State Consumer Disputes Redressal Commission
Sh. Bhavesh Chaturvedi vs Shri Bhag Chand Sharma & Anr. on 1 October, 2010
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Appeal No. 167/2010. Date of Decision 1.10.2010. In the matter of: Sh. Bhavesh Chaturvedi, S/o Sh. Yogesh Chander, R/o VO Arki, Tehsil Arki, Distt. Solan, HP. Appellant. Versus 1. Sh. Bhag Chand Sharma, S/o Sh. Ladhi Ram Sharma, R/o Narain Bhawan, Kanlog, Tehsil & Distt Shimla, HP; 2. Municipal Corporation Shimla, The Mall, Shimla through its Commissioner; 3. Sh. N.S. Guleria, Junior Engineer, A.P. Branch, Municipal Corporation Shimla, The Mall Shimla. Respondents Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mrs. Saroj Sharma, Member. Honble Chander Shekher Sharma. Whether approved for reporting? Yes. For the Appellant: Mr. Peeyush Verma, Advocate. For the Respondent No.1. Mr. Sanjeev Sharma, Advocate For the Respondent No.2 & 3. Mr. H.S. Upadhyay, Advocate. O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
MA No. 293/2010.
This application is rejected, because on the basis of the record of respondent No.2, there is no need to take the documents filed by the appellant.
Besides this joint stand of appellant and respondents 2 and 3 in their single reply to the complaint is another reason to reject this application.
Appeal No. 167/2010.
Appellant is only aggrieved from the action of respondent No.2, initiated after passing of the order dated 2.12.2009, in Consumer Complaint No. 347/2006.
2. Before dealing with the contentions urged on behalf of the parties, we would like to refer to few facts which in our opinion are relevant for deciding this appeal. Respondent No.1 filed Consumer Complaint No. 347/2006, wherein respondents 2 and 3, alongwith the appellant were arrayed as the OPs. Respondent No.2-Corporation defended its action as well as of appellant and respondent No.3, pleading therein, that there was no deficiency on the part of anyone of them, i.e. the appellant and respondents 2 & 3. All of them further justified their action without there being any delay on the part of any one of them. A common reply was filed by all the three OPs to the complaint. District Forum below did not agree with their stand, and allowed the complaint directing all the OPs to pay Rs. 25,000/- as compensation, besides Rs. 2500/- as cost of litigation. While deciding the complaint, an observation was made by the District Forum below to the effect:-
the lapse appears to be on the part of the concerned Junior Engineer, manning the area, during the period of its resubmission, after initial refusal, where, the building of the complainant was located.
3. After passing of the said order, Appeal No. 32/2010 was preferred by Respondent No. 2-Municipal Corporation. Respondent No.3 and present appellant, both were arrayed as appellants, challenging the impugned order. This clearly goes to show, that all the appellants including the Municipal Corporation were aggrieved from the entire impugned order in Consumer Complaint No. 347/2006.
Strangely enough Municipal Corporation after filing the appeal on 20.1.2010, issued a show cause notice upon the appellant on the basis of the above extracted observation by the District Forum below. In these circumstances appellant was constrained to file this appeal.
4. Here it may be appropriate to notice, that the appellants in Appeal No. 32/2010, has today filed MA No. 715/2010, for deleting/substituting the appellant Bhavesh Chaturvedi as a proforma respondent in the said appeal.
Said application has been allowed, and in Appeal No. 32/2010, appellant No.3 Bhavesh Chadurvedi has been ordered to be transposed as proforma respondent.
5. Appeal filed by the present appellant deserves to be allowed for the simple reason that on one hand Municipal Corporation was not only defending its own action, but also of both, i.e. the appellant, as well as of respondent No.3. We specifically called upon Mr. Upadhyay to seek instructions on the show cause issued by respondent No.2 to the appellant. He sought time so as to enable him to properly assist us. Today he submitted that matter is being examined by the Corporation. He prayed for adjournment. This was declined and we have heard this appeal as no case was made out for adjourning the case.
6. After filing of the appeal on 20.1.2010 and thereafter issue of show cause notice to the appellant, clearly shows the arbitrary manner in which respondent No.2 intends to deal with the appellant, especially when its stand in reply and in Appeal No. 32/2010 clearly suggests, that there was neither negligence nor delay on the part of all three, i.e. the appellant and respondents 2 and 3.
But by its action, respondent No.2 is trying to blow hot and cold in the same breath. This cannot be permitted in any circumstances. As such we are of the view, that no show cause notice could and in fact should have been issued by respondent No.2 to the appellant. Even otherwise on the totality of the facts and circumstances of this case and looking to the Municipal record, we are of the view that so far appellant is concerned, there was no negligence on his part, muchless remissness on his part so as to hold him liable and the above extracted observation made against him in the impugned order needs to be set aside as also the show cause notice by respondent No.2. Ordered accordingly.
Appeal is allowed to this limited extent, and subject to what has been held against the appellant in impugned order qua him. We have not touched the merits of the pleas as were urged by respondents 2 and 3, as well as by respondent No.1 so far appeals filed by them are concerned.
Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per rules.
Shimla.
October 1, 2010. ( Justice Arun Kumar Goel ) (Retd.) President.
(Saroj Sharma) Member.
(Chander Shekher Sharma) Member.
/Karan/