State Consumer Disputes Redressal Commission
M/S. Keshav Developer vs Amiya Kumar Das on 10 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/118/2016 (Arisen out of Order Dated 06/06/2016 in Case No. Complaint Case No. CC/108/2012 of District Hooghly) 1. M/s. Keshav Developer Rep. by prop., Sandeep Bubna, S/o Lt. Govind Prosad Bubna, A/F-6/2, Jyangra, Raghunathpur, Kolkata - 700 059. ...........Appellant(s) Versus 1. Amiya Kumar Das S/o Lt. Anadi Prasad Das, Flat no. 304, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 2. Gopendra Nath Nandy S/o Lt. Rashbihari Nandy, Flat no. 205, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 3. Sekhar Mitra S/o Lt. Sisir Mitra, Flat no. 305, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 4. Sujit Ghosh S/o Lt. Kalikrishna Ghosh, Flat no. 106, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 5. Ratna Bagchi W/o Sri Bimplab Bagchi, Flat no. 103, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 6. Kamal Singh S/o Sri Indradeb Singh, Flat no. 303, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 7. Senjuti Chakraborty D/o Amar Chakraborty, Flat no. 201, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 8. Sudip De S/o Lt. Biswanath De, Flat no. 105, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 9. Madhusudan Roy S/o Lt. Surath Behari Roy, Flat no. 203, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 10. Amar Nath Chakraborty S/o Lt. Manindra Lal Chakraborty, Flat no. 202, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 11. Tapati Mallick W/o Nemai Ch. Mallick, Flat no. 302, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 12. Rupali Nath W/o Sri Subir Kr. Nath, Flat no. 206, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 13. Sharmila Mukherjee D/o Lt. Somnath Mukherjee, Flat no. 301, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 14. Puspasri Adak W/o Rajib Adak, Flat no. 204, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 15. Partha Ghosh S/o Sri Subal Chandra Ghosh, Flat no. 104, Keshav Residency, 303, Mankundu Station Road(N), P.O. & P.S. Chandannagore, Dist. Hooghly. 16. Smt. Gita Nandy W/o Lt. Samir Nandy, Mankundu Station Road(Station Bazar), P.O. & P.S. Chandannagore, Dist. Hooghly. 17. Mou Das W/o Raju Das, Mankundu Station Road(Station Bazar), P.O. & P.S. Chandannagore, Dist. Hooghly. 18. Arup Nandy S/o Lt. Debendra Nath Nandy, Mankundu Station Road(Station Bazar), P.O. & P.S. Chandannagore, Dist. Hooghly. 19. Ashim Nandy S/o Lt. Debendra Nath Nandy, Mankundu Station Road(Station Bazar), P.O. & P.S. Chandannagore, Dist. Hooghly. 20. Smt. Shamali Samanta W/o Prafulla Samanta, Vill. & P.O. - Baidyapur, Dist. Burdwan. 21. Namita Samanta W/o Arup Samanta, Vill. & P.O. - Baidyapur, Dist. Burdwan. 22. Kalpana Dey W/o Biswanath Dey, Thomas Duff Road, P.O. Bhadreshwar, Dist. Hooghly. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Petitioner: Mr. Akash Shaw, Advocate For the Respondent: Senjuti Chakraborty (Authorised Person)/, Advocate Inperson/, Advocate Dated : 10 Jan 2017 Final Order / Judgement Date of Filing - 30.06.2016 Date of Hearing - 04.01.2017 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Revisional Application u/s 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of Opposite Party no.8/developer to impeach the Order no.38 dated 06.06.2016 made by the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah (for short, Ld. District Forum) in Consumer Complaint no. 108/2012 whereby the application filed on behalf of the OP no.8 challenging the maintainability of the proceeding under Section 12(1)(c) of the Act was rejected.
We have perused the materials on record and considered the submission advanced by the Ld. Advocate appearing for the Revisionist, Opposite Party no.7 Mrs. Senjuti Chakraborty for herself and for OP nos. 2, 3, 5, 6, 8 to 11, 13 & 14.
Having heard the Ld. Advocates for the parties and on going through the materials on record, it would reveal that the OP no.1herein Sri Amiya Kumar Das along with 14 other purchasers have lodged the complaint under Section 12 of the Act before the Ld. District Forum with prayer for certain reliefs on the allegation of deficiency in services on the part of landowners (OP nos. 1 to 7) and the developer (OP no.8). During pendency of the said proceeding, the OP no.8 has filed the application under Section 12(1)(c) of the Act on the assertion that the complaint is not maintainable on the sole ground that the Complainants have not pleaded in the four corners of the petition of complaint that all the Complainants are joining in the instant complaint having the same and common interest in the subject matter of the complaint. A written objection against the said application has been filed stating that the provision is not applicable in this case and the same would be applicable where there are numerous consumers. After hearing the parties, the Ld. District Forum by the impugned order rejected the application which prompted the OP no.8/developer to prefer this appeal.
Section 12(1)(c) of the Act provides - "One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested".
A Three-Member Bench of the Hon'ble National Consumer Commission in a decision reported in 2016 (4) CPR 83 (Ambrish Kumar Shukla & Ors. -vs.- Ferrous Infrustructure Pvt. Ltd.) while discussing over this issue has observed thus-
"As noted earlier, what is required for the applicability of Section 12(1)(c) of the Consumer Protection Act read with Order 1 Rule 8 of the Code of Civil Procedure is the sameness in the interest i.e. common grievance of numerous person which is sought to get redressed through a representative action. Therefore, so long as the grievance of the consumers is common and identical relief is claimed for all of them, the cost, size, area of the flat/plot and the date of booking/allotment/purchase, wood be wholly immaterial .......".
Therefore, when all the 15 Complainants have filed the complaint in respect of the same allegation and the relief claimed in the complaint is identical, the provisions of Section 12(1)(c) of the Act would not be a bar for a Consumer Forum to decide the dispute. Accordingly, the Ld. District Forum did not commit any jurisdictional error or material irregularity by passing the order impugned which requires interference of this Commission in revision.
Accordingly, the revisional application being merit less one liable to be dismissed.
Parting with the merits of the revisional application, what we find from the record is that about 15 flat owners being complainants lodged the complaint before the Ld. District Forum. In the petition of complaint, the Complainants did not spell out anything as to valuation of the property to ascertain the pecuniary jurisdiction of the Ld. District Forum. Though no copy of Sale Deed is available with the record but OP no.7 has candidly admitted that she has purchased the flat at a total consideration of Rs.7,00,000/-. Therefore, if the value of all the 15 flats is added together, certainly the value of the flats and compensation would exceed the pecuniary limit of the Ld. District Forum. For appreciation of the matter in question, it would be worthwhile to reproduce the provisions of the Section 11(1) of the Act which runs as follows -
" (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 'does not exceed rupees twenty lakhs".
In the case of Ambrish Kumar Shukla & Ors. (supra) the Hon'ble National Commission while discussing on the point has observed thus-
" It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased or the servicers to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint ....".
Therefore, there cannot be any dispute that it is the value of goods or services and compensation claimed which determines pecuniary jurisdiction of the Consumer Forum. A District Forum enjoys a pecuniary jurisdiction not exceeding Rs.20 lakhs. In the instant case, altogether 15 flat buyers jointly lodged the complaint and as such the value of the all 15 flats should have been calculated together along with the compensation claimed should be the determining factor for assessing the pecuniary jurisdiction.
The jurisdiction means the authority of a Court/Forum to administer justice subject to the limitations imposed by law, which are three-fold, viz - (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence, the said order would be a nullity. It is well settled that the question of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 (Harshad Chiman Lal Modi - vs. - D.L.F. Universal Ltd. & Anr.) the Hon'ble Apex Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage.
The Complainants were under obligation to state the valuation of the property in the petition of complaint for appreciation of the Ld. Forum whether it has got jurisdiction to entertain the same in view of the provisions of Section 11(1) of the Act and the decision of the Hon'ble National Consumer Commission in the case of Ambrish Kumar Shukla & Ors. (Supra).
For the reasons aforesaid, the instant revision petition is dismissed on contest. However, there will be no order as to costs.
The impugned order is hereby affirmed.
Considering the peculiar facts and circumstances, the parties are directed to appear before the Ld. District Forum on 28.01.2017. On that date, the Complainants must file an application for amendment of petition of complaint making statement as to valuation of the property and if it is filed, the Ld. District Forum will consider whether it has got pecuniary jurisdiction to entertain the same and thereafter the Ld. District Forum will proceed to dispose of the complaint in accordance with law.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah for information and guidance.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER