Calcutta High Court (Appellete Side)
M/S Universal Consortium Of Engineers ... vs The State Of West Bengal & Ors on 16 September, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WP No. 23027 (W) of 2017
M/s Universal Consortium of Engineers (P) Ltd. & Anr.
Vs.
The State of West Bengal & Ors.
Present:
The Hon'ble Justice Protik Prakash Banerjee, J.
For the Petitioners : Mr. U. C. Jha, Adv.,
Mrs. Maheswari Sharma, Adv.,
Mrs. Tulika Roy, Adv.,
Ms. Soumya Gargesh, Adv.
For the Respondent : Mr. Lakshikanta Pal, Adv.,
No. 4
Mr. Bandhu Bratin Dhar, Adv.
Heard on : September 04, 2019 and September 12, 2019.
Judgment Reserved on : September 12, 2019.
Judgment on : September 16, 2019.
PROTIK PRAKASH BANERJEE, J:
1. This is a writ petition under Article 226 of the Constitution of India which has challenged the appellate order dated July 19, 2017 passed by the West Bengal State Consumer Disputes Redressal Commission with which the order dated November 27, 2013 passed the Learned District Consumer Disputes Redressal Forum has merged. This petition is at the instance of the promoter and was decided at the initial stage by the District Forum on contest against it though ex parte against the original land-owners.
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2. The petition for judicial review of the said order which has been passed by the statutory tribunal has been urged to be maintainable, by the Learned Advocate appearing for the writ petitioner, Mr. U. C. Jha, under Article 226 of the Constitution of India. He says so on the basis of a judgment reported in Bhowanipore Gujarati Education Society and Another--v--Kolkata Municipal Corporation and Others reported in 2008 (4) CHN 420 and for the proposition that both petitions under Article 226 and 227 are available against such orders passed by tribunals having judicial trappings are maintainable. He also relies upon the judgment in the case of Radhey Shyam--v--Chhabi Nath, reported in (2015) 5 SCC 423 to the extent it alters and overrules paragraph 25 of the judgment in Surya Dev Rai--v--Ram Chander Rai and Others reported in AIR 2003 SC 3044 to show to the extent that it has been held that only an application under Article 227 is maintainable against an order passed by a Civil court. Lastly, he relies upon paragraph 63 of the judgment in the case of Universal Consortium of Engineers (P) Ltd. and Others--v--State of West Bengal and Others reported in (2019) 1 CAL LT 580 (HC) answering the reference being W.P. No. 23027 (W) of 2017 along with F.M.A. No. 1475 of 2018 decided on February 18, 2019. Paragraph 63 of the said judgment is set out herein below for appreciation of the point that the fora created under the Consumer Protection Act, 1986 are not Courts far less than Civil Court and, therefore, a petition under Article 226 is available for judicial review of the orders passed by such Commission and Forum under the said Act of 1986:
"In view of our discussion as above as well as the authorities that we have noted, the conclusion is inescapable that the consumer fora created by the CP Act are not 'courts', far less 'civil courts', and its jurisdiction to receive a complaint from a home buyer against a promoter is not barred in view of the provisions of section 12A of the Building Act."
3. I have heard Mr. Pal for the respondent no.4 and though he has tried to submit that this is a case where judicial review has been sought of an order which would have the effect of prejudicing a party which is not "State" within the meaning of Article 12 of the Constitution of India. I am satisfied that the 3 petition is maintainable and that question raised by Mr. Pal is not germane to oust a judicial review of an order passed by a statutory tribunal particularly when the extraordinary and writ jurisdiction of this Court has been invoked for judicial review of the order of a statutory tribunal. Such tribunals, in many cases, it is trite, decide the questions raised not merely or even at all by "State" actors, but essentially private parties. If in such cases, if merely because the party which will be affected is a "non-State" actor, jurisdiction is declined, I will be carving out an exception to the jurisdiction under Article 226 of the Constitution of India not warranted by its language.
4. Without going through the facts in tedious detail, but only those necessary for the present purpose, let us look at the facts on record essential to decide this petition. The respondent no. 4 had approached the District Forum on the allegation that it had made payment of substantial sums in terms of agreement for sale made on April 23, 2003 including rupees eight lacs fifty thousand between September 6, 2001 and March 28, 2003 and though this was disputed, also further sums making up an amount of rupees fifteen lacs. However, admittedly no possession of the said flat as agreed to be conveyed by the promoter according to Schedule B of the said agreement was made over to him by the promoter nor was the amount refunded. The payment of rupees fifteen lacs has been proved in evidence is recorded by the Learned Stage Commission in appeal. It is also the case of the respondent no.4 that the amount was not refunded to the respondent no.4 whether with or without interest. It is the case of the petitioner that it only received rupees eight lacs fifty thousand which it was prepared to refund less the amount of tax paid by the petitioner on the said amount.
5. The most important point that is apparent from the face of the records is that the said agreement dated April 23, 2003 was executed on a hundred-rupee non-judicial stamp paper and was not registered. The set-out consideration is more than rupees one hundred and, therefore, for receiving the same into 4 evidence and/or for any other purpose it was required to be duly stamped as a convenience (form no. 23) of Schedule 1A of the Indian Stamp Act, 1899 as amended in West Bengal. For better appreciation of the question raised by Mr. Jha, and his client, both before me and before the learned State Commission, perhaps the provisions of Section 35 of the Indian Stamp Act, 1899 as amended in West Bengal, may be considered: -
No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped :
Provided that--
(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion ;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898;
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.
6. The original agreement was not exhibited at any stage before any of the Fora under the Consumer Protection Act. Only a copy was exhibited. Therefore, on the face of the document, the said document whose copy was exhibited and was relied upon by the respondent no.4 to prove the contract was insufficiently stamped and was not registered and no title was conveyed thereby. The District 5 Forum by the order dated November 27, 2013 was pleased to allow the prayer of the respondent no.4 ex-parte against the original land owners but on contest against the respondent no.10 promoter directing the promoter to register the flat and further pay costs on payment of rupees one lac fifty thousand by the respondent no.4 to the promoter; in default the opposite parties including the petitioner was directed refund rupees fifteen lacs inclusive of realisation and compensation of rupees twenty lacs and litigation cost rupees ten thousand within 45 days from the date of communication of the order and interest of ten per cent per annum in default. Initially by the order dated November 27, 2013 the refund was directed to be of rupees one lac fifteen thousand but it was suo moto corrected on December 12, 2013 by the Forum to fifteen lacs on a put-up petition moved by the respondent no.4 without notice to the petitioner when the Forum had become functus officio and could only interfere on the ground of a typographical mistake if due notice had been given to the petitioner of the petition to put up a matter which had been disposed of by the Forum.
7. A very interesting dimension of the order dated November 27, 2013 is that after recording the submissions made on behalf of the complainant (respondent no.4) for three pages only one paragraph was devoted to the defence of the respondent no.10 being the petitioner herein and thereto nothing was recorded about the exact nature of its objections. Without recording/assigning any reason why it was holding so the Forum was pleased to record a finding that "we have gone through the pleadings of the parties, evidence and documents in particular and we find that complaint has been able to prove his case as there is deficiency in rendering service on the part of the o.ps and complaint is entitled to relief."
This finding is completely without any reason being assigned by the Forum and was thus vulnerable in appeal as being an unreasoned order passed by a Forum whose orders are not final in themselves.
8. I would have expected that in the statutory appeal preferred by the petitioner herein carrying the order dated November 27, 2013 to the State Commission all 6 the points raised by the complainant/petitioner would have been not just recorded but findings in respect of the same also recorded with reasons. Only then could have the Commission have upheld order of the Forum in accordance with law, if necessary, by supplying the reasons which the Forum had not recorded. The Appellate Commission recorded the question of violation of Section 35 of the Indian Stamp Act, 1899 to have been raised by the appellant at the internal page 11 of the appellate order dated July 19, 2017 which is annexure P5 to the writ petition.
9. Unfortunately, though I invited Mr. Pal to go over the appellate order with a fine tooth comb no finding has been recorded on this question raised by the petitioner and in fact, in the next paragraph the Commission was pleased to record that "His above argument advanced by Ld Counsel for the appellant was counteracted by his counterpart who with all fairness admitted the proposition of law on the subject of payment of stamp duty regarding the execution of agreement for sale in between the parties but pointed out some speciality of the instant case which is being discussed herein below. Relying on a decision of the Hon'ble Supreme Court in Laxmi Engineering Works--V--PSG Industrial Institute reported in II (1995) CPJ (SC), he clarified the provisions of Section 3 of the Consumer Protection Act and pointed out that the provisions 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 with reference to the provision of Section 12A of the West Bengal Building (Regulations of Promotion of Construction and Transfer by Promoters) Act, he submitted that the Consumer Protection Act being a quasi judicial tribunal, the provisions of Section 12A of the Act would not be applicable since Section 12A of the Act provides that the dispute with regard to promotion of building etc. would be entertained by the Civil Courts only."
10. This not only does not answer the question raised by the petitioner as appellant but in fact, accepts that the question raised is valid, yet goes off on a tangent about the provisions of the 1993 Act relating inter alia to promoters would not be applicable to the case but very importantly it does not hold that the said Consumer Protection Act, 1986 overrides the Indian Stamp Act, 1899. The admission made by the respondent no.4 through his learned advocate still stands and is not dealt with or shown to be something which in law can be disregarded. It is also a matter of record that the said agreement could not have been relied upon before any Forum under statute instead of the 7 Commission went off on a tangent about the applicability of Section 12 (A) of the West Bengal Building (Regulations of Promotion of Construction and Transfer by Promoters) Act and whether the said dispute could be entertained by the Civil Courts only. The Learned Commission failed to appreciate that this was not a mere legal technicality giving effect to which would make justice a casualty; rather it was a mandatory procedure for safe-guarding revenue and preventing undervaluation of instruments and preventing the reliance upon unregistered and insufficiently stamped instruments and ignoring this would make justice a casualty.
11. Since I consider it to be a jurisdictional error going to the root of the jurisdiction in failing to determine a jurisdictional fact on which the assumption of a jurisdiction depended and also an error of fact which could be interfered by the Writ Court if it is a mistake made in respect of such a jurisdictional question I believe that the impugned orders dated July 19, 2017 as in Annexure P5 and November 27, 2013 as corrected by the order dated December 12, 2013 must be judicially reviewed. That apart, to the extent of the said point relating to the applicability of Section 35 of the Indian Stamp Act, 1899 is concerned there is no finding as to what is the decision of the Learned Commission and, therefore, to that extent it is unreasoned. Since the appeal could not have been decided nor the order of the Forum confirmed without the decision on this point, the said unreasoned order vitiates the entire proceedings and the appellate order. Therefore, in the exercise of judicial review I have no option but to quash both the order dated July 19, 2017 passed by the West Bengal Consumer Disputes Redressal Commission as also the order dated November 27, 2013 as corrected by the order dated December 12, 2013 which has merged with the appellate order and remand the matter back to the Learned State Commission for deciding it afresh on all points with special emphasis on the question of the applicability of Section 35 of the Stamp Act, 1899 and whether the agreement dated April 23, 2003 could have been relied 8 upon for any purpose by the Fora under Consumers Protection Act, 1986 including the obligations purported to have been created thereby. It is expected that the Learned Commission shall dispose of the matter in accordance with law after giving due regard to the observations made in this judgment as expeditiously as possible but no later than one year from the date of communication of this order. I record that the writ petitioner had offered to refund without prejudice to its rights and contentions the amount of rupees 8.5 lacs less the tax which has already been paid by it, but the respondent no.4 is not interested to accept the amount aforesaid unless interest is also paid therein from 2001 which is not acceptable to the petitioner. It is, however, unreasonable that the petitioner would be retaining the amount if no possession of the flat has been given to the respondent no.4 as yet. This is an aspect that the Learned State Commission as above will also consider in the event that a refund of the benefits is directed after holding that the agreement is not enforceable at law because of the aforesaid point on the basis of the Indian Stamp Act, 1899 since it is trite that if there is no agreement then both the parties ought to be placed in the position that they should have been in had there been no agreement.
12. The writ petition is allowed to the above extent. There shall be no order as to costs.
(PROTIK PRAKASH BANERJEE, J.)