The Consumer Forum lacks jurisdiction to entertain a complaint under the West Bengal (Regulation of Promotion of Construction and Transferred by Promoters) Act, 1993, where there is an embargo created under Section 12A of the Act, and the aggrieved party has an efficacious alternative remedy by way of an appeal before the State Commission.

Siddhartha Chattopadhyay, J.

Challenging the legal pregnability of the Order No. 11 dated 04.09.2015 passed by the learned District Consumer Redressal Forum, Purba Medinipur in Consumer Case No. 47 of 2015, the petitioner has filed this revisional application under Article 227 of the Constitution of India read with Section 115 of the Civil Procedure Code.

2. According to the petitioner, the learned District Consumer Redressal Forum has passed the impugned order without any application of mind and did not consider its jurisdiction under Section 12A.

3. In the application under Article 227 of the Constitution of India, the petitioner contended that learned Forum ought to have considered the facts in its proper perspectives and to consider that the case is not maintainable under the West Bengal (Regulation of Promotion of Construction and Transferred by Promoters) Act, 1993.

4. As against this learned Counsel appearing on behalf of the opposite party contended that the District Forum is the competent authority to resolve disputes and the present petitioner ought to have moved before the State Commission against the impugned order of the District Forum. Since that is not done, the petition itself is not maintainable.

5. At the very outset, after hearing rival submissions of the parties, I am of the view if such application is maintainable or not that is to be considered first. If it is found that the application is not maintainable then there is no reason to look into the merits of the case.

6. Learned Counsel mainly relied on the decision reported in Calcutta Law Journal 2012 (3) CLJ Cal 291 (Smt. Rita Das v. Jayashri Ghosh & Ors.). Learned Counsel appearing on behalf of the respondent has relied upon the decision reported in 2011 (14) SCC 337 (Nivedita Sharma v. Cellular Operators Association.).

7. On perusal of the decision reported in connection with Smt. Rita Das v. Jayashri Ghosh & Ors. I find that the Coordinate Bench, after considering the decisions of our High Court as well as Our Apex Court namely (1) Narayan Chandra Ghosh & Anr. v. Biswajit Lahiri, 2006 (1) CHN 401, (2) General Manager, Telecom v. M. Krishnan and Anr., 2009 (8) SCC 481, (3) In re: State Transport Authority & Anr., 1991 (2) CHN 131, (4) Arvind Mills Ltd. v. Associated Roadways, 2004 (11) SCC 545, (5) Maharshi Dayanand University v. Surjeet Kaur, 2010 (11) SCC 159, (6) Faquir Chand Gulati v. Uppal Agencies Private Limited & Anr, 2008 (10) SCC 345, (7) Ratan Chand Hira Chand v. Askar Nawaz Jung (dead) by Lrs. & Ors., 1991 (3) SCC 67, (8) Suraj Lamp and Industry Pvt. Ltd. v. State of Haryana & Anr., (Unreported), (9) SBP & Company v. Patel Engineering Ltd., 2005 (8) SCC 618, (10) Mandira Mukherjee v. District Consumer Disputes Redressal Forum, 2005 (4) CHN 694, Came to the finding that since there is an embargo created under the Special Act, the Consumer Forum or the State Commission was not competent to pass the order and/or entertain the said complaint.

8. In case of Faquir Chand Gulati (supra) the Supreme Court was considering the nature of the joint venture agreement which on its violation and/or which may provide remedy before the Consumer Forum, and in course of deciding such an issue it was held at Para 34, "We may notice here that if there is a breach by the land owner of his obligations, the builder will have to approach a Civil Court as the land owner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court, or he can approach the Forum under the Consumer Protection Act, for relief as consumer, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available under the Act i