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2018 DIGILAW 3015 (BOM)

Govind Dewaji Chavan v. Wasudeo Ambadas Bhusate

2018-12-20

MANISH PITALE

body2018
JUDGMENT : 1. By this Writ Petition, the petitioner has challenged judgment and order dated 27-12-2016, passed by the District Consumer Disputes Redressal Forum, Yavatmal, in Compliant No. CC139 of 2014, whereby the petitioner has been directed to pay amount of compensation of Rs. 5 lakhs to respondent nos. 1 and 2 (original complainants) for having prepared incorrect map of the property in question on 05-04-1991 and to pay interest at the rate of 6% per annum from the said date. It is the contention of the petitioner, that he was not even a party in the complaint before the District Consumer Forum and that, therefore, the impugned judgment and order is liable to be set aside. 2. On 20-06-2014, the respondent nos. 1 and 2 filed the said complaint before the District Consumer Forum in which respondent nos. 3 to 7 were added as opposite parties. Respondent nos. 3 and 4 were arrayed in the capacity of being developers of the property/lay out in which the respondent nos. 1 and 2 had purchased plots. Respondent no.5 was the SubDivisional Officer of Darwa, respondent no.6 was the Assistant Director of Town Planning, Yavatmal and respondent no.7 was the District Collector, Yavatmal. The grievance of respondent nos. 1 and 2 before the District Consumer Forum was that due to the documents prepared by respondent nos. 5 to 7 herein, the plots sold to them did not have approach road, thereby causing harassment and loss to them. It was contended by respondent nos. 1 and 2, that the developers i.e. respondent nos. 3 and 4 had delayed the development of the lay out, thereby causing loss to them. A perusal of the prayer clause of the said complaint shows that a restrainment order is sought against respondent nos. 3 and 4 by using machinery from undertaking any work in the plot in question. It is further prayed that respondent nos. 4 and 5 herein be restrained from undertaking any work in the said land. A further prayer is made for a direction to respondent nos. 3 to 5 to compensate the respondent nos. 1 and 2 for the loss caused to them. The respondent nos. It is further prayed that respondent nos. 4 and 5 herein be restrained from undertaking any work in the said land. A further prayer is made for a direction to respondent nos. 3 to 5 to compensate the respondent nos. 1 and 2 for the loss caused to them. The respondent nos. 1 and 2 specifically claimed that a map drawn by the Assistant Director of Town Planning, Yavatmal i.e respondent no.6 herein had led to improper position of plots purchased by them, as a result of which, they had suffered loss. 3. Since, the Assistant Director of Town Planning, Yavatmal, was arrayed as opposite party in official capacity, the person holding the said post at the relevant time i.e. one Mukund Tatte filed reply on 30-10-2014, to the said complaint filed by respondent nos. 1 and 2. In the said reply, the allegations made regarding drawing of map in question were denied and it was submitted that the complaint be disposed of by taking into consideration the submissions made in the reply. 4. By the impugned judgment and order dated 27-12-2016, inter alia, the District Consumer Forum held that the person holding office of the Assistant Director of Town Planning, Yavatmal on 05-04-1991, when the map in question was drawn, was liable to compensate the respondent nos. 1 and 2 for the harassment and loss suffered by them. Accordingly, it was directed that the person holding charge of the said post of the Assistant Director of Town Planning, Yavatmal on 05-04-1991, would pay amount of Rs. 5 lakhs to respondent nos. 1 and 2 and to pay interest at the rate of 6% per annum from 05-04-1991. As the petitioner happened to be holding the said position on the said date, respondent nos. 1 and 2 sought to execute the impugned order passed by the District Consumer Forum against the petitioner. Aggrieved by the same, the petitioner has filed the present Writ Petition. 5. Mr. S.O. Ahmed, learned Counsel appearing for the petitioner submitted that the impugned order passed by the District Consumer Forum completely violated the principles of natural justice because the petitioner was never made party in the said proceedings. It was further submitted that the Assistant Director of Town Planning, Yavatmal, was arrayed as opposite party in official capacity and therefore, there was no question of executing the impugned order against the petitioner. It was further submitted that the Assistant Director of Town Planning, Yavatmal, was arrayed as opposite party in official capacity and therefore, there was no question of executing the impugned order against the petitioner. It was submitted that reply on behalf of the Assistant Director of Town Planning, Yavatmal was filed by the person holding the said post at the time when the complaint was filed and taken up for consideration by the District Consumer Forum. Therefore, it was evident that the impugned order was passed behind back of the petitioner. Apart from this, it was submitted that a perusal of the contents of the complaint and the prayers made therein clearly demonstrated that the respondent nos. 1 and 2 could, at best, raise grievance against the respondent nos. 3 and 4, who were developers of the layouts and plots. The petitioner who was holding charge of the post of Assistant Director of Town Planning, Yavatmal, on 05-04-1991, when the map of the land was drawn, could never be arrayed as an opposite party in the complaint. It was submitted that the map so drawn and the measurements made could have been corrected by way of proper proceedings instituted before the competent Authority and it could not be made subject matter of a consumer complaint. It was further submitted that the petitioner was a retired person, now aged about 62 years and that he was being unnecessarily harassed before the District Consumer Forum, where he was not even a party in the complaint. The learned Counsel for the petitioner submitted that since there was flagrant violation of the principles of natural justice in the present case, the Writ Petition was maintainable, despite alternative remedy of filing of an appeal before the State Consumer Commission under the provisions of the Consumer Protection Act, 1986. 6. On the other hand, Mr. R.J. Shinde, learned Counsel appearing for respondent nos. 1 and 2 submitted that Writ Petition deserved to be dismissed in view of the alternative remedy available to the petitioner. It was pointed out that respondent nos. 6. On the other hand, Mr. R.J. Shinde, learned Counsel appearing for respondent nos. 1 and 2 submitted that Writ Petition deserved to be dismissed in view of the alternative remedy available to the petitioner. It was pointed out that respondent nos. 1 and 2 had suffered harassment and loss because of the wrong map prepared by the petitioner as the Assistant Director of Town Planning, Yavatmal, on 05-04-1991 and that, therefore, the District Consumer Forum was justified in passing the impugned order, holding respondent no.6 Assistant Director of Town Planning, Yavatmal liable, particularly when the office of the Assistant Director of Town Planning, Yavatmal, was made party to the proceedings. 7. Mr. S.A. Sahu, Counsel holding for Mr. M.I. Dhatrak, Advocate appeared on behalf of respondent no.3 and Ms Khan, learned AGP, appeared on behalf of respondent nos. 5, 6 and 7. 8. A preliminary objection regarding the Writ Petition not being maintainable in view of existence of alternative remedy needs to be considered first. It is the case of the petitioner that there was violation of principles of natural justice in the present case because the petitioner was never made party in the proceedings before the District Consumer Forum. It was submitted, in such a situation, it has been held by Courts that a Writ Petition could be entertained by this Court. There is no doubt about the fact that the impugned order passed by the District Consumer Forum can be made subject matter of challenge in appeal before the State Consumer Commission under the provisions of the said Act. But, the facts of the present case show that the petitioner was never made party in the complaint filed by respondent nos. 1 and 2. The opposite party no.4 (respondent no.6 in this Writ Petition) was the Assistant Director of Town Planning, Yavatmal in the official capacity. The person holding the said office did file the reply and denied the allegations made by respondent nos. 1 and 2 in respect of map drawn on 05-04-1991. But, the petitioner was never party before the District Consumer Forum and yet the entire liability was foisted on him. Thus, there was clear violation of the principles of natural justice in the present case when the impugned order was passed. 9. 1 and 2 in respect of map drawn on 05-04-1991. But, the petitioner was never party before the District Consumer Forum and yet the entire liability was foisted on him. Thus, there was clear violation of the principles of natural justice in the present case when the impugned order was passed. 9. In the case of Committee of Management and another vs Vice-Chancellor and others, reported at (2009) 2 SCC 630 , while considering the question of maintainability of Writ Petition when alternative remedy is available, the Hon'ble Supreme Court held as follows : “22. Apart from the fact that a statutory authority cannot consider the validity of a Statute, as has been urged before us by Mr. Chaudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. 23. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 1 : "15. .... But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged." [See also Guruvayoor Devaswom Managing Committee & Anr. v. C.K. Rajan & Ors. (2003) 7 SCC 546 ]” 10. A reference to the said judgment has made by this Court in the case of Abhay s/o Narayan Raje and others vs Shrikant s/o Ramesh Bhalerao and others, reported at 2010(5) Mh.L.J. 601 , wherein it has been held as follows :- “11. v. C.K. Rajan & Ors. (2003) 7 SCC 546 ]” 10. A reference to the said judgment has made by this Court in the case of Abhay s/o Narayan Raje and others vs Shrikant s/o Ramesh Bhalerao and others, reported at 2010(5) Mh.L.J. 601 , wherein it has been held as follows :- “11. So far as the another decision relied upon by the learned counsel for the petitioners reported in (2009) 2 Supreme Court Cases 630; Committee of Management and another Vs. Vice-Chancellor and others, is concerned, there cannot be dispute about the proposition that the alternate efficacious remedy cannot be an absolute bar, when the order passed by the authority is without jurisdiction or in violation of the principles of natural justice. In this case, I have already held that the jurisdiction of the District Consumer Forum is not barred and the order passed by the District Consumer Forum cannot be said to be without jurisdiction. There is no complaint that the order was passed in violation of the principle of natural justice. Hence, the said judgment is of no avail to the petitioners.” 11. Thus, it is evident that when there is violation of principles of natural justice or the order of the District Consumer Forum, can be said to be without jurisdiction, a Writ Petition challenging such order of the District Consumer Forum cannot be thrown out only on the ground of existence of alternative remedy of filing appeal before the State Consumer Commission. Therefore, the preliminary objection raised on behalf of respondent nos. 1 and 2 is rejected and the present Writ Petition is held to be maintainable. 12. A perusal of the complaint filed by respondent nos. 1 and 2 in the present case shows that prayers have been made principally against respondent nos. 3 and 4 i.e. Developers, for the loss and harassment suffered by the petitioner due to lack of existence of approach road to the plots purchased by respondent nos 1 and 2. The prayer clause shows that no prayer has been made as regards payment of compensation by opposite party no.4 i.e. respondent no.6 herein/ Assistant Director of Town Planning, Yavatmal. The only grievance of respondent nos. 1 and 2 appears to be that map on record pertaining to the land in question had created some confusion leading to lack of approach road to the plots belonging to them. The only grievance of respondent nos. 1 and 2 appears to be that map on record pertaining to the land in question had created some confusion leading to lack of approach road to the plots belonging to them. The person holding office of the Assistant Director of Town Planning, Yavatmal, filed reply before the District Consumer Forum denying that there was any mistake in the map. 13. In this situation, when there was no specific prayer made in the complaint and a reply was on record by the person holding the office of Assistant Director of Town Planning, Yavatmal, the District Consumer Forum could not have held that the person holding office of the said post on 05-04-1991, when the map was drawn, was liable for compensating the respondent nos. 1 and 2. There was no basis for reaching the said conclusion. In fact, the District Consumer Forum could have exercised its jurisdiction insofar as the opposite party nos. 1 and 2 (respondent nos. 3 and 4 herein) were concerned, because they were alleged to be the developers who had sold the plots to respondent nos.1 and 2. It is difficult to understand how the Assistant Director of Town Planning, Yavatmal, the SubDivisional Officer or the Collector of the District could be held liable for alleged harassment and loss suffered by respondent nos. 1 and 2. In any case, as regards the alleged mistake in a map drawn by the Assistant Director of Town Planning, Yavatmal, the respondent nos. 1 and 2 had remedy to approach the competent authority for correction of such mistake. In such a situation, to hold that the Assistant Director of Town Planning, Yavatmal, was liable to compensate the respondent nos. 1 and 2 as “consumers”, is wholly unsustainable. 14. In any case, the petitioner was never made party to the proceedings before the District Consumer Forum. It is beyond imagination, as to how the District Consumer Forum could have foisted liability of compensation to be paid to respondent nos. 1 and 2 when the petitioner was never made party in the proceedings. 14. In any case, the petitioner was never made party to the proceedings before the District Consumer Forum. It is beyond imagination, as to how the District Consumer Forum could have foisted liability of compensation to be paid to respondent nos. 1 and 2 when the petitioner was never made party in the proceedings. It is also difficult to understand how the Consumer Forum came to a conclusion that the map drawn on 05-04-1991, was the source of all the trouble for respondent nos.1and 2 and that, therefore, the person holding the office of the Assistant Director of Town Planning, Yavatmal on 05-04-1991, was liable to compensate respondent nos. 1 and 2, in the proceedings initiated under the provisions of the said Act. The entire approach of the District Consumer Forum was unsustainable and insofar as the petitioner is concerned, the impugned order was not only without jurisdiction, but in flagrant violation of the principles of natural justice. 15. In the light of the above, it is evident that the direction given by the District Consumer Forum in clauses 2, 5, and 7 of the impugned order pertaining to the petitioner, are wholly unsustainable and deserve to be set aside. Therefore, the present Writ Petition is allowed in the following terms :- (a) The present Writ Petition is allowed. (b) Clauses 2, 5 and 7 pertaining to the liability imposed upon the petitioner for compensating respondent nos. 1 and 2 to the tune of Rs. 5 Lakhs and depositing amount of Rs. 10,000/- in the Consumer Welfare Fund are quashed and set aside. (c) The observations and directions given in the impugned order against the petitioner are set aside. 16. Rule is made absolute in above terms.