Date of Filing: 14.01.2019. Date of Disposal: 01.06.2022.
Complainant : 1. Sri Sanchay Kumar Pyne, S/O Late Bibhuti Bhusan Pyne.
2. Smt. Aloka Pyne, W/O Sri Sanchay Kumar Pyne,
Both are permanent residents of Vill. Amdahara, P.O. Sitapur,
Dist. Birbhum, Pin -731204
Presently- residing at: Quarter No. CN-122, DPL Township, Durgapur-2,
P.S. Cokeoven, Dist. Burdwan. Pin-713202.
-VERSUS -
Opposite Party :1. M/S Tanvee Housing Development Pvt. Ltd, having its Branch Office at Vill & P.O. Bamunara, Bhairabtala (OPP of Lal Sayer), Durgapur-713212, District-Burdwan.
2. M/S Tanvee Housing Development Pvt. Ltd, having its corporate Office at Flat No. 2B, 1st Floor, 8/2/16 A, Arabinda Sarani, Parul Bhavan, Kolkata-700028 Vill & P.O. Bamunara, Bhairabtala (OPP of Lal Sayer), Durgapur-713212, District-Burdwan.
3. State Bank of India, RACPC, Durgapur, Near Durgapur DSP main Gate, Durgapur-713203, District- Burdwan.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Smt. Lipika Ghosh - Hon’ble Member.
Appeared for the Complainant : Sri Subrata Ghosh Ld. Advocate.
Appeared for the Opposite Party : Sri Shovan Kumar Ld. Advocate.
:
Order No. 110 Date: 01.06.2022.
The complainant files hazira through the Ld. Advocate.
Today is fixed for passing order in respect of M.A. Case No. 08/2019. The record is taken up for passing order.
The OP M/S Tanvee Housing Development Pvt. Ltd. (OP No.1) has filed a petition supported by an affidavit on 14.01.2019 praying for passing an order to remove the present expert Mr. Dulal Chandra Roy from the present case on the following grounds:-
That one Suranjan Dhar, a civil engineer, was appointed as an expert to submit report but upon the prayer of the OP another civil engineer namely Mr. Dulal Chandra Roy was appointed by the Ld. Forum as an expert in view of the order dt. 29.09.2016. Subsequently, the said order was challenged before the S.C.D.R.C and the said order was set aside vide Order dt. 18.07.2017 and subsequently, the petitioner again prayed for appointment of an expert for measurement of the disputed flat to lead evidence in view of the order dt. 18.08.2017 and the Ld. Forum was pleased to allow only for the purpose of measurement of the disputed flat on holding ‘ …………. If the engineer takes the measurement of the area of the flat by giving notice to the parties and in presence of both sides, then there is no question of causing any prejudice to the parties’ –vide order dated 30.10.2017. Such order has subsequently been challenged before the Hon’ble SCDRC but the Hon’ble Commission was pleased to reject the same.
That from the order dt. 30.10.2017 it is crystal clear that Mr. Dulal Chandra Roy , civil engineer, has been appointed as an ‘expert’ only for the purpose of measurement of the area of the disputed flat , but unfortunately, the said expert served a notice dt. 05.01.2019 upon the petitioner and their Ld. Advocate only on 09.01.2019 evening directing to produce the ‘documents related to fire-fighting equipment’, ‘competition certificate’, ‘building plan’, etc. which is absolutely beyond the scope of purview of his inspection work as directed by the Ld. Forum, Moreover, the said expert also issued some directives which is not in conformity with the provisions of law. It is apparent that the said expert caused its impartiality and became biased and involved him to collect evidence of the dispute which is a subject matter for the adjudication of this Ld. Forum. In such premises, this OP strongly apprehends that the said expert cannot fairly carry out the inspection work as per the direction of the Ld. Forum and to subserve the justice he may be removed as an expert from the present case and necessary order to that effect is required to be passed, otherwise the OP will suffer irreparable loss and injury and will be seriously prejudiced. A photo-copy of the said letter of Mr. Dulal Chandra Roy is enclosed for ready appreciation.
The complainant did not file any W.O against the said petition but the Ld. Advocate for the complainant strongly opposed the prayer and submitted that the Hon’ble S.C.D.R.C already rejected the said revision which was challenged before the Hon’ble Commission and the order of this Ld. Commission passed on 30.10.2017 has been affirmed and he also submitted that the question of removing the expert Dulal Chand Roy does not arise at all in view of the said decision of the Hon’ble Commission.
Ld. Advocate for the OP has argued that in view of the order dt. 01.08.2019 passed by the Hon’ble Asansol Circuit Bench of SCDRC, the matter agitating the petition should be heard in presence of both sides and the complainant is also given liberty to file objection against the said M.A. Case No. 08/2019 for disposal.
On perusal of the case record, it is found that the order No. 63 dt. 30.10.2017 passed by this Commission was challenged in Revision before the Hon’ble SCDRC vide Revision Petition No. R.P. 289/2017 by the M/S Tanvee Housing Development Pvt. Ltd and the said revision was dismissed and the impugned order dt. 30.10.2017 has been affirmed and the Ld. Forum proceeded with the case as per law and in view of the order dt. 30.10.2017 passed by this Commission, empanelled engineer, Mr. Dulal Chandra Roy, was appointed as expert for taking measurement of the disputed flat in this case and the said order has been affirmed by the above revision by the Hon’ble SCDRC, West Bengal, Kolkata.
Subsequently, the OP has filed this M.A. case. During pendency of the said M.A. Case, this commission passed an order No.79 dt.01.03.2019 disclosing the receipt of payment and opined that this Forum was ready to ‘accept the report of the expert’. However, in the background of objection regarding appointment and inspection by the expert, M.A case filed by the OPs being No.8 of 2019 be heard in presence of both parties and complainant is at liberty to file any objection against the said M.A. case for its disposal and the OP challenged the said order dt. 01.03.2019 by a revision petition before the Hon’ble SCDRC, Asansol Circuit Bench in Revision Petition No. RP 2/2019 wherein the Hon’ble S.C.D.R.C, Asansol Circuit Bench dismissed the said revision on contest but made observations that “So, it is not true that the revisionist is not given any opportunity prior to the acceptance of the report of the expert. There is gulf difference between “ready to accept” and the report is “accepted”. There is nothing in the impugned order that the report of the expert is accepted without hearing or giving an opportunity to the revisionist regarding his grievances as ventilated in MA 8/2018.”. The Hon’ble Asansol Circuit Bench also observed “the revisionists have missed the tree in the woods in filing the instant revision”. Moreover, it is observed by this Commission that is open to the respondent-complainants to establish their case before the Ld. Forum by leading evidence-on-affidavit of expert as provided u/S 13(4)(iii) of the C. P. Act, and in that event the revisionist –OP also get opportunity to cross-examination of the expert by way of questionnaire”.
In view of the order passed by the Hon’ble SCDRC, Asansol Circuit Bench, the M.A case was heard in presence of both parties. As the Hon’ble SCDRC has pleased to affirm the order dt. 01.03.2019 passed by this Commission in view of the order dt. 18.07.2018 passed by the Hon’ble S.C.D.R.C, WB, Kolkata Revision Petition No. RP 289/2017 and in view of the order dt. 01.08.2019 passed by the Hon’ble S.C.D.R. Asansol Circuit Bench, in revision petition No. 2/2019 the question of removing the expert Mr. Dulal Chandra Roy, does not arise at all. In view of the order dt. 01.03.2019 passed by this Commission, the report submitted by the expert Mr. Dulal Chandra Roy has not yet been accepted and the Hon’ble S.C.D.R.C, Asansol Circuit Bench observed that there is gulf differences between the ‘ready to accept’ and the ‘report is accepted’ and there is nothing in the impugned order that the report of the expert is accepted without hearing or giving an opportunity to the revisionists as ventilated in M.A. case. Another observation made by the Hon’ble SCDRC, Asansol Circuit Bench, that it is open to the respondent-complainants to establish their case before the Ld. Forum by leading evidence-on-affidavit as provided u/S 13(4)(iii) of the C. P. Act, and in that event, the revisionists-OPs will also get opportunity to cross-examination of the expert by way of questionnaire. In view of this observation and above made findings, it is clear that the question of removing the expert Mr. Dulal Chandra Roy, does not arise at all.
Under the above facts and circumstances, we find no reason to allow the petition (M.A. Case being No. 8/2019).
Hence, it is
ORDERED
That the M.A. case being No. 8/2019 be and the same is hereby rejected on contest without any cost.
In view of the order of the Hon’ble SCDRC, let the case be fixed for evidence- on-affidavit of the expert u/S 13(4)(iii) of the Consumer Protection Act and the OPs be given opportunity to cross-examine the expert by way of questionnaire.
To 20.07.2022 for evidence-on-affidavit of the expert by the complainant.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C , Purba Bardhaman
