GHAZIABAD DEVELOPMENT AUTHORITY vs MOHINI SINGH

THIS is an appeal against the order dated 13.8.1998 passed by the District Consumer Forum, Ghaziabad in execution proceedings in Complaint Case No. 64/1996, Smt. Mohini Singh v. Ghaziabad Development Authority. Briefly stated, the facts are that Smt. Mohini Singh filed a complaint on 15.1.1996 before the District Consumer Forum, Ghaziabad stating that she booked an HIG house in Govindpuram Housing Scheme of the Authority. The Authority on 5.5.1989 issued a letter to the complainant which indicated schedule of payment and the date of delivery of possession. The likely date of deli very of the possession was 2.2.1989. The complainant deposited a sum of Rs. 1,07,500/- on 6.12.1991. The complainant was Informed by Ghaziabad Development Authority that the earlier house, i.e. I-632 allotted to her has been changed by another house I-671 which was accepted, but till the date of complaint, 15.1.1996, she has not been given possession of the house in question. Accordingly she made a complaint before District Forum and requested for delivery of possession and interest on the deposit amount of Rs. 1,07,500/-, in addition to other compensation. Inspite of notice Ghaziabad Development Authority did not contest the case and the District Forum passed ex-parte order. The District Forum came to the conclusion that there has been deficiency in services and allowed an interest @ 18% on the deposit amount because of delay of possession In addition the Forum ordered a payment of Rs. 5,000/- as compensation to the complainant. The order of the Forum is dated 11.10.1996.

THE complainant Smt. Mohini Singh was given possession of the house on 22.6.1997. Annexure No. 3 filed by the Ghaziabad Development Authority is the possession letter which proves the fact that the complainant was given possession of the house and in token of that she had signed the possession letter. The complainant in execution of the order dated 11.10.1996 of the District Forum, Ghaziabad filed an execution case before the same Forum alongwith statement of account indicating that as per valuer''s report, the house she had taken possession of had shortcomings and deficiency amounting to Rs. 56,600/- and, therefore, she is entitled to this amount also which should be adjusted against the payment she has to make to Ghaziabad Development Authority. On 13.8.1998 the District Forum, Ghaziabad heard both the parties and directed that the amount of Rs. 31,843.50 be paid to the complainant. This amount was worked out keeping in view the valuer''s report which indicated that the shortcomings in the house of which the possession had been taken over, were of the value of Rs. 56,000/- minus the amount of Rs. 24,456.50 which she was to pay to the GDA towards the cost of the house. The Ghaziabad Development Authority has come up in appeal against this order dated 13.8.1998 passed by the District Forum in execution proceedings in respect of Complaint No. 64/ 1996. Ghaziabad Development Authority in their memo of appeal stated that the complainant had been allotted a house bearing No. I-671 which was also allotted to some other person and for this mistake the Authority had initiated action against the defaulting officials and another house I-446 was allotted to her at an estimated cost of Rs. 2,15,000/- and in letter dated 15.5.1994 it was clearly mentioned that the final cost of the house would be informed later on. Ultimately the cost of the house was worked out by GDA at Rs. 2,81,500/- against which the complainant had admittedly deposited Rs. 1,07,500/- and accordingly the Authority had asked her to deposit balance amount. In compliance of the order passed by the District Forum, Ghaziabad on 11.10.1996 the possession of the house was delivered to the complainant but she did not deposit the total cost of the dues. After the possession was given to the complainant on 26.6.1997 she demanded a sum of Rs. 56,600/- from the appellant which is illegal and arbitrary. The District Forum, Ghaziabad on 31.1.1998 directed the GDA to pay to the complainant a sum of Rs. 31,843.50 by accepting the statement of accounts submitted by the complainant which included the valuer''s report. Thus the District Forum has acceded its jurisdiction in passing the order dated 13.8.1998 in execution proceedings. In the appeal it has also been said that the complainant could have filed a separate complaint in case of the alleged deficiencies detected after taking over of the possession. The appellant has prayed for setting aside the impugned order dated 13.8.1998 passed by the District Forum, Ghaziabad in execution proceedings.

Before we proceed to examine the merits of the case, it will be necessary to deal with certain basic law points raised by the learned Counsels for the two parties. During arguments, the learned Counsel for the respondent Smt. Mohini Singh, Mr. D.P. Sharma, raised an objection that an appeal does not lie in the execution proceedings. He argued that revision application should have been filed. On the other hand, Mr. Ram Raj, Counsel for GDA-appellant, argued that in the appeal, the entire execution proceedings pending before the District Forum, Ghaziabad in Complaint Case No. 64/1986 under Section 26 of the Consumer Protection Act have been challenged. It has also been argued that the execution proceedings before the District Forum was not maintainable as judgement and order dated 1.10.1996 was complied with by the appellant and in that case the complainant should have filed a fresh complaint before the District Forum. The learned Counsel has drawn our attention towards the ruling in the matter of Anil Sethi & Ors. v. President, District Consumer Forum, as reported in AIR 1996 Allahabad at page 287, wherein the Hon''ble High Court, Allahabad has held that an appeal under Section 5 of the Act against execution proceedings is maintainable.

THE Division Bench of the High Court was required to consider the question whether an appeal lies under Section 27 of the Consumer Protection Act or not. This question arose because a writ petition was filed before the Hon''ble High Court under the apprehension that no appeal lies to the State Commission against an order passed by the District Forum under Section 27 of the Consumer Protection Act (hereinafter called the ''Act''). THE relevant para of this is reproduced below which necessitated the present writ petition : "It was further argued that since the petitioners have been advised that against the aforesaid show cause notice an appeal may not be maintainable before the State Forum, the petitioners have no other remedy except to approach this Court under Article 226 of the Constitution of India and therefore the reliefs claimed should be entertained and favourably decided."

According to learned Counsel for the appellant as an appeal lies under Section 27 of the Act, therefore, the present appeal has been filed and no revision lies. According to learned Counsel the High Court has decided in the present case about the maintainability of the appeal. It may be mentioned that the question before the High Court is not whether the appeal lies or the revision lies under the provisions of the Act, but the main question in that writ petition was whether a writ petition lies in absence of any provision for appeal against an order passed under Section 27 of the Act. In order to show what was the question between the parties it may be worthwhile to reproduce page 7 of the judgment : "A complete reading of the judgment indicates therefore that any matter which falls or comes up for decision before the District Forum is made appealable under Section 15." A perusal of the above para clearly goes to show that the question before the Hon''ble High Court was whether a writ petition will lie before the Hon''ble High Court (sic.) against an order passed under Section 27 of the Act. After considering all these facts the Court came to the conclusion that an appeal lies under Section 15 of the Act, therefore, the writ petition will not lie. An observation has been made by the Hon''ble Supreme Court in para 10 of the judgment of Lucknow Development Authority v. M.K. Gupta. III (1993) CPJ 7 (SC)=AIR 1994 SC 787, indicates, therefore, that any matter which comes up for decision before the District Forum is made appealable under Section 15. We have also gone through the judgment of Lucknow Development Authority v. M.K. Gupta. But we do not find any reference which may go to indicate that appeal will lie against an order passed in execution proceedings. Thus this judgment is of no avail to the appellant because the controversy which is dispute at present was never raised and decided by the Hon''ble High Court. The Hon''ble High Court has not considered the provisions of Section 17 of the Act which deals with the jurisdiction of the State Commission. Section 17(1)(a)(ii) provides that the Commission will have jurisdiction to entertain appeals against the order of any District Forums within the State. Sub-Clause (6) of the same section reads as under : "to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."

A perusal of this clause will go to show that provision has been made in the Act for filing revisions and giving powers to the State Commission for calling records of any case in order to see whether appropriate jurisdiction has been exercised or not. The revisional jurisdiction is separate from the appeal jurisdiction. The appellant jurisdiction has been conferred by Sub-clause (a)(ii) of Section 17(1) and the appeals have been provided under Sub-clause (2) of the same section. Section 15 also vest powers in the State Commission to hear appeals against an order passed by the District Forum against the orders finally deciding the case. The revisional jurisdiction has been conferred in order to see whether the interlocutory order has been properly passed or not because no order is given in the order. The appeal is provided against the final order. Moreover in the execution proceedings only a revision has been provided under the provisions of different Acts. Therefore, the power is vested under Section 17(b) on the State Commission to entertain revisions can be invoked in the case of execution proceedings also and a revision lie against an order passed in the execution proceedings. In the present case an order has been passed under Section 27 of the Act in which execution proceedings are taking by issuance of warrant against the defaulting party. This proposition of law has been upheld in many cases decided by the State Commissions.

IN the case of J.S. Lakra v. National INsurance Company Limited, I (1993) CPJ 339, decided by the Haryana Commission, it was held that no appeal lies against an order rejecting an application for restoration of complaint. IN the case of Kohinoor Carpets, Panipat & Ors. v. Mr. Rajendra Arora, II (1991) CPJ 429, it was held that no appeal will lie against an order passed under Section 27 of the Act, but only a revision will lie. The reason given is that if the word "an order" used in Section 15 is construed as meaning any order, then it will mean that an appeal can also be filed against an order passed on application for adjournment or application of the like nature. But it will be seen that no appeal lies against interlocutory order and only a revision is permitted. Therefore such a construction cannot be placed on Section 15 which may make all orders appealable under Section 15 of the Act. Some distinction will have to be made in which the appeal will lie and in which another revision will lie. The next case on this point is C1996 (1) CPR 373, decided by the State Commission, West Bengal. In this case it was held that an appeal against an order passed under Section 27 of the Act is not maintainable. In case of Tarsen Lal Goyal v. Union of India & Ors., I (1993) CPJ 32=1993 (1) CPR 741, it was. held that no revision will lie against an order passed under Section 27 of the Act. In tine case of M/s. Agarwal Sales Corporation v. Jagdish Prasad, I (1993) CPJ 538=1993 (1) CPR 70, it was held that no appeal lies against an order passed under Section 27 of the Act. While examining the above decision of the Hon''ble Allahabad High Court, we find that observations of Supreme Court in various cases have also been incorporated in that order. We, therefore, hold that no appeal against an order passed in execution case is maintainable. Now we propose to decide the case on merits. On the oral request of the learned Counsel for the appellant, we permit this appeal to be converted into revision and the office is directed to make necessary amendments in the register and ascribe this appeal to revision No.

THE District Forum, Ghaziabad passed an order on 11.10.1996 in Complaint Case No. 64/1996 and it was directed that the possession of the house be delivered to the complainant and alongwith 15% interest be paid to her from the date of deposit till the date of delivery of possession on the deposited amount alongwith Rs. 5,000/- as compensation. Admittedly, the appellant did not go into appeal against this order and instead went ahead in complying to the order. Learned Counsel for the appellant has argued that after this case was decided, order was passed on 31.1.1998 by the District Forum in execution proceedings. According to the learned Counsel thereafter another order dated 13.8.1998 was passed by the District Forum which order is illegal and does not comply with the provisions of the Act. According to the learned Counsel this order has been signed by the President alone and no other Member has put in signature on this order. Thus, according to the learned Counsel this order has not been passed by President and one more Member on account of which it is invalid. No doubt the order dated 13.8.1998 has been passed by the President alone and the order cannot sustained. In view of the fact that the President alone has no powers to pass a judicial order unless and of the Member joins him in doing so. Learned Counsel for the opposite party also concedes this fact. Thus we find that this order dated 13.8.1998 is without jurisdiction and is liable to be set aside. ORDER

THE revision is allowed and the order dated 13.8.1998 passed by the District Forum in execution proceedings of Complaint Case No. 64/1994 is set aside as it has been passed in violation of Consumer Protection Act. Interim order passed by this Commission shall stand vacated. No order as to the cost. Let copy be made available to the parties as per rules. Appeal allowed.