Nagpur Improvement Trust Thr. ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 926 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                               
                              NAGPUR BENCH, NAGPUR.


      CRIMINAL APPLICATION (APL) NO .539 OF 2015.




                                              
     1) Nagpur Improvement Trust,
         through Executive Officer, 
         Civil Lines, Station Road, Sadar,




                                       
         Nagpur (Original Opposite Party in
         Consumer Complaint No.202/2007
                             
         before District Consumer Forum,
         Nagpur).
                            
     2) Shri Pravin s/o Chindhuji Darade,
         Ex-Chairman, Nagpur Improvement
         Trust, Civil Lines, Station Road, 
         Sadar, Nagpur (Original Non-applicant
      

         in Execution Proceeding No.EA 14/16
         before District Consumer Forum, Nagpur).        ....       APPLICANTS
   



                        VERSUS

     1) State of Maharashtra,





         through Registrar, 
         District Dispute Redressal Forum, 
         New Administrative Building, 5th 
         Floor, Civil Lines, Nagpur-1.





     2) Shri Anoopsingh s/o Monoharsingh
         Parihar, 133, Divyam Apartment, 
         Pande Layout, Khamla, Nagpur-25,
         (original Complainant in Consumer
         Complaint No.202/2007 and applicant
         in EA No.14/16).                                ....NON-APPLICANTS

     ______________________________________________________________
         Shri S.K. Mishra, Senior Advocate assisted by Shri S.M. Pande,
                           Advocate for the applicants, 
       Shri S.B. Bissa, Additional Public Prosecutor for non-applicant No.1,



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           Shri Anoopsingh M. Parihar/non-applicant No.2 in person.




                                                           
      ______________________________________________________________

                                   CORAM : Z.A. HAQ, J.

DATED : 28 MARCH, 2016.

th

ORAL JUDGMENT :

1. Heard Shri S.K. Mishra, learned Senior Advocate assisted

by Shri S.M. Pande, Advocate for the applicants, Shri S.B. Bissa,

learned Additional Public Prosecutor for the non-applicant No.1 and

Shri Anoopsingh Parihar/non-applicant No.2 in person.

2. The applicants have challenged the orders dated

23-01-2014 and 24-04-2015 passed by the Consumer Disputes

Redressal Forum, Nagpur (hereinafter referred to as "the Forum").

3. The non-applicant No.2 had filed Consumer Complaint

No.202/2007 which is allowed by the Forum by the order passed on

01-04-2008, the operative part of which reads as follows :

"1. The complaint preferred by the complainant is hereby partly allowed.

2. The non-applicant is hereby directed that it should allot the complainant a flat admeasuring 790 square feet as registered in the complex "Shop cum Residential Complex on Hill Road.

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                                               OR




                                                          

If the non-applicant is unable to allot the flat admeasuring 790 square feet as mentioned above, then the non-applicant, in the alternative, should allot the

complainant flat No.208, admeasuring 719.93 square feet and the terrace admeasuring 541.40 square feet, in the same complex at the determined cost of Rs.9,54,343/-.

3) The non-applicant is directed that it should pay Rs.10,000/- to the complainant towards the physical and

mental harassment as well as the economic loss caused to the complainant.

4) The non-applicant is directed that it should pay Rs.3,000/- to the complainant towards the cost of the present complaint.

5) The non-applicant should implement the above orders

within a period of 30 days from the date of receipt of the

copy of the order."

It is undisputed that the above order passed by the Forum

is maintained upto the Hon'ble Supreme Court.

4. According to the non-applicant No.2, the order passed by

the Forum on 01-04-2008 is not complied, and therefore, he has filed

application under Section 27 of the Consumer Protection Act, 1986

(hereinafter referred to as "the Act of 1986"), which is registered as

Execution No. EA/16/2014. After recording the statement of the non-

applicant No.2, the Forum passed an order on 23-01-2014 directing

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issuance of summons. This order was challenged by the applicant No.2

in Revision Petition No.RP/14/21 before the State Consumer Disputes

Redressal Commission. The revision is dismissed by the order dated

07-10-2014.

Though the order dated 23-01-2014 passed by the Forum

directing issuance of summons is challenged in this application, the

learned Senior Advocate, on instructions, has given up the challenge to

the order dated 23-01-2014.

5. In the execution proceedings, the applicant No.2 filed an

application praying that the execution proceedings be dismissed. It is

contended that the order passed by the Forum on 01-04-2008 required

the non-applicant No.2 to deposit Rs.9,54,343/- in lieu of allotment of

flat, however, the non-applicant No.2 had deposited Rs.8,91,432/- and

he was required to deposit further amount of Rs.55,920/- and as the

non-applicant No.2 has not deposited the amount as per the order

passed by the Forum on 01-04-2008, the non-applicant No.2 has no

right to continue the proceedings under Section 27 of the Act of 1986.

The applicants had filed Criminal Application (APL)

No.154/2015 before this Court challenging the order passed by the

State Consumer Disputes Redressal Commission in Revision Petition

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No.RP/14/21 on 07-10-2014. One of the grievance of the applicants

was that the Forum had not decided the application filed by the

applicants praying that the execution proceedings be dismissed. This

Court, by the order dated 27-03-2015, disposed Criminal Application

(APL) No.154/2015 and directed the Forum to decide the application

filed by the applicants within two weeks. Pursuant to the directions

given by this Court, the Forum has decided the application, by the

order dated 24-04-2015.

The applicants, being aggrieved by the order passed by the

Forum on 24-04-2015, have filed this application.

6. Though Shri Anoopsingh Parihar has raised objection that

the application under Section 482 of the Code of Criminal Procedure

should not be entertained as the applicants can challenge the order

dated 24-04-2015 in revision before the State Consumer Disputes

Redressal Commissioner, I am not inclined to consider the objection in

the facts of the present case. This Court had issued notice of the

present application by the order dated 24-08-2015 on which date Shri

Anoopsingh Parihar was personally present and waived the notice.

The mater was listed on 09-10-2015 on which date after hearing all

the parties, this Court issued Rule. The order passed by this Court on

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09-10-2015 does not show that an objection regarding tenability of the

application under Section 482 of the Code of Criminal Procedure was

raised.

The Criminal Application (APPP) No.145/2016 was filed

by the non-applicant No.2 praying for recalling the order dated

09-10-2015 contending that the challenge to the tenability of the

application under Section 482 of the Code of Criminal Procedure was

not considered by the Court while issuing Rule. As the non-applicant

No.2 was in terms seeking review of the order, the matter was directed

to be placed before the same learned Judge (Shri V.M. Deshpande, J.).

Criminal Application (APPP) No.145/2016 is decided by the order

dated 04-03-2016 in the following terms :

"This application is moved by non-applicant No.2-Shri Anoopsingh s/o Mohansingh Parihar, who is appearing in person. The application is for recalling of order dated 09-10-2015, or in alternate, to fix the main proceeding for

final hearing.

By order dated 09-10-2015, this Court has admitted the main proceedings.

After hearing Shri Anoopsingh Parihar and learned Senior Counsel for the applicants Shri S.K. Mishra with learned Counsel Shri S.M. Pande, it is expedient to grant alternative prayer of Shri Anoopsingh Parihar.

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In that view of the matter, place Criminal Application

(APL) No.539 of 2015 on 21-03-2016 as per joint request made by parties for its final hearing before the Bench assigned for taking the criminal matters.

With this, the application is disposed of."

The non-applicant No.2 has not pursued the challenge on

this point further and has accepted the order granting early hearing.

In this background, the non-applicant No.2 cannot be permitted to

raise the challenge now.

Even otherwise, it cannot be said that the application filed

by the applicants is not maintainable at all.

7. Shri S.K. Mishra, learned Senior Advocate has pointed out

the operative part of the order passed by the Forum on 01-04-2008

and has submitted that as the non-applicant No.2 had not deposited

the balance amount of Rs.55,920/-, he cannot prosecute the execution

proceedings. The learned Senior Advocate has referred to the

provisions of Section 27 of the Act of 1986 and has submitted that the

Forum can proceed even against the complainant if he fails or omits to

comply with any order made by the Forum and the failure on the part

of the non-applicant No.2 to comply with the order passed by the

Forum requiring him to deposit the amount as directed by the order,

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the non-applicant No.2 is liable for penalty under Section 27 of the Act

of 1986. It is further submitted that in these facts, the applicants had

filed the application praying that the execution proceedings be

dismissed but the Forum has not adverted to the contentions of the

applicants and without considering the documentary evidence on the

record which shows that the non-applicant No.2 has not complied with

the order passed by the Forum, the application filed by the applicants

praying that the execution proceedings be dismissed, is rejected. It is

submitted that the members of Forum have not applied their mind to

the issue raised by the applicants and the continuation of the

proceedings under Section 27 of the Act of 1986 without there being

any cause, amounts to abuse of process and therefore, this Court has to

exercise the jurisdiction under Section 482 of the Code of Criminal

Procedure to prevent the abuse of the process of Court. It is further

submitted that inspite of the directions given by this Court by the order

passed in Criminal Application (APL) No.154/2015 on 27-03-2015, the

Forum has not decided the application filed by the applicants and has

mechanically rejected it. It is prayed that the order passed by the

Forum on 24-04-2015 be set aside, the application filed by the

applicants before the Forum praying that the execution proceedings be

dismissed, be allowed and the execution proceedings filed by the non-

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applicant No.2 be dismissed. Alternatively, it is prayed that the Forum

be directed to decide the application filed by the applicants, after

adverting to all the challenges raised by the applicants.

8. Shri Anoopsingh Parihar has submitted that the impugned

order is proper and does not require any interference by this Court

exercising jurisdiction under Section 482 of the Code of Criminal

Procedure. It is submitted that though the order passed by the Forum

on 01-04-2008 is maintained upto the Hon'ble Supreme Court, the

applicants are unnecessarily delaying the execution proceedings on

unjustifiable grounds. It is submitted that the dispute raised by the

applicants is required to be adjudicated by the Forum after recording

the evidence and the Forum has rightly rejected the application filed by

the applicants observing that the parties will have to prove the rival

contentions by leading evidence.

In paragraph No.14 of the affidavit in reply filed before

this Court by the non-applicant No.2 it is stated as follows :

"14. It is submitted that under such circumstances, the non-applicant no.2 issued a letter dated 19/12/2014 to the then Chairman of the N.I.T. (Annexure E) wherein it was brought to his notice as

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to how the officials of the N.I.T. brazenly flouted all

norms and rules by arbitrarily and illegally allotting flats of 790 sq.feet to 12 persons who had not applied for such flats at a much less cost than fixed; and also arbitrarily allotted 7 flats of 720 sq.feet area with

terrace, at minimum cost without following any procedure, much less by conducting auction, thereby causing huge financial loss to the N.I.T. whereas the non-applicant No.2 was deliberately and illegally

discriminated and he was not allotted the flat despite the specific direction from the Forum. The non-

applicant No.2 therefore had requested in the said letter to grant reasonable compensation of more than seven lakh for deliberately not allotting and giving

possession of the flat of 790 sq.feet or an alternative flat no.208, for more than nine years although the non-applicant No.2 had deposited more than Rs.10 lakhs with the N.I.T. upto May, 2007. It is thus submitted that applicant No.1 N.I.T owe and is duty

bound to pay more than Rs.Seven lakh to the non-

applicant no.2 as on date. However, after the transfer of the then Chairman, the present Chairman of the N.I.T. without considering the submission in proper perspective, cursorily declined to accept the request of

the non-applicant no.2. The non-applicant no.2 therefore has requested the present Chairman of the N.I.T. to take a review/ reconsider order/ decision regarding the payment of compensation, vide letter dated 25.05.2015 (Annexure-K); which is pending

consideration."

The non-applicant No.2 has submitted that in these

circumstances, the impugned order cannot be said to be improper or

unjustified. It is prayed that the application filed by the applicants

under Section 482 of the Code of Criminal Procedure be dismissed

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with costs.

9. Shri S.B. Bissa, learned Additional Public Prosecutor for

the non-applicant No.1 has submitted that the dispute is between the

applicants and non-applicant No.2 and the applicant No.1-State of

Maharashtra is a formal party.

10. With the assistance of Shri S.K. Mishra, learned Senior

Advocate for the applicants and Shri Anoopsingh Parihar/non-

applicant No.2, I have examined the documents filed on the record of

the application. Though the applicants tried to demonstrate that the

execution proceedings filed by the non-applicant No.2 under Section

27 of the Act of 1986 are not maintainable because of non-compliance

of the order passed by the Forum regarding deposit of the amount, the

non-applicant No.2 is disputing his liability to deposit any amount and

according to the non-applicant No.2, he has deposited the entire

amount. In my view, the Forum has rightly recorded that the rival

contentions will have to be proved by the respective parties.

Apart from this, one more aspect is required to be

examined by the Forum. As per the order passed by the Forum on 1 st

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April, 2008 which is maintained up to the Hon'ble Supreme Court, the

applicant No.1 has to allot flat admeasuring 790 sq.ft. and if it is not

possible then in the alternative the applicant No.1 has to allot flat

No.208 admeasuring 719.93 sq.ft. and the terrace admeasuring 541.40

sq.ft. It is the contention of the non-applicant No.2 that the flats

admeasuring 790 sq.ft. are allotted arbitrarily, illegally and in breach

of norms and rules to 12 persons who had not applied for such flats

and allotted 7 flats of 720 sq.ft. area with terrace at minimum cost

without following procedure and without conducting auction. The non-

applicant No.2 has come out with the case that he is not allotted the

flat admeasuring 790 sq.ft. inspite of the directions given by the

Forum. The forum will have to consider whether the flat admeasuring

790 sq.ft. is not given to the non-applicant No.2 as per the order

passed by the Forum, maintained up to the Hon'ble Supreme Court and

the flats admeasuring 790 sq.ft. are allotted illegally as contended by

the non-applicant No.2. The Forum will also have to consider the

grievance of the applicant about illegal allotment of 7 flats

admeasuring 720 sq.ft.

These aspects can be examined by the Forum only after

the parties are given opportunity to substantiate their contentions.

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In view of the above, it cannot be said that the impugned

order suffers from illegality or perversity or is unjust or prejudices the

claim of the applicants and therefore jurisdiction under Section 482 of

the Code of Criminal Procedure has to be exercised to secure the ends

of justice. I see no reason to interfere with the impugned order.

The application is dismissed. In the circumstances, the

parties to bear their own costs.

JUDGE

pma