HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This Interlocutory Application has been filed by the complainant for appointment of an Engineer Commissioner for holding local inspection and for filing report in respect of the said inspection.
- The facts, to be taken notice of for the disposal of the present I.A. Application are that the complainants had instituted a complaint case against the opposite parties praying for the following reliefs :-
“i) An engineer commissioner be appointed to ascertain the deviation and also to ascertain as to whether the construction has been made and give a detailed report on the points made in para 19 of the complaint.
ii) An order upon the opposite parties to deliver up vacant, khas, peaceful and habitable possession of the 45% share of constructed area i.e. Owners’ allocation to the complainant in respect of the ‘B’ Schedule property mentioned hereunder written.
iii) An order directing the opposite parties to handover the Completion Certificate in respect of the newly constructed building in favour of the complainants.
iv) The Complainants are also entitled to get a sum of Rs.1,000/- per day as since 18.10.2018 as compensation upon failing to complete and hand over possession to the complainants by the opposite parties after completion 30 months from the date of sanction building plan, i.e. 18.04.2016 along with statutory interest 18% p.a. which is to be calculated by this Learned Commission of the time of final adjudication.
v) The complainants are also entitled to get a sum of Rs.10,00,000/- towards compensation for mental agony and harassment since 18.10.2018 along with statutory interest 18% p.a. which is to be calculated by this Learned Commission at the time of final adjudication.
vi) Cost of the proceedings a sum of Rs.25,000/-.
vii) And to pass such other order or orders as your Honour may deem fit and proper.”
- The opposite parties entered appearance in this case and contested the case by filing written version. The complainants have filed evidence on affidavit. After filing evidence on affidavit the complainants have filed the present application under hearing. The application was opposed by the opposite parties by filing written objection.
- I have heard the Learned Advocates of the respective parties and have carefully gone through the records of the case including the present application and its written objection thereto. It has been submitted by the Learned Advocate appearing for the complainants that there are huge area deviated by the opposite parties without any consent of the complainants and many defects in the said building especially the measurement of the same which was agreed upon by and between the parties herein as well as the quality of materials. The opposite parties being the developers till date have not handed over the owner’s allocation in question and did not remove the defects and / or irregularities in the said allocation. The opposite parties failed to hand over the possession of the said allocation in habitable condition in favour of the complainants. Learned Advocate appearing for the complainants has further submitted that the nature and extent of the incomplete works and the defects in the owner’s allocation in question is required to be brought before the Learned Commission for proper adjudication of this case. Therefore, it is necessary to appoint an engineer commissioner from the panel of the engineer commissioners of this Commission for holding local inspection.
- Assailing the above submissions of the Learned Advocate for the complainants, the Learned Advocate appearing for the opposite parties submits separately that the application is not maintainable in law and it should be rejected.
- On due consideration of the submissions made by the parties and after careful perusal of the record I find that the application for appointment of an engineer commissioner has been filed after filing evidence by the complainants and the case before this Commission is yet to proceed.
- Sub section 9 of section 38 of the Consumer Protection Act, 2019 runs as follows :-
“a) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
b) requiring the discovery and production of any document or other material objection as evidence;
c) receiving of evidence on affidavits;
d) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
e) issuing of commissions for the examination of any witness, or document; and
f) any other matter which may be prescribed by the Central Government.”
- From the above it is clear that the commission shall have all the powers as are vested in Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the above mentioned matters and all the provisions of the Code of the Civil Procedure are not applicable.
- The Act provides for the summary disposal of the complaints within the time frame mentioned therein. All the complaints where the sample of alleged defective goods is not seen to the appropriate laboratory are to be decided within 3 months whereas the complainants, in which the sample of defective goods are so sent to the appropriate laboratory, are to be decided within 5 months. If the commission is to resort to the appointment of a commissioner for local inspection, it will certainly result in the delay of disposal of the complaints and it appears that keeping in view of the above position, such a power of the Civil Court was not conferred upon the commission by the legislation. The Commission can order for appointment of expert for local inspection where noting down of physical features by competent person is essential for proper adjudication of the dispute and also in the interest of justice. But this is not the case here.
- From the application of the complainants, it becomes very much clear that in fact they want to collect evidence through the agency of the commissioner which is not permissible. The facts, which they want to prove by appointing commissioner can be proved otherwise also.
- It is well settled law that the report submitted by a commissioner appointed by a Court of law is not binding and it is always open to challenge. That being the position the complainants herein can file evidence by way of affidavit which shall be considered by this Commission in accordance with law.
- In M/s. Sivashakti Builders, Hyderabad & Anr. Vs. A.P. State Consumer Disputes Redressal Commission, Hyderabad & Ors., 2009 (6) ALL MR (JOURNAL) 27 the Hon’ble High Court has observed :-
“The Consumer Forum cannot appoint Advocate Commissioner to make local inspection.”
- In view of my above discussion I conclude that the application filed by the complainants is not maintainable in law and is liable to be rejected with a C.P. cost of Rs.1,000/- ( Rupees one thousand only) to be paid by the complainants in favour of the SCWF within 10 days from the date of passing of this order.
- In the result, the application for appointment of an engineer commissioner to visit the locale filed by the complainants is rejected.
- The application is, thus, disposed of accordingly.
