Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Bench of Dr S.M. Kantikar (Presiding member) and Dinesh Singh (Member) dismissed the revision petition and asked the complainant to seek a remedy in a competent civil court as per the law.

In the present case, the dispute arose between O.P Thakur (Complainant) and Shimla Municipal Corporation (OP-1) and H.S. Kochar & MS Kochar, Landlords (OP-2). The dispute is in respect to “deficiency in service” as alleged by the complainant.

In the first instance after the filing the complaint, district forum held that, the present complaint cannot be decided summarily before the district forum.

Thereafter, State Commission remanded the complaint back to the district forum while directing that district forum will dispose of the complaint afresh. In adjudication afresh, the district forum reiterated its stand as was in the first instance and ordered the complaint to be returned for being presented before the competent civil court.

Again the State Commission vide its order directed that “complainant is relegated to civil court for adjudication of his dispute.”

Thus in view of the above, complainant filed the instant revision petition before the Commission under Section 21 (b) of the Consumer Protection Act, 1986 against the State Commission’s Order.

Contentions

Advocate, Sameer Thakur argued on behalf of the complainant revisionist and argued that the case is remanded to the district forum for adjudication on merit apropos deficiency in service against the municipal corporation alone.

Adding to his above argument, he stated that, the complaint is such as can be adjudicated on merit in summary proceedings in consumer protection fora established under the Act 1986. Further, he stated that, fundamental rights under Articles 14 and 19 (1) (g) of the Constitution of India are being violated by the municipal corporation’s deliberate/wilful negligence.

Corporation’s Negligence

The public drainage system above the complainant’s office premises has been neglected by the Corporation. The rainwater flow from Mall Road diverted and gets logged in front of the passage to complainant’s office premises and even enters inside the office room. Despite the odds, the complainant used to mitigate the loss/damage to his professional property to the maximum extent at his own expense.

The situation as stated above went unmanageable after the monsoons of 2011 and 2012. The complainant approached the Corporation Commissioner but was ignored and no action was taken for any of his complaints. Thereafter he filed an RTI application to seek appropriate redressal still no action was taken.

Complainant in the above situation had to exhaust his lifetime earning for the survival of his family.

Corporation’s deliberate /wilful negligence is violative of complainant’s fundamental rights under Articles 14 and 19 (1) (g) of the Constitution.

Analysis and Decision of the Commission

Commission while noting some observations stated that,

Consumer Protection fora do not enforce fundamental rights, they do not exercise jurisdiction of High Courts or Supreme Court under Articles 226 or 32.

The present complaint filed for ‘deficiency of service’ under the Act 1986 is not meant or intended to be in the nature of public interest litigation apropos a public authority.

Commission examined whether or not the specificities of the case are such as can be adjudicated on merit in summary proceedings in quasi judicial consumer protection fora established under the Act 1986.

Commission held that, the instant case can be aptly adjudicated on merit in summary proceedings by quasi judicial consumer protection fora established under Act 1986.

Further, it also stated that the revision petition is dismissed with liberty to the complainant to seek a remedy in a competent civil court as per law.  Nothing stops the complainant from seeking remedy under Article 226 or Article 32 in High Court or Supreme Court to enforce any of his fundamental rights including “Art 14 & 19(1)(g) of the Constitution” mentioned in his complaint.

In view of the above terms, the present revision petition stands dismissed. [O.P. Thakur v. Shimla Municipal Corpn., Revision Petition No. 1600 of 2019, decided on 15-10-2019]

Case BriefsHigh Courts

Uttaranchal High Court: Sudhanshu Dhulia, J., contemplated a petition presented before him by the petitioner who was a member of Waqf Board and was subsequently disqualified, aggrieved by which he filed the instant petition.

The petitioner was disqualified in terms of Section 20 read with Section 16 of the Waqf Act, 1995. Section 16 talked about disqualification for being appointed or for continuing as a member of the Board if certain conditions are not followed also Section 20 talked about “removal of chairperson and member” when a person was subjected to disqualification under Section 16.

The case of the petitioner was that on the earlier occasion when he was a member of the Waqf Board for the term of five years (i.e. 22-06-2010 to 22-06-2015), but he was removed in 2012. The petitioner challenged the order before the Waqf Tribunal where his petition was allowed and the order by which he was removed as a member of the Waqf Board was set aside by the Waqf Tribunal.

The reason cited by the respondent was that on a previous occasion he was removed from his office as a member or as a Mutawalli. However, the order by which the petitioner was earlier removed as a member of the Waqf Board was set aside by the judicial order, and therefore, that order does not survive. It was contended that the order passed by the respondents was unreasonable and the petitioner was not given an opportunity of being heard.

Learned State counsel D.S. Patni and M.S. Rawat argued that the petitioner had an equally efficacious remedy to file an appeal before the Tribunal under Section 83 of the Waqf Act, 1995.

High Court observed that though the petitioner had a remedy under sub-section (2) of Section 83 of the Waqf Act, 1995 however, in this particular case the existence of an alternative remedy before the Tribunal not operated as a bar inasmuch as the present order had been passed without affording opportunity of hearing to the petitioner.

It was held that, “This is for the reason that in case the law provides a remedy at two stages i.e. one before the concerned authority and later before the appellate authority, both opportunities have to be fair and must comply with the norms of natural justice and fair play. It does not mean that the authority can pass an order in violation of principle of natural justice and fair play and the same shall stand cured if the appellate authority gives an opportunity of hearing to the petitioner. At both the stages, the petitioner was required to be given an opportunity of hearing in terms of principle of natural justice and fair play, which has not been given in the present case.”

Hence, the petition was allowed.[Haji Rao Sharafat Ali v. State of Uttarakhand, 2019 SCC OnLine Utt 893, decided on 23-08-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal, Prevention of Money Laundering Act (New Delhi): A Coram of Manmohan Singh (Chairman), J. and G.C. Mishra (Member) allowed an appeal under Section 26 of the Prevention of Money Laundering Act, 2002 against an order passed by the Adjudicating Authority for attaching property.

In the instant case the CBI registered a criminal case under Section 120-B of Penal Code, 1860 read with Sections 7, 12, 13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 against one Joint Director of Enforcement Directorate (ED) wherein it was alleged that he assisted the appellant (herein), indulging in corrupt practices in an investigation. It was also alleged that they had taken a huge amount of bribes as quid-pro-quo for acts of omission and commission during the said investigation. As a result, the appellant was arrested by CBI and a charge sheet was filed against him. On the basis of the registration of the case by CBI, a Prevention of Money Laundering Act, 2002 (PMLA) case was also recorded at New Delhi. The ED provisionally attached the immovable property of the appellant which was confirmed by the Adjudicating Authority.

The respondent’s counsel, Shilpi Satyapriya Satyam, contended that the aforesaid property was attached as a “value thereof” in accordance with provision made under Section 2(1)(u) read with Section 2(1)(v) of the PMLA. The counsel for the appellant, R.K. Handoo, drew the attention of the Tribunal to the provision in Section 8(3)(a) of PMLA, 2002 as amended by Act 13 of 2018 which reads as, “a) continue during [investigation for a period not exceeding ninety days or] the pendency of the proceedings relating to any [offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be. On the basis of this the counsel contended that the confirmation order of attachment passed by the Adjudicating Authority did not survive. Also, no prosecution complaint was filed against the appeal, and hence the appeal be allowed.

The Tribunal found, “It is strange to note here that an immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case.” It was further noted, “Section 8(3)(a) of PMLA has been amended by the Act 13 of 2018, wherein a limitation period has been provided for continuation of attachment or retention of property or record post confirmation of attachment/retention and it is the intention of the legislature not to allow the Investigating Authority to get the property attached or retained the record/documents/items indefinitely in the name of investigation.”

Thus, the appeal was allowed. The Tribunal directed the appellant to move to the concerned Special Court for an appropriate remedy, wherein the Prosecution Complaint was pending and his property was made part and parcel of that complaint.[Sanjay Kumar v. Deputy Director Directorate of Enforcement, New Delhi, 2019 SCC OnLine ATPMLA 9, decided on 12-04-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a writ due to lack of merit, where the petitioner challenged the advertisement by which the applications had been invited from Private Operators for the operation of Lok Seva Kendra under State Agency for Public Service, Madhya Pradesh.

Learned counsel for the petitioner Chandresh Kumar Shrivastava, submitted that the petitioner was awarded a contract for operating Lok Seva Kendra for three years and it was renewed subsequently. Clause 11 of the Agreement provided for renewal of contract, according to which, if the operator is interested to continue his right to operate Lok Seva Kendra, then he had to make an application for extension of the contract for a further period of three years within six months in advance to the expiry of the contract. He contended that, he made an application for renewal of his contract, however, without deciding the application, the respondents had issued an advertisement and ignored the request of the petitioner.

The learned counsel for the State, F.A. Shah submitted that the petitioner had not filed the acknowledgment of the receipt of the said application. The counsel highlighted that in case, if there was any dispute, the petitioner had an efficacious and alternative remedy under the Agreement and the petitioner had approached this Court without availing Arbitration Clause, which should have been the first recourse.

The petitioner contended that since the dispute was not raised because of violation of any contractual obligation either by the respondents or by the petitioner, therefore, the Arbitration Clause would not apply. It was further submitted that the State Government had issued instructions on with regard to the renewal of the contract and in the letter by the State the period of the agreement was extended in view of the ongoing election process. However, the State directed by a subsequent letter that the building should be handed over to the successor. Accordingly, it is clear that the agreement, which was executed in favour of the petitioner, would be prematurely terminated.

The Court observed that, the petitioner had not filed any acknowledgment or receipt to prove that petitioner had exercised his right of renewal before the State. Further, it stated that the case of the petitioner is one which qualified for alternative Redressal Forum as the petitioner sought enforcement of Clause 11 of the Agreement thus, the petitioner claimed that Clause 11 of the Agreement had been violated by the respondents. The Court held that, the efficacious remedy for the petitioner is under Clause 15 i.e availability of Arbitration Clause. Hence, the case of the petitioner was dismissed accordingly.[Shivkant Shrivastava v. State of M.P., 2019 SCC OnLine MP 943, decided on 30-05-2019]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Local Division: This application was filed before G.J. Gajjar, AJ., under Rule 28(4) of the Uniform Rules of Courts by which the applicant seeks to amend its particulars of claim pursuant to a notice of objection filed by the respondent.

Respondent had objected to the amendment in particulars on the ground that it was not possible to determine what work was undertaken to remedy the alleged defective work or what portion of invoices was reduced by a certain aggregate sum. The applicant and respondent had entered into an oral agreement under which respondent had provided a programmer who was not appropriate for managing the PLC program due to which applicant had to recheck and get it corrected by a third party and company E for necessary and related costs. Applicant in its proposed amended particulars of claim has attached seven invoices made out to company E. The amended particulars was thus reducing this amount by 50% as a discount by the third party. Thus, this reduced amount as an amendment to the particulars was criticized by respondents. Respondent submitted that the plaintiff, at the very least, is required to specifically stipulate what portion of the attached invoices was not for its account and that Rule 18(4) should be read conjunctively with the provisions of Rule 18(10) in regard to the particulars required when claiming damages.

High Court was of the view that proposed amended particulars of claim do not disable the defendant from assessing the quantum of the claim. Therefore, the objection made by the respondent was dismissed and the particulars of claim was amended. [Shones Automation (PTY) Ltd. v. Smokey Mountain Trading 444 (PTY) Ltd., Case No. 1554 of 2018, decided on 19-02-2019]

Case BriefsHigh Courts

Manipur High Court: The Bench of Ramalingam Sudhakar, J. dismissed a writ petition holding that proper remedy for the petitioners to seek intervention of either the competent court or competent authority of the Government.

Petitioner who claimed to be the Maharaja of Manipur pleaded that as per the “Manipur Merger Agreement” dated 21-9-1949 between the erstwhile Governor General of India and the Maharaja of Manipur, certain private properties were allocated to the Maharaja to be administered by him on his own terms. It was further pleaded that some people were trying to encroach upon his property.

P. Tomcha, Advocate for the petitioner prayed for the relief of issuing a writ of mandamus directing the respondents to stop their illegal possession of the subject Multipurpose Community Hall. The documents on the basis of which the petitioner claimed his rights were disputed by the respondents.

The High Court was of the view that the matter involved disputed question of facts and therefore it was not inclined to entertain the petition. It was stated that the petitioner could approach either competent civil court or competent authority of the Government for establishing his rights as claimed. Thus, the petitioner was dismissed with liberty to petitioner to work out on his remedy in accordance with law. [Leishemba Sanajaoba v. State of Manipur, 2018 SCC OnLine Mani 171, decided on 14-12-2018]