DIST. CONSUMER DISPUTES REDRESSAL FORUM

NORTH 24 Pgs., BARASAT.

M. A.-97/2018

C. C.-219/2017

Date of Filing:                                                                          Date of Disposal:

04.04.2018                                                                                  05.04.2018

Complainant:  Clubtown Residency Apartment Owners Association,

                           57/3, M.M. Feeder Road, Kolkata-700 056.

                           Represented by its present President namely

                           Jitendra Gupta, S/o Late Vishan Swarup Gupta,

                           57/3, M.M. Feeder Road, Kolkata-700 056.

Vs.

Opposite Parties:-1) Solar Paints Private Limited, 14, Barrackpore Trunk Road,

                                      Kolkata-700 056.

                                 2) Space Rice Projects Private Limited,

                                     11/1, Barrackpore Trunk Road, Kolkata-700 056

                                     and having its Corporate office at-5/1A, Hugerford Street

                                     Kolkata-700 017.

                               3) A.B. Nirvan Builders Private Limited,

                                   5/1A, Hugerford Street, Kolkata-700 017.

P R E S E N T:-  Sri. Bankim Chandra Chattopadhyay………….President.

                         :-Smt. Silpi Majumder………………………………Member.

ORDER No-10

This order is arising out of the MA being no-97/2018 filed by the Complainant in the Consumer Complaint no-219/2017 praying an order for maximum punishment to the OPs on the ground of deliberate violation of the interim injunction in accordance with law for ends of justice.

In the application it is stated by the Complainant that one Revision petition was preferred by the OPs being aggrieved with the order no-3 (later) dated 25.04.2017 passed by this Ld. Forum in the C.C. no-219/2017 before the Hon’ble SCDRC, West Bengal. The Revision Petition was disposed of by the Hon’ble SCDRC by passing a final order dated 19.01.2018. It is hold by the Hon’ble SCDRC in the said order that the interim order passed by the Ld. Forum will continue considering the special facts and circumstances of the case and hence the interim order is still in force. Inspite of such interim order of injunction the OPs were restrained from interfering with the peaceful user and enjoyment of the members of Club Town Residency Apartment Owners Association to use the gate no-1 lying at the eastern side to get the access to B.T. Road in the suit property and the OPs were further restrained from closing and locking the iron gate installed and from construction of any wall at the schedule suit property affecting the pedestrian’s iron gate. But the OPs are so desperate and dangerous in nature as they by violating such interim order the OPs are deliberately trying and/or have also resumed the construction works in the disputed pathway area on and from 08.03.2018. The Complainant lodged a written complaint with Belghoria Police Station and the same is registered as GDE no-687 dated 09.03.2018. At the interference of local administration illegal activities on the part of the OPs were stopped. But the Complainant has reasonable apprehension that the OPs may do such mischief further at any time. The Complainant made an application with a prayer for holding local inspection in respect of the properties in question, but the said application is yet to be disposed of. On 30.03.3018 the OPs have further started raising illegal construction over the property by violating the order of injunction which is continuing as per the order of the Hon’ble SCDRC as well as the ld. Forum and by doing such illegal acts and activities the OPshave taken the law in their own hands and from such action and activities it is proved that the OPs are reluctant to pay any respect to the Law of this Land and as such to keep the judicial discipline intact  one stringent order is necessary and the OPs should be punished for deliberate violation of the interim order.According to the Complainant if this application is not allowed the Complainant will suffer irreparable loss and injury and thus prayer is made for allowing the application.

Along with this application the Complainant has filed the track report from where it is evident that the OPs have received the copy of this application, but the OPs chose not to appear to contest the application either orally or by filing written objection. The Complainant also send the copy of the PUT UP PETITION to the OPs wherein it is written that on 04.04.2018 the Complainant will submit the PUT UP PETITION before the Ld. Forum praying for placing the record and after filing the application an order has also been sought for in the interest of natural justice. Inspite of receipt of the same the OPs remained absent on calls. No step was taken. So considering the urgency we took up the application for hearing and its disposal.

We have carefully perused the content of the application and heard argument at length advanced by the Ld. Counsel for the Complainant. It is evident from the record that on 25.04.2017 after admission of the complaint the Complainant moved another application filed u/S 13 (3B) of the Consumer Protection Act, 1986 and this Ld. Forum was pleased allow the said application praying for an interim order holding which runs as follows:-

‘The OP nos 1, 2 and 3 and their men and agents are hereby restrained from interfering with the peaceful user and enjoyment of the members of Clubtown Residency Apartment Owners Association to use gate no-1lying at the eastern side to get the access to the B.T. Road in the scheduled suit properties. The OPs are restrained from closing and locking the iron gate installed. The OPs are further restrained from constructing any wall at the scheduled suit property affecting the pedestrian’s Iron Gate.’

Being aggrieved with the abovementioned order the OP-3 preferred one Revision petition before the Hon’ble SCDRC, which was registered therein as RP/139/2017. On 19.01.2018 the Hon’ble SCDRC was pleased to pass an order in the said Revision Petition holding that the interim order passed by the Ld. Forum on 25.04.2017 will continue till 30.01.2018 and the Ho’ble SCDRC was pleased to direct the parties to appear before the Ld. Forum on 30.01.2018 and the OP-3 was directed to file written objection against the application u/S 13 (3B) of the C.P. Act, 1986. The Hon’ble SCDRC has been  pleased to direct this Ld. Forum to proceed for disposal of the said application in accordance with law preferably within a week from that date. On 30.01.2018 the OP-3 filed written objection against the petition filed by the Complainant u/S 13 (3B) of the C.P. Act, 1986. On the said date the OP-1 and 2 filed a petition challenging the maintainability of the complaint with a copy to the other side. Next date was fixed on 12.03.2018 for hearing on the petition u/S 13 (3B) of the C.P. Act, 1986 along with other applications. This ld. Forum was pleased to pass an order continuing the interim order till 12.03.2018. But on 12.03.2018 due to resolution as taken by the Local Bar Association, neither the parties nor their Ld. Counsel were present and next date is fixed on 04.06.2018.

On 04.04.2018 this record was placed before the Bench in view of the PUT UP PETITION filed by the Complainant as the Complainant thought that production of the record is required due to urgency as the OPs have already started construction/obstruction in the suit property by violating the interim injunction obtaining opportunity of the resolution taken by the Local Bar Association on 12.03.2018. Admittedly we showed respect to the resolution of the Local Bar, but if any party take the opportunity of the said resolution or our lenient view as we obtained, then henceforth we have to think over any resolution, if any, of the Local Bar Association so that none can obtain any opportunity from such view.  On the said date this MA was also filed u/S 27 of the C.P. Act, 1986. It is seen by us that though the Ld. Counsel for the contesting parties did not take any step on 12.03.2018 due to resolution of the Local Bar, but the OPs have opted the said opportunity after 12.03.2018 by making/starting construction in the suit property violating the interim order, which the OPs cannot do. Not only that, inspite of receipt of the copy of this application the OPs remained absent.  It is the settled Law that in case of violation of any order by any party either final or interim, the Ld. Forum is very much empowered to invoke the penal Section of the Consumer Protection Act, 1986. By filing this application the Complainant has sought for maximum punishment of the OPs due to non-compliance of the interim order and/or violation of the interim order. But we are inclined to give one chance to the OPs for assigning reason as to why the Section 27 of the C.P. Act, 1986 shall not be invoked against them due to violation of the interim order. Fix ……………… for showing cause by the OPs in writing and the same should be on affidavit, in default stringent order will be passed against the OPs in view of the Section 27 of the Consumer Protection Act, 1986.

Going by the foregoing discussion hence it is ordered that the MA being no-97/2018 is hereby allowed in part exparte against the OPs without any cost.

Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.     

Member                                                                                                     President

Dictated & Corrected by me