SHIVA SHAKTI BUILDERS vs SHIVAS PALACE PHASE-I FLAT OWNERS ASSOCIATION

THIS revision petition is preferred by the opposite party against the order of the District Forum-III, Hyderabad in appointing an Advocate Commissioner to note down the physical features with the assistance of Civil Engineer.

THE complainant filed a complaint against the builder alleging that they raised a wall dividing common parking area into two parts and constructed independent house illegally in part of the parking area besides pent house over the terrace a common area to be utilized by all of them and made constructions in cellar portion without obtaining permission from MCH. Since the revision petitioner/opposite party was disputing these deviations an Advocate Commissioner could be appointed to note down the physical features and submit his report. The revision petitioner/builder denied the allegations. Earlier similar petition for appointment of Advocate Commissioner was filed and the same was dismissed. Therefore, this application is not maintainable. The advocate who was appointed as Commissioner is not an expert to find out the deficiencies alleged by the complainant.

The District Forum after considering the facts and in view of contentions appointed an Advocate Commissioner to know whether there is any existence of wall or not, whether there is pent house and whether the cellar is occupied etc. At any rate an expert is also assisting the Advocate Commissioner to note down the physical features.

AGGRIEVED by the said decision, the opposite party filed this Revision Petition contending that the District Forum has no jurisdiction to appoint Commissioner. The building was constructed about 15 years ago. Most of the features which were there earlier do not exist as on today. Earlier when a similar application was filed the same was dismissed. Therefore, they prayed that the order be set aside. Before considering the merits of the revision petition, we may state herein that originally by order dated 24. 2. 2006 the District Forum dismissed the complaint against which the complainant preferred F. A. No. 120/2007. An application in I. A. No. 54/2004 in C. C. No. 788/2003 was also filed by the complainant for appointment of an Advocate Commissioner to note down the physical features. The said application was dismissed along with C. D. By order dated 8. 10. 2007 this Commission remanded the matter with a direction to conduct a de novo inquiry after giving notice to both the parties and dispose of the C. D. within a period of six months. Aggrieved by the said decision, the revision petitioner has carried the matter to National Commission in R. P. No. 527/2008. The National Commission confirmed the orders of this Commission in remanding the matter to District Forum for fresh inquiry. After remand, on an application an Advocate Commissioner was appointed to find out the existence of the constructions, etc. which according to the complainants were deviations, which have been causing inconvenience to them.

LEARNED Counsel for the revision petitioner contended that the building was constructed way back in the year 1993 about 15 years ago. The features that were existing at that time do not still exist, and that there would be lot of changes not only in quality of construction but also various physical features. He further contended that the District Forum has no jurisdiction to appoint Advocate Commissioner. There is no provision in the Consumer Protection Act. It has no inherent jurisdiction as that of Civil Court. This question has been fairly covered by a decision of High Court in Yogendra Builders, Visakapatnam v. Vidya Paradise Owners'' Welfare Association, Visakapatnam, reported in 2008 (1) ALD 227. While observing that "though no provision is provided under the Consumer Protection Act, however, the Consumer Fora, the State Commission or the National Commission as the case may be, if they are satisfied that the opinion of an expert, specialist, skilled person or any other person of a like nature and their opinion may be essential for proper adjudication of the dispute, definitely, they can exercise such powers for the purpose of appropriate decision making in relation to the dispute. " The other contention that was raised by the learned Counsel for the revision petitioner is that the building was constructed 15 years ago, and that those physical features do not exist, and the complainant did not allege anything about them. The complainants intend that the expert to note down the various physical features. When the experts note down various deficiencies pleaded it would also undoubtedly consider the year of construction, etc. The revision petitioner can as well file work memo mentioning the age gap and other deficiencies that could be attributable to wear and tear, change in climatic conditions, etc. that there would not be any difficulty in appreciating the report of the Commissioner. Considering the facts of the present case, and in the light of dispute, the District Forum while exercising its jurisdiction opined that an Advocate Commissioner with the assistance of qualified civil engineer could be appointed to find out the deficiencies alleged by the complainant. Therefore, we do not see any objection in this regard. Finally learned Counsel contended that earlier an application in I. A. No. 54/2004 was filed for appointment of an Advocate Commissioner and the same was dismissed and, therefore, this petition is barred by principles of estoppel and res judicata.

EARLIER, admittedly, no separate order on merits was passed. The said application was dismissed along with C. D. At any rate, no adjudication was made in the earlier complaint as to the merits as such. It was dismissed solely on the ground of limitation. An appeal against the said order was set aside and was remanded to make de novo inquiry. Therefore, we do not see how the dismissal of the earlier application would bar the present petition for appointment of a Commissioner.

THE District Forum after considering the nature of the complaint thought it fit that an Advocate Commissioner along with qualified civil engineer could visit and note the physical features. We do not see any illegality or irregularity in the order passed in this regard. We do not see any merits in the revision petition. In the result the revision petition is dismissed. However, no costs. R. P. dismissed.