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2014 DIGILAW 1114 (CAL)

Khurshid Ahmed Ansari v. Md. Afzal

2014-11-27

SUBRATA TALUKDAR

body2014
Judgment Subrata Talukdar, J. In this application under Article 227 of the Constitution of India the petitioner has challenged the order impugned dated 1st November, 2013 passed by the Ld. State Consumer Disputes Redressal Commission, West Bengal (for short the Ld. Commission) in FA 191 of 2012 thereby affirming the order dated 28th March, 2012 in Consumer Case No. HDF 116 of 2011 passed by the Ld. Consumer Disputes Redressal Forum, Howrah (for short the Ld. Forum). The brief facts of the case are as follows:- a) That the present petitioner is the Opposite Party(OP) in the complaint filed before the Ld. Forum. The complainant is the OP in this application. The parties entered into a purported agreement dated 16th April, 2009. In terms of the said agreement it was, inter alia, recorded that the complainant would be allotted a residential flat of 305 sq. ft. on the 1st floor of premises no. 3, B. R. 6th Lane, Thana-Makua, Lichubagan, New Bosti, PO- Danesh Seikh Lane, PS-Sakrail, Dist.- Howrah (referred to in short as the said premises). The total consideration was fixed at Rs.1,57,500/- out of which a sum of Rs. 50, 000/- was paid by the complainant to the OP. b) Thereafter, the complainant/OP took possession of the flat and spent further sum of money to complete the same. The petitioner having failed to register a deed of conveyance in favour of the complainant, he filed the instant complaint case no. 116 of 2011 before the Ld. Forum. c) The petitioner took the defense that no agreement of sale was executed between the parties. On the contrary the parties merely executed an agreement of tenancy and on the basis of such agreement of tenancy the complainant was allowed to enjoy the said flat. The petitioner has taken the further point that the purported agreement dated 16th April, 2009 is being wrongly shown by the complainant to be an agreement of sale. However, the petitioner has no intention of selling the said flat in favour of the complainant and had merely let out the same to the him. d) The Ld. Forum, Howrah was pleased to decide the said complaint case no. 116 of 2011 in favour of the complainant by, inter alia holding that the same is an agreement for sale. The Ld. d) The Ld. Forum, Howrah was pleased to decide the said complaint case no. 116 of 2011 in favour of the complainant by, inter alia holding that the same is an agreement for sale. The Ld. Forum therefore directed the OP to register the deed of sale in respect of the said flat in favour of the complainant. The Ld. Forum also directed that the petitioner shall pay a compensation of Rs. 1 lakh to the complainant for his mental agony and a sum of Rs. 5000/- towards litigation costs. e) Being aggrieved the petitioner filed an appeal before the Ld. Commission against the order of the ld. Forum dated 28th March, 2012 and such appeal was registered as SC Case No. FA/191/2012. By its order dated 1st November, 2013 the Ld. Commission was pleased to dismiss the appeal thereby affirming the order dated 28th March, 2013. While dismissing the appeal the Ld. Commission was pleased to, inter alia, reiterate that the agreement between the parties was an agreement for sale and not for tenancy. Shri Nilanjan Bhattacharya, Ld. Counsel appearing for the petitioner has argued as follows:- i) That the Ld. Forum as well as the Ld. Commission acted beyond jurisdiction by passing a decree for specific performance of contract. Shri Bhattacharya submits that the Consumer Courts are not competent to pass a decree for specific performance and such matters lie exclusively within domain of the civil courts. ii) Pointing to the provisions of the West Bengal Building (Regulation of Permission of Construction and Transfer by Promoters) Act, 1993 (for short the 1993 Act) Shri Bhattacharya submits that Section 12A of the 1993 Act bars the exercise of jurisdiction by the Ld. Forum and the Ld. Commission to decide an issue which relates to the subject matter of the 1993 Act. According to Shri Bhattacharya the disputes between the promoters and the intending flat owners/purchasers in respect of a property which is sought to be developed lies within the four corners of 1993 Act. Any exercise of jurisdiction by either the Ld. Forum or the Ld. Commission touching the provisions of the 1993 Act shall be considered to be without jurisdiction. In support of his contentions Shri Bhattacharya relies upon the following decisions:- (1) (2012) 1 CHN (Cal) 272 in the matter of Rita Das Vs. Any exercise of jurisdiction by either the Ld. Forum or the Ld. Commission touching the provisions of the 1993 Act shall be considered to be without jurisdiction. In support of his contentions Shri Bhattacharya relies upon the following decisions:- (1) (2012) 1 CHN (Cal) 272 in the matter of Rita Das Vs. Jayashri Ghosh (at paras 27 and 31) (2) (2014) 1 CHN 50 (at paras 9, 11 and 14) in the matter of Bithi Das Vs. Debabrata Majumdar Shri Bhattacharya therefore submits that when Section 12A of the 1993 Act creates an embargo on the Civil Courts to exercise jurisdiction in matters pertaining to the subject matter of a special law, such embargo is required to be followed. iii) Shri Bhattacharya has further argued that before this Court an application under Article 227 of the Constitution of India is maintainable because the very basis of the exercise of jurisdiction by the Ld. Forum and by the Ld. Commission is under challenge. He submits that when an embargo is created under a special law, the same must be strictly followed. He points out that the Ld. Forum went wrong in exercise of its jurisdiction and such specific performance can only be directed by the competent Civil Court. Per contra, Shri Joyak Kr. Gupta, Ld. Counsel appearing for the Opposite Party has argued as follows:- 1) It is to be first considered whether the present petitioner is a promoter or not. For him to invoke the provisions of the 1993 Act, it is essential that he must be registered as a promoter under the said Act. 2) Taking this Court to the written objection filed by the petitioner before the Ld. Forum, Shri Gupta points out that there is no whisper in the written objection that the complaint is not maintainable. Taking this Court to the contents of the written objection Shri Gupta submits that the point of alleged lack of jurisdiction of the Ld. Forum in the face of the provisions of the 1993 Act was neither pleaded nor argued before the Ld. Forum and the Ld. Commission. 3) Shri Gupta has also drawn the attention of this Court to the memorandum of appeal filed by the present petitioner before the Ld. Commission. Shri Gupta has argued that even from the memorandum of appeal it cannot be found that the point of jurisdiction was taken. Forum and the Ld. Commission. 3) Shri Gupta has also drawn the attention of this Court to the memorandum of appeal filed by the present petitioner before the Ld. Commission. Shri Gupta has argued that even from the memorandum of appeal it cannot be found that the point of jurisdiction was taken. Shri Gupta therefore submits that both before the Ld. Forum and before the Ld. Commission, the petitioner submitted to the exercise of their jurisdiction and, having lost in both fora the present petitioner is now trying to agitate the issue before this Court. Shri Gupta submits that such a dispute cannot be raised at this stage before this Hon’ble Court for the first time without having raised it earlier. 4) Shri Gupta points out that both the Ld. Forum and the Ld. Commission came to the clear finding after considering the facts on the ground that the agreement in issue is an agreement for sale and not of tenancy. 5) The next point argued by Shri Gupta on the issue of jurisdiction is that the Consumer Protection Act, 1986 provides for an alternative remedy by way of an appeal before the National Commission under Section 21B of the Consumer Protection Act, 1986. Shri Gupta therefore submits that there is no infirmity in the order impugned of the Ld. Commission and the present petition must be dismissed as not maintainable. By way of reply to Shri Gupta’s arguments Shri Bhattacharya has pointed out that once the specific issue of jurisdiction has been raised on the competence of the Ld. Forum or the Ld. Commission to decide an issue which falls within the ambit of the 1993 Act, this Court, sitting in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is competent to decide the same. Shri Bhattacharya has argued that the discretion of the Court to exercise jurisdiction under Article 227 of the Constitution of India is a self-imposed restriction. Shri Bhattacharya has also argued that the maintainability of the present application under Article 227 of the Constitution of India centres around a point of law and there can be no estoppel against raising a point of law at any stage. Shri Bhattacharya has also argued that the maintainability of the present application under Article 227 of the Constitution of India centres around a point of law and there can be no estoppel against raising a point of law at any stage. Following the ratio of the judgment in Bithi Das’s Case (supra), Shri Bhattacharya submits that in terms of the provisions of the Consumer Protection Act, 1986 (as amended up to date) the orders passed by both the Ld. Forum and the Ld. Commission shall be rendered inexecutable. Heard the parties. Considered the material on record. At the very outset this Court takes notice of the judgment of the Hon’ble Division Bench reported in 2006 (1) CHN 401 in the matter of Narayan Chandra Ghosh & Anr. Vs. Biswajit Lahiri. While considering the object of the 1993 Act qua a suit for specific performance filed by one of the parties, at paras 11, 12, 13, 14, 15 and 16 it was held as follows:- “11) To appreciate the aforesaid contention raised by the learned Counsel of the parties it will be profitable to refer to the provision contained in section 12A which is quoted below: “12A. Bar on jurisdiction of Court. – (1) No Civil Court shall have any jurisdiction to entertain or decide any question relating to maters arising under any provision of this Act or the rules made thereunder. (2) Every order passed by the authorised officer which is subject to appeal or revision, every order passed by the authority referred to in sub-section (1) of section 5, and every order passed by the officer referred to in section 6, which is subject to revision, and every order passed by the State Government in revision, shall be final and shall not be questioned in any Court of law.” 12. After going through the aforesaid provision we find that by enactment of section 12A the jurisdiction of the Civil Court to entertain or decide any question relating to the matters arising under the provision of the Act or rules made thereunder is totally barred. 13. If we read the plaint as a whole, we find that the grievance of the plaintiffs is that in terms of the agreement entered into between the parties they gave full amount of the consideration money to the promoter but the promoter was not complying with the terms of the agreement. 14. 13. If we read the plaint as a whole, we find that the grievance of the plaintiffs is that in terms of the agreement entered into between the parties they gave full amount of the consideration money to the promoter but the promoter was not complying with the terms of the agreement. 14. In our view, the aforesaid averments clearly bring the matter within the phrase “any question relating to matter arising under the provision of this Act” contained in section 12A of the Act. According to section 6 of the Act, any purchaser may, if he has any dispute regarding the purchase of any flat, make an application in such form as may be prescribed to such Officer as the State Government may appoint for adjudication of the dispute in such manner as may be prescribed. Therefore, for the purpose of getting relief against a promoter, the statute has given a right to the purchaser to make application in terms of section 6 in the facts of the present case and as such, the dispute referred to in the plaint is within the ambit of the Act. 15. The object of the Act is to give immediate relief to the persons who have entered into an agreement for purchase of a flat from a promoter instead of prolonged litigation before a Civil Court and for above reason, by enacting section 12A, the legislature has totally taken away the jurisdiction of the Civil Court. Therefore, not only the relief of specific performance of contract, but even the prayer of recovery of money paid pursuant to an agreement for purchase of flat is a dispute within the compass of the Act. 16. We, therefore, find that the learned Trial Judge rightly held that section 12A of the Act has taken away the jurisdiction of the Civil Court to entertain the dispute raised by the plaintiffs in their plaint. The bar created by section 12A of the Act is not an implied one but an explicit bar.” In the light of the abovenoted judgment in 2006 (1) CHN 401 (supra) it has been clarified that the bar under Section 12A of the 1993 Act is not an implied one but an explicit bar. Admittedly, the present dispute between the parties relates to the purchase of a flat. Admittedly, the present dispute between the parties relates to the purchase of a flat. Admittedly, the parties entered into an agreement on the basis of which the complainant approach the Ld. Forum to register the Deed of Sale in his favour. Going by the ratio of 2006 (1) CHN 401 (supra) there is a clear bar to adjudication of such disputes both by the Ld. Forum and by the Ld. Commission. As correctly noticed in 2012 (1) CHN (Cal) 272 (supra) the provisions of the special statute, in this case the 1993 Act, exclude the exercise of jurisdiction by a Civil Court. As noticed by the Hon’ble Single Bench in 2012 (1) CHN (Cal) 272 although the Ld. Forum and the Ld. Commission function in the nature of a civil court as held in SBP & Company VS. Patel Engineering Limited reported in 2005 (8) SCC 618 , the bar to exercise of such jurisdiction qua a dispute arising out of an agreement pertaining to registration of a Deed of Conveyance in respect of a flat squarely falls within the ambit of the 1993 Act. The abovenoted legal position has also been noticed by an Hon’ble Single Bench of this Court in Bithi Das VS. Debabrata Majumdar reported in 2014 (1) CHN (Cal) 50. Both 2012 (1) CHN (Cal) 272 and 2014 (1) CHN 50 have been cited during arguments. The Hon’ble Single Bench in Bithi Das’s Case (Supra) held a similar view that the consumer forum cannot usurp the jurisdiction to decide in a matter governed by a special statute such as the 1993 Act. The Hon’ble Single Bench was therefore pleased to hold that both the Ld. Forum and the Ld. Commission have acted without jurisdiction. Now noticing the arguments advanced by Shri Gupta that the point of jurisdiction was never argued at any stage on behalf of the petitioner either before the Ld. Forum or before the Ld. Commission, this Court is of the considered view that the point of law touching the jurisdiction of a forum is always available to be canvassed by the petitioner in an application under Article 227 of the Constitution of India. The lack of jurisdiction of the fora under the Consumer Protection Act (1986) (as amended up to date) being fundamental to the lis, the petitioner cannot be non-suited at this stage by excluding him from taking such legal plea. The lack of jurisdiction of the fora under the Consumer Protection Act (1986) (as amended up to date) being fundamental to the lis, the petitioner cannot be non-suited at this stage by excluding him from taking such legal plea. The next point taken by Shri Gupta that to invoke the provisions of 1993 Act it is essential that the petitioner should be registered as a promoter under the said Act, finds its answer in the judgment of the Hon’ble Division Bench reported in 2006 (1) CHN 401 (supra) which makes the bar to exercise of jurisdiction by a fora other than the procedure contemplated under the 1993 Act to be not only implied but an explicit one. In this connection paragraph 14 of 2006 (1) CHN 401 (supra) can be usefully reiterated to underscore the fact that according to Section 6 of the 1993 Act any (emphasis supplied) purchaser may, if he has any dispute regarding the purchase of any flat, make an application in such form as may be prescribed to such officer as the State Government may appoint for adjudication of the dispute in such manner as may be prescribed. In plain language such a dispute would fall within the purview of the 1993 Act. The next point raised by Shri Gupta that an alternative remedy by way of an appeal lies before the Ld. National Commission under Section 21B of the Consumer Protection Act, 1986 (as amended up to date) is answered in the language of the Hon’ble Apex Court in its judgment reported in Achutananda Baidya vs. Prafulla Kumar Gayen reported in 1997 (5) SCC 76 . At para 10 it was held as follows:- “10) The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse.” Following the ratio in Achutananda Baidya’s Case (supra) this Court is of the considered view that the power of judicial review bestowed upon the High Court under Article 227 is, inter alia, to correct the erroneous assumption of jurisdiction by subordinate courts and tribunals or their actions taken beyond jurisdiction. The facts of the present case show that the Ld. Forum and the Ld. Commission have transgressed into the arena reserved under the special statute, viz the 1993 Act, thereby warranting the exercise of the corrective supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The mere plea of alternative remedy by way of an appeal before the Ld. National Commission cannot be said to have any foundation inasmuch as wrong assumption of jurisdiction is not a legal remedy at all. Therefore the only remedy is to approach the authority under the 1993 Act and, where the erroneous assumption of jurisdiction goes to the root of the lis such error is liable to be corrected in exercise of powers conferred under Article 227 of the Constitution of India. In the backdrop of the above discussion the order dated 1st November, 2013 passed by the Ld. In the backdrop of the above discussion the order dated 1st November, 2013 passed by the Ld. Commission affirming the order dated 28th March, 2012 of the Ld. Forum are set aside. CO 3929 of 2013 succeeds. The same is accordingly allowed. There will be, however, no order as to costs. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.