Calcutta High Court (Appellete Side)
Pijush Sarkar & Ors vs Asesh Karmakar & Ors on 18 May, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
(Appellate Side)
PRESENT:
The Hon'ble Justice Mir Dara Sheko.
C.O. No. 2347 of 2016
Pijush Sarkar & Ors.
-Versus-
Asesh Karmakar & Ors.
For the Petitioner : Mr. Uday Chandra Jha
Ms. Tulika Banerjee.
For the Opposite Party : Mr. Partha Pratim Roy
No. 1 Mr. Dyutiman Banerjee
For the Kolkata Municipal : Mr. Barin Banerjee
Corporation Mr. Debangshu Mondal
Heard on : 26.04.2017
Judgment on : 18.05.2017
Mir Dara Sheko, J. : 1. The Supplementary affidavit
dated May 2, 2017 annexing the document submitted by
the petitioners and reply thereto annexing the document
submitted by opposite party nos. 2 to 5 in compliance to
this Court's order, kept with record.
2. The application under Article 227 of the Constitution of
India has been directed by the builders-developers-
petitioners /judgment debtors/opposite
parties/appellants, who will be called on hereafter as the
petitioners, assailing order dated April 24, 2016 of the
State Consumer Disputes Redressal Commission, West
Bengal refusing the petitioners' prayer of non-execution of
the bailable warrant of arrest directed by the District
Consumer Disputes Redressal Forum Kolkata Unit-I on
May 04, 2015.
3. Mr. Jha learned counsel for the petitioners drew
attention of this Court to the order dated May 25, 2012
passed by the National Consumer Disputes Redressal
Commission in the Revision Petition No. 3432 of 2011
which was instituted by the opposite party no.1, where
the petitioners and Kolkata Municipal Corporation were
the respondents. The relevant portion of said order of the
National Consumer Disputes Redressal Commission is set out:-
Counsel for the respondent no.1/builder states that he has recently received a notice/demand of Rs. 42,672/- as penalty for unauthorized construction which the builder will deposit/pay to the Kolkata Municipal Corporation shortly and will also complete all the formalities required for issuing the completion certificate. He also undertakes that once the completion certificate is issued there will be no impediment in the complainant obtaining water and sewage connection. Taking this as an undertaking of the builder on record, we dispose of the revision petition. Builder is directed to complete the entire exercise within three months. After completing all the formalities, Kolkata Municipal Corporation is directed to issue completion certificate expeditiously.
4. Mr. Jha expressed grievance by submitting that on completion of the purported constructions though his clients had issued notice to Kolkata Municipal Corporation to issue completion certificate, but the same having not yet been issued by the Kolkata Municipal Corporation then where was the wrong of his clients for which his clients had to suffer with the order dated May 04, 2015 of the Consumer Disputes Redressal Forum, Unit-I Kolkata by which rejecting prayer of the petitioners bailable warrant of arrest was directed. Mr. Jha argued that for no fault of his clients i.e. for not doing the work to be done by the Municipal Corporation his clients have become the worst sufferers for which Mr. Jha has sought for interference by this Court. Mr. Jha however cited following two cases in support of his contention:-
(a) L& T Finance Limited Vs. Anup Kumar Bera & Another reported in 2014 0 AIR (Cal) 78; 2014 5 CHN 233; 2014 0 Supreme (Cal) 24;
(b)Kamlesh Aggarwal Vs. Narain Singh Dabbas & Anr.
reported in (2015) 4 SCC.4
5. The relevant portion of the aforesaid order dated 4.5.2015 of the District Forum is set out:-
"It is seen from the record that on 19.12.14 jdr nos. 1 to 3 were directed to take step as per provisions laid down in rule 26 and 27 of the Kolkata Municipal Corporation Building Rules, 1990 for obtaining necessary completion certificate in respect of the suit property in question. But jdr. Nos. 1 to 3 had not complied the said order. That being the position, we are constrained to reject the petition dt. 4.5.15 filed by jdr. Nos. 1 to 3. Issue BWA of Rs. 10,000/0 each (P.R. Bond) against all the three jdrs fixing 29.5.15 E.R. of BWA.
6. Mr. Roy learned Counsel representing opposite party no.1 supporting the impugned order submitted that the instant application would not be maintainable for making interference under Article 227 of the Constitution of India.
7. Mr. Banerjee however submitted to supply information as to what steps the corporation had taken on receipt of the notice dated October 19, 2016 and according submitted reply (supra) to the affidavit of the petitioners.
8. From record it appears that execution report of aforesaid warrant having not been received, the District Forum further directed on 24.09.2015 to send copy of order to the Commissioner of Police for its execution. The petitioners thereby challenged said order dated 24.09.2015 before the State Commission by preferring First Appeal No.A/1162/2015 where it was ventilated that since the decree-holder/opposite party no.1 (who was respondent no.1 in said appeal) did not file appropriate application before the Municipal Corporation and since despite of deposit of penalty amount as imposed upon the petitioners/judgment debtors the completion certificate having not been issued by the corporation the petitioners had been suffering from harassment. The State Commission after hearing both sides dismissed the appeal of the petitioners with cost on April 20, 2016, the penultimate portion of which is set out:-
"The Respondent No.1 being purchaser had entered into an agreement with the Appellants/Builder to purchase of a flat and as such the privity of contract exists between the appellants and Respondent No. 1 and in this regard appellants cannot absolute their responsibility on any ground what so ever. The Ld. District Forum has passed the impugned order in obedience to the observation of the Hon'ble National Commission and as such we do not find any shortcoming in passing the order impugned because an executing Court cannot go behind the decree/order.
For the reasons aforesaid, appeal being devoid of merit should be dismissed. Moreover, the appeal being harassing one, the appellants must be saddled with costs which we quantify at Rs. 10,000/-.
Consequently, appeal is dismissed on contest with costs of Rs. 10,000/- to be paid by the Appellants in favour of Respondent No.1 i.e. Decree Holder of the case.
The order no.37 dated 24.09.2015 passed by the Ld District Forum is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld District Forum for information."
9. In view of the materials so far noted above, it reveals that upto the forum of National Commission, the petitioners failed to achieve any of his purported reliefs due to not fulfilling the privity of contract held between them and opposite party no.1 and therefore there would be no embargo to proceed with the execution proceeding, being EA/12/107 under Section 25 read with Section 27 of the Consumer Protection Act, as has been initiated against the petitioners for execution of the decree passed by the District Forum which was modified a bit by the State Commission. This Court therefore observes that Execution case shall proceed till satisfaction of said decree obtained by the opposite party no.1, which would be, of course, maintainable remaining confined with the terms of such modified decree, and, not beyond that. Because the execution court cannot go to stretch any relief beyond the decree which achieved finality.
10. Now from the document namely "NOTICE OF COMPLETION" submitted by the petitioner before this Court pursuant to the order dated April 26, 2017 by way of supplementary affidavit shows that said notice was issued under signature of petitioner no.1,which was received by Kolkata Municipal Corporation on October, 2016, the relevant text of said notice is set out:-
"I/ We, hereby give notice that the erection, re-erection of/addition to/alteration to the building on the recently constructed Residential Building which is mentioned above, has been completed according to the plan sanctioned which is mentioned above.
I/We, request you to arrange for the inspection and for the issue of a full occupancy certificate."
11. It has already been noted above that the National Commission had directed on May 25, 2012 to complete the entire exercise within three months, while in turn the corporation would expedite the formalities for issuance of completion certificate of the building in favour of the petitioners. It is redundant to mention that the opposite party no.1 is only entitled to get his clear cut residential accommodation in terms of the contract agreed upon by the petitioners, and for which there shall not be any sufferance of the opposite party no.1 due to untimely action or inaction of the petitioners.
12. Therefore the question arose as to whether there is any scope of interference with the impugned order within the scope of Article 227 of the Constitution of India?
13. For proper appreciation of the matter the operative part of the order dated 22.07.2010 of the District Forum, which has attained finality with some modifications held by the State Commission in allowing the appeal of the petitioners in part by order dated 29.07.2011 are liable to be executed for alleged non-compliance by the petitioners- judgment debtors.
14. The petitioners, however did not attach copy of the order of the State Commission modifying the order of the District Commission. Of course, the fact remains that though the said order of the State Commission modifying the decree was tested before the National Commission at the instance of the petitioners by preferring Revision Petition no.3432 of 2011 it was dismissed on May 25, 2012 with the directions as already quoted above.
15. Accepting contention of Mr. Jha, who relied upon the above cases this Court in exercising jurisdiction under Article 227 of the Constitution of India cannot be restrained from overseeing or superintending if the forum is found to have not been discharged its statutory functions in accordance with the statute, or is found to have discharged dehors the statute, or, in other way, the forum absolved itself from providing the reasons leaving chance of arbitrariness, or, preventing higher forum from testing correctness of it's decision. The Act is brought into existence from protecting the common man purchasing their essential commodities for cognizable wrongs committed by the power business house where the remedy under the common law is illusory. Therefore, on the point of maintainability this Court inclines to answer keeping parity with all previous judicial pronouncements that despite having efficacious remedy elsewhere the exercise of supervisory jurisdiction or judicial review, which are basic structure of the constitutional Court, can be acted upon in any appropriate situation, or, exceptional case(s) where there is manifest injustice in the impugned order, either in law, or, in fact in dereliction of discharging the duties or in violation of principle of natural justice.
16. Now taking this limited role of this Court under Article 227 of the Constitution of India and also stretching the same to the optimum let me examine whether there is any scope of interference.
17. The fact on record shows that while the interim order dated September 29, 2016 staying operation of warrant or arrest against the petitioners issued under order of the District Consumer Forum was extended by this Court on October 05, 2016 till that stage the petitioners did not submit application before Kolkata Municipal Corporation for issuance of completion certificate of the subject building. It is redundant to state that issuance of completion certificate would be dependant subject to completion of all other formalities to be done by the builder of the building. Order of this Court dated October 05, 2016 in extending the interim stay order was accordingly very much indicative.
18. The document appended with the supplementary affidavit dated May 02, 2017 shows, that the application for obtaining completion certificate was never ever submitted by the petitioners before October 19, 2016 i.e. it was presented only after 14 days of extension of stay order (supra). Most curious element is noticed that despite already sending of reply dated November 03, 2016 by the Kolkata Municipal Corporation under speed post to the aforesaid notice asking the petitioners to produce certain documents under item nos. 1 to 6 (viz)
(a) Three Copies of Completion plan duly signed by LBS/ESE as well as by the owners.
(b)Xerox copy of B.S. plan.
(c ) Xerox copy of internal Drainage sanctioned plan.
(d) Xerox copy of commencement letter.
(e) Structural Stability certificate. Form ESE.
(f) Current Paid up tax receipt with NOC from Assessment department.
the petitioners did not disclose about the same in their supplementary affidavit (supra) as to whether they had complied with those requirements even by this time.
19. This is the settled maxim that he who seeks equity must come with clean hands. This Court observes that this Court inclined to interfere with the matter if there was really manifest of injustice. But the petitioners themselves are found at fault for suppression of material fact and to become vocal to seek equity alleging their clean hands and shifting burden upon the corporation by keeping their doings undone. On the letter of corporation as was sent within reasonably proximate period in response to the petitioners' demand of completion certificate, the petitioners did not spend a single word in their supplementary affidavit, which could have been settled well within this time to avoid the process of warrant. Rather the petitioners having come with uncleaned hands, and, uptill now the petitioners having not submitted those documents as referred to in the letter dated November 3, 2017, posted on November 2017 (supra), the petitioners cannot expect any purported relief from the court of equity, that too by wrongly shifting their undoings to the shoulder of the opposite parties by captioning as inaction of the opposite parties. Rather the sufferings of the petitioners are noticed to be the outcome of their own palpable missing links, which will not be no less than if it is captioned as misdeed.
20. In other way, this Court observed that though the revisional application was filed assailing the impugned order of the State Commission, but after exercising the liberty of supplementary affidavit (supra) the petitioners now restricted their grievance alleging the inaction of the opposite party nos. 2 to 4, which holds no water for non- submission of any record by the petitioners in compliance to the letter dated November 03, 2016 (supra) of the corporation. Had the petitioners been law abiding citizen, then they would to abide by the same in true letter and spirit before raising finger towards the others, failing which law shall take its own course, and, the petitioners cannot think even of any kind of institutional interference to get protection against their own wrong or the role undone.
21. It appears that on May 04, 2015 the District Forum observed that though the petitioners submitted one petition but its text had no bearing i.e. were not in consonance of terms of order of the National Commission, and therefore taking note of non-compliance the forum rejected the petition and directed warrant.
22. This Court of course took note that at that stage the order of warrant was not of non-bailable nature, and even not with any surety. Rather, only with a view to bring the petitioners to the main stream of compliance, which after attainment of finality is pending for execution at the instance of opposite party no.1, bailable warrant was directed, that too with personal bond, which was followed up giving directing to the police commissioner Kolkata.
23. In the case of Kamlesh Aggarwal Vs Narain Singh Debbas & Another the Supreme Court in exercise of power under Article 142 modified the order of the State Commission, since the State Commission what ought to have done had not been done, and since the appellant had become remediless for executing the decree passed against his opponents. Therefore, to weigh the point of maintainability of the instant application under Article 227 of the Constitution of India said case of Kamlesh Aggarwal (supra) is not applicable since without complying the terms of decree the petitioners in the case still have been attempting to frustrate it. Interference is available only when the parameters as discussed above, as also held in the case of L & T Finance Limited Vs. Anup Kr. Bera & Another (supra) are available before this Court.
24. The penultimate part of the order under challenge of the State Commission, as quoted above is full of sound reasonings accepting and rejecting respectively the submissions of both sides with acceptable logic. The State Commission rightly appreciated that issuance of completion certificate is not a routine matter. Rather to obtain the same the builder is to submit necessary documents to the satisfaction of the corporation. During forgoing discussions it has been observed that the grant of completion certificate in question is still lying at the stage of correspondence and till the requirements under reference are not satisfied by the petitioners any complain ventilating the grievance like the present one is not maintainable to make interference at any level since it is premature as well. So long the petitioners would not be able to obtain the completion certificate liability for satisfaction of the modified decree shall be remaining with him for which there may be several appropriate order(s) from harsh to the harshest in the process of execution of the decree, which may remain valid and the opposite party no.1 would be at liberty to take appropriate steps within the ambit of Order XXI of the Code of Civil Procedure for execution of said modified decree.
25. In view of above, the order under challenge having been kept uninterfered since there is no sufferance from rendering injustice or causing violation of natural justice the order under challenge is dismissed. Accordingly the revisional application is dismissed.
26. Interim stay order accordingly stands vacated.
27. No order as to costs.
28. Parties may be supplied with urgent Photostat certified copy if so applied.
(MIR DARA SHEKO, J.)