State Consumer Disputes Redressal Commission
A. B. Nirvan Builders Pvt. Ltd. vs President, Clubtown Residency ... on 19 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/139/2017 (Arisen out of Order Dated 25/04/2017 in Case No. Complaint Case No. CC/219/2017 of District North 24 Parganas) 1. A. B. Nirvan Builders Pvt. Ltd. Regd. office at 5/1A, Hungerford Street, Kolkata - 700 017. ...........Appellant(s) Versus 1. President, Clubtown Residency Apartment Owners Association Office at 57/3, M.M. Feeder Road, Kolkata - 700 056. 2. Solar Paints Pvt. Ltd. Regd. office at 14, Barrackpore Trunk Road, Kolkata - 700 056. 3. Space Rice Projects Pvt. Ltd. Corporate office at 5/1A, Hungerford Street, Kolkata - 700 017. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Petitioner: Ms. Vidhi Agarwal, Advocate For the Respondent: Mrs. Rituparna Maitra, Advocate Ms. Aarti Goyal, Advocate Dated : 19 Jan 2018 Final Order / Judgement
Date of Filing - 08.06.2017 Date of Hearing - 17.01.2018 The instant Revisional Application under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of Opposite Party No.3 to impeach the Order No.03 (Later) dated 25.04.2017 made by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, Ld. District Forum) in Consumer Complaint No. 219/2017. By the impugned order, the Ld. District Forum allowed the petition filed by the Complainant/OP No.1 herein under Section 13(3B) of the Act directing the OP Nos. 1 to 3 of the complaint to restrain themselves from interfering peaceful user and enjoyment of the members of complainant association to use Gate No.1 lying at the Eastern side to get access to the B.T. Road and further restrained from closing and locking the iron gate and to construct any wall affecting pedestrians iron gate.
The Opposite Party No.1 herein being Complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum with prayer for several reliefs in a dispute of housing construction, viz. - (a) to pass an ad-interim order restraining the opposite parties, their men and/or agents and/or employees from interfering with the peaceful use and enjoy of the members of the complainant association to use the schedule-B pedestrian passage leading from BT Road and not to close and/or lock the said iron gate installed therein and/or to construct the pedestrian iron gate; (b) an order directing the officer-in-charge, Belghoria P.S. to see that the order of the Ld. District Forum be implemented in its force; (c) mandatory injunction directing the OPs, their men and agents to pull down the unauthorised wall/construction covering the schedule-B suit passage/property; (d) permanent injunction restraining the opposite parties and/or their men and agents from interfering with the peaceful use and enjoyment of the members of the complainant association to use the schedule-B at least pedestrian passage as on this date and to change the nature and character of the schedule-B suit passage by any way whatsoever permanently after trial and temporarily lis pendens with ad-interim rule on the same self grounds; (e) compensation for harassment and mental agony etc. The said complaint was admitted and registered by Order No.2 dated 25.04.2017. By Order No.3 (later) on the self same date, on the prayer of the complainant association an interim order was passed, as indicated above. To assail the said order, the OP No.3 has come up in this Commission with the instant revision petition.
Mr. Subhasish Sengupta, Ld. Advocate for the Revisionist with the recorded Advocate has submitted that the Ld. District Forum has passed the order virtually granting final relief and further denying an opportunity to contest the same and as such the impugned order suffers from material irregularity. He has further submitted that after passing of Order No.2 on 25.04.2017 when the Ld. District Forum has already fixed 22.05.2017 for S.R., the Ld. District Forum has exceeded its jurisdiction by passing Order No.3 on the self same date which has no sanction in the eye of law. The Ld. Advocate for the revisionist finally attacked the impugned order on the ground that the Ld. District Forum has passed the impugned order without assigning any reason which is contrary to the provisions of law and that too without any separate application. To fortify his submission, Ld. Advocate for the revisionist has placed reliance to two decisions of Calcutta High Court reported in (1) (2014) 2 HCC (Cal) 772 [Binod Khanna - Vs. - Sunny Sales & Ors.] and (2) 2016 (5) CHN 772 [Mallikarjuna Rao & Ors. - Vs. - The State of West Bengal].
Per contra, Mr. Srijan Nayak, Ld. Advocate for OP No.1/Complainant has contended that the revisionist had scope to ventilate the grievances before the Ld. District Forum where the matter is pending without approaching this Commission by filing a revision petition and as this Commission has already stayed the proceeding of the case of the Ld. District Forum, it requires to be adjudicated by the Ld. District Forum after affording an opportunity to the revisionist/OPs. He has further contended that under Section 13(3B) of the Act, a District Forum has the authority to pass an order as interim measure to protect the property and as such the Ld. District Forum has committed no illegality or material irregularity in passing the order impugned.
I have considered the rival contention of the parties. The revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which runs as under:-
"to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity".
The above provision makes it quite clear that the revisional jurisdiction conferred upon this Commission is limited only to the extent of jurisdictional error or material irregularity in passing the order impugned. Now, Section 13(3B) of the Act provides -
"(3B) Where during the pendency of any proceeding before the District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case".
The aforementioned provision indicates that the legislature in its wisdom has given power to a District Forum to pass an interim order if it appears to it necessary as just and proper. However, Regulation 17 of Consumer Protection Regulations, 2005 which stems from Section 30A of the Act has statutory force which provides -
"17. Ex-parte interim order- Any ex-parte interim order issued by the Consumer Forum shall stand vacated after 45 days if in the meanwhile the objections to the interim order are not heard and disposed of".
The copy of order sheets of the proceeding indicates that on 22.05.2017 the OPs did not appear before the Ld. District Forum despite service of notice and only on 20.06.2017 they appeared before the Ld. District Forum. Meanwhile, on 14.06.2017 the instant revision petition was moved before the Hon'ble First Bench of the Commission and on the prayer of revisionist/OP No.3 the further proceedings pending before the Ld. District Forum was stayed and ultimately the record was transferred to this Bench on 15.01.2018.
Considering the submission advanced by the Ld. Advocates appearing for the parties and on going through the decisions referred on behalf of the revisionist and the provision of law, it appears to me that the Ld. District Forum should not have passed the impugned order for an indefinite period in violation of Regulation 17 of C.P. Regulation, 2005 coupled with the provision of Section 13(3B) of the Act. However, I am not in agreement with the Ld. Advocate for the revisionist that by passing an order later on the self same date, the Ld. District Forum has committed an error because the context of Order No.2 and Order No.3 are distinct and separate and as such the decision in the case of Mallikarjuna Rao & Ors. (supra) has no manner of application in our case. But at the same time, I am in agreement with the view of the revisionist that in view of the decision in the case of Binod Khanna (supra) where several decisions including the decision in the case of Shiv Kumar Chadha - Vs. - MCD reported in (1993) 3 SCC 161 were relied upon, the Ld. District Forum has failed to discharge its onerous responsibility in assigning reason behind the order.
Since 45 days have already been elapsed from the date of impugned order and further the proceeding was being stayed in this Commission, I think the revisionist has opportunity to raise the point before the Ld. District Forum. In other words, the instant revision petition appears to me a premature one inasmuch as the Ld. District Forum has authority to pass such order and by any stretch of imagination it can be said that the Ld. District Forum has committed jurisdictional error or material irregularity in passing the order impugned excepting without fixing a schedule period for such interim order.
Considering all the above, the revision petition is dismissed on contest.
The parties are directed to appear before the Ld. District Forum on 30.01.2018 and on that date the revisionist/OP No.3 must file written objection against the application, if any, against the application filed by the complainant for interim relief and it is so filed, the Ld. District Forum will proceed to dispose of the same in accordance with lawpreferably within a week from that date.
Considering the special facts and circumstances, the interim order passed by the Ld. District Forum do continue till that date.
It is made clear that I have not entered into merits of the case including the application U/s 13 (3B) of the Act and as such the Ld. District Forum should not be influenced by any observation made by me in the body of the judgement/final order.
Consequently, the application filed by the O.P. No. 1 / Complainant being IA/20/2018 and IA/362/2017 are also disposed of accordingly.
The Registrar of the 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