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2013 DIGILAW 1438 (BOM)

Amerkar Construction and Sons v. Anil Redkar

2013-07-29

F.M.REIS

body2013
JUDGMENT F.M. Reis, J.- Heard Mr. J.P. Mulgaonkar, learned counsel a appearing for the petitioners and Mr. P.A. Kholkar, learned counsel appearing for the respondents. 2. The above petition challenges the orders passed by the District Consumer Forum and the State Commission Forum whereby the contention raised by the petitioners to the effect that the execution of the sale deed in favour of the respondents should be subject to an easementary right in favour of the petitioners and other residents located towards the western side of the suit plot came to be rejected. 3. At the outset, Mr. P.A. Kholkar, learned counsel appearing for the respondents has raised the contention that the above Writ Petition is not maintainable as according to him an alternate remedy was available to the petitioners in filing a revision before the National Consumer Forum. The learned counsel has relied upon Section 21 (b) of the Consumer Protection Act, 1986 which according to the respondents provides that the petition lies to the National Consumer Forum. The learned counsel as such submits that the above petition deserves to be rejected. 4. On the other hand. Mr. J. P. Mulgaonkar, learned counsel appearing for the petitioners has pointed out that the revision in terms of Section 21(b) of the Consumer Protection Act, is only with regard to the orders passed by the State Consumer Forum in an adjudication in a consumer dispute. The learned counsel further points out that the order impugned in the present petition is an order passed in exercise of the Appellate jurisdiction and as such, the revision in terms of Section 21 (b) of the said Consumer Protection Act, is not maintainable. In support of his submissions, learned counsel has relied upon the judgment of the learned Division Bench of this Court reported in AIR 2010 Bom 139 in the case of R.B. Upadhyay v. State Commission for Consumer Disputes, Mumbai. 5. Upon considering the rival contentions with regard to the maintainability of the above Writ Petition, I find that the Division Bench of this Court in the judgment in the case of R.B. Upadhyay (supra) has observed at para 10 thus : "10. 5. Upon considering the rival contentions with regard to the maintainability of the above Writ Petition, I find that the Division Bench of this Court in the judgment in the case of R.B. Upadhyay (supra) has observed at para 10 thus : "10. Before we answer the main questions, we may first deal with the preliminary objection raised on behalf of the respondent No. 2 that as a Revision is available before the National Commission, this Court ought not to exercise its extraordinary jurisdiction. Section 21 (b) on which reliance is placed, reads as under:- "21. Jurisdiction of the National Commission : (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity" 'Thus from the clear and literal language of Section 21 (b) the revisional jurisdiction can only be if a consumer dispute is pending before or has been decided by the State Commission. In other words the National Commission would have no jurisdiction if the order is passed in exercise of the Appellate power or Revisional jurisdiction exercised by the State Commission under Section 17(b). The power under Section 21(b) is in respect of a complaint filed before the State Commission. In our opinion, therefore, the first contention as urged is devoid of merit." 6. Taking note of the said observations of the Division Bench of this Court. I find that the contention of Mr. Kholkar, learned counsel appearing for the respondents cannot be accepted and as such stands rejected. 7. With regard to the merits of the above petition, Mr. Mulgaonkar, learned counsel appearing for the petitioners has pointed out that by order dated 05.11.2004 the District Forum directed the respondents to execute the sale deed. The learned counsel further pointed out that the petitioners have shown the willingness to execute the sale deed subject to the recitals that the easementary right of the adjoining plots on the western side are to be reserved. The learned counsel further pointed out that the petitioners have shown the willingness to execute the sale deed subject to the recitals that the easementary right of the adjoining plots on the western side are to be reserved. The learned counsel has taken me through the written statement filed by the petitioners and pointed out that at para 9 there is a specific averment to the effect that there is a claim of an easementary right by the adjoining plots owners which are otherwise occupied by the petitioners and other persons. The learned counsel further submits that unless d and until the said aspect is adjudicated, the question of directing the execution of the sale deed would not arise. 8. On the other hand. Mr. Kholkar, learned counsel, appearing for the respondents has supported the impugned orders. The learned counsel has pointed out that the District Forum as well as the State Commission have found that the original plan approved by the Town and Country Planning Department do not disclose any such easementary right. The learned counsel further submits that the authorities below have rightly appreciated the material on record and concurrently found that the contention of the petitioners to reserve the easementary right in favour of the adjoining plot owners cannot be accepted. The learned counsel as such submits that there is no case made out for interference in the impugned orders. 9. I have considered the submissions of the learned counsel and I have gone through the records. It is not in dispute that the alleged claim of an easementary right by the petitioners to the adjoining plots a which is located towards the western side of the disputed plot in the present petition, has not been adjudicated by any Court or Authority. Unless and until the claim is duly adjudicated in accordance with law, the question of claiming an encumbrances to be reserved in the plot directed to be conveyed in favour of the respondents does not arise. The petitioners, if so advised would have to take appropriate remedy in accordance with law to establish such claim. 10. Subject to the above. I find that there is no case made out for any interference in the impugned orders passed by the authorities below. On perusal of the orders impugned in the present petition. I find no jurisdictional error committed by the authorities below while passing such orders. 10. Subject to the above. I find that there is no case made out for any interference in the impugned orders passed by the authorities below. On perusal of the orders impugned in the present petition. I find no jurisdictional error committed by the authorities below while passing such orders. 11. Subject to the above, the petition stands rejected. Rule stands discharged.