The Division Bench of Bombay High Court consisting of Justices G. A. Sanap and A.S. Chandurkar while disposing of a writ petition opined that in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said.
Facts
The respondent- Consumer has initially filed a Consumer Complaint No.CC/15/148 against M/s Revati Associates and Infrastructures Pvt. Ltd., through its Director (petitioner) in terms of Sections 12 and 17 of the Consumer Protection Act, 1986 (for short ‘the Act’). It was the respondent’s case that the petitioner had agreed to sell three plots in total consideration of Rs.65 lakhs. The respondent – Consumer has paid part consideration of Rs.55 lakhs, however, transaction was not materialized. The Consumer had approached to the State Commission for refund of earnest amount of Rs.55 lakhs with interest. The State Commission by allowing the complaint vide its order dated 21.10.2016 directed the petitioner (Developer) to refund an amount of Rs.55 lakhs along with interest. The said order was not challenged by the Developer meaning thereby it has attained finality.
Procedural History
Since the Developer has not complied with the order of the State Commission dated 21.10.2016, the Consumer chose to invoke penalty clause under Section 27 of the Act, by filing Execution Application No.17 of 2017, alleging non-compliance of the order dated 21.10.2016. In Execution Application, the Developer failed to attend, hence, non-bailable warrants were issued on which he was released on bail. On 06.01.2021, the Developer appeared (in Execution Application) before the State Commission on which the State Commission has recorded a plea whereby the Developer pleaded not guilty. On the very day, the State Commission took Developer in Magisterial Custody by cancelling his bail for non-compliance of order for a long period.
On 13.01.2021, the Developer again applied for bail, however, the State Commission has declined to grant bail vide order dated 14.01.2021. Later on, he applied for bail on 03.05.2021, however, again it was rejected. Likewise, on 13.07.2021, the Developer applied for bail on medical grounds, however, it was once-again rejected vide order dated 17.08.2021. All these orders of rejection of bail passed during pendency of the proceeding under Section 27 of the Act, have been challenged in this Writ Petition.
On rejection of last bail application dated 17.08.2021, the Developer has approached to the National Consumer Disputes Redressal Commission (National Commission) vide Execution Appeal No.11 of 2021 questioning rejection of bail. However, on 21.09.2021, the Developer has withdrawn bail application and the matter has been posted by National Commission for consideration on 22.07.2022.
Contentions Made
Appellant: In Summary Trial under Section 27 of the Act, the State Commission has detained him without jurisdiction. The Developer has paid Rs.25 lakhs to the Consumer, however, in total disregard to the said fact, he was detained in jail. According to the Developer, before adjudicating whether the Developer has committed willful default, the State Commission by per-judging the case, passed the impugned orders. 7. It is the contention that the order of rejection of bail being an interim order, it is not amenable to challenge before the National Commission. To be specific, it is argued that, appeal to the National Commission would lie under Section 27-A(1)(b) only against the final orders passed in the proceeding under Section 27 of the Act. It is argued that since 06.01.2021, the petitioner is behind bars, that too before adjudicating Summary trial filed in terms of Section 27 of the 5 Act. The Developer has already made substantial payment, therefore, he be released on bail by invoking extra ordinary jurisdiction of this Court.
Respondent: The petitioner has avoided to appear in Execution Application pending before the State Commission. Time and again, non-bailable warrants were issued, however, petitioner was not regular before the State Commission. The outstanding amount has gone above Rs.80 lakhs, however, the petitioner has intentionally avoided to pay. It is submitted that since the petitioner has denied the guilt, the State Commission was well justified in taking him into the custody. 9. Besides that, the respondent has challenged the very maintainability of Writ Petition. The non-applicant No.2 filed reply and opposed the application by stating that after having sexual intercourse on the false promise to marry. Her consent was obtained under false promise. The detailed complaint was later made to A.P.I., Umred Police Station (Rural) on 24/09/2021. The applicant’s friend by name Nitin Yenurkar made phone calls to her which she recorded and its transcript was annexed.
Observations of the Court
The Bench observed that:
“There is no dispute that the Execution Application filed under Section 27 of the Act, is still pending. Apparently, the impugned orders regarding rejection of bail, are not final orders, but, are orders in the interim form. Therefore, I am of the view that the impugned orders being of interim nature would not fall within the ambit of Section 27-A of the Act, which provides a definite appellate form. Since, no appeal is provided against the interim orders, certainly, the writ jurisdiction can be invoked. In view of above analysis of Section 27-A of the Act, being distinct fact decisions cited by the respondent would not assist him in any manner.”
It was further observed that:
“It needs to be noted that the State Commission after considering past record and particularly non-compliance of order took him into custody by cancelling the bail. It prominently emerges that the State Commission has not cancelled the bail of the petitioner on the ground of violation of bail condition, but on the ground that he has pleaded not guilty and there is non-compliance of the order.”
“Section 27 of the Act provides maximum sentence of imprisonment which may extent up to three years. Without holding trial, petitioner is kept behind bars for near-about one year, therefore, it is a fit case to exercise writ jurisdiction since there is violation of personal liberty.”
“Having regard to all above, I find that the State Commission has pre-judged the matter and before concluding the trial, incarcerated the petitioner for the reasons of non-payment of ordered amount. Certainly, the petitioner can be kept behind bars, if, he violates bail conditions. However the order dated 06.01.2021 itself, speaks that on that day, the petitioner himself appeared and as he denied the guilt, he was placed in jail. The entire approach of State Commission of keeping petitioner behind bars and adjourning the matter for a long period of one year, is quite disturbing.”
Judgment
- The Writ Petition was allowed and disposed of.
- Impugned orders were quashed and set aside.
- The State Commission was directed to pass appropriate order of bail by imposing suitable conditions within three working days from the receipt of this order.
- It was clarified that in case of petitioner’s further breach, the State Commission is at liberty to take appropriate steps in accordance with law.
Case Name: Suhas Ratnakar Morey vs Dhanraj Tulshiram Khaparde
Citation: Criminal Writ Petition No. 803 of 2021
Bench: Justice Vinay Joshi
Decided on: 23rd December 2021
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