Per Justice Mr.S.B. Mhase, Hon’ble President
Heard Mr.A.V. Patwardhan, Advocate for the petitioners and Mr.Arunkumar Roy, Advocate for respondent No.1.
2. This Revision Petition filed under Section 17(1)(b) of the Consumer Protection Act, 1986.
3. The factual matrix of this Revision Petition are as follows :-
The consumer complaint No.01/2011 was filed by respondent No.1-Mr.Rajiv Khare before the District Forum, Central Mumbai. It was decided on 25/03/2011. By this order, this complaint was partly allowed and the opponent in the said complaint was directed to pay an amount of `1,48,636/- with interest @ 12% p.a. from 22/04/2010 till payment is made. It was further directed by the District Forum that the amount of `15,000/- be paid to the complainant by the opponent for mental agony. Costs of `5,000/- was further directed to be paid to the complainant. This order was not challenged by the opponent and thereby it has obtained finality under Section 24 of the Consumer Protection Act, 1986 as against the opponent.
4. It requires to be stated at this stage that description of the opponent in the complaint is as follows :-
“The Branch Manager, Club Mahindra Holidays World, 1st floor, Shop No.134, Dr.Annie Besant Chamber, Atria Mall, Worli, Mumbai.”
Since this order has obtained finality, respondent No.1-org. complainant filed an Execution Application No.57/2011 in complaint No.01/2011. Said execution application was filed under Section 25 of the Consumer Protection Act, 1986. In our view, under this provision, District Forum has to issue a certificate in favour of respondent No.1-org. complainant to recover the amounts as per the directions of the District Forum as arrears of land revenue and that certificate has to be issued for execution to the Collector.
5. After filing of this execution application, certificate has been issued on 29/10/2011. It is a fact not in dispute that the order which was passed by the District Forum was not obeyed and the amounts were not paid by the opponent to the complainant. But controversy which requires to be considered is the description of the opponent in execution application –
“Mr.Lalit Vihani, The Sales Manager, Club Mahindra Holidays World, 1st floor, Shop No.134, Dr.Annie Besant Chamber, Atria Mall, Worli, Mumbai.”
Resultantly in the certificate which has been issued, the description of the opponent is as follows :-
“Mr.Lalit Vihani, The Sales Manager, Club Mahindra Holidays World, Dr.Annie Besant Chamber, Atria Mall, Worli, Mumbai.”
6. What is important to be noted is that in the initial complaint, name of Mr.Lalit Vihani was not reflected. Even the Sales Manager was not party, but it was a Branch Manager and therefore, description of the opponent in the certificate under Section 25(3) of Consumer Protection Act, 1986 should have been or ought to have been as follows :-
“The Branch Manager, Club Mahindra Holidays World, 1st floor, Shop No.134, Dr.Annie Basent Chamber, Atria Mall, Worli, Mumbai”.
7. It is well settled principle of law that in the execution proceeding, executing court or executing authority cannot go beyond the orders which have been passed by adjudicating authority. The description of the opponent against whom the order has been passed cannot be allowed to be changed unless rights of the original opponent are assigned and/or they are legal representatives of the earlier opponent. However, in the present matter, such is not the position and therefore, description of the opponent should not have been changed by the org. complainant and even if the org. complainant changed the same, District Forum while issuing certificate under Section 25(3) of Consumer Protection Act, 1986 should not have accepted it and should have issued a certificate only against the party which was party in the original complaint and therefore, description of the opponent as it appears in the certificate is incorrect and it requires to be corrected and therefore, to that extent, we are entertaining and allowing the Revision Petition.
8. This Revision Petition has been filed by Mahindra Holidays and Resorts India Ltd. through its Head Legal & Company Secretary, 1st floor, A-wing, Mahindra Towers, Dr.G.M. Bhosle Marg, P.K. Kurne Chowk, Mumbai. The present petitioners have approached this Commission by filing this Revision Petition making grievance that they were not parties to the initial complaint and there was no order of the District Forum as against them. Needless to say that analysis which has been carried out in the earlier paras, the present petitioners are not parties to the consumer complaint and no orders have been passed by the District Forum as against these petitioners. It is to be noted that not only the description of the revision petitioners is different, but even address of the revision petitioners is different and they were not parties in the said proceedings. But what has happened is that after the certificate has been issued by the District Forum, it was presented to the Collector for execution and the Collector has seized and stopped the account operation of the petitioners and therefore, the petitioners have approached to this Commission by filing this Revision Petition. But we find that the revision petitioners are asking for two reliefs. One relief is that they were not parties to the original consumer complaint and therefore, execution cannot be proceeded against them and second relief is that the order of the Collector is not in accordance with the law because they were not parties to the proceedings. Out of these two grievances of the petitioners, we only accept one grievance, namely, they were not parties to the initial proceeding. However, another grievance that the Collector could not have proceeded against them and stopped the account operation, the validity of that order cannot be considered in the present Revision Petition because once the District Forum or the Consumer Fora issued a certificate under Section 25(3) of Consumer Protection Act, 1986, the Consumer Fora become a functus officio. It only has supervisory control over the Collector as we have discussed in the case of Amir Ali Tharani V/s. Rajesh Sukhtankar & Anr., II(2011) CPJ 23. Except such type of supervisory control, we cannot interfere in the proceedings which are to be carried out for recovery of amounts as arrears of land revenue. The orders which are passed by the Collector while executing the orders of the District Forum as recovery of land revenue are challengeable under the Land Revenue Code before the Superior Officer by following the procedure. Section 247 of said Land Revenue Code provides an appeal to the Superior Officer as against the Collector. Therefore, orders by which the account operation has been stopped can be challenged by the petitioners before the Revenue Authority and such authority can consider the same on merit. Therefore, challenge made to the Collector’s orders is not sustainable under the provision of Section 17(1)(b) of Consumer Protection Act, 1986. Therefore, Revision Petition is partly allowed. The District Forum, Central Mumbai is hereby directed to issue a fresh certificate in favour of respondent No.1 by showing the description of the opponent as ““The Branch Manager, Club Mahindra Holidays World, 1st floor, Shop No.134, Dr.Annie Basent Chamber, Atria Mall, Worli, Mumbai”. The earlier certificate which was issued on 29/10/2011 is hereby quashed and on the basis of fresh certificate the complainant shall proceed for execution of the orders. We further reject the Revision Petition so far as challenge to the Collector’s order by which account operation of the revision petitioners is stopped. However, petitioners, if desire, they may file appropriate proceeding before the appropriate authority under the Maharashtra Land Revenue Code. The order of the State Commission passed on 22/03/2012 impleading the Collector as respondent No.3 is hereby recalled. Revision Petition is disposed of accordingly.
Pronounced
Dated 8th May 2012.
