State Consumer Disputes Redressal Commission
Ms. Nivedita Bose vs Mrs. Shikha Chakraborty on 26 April, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/99/2017 ( Date of Filing : 02 May 2017 ) (Arisen out of Order Dated 05/04/2016 in Case No. Complaint Case No. CC/466/2016 of District Kolkata-III(South)) 1. Ms. Nivedita Bose 5, Dr. K.D. Mukherjee Road, P.S. - Parnasree, Kolkata - 700 060. ...........Appellant(s) Versus 1. Mrs. Shikha Chakraborty Proprietress, M/s. Meghalok Construction, 10/3, Parnasree Pally, Behala, P.S. Parnasree, Kolkata - 700 060. 2. Pushpa Rani Basak 12/4, Parnasree Pally, P.S. Parnasree, Behala, Kolkata - 700 060.(Stands deleted as per order No.-4 Dt. 09/01/2018) 3. Bandana Basak 12/4, Parnasree Pally, P.S. Parnasree, Behala, Kolkata - 700 060.(Stands deleted as per order No.-4 Dt. 09/01/2018) 4. Chitra Basak 12/4, Parnasree Pally, P.S. Parnasree, Behala, Kolkata - 700 060.(Stands deleted as per order No.-4 Dt. 09/01/2018) ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Petitioner: Mr. Saptarshi Guha, Advocate For the Respondent: Mrs. Jayoti Podder, Advocate Dated : 26 Apr 2018 Final Order / Judgement
Date of Filing : 02.05.2017 Date of Hearing : 29.03.2018 The instant Revision Petition is at the instance of complainant to assail the Order No. 12 dated 05.04.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit - III (in short, 'Ld. District Forum') in Consumer Complaint No. 466 of 2016.
Seen the materials on record and considered the submission advanced by the Ld. Advocates appearing for the revisionist/petitioner and Opposite Party No. 1.
The revisionist herein being complainant lodged the complaint before the Ld. District Forum under Section 12 of the Consumer Protection Act, 1986 (for brevity, 'the Act') on the allegation of deficiency in services on the part of the Opposite Parties in a dispute of housing construction. The revisionist/complainant in the petition of complaint has averred that she purchased a flat measuring about 750 sq. ft. on the ground floor at Premises No. 237, Parnashree Pally, P.S.- Pranashree, Kolkata - 700060, Distrtict- South 24 Parganas within the local limits of Kolkata Municipal Corporation by way of registered Deed of Conveyance on 08.12.2010. Since her purchase, the complainant found that there is an obstruction by an asbestos shed against the top of window of her flat which leaned to the boundary wall of the building creating obstruction to the passage and air light on North side. Hence, the revisionist approached the Ld. District Forum with prayer for a direction upon the Opposite Parties to remove the window shed and also compensation of Rs. 5,00,000/-. The OP No. 1 after entered appearance by filing written version is contesting the case.
The impugned order is reproduces below -
"Today is fixed for filing questionnaire by OP as a last chance. Hazira is filed on behalf of the complainant. No step has been taken by OPs. To 19.04.2017 for filing questionnaire by OP as last chance in default OPs' evidence.
Later:- questionnaire is filed by OP No. 1 with copy. To date for filing affidavit-in-reply by the complainant."
Challenging the propriety and legality of the said order, the complainant has come up in this Commission with the instant Revisional Application.
The revisional jurisdiction of the State Commission flows from the provisions of Section 17(1)(b) of the Act which refers as follows - "(b) to call for the records and pass appropriate orders in 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 abundantly clear that the revisional jurisdiction of this Commission is limited only to the extent of jurisdictional error or material irregularity.
Mr. Saptarshi Guha, Ld. Advocate for the revisionist has submitted that when the matter was fixed for filing questionnaire as a last chance, the Ld. District Forum has committed a material irregularity by fixing another date for filing questionnaire by OP as last chance and as such the order should be set aside and OP No. 1 shall be prevented from filing questionnaire.
Per contra, Ms. Jayoti Poddar, Ld. Advocate for OP No. 1 has contended that apart from last chance it was made clear that in default OP's evidence will be taken up for consideration. She has further submitted that if OP No. 1 is debarred from filing questionnaire, then natural justice will be violated.
Having heard the Ld. Advocates appearing for respective parties it appears to me that fair procedure is the hallmark of natural justice and when questionnaire has already been filed and Ld. District Forum has accepted the same and an opportunity was given to the complainant to file reply against such questionnaire set forth by OP No. 1, either of the parties will not be prejudiced in any way. In other words, the impugned order does not suffer from any infirmity or material irregularity for which the revisional jurisdiction is required to be invoked.
Accordingly, the Revision Petition fails.
Parting with the case, it has come to my notice that the complainant has purchased the flat on 08.12.2010 and the complaint was lodged in the year 2016 i.e., after six years from the date of such purchase. Evidently, the complaint has not been filed within the period of two years as embodied in Section 24A of the Act. It is not clear whether any application for condonation of delay has been filed to condone such delay. The cause of action has shown by the complainant in Para 10 of the petition of complaint regarding correspondences, but it is now well settled that mere correspondences or exchange of letters cannot extend the period of limitation. Moreover, the prayer for a direction upon the Opposite Parties to remove the window appears to be mandatory in nature and as such I have much doubt whether a Fora constituted under the Act has jurisdiction to entertain the complaint.
Considering the entire facts and circumstances, the Revision Petition is dismissed on contest. However, there will be no order as to costs.
Parties are directed to appear before the Ld. District Forum on 16.05.2018 positively and the Ld. District Forum is directed to proceed with the case in accordance with law and to enter into the merit of the case after ascertaining - (i) whether a Fora constituted under the Act has authority to pass an order in the nature like mandatory injunction as prayed for and (ii) whether or not the complaint is barred by limitation.
The Ld. District Forum is requested to decide the case on merit without being influenced by any of the comments/observations made hereinabove.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit - III for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER