to the Revision Petitioners to develop the property as per original 'I.O.D.', are affected by this view of the District Forum. Thus, the District Forum has violated the principle that the executing court cannot go beyond the basic order under execution. Impugned order is not an interlocutory order. Reliance placed by the Learned Counsel for the Respondent Society upon the order dtd.18/02/2011, passed by the State Commission in Revision Petition No.123/2010 (In the matters of M/s. Chemisol Adhesive Pvt. Ltd. & Anr. Vs. Shri Balu Tukaram Koyande & Anr.), is a misplaced reliance and we reject the same.
[15] We find the Revision Petitioners have rightly challenged the impugned order, which is not sustainable in law, and therefore, we allow the present revision petition and quash & set aside order dtd.29/11/2010, passed by the Thane District Consumer Disputes Redressal Forum in Execution Application No.102/2007.
We direct the Thane District Forum that henceforth it shall follow the ratio and procedure as laid down by the State Commission in First Appeal No.1190/2009 (In the matters of Amir Ali Tharani Vs. Rajesh Sukhtankar) decided on 27/09/2010 and Suo Moto Revision Petition No.35/2010 (In the matters of Maharashtra State Consumer Disputes Redressal Commission, Mumbai Vs. Mr. Rajesh Sukhtankar), decided on 27/09/2010 and if, it is noticed henceforth that such procedure is not followed, appropriate action will have to be initiated as against the President & the Members of Thane District Forum.
[16] We are told that all but one Revision Petitioners have submitted bail-bonds. Mr. Patwardhan
- Learned Counsel for the Revision Petitioners; submits that bail-bond in respect of that Revision Petitioner, who has not submitted the same shall be submitted before the District Forum.
[17] District Forum is further directed to dispose of the execution proceeding as per procedure within a period of two months from the date of this order.
Revision Petition stands disposed of accordingly.
Pronounced & dictated on 29/April/2011.
[Hon'ble Mr.Justice S.B.Mhase] PRESIDENT [Hon'ble Mr. Dhanraj Khamatkar] Member kvs