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2016 DIGILAW 957 (CAL)

Universal Consortium of Engineers (P) Ltd. v. Barid Baran Roy

2016-12-02

HARISH TANDON

body2016
JUDGMENT : 1. This review application has been filed against the judgement dated 5th April, 2016 passed in C.O. 1919 of 2014, by which the revisional application filed by the petitioners was dismissed holding that the disputes raised in the complaint petition is covered by the provisions of Section 2 (o), (g) and (d) of the Consumer Protection Act, 1986. 2. By the said order the Court upheld the jurisdiction of the District Forum as well as the State Commission under the said Act and rejected the contention of the petitioners that because of the Special Act, namely the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (hereinafter referred to as the “Promoters Act”), the jurisdiction is ousted. 3. The challenge was made to an order by which an application seeking direction upon the opposite party no. 1 to show cause why an appropriate proceeding under Section 27 of the Consumer Protection Act should not be drawn up was rejected. The revisional application was filed as the State Commission declined to issue such notice. 4. An argument was advanced, as it would reflect from the impugned judgement, that both the District Forum as well as the State Commission lacks jurisdiction because of the bar created under Section 12A of the said Act and, therefore, any order passed in a proceeding originated under Section 12 of the C.P. Act is bad in law, without jurisdiction and a nullity. It was further alleged that while the petitioners were enjoying an order of stay in an appeal filed before the State Commission, the possession was taken by the complainant/opposite party no. 1, which is illegal and contrary to law. 5. On the side of the opposite party no. 1 an argument was advanced that the High Court should not exercise power enshrined under Article 227 of the Constitution of India in relation to any matter concerning the consumer disputes and cited various decisions of the Supreme Court in this regard. 6. There was no dispute that the opposite party no. 1 obtained possession, as the petitioner itself invited the attention of the State Commission to activate the provisions of Section 27 of the C.P. Act. 7. By the impugned order the Hon’ble Judge held that the dispute raised by the opposite party no. 6. There was no dispute that the opposite party no. 1 obtained possession, as the petitioner itself invited the attention of the State Commission to activate the provisions of Section 27 of the C.P. Act. 7. By the impugned order the Hon’ble Judge held that the dispute raised by the opposite party no. 1 under Section 12 of the C.P. Act confirms to the definition provision and held that such dispute squarely comes within the purview of Section 2 (o), (g) and (d) of the Consumer Protection Act, 1986. 8. The review application was filed engaging a new lawyer, who did not appear before the Revisional Court, nor the counsel, who appeared therein and argued the matter, were engaged at the time of moving the review application. Subsequently the present advocate on record engaged the counsel, who appeared before the Revisional Court who has consented to appear for the petitioner. 9. It is submitted on behalf of the petitioner that the Hon’ble Judge have wrongly recorded the fact that the development agreement is undisputed, which contains the terms and conditions for handing over the flats and office room, and the flats were handed over without completion certificate. According to the learned advocate, the aforesaid facts are contrary to record and, therefore, there is patent error requiring review of the said judgement. 10. Many other points are raised by the learned counsel, which, in my opinion, touches the merit of the impugned order, and this Court decline to interfere with the same. 11. The review jurisdiction is limited and has to be decided strictly on the parameters set forth under Order XLVII Rule 1 of the Code of Civil Procedure. A review is by no means an appeal in disguise, whereby erroneous decision is reheard and corrected by the Court, nor can be used as a tool for revisitation, rehearing and reconsideration of the matter. The Court should not review an order merely on a change of opinion but restrict its scrutiny within the folds of Order XLVII Rule 1 of the Code. 12. The error in recording the fact if has a material bearing on the ultimate decision, certainly invites the Court to invoke review jurisdiction, but not when it is unrelated, unconnected and having no nexus with the moot question raised before the Court. 13. 12. The error in recording the fact if has a material bearing on the ultimate decision, certainly invites the Court to invoke review jurisdiction, but not when it is unrelated, unconnected and having no nexus with the moot question raised before the Court. 13. It is revealed from the impugned order that the core issue involved in the revisional application was whether the District Forum has jurisdiction to entertain the dispute raising between the developer and the intending purchaser in view of the embargo created under Section 12A of the said Act. 14. The Court answered such issue and ultimately arrived at the conclusion that such issue is covered by the Consumer Protection Act. A judgement, which is erroneous or decided on merit of the case, cannot be reviewed under Order XLVII Rule 1 of the Code of Civil Procedure. The aggrieved person has a remedy to go higher up to challenge such erroneous decision, but certainly not by invoking the provisions under Order XLVII Rule 1 of the Code. 15. The emphasis is put more on the facts involved in the case and the point of law in commensurate therewith, but this Court does not find that the findings of fact have any relevance on a question of law urged and raised before the Revisional Court. 16. It further transpires from the impugned judgement that the Court refused to exercise the power under Article 227 of the Constitution of India in interfering with the impugned order. 17. What appears to this Court is that the petitioner wanted rehearing and reconsideration of the revisional application in the garb of review jurisdiction, which is impermissible and beyond the powers enshrined under Order XLVII Rule 1 of the Code. 18. It is ardently submitted on behalf of the petitioner that apart from the issue of jurisdiction other points were raised before the Revisional Court. 19. This Court does not find that the point urged before the Revisional Court has not been answered or decided. The Court shall not permit the petitioner to raise additional point or a new point in an application for review. 20. The review application is devoid of merit. The same is hereby dismissed. 21. In view of dismissal of the review application the connected application, being CAN 7143 of 2016, is also dismissed. 22. There will be no order as to costs.