PRONOUNCED ON 22nd DECEMBER, 2016 ORDER M. SHREESHA, PRESIDING MEMBER 1. Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) is to the order dated 24.08.2009 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (in short, ‘the State Commission’), in Revision No. 121/2009, preferred by the Opposite Party. By the impugned order, the State Commission dismissed the Revision Petition with costs of ₹ 3,000/-, which was preferred against the order of the District Consumer Disputes Redressal Forum, Gautam Budh Nagar (in short, ‘the District Forum), in the execution proceedings and confirmed the order of the District Forum. 2. The facts of the case in nutshell are that the Complainant purchased a Kiosk No. K-1A/A-64 in Sector 7, Noida for ₹ 1,04,599.50 from the Opposite Party authority which has also executed a Lease Deed in favour of the Complainant. The Complainant ran the Kiosk positively, till April, 1995, but thereafter, a third person encroached the park containing the Kiosk and a wall was built in front of the Kiosk, on account of which, the Complainant’s belongings were thrown out of the Kiosk, the information of which, was given to the police and also to the office of the Opposite Party. It was averred that on receipt of the information from the Complainant, the Opposite Party informed that they had sold the park wherein the Kiosk was built, to one factory owner and an alternate Kiosk at another place in lieu of the said Kiosk was offered and a fresh application from the Complainant was demanded. It was pleaded that on the basis of the said letter of the Opposite Party, the Complainant has prayed for allotment of Kiosk KC-21A/K—1A situated at Sector-9 in lieu of the aforesaid Kiosk, which the Opposite Party had dismissed. Despite several requests, the Opposite Party did not respond. Thereafter, the Complainant received a letter dated 05.08.1998 wherein the Opposite Party stated that they would inform the Complainant soon after construction of the Kiosk. The Complainant had pleaded that the new Kiosk which was being offered by the Opposite Party was not convenient to him as it was constructed in the back side, far away, where there is no commercial value and also because his Tea business would be affected as the Kiosk is hidden from the customers. Several times, the Complainant had requested the Opposite Party to remove the encroachment and if that was not possible, to allot Kiosk No.KC 21A/K – 1A in Sector-9 to him or else to refund ₹ 1,04,599.50, with interest @ 24% p.a., from 1991, together with compensation of ₹50,000/- and costs of ₹ 10,000/-. 3. Opposite Party had filed their Written Version before the District Forum admitting that the Kiosk in question had been allotted to the Complainant in 1991, on payment of ₹ 1,04,599.50. It was averred that the Complainant was informed vide letter dated 26.12.1995 that the Kiosk could be transferred to Sector 9, Noida. The Opposite Party again informed the Complainant vide letter dated 28.09.1997 that the industrial allottees were being directed that the boundary wall of their plot should be kept open to reach the Kiosk, so that there might not be any difficulty in its usage. 4. The District Forum, based on the evidence, allowed the Complaint directing the Opposite Party to refund the total cost of the Kiosk, i.e., ₹ 1,04,599.50, with interest @ 15% p.a., since May, 1995, till the date of payment and costs of ₹ 1,000/-. 5. Aggrieved by the said order, the Development Authority preferred Appeal No.1685/02 before the State Commission. The Bench comprising Hon’ble Mr. Justice Raghunath Prasad, Presiding Member and Hon’ble Mr. Vinod Shanker Choubey, though had dismissed the Appeal, still passed dissenting orders on 12.12.2008, with regard to liability of the Opposite Party. The Presiding Member, Hon’ble Mr. Justice Raghunath Prasad, while concurring with the finding of the District Forum, vide his order dated 12.12.2008, had observed as follows : “In these circumstances, in the order passed by the Ld. Forum to give Rs. 1,04,599.50 with interest of 15% p.a. since May, 1995, to the date of payment and legal cost of Rs.1,000/-, there is no need to interfere in that. The appeal is liable to be dismissed. ORDER The appeal is dismissed. If the ordered amount be not returned by the appellant to the complainant within two months from the date of the receipt of the certified copy of the order, then the rate will be 18%”. 6. Hon’ble Mr. Vinod Shanker Choubey, Member, though, vide order dated 12.12.2008 dismissed the Appeal, but on a different footing, and held as follows : “Therefore, in view of the commercial status and convenience of the complainant, the authority shall certainly allot an alternate Kiosk at another place where the commercial value of that Kiosk is similar to the earlier Kiosk and at the time of doing this, the distance from the residence of the complainant and other all similar conditions will be considered by the authority. This is a minor complaint which can be solved immediately by any of the authority. It is expected from the authority that an appropriate Kiosk be allotted to the Complainant according to the opinions mentioned in this judgment because in my opinion, this Kiosk is required by the Complainant for livelihood of him and his family. If due to any reason, the Complainant is unable to get the justice, then the situation will arise to consider and that time opinions will be given. In that situation, the forum can be requested for opinion. ORDER Therefore, this appeal is dismissed”. 7. Due to the dissenting orders, the State Commission referred the matter to a 3rd Member for his opinion, i.e., Hon’ble Sh. Roop Singh, who, on 29.01.2009 had passed the following order: “On the basis of appeal, it is stated in the complaint that even today, the opposite party is ready to provide Kiosk. In this case, it is also considered that whether that is similar to the earlier Kiosk and this will be the standard which will settle the complaint. As far as the question of service provider and consumer is concerned, the authority has sold the said park to the industrialist, due to which, the poor person selling tea for earning for their livelihood had to face adverse situation. Hence, I agree with the opinion of Hon’ble Colleague Sh. Vinod Shanker Choubey. It is expected from the opposite party that he made available one appropriate kiosk to the complainant according to the opinion stated in the judgment dated 12.12.2008 of Hon’ble Colleague Sh. Vinod Shanker Choubey and also according to my opinion, because of which, the complainant can earn for the livelihood of himself and his family and the commercial status of that is also equivalent to the kiosk earlier allotted and at the time of executing this, the authority considered the distance from the residence of the complainant and other situation also. ORDER I agree with the opinion of Hon’ble Member Sh. Vinod Shanker Choubey. Thereafter this appeal is dismissed”. 8. In the Execution Proceedings dated 20.07.2009, the District Forum directed the Opposite Party to give possession of Kiosk situated at Sector 18, failing which, action would be taken under Sections 25/27 of the Consumer Protection Act, 1986. 9. The Development Authority preferred a Revision Petition No. 121/2009 before the State Commission against the order dated 20.07.2009 of the District Forum passed in Execution Case No.39/2009. 10. The State Commission has observed as follows :- “We have perused the order dated 16.05.2008 which has been signed by the various authorities of the Development Authority and indeed we find that there is a direction for allotment of a Kiosk to the Complainant in Sector-18. This order on the file of the authority rules out the revisionist’s contention that the complainant is in possession of the changed Kiosk of Sector-7. The revisionist has not filed for our perusal any deed of possession of the changed Kiosk that could be duly signed by the complainant. In the absence of such a deed of possession, we find it difficult to accept the revisionist’s submission regarding the complainant being in possession of any Kiosk. Learned counsel for the revisionist has also submitted that since Sector-18 is a commercial sector while Sector-7 was an industrial sector, it may not be possible for the authority to allot a Kiosk in that sector. Learned counsel for the complainant has, with reference to the original map of Sector-7 in which the Kiosk allotted to the complainant has been exhibited, contended that initially Sector-7 too was a commercial sector but for the reasons best known to the authority, the said sector was converted for industrial use. Having regard to the facts and circumstances which speak of the chequered 17 years old history of this litigation, we hold that the impugned order does not suffer from any jurisdictional error or legal infirmity”. 11. Learned counsel for the Revision Petitioner herein submitted that, though, the District Forum directed for refund of the amount, the State Commission has directed the authority to give alternate Kiosk, in compliance of which, the Petitioner herein was offered a Kiosk in Sector-18 in the year 1997 itself. 12. Learned Counsel for the Complainant submitted that this Kiosk in Sector-18 is available as can be seen from the file notings filed before us. The file notings read as follows :- “Comments Page No. 70 Kindly take reference of file notings of DG(M) Commercial at page No.79/N dated 12.05.2008 in which he instructed the transfer of Kiosk from industrial Sector-7 to Commercial Sector-18. According to allotment in Sector-7, 6.2 sq.m. has been pointed in Sector-18 (Annexed at Page No.306/C). Before administrative approval, finance department may make sure that above mentioned land is not allotted to any other (X). Records are forwarded for further proceedings. T.P(M). Sd/ B. Aggarwal CAP Kindly talk with respect to layout. T.P. Today had discussion. Above-mentioned ‘X’ headed observation at Page No.305/C which is highlighted has been questioned. Sir, administrative approval of above-mentioned site (at page No.306/C) may be given so that directions received from Court may be implemented”. 13. Learned Counsel for the Revision Petitioner submitted that the State Commission has erred in directing the Revision Petitioner to give the Kiosk in Sector-18 to the Complainant, failing to appreciate that the departmental note relied upon, nowhere, mentions that any Kiosk is available in Sector-18. He vehemently contended that the internal notings in the file are for the purpose of departmental use and that the Kiosk in question of the Respondent is on 12 meter Road with open space on three sides which could be an attractive proposition for any Kiosk. Learned Counsel also contended that the State Commission had failed to consider that the Complainant should not have preferred an Execution Petition before the District Forum and the District Forum should not have entertained the same in view of the order passed by the State Commission on 12.12.2008, along with order dated 29.01.2009. 14. To reiterate, in the order dated 24.08.2009, the State Commission in RP 121/2009 has dismissed the Revision preferred by the Petitioner herein, concurring with the finding of the District Forum. 15. A brief perusal of the record shows that the Complainant was allotted a Kiosk in Sector-7 on payment of price of ₹ 1,04,599.50, in the year 1991 which is 25 years’ ago. It is not in dispute that the land on which the Kiosk was proposed to be constructed was allotted to someone else for establishing an industrial unit, the Complainant approached the District Forum seeking direction to the Petitioner to make available Kiosk No.1-A/A-64, Sector-7, to the Complainant according to the conditions mentioned in the registered Lease Deed executed by him and if that is not possible, to allot Kiosk No.C/21/K-1A, situated at Sector-9, Noida or in the alternative, to refund the amount with interest @ 24% p.a. 16. The direction of the District Forum to refund the amount paid was reversed by the State Commission in Appeal No.1685/2002 and vide its majority decision, directed NOIDA authority to allot a Kiosk to the Complainant in place of the originally allotted one. In compliance of the direction given by the State Commission, the District Forum in the Execution proceedings, directed the Petitioner Authority to allot a Kiosk to the Complainant in Sector-18. 17. The State Commission in its impugned order dated 24.08.2009 has taken into consideration the order dated 16.05.2008, signed by various authorities of the Revision Petitioner and came to a conclusion that there was, indeed, a direction for allotment of a Kiosk to the Complainant in Sector-18. It was also observed that the Petitioner Authority did not file any Deed of Possession of the ‘changed’ Kiosk that was duly signed by the Complainant. 18. The submission of the Learned Counsel of the Petitioner Authority that since Sector-18 is a commercial Sector and the original allotment in Sector-7 was in an industrial Sector, it is not possible to allot a Kiosk in Sector-18, is unsustainable, in the light of the perusal of the original map of Sector-7 in which the Kiosk, which was allotted to the Complainant, is exhibited and indicates that Sector-7 too, was a commercial sector which was later converted into sector for industrial use. 19. The Complainant seeks allotment in Sector-9 which he has initially prayed for as it was conducive for his running of the Tea Stall for his livelihood. Technically speaking, the Complainant, having accepted the direction of the State Commission for allotment of Kiosk in Sector-18 is now estopped from making a request for allotment in Sector-9. 20. Having regard to the 25 year old chequered history and the fact that the Complainant was running a Tea Stall at the Kiosk for his livelihood and that the State Commission has directed for allotment in Sector-18, on the basis of the order dated 16.05.2008, this Commission does not find any jurisdictional error or illegality in the impugned order which was passed by the State Commission against the Execution proceedings of the District Forum. Also, keeping in view the limited revisional jurisdiction envisaged by the Hon’ble Apex Court in Mrs. Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd., (2011) 11 SCC 269, this Revision Petition is, accordingly, dismissed. No order as to costs. |
