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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 224-225 OF 2015

KAMLESH AGGARWAL ………APPELLANT

Vs.

NARAIN SINGH DABBAS & ANR. ……RESPONDENTS

J U D G M E N T

V.GOPALA GOWDA, J.

Aggrieved by the dismissal of her First Appeal

Nos. 645 and 646 of 2013 vide order dated 8.1.2014 by

the National Consumer Disputes Redressal Commission,

New Delhi, purported to have been filed under Section

21 of the Consumer Protection Act, 1986 (for short

“the Act”), against the order dated 30.7.2013 passed

by the State Consumer Disputes Redressal Commission,

Lucknow in Appeal Nos. 2082 and 2083 of 2010, the

appellant has filed these appeals, urging various

relevant facts and legal contentions seeking for

setting aside the said order.

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2.The brief facts of the case are stated as

under :-

The appellant filed a Complaint No. 24 of 1998

before the District Consumer Disputes Redressal

Forum, Ghaziabad (for short “the District Forum”)

against Navchetna Sahkari Awas Samiti Ltd.-the

respondent in the original complaint, for not

allotting and registering plot No. 114, Village

Khoda, Ghaziabad in her name as the Awas Samiti, in a

resolution passed by it, cancelled the membership of

the appellant from the Navchetna Sahkari Awas Samiti

Ltd. in default of payment by her.

3.The District Forum vide its order dated

17.10.2003 after conducting an enquiry as provided

under the provisions of the Act, accepted the

complaint of the appellant and directed the Navchetna

Sahkari Awas Samiti Ltd. to allot the said plot in

favour of the appellant and also to register the same

in her favour within 3 months from the date of the

order.

4.Since, there was non compliance of the order

dated 17.10.2003, the appellant filed Execution

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Petition before the District Forum to execute the

order and requested it to punish the respondents

under Sections 25 and 27 of the Act. In the said case

one Gulab Singh (the alleged subsequent allottee of

the plot in question) filed an application in the

above proceedings for impleadment before the District

Forum as he was in the possession of the plot in

question, which was allotted by the respondents and a

Civil Suit No. 1510 of 2005 filed by him was pending

in the Civil Court. The District Forum vide its order

dated 13.9.2006 held that the order dated 17.10.2003

is null and void. It was further held by the District

Forum that the appellant should approach the Civil

Court and only after the rejection of the suit of

Gulab Singh in the Civil Court the execution

proceedings will be heard by the District Forum and

pass appropriate order and rejected the application

of impleadment of Gulab Singh.

5.Being aggrieved by the order dated 13.9.2006 of

the District Forum, the appellant filed Appeal

No. 2636 of 2006 before the State Consumer Disputes

Redressal Commission, Uttar Pradesh, Lucknow (for

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short “the State Commission”). The State Commission

has passed an order dated 7.9.2007 holding that it

was not open for the District Forum to review the

same matter on merits at the instance of the

impleading applicant and declare its earlier decree

as null and void. Thus, the State Commission allowed

the appeal of the appellant and directed the District

Forum to proceed afresh with the execution

proceedings.

6.The said order dated 7.9.2007 of the State

Commission was not challenged by the respondents, but

Gulab Singh filed Revision Petition No. 4069 of 2007

before the National Consumer Disputes Redressal

Commission, New Delhi (for short “the National

Commission”) against the said order.

7.The National Commission, having found either no

illegality or material irregularity in the order

dated 7.9.2007 passed by the State Commission,

dismissed the Revision Petition of Gulab Singh on

12.8.2008 by observing that the State Commission was

fully justified in allowing the appeal filed by the

appellant and setting aside the order dated 13.9.2006

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passed by the District Forum.

8.The appellant filed the application for execution

of the order dated 17.10.2003 before the District

Forum. On 29.5.2010, the District Forum allowed the

execution petition directing for compliance of the

order dated 17.10.2003. It further directed to

provide alternate plot as a replacement for the plot

in question to the appellant and if there is no plot

available, in that circumstances, to pay the amount

as compensation to the appellant at the current rate

equivalent to the area of the plot in question.

9.The respondents filed review application before

the District Forum in Execution Case No. 96 of 2010

for review of order dated 29.5.2010. The District

Forum vide its order dated 26.11.2010 dismissed the

review application and found the respondents guilty

for non-compliance of order dated 17.10.2003 passed

in Complaint Case No. 24 of 1998 and ordered for

three months imprisonment of the respondents along

with penalty amount of Rs.3000/- payable by them

under provisions of Section 27 of the Act.

10.Being aggrieved by the abovesaid order, the

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respondents filed Appeal Nos. 2082 and 2083 of 2010

before the State Commission which were allowed by its

order dated 30.7.2013 by setting aside the order

dated 26.11.2010 of the District Forum. The State

Commission observed that the District Forum has not

adopted the procedure of summary trial at the time of

passing the order of conviction and sentence imposed

upon the respondents as provided under the Criminal

Procedure Code, 1973, for non-compliance of order

dated 17.10.2003. The State Commission also observed

in its order that at no point of time the respondents

were afforded an opportunity of being heard against

the disobedience of the order dated 17.10.2003 of the

District Forum, which is mandatory as per provisions

of sub-clause (3) of Section 27 of the Act and it has

to try them by following the summary procedure by the

District Forum empowered as Judicial Magistrate of

the First Class for the purpose of Code of Criminal

Procedure. Thus, the State Commission has allowed the

appeal of the respondents and set aside the

conviction and sentence order passed against them.

11.The appellant being aggrieved by the order dated

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30.7.2013 filed First Appeal Nos. 645 and 646 of 2013

before the National Commission. The National

Commission vide its order dated 8.1.2014 dismissed

the appeals holding that there is no provision in

the Act regarding the filing of second appeal under

Sections 27 or 27A of the Act; even under Section 21

of the Act, a petition filed against the order passed

under Section 27A of the Act could not be entertained

by it as the appellant has no right and the National

Commission has no jurisdiction to entertain such

appeal. Hence, these appeals are filed by the

appellant as she is aggrieved by the order of both

the State Commission and the National Commission.

12.Mr. Digendra Sharma, the learned counsel

appearing on behalf of the appellant contended that

the National Commission should not have dismissed the

appeals of the appellant as the same would render the

appellant remediless for executing decree passed

against the respondents who have till date not

complied with the order dated 17.10.2003 passed by

the District Forum and even the same has not been

challenged by the Navchetna Sahkari Awas Samiti Ltd.

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and therefore, the same has attained finality. It was

further contended by him that by dismissing the

second appeal of the appellant, the order dated

17.10.2003 would become ineffective and she has not

got the fruits of the order. The order passed by the

District Forum in favour of the appellant, which has

attained finality cannot be made in-executable on

technical grounds. Even if the order of the District

Forum in convicting and sentencing the respondents is

found to be illegal, the State Commission ought to

have remanded the matter to the District Forum with a

direction to it to follow the procedure and pass

appropriate order.

13.On the contrary, Mr. Anukul Chandra Pradhan, the

learned senior counsel appearing on behalf of the

respondents contended that the appellant has the

remedy of revision before the National Commission as

available under Section 21(b) of the Act.

14.It was further contended by him that the District

Forum should have followed the provisions of Criminal

Procedure Code while dealing with the application

filed by the appellant under Section 27 of the Act

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and passed the order and therefore he submits that

the impugned order does not warrant interference by

this Court.

15.We have heard both the learned counsel on behalf

of the parties. In the facts and circumstances of the

case, we are of the view that the State Commission

should have remanded the matter to District Forum

after setting aside its order dated 26.11.2010 with a

direction to proceed with the matter in accordance

with the procedure contemplated under the Code of

Criminal Procedure referred to supra for taking penal

action against the respondents who are the concerned

officers of Navchetna Sahkari Awas Samiti Ltd. for

non-compliance of the order. The National Commission

has rightly declined to exercise the power under

Section 21 of the Act to set aside the order dated

30.7.2013 of the State Commission as no second appeal

is provided against the order of the State Commission

in view of sub-Section 2 of Section 27A of the Act,

which states as under :-

“27A. Appeal against order passed under

Section 27.-(1) Notwithstanding anything

contained in the Code of Criminal Procedure

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1973 (2 of 1974), an appeal under Section

27, both on facts and on law, shall lie

from –

the order made by the District Forum to the

State Commission;

the order made by the State Commission to

the National Commission; and

the order made by the National Commission

to the Supreme Court

(2) Except as aforesaid, no appeal shall

lie to any court from any order of a

District Forum or a State Commission or the

National Commission……”

From the reading of the above provisions of the Act,

it is clear that against the order passed by the

District Forum under Section 27A of the Act, appeal

lies to the State Commission and against the order of

the State Commission, the appeal lies to the National

Commission and against order of the National

Commission, the appeal lies to the Supreme Court and

sub-section 2 of the Act states that except as

aforesaid, no appeal shall lie to any court from any

order of a District Forum or a State Commission or

the National Commission as the case may be.

Therefore, we have to hold that the order passed by

the National Commission in holding that appeals filed

by the appellant is not maintainable, is legal and

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valid and does not call for interference by this

Court. The petition filed under Article 136 of the

Constitution of India seeking leave to file appeal

against the order of the National Commission is also

not maintainable in law, however we have to interfere

with the order of the State Commission only to the

extent in not remanding the case to the District

Forum for passing an order in accordance with law, in

not doing so, the right accrued in favour of the

appellant will be lost and therefore, we have to pass

appropriate order in this regard .

16.Having regard to the fact situation that the

appellant, who is a consumer, has been litigating the

matter before the District Forum, State Commission

and the National Commission for the last 17 years to

get her legitimate right of getting the sale deed

registered in respect of the allotted site made by

the Navchetna Sahkari Awas Samiti Ltd. in her favour

who is its member since 1962, therefore, we deem it

proper to exercise our power under Article 142 of the

Constitution of India for the reason that the State

Commission has erred in not remanding the case to the

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District Forum, after it has found fault with the

order of the District Forum in convicting and

sentencing the officers of Navchetna Sahkari Awas

Samiti Ltd. who are the respondents herein for not

following the procedure as provided under the

Criminal Procedure Code and for that reason we deem

it just and proper to remand the case to the District

Forum with a direction to the District Forum to

follow the procedure under Section 262 read with

Chapter XX, Section 251 of the Code of Criminal

Procedure to initiate penal action against the

respondents under Section 27 of the Act for non

compliance of the statutory provisions.

17.It is also needless to mention in this order that

no remedy is available to the appellant against the

order of the District Forum even under Section 24 of

the Act for the reason that the order passed by the

State Commission, which was not interfered with by

the National Commission holding that second appeal is

not maintainable against the order of the State

Commission. Further, the order passed by the State

Commission is under Section 27A of the Act in the

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appeal against the order dated 30.7.2013 of the

District Forum which under Section 27(2) of the Act

convicted and sentenced the respondents in the

execution proceedings for non implementation of the

order dated 17.10.2003 passed by the District Forum

on the original complaint. Therefore, this Court in

exercise of power of this Court under Article 142 of

the Constitution of India, the order of the State

Commission is modified to the extent of remanding the

case to the District Forum to execute the decree and

take penal action against the respondents by

following the procedure under Section 262 read with

Chapter XX and Section 251 of the Code of Criminal

Procedure in accordance with law.

18.Further, it is needless to observe in this order

that apart from initiating proceedings under Section

27 of the Act, the alternative right is also

available to the appellant to execute the order of

the District Forum by invoking the provisions of Code

of Civil Procedure, 1908 under Order XXI read with

the Rule 32 for seeking direction to the respondents

to get sale deed in respect of the Plot No. 114,

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Village Khoda, Ghaziabad executed by the Navchetna

Sahkari Awas Samiti Ltd. and register the same before

the Sub-Registrar and put her in possession of the

same in accordance with the aforesaid provisions. The

execution of the decree in the aforesaid terms is

permissible in law in view of the provisions of

Section 13(4), (6) and (7) of the Act, as the

provisions of Order XXI read with the Rule 32 of Code

of Civil Procedure are applicable to the District

Forum to follow the procedure for execution of the

order passed by it. In view of the aforesaid

provisions of the Act, the provisions of Order XXI

read with the Rule 32 of Code of Civil Procedure, are

applicable in the execution proceedings before the

District Forum for executing the orders passed on the

complaint of the appellant to get the fruits of the

same in the absence of either express or implied

exclusion of Code of Civil Procedure to execute the

order of the District Forum. The said provisions of

Code of Civil Procedure are applicable to the

procedure for disposal of the complaints by the

District Forum not only in relation to the matters

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enumerated under Section 13(4),(6) and (7) of the

Act but the other provisions of Code of Civil

Procedure viz. Order XXI read with the Rule 32 are

applicable for execution of the order of the District

Forum and to give effect to the order passed by it on

the complaint as the same will be in the nature of

decree as defined under Code of Civil Procedure as

the procedure contemplated under the said order read

with Rule 32 which is a substantial procedural right

of the appellant and the same can be invoked by her

as the decree holder.

19. In addition to above, the alternative remedy is

also available to the appellant to take penal action

against the concerned officers of the Navchetna

Sahkari Awas Samiti Ltd. under Section 27 of the Act

and therefore, she is at liberty to avail the said

remedy also if she wants to get the decree dated

17.10.2003 executed by the District Forum as the same

has attained finality in her favour.

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20. With the aforesaid observation and direction to

the District Forum and liberty to the appellant, we

allow these appeals to the above said extent. No

costs.

…………………………………………………………… J.

[V. GOPALA GOWDA]

………………………………………………………… J.

[R. BANUMATHI]

New Delhi,

February 10, 2015