State Consumer Disputes Redressal Commission
P.S. Sawhney vs Chief Executive Officer Cum Secretary, ... on 14 November, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- FIRST APPEAL NO.486/2009. ORDERS RESERVED ON 15.10.2011. DATE OF DECISION: 14.11.2011 . In the matter of: P.S. Sawhney, 13, Sector 45-A, Chandigarh 160 047. Appellant/Decree Holder. Versus Chief Executive Officer cum Secretary, Himachal Pradesh Urban Development Authority, Nigam Vihar, Shimla-171 002. Respondent/Judgment Debtor. ---------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Presiding Member.
Honble Mrs. Prem Chauhan, Member.
For the Appellant: Mr. P.S. Sawhney, appellant in person.
For the respondent: Mr. Pawan Kaprate, Advocate.
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O R D E R:
Chander Shekhar Sharma, Presiding Member.
1.
This appeal is directed against the order passed by District Forum, Shimla , in execution petition No.33/2006, dated 25.11.2009, whereby the Forum below had disposed of the execution petition and the relevant portion of the conclusions arrived at by the Forum below in para No.6 of the order is extracted hereinbelow:-
the JD shall obviously not give a go bye to the fact of the category of plot applied for by the DH, and, that category comprising a minimum area while offering it for allotment in favour of the DH. Since, during the pendency of the execution petition, the JD has filed an affidavit revealing that HIG Plot No.16B was allotted in favour of the DH, yet, for the reasons spelt out in it, the, allotment stands cancelled. Yet, in case, the aforesaid plot as was offered for allotment, remains un-allotted, the JD who are obliged to comply with the order under execution, shall de hors the afore referred discussion, offer it, to the DH, at, the prevalent market value, to be determined in the matter aforesaid. Of course, in case, it, is not available for allotment, then, to, beget compliance with the order under execution , the Ops, shall, offer the next available plot in the category applied for allotment, in, favour of the DH within 3 weeks, who, may, fulfill, all, the codal formalities for the finalization of the allotment of the plot so offered. In the light of the above terms, the execution petition stands finally disposed of. It be tagged with the main file.
2.
Brief background giving rise in the filing of the present execution petition in nutshell is to the effect that District Forum, Shimla, Camp at Solan vide order dated 30.5.2003 in Consumer Complaint No.8/1999 had observed in concluding para to the following effect:-
we are of the opinion that equity demand that the next plot available with the O.P. Housing Board should be offered to the complainant on the payment of the market value and the complainant is at liberty to accept the offer of the OP-Board for next plot available in the area, for which he applied for the plot, on payment of the market value.
Accordingly, we order that the next plot available with the OP-Board should be offered to the complainant.
3.
This order was also challenged before this Commission by the Himachal Pradesh Housing Board and this Commission vide order dated 18.12.2003 in Appeal No.203 of 2008 had confirmed the order of the Forum below and only litigation cost had been reduced from Rs.2,000/- to Rs.1,000/- and thereafter this order was challenged before the Honble National Commission, New Delhi in Revision Petition No.1134 of 2004 by the petitioner Mr. P.S.Sawhney and the Honble National Commission vide order, dated 23.3.2006 dismissed the Revision petition being mis-conceived.
4. We have heard Mr. P.S.Sawhney, Advocate, who had appeared in person and also Mr. Pawan Kaprate, learned Counsel for the respondent at length and have gone through the record of the case minutely. Mr. Sawhney argued that the order of the Forum below is not legally sustainable since as per him, the executing Court cannot go behind the decree.
As per him, the main order, dated 30.5.2003 which was passed by the District Forum, Shimla, Camp at Solan in Complaint No.8/1999, which was confirmed in appeal also, had attained finality.
In this order, the Forum below had given direction to the OP-Housing Board that the next plot available with the OP-Housing Board should be offered to the complainant on payment of market value, whereas the Forum below in its order dated 25.11.2009 had gon even beyond the main order passed by the Forum below by ordering that the J.D. will offer to the D.H. the plot at the prevalent market value, whereas in the main order direction was only relating to offering of plot to the complainant on payment of market value and not prevalent market value. Other grievances raised in the appeal by the appellant were to the effect that the D.H. had never appeared before the District Forum on 25.11.2002 and order was passed in his absence and even he had submitted written arguments in the case and it was also alleged in the grounds of appeal that this execution petition remained pending with the Forum below for more than 3 years and the Forum below had taken more than 3 years for getting its own order executed and even no notice of the written arguments submitted by him was taken by the Forum below.
5. He had also placed reliance upon the judgment of the Honble Supreme Court given in the case of V. Ramaswami Ayyangar and others Versus T.N.V. Kailasa Thevar, 1951 AIR 189 D 1969 SC 69 (6), wherein it was held that the executing Court is to interpret the decree as it is but under the guise of interpretation they could not make a new decree for the parties.
6. Mr. Pawan Kaprate, learned Counsel for the respondent in the present case argued that the present appeal is not legally maintainable since the appeal against the order of the executing Court under Section 27A will lie only if the penalty is imposed under Section 27 of the Consumer Protection Act, 1986 by the Forum below when the trader or a person against whom the complaint is made fails or omits to comply with any order made by the District Forum, State Commission or the National Commission, then he shall be punishable with imprisonment for a term which shall not be less than one month and which extend to 3 years and this is not a case where any punishment had been awarded by the Forum below and only in that eventuality the appeal will lie against the order of the District Forum to the State Commission under Section 27A of the Consumer Protection Act, 1986 and as per him, the present appeal is not legally maintainable and deserves to be dismissed. However, Mr. Sawhney who is an Advocate and had personally argued his case, argued that if the arguments made by the learned Counsel for the respondent are to be taken into consideration, in that eventuality, in case where the executing Court pass some wrong orders, then the aggrieved person cannot get any relief, but legally appeal can be treated as a revision and this Commission under Section 17 of the Consumer Protection Act, 1986 is having ample powers to call for the records and pass appropriate orders in consumer disputes which has been decided by the District Forum where it appears that the Forum below has exercised jurisdiction not vested in law and has failed to exercise jurisdiction so vested or acted with material irregularity in the case.
7. In the present case, after hearing the learned Counsel for the parties and going through the record of the case, we are of the considered view that the order of the Forum below is not legally sustainable since in the present case it appears from the record that the petitioner Shri P.S. Sawhney has submitted written arguments in the case which are at page 167 of the file of the Forum below and it had been duly received by the District Forum, Shimla since there is a note to this effect placed on file and it also appears from the order of the Forum below that the Forum below had not made even a passing reference relating to the arguments advanced by the D.H. and the J.D. in this order which should have been discussed in the order and even the detailed written arguments which were submitted by Mr. Sawhney in the case should have also been discussed in the case and order should have been passed after taking into consideration the points raised in the written arguments. Even to us it appears that executing Court i.e. the Forum below had gone behind the decree as the executing Court is to only execute the order which is passed by the Forum below and had attained finality as there was direction in the main order passed in Complaint No.8/1999, dated 30.5.2003 passed by the District Forum, Shimla that next available plot with the OP-Housing Board should be offered to the complainant on payment of market value, whereas while disposing of the execution petition No.33/2006, it is clearly evident from the concluding para of the order that the Forum below had gone even beyond the main direction given in the order by ordering that the J.D. is to offer the plot toe the D.H. at the present market value and the reliance was also placed by the appellant Mr. Sawhney on the judgment of the Honble Supreme Court given in the case of V.Ramaswami Ayyangar and others Versus T.N.V. Kailasa Thevar, (supra), wherein in para, the Honble Supreme Court had observed as under:-
9.
The learned Judges appear to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.
There appears to be some force in the contention of Mr. Sawhney that in case the appeal in this case is not maintainable but this Commission under Section 17B of the Consumer Protection Act, 1986 can see the legality and propriety of the order where some material irregularity had been committed by the Forum below and the Forum below has exercised jurisdiction not vested in it by law. As such, this can be legally treated as a revision and revisional power can be exercised by this Commission under Section 17 of the Consumer Protection Act, 1986 and as such the order of the Forum below is not legally sustainable in view of the detailed discussion made hereinabove.
5. No other point was urged.
In view of the aforesaid discussion and facts and circumstances of the case, we set aside the order of the District Forum, Shimla, passed in Execution Petition No.33/2008, dated 25.11.2009 and remand this case to the Forum below with the direction to re-hear the parties after taking into consideration the judgment of the Honble Supreme Court given in the case of V. Ramaswami Ayyangar and others Versus T.N.V. Kailasa Thevar, (supra) and hearing the parties afresh and also take into consideration the written arguments submitted by Mr. Sawhney before the Forum below which are at page 167 of the file of the Forum below as it appears that these arguments have not at all been discussed in the order by the Forum below and thereafter pass order without being influenced by the findings given in its earlier order dated 25.11.2009 passed in execution petition No.33/2006 and also the observations made by this Commission in this order. Parties to appeal before For a below on 5-12-2011 Notice be also issued to the complainant by the Fora below of the date of hearing.
We are also constrained to point out that in this case from the perusal of the zimni orders it is evident that this case is being adjourned for arguments on one pretext or the other and number of adjournments were given from 3.12.2007 to 26.10.2009 and ultimately final order was passed by the Forum below on 25.11.2009 and as such the District Forums are directed to dispose of the execution petitions expeditiously because in case the cases are adjourned for arguments continuously for a period of more than 2 years as in the present case, then very purpose of speedy justice enshrined in the Consumer Protection Act, 1986 will be defeated. Copy of this order be sent to all the District Forums below for information and strict compliance in such matters.
Copy of this order be sent to the parties free of cost as per rules.
Shimla, Announced on November 14,2011.
( Chander Shekhar Sharma ) Presiding Member ( Prem Chauhan ) Member