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Judgment
Subhash Chandra, Presiding Member
Miscellaneous Application no. 349 of 2023 has been filed by the petitioner seeking clarification of the order dated 19.05.2023 passed by this Commission in RP No. 2681 of 2016.
The order dated 19.05.2023, in paragraphs 9, 10 and 11 reads as under:
From the order dated 27.03.2000 in Spl. C.C. No. 801 of 1993 of the Second Joint Civil Judge, Senior Division, Nagpur, it is evident that defendants/ purchasers were directed to deliver the vacant and peaceful possession of the suit property to the plaintiffs/ land owners except the plot on which the building no.1 is situated. Pertinently, the Agreement dated 29.07.1989 and the Power of Attorney dated 25.07.1989 included lands other than the land on which the building was constructed as part of the Agreement between the parties. The Civil Court’s order dated 27.03.2000 imposing restrictions on the petitioners in perpetuity from transferring, alienating, creating any charge or interest of any third person or carrying out any construction on the suit property except building No. 1 excludes the land on which the building in question stands. However, this order was challenged in FA no. 167 of 2000 before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur. The order in Special Civil Suit no. 801 of 1993 was stayed vide order dated 27.03.2000 in F.A. No. 167 of 2000. Civil Appeal no. 6856 of 2000 filed by intervenors, who were not party to the original suit, seeking directions that developers execute Sale Deeds, was dismissed. CA no. 2385 of 2000 is reported to be pending before the High Court in FA no. 167 of 2000.
A consumer complaint under the Act can be considered if deficiency in service or unfair trade practice is established. In the present case, the petitioner has not been able to establish either of these. The issue before us is petitioner’s inability to execute sale deeds in favour of the allottees of the flats constructed. From the facts of the case, it is manifest that there are outstanding legal issues with regard to the petitioner’s right to the land over which building no.1 has been constructed. The issue of title is for the appropriate Civil Court to adjudicate upon and is beyond the purview of this Commission or any other consumer fora. The District Forum had correctly held that the land issue needed to be resolved by the Civil Court. The impugned order of the State Commission, however, relied upon the order of the Special Civil Suit no. 801/93 of Second Joint Civil Judge, Senior Division, Nagpur which excluded the plot of 15500 sq ft on which building no.1 was situated and directed handing over of vacant and peaceful possession. This order was, however, stayed in FA no. 167 of 2000 filed against order in Special Civil Suit no. 801 of 1993. Civil Appeal no. 6856 of 2008 contesting was also dismissed. Therefore, it is manifest that the State Commission acted in error in arriving at its finding in the impugned order. The order of the State Commission does not bring out the manner in which there has been any deficiency in service or any unfair trade practice. It is apparent that no sale deed can be executed by the petitioner in view of the order staying the operation of order in Spl CC no. 801 of 1993 which was ordered in FA no. 167 of 2000 before the Hon’ble High Court, Mumbai. The order of the State Commission dated 19.12.2012 is therefore, liable to be set aside and the revision petition to fail.
For the reasons stated above, the revision petition is dismissed with no order as to costs.
From the above, it is evident that while paragraph 10 of the order has set out the reasons for allowing the appeal, paragraph 11 has inadvertently ordered dismissal of the same. For the reasons stated in the MA, it is apparent manifest that there is an error apparent on the face of the record warranting amendment of the impugned order dated 19.05.2023.
For the aforestated reasons, paragraph 11 of the impugned order dated 19.05.2023 which reads as:
“For the reasons stated above, the revision petition is dismissed with no order as to costs”.
is modified to read as under:
“For the reasons stated above, the revision petition is allowed with no order as to costs.”
Miscellaneous Application no.349 of 2023 stands disposed of in the above terms.