*THE HONBLE Ms. JUSTICE G.ROHINI +WRIT PETITION No.12748 OF 2007 %Dated 12-12-2008 # Raheemunnissa, W/o.Syed Munawar Ali, PETITIONER VERSUS $ The District Consumer Forum, Prakasam District, Ongole and others. RESPONDENTS ! Counsel for Petitioner: MR.JOSYULA.BHASKARA RAO ^Counsel for Respondents: G.P. for Civil Supplies <GIST: > HEAD NOTE: ? Cases referred IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELFTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 12748 of 2007 Between: Raheemunnissa, W/o.Syed Munawar ali, R/o.8-1-364/a/1, Fatima Nagar, Tolichowki, Hyd. ..... PETITIONER AND 1 The District Consumer Forum, Prakasam District, Ongole. 2 Vema Velugondaiah, S/o.Venakta Narasimham, R/o.Podili,Prakasham District. 3 Vaddineni Mallikarjuna Rao, Devlopment Chief Asra India Saving & Investments Ltd., Gantapalem, Near Parvatamma Temple, Ongole, Prakasam District. 4 Soma Raju Pandu Ranga Rao, Cooperative Central Bank, Damodhara Public School, Ongole. 5 Syed Sardar, S/o. Khasim Saheb, Asra India Savings & Investments Ld., C/o. Asra Housing Corporation, Sikh Village, Kiran Enclave,Block 751, IInd Floor, Secunderabad. 6 M.A.RAzak, S/o.late M.A.Waheb, R/o.H.No.22-7-266/2, Diwan Devdi, Hyderabad. (RR - 3 to 6 are performa parties and hence Notices are not necessary to them. 7 Sura Gurunadham S/o. Venkata Subba Rao Anjaneya Swamy Vari Street, Podili 8 Bhuma Ravindra S/o. Subba Rao Andhra Bank Veedhi, Podili 9 Garlapati Pandavulu S/o. Venkaiah 10/112, Viswanadhapuram, Podili 10 Veluguri Subbarayudu S/o. Subbarayudu 8/369, Park Road, Kanigiri 11 Papireddy Narasimha Rao S/o. Konda Reddy Ekalavya Nagar, near Kapu Kalyana Mandapam, Ongole 12 Enaganuri Srinivasulu S/o. Pitchaiah Ramulaveedu village, Prakasam District 13 Podili Venkateswarlu S/o. Kasaiah Taluq Officer Street, Podili 14 Ramala Narasa Reddy S/o. Jayarami Reddy Sub Registrar Office, Podili 15 Malisetty Kutumba Rao S/o. Velugondaiah Obula Setty Vari Street, Podili 16 Sanikommu Padmavathi Devi W/o. Venkat Reddy D.No.11/24, Siva Nagar Colony, Viswanadhapuram, Podili 17 Dodettali Venkata Sarasamma W/o. Rama Brahmachary, Sub Station, Near Viswanadhapuram, Podili 18 Desu Venkata Seetaramaiah, S/o. Rama Kotaiah Andhra Bank Veedhi, Podili 19 DesuSatyavathi W/o. Seetaramaiah Andhra Bank Veedhi, Podili 20 Darsi Gayatri W/o. Lakshmi Narayana D.No.5/61,Obula Setty Vari Street, Podili .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for the records in E.P.no.3 of 2007 in Cd.No.116 of 2000 pending on the file of the District Consumer Forum, Praksham District at Ongole, (1st respondent )and issue an appropriate writ,direction or order moreparticuarlly one in thenatureof mandamus declaring that the attachment of House property bearing No.8-1-402/409, Gulshan Colony, Shaikpet, Hyderabad admeasuring 331 sq.yds. belongingpetitioner made in E.P.3 of 2007 in C.D.Nod.116 of 2000 by 1st respondent is illegal, without jurisdiction, authority or power and consequently quash tehproceedings in E.P.3 of 2007 inC.D.116 of 2000 and attachment made therein on the file of the District Consumer Forum, Prakasham District, Ongole (1st respondent) in the interests of Justice andpass. Counsel for the Petitioner: MR.JOSYULA.BHASKARA RAO Counsel for the Respondent No.: GP FOR CIVIL SUPPLIES The Court made the following : THE HON’BLE MS JUSTICE G.ROHINI W.P.NO.12748 OF 2007 ORDER: This writ petition is filed seeking a declaration that the Order passed by the District Consumer Forum Prakasam District dated.26-04-2007 in E.P.No.3 of 2007 in C.D.No.116 of 2000 prohibiting the petitioner from transferring or creating any charge over house bearing No.8-1-402/409 Gulshan Colony, Shaik pet, Hyderabad, by sale, gift or otherwise as arbitrary and illegal. The petitioner claims to be the absolute owner and possessor of the house in question having purchased the same under a registered sale deed dated.30-11-2005 from the respondent No.6 herein. By notice dated.04-04- 2007 issued by the District Consumer Forum Prakasam District, the petitioner was called upon to appear before the Forum on 26-04-2007 and to show cause as to why the house in question should not be attached in E.P.No.3 of 2007 filed by 2nd respondent in execution of the order passed in C.D.No.116 of 2000 under Sec.25 and 27 of the Consumer Protection Act,1986 (for short “the Act”). Accordingly the petitioner appeared before the Forum on 26-04- 2007 and requested to furnish the copies of the order said to have been passed in C.D.No.116 of 2000 and other documents. Without furnishing the said documents, the District Consumer Forum Prakasam District passed the impugned order prohibiting and restraining the petitioner from transferring the house in question by sale, gift or other wise. After obtaining the certified copies of all the relevant documents, the petitioner came to know that the respondents 7 to 46 herein filed C.D.No.116 of 2000 under Sec.12 of the Act against the respondents 3 to 5 herein for recovery of amounts together with interest and damages allegedly invested with a company by name Asra India Savings and Investments Ltd., by way of Fixed Deposits. The opposite parties i.e., the respondents 3 to 5 herein failed to appear despite notices and consequently C.D.No.116 of 2000 was decreed ex parte on 29-04-2003 for recovery of a sum of Rs.2,66,000/- with interest @ 12% p.a. from the date of petition i.e.,20-10-2000 till the date of realization. A further sum of Rs.38,000/- towards damages and cost of Rs.1000/- were also awarded. Pursuant thereto the 2nd respondent herein claiming to be the GPA holder of the respondents 7 to 46, filed E.P.No.3 of 2007 with a prayer to attach and sell the house in question after cancelling the registered sale deed in favour of the writ petitioner. Though the writ petitioner was not a party to C.D.No.116 of 2000, she was arrayed as respondent No.5 and her vendor-the 6th respondent herein was arrayed as respondent No.4 in E.P.No.3 of 2007. In the said Execution Petition after notice to the petitioner and her vendor, the impugned order was passed on 26- 04-2007. It is contended by the petitioner that the District Forum has no jurisdiction to entertain the Execution Petition for cancellation of the sale deed in favour of the writ petitioner and therefore the impugned prohibitory order is liable to be set aside on that ground alone. It is also contended that under Sec.25(3) of the Act the District Forum can only issue a certificate for the amount due to a person and on the basis of such certificate the District Collector has to proceed to recover the amount as arrears of land revenue. Hence according to the petitioner the impugned prohibitory order is beyond the power conferred under the Act and liable to be set aside on that ground also. In the counter-affidavit filed by the 2nd respondent, the plea of the petitioner that he is the absolute owner of the house in question has been denied and it is stated that the said house belongs to M/s.Asra India Savings and Investments Limited which purchased the same under a registered document in the year 1998. It is alleged that the sale in favour of the petitioner was sham and nominal since the 6th respondent who is the vendor of the writ petitioner has nothing to do with the said property. It is contended that the writ petition is misconceived and filed only to defeat the decree granted by the District Consumer Forum in favour of the respondents 7 to 46 herein. I have heard the learned counsel for both the parties and perused the material on record. The learned counsel for the 2nd respondent at the outset, raised an objection as to the maintainability of the writ petition on the ground that the petitioner failed to exhaust the alternative remedy of appeal available under Section.15 of the Act. However, the learned counsel for the petitioner while reiterating the contentions in the writ petition that the impugned order is without jurisdiction, vehemently contended that the availability of alternative remedy is not a bar to maintain the writ petition. The learned counsel also contended that since the property in question is situated in Hyderabad, the District Forum Prakasam District lacks territorial jurisdiction to entertain the Execution Petition. Sofar as the first contention that an order made by the District Forum can be executed only by the Collector by proceeding to recover the amount as arrears of land revenue is concerned, it is necessary to notice Sec.25 of the Act as amended by Act 62 of 2002 w.e.f. 15-03-2003 which runs as under : 25. Enforcement of Orders of the District Forum, the State Commission or the National Commission:-- (1) Where an interim order made under this Act, is not complied with the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached. (2) No attachment made under sub-section.(1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. (3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.” The attachment provided under sub-sections. (1) and (2) of Sec.25 is for enforcement of an interim order made under the Act and therefore the same has no application to the case on hand. It is true that Sub-section (3) of Sec.25 which deals with enforcement of a final order provides that the amount due under an order made by a District Forum has to be recovered by the Collector in the same manner as arrears of land revenue on the basis of a certificate issued by the District Forum. However, I am unable to hold that the District Forum is not competent to entertain an Execution Petition. A plain reading of Sub-sec.(3) of Sec.25 shows that the Collector has to proceed to recover the amount on the basis of a certificate issued by the District Forum on an application made by the person entitled to the said amount. Thus an application for enforcement of a final order has to be made before the District Forum and thereupon it is for the District Forum to make the necessary enquiry and issue the certificate as contemplated under Sec.25(3) of the Act where any amount is found to be due from any person under an order made by it. Hence there is absolutely no reason to hold that an Execution petition cannot be maintained before the District Forum. Once such Execution Petition is entertained, during the pendency of the proceedings the District Forum in exercise of its inherent powers can pass appropriate orders including a prohibitory order as was made in the present case as an interim measure to protect the interest of the person who is entitled to the amount under an order made by it. Hence I do not find any substance in the contention of the petitioner that the impugned order is beyond the power and authority conferred on the District Forum under Sec.25(3) of the Act. In my considered opinion the impugned order is only an order passed as an interim measure pending the proceedings before the District Forum under Section.25(3) of the Act. Sofar as the objection raised by the petitioner with regard to territorial jurisdiction is concerned, the law is well-settled that the objection as to the territorial jurisdiction of a Court does not stand on the same footing as an objection to the competency of a Court to try a case which goes to the very root of the jurisdiction. Hence, it is for the petitioner to raise the objection with regard to territorial jurisdiction before the District Forum itself, in which event the District Forum is bound to decide that question before proceeding further. Hence, the objection that the District Forum lacks territorial jurisdiction is not a valid ground to bypass the alternative remedy of appeal provided under the Act. At any rate, as expressed above, since the impugned prohibitory order is only an interim order pending the Execution Petition it is always open to the writ petitioner who is a party to E.P.No.3 of 2007 to make an application before the District Forum itself to vacate the said prohibitory order raising all the grounds available under law including that the District Forum has no territorial jurisdiction and that the Execution Petition for cancellation of a registered document is not maintainable. For the aforesaid reasons, it is not open to the petitioner to invoke the jurisdiction of this Court under Article.226 of the Constitution of India. Accordingly without expressing any opinion on merits, I deem it appropriate to dispose of the writ petition leaving it open to the petitioner to move an application before the District Consumer Forum, Prakasam District to vacate/raise the impugned prohibitory order dated.12-04-2007. If any such application is made within a period of four(4) weeks from the date of receipt of a copy of this order, the District Consumer Forum, Prakasam District shall consider the same and pass appropriate orders in accordance with law within a period of eight(8) weeks thereafter. Till such time the stay of sale of the E.P. schedule property granted by this Court by order dated.21-06-2007 in WPMP No.15913 of 2007 shall continue. The writ petition is accordingly disposed of. No order as to costs. _____________ G.ROHINI,J 12th December ,2008 *TSNR Note:- CC in one week. (B/O) KLP LR COPY TO BE MARKED (B/o) gbs