HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This revision petition under section 47(1)(b) of the Consumer Protection Act, 2019 is at the instance of the petitioners / opposite parties and is directed against the order No. 12 dated 10/05/2024 passed by the Learned District Consumer Disputes Redressal Commission, Paschim Medinipur ( in short, ‘the District Commission’) in connection with consumer case No. CC/54/2023.
- The respondent Nos. 1 & 2 herein being the complainants filed a complaint case being No. CC/54/2023 before the Learned District Commission praying for the following reliefs :-
“i) A direction upon the Main Opposite Party and its men agents and partners to provide sufficient Parking Space for 2-Wheeler & By-Cycle Parking of Flat No. 101.
ii) A direction upon the Main Opposite Party to vacate all such illegal 4-Wheeler Parking space so that the vacated space can be used for 2- Wheeler & By-Cycle parking with hassle-free Ingress & egress by all the 32 Flat Owners.
iii) A direction upon the Main Opposite Party to provide / accommodate the 2nd stair case and lobby as mentioned in Approved Building Plan so that the complainants may use the same in accordance with the agreement executed between the parties to the proceeding.
iv) A direction upon the Main Opposite Party and its men agents and partners to compensate the Complainants to the tune of Rs. 20 lakhs (Rupees Twenty Lakh Only) for not providing the essential and necessary arrangements and for not providing the parking space, for not providing the 2nd staircase with lobby, for not providing 7 Katha Land, for illegally selling the area of 2nd Staircase with lobby as super Built-up Area, for Low Capacity generator , for Low Capacity lift facility, for not providing Smoke Stop Lobby, Fire Lift, Fire Alarm Network, Static Water Storage Tank and pumproom along with Fire Service Inlets for Mobile Pump and water storage Tank, requisite Reservoir with water supply pipelines for Fire Fighting and to collect Fire Safety Certificate from West Bengal Fire & Emergency Services and at the same time for the harassment as well as mental pain and agony.
v) A direction does issue directing The Main Opposite Party and its men agents and partners to replace existing 45 KVA Soundless Generator with that of 100 KVA of a reputed brand; and to direct them to take necessary steps so that Main Electrical Control Panel is equipped with all necessary electrical equipments as per WBSEDCL guidelines and it is sealed by WBSEDCL. And also to direct the Main Opposite Party to provide Proper electrical earthling and Lightning Arresters in true sense.
vi) A direction does issue directing The Main Opposite Party and its men agents and partners to replace existing lift which can accommodate 3 persons at a time by that of one of a reputed brand which can actually accommodate 5 persons at a time.
vii) A direction does issue directing The Main Opposite Party and its men agents and partners to conduct proper Roof-treatment of Roof-top to avoid water-logging & seepage and to repaint common interiors and common exteriors with good quality paints and damp-proof materials.
viii) A direction does issue directing The Main Opposite Party and its men agents and partners to pay an amount of Rs.50,000/- (Rupees Fifty-thousand Only) to the complainants as Litigation Cost.
ix) A direction does issue directing The Main Opposite Party and its men agents and partners to provide Completion Certificate, Site Plan, Parking Layout Plan and Occupancy Certificate for registration of their apartment as per West Bengal Apartment Ownership Act 1972.
x) Pass such order or orders or further orders and directions as the learned District Commission may think fit and proper for the ends of justice and equity.”
3. After filing of the case notices were duly issued upon the petitioners / opposite parties and the petitioners / opposite parties entered appearance in this case and they were contesting the case by filing written version. During pendency of the case the complainants filed an application for holding a locale inspection by appointing an engineer commissioner. The Learned District Commission was pleased to allow the said application for locale inspection filed by the complainant by the order impugned.
4. Being aggrieved by and dissatisfied with the said order the revisionists / opposite parties have preferred this revisional application.
5. Heard the Learned Counsel appearing for the petitioners. Placing reliance on sub section 9 of section 38 of the Act it was argued by the Learned Counsel for the revisionists / petitioners that the provision of the Code of civil procedure except those which are specifically mentioned in sub section 9 are not made applicable to the proceedings before the Commission and that in terms of the said provision, the Commission is empowered to issue commissions only for examination of witnesses or documents. It was also argued by the Learned Counsel that had the intention of the legislature been that the Commission should have authority to issue commission for locale inspection, the same would have certainly been mentioned in sub section 9 of section 38 of the Consumer Protection Act, 2019. According to the Learned Counsel, in so far as the power to issue commission for locale inspection has not been conferred on the Commission in terms of the provisions of the Act, the order impugned is liable to be treated as one passed without jurisdiction. The Learned Counsel has relied on the decisions of the High Court of Andhra Pradesh at Hyderabad in M/s. Shiva Shakti Builders, Hyderabad & Anr. V. Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad & Ors., AIR 2009 AP 84, in support of the said contention.
6. I have examined the arguments advanced by the Learned Counsel for the petitioners.
7. The short question that falls for consideration as to whether the Commission constituted under the Act is empowered to issue commission for locale inspection.
8. Sub section 9 of section 38 of the Consumer Protection Act, 2019 runs as follows :-
“For the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-
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 object 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.”
9. 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 powers of Code of Civil procedure are not applicable.
10. The Act provides for the summary disposal of the complaints within the timeframe mentioned therein. All the complaints where the sample alleged defective goods is not sent to the appropriate laboratory are to be decided within 3 months whereas the complaints 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 of locale 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 an expert for locale 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.
11. 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 in law. The facts which they want to prove by appointing commissioner can be proved otherwise also.
12. It is also settled law that 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 the District Commission in accordance with law.
13. In M/s Shiva Shakti Builders, Hyderabad & Anr. v. Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad & Ors. reported in 2009 AP 84 the Hon’ble High Court, Andhra Pradesh has observed in paragraph No. 13 which are reproduced as under :-
“It may also be necessary to note that in the decision of a learned single Judge in Yogendra Builders v. Vidya Paradise Owners’ Welfare Association, (AIR 2008 AP 31) (supra), reference was made to a decision of the Madras High Court in Ramaniyam Real Estates Limited v. Triveni Apartments Owners Welfare Association, AIR 1999 Mad 24 for the proposition that local inspection by an expert can be ordered by the Consumer Forum as it has trappings of a civil court. Although the said decision supports the case of third respondent, but in view of the decisions of the Supreme Court referred to above, we are not persuaded to agree with the said view. Except those provisions of the Code mentioned under Section 13(4) of the Act, no other provisions of the Code can be applied to the Consumer Fora under the Act. Summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, discovery and production of any document, reception of evidence on affidavits and requisitioning of expert reports, are all matters provided for under clauses (i) to (iv) of Section 13(4) of the Act and clause (v) specifically provides for issuance of any commission for examination of any witness. If really the legislature intended to provide for applicability of entire Order 26 of the Code, it could have said so instead of confining itself to issuance of commission only for the purpose of examination of witnesses. In view of the specific legislative intent discernible from the aforesaid provision, we are of the view that the powers as exercisable by the civil court under Order 26 of the Code are not available to the Consumer Fora under the Act. It is, however, open for the third respondent-complainant to establish his allegations by leading such evidence, as he is advised. In fact, as mentioned above under Section 13(4)(iii) of the Act evidence on affidavits can be received by the Consumer Fora under the Act which may be affidavits of experts including an civil engineer. However, invoking the provisions under Order 26, Rule 9 of the Code and seeking appointment of an advocate commissioner to make local inspection along with an civil engineer and submit a report etc., as ordered by the Consumer District Forum and as approved by the State Commission under the impugned orders herein, is, however, clearly unsustainable in the absence of any such power being available.”
14. Under these facts and circumstances it is, however, not out of place to reiterate that the parties might as well resort to other methods of adducing evidence of the fact in question by resorting to the evidence of the expert and file his affidavit. The order of the District Commission in its present form is squarely in conflict with the law. So, it is liable to be set aside.
15. Accordingly, the revision petition is allowed and the impugned order No. 12 dated 10/05/2024 passed by the Learned District Consumer Disputes Redressal Commission, Paschim Medinipur is hereby set aside.
16. However, it is open to the parties to adduce expert evidence in order to make out what they intend to make out by getting a commissioner appointed. There shall be no order as to costs.
17. The revision application is, thus, allowed and disposed of accordingly.
18. Let a copy of this order be sent to the Learned District Commission at once for information.
19. Office to comply.
