Calcutta High Court (Appellete Side)
Rajdeep Laha & Ors vs The State Of West Bengal & Ors on 20 September, 2019
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W.P. No. 17282 (W) of 2019
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Rajdeep Laha & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. S.N. Mookherjee, Advocate
Mr. Rajarshi Dutta, Advocate
Mr. V.V.V. Sastry, Advocate
Mr. Nischay Mall, Advocate
For the respondent nos. 3 & 4 : Mr. Sabir Ahmed, Advocate
Mr. Tarunjyoti Banerjee, Advocate Mr. Gopal Krishna Mohanty, Advocate For the State : Mr. Amitesh Banerjee, Advocate Mr. S. Adak, Advocate Hearing concluded on : September 13, 2019 Judgment on : September 20, 2019 DEBANGSU BASAK, J.:-
1. The petitioners have assailed an order dated July 31, 2019 passed by the State Consumer Disputes Redressal Commission exercising jurisdiction under the provisions of the Consumer Protection Act, 1986 in interlocutory application No. IA/614/2019 in execution application no. EA/225/2018.2
2. Learned Senior Advocate appearing for the petitioners has submitted that, the impugned order is without jurisdiction. He has submitted that, the State Consumer Disputes Redressal Commission can invoke provisions of sections 25 and 27 of the Act of 1986 to execute an order passed by the commission under the Act of 1986 in the manner and to the extent provided therein. He has relied upon section 25 of the Act of 1986 and submitted that, it provides for enforcement of orders of the District Forum, the State Commission or the National Commission. Section 25 of the Act of 1986 must be read with section 27 thereof. Referring to such sections of the Act of 1986, learned Senior Advocate appearing for the petitioners has submitted that, the District Forum or the State Commission or the National Commission can pass an order as contemplated under section 25 and 27 thereof. Any other order passed by the District Forum, the State Commission or the National Commission purporting to be in execution of its order, are nullity. In the facts of the present case, he has submitted that, the petitioners bought flats at the building for valuable consideration. Apparently, there were disputes and differences between the owner of the land and the developer. The owners of the land initiated proceedings under the Act of 1986. The 3 petitioners as buyers of the flats were not parties in such proceedings.
Such proceedings being Complaint Case No. CC/31/2015 was disposed of by an order dated July 18, 2018. The State Consumer Disputes Redressal Commission by its order dated July 18, 2018 directed the respondent No. 5 to make over 50% of the total constructed building as per deed of agreement dated November 8, 2007 to the respondent Nos. 3 and 4 after obtaining completion certificate within 90 days from the date of the order. The respondent No.5 was also directed to pay a sum of Rs. 10,000/- per month to the respondent Nos. 3 and 4 as compensation from the month of October 2009. The respondent No. 5 was further directed to pay Rs. 20,000/- as costs of litigation to the respondent Nos.3 and 4. He has submitted that, the respondent No. 5 is presently in a correctional home. Apparently, the respondent No.5 failed to comply with the order dated July 18, 2018 passed in CC/31/2015. The respondent Nos. 3 and 4 applied for execution of such order being execution application No. EA/225/2018 in which, the respondent Nos. 3 and 4 applied by way of an interim application being IA/614/2019 which was allowed by the impugned order dated July 31, 2019 by directing the Officer in Charge, Jadavpur Police Station to assist the learned Advocate 4 Commissioner in handing over possession of the owners allocated portion as per deed of agreement dated November 8, 2007 to the respondent Nos. 3 and 4.
3. Learned Senior Advocate appearing for the petitioners has submitted that, no appeal lies against the impugned order at the behest of the petitioners. He has referred to and relied upon Section 27A of the Act of 1986 in support of his contentions. He has relied upon 2015 Volume 5 Supreme Court Cases page 423 (Radhey Shyam & Anr. v. Chhabi Nath & Ors.) and 2018 Volume 3 Calcutta High Court Notes (Calcutta) page 248 (Haji Hanif Hakam v. Debt Recovery Appellate Tribunal at Kolkata) in support of his contentions that, a writ petition is maintainable against an order passed by a tribunal which has acted without jurisdiction.
4. Relying upon 2011 Volume 8 Supreme Court Cases page 539 (Ethiopian Airlines v. Ganesh Narain Saboo) and 2011 Volume 9 Supreme Court Cases page 541 (Rajeev Hitendra Patham & Ors. 5 v. Achyut Kashinath Karekar & Anr.) learned Senior Advocate appearing for the petitioners has submitted that, the Consumer Forum, District Forum and the State Commission acting under the Act of 1986 has no power to set aside or recall their own ex parte orders. Therefore, according to him, the petitioners not being parties to the present application, the petitioners were not heard at any stages of the proceedings. They were not heard when the order that was sought to be enforced by the impugned order was passed. The petitioners cannot approach the State Commission in view of the ratio laid down in Rajeev Hitendra Pathak and Anr. (supra) and Ethiopian Airlines (supra). The petitioners cannot approach any other forum excepting this Hon'ble Court under Article 226 of the Constitution of India in respect of the impugned order. He has submitted that, the impugned order being without jurisdiction, should be quashed.
5. Learned Advocate appearing for the respondent Nos. 3 and 4 has submitted that his clients are the owners of an immovable property. The respondent Nos. 3 and 4 entered into a development agreement with the respondent No. 5. The respondent No. 5 sold the owner's 6 allocation to the petitioners illegally and wrongfully. There are apparent collusion and conspiracy between the respondent No. 5 and the petitioners. The petitioners claim to have obtained loans from banks. It is inconceivable that, loans were sanctioned and granted by the bank for purchase of the owner's allocation. The petitioners purchased the owner's allocation knowing fully well that the respondent No.5 as the developer had no right, title and interest in respect thereof to sell. Therefore, the Court should not come to the assistance of the petitioners. Referring to the impugned order, learned Advocate appearing for the respondent Nos. 3 and 4 has submitted that, the Commission has the jurisdiction to pass the impugned order. He has relied upon 2003 Volume 2 Supreme Court Cases page 412 (State of Karnataka v. Vishwabharathi House Building Coop. Society & Ors.) and 2015 Volume 11 Supreme Court Cases page 661 (Kamlesh Aggarwal v. Narain Singh Dabbas & Anr.) in support of his contentions.
6. The respondent Nos. 3 and 4 are owners of an immovable property measuring about 3 Cottahs 11 Chittacks and 27 square feet more or less lying and situated at premises No. 3B, Jadavpur East 7 Road, Kolkata 700 032. The respondent No.3 and 4 entered into a development agreement with the respondent No. 5 on November 8, 2007. Under such development agreement, the respondent Nos. 3 and 4 became entitled to 50% of the total sanctioned area including garage in the multistoried building that would be constructed in such premises. The development agreement also provided that, in the event of the construction not being completed within 18 months from the month of March 2008, the respondent No.5 shall pay Rs. 10,000/- per month to the respondent Nos. 3 and 4.
7. The petitioners Nos. 1 and 2 claim to have purchased a flat by virtue of a registered deed of conveyance dated March 5, 2014. The petitioner No. 3 claims to have purchased one flat by virtue of a registered deed of conveyance dated April 16, 2014. The petitioner No. 4 claims to have purchased one flat by virtue of a deed of conveyance dated March 11, 2015. All the conveyances of the petitioners were executed by the respondent No. 5 as constituted attorney of the respondent Nos. 3 and 4.
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8. The respondent No.5 did not make over possession of the owner's allocation to the respondent No. 3 and 4. The respondent No. 5 did not pay in compensation to the respondent Nos. 3 and 4 in terms of the development agreement or otherwise. The respondent Nos. 3 and 4 consequently lodged a complaint dated January 21, 2015 under section 17 of the Act of 1986 before the State Consumer Disputes Redressal Commission West Bengal being Complaint Case No.CC/31/2015. Such complaint case was disposed of by the order dated July 18, 2018. By such order, the State Consumer Disputes Redressal Commission directed as follows: -
i) The respondent No.5 to deliver possession of 50% of the total constructed building as per deed of agreement dated November 8, 2007 in favour of the respondent Nos. 3 and 4 after obtaining completion certificate within 90 days from the date of the order
ii) The respondent No.5 to pay Rs. 10,000/- per month to the respondent Nos. 3 and 4 as compensation from the month of October 2009 till the date of delivery of possession in terms of Clause 14 of the deed of agreement dated November 8, 2007.9
iii) The respondent No.5 to pay a sum of Rs. 20,000/- as cost of litigation in favour of the respondent Nos. 3 and 4.
9. The respondent No.5 did not comply with the directions contained in the order dated July 18, 2018 passed in the complaint case. The respondent Nos. 3 and 4 filed an application for execution of the order dated July 18, 2018 being execution application No. EA/225/2018. In such execution proceedings, a learned Advocate Commissioner was appointed by the State Consumer Disputes Redressal Commission. Subsequently, the respondent nos. 3 and 4 filed an interlocutory application in the execution application being IA/614/2019. By the impugned order dated July 31, 2019, the State Consumer Disputes Redressal Commission disposed of such interim application by directing the Officer in Charge, Jadavpur Police Station to assist the learned advocate Commissioner to hand over possession of the owner's allocation as per the deed of agreement dated November 8, 2007 positively within the second week of August 2019 and report compliance to the State Consumer Disputes Redressal Commission. On August 30, 2019, the petitioners became aware that the police and the learned Advocate Commissioner were attempting to 10 execute the impugned order at the premises concerned. The petitioners intervened and made a request to the police personnel and the learned Advocate Commissioner not to execute such order. The impugned order was not executed.
10. The impugned order was passed in an interlocutory application made in an execution application. The impugned order has proceeded on the basis that, the order dated July 18, 2018 passed on the Complaint Case No. CC/31/2015 under Section 17 of the Act of 1986 remained unexecuted and that, the directions given to the respondent No. 5 to deliver possession of the 50% of the total constructed area from the deed of agreement dated November 8, 2007 to the respondent Nos. 3 and 4 remained uncomplied with. The Commission, by the impugned order, in order to avoid delay and for proper execution of the order, allowed the interim application by directing the Officer in Charge, Jadavpur Police Station to assist the learned Advocate Commissioner in handing over possession of the owner's allocated portion as per the deed of agreement dated November 8, 2007 and report compliance.
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11. Sections 25 and 27 of the Act of 1986 provides for execution of orders passed by the District Forum, the State Commission, or the National Commission. Section 25 underwent an amendment with effect from March 15, 2003. Sections 25 and 27 prior to being amended were as follows:-
"25. Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the court within the local limits of whose jurisdiction,-
(a) in the case of an order against a company, the registered office of the company is situated, or
(b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon, the court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution.12
27. Where a trader or a person against whom a complaint made fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:
Provided that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section."
12. Sections 25 and 27 subsequent to the amendment with effect from March 15, 2003 are as follows:-
25. Enforcement of orders of the District Forum, the State Commission or the National Commission.--
(1) Where an interim order made under this Act, is not complied with, the District Forum or the State Commission or the National Commission, as the case may be, may order the 13 property of the person, not complying with such order to be attached.
(2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. (3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.
27. Penalties.--
(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, 14 such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.
13. In the present case, the impugned order herein, although passed by the State Commission, has been passed in exercise of powers 15 under Sections 25 and 27 of the Act of 1986. Section 25 allows the State Commission to enforce its orders. Section 27 of the Act of 1986 allows the State Commission to impose a fine or to punish a person with imprisonment of the prescribed value and term. Sub-Section (3) of Section 25 provides that, where any amount is due from any person under an order made by the District Forum, or the State Commission or the National Commission as the case may be, the person entitled to the amount may make an application to the District Forum, or the State Commission or the National Commission as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount, to the Collector of the District and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue. Sections 25 and 27 being the only sections empowering a District Forum, State Commission or the National Commission, as the case may be to pass orders for enforcement of their orders, the enforcement orders of such authorities are required to be within the parameters of Sections 25 and 27. Such authorities being creatures of statute, cannot travel beyond the provisions of the statute which created them. Powers and functions of the statutory adjudicating authorities are circumscribed 16 by the statute under which they were established and under which they function.
14. Orders passed under Section 27 of the Act of 1986 is appealable under Section 27A of the Act of 1986. Section 27A of the Act of 1986 has been introduced with effect from March 15, 2003. Section 27A of the Act of 1986 is as follows:-
"27-A. Appeal against order passed under section 27. -
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from-
(a) the order made by the District Forum to the State Commission;
(b) the order made by the State Commission to the National Commission;
And
(c) the order made by the National Commission to the Supreme Court.
(2) Except as aforesaid, no appeal shall lie to any Court from any order of a District Forum or a State Commission or the National Commission.
17(3) Every appeal under this section shall be preferred within a period of thirty days from the date of an order of a District Forum or a State Commission or, as the case may be, the National Commission:
Provided that the State Commission or the National Commission or the Supreme Court, as the case may be, may entertain an appeal after the expiry of the said period of thirty days, if, is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of thirty days."
15. The Act of 1986 was amended radically by the Consumer Protection (Amendment) Act, 2002. The Amendment Act of 2002 brought about a paradigm shift in the provisions of the Act of 1986 through the amendments introduced. Various definitions obtaining in the Act of 1986 were amended in order to make the words used in the Act of 1986 to be in tune of the law declared by the Courts. Original Section 25 was substituted. Original Section 27 was radically amended. Section 27A was introduced to the Act of 1986 through the Amendment Act of 2002. Section 25 of the Act of 1986 as presently obtaining allows a District Forum or a State Commission or the National Commission to enforce an interim order passed by any of 18 them. It empowers the District Forum, the State Commission and the National Commission to issue a certificate of the amount payable by a respondent in a proceeding, to the Collector of the District for collecting such amount and making over the same to the person entitled thereto. It also empowers the Collector upon receipt of such certificate to proceed to recover the amount in the certificate in the same manner as arrears of land revenue. The provisions of Section 25 as it stood prior to its amendment, allowed the District Forum, the State Commission or the National Commission to enforce its order in the same manner as if it were a decree or order made by a Court in a suit pending before it. Such provisions were found to be causing delay in execution and inappropriate for the purpose of execution of an order under the Act of 1986. A District Forum or a State Commission or a National Commission can impose penalty on any person failing or omitting to comply with any order made by any of them. Such power has been vested under Section 27 of the Act of 1986 after its amendment. A District Forum, State Commission or the National Commission as the case may be, no longer has the power to execute its order in the same manner as if it was a decree or order made by a 19 Court in a suit pending before such Court by virtue of the amendments introduced by the Amendment Act of 2002.
16. Vishwabharathi House Building Coop. Society & Ors. (supra) has considered Section 25 of the Act of 1986 as obtaining prior to its amendment. It has held as follows:-
"57. A bare perusal of the Section 25 of the Act clearly shows that thereby a legal fiction has been created to the effect that an order made by District Forum/State Commission or National Commission will be deemed to be a decree or order made by a civil court in a suit. Legal fiction so created has a specific purpose, i.e., for the purpose of execution of the order passed by the Forum or Commission. Only in the event the Forum/State Commission or the National Commission is unable to execute its order, the same may be sent to the civil court for its execution. The High Court, therefore was not correct to hold that in each and every case the order passed by the Districts Forum/ State Commission National Commission are required to be sent to the civil courts for execution thereof.
58. Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 20 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts, Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A Parliamentary statute indisputably can create a tribunal and might say that non-compliance of its order would be punishable by way of imprisonment of fine, which can be in addition to any other mode or recovery.
59. It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to posses power to execute their own order.
60. It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self- contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the Tribunal all powers in order to make its order effective."
17. Vishwabharathi House Building Coop. Society & Ors. (supra) was decided on January 17, 2003. Section 25 of the Act of 1986 underwent the amendment on March 15, 2003. Therefore, the ratio laid down in Vishwabharathi House Building Coop. Society & Ors. (supra) would not be appropriate to be applied to hold that, the District Commission or the State Commission or the National 21 Commission can have the benefits of Order XXI Rule 37 of the Code of Civil Procedure, 1908 for the purpose of enforcement of its orders.
18. Kamlesh Aggarwal (supra) has considered a complaint under Section 17 of the Act of 1986 lodged in the year 1998. It has noticed the provisions of Section 27A of the Act of 1986 and held that, an appeal lies from the order of the District Forum or the State Commission. It has held that, no second appeal lies under the Act of 1986.
19. In the present case, the State Commission, by the impugned order dated July 31, 2019, passed in an interlocutory application filed in a pending execution application, directed the Officer-in-Charge of Jadavpur Police Station to assist the learned Advocate Commissioner in handing over possession of the owner's allocated portion as per deed of agreement dated November 8, 2007. Such a direction, cannot be issued under Section 25 and Section 27 of the Act of 1986 as presently obtaining.
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20. The petitioners have contented that, the impugned order is not appealable under Section 27A of the Act of 1986. Section 27A of the Act of 1986 allows an appeal under Section 27 on fact and on law from the order made by the District Forum to the State Commission and from the order made by the State Commission to the National Commission and from the order made by the National Commission to the Supreme Court. In the present case, the impugned order is one under Section 25 read with Section 27 of the Act of 2002. The impugned order although, was passed without jurisdiction, the same however is appealable under Section 27A of the Act of 1986 as it purports to invoke powers inter alia under Section 27 of the Act of 1986. The issue of lack of jurisdiction of the State Commission, in the facts of the present case, in passing the impugned order, could be raised by the petitioners, in an appeal under Section 27A of the Act of 2002. The appellate authority acting under the provisions of the Act of 1986 is competent to decide such issue. Section 27A of the Act of 1986 allows issues both of fact and law to be raised in the appeal. Contention of lack of jurisdiction is an issue of law which the appellate authority under the Act of 1986 can decide. 23
21. Existence of a statutory appellate forum or the existence of a statutory alternative remedy is not a complete bar to the exercise of jurisdiction under Article 226 of the Constitution of India. Notwithstanding the existence of a statutory alternative remedy such as a statutory appeal, writ petition is maintainable when, it is substantiated that, the fundamental rights of the petitioners stands affected or the impugned order is without jurisdiction or where the impugned order is tainted by the malice or is perverse. In the facts of the present case, the impugned order is beyond the jurisdiction vested with the State Commission. The writ petition was heard on completion of affidavits, it would be inappropriate to require the petitioners to avail of the statutory appeal, in the facts and circumstances of the present case, particularly when the impugned order has been found to be beyond the jurisdiction. In such view, the ratio laid down in Ethiopian Airlines (supra) and Rajeev Hitendra Patham & Ors. (supra) to the effect that, a statutory authority has no power to review its decision, unless permitted to do so by the statute loses significance.
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22. Radhey Shyam & Anr. (supra) has noted the distinctions between the Articles 226 and 227 of the Constitution of India and the scope of jurisdiction under such articles. It has held that, judicial orders of Civil Courts are not amenable to the writ jurisdiction under Article 226 of the Constitution of India. Orders passed by Tribunals exercising powers under a statute are amenable to the writ jurisdiction of a High Court under Article 226 of the Constitution of India. Radhey Shyam & Anr. (supra) has been followed in Haji Hanif Hakam (supra). It has held that, a writ petition under Article 226 of the Constitution of India is maintainable against an order passed by the Debts Recovery Appellate Tribunal exercising jurisdiction under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
23. In view of the finding that, the impugned order passed by the State Commission is beyond jurisdiction, the order dated July 31, 2019 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata in Interlocutory Application No. IA/614/2019 in Execution Application No. EA/225/2018 is quashed. 25
24. W.P. No. 17282(W) of 2019 is disposed of accordingly. No order as to costs.
25. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
[DEBANGSU BASAK, J.]