Allahabad Development Authority ... vs District Consumer Protection ...

on 28 September, 2005

Allahabad High Court

Allahabad Development Authority ... vs District Consumer Protection ... on 28 September, 2005
Equivalent citations: AIR 2006 All 71
Author: R Agrawal
Bench: R Agrawal, M Chaudhary
JUDGMENT R.K. Agrawal, J.

1. By means of the present writ petition filed under Article 226 of the Constitution of India, the
petitioners, Allahabad Development Authority, Allahabad through its Vice Chairman and Sri R.K.
Singh, Secretary, Alllahabad Development Authority, Allahabad, seek the following reliefs:-

(a) to issue a writ, order or direction in the nature of certiorari calling for record of the case and
quashing the impugned order of respondent No. l dated 7.10.96 (Annexure - 4) and 3.3.97
(Annexure -5);

(b) to issue a writ of mandamus commanding the respondents not to enforce the impugned order of
respondent No. l dated 7.10.96 (Annexure -4) and 3.3.97 (Annexure-5) against the petitioner on any
ground and in any manner whatsoever;

(c) to issue an interim mandamus staying operation of the impugned order of respondent No. 1
dated 7.10.96 (Annexure -4) and 3.3.97 (Annexure-5) besides further proceedings of case No. 1187
of 1996 in re: Ashok Kumar Gupta v. Secretary, Allahabad Development Authority, Allahabad and
Ors.;

(d) to issue any other writ, on! or direction which this Hon'ble Court may deem fit and proper in the
peculiar circumstances of the case; and

(e) to award the costs 01 the petition to the petitioner.

2. Briefly stated, the facts giving rise to the present petition are as follows:-

The petitioner No. l, Allahabad Development Authority, Allahabad (hereinafter referred to as "the
Development Authority") is an authority constituted by the Government of Uttar Pradesh under the
provisions of the U.P. Urban Planning and Development Act, 1973. It had constructed certain flats
under Sringverpuram Scheme at Allahabad. Vide order dated 8.9.1992, it had allotted Flat No. D-52
to Sri Ashok Kumar Gupta, respondent No. 2. The respondent No. 2 had deposited a sum of Rs.
6.520/- towards registration and thereafter deposited three installments of Rs. 35,325/- on
31.10.1992, 29.4.1993 and 5.11.1993. respectively and some other amount, totaling Rs. 1.18.995/-.
According, to the respondent No. 2, after the deposit of amount, referred to above, he went to the
site where he found that no activity of any construction is going on. He met the authorities but they
could not give any satisfactory reply. The respondent No. 2 thereafter filed an application before the
District Forum, Allahabad, which was registered as Case No. 1187 of 1995. The respondent No. 2
sought refund of Rs. 1,18,995/- deposited by him along with interest @ 18% and compensation of
Rs. 25,000/- for mental torture and harassment meted out to him for the last three years. Notices

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 Allahabad Development Authority ... vs District Consumer Protection ... on 28 September, 2005

were issued by the District Forum and after considering the reply submitted by the Development
Authority... i.e. District Forum, vide order dated 7.10.1996, directed the Development Authority to
refund the amount of Rs. 1,18,995/- alongwith interest @ 15% per annum with yearly rests and costs
of Rs. 2000/-, within two months tailing which the rate of interest would be 18%. According to the
petitioners, as stated by their counsel, Sri B.B. Paul, before the Court, they have preferred an appeal
against the aforementioned order before the State Commission at Lucknow. However, the State
Commission has not passed any interim order either staying the operation of the impugned order
dated 7.10.1996 or granting any other protection. As the order dated 7.10.1996 was not complied will
by the petitioners, the respondent No. 2 filed an application before the District Forum on 21.12.1996
for taking proceeding under Section 27 of the Consumer Protection Act, 1986 (hereinafter referred
to as "the Act") against the Development Authority and its officers for not complying with the order
dated 7.10.1996. It appears that the District Forum heard the matter ex parte on 1.2.1997. Thereafter
on 3.2.1997 an application was made on behalf of the Secretary of the Development Authority
seeking ten days' time for filing the reply. For reasons best known the Secretary of the Development
Authority did not file any reply or objections whereupon the District Forum vide order dated
3.3.1997 imposed a fine of Rs. 5,000/- and sentenced the Secretary, i.e., the petitioner No. 2, for
three months' imprisonment.

3. We have heard Sri B.B. Paul, learned counsel appearing for the petitioners. No body has appeared
on behalf of the respondent No. 2.

4. Sri B.B. Paul, learned counsel, made the following submissions :-

(i) if an appeal has been filed against the order passed by the District Forum, the said order does not
attain finality in view of the provisions of Section 24 of the Act and, therefore, the order cannot be
got executed. According to him, the legislative intent of the Parliament while enacting Section 24 in
the Act, is absolutely clear and does not involve any two interpretations;

(ii) Sri Paul submitted that, in view of the provisions of Section 25 of the Act, the District Forum
becomes functus officio and has no power to execute its orders. It can issue a certificate for the
amount to the Collector of the district, who shall proceed to recover the amount in the same manner
as arrears of land revenue. According to him, the District Forum has no jurisdiction to entertain the
application dated 21.12.1996 filed by the respondent No. 2 for initiating proceedings under Section
27 of the Act; and

(iii) lastly, he submitted that under Section 27 of the Act has empowered the authorities mentioned
therein to punish a person who fails or omits to com with any order made by it with imprisonment
which necessarily makes it a quasi-criminal proceed and, therefore, the principle of natural justice
do require that the person concerned should have been given an opportunity of hearing before being
punished with imprisonment or with fine or with both. According to him, in the present case, no
opportunity was given to the petitioners by the District Forum and, therefore, the order dated
3.3.1997 is liable to be set aside. In support of his aforesaid plea, he has relied upon an unreported
decision of a learned Single Judge of this Court in the case of Allahabad Development Authority,
Allahabad v. District Consumer Forum, Allahabad and Ors. (Civil Misc. Writ Petition No. 38316 of

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 Allahabad Development Authority ... vs District Consumer Protection ... on 28 September, 2005

1996, decided on 30.1 1.1996).

5. Having given our, anxious consideration to the various pleas raised by the learned counsel for the
petitioners, we are of the considered opinion that even though under Section 24 of the Act it has
been provided that an order passed by the District Forum would be final if no appeal has been
preferred against such an order under the provisions of the Act, it does not imply that if an appeal
has been preferred against the order passed by the District Forum, the order of the District Forum
cannot be executed or action cannot be taken for its violation or non-compliance. For ready
reference, Section 24 of the Act is reproduced below:-

24. Finality of orders.- Every order of a District Forum, the State Commission or the National
Commission shall, if no appeal has been preferred against such order under the provisions of this
Act, be final.

6. It is well settled that mere preferring of an appeal would not operate as stay of an order appealed
against. The Apex Court in the case of Atma Ram Properties (P) Ltd. v. Federal motors (P) Ltd. , has
held as follows:-

8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order
appealed against nor on the proceedings in the court below. A prayer for the grant of stay of
proceedings or on the execution of decree order appealed against has to be specifically made to the
appellate court and the appellate court has discretion to grant an order of stay or to refuse the same.
The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of
the appellant on the availability of which the appellate court would be inclined to pass an order of
stay. Experience shows that the principal consideration which prevails with the appellate court is
that in spite of the appeal having been entertained for hearing by the appellate court, the appellant
may not be deprived of the fruits of his success in the event of the appeal being allowed. This
consideration is pitted and weighed against the order paramount consideration : why should a party
having succeeded from the court below be deprived of the fruits of the decree or order in his hands
merely because the defeated party has chosen to invoke the Jurisdiction of a superior forum. Still
the question which the court dealing with a prayer for the grant of stay asks itself is: why the status
quo prevailing on the date of the decree and/or the date of making of the application for stay be now
allowed to continue by granting stay, and not the question why the stay should be granted.

(underlined by us)

7. Even in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association the
Apex Court has held that wherein operation of the order has been stayed by the Court it only means
that such order would not be operative from the date of its passing. It would not mean that the order
stayed had been wiped out from existence and the order of stay granted pending disposal of a case
comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in
such cases to put the parties in the same position they would have been but for the interim orders of
the Court.

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 Allahabad Development Authority ... vs District Consumer Protection ... on 28 September, 2005

8. Thus, in view of the authoritative pronouncement of the Apex Court, referred to above, the first
plea of Sri Paul that as the appeal has been preferred before the State Commission against the order
dated 7.10.1996 passed by the District Forum, no action for its non-compliance or violation can be
taken by the District Forum, has no merit and is hereby rejected.

9. So far as the second plea of Sri Paul regarding the District Forum having become functus officio
and has no power to execute the same is concerned, we find that under Sub-section (1) of Section 25
of the Act various forums, namely, the District Forum, the State Commission and the National
Commission, have been empowered to attach the property of the person not complying with an
interim order made under the Act. Under Sub-section (2) of Section 25 of the Act, the attachment
made under Sub-section (1) is to remain in force for a period of not more than three months at the
end of which if the non-compliance continues, the property attached can be sold and the proceeds
have to be appropriated towards the damages which may be awarded and the balance to be refunded
to the party entitled thereto. However, under Sub-section (3) of Section 25 of the Act, if any amount
is due from any person under an order by the authorities mentioned therein, then upon an
application being made to the authority concerned, such authority can issue a certificate for the
amount due to the Collector of the district and the Collector has to recover the amount in the same
manner as arrears of land revenue. From a reading of Section 25 of the Act it is absolutely clear that
the application for getting r c order executed, whether it is an interim order or a final order, either
by the District Forum, the State Commission or the National Commission, the application has to be
made before that authority and after a certificate is drawn by the said authority and sent to the
Collector of the district, recovery has to be made by the Collector as arrears of land revenue.
Therefore, the power of an executing Court does lie with that District Forum, the State Commission
or the National Commission, as the ease may be, under the Act. It may not be out of place to
mention here that even otherwise the District Forum, the State Commission or the National
Commission can exercise its power under Section 27 of the Act even where recourse to proceeding
under Section 25 of the Act have net been taken. The plea that the District Forum has become
functus officio after passing of the order dated 7.10.1996 is not correct and cannot be accepted.

10. So far as the plea regarding opportunity of hearing to be given by the District Forum while
proceeding under Section 27 of the Act is concerned, it may be mentioned here that there can be no
two opinion on this issue. Awarding punishment with imprisonment for any term and imposing fine
is an exercise in the nature of a quasi-criminal proceeding and, therefore, the authority is bound by
the principle of equity, fair play and natural justice. The decision dated 30.11.1996 in the case of
Allahabad Development Authority (supra) has also taken the similar view. However, on facts, we
find that the District Forum, while proceeding under Section 27 of the Act, had issued notice to the
petitioner No. 2 and an application was also made by the said person on 3.2.) 997 as per the recital
made by the District Forum in its order dated 3.3.1997, seeking ten days' time for filing the reply. If
the petitioner 2 had chosen not to file any reply or to contest the matter before the District Forum,
he alone is liable to be blamed. The District Forum had observed and fully complied with the
principle of natural, justice.

11. It is not the case of the petitioners that the recital made by the District Forum in its order dated
3.3.1997 to the following effect -

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 Allahabad Development Authority ... vs District Consumer Protection ... on 28 September, 2005

After the matter was ex parte heard on 1.2.1997, on 3.2.1997 the respondent had made an
application seeking ten days time for filing the reply but till 1.3.1997 no reply has been filed.

(translated by us in English) is wrong or incorrect as there is no averment to this effect in the writ
petition. The Court has to go by the recitals made in the order unless it is corrected by the same
authority upon an application being made by the aggrieved person or otherwise, as held by the Apex
Court in the case of State of Maharashtra v. R.S. Nayak .

12. The aforesaid decision has been followed by the Apex Court in the case of Commissioner of
Endowments and Ors. v. Vittal Rao and Ors. and in the case of Commissioner of Customs, Mumbai
v. Bureau Veritas and Ors. . In the case of Bureau Veritas (supra), the Apex Court in paragraph 14
has held as follows:-

14. After having agreed on some point as recorded, it is Not open to the appellant to turn around or
take a plea that the position is different. If really there was no agreement, the only course open to
the appellant was to move the Tribunal in line with what has been said in State of Maharashtra v.
Ramdas Shrinivas Nayak . In a recent decision Bhavnagar University v. Palitana Mill (P) Ltd. , the
view in the said case was reiterated by observing that statements of fact as to what transpired at the
hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can
contradict such statements by affidavit or I a party thinks that the happenings in court have been
wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the
minds of the judges, to call the attention of the very judges who have made the record. That is the
only way to have the record corrected. If no such step is taken, the matter must necessarily end
there. It is not open to the appellant to contend before this Court to the contrary.

13. Thus, we have proceeded on the basis of the recitals given by the District Forum in the order
dated 3.3.1997 that time was granted to the present petitioner on 3.2.1997 for filing objections, but
no objection/reply was filed.

14. No other point has been pressed.

15. In view of the foregoing discussions, we do not find any substance in the arguments raised by Sri
B.B. Paul.

16. In the result, the writ petition fails and is dismissed. However, on the facts and circumstances of
the case, there shall be no order as to costs.

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