Failure to obtain the occupation certificate after the transfer of property to the consumer will be considered as a “deficiency” under Consumer Protection Act 1986 and hence the consumers or residents can be granted compensation as a relief for the excess of tax that they have been paying on basic facilities, this broader view as compared to the NCDRC proceedings was taken by the bench of Justice DY Chandrachud and JUSTICE AS Bopanna in the case SAMRUDDHU CO-OPERATIVE HOUSING SOCIETY LTD.  V. MUMBAI MAHALAXMI CONSTRUCTION PVT LTD. [CIVIL APPEAL NO 4000 OF 2019]

In this case the petitioner filed a complaint to get a refund on excess taxes that they have been paying to the municipal authorities contending that this is a “deficiency” on the part of the builder and because of their deficiency, the petitioner had to pay 25% higher property tax and additional 50% water charge. This complaint was originally dismissed by NCDRC on the contention that it was not maintainable as it was barred by limitation because it was not a consumer dispute as the Housing Society is not a “consumer” under this act because the relief they are praying for is recovery of the higher amount paid to municipal authority from the builder.

Supreme court after going through section 3 and section 6 of Maharashtra Ownership Flat Regulations held that “Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided” and hence directing the builder to compensate the petitioner in the case for any higher than usual charge they have paid due to his deficiency. On the subject matter of the petition being barred by limitation, the court held that “Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate” taking into account the NCDRC order dated 20.08.2014 where the NCDRC directed the respondent to provide the occupation certificate along with a penalty. The Supreme Court taking a wider view stated that this continuous failure to provide the occupation certificate is a violation of obligation imposed by MOFA and hence this suit is not barred by limitation. The Supreme Court said “the respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable”. It is a common practice that is seen among builders that they abuse and make a mockery out of the process of law leaving the consumer remediless. This is already a very long process for the consumers and the builders not honouring the court orders even after the judgement is an abuse of process of law and on top of that the builders often have a very good legal team ready on which they invest a lot of money unlike the consumers who have limited resources. Consumer Protection Act should always been seen as an act made for the welfare of the consumers that the Supreme Court did in this case disregarding the orders of NCDRC that rejected the case merely based on technicalities.

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Judgment Reviewed by Meenakshi Jena

The Supreme Court’s decision in Mani Subrat Jain V. State of Haryana & Ors., reported in A.I.R. 1977 SC 276, question of issuance of writ of mandamus is not permissible is upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Reena Kumari Vs. The State of Bihar (Civil Writ Jurisdiction Case No. 952 of 2022)

Brief facts of the case are that Petitioner has requested that this writ application be filed for the issuance of an appropriate writ, preferably in the nature of Mandamus, commanding and directing the appropriate posts in permanent service under the Respondent State as the petitioner is an Ex-Instructor of Non-Formal Education on several grounds, including that the State Government has decided to absorb the Non-Formal Educational Supervisors in permanent service and services of several persons/ Non-Formal Ex-instructors  as absorbed in the light of several Judicial pronouncements.  The short question in this petition is whether petitioner is entitled to absorption/regularization or a fresh appointment because he was an ex-instructor of Non-Formal Education. In this connection, the concerned respondent is now required to analyse the petitioner’s grievance in light of judicial rulings as well as the State’s policy decision.

The petitioner has not made any representations to the concerned respondent in order to obtain a writ of mandamus. In light of the Supreme Court’s decision in Mani Subrat Jain V. State of Haryana & Ors., reported in A.I.R. 1977 SC 276, question of issuance of writ of mandamus is not permissible. As a result, the instant petition is dismissed, with the petitioner having eight weeks from the date of receipt of this order to file a detailed representation before the relevant authorities. If such a representation is made, the competent authority will review it and issue an appropriate order, which will be communicated to the petitioner.

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Judgement reviewed by – Pooja Lakshmi

In proceedings under Article 227 of the Constitution, the High Court is on duty to keep inferior courts and tribunals within the bounds of their authority in a legal manner. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice would remain uncorrected. The High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. These were stated by High Court of Delhi consisting, Justice Prateek Jalan in the case of Smt. Usha Rani vs. Shri Anil Singh Kushwah [CM(M) 76/2022] on 21.01.2022.

The facts of the case are that the plaintiff claimed a decree for possession of the suit property. On the plaintiff’s application under Order XXXIX Rules 1 and 2 of the CPC, an interim order dated 08.07.2009 was passed. The plaintiff thereafter filed an application under Order XXXIX Rule 2A of the CPC stating therein that some part of the suit property had been demolished by the defendant from inside. Evidence was led by the plaintiff and her son, as well as by the defendant. On the maintainability of the application, it was decided in favour of the plaintiff. However, on the merits, it was decided against the plaintiff. It is in these circumstances, that this petition under Article 227 of the Constitution was filed by the petitioner.

The learned Counsel for the petitioner submitted that the finding in the impugned order, to the effect that the order of status quo granted would not encompass an injunction against the renovation of the property is erroneous. It was further submitted that that changes were made to the suit property during the pendency of the suit and the subsistence of the interim order.

The learned Counsel for defendant submitted that the contention that defendant had demolished some rooms is established upon comparison of the report of Local Commissioner with the contents of the plaint, wherein the plaintiff had specifically averred that there were 14 rooms each on the ground floor and first floor and 2 rooms on the second floor of the suit property. He contended that the said pleading of the plaintiff was not specifically traversed in the written statement.

The High Court of Delhi held that the term “status quo” is one of ambiguity and can give rise to doubts and difficulty in interpretation. In such circumstances, it was open to the Trial Court, particularly in proceedings under Order XXXIX Rule 2A of the CPC, to interpret the order narrowly. While considering an application under Order 39 Rule 2-A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the “order”. In proceedings under Article 227 of the Constitution, so long as there is some evidence on the basis of which the Trial Court could have entered its findings, the High Court in its supervisory jurisdiction would not re-appraise the evidence. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority in a legal manner. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. For the aforesaid reasons, the Court held that the impugned order of the Trial Court does not warrant the exercise of the supervisory jurisdiction of this Court. Therefore, the petition was accordingly dismissed.

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Judgment reviewed by Shristi Suman.