Calcutta High Court (Appellete Side)
Sri Samir Dutta vs Smt. Mamata Das & Anr on 16 November, 2017
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No. 2602 of 2017
Sri Samir Dutta
vs.
Smt. Mamata Das & Anr.
For the petitioner : Mr. Mukul Laheri,
Mr. P. Burman,
Mr. Sovan Bera,
Ms. Puja Beriwal,
Mr. S. Dey
For the opposite parties : Mr. Avijit Bhunia,
Ms. Maheswari Sharma
Hearing concluded on : 13.11.2017
Judgment on : 16.11.2017
Sabyasachi Bhattacharyya, J.:-
The present application under Article 227 of the Constitution of India is moved against an
order of the State Consumer Disputes Redressal Commission, West Bengal, partially affirming an
order of the District Consumer Disputes Redressal Forum whereby the District forum granted
specific performance of a development agreement.
The present opposite parties and their brother Ratneshwar, being the owners of a piece of
land along with single-storied asbestos shed building pertaining to Municipal premises no.
16/1/H/48/8, Biplabi Barin Ghosh Sarani, Police Station - Manicktala, Kolkata - 700 067, entered
into a development agreement on August 14, 2009 with the present petitioner, who is a developer.
Subsequently the present opposite parties lodged a complaint with the Calcutta District Consumer
Disputes Redressal Forum, Unit - II, claiming a direction on the present petitioner to hand over the
room in question and pay the balance amount of Rs. 1 lakh in terms of the agreement, along with
Rs. 10,000/- as compensation for harassment, etc.
The present petitioner filed a written objection, thereby inter alia alleging that subsequent to
the development agreement, he learnt that the property was a thika tenancy and hence could not be
transferred due to the bar under Section 5 (4) of the West Bengal Thika Tenancy (Acquisition and
Regulation) Act, 2001. As such, the consumer forum proceeding was not maintainable. This apart,
the present petitioner also took the defence of limitation and that the complainants were not
consumers under the Consumer Protection Act, 1986.
The District Forum, inter alia, held:
"... Lastly after proper appreciation of the legal position, we find that this present holding situated
at 16/1/H/48/8, Biplabi Barin Ghosh Sarani, P.S.- Maniktala, Kolkata - 700067 is nothing but a
tikha tenanted land. No doubt complainants and their brother Ratneswar Das are tikha tenants
directly under State and the construction already made by the complainants on the basis of the
development agreement dated 14.08.2009 after taking KMC sanctioned plan is still tikha tenanted
land and complainants are residing there, op shall be treated as bharatia under the complainants and
his brother in respect of his allocations; If op places any other person in the other portion of the flat,
they shall be treated as bharatia under the complainants and for which complainants shall have to
fix rent and that rent shall be paid by the bharatias to the tikha tenants (Complainants).
But complainants and ops have their no legal right to transfer any portion of the structure or
and to anyone and no doubt complainants have not transferred any portion of the land or structure
by agreement to sale or by any registered deed of sale. So, no illegal act has been done by the
complainants violating the provision of WBTT (Acquisition & Regulation) Act, 2001. So, in the
light of the above observation the complaint succeeds. ... " .
Ultimately the District Forum allowed the complaint "on admission of the op and also on
contest against the op" with cost of Rs. 10,000/-. The developer, who was the opposite party before
the District Forum, was directed to hand over the case room measuring 63 sq. ft. on the ground
floor of the premises to the complainants and to pay the amount of Rs. 1 lakh to the complainants
within one month from the date of its order, failing which the developer was to pay penal damages
of Rs. 10,000/- each month till delivery of possession of the said ground floor room to the
complainants and also to pay penal interest at the rate of Rs. 800/- per month from the date of the
order till full satisfaction of the amount of Rs. 1 lakh.
An appeal was carried against the aforesaid order of the District Forum by the
developer/present petitioner before the State Consumer Disputes Redressal Commission, West
Bengal which, by its judgment and order dated April 11, 2017, affirmed the District Forum's
decision, except for reducing the penal interest to 8 % per annum instead of Rs. 800/- per month.
Being thus aggrieved, the developer has moved this Court with the present revision.
Counsel for the petitioner argues that the awards of both the fora below are without
jurisdiction on the sole point that the property has been held to be a thika tenancy, which on the
face of it debars transfer and denudes the consumer forum of power to decide the lis. He cites a
judgment, Whirlpool Corporation -v- Regisrar of Trade Marks, Mumbai & Ors. reported at
(1998) 8 SCC 1, in paragraph 15 of which it was held that the High Court, under Article 226 of the
Constitution of India, having regard to the facts of the case, has a discretion to entertain or not to
entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of
which is that if an effective and efficacious remedy is available, the High Court would not normally
exercise its jurisdiction. But the alternative remedy has been consistently held by the Supreme
Court not to operate as a bar in at least three contingencies, namely, where the writ petition has
been filed for the enforcement of any of the Fundamental Rights or where there has been a
violation of the principle of natural justice or where the order or proceedings are wholly without
jurisdiction or the vires of an Act is challenged.
Counsel for the petitioner then relies on a Single Judge decision of this Court in Auro
Developers -v- Mala Mukherjee reported at 2012(1) CHN 543, where it was held that a remedy by
way of revision or appeal does not create an embargo upon the Court to exercise its jurisdiction
under Article 227 of the Constitution of India. It was held that under certain circumstances the
availability of an alternative remedy may not be a ground for this Court to refuse to exercise its
jurisdiction :
1. In a case where such alternative remedy would not be an efficacious one;
2. When an order has been passed by an authority without jurisdiction;
3. When an order has been passed by an authority in violation of the principles of natural
justice.
Ultimately the Single Judge interfered with an order of the State Consumer Disputes Redressal
Commission under Article 227 of the Constitution.
The petitioner next relies on Rozan Mian -v- Tahera Begum & Ors. reported at AIR 2007
SC 2883, also at (2007) 12 SCC 175, for the proposition that in view of land under a thika tenancy
having vested in the State and a thika tenant coming to hold the thika tenancy directly under the
State, an agreement for sale became impossible of performance. Although rendered on the Calcutta
Thika Tenancy Act, 1949, as amended by the Calcutta Thika Tenancy (Acquisition and Regulation)
Act, 1981 and not the present West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001,
Section 6 of the 1981 Act had a provision similar to Section 5 of the 2001 Act prohibiting transfer
of thika tenancy interests. As such, the aforesaid judgment, rendered on the 1981 Act, is in pari
materia with the 2001 Act insofar as the said prohibition is concerned and the ratio thereof applies
to a 2001 Act scenario to that extent.
On the other hand, Counsel for the opposite parties, while in principal not disputing that the
property in dispute is a thika property, argues that the fora below were justified in passing the
impugned judgments since the development agreement does not contain any transfer clause and as
such is not hit by the bar contemplated in Section 5 of the 2001 Act.
It is apt to quote the said section in this context:
5. Incidents of tenancies in respect of lands vested in the State.--(1) Subject to the
provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), and the
provisions of this Act, every thika tenant, occupying any land under a landlord on the date
of commencement of this Act, shall occupy such land, on such terms and conditions as
may be prescribed, directly under the State as if the State had been the landlord in
respect of that land.
(2) Every thika tenant holding directly under the State under sub-section (1) shall be liable
to pay to the State Government in the prescribed manner such revenue as may be
determined.
[(3) If any question arises as to whether a person is a thika tenant or not or whether the
land in question is thika land or not, the Controller, either on his own motion or upon
receiving any information, may, after giving the persons interested an opportunity of being
heard and after examining all such documents and particulars as may be considered
necessary, enquire upon and decide such question.]
(4) The interests of the thika tenants holding directly under the State under sub-section (1)
shall be heritable and shall not be transferable except inter se amongst the heirs and
existing co-shares-interest and spouses or to the prospective heirs, with a prior permission
of the Controller, subject to the provisions of sub-section (1) of section 6.
(5) The thika tenants holding directly under the State under sub-section (1) shall be
entitled [to construct pucca structures or to change the nature, character and dimension of
an existing structure on the land] in accordance with the building plans sanctioned under
the Kolkata Municipal Corporation Act, 1980 (West Bengal Act LIX of 1980), and the rules
made thereunder, or the Howrah Municipal Corporation Act, 1980 (West Bengal Act LVIII
of 1980), and the rules made thereunder, according as the land may be situated within
Kolkata as defined in clause (9) of section 2 of the Kolkata Municipal Corporation Act,
1980 (West Bengal Act LIX of 1980), or Howrah as defined in clause (15) of section 2 of
the Howrah Municipal Corporation Act, 1980 (West Bengal Act LVIII of 1980), for--
(a) residential and business purposes for themselves and the Bharatias under them; and
(b) essential common facilities like common pathway, common bath, toilet, water supply,
drainage, sewerage, lighting and similar other purposes :
Provided that the thika tenants holding directly under the State under sub-section (1), shall
obtain a no objection certificate from the Controller before making any pucca construction
or changing the nature, character and dimension of an existing structure on the land,
irrespective of the area of the land.
(6) The thika tenant holding directly under the State under sub-section (1), shall be liable
to pay rent to the State Government at such rate and in such manner as may be
prescribed.
Counsel for the opposite parties cites several judgments in support of his contention that this
Court ought not to interfere under Article 227 of the Constitution of India when a specific remedy
akin to revision is available under Section 21 (b) of the Consumer Protection Act, 1986. The said
Section is as follows:
21. Jurisdiction of the National Commission .Subject to the other provisions of this Act,
the National Commission shall have jurisdiction
(a) to entertain
(i) complaints where the value of the goods or services and compensation, if any, claimed
exceeds [rupees one crore]; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is
pending before or has been decided by any State Commission where it appears to the
National Commission that such State Commission has exercised a jurisdiction not vested
in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise
of its jurisdiction illegally or with material irregularity.
The first judgment cited by the opposite parties is Cicily Kallarackal -v- Vehicle Factory,
reported at IV (2012) CPJ 1 (SC) . It was held therein that when there is a specific provision of
appeal under Section 23 of the Consumer Protection Act, 1986 before the Supreme Court, the High
Court acted without jurisdiction in interfering under Article 226 of the Constitution, thereby
usurping the appellate power of a higher court.
Counsel for the opposite parties next cites Phalguni Das -v- Tapas Dutta, being Civil
Appeal No. 2123 of 2012, wherein the Supreme Court held that the remedy available to an
aggrieved person under Section 21 (b) is an effective alternative remedy and the High Court cannot
exercise power under Article 227 of the Constitution ignoring the availability of such remedy.
However, the exceptions to this rule were not considered in detail in this judgment.
Phalguni Das took into account two other cases: Om Prakash Saini -v- DCM Ltd.
reported at (2010) 6 SCALE 294 and also at (2010) 11 SCC 622 , and Nivedita Sharma -v-
Cellular Operators Assn. of India & Ors. reported at (2011) 13 SCALE 584 and also at (2011) 14
SCC 337.
In Om Prakash Saini, the respondent no. 1 therein had availed the remedy of appeal as
provided under Section 21 of the Consumer Protection Act, 1986, but during pendency of the same had also taken out an application under Article 227 of the Constitution of India against the same order of the State Commission. The High Court had not made clear in its order why it was proper to make a departure from the general rule that no interference would be made if an equally efficacious remedy was available. This was deprecated by the Supreme Court.
In Nivedita Sharma, the Supreme Court took exception to the High Court not having even referred to Sections 17 and 19 of the Consumer Protection Act and the body of case law on the propositions that the High Court generally will not interfere when an equally efficacious remedy is available and also certain judgments which lay down the exceptions to this rule.
Counsel for the opposite parties lastly cites an unreported judgment in Nurul Huda Layek - v- Tapan Kumar Sen & Anr., being C.O. No. 745 of 2014, wherein a Single Judge of this Court held that since it is clear that against any order passed by the State Redressal Commission, an appeal lies in view of the clear language of Section 19 of the Consumer Protection Act, 1986, the said Bench would not exercise its jurisdiction under Article 227 of the Constitution of India. However, no independent ratio was laid down or the exceptions considered.
Upon hearing both sides and going through the materials on record, it would be appropriate to discuss certain portions of the Development Agreement dated August 14, 2009. Clause 4) of the agreement inter alia says : "... The Developer shall be entitled to receive earnest money from such purchasers on such terms and conditions as he may deem fit and proper." Under the heading " BUILDING ALLOCATION", Clause 1. says " On construction and completion of the proposed building all flats together with covered spaces shall belong to the Developer save and except the Owners' allocation. The Owners shall not have any right, title, interest, claim and demand whatsoever in respect of the Developer's allocation." Again the second clause under the same heading says, "On completion of building and delivery of possession of the Owners' allocation the Owners shall transfer and convey at the request of the Developer and at the cost of the purchasers the flats and car parking space with proportionate share in land underneath those flats by executing the relevant deed of conveyance. The next heading, "CONSIDERATION", gives the developer absolute discretion to sell the flats and car parking space of the said building in its allocation on its terms and conditions except the owners' allocation.
Under the heading, " DEVELOPER'S ALLOCATION", all the remaining portion of the said building other than the owners' allocation has been specified. Sale proceeds of all flats and car parking spaces in the developer's allocation, it has been stipulated, shall belong to the developer. Thereafter, under Clause 4 of a subsequent heading, "DEVELOPER'S OBLIGATIONS", the developer has been obliged to pay monthly rent of Rs. 3,000/- each for two families for the alternative accommodation/rented flat to be availed by the owners during construction of the building till handing over possession of the Owners' allocation.
Clause 8 under another heading, "TITLE INDEMNITIES", cast the obligation upon the owners to execute, at the request of the developer, appropriate sale deed/conveyance of the flat together with proportionate share in land in favour of the developer or its nominated transferee/s. The owners are also to execute a general power of attorney authorizing the developer to execute and sign deed of conveyance.
The aforementioned provisions culled out from the relevant development agreement makes it clear that the same contemplates transfer in favour of the developer for all practical purposes. Title/ownership of immovable property has various incidents. If a substantial majority of such incidents and the effective control, possession and power to transfer, alienate and encumber is alienated in favour of a third party, such alienation has all the components of transfer of title/ownership. In the present case, the owners relinquish all their right, title, interest, claim and demand whatsoever in respect of the developer's allocation. The owners also divest themselves from the choice of transferees in respect of the suit property and agree to transfer to the developer's nominees.
As such, the bar of transfer envisaged in Section 5 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 is attracted in its full rigour to the aforesaid development agreement. Hence, the District as well as State Consumer Disputes Redressal fora had no jurisdiction to direct performance of such development agreement, which is patently contrary to law.
The District Forum, despite being fully apprised of the bar, sought to bypass the issue by holding that the developer was a bharatia of the owners. The term bharatia has been thus defined in Section 2 (1) of the 2001 Act:
(1) "Bharatia" means any person by whom or on whose account, rent is payable to [for any structure including pucca structure, if any, or part thereof,] owned by a Thika tenant, but excludes any person paying rent to a Bharatia and any [resident of any structure including pucca structure, if any,] forfeited by the State Government under sub-section (2) of section 6, irrespective of the status, the said person may have enjoyed earlier;
It is palpably clear that the developer is, under no circumstance, a bharatia under the owners; rather it is the developer who undertakes as per the development agreement to pay rent on behalf of the owners in the temporary alternative accommodation of the owners during the proposed development work.
The State forum went one step further in not considering the said issue of legal bar in enforcing the agreement contrary to law, which is the cardinal issue for invoking jurisdiction, at all.
As such, the judgments and orders impugned herein are undoubtedly without jurisdiction, having been passed on the teeth of the legal bar contemplated in Section 5 of the 2001. Even the question as to whether the property is a thika tenancy, if contentious, would have to be decided by the thika controller.
Since other questions, such as the issue of limitation (which, in any event, would be a mixed question of fact and law and not a pure jurisdictional issue, discernible on the face of records, in the present case) and as to whether the contract, being a commercial one on its face, confers jurisdiction on the hierarchy of Consumer Disputes Redressal mechanism to adjudicate the same, being not raised by the petitioner, are not gone into.
The next question which arises is whether this Court has jurisdiction under Article 227 of the Constitution of India to interfere with the orders impugned herein, in view of the availability of a forum of challenge in the National Consumer Disputes Redressal Commission under Section 21
(b) of the Consumer Protection Act, 1986.
It is settled law that availability of alternative remedy is not an absolute bar, nor does it take away the jurisdiction of judicial review under Articles 226 and 227 of the Constitution of India; however, High Courts generally exercise self-imposed restriction in exercising such power when an equally efficacious alternative remedy is available. It has been held conclusively in the landmark judgment of Whirlpool (supra) that the alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. Again, in Auro Developers (supra), this Court has held that inter alia when an order has been passed by an authority without jurisdiction, the power of judicial review under Article 227 of the Constitution can be exercised to correct such wrong.
In Cicily Kallarackal -v- Vehicle Factory (supra), the High Court had usurped a remedy available to the Supreme Court, which was deprecated, which does not have relevance in the present context. Phalguni Das had not laid down any ratio as such on the said proposition. Both Om Prakash Saini (supra) and Nivedita Sharma (supra) laid down non-interference by the High Courts as a general rule, but recognised that there may be exceptions and departures to the said rule. As such, the exceptions to the said non-interference rule, as laid down in Whirlpool (supra) and followed in the detailed judgment of this Court in Auro Developers (supra), stands unshaken till date.
In the instant lis, even if development simpliciter of a thika tenancy property can be permitted, an agreement of the present nature, which not only concerns development of such a property but transfers right, title and interest of the thika tenants in such property in favour of a complete stranger, is patently unlawful and cannot be enforced. Thus both the fora below committed a gross jurisdictional error in entertaining a prayer for and directing the performance of such an unlawful agreement on the teeth of the legal bar contemplated in Section 5 of the 2001 Act. The common argument, that a floodgate will be opened if this Court starts entertaining grievances in spite of availability of alternative fora, cannot render toothless the power of judicial review inherent in a High Court and conferred by nothing less than the grundnorm of the country, that is, its Constitution. This Court cannot shut its eyes and relegate a litigant knocking its door for justice merely by shirking its duty under the flimsy pretext of an "equally efficacious remedy" being available a thousand and a half miles away in the National capital.
In the circumstances, in view of the judgments and orders of the fora below being wholly without jurisdiction and opposed to national policy insofar as by virtue of the same an agreement contrary to the law of the country was directed to be specifically performed, the said judgments and orders cannot but be set aside.
Accordingly, the present application, bearing Civil Order No. 2602 of 2017, is allowed, thereby setting aside the Order dated April 11, 2017 passed by the State Consumer Disputes Redressal Commission, West Bengal in First Appeal No. A/2/2016, by which Order dated December 3, 2015 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit - II in Complaint Case No. 127 of 2015 was affirmed.
However, it is made clear that this order will not prevent either of the parties to claim damages, compensation, or any other ancillary relief/reliefs against each other, if otherwise available to them under law, before any appropriate forum, including the consumer fora.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, will be granted on usual undertaking being furnished.
( Sabyasachi Bhattacharyya, J. )