The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 6025 of 2023 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Bargarh Sub-Divisional House Building Co-Operative Society Ltd., Bargarh …. Petitioner -versus- State of Orissa & Ors. …. Opposite Parties Advocates appeared in the case through Hybrid Mode: : For Petitioner Mr. Laxmi Narayan Patel, Adv. For Opposite Parties : Mr. Ch. Satyajit Mishra, AGA CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-12.10.2023 DATE OF JUDGMENT: -18.10.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition has challenged the order dated 09.12.2019 passed by the State Consumer Disputes Redressal Commission, Odisha, Cuttack in C.D.A. No.310 of 2005 and order dated 16.01.2023 passed in R.A.No.15/2022 arising out of C.D.A.No.310 of 2005 thereby dismissing the Consumer Appeal by exercising their Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 1 of 11 discretionary power for non-prosecution and refusing to restore the original appeal to the file without assigning any reason and without following the principle of natural justice. I. FACTUAL MATRIX OF THE CASE: 2. The facts, in nutshell, are that the petitioner is a co-operative society registered under the Co-operative Society Act, since 28.02.1955 and has been functioning in a rented house as its office. On 28.04.1999, the Collector, Bargarh sanctioned/approved a piece of land admeasuring an area A0.14 decimals from MS Plot No.7290 and 7292 of Mouza- Bargarh in Lease Case No.03/1993 by depositing Rs.2,80,000/- towards premium. Accordingly, the Tahasildar, Bargarh handed over the possession to the Petitioner’s Society on 07.05.1999 for the purpose of construction of three storied building Shop Room-cum-Office on application of petitioner dated 26.02.1993.Accordingly, Special Planning Officer, Bargarh and Executive Officer, Bargarh Municipality granted permission approving building plan vide his letter no.495 dated 05.08.1999 to make construction over the land allotted to the petitioner, since the estimated cost of the building was Rs.36,68,100/-. 3. However, the petitioner society had no fund to meet the project cost. Therefore, the petitioner society decided to make Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 2 of 11 an advertisement/notice to receive the security deposit from the intending persons by inviting application in the prescribed format for allotment of shop-room as per byelaw of the registered society. Accordingly, the Opp. Party no.3 (complainant before the district consumer forum) and many others applied for the same in specific format for allotment of shop-room and as per the terms of notice, the applicant were to deposit security @ Rs.1,20,000/- per shop in the ground floor and Rs.90,000/- for 1st floor payable in installments of 50%, 25% and 25% and the said security amounts bears no interest and same would be refundable only on vacation or evacuation of shop room with proper notice, but the Executive Officer, Bargarh Municipality restrained to the petitioner society from construction of the shop room-cum- office building by order dated 29.01.2000, challenging the order of Executive Officer, Bargarh Municipality, the petitioner preferred Writ Petition vide OJC No.1837/2000
Decision
before this Court, which was disposed of on 30.08.2016. 4. The petitioner filed OGLS Appeal Case No.02/2000 before the RDC, Northern Division, Sambalpur challenging the order of the Executive Officer, Municipality, Bargarh and the villagers also intervened the said appeal and for which the learned RDC passed restrained order on 28.02.2000 not to make any construction further and for which construction of said shop Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 3 of 11 room was not completed by the petitioner in due time, challenging the said interim order dated 28.02.2000 passed by RDC, Sambalpur the petitioner filed OJC No.8971/2001 before this High Court, which is pending till yet, but as an interim measure, this Court passed interim order on 27.07.2001 not to take any coercive action against the petitioner society. 5. It is submitted that one Hima Chandra Panda also filed a PIL bearing OJC No.2188/2000 which was disposed of on 30.08.2016, during pendency of the aforesaid proceeding some of the villagers made illegal construction in front of the project land of the petitioner, challenging said illegal construction, the petitioner also filed another Writ Petition bearing OJC No.5067 of 2002 before this Court. It is not out of place to mention here that leaned RDC, Sambalpur disposed of the OGLS Appeal on 29.06.2001 thereby withdrawing the sanction order of Collector, Bargarh giving advance possession to the petitioner stating that this order is without prejudice to the outcome of PIL and Lease Case No.03 of 1993. 6. In view of the above reason, the petitioner was not able to complete the construction of the shop room though in his notice committed to complete the same. However, litigation was pending and order was passed not to complete the construction considering the same the petitioner society on 06.07.2001 resolved to refund the security deposit of all Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 4 of 11 allottees without cancelling their right for allotment of shop. Accordingly, 19 allottees have taken their security deposit without interest, but the opp. party no.3 without realizing the genuine problem of the petitioner without taking his security deposit amount preferred Consumer Dispute Case before the District Forum wherein the present petitioner being an opp. party filed his written submissions narrating the entire things and also averred that claim of the complainant is beyond the terms and conditions and there is no condition for providing interest, therefore consumer case is not maintainable and petitioner society taken steps for refund the security deposit amount and except the complement all other allottees are taken their security deposit amount therefore complaint case is not maintainable, but the District Forum without considering this fact passed an order on 31.03.2005 in favour of complainant. 7. While challenging the judgment dated 31.03.2005 passed by the District Consumer Dispute Redressal Forum, Bargarh in Consumer Dispute Case No.66 of 2004 thereby allowing an interest of 12% per annum over security deposit of Rs.60,000/- (sixty thousand only) with effect from 22.01.2000 the petitioner being the Appellant filed C.D.A. No.310/2005 before the State Consumer Dispute Redressal Commission, Odisha, Cuttack as the judgment passed by the District Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 5 of 11 Forum, Bargarh is not at all sustainable and same is liable to be set-aside. However, on 09.12.2019 the State Commission by exercising its discretionary power dismissed the aforesaid Consumer Appeal due to non-prosecution without assigning any sufficient reason as to why the said appeal is not decided on the merit of the case as per Rule-11(6)(a) of the Consumer Protection(CDRC)Rules, 2020. 8. Since nothing has been communicated to the petitioner and the petitioner was not able to know the result of the CDA Case No.310/2005 as the counsel appearing on behalf of the appellant, the petitioner is holding a statutory post of Human Rights Commission not able to respond the private phone call of the petitioner and since order was passed during just pre covid-19 period and thereafter two years has been elapsed for the cause of pandemic on Covid 19 and luck down. The petitioner was not able to know regarding dismissal, in the year 2022 when the complainant send notice in Execution case before CDRC, Bargarh i.e. Execution Case No.15/2020 and the ARCS, Bargarh obtained notice in the above consumer dispute case for show cause on 22.09.2022 then the petitioner came to known about the dismissal of his appeal before the State Commission. The petitioner finding no other alternative filed a petition praying inter-alia seeking adjournment of execution case before District Forum and immediately Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 6 of 11 consulted to the present counsel for remedial, the petitioner without any further delay immediately filed a petition. praying inter-alia to restore the appeal by recalling the order dated 09.12.2019 passed in CDA Case No.310/2005 before the State Consumer Dispute Redressal Commission, Cuttack with an Interim Application under section-5 of the Limitation Act, for condonation of delay. 9. Though the order was passed by the State Commission dismissing the Appeal for non-prosecution and since no principle of natural justice followed by the state commission while dismissing the statuary appeal preferred by the petitioner against an illegal order passed by the district forum, petition filed i.e. RA No.15/2022 for restoration the Appeal by recalling the order of dismiss for default to the file, but the learned State Commission without considering the legitimate prayer dismissed the same on 16.01.2023. 10. While hearing the statutory appeal, even the appellant or his agent failed to appear before the State Commission, it should have decided the case on merit, but here is the case the State Commission simply dismissed the Appeal bearing CDA No.310/2005 on 09.12.2019 without following the principle of natural justice without assigning any reason. Therefore, the petitioner prayed before this Court for interfering in the matter thereby setting aside the order dated 09.12.2019 passed Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 7 of 11 in CDA No.310/2005 under annexure-2 and order dated 16.01.2023 passed in RA No.15/2022 arising out of CDA No.310/2005 under annexure-5 thereby restoring the original appeal to the file in the interest of justice. II. PETITIONER’S SUBMISSIONS: 11. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: 12. Under Rule-11(6)(a) of the Consumer Protection (CDRC) Rules, 2020 stipulates that the appellant or his authorised agent fails to appear, state commission may, in its discretion, either dismiss the appeal or decide it ex-parte on the merit of the case. But, in the present case, the State Commission by exercising his discretion dismissed the appeal for non- prosecution not on merit. Law is well settled that while exercising the discretion, the Commission should pass reasoned order for the interest of justice, but the State Commission failed to exercise its discretion, while dismissing the appeal for non prosecution as the same has not came in to finality, the same is liable to be set-aside. 13. Since the learned counsel appearing on behalf of the appellant before the State Commission is not in the profession as he is holding a statutory post of Human Rights Commission within the knowledge of entire world and could not entertain the private call. Though the petitioner tried his level best to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 8 of 11 known about his case but failed, the same thing has not been considered by the State Commission while hearing the restoration petition and rejected the same. Therefore, the same is liable to be set-aside for the interest of justice as it is violative of the fundamental right of the petitioner and power of restoration has not been exercised by the State Commission as the rules of procedure has been laid down by the Apex Court in number of cases, are intended to serve the ends of justice and not to defeat the dispensation of justice. 14. Since no order was passed on merit by the State Commission and no principle of natural justice was followed by the said Commission, therefore, the petitioner is constrained to invoke the extra ordinary jurisdiction of this Court praying inter-alia to set-aside the same in the interest of justice. 15. Since principle of natural justice has not been followed and it is always prudent for any judicial forum to dispose of the matter on merit to avoid multiplicity of the proceeding. But the State Commission without sufficient reason dismissed the Appeal for non prosecution, and law is well settled that every consumer dispute disposed of uncontested before the commission should be allowed to be restored for the reason that a poor person with little source has to go to National Commission at New Delhi for filing appeal/revision. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 9 of 11 Therefore, the order passed by the State Commission is liable to be se-aside for better interest of justice. III. COURT’S REASONING AND ANALYSIS: 16. Learned Counsel for the petitioner has rightfully contended that Rule-11(6)(a) of the Consumer Protection (CDRC) Rules, 2020 stipulates that the appellant or his authorised agent fails to appear before the State Commission may, in its discretion, either dismiss the appeal or decide it ex-parte on the merit of the case, but here the State Commission by exercising his discretion dismissed the appeal for non-prosecution reason rather than deciding the appeal on merit. 17. The law is well settled that while exercising the discretion, the Commission should pass reasoned order for the interest of justice. However, the State Commission failed to exercise his discretion, while dismissing the appeal for non-prosecution when the same has not came into finality. 18. Since the learned counsel appearing on behalf of the appellant before the State Commission is not in the profession as he is holding a statutory post of Human Rights Commission. However, this has not been considered by the State Commission while hearing the restoration petition. Moreover, considering that the principle of natural justice could not be followed and it is always prudent for any judicial forum to Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 10 of 11 dispose of the matter on merit to avoid multiplicity of the proceeding, however, the State Commission without sufficient reason dismissed the Appeal for non prosecution. 19. From the conspectus of factual matrix, this Court is inclined to accede to the submission of the petitioner. In light of the aforesaid discussion and having regard to the present position of law, this Court hereby quashes the order dated 09.12.2019 passed by the State Consumer Disputes Redressal Commission, Odisha, Cuttack in C.D.A. No.310/2005 and order dated 16.01.2023 passed in R.A.No.15/2022 arising out of C.D.A.No.310/2005 and directs the State Consumer Disputes Redressal Commission, Odisha, Cuttack to restore the case and dispose of the matter on merit. 20. Accordingly, this Writ Petition is disposed of. Judge ( Dr. S.K. Panigrahi ) Orissa High Court, Cuttack, Dated the 18th Oct., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Nov-2023 13:45:07 Page 11 of 11