Oral Order: (Smt. M. Shreesha, Member)
1) The above applications are filed by O.P. No. 3 praying to re-call the common order passed by this Commission in C.C. No. 3/2010 and C.C. No. 3/2010 on 9.3.2011 on the ground that the order was obtained by playing fraud, misrepresentation and suppression of material facts.
2) The learned counsel for the respondent/complainant filed written arguments resisting the applications and contended that the petitioner was in the habit of filing one application or the other in order to avoid compliance of orders of this Commission. He further contended that this Commission has no power to review/recall its own order in the light of dicta laid down by the Honble Supreme Court in Rajeev Hitendra Pathak Vs. Achyut Kashinath Karekar reported in CDJ 2011 SC 792. He prayed that heavy costs be imposed for dragging on the matter by relying Apex Court judgement in Indian Council for Enviro-legal Action Vs. Union of India reported in 2011 STPL (Web) 618 SC.
2) It is not out of place to mention that after considering the entire material placed on the record and only after giving sufficient opportunity to both sides this Commission passed the common order in the above said CCs which reads as follows:
CC 2/2010:
In the result this complaint is allowed in part directing opposite parties 1 to 3 jointly and severally to accept the balance amount of Rs.2,00,000/- from the complainant within 30 days from the date of receipt of this order and opposite parties shall deliver flat No.102 to the complainant with all required amenities as agreed upon before 01-9-2011 as evidenced under Ex.B6. We reiterate, that the genuineness or correctness of Ex.B6, Registered sale deed, cannot be agitated before this Commission and the aggrieved party should approach the Civil Court. Opposite parties 1 to 3 shall also pay a compensation of Rs.50,000/- to the complainant for having delayed the construction, (as per the original schedule) together with costs of Rs.5,000/-. Complaint against opposite parties 4 to 7 is dismissed without costs.
CC 3/2010:
In the result this complaint is allowed in part directing opposite parties 1 to 3 jointly and severally to accept the balance amount of Rs.10,00,000/- from the complainant within 30 days from the date of receipt of this order and opposite parties 1 to 3 shall deliver flat No.504 to the complainant with all required amenities as agreed upon before 01-9-2011 as evidenced under sale deed. We reiterate that the genuineness or correctness of Ex.B6, which is a registered document cannot be agitated before this Commission and the aggrieved party should approach the civil court. Opposite parties 1 to 3 shall also pay a compensation of Rs.50,000/- to the complainant for having delayed the construction (as per the original schedule )together with costs of Rs.5,000/-. Complaint against opposite parties 4 to 7 is dismissed without costs.
3) When the order of this Commission has not been complied with, the complainants filed EA No. 12/2011 in CC 2/2010 and EA No. 13/2011 in CC 3/2010 u/s 27 of the Consumer Protection Act on 12.9.2011 to punish the opposite parties for non-compliance of the order dt. 9.3.2011.
4) The petitioner/Op3 himself averred in his affidavit that he preferred FA No.342/2011 and FA 343/2011 before the National Commission, New Delhi against the order of this Commission, and later for the reasons best known he has withdrawn the appeals. The order of National Commission Dt. 31.5.2012 reads as follows:
âCounsel for the appellant on instructions states that appellant does not want to pursue with the matter and he wants to withdraw these appeals with liberty to seek appropriate remedy available under the law, before the appropriate forum.
In view of the statement given by counsel for the appellant, appeals are hereby dismissed as withdrawn. Liberty, as prayed for is granted.â
Yet again, he moved the Honble High Court in W.P. No. 16084/2012 against the orders this Commission in CC No. 2 and 3 of 2010 dt. 9.3.2011 and the same was withdrawn. The order of the High Court dt. 24.9.2012 reads as follows:
âLearned counsel for the petitioner seeks permission to withdraw the writ petition with liberty to take appropriate steps before the appropriate Forum, and has made an endorsement to that effect on the case bundle. Recording the submission made by the learned counsel, permission is hereby accorded with liberty to seek appropriate remedy available under the law, before the appropriate Forum. Accordingly, the writ petition is dismissed as withdrawn. No order as to costs.â
5) Now he came up with the above applications to re-call the common order passed by this Commission in C.C. 2/1010 and 3/2010 on 9.3.2011 on the ground that order was obtained by playing fraud. We reiterate that very same plea was taken by the petitioner in EA 12/2011 and EA 13/2011 and this Commission after taking into consideration the totality of the case passed the following order on 9.4.2012:
Since Ops 1 and 2 had agreed to deliver the flats along with Op3, Ops 1 to 3 are directed to handover possession of the flats on 13.4.2012. Call on 16.4.2-12 for report of compliance and for taking further steps in the matter.
6) At this juncture, it is pertinent to note that the question whether State Commission has power to review/recall or set-aside its own order has been considered by the Honble Supreme Court in Rajeev Hihtendra Pathak Vs. Achyut Kashinath Karekar reported in 2012 (2) ALD 146 (SC) where their Lordships elaborately considered the provisions of the Consumer Protection Act, and after relying several decisions held:
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
7) As seen from the record, the petitioner though approached the appellate authority i.e., National Commission as provided under the Consumer Protection Act against the order of this Commission, however for reasons not known has withdrawn them. So also he approached the High Court and again withdrew the Writ Petition as not pressed. It is apparent on the face of record that he did not get the orders of this Commission set-aside. Now he cannot turn round and contend that order was obtained by playing fraud.
Similar plea was taken by the petitioner in C.C. 80/2009 which was carried up to Honble Supreme Court in SLP (Civil) No. 23337/2011 against the order of the National Commission and the same was dismissed by order dt. 30.9.2011.
8) Taking into consideration the law laid down by the Honble Supreme Court in Rajeev Hindra case supra, and the facts and circumstances of the case, we are of the opinion that we do not have powers to review or recall or set-aside our own order which we have passed. It would amount to abuse of process of law.
9) In the result the applications are dismissed with costs of Rs. 3,000/-. Time for compliance four weeks.