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Judgment
This appeal under Section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 14.07.2021 of the State Commission in complaint no. 22 of 2019.
We have heard the learned counsel present and have perused the record.
Learned counsel for the appellants i.e. the complainants submits that this is a builder – buyer dispute. The complainants are aggrieved with the State Commission recalling the interim protection which it had earlier provided to the complainants.
In this regard the chronology as borne out from the record may first be recapitulated.
Interim protection was provided to the complainants by the State Commission vide its interlocutory Order dated 04.06.2019. The relevant extract of the said Order is being reproduced below for reference:
- - - Another application filed by the consumer complainants under section 13 (3B) of Consumer Protection Act by which the complainants prayed for an interim order from this Commission for the interest of justice in connection with this Case. The petition is taken up for hearing. Heard after hearing the Ld. Advocate of the complainant, it appears to this Commission that an interim order should be passed in view of section 13(3B) of the consumer protection Act and the Op no. 1 and his agents of this case are hereby restrained from changing entire character of the area meant for construction of community centre in west site of central Park, area mend for construction of shopping complex/commercial development in east side of central park/water park and also the entire green areas including the area used and enjoyed by the complainants and other inhabitants as central park/water park/football/ cricket playground and golf playground etc. till the next order.
The interim protection was then recalled by the State Commission vide its subsequent interlocutory Order dated 14.07.2021. The relevant extract of the said Order is being reproduced below for reference:
- - - The Opposite Parties of this case has also also filed application for lifting or the withdrawal of the ex-parte interim order dated 04.06.2019. The copy of the same application is being handed over to the Ld. Advocate of the complainant. This petition is also taken up for hearing today. Ld. Advocate of the complainant Mr. S. Mitruka submits that the Order of Ex-parte interim order was delivered on 04.06.2019 that is on the date of admission of this CC Case No. 22 of 2019 in order to protect the suit property from further construction, alienation, transfer etc. And that order should be continued in order to protect the subject matter of the case. Ld. Advocate of the complainant further submits that the said order was delivered by the provisions of Consumer Protection Regulation No. 17 of 2005. Ld. Advocate of the Opposite Parties mentioned that they have challenged the said Ex-parte interim order by filing the written objection and as per provision of Regulation 17 of 2005 the said order should not be sustained beyond the period of 45 days since the date of passing order and already two years have already elapsed and the said order is still continuing and this Commission could not hear the objection petition in this regard filed by the Opposite Parties. He further mentions there are various Civil litigations between the parties and Chadmani Uttarayon Welfare Society in disguised way has catapulated the said order in various Civil proceedings including before the Hon'ble Court and creating disturbance by virtue of the Ex-parte interim order passed by this Commission which has no legal sanctity as after elapsed of 45 days since its order there is no chance of sustenance of that order. After hearing both sides through their legal counsels the Commission thinks it fit that the instant Consumer Case has become stalled from further progress since a long days and various application and counter applications in interlocutory status has created disturbance in smooth proceedings and disposal of the original complaint case No. 22 of 2019 and for that reason and for the ends of justice as well as, as per spirit of Regulation 17 of C.P and 2005 the order delivered by this Commission dated 04.06.2019 should not be continued at this stage. So, the Ex-parte interim restraining order delivered by this Commission dated 04.06.2019 Vide Order No. 1 of this case stands vacated. - - -.
Meanwhile another appeal bearing no. 617 of 2021 was decided by a co-ordinate bench of this Commission vide its Order dated 07.10.2021. The said Order is being reproduced below for reference:
Dated : 07 Oct 2021
ORDER
ORDER (ORAL)
Heard.
Learned counsel for the parties agrees that the impugned order dated 16.09.2021 and the order dated 04.06.2019 whereby the 12(1) (c) application of the complainant was allowed (without hearing the opposite parties) should be set aside and the matter be remanded back to the State Commission.
Learned counsel for the parties submits that the application under section 12 (1) (c) of Act 1986 was allowed without giving any opportunity to contest it by opposite parties.
Thus the impugned order dated 16.09.2021 and the order dated 04.06.2019 are hereby set aside and the State Commission is directed to give an opportunity to the opposite parties to file reply to the application under Section 12 (1) (c) and thereafter proceed to decide the said application. It is submitted by learned counsel for the parties that this Commission should specify that the order whereby the opposite parties are restrained from creating third party interest in the subject property should remain intact. Accordingly it is directed that the restrain order relating to disposal of subject property shall remain intact.
Parties are directed to appear before the State Commission on the date already fixed, i.e., 26-10-2021.
With these directions, the present appeal stands disposed of.
Dasti be taken.
As such vide the Order of 07.10.2021 passed in appeal no. 617 of 2021 the Order dated 04.06.2019 whereby interim protection was provided by the State Commission was set aside by this Commission but a direction was also made that the “restrain order relating to disposal of subject property shall remain intact”.
Accordingly the present appeal no. 499 of 2021 appears to have been rendered meaningless since the Order dated 04.06.2019 vide which interim protection was provided has been set aside by this Commission along with the concomitant direction that the “restrain order relating to disposal of subject property shall remain intact” which apparently relates to the tail-end part of the Order dated 04.06.2019 i.e. to the part “- - - the Op no. 1 and his agents of this case are hereby restrained from changing entire character of the area meant for construction of community centre in west site of central Park, area mend for construction of shopping complex/commercial development in east side of central park/water park and also the entire green areas including the area used and enjoyed by the complainants and other inhabitants as central park/water park/football/ cricket playground and golf playground etc.- - -”.
The grievance apropos which the present appeal has been filed appears to have already been taken care of in the Order dated 07.10.2021 passed in appeal no. 617 of 2021 and for all intents and purposes the present appeal has been rendered infructuous and is disposed of as such.
The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.