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2019 Supreme(Cal) 115

IN THE HIGH COURT OF CALCUTTA
DIPANKAR DATTA, BIBEK CHAUDHURI, JJ.
Universal Consortium of Engineers (P) Ltd. and Another - Appellant
Versus
Sanu Construction and Others - Respondent
Writ Petition No. 23027, 29496, 20203, 1248 of 2017; F.M.A. No. 1475 of 2018; Civil Order No. 292, 1828, 1842 of 2015, 4276 of 2017, 3404 of 2015
Decided On : 18-02-2019

Advocates Appeared:
Uday Chandra Jha, Adv., Maheswari Sharma, Adv., Soumya Gargash, Adv., Laxmi Kanta Pal, Adv., Bandhu Brata Bhula, Adv., Tapan Kumar Rakshit, Adv., Surojit Roy, Adv., Nripendra Ranjan Mukherjee, Adv., Sourya Majumdar, Adv., Indranil Nandi, Adv., Sayak Konar, Adv., Arijit Bardhan, Adv., Debraj Banki, Adv., Promod Kumar Drolia, Adv., Santosh Kumar Pandey, Adv., Sandipto Bose, Adv., Mrinal Das, Adv., Tapan Kumar Mukherjee, Adv., Rabindra Narayan Dutta, Adv., Hare Kirshna Halder, Adv., Srilekha Bhattacharyya, Adv., Kaushik Chanda, Adv., Biswajit Konar, Adv.

Headnote:

The dispute between a home buyer and a promoter relating to matters arising under any provision of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (Building Act) is not barred from being entertained by the appropriate forum constituted under the Consumer Protection Act, 1986 (CP Act).

Fact of the Case:

The writ petitions and civil revisional applications under consideration were assigned to the Division Bench presided over by one of us (Dipankar Datta, J.) by an order of the Hon'ble the Chief Justice dated August 23, 2018. Subsequently, a writ appeal [FMA 1475 of 2018] arising out of W.P. 1248 (W) of 2017 upon being listed before a Division Bench presided over by the Hon'ble the Chief Justice, it was submitted on behalf of the appearing parties that W.P. 1248 (W) of 2017 itself had been assigned to a Division Bench. Hearing such submission, an order dated November 19, 2018 was passed directing such appeal to be placed before the presiding judge of this Bench resulting in listing thereof together with the said matters.

Finding of the Court:

The fora created by the CP Act, without doubt, are special tribunals which were brought into existence to achieve its avowed objects. In Charan Singh (supra), law has been laid down that the authorities under the CP Act exercise quasi-judicial powers for redressal of consumer disputes and it is one of the postulates of such a body that it should arrive at a conclusion based on reason.

Issues: 1. Whether the fora constituted under the CP Act is competent to entertain a complaint from a home buyer against a promoter for a perceived deficiency in service rendered to him by a promoter? 2. Whether it is the legislative intent that jurisdiction of the fora created by the CP Act should be excluded from resolving disputes between a home buyer and a promoter? 3. Whether despite the explicit bar that section 12A engrafts, a 'civil court' could still be approached by a purchaser of a flat/apartment if he has any grievance against a promoter?

Ratio Decidendi: 1. The fora created by the CP Act are not 'courts', far less 'civil courts', and its jurisdiction to receive a complaint from a home buyer against a promoter is not barred in view of the provisions of section 12A of the Building Act. 2. The legislative intent upon comparison of the provisions of section 12A of the Building Act and section 145 of the West Bengal Cooperative Societies Act, 2006 (2006 Act) suggests that the net of bar created by section 12A of Building Act cannot be spread so wide and high that it would preclude the consumer fora to entertain, try and decide a dispute between a home buyer and a promoter which additionally, but not simultaneously, could be a subject matter of decision before the appropriate forum under the CP Act notwithstanding the remedy available before the authorized officer under section 6 of the Building Act. 3. In respect of any question relating to matters arising under any provision of the Building Act, the jurisdiction of the 'civil court' is barred, but if a building is sought to be constructed by an individual/company, comprehended within the meaning of promoter as defined in section 2(g) of the Building Act who/which either fails to obtain registration and/or permission to construct under sub-section (1) of section 3 of the Building Act, the jurisdiction of the 'civil court' would not be excluded even though there has been non-compliance with the provisions of the Building Act by the promoter.

Final Decision: The reference is answered accordingly. Let the records of the individual writ petitions/civil revisional applications/writ appeal be placed before the appropriate Bench having determination for final decision.

JUDGMENT :

DIPANKAR DATTA, J.

1. The writ petitions and the civil revisional applications under consideration (hereafter the 'said matters', wherever referred to jointly) were assigned to the Division Bench presided over by one of us (Dipankar Datta, J.) by an order of the Hon'ble the Chief Justice dated August 23, 2018. Subsequently, a writ appeal [FMA 1475 of 2018] arising out of W.P. 1248 (W) of 2017 upon being listed before a Division Bench presided over by the Hon'ble the Chief Justice, it was submitted on behalf of the appearing parties that W.P. 1248 (W) of 2017 itself had been assigned to a Division Bench. Hearing such submission, an order dated November 19, 2018 was passed directing such appeal to be placed before the presiding judge of this Bench resulting in listing thereof together with the said matters.

2. Assignment of the said matters by the Hon'ble the Chief Justice ensued because of an order dated March 7, 2014 passed by a learned Judge of this Court in C.O. 2440 of 2011 (Kamala Properties Limited v. Miss Suchismita Roy & ors.). Noticing the divergence of opinion expressed by several single Judges, two on one side holding that the remedy made available by the Consumer Protection Act, 1986 (hereafter the CP Act) to a purchaser having a grievance against a promoter is excluded in view of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (hereafter the Building Act), and one on the other holding to the contrary, His Lordship referred the said revisional application to the Hon'ble the Chief Justice for decision by a larger bench.

3. Upon the said matters being posted for hearing, it appeared to us that no question of law had been formulated for our answer. However, from an order dated September 21, 2016 passed by a coordinate bench, to which the said matters had been assigned previously, it appeared that Their Lordships had expressed as follows:

"In all these petitions, the main question involved is as to whether the fora constituted under the Consumer Protection Act, 1986 have jurisdiction over disputes between promoters/developers and purchasers of residential buildings or flats, having regard to the provisions of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act".

4. The parties not having disputed that this was the precise question requiring an answer to dispose of the reference, we called upon them to address us.

5. Despite the reference arising in connection with the said matters, we have been addressed on behalf of the promoters only in W.P. 23027 (W) of 2017 and W.P. 1248(W) of 2017 by Mr. U.C. Jha and Mr. Arijit Bardhan, learned advocates, respectively.

6. Mr. Jha and Mr. Bardhan have endeavoured to impress upon us that either of the three fora constituted under the CP Act for receiving a complaint regarding deficiency of service would be a 'civil court' within the meaning of section 12A of the Building Act and hence the provisions of the CP Act, providing for a remedy, stand excluded qua its operation to a purchaser-promoter dispute.

7. Citing the decision in Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India reported in, (1994) 6 SCC 731, Mr. Jha initiated his address by seeking to enlighten us on what a 'Court' means. It has been held therein that a 'Court' is an agency created by the sovereign for the purpose of administering justice and is a place where justice is judicially administered. It is a tribunal presided over by one or more Judges on whom are conferred judicial powers for administering justice in accordance with law. When a Judge takes his seat in Court, the Court is said to assemble for administering justice. Although the words 'Court' and 'Judge' are frequently used interchangeably because a Judge is an essential constituent of a Court, that is not to say that when a Judge demits office the Court ceases to exist.

8. Mr. Jha further argued, relying on Fair Air Engine











































































































































































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