Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Bench of Justice V.K. Jain (Presiding Member) while deciding the issues revolving around purchase of a residential flat, rejected the instant appeal preferred by Magnolia Infrastructure, after being aggrieved by the Order passed by the State Commission to hand over the constructed property to the complainants.

The complainants entered into a MoU with the appellant, for the purchase of a residential flat for a consideration of Rs 40,26,200 by paying an initial amount of Rs 12,45,183. According to the agreement, the area of the flat had to be 1114 sq. feet and the possession was to be handed over by June 2015, with a grace period of six months available to the builder. However, the size of the flat was contested to be smaller than the agreed size by the complainant. The complainant further stated that and the construction of the flat was incomplete, therefore, the complainant went to the State Commission, who found these contestations to be genuine and legible and ordered the builders to pay the compensation for the alleged violation of the agreement. The appellants (builders) were represented by Sanjoy Kumar Ghosh and Barun Prasad, while the respondent (complainant) appeared for himself before the Commission. The counsel for the appellant challenged the State Commission’s Order by contesting the area of the flat to be of the agreed size and the certificate/completion certificate of the flat allotted to the complainant.

Commission decided that the area measurement conducted by the person appointed by the State Commission was correct and that there was actual shortage in the area of the flat as the constructed flat’s size was found to be 997 sq. feet. For the second issue, the Commission observed that the flat was already constructed and lying vacant thereby serving no purpose.

Since, the State Commission is yet to verify that whether Rajarhat Municipal Corporation is competent to issue the occupancy certificate and whether had actually issued the said occupancy certificate dated 21-07-2014, the Commission held that the possession of the residential flat should be handed over to the complainant till this question is decided by the State Commission. [Mangolia Infrastructure Development Ltd. v. Sandipan Santra, FA No. 2084 of 2018, decided on 14-07-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of S.M. Kantikar, Dinesh Singh, Members, dismissed a revision petition filed against the order of the State Commission whereby the appeal of appellants was dismissed on the ground of merits as well as delay.

The main issue that arose before the Commission was whether the appeal was maintainable under Section 21(b) of the Consumer Protection Act, 1986 (COPRA).

The Commission observed that the order passed by the state commission was well-appraised and well-reasoned. The state commission did not find just and reasonable cause for the delay in filing the appeal and the same was written in the order in a proper manner. The appellant had caused an unreasonable delay of 221 days in filing the appeal before the state commission. Further, the order of the state commission also states that the appellants did not approach the forum with clean hands. The Commission also observed that in order to exercise revisional jurisdiction under Section 21(b) of the COPRA, there must be a jurisdictional error or legal principle ignored or material irregularity in the order of the lower forum.

The Commission held that in the instant case the order passed by the state commission did not suffer from any form of irregularity as required under Section 21(b) of the COPRA. Resultantly, no interference by the Commission was required and hence the revision petition was dismissed by the Commission. [Agarwal Packers & Movers DRS Group v. Dibeyendu Pal, 2018 SCC OnLine NCDRC 418, order dated 01-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench of Dr S.M. Kantikar and Dinesh Singh, Members, dismissed a revision petition filed against the order of the State Commission.

The petitioners, in this case, had purchased a car in the name of their company Harmony Colonizers (P) Ltd. from respondent and it suddenly stopped one day after 4 years of its purchase. Thereafter, respondent charged a sum of Rs 3,95,190 as repair charges, which were paid by the petitioner under protest. The petitioner then filed a complaint before the District Forum, claiming deficiency of services on the part of respondent and the same was allowed. The State Commission reversed the order of the district forum on the ground that complainants do not fit into the definition of consumer for the purpose of Consumer Protection Act, 1986.

The main issue that arose for consideration was whether the petitioners fall under the definition of consumer for the purpose of Consumer Protection Act, 1986.

The Commission observed that as stated by the State Commission, the petitioner failed to provide cogent evidence to prove that the car was purchased for their personal use. It further observed that in order to interfere with State Commission’s order there must be a jurisdictional error, or grave error in appreciating the evidence, or ignorance of a legal or miscarriage of justice. None of the elements were present in the instant case.

The Commission held that the petitioners were not consumers under the Act and were attempting to misuse the statutory processes provided for better protection of the interest of consumers to obtain wrong gains and to create ‘nuisance value’ qua the respondents. It was further held that the petition filed was frivolous and vexatious and hence it was dismissed with costs of Rs 25,000 imposed on petitioners for filing a frivolous petition.[Suresh Singla v. Jaycee Automobiles (P) Ltd.,2018 SCC OnLine NCDRC 375, order dated 23-08-2018]

Case BriefsSupreme Court

Supreme Court: Deciding whether under the Electricity Act, 2003 it is mandatory to have a judicial mind presiding the Central and State Regulatory Commissions and whether the expression “may” should be read as “shall”, the bench of J. Chelameswar and S.K. Kaul, JJ held that Section 84(2) of the said Act is only an enabling provision to appoint a High Court Judge as a Chairperson of the State Commission of the said Act and it is not mandatory to do so. It was further held:

“It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge.”

The Court noticed that the State Commission, though defined as a ‘Commission’ has all the ‘trappings of the Court and that:

“Once it has the ‘trappings of the Court’ and performs judicial functions, albeit limited ones in the context of the overall functioning of the Commission, still while performing such judicial functions which may be of far reaching effect, the presence of a member having knowledge of law would become necessary. The absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act.”

The bench said that in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench. It further held that in case there is no member from law as a member of the Commission, the next vacancy arising in every State Commission shall be filled in by a Member of law as mentioned above.

To avoid any confusion, the Court made it clear that it’s verdict will apply prospectively and would not affect the orders already passed by the Commission from time to time. [State of Gujarat v. Utility User’s Welfare Association, 2018 SCC OnLine SC 368, deciding 12.04.2018]