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2016 DIGILAW 385 (CAL)

Md. Akbar Kamal v. Tabraiz Alam Siddiqui

2016-04-28

ASHOKE KUMAR DASADHIKARI

body2016
JUDGMENT : Ashoke Kumar Dasadhikari, J. Order impugned dated 24th March, 2014 passed in Complaint Case No. 126 of 2013 and Misc. Appeal No. 554 of 2013 by the learned State Consumer Disputes Redressal Commission, West Bengal at Kolkata is under challenge in this revisional application by the opposite party no. 3/petitioner herein and also challenging the maintainability of the Complaint Case No. CC/126/2013 on the ground of bar of jurisdiction of the Consumer Fora in the matter arising out of West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 [hereinafter referred to as the 'Act']. 2. A complaint case was filed by the opposite party no.1 being Tabaraiz Alam Siddiqui son of late Mazharul Haque Siddiqui before the learned State Consumer Disputes Redressal Commission, West Bengal to give the following directions upon the opposite parties/owners and promoters: 1. To deliver peaceful vacant possession of the flat as described in the schedule B below on receiving the balance payment of Rs. 59,625/- from the complainant and to execute a registered deed of conveyance in respect of the same. 2. For completion of construction of the underground water reservoir for storing municipal water. 3. Compensation to the tune of Rs. 10,00,000/- to be paid to the complainant for mental and physical agony since the complainant has been suffering for last couple of years. 4. Damages to the tune of Rs. 15,00,000/- which the complainant suffered due to non-availability of the suit flat and 5. Litigation cost of Rs. 50,000/- etc. 3. The petitioner has been served with the complaint application. He appeared before the learned State Consumer Disputes Redressal Commission, West Bengal through his learned advocate and filed one application on point of maintainability, which was registered as Misc. Appeal No. 554 of 2013. 4. The said application was heard by the learned State Consumer Disputes Redressal Commission, West Bengal, and upon hearing both sides, the application being M.A. No. 554 of 2013 was dismissed. 5. Mr. Lahiri, learned Counsel appearing for the petitioner submits that the learned State Consumer Disputes Redressal Commission, West Bengal did not consider the petition filed by the petitioner on the point of maintainability and passed the impugned order of dismissal. He submits that the complainant actually prayed for a direction for sale of immovable property, which is beyond the jurisdiction of the Consumer Fora. He submits that the complainant actually prayed for a direction for sale of immovable property, which is beyond the jurisdiction of the Consumer Fora. According to him, the State Consumer Disputes Redressal Commission, West Bengal, did not consider this point at the time of admission of the complaint and the said Commission has also erred in rejecting the petition of the opposite party no.3/petitioner herein filed on the point of jurisdiction. He submits that the said Commission, in fact, has no jurisdiction to entertain the prayer. He submits that the said Commission also failed to consider the judgment delivered by the learned Single Judge of this Hon'ble Court in case of Smt. Rita Das v. Smt. Jayashri Ghosh & Ors. reported in (2012) 3 CLJ 291]. The tribunal did not apply its mind. 6. Mr. Lahiri further submits that the said Commission has acted without jurisdiction by admitting the complaint filed by the complainant. He, therefore, cited two other decisions in support of his contention, 2014(2) ICC 853 [Smt. Bithi Das & Ors. v. Sri Debabrata Majumdar & Ors.] and (2005)3 SCC 212 [Govt. of A.P. & Anr. v. J. B. Educational Society & Anr]. 7. On the other hand, Mr. Barman, learned Counsel appearing for the complainant/opposite party no. 1 submitted that the State Consumer Disputes Redressal Commission, West Bengal, has jurisdiction to decide the complaint case. According to him, there is nothing wrong in the order passed by the learned State Consumer Disputes Redressal Commission, West Bengal. According to him, the State Consumer Disputes Redressal Commission, West Bengal, has considered the judgments referred by both sides and, ultimately, the Commission following the Hon'ble Apex Court's judgment in case of Mr. France B. Martins & Anr. v. M/s. Mafalda Maria Teresa Rodrigues reported in 1999 (3) CPR 67 (SC) in which it was held that where the builder though delivered flat as per agreement but failed to execute Sale Deed, Consumer Protection Commission was justified in giving direction to builder for specific performance of agreement. 8. Mr. Barman submits that there are catena of decisions in this regard which supports the contentions of the complainant that the said Commission has its jurisdiction to entertain the complaint case filed by the complainant. He further submits that it is a special act by which the said Commission was vested with the power to decide such type of cases. Mr. Barman submits that there are catena of decisions in this regard which supports the contentions of the complainant that the said Commission has its jurisdiction to entertain the complaint case filed by the complainant. He further submits that it is a special act by which the said Commission was vested with the power to decide such type of cases. Therefore, according to him, there is no illegality whatsoever in the order passed by the learned State Consumer Disputes Redressal Commission, West Bengal by rejecting the miscellaneous application being M.A. 554 of 2013 filed by the opposite party no.3/petitioner herein. 9. Learned Counsel for the opposite parties cited the decision of National Consumer Disputes Redressal Commission rendered in the case of NCDRC BAR Association (Regd) v. Davinder Malhotra & Ors. dated 18th July, 2008 and the judgment delivered by the Hon'ble Apex Court in Civil Appeal No. 95 of 2005 [Central bank of India v. State of Kerala & Ors.]. He also relied upon another judgment of the Hon'ble Apex Court delivered in case of Civil Appeal No. 4965 of 2000 [Kishore Lal v. Chairman, Employees State Insurance Corporation]. He submitted that it was held by the Hon'ble Apex Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the aforementioned judgment the Hon'ble Apex Court also referred the judgment delivered in case of M/s. Spring Meadows Hospital and Anr. v. Harjol Ahluwalia & Anr. reported in AIR 1998 SC 1801 wherein it was held that Consumer Protection Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. 10. According to him, the provisions of the Act are to be interpreted broadly. He also cited another judgment of the Hon'ble Apex Court rendered in Civil Appeal No. 5466 of 2012 [U.P. Power Corporation Ltd. & Ors. v. Anis Ahmad]. In the said case Hon'ble Apex Court held that inconsistency would arise only if the provisions of the Electricity Act, 2003 run counter to the provisions of the Consumer Protection Act, 1986 or if while enforcing provision on one statute, provisions of other statute is violated. Learned Counsel submitted that there are other decisions. v. Anis Ahmad]. In the said case Hon'ble Apex Court held that inconsistency would arise only if the provisions of the Electricity Act, 2003 run counter to the provisions of the Consumer Protection Act, 1986 or if while enforcing provision on one statute, provisions of other statute is violated. Learned Counsel submitted that there are other decisions. However, in this regard, he also referred one judgment of the Hon'ble Apex Court delivered in case of M/s. Fair Air Engineers Pvt. Ltd. v. N. K. Modi on 28th August, 1996. In that case it was held that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the CPC. Thereby, as seen, Section 34 of the Act does not confer and automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. 11. Considered from this perspective, the Hon'ble Apex Court held that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, the Hon'ble Apex Court of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act. Accordingly, it was held that the matter would be decided by the Commission itself. 12. Learned Counsel for the opposite parties also referred various other decisions in support of his submissions that the State Consumer Disputes Redressal Commission has the jurisdiction to entertain and decide the complaint case. Accordingly, it was held that the matter would be decided by the Commission itself. 12. Learned Counsel for the opposite parties also referred various other decisions in support of his submissions that the State Consumer Disputes Redressal Commission has the jurisdiction to entertain and decide the complaint case. According to him, the revisional application is not maintainable and also does not have any merit and, as such, the same should be dismissed. 13. Considered the submissions made by the learned Counsel appearing for the parties. 14. It appears that the complaint case filed by the opposite party no.1 for issuing a direction upon the promoters and owners to deliver peaceful vacant possession of the flat on payment of Rs. 59,625/-, to execute a registered deed of conveyance in respect of the same and for completion of construction of the underground water reservoir for storing municipal water, compensation etc. In that case one Misc. Application was filed by the opposite party no.3/petitioner wherein it was stated that the said Act had limited jurisdiction. It was further contended that the complaint case for transfer of the flat as filed by the complainant could not be entertained or decided under the Consumer Protection Act, 1986. According to the learned Counsel for the petitioner the matter was considered by this Hon'ble Court in case of Smt. Rita Das (supra) wherein it was held that the consumer forum have no jurisdiction in the matters falling under the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. However, the Consumer Protection Act, 1986 is a Central Government Act which overrides the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. 15. Therefore, the State Consumer Disputes Redressal Commission, West Bengal, have jurisdiction to decide the case. 16. On the side of the complainant one Apex Court judgment was cited which is reported in IV (2012) CPJ page 1 [Cicily Kallarackal v. Vehicle Factory]. In that case the Commission considered the submissions and referred the Hon'ble Apex Court's judgment delivered in case of Mr. France B. Martins (supra), wherein the Hon'ble Apex Court decided that the Consumer Protection Commission was justified in giving direction to builder for specific performance of agreement. In that case the Commission considered the submissions and referred the Hon'ble Apex Court's judgment delivered in case of Mr. France B. Martins (supra), wherein the Hon'ble Apex Court decided that the Consumer Protection Commission was justified in giving direction to builder for specific performance of agreement. Therefore, the learned State Consumer Disputes Redressal Commission, West Bengal, rightly held that the Consumer Fora is competent to decide the issues like the one in question. It was also held by the learned Commission that the Hon'ble Apex Court have held in many other cases that remedy available to the aggrieved person under the Consumer Protection Act, 1986 is an effective alternative remedy, and the Hon'ble High Court should not preclude the Consumer Fora from exercising such jurisdiction. 17. The learned Tribunal also referred different decisions and also recorded the view of the Hon'ble Apex Court to the fact that the High Court could not exercise power under Article 226 of the Constitution ignoring the availability of remedy under Consumer Protection Act, 1986. In this regard it would be relevant to quote paragraphs 17 and 18 of the judgment delivered by the Apex Court in case of Kishori Lal (supra): "17. It has been held in numerous cases of this Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s. Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, AIR 1998 SC 1801 , it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabarathi House Building Co-op. Society and Others, AIR 2003 SC 1043 , the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305 . These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305 . The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated. 18. The submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees' Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees' Insurance Court clause (e) of Section 75(1) gives power to the Employees' Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e. the ESI Act. The Employees' State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents' benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents' benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees' Insurance Court. The appellant's claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees' Insurance Court. The appellant's claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein." 18. In view of the aforementioned judgments of the Hon'ble Apex Court as well the ratio of those judgments, there is no doubt that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated. 19. The learned State Consumer Disputes Redressal Commission, West Bengal, have carefully considered the application and rightly held that the Commission do have jurisdiction to entertain this complaint. Otherwise also this revisional application under Article 226 of the Constitution of India is not maintainable in view of the Hon'ble Apex Court's decision as referred hereinbefore. 20. Therefore, this revisional application is of no merit and, as such, is dismissed. 21. The State Consumer Disputes Redressal Commission, West Bengal, is directed to dispose of the matter within six months from the date of communication of this order. 22. There will be, however, no order as to costs. 23. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.