Calcutta High Court (Appellete Side)
M/S Sanu Construction & Ors vs The State Of West Bengal & Ors on 30 June, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
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30.06.2017.
rc
W.P. No.1248(W) of 2017
M/s Sanu Construction & Ors.
Versus
The State of West Bengal & Ors.
Mr. N. R. Mukherjee
Mr. S.K.Mukherjee .. For the Petitioners
Mr. Arunabha Sengupta
Mr. A. Sanyal .. For the respondents no.3&4
Mrs. Srilekha Bhattacharjee .. For the State The petitioner assails an order passed by the appellate authority under the provisions of Consumer Protection Act, 1986 (hereinafter referred to as "the said Act of 1986").
Learned advocate appearing for the petitioners submits that the subject matter of complaint before the Adjudicating Authority is barred under the provisions of section 12A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (hereinafter referred to as "the said Act of 1993"). He refers to sections 6 and 12A in support of his contentions. He refers to various decisions of this Court and submits that this Court has taken two views on the subject, one view is that sections 6 and 12A of the said Act of 1993 does not preclude the jurisdiction of the Consumer Forum under the provisions of the Act of 1986. The other view is to the contrary. He relies upon an order dated March 07, 2014 passed in C.O.NO. 2441 of 2011 (Kamala Properties Limited Vs. Miss Sanjukta Dasgupta & Ors.) and submits that, a co- ordinate Bench of this Court had referred the issue to a larger Bench for decision in view of the conflicting views.
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Learned advocate appearing for the private respondents submits that, a decision later than the Kamala Properties Limited (Supra) has considered the position in law and has held that, the proceedings under the Consumer Protection Act, 1986 is maintainable notwithstanding the provisions of section 6 and 12A of the said Act of 1993. He submits that, therefore, the Court should follow the later decision and take up for consideration the instant writ petition without referring the issues to the larger Bench.
Learned advocate for the private respondents relies upon a decision reported at AIR 2004 SC 448 (The Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through LRs & Ors.) and submits that, a special statute will override the general statute.
The Secretary, Thirumurugan Co-operative Agricultural Credit Society (Supra) is of the view that a special statute will override the general statute. The question referred to the larger Bench revolves around the issue as which statute would prevail if there is a conflict. More is reason why the issue should be referred to the larger Bench.
One of the issues raised in the writ petition is whether sections 6 and 12A of the Act of 1993 oust the jurisdiction of the adjudicating authority established under the provisions of the Act of 1986. There are decisions on both sides of the answer to such issue. Finding such position in law obtaining, Kamala Properties Limited (supra) had referred such issue to the larger Bench for consideration and adjudication. The subsequent decision rendered on the subject has taken a particular view. The issue has not been settled by the larger Bench.
In such factual matrix and the position in law, in my view, it would be appropriate to follow the Kamala Properties Limited (supra) particularly in view of the issue raised in law not being settled by the larger Bench and two views being taken by Court on such issue. The issue, therefore, as noted above is referred to the larger Bench for decision.
Parties are at liberty to mention the writ petition for disposal immediately upon a decision being rendered by the larger Bench on such issue.
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At this stage learned advocate for the petitioner submits that, the Court should be pleased to grant stay of the impugned order pending consideration of the issue by the larger Bench. This prayer is objected to by the learned advocate appearing on behalf of the private respondents.
Considering that a point of law is being referred to a larger Bench and the petitioner having made out a prima facie case, the balance of convenience and/or inconvenience would lie in favour of grant of an interim order of stay of execution of the order impugned. In the event, the order is not stayed, the petitioner will be rendered remediless.
In such circumstances, let there will be an order of stay of the impugned order until further orders.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)