Kamlesh Aggarwal vs Narain Singh Dabbas & Anr

The brief facts of the case are stated as under :-

The appellant filed a Complaint No. 24 of 1998 before the District Consumer Disputes Redressal Forum, Ghaziabad (for short "the District Forum") against Navchetna Sahkari Awas Samiti Ltd.-the respondent in the original complaint, for not allotting and registering plot No. 114, Village Khoda, Ghaziabad in her name as the Awas Samiti, in a resolution passed by it, cancelled the membership of the appellant from the Navchetna Sahkari Awas Samiti Ltd. in default of payment by her.

The District Forum vide its order dated 17.10.2003 after conducting an enquiry as provided under the provisions of the Act, accepted the complaint of the appellant and directed the Navchetna Sahkari Awas Samiti Ltd. to allot the said plot in favour of the appellant and also to register the same in her favour within 3 months from the date of the order. Since, there was non compliance of the order dated 17.10.2003, the appellant filed Execution Petition before the District Forum to execute the order and requested it to punish the respondents under Sections 25 and 27 of the Act. In the said case one Gulab Singh (the alleged subsequent allottee of the plot in question) filed an application in the above proceedings for impleadment before the District Forum as he was in the possession of the plot in question, which was allotted by the respondents and a Civil Suit No. 1510 of 2005 filed by him was pending in the Civil Court. The District Forum vide its order dated 13.9.2006 held that the order dated 17.10.2003 is null and void. It was further held by the District Forum that the appellant should approach the Civil Court and only after the rejection of the suit of Gulab Singh in the Civil Court the execution proceedings will be heard by the District Forum and pass appropriate order and rejected the application of impleadment of Gulab Singh.

Being aggrieved by the order dated 13.9.2006 of the District Forum, the appellant filed Appeal No. 2636 of 2006 before the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short "the State Commission"). The State Commission has passed an order dated 7.9.2007 holding that it was not open for the District Forum to review the same matter on merits at the instance of the impleading applicant and declare its earlier decree as null and void. Thus, the State Commission allowed the appeal of the appellant and directed the District Forum to proceed afresh with the execution proceedings.

The said order dated 7.9.2007 of the State Commission was not challenged by the respondents, but Gulab Singh filed Revision Petition No. 4069 of 2007 before the National Consumer Disputes Redressal Commission, New Delhi (for short "the National Commission") against the said order. The National Commission, having found either no illegality or material irregularity in the order dated 7.9.2007 passed by the State Commission, dismissed the Revision Petition of Gulab Singh on 12.8.2008 by observing that the State Commission was fully justified in allowing the appeal filed by the appellant and setting aside the order dated 13.9.2006 passed by the District Forum.

The respondents filed review application before the District Forum in Execution Case No. 96 of 2010 for review of order dated 29.5.2010. The District Forum vide its order dated 26.11.2010 dismissed the review application and found the respondents guilty for non-compliance of order dated 17.10.2003 passed in Complaint Case No. 24 of 1998 and ordered for three months imprisonment of the respondents along with penalty amount of Rs.3000/- payable by them under provisions of Section 27 of the Act. Being aggrieved by the abovesaid order, the respondents filed Appeal Nos. 2082 and 2083 of 2010 before the State Commission which were allowed by its order dated 30.7.2013 by setting aside the order dated 26.11.2010 of the District Forum. The State Commission observed that the District Forum has not adopted the procedure of summary trial at the time of passing the order of conviction and sentence imposed upon the respondents as provided under the Criminal Procedure Code, 1973, for non-compliance of order dated 17.10.2003. The State Commission also observed in its order that at no point of time the respondents were afforded an opportunity of being heard against the disobedience of the order dated 17.10.2003 of the District Forum, which is mandatory as per provisions of sub-clause (3) of Section 27 of the Act and it has to try them by following the summary procedure by the District Forum empowered as Judicial Magistrate of the First Class for the purpose of Code of Criminal Procedure. Thus, the State Commission has allowed the appeal of the respondents and set aside the conviction and sentence order passed against them.

We have heard both the learned counsel on behalf of the parties. In the facts and circumstances of the case, we are of the view that the State Commission should have remanded the matter to District Forum after setting aside its order dated 26.11.2010 with a direction to proceed with the matter in accordance with the procedure contemplated under the Code of Criminal Procedure referred to supra for taking penal action against the respondents who are the concerned officers of Navchetna Sahkari Awas Samiti Ltd. for non-compliance of the order. The National Commission has rightly declined to exercise the power under Section 21 of the Act to set aside the order dated 30.7.2013 of the State Commission as no second appeal is provided against the order of the State Commission in view of sub-Section 2 of Section 27A of the Act, which states as under :-

With the aforesaid observation and direction to the District Forum and liberty to the appellant, we allow these appeals to the above said extent. No costs.