Suranjan Biswas @ Bhajan Biswas vs Sri Ashoke Kumar Nath and another

The present application under Article 227 of the Constitution of India is preferred against an order dated July 5, 2017, whereby the State Consumer Disputes Redressal Commission, West Bengal, while taking up Miscellaneous Application No. MA/379/2017 filed by the petitioner in connection with EA/40/2016, has rejected such miscellaneous application on the ground that the points canvassed therein were previously decided.

One Bakul Rani Biswas apparently entered into an agreement for sale with the predecessor-in-interest of the opposite parties. The opposite parties, complaining of non performance of such agreement by the said Bakul Rani Biswas, took out a proceeding before the District Consumer Disputes Redressal Forum, the decision whereof was challenged in appeal before the State Forum, where it was ultimately affirmed that such complaint was without pecuniary jurisdiction. Subsequently, a proper application was taken out by the opposite parties before the State Consumer Disputes Redressal Commission. In the meantime, Bakul Rani Biswas, the original respondent, having died, one Bhajan Biswas was substituted on the allegation that the said Bhajan was the heir of Bakul Rani Biswas. An award was obtained by the opposite parties against Bhajan and such award was put into execution by instituting Execution Application No. SC/10/EX/2006. Upon coming to know of such execution case, the present petitioner, namely, Suranjan Biswas, took the plea that such execution case was not maintainable in view of the fact that all along one fictitious person called Bhajan had been impleaded as respondent and only at the last stage of the execution proceeding, the name of Suranjan was introduced as an alias of such Bhajan.

The said contention of the petitioner was accepted by the State Commission vide Order No. 34 dated November 18, 2009 and, although no final adjudication was made as to the identity of Suranjan and Bhajan, the execution case was disposed of, making it clear that such rejection would not prevent the decree-holder to take proper steps against Suranjan.

A revision was preferred against such order, which was disposed of by the National Consumer Disputes Redressal Commission vide order dated June 9, 2016, whereby the revision was dismissed with liberty to file a fresh execution case in terms of the liberty granted by the State Commission.

Pursuant to such liberty, the present opposite parties levied execution afresh, giving rise to Execution Case No. EA/40/2016. The present petitioner took out an application, bearing Miscellaneous Application No. MA/379/2017, in such second execution case, thereby re-agitating the question of identity of Bhajan himself.

By virtue of the present impugned order dated July 5, 2017, the State Commission rejected such miscellaneous application on the anvil only on the ground that it was previously held by the Commissioner that Suranjan and Bhajan were the same and identical person. As per the impugned order, since such issue has attained finality upon Suranjan not challenging the original award of specific performance, such question could not be agitated now.

It is submitted on behalf of the opposite parties at the outset that since there is a specific provision for appeal against the impugned order, this Court ought not interfere under Article 227 of the Constitution of India for the sake of propriety. On merits, it is submitted that since it has been correctly held in the impugned order that the issue has already been decided against the present petitioner, the same cannot be re-agitated now.

It is undoubtedly settled that unless there is a palpable jurisdictional error going to the root of the matter and/or there is a rare case, usually this Court does not undertake the exercise under Article 227 of the Constitution of India, particularly in cases where there is a specific provision for appeal.

In this context, it is relevant to peruse the provision of Section 25 of the Consumer Protection Act, 1986, which deals with enforcement of orders of the various fora under the said Act. It is seen from such provision that when a person does not comply with an order passed against him, various modalities of execution come into play. Although such proceedings are summary in nature and the trappings of Order XXI Rules 97-101 of the Code of Civil Procedure are not applicable in terms, it will be shirking the duty of the court not to look into the vital question raised by the petitioner in the present case in the garb of such absence of specific provision.

The stipulation of Section 25, if read in proper perspective, implicitly embodies the concept that an order of enforcement passed by any of the fora under the Act of 1986 has to be in respect of a person against whom the order sought to be executed was actually passed.

Where the identity of the person itself is in dispute, it cannot be the contemplation of any law that third party rights will be taken away by virtue of an order passed between strangers to the property in question.

Undoubtedly, it would be premature to come to any finding at the present juncture, more so by this Court sitting in a supervisory jurisdiction, as to whether Suranjan and Bhajan are identical persons. However, it appears that the State Consumer Disputes Redressal Commission, West Bengal, palpably refused to exercise jurisdiction vested in it by law in shutting out the petitioner at the outset even from agitating the very valid dispute raised by him. Such issue, on the face of it, has to be decided, at least prima facie, even for the simple purpose of enforcing the order passed by the forum.

As such, in view of the aforesaid observations, this Court is of the opinion that the present case has an air of injustice sufficient to elevate it to the plane of a rarest of rare case, where a jurisdiction patently vested in the State Commission was refused to be exercised by the State Forum. Hence, instead of relegating the petitioner to the realm of a full-fledged appeal, this court deems it fit to interfere under Article 227 of the Constitution of India.

In these circumstances, C. O. No. 2533 of 2017 is disposed of by setting aside the impugned order dated July 5, 2017 passed by the State Consumer Disputes Redressal Commission, West Bengal, in Miscellaneous Application No. MA/379/2017, arising out of Execution Application No. EA/40/2016 and directing the State Commission to rehear MA/379/2017 afresh, upon giving opportunity to both sides to bring forth relevant evidence and upon giving complete hearing to both sides in the matter.

However, since the proceeding itself is of a summary in nature, the enquiry indicated above will not be akin to a full-fledged trial but may be disposed of even on affidavits of parties as per the discretion of the State Commission. The entire exercise should be completed within two months from the date of communication of this order to the State Commission, within which time the said miscellaneous application ought to be disposed of by the State Commission. There will be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.