1. The petitioner / OP has filed a Contempt Petition against the order dated 22.10.2019 passed by this Commission in RP No.3463 to 3465 of 2009. However, the Contempt Petition was registered as EA No. 386 of 2023 by the Registry.
2. Notice of the EA was issued to the respondents on 22.05.2023. Reply to the EA was filed by the Respondents / Complainants raising preliminary objections.
3. The facts of the case are that RP Nos. 3463 to 3465 of 2009 were filed before this Commission against the order dated 15.10.2008 of the State Commission. The said RPS were disposed of by this Commission vide order dated 22.10.2009. The EA has been filed by the Petitioners / OPs on the ground that complainants have not fulfilled the commitment given before this Commission on 22.10.2009.
4. Parties also filed Written Arguments/ Synopsis on 06.09.2023 and 05.09.2023 respectively.
5. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the EA, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
5.1. It is argued by counsel for the Petitioner that Petitioners have duly completed the construction and development of the said property in 1998 and duly complied with all the terms and conditions on their part and that Land Owner have appointed their own Architect Mr. Vishwas Joshi, therefore, they are solely responsible to apply and obtain Occupation Certificate from MCGM as Land Owner have never given Power of Attorney to the Petitioners. It is further argued that when they approached the Architect regarding Occupation Certificate then Architect of the Land Owner informed that Land Owners have instructed the said Architect not to process the file for Occupation Certificate. Even till date, the Land Owners have not given power of Attorney as per agreement despite repeated request due to which Petitioners are unable to proceed in the Municipal Corporation. Even they have not come forward to sign any paper to complete the formalities.
5.2. Further, it is stated that since the date of completion and occupation of the building, the Petitioners are paying the entire out goings of the Building and Land Owners being the occupants to whom the Petitioners have allotted / provided alternate permanent accommodation are not contributing towards the maintenance of the building. Also , the petitioners have been coordinating with the respondents for last two decades to pay the outstanding maintenance dues, but in vain.
5.3. Counsel for the Respondents argued that no cause of action exists to file the said petition as no directions have been given by this Commission to them. It is further argued that only after the Hon’ble District Forum had passed the final order in execution petitions, the Petitioner without having locus filed the said petition before National Commission.
5.4. The Petitioner had deliberately avoided to appear when the final order was passed by District Forum. Petitioner also had full knowledge that District Forum had already issued NBW against them. However, the Petitioner is absconding and avoiding the said warrant issued against them and approached the National Commission by filing vague petition. Further, it is argued that all the orders have been passed against all the Opposite parties including the final order passed by the District forum in execution proceedings, only the Petitioner had filed the said petition and deliberately avoided to make party to other opposite parties who are equally liable for compliance of order and who are necessary party to the said petition. It is further contended that Petitioner ought have challenged the order passed by the District Forum in Execution Proceedings before State Commission but have approached the wrong commission i.e. National Commission. Further, it is argued that there is huge and inordinate delay in filing the present EA.
5.5. Counsel for the respondent further argued that Petitioner failed to fulfill their statutory obligations. The complainants have always shown their full cooperation to the petitioner in case of obtaining occupation certificate to their building. Till date the Petitioner has failed to take necessary steps for procuring the Occupation Certificate. Also, the Petitioner failed to produce a single document which Municipal Corporation had demanded.
6. We have carefully gone through the facts and circumstances of the case. It is to be noted that Revision Petition No. 3463/2009, RP/3464/2009 and RP/3465/2009 were filed before this Commission against the orders dated 15.10.2008 of Maharashtra State Commission. These Revision Petitions were dismissed vide order dated 22.10.2009 as barred by time. This order contains following observations towards end.
“At this stage, counsel for the petitioners states that they are prepared to comply with the order of the State Commission provided the respondents cooperates with them.
Counsel for the respondents has assured us that they would cooperate with the petitioners to enable them to get the Completion Certificate and Occupation Certificate.”
7. It is with reference to second of the above stated two paras that the applicant herein states that respondents herein have not fulfilled their assurance “that they would cooperate with petitioners to enable them to get the completion certificate and occupation certificate”, hence they have filed the instant contempt petition, registered as EA 386 of 2023 in RP 3463 of 2009, praying for following:-
“ a. Be declared that the Respondent/Org. complainant has committed contempt of this Hon'ble Commission.
b. Be declared that proceedings of execution before forum at Bandra, Mumbai are null and void.
c. Be declared that original complainant who has played fraud upon petitioner and his family may be prosecuted for breaching the order passed by the commission in 2009.
d. Grant immediate and ad-interim reliefs by staying the conviction Order date 09/01/2023.
e. For costs of and incidental to this petition;
f. For such other and further reliefs as the nature and circumstances of the case may require.”
8. The question that arises before us is whether any punitive action can be taken against the respondents herein for alleged non-fulfilment of assurance given before this Commission by them. For this, we have to first see whether the above stated observations contained in the order dated 22.10.2009 (second para) is/are in the nature of any order or decree of this Commission. Section 25 of Consumer Protection Act, 1986 contains provisions for enforcement of orders of the Commission and Section 27 of this Act provides for penalties for non-compliance. Similar/corresponding provisions are contained in Sections 71 & 72 of Consumer Protection Act, 2019.
9. We have carefully gone through the order dated 22.10.2009. This order has dismissed the Revision Petition in question as barred by time. Once the Revision Petition filed by Petitioner is dismissed, the question of its non-compliance by respondents in RP does not arise. The assurance given by respondents in the RP, which obviously was voluntary assurance, cannot be treated as any order or decree of this Commission making the respondents liable for any punitive action under the provisions of Consumer Protection Act. Hence, assuming even if the respondents in RP have not fulfilled their assurance (we have not gone into this aspect and hence give no observation or finding on this aspect from our side), we are of the considered view that they cannot be proceeded against for any punitive action under the provisions of Consumer Protection Act as prayed for, as such ‘assurance’ is not in the nature of an order or decree of this Commission. Hence, the appropriate course of action for the petitioners herein is perhaps to pursue their remedies against the respondents before an appropriate Civil Court, if they so desire.
10. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Contempt Petition filed by the Petitioner, which has been registered as EA No. 386 of 2023 is dismissed.
11. The pending IAs in the case, if any, also stand disposed off.
