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2016 Supreme(Cal) 597
IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, J.
M/s. Universal Consortium of Engineers (P) Ltd. & Ors. - Applicant
Vs.
Sri Barid Baran Roy & Ors. - Opposite Party
RVW 186 of 2016 With CAN 7143 of 2016 In C.O. 1919 of 2014
Decided On : 02-12-16
For the Applicant : Mr. U. C. Jha, Mr. Anirban Bose, Ms. M. Sharma, Ms. T. Banerjee
For the Opposite Party : Mr. Gopal Chandra Ghosh, Mr. Om Narayan Rai, Ms. Jayeta Kaunda
The review jurisdiction is limited and cannot be used to rehear or reconsider a matter on the basis of a change of opinion.
Headnote:
REVIEW JURISDICTION - JURISDICTION OF DISTRICT FORUM AND STATE COMMISSION - SECTION 2(O), (G) AND (D) CONSUMER PROTECTION ACT, 1986 - WEST BENGAL (REGULATION OF PROMOTION OF CONSTRUCTION AND TRANSFER BY PROMOTERS) ACT, 1993 - SECTION 12A - The court held that the District Forum and State Commission have jurisdiction to entertain disputes between developers and intending purchasers under the Consumer Protection Act, 1986, despite the bar created under Section 12A of the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993.
Fact of the Case:
The petitioners filed a review application against the judgment of the High Court, which had dismissed their revisional application and upheld the jurisdiction of the District Forum and State Commission under the Consumer Protection Act, 1986.
Finding of the Court:
The court held that the review application was devoid of merit and dismissed it. The court also dismissed the connected application.
Issues: 1. Whether the District Forum and State Commission have jurisdiction to entertain disputes between developers and intending purchasers under the Consumer Protection Act, 1986, despite the bar created under Section 12A of the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. 2. Whether the High Court should exercise its power under Article 227 of the Constitution of India to interfere with the impugned order.
Ratio Decidendi: 1. The review jurisdiction is limited and has to be decided strictly on the parameters set forth under Order XLVII Rule 1 of the Code of Civil Procedure. 2. A review is by no means an appeal in disguise, whereby erroneous decision is reheard and corrected by the Court, nor can be used as a tool for revisitation, rehearing and reconsideration of the matter. 3. The Court should not review an order merely on a change of opinion but restrict its scrutiny within the folds of Order XLVII Rule 1 of the Code. 4. The error in recording the fact if has a material bearing on the ultimate decision, certainly invites the Court to invoke review jurisdiction, but not when it is unrelated, unconnected and having no nexus with the moot question raised before the Court. 5. A judgment, which is erroneous or decided on merit of the case, cannot be reviewed under Order XLVII Rule 1 of the Code of Civil Procedure.
Final Decision: The review application was dismissed.
1. This review application has been filed against the judgement dated 5th April, 2016 passed in C.O. 1919 of 2014, by which the revisional application filed by the petitioners was dismissed holding that the disputes raised in the complaint petition is covered by the provisions of Section 2 (o), (g) and (d) of the Consumer Protection Act, 1986.
2. By the said order the Court upheld the jurisdiction of the District Forum as well as the State Commission under the said Act and rejected the contention of the petitioners that because of the Special Act, namely the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (hereinafter referred to as the “Promoters Act”), the jurisdiction is ousted.
3. The challenge was made to an order by which an application seeking direction upon the opposite party no. 1 to show cause why an appropriate proceeding under Section 27 of the Consumer Protection Act should not be drawn up was rejected. The revisional application was filed as the State Commission declined to issue such notice.
4. An argument was advanced, as it would reflect from the impugned judgement, that both the District Forum as well as the State Commission lacks jurisdiction because of the bar created under Section 12A of the said Act and, therefore, any order passed in a proceeding originated under Section 12 of the C.P. Act is bad in law, without jurisdiction and a nullity. It was further alleged that while the petitioners were enjoying an order of stay in an appeal filed before the State Commission, the possession was taken by the complainant/opposite party no. 1, which is illegal and contrary to law.
5. On the side of the opposite party no. 1 an argument was advanced that the High Court should not exercise power enshrined under Article 227 of the Constitution of India in relation to any matter concerning the consumer disputes and cited various decisions of the Supreme Court in this regard.
6. There was no dispute that the opposite party no. 1 obtained possession, as the petitioner itself invited the attention of the State Commission to activate the provisions of Section 27 of the C.P. Act.
7. By the impugned order the Hon’ble Judge held that the dispute raised by the opposite party no. 1 under Section 12 of the C.P. Act confirms to the definition provision and held that such dispute squarely comes within the purview of Section 2 (o), (g) and (d) of the Consumer Protection Act, 1986.
8. The review application was filed engaging a new lawyer, who did not appear before the Revisional Court, nor the counsel, who appeared therein and argued the matter, were engaged at the time of moving the review application. Subsequently the present advocate on record engaged the counsel, who appeared before the Revisional Court who has consented to appear for the petitioner.
9. It is submitted on behalf of the petitioner that the Hon’ble Judge have wrongly recorded the fact that the development agreement is undisputed, which contains the terms and conditions for handing over the flats and office room, and the flats were handed over without completion certificate. According to the learned advocate, the aforesaid facts are contrary to record and, therefore, there is patent error requiring review of the said judgement.
10. Many other points are raised by the learned counsel, which, in my opinion, touches the merit of the impugned order, and this Court decline to interfere with the same.
11. The review jurisdiction is limited and has to be decided strictly on the parameters set forth under Order XLVII Rule 1 of the Code of Civil Procedure. A review is by no means an appeal in disguise, whereby erroneous decision is reheard and corrected by the Court, nor can be used as a tool for revisitation, rehearing and reconsideration of the matter. The Court should not review an order merely on a change of opinion but restrict its scrutiny within the folds of Order XLVII Rule 1 of the Code.
12. The error in recording the fact if
