State Consumer Disputes Redressal Commission
M/S. Sun Shine Construction & Ors. vs Sri Bhuban Mohan Guin on 26 December, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/149/2018 ( Date of Filing : 26 Oct 2018 ) (Arisen out of Order Dated 31/07/2018 in Case No. Complaint Case No. CC/136/2016 of District North 24 Parganas) 1. M/s. Sun Shine Construction & Ors. 311/13, Maharaja Nanda Kumar Road (South), P.O. & P.S. Baranagar, Dist. 24 Parganas North, Kolkata - 700 036. 2. Samarjit Chowdhury S/O - Sri Bimal Kr. Chowdhury, 311/13, Maharaja Nanda Kumar Road (South), P.O. & P.S. Baranagar, Dist. 24 Parganas North, Kolkata - 700 036. 3. Partha Sarathi Maitra S/O - Late Nitai Chandra Maitra, 324, Maharaja Nanda Kumar Road (South), P.O. & P.S. Baranagar, Dist. 24 Parganas North, Kolkata - 700 036. ...........Appellant(s) Versus 1. Sri Bhuban Mohan Guin S/O - Late Lalit Mohan Guin, Flat No. 01, 1st Floor, 91, Gopal Lal Tagore Road, P.S. - Baranagar, Kolkata - 700 036, Dist. 24 Parganas North. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Petitioner: Mr. Amitava Das, Advocate For the Respondent: Mr. Avijit Gope, A. Das, Advocate Dated : 26 Dec 2018 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant revision petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the behest of Opposite Parties to impeach the Order No.12 dated 31.07.2018 made by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, 'Ld. District Forum') in MA/111/2018 arising out of Consumer Complaint No. 136 of 2016. By the impugned order, the Ld. District Forum rejected the application filed by the Opposite Parties being MA/111/2018 whereby they have challenged the maintainability of the proceeding on the ground that the Ld. District Forum lacks pecuniary jurisdiction to entertain the complaint.
The Opposite Party herein being landowner lodged the complaint under Section 12 of the Act before the Ld. District Forum against the Revisionist/Opposite Parties/Developer Construction Firm and its Partners in a dispute of housing construction with prayer for several reliefs, viz. - (a) an order directing the OPs 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 OPs to handover the Completion Certificate of the building; (c) a direction upon the OPs to pay the amount of Rs.1,76,649/-; (d) compensation of Rs.1,00,000/-; (e) litigation cost of Rs.20,000/- etc. We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and seen the materials on record.
Having heard the Ld. Advocates appearing for the parties and on scrutiny of the record, it would reveal that the complainant was the landowner of a piece of land measuring about 2 cottahs 6 chittaks as per record lying and situated at Premises No.91, Gopal Lal Thakur Road, P.S.- Baranagar, Dist- North 24 Parganas within the local limits of Baranagar Municipality. On 05.07.2009 the complainant being landowner had entered into a Development Agreement with the revisionists/OPs for raising a multi-storied building over the same. As per terms of the Agreement, the complainant being landowner is entitled to entire covered area of ground floor and 1st floor as per sanctioned plan from Baranagar Municipality except 5x10=50 sq. ft. commercial area in the ground floor together with proportionate share of the land underneath the building and all common facilities and easement rights.
After entered appearance, the Opposite Parties by filing written version contesting the case and during pendency of the same, the OPs have filed the application being MA/111/2018 challenging the maintainability of the complaint on the ground of pecuniary jurisdiction. By the impugned order, the Ld. District Forum rejected the said application which prompted the OPs to prefer this revision petition.
For proper understanding of the situation, it would be worthwhile to have a look to the provision of Section 17(1)(b) of the Act which provides -
"to call for the records and pass appropriate orders in any 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 quite clear that the revisional jurisdiction conferred on the State Commission is limited to the extent of jurisdictional illegality or material irregularity. Admittedly, there is no jurisdictional error in the order of Ld. District Forum.
Now, we shall proceed to consider whether there was any material irregularity in passing the order impugned. Evidently, the complainant filed one valuation report in respect of market value of 3.31 decimal of land of the complainant issued by Directorate of Registration and Stamp Revenue, West Bengal showing the valuation of the land at Rs.6,02,499/-. The Ld. District Forum has given much emphasis to the same. In the decision making process, the Ld. District Forum has observed -
"In the instant complaint, the landowners' allocation is mentioned in the 'B' Schedule of the property (as per the Development Agreement) as entire covered area of ground floor and 1st floor as per the sanctioned plan from Baranagar Muncipality except 5x10=50 sq. ft. commercial area in the ground floor together with proportionate share of the land underneath the building and all common facilities and easement rights. We have noticed that OPs did not mention the valuation of the suit property for the period/time when development agreement was executed i.e. in 2009 but the complainant has mentioned the valuation for Rs.6,02,499/- ".
The above observation of the Ld. District Forum is contrary to the materials on record. Nowhere in the petition of complaint, the complainant has mentioned about the valuation of the property in order to attract the jurisdiction of the Ld. District Forum. In Paragraph-29 of petition of complaint, the complainant/landowner has mentioned the business place of OPs in order to attract the territorial jurisdiction of the Ld. District Forum but did not take any pain to mention the valuation of the property in anywhere in the petition of complaint. It indicates that complainant has tried to suppress something. According to the provisions of Section 11(1) of the Act, a District Forum enjoys a pecuniary jurisdiction of Rs.20 lakhs.
It is well settled that if any Court /Forum entertains any complaint without having any competence, the said order is a nullity in the eye of law.
In the case of Ambrish Kumar Shukla -Vs. - Ferrous Infrastructure Pvt. Ltd. reported in I (2017) CPJ 1, the Larger Bench of Hon'ble National Commission has held that it is the value of goods or services, as the case may be and compensation should be the determining factor in assessing the pecuniary jurisdiction of a Forum constituted under the Act. In the case beforehand, the landowner/complainant hired the services of developer/OPs for construction and in the process the landowner is entitled the entire covered area of ground floor and 1st floor as per sanctioned plan except 50 sq. ft. of the commercial area in the ground floor and therefore, the valuation of that property should be the determining factor in assessing the pecuniary jurisdiction of the Forum. So, when the petition of complaint is conspicuously silent relating to valuation of the property, it would be quite difficult for the Ld. District Forum to decide the dispute at the time of final hearing of the case.
Considering all the above, we find that when there is material irregularity in the impugned order, the said order should not be allowed to stand and as such we are constrained to interfere with the order impugned.
In view of the above, the instant revision petition is allowed on contest.
The impugned order is hereby set aside.
The parties are directed to appear before the Ld. District Forum on 17.01.2019 and on that date the OP/complainant must 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 is 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 is 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.
The Registrar of the 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 [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER