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2015 Supreme(Cal) 704
HIGH COURT OF CALCUTTA
Siddhartha Chattopadhyay, J.
Ravi Kant Srivastava - Petitioner
Vs.
Ashok Kumar Chakraborty & Anr. - Respondents
C.O. No. 445 of 2014
Decided On : 11-12-2015
For the Petitioner: Mr. Supriyo Chattopadhyay, Ms. Anasuya Bhattacharya, Ms. Sanjukta Samanta
For the Respondents: Ms. Rina Banerjee
The High Court does not have jurisdiction to entertain a revisional application against an order of the State Consumer Dispute Redressal Commission when the statute provides for an appeal or a revision against such an order.
Headnote:
CONSUMER PROTECTION ACT, 1986 - SECTION 21 - REVISIONAL APPLICATION - MAINTAINABILITY - COURT HELD THAT SINCE THE STATUTE PROVIDES FOR AN APPEAL OR A REVISION AGAINST AN ORDER OF THE STATE COMMISSION, HIGH COURT SHOULD NOT ENTERTAIN SUCH APPLICATION UNDER ARTICLE 227 AGAINST OF THE ORDER OF THE STATE COMMISSION.
Fact of the Case:
The petitioner challenged the order of the State Consumer Dispute Redressal Commission upholding the order of the District Consumer Dispute Redressal Forum, which directed the developer to pay compensation for causing mental agony and harassment and to take necessary steps for the operation of the lift in the premises.
Finding of the Court:
The court held that the revisional application was not maintainable in view of the decisions of the Calcutta High Court and the Supreme Court, which held that the statute provides for a more exhaustive remedy by way of an appeal before the National Commission and that the High Court should not entertain such applications under Article 227 against the order of the State Commission.
Issues: Whether the revisional application was maintainable in view of the statutory provisions for appeal and revision against the order of the State Commission.
Ratio Decidendi: The court relied on the judgments of the Calcutta High Court and the Supreme Court, which held that the statute provides for a more exhaustive remedy by way of an appeal before the National Commission and that the High Court should not entertain such applications under Article 227 against the order of the State Commission.
Final Decision: The court dismissed the revisional application for want of jurisdiction.
Siddhartha Chattopadhyay, J.
Challenging the order dated 05.12.2013 passed by the learned State Consumer Dispute Redressal Commission in connection with S.C. Case No. FA/408/2013, arises from the judgment dated 25.03.2013 of District Consumer Dispute Redressal Forum, Howrah, in connection with Complaint Case No. HDF 128 of 2012, the present petitioner has filed an application under Article 227 of the Constitution of India contending inter alia that learned Commission failed to appreciate the fact that the complaint suffered from non-joinder of necessary parties, having full knowledge of the fact that Eastern Engineering and Associate is the developer but did not implead them as a party and the learned Commission failed to consider that installation of the lift being a joint responsibility of the developer as well as the owner, the same cannot be escaped from the side of the Opposite Party No. 1. Accordingly, he has prayed for interference of this Court with a prayer to set aside the impugned order.
2. Factual aspects needs to be restated. The present Respondent No. 1 entered into an agreement for sale dated 26.11.2007 with the developer for purchasing a flat and the developer verbally assured of installation of lift in the said building. In March 2008 possession was delivered and it was registered on 30.07.2008. In the said sale deed, land owner as well as developer put their signatures in Page No. 14 Serial No. 11 of the sale deed wherein it is written that ‘lift in the building to be installed’. In spite of such assurance lift was not installed. Flat owners held a meeting with the developer on 06.06.2010 and then also developer assured the flat owners in writing that lift will be functioning properly within three months. Thereafter, Assistant Director, Consumer Affairs, Howrah intervened but the developer did not intimate the date on which he was going to provide the lift service. Being aggrieved at the cynical attitude of the developer, he filed a complaint case against opposite parties to pay Rs. 2 lakh as compensation for causing mental agony and harassment. Land owner appeared and contested the case and denied all the material allegations levelled against him. He further stated that a sum of Rs. 1,40,000/- was paid to the developer towards his contractual obligation for running the lift. Developer had constructed a lift-pit and lift motor room and installed, though the land owner had not contributed any amount for installation of the lift. Developer further stated that the owners of said building availed of the lift but did not pay the electricity charges. According to the developer, he has no deficiency in providing service.
3. After hearing both sides learned District Forum has passed the order directing the Opposite Party No. 2 (Sri Benoyendra Nath Ghosh) to pay compensation of Rs. 50,000/- to the complainant within 30 days and also directed to take necessary steps for operation of the lift in the said premises.
4. Against that order, they had preferred an appeal before the State Commission. After hearing both sides learned State Commission has observed that in spite of specific averment in the deed of conveyance, that the lift was to be installed in that building, that promise towards installation was not translated into action. Developer although had taken the plea about non-receipt for payment from the land owner towards 50 percent of installation charge but it appears from the record that the complainant had paid Rs. 2,00,000/- to the lift service charges. Learned Commission held that the plea of non-receipt of maintenance charges has not been substantiated.
5. On the basis of such observations and findings learned State Commission dismissed the appeal and the impugned judgment passed by the District Forum was upheld.
6. At the time of hearing, learned Counsel appearing on behalf of the petitioner has contended that the order of the learned State Commission is absolutely illegal and beyond jurisdiction and so
