DEEPALI DIGAMBER PARSEKER vs SHREENATH BUILDERS

BOTH these appeals are being disposed off through a common order since the nature of relief claimed by the appellants are similar in nature against typical orders of the District Forum, North Goa and the same respondent.

THESE appeals are directed against the order dated 4.5.2000 passed by the District Forum, North Goa. Briefly, the facts are that the appellant had filed a complaint before the District Forum for possession of the flat booked by him in the project known as "Shreeji Darshan" at Curti, Ponda and for damages for delay in handing over possession. The case was fixed on 13.3.2000 for filing of affidavit-in-evidence of the complainant. The matter was not taken up on 13.3.2000 on account of renovation of the Court premises and was adjourned to 4.5.2000. On 4.5.2000, both the complainant and opposite party remained absent and the complaint was dismissed for default. Thereafter, the complainants filed an appeal before this Commission seeking restoration of the complaint. Heard arguments. Counsel for the appellants submitted that he faced some genuine difficulties on 4.5.2000 and reached the District Forum after the Board had collapsed and that, in the meantime, the complaints had been dismissed for default. He further submitted that he has filed an affidavit giving reasons for his delay, and that grave injustice and prejudice will be caused to the appellants if their complaints are not restored more particularly because they had paid a large sum of money and were yet to receive possession of the flats. Counsel for the respondent raised preliminary objection regarding the competence of the Members of this Commission to decide matters during the vacancy in the office of the President. He further contended that the respondent be also given fresh opportunity to file his reply in view of the District Forums denial since it was not filed within the stipulated time.

Before we deal with the rival contentions raised, we shall first address the point of competence of the Members of the Commission to pass orders during the vacancy in the office of the President. The Supreme Court of India in Gulzari Lal Aggarwal v. The Accounts Officer, III (1996) CPJ 12 (SC)=(1996) 4 CTJ 851 (Supreme Court) (CP), has dealt with this issue in an appeal from an order of the National Commission. The Apex Court ruled that the provisions of the Consumer Protection Act will have to be construed harmoniously to promote the cause of the consumers under the Act and that it could never be the intention of the Legislature to stall or render the State Commission non-functional in the absence of the President either having not been appointed in time or due to some valid reason or if the President is on leave due to certain reasons beyond his control. The Court also considered the West Bengal Consumer Protection Rules, 1987 and found that the object of Sub-rules (9) and (10) of Rule 6 appear to keep the State Commission functional in the absence of the President. We may clarify here that the provisions of Sub-rules (9) and (10) of Rule 6 of the West Bengal C.P. Rules are "pari materia" with the provisions of the Goa Consumer Protection Rules. The Apex Court was of the opinion that the National Commission committed an error in holding that the order passed by the two Members of the State Commission without the junction of the President is "illegal and void", and set aside the order.

COMING to the merits of this appeal, the appellants'' Advocate has shown sufficient cause for not attending the hearing before the District Forum on time. A detailed affidavit has been filed giving sequence of events and circumstances leading to his reaching late. There is no reason for us to disbelieve the contents thereof. The District Forum should have given final opportunity to the complainants to file their affidavit-in-evidence and should not have dismissed the complaints for default at the very first instance, more so in the context of a beneficient legislation like the Consumer Protection Act, where technicalities are to be eschewed and the grievances of the consumers on substance and merits are to be relieved. In the result, the orders of the District Forum dated 4.5.2000 are set aside and the matters are remanded back to their files to dispose of according to law. The appeals are allowed. Appeals allowed.