Ghaziabad Development Ghaziabad Authority vs Shree Krishna Singhania

These Revision Petitions, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), are directed against the orders dated 30.9.2008, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (for short "the State Commission") in SC Case Nos. 365 and 366/A/07. While the Revision Petitions No. 4876 of 2008 and 1289 of 2009 have been filed by Ghaziabad Development Authority (for short the "GDA"), the sole Opposite Party in the Complaints under the Act, Revision Petition No. 483 of 2009 has been filed by the Complainant, Shree Krishana Singhania (since deceased). By the impugned orders, while partly allowing the Appeals, preferred by GDA, the State Commission has directed it to communicate to the Complainants the details of amounts payable by them in respect of the plots in question and deliver possession thereof within three months from the date of the said orders, on payment of the said amounts by them. However, the direction by the District Forum to GDA to pay compensation to the Complainants has been set aside. 2. The Appeals before the State Commission, had been filed by GDA against the two orders, both dated 06,09.2007, passed by the District Consumer Disputes Redressal Forum Unit-1, Kolkata (for short "the District Forum") in Complaint Case Nos. 94 of 2003 and 604 of 2002. By the said orders, the District Forum had allowed the Complaints and had directed GDA to deliver the possession of the plots in question to the Complainants, besides paying to them compensation, ranging between Rs. 5,000 to 30,000, and litigation costs, between Rs. 3,000 to Rs. 5,000, within two months from the date of the said orders, with a default stipulation of interest @ 8% p.a, on the aforesaid amounts. 3. Since the facts, the issues and the relief prayed for and granted in both the complaints are identical, these Revision Petitions are being disposed of by this common order. However, for the sake of convenience, Revision Petition No. 483 of 2009, arising out of Complaint Case No. 94 of 2003, is treated as the lead case and the facts, culled out from the said Complaint, are taken as illustrative. 4. In response to a Housing Scheme, christened as "Indirapuram Housing Scheme", launched by GDA in June/July 1989, on 31.7.1989 the Complainant applied for allotment of a plot under Self-Financing Scheme in ''Category-A. He procured application form from Oriental Bank of Commerce, Park Street Branch, Kolkata, Opposite Party No. 3 in the Complaint and deposited it in the same branch along with registration amount of Rs. 42,020. Subsequently, GDA intimated allotment of plot 122 No. "Gyan Khand Sec-1/288", admeasuring 350 Sq. Mts. to him. As demanded, the reservation amount of Rs. 63,000 was deposited by the Complainant with GDA on 16.1.1990, Thereafter, balance amount of Rs. 3,15,000, along with penal interest, amounting to Rs. 14,175, was deposited by him with GDA on 17.10.1996 and5.12.1996, respectively. On 16.7.1997, when the Complainant went to take possession of the said plot, he was informed that certain additional amounts remained to be paid on account of lease rent, sewerage charges and Chowkidar fee and that the final amount would be intimated by post. Accordingly, on payment of additional amounts, as demanded by GDA towards lease rent (Rs. 42,000), sewerage charges (Rs. 4,800) and Chowkidar fee (Rs. 3,810), the Complainant requested GDA to deliver possession of the plot in question. When the said request did not evoke any response from GDA, In order to enquire into the matter, on 9.1.2001, the Complainant sent his representative to its office, when he was told to furnish the xerox copies of the receipts of payments made, as the file maintained by GDA was not up-to-date. Vide its letter dated 13.12.2000, while confirming the receipt of payments in respect of the plot, GDA raised another demand of Rs. 95,475 on account of increase in the area of the plot from 350 Sq. Mts. to 366.12 Sq. Mts. as also towards some other charges. While remitting a total sum of Rs. 43,132 towards extra area and other charges on 5.2.2001, the Complainant protested to the levy of corner plot and park facing charges, stating that the same were not payable as per the brochure/Scheme, to which there was no response from GDA. The Complainant also requested for compensation by way of appropriate adjustment or refund of the excess amounts charged, against the provisions under the Scheme. However, GDA did not refund the said amounts, and instead, after a lapse of 20 months, on 29.7.2002 issued a notice, to the Complainant raising a demand of Rs. 10,76,901, which was received by the Complainant on 2.9.2002, On 16.9.2002, the Complainant responded to the said letter, giving details of the payments made, along with the supporting receipts. However, ignoring the stand of the Complainant, vide its notice dated 20.1.2003, GDA raised fresh demand of Rs. 11,04,117. 5. In this backdrop, alleging deficiency in service on the part of GDA for charging excess amounts and not delivering possession of the plot, the afore-noted Complaint came to be filed before the District Forum. The Complainant had prayed for a direction to GDA to recall demand notices dated 29.7.2002 and 20.1.2003 and refund the excess amounts recovered on account of sewerage and Chowkidar charges and deliver possession of plot in question. Award of compensation of Rs. 2,00,000 on account of loss and harassment for not delivering the possession of the plot, was also prayed for. At this juncture, it would be appropriate to note the distinguishing feature in the second complaint (Complaint Case No. 604 of 2002). In that case, vide letter dated 28.11.2000, GDA had informed the Complainant that due to nonpayment of the required premium, the plot allotted to him, i.e., "Plot No. Gyan Khand Sec-1/266", had been cancelled on 15.11.2000 and therefore, in that case the Complainant, had made an additional prayer for revocation of the cancellation order. 6. Upon notice, GDA contested the Complaints. Apart from defending its action, demanding additional amounts and cancellation of one of the plots, GDA raised a preliminary objection to the maintainability of the complaint on the ground that the cause of action, if any, to file, the complaints having categorically arisen only in UP, the District Forum at Kolkata did not have the territorial jurisdiction to entertain the Complaints. 7. On evaluation of the evidence adduced by the parties, the District Forum, while negating the contention of GDA that it did not possess jurisdiction to entertain the Complaints, allowed both the Complaints with the afore stated directions. 8. Aggrieved, GDA took the matter further in Appeals to the State Commission. 9. On re-appreciation of the evidence adduced by the parties, the State Commission, has partly allowed the Appeals to the extent indicated in paragraph (1) supra. On the issue of territorial jurisdiction, the State Commission has observed as follows : "The question regarding jurisdiction as decided by the Forum below by the impugned order does not require an interference as the matter has been decided already by this Commission on 4.6.08 following the law laid down by the Hon''ble National Commission in the case of Pravesh Kr. Mukherjee v. Air Transport Corporation Ltd. in Revision Petition No. 1404 of 2003 on 28.10.2003. Applying the law settled therein and considering the scheme of the Consumer Protection Act, 1986 the objection regarding jurisdiction was not found acceptable, particularly when no exclusion clause was agreed by the parties. The case of Sunita Garg (Revision Petition No. 163 of 1991) decided in 1992 by the Hon''ble National Commission where refund was asked for, does not apply as facts and relief prayed are different in this case. The cases cited by GDA being either in respect of a civil proceeding or a writ proceeding, are not applicable." 10. Being dissatisfied, both the parties are before us in these cases. As noted above, while Revision Petition Nos. 4876 of 2008 and 1289 of 2009 have been filed by GDA for setting aside of the impugned orders, mainly on the issue of territorial jurisdiction, Revision Petition No. 483 of 2009 has been filed by Complainant, Shree Krishana Singhania (since deceased), represented through his Legal Representatives, praying for restoration of the orders passed by the District Forum. 11. We had heard learned Counsel for the Parties at some length. On conclusion of the arguments, at request, they were permitted to file written submissions, which has been done. 12. The main thrust of the arguments advanced on behalf of the GDA, as also in their written submissions, is that the orders passed by the Fora below are without jurisdiction because the Forums at Kolkata lacked territorial jurisdiction to entertain the Complaints, inasmuch as neither any cause of action had arisen within the jurisdiction of the Forums at Kolkata nor GDA had any Branch office at Kolkata or in any other city; neither Oriental Bank had invited applications under the Scheme nor it had accepted any amount in connection with the implementation of the scheme, it had merely acted as a post office, for receiving the application forms, and demand drafts in favour of GDA and forwarding the same to GDA; the bank was just an intermediary,providing facility to the intending purchasers or buyers for collection of forms and supplying the same in their respective Cities or States for their convenience; the cause of action had arisen only when default notices were sent to the Complainants from Ghaziabad and the plots which were allegedly not delivered were located in Indirapuram, District Ghaziabad and not at Kolkata. In support, reliance was placed on the decisions rendered by the Hon''ble Supreme Court in ONGC v. Utpal Kumar Basil & Ors. 1994 (SLT Soft) 624=(1994) 4 SCC 711 ; Union Bank of India v. Seppo Rally OY & Anr., VII (1999) SLT 633=111 (1999 CPJ 10 (SC) 1999) 8 SCC 357 ; Union of India & Ors. v. Adani Exports Ltd. & Anr., VII (2001) SLT 612=(2002) 1 SCC 567 and Raiiv Modi v. Sanjay Jain & Ors. V (2009) SLT 725=(2009) 13 SCC 241 and a few decisions of this Commission particularly in HUDA v. Vipan Kumar Kohli, RP No. 317 of 1994, I (1995) CPJ 235 (NC)) decided on 19.1.1995 . It was asserted that defect of jurisdiction, whether pecuniary or territorial, strikes at the very authority of the Forum to pass any order and such an order is a nullity, non est and illegal. 13. Per Contra, it was asserted on behalf of the Complainants that the question of territorial jurisdiction having been decided as preliminary issue, vide order dated 4.6.2008 by the State Commission and the same having been affirmed by this Commission, no interference with the impugned order is called for. It was also pleaded that the Complainants having accepted the offer of allotment on the terms and conditions contained in the brochure by purchasing application forms along with documents by paying the registration amount to the authorised Agent, i.e. Oriental Bank at Kolkata, the contract between the parties, was concluded at Kolkata and therefore, cause of action did arise within the territorial jurisdiction of the Fora at Kolkata. In support, reliance was placed on several decisions rendered by this Commission, including in GDA v. Sunita Garg, relied upon by the State Commission in the impugned order. 14. Thus, the first and the foremost question falling for consideration is whether or not the Consumer Fora based at Kolkata had the territorial jurisdiction to entertain the Complaints? 15. Having considered the matter in the light of the provisions contained in Sub-section (2) of Section 11 of the Act and the documents on record, we are of the view that the order of the Fora below on the issue of their territorial jurisdiction, is unsustainable for the following reasons. 16. Section 11 of the Act defines the jurisdiction of a District Forum. Sub-section (2) of Section 11 of the Act, inserted by Act 50 of 1993, with effect from 18.6.1993, relevant for our purpose, reads as follows: "[(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction - (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a Branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises.]" 17. A plain reading of the afore-extracted provision makes it clear that a complaint under the Act can be instituted in a District Forum within the limits of whose jurisdiction any one of the three situations contemplated in the provision, is shown to exist. The use of the word "or" at the end of Sub-clauses (a) and (b) of the said sub-section is significant and reflects the object of the legislation, leading to the conclusion that each of the three contingencies, enumerated therein, is independent of each other and not cumulative. However, in Sonic Surgical v. National Insurance Co. Ltd., IX (2009) SLT 111=IV (2009) CPJ 40 (SC)=(2010) 1 SCC 135, explaining the scope of Section 17 (2) of the Act, which is in pari materia with Section 11.(2) of the Act, the Hon''ble Supreme Court has been pleased to observe that although the interpretation placed by them would be a departure from the plain and literal words of Section 17(2) of the Act, but in order to avoid absurd consequences, the expression "branch office", as appearing in the newly inserted provision would mean the branch where the "cause of action" has arisen. Thus, the Court opined that mere existence of a Branch office of a company would not ipso facto be determinative of the territorial jurisdiction of the District Forum. The "cause of action" must also arise at that place. Pithily stated, both the said conditions have been held to be cumulative and hot independent of each other. It bears mention at this stage itself that in the complaints it was not even averred that GDA had a branch office at Kolkata. 18. Bearing in mind the ratio of the said decisions, the question for examination is as to whether on facts at hand the "cause of action" had arisen at Kolkata, as it is not in. dispute that the Complainants had purchased and submitted the forms for allotment of plots under the Scheme and had deposited the registration and other amounts in the Oriental Bank of Commerce at Kolkata. 19. The expression "cause of action" is neither defined in the Act nor in the Code of Civil procedure, however, by virtue of a catena of decisions of the Supreme Court, wherein the meaning of the said expression in legal parlance has been explained, the expression has been held to be of wide import. Generally, the expression "cause of action" is described as bundle of facts'' which the petitioner must prove, if traversed, to entitle him to the relief prayed for. In Utpal Kumar Basu & Ors. (supra) a Bench of three learned Judges of the Supreme Court, while interpreting the expression "cause of action, wholly or in part, arises" as appearing in Article 226(2) of the Constitution of India (similar expression is used in Sections 11 (2) (c) and 17(2)(c) of the Act) observed, thus: "It is well settled that the expression ''cause of action" means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Sinah, ILR (1889) 16 Cal 98,102:15 IA 156, Lord Watson said: "...the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.'' Therefore, in determining the objection of lack of territorial jurisdiction the Court must take all the facts pleaded in support of cause of action into consideration albeit without embarking upon an inquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial, to put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition." (Emphasis supplied) 20. Again in Navinchandra N. Majithia v. State of Maharashtra & Ors., VI (2000) SLT 528=111 (2000) CCR164 (SC)=(2000) 7 SCC 640, explaining the import of the said expression, in his concurring judgment, K.T. Thomas, J. observed as under: "The collocation of the words "cause of action, wholly or in part, arises" seems to have been lifted from Section 20 of the Code of Civil Procedure, which section also deals with the jurisdictional aspects of the Courts. As per that section the suit could be instituted in a Court within the legal limits of whose jurisdiction the "cause of action wholly or in part arises". Judicial pronouncements have accorded almost a uniform interpretation to the said compendious expression even prior to Fifteenth Amendment of the Constitution as to mean ''the bundle of facts which would be necessary for the plaintiff to prove, if traversed, in order to support his right to tire judgment of the Court''. In Read v. Brown Lord Esherf M.R., (1888) 22 QBD 128:58 L3QB 120:60 LT 250 (CA), adopted the definition for the phrase ''cause of action'' that it meant: ''every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved''." 21. It is thus, well settled that the expression "cause of action" means that bundle of facts, which the Complainant must prove, if traversed, to entitle him to an order in his favour by a Consumer Fora. 22. Applying the afore-stated principles on the facts pleaded in the Complaints, in order to decide the question of territorial jurisdiction of the District Forum, based at Kolkata, we have no hesitation in holding that in the instant cases, no part of cause of action had arisen at Kolkata and therefore, both the Fourms below have committed illegality in rejecting the Preliminary objection raised by GDA and in proceeding to adjudicate upon the Complaints on merits. It is manifest from the orders of the Fora below that the considerations, which have weighed with both the Forums below are that having authorised the Bank at Kolkata to accept the application forms as well as the payments towards the cost of the plot, the Bank was acting as the Agent of GDA, and that there was no clause in the brochure, expressly restricting the territorial jurisdiction only to Courts at Ghaziabad. In our view, merely because the Banks situated in different States/Cities, had been authorised to issue and collect the registration forms and the sale consideration from the Applicants, who in turn, were required to transmit the same to GDA functioning only from Ghaziabad, it did not mean that a part of cause of action arose in every State or city - where the authorised Banks were situated and hence, the Complaints alleging any kind of deficiency on the part of GDA, relating to the Scheme in question, could be filed at all such places, throughout the length and breadth of the country. Undoubtedly, it was a facility provided to the potential applicants to submit their applications at the nearest place of their residence. We are in agreement with the stand of GDA that the authorised Banks were neither its Agents nor could these be treated as its branch offices. 23. In our opinion, therefore, the District Forum situated at Kolkata lacked territorial jurisdiction to entertain the Complaints and as already observed above, both the Fora below committed illegality in brushing aside the preliminary objection raised on behalf of GDA. Insofar as the plea raised on behalf of the Complainants that the order dated 4.6.2008 having attained finality, GDA was estopped from raising the same issue at the time of final disposal of the Complaints is concerned, it would suffice to say that a defect in jurisdiction, whether in pecuniary or territorial, strikes at the very authority of the Forum to pass any other and such an order, passed by an authority lacking either of the jurisdictions, would be a nullity and objection to its invalidity can be raised at any stage of the proceedings, preliminary or final. The objection is rejected accordingly. 24. Having arrived at the said conclusion the next question for consideration is as to what course needs to be adopted in respect of the Complaints, which were filed in the years 2002-2003. 25. The simplest course can be to dismiss these Complaints with liberty to the Complainants to institute fresh Complaints before the appropriate Forum. We feel that this course of action would be unfair and unreasonable to the Complainants, who have been waiting for justice for the last almost fifteen years and filing of fresh Complaints would cause further delay in the final decision on the Complaints. In our opinion, considering the peculiar fact situation of these cases, it would be appropriate, expedient and in the larger interest of the Complainants/Consumers to invoke the principle underlying Order 7, Rule 10 of the Code of Civil Procedure and direct the District Forum at Kolkata to return to the Complainants, the complaints along with the pleadings and the evidence led by the parties to the Complainants for being presented before the concerned District Forum for fresh adjudication on the merits of the Complaints, without reference to the period of limitation. In order to forestall any plea of prejudice being raised particularly by GDA, the Opposite Party, we permit both the parties to lead any additional evidence, if so advised, within a reasonable period as may be allowed by the concerned Forum, We feel that the course of action, adopted by us would ensure expeditious disposal of the Complaints and shall advance the very object and the spirit of the Act. All the aforesaid documents shall be returned to the Complainants forthwith for being presented before the concerned Forum within 30 days of their return. We expect and hope that bearing in mind the fact that the complaints were filed sometime in the year 2002-2003, the District Forum shall dispose of the cases, preferably within six months from the date of receipt of this order. 26. In the final result, the Revision Petitions filed by GDA are allowed and the one filed by the Complainant is dismissed, leaving the parties to bear their own costs. Ordered accordingly.