State Consumer Disputes Redressal Commission
M/S. Southern Constructions vs A.S. Jahangir on 4 September, 2008
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice N. KANNADASAN, PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I A.P.NO.146/2003 (Against order in O.P.No.516/2001 on the file of the DCDRF, Chennai (South) DATED THIS THE 4th DAY OF SEPTEMBER 2008 M/s. Southern Constructions Rep. by its Proprietor Ramadoss Engineer and Builder, 1st Floor No.12, 2nd Main Road M/s. V. Subbarayan East C.I.T Nagar, Nandanam Counsel for Chennai 600 035 Appellant / Opposite party Vs. A.S. Jahangir S/o. Abdul Sadiq Flat No.A Ground Floor No.12, 2nd Main Road M/s. V. Chandrakanthan East CIT Nagar, Nandanam Counsel for Chennai 600 035 Respondent / Opposite party ORDER
N. KANNADASAN J. ( Open Court)
1. The appellant is the opposite party and the respondent is the complainant before the District Forum.
2. The above appeal is filed as against the order passed in OP.No.516/2001 dt.19.11.2002 of the District Forum, wherein a direction is given, which is as follows:
In the result, the opposite party is directed to provide proportionate undivided share of land to the complainant, after demolishing the 4th floor which was constructed illegally, with compensation of Rs.1,00,000/- and cost of Rs.1000/-. Time for compliance one month, failing which the complainant is at liberty to take proceedings for arrest of the opposite party under Sec.27 of CP Act.
3. The main grievances of the appellant is to the effect that when the complaint was pending before the District Forum, the complainant has approached the Honble High Court and there are several other subsequent developments including an order of Regularisation passed by the CMDA, and as such the District Forum ought not to have rendered any finding without looking in the subsequent events. In this connection, the learned senior counsel has pointed out that a petition in CMP No.322/2002 was filed to reopen the Original Petition, wherein a plea is raised to the effect that during the pendency of the complaint, the CMDA has passed an order on Regularisation of the alleged construction of 4th floor. According to the learned senior counsel, the petition was dismissed on 12.11.2002, by holding that the order was reserved in the main petition long back.
Subsequently, according to the learned counsel, the District Forum has later on passed order in the main OP on 19.11.02, without rendering any finding on the averments raised in CMP.322/2002, more particularly the order passed by the CMDA, regularising the 4th floor by proceedings dt.5.6.2002. The learned counsel has also pointed out that on every occasion, subsequent orders were passed by the High Court, only at the instance of the complainant.
4. In the light of the above subsequent developments, the learned senior counsel for the appellant / opposite party submitted that the finding rendered by the District Forum is liable to be set aside and prayed for appropriate orders.
5. Per contract, the learned counsel appearing for the respondent / complainant submitted that the complainant is entitled to maintain the complaint, in view of the fact that relief claimed before the District Forum as against the opposite parties is with regard to the deficiency in service. That apart, it is further contended that the stand taken by the appellant / opposite party to the effect that the construction was completed already, should not be accepted in the light of a communication dt.31.1.2002 addressed by the opposite parties to the CMDA. Under the said circumstances, the learned counsel for the respondent / complainant submitted that the order of the District Forum should not be interfered with, wherein all the facts and other details have been gone into.
7. We have considered the rival submissions of the learned counsel for either sides and perused the relevant records. It is seen from the records that when the complaint is pending on the file of the District Forum, during November 2001, the complainant has filed a Writ Petition seeking a Mandamus directing the CMDA to demolish unauthorized and unapproved construction of 4th floor. The High Court by order dt.28.11.01 gave a direction in the said Writ Petition to the effect that the CMDA has to pass final orders with regard to the issues involved therein. Subsequently, the complainant has filed an another Writ petition No.13833/2002, wherein an interim order is prayed for with regard to the construction of the 4th floor. The High Court by order dt.24.4.02, has rejected the prayer of the respondent / complainant, against which a further appeal was filed by the complainant in WA No.2083/2002. The Division Bench of the High Court by order dt.6.8.2002 has dismissed the said appeal by recording the statement made by the opposite party to the effect that the opposite party has obtained order on regularization with regard to the construction of the 4th floor. As requested by the complainant, the Division Bench of the High Court gave a direction to furnish the copy of the said Regularisation order to the learned counsel for the complainant. Thereafter, the complainant and others have once again approached the Division Bench of the High Court by filing a third Writ Petition No.36086/2002. The said petition came to be disposed off in the light of the decision rendered by the Division Bench in batch of cases, in Consumer Action Group Vs. State of Tamil Nadu, reported in 2006 (4) CTC 481. The concluding portion of the judgement in above WP is extracted hereunder.
In the light of the assertion of the learned senior counsel appearing for the second respondent, we are of the view that it is for the Monitoring Committee to consider the allegations made by the petitioners. On this ground, without going into the merits of the case, direction is issued to the CMDA to refer the dispute to the Monitoring Committee, after intimation to the parties. The Monitoring Committee is directed to consider and dispose of the same, after affording opportunity to both parties.
8. A perusal of the above finding of the Division Bench, discloses that the Monitoring Committee, which is constituted consequent to the direction of the Division Bench of the High Court, has not rendered decision with regard to the illegality in the construction of the 4th floor. It is pertinent to point out that the constitution of the Monitoring Committee in pursuance of the order by the Division Bench, in the connected cases referred supra, has become final by the orders of the Apex Court. Since the Honble Supreme Court has also upheld the order of the D ivision Bench of the High Court, wherein an elaborate directions were given with regard to the unauthorized construction in the city of Chennai, which was relied upon by the Division Bench in Writ Petition filed by the complainant in WP No.36086/2002, dt.28.11.2006, we do not propose to give any direction with regard to the claims and rival claims of the respective parties in the appeal herein. However, in the interest of justice, we propose to pass following order:
1. The order of the District Forum is set aside in the light of the finding rendered by the High Court, at the instance of the complainant, by order dt.28.11.2006 in WP No.36086/2002
2. Liberty is given to parties to approach the District Forum to reopen the matter and hear the case on merits, as an when any finding is rendered by the Monitoring Committee, and it can be dealt with in accordance with law.
3. The fact that we have set aside the order of the District Forum, cannot be construed either way as to the claims of the respective parties.
4.
It is open to the complainant as well as the opposite party to raise such other pleas as available in law.
5. The amount of deposit made by the appellant viz. a sum of Rs.1 lakh, which is lying in the credit of the District Forum shall be discharged to the appellant on filing necessary application in this regard and without notice to the complainant.
6. The appeal is allowed in the above terms.
PON GUNASEKARAN N. KANNADASAN MEMBER-I PRESIDENT INDEX : YES / NO Rsh/d/nkj/Construction