State Consumer Disputes Redressal Commission
Shree Shree Sirdi Sain Baba Projects ... vs Soraj Kr. Mullick on 12 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1082/2015 (Arisen out of Order Dated 20/07/2015 in Case No. CC/224/2010 of District North 24 Parganas) 1. Shree Shree Sirdi Sain Baba Projects Pvt. Ltd. Co. A/F - 5/2, Jyangra, V.I.P. Rd, Raghunathpur, P.O - Deshbandhunagar, P.S - Rajarhat (Now Baguiati), Kolkata - 700 059, Dist - North 24 Pgs. 2. Sri Swapan Kumar Ghosh (Now Deceased) S/o, Lt. Suresh Chandra Ghosh, 8/71, Bijoy Garh, P.S - Jadavpur, Kolkata - 700 032. 3. Sri Samir Ghosh S/o, Suresh Chandra Ghosh, 8/71, Bijoy Garh, P.S - Jadavpur, Kolkata - 700 032. 4. Suvra Bhowmick W/o, Prabir Kumar Bhowmick, 8/71, Bijoy Garh, P.S - Jadavpur, Kolkata - 700 032. ...........Appellant(s) Versus 1. Soraj Kr. Mullick S/o, Lt. Subodh Chandra Mullick, Abasan Housing Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 2. Ekonistha Dutta S/o, Sri Shayamal Dutta, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 3. Smt. Koel Dutta W/o, Ekonistha Dutta, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 4. Sudip Kr. Roy S/o, Khageshwar Roy, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 5. Smt. Gouri Roy (Ghosh) W/o, Sudip Roy, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 6. Hindol Chatterjee S/o, Mr. H.K. Chatterjee, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 7. Hirak Kr. Chatterjee S/o, Lt. Subodh Kumar Chatterjee, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 8. Subhojit Sil S/o, Rajkumar Seal, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 9. Mrs. Anita Sil W/o, Rakumar Sil, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 10. Miss. Gita Das W/o, Bireswar Das, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 11. Bibhas Dhara S/o, Joydeb Dhara, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 12. Arup Kr. Basak S/o, Lt. Sambhunath Basak, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 13. Niloy Baran Chakraborty S/o, Anil Kumar Chakraborty, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 14. Dipankar Bhattacharjee S/o, Lt. Bimlendu Bhattacharjee, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 15. Smt. Madhumanjuri Bhattacharjee S/o, Lt. Dipankar Bhattacharjee, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 16. Smt. Runu Chakrabarty W/o, Swapan Chakrabarty, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 17. Subhadip Basu S/o, Bimal Kanti Basu, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 18. Smt. Hasi Basu W/o, Bimal Kanti Basu., Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 19. Dipak Ranjan Dutta S/o, Lt. Krishnadas Dutta, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 20. Smt. Sumita Dutta W/o, Dipak Ranjan Dutta, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 21. Arindam Mukherjee S/o, Achinta Kr. Mukherjee, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 22. Sanjoy Sengupta S/o, Lt. Dilip Kr. Mukherjee, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 23. Dola Sengupta W/o, Sanjoy Sengupta, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 24. Sandip Sarkar S/o, Sahadeb Sarkar, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 25. Gaoutam Ghosh S/o, Lt. Bhabani Prasad Ghosh, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 26. Smt. Mallika Ghosh W/o, Goutam Ghosh, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 27. Arun Chandra Debnath S/o, Lt. Parabati Chandra Debnath, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 28. Subrata Mondal S/o, Sanatan Mondal, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 29. Smt. Tansuri Mondal W/o, Subrata Mondal, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 30. Indranil Mondal S/o, Bholanath Mondal, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 31. Udayant Sing S/o, Debendra Nath Sing, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. 32. Smt. Gita Sing W/o, Debendra Nath Sing, Abasan Housing Complex, TG - 2/23, Kolupukur, Kolkata - 700 157, Dist - North 24 Pgs, West Bengal. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: For the Respondent: Dated : 12 Jul 2017 Final Order / Judgement
Date of Filing - 28.09.2015 Date of Hearing - 04.07.2017 Challenge in this Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Judgement/Final Order dated 20.07.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 224/2010. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondents under Section 12 of the Act on contest with certain directions upon the Appellants like - (a) to complete the incomplete works as per Commissioner's report within two months; (b) to take separate meter for consumption of common area in the disputed building in the name of Flat Owners Association within two months; (c) to pay compensation of Rs.20,000/-; (d) to pay litigation cost of Rs.10,000/-.
The Respondents herein being Complainants initiated the complaint stating that the OP Nos. 2 to 4 being owners of a piece of land measuring 18 cottahs more or less lying and situated at Mouza - Teghoria, P.S.- Rajarhat, Dist- North 24 Parganas had entered into agreements with OP No.1/developer on 11.09.2009, 18.09.2009 and 05.04.2003 and simultaneously they have also executed one Registered Power of Attorney in favour of OP No.1 empowering him to raise a construction of G+3 storied building over the said property. On 23.08.2002, the developer obtained sanction from the Rajarhat-Gopalpur Municipality in the name of Owners. The complainants on different dates met the developer and entered into Agreement for Sale to buy flats in the said complex to be constructed by the OP No.1. Subsequently, being mutually agreed upon, the opposite parties executed several Deed of Conveyances in favour of the complainants on different dates and also handed over the possession of the flats. However, subsequently the complainants found that the OP No.1/developer did not act accordingly as per terms of the agreement and there was deficiencies on the part of the developer and inspite of several demands made by the complainants, the developer had been failing and neglecting to take any initiative to address the problem faced by the complainants. Hence, the Respondents herein being complainants lodged the complaint before the Ld. District Forum with prayer for several reliefs.
The Appellants being Opposite Parties by filing written version have categorically denied the allegations made by the complainants. According to the opposite parties, they have constructed the building as per sanctioned plan and delivered the possession and executed the Sale Deed as per terms of the agreement. Therefore, they have prayed for dismissal of the complaint with costs.
It would be pertinent to record here that once the petition of complaint was disposed of by the Ld. District Forum on 16.08.2012 and challenging the said order, the developer preferred an appeal being FA/637/2012 and by order dated 30.04.2013 the said appeal was allowed and the case was sent back on remand with a direction upon the Ld. District Forum to give an opportunity to the complainants to apply for appointment of a technical person to prove the alleged deficiencies made by the complainants. Thereafter, at the behest of the complainants, one Engineer Commissioner was appointed, who after holding enquiry in presence of both sides submitted his report before the Ld. District Forum on 09.03.2014. The opposite parties have filed a written objection against the said report.
However, after assessing the materials on record, the Ld. District Forum by the impugned Judgement/Final Order allowed the complaint on contest against the OPs with certain directions as indicated above. Being aggrieved by and dissatisfied with the said order, the OPs have come in this Commission with the present appeal.
Having heard the rival contention of the parties, it would reveal that the Appellant Nos. 2 to 4 were the landowners in respect of a piece of land measuring 18 cottahs more or less lying and situated at Mouza - Teghoria, P.S.- Rajarhat, Dist- North 24 Parganas within the local limits of erstwhile Rajarhat-Gopalpur Municipality. On 11.09.2009, 18.09.2009 and 05.04.2003 the Appellant Nos. 2 to 4 had entered into agreements with appellant No.1/developer and simultaneously they have also executed one Registered Power of Attorney in favour of Appellant No.1/developer empowering him to raise a construction of G+3 storied building over the said property. On 23.08.2002, the developer obtained sanctioned plan from the Rajarhat-Gopalpur Municipality in the name of landowners i.e. appellant nos. 2 to 4. The respondents/complainants on different dates met the developer and entered into Agreement for Sale to buy flats in the said complex to be constructed by the developer. Subsequently, being mutually agreed upon, the appellants executed several Deed of Conveyances in favour of the respondents/complainants on different dates and also handed over the possession of the flats.
Mr. Rajesh Biswas, Ld. Advocate for the appellants on the threshold of his argument has drawn my attention to the impugned Judgement and submitted that though this point was raised before the Ld. District Forum but the Ld. District Forum wrongly came to a conclusion that the District Forum has pecuniary jurisdiction to entertain the complaint.
Mr. Barun Prasad, Ld. Counsel for the contesting respondents, on the other hand has submitted that the appellants being opposite parties did not raise this point in their written version and as such they cannot raise this point in an appellate stage. In support of his contention, Ld. Counsel for the respondents has referred a decision of Hon'ble National Consumer Commission reported in 2015 (2) CPR 413 (GTM Builder & Promoters Pvt. Ltd. - Vs. - Anuja Goyal).
The referred decision has made it clear that the objection pertaining to pecuniary/territorial jurisdiction must be taken at earliest possible opportunity and it cannot be allowed to be taken at a subsequent stage. It is true that the opposite parties have not mentioned in their written version as to pecuniary jurisdiction of the Ld. District Forum to entertain the complaint but the point was raised at the time of final hearing of the case. It is quite apparent that altogether 32 flat owners have lodged the complaint before the Ld. District Forum. The copy of registered deeds available with the record goes to show that the value of each of the flats are not less than Rs.9/10 lakhs. Therefore, if the value of each of the flats is taken together, certainly the value of the complaint would exceed the jurisdiction of the Ld. District Forum. The complainants have claimed Rs.20,00,000/- as compensation and as such if the value of the flats and the compensation are added together, certainly the Ld. District Forum had no pecuniary jurisdiction to entertain the complaint. The Ld. District Forum has only considered the claim of compensation of Rs.20,00,000/- but did not consider the value of the flats purchased by the complainants.
Needless to say, the jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz - (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi - vs. - D.L.F. Universal Ltd. & Anr.) the Hon'ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.
In the petition of complaint, complainants have not spell out the value for the purpose of ascertaining jurisdiction. The Act does not specifically lay down as to how a complaint is to be valued for the purpose of jurisdiction. However, it is manifest that it is essentials for the complainants to value the goods or services which the opposite parties had provided as also the compensation, if any claimed by the complainants because the criteria laid by the statue is 'value'.
The provisions of Section 11(1) of the Act deals with the pecuniary jurisdiction of the District Forum, which provides -
"11. Jurisdiction of the District Forum -
Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed does not exceed rupees twenty lakhs".
In the case of Ambrish Kumar Shukla & Ors. -vs. - Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1 (NC) the Larger Bench of the Hon'ble National Commission while discussing on the point has observed thus-
"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....".
In the case of P.S. Srijan Enclave (RP No.2679/2011 dated 12.03.2012) the Hon'ble National Consumer Commission has held that in order to determine pecuniary jurisdiction in respect of a dispute regarding service relating to housing would include the value of the property as a whole as well as the compensation demanded in the complaint.
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed determines pecuniary jurisdiction of the Consumer Forum. The District Forum enjoys a pecuniary jurisdiction not exceeding Rs.20 lakhs. In the instant case, 32 flat owners as complainants have claimed Rs.20 lakhs as compensation without adding the value of the flats purchased by them.
Taking into consideration the proposition of law and the materials placed before me, I find that the Ld. District Forum has totally misconstrued the provisions of Section 11(1) of the Act and the decision of the higher authority. The Ld. District Forum should have dismissed the complaint simply on the ground that it had no pecuniary jurisdiction to entertain it.
From the petition of complaint itself, it reveals that out of 47 flat owners, only 32 flat owners have lodged the complaint and at the time of filing of the petition of complaint they did not seek any permission of the Ld. District Forum in accordance with the provisions of Section 12(1)(c) of the Act. In the case of Ambrish Kumar Shukla & 21 Ors. (supra) while discussing on the point in Paragraph-7 it has been observed thus :
"7. Section 12(1)(c) of the Consumer Protection Act when read with Order 1 Rule 8 of the Code of Civil Procedure will apply if - (i) the consumers are numerous; (ii) they have the same interest; (iii) the necessary permission of the Consumer Forum is obtained and (4) notice in terms of Sub-Rule (2) of Rule 8 of Order 1 is given. It however, is not necessary that cause of action available to all the consumers should also be the same. What is required is sameness of the interest and not same cause of action".
It is quite evident that apart from 32 complainants, there are other 15 allottees who are similarly placed. However, perusal of prayer clause of petition of complaint would show that the relief has not been claimed for other similarly placed persons.
Therefore, keeping in view the provisions of Section 12(1)(c) of the Act, when the complainants did not obtain permission of the Ld. District Forum to sue in a representative capacity, the Ld. District Forum ought to have returned the petition of complaint.
Considering the above and having heard the Ld. Advocates appearing for the parties, it appears to me that when the Ld. District Forum had no pecuniary jurisdiction to entertain the petition of complaint and further at the time of filing of the complaint, no application was filed seeking permission of the Ld. District Forum in accordance with Section 12(1)(c) of the Act, the appeal should be allowed and the further discussion regarding legality and correctness in respect of other aspects of the impugned judgement/final order will be a mere formality.
Consequently, the appeal is allowed on contest. There will be, however, no order as to costs.
The impugned Judgement/Final Order is hereby set aside.
Consequently, CC/224/2010 stands dismissed.
However, this order will not debar the Respondents/Complainants to approach a competent Court/Forum in accordance with law and in the process he may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 ( Laxmi Engineering Works - vs.- P.S.G. Industrial Institute) to overcome the hurdle of limitation.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER