State Consumer Disputes Redressal Commission
The Executive Engineer & A.D.O,Tamil ... vs Mohammed Sathakathullah,Maraimalai ... on 24 June, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II R.P.NO.2/2010 (Against order in EP.NO.17/2008 IN CC.No.44/2001 on the file of the DCDRF, Nagapattinak) DATED THIS THE 24th DAY OF JUNE 2010 1.
The Executive Engineer & A.D.O Tamil Nadu Housing Board Tanjore Housing Unit New Housing Unit, Tanjore
2. The Managing Director Tamil Nadu Housing Board Chennai
- 35 Petitioner /JD/ Opposite parties Vs. Mohammed Sathakathullah S/o. H. Abdul Hameed HIGII 4, 6th Street Maraimalai Nagar, Kadambadi Nagapattinam- 611 001 Respondent/ DH/ Complainant This petition is filed to set aside the order in EP.No.17/2008 in COP No.4/2001 dt.18.12.2009.
This petition coming on before us for hearing finally on 11.6.2010. Upon hearing the arguments of the counsel on either side, this commission made the following order:
Counsel for Petitioner: Mr. S. Rajakumar, Advocate Counsel for Respondent :
Mr. S. Natarajan, Advocate M. THANIKACHALAM J, PRESIDENT
1. The order under challenge is dt.18.12.2009, wherein an arrest warrant was ordered to be issued to the petitioner/ opposite parties, by the District Forum, in E.P.No.17/2008 in COP No.4/2001.
2. Heard the learned counsel on either side, perused the records, and the order of the District Forum.
3. The learned counsel for the Revision Petitioner, would contend that the District Forum had not considered the objections raised by the Judgement Debtor, which were based upon the orders passed by the State Commission, as well as the National Commission, whereas it committed an error, as if there is no valid objection by respondent, which requires to be set aside, opposed by the otherside.
4. In order to appreciate the arrest warrant issued, and to sustain or not to sustain the said order, it is incumbent on our part to see back, what had happened, in the main complaint, and in the subsequent proceedings by way of appeal etc.
5. The complainant, who has filed the Execution petition, approached the District Forum, Nagapattinam, in COP.No.4/2001, for certain relief, which was granted, as per the order dt.30.6.2003, which was challenged before this Commission in F.A.No.122/2004.
This commission, following the previous decision, disposed the appeal, observing that the Housing Board shall not be entitled to call upon the complainant to pay the development charges, cost of amenities, and cost of buildings as they had already been worked out on the date of allotment and there cannot be any enhancement of that component beyond the period of three years from the date of allotment. Further observing, So far as the land cost is concerned, the Housing Board shall serve a demand in writing on the complainant, indicating the difference between the original cost of land and the enhanced cost of land asking him to pay the said amount within a time as may be fixed by them and depending upon the outcome, it is open to the Housing Board to take any appropriate action that may be available to them. On payment by the complainant of the difference in the cost as set out above, the Housing Board shall execute the sale deed in favour of the complainant without demur.
6. Aggrieved by the said order, the complainant approached the National Commission, and the National Commission, while dismissing the revision, has observed, if notice was not issued as per the order of the State Commission remedy available to the petitioners is to move the executing court instead of filing revision petition against the order of the State Commission. With the said observation, the Revision Petition was disposed of.
7. After the disposal of the Revision Petition No.313/2007, the complainant filed Execution Petition before the District Forum in EP No.15/2007 in COP No.4/2001, wherein he has admitted that the 1st respondent viz. the Housing Board has issued notice, demanding certain amount. The executing court, instead of enforcing the order of this Commission, directed the opposite parties 1 and 2, to execute the sale deed, instead of directing to pay compensation, as per order dt.30.1.2008, which was challenged by the Tamil Nadu Housing Board, before this Commission in RP.No.41/2008.
8. This commission, setting aside the order of the executing court in E.P.No.15/2007, allowed the revision, with the following observation:
Accordingly while allowing the Revision Petition by setting aside the order of the District Forum, we are granting an opportunity to the Respondent/ Complainant to agitate in accordance with law as against the order passed by the Housing Board while issuing the demand notice. It is needless to state that time taken in pursuing the present legal proceedings will not stand in the way while challenging the demand notice.
From the above order, it appears an opportunity was given to the complainant to question the demand notice, even granting exclusion of limitation period. But the complainant, once again filed E.P.17/2008, and the prayer is The respondents one and two failed to execute the sale deed as well as release deed as per orders of the forum dt.30.6.2003, and the order of the District Forum. And the order of the State Commission dt.29.9.2006 and fail to pay the damages of Rs.10000/- and cost Rs.5000/- and so notices to be issued to the respondents to execute the sale deed in respect of the house premises in MIG II 4, 6th Maraimalai Nagar, Kadambady Nagapattinam and also pay the amount awarded and in order of the respondents, and detained them in the civil prison till such the completed its all prayed are granting such other further relief as it deem, fit and to award the cost of the application to the petitioner.
9. From the above prayer, it is seen an attempt is made by the respondent / complainant to execute the order of the District Forum, dt.30.6.2003, which was set aside and modified, confirmed by the National Commission, as indicated above. Therefore, the Execution petition filed to enforce the order, which was set aside, modified, cannot be maintained, but unfortunately the District Forum, issued warrant, as if there is no valid objection, without applying its mind, and perusing the records, which deserves to be erased.
10. By filing this Execution Petition, the complainant wants to execute the order of the District Forum dt.30.6.2003, though it is also stated that the order of the State Commission dt.29.9.2006, was not complied with. The order of this Commission dt.29.9.2006, has not fixed any compensation, or has not directed the Housing Board to execute the sale deed, unconditionally, whereas it is said, on demand by the complainant about the difference in the cost, as set out in the previous paragraph alone, the board is bound to execute the sale deed. In the Execution Petition, it is not the case of the complainant/ Decree Holder, that they have paid the cost demanded, as per the notice, whether it is correct or not. If the Decree Holder felt, that the cost demanded under the notice, was incorrect or against the order of this commission, as observed by this Commission in RP.No.41/2008, he ought to have worked out his remedy in accordance with law, which he has not done. Therefore as such, we are of the considered opinion that the prayer in the Execution Petition, based upon the order of the District Forum dt.30.6.2003, as well as the order of this Commission dt.29.9.2006, which are not in accordance with the orders, are not liable to be enforced, which should follow the warrant issued wrongly, should be recalled. For these reasons, the revision is meritorious and liable to be accepted.
11. In the result, the Revision Petition is allowed, setting aside the order of the District Forum in E.P.No.17/2008, dt.18.12.2009. The District Forum is directed to dismiss the Execution petition recalling the warrant unexecuted.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX :
YES / NO Rsh/d/mtj-FB/RP orders