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2016 Supreme(Cal) 426
In The High Court At Calcutta
Md. Mumtaz Khan, J.
Smt. Pritikana Saharoy – Appellant
Vs.
Smt. Durga Mondal – Respondent
C.O. No. 2925 of 2016
Decided on : 29-09-2016
Advocate Appeared:
For the Petitioner: Mr. Avik Mitra, Mr. Syed Julfikar Ali
For the opposite party : Mr. Haradhan Banerjee, Mr. Amitava Pain, Mr. Subhrangshu Dutta, Mr. P.P. Mukherjee
The High Court has jurisdiction to entertain a revision under Article 227 of the Constitution of India in view of Section 21(b) of the Consumer Protection Act, 1986, and the High Court can exercise the supervisory jurisdiction in appropriate cases.
Headnote:
CONSUMER PROTECTION ACT - STAY OF EXECUTION PROCEEDINGS - SECTION 21(B) - HIGH COURT'S JURISDICTION UNDER ARTICLE 227 - SUPERVISORY JURISDICTION IN APPROPRIATE CASES - STAY OF EXECUTION PROCEEDINGS DURING PENDENCY OF APPEAL - JUDICIAL APPROACH.
Fact of the Case:
Petitioner filed a complaint before the District Consumer Disputes Redressal Forum, Howrah alleging deficiency of service by the opposite party and sought various reliefs including completion of remaining work of the flat, possession, execution and registration of deed of conveyance, compensation for loss, mental agony and harassment. The complaint was initially dismissed by the District Forum and the State Commission, but on revision, the National Commission set aside the orders and directed the District Forum to decide the case afresh. The District Forum allowed the complaint and directed the opposite party to hand over the flat, execute and register the deed of conveyance, and pay compensation. The petitioner filed an execution case for failure of the opposite party to comply with the direction. The opposite party obtained a stay of the execution proceedings from the State Commission without serving a copy of the stay application to the petitioner.
Finding of the Court:
The High Court held that the High Court's power under Article 227 of the Constitution of India has not been taken away despite the existence of an alternative remedy in the Consumer Protection Act and the High Court can exercise the supervisory jurisdiction in appropriate cases. In the present case, the High Court found that the impugned order staying the execution proceedings was passed after hearing both parties and there was no error apparent on the face of the record. However, the High Court expressed hope that the District Forum would make all endeavors to dispose of the appeal expeditiously after giving an opportunity of hearing to the respective parties.
Issues: 1. Whether the High Court has jurisdiction to entertain a revision under Article 227 of the Constitution of India in view of Section 21(b) of the Consumer Protection Act, 1986? 2. Whether the State Commission was justified in staying the execution proceedings without imposing any condition or obtaining any security from the opposite party?
Ratio Decidendi: 1. The High Court held that there is no absolute bar in entertaining revision under Article 227 of the Constitution of India despite the existence of an alternative remedy in the Consumer Protection Act and the High Court can exercise the supervisory jurisdiction in appropriate cases. 2. The High Court held that the impugned order staying the execution proceedings was passed after hearing both parties and there was no error apparent on the face of the record. However, the High Court expressed hope that the District Forum would make all endeavors to dispose of the appeal expeditiously after giving an opportunity of hearing to the respective parties.
Final Decision: The High Court disposed of the revisional application without any order as to costs and directed the District Forum to make all endeavors to dispose of the appeal expeditiously after giving an opportunity of hearing to the respective parties.
1. This revisional application is directed against the order no.3 dated July 15, 2016 passed by the State Consumer Disputes Redressal Commission, West Bengal in Miscellaneous Application No. MA/666/2016 in First Appeal No. A/234/2016 staying further proceedings of the Execution Case No. 69/206 pending before the District Consumer Redressal Forum, Howrah.
2. The petitioner herein filed an application before the District Consumer Disputes Redressal Forum, Howrah on the alleged deficiency of service on the part of the opposite party under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the said Act) inter alia, praying for a direction upon the opposite party to complete the remaining work of the flat in question forthwith and hand over the possession of the same and execute and register a Deed of Conveyance and/or any other document necessary for effectively transferring the ownership of the said flat to the complainant immediately and also for compensation against the loss, mental agony and harassment suffered by her for such deliberate delay of possession etc.
3. The said complaint was at first dismissed in the District Forum as also the appeal preferred before the State Consumer Disputes Redressal Commission, West Bengal. But in revision the orders passed by the fora below were set aside by the National Consumer Disputes Redressal Commission, New Delhi and the District Forum was directed to decide the case afresh within a stipulated period. Thereafter District Consumer Disputes Redressal Forum, Howrah after contested hearing allowed the complaint of this petitioner with cost with a direction upon the O.P. to hand over the flat in question after executing and registering the deed of conveyance in her favour after receiving the due amount of Rs. 7,20,000/- and also pay compensation of Rs. 50,000/- within 60 days from the date of the order failing which petitioner will be at liberty to put the order in execution. Petitioner then filed the execution case in question for failure on the part of the opposite party to comply the said direction.
4. It was submitted by the learned advocate appearing for the petitioner that opposite party surreptitiously behind the back of the petitioner without serving any copy of stay application managed to obtain the order of stay of the execution case and the State Commission without imposing any condition or obtaining any security from the opposite party stayed the further prosecution of the execution case which is bad in law and violation of principles of natural justice. He also drawn attention of this Court towards the photostat copies of postal receipts, A/D card in support of claim of non-service of the copy of the stay application.
5. At the beginning of the hearing learned advocate appearing for the opposite party raised a preliminary objection that in view Section 21(b) of the Consumer Protection Act, 1986 this Court has no jurisdiction to entertain a revision under Article 227 of the Constitution of India and according to him the remedy lies only before the National Forum under the said Act. But subsequently, in course of hearing, he frankly admitted that there is no absolute bar in entertaining application under Article 227 of the Constitution of India but it can only be exercised in exceptional cases. According to him this petitioner after receipt of the notice of hearing of the stay application duly appeared before the said Forum and contested the application and the impugned order was passed after contested hearing and there was no illegality or irregularity of the same and as such the instant revision is liable to be rejected. In support of his contention he relied upon the decisions in the matter of The Oriental Insurance Company Ltd. Vs. M/s. Vikrant Refrigeration (Pvt.) Ltd. And Ors. reported in 2012(3) CLJ (Cal) 410 and in the matter of Mool Chand Yadav and Anr. Vs. Raza Buland Sugar Company Limited, Rampur and Ors. reported in (1982) 3
