N.K.NAIR vs CHAITHANYA BUILDERS AND LEASING PVT. LTD.

THIS is a Miscellaneous Petition for appointment of a Commissioner.

THE Complainant has entered into an agreement with the Opposite Party Builders for the development of his land by the construction of a multi-storeyed premises. Under the agreement, the Complainant would be allotted 50% of constructed portion and the Opposite Party Builder will take the remaining 50%. THE Complainant has also agreed to execute a Deed of Sale in respect of 50% of the land. THE construction has to be completed within 15 months from the date when the plans were sanctioned by the authorities concerned, failing which, the Opposite Party has to pay Rs. 10,000/as damages to the Complainant permensem. It is the case of the Complainant that there was an Inordinate delay in the construction and delivery of the flats to the Complainant. It is, also alleged that the flats are not according to the original plan. THE number of Car Parksis reduced. THEre are, also, other deficiencies catalogued in the complaint. THE Complainant has, therefore, claimed compensation on various heads to the tune of Rs. 12,39,875/-. The Opposite Party has resisted the complaint on various grounds, including its non-maintainability.

The Complainant has now filed this Micellaneous Petition for the appointment of an Advocate Commissioner to inspect the property in question and note down the deficiencies alleged by the Complainant. The main objection of the Opposite Party is that there is no provision in the Consumer Protection Act for appointment of a Commissioner for local inspection. It is true that there is no specific provision for such an appointment. But, as pointed in I.L.R.40, Madras 1069 (Full Bench), there will always be cases and circumstances which are not covered by the express provision of the Code, wherein justice has to be done. The reason is that the Legislature can foresee only the most natural and ordinary events and no rules can regulate for all time to come so as to make express provisions against all inconveniences, which are infinite in number. The Forums constituted under the Consumer Protection Act are the Quasi-Judicial in natur and they have, therefore, to apply the principles of Ex Debito Justitiae and Ex Debito Naturali. In the decision reported in A.I.R. 1951 Madras 766, the Division Bench of the High Court of Madras has held that the principle of inherent power to remedy in justice applies to Quasi-Judicial authorities also and Quasi-Judicial Tribunal like the Rent Controller or the Appellate Tribunal has inherent power to set right mistakes made by inadvertence so long as the amendment does not amount to a review of the judgment already made. In the decision reported in A.I.R. 1958 S.C. 79, the Supreme Court has also held that this principle applies to the Labour Appellate Tribunal while exercising its power under the Industrial Disputes Act.

IT is not possible to appreciate and assess the allegations of deficiencies made by the Complainant and denied by the Opposite Party by mere oral evidence, especially when there is dispute about measurements. The inspection of the property by a neutral person will enable the Commission to arrive at a proper and satisfactory conclusion. In the interest of justice and for the proper adjudication of the dispute, we feel that it is necessary to appoint an Advocate Commissioner as requested by the Complainant. The Commissioner may be examined in Court and may be subjected to cross examination in respect of his findings in his report. No injustice, whatsoever, will be done to either party by the appointment of a Commissioner. The other objections raised by the Respondent/Opposite Party in respect of the maintainability of the complaint are left open to be agitated at the time of the hearing of the main O.P.

IN the result, Thiru. K.R. Murali, Advocate, No. 152, Thambu Chetty Street, Madras600 001 is appointed as Commissioner to inspect the property in question and note down the deficiencies alleged by the Complainant and the costs of their rectifications after due notice to both the parties and their Counsels. An initial sum of Rs. 2,500/shall be paid to the Commissioner by the Complainant. Application allowed.