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2015 DIGILAW 962 (CAL)

Ravi Kant Srivastava v. Ashok Kumar Chakraborty

2015-12-11

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. Challenging the order dated 05.12.2013 passed by the learned State Consumer Dispute Redressal Commission in connection with S.C. Case No. FA/408/2013, arises from the judgment dated 25.03.2013 of District Consumer Dispute Redressal Forum, Howrah, in connection with Complaint Case No. HDF 128 of 2012, the present petitioner has filed an application under Article 227 of the Constitution of India contending inter alia that learned Commission failed to appreciate the fact that the complaint suffered from non-joinder of necessary parties, having full knowledge of the fact that Eastern Engineering and Associate is the developer but did not implead them as a party and the learned Commission failed to consider that installation of the lift being a joint responsibility of the developer as well as the owner, the same cannot be escaped from the side of the Opposite Party No. 1. Accordingly, he has prayed for interference of this Court with a prayer to set aside the impugned order. 2. Factual aspects needs to be restated. The present Respondent No. 1 entered into an agreement for sale dated 26.11.2007 with the developer for purchasing a flat and the developer verbally assured of installation of lift in the said building. In March 2008 possession was delivered and it was registered on 30.07.2008. In the said sale deed, land owner as well as developer put their signatures in Page No. 14 Serial No. 11 of the sale deed wherein it is written that ‘lift in the building to be installed’. In spite of such assurance lift was not installed. Flat owners held a meeting with the developer on 06.06.2010 and then also developer assured the flat owners in writing that lift will be functioning properly within three months. Thereafter, Assistant Director, Consumer Affairs, Howrah intervened but the developer did not intimate the date on which he was going to provide the lift service. Being aggrieved at the cynical attitude of the developer, he filed a complaint case against opposite parties to pay Rs. 2 lakh as compensation for causing mental agony and harassment. Land owner appeared and contested the case and denied all the material allegations levelled against him. He further stated that a sum of Rs. 1,40,000/- was paid to the developer towards his contractual obligation for running the lift. 2 lakh as compensation for causing mental agony and harassment. Land owner appeared and contested the case and denied all the material allegations levelled against him. He further stated that a sum of Rs. 1,40,000/- was paid to the developer towards his contractual obligation for running the lift. Developer had constructed a lift-pit and lift motor room and installed, though the land owner had not contributed any amount for installation of the lift. Developer further stated that the owners of said building availed of the lift but did not pay the electricity charges. According to the developer, he has no deficiency in providing service. 3. After hearing both sides learned District Forum has passed the order directing the Opposite Party No. 2 (Sri Benoyendra Nath Ghosh) to pay compensation of Rs. 50,000/- to the complainant within 30 days and also directed to take necessary steps for operation of the lift in the said premises. 4. Against that order, they had preferred an appeal before the State Commission. After hearing both sides learned State Commission has observed that in spite of specific averment in the deed of conveyance, that the lift was to be installed in that building, that promise towards installation was not translated into action. Developer although had taken the plea about non-receipt for payment from the land owner towards 50 percent of installation charge but it appears from the record that the complainant had paid Rs. 2,00,000/- to the lift service charges. Learned Commission held that the plea of non-receipt of maintenance charges has not been substantiated. 5. On the basis of such observations and findings learned State Commission dismissed the appeal and the impugned judgment passed by the District Forum was upheld. 6. At the time of hearing, learned Counsel appearing on behalf of the petitioner has contended that the order of the learned State Commission is absolutely illegal and beyond jurisdiction and so the matter should be remitted back to the State Commission for consideration afresh. 7. Learned Counsel appearing on behalf of the petitioner has contended that the reivisional application is not maintainable in view of the decision reported in 2015 (2) CLJ Cal 424, and 2011 (14) SCC 337. Learned Counsel appearing on behalf of the petitioner has relied on the judgment reported in 2012 (1) CLJ Cal 636. 7. Learned Counsel appearing on behalf of the petitioner has contended that the reivisional application is not maintainable in view of the decision reported in 2015 (2) CLJ Cal 424, and 2011 (14) SCC 337. Learned Counsel appearing on behalf of the petitioner has relied on the judgment reported in 2012 (1) CLJ Cal 636. I have gone through the said decisions of this Hon’ble Court as well as Hon’ble Apex Court. In the decision reported in 2012 (1) CLJ Cal 636 learned Single Judge had come to the conclusion that there is a provision for the aggrieved party to take appropriate steps in the said Act against the ex parte order passed by the State Commission. According to the learned Single Judge Section 21 of the 1986 Act is an effective remedy. The aggrieved person may come to High Court against an ex parte order passed by the State Commission. On the basis of such logic learned Single Judge has set aside the ex parte order passed by the State Commission. 8. Learned Counsel appearing on behalf of the opposite party contended that this Court has no jurisdiction to entertain such an application on the ground that specified forum is there to hear the appeal against the order of the State Commission. On perusal of the judgments reported in 2015 (2) CLJ Cal 424, I find that another learned Single Judge of this Court has held that the statute provides for more exhaustive remedy by way of an appeal before the National Commission. While passing the said judgment, learned Single Judge considered the judgment reported in 2011 (14) SCC 337 (in connection with Nivedita Sharma Vs. Cellular Operators Association of India and Others). Ratio of those two judgments clearly indicates that when statutory forum is created by law for redressal of grievances, writ petition should not be entertained ignoring statutory dispensation. In other words, Hon’ble Apex Court held with particular reference to the Consumer Protection Act that since the statute provides for an appeal or a revision against an order of this State Commission, High Court should not entertain such application under Article 227 against of the order of the State Commission. Ratio of those two judgments cannot be lost sight of. Accordingly, I find no merit in the application. The revisional application stands dismissed for want of jurisdiction. 9. Ratio of those two judgments cannot be lost sight of. Accordingly, I find no merit in the application. The revisional application stands dismissed for want of jurisdiction. 9. Let a copy of this judgment be sent to the learned District Forum and Commission below for their information and taking necessary action in accordance with law. 10. Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.