Dismissed

Kanpur Development Authority v. District Consumer Dispute and Redressal Kanpur Nagar and Another

Allahabad HC24 May 2023WRIC/17800/2023

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed a writ petition challenging orders passed by the District Consumer Dispute Redressal Commission under Section 72 of the 2019 Act for the petitioner's failure to comply with earlier consumer forum orders regarding land possession. The court upheld the warrant issued for the Vice Chairman's appearance and awarded exemplary costs.

What did the court decide?

Writ petition dismissed with exemplary costs of Rs. 5,00,000/- payable by the petitioner to respondent No. 2 within a week.

Kanpur Development Authority Vs District Consumer… — Consumer Protection | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:116206-DB

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Court No. - 3

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Case :- WRIT - C No. - 17800 of 2023

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Petitioner :- Kanpur Development Authority Respondent :- District Consumer Dispute And Redressal Kanpur Nagar And Another Counsel for Petitioner :- Anand Prakash Paul Counsel for Respondent :- Sanjeev Kumar Tyagi

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Hon'ble Surya Prakash Kesarwani,J. Hon'ble Anish Kumar Gupta,J.

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Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri A.P. Paul, learned counsel for the petitioner and Sanjeev Kumar Tyagi, learned counsel for the respondent No.2.

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This writ petition has been filed praying for the following relief:

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“I. Issue a writ, order or direction in the nature of certiorari calling for record of the case, quash the impugned orders dated 3.2.2023 (Annexure-24 and 27.04.2023 (Annexure -26) passed Respondent No. 1.

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II. Issue a writ, order or direction in the nature of mandamus commanding respondents not to give effect to and not to implement the impugned order dated 03.02.2023 (Annexure-19) and 27.04.2023 (Annexure-22) passed by Respondent No. 1.

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III. Issue any other suitable writ, order or direction as this Hon'be Court may deem fit and proper in the peculiar facts and circumstances of the case, so as to meet the ends of justice.”

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The impugned order dated 03.02.2023 filed as Annexure-24 to the writ petition is an order passed on application of the respondent No.2 under Section 72 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act, 2019’) requiring the petitioner to submit his explanation within ten days and the next date was fixed for 16.02.2022. The impugned order dated 27.04.2023 has been filed as Annexure-26 to the writ petition, whereby due to non-compliance of the order, the respondent No.1 issued a warrant to require the presence of the Vice Chairman of the petitioner.

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This case is a glaring example of high-handedness of the petitioner and

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continuous harassment being caused by the petitioner to the respondent No.2. The petitioner has also not hesitated to make false statement and to file false affidavit before this court which shall be evident from the facts now being narrated below.

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Undisputedly, the petitioner allotted to the respondent No.2 a plot No.70 W/1 Block of Scheme Juhi of Kanpur, measuring 5138.67 square meters by order dated 19.01.1984. The lease was for a period of 99 years. The respondent No.2 complied with the terms of the allotment order but since lease deed was not being executed and possession was not handed over, therefore, the respondent No.2 filed a Complaint Case No.1222 of 2002 (Jawahar Vidya Samiti vs. Kanpur Development Authority and another), which was allowed by order dated 19.12.2003 passed by the District Consumer Forum, Kanpur. The operative portion of the order is reproduced below:

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“परि�वादी संस्था का उपभो्ሹा वाद स्वीका� किकया जाता है। किवप्ቌी सं०-1 को आदेश किदया जाता है किक वह परि�वादी संस्था से एकमुश्त किववाकिदत भूखण्ड का अवशेष ¾ मूल्य रूपया 3,31,444.22 पैसा किदनांक 11.5.1984 से 22.3.97 तक 10 ्ቚतितशत वाቧኌषक ब्याज सकिहत एक माह के अंद� जमा क�ाक�, उसके प्ቌ में भूखण्ड का अकि0म दो माह के अंद� किनबंधन क�के अध्यासन ्ቚदान क�े। यकिद परि�वादी एक माह के अंद� एकमुश्त अवशेष धन�ाशिश किवप्ቌी के खाते में जमा नही क�ता है तो वह किन्ቓ6य के किदनांक से 21 ्ቚतितशत वाቧኌषक ब्याज भी उ्ሹ धन�ाशिश प� किवप्ቌी को भुगतान क�ेगा।

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उभय प्ቌ अपना-अपना वाद व्यय स्वंय वहन क�ें।”

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Against the aforesaid order, the petitioner filed an Appeal No.165 of 2004 (Kanpur Development Authority through Vice Chairman vs. Jawahar Vidya Samiti) before the State Consumer Disputes Redressal Commission, U.P. Lucknow, which was dismissed by order dated 03.07.2015 and the judgment and order of the District Consumer Forum dated 19.12.2003 was affirmed. Against the order of the State Consumer Disputes Redressal Commission, the petitioner filed a Revision Petition No.3201 of 2015 before the National Consumer Disputes Redressal Commission, New Delhi which was also dismissed by judgment and order dated 28.11.2019. Against the aforesaid judgment and order of the National Consumer Disputes Redressal

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Commission, New Delhi, the petitioner filed a Special Leave Petition (Civil) Diary No(s).24590/2020, which was dismissed by Hon’ble Supreme Court by order dated 15.12.2020. Thereafter, the petitioner executed a registered lease deed dated 23.01.2021 in favour of the respondent No.2 for the aforesaid plot No.70. However, the petitioner did not give possession of the aforesaid plot to the respondent No.2 and instead to harass the petitioner, he obtained a report from his Executive Engineer that the plot in question is being used by local residents as park. An Execution Case No.4 of 2020 was filed by the respondent No.2, which was pending before the District Consumer Disputes Redressal Commission, Kanpur Nagar for execution of the judgment and order dated 19.12.2003 which stood affirmed upto Supreme Court. Proceeding with his further approach of harassment to the respondent No.2, the petitioner has passed an order on 04.07.2022 proposing to cancel the allotment and to return the deposited amount of Rs.9,13,485.40 with simple interest @ 9% per annum. He proposed to file a case before the competent authority for cancellation of the lease deed dated 23.01.2021. Aggrieved, the respondent No.2 filed Writ-C No.23521 of 2022, which is pending. Thereafter, the petitioner herein filed Writ-C No.30250 of 2022, in which he made two statements before this court, as under:

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(i) Land has been declared as Park, therefore, the order of the Consumer Forum has become inexecutable.

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(ii) Petitioner may be permitted to give another piece of land.

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The order dated 22.12.2022 passed in Writ-C No.30250 of 2022 (Kanpur Development Authority vs. District Consumer Dispute And Redressal And Another) is reproduced below:

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“Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Shivam Yadav, learned counsel for the petitioner.

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The case of the petitioner is that the order dated 19.12.2003 passed by the District Consumer Dispute Redressal Forum, Kanpur Nagar, Kanpur/respondent no.1 is though unimplementable, is being sought to be executed by the respondent no.2. Learned Senior Counsel Sri Anoop Trivedi assisted by Sri Shivam Yadav has stated that at the time when the order was passed by the

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respondent no.1 the land could be sold but now when that land has been declared a park, the order of the Consumer Forum has become inexecutable.

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Learned Senior Counsel prays that this Court may order that the petitioner may be permitted to give another piece of land instead of the land which the respondent no.1 has ordered the petitioner to sell to the respondent no.2.

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In view of the above submission, we consider it appropriate that the petitioner may file an appropriate application before the District Consumer Dispute Redressal Forum. If the application is filed within one week from today, the respondent no.1-District Consumer Dispute Redressal Forum, Kanpur Nagar would pass appropriate orders within a period of two weeks thereafter in accordance with law.

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With above observation, the writ petition is disposed of.”

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Thereafter, the petitioner herein filed an application dated 06.01.2023 before the respondent No.1 praying to keep on hold the execution proceedings in view of the aforequoted order of the High Court dated 22.12.2022. Against the aforesaid application, the respondent No.2 filed objection dated 11.01.2023 praying for rejection of the application and to initiate proceedings under Section 72 of the Act, 2019. On 02.02.2023 the petitioner herein filed yet another application praying for a month’s time to provide proper plot to the decree-holder, i.e. the respondent No.2. It appears that an internal correspondence took place between the Tehsildar, Kanpur Development Authority, Kanpur and Special Officer (Law) but no plot in alternative could be offered by the petitioner to the respondent No.2.

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Under the briefly aforenoted facts of the case, proceeding under Section 72 of the Act, 2019 was sought to be initiated against the petitioner and in that connection, the respondent No.1 directed to the petitioner by order dated 03.02.2023 to submit explanation within ten days. It appears that the petitioner has submitted some application dated 16.02.2023 to which an objection dated 27.02.2023 was filed by the respondent No.2 praying to reject the application of the petitioner and pass an order under Section 72 of the Act, 2019. In these circumstances, the respondent No.1 has passed an order dated 27.04.2023, as under:

“इज�ा-04/2020

27.04.2023

प्ቔावली पेश हुई। किवप्ቌी की ओ� से स्थगन ्ቚाथ6ना प्ቔ किदया गया है, प�न्तु किवप्ቌी के किवरू्ቍ धा�ा-72 उपभो्ሹा सं�्ቌ्ቓ अतिधकिनयम की काय6वाही चल �ही है। ऐसी ቝኌस्थतित में किवप्ቌी की व्यकि्ሹगत उपቝኌस्थतित आवश्यक है। अतः स्थगन ्ቚाथ6ना प्ቔ का कोई औतिचत्य नहीं है औ� खारि�ज किकया जाता है।

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किदनांक 22.03.2023 को इस आयोग ्ቛा�ा आदेश पारि�त किकया गया किक किवप्ቌी के किवरू्ቍ धा�ा-72 उपभो्ሹा सं�्ቌ्ቓ अतिधकिनयम की काय6वाही अ0स� की जाती है औ� किवप्ቌी को तलब किकया गया, किक वह उपቝኌस्थत इस किबन्दु प� अपना प्ቌ �खे किक क्यों न उसे आयोग के आदेश की अवहेलना के लिलये दोषी मानते हुये दቝኌण्डत किकया जाये। उसके बाद भी किवप्ቌी उपቝኌस्थत नहीं आया। चूंकिक धा�ा -72 की काय6वाही एक दाቝኌण्डक काय6वाही है, जिजसमें सजा का्ቚ ाकिवधान है। अतः उ्ሹ काय6वाही आवश्यक है किक किवप्ቌी की उपቝኌस्थतित में की जाये , प�न्तु किवप्ቌी उपቝኌस्थत नहीं हो �हा है। अतः उसे वा�ण्ट के ्ቛा�ा तलब किकया जाना आवश्यक है। तद़्Pनुसा� किवप्ቌी कानपु� किवकास ्ቚातिधक�्ቓ के उपाध्य्ቌ के किवरू्ቍ आयोग के सम्ቌ उपቝኌस्थतित हेतु गै� जमानती वा�ण्ट तामीला हेतु थानाध्य्ቌ स्वरूप नग� को भेजा जाये।

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प्ቔावली वास्ते सुनवाई/ आदेश व किवप्ቌी की हाजिज�ी हेतु किदनांक 27.05.2023 को पेश हो।

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(नीलम यादव) (किबकानू �ाम) सदस्या अध्य्ቌ”

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The aforequoted order dated 27.04.2023 has also been challenged in the

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present writ petition.

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Section 72 of the Consumer Protection Act, 2019 reads, as under:

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“ Section 72. Penalty for non-compliance of order.

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(1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both.

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(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Commission, the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of first class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of first class for the purposes of the Code of Criminal Procedure, 1973.

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(3) Save as otherwise provided, the offences under sub-section (1) shall be tried summarily by the District Commission or the State Commission or the National Commission, as the case may be.”

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Sub-Section (1) of Section 72 of the Act, 2019 provides that whoever fails to comply with any order made by the District Commission or the State

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Commission or the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty-five thousand rupees, but which may extend to one lakh rupees, or with both. Sub-Section (2) of Section 72 confers upon the District Commission, the State Commission or the National Commission power of a Judicial Magistrate of first class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of first class for the purposes of the Code of Criminal Procedure, 1973.

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It is undisputed that the petitioner has failed to comply with the order of the District Commission as briefly noted above, particularly the order dated 03.02.2023 and has also not complied with the order of the this Court dated 22.12.2022 in Writ-C No.30250 of 2022.

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Since despite time granted to the petitioner, the petitioner failed to comply with the order of the District Consumer Disputes Redressal Commission, Kanpur Nagar as aforenoted, therefore, the respondent No.1 has lawfully exercised powers vested in it by virtue of sub-Section (2) of Section 72 of the Act, 2019 which resulted in passing of the impugned orders dated 03.02.2023 and dated 27.04.2023 passed by the respondent No.1, are well in accordance with law.

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Apart from the above, we repeatedly asked learned counsel for the petitioner to produce before us any notification under the U.P. Parks, Playgrounds and Open Places (Preservation and Regulation) Act, 1975 declaring plot No.70 as a park. On the other hand, learned counsel for the respondent No.2 has produced before us an office note of the Officer Incharge (Assets) Nagar Nigam, Kanpur dated 02.06.2022 in which it has been mentioned that the KDA Plot No.70 W/1 Block of Scheme Juhi of Kanpur was illegally and unauthorisedly allotted for one year by the Udyan Adhikari for

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maintenance to one Sri Bhupesh Awasthi, President, Bhagwan Parashuram Mahasabha which period having expired, the allotment also has to be cancelled and the aforesaid plot is not the property of the Nagar Nigam nor it is owned by Nagar Nigam.

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We have noticed these facts in just preceding paragraph merely for the purposes to make assessments of the high-handedness and harassment attitude of the petitioner against the respondent No.2, who having contested the matter for about 21 years, is not allowed to use the plot allotted to him and also in terms of the registered lease deed. Therefore, for the continuous harassment being caused by the petitioner to the respondent No.2, and dragging in litigation for about 21 years deserves to be awarded exemplary cost which we assess at Rs.5,00,000/-.

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For all the reasons aforestated, the writ petition is dismissed with cost of Rs.5,00,000/- which shall be paid by the petitioner to the respondent No.2 within a week by way of account payee bank-draft.

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Order Date :- 24.05.2023 NLY

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Digitally signed by :- NAND LAL YADAV High Court of Judicature at Allahabad

Kanpur Development Authority v. District Consumer Dispute and Redressal Kanpur Nagar and Another

Case brief

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Kanpur Development Authority v. District Consumer Dispute and Redressal Kanpur Nagar and Another

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