State Consumer Disputes Redressal Commission
M/S. Shree Vishnu Construction vs Sri Dipendu Chakraborty on 31 March, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/107/2015 (Arisen out of Order Dated 26/06/2015 in Case No. Complaint Case No. CC/289/2013 of District Burdwan) 1. M/s. Shree Vishnu Construction Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304, rep. by, its partners Mr. Gour Chandra Dhar, Sri Kishore Ghosal, S/o, Lt. Sisir Ghosal. 2. Sri Kishore Ghosal S/o, Lt. Sisir Ghosal, Partner of M/S Shri Bishnu Construction, Gopalpur, Nichupara, Near Kali Mandir, P.O -Asansol, P.S - Asansol (S), Dist - Burdwan, Pin - 713 304. 3. Gour Chandra Dhar S/o, Lt. Bhutnath Dhar, Partner of M/S Shri Bishnu Construction, Gopalpur, Nichupara, Near Kali Mandir, P.O -Asansol, P.S - Asansol (S), Dist - Burdwan, Pin - 713 304. 4. Sri Bikram Dasgupta S/o, Asit Ranjan Dasgupta, Partner of M/S Shri Bishnu Construction, Gouranga Sen Sarani, Radhanagar Road, P.O - Burnpur, Dist - Burdwan, Pin - 713 325. ...........Appellant(s) Versus 1. Sri Dipendu Chakraborty Shankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 2. Sri Ranadeep Choudhury Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 3. Sri Sudip Mukherjee Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 4. Sri Shyamal Baran Ghosh Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 5. Sri Mrinal Kanti Nandi Majumder Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 6. Sri Amar Sadhu Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 7. Sri Chandan Kumar Banerjee Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 8. Sri Indranil Guha Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 9. Sri Mihir Kumar Rout Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 10. Sri Anup Kumar Mondal Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 11. Sri Subhendu Chakraborty Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 12. Sri Dulal Chandra Chakraborty Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 13. Sri Purnendu Kumar Ghosh Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 14. Smt Supti Sengupta Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 15. Smt Sipra Mukherjee Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 16. M/S. Udaypur Nirman represented by its Directors Sri Bhagawati Agarwal. Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 17. Sri Dayamoy Mondal Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 18. Sri Suresh Agarwal Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 19. Sri Sushil Agarwal Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. 20. Sri Bimal Agarwal Sankha Apartment, Vidyasagar Sarani, P.O - Asansol, Dist - Burdwan, Pin - 713 304. ...........Respondent(s) BEFORE: HON'BLE MRS. MRIDULA ROY PRESIDING MEMBER For the Petitioner: Ms. Sudeshna Basu Thakur , Advocate For the Respondent: Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate Mr. Debdas Rudra, Advocate ORDER
Date of Hearing: 21.03.2016 Date of judgment: 31.03.2016 Judgment The instant Revision petition preferred by the above named petitioners challenging the order dated 26.06.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Burdwan in Miscellaneous Application being No. 49/2015 arising out of Complaint Case being No. CC/289/2013 dismissing the said Miscellaneous Application on contest without costs.
By filing the Miscellaneous Application the Opposite Parties have challenged the maintainability of the Complaint Case.
The Complainants filed the Complaint Case before the Ld. District Forum below stating that they, 20 in numbers, being purchasers entered into respective agreements with the Opposite Party developers cum land owners in respect of hiring construction service for their respective flats by making payment of agreed consideration amount to them. Accordingly, the respective flats were delivered to them as well as registration of the said flat was executed in favour them. Subsequently, the Complainants found that there were some defects in the flats for which they have to suffer a lot. The Complainants further alleged that the possessions certificates had not been delivered to them so far. Therefore, by filing the petition of Complaint they have prayed direction to remove the defects in the building as well as in the flats, to deliver possession certificate to pay compensation etc. In course of hearing Ld. Advocate for the Revisionist has submitted that the Ld. District Forum below does not have the pecuniary jurisdiction to entertain the petition of Complaint since the total value of the flats of the Complainants exceeds more than Rs 20,00,000/-. Ld. Advocate for the Revisionist specifically mentioned that as per Sec 11(2) of the C.P. Act the value of Complaint should be determined summing up the value of goods/ service plus the compensation claimed. Ld. Advocate for the Revisionist has submitted that in the instant case the Complainants (Respondents herein) have prayed for delivery of possession certificates in respect of their flats, and, therefore, the value of the flats should be taken into consideration for determining the pecuniary jurisdiction.
Ld. Advocate for the Respondents has submitted that the Opposite Parties filed the petition challenging maintainability of the Complaint Case on the ground that since the Opposite Party being Promoters cum Developers as defined under West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act 1993 the instant Complaint Case under the C.P. Act is not maintainable as per Sec 12 (A) of the said Act. Ld. Advocate for the Revisionist has also submitted that in the instant case the Revisionist developers are not registered under the said Act, therefore, Sec 6 or Sec 12 (A) is not applicable at all. Ld. Advocate for the Revisionist has further stated that since the Complainants are Consumers under the Opposite Party developers they are entitle to put their grievances before any Consumer Disputes Redressal Agency for getting relief. In support of his contention Ld. Advocate for the Revisionist has cited the decisions of 1) Kolkata High Court in C.O. No. 1378 of 2012 [Narayan Chandra Ghosh and Anr. Vs Biswajit Lahiri]. 2) Supreme Court of India in Civil Appeal No. 6237 of 1990 with S.L.P. (C) Nos. 659/91; 16842/92; C.P. Nos. 3963/89, 5534/90, 6236/90, 5257/90, 2954 - 59 of 1992 - Decided on 5.11.1993 [ Lucknow Development Authority Vs M.K. Gupta].
Having heard submissions from both sides and on perusal of the petition filed by the developers challenging maintainability of the Complaint Case it appears that nowhere within the four corners of the said petition the developers have ever challenged the pecuniary jurisdiction of the Complaint Case rather they have challenged the maintainability on the ground that in existence of Sec 12(A) of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act 1993 the Consumer Forum has no jurisdiction to entertain the instant Complaint Case.
The specific point to be considered herein that whether there is an embargo created u/s 12 A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act 1993. Sec 12 A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act 1993 reads thus " 12 A. Bar on jurisdiction of court. - (1) No Civil Court shall have any jurisdiction to entertain or decide any question relating to matters arising under any provision of this Act and rules made there under.
(2) Every order passed by authorised officer which is subject to Appeal or Revision, every order passed by the authority referred to in sub-section (1) of Sec 5, every order passed by the officer referred to in Sec 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."
There from it implies that the matter relating to the promotion of construction and transfer by promoter shall be decided by a competent authority appointed under the said Act.
However, Sec 3 of the Consumer Protection Act reads as under " Act not in derogation of any other law . - the provision of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
Section 2(1)(d) in the Consumer Protection Act, 1986
(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 12 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 12 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 13 [but does not include a person who avails of such services for any commercial purpose];
From the afore said Sec it appears that the Consumer - service provider relationship will be under the purview of C.P. Act.
In para 13 of the case of Narayan Chandra Ghosh and Anr it was held that if the plaint being read as a whole it is to be found that the promoter was not complying with the terms of agreement executed by and between the purchaser and the promoter.
In case of M.K. Gupta Vs Lucknow Development Authority it was held by the Apex Court that housing construction would be under purview of service as envisaged u/s 2 (1) (o) of the C.P. Act.
In Fakir Chand Gulati Vs Uppal Agencies Pvt. Ltd. and Anr, reported in (2008) 3 SCC 345 it was held by the Apex Court that ' where the builders commit breach of his obligation the owner has the right to approach the Forum under the Consumer Protection Act, 1986 for relief as Consumer against the builder as a service provider. Sec 3 of the Act make it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the Complainant.
In such view of the mater I am inclined to hold that Sec 12 A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act 1993 does not create an embargo for entertainment of the Complaint Case under the Consumer Protection Act.
Moreover the promoter/ developer is not registered one and therefore Sec 12 A the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoter) Act 1993 is not applicable t the instant case.
For the reason afore said i find there is no infirmity in impugned order and therefore there is no need to interfere with the same.
As regards the submission made by the Ld. Advocate for the Revisionist regarding the Pecuniary jurisdiction of the District Forum below I am of opinion that the jurisdiction of the Forum below may be challenged before the Court of First instance and not before this Commission.
In the result the instant Revision Petition does not succeeded.
Hence, Order, That the instant Revision Petition being No RP/107/2015 is dismissed on contest without costs. The impugned order is affirmed. [HON'BLE MRS. MRIDULA ROY] PRESIDING MEMBER