Khurshid Ahmed Ansari vs Afzal

Subrata Talukdar, J.—In this review application this Court has been called upon to review its judgment and order dated 27th November, 2014 in CO 2939 of 2013. The opposite party (for short OP) in the CO is the review applicant. The petitioner in the CO is the review respondent.

By judgment and order dated 27th November, 2014 this Court set aside the order impugned dated 1st November, 2013 passed by the ld. State Consumer Disputes Redressal Commission (for short the Commission) affirming the order dated 28th March, 2012 passed by the Ld. Consumer District Forum (for short CDF) by which both the fora allowed the complaint of the review applicant connected to the purported sale of a residential flat. While allowing CO 3929 of 2013 this Court took notice of the fact that under Section 12A of the West Bengal Building (Regulation of Permission of Construction and Transfer by Promoters) Act, 1993 (for short the 1993 Act) there is a clear bar on Civil Courts to exercise jurisdiction in matters pertaining to sale of flats inter se promoters and purchasers, which are the subject matter of the special law, viz. the 1993 Act.

To arrive at its above noted conclusion while dismissing CO 3929 of 2013 this Court relied upon the judgment of a Hon''ble Division Bench of this Court reported in Narayan Chandra Ghosh and Another Vs. Biswajit Lahiri, as well as a Hon''ble Single Bench of this Court in Smt. Bithi Das and Others Vs. Sri Debabrata Majumdar and Others, .

This Court noticed that under Section 12A of the 1993 Act the bar to any Civil Court which, includes a consumer forum such as the CDF and Commission set up under the Consumer Protection Act (for short CP Act), 1986, is not merely an implied bar but an explicit one.

Sri Joyak Kumar Gupta, Ld. Counsel appearing for the review applicant by relying upon Lucknow Development Authority Vs. M.K. Gupta, submits that housing activity is a service within the meaning of Section 2(o) of the CP Act. Therefore, the purchase of a flat is a dispute which will attract the provisions of the CP Act irrespective of the fact whether such purchase is from a private individual/organization or a statutory body.

Sri Gupta also relies upon the decision reported in Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. and Another, to make the point that a development agreement for construction of a flat is within the jurisdiction of the CDF for the purpose of entertaining any complaint which may arise therefrom.

Next, relying upon the decision reported in , 2015 (1) WBLR (SC) 385 in the matter of Rosedale Developers Pvt. Ltd. v. Aghore Bhattacharya & Ors. , Sri Gupta argues that it is the discretion of either the CDF or the Ld. Commission to entertain a complaint irrespective of the fact that there is an arbitration clause between the parties for resolution of their disputes. Sri Gupta points out that the remedies under the CP Act are in addition to any other available remedy including the remedy of arbitration.

Also relying upon the decision reported in Mandira Mookerjee Vs. District Consumer Disputes Redressal Forum and Others, , Sri Gupta argues that even the CDF and the Ld. Commission are entitled to adjudicate matters connected to enforcement of rights under the Specific Relief Act. Sri Gupta submits that there is no conflict to exercise of such jurisdiction by Civil Courts. Ld. Counsel for the review applicant also relies upon the decision reported in 2013 (11) SCC 472 in the matter of Dhanbir Singh v. Haryana Urban Development Authority to make the point that there is no conflict between filing a departmental appeal and a complaint under the CP Act.

Further relying upon The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, . Sri Gupta argues that continued participation by a party in a proceeding without raising any objection may, in an appropriate case, amount to waiver. Therefore, Sri Gupta argues that it is for the first time that the review respondent had argued before this Court in the CO that the provisions of the 1993 Act are a bar to proceedings before the Ld. CDF and the Ld. Commission. In view of the ratio of AIR 1996 SC 634 (supra), the review respondent is estopped from raising such point before this Court for the first time not having raised it earlier either before the Ld. CDF or before the Ld. Commission.

Per contra, Sri Nilanjan Bhattacharya, Ld. Counsel appearing for the review respondent relies upon the judgment of the Hon''ble Apex Court reported in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, . to make the point that in order to oust the jurisdiction of a Civil Court, including the Ld. CDF and the Ld. Commission it would be necessary to examine the following points.

First, relying on Paragraph 23 of The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, Sri Bhattacharyya argues that it is clear in the facts of the present case that the jurisdiction of the Civil Court, including the Ld. CDF and the Ld. Commission is not alternative, thereby leaving it to the election of the suitor to choose his particular remedy. Second, Sri Bhattacharyya points out that under the provisions of the 1993 Act there is a complete bar on any Civil Court, which includes the Ld. CDF and the Ld. Commission, to exercise jurisdiction in respect of a subject matter squarely falling within the purview of the 1993 Act.

Sri Bhattacharyya also relies upon the judgment of the Hon''ble Rajasthan High Court reported in Manish Newton Vs. Lachoo College of Science and Technology, Jodhpur and Another, to make the point that a review action cannot be allowed to create room for the review applicant to pray that his points be considered in a particular manner. In the event the points raised by the review applicant were already considered earlier by the Court in its judgment and order which embodied a possible view, it cannot be said that there is error apparent on the records warranting review.

Having heard the parties and considering the materials on record this Court finds that each of the judgments relied upon by Sri Gupta (supra) do not answer the fundamental point of the bar to exercise of jurisdiction by a Civil Court, including the CDF and the Commission, once such bar has been codified in a special statute, viz. the 1993 Act. This Court is further required to notice that in its judgment and order dated 27th November, 2014 under review in the present review application, this Court found that the bar under the 1993 Act was held to explicit and not merely implied by the Hon''ble Division Bench in Narayan Chandra Ghosh and Another Vs. Biswajit Lahiri, and noticed by the Hon''ble Single Bench in 2014 (1) CHN (Cal) 50 (supra).

This Court further notices the decision relied upon by Sri Bhattacharyya in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, points to the fact that the remedy of the review applicant under the CP Act in the face of the explicit bar under the 1993 Act is not an elective remedy when the issue in the lis turns on the contents of an agreement relating to the sale and purchase of a flat.

This Court also notices that it was open to any of the parties to the lis to raise a point of law touching the root of the exercise of jurisdiction by the Ld. CDF and the Ld. Commission at any stage, including the stage of moving the CO under Article 227 of the Constitution of India.

For the above reasons the review application fails.

RVW 20 of 2015 along with CAN 4139 of 2015 stand accordingly dismissed.

There will be, however, no order as to costs.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of all requisite formalities.