SWAPU GAS AGENCIES vs SHAKTI PRASANNA NAYAK

IN this appeal the appellant challenges the order passed by the District Forum, Puri under Sections 25 and 27 of the C.P. Act.

THE backdrop of the present controversy relates to an order passed by the forum below in C.D. Case No. 91/1997 in which the present appellants along with respondent Nos. 2 to 5 were directed to pay a sum of Rs. 1,12,000/- with interest at the rate of 15% per annum and compensation of Rs. 10,000/- to the complainant i.e., the present respondent No. 1. Being aggrieved with the said order, the present appellants had preferred an appeal before this commission vide C.D. Appeal No. 39/98. By our judgment dated 24.6.2002 we had dismissed the said appeal and confirmed the order passed by the District Forum. As the opposite party did not comply the said order, the complainant moved the Forum below for execution of the said order under Sections 25 and 27 of the C.P. Act. THE District Forum vide order dated 8.1.2004 issued non-bailable warrant of arrest only against them for attachment of their movable and immovable assets, against which the appellant prefers the instant appeal. Heard Mr. N.B. Das, Advocate for the appellants and Mr. R.K. Pattnaik, Advocate for the complainant/respondent No. 1. Mr. Patnaik strenuously argued before us that the instant appeal is not at all maintainable. We examined the point in detail and are satisfied that in view of Section 27A of the Consumer Protection (Amendment) Act of 2002, which came into force from 15.3.2003 this appeal is certainly maintainable. The Section 27A of the C.P. Act clearly states as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an appeal under Section 27 both on law and fact shall lie from: (a) the order made by the District Forum to the State Commission. (b) the order made by the State Commission to the National Commission. (c) the order made by the National Commission to the Supreme Court.

In view of the above amended provision of law, we holds that the instant appeal is maintainable.

THEN the appellants challenges the legality of the order passed by the District Forum in issuing N.B.Ws against the appellants. There is no dispute that the District Forum has got jurisdiction to issue N.B.Ws. After amendment of the C.P. Act, powers of a judicial Magistrate, First Class has been conferred upon the redressal agencies. When the said power has been conferred upon the redressal agencies by the statute itself, there is no need of any further notification in this regard by any competent authority declaring conferment of the said power to the redressal agencies. The District Forum has rightly decided the said issue in favour of the complainant by relying upon some decisions of the Apex Court. We fully agree with the said observation of the Forum below. The next contention of the appellants is that proceeding under Sections 25 and 27 of the C.P. Act cannot run together since both are parallal proceedings. We do not agree with the said arguments of the appellant. Section 27 of the C.P. Act is a Penal Provision in which a defaulting party can be punished with imprisonment and/or with fine for deliberate non-compliance of the order passed by the redressal agencies and Section 25 of the C.P. Act deals with the procedure through which the awarded amount can be recovered from the defaulting party by issuing certificate to the concerned Collector of the District to recover the same as arrear of land revenue. It cannot be said that both are parallal proceeding and cannot run together. The said contention of the appellants has got no merit. The District Forum has not done anything wrong in this regard.

BUT, on carefully analysing the order of the District Forum, we found that District Forum has committed wrong on one aspect. The District Forum in the original C.D. case has specifically observed that all the opposite parties including the appellants are jointly and severally liable to refund the amount with interest to the complainant, which was also confirmed in the appeal. When all the opposite parties are made parties in C.D. Execution case No. 26/2002 filed under Sections 25 and 27 of the C.P. Act, it is really surprising that why the District Forum has proceeded only against the present appellants. There is also no discussion in the impugned order why the District Forum has only proceeded against the present appellants and the present respondent Nos. 2 to 5 were made scot-free. When all the opposite parties are jointly and severally liable, the District Forum has also not given any reason for saddling the present appellants only to pay the entire awarded amount to the complainant. By leaving the present respondent Nos. 2 to 5 and saddling the present appellants to pay the awarded amount to the complainant, the District Forum has committed error on this aspect. There is also no material on record to hold that the present appellants have misapproriated the amount given by the complainant. It will be highly injustice if the present appellants only be directed to pay the entire awarded amount to the complainant. When all the opposite parties have been found guilty of unfair trade practice and deficiency in service, they should have been held liable equally to pay the awarded amount to the complainant and the awarded amount should have been shared amongst themselves. There is some substance in the argument advanced by the appellants that the District Forum should have segregated the awarded amount amongst all the opposite parties. Considering the peculiar nature of the case, we also agree with the appellants that the Forum below should have segregated the amount amongst all the O.Ps. In view of our above discussion, we hold that the District Forum has committed an error by saddling the appellants only to pay the entire awarded amount to the complainant and hence we allow this appeal and remanded the matter to the District Forum with a direction to segregate the awarded amount amongst all the opposite parties and to proceed against the respondent Nos. 2 to 5 along with the present appellant under Sections 25 and 27 of the C.P. Act for recovery of the awarded amount. With this observation, the appeal is disposed of. The matter should be disposed of within 8 weeks from the date of receipt of this order. Appeal disposed of.