State Consumer Disputes Redressal Commission
M/S Sai Nayan Land Developers vs M/S Sai Anusaya Co-Op Hsg Society Ltd on 27 July, 2011
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Revision
Petition No. RP/11/64
(Arisen out
of Order Dated 10/06/2011 in Case No. EA/09/140 of District Thane)
1. M/S SAI NAYAN LAND DEVELOPERS
SHOP NO 2 MEGHA COMPLEX A BLDG NEAR HOLY CROSS HIGH SCHOOL
KHARIGAON BHAYANDER EAST
THANE
MAHARASHTRA
2. MR ASHOK S DAREKAR
VENKATESH NAGAR BLDG NO A SHOP NO 17 CABIN ROAD
BHAYANDER EAST
THANE
MAHARASHTRA
...........Appellant(s)
Versus
1. M/S SAI ANUSAYA CO-OP HSG SOCIETY LTD
BEHIND SATYANARAYAN MANDIR KHARIGAON BHYANDER EAST
THANE
MAHARASHTRA
2. MR SANDIP KENI
702 TIRUPATI PLAZA BLDG A 7 TH FLOOR BHAYANDER EAST
THANE
MAHARASHTRA
...........Respondent(s)
BEFORE:
Hon'ble Mr.Justice S.B.Mhase PRESIDENT
Hon'ble Mr. S.M.Shembole MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
S S KONDHALKAR ,
Advocate for the Petitioner
ORDER
Per Mr.Justice S.B.Mhase, Honble President Heard Mr.S.S.Kondhalkar-Advocate for the petitioner.
This is a revision petition challenging order dated 10/06/2011 on an order sheet in Execution Application no.140/2009.
Initially, respondent/org. complainant had filed consumer complaint no.358/2006 before the District Consumer Disputes Redressal Forum, Thane, which was decided on 28/01/2007.
This order was not challenged by the opponent by filing any appeal and, therefore, this order attained finality u/sec.24 of the Consumer Protection Act, 1986. Therefore revision petitioner is under obligation to obey the said order. Said order was not obeyed and, therefore, Execution Application no.140/2009 u/sec.27 of the Consumer Protection Act, 1986 has been filed and is pending before the District Consumer Disputes Redressal Forum, Thane. The question is about issuance of Occupation Certificate. Therefore, in the said execution application, original opponent/revision petitioner has filed an application on 18/04/2011 making prayer that the Mira-Bhayander Municipal Corporation be added as party and so also the Landlord Mrs.Kalpana Parab be added as party. Said application has been made because in the original complaint, Municipal Corporation and the Landlord were not parties and it is the grievance of the revision petitioner that because of the non co-operation and/or inaction on the part of these persons, the Occupation Certificate cannot be obtained. Let the fact as it is. It is an admitted position that the Municipal Corporation and the original owner were not parties to the proceeding. However, they cannot be added as party in the execution petition.
In execution petition the main question which the executing forum has to consider is as to whether orders passed by the Consumer Fora are being implemented, executed by the opponent or not. Section 27 is a criminal remedy available to the complainant and the said proceeding is a criminal proceeding. Under said section Consumer Fora has a power to punish the person who is under obligation to obey the order of the Consumer Fora. Punishment and penalty as stated in sub section (i) of section 27 can be imposed. However, since it is a criminal proceeding, the procedure as stated in sub section (3) of section 27 is required to be followed.
In such proceeding the original opponents are the accused persons and either they have to obey the directions given and/or they have to develop their defence in criminal trial.
Therefore, question of addition of parties is not open in criminal trial. Original complainant gets status of the complainant in criminal case and the original opponent who is under obligation to obey the order gets status of an accused and the procedure as we have laid down in A/09/1190 and Suo Motu Revision Petition no.10/35 Mr.Amir Ali Tharani v/s. Mr.Rajesh Sukhtankar decided on 27th September 2010 as contemplated in Chapter 20 & 21 of the Criminal Procedure Code read with so many other provisions of Cr.P.C. are explained in the said reported judgement, is to be followed.
Therefore, in criminal proceeding addition of parties is unknown thing and, therefore, application made by the original opponent/accused was not tenable under the provisions of section 27 and/or any provisions of law. Issue as to whether third party can be added and/or whether third party can intervene in execution proceeding under section 25 and 27 has been dealt with by this Commission in Tharanis case referred to Supra and it has been answered in the negative. Therefore, all the attempts which are being made by the Revision petitioner to convert criminal proceeding into civil proceeding are unwarranted and unknown to the Consumer Protection Act, 1986, especially under section 27.
Therefore, said application was not tenable. Difficulties in obeying the orders can be brought on record by way of defence but that can be done by following the weapon of cross examination when the complainant is put into box to prove the offence. Therefore, application itself was not tenable. Order passed by the District Consumer Disputes Redressal Forum is just and no interference is called for. Revision petition is hereby rejected.
Copies of the order be furnished to the parties.
Pronounced on 27th July, 2011.
[Hon'ble Mr.Justice S.B.Mhase] PRESIDENT [Hon'ble Mr. S.M.Shembole] MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER Ms.