ESTATE OFFICER vs NIRMAL CHAUDHARY

THIS revision petition has been filed against the order dated 23.5.2006 passed by the District Consumer Disputes Redressal Forum, Sonepat, wherein, it has been recorded that on 23.5.2005 on Mr. Shiv Lal, Assistant, HUDA, office, Sonepat has appeared on behalf of Estate Officer, HUDA, Sonepat and has made a statement that compliance of the order would be done and has sought adjournment for doing the same. The case was accordingly adjourned to 23.11.2005. From the impugned order, it transpires that District Forum recorded his statement and despite the time given, compliance of the order passed has not been done. Learned Counsel representing the appellant has assailed this order primarily on two grounds. Firstly, that the non-bailable warrants have illegally been issued against Mr. Shiv Lal, Assistant, HUDA, Sonepat who was representative of the Estate Officer, Sonepat and was not a party to the execution petition. He has also contended that the District Forum has issued bailable warrants against Estate Officer, without any justified ground as the Counsel representing the Estate Officer was present. He has also pointed out that though the order was announced in open Court but no date has been mentioned below the word announced in open Court and for that reasons it suffers from illegality.

WE had pertinently asked the learned Counsel for the appellant to inform us as to what transpired after the application dated 18.5.2005 was moved by the complainant, wherein he has averred that despite the direction given in the main order dated 30.3.2005 to make the compliance of the order within 30 days from the date of the order i.e., 30.3.2005, the compliance of the order has not been done by the opposite party consisting of Estate Officer, HUDA, Sonepat and Chief Administrator, HUDA, Panchkula. Accordingly, he has prayed in that application that the necessary contempt proceedings be initiated against the respondents as provided under the law to meet the ends of the justice. However, the learned Counsel for appellant has not been able to give the necessary details, but at the same time insisted that the impugned order itself shows the illegality committed by the District Forum, which deserves to be set aside. We are at loss to find out whether after the application for execution of the order dated 30.3.2005 was moved on 18.5.2005, what order was passed by the District Forum to insure the compliance of the order dated 30.3.2005? It is the duty of the appellant to inform us as to whether the District Forum, at the first instance, had issued notice to the opposite party and given time to comply with the order and what action was taken by the opposite party in answer to the notice received.

Under the circumstances, we have to go by what is recorded in the impugned order wherein it stated that despite the notice given to the opposite parties compliance of the order has not been done. Therefore, on the face of material on record we find no illegality in the impugned order passed against the concerned Estate Officer, Sonepat. Coming to the other plea raised that under the order passed it is recorded "Announced in the open Court" no date has been mentioned. Learned Counsel representing the petitioner has referred the judgment Housing Board, Haryana v. Housing Board Colony Welfare Association and Others, III (1995) CPJ 28 (SC)=I (1996) CLT 108 (SC)=AIR 1996 Supreme Court 92, wherein it was observed as under : "The facts of the above stated case is reveal that order was passed by the open Court on 22.10.1992 but it was not signed and dated as President had proceeded on leave soon after the order was passed nor a copy thereof was furnished to the appellant-Board so as to know the reasons and contents of the order. It was also the case of the appellant that on in enquiry by the Counsel for the appellant-Board he was informed by the Stenographer of the President that the order would be dictated and typed after the return of the President and the copy would be made available to the parties only on 30.10.1992 under the signature of the President and the copy was in fact made available to the Counsel for the appellant only on 3.11.1992. It may be pointed out that Mr. Tirath Singh, learned Counsel appearing for the appellant-Board before the National Commission had filed his own affidavit affirming these facts which have not been controverted by the respondents. On the contrary the reply filed in this Court by Mr. K.C. Chug, President, Housing Board Colony Welfare Association, Kurukshetra on behalf of the respondents has admitted that in the present case free copies were ready with the office on 30.10.1992 which were collected by the Counsel for the answering respondent on 30.10.1002 whereas the Counsel or the petitioner got the same on 3.11.1992. From these facts it is abundantly clear that the copies were duly signed and dated by the members of the Forum on 30.10.1992. That being so the period of limitation in view of the above discussion will commence from the date on which the copies of the order were ready and made available i.e. 30.10.1992. In the present case the appeals were filed before the State Commission on 30.11.1992 and since 29.11.1992 was Sunday, the appeals were prima facie within time.

MANIFESTLY the facts of the present case are entirely different from the facts of the above mentioned case and for that reason given no assistance to the petitioner. In this case the impugned order itself shows that President have appended his signatures and under his signature typed date is mentioned as 23.5.2006. It is not understandable as to which provisions of law or rule requires that date of pronouncement of the order must be mentioned under the words "Announced in open Court". Therefore, the reliance placed on the above mentioned case is totally misconceived and for that reason the stand taken in this regard is rejected. The learned Counsel for the appellant/petitoner has also drawn our attention to the case M/s. Bolaria Financiers (Regd.) and Another v. Babu Singh and Another, III (2001) CPJ 485=2001 (3) CON.LT page 269, wherein it was observed that "Once JD has put in appearance whether in person or through Counsel, coercive process by issuing warrant of arrest is rendered unnecessary". The relevant observation read as under: "A careful perusal of Section 27 of the C.P. Act will go to show that the District Forum or for that matter, this State Commission or even the Hon''ble National Commission can impose penalty on the defaulting persons such as trader or a person against whom a complaint is made or even the complainant. The only condition is that such trader or person or complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, the penalties provided under Section 27 of the C.P. Act are for imposing imprisonment or fine or both. Imprisonment can be for a minimum period of one month and may extend to three years. The fine shall not be less than Rs. 2,000 but may extend to Rs. 10,000. The proviso to Section 27 of the C.P. Act empowers the District Forum, State Commission or the National Commission as the case may be on its being satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount as specified in the section. It is also equally settled that such a penalty cannot be imposed unless an opportunity is afforded to such trader or person or the complainant as the case may be. In order to secure the attendance of such trader, person or the complainant, a notice of showing cause is to be issued by the District Forum and one such trader, person or the complainant has put in apperance either in person or through Counsel, coercive process need not be issued. In other words, when the purpose of issuing a show-cause notice is achieved by the presence of the parties through the Counsel, the issuance of further process by issuing warrant of arrest to secure the presence is rendered unnecessary. In the instant case, once the opposite party put in appearance through the Counsel Mr. Naresh Kumar Bansal, Advocate, the order issuing fresh warrants for 30.3.2001 cannot be legally justified and the District Forum should have recalled the said order upon the appearance of the opposite parties through the Counsel. In these facts and circumstances we allow the revision to the extent that the order under revision insofar as it relates to the issuance of fresh warrants for 30.3.2001 is set aside. The execution case is still pending before the District Forum-II for decision on merit, the parties are directed to appear before the District Forum-II, U.T. Chandigarh in the execution Case No. 124 of 2000 on 24.5.2001.

NO doubt in the above case, it is also recorded that where the opposite party put in appearance, show-cause notice can also be issued to the Counsel representing the opposite party. The reported judgment shows that the order was passed in this case on 1st May, 2001 while deciding the revision petition. Thereafter, amendments had been made in Section 27 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act of 1986), whereby it has been stated that all offences of this Act may be tried summarily by the District Forum, the State Commission, or the National Commission as the case may be. Therefore, for the purpose of taking action under Section 27 of the Act of 1986 procedure prescribed under the Code of Criminal Procedure have to be followed. Merely because the show-cause notice to be given can be served upon the Counsel representing the defaulting party would not, in a given case, bebar the District Forum to secure the presence of the defaulting party where it found that compliance of the order has not been deliberately done and his presence is needed for the adjudication of the proceedings under Section 27 of the Act, 1986. Therefore, the reported authority as such cannot come to the rescue of the petitioner. It was also pointed out by the learned Counsel for the petitioner that District Forum has issued the bailable warrants while sitting singly as would appear from the copy of the warrants dated 31.5.2006 placed on record as Annexures P7 and P8 so referred in the ground of revision petition. It is apparent the order has not been challenged in this revision petition. Moreover in this revision the challenge is to the order dated 23.5.2006 passed by the District Forum. Under the circumstances of the case, we find no merit in the revision petition as far as Estate Officer, HUDA, is concerned. With regard to the prayer made on behalf of Mr. Shiv Lal Assistant, he has not filed any revision petition against the order passed and for that reason Estate Officer, HUDA and Chief Administrator, HUDA has no locus standi to challenge that order on his behalf and on that account as well the revision petition cannot be entertained. For the aforesaid reasons, the revision petition is dismissed. Revision Petition dismissed.