Chandigarh

StateCommission

RA/5/2023

SHELLENDER SINGH - Complainant(s)

Versus

SH ROHTAS GOEL CHAIRMAN AND MANAGING DIRECTOR - Opp.Party(s)

IN PERSON

12 Dec 2023

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Addl. Bench]

==========

Review Application No.	:	RA/05/2023
In Exe. Application No.	:	EA/112/2016
Date  of  Institution	:	25/07/2023
Date   of   Decision	:	12/12/2023

 

 

 

 

 

 

Shellender Singh son of Sh. Raj Singh, Resident of House No. 1821-F, Sector 7-C, Chandigarh.

 

…. Applicant/Decree Holder

 

Vs.

 

 

 

 

1]     Rohtas Goel, Chairman & Managing Director, M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., India Trade Tower, 1^st Floor, Baddi Kurali Road, New Chandigarh, Mullanpur, Distt. S.A.S. Nagar – 140901 (Punjab).

 

2]     Sh. Manoj Suri, Chairman & Managing Director, M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., India Trade Tower, 1^st Floor, Baddi Kurali Road, New Chandigarh, Mullanpur, Distt. S.A.S. Nagar – 140901 (Punjab).

…… Non-Applicants/Judgment Debtors

 

BEFORE: MRS.PADMA PANDEY    PRESIDING MEMBER   

                PREETINDER SINGH      MEMBER

 

 

PRESENT	:	Sh. Shellender Singh, Applicant/Decree Holder in person.
		Sh. Munish Gupta, Advocate for the Non-Applicants/Judgment Debtors.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

 

This Review application has been filed by the Applicant/Decree Holder (Sh. Shellender Singh) under the provisions of Section 50 of The Consumer Protection Act, 2019 (in short ‘the Act’) seeking review of order dated 30.06.2023, vide which, Execution Application bearing No. EA/112/2016 filed by the Applicant/Decree Holder was dismissed.

       

2.         Upon notice, the non-applicants/ Judgment Debtors have resisted the review application tooth & nail by filing application for dismissal of the review application on the ground of maintainability.

 

3.         The Applicant/Judgment Debtor hotly contested the aforesaid application, inter alia, pleading that this Commission while passing the order under review has failed to appreciate the documentary evidence available on record and made observations/conclusions which are not born out of records and thus there are errors apparent on the face of the record. 

 

4.         We have heard the Applicant/Decree Holder and Sh. Munish Gupta, Ld. Counsel for Non-applicants/ Judgment Debtors and have also gone through the record of the case with utmost care and circumspection with his able assistance.

 

5.         The Non-Applicants/ Judgment Debtors have taken a firm stand that the instant review application filed by the Applicant/Decree Holder under Section 50 of the Consumer Protection Act, 2019 deserves its dismissal being not maintainable as the original proceedings had been initiated under the provisions of Consumer Protection Act, 1986 which does not provide any provision of review.

 

6.         Per contra, on the strength of Section 50 of the Consumer Protection Act, 2019, the Applicant/Decree Holder held his nerve maintaining that this Commission has been empowered to review any of the order passed by it if there is an error apparent on the face of the record either of its own motion or on an application made by any of the parties.

 

7.         Now, the key controversy swirls around the short question, “whether the present application filed by the Applicant/Decree Holder under Section 50 of the Consumer Protection Act, 2019 for reviewing the order dated 30.06.2023 passed by this Commission in execution application filed under Section 27 of the Consumer Protection Act, 1986  is maintainable or not”?

 

8.         Having bestowed our anxious consideration to the matter, we are of the opinion that in the light of the material on record, answer to the question posed has to be in the negative for the reasons to be recorded hereinafter.

 

9.         For proper appreciation, it would be fruitful to peruse through the record of the proceedings which had its genesis in the Consumer Complaint bearing No. CC/311/2015 filed by the Applicant/Complainant under Section 17 of the Consumer Protection Act, 1986 which was partly allowed by this Commission in terms of order dated 10.06.2016. Dissatisfied and aggrieved by the said order, the Applicant/Complainant preferred First Appeal No. 876 of 2016 which was dismissed by the Hon’ble National Consumer Disputes Redressal Commission vide order dated 01.08.2022. Seeking enforcement of order dated 10.06.2016 passed in CC/311/2015, the Applicant/Decree Holder filed execution application under Section 27 of the Consumer Protection Act, 1986 which initially was disposed of vide order dated 28.03.2017 and later, on filing of misc. application bearing No. MA/730/2022 the same was revived and was ultimately decided vide order dated 30.06.2023.

 

10.         It must be noted that the Consumer Protection Act, 1986 has since been repealed by the Consumer Protection Act, 2019. The new Act came into effect on 20.07.2020.

 

11.         There remains no doubt that the proceedings interse have been initiated under the provisions of the Consumer Protection Act, 1986. As per the Consumer Protection Act, 1986 this Commission does not have the power to review cases. This position of law was settled in the case of Rajeev Hitendra Pathak and Others Vs. Achyut Kashinath Karekar and Another, (2011) 9 SCC 541, wherein the Apex Court 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.

38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.

39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.”

From the perusal of the aforesaid judicial pronouncement, it is clear that the Consumer Protection Act, 1986, did not vest this Commission with the power to review its own order.

 

12.         It is pertinent to add here, the Consumer Protection Act, 2019 is prospective in nature and parties whose rights and obligations were settled as per the old Act (Consumer Protection Act, 1986) cannot make use of the provisions of the new Act. The repeal of a law shall not affect the previous operation of any enactment i.e. the proceedings under the Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020. The same can be gauged through the repeal and saving section (Section 107) of the Consumer Protection Act, 2019, which reads as thus:-

 

“107. Repeal and savings.

 

(1) The Consumer Protection Act, 1986 (68 of 1986) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.

(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.”

 

 

From a careful reading of Sub-Section 2 of Section 107 of the new Act, it is observed that the aforesaid provision begins with a non-obstante clause. In other words, this provision has been given an overriding effect and as such, overrides Sub-Section 1 of Section 107 of the new Act with respect to the cases covered under the former. However, Sub-Section 2 does not incorporate within its scope the entire range of cases. What has been provided in Sub-Section 2 is that notwithstanding such repeal, anything done or any action purported to have been taken under the repealed Act which is not inconsistent with the provisions of the new Act, shall be deemed to have been saved and done under the provisions of the new Act.

 

13.         In Civil Writ Petition No. 9202 of 2021 titled as “M/s Orris Infrastructure Pvt. Ltd. Vs. National Consumer Disputes Redressal Commission & Others”, decided on 04.05.2021, the Hon’ble Punjab & Haryana High Court has held that proceedings instituted under old Act shall continue to be governed by the provisions of old Act itself.

  

14.         Taking into count the aforesaid discussion, it is vouch safe to conclude that the provisions of Consumer Protection Act, 2019 is prospective in nature and cannot be invoked herein as the original proceedings were initiated and culminated under the Consumer Protection Act, 1986. In other words, the proceedings instituted under the old Act shall continue to be proceeded under the old Act.

 

15.         For the reasons recorded above, this Commission does not have the power to review its own order pronounced as per the provisions of the Consumer Protection Act, 1986. This application for review being not maintainable stands dismissed with no order as to costs.

 

16.         Pending application(s), if any, also stand disposed off in aforesaid terms.     

 

17.         Certified copies of this order be sent to the parties, free of charge.

 

18.         The file be consigned to Record Room, after completion.

Pronounced

12^th December, 2023                                                          

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”