) Narayan Chandra Ghosh & Anr vs Biswajit Lahiri Reported in 2006 on 24 July, 2013

7/25/2019 ) Narayan Chandra Ghosh & Anr vs Biswajit Lahiri Reported in 2006 on 24 July, 2013

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Kolkata High Court (Appellete Side)

) Narayan Chandra Ghosh & Anr vs Biswajit Lahiri Reported In 2006 on 24 July, 2013

Author: Mrinal Kanti Chaudhuri

1

4.07.13

sd.

C.O. 1378 of 2012

Mr. Ayan Banerjee,

Mr. Anirban Das ..........For the Petitioner.

Mr. Shyamal Kr. Chakraborty,

Mr. Nilmoni Das,

Mr. Swarup Kr. Ghosh ......For the O.P.

This is an application under Article 227 of the Constitution of India

preferred by the petitioner in Complaint Case No. HDF 43 of 2010 against the

order dated 25.04.2013 passed by the Learned Consumer Dispute Redressal

Forum, Howrah.

It appears from the impugned order that the Learned Forum, Howrah

allowed the application of the purchaser / opposite party under section 12 of the

Consumer Protection Act, 1986 against the opposite parties and directed them to

execute and register deed of conveyance in favour of the complainant/ opposite

party in respect of the schedule flat. It further appears from the materials on

record that the complainant/ opposite party paid entire money for purchasing

the said flat to the developers /petitioner including extra money for extra work

the said flat and this fact is also admitted by the promoters.

Furthermore, it appears that there is nothing due towards consideration

money as well as money for extra work done by the developers. Therefore, the

learned Forum observed that the complainant/ opposite party entitled to get an

order under section 14 of the Consumer Protection Act, 1986.Being aggrieved by

and dissatisfied with the said order, the petitioner /opposite party has preferre

an application under Article 227 of the Constitution of India .

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I have carefully heard the submissions made by the learned Advocate for


Indian Kanoon - http://indiankanoon.org/doc/193315408/ 1


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both sides and perused the entire materials on record.

It has been submitted by the learned Advocate for the petitioner that order

passed by the learned Forum is without jurisdiction because of the barring

provision of section 12A of the West Bengal Building (Regulation of Promotion of

Construction and Transfer by Promoters) Act, 1993.

It has further been submitted that no civil court shall have any jurisdiction

to entertain or decide any question relating to the matters therein under any

provision of this Act or Rules made thereunder. Therefore, the learned Advocate

for the petitioner has prayed for passing necessary orders. The Learned Advocate

has referred the following decisions:

1) Narayan Chandra Ghosh & Anr. ..Vs. Biswajit Lahiri reported in 2006

(1) CHN page- 401

2) Rita Das ....Vs. Jayashri Ghosh reported in 2012 (1) CHN CAL 272.

3) Tapan Kumar Mukhoty ...Vs.. Bank of Madura Limited and Anr

reported in AIR 1999 Calcutta 305.

4) Whirlpool Corporation.....Vs.... Registrar of Trade Marks, Mumbai.

Reported in (1998 ) 8 SCC Page - 1.

5) Ashok Kumar saraf ...vs. The General Manager, Metro Railway & Anr.

Reported in 1999 (1) CHN page - 155.

According to the learned Advocate for the petitioner, the aforesaid decision

denote that the Forum, that is, the Consumer Dispute Redressal Forum being a

Civil Court has no jurisdiction to entertain the application filed by the purchaser.

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Learned Advocate for the petitioner further referred to section 6 of the West

Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act,

1993 stating that the purchaser, if he has any dispute regarding purchase of any

flat make an application for such Forum as may be prescribed to such Officer as




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the State Government may appoint for adjudication of the dispute in such

manner as may be prescribed. Therefore, the learned Advocate for the petitioner

submits that the revisional application should be allowed and prayed for

necessary orders.

Learned Advocate for the opposite party/ purchaser has submitted that the

decision cited by the learned Advocate for the petitioner has no application in

view of the fact that the Forum did not exercise any illegal jurisdiction. Moreover,

the order passed by the Learned Forum does not disclose any violation of

fundamental principle of law or any kind of mis-courage of justice. He has

submitted that the revisional application is liable to be dismissed as the

Consumer Protection Act, 1986 provides for the provision of an appeal under

section 15 of the Said Act. He further submitted that since there is an alternative

efficacious remedy, the application under Article 227 of the Constitution of India

is not maintainable.

He further submitted that the petitioner/promoter cannot take recourse to

provision of section 12 A of the West Bengal Building (Regulation of Promotion of

Construction and Transfer by Promoters) Act, 1993. Since the promoter has not

got his name registered under section 3 and he did not obtain any certificate of

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registration under sub section 5 and sub section 7 of section 3 of the said Act of

1993, he cannot project the embargo of section 12 of the Act.

He further submitted that the petitioner took no step for formation of

apartments, owners association and association of Co- operative societies under

section 10 of the said West Bengal Building Act, 1993.

Learned Advocate for the opposite party has relied upon the following

decision of law:

1) Cicily Kallarackal ....Vs. ..Vehicle Factory reported in 2012 (3) CLJ ( SC)




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167.

2) Lucknow Development Authority Vs. M.K. Gupta reported in AIR 1994

SC 787

3) Biswanath @ Deb Kumar Pathak vs. Shyamal Kumar Pathak & Ors

reported in 1995 (1) CLJ 139.

4) United Bank of India..vs.. Hirak Mukherjee and Ors reported in 1995 (1

) CLJ page 124

5) H.P. Electricity Regulatory Commission Vs. H.P. State Electricity Board.

Reported in (2006) 9 SCC 233.

6) Smt. Nandini Sinha ..vs. State of West Bengal & Ors. reported in 2008

(1) CLJ ( Cal) 577.

7) The Manager, Contai co- operative Bank Ltd. & Anr. Vs. Smt. Gouri

Mandal reported in 209 (1) CLJ ( CAL) 929.

I have carefully heard the rival submissions advanced by the learned

advocate for both sides. I have also perused the materials on record, impugned

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order and the provision of Consumer Protection Act, 1986 and West Bengal

Building (Regulation of Promotion of Construction and Transfer by Promoters)

Act, 1993.

The crucial point for consideration is whether the revisional application

under Article 227 of the Constitution of India as has been preferred by the

promoters/ petitioner is maintainable in the eye of law. At the very outset, the

provision contained in Consumer Protection Act, provides in section 2 that

'Consumer' means any person who -

i) buys any goods for a consideration which has been paid or promised or

partly paid and partly promised , or under any system of deferred payment and

includes any user of such goods other than the person who buys such goods for




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consideration paid or promised or partly paid or partly promised, or under any

system of deferred payment , when such use is made with the approval of such

person, but does not include a person who obtains such goods for resale or for

any commercial purpose ;or

ii) hires or avails of any services for a consideration which has been paid

or promised or partly paid and partly promised, or under any system of deferred

payment and includes any beneficiary of such services other than the person who

( hires or avails of ) the services for consideration paid or promised , or partly

paid and partly promised, or under any system of deferred payments, when such

services are availed of with the approval of the first mentioned person ( but does

not include a person who avails of such services for any commercial purpose)

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(Explanation: - For the purposes of this clause, "commercial purpose" does

not include use by a person of goods bought and used by him and services

availed by him exclusively for the purposes of earning his livelihood, by means of

self- employment.)

In the present case, the purchaser admittedly paid the entire consideration

amount together with extra money for extra work done by the promoters. In

pursuance of the agreement for sale dated 13.05.2002, he paid a sum of Rs.

50,000/- as booking fee and Rs 6,90,000/- towards consideration amount and

further sum of Rs.9099/- towards additional work for the said flat. There was a

agreement between the developer and owner of the Premises No. 10/17/4 and

10/17/5, Nandalall Mukherjee Lane, P.S. Shibpur , District - Howrah for the

purpose of developing the said premises by constructing multi storied building

consisting of several flats for selling to the intending purchaser. The opposite

party intended to purchase one flat in the second floor measuring 800 Sq. Ft. in

the premises No. 10/17/4 and 10/17/5 of Nandalal Mukherjee Land, P.S.




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Shibpur, District - Howrah. An agreement dated 13.05.2002 was also executed

between the promoters and purchaser. Subsequently, the promoter neglected to

execute and register the deed of conveyance in favour of the purchaser. Hence,

the purchaser filed a petition under section 12 of the Consumer Protection Act

before the learned Consumer Dispute Redressal Forum, Howrah.

The Learned Forum also allowed the petition and directed the developer to

execute and register the deed of conveyance in favour of the purchaser.

Furthermore, the Learned Forum also directed the developer to pay

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compensation of Rs. 50,000/- for mental agony and also litigation cost of Rs

20,000/-. Therefore, the dispute hereunder relates to inadequacy of service by

not executing and registering deed of conveyance. Section 15 of the Consumer

Protection Act, 1986 provides that any person aggrieved by the order impugned

made by the District Forum may prefer an appeal against such order to the State

Commission within a period of 30 days from the date of order with condition to

deposit in the prescribed manner 50 % of that amount or rs. 25,000/- whichever

is less. Therefore, it is crystal clear that the Consumer Protection Act, 1986

provides for adequate remedy in case any person is aggrieved by the order passed

by the District Forum.

The Hon'ble Apex Court in a decision Cicily Kallarackal Vs. Vehicle Factory

reported in 2012 (3) CLJ (SC) 167 decided on 5th December, 2012 has clearly

held that once legislature has provided for a statutory appeal to a higher court, it

cannot be proper exercise of jurisdiction to permit the parties to bypass the

statutory appeal to such higher court and entertain petition's in exercise of its

power under Article 227 of the Constitution of India .

The Hon'ble Apex Court in another decision reported in Lucknow

Development Authority vs. M.K. Gupta reported in 1994 Sc787 held that the




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jurisdiction of the Consumer Protection Act or the Forum is not at all ousted in

case there is a deficiency of service. Hon'ble Apex Court has further explained

the definition of the word consumer as provided under section 2 of the said Act.

There are two parts. The first deals with goods and the other with services.

Therefore, the both parts declare meaning of goods and services by use of wide

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expressions. Their ambit is further enlarged by use of inclusive clause. For

instance, it is snot only purchaser of goods or hirer of services but even those

who use the goods or who are beneficiaries of services with approval of the

person who purchased the gods or who hired services are included in it.

The Hon'ble Apex Court further held that the respondents were aggrieved

either by delay in delivery of possession of house or use of sub- standard material etc. and,

therefore, they claimed deficiency in service rendered by the appellants. In such circumstances, the

jurisdiction of Commission could not be ousted because even though it was service it related to

immovable property.

The Hon'ble Apex Court in another decision in H.P. Electricity Regulatory Commission vs. H.P.

State Electricity Board reported in (2006) 9 SCC 233 held that while there is an alternative remedy,

the party shall approach before the alternative forum for remedy. The Apex Court further observed

that the Appellate Tribunal of Electricity Act was not constituted at the relevant time. When Hon'ble

Apex Court held that Appellate Tribunal had been constituted and was functional, the respondent

shall be directed to approach the appellate Tribunal within a prescribed time with extension of

limitation.

The Division Bench of this court in Smt. Nandini Sinha vs.State of West Bengal and Ors. reported in

2008 ( 1) CLJ ( CAL) 577 decided on September, 18,2007 has clearly held that while there is an

alternative relief by revision before the State Transport Appellate Tribunal , the writ petition is not

maintainable. It has been clearly held therein that it is settled legal position that when there isexistence of alternative remedy, the writ application is not maintainable. Reliance maybe placed to

the judgement passed in the case of State of M.P. Vs. Bhailal Bhai reported in AIR 1964 SC 1006 ,

the judgement passed in the cases Rajasthan S.R.T.C. Vs. Krishna Kant, reported in 1995 (5) SCC 75,

Kerala State Electricity Board vs. Kurien .E. Kalathi, reported in 2006 (6) SCC 293, Sri Sant Sadguru

Jenardan Swami ( Moingiri Mahara ) Sahakari Dugdho Utpadhak Sanastha Vs. State of Maharastha

, reported in 2001 ( 8) SCC 509, Pratap Singh Vs. State of Harayana , reported in 2002 ( 7) SCC 484,

G.K.N. Driveshafts ( India ) . Ltd vs. I.T.O reported in 2003 (1) SCC 72 and U.P. State Spinning Co-

operative Ltd. Vs. R.S. Panda , reported in 2005 (8) SCC 264. Furthermore, it is settled legal

position that where this a hierarchy of the appeal by the statue , without exhausting the statutory




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remedy no writ is maintainable. Reliance may be placed to the jugemnt passed in the cases P.N.B.

vs. O.C. Krishnan, reported in 2001 (6) SCC 569 and Tin PlateCo. India Ltd. Vs.State of Bihar .

reported in 1998 (8) SCC 272.

Similarly, the Division Bench of this court in the case of United Bank of India vs. Hirak Mukherjee &

Ors. reported in 1995 (1) CLJ 124 has clearly held that where there is alternative remedy available in

terms of the statute itself , the exercise of jurisdiction under Articles 226 and 227 of the Constitution

of India may not be appropriate and proper. It has further been held therein that Consumer

Protection Act, is a self contained Code making appropriate provisions for rectification or correction

of the grievances which could have been raised in this writ petition before the trial forum or the

appellate forum.

Similar view has also been revealed in a decision of Hon'ble Single Bench of this court reported in

Biswanath @ Deb Kumar Pathak vs. Shyamal Kumar Pathak reported in 1995 (1) CLJ 139. It has

been held therein that there is no special circumstances for invocation of the extra- ordinary

jurisdiction under Article 227 of the Constitution of India. The alternative remedy provided by the

statute is a suitable solution. Exercise of jurisdiction under Article 227 of the Constitution is not

proper.

Further it is has been held therein that section 15 of the Consumer Protection Act, 1986 deals with

an appeal against the District Forum. The Act, therefore, provides complete machinery to challenge

the order of the District Forum. The Appellate Forum has more power than a revision or supervisory

Forum under Article 227 of the Constitution of India.

The Hon'ble Single Bench of this court in another decision in The Manager, Contai C-operative Bank

Limitied and Anr. Vs. Smt. Gouri Mondal reported in 2009 (1) CLJ (CAL) 929 has clearly held thatmaintainability of the order passed by the District Consumer Dispute Redressal Forum can be

challenged before the State Commission. The high Court not being an appropriate forum cannot

entertain the application challenging the propriety of the order passed by the District consumer

Redressal Forum.

The aforesaid decision of the Hon'ble Apex Court , and the Division Bench of this Hon'ble Court

have unanimously held that since there is alternative efficacious remedy in the Consumer Protection

Act,1986 , the writ application under Section 226 and the revisional application under Article 227 of

the Constitution of India is not maintainable.

With regard to section 12 A of the West Bengal Building (Regulation of Promotion of Construction

and Transfer by Promoters) Act, 1993, it transpires from the materials on record as well as the

submissions of the learned respective counsels of both parties that promoters did not obtain

certificate of registration under section 3 of the Said Act. Moreover, the promoter did not take any

step for formation of apartments, owners', association or co operative societies. According to section

3 read with sub section 5 and 7 of the promoters shall obtain a certificate of registration at least 90

days before commencement of the construction of such building in such order as described in the

application. Therefore, the promoter without obtaining certificate of registration under the aforesaid




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Act raised construct ion, which is against the provis ion of the Act . Therefore , the

promoter/petitioner cannot agitate the barring provision of the jurisdiction of the Civil Court.

Moreover, section 12 A of the West Bengal Building (Regulation of Promotion of Construction and

Transfer by Promoters) Act, 1993 provides for the barring provision of the Civil Court. The

Consumer Protection Act, 1986 cannot be termed as 'Civil Court". It is a special forum created by

notification of the Government in exercise of power conferred by sub section 2 of section 1 of the

Consumer Protection Act, 1986 by the Central Government.

The Act provides for better protection of the interest of the Consumer and for that purpose the

provision of establishment of consumer and other authorities for the settlement of consumer

dispute and for matters connected therewith is made. Therefore, this forum cannot be termed as a

Civil Court in true sense of the term.

Therefore, the decision are cited on behalf of the petitioner reported in 2006 (1) CHN page 401 is

not applicable in the present case. In that case, the suit was filed in the Civil Court for specific

performance for not getting delivery of possession of flat in spite of making full payment of

consideration amount. Therefore, the Hon'ble Court held that Civil Court has no jurisdiction to

entertain such prayer but the present case is otherwise.

Similarly, the decision cited by the learned Advocate for the petitioner reported in 1991 (1) CHN

page 155 and AIR 1999 Cal, 305 as well as (1998) 8 SCC 1 have no application in the present case.

Those decisions relate to the jurisdictional error while passing order. There is no ingredient to hold

that the forum itself made illegal exercise of jurisdiction for the disposal of the petition under

section 12 of the Consumer Protection Act. The forum is within its jurisdiction to dispose of the

same and to grant relief under section 14 of the Act and no miscarriage of justice has, therefore,

been occasioned.

Learned Advocate for the petitioner has also referred to section 6 of the West Bengal Building

(Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 and submitted that

the purchaser may file an application in such form as may be prescribed to such an officer as the

State Government may appoint for the adjudication of the dispute in such a manner as may be

prescribed. Since the promoter is not a registered under section 3, the purchaser cannot get any

relief under section 6 . Moreover, the relief under section 6 of the Act is an optional and the

purchaser is not bound by the said section. The relevant application under Article 227 of the

Constitution of India has been preferred by the petitioner/ promoters and the same is not

maintainable.

On the other hand, the promoter if aggrieved by any decision or order of the forum it has efficacious

alternative remedy under section 15 of the Consumer Protection Act. Without exhausting the said

procedure, he cannot approach before the High Court under Article 227 of the Constitution of India

and, therefore, the rivisional application is not maintainable.

Another decision reported in 2012 (1) CHN Calcutta 272 by the Hon'ble Single Bench of this court

has been cited with regard to the embargo created by the Special Act. I have already analysed the




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application of this Act in the foregoing paragraphs and I am, therefore, constrained to hold that

barring provision of section 12 A of the Building Act, 1993 cannot be invoked by the promoter in

view of the non compliance of section 3 read with section 10 of the said Act.

On the face of the principles of law elucidated in number of decisions of Hon'ble Apex Court and

number of decisions of Division Bench and single Bench of this court, this court is not bound to

follow the decision of a co- ordinate Bench in which facts and circumstances and principles of law

are quite distinguishable.

In view of the facts and circumstances, already elucidated above, the application under Article 227

of the Constitution of India is not maintainable and stands dismissed.

There will be no order as to costs.

Urgent Xerox certified copy of this order, if applied for, be given to the parties on compliance of

usual formalities.

(Dr. Mrinal Kanti Choudhuri, J)



Documents

) Narayan Chandra Ghosh & Anr vs Biswajit Lahiri Reported in 2006 on 24 July, 2013