HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU WRIT PETITION NO.8846 OF 2006 & WRIT PETITION NO.19211 OF 2009 Date: .11.2009 WRIT PETITION NO.8846 OF 2006 Between: M/s. Sriram Builders, rep. By its Managing Partner …..Petitioner And: National Consumer Disputes Redressal Commission, New Delhi and others …..Respondents. WRIT PETITION NO.19211 OF 2009 Between: Sri Rama Builders, rep. By its Managing Partner, Hyderabad. …..Petitioner And: A.P. Consumer Disputes Redressal Commission, rep. By its Registrar, Hyderabad and another …..Respondents. HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU WRIT PETITION NO.8846 OF 2006 & WRIT PETITION NO.19211 OF 2009 COMMON ORDER: (per Hon’ble Sri Justice Samudrala Govinda Rajulu) The petitioner in both the writ petitions is a builder running the business in partnership under the name and style of M/s. Srirama Builders. In W.P.No.8846 of 2006. The petitioner seeks writ of CERTIORARI for quashing order dated 22.2.2006 of the National Consumer Disputes Disputes Redressal Commission (1st respondent) (in short, National Commission) passed in F.A.No.435 of 2005 and passed gainst the order dated 03.09.2004 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad (2nd respondent) (in short, State Commission) inC.D.No.58 of 2002. In W.P.No.19211 of 2009, the petitioner seeks another writ of CERTIORARI for quashing the proceedings in P.P.No.35 of 2007 inC.D.No.58 of 2002 pending before the State Commission. The 3rd respondent in W.P.No.8846 of 2006 who is the 2nd respondent inW.P.No.19211 of 2009 who is Srirama Apartments Welfare Association (in short, the Association) represented by its President filed complaint in C.D.No.58 of 2002 before the State Commission against the petitioner and Uppal Kalan Municipality for direction to the petitioner to comply with deficiencies shown in the Annexure or alternately to pay Rs.15,03,892/- as compensation. The Association is represented by the owners of flats in Srirama Apartments in Street No.2 of Srinivasapuram, Ramanthpur located in Uppal Kalan Municipality. Notice of C.D.No.58 of 2002 was sent by the State Commission to the petitioner and it was returned as refused. After enquiry, the State Commission allowed the complaint by the order dated 30.09.2004 directing the petitioner to adhere to the terms and conditions of joint compromise agreement dated 13.07.2001 and secure water connection from Hyderabad Metropolitan Water Works and Sewerage Board within a period of eight weeks from the date of receipt of the said order and to pay compensation of Rs.1,60,000/- (i.e., Rs.5,000/- X 32) and costs. The complaint was dismissed against the 2nd opposite party who is Uppal Kalan Municipality. After receiving copy of the said order, the petitioner filed a petition before the State Commission under Order IX Rule 13 of the Code of Civil Procedure to set aside exparte order dated 13.09.2004. The State Commission rejected the said petition on the ground that it has no power to set aside its own order as the provisions of the Code of Civil Procedure are not applicable to it. Thereupon the petitioner filed Writ Petition No.5839 of 2005 questioning the same and the said writ petition was also dismissed by this Court on 16.09.2005 granting liberty to the petitioner to file appeal before the National Commission within four weeks. Thereupon, the petitioner filed appeal in F.A.No.435 of 2005 before the National Commission on 10.10.2005 along with an application for condonation of delay of 195 days in filing the appeal.. The National Commission by its impugned order dated 22.02.2006 dismissed the appeal in limini along with the application for condonation of delay. The 3rd respondent filed counter in W.P.No.8846 of 2006 opposing the petition. Notice of W.P.No.19211 of 2009 was given to the 2nd respondent- Association before admission. The Association opposed the said writ petition. After dismissal of appeal by the National Commission, the Association filed Penality Petition in P.P.No.35 of 2007 in C.D.No.58 of 2002 before the State Commission under Section 27 of Consumer Protection Act, 1986 for punishing the petitioner for non compliance of orders passed by the State Commission. It is contended by the counsel for the petitioners that the order passed by the State Commission is one in the nature of granting relief of enforcement of joint memo and that it is nothing but in the nature of granting relief of Specific Performance in respect of Ex.A-8 joint memo marked in C.D.No.58 of 2002. It is further contended that Ex.A-8 joint memo is not proved by the 3rd respondent before the State Commission. It is further contended that even Civil Court cannot grant the relief which was granted by the Forum in view of exception contained in Section 14 of the Specific Relief Act. It is further contended that the 3rd respondent prayed for rectification of deficiencies in service mentioned in the annexure appended to the complaint before the State Commission and the 3rd respondent did not pray for relief in respect of Ex.A-8 joint memo dated 13.07.2001 and that the State Commission should not have granted relief over and above the prayer contained in the complaint and that the relief granted by the State Commission is out side the scope of prayer contained in the complaint. It is argued that there are self contradictions between contents of memo appended to the complaint and Ex.A-8 joint memo and that the 3rd respondent is blowing hot and cold and that order passed by the State Commission which was confirmed by the National Commission is perfunctory and it was passed without application of mind and that there is error apparent on face of the order and that therefore, this Court in exercise of powers under Section 226 of the Constitution of India can interfere and quash the said order. The petitioner further contends that the relief granted by the State Commission is barred by limitation having regard to provisions of Section 24A of the Consumer Protection Act. On the other hand, the 3rd respondent's counsel contended that relief granted by the State Commission though based on Ex.A-8 joint memo, is covered by prayer in the complaint and that deficiency in service is a continuous cause of action and in that view of the matter, the complaint before the State Commission is not barred by limitation. There is no dispute that the petitioner constructed 32 residential flats in 4 floors (ground and 3 floors) in 783 sq. yards of site in Plot No.14-20/1 in S.No.203 and 204 of Ramanthapur, Hayathnagar Mandal and sold those 32 flats to different persons. All those purchasers of flats from the petitioner formed themselves into Welfare Association in the name of the 3rd respondent. According to the 3rd respondent, the petitioner is guilty of deficiency in service in respect of 1 to 21 items mentioned in the Annexure appended to the complaint. Alleging that the petitioner did not carry out necessary works as per agreement between the petitioner and the purchasers, the 3rd respondent association lodged a complaint with Uppal Kalan Municipality against the petitioner in respect of the petitioner’s deficiencies and also un-authorised constructions intended to be made by the petitioner. According to the 3rd respondent, authorities of Uppal Kalan Municipality convened a meeting between the 3rd respondent and the petitioner on 13.07.2001 wherein all points in issue were discussed and a joint compromise memo was signed by the flat owners who have attended the meeting and the petitioner-builder as per Ex.A-8 dated 13.07.2001. It is on the basis of this joint memo Ex.A-8, the State Commission granted relief. The petitioner became exparte before the State Commission and did not deny the joint memo. Ex.A-8 joint memo was proved by the 3rd respondent before the State Commission by filing affidavit in support thereof as per procedure adopted during enquiry in District Fora as well as the State Commission provided by Section 13 (4) (iii) of the Consumer Protection Act. Direction of the State Commission with regard to providing water connection to the complex is based on clause-(5) of Ex.A-8 which reads as follows: “Regarding the water connection/donation, both builder and flat owners have agreed to share 50/50 ratio. The amount will be deposited with municipality to regularise the connection within one month from the date of this meeting. The builder has also agreed to withdraw the W.P. filed in respect of water connection against the municipality.” It is not correct to contend that relief granted by the State Commission is not permissible under the Consumer Protection Act as it is in the nature of Specific Performance of Ex.A-8 joint memo. Deficiency in service arises only when any contract involving service is violated by one of the parties thereto. It is only when one of the parties to the contract is aggrieved by action or in action of the other party in performing the contract, the question of deficiency in service arises. The Consumer Protection Act and various authorities under the Act (i.e.,) District Forum, State Commission and National Commission are expected to give directions to the erring party to the contract for rectification of deficiencies in service arising out of breach of the contract which involves performance of service by one party to the other. Therefore, direction given by the State Commission in this case to the builder for providing water connection to the complex constructed by the builder as per contract between the parties as well as joint memo Ex.A-8 is well within jurisdiction of the State Commission. Section 14 of the Specific Relief Act gives list of four contracts which cannot be specifically enforced. They are:- a. a contract for the non-performance of which compensation is an adequate relief; b. a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; c. a contract which is in its nature determinable; d. a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. Providing water connection to the apartments located in the complex constructed by the builder does not fall within any of the above four exceptions contained in Section 14 of the Specific Relief Act. There is no dispute that all 32 flat owners have paid to the builder 50% of expenses for obtaining water connection as well as donation. Therefore, it is for the builder to obtain water connection to the complex from Hyderabad Metropolitan Water Works and Sewerage Board. Failure to provide metro water connection to the complex is a grave deficiency in service. Without metro water connection, life of 32 families living in the complex becomes miserable. It is not correct to contend that relief of providing water connection granted by the State Commission is outside the scope of prayer contained in the complaint of the 3rd respondent Association. In the complaint, the 3rd respondent prayed for compliance by the petitioner of deficiencies shown in Annexure to the complaint. Item 14 of the Annexure giving details of deficiencies to be attended by the builder reads as follows: “Due to lack of proper Municipal water supply, flat owners collected water from outside with great difficulty.” Relief granted by the State Commission is well within the scope of the above deficiency No.14 pointed out by the 3rd respondent in the complaint before the State Commission. Therefore, there is no grant of relief by the State Commission over and above the relief prayed for by the 3rd respondent- Association in the complaint. There is absolutely no blowing of hot and cold or self contradiction by the 3rd respondent between Annexure attached to the complaint and Ex.A-8 joint memo, particularly in so far as the relief granted by the State Commission is concerned. As can be seen from copy of the complaint filed by the 3rd respondent before the State Commission, it was presented on 22.4.2002. Ex.A-8 joint memo of both the parties is dated 13.07.2001. It is not as if Ex.A-8 joint memo is introduced for the first time during enquiry before the State Commission without any basis in the complaint. There is not only reference to Ex.A-8 joint memo in the complaint, but also enumeration of circumstances leading to entering of the said joint memo by the parties in Chamber of Uppal Kalan Municipality Commissioner. Further, para 16 of the complaint gives cause of action for the complaint and it reads that the complaint is based also on joint memo dated 13.7.2001. Ex.A-8 is filed before the State Commission along with the complaint itself. It is contended that sale deeds were obtained by the respective flat owners in the year 1999 and that therefore the complaint filed more than two years thereafter is barred by limitation. It is further contended that even if the petitioner remained exparte before the State Commission and did not raise plea of limitation, it is legal duty of the State Commission under Section 3 of the Limitation Act to go into the question and satisfy itself that the complaint was filed within limit. Section 24A of the Consumer Protection Act, 1986 prohibits admitting of complaint unless it is filed within two years from the date on which cause of action has arisen. It may be noted that at no point of time the petitioner refused to obtain metro water connection to the complex. But, the petitioner was simply not obtaining the same by indulging in filing one writ petition or the other with regard to regularisation of pent house and other unauthorised portion of construction in the complex. Finally the petitioner kept the contract of providing metro water connection in writing in Ex.A-8 joint memo on 13.07.2001. Even thereafter, the petitioner was taking no steps to provide metro water connection to the complex. Therefore, the 3rd respondent association as chosen to file the present complaint before the Sate Commission on 22.04.2002, which is well within the period of limitation of two years from the date of cause of action, as contemplated under Section 24A of the Consumer Protection Act, 1986. Considering entire gamut of dispute between the parties on merits, the National Commission has rightly dismissed the appeal in limini along with the application for condonation of delay, because there are no merits in the appeal to be filed by the petitioner against order passed by the State Commission. There is absolutely no error much less error apparent on face of record either in order passed by the State Commission in C.D.No.58 of 2002 or order passed by the National Commission in F.A.No.435 of 2005. There is no dispute that the 3rd respondent Association is a registered society bearing No.703/2000 of Registrar of Societies, Hyderabad. By filing letter dated 30.10.2009 addressed by the Registrar of Societies to the petitioner in reply to his query, it is contended by the petitioner’s counsel in W.P.No.19211 of 2009 that the Association did not file Annual list of the society and also did not file list of members and audit reports of the society before the Registrar of Societies. It is an irrelevant factor in this writ petition. It is not the petitioner’s case that the Registrar of Societies cancelled registration of the 3rd respondent as a registered society. If any annual list or audit report or list of members is not filed by the 3rd respondent, it is a matter between the 3rd respondent and the Registrar of Societies and the petitioner has nothing to do with it and it cannot be a ground of attack in this writ petition as well as in the Penality Petition or Punishment petition pending before the State Commission. The petitioner contends that the State Commission should have followed the procedure under Sections 200 and 204 of the Code of Criminal Procedure while entertaining P.P.No.35 of 2007. It is also contended that the said P.P is barred by limitation in view of rule 14 of the Consumer Protection Rules. The petitioner should have urged these aspects before the State Commission where P.P. is pending. Even though the State Commission has got powers of issuing arrest warrants and committing the non- complying persons to prison like a Magistrate, the State Commission need not follow Sections 200 and 204 of the Code of Criminal Procedure while entertaining P.P and issuing non-bailable warrants against the petitioner. P.P. is not a private complaint. It is only a petition filed for disobedience of orders issued by the State Commission. Secondly, order of the State Commission in CD No.58 of 2002 is merged in order passed by the National Commission in FA No.435 of 2002. Therefore, period of limitation, if any has to be computed from the date of order of the State Commission. In any event, Section 468 of the Code of Criminal Procedure is not applicable to the petitions filed before the State Commission or the District Forum because the opposite party/petitioner did not commit an offence and because P.P. is no private complaint by a private party or a charge sheet/final report filed by the police. The petitioner has got remedy by way of appeal under Section 27A of the Act before the National Commission, New Delhi, in case any order is passed by the State Commission against him under Section 27 of the Consumer Protection Act, 1986. As against any order passed by the National Commission, the petitioner has got further remedy to approach the Supreme Court of India by way of Special Leave Petition. Thus, there are equally efficacious alternative remedies available for the petitioner. In that view of the matter the petitioner cannot invoke jurisdiction of this Court under Section 226 of the Constitution of India. Thus, viewed from any angle, both the Writ Petitions lack merits. In the result, both the writ petitions are dismissed. ____________________ A. GOPAL REDDY,J ____________________________________ SAMUDRALA GOVINDA RAJULU,J. Date: .11.2009. Gk. HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU WRIT PETITION NO.8846 OF 2006 & WRIT PETITION NO.19211 OF 2009 COMMON ORDER (per Hon’ble Sri Justice Samudrala Govinda Rajulu) Date: .11.2009 Gk.