Andhra HC (Pre-Telangana)
Megacity Builders vs A.P. State Consumer Dispute Redressal ... on 16 October, 2003
Equivalent citations: AIR2004AP49, 2003(6)ALD834, 2004(1)ALT345, AIR 2004 ANDHRA PRADESH 49, (2004) 14 ALLINDCAS 469 (AP), (2003) 2 ANDHWR 167, (2003) 5 ANDHLD 239, (2003) 6 ANDHLD 834, (2004) 1 ICC 742, (2004) 14 INDLD 39, (2004) 1 ANDH LT 345
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy, K.C. Bhanu
JUDGMENT B. Sudershan Reddy, J.
1. The petitioner invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India and accordingly prays for issuance of a writ of certiorari calling for the records relating to the order dated 11-12-2002 in R.P. No. 188 of 2002 on the file of the A.P. State Consumer Disputes Redressal Commission, Hyderabad and quash the same.
2. In order to consider as to whether the impugned order suffers from any error apparent on the face of the record so as to be corrected by this Court in exercise of its judicial review jurisdiction, relevant, facts may have to be noticed.
3. The 2nd respondent herein filed a complaint C.D. No. 1520 of 1998 on the file of the District Consumer Forum-II, Hyderabad alleging certain deficiencies of service by the writ petitioner.
4. The writ petitioner is a builder who undertook to develop and construct residential flats in the premises bearing Municipal Door No. 1-2-412/5, Valmeeki Nagar, Domalguda, Hyderabad. The 2nd respondent/ complainant was a tenant in the said building. That as per the agreement dated 21-8-1996 executed between the writ petitioner and the 2nd respondent, the 2nd respondent has agreed to vacate the premises and deliver possession of the building subject to the condition that the builder provides a three bed room flat on the south east corner of the 1st floor of the proposed building along with car parking facility at a concessional rate of Rs. 2 lakhs. Admittedly, the writ petitioner herein did not deliver the south east comer flat after completing the construction of the flats. It was alleged by the 2nd respondent that the writ petitioner herein was trying to negotiate with third parties to sell the said south east corner flat and in those circumstances, he filed the complaint before the District Forum as against the petitioner to complete the construction work and deliver possession of the south east corner flat to him and also for grant of injunction and compensation of Rs. 1 lakh.
5. The writ petitioner herein opposed the complaint on various grounds. The case set up by the writ petitioner was that pursuant to the Development Agreement dated 2-9-1996 between the owner of the site and the builder, certain flats including the south east comer flat went to the share of the owner and hence the agreement between the writ petitioner and the 2nd respondent became impossible of performance and hence the complaint petition should be dismissed.
6. That after due enquiry, the District Forum disposed of the complainant by order dated 17-8-2000 directing the builder to (a) execute and register conveyance deed and deliver possession of south east corner flat of the first floor of the building within three months of payment/deposit of Rs. 2,00,000/- and other expenses by the complainant; (b) to pay compensation at the rate of Rs. 5,500/- per month from 5-5-1999 towards rent till the date of delivery of the possession of the flat to the complainant; and (c) to pay costs of Rs. 1000/-. The appeal preferred by the writ petitioner before the A.P. State Consumer Redressal Commission, Hyderabad was dismissed on 21-3-2001 confirming the order of the District Forum. The revision petition was also dismissed by the National Consumer Dispute Redressal Commission, New Delhi. S.L.P preferred by the writ petitioner was also dismissed by the Hon'ble Supreme Court. In the result the order passed by the District Forum attained finality.
7. Thereafter the 2nd respondent herein filed complaint purporting it to be under Section 27 of the Consumer Protection Act, 1986 (Act 68 of 1986) (for short 'the Act') against the writ petitioner for punishing him for his failure to comply with the order passed by the District Forum and to execute and enforce the order dated 17-8-2000 passed by the District Forum. The writ petitioner opposed the said petition inter alia contending that the owner of the building filed Civil Suit O.S. No. 783 of 2001 on the file of the 1st Senior Civil Judge, City Civil Court, Hyderabad against the petitioner for perpetual injunction and in I.A. No. 532 of 2001 the Court granted temporary injunction restraining the builder from transferring or alienating flats allotted to her share and it is under those circumstances, the writ petitioner was not in a position to comply with the order passed against the builder.
8. The District Forum having taken the relevant facts into consideration passed order dated 7-12-2001 which reads as follows:
"The District Forum in an enquiry under Section 27 cannot finalise a draft of sale deed. We have to split this part which can be taken up in a Civil process under Section 25 of the C.P. Act."
9. Thereafter the said PP No. 22 of 2001 was disposed of on 22-10-2002 and the operative portion of the said order reads as follows:
"At this stage having regard to the facts and circumstances of this case, a civil suit is already filed regarding flat No. 201 which is the subject-matter of the above case and some other flats and the Hon'ble First Additional Judge, City Civil Court, has also passed interim injunction order and that order also is filed by the opposite party. Therefore, the title to the said property for flat No. 201 which is subject-matter of the above interim stay has been granted by First Additional Judge, City Civil Court, Hyderabad.
Under the above facts and circumstances discussed above the ends of justice in this case will be served by sentencing the respondent/ opposite party to pay a fine of Rs. 5,000/- (Rupees five thousand only) within one month from the date of receipt of this order. The penalty petition filed by the petitioner/complainant is accordingly disposed of. Regarding compensation and costs awarded by this Forum in the main C.D. shall also be paid within one month from the date of this order by the respondent."
10. That aggrieved by the said order passed by the District Forum, the 2nd respondent herein invoked the jurisdiction of the State Commission under Section 17(b) of the Act with a prayer to set aside the order passed by the District Forum and punish the petitioner and send the records to the civil Court directly for execution of the sale deed and delivering possession of the flat.
11. The State Commission upon hearing the parties disposed of the revision petition by an order dated 11-12-2002 and the operative portion of the order reads as follows:
"Accordingly we set aside the order of the District Forum and convict the respondent and sentence him to suffer imprisonment for a period of two years. This punishment will be imposed on Mr. Mallikarjuna Reddy, Managing Director of Megacity Builders, Gaganmahal, Hyderabad. However as a measure of indulgence we are inclined to grant him a month's time from today to comply with the order of the District Forum. In default alone this order will be given effect to and in case the order of the District Forum dated 17-8-2000 is complied in all respects within the said period the conviction and sentence imposed on the respondent shall not be given effect to."
12. This writ petition by the petitioner herein is directed against the said order. The impugned order is challenged on various grounds.
13. Sri E. Manohar, learned Senior Counsel appearing on behalf of the petitioner contended that the order passed by the District Forum imposing a fine of Rs. 5,000/-does not suffer from any jurisdictional error requiring any correction as such by the State Commission in exercise of its jurisdiction under Section 17(b) of the Act. The submission was that the State Commission could have interfered with the order passed by the District Forum only in case 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 acted in exercise of its jurisdiction illegally or with material irregularity. The learned Senior Counsel further contended that the revision petition filed by the 2nd respondent herein in the State Commission itself was not maintainable in law. The proceedings initiated by the 2nd respondent herein before the District Forum cannot be equated to that of a "Consumer Dispute" within the meaning of that expression employed under Section 17(b) of the Act
14. Ms. Pushpinder Kaur, learned Counsel appearing on behalf of the 2nd respondent raised a preliminary objection as to the maintainability of the writ petition filed by the writ petitioner under Article 226 of the Constitution of India. Learned Counsel submitted that Section 21(b) of the Act enables the aggrieved person to challenge any order passed by the State Commission in the National Commission and the petitioner instead of availing such alternative and effective remedy had chosen to file the present writ petition and no exceptional case as such is made out to by-pass the alternative and effective remedy available to the petitioner in law. Learned Counsel also submitted that it is not a fit case where this Court should exercise its equity jurisdiction under Article 226 of the Constitution of India and grant any relief to the writ petitioner. Learned Counsel submitted that the 2nd respondent herein was made to run from pillar to post by the writ petitioner herein and has been subjected to harassment by the writ petitioner resulting in grave hardship and injustice.
15. We have given our anxious consideration to the rival submissions made during the course of hearing of this writ petition. Before we proceed further to consider the point raised, we make it clear that this Court, at this stage, cannot go into the merits of the order passed by the District Forum granting certain reliefs to the 2nd respondent herein, since the same has attained finality.
Maintainability of writ petition:
We may first consider the question as to the maintainability of the writ petition filed by the petitioner under Article 226 of the Constitution of India. In order to consider the said question, it becomes just and necessary to decide whether there is any alternative remedy at all available to the petitioner to challenge the order passed by the State Commission. Section 21 of the Act deals with the jurisdiction of the National Commission. It says that the National Commission shall have jurisdiction:
(a) to entertain--(i) .......... (ii) ..........
(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 so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. The jurisdiction conferred upon the National Commission is with reference to the consumer dispute either pending before or has been decided by the State Commission. Section 2(e) of the Act defines 'consumer dispute'. It means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint. The expression complaint is defined in Section 2(1)(c) of the Act. It means any allegation in writing made by a complainant that an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider etc.
17. That a plain reading of Section 21(b) makes it abundantly clear that the National Commission is vested with the jurisdiction to call for the record and pass appropriate order against any and every order passed by the State Commission in any Consumer Dispute but its jurisdiction is limited to call for the records and pass appropriate orders only in a "consumer dispute" which may be pending before or has been decided by any State Commission.
18. By no stretch of imagination, the order passed by the State Commission disposing of the petition filed by the 2nd respondent herein can be characterized as raising any 'consumer dispute". The application itself has been filed by the 2nd respondent herein before the State Commission under Section 27 of the Act which deals with the penalties. That Section 27 of the Act deals with the situation where a trader or a person against whom a complaint is made fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees or with both. The proceedings initiated under Section 27 of the Act cannot be treated as a "complaint" under the provisions of the Act. Section 12 of the Act provides the manner in which a complaint shall be made and such complaint is in relation to any goods sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided. Such complaints are required to be filed before the District Forum by the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided, or any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not; or one or more consumers, where there are numerous consumers having the same interest. On receipt of a 'complaint' made under Sub-section (1) of Section 12 of the Act, the District Forum may, by an order, allow the complaint to be proceeded with or rejected. Where a complaint is allowed to be proceeded with under Sub-section (3), the District Forum may proceed with the complaint in the manner provided under the Act. Section 13 of the Act provides the procedure on admission of complaint to be followed by the District Forum. Section 14 deals with the jurisdiction of the District Forum to pass appropriate orders disposing of the complaint.
19. A conspectus and a conjoint reading of the provisions would in unmistakable terms reveal that the proceedings initiated under Section 27 of the Act cannot be equated to that of a "complaint" nor it is equated to that of any 'consumer dispute' within the meaning of Section 27 of the Act. Therefore, no remedy as against the order passed by the State Commission under Section 17(b) of the Act is available. The remedy under Section 21 is not available against the order passed under Section 17(b) of the Act by the State Commission.
20. Even if it is to be held that the petitioner had an alternative remedy to challenge the order passed by the State Commission, the jurisdiction under Article 226 of the Constitution of India to entertain writ petition against the order passed by the State Commission in appropriate cases is always available. It is fairly well settled and needs no re-statement in our hands that availability of an alternative remedy to an aggrieved person does not bar the jurisdiction of this Court under Article 226 of the Constitution of India. It is a different matter altogether that this Court may not exercise its discretion and issue any writ in case of availability of any alternative remedy. The availability of an alternative remedy is one of the factors that may have to be taken into consideration in the matter of granting writs. It is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law. The Court in exceptional cases can always issue a writ such as a writ of certiorari, notwithstanding the fact that the statutory remedies have not been exhausted. There are atleast two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vices, it is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice."
21. It is not possible to dismiss the petitions under Article 226 of the Constitution of India as not maintainable on the ground of there being an alternative remedy available in cases where the Court has entertained and admitted the writ petition and heard on merits. It is a different matter altogether when the Court in exercise of its discretion refuse to interfere even at the threshold on the ground of availability of an alternative and efficacious remedy. But in a case where the Court having admitted the writ petition and having put the parties to trial normally cannot refuse to exercise its jurisdiction and dismiss the writ petition on the ground of availability of an alternative remedy. It is a matter always well within the discretion of the Court and that discretion is required to be exercised in a judicial and judicious manner. It is equally a well settled proposition of law that where the order is illegal and invalid as being contrary to law, a petition at the instance of person adversely affected by it would lie to the High Court under Article 226 of the Constitution and such a petition cannot normally be rejected on the ground that an appeal lies to the authorities specified under an enactment. It needs no restatement at our hands that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 of the Constitution where the party invoking the jurisdiction has an adequate, alternative and efficacious remedy. The availability of alternative remedies does not oust the jurisdiction of this Court. (See for the proposition: Khurai Municipality v. Kamal Kumar, , Baburam v. Zilla Parishad, , Hirday Narain v. I.T. Officer, Bareilly, , Ram and Shyam Company v. State of Haryana, and Estate Officer and Manager (Recoveries) APIICL v. Recovery Officer, (DB)).
22. When an order complained of is illegal and ultra vires, this Court in appropriate cases can entertain the writ petition and adjudicate the same on merits. That on the facts and in the circumstances, we are not inclined to dismiss the writ petition on the ground of availability of alternative remedy at this stage of hearing after its admission by this Court for its consideration and disposal on merits.
23. However, learned Counsel for the 2nd respondent relied upon the decision of the Madras High Court reported in K. Pudur Primary Agriculture Co-operative Bank Ltd v. The State Consumer Disputes Redressal Commissioner, (2001) CPJ 37, in support of the submission that the writ petition against the order passed by the State Commission is not maintainable.
24. We have carefully perused the judgment, upon which reliance has been placed by the learned Counsel for the 2nd respondent. In our considered opinion, the Madras High Court did not lay down any such law holding that this Court's jurisdiction under Article 226 of the Constitution of India gets effected on account of there being availability of an alternative remedy to an aggrieved person. It is no doubt true that the Madras High Court refused to entertain the writ petition on the ground of availability of an alternative remedy.
25. The next decision, upon which reliance has been placed by the learned Counsel for the 2nd respondent reported in Smt. Saswati Mehrotra (near Mukhopadhyay) v. State of West Bengal, 1994 (1) CPR 522. The judgment not only does not render any assistance nor supports the point urged by the learned Counsel for the 2nd respondent, but on the other hand, says that the High Court cannot hold that it cannot entertain a petition under Article 226 of the Constitution of India challenging the jurisdiction of the State Commission. Having stated the principle, the Calcutta High Court observed that when the State Commission is in seisin of a matter, the tendency of the parties to rush to the High Court at every drop of a hat must be discouraged. The Court observed that even the question relating to the jurisdiction of the State Commission can be gone into by the Commission itself and in such view, the High Court should ordinarily refuse to entertain such a question by-passing that Commission.
26. Neither of the decisions hold that availability of an alternative remedy in any manner affects the jurisdiction of this Court under Article 226 of the Constitution of India. We accordingly over-rule the, preliminary objection raised by the learned Counsel for the 2nd respondent. We hold that the writ petition against an order passed by the State Commission under the provisions of the Consumer Protection Act, 1986 is maintainable. But it is always for the Court to exercise its discretion as to when and under what circumstances to entertain the writ petition. The self imposed restriction, cannot operate as an obstacle in the matter of exercise of jurisdiction by this Court in appropriate cases. We accordingly hold that the writ petition filed by the petitioner is maintainable.
Maintainability of Revision under Section 17(b) of the Act;
27. The next question that falls for consideration is as to whether the revision petition filed by the 2nd respondent herein challenging the order passed by the District Forum dated 17-8-2000 is maintainable in law. Concededly the District Forum passed the order under Section 27 of the Act against which a revision has been preferred by the 2nd respondent under Section 17(b) of the Act. Section 17(b) of the Act deals with the jurisdiction of the State Commission. It says that subject to the other provisions of the Act, the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and appeals against the order of any District Forum within the State; and 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. Even that power of the State Commission is restrictive and may be exercised only in case where the District Forum has exercised the jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or acted in exercise of its jurisdiction illegally or with material irregularity.
28. The jurisdiction of the State Commission is limited 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. As noticed supra that an order disposing of the application filed under Section 27 of the Act cannot be equated to that of a decision of a consumer dispute by the District Forum. In our considered opinion the order passed by the District Forum under Section 27 of the Act punishing a trader or a person against whom a complaint is made or the complainant as the case may be on the ground of failure to comply with any order made by the District Forum is final and no remedy under the Act is available as against the said order. Therefore, the revision filed under Section 17(b) of the Act challenging the legality and correctness of the order passed by the District Forum under Section 27 of the Act is not maintainable.
29. We are fortified in our view for the fact that the Parliament itself has intervened and accordingly inserted Section 27-A of the Act by Consumer Protection (Amendment) Act 62 of 2002 which has come into effect with effect from 17-12-2002 which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), an appeal under Section 27, both on facts and on law, shall lie from (a) the order made by the District Forum to the State Commission; (b) the order made by the State Commission to the National Commission; and (c) the order made by the National Commission to the Supreme Court. Thus for the first time, an appeal against an order passed under Section 27 of the Act imposing any penalty is made available and lies to the superior body i.e., from the order passed by the District Forum to the State Commission and to the National Commission as against the order passed by the State Commission and to the Supreme Court as against the order passed by the National Commission under Section 27 of the Act.
30. In Thiru Manickam and Company v. State of Tamil Nadu, , the Supreme Court observed that "an amendment which is by way of clarification of an earlier ambiguous provision can be useful aid in construing the earlier provision, even though such amendment is not given retrospective effect. It is fairly well settled that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous.
31. Not that in the instant case, Section 17 of the Act is ambiguous. Section 17 of the Act which confers jurisdiction of the State Commission is specific in its terms which authorizes the State Commission to exercise jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by the District Forum in the State.
32. For all the aforesaid reasons, we hold that the revision preferred by the 2nd respondent herein before the State Commissions is not maintainable in law. An order which suffers from jurisdictional error is a void order. This Court will be well within its limits to quash such void orders which suffers from an error apparent on the face of the record.
33. In the result, we find that the case on hand is eminently a fit case for issuing a writ of certiorari as prayed for.
34. Whether the order of State Commission suffers from any jurisdictional error?
35. Now we shall proceed to consider the question as to the validity of the impugned order passed by the State Commission from a different angle. We proceed on the assumption that the revision petition filed by the 2nd respondent herein was maintainable in law in order to decide the question as to whether the State Commission is justified in reversing the order passed by the District Forum.
36. That we have already noticed that the District Forum, the State Commission and the National Commission as the case may be, are conferred with the jurisdiction to punish a trader or a person against whom a complaint has been made, fails or omits to comply with any order made, with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than rupees two thousand but which may extend to rupees ten thousand or with both. A plain reading of the Section makes it abundantly clear that imprisonment is not a mandatory requirement. In case of punishment with imprisonment, such imprisonment shall not be less than one month which may extend to three years. In case of fine which shall not be less than rupees two thousand but which may extend to rupees ten thousand. The District Forum, State Commission or the National Commission as the case may be, are clothed with the jurisdiction to punish such person who failed or omitted to comply with the directions with imprisonment as well as fine. In appropriate cases, as the proviso provides that the Forum or the Commission at the State and the National level, if it is satisfied, in the circumstances of any case so required, impose a sentence of imprisonment or fine or both for a term lesser than a minimum term and impose a minimum fine amount specified in the section. Such is the discretion conferred upon the authorities.
37. A Full Bench of this Court in C.V. Ratnam v. Union of India, (FB), while considering the Constitutional validity of Section 27 of the Act observed that the said provision is akin to Order 39 Rule 2-A of CPC or the provisions of Contempt of Courts Act or Section 51 read with Order 21, Rule 37, CPC. It is observed that "Section 27 can be taken recourse to only by way of last resort. It has evidently been enacted for the purpose of dealing only with such defaulters, who, despite several opportunities, failed and/or negligent to comply with the directions." The Court, while recognizing that Section 27 of the Act empowers the authorities to impose lesser punishment, observed "it confers upon the authorities discretion even not to impose the minimum punishment provided under Section 27. We may further observe that the Court while taking recourse to Section 27 of the Act, unless the Forum or the Commission conies to the conclusion that the action on the part of the defaulter is dishonest and intentional, it may not inflict the penalty." We are bound by the decision of the Full Bench. The Full Bench in clear and categorical terms took the view that Section 27 of the Act confers power upon the authorities I and discretion even not to impose minimum punishment provided under Section 27 of the Act. One of the requirement while taking recourse to Section 27 of the Act, is the satisfaction of the Forum or the Commission, as the case may be, that non-compliance of the orders on the part of the defaulters is dishonest or intentional. It needs no restatement that the provision being penal in its nature is required to be strictly construed.
38. The State Commission ought to have adverted itself to the question as to whether the order passed by the District Forum suffers from any jurisdictional error.
39. We have already noticed the nature of revisional jurisdiction of the State commission and the limitations under which it can interfere with the order passed by the District Forum. The State Commission can interfere by calling for the records in order to pass appropriate orders only where it appears to the State Commission that the District Forum has exercised the jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity. The provision is in pan materia with Section 115 of the Code of Civil Procedure (CPC).
40. That the District Forum in the instance case having regard to the facts and circumstances did not impose the punishment of imprisonment and in its discretion thought it fit that the interest of justice would be met by imposing the fine of Rs. 5,000/- as against the petitioner. It is not in dispute that the District Forum has such jurisdiction to impose fine alone in appropriate cases. Therefore, it cannot be said that the District Forum has exercised the jurisdiction not vested in it by law.
41. The only question that falls for consideration is whether the District Forum had acted in exercise of its jurisdiction illegally or with material irregularity.
42. The Supreme Court in Pandurang Dhondi Chougule v. Maruthi Hari Jadhav, , while dealing with the nature and scope of the provisions of Section 115 CPC observed:
"The history of recent legislation in India shows that when Legislatures pass Acts dealing with socio-economic matters, or make provisions for the levy of sales-tax, it is realized that the operative provisions of such legislation present difficult problems of construction; and so, sometimes, the Act in question provides for a revisional application to the High Court in respect of such matters or authorises a reference to be made to it. In such cases, the High Court will undoubtedly deal with the problems raised by the construction of the relevant provisions in accordance with the extent of the jurisdiction conferred on it by the material provisions contained in the statute itself. Sometimes however, no such specific provision is made, and the questions raised in regard to the construction of the provisions of such a statute reach the High Court under its general revisional jurisdiction under Section 115 of the Code."
It is further observed that "the High Court must enquire whether a complaint made against the decision of the subordinate Court on the ground that it has misconstrued the relevant provisions of the Statute attracts the provisions of Section 115 CPC. Does the alleged misconstruction of the statutory provision have relation to the erroneous assumption of jurisdiction, or the erroneous failure to exercise jurisdiction, or the exercise of jurisdiction illegally or with material irregularity by the subordinate Court. These are the tests laid down by Section 115 CPC and they have to be borne in mind before the High Court decides to exercise its revisional jurisdiction under it".
43. The same principal has been reiterated by the Supreme Court in the decision reported in Ratilal Balabhai Nazar v. Ranchhodbhai Shankarbhai Patel, .
44. In DLF Housing and Construction Company (P) Limited v. Sarup Singh, AIR 1977 SC 2325, the Supreme Court once again reiterated the same principle while observing that "the position thus seems to be firmly established that while exercising the jurisdiction under Section 115 CPC, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself."
45. In Managing Director, Hindustan Aeronautics Limited, Hyderabad v. Ajit Prasad Tarway, , the Supreme Court once again reiterated the said principle and observed that the High Court in exercise of its jurisdiction under Section 115 CPC may interfere with the order passed by the subordinate Court only when the subordinate Court exercised its jurisdiction either illegally or with material irregularity. The order of the subordinate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; the High Court cannot interfere unless it comes to the conclusion that the Subordinate Court exercised its jurisdiction either illegally or with material irregularity.
46. In Manindra Land and Building Corporation Limited v. Bhutnath Banerjee, , the Supreme Court observed that it is not open to the High Court in the exercise of its revisional jurisdiction under Section 115 CPC, to question the findings of fact recorded by a subordinate Court. Section 115 applies to cases involving questions of jurisdiction, i.e., questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved. In nutshell, the Supreme Court held that the revisional jurisdiction cannot be invoked to correct an order passed by the subordinate Court exercising its discretion in a particular manner unless such exercise or non-exercise has resulted in illegal assumption of jurisdiction by the Court.
47. There is no finding as such recorded by the State Commission that the District Forum, Hyderabad committed any jurisdictional error by sentencing the writ petitioner to pay a fine of Rs. 5,000/-. The District Forum observed that having regard to the facts and circumstances of the case and particularly in view of the fact that a civil suit has already been filed regarding flat No. 201 which is the subject-matter of dispute and further in view of the fact that the City Civil Court passed interim injunction order restraining the writ petitioner from alienating the said flat in question, it had become impossible for the writ petitioner to comply with the order passed by the Forum. The State Commission did not interfere with any of the findings recorded by the District Forum. All that the State Commission observed is that having regard to all the circumstances the direction of the District Forum imposing a fine of Rs. 5,000/- is too a lenient punishment. In fact, the Commission observed that the only question is whether the punishment awarded by the District forum is appropriate or not. In our considered opinion, the State Commission has no such jurisdiction to consider the question as to whether the punishment awarded by the District Forum is appropriate or not. It would have been altogether a different matter if the District Forum committed any jurisdictional error within the meaning of Section 17(b) of the Act and only then the State Commission could have been well within its limits to revise that order. Such is not the case on hand. The State Commission interfered with the discretion exercised by the District Forum in an impermissible manner. 48. For the aforesaid reasons, we find it difficult to sustain the order passed by the State Commission. The order is accordingly set aside.
49. The next question that falls for consideration is as to whether any further relief can be granted by this Court in exercise of jurisdiction under Article 226 of the constitution of India to the 2nd respondent herein in order to suitably compensate him?
50. During the course of hearing of this writ petition there were some negotiations took place in between the writ petitioner and the 2nd respondent and both the Counsel informed this Court at various stages about the progress made in the matter in order to settle the dispute without the interference of the Court. However, the negotiations did not fructify resulting in any compromise between the parties.
51. A statement was made in the open Court by the learned Senior Counsel appearing on behalf of the writ petitioner that the writ petitioner at all points of time is ready and willing to pay an amount of Rs. 13,00,000/- apart from Rs. 2,00,000/-already deposited pursuant to the directions of the District Forum. Thus, the petitioner expressed its willingness to pay a sum of Rs. 15,00,000/- altogether as compensation to the 2nd respondent. However, the 2nd respondent refused to accept the same and settle the matter.
52. We have taken note of the fact that the petitioner voluntarily expressed its willingness to pay the said amount to the 2nd respondent herein. We consider that interests of justice would be met by directing the writ petitioner to deposit the said amount of Rs. 13,00,000/- in full and final settlement of all the claims and demands of the 2nd respondent within a period of two months from today in the District Forum which amount shall be permitted to be withdrawn by the 2nd respondent. We are conscious of the fact that strictly speaking it was not necessary for this Court to pass any such order directing the writ petitioner to deposit the amounts particularly having set aside the impugned order passed by the State commission on various grounds. But, this Court is not only a Court of law but also a Court of equity and by invoking the equitable jurisdiction under Article 226 of the Constitution of India we direct the writ petitioner to deposit the said amount of Rs. 13,00,000/- in the District Forum, which would subserve the interest of justice.
53. There shall be an order accordingly.
54. The writ petition is accordingly disposed of. No order as to costs.