Jan Jagran Samiti vs Vimla Devi & Ors

The petitioner and the appellant Jan Jagran Samiti filed a complaint before the District Consumer Disputes Redressal Forum, Kanpur City, (in short 'the District Forum') alleging deficiency in service on the part of Kanpur Development Authority (in short KDA) that KDA was not regularising the possession and ownership of the complainant over plot No.57 A which was under possession of the complainant for a long time and the complainant had also made certain construction over the plot. The complaint was resisted by the KDA by filing the written statement on the ground that there was no such plot with No.57A and it was the land of public utility and cannot be allotted to the complainant. The District Forum reserved the case for order after hearing the parties. On 16.12.2003 Vimla Devi and Dulli Chand who are the plot owners of the plots 181 and 183 moved applications before the District Forum for impleadment in the case and to postpone the final decision and the same should be pronounced only after hearing them. It was alleged in these applications that the said plot 57A has been illegally occupied by the complainant and illegal construction has been raised over the plot. The said plot is the common public land which is being used as way to the plots of the applicants. The District Forum ordered that the applications be taken up on 18.12.2003. Against this order of the District Forum, the applicants preferred revision petition No.221 of 2003 before the State Commission and the State Commission vide its order dated 22.12.2003 admitted the revision petition and listed the matter for 19.1.2004. However, the District Forum took up the matter on 18.12.2003 and rejected the application for impleadment of the applicants and also passed the final order in the complaint case as under:-

"The consumer case of the complainant is allowed. The defendant is directed to complete the regularization process of the disputed premises No.57 A burra-5 area 161.04 sq.mits.33mts long in East-West and 5.33. Mts wide on north and south bounded by road on east-south and north House No.MIG 81 on Half of east House No.83 Burra-7 on the West keeping in view of all facts detailed in this judgment within three months without demolishing the premises and inform the complainant society. The parties shall bear their own costs."

Aggrieved by the order of the District Forum, the applicant Vimla Devi and the KDA both preferred separate appeals before the State Commission. The State Commission proceeded with these two appeals and the revision petition earlier filed by the impleadment seekers clubbing them together. During the pendency of these cases, the State Commission finally stayed the order of the District Forum vide its order dated 19.01.2004 and the applicability of this order was extended from time to time on every further date.

Though there was a stay operating against the order passed by the District Forum, the KDA executed sale deed in favour of the original complainant in compliance of the order of the District Forum on 22nd October, 2004. KDA also moved an application for withdrawal of their appeal. The appellant Vimla Devi moved an application under Section 27 of the Consumer Protection Act, 1986 for violating the order dated 19.1.2004 passed by the State Commission staying the operation of the order of the District Forum. The State Commission after hearing all the parties decided all the cases by a common order dated 22.02.2008 as under:-

"In view of the above findings, we order that the regularization of rank trespassers on green belt and against the sanctioned lay out plan as pleaded by KDA itself in appeal preferred by it, is highly illegal and against the public policy. The regularization by KDA is cancelled herewith and in furtherance of this unauthorized, illegal and void regularization whatever action has been taken by the parties that shall be undone. The law does not give any right to KDA to regularize this trespass on green belt and against the plan. We also order KDA that after removal of the encroachment they should formally formulate and implement a proper plan under the law for the use of this land which may not be against the public policy.

We also order that Sri Prem Shanker Shukla be arrested forthwith and sent to District Jail to serve out the sentence of six months simple imprisonment. A warrant be issued to the SSP, Kanpur for compliance of the order of the Commission. The present Vice Chairman, KDA is directed to inform the names of the Officers who are liable for disobeying the order dated 19.1.2004 of the Commission.

Notices be sent to Sri Anil Kumar, the then Vice Chairman and Sri L C Maurya, Joint Secretary, KDA to appear before the Commission in person or through counsel on 24.3.2008.

The office will put up this file on 24.3.2008 after issuing process as directed in this judgment and order. The copies of this judgment and order be sent to Govt. of U.P. in Housing and Urban Planning Department and Vice Chairman of KDA for necessary action.

Accordingly the appeals and Revision under Consumer Protection Act are disposed off. The application u/s 27 of the Consumer Protection Act against Sri Prem Shanker Shukla is disposed of as above but against others the file will be put up on 24.3.2008."

Aggrieved by the above order of the State Commission, the revision petition No.1354 of 2008 has been filed in respect of the order of the State Commission for cancelling the sale deed in favour of the original complainant and appeal No.157 of 2008 has been filed against the order of the State Commission ordering imprisonment to the original complainant under Section 27 of the Consumer Protection Act, 1986.

Heard the learned counsel for the parties and perused the record.

REVISION PETITION NO.1354 OF 2008

The learned counsel for the petitioner stated that the plot in question is in petitioner's possession for a long time and he has constructed temple over this land with the consent of local persons and later on Jan Jagran Samiti has been formed for the maintenance and upkeep of the disputed premises. As per the policy of the KDA and in response to the advertisement made by the KDA wherein the KDA asked the proposals for regularization of possession over such plots, the complainant applied for the same and deposited Rs.2000/- as required in the year 1991. The complainant continuously pursued with the KDA for allotment of the said plot in favour of the complainant by regularising the possession over the said plot but KDA did not pass any order in favour of the complainant. The complainant was constrained to file a consumer complaint before the District Forum and District Forum vide its order dated 18.12.2003 allowed the complaint and ordered the KDA to regularise the plot No.57 A in favour of the complainant within a period of 3 months. The District Forum also passed an order on 19.12.2003 for keeping status quo over the land by staying the order of demolition of the KDA. It was further argued by the learned counsel for the petitioner that the respondents No.1 & 2 who had filed the application before the District Forum for impleadment have no connection with the said land and they are enjoying their allotted plots being No.181 and 183. The land belongs to Kanpur Development Authority and they have executed the sale deed in favour of the complainant and they also filed an application before the State Commission to withdraw their appeal filed by them against the order of the District Forum. The allotment of the said plot 57A is as per the policy of the KDA and the KDA has now agreed to regularise the possession of the complainant over the plot and the sale deed executed by the KDA is in accordance with law and in accordance with the policy of the Development Authority. The State Commission did not have any authority to cancel the regularisation and the sale deed executed by the KDA. Otherwise also, the power to cancel sale deed rests with the civil court and not with a consumer forum. From this aspect also, the order of the State Commission is totally illegal and without jurisdiction.

The learned counsel for the petitioner further stated that the respondents have taken a ground that the petitioner was not a consumer when the complaint was filed whereas the fact is that the petitioner had deposited Rs.2,000/- in 1991 in response to the notice/advertisement issued by the KDA for regularisation of such cases. Once a consideration has been paid for any service, the person paying consideration becomes a consumer of that service provider and accordingly the petitioner is a consumer of the KDA.

On the other hand, the learned counsel for the respondents No.1 & 2 stated that it is clearly mentioned in the written statement of KDA that no plot with No.57A exists in the plan and there was no proposal to allot this plot to any of the parties. There was illegal occupation by the complainant and therefore, KDA had started the demolition proceedings against the complainant. The District Forum illegally ordered stay on this proceeding on 19.12.2003 after passing the final order dated 18.12.2003 in the complaint case filed by the complainant. The State Commission has clearly observed that the order passed by the District Forum is malafide in nature and illegal in its content. The plot in question is a public land and respondent Nos.1 & 2 have easementary rights over this land and this land cannot be allotted to the petitioner. The petitioner has political connections and he has influenced the Kanpur Development Authority to execute sale deed in favour of the complainant in spite of the stay having been granted by the State Commission, that is why, State Commission has passed order for cancellation of the sale deed executed by the KDA in favour of the petitioner. The State Commission has also expressed surprise over the move of the KDA for not pressing the appeal filed against the order of the District Forum. The respondents were not given any opportunity to put forward their objections before the District Forum and the District Forum in an hurried manner passed the final order in the complaint case without hearing the respondents. It was further argued by the learned counsel that the complainant is not a consumer within the definition of consumer as given in the Consumer Protection Act, 1986. It was argued that the petitioner was not an allottee of the said property when the complaint was filed and therefore, the petitioner was not a consumer when the complaint was filed before the District Forum. Even if the case of the petitioner is believed that he deposited Rs.2000/- for regularisation of his adverse possession over the plot under the policy of the KDA, then he was entitled to bring a suit for specific performance before a Civil Court as complaint cannot be filed before a consumer forum for specific performance. Hence, the complaint itself was not maintainable before the District Forum and his complaint should have been dismissed. As the damage has already been done by illegal execution of the sale deed by the KDA in favour of the petitioner, State Commission has done the right thing to cancel the sale deed executed in favour of the complainant. The order of the State Commission is perfectly in accordance with law and it is required to be maintained.

The learned counsel for respondent No.3 KDA stated that the site plan of the disputed plot and the public notice issued by the KDA do not help the petitioner in any way and do not confer any right on the petitioner.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the record.

It is seen from the record that the complainant Jan Jagran Samiti is registered under the Societies Registration Act 1860 on 27.4.2002. The complainant has claimed that he is consumer because he has paid an amount of Rs.2,000/- in the year 1991 for regularisation of his adverse possession over the disputed plot. Thus, it is clear that the complainant Samiti did not deposit any amount with the KDA for regularisation of the disputed plot. The amount must have been deposited by the individual Mr. Prabhunath Shukla who later on became the General Secretary of Jan Jagran Samiti registered on 27.4.2002. Clearly, so far as the complainant Jan Jagran Samiti is concerned, it has not deposited any amount with the KDA before filing of the complaint and therefore, it cannot be claimed by the complainant Samiti that some part of the consideration has been paid to the KDA and therefore, complainant is a consumer of the KDA. Moreover, the KDA in its reply has clearly stated that plot No.57A does not exist as per the plan and the disputed plot is public land which cannot be allotted to anybody. In fact, the KDA was about to demolish the construction of the complainant over the disputed plot, however, the District Forum vide its order dated 19.12.2003 ordered for maintaining status quo till compliance of the order dated 18.12.2003 passed by the District Forum in the consumer complaint case. The State Commission has rightly held that after passing of the final order in the complaint case on 18.12.2003, the District Forum did not have any authority to pass any further order for maintaining status quo in the matter as this would amount to review of its own order for which the District Forum was not authorised. Later on, the KDA did not only change its stand and filed an application for withdrawal of the appeal filed by the KDA before the State Commission and executed sale deed in compliance of the order dated 18.12.2003 passed by the District Forum in contravention of the stay order dated 19.1.2004 passed by the State Commission against the order dated 18.12.2003 of the District Forum. Clearly, this change in the stand of the KDA is surprising and State Commission has passed the impugned order keeping public interest and the public policy in mind.

As observed above that the complaint by the complainant Jan Jagran Samiti was not maintainable before the District Forum itself, and therefore, the orders dated 18.12.2003 and 19.12.2003 passed by the District Forum were without jurisdiction. Consequently, the execution of the sale deed by the KDA in compliance of the order dated 18.12.2003 passed by the District Forum in the consumer complaint is also unauthorised and illegal and therefore, cannot be sustained. In these circumstances, the order of the State Commission for cancelling the sale deed executed by the KDA is a right and justified order.

Based on the above discussion, I do not find any merit in the revision petition filed by the petitioner Jan Jagran Samiti and the same is dismissed. However, after cancelling the sale deed executed on 22.10.2004 in favour of the petitioner Jan Jagran Samiti in compliance of the order dated 18.12.2003 passed by the District Forum, the KDA would be at liberty to take a decision on the disposal of the plot in question as per the policy of the KDA after giving opportunity of being heard to all the parties in the present case.

First Appeal No.157 of 2008

The learned counsel for the appellant stated that the State Commission has passed the final order under Section 27 of the Consumer Protection Act, 1986 and has ordered 6 months imprisonment to the appellant for violating the order dated 19.01.2004 passed by the State Commission staying the order dated 18.12.2003 of the District Forum whereby the District Forum had directed the KDA to regularise the possession of the appellant and to execute the sale deed in favour of the appellant within 3 months. It was stated by the learned counsel for the appellant that action was also contemplated under Section 27 of the Consumer Protection Act, 1986 against the officers of the KDA, however, no final order was passed against them and the matter was proceeding in the State Commission whereas the final order was passed against the appellant. The order dated 19.1.2004 was specifically for the KDA as appellant was only a beneficiary and the KDA actually executed the sale deed in favour of the appellant. If the order dated 19.01.2004 has been violated, the same has been violated by the officers of the KDA and appellant has no role in this regard. There was no direction in the order dated 19.1.2004 for the appellant. Hence, proceedings against the appellant under Section 27 of the Consumer Protection Act 1986 were not maintainable. It was requested to set aside the order dated 22.2.2008 passed by the State Commission ordering 6 months imprisonment to the appellant complainant.

The learned counsel for the respondents No.1 & 2 argued that KDA could not have executed the sale deed without the consent of the appellant and therefore, appellant was fully responsible for violation of the stay order dated 19.1.2004. The State Commission has observed that the learned counsel for the KDA and learned counsel for the appellant were present throughout the proceedings and the stay order dated 19.01.2004 was also extended from time to time on every date. Thus, non compliance of the order dated 19.1.2004 was deliberate on the part of the appellant as well as on the part of the KDA. To fix the responsibility of the officers of the KDA, State Commission has given further notices to the officers of the KDA and the matter was proceeding there. As the version of the appellant was already heard by the State Commission, so the State Commission finally decided the matter for offence committed by the appellant under Section 27 of the Consumer Protection Act, 1986. Hence, there is no irregularity in the order passed by the State Commission.

The learned counsel for the respondent No.3 KDA reiterated the same arguments that were advanced for the revision petition. He also expressed his ignorance about the status of the proceedings against the KDA officers under Section 27 of the Consumer Protection Act, 1986.

I have carefully considered the arguments of both the sides and have examined the record. In fact, State Commission has clearly observed that the learned counsel for the appellant was present on every date and then stay order dated 19.01.2004 was also extended from time to time and therefore, the appellant was in the full knowledge of the stay order dated 19.1.2004. Even if the KDA wanted to execute the sale deed under any circumstances, the appellant should have pointed out about the stay order passed by the State Commission on 19.01.2004. I agree with the learned counsel for the appellant that proceedings under Section 27 of the Consumer Protection Act, 1986 should have been concluded simultaneously for the appellant and for the officers of the KDA. Though there is no hard and fast rule in this regard, however, in the interest of justice simultaneous conclusion against the officers of the KDA and against the appellant would have been appropriate because response from one side might have become relevant for fixing the responsibility on the other.

As the complaint stands dismissed now by way of decision in RP No.1354 of 2008 and the sale deed in favour of the appellant has been ordered to be cancelled, I deem it appropriate to order that the case against the appellant under Section 27 of the Consumer Protection Act, 1986 be also taken up along with similar case against the officers of the KDA if these are still proceeding before the State Commission and in this situation, the impugned order dated 22.2.2008 of the State Commission in respect of award of 6 months imprisonment to the appellant will stand set aside. However, if the cases against the officers of the KDA have already been concluded and final orders passed by the State Commission, then in that case, the impugned order dated 22.2.2008 of the State Commission in connection with award of 6 months imprisonment to the appellant shall stand modified to the extent that appellant shall be required to pay Rs.10,000/- as fine to be deposited before the State Commission under the appropriate head of receipt. Parties are directed to appear before the State Commission on 08.05.2019.