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2022 DIGILAW 2482 (RAJ)

Sudhir Kumar Kukar v. State Of Rajasthan

2022-09-20

NARENDRA SINGH DHADDHA

body2022
JUDGMENT 1. This Criminal Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India read with Rule 315-H of Rajasthan High Court Rule for quashing the orders dated 12.04.2021 as well as order dated 21.12.2020 qua the petitioner. 2. Learned counsel for the petitioner submits that respondent No.2 had filed a complaint against Divya Ashirwad Pvt. Ltd. before learned State Commission. In the said complaint, petitioner and petitioner's company Indo Crystal Pvt. Ltd. was not made a party. In complaint, no order was passed against the petitioner. Learned counsel for the petitioner also submits that by filing the execution application before the State Commission, respondent No.2 had not given any notice to the petitioner. Learned counsel for the petitioner also submits that respondent No.2 had not preferred any execution application under Section 71. Learned counsel for the petitioner also submits that application filed by respondent No.2 under Section 72 of the Consumer Protection Act, 2019 for non-compliance of the order dated 08.01.2019. Learned counsel for the petitioner also submits that a very first time, petitioner was arrayed as a party (accused). Learned counsel for the petitioner also submits that State Commission without application of mind mechanically took cognizance against the petitioner. Learned counsel for the petitioner also submits that petitioner had filed a review application but State Consumer dismissed the review application filed by the petitioner vide order dated 12.04.2021 holding that same was not maintainable. Learned counsel for the petitioner also submits that cognizance order under Section 72 cannot be challenged in appeal because only a final order can be challenged before National Consumer Forum. Learned counsel for the petitioner also submits that no appeal is lies against the cognizance order as well as dismissal order of the review application. So, orders on 21.12.2020 and 12.04.2021 qua the petitioner be quashed. 3. Learned counsel for the petitioner has relied upon the following judgments : (1) Appeal Execution No.69/2018 in Ravikant G. Salaskar v. Kirit Shah & Ors. decided on 16.04.2018 and (2) Appeal Execution No.104/2021 in Subrata Roy v. Rajesh Chanana decided on 22.12.2021. 4. Learned counsel for the respondent No.2 has opposed the arguments advanced by learned counsel for the respondent and submitted that Section 73 of the Act does not distinguish between the interim order and final order. decided on 16.04.2018 and (2) Appeal Execution No.104/2021 in Subrata Roy v. Rajesh Chanana decided on 22.12.2021. 4. Learned counsel for the respondent No.2 has opposed the arguments advanced by learned counsel for the respondent and submitted that Section 73 of the Act does not distinguish between the interim order and final order. So, present petition is not maintainable and petitioner has only remedy to file the appeal before National Consumer Forum. Learned counsel for the respondent also submitted that review application filed by the petitioner was rightly dismissed, so, petitioner had only remedy to file the appeal before National Commission. Learned counsel for the respondent also submitted that while dismissing the application filed by the petitioner, State Forum in its order dated 12.04.2021 clearly stated that allegation against the petitioner is matter of trial, so, at this stage, no comment is advisable. Learned counsel for the respondent also submitted that petitioner is owner of the plot and he had entered into an agreement with M/s Divya Aashirwad Properties Private Limited and he has shared of 55%. So, he is also equally responsible for obeying the order of State Consumer Forum. So, petition be dismissed. 5. Learned counsel for the respondent has relied upon the following judgments : (1) CWP No.9079/2020 in Pranav Ansal v. State Consumer Disputes Redressal Commisisioner, Punjab & Ors. decided on 13.08.2020; (2) S.L.P (C) Nos.24228-24229 of 2012 (CC Nos.12891-12892 of 2012) Cicily Kallarackal v. Vehicle Factory decided on 06.08.2012 and (3) Civil Appeal No.2674/2007 (Arising out of SLP (Civil) No.17016/2006) in Yallwwa & Ors. v. National Insurance Co. Ltd. & Ors. decided on 16.05.2007. 6. I have considered the arguments advanced by learned counsel for the petitioner as well as learned counsel for the respondent. 7. It is an admitted position that petitioner was not party in a complaint filed by respondent No.2 before the learned State Commission. Petitioner was made party, application filed by respondent No.2 under Section 72 of Consumer Protection Act, 2019. State Commission Forum vide order dated 08.01.2019 had not passed any order against the petitioner. Contention of respondent is that petitioner is land owner and he has 55% share in agreement executed with M/s Divya Aashirwad Properties Private Limited is not tenable because respondent No.2 has not executed any agreement with petitioner and no order was passed against the petitioner by State Consumer Forum. Contention of respondent is that petitioner is land owner and he has 55% share in agreement executed with M/s Divya Aashirwad Properties Private Limited is not tenable because respondent No.2 has not executed any agreement with petitioner and no order was passed against the petitioner by State Consumer Forum. So, in my considered opinion, State Commission has wrongly took the cognizance against the petitioner. So, present petition filed by the petitioner deserves to be allowed. 8. Therefore, the Criminal Writ Petition is allowed and the orders of State Consumer Forum dated 12.04.2021 and 21.12.2020 are set aside qua the petitioner. 9. Pending application also stands disposed of.