State Consumer Disputes Redressal Commission
Sri Bhuban Mohon Guin vs M/S. Sun Shine Construction & Ors. on 24 October, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/207/2019 ( Date of Filing : 05 Mar 2019 ) (Arisen out of Order Dated 15/02/2019 in Case No. Complaint Case No. CC/136/2016 of District North 24 Parganas) 1. Sri Bhuban Mohon Guin S/o Lt. Lalit Mohan Guin, 91, Gopal Lal Tagore Road, P.O. & P.S. - Baranagar, Kolkata - 700 036, Dist. North 24 Pgs. ...........Appellant(s) Versus 1. M/s. Sun Shine Construction & Ors. 311/13, Maharaja Nanda Kumar Road(S), P.O. & P.S. - Baranagar, Kolkata - 700 036, Dist. North 24 Pgs. 2. Samarjit Chowdhury, partner, M/s. Sun Shine Construction S/o Sri Bimal Kr. Chawdhury, 311/13, Maharaja Nanda Kumar Road(S), P.O. & P.S. - Baranagar, Kolkata - 700 036, Dist. North 24 Pgs. 3. Partha Sarathi Maitra, partner, M/s. Sun Shine Construction S/o Lt. Netai Chandra Maitra, 311/13, Maharaja Nanda Kumar Road(S), P.O. & P.S. - Baranagar, Kolkata - 700 036, Dist. North 24 Pgs. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Avijit Gope, Ms. Paramita Adhikary, Advocate For the Respondent: Mr. Amitava das,Ms. Dola Majumder, Advocate Dated : 24 Oct 2019 Final Order / Judgement
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of complaint to assail the order dated 15.02.2019 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, 'Ld. District Forum') in consumer complaint No. 136/2016 whereby the complaint lodged by the appellant under Section 12 of the Act was dismissed due to non-compliance of the order passed by this Commission in RP/149/2018.
Heard Mr. Avhijit Gope and Mr. Amitabha Das, Ld. Advocate for the appellant and respondents respectively and seen the materials on record.
Having heard the Ld. Advocates for the respective parties and on having a look to the materials on record it would reveal that the appellant herein being landowner lodged the complaint before the Ld. District Forum against a construction firm and its partners on the allegation of deficiency of services in a dispute of housing construction with prayer for several reliefs, viz.- (a) an order directing the Opposite Parties to complete the incomplete construction of the flat as well as in respect of the property mentioned in the 'B' schedule as per agreement dated 05.07.2009 and declaration dated 27.02.2015; (b) a direction upon the Opposite Parties to hand over the Completion Certificate of the building; (c) a direction upon the Opposite Parties to pay amount of Rs. 1,76,649/-; (d) compensation of Rs. 1,00,000/-; (e) litigation costs of Rs. 20,00,000/- etc. After entered appearance the respondents by filing a written version contesting case and during pendency of the same they have filed an application being MA/111/2018 challenging the maintainability of the complaint on the ground of lack of pecuniary jurisdiction of the Ld. District Forum. By order No. 12 dated 31.07.2018, the Ld. District Forum rejected the said application. Being aggrieved, the respondents preferred a revision petition in this commission under Section 17(1)(b) of the Act being RP/149/2018. By a final order/judgment dated 26.02.2018 the said revision petition was allowed on contest and the order No. 12 dated 31.07.2018 passed by the Ld. District Forum was set aside.
By the final order/judgment, this commission directed the parties to appear before the Ld. District Forum on 17.01.2019 and on that date the OP/complainant was under obligation to file one MA/IA for amendment of petition of complaint for incorporation of statements regarding valuation of the property and valuation report and if it is so submitted, the Ld. District Forum will proceed to decide the same on merit. It was made clear that the Ld. District Forum will not proceed to decide the complaint on merit before a conclusion that it has pecuniary jurisdiction to entertain the same. The OP/complainant was also directed to obtain the valuation report of entire covered area on ground floor and 1st floor except 50 sq. ft. commercial area in respect of Premises No. 91, Gopal Lal Thakur Road, P.S.- Baranagar, Dist- North 24 Parganas within the local limits of Baranagar Municipality from the Registering Authority and to place the same before the Ld. District Forum on the date fixed.
Despite such opportunity, the appellant/complainant could not avail the same and as such by the impugned order the Ld. District Forum dismissed the complaint due to non-compliance of the order passed by this commission.
Apparently, there is no irregularity or impropriety in passing the order impugned but when on technical ground the complaint has been rejected for want of pecuniary jurisdiction as per provisions of Section 11 (1) of the Act, the Ld. District Forum should not have dismissed the complaint rather should have rejected the complaint in order to enable the complainant to lodge the complaint afresh in the appropriate forum having jurisdiction to entertain the same.
Needless to say, in view of the decision of the Hon'ble Supreme Court reported in (2008) 10 SCC 345 (Faqir Chand Gultati -vs- Uppal Agencies Pvt. Ltd.) a landowner may lodge a complaint before a Forum constituted under the Act claiming himself a 'consumer' within the meaning of Section 2(1) (d) of the Act. Since the complaint has not been dismissed on merit, it should have been rejected.
In view of the above, the impugned order is modified only to the extent that in place of the word 'dismissed' mentioned in the operative part of the order, it should be treated as 'rejected'.
The appellant/complainant is given liberty to file the complaint before the appropriate Forum having jurisdiction to entertain the same, unless it is otherwise barred.
With the above observations, the instant complaint stands disposed of.
The Registrar of this Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER