IN THE HIGH COURT AT CALCUTTA

APPELLATE SIDE

PRESENT : Hon’ble Justice Dipankar Datta

and
Hon’ble Justice Bibek Chaudhuri

WP 23027 (W) of 2017

M/s Universal Consortium of
Engineers (P) Ltd. and anr.
v.
State of West Bengal and ors.

with

WP 29496 (W) of 2017

M/s Jaineo Automotive (P) Ltd.
v.
State of West Bengal and ors.

with

WP 20203 (W) of 2017

M/s AZ Services and ors.

v.
State of West Bengal and ors.

with

WP 1248 (W) of 2017

M/s Sanu Construction and ors.
v.
State of West Bengal and ors.

with
 FMA 1475 of 2018
Manoj Kumar Pandey and ors.
v.
M/s Sanu Construction and ors.

with

CO 292 of 2015
Dibyendu Adhuria and ors.
v.
Sumanta Bhuia and ors.

with

CO 1828 of 2015
and
CO 1842 of 2015
Sarada Cconstruction
v.
Sankar Das and anr.

with

CO 4276 of 2017
Santanu Bhaduri
v.
Gautam Ghosh and anr.

with

CO 3404 of 2015
Riverbank Developers Pvt. Ltd.
v.
Col. Biswajit Mondal

(Assigned)

For the petitioner in WP 23027(W) Mr. Uday Chandra Jha,

of 2017 Ms. Maheswari Sharma,
Mr. Soumya Gargash.

For the respondent no.4 in WP Mr. Laxmi Kanta Pal,

23027(W) of 2017 Mr. Bandhu Brata Bhula.

Mr. Tapan Kumar Rakshit,

 For the respondents 4 and 5 in WP Mr. Surojit Roy.
20203(W) of 2017

For the respondent nos.6 to 8 in Mr. Nripendra Ranjan Mukherjee,

WP 20203(W) of 2017 Mr. Sourya Majumdar.

For the respondent no.3 in WP in Mr. Indranil Nandi,

WP 29496(W) of 2017 Mr. Sayak Konar.

For the petitioner in WP 1248(W) of Mr. Arijit Bardhan,

2017 Mr. Debraj Banki.

For the respondent nos.3 and 4 in Mr. Promod Kumar Drolia,

WP 1248(W) of 2017 Mr. Santosh Kumar Pandey.

For the opposite parties in CO Mr. Sandipto Bose,

1828/2015 & 1842/2015 Mr. Mrinal Das.

For the State in all the writ Mr. Tapan Kumar Mukherjee,
petitions Mr. Rabindra Narayan Dutta,
Mr. Hare Kirshna Halder,
Ms. Srilekha Bhattacharyya.

For the Union of India Mr. Kaushik Chanda,

Mr. Biswajit Konar.

Heard on : January 2, 3 and 4, 2018

Judgment on : February 18, 2019

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 Engineers Pvt. Ltd. v. N.K. Modi,

reported in (1996) 6 SCC 385, that the fora created by the CP Act to resolve

disputes brought forth before it by consumers are judicial authorities and

proceedings before them are legal proceedings. Relying on Patel Roadways Ltd.

v. Birla Yahama Ltd., reported in (2000) 4 SCC 91, he contended that a

proceeding before a consumer forum is a suit.

9. The decision in M/s. SBP and Company v. Patel Engineering, reported in 2005

(7) Supreme 610, was also referred to by Mr. Jha to show that the decision in

Fair Air Engineers Pvt. Ltd. (supra) has been approved.

10. Incidentally, the decision in Patel Roadways Ltd. (supra) holding that a

proceeding before the consumer forum is a suit, has been approved in Ethiopian

Airlines v. Ganesh Narain Saboo, reported in (2011) 8 SCC 539.

11. In support of the contention that the jurisdiction of a forum created by the CP

Act would stand excluded if the jurisdiction of a ‘civil court’ is barred under the

provision of any special enactment, Mr. Jha sought to draw inspiration from the

decisions in United Bank of India v. Satyawati Tondon, reported in (2010) 8

SCC 110, Trans Mediterranean Airways v. M/s Universal Exports, reported in

(2011) 10 SCC 316, and UP Power Corporation Ltd. v. Anis Ahmad, reported in

(2013) 8 SCC 491.

12. It was, accordingly, urged by Mr. Jha that in respect of a purchaser-promoter

dispute arising in this State, it is the authorized officer under section 6 of the

Building Act who alone is empowered to decide such dispute and the forum

created by the CP Act would have no jurisdiction to try such dispute.

13. Mr. Bardhan while adopting the submissions of Mr. Jha relied on the decision of

the Supreme Court in Dr. J.J. Merchant v. Shrinath Chaturvedi, reported in

(2002) 3 SCC 635, in support of his submission that since decision in a civil suit

takes years and that despite the enactment of the CP Act the fora created

thereunder were unable to grant expeditious relief to the consumer(s), the

Building Act had been enacted creating a special forum only to examine disputes

arising under the Building Act and, therefore, it is such forum created by the

Building Act which alone has the jurisdiction to entertain any dispute between a

purchaser and a promoter. He further relied on the decision in Narayan Chandra

Ghosh v. Biswajit Lahiri, reported in AIR 2006 Calcutta 95, where section12A of

the Building Act was held to create an explicit bar on the jurisdiction of the ‘civil

court’. Reliance was also placed by him on the decision in Department of

Telecommunications v. M. Krishnan, reported in (2009) 8 SCC 481, where a

complaint before the consumer forum in respect of disconnection of a telephone

line arising out of alleged non-payment of telephone bills was held to be not

maintainable in view of the provisions of the Telegraph Act, 1885 and the rules

framed thereunder.
14. On behalf of the purchasers in the said matters, we were addressed by Mr. N.R.

Mukherjee, Mr. P.K. Drolia, Mr. L.K. Pal, Mr. T.K. Rakshit and Mr. Sandipto

Bose, learned advocates.

15. All the learned advocates contended in unison that having regard to the mischief

that the CP Act seeks to remedy as well as the provisions in section 3 thereof,

read with the decisions relied upon by them, the conclusion is irresistible that

the Building Act cannot operate as a bar for the consumer forum created by the

CP Act to entertain a complaint thereunder by such forum at the instance of a

purchaser. Referring to certain orders passed by the National Commission, Mr.

Mukherjee further submitted that disputes between purchasers and promoters

having its genesis in this State were being entertained notwithstanding the

decisions of this Court that the consumer forum has no jurisdiction to resolve

purchaser-promoter disputes. He also contended that an attempt was made to

amend the provisions of section 3 of the CP Act and if such amendment were

effected, the jurisdiction of the consumer forum would have been curtailed

substantially; however, that the Parliament in its wisdom did not take a step in

that direction is pointer to retention of the jurisdiction of the consumer forum as

it has been since its inception and by a strained interpretation of the Building

Act, the jurisdiction of the consumer forum cannot be ousted.

16. We also had the benefit to hear Mr. Kaushik Chanda, learned Additional Solicitor

General and Mr. T.K. Mukherjee, learned Additional Government Pleader.

17. Mr. T.K. Mukherjee, on instructions, submitted that the National Commission

constituted under the CP Act has the jurisdiction to entertain a complaint from a
 purchaser notwithstanding the provisions of section 6 read with section 12A of

the Building Act.

18. Inviting our attention to section 145 of the West Bengal Cooperative Societies Act,

2006 (hereafter the 2006 Act), Mr. Chanda urged us to hold that the appropriate

forum under the CP Act was competent to receive a complaint from a purchaser

against a promoter for a perceived deficiency in service and to decide it, and also

that ouster of the jurisdiction of the ‘civil court’, ordained by section 12A of the

Building Act, could not be called in aid to oppose maintainability of a complaint

lodged under the CP Act. It was also submitted by Mr. Chanda that the learned

judges of this Court, who ruled that the consumer fora have no jurisdiction in

view of section 12A of the Building Act, did not have the benefit of considering

the decisions of the Supreme Court wherein it has been categorically laid down

that the fora created by the CP Act are not ‘courts’ but are quasi-judicial bodies

or authorities or agencies.

19. The decisions relied upon by the learned advocates opposing Mr. Jha and Mr.

Bardhan shall be referred to later.

20. Having heard the parties at length and on consideration of the decisions cited at

the bar, we now venture to answer the reference. Hereafter the purchaser of a

flat/apartment shall be referred to as ‘homebuyer’ and the developer/promoter as

‘promoter’.

21. At the outset, the divergent views giving rise to the reference may be noted.

22. By a judgment and order dated December 14, 2012, a learned Judge of this

Court while deciding Rita Das v. Jayashri Ghosh, reported in 2012 (1) CHN (Cal)
 272, held that the Building Act was a special Act and in view of the specific

embargo created thereunder, “the Consumer Forum or the State Commission” was

not competent to entertain a complaint under the CP Act against a promoter

and/or to pass an order on such complaint.

23. Another learned Judge while deciding Bithi Das v. Debabrata Majumdar,

reported in 2014 (1) CHN (Cal) 50, on August 2, 2013, noticed the decision in

Rita Das (supra) and, inter alia, held that since the district forum constituted

under the CP Act has no authority to pass orders for execution and registration

of the deed in favour of the complainants, the complaint before the district forum

and the appeal before the appellate authority are not maintainable at all for

which the revisional application deserved to be allowed. However, the remedy of

the complainants to take recourse to the Building Act in accordance with law was

reserved.

24. Concurrence of the aforesaid views expressed in Rita Das (supra) and Bithi Das

(supra) is found in two other subsequent decisions of this Court rendered by

another learned Judge. The first one is dated November 7, 2014 in Krishna

Abason Pvt. Ltd. v. Krishna Sarkar, reported in 2015 (2) CHN 82, and the other

is dated November 27, 2014 in Khurshid Ahmed Ansari v. Md. Afzal, 2015 (1)

CHN (Cal) 468.

25. Significantly, apart from generally relying on Rita Das (supra), Bithi Das (supra),

Krishna Abason Pvt. Ltd. (supra) and Khurshid Ahmed Ansari (supra), neither

Mr. Jha nor Mr. Bardhan sought to contend that the maxim leges posteriors
 priores contrarias abrogant (later laws repeal earlier laws inconsistent therewith)

would have application here.

26. In contrast to the aforesaid four decisions, decisions of two other learned Judges

(which are unreported) strike discordant notes. The first is a decision dated July

4, 2013 in C.O. 1378 of 2012 (Narayan Chandra Ghosh & anr. v. Biswajit

Lahiri) and the other is dated April 28, 2016 in C.O. 1480 of 2014 (Md. Akbar

Kamal v. Tabraiz Alam Siddiqui). In both these decisions, we find consideration of

the decision in Rita Das (supra); however, for the reasons assigned in the

decisions, the respective learned Judges declined to follow Rita Das (supra) and

arrived at the concurrent conclusion that the fora under the CP Act have the

jurisdiction to entertain a complaint from a home buyer if he were aggrieved by

the deficiency in service rendered to him by a promoter.

27. It is because of such divergence of views for and against applicability of the CP

Act to a dispute between a purchaser of a flat/apartment and a promoter that the

reference was initially made by the learned Judge while hearing C.O. 2440 of

2011 (supra). Subsequently, when other revisional applications/writ petitions on

the same point came up for consideration before other learned single Judges

having determination, the same were also referred to the Hon’ble the Chief

Justice for constitution of a larger bench to resolve the apparent conflict in views.

28. It may, however, be placed on record that the initial reference that was made in

C.O. 2440 of 2011 (supra) does not survive because such revisional application

has been dismissed as not pressed on the joint prayers of the parties who at a

later point of time arrived at an amicable settlement of their inter-se disputes.

29. It is, therefore, required to be decided whether on the face of sections 6 and 12A

of the Building Act, a complaint by a home buyer against a promoter in respect of

any dispute pertaining to a flat purchased by the former from the latter could be

entertained by the appropriate forum constituted under the CP Act or not.

30. We propose to answer the reference by looking at the issue at hand from three

different aspects. The first is, whether the Consumer Disputes Redressal Forum

(hereafter the District Forum) or the Consumer Disputes Redressal Commission

(hereafter the State Commission) or the National Consumer Dispute Redressal

Commission (hereafter the National Commission), created by the CP Act, is

comprehended within the meaning of ‘civil court’, the jurisdiction of which to

entertain or decide any question relating to matters arising under any provision

of the Building Act and the rules framed thereunder is barred by section 12A

thereof? The second is, 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? The third and final is, 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?

31. Before examining the crux of the controversy, it is considered appropriate to note

certain salient features of the Building Act. It is evident from the preamble that

the Building Act was enacted to provide for the regulation of promotion or

construction and transfer of building by promoters in West Bengal. As is

customary, section 2 of the Building Act defines terms used therein which would

have to be attributed such meaning as appears therefrom unless of course the

 context otherwise requires. It is not required to examine in great detail the

expressions ‘apartment’, ‘block’, ‘building’ and ‘flat’ at this stage since it is not

disputed that one of the parties to the dispute is a ‘purchaser’ and the other a

‘promoter’ within the meaning of clauses (h) and (g) respectively of section 2 of

the Building Act. The terms ‘promoter’ and ‘purchaser’ are defined in the Building

Act as follows:

“(g) ‘promoter’ means a person who constructs or causes to be constructed a

building on a plot of land for the purpose of transfer of such building by sale,
gift or otherwise to any other person or to a company, co-operative society or
association of persons, and includes-
(i) his assignee, if any,
(ii) the person who constructs, and the person who transfers by sale, gift
or otherwise, the building, if the two are different persons,
(iii) ***
(iv) ***
(v) any board, company corporation, firm or other association of
persons, established by or under any law for the time being in force:
Provided that notwithstanding anything contained elsewhere in this Act
or in any other law for the time being in force, a person shall be deemed
to be a promoter if he constructs or causes to be constructed, a building
with a height of 9.5 metres or more and on a plot of land measuring
three hundred square metres or above or if he constructs or causes to
be constructed a building consisting of flats in excess of the
requirements of the members of his family;
(h) ‘purchaser’ means any person who, under section 7, enters into an
agreement with the promoter for the purchase of a flat;”

32. The regulatory measures that the Building Act envisages, inter alia, are to be

found in section 3 (providing for registration of the name of the promoter and for

permission to construct a building, by making an application before the

authorized officer appointed by the State Government), section 4 (providing for

the period of validity of certificate of registration and cancellation thereof), section

4A (providing for the period of validity of permission for construction of a

building), section 7 (mandating a promoter, before he takes any advance payment

 or deposit to enter into a written agreement for sale with an intending

purchaser), section 8 (prohibiting a promoter to make alteration or addition

without the consent of the purchaser), section 9 (providing for certain prohibition

and the consequences for violation thereof), etc. The original section 13 of the

Building Act has been omitted and replaced by sections 13A and 13 B. The

former provides what would constitute an offence under the Building Act whereas

the latter contains penal provisions if any promoter is convicted of an offence.

Significantly, violation of provisions of sub-section (1) of section 3 of the Building

Act mandating a promoter to obtain registration as well as permission to

construct has been made an offence which, if proved, could make the promoter

liable to punishment with imprisonment as well as fine as mentioned in sub-

section (1) of Section 13B.

33. The Building Act further provides an appellate remedy to a promoter in section 5.

An appeal would lie either against an order of the authorized officer refusing

registration and permission to construct under section 3(5), or cancelling a

registration under section 4(2).

34. It is now time to read sections 6 and 12A of the Building Act. The same are

quoted below:

“6. Adjudication of disputes.- Any purchaser may, if he has any dispute

regarding the purchase of any flat, make an application in such form as
may be prescribed to such officer as the State Government may appoint for
adjudication of the dispute in such manner as may be prescribed.”

“12A. Bar on jurisdiction of court.-(1) No civil court shall have any

jurisdiction to entertain or decide any question relating to matters arising
under any provision of this Act or the rules made thereunder.
(2) Every order passed by the authorized officer is subject to appeal or
revision, every order passed by the authority referred to in sub-section (1)
 of section 5, and every order passed by the officer referred to in section 6,
which is subject to revision, and every order passed by the State
Government in revision, shall be final and shall not be questioned in any
court of law.”

35. Section 6 of the Building Act, on a bare reading, makes a forum available for a

home buyer to approach if he has any dispute regarding the purchase of any flat

(which would include an apartment), in the manner ordained. An application is

required to be made in the prescribed form to such officer that the State

Government may appoint for adjudication of the dispute in a manner to be

prescribed. In exercise of the power conferred by section 15 of the Building Act,

the West Bengal Building (Regulation of Permission of Construction and Transfer

by Promoters) Rules, 1995 (hereafter the Building Rules) have been framed. An

application for adjudication of a dispute under section 6 of the Building Act is to

be preferred in Form ‘G’ before the authorized officer and the officer is required in

terms of rule 7 to decide the application in compliance with the rule of audi

alteram partem. In terms of rule 6, an authorized officer means an officer not

below the rank of Deputy Magistrate and Deputy Collector, or other officer as

may be appointed by the State Government by notification in the official gazette.

Clause (e) of rule 2 provides that the State Government would mean the

Government of West Bengal in the Department of Housing.

36. Adverting attention to section 12A of the Building Act, we find sub-section (2)

thereof to make it clear that orders passed under various provisions of the

Building Act would be final and binding. What emerges from a reading of sub-

section (1) of section 12A is that it bars a ‘civil court’ from exercising jurisdiction
 to entertain or decide any question relating to matters arising under any

provision of the Building Act or the Building Rules. In other words, a grievance

that a home buyer has against a promoter relatable to any of the provisions of

the Building Act and/or the Building Rules would be barred from being resolved

by a ‘civil court’.

37. In course of hearing, Mr. Jha and Mr. Bardhan conceded that the respective

promoters they represent have not obtained the registration as a promoter as

mandated by sub-section (1) of section 3 of the Building Act. This aspect of the

matter would be of some significance in our thought process for the reasons that

would be evident from our discussions to follow.

38. It would be appropriate at this juncture to note what the CP Act provides.

It provides for an alternative system of consumer justice by summary trial, as

held in Charan Singh v. Healing Touch Hospital, reported in (2000) 7 SCC 668.

39. By reason of the definition of ‘service’ in section 2(o), ‘consumer’ in section 2(d),

‘defect’ in section 2(f) and ‘deficiency’ in 2(g) of the CP Act read with the definition

of ‘consumer dispute’ in section 2(e) thereof, there can be no two opinions that if

a grievance of a home buyer against a promoter is covered by the provisions of

the CP Act, a complaint would invariably be maintainable before the consumer

forum. The decision in Lucknow Development Authority v. M.K. Gupta,

reported in (1994) 1 SCC 243, is an authority for the proposition that even when

the promoter is a statutory authority and not a private entity, a complaint

against it would lie before the consumer forum at the instance of an aggrieved

home buyer.
40. Constitutionality of the provisions of the CP Act was examined by the Supreme

Court in State of Karnataka v. Vishwabharathi House Building Coop. Society,

reported in (2003) 2 SCC 412. While repelling the challenge, the object and

purpose of the CP Act, laid down in previous decisions, were noted. Pertinent

observations from such decision, in this behalf, read as follows:

“17. The provisions of the said Act clearly demonstrate that it was enacted
keeping in view the long-felt necessity of protecting the common man from
wrongs wherefor the ordinary law for all intent and purport had become
illusory. In terms of the said Act, a consumer is entitled to participate in
the proceedings directly as a result whereof his helplessness against a
powerful business house may be taken care of.
18. This Court in a large number of decisions considered the purport and
object of the said Act. By reason of the said statute, quasi-judicial
authorities have been created at the district, State and Central levels so as
to enable a consumer to ventilate his grievances before a forum where
justice can be done without any procedural wrangles and
hypertechnicalities.
19. One of the objects of the said Act is to provide momentum to the
consumer movement. The Central Consumer Protection Council is also to
be constituted in terms of Section 4 of the Act to promote and protect the
rights of the consumers as noticed hereinbefore.”

41. It is also not disputed before us that but for the enactment of the Building Act

containing sections 6 and 12A, the present controversy may not have emerged,

for, in such case, the home buyer could complain before the appropriate forum

under the CP Act and such complaint would be maintainable without any

question being raised.

42. Section 3 of the CP Act, importantly, provides as follows:

“3. Act not in derogation of any other law.—The provisions of this Act shall
be in addition to and not in derogation of the provisions of any other law for
the time being in force.”
 The plain reading of the aforesaid provision would suggest that the remedy made

available by the CP Act to an aggrieved person is preserved, notwithstanding that

other remedies are available to him under any other valid law.

43. The decision in Vishwabharathi House Building Coop. Society (supra) in

authoritative terms lays down that the remedy made available under the CP Act

supplements and does not supplant the jurisdiction of the civil courts or other

statutory authorities and also that the provisions of the CP Act are required to be

interpreted as broadly as possible. It was held in paragraph 48 that the

consumer forum has jurisdiction to entertain a complaint despite the fact that

other forums/courts would also have jurisdiction to adjudicate upon the lis.

44. In Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha, reported in

(2004) 1 SCC 305, the Supreme Court upon considering section 3 of the CP Act

held as follows:

“12. As per Section 3 of the Act, as already stated above, the provisions of
the Act shall be in addition to and not in derogation of any other provisions
of any other law for the time being in force. Having due regard to the
scheme of the Act and purpose sought to be achieved to protect the interest
of the consumers better, the provisions are to be interpreted broadly,
positively and purposefully in the context of the present case to give
meaning to additional/extended jurisdiction, particularly when Section 3
seeks to provide remedy under the Act in addition to other remedies
provided under other Acts unless there is a clear bar.”

45. Not too long ago, the Supreme Court once again in Virender Jain v. Alaknanda

Cooperative Group Housing Society Limited, reported in (2013) 9 SCC 383,

reiterated that the remedy under the CP Act is in addition to the remedies
 available under other statutes and the availability of alternative remedies is not a

bar to entertaining a complaint filed under the CP Act.

46. Having dwelled on the Building Act and the CP Act, to the extent relevant, it is

time to enter into the arena of the bar created by section 12A of the former Act.

The discussion following would relate to the first aspect mentioned above.

47. The marginal note of section 12A though uses the term ‘court’, the text of the

main provision is that a ‘civil court’ is barred from receiving and trying a suit

involving matters arising under any provision of the Building Act or the rules

made thereunder. Law is well settled that a marginal note can neither override

the text of the statutory provision nor control the specific meaning of a word in

the text. Therefore, the bar referred to in section 12A is referable to a ‘civil court’

and not to a ‘court’.

48. This being the unambiguous position, the contentions of Mr. Jha and Mr.

Bardhan that the fora created under the CP Act are ‘civil courts’ and an original

proceeding initiated before it by lodging a ‘complaint’ is in the nature of a suit are

required to be examined now.

49. We start with Black’s Law Dictionary. There, it is said that ‘Court’ is an organ of

the Government belonging to the judicial department whose function is the

application of the laws to controversies brought before it and the public

administration of justice. It further appears therefrom that courts may be

classified and divided according to several methods. Of them, civil courts are

established for the adjudication of controversies between individual parties, or

the ascertainment, enforcement and redress of private rights.

50. In S.A.L. Narayan Row v. Ishwarlal Bhagwandas, reported in AIR 1965 SC

1818, a Constitution Bench of the Supreme Court was seized of the question as

to whether a proceeding taken for recovery of a tax is ‘other proceeding’ or a ‘civil

proceeding’ under Article 132(1) of the Constitution. It was held that the

concerned proceeding is a ‘civil proceeding’ within the meaning of such provision.

It was further held that a proceeding in which relief is claimed against action of

Revenue Authorities is included in ‘civil proceeding’ and not in ‘other proceeding’

within the meaning of Article 132(1). A passage from such decision, providing

useful guidance on different kinds of proceedings, is quoted below:

“8. *** The expression ‘civil proceeding’ is not defined in the Constitution,
nor in the General Clauses Act. The expression in our judgment covers all
proceedings in which a party asserts the existence of a civil right conferred
by the civil law or by statute, and claims relief for breach thereof. A
criminal proceeding on the other hand is ordinarily one in which if carried
to its conclusion it may result in the imposition of sentences such as
death, imprisonment, fine or forfeiture of property. It also includes
proceedings in which in the larger interest of the State, orders to prevent
apprehended breach of the peace, orders to bind down persons who are a
danger to the maintenance of peace and order, or orders aimed at
preventing vagrancy are contemplated to be passed. But the whole area of
proceedings, which reach the High Courts is not exhausted by classifying
the proceedings as civil and criminal. There are certain proceedings which
may be regarded as neither civil nor criminal. For instance, proceeding for
contempt of court, and for exercise of disciplinary jurisdiction against
lawyers or other professionals, such as Chartered Accountants may not fall
within the classification of proceedings, civil or criminal. But there is no
warrant for the view that from the category of civil proceedings, it was
intended to exclude proceedings relating to or which seek relief against
enforcement of taxation laws of the State. The primary object of a taxation
statute is to collect revenue for the governance of the State or for providing
specific services and such laws directly affect the civil rights of the tax-
payer. If a person is called upon to pay tax which the State is not
competent to levy, or which is not imposed in accordance with the law
which permits imposition of the tax, or in the levy, assessment and
collection of which rights of the tax-payer are infringed in a manner not
warranted by the statute, a proceeding to obtain relief whether it is from
 the tribunal set up by the taxing statute, or from the civil court would be
regarded as a civil proceeding. The character of the proceeding, in our
judgment, depends not upon the nature of the tribunal which is invested
with authority to grant relief, but upon the nature of the right violated and
the appropriate relief which may be claimed. A civil proceeding is,
therefore, one in which a person seeks to enforce by appropriate relief the
alleged infringement of his civil rights against another person or the State,
and which if the claim is proved would result in the declaration express or
implied of the right claimed and relief such as payment of debt, damages,
compensation, delivery of specific property, enforcement of personal rights,
determination of status etc.”

(underlining for emphasis by us)

51. It thus seems to be clear that an action brought to enforce, redress or protect

private rights conferred by the civil law or by statute is a ‘civil action’. Therefore,

a civil action once brought before a ‘Court’ and received by it for decision is

regarded as a ‘civil proceeding’.

52. There can, thus, be no doubt that a proceeding brought before a forum created

by the CP Act would be a civil proceeding but the all-important question is

whether such forum is a ‘Court’ or not.

53. The authority to create ‘Courts’ is an attribute of sovereignty; such power to

create ‘Courts’, in India, can be exercised under the Constitution or under a

constitutionally valid statute. “Court” is a generic term and other terms like

‘Constitutional Courts’, ‘Civil Courts’, ‘Criminal Courts’, ‘Revenue Courts’,

‘Labour Courts’, etc. are species of this term.

54. At this stage, a brief reference ought to be made to ‘civil courts’ functional in this

State. The relevant enactment governing ‘civil courts’ is the Bengal, Agra and

Assam Civil Courts Act, 1887 (hereafter the Civil Courts Act). Section 3 of the

Civil Courts Act classifies courts into courts of (i) District Judge; (ii) Additional
 Judge; (iii) Civil Judge (Senior Division); and (iv) Civil Judge (Junior Division).

Section 13 of the Civil Courts Act is relatable to the local limits of jurisdiction of

any such civil court. The power of these courts to take cognizance of civil suits

and to try and decide the same flows from the Code of Civil Procedure (hereafter

the CPC). It is of some significance to note that once it is decided according to law

that there is requirement of more ‘civil courts’, such courts are created and

notified by the Government of West Bengal in the Judicial Department which is

the controlling department. It is the same department that issues notification

appointing judges to preside over the ‘civil courts’. However, the notifications by

which creation of the State Commission and the District Fora had been made

known to the public were not issued by the Judicial Department, Government of

West Bengal but by the Government in the Food and Supplies Department which

was then the controlling department. Presently, it is the Consumer Affairs

Department of the Government, the controlling department, which has been

issuing notifications with regard to filling up of vacancies in the State

Commission and the District Fora as well as creation of additional

benches/circuit benches thereof. If indeed the fora created by the CP Act were to

be regarded as “courts”, we doubt whether any department of the Government

other than the Judicial Department could have issued such notifications.

55. This is one reason for which we are not persuaded to agree with Mr. Jha and Mr.

Bardhan that the consumer fora available in this State, created in terms of the

CP Act, are ‘Courts’.

56. There is one other weighty reason. If the District Forum or the State Commission

or the National Commission created by the CP Act are not ‘courts’, what then is

their status? We have to take a few steps backward in point of time to find the

answer. With the increase of population over the years, disputes increased

manifold. The ‘civil courts’ that were available were insufficient to cater to the

need of the litigants who approached it. With passage of time, realization having

dawned on the Government of the day that proceedings brought before ‘civil

courts’ in respect of civil actions take a long time to conclude, thereby benefiting

a wrong doer and frustrating the party seeking justice, the idea of constituting

special tribunals to deal with specified subjects developed. This resulted in

creation of specialized tribunals ostensibly to accelerate delivery of justice to the

justice seeker. Having regard to the special nature of dispute that is brought

before a tribunal, the proceedings before it could well partake the character of

civil proceedings which, in the absence of such tribunals, could have been

received and tried by the civil courts. Since reducing the burden of the ‘civil

courts’ was the paramount object, the competent legislature invariably engrafted

a provision in the enactment providing for exclusion of the jurisdiction of the

‘civil courts’ in respect of any matter which under such statute is required to be

received and tried by the specialized tribunal. The fora created by the CP Act,

without doubt, are such 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.

57. In Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in (1995)

3 SCC 583, views have been expressed that the CP Act has created fora for

decisions in respect of consumer disputes, which are not ‘Courts’ but quasi-

judicial bodies or authorities or agencies invested with some of the powers of a

‘civil court’.

58. There are, however, certain fundamental differences between a ‘civil court’ and a

‘tribunal’ of the nature created by the CP Act. A Constitution Bench of the

Supreme Court in Union of India v. Madras Bar Association, reported in (2010)

11 SCC 1, traced the differences between courts and tribunals and held as

follows:

“45. Though both courts and tribunals exercise judicial power and
discharge similar functions, there are certain well-recognised differences
between courts and tribunals. They are:
(i) Courts are established by the State and are entrusted with the State’s
inherent judicial power for administration of justice in general. Tribunals
are established under a statute to adjudicate upon disputes arising under
the said statute, or disputes of a specified nature. Therefore, all courts are
tribunals. But all tribunals are not courts.
(ii) Courts are exclusively manned by Judges. Tribunals can have a
Judge as the sole member, or can have a combination of a judicial member
and a technical member who is an ‘expert’ in the field to which the tribunal
relates. Some highly specialised fact-finding tribunals may have only
technical members, but they are rare and are exceptions.
(iii) While courts are governed by detailed statutory procedural rules, in
particular the Code of Civil Procedure and the Evidence Act, requiring an
elaborate procedure in decision-making, tribunals generally regulate their
own procedure applying the provisions of the Code of Civil Procedure only
where it is required, and without being restricted by the strict rules of the
Evidence Act.”
59. A few months prior to the aforesaid decision, while rendering its decision in

Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking

Corpn., reported in (2009) 8 SCC 646, the Supreme Court was in seisin of the

question as to whether it or the High Court has the power to transfer a suit

pending in a ‘civil court’ situated in one State to a Debts Recovery Tribunal

situated in another. Upon consideration of such question, it was observed, inter

alia, as follows:

“67. The terms ‘tribunal’, ‘court’ and the ‘civil court’ have been used in the
Code differently. All ‘courts’ are ‘tribunals’ but all ‘tribunals’ are not
‘courts’. Similarly all ‘civil courts’ are ‘courts’ but all ‘courts’ are not ‘civil
courts’. It is not much in dispute that the broad distinction between a
‘court’ and a ‘tribunal’ is whereas the decision of the ‘court’ is final the
decision of the ‘tribunal’ may not be. The ‘tribunal’, however, which is
authorised to take evidence of witnesses would ordinarily be held to be a
‘court’ within the meaning of Section 3 of the Evidence Act, 1872. It
includes not only Judges and Magistrates but also persons, except
arbitrators, legally authorised to take evidence. It is an inclusive definition.
There may be other forums which would also come within the purview of
the said definition.
***
69. Civil court is a body established by law for administration of justice.
Different kinds of law, however exist, constituting different kinds of courts.
Which courts would come within the definition of the civil court has been
laid down under the Code of Civil Procedure itself. Civil courts
contemplated under Section 9 of the Code of Civil Procedure find mention
in Sections 4 and 5 thereof. Some suits may lie before the Revenue Court,
some suits may lie before the Presidency Small Cause Courts. The Code of
Civil Procedure itself lays down that the Revenue Courts would not be
courts subordinate to the High Court.”
***
71. Civil courts are constituted under statutes, like the Bengal, Agra and
Assam Civil Courts Act, 1887. Pecuniary and territorial jurisdiction of the
civil courts are fixed in terms thereof. Jurisdiction to determine subject-
matter of suit, however, emanates from Section 9 of the Code.
***
73. *** the word “civil court” vis-à-vis a court must be construed having
regard to the text and context of the statute.
 ***
88. We have noticed hereinbefore that civil courts are created under
different Acts. They have their own hierarchy. They necessarily are
subordinate to the High Court. The appeals from their judgment will lie
before a superior court. The High Court is entitled to exercise its power of
revision as also superintendence over the said courts. For the
aforementioned purpose, we must bear in mind the distinction between two
types of courts viz. civil courts and the courts trying disputes of civil
nature. Only because a court or a tribunal is entitled to determine an issue
involving civil nature, the same by itself would not lead to the conclusion
that it is a civil court. For the said purpose, as noticed hereinbefore, a legal
fiction is required to be created before it would have all attributes of a civil
court.”

(underlining for emphasis by us)

60. Reference made by Mr. Mukherjee and Mr. Drolia to the decisions of the Supreme

Court in Malay Kumar Ganguli v. Sukumar Mukherjee (Dr.), reported in (2009)

9 SCC 221 and Kishore Lal v. Chairman Employees’ State Insurance

Corporation, reported in (2007) 4 SCC 579, respectively, appear to offer useful

guidance for the purpose of deciding the reference.

61. Paragraph 43 of the decision in Malay Kumar Ganguli (supra) reads as follows:

“54. ***** The proceedings before the National Commission are although
judicial proceedings, but at the same time it is not a civil court within the
meaning of the provisions of the Code of Civil Procedure. It may have all the
trappings of the civil court but yet it cannot be called a civil court.”

62. In Kishore Lal (supra), a Bench of three learned Judges of the Supreme Court

was considering whether the subject dispute could be resolved by the civil court

despite a forum made available by the Employees’ State Insurance Act, 1948

(hereafter the ESI Act). After noticing previous decisions, it had the occasion to

observe as follows:
 “17.***** The trend of decisions of this Court is that the jurisdiction of the
consumer forum should not and would not be curtailed unless there is an
express provision prohibiting the consumer forum to take up the matter
which falls within the jurisdiction of Civil Court or any other forum
established under some enactment. The Court had gone to the extent of
saying that if two different fora have jurisdiction to entertain the dispute in
regard to the same subject, the jurisdiction of the consumer forum would
not be barred and the power of the consumer forum to adjudicate upon the
dispute could not be negated.”

In paragraph 21 of the said decision, it was also held by the Court that the

jurisdiction of the consumer forum is not ousted by virtue of sub-sections (1) or

(2) or (3) of section 75 of the 1948 Act. Significantly, sub-section (3) of section 75

prohibits a ‘civil court’ to decide or deal with any question or dispute as in sub-

sections (1) and (2) or to adjudicate any liability which by or under the 1948 Act

is to be decided by a medical board, or by a medical appeal tribunal or by the

Employees’ Insurance Court.

63. In view of our discussion as above as well as the authorities that we have noted,

the conclusion is inescapable that the consumer 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.

64. Having so concluded, we move on to the second aspect, i.e., to ascertain the

legislative intent upon comparison of the provisions of section 12A of the

Building Act and section 145 of the 2006 Act.

65. In M. Lalitha (supra), the Supreme Court was considering the question as to

whether the complaint lodged before the district forum was maintainable having

regard to the provisions of Sections 90 and 156 of the Tamil Nadu Cooperative
Societies Act, 1983. Upon consideration of the provisions of the CP Act, the Court

proceeded to observe as follows:

“18. The decision in Dhulabhai case, AIR 1969 SC 78, also does not help the
appellant. The present case is not one where the question to be considered is
as to the exclusion of jurisdiction of the civil court in view of the provisions of
Section 90 read with Section 156 of the Act. Provisions of the 1986 Act, as
already made clear above, apply in addition to the other provisions available
under other enactments. It follows that the remedies available under the 1986
Act for redressal of disputes are in addition to the available remedies under
the Act. Under the 1986 Act we have to consider as regards the additional
jurisdiction conferred on the forums and not their exclusion. In Dhulabhai
case consideration was whether the jurisdiction of the civil court was
excluded. Propositions (1) and (2) indicate that where the statute gives a
finality to the orders of the Special Tribunals, the jurisdiction of civil courts
must be held to be excluded if there is adequate remedy to do what the civil
courts would normally do in a suit. Further, where there is an express bar on
the jurisdiction of the court, an examination of the scheme of the particular
Act to find the adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the civil court. The
remedies that are available to an aggrieved party under the 1986 Act are
wider. For instance, in addition to granting a specific relief the forums under
the 1986 Act have jurisdiction to award compensation for the mental agony,
suffering etc. which possibly could not be given under the Act in relation to
dispute under Section 90 of the Act. Merely because the rights and liabilities
are created between the members and the management of the society under
the Act and forums are provided, it cannot take away or exclude the
jurisdiction conferred on the forums under the 1986 Act expressly and
intentionally to serve a definite cause in terms of the objects and reasons of
the Act, reference to which is already made above. When the decision of
Dhulabhai case was rendered, the provisions similar to the 1986 Act providing
additional remedies to parties were neither available nor considered. If the
argument of the learned counsel for the appellant is accepted, it leads to
taking away the additional remedies and forums expressly provided under the
1986 Act, which is not acceptable.
19. The question of conflict of decisions may not arise. If the parties approach
both the forums created under the Act and the 1986 Act, as indicated in the
case of Fair Air Engineers (P) Ltd. it is for the forum under the 1986 Act to
leave the parties either to proceed or avail the remedies before the other
forums, depending on the facts and circumstances of the case.”

(underlining for emphasis)

66. The decision in M. Lalitha (supra) was rendered on December 11, 2003. At that

point of time, the West Bengal Cooperative Societies Act, 1983 (hereafter the

1983 Act) was in force. Section 95 of the 1983 Act provided for reference of

disputes of the nature mentioned therein to the Registrar for reconciliation,

whereas section 134 thereof created the bar of jurisdiction exercisable by a Civil

Court or a Revenue Court in regard to anything done or any action taken or any

order passed under such Act including a dispute required to be referred to the

Registrar under section 95. The 1983 Act was repealed by the 2006 Act. The

provision regarding reference of disputes to the Registrar for decision has now

been engrafted in Chapter 11 titled ‘Statement of dispute’. While section 102 of

the 2006 Act requires disputes to be filed before the Registrar, section 103

thereof mandates the State Government to constitute a board of arbitrators.

Section 145 of the 2006 Act has the marginal note ‘Indemnity and bar to

jurisdiction of Courts’. Sub-section (2) thereof, to the extent relevant, reads as

follows :

“Save as provided in this Act, no Civil Court or Revenue Court or

Consumer Disputes Redressal Forum shall have jurisdiction in regard to
anything done or any action taken or any order passed under this Act and,
IN particular, in regard to………”

67. With the introduction of the words “Consumer Disputes Redressal Forum” in

sub-section (2) of section 145 of the 2006 Act, the appropriate consumer forum

in the State of West Bengal would be denuded of the jurisdiction to try a dispute

of the nature mentioned therein notwithstanding the decision in M. Lalitha

(supra).
68. The language of 12A of the Building Act is, however, clear as crystal. The

jurisdiction of the ‘civil court’ is barred thereby, and not that of the fora created

by the CP Act, although Mr. Jha and Mr. Bardhan have urged, as noted above,

that the fora created by the CP Act are ‘civil courts’ within the meaning of section

12A. It is because of such contention that section 12A calls for an appropriate

interpretation. In so interpreting, the legislative intent has to be ascertained. The

legislature, in its wisdom, did not include the words “Consumer Disputes

Redressal Forum” in section 12A of the Building Act, though the same words are

to be found in the subsequent legislation, i.e., the 2006 Act. That the subsequent

legislation deals with a different subject is not really of any consequence. What is

important and relevant is that both legislations, enacted by the legislative

assembly of this State, while excluding jurisdiction have expressed clear

intentions of what exactly is excluded. Inclusion of the words “Consumer

Disputes Redressal Forum” in sub-section (2) of section 145 of the 2006 Act

clearly suggests the legislative intent to exclude the jurisdiction of the consumer

fora in relation to disputes arising under the 2006 Act from the purview of the CP

Act. If indeed the legislative intent were such that the fora created by the CP Act

would not be empowered to entertain a dispute between a home buyer and a

promoter under the Building Act, such intent could have been clearly expressed

in section 12A in the same manner as expressed in section 145 of the 2006 Act.

The legislative intent being clearly discernible qua the bar created by section 12A

of the Building Act on the one hand and section 145 of the 2006 Act on the other,

it can safely be held 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.

69. The time is now ripe to consider the decisions in Rita Das (supra), Bithi Das

(supra), Krishna Abason Pvt. Ltd. (supra) and Khurshid Ahmed Ansari (supra)

as well as the decisions cited by Mr. Jha and Mr. Bardhan.

70. In Rita Das (supra), the learned Judge was seized of two questions, viz. (i)

whether the consumer forum is competent to grant the decree for specific

performance of an agreement for sale of an immovable property and (ii) whether

section 12A of the Building Act creates an embargo for the consumer forum to

receive a complaint. Considering the decision of the Supreme Court in France B.

Martins v. Mafalda Maria Teresa Rodrigues, reported in (1999) 6 SCC 627, and

a decision of the Division Bench of this Court in Mandira Mookerjee v. District

Consumer Disputes Redressal Forum, reported in 2005 (4) CHN 694, as well as

other decisions, the learned Judge answered both the questions, as aforesaid, in

the affirmative. Placing reliance on the decision in Arvind Mills Limited v.

Associated Roadways Limited, reported in (2004) 11 SCC 545, the learned

Judge observed in paragraph 25 as follows:

“Thus even if the remedies under the Consumer Protection Act is in

addition to and not in derogations with any other law but while granting
such remedy, the forum cannot bypass the relevant provisions of the
special statute and usurp unlimited jurisdiction. Upon being excluded
expressly if the Civil Court does not have jurisdiction, the consumer forum
cannot exercise jurisdiction under Section 3 of the said Act.”
 The learned Judge further held the decision of another learned Judge of this

Court in In Re: State Transport Authority, reported in 1991 (2) CHN 131, to

the effect that neither the District Forum nor the State Commission has the

trappings of a civil court, not to be good law in view of SBP Company (supra).

Considering the decision in M. Krishnan (supra) and upon quoting a particular

paragraph therefrom, the learned Judge held in paragraph 30 as follows:

“Thus, in view of the specific 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. ***”

71. We find it difficult to agree with the learned Judge on the point of exclusion of the

CP Act to a dispute covered by the Building Act. Arvind Mills Limited (supra) is

an authority for the proposition that notwithstanding section 3 of the CP Act, a

notice under section 10 of the Carriers Act, 1865 is a pre-condition for lodging a

complaint under the CP Act. Such decision could not have been relied upon to

record the conclusion in paragraph 25, extracted supra. Further, M/s. SBP

Company (supra), is not a direct decision dealing with the CP Act. Decisions of

the Supreme Court dealing with the CP Act, referred to above, have

authoritatively laid down the law that despite having the trappings of a civil

court, the fora created by the CP Act are not civil courts. In our considered

opinion, State Transport Authority (supra) correctly decided that the complaint

before the District Forum was not maintainable at the instance of a person

seeking to obtain a permit from the relevant transport authority to operate a

stage carriage service; the complainant was neither buying goods nor hiring any
 service, hence he was not a consumer and grant of permit does not amount to

service rendered by the authority, within the meaning of the CP Act. In M.

Krishnan (supra), the Telegraph Act, 1885 was under consideration and not the

CP Act. When there are decisions of the Supreme Court in the field that the

remedy under the CP Act is an additional remedy, which the consumer as defined

in section 2(d) of the CP Act may pursue notwithstanding remedies provided by

other statutes, the decision in M. Krishnan (supra) could have easily been

distinguished. The embargo created by section 12A of the Building Act at the

highest is applicable so far as civil courts are concerned, but in our view would

not extend to the remedy made available by the CP Act.

72. Bithi Das (supra) is also a decision which proceeded on the basis that the

Building Act is a special statute and that it “has an overriding effect”. The learned

Judge also held that the dispute arising for decision was fully covered by the

Building Act thereby rendering the complaint before the appropriate consumer

forum not maintainable. In paragraph 14, the learned Judge held as follows:

“The Court of Forum shall not pass a decree which cannot be executed at
all. From that angle also the said complaint before the District Forum and
its appeal before the Appellate Authority, in my view, are not maintainable
at all. So, both the District Forum and the State Commission have acted
without jurisdiction. In such a situation, this Hon’ble Court can well
interfere ***”

We do not find in Bithi Das (supra) proper consideration of section 3 of the CP

Act. Moreover, it was not considered that the authorized officer acting under

section 6 of the Building Act has not even been conferred powers akin to powers

conferred on the consumer fora by sub-sections (4), (5) and (6) of section 13 of
 the CP Act. Also, the learned Judge did not consider the aspect of relief (that

could be extended to an aggrieved home buyer upon his establishment of the

claim before the authorized officer under the Building Act and the rules framed

thereunder) to be woefully inadequate qua the relief that could be extended

under the CP Act by the consumer fora. However, we need not dilate much on the

topic of relief that could be had under the provisions of the Building Act since

under the provisions of the CP Act, as held in Rita Das (supra) upon considering

France B. Martins v. Mafalda Maria Teresa Rodrigues (supra) and Mandira

Mookerjee (supra), the consumer forum is competent to grant the decree for

specific performance of an agreement for sale of an immovable property.

73. In Krishna Abason Private Limited (supra), the learned Judge referred to the

decision in Narayan Chandra Ghosh (supra) and observed that the ratio thereof

had been considered in Rita Das (supra). The learned Judge also observed that

M/s SBP and Company (supra) ruled that the district forum has the trapping of

a civil court. Having regard to the explicit bar created by section 12A of the

Building Act, the complaint before the relevant consumer forum was held to be

not maintainable.

74. The learned Judge who decided Khurshid Ahmed Ansari (supra) was also the

author of the decision in Krishna Abason Private Limited (supra). In view of the

reasons assigned in the latter decision, the complaint in question was held to be

not maintainable.
75. For the reasons we have assigned to express our inability to concur with the

decision in Rita Das (supra) on the point of exclusion of jurisdiction, we record

our inability to agree with the other decisions too which followed the same.

76. Pertinently, it does appear on reading of all these decisions that the learned

Judges’ attention were not drawn to Malay Kumar Ganguly (supra), where it was

specifically held that the National Commission may have all the trappings of civil

courts, yet, it is not a civil court and Kishor Lal (supra) which recognises the

authority of the fora under the CP Act to receive complaints notwithstanding

availability of a forum under any other enactment and the absence of any express

bar in such enactment prohibiting the consumer fora to entertain any complaint.

77. In our view, the maxim leges posteriores priores contraias abrogant postulates an

inconsistency between two statutes, one which is a general statute and the other

a special statute, and in case of such inconsistency that cannot be reconciled,

the general statute would have to yield to the special statute. Apart from the legal

position that emerges on a reading of the Building Act and CP Act that there is no

inconsistency and that the two statutes provide different fora for resolution of a

dispute between a home buyer and a promoter, ~ and which can co-exist in the

absence of a clear indication in the special statute that remedy available under

any other statute is excluded, there is absolutely no reason as to why existence of

different fora under a general statute and a special statute should ipso facto lead

to the conclusion that the forum created by the general statute would stand

excluded. There is no warrant for the proposition that the forum created by the

CP Act is a ‘civil court’, and therefore, the bar of section 12A of the Building Act
 would not be applicable to proceedings before the consumer forum under the CP

Act. The decisions in Rita Das (supra), Bithi Das (supra), Krishna Abason

Private Limited (supra) and Khursid Ahmad Ansari (supra) holding, to the

contrary, do not lay down correct law.

78. The decisions in Fair Air Engineers Private Limited (supra), M/s SBP and

Company (supra) and Ethiopian Airlines (supra) have been duly perused and

the ratio decidendi thereof noted. Such decisions do not aid Mr. Jha at all for a

decision on the present controversy for the reasons aforesaid.

79. In SBP and Company (supra), the question arising for decision of the

Constitution Bench, upon divergence of views expressed by two benches, is noted

in paragraph 2 reading as follows:

“2. What is the nature of the function of the Chief Justice or his designate
under Section 11 of the Arbitration and Conciliation Act, 1996 is the
question that is posed before us. ***”

The majority concluded that the power exercised by the Chief Justice of the High

Courts and the Chief Justice of India under section 11(6) is a judicial power.

80. This decision was cited by Mr. Jha to show that the view expressed in Fair Air

Engineers (P) Ltd. (supra) to the effect that a ‘court’ defined in section 2(e) of the

Arbitration Act would include a special tribunal like the consumer forum, was

approved. The said decision did not directly deal with the CP Act and hence any

observation therein with regard to the fora created by the CP Act may not

constitute a binding precedent within the meaning of Article 141 of the

Constitution of India.
81. The central questions referred for the decision of the larger bench in Ethiopian

Airlines (supra) were whether the appellant could claim sovereign immunity as

also whether proceedings before the consumer forum are suits. The question was

answered in the affirmative considering the provisions of the Carriage by Air Act,

1972 as well as several foreign and Indian decisions. However, it was also held

that section 86 of the CPC does not apply to proceedings under the CP Act and

hence, the complaint of the respondent before the State Commission is

maintainable, as held by the National Commission.

82. Similarly, the decisions in Satyawati Tondon (supra), Trans Mediterranean

Airways (supra) and Anis Ahmad (supra) turn on the facts before the Courts and

are distinguishable having regard to the relevant statutory provisions under

consideration there.

83. Our conclusion in regard to the decisions cited by Mr. Bardhan is also the same.

Such decisions do not persuade us to hold otherwise.

84. Now we move on to consider the last aspect as to whether in respect of any

question relating to matters arising under any provision of the Building Act, the

jurisdiction of the ‘civil court’ is barred or not. Obviously, on a plain reading of

section 12A of the Building Act, an impression is likely to be created that the

jurisdiction to approach the ‘civil court’ would be barred in respect of a matter

arising out of any provision of the Building Act and the Building Rules.

85. In fact, a coordinate Bench of this Court in Narayan Chandra Ghosh (supra),

was of the view (on reading the plaint as a whole) that the relevant civil court had

rightly not entertained the dispute raised by the plaintiffs in their plaint having
 regard to the bar created by section 12A of the Building Act, which was an

explicit bar. The plaint revealed that in terms of the agreement entered into by

and between the parties, the plaintiffs had made full payment of the

consideration money to the promoter but the promoter was not complying with

the terms of the agreement.

86. While there can be no disagreement with the view expressed in Narayan Chandra

Ghosh (supra) since the pleaded case in the plaint there led to the conclusion

that the suit was not maintainable before the ‘civil court’, and it is a course of

action that is to be adopted whenever an objection of exclusion of the jurisdiction

of the ‘civil court’ is raised, we are left to wonder what would be the position 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? Would the jurisdiction of

the ‘civil court’ be still excluded even though there has been non-compliance with

the provisions of the Building Act by the promoter? Can a promoter who defaults

in complying with the provisions of the Building Act by not obtaining

registration/permission to construct, have any right to object to the ‘civil court’

receiving and trying a suit which could have been a subject of dispute before the

authorized officer under section 6 provided the promoter is not a defaulter? What

would be the effect of an omission or a failure of the promoter to obtain

registration or permission to construct under the Building Act, if pleaded in the

plaint as a factor to overcome the bar created by section 12A of the Building Act?
 These are questions arising incidentally in course of the reference and we

propose to answer it here.

87. Exclusion of the jurisdiction of the ‘civil court’ is not to be readily inferred, is

settled law. However, law is also well settled that if the jurisdiction of the ‘civil

court’ is barred by a statute either expressly or by necessary implication, the bar

in section 9 of the CPC would come into play.

88. In view of the proviso to clause (g) of section 2 of the Building Act, any person

who constructs or causes to be constructed a building consisting of flats in

excess of the requirements of the members of his family would be deemed to be a

promoter and such promoter is bound to obtain registration and permission for

construction. If he fails to so obtain, he commits an offence within the meaning of

section 13A and is liable to punishment, on conviction, under section 13B of the

Building Act. The Supreme Court in Sri Vedagiri Lakshmi Narasimha Swami

Temple v. Induru Pattabhirami Reddi, reported in AIR 1967 SC 781, while

reiterating that under section 9 of the CPC the courts shall have jurisdiction to

try all suits of a civil nature excepting suits of which their cognizance is either

expressly or implied barred observed immediately thereafter that it “is a well

settled principle that a party seeking to oust the jurisdiction of an ordinary civil

court shall establish the right to do so”. This observation raises a couple of

questions. The first is, can this observation of establishing “the right to do so” be

read as requiring the objector not only to show that he has a right to object to a

civil court receiving a suit under the particular statute, but also that whatever is

required of him by such statute has been performed by him thereby enabling him
to raise such objection? Secondly, since any person who either does not obtain

registration or does not obtain permission to construct in terms of the Building

Act is a violator of the statute, can such a violator (to escape a determination by

the civil court of the rights and liabilities of the parties) urge that the jurisdiction

of the civil court would be excluded if a civil suit is instituted by a home buyer

complaining of such violation and with an allegation that he has been duped into

purchasing a flat/apartment construction of which might have commenced or

even concluded without even the requisite permission? We venture to answer

these questions based on our understanding of the subject. If a statute casts an

obligation on a person, it is the duty of such person to discharge such obligation.

In our view, if such person does not discharge the obligation that is required of

him by the statute, to the extent of such non-discharge, the person is deprived of

the protection conferred upon him by the statute in question. In such a case, the

violator (read the promoter) will make himself liable to the remedies available to

an aggrieved (read the home buyer) before any forum including the civil court. We

draw support for this proposition of law from the decision of the Supreme Court

in Devendra Kumar v. State of Uttaranchal, reported in (2013) 9 SCC 363,

where in the context of a wrong statement made by an aspirant for a post in the

verification roll, it has been held as follows:

“25. *** A person having done wrong cannot take advantage of his own
wrong and plead bar of any law to frustrate the lawful trial by a competent
court. In such a case the legal maxim nullus commodum capere potest de
injuria sua propria applies. The persons violating the law cannot be
permitted to urge that their offence cannot be subjected to inquiry, trial or
investigation. (Vide Union of India v. Major General Madan Lal Yadav,
(1996) 4 SCC 127 and Lily Thomas v. Union of India, (2000) 6 SCC 224.) Nor
 can a person claim any right arising out of his own wrongdoing (jus ex
injuria non oritur).”

Similar view has been expressed by the Supreme Court in Eureka Forbes Ltd. v.

Allahabad Bank, reported in (2010) 6 SCC 193, and Ashok Kapil v. Sana Ullah,

reported in (1996) 6 SCC 342, and the maxim nullus commodum capere potest de

injuria sua propria has been held to be one of the salient tenets of equity.

89. More so, if a case of fraud is set up against the promoter, and relief is claimed

based on such pleading, we see no reason as to why the civil court’s jurisdiction

should be excluded in such a situation. It is true that the Building Act while

creating a forum under section 6 and barring the jurisdiction of the ‘civil court’

under section 12A does not provide, either expressly or impliedly, that a dispute

brought by a home buyer against a non-registered promoter or a promoter who

has not obtained the permission to construct would not be maintainable under

section 6 but nothing really turns on it. It is up to the home buyer to choose his

forum in such a case which would, in terms of the conclusions reached by us,

include a ‘civil court’.

90. We, accordingly, rule that the decision in Narayan Chandra Ghosh (supra) would

hold the field in a case where it is not pleaded in the plaint that the promoter has

violated the provisions of section 3(1) of the Building Act; however, in a case

where the violation of section 3(1) is pleaded, a promoter may not have the right

to claim ouster of the jurisdiction of the ‘civil court’, and a breach of the

agreement between the parties by such a promoter could give rise to a right of
 action in a ‘civil court’. Ultimately, it would be for the court before whom the suit

is instituted to judiciously exercise its powers of receiving a suit.

91. For the foregoing reasons, we hold that the fora under the CP Act is competent to

receive a complaint from a home buyer against a promoter if the former has any

grievance against the latter in respect of services provided pertaining to purchase

of a flat/apartment.

92. 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.

93. Before parting, we ought to place on record that the decision in Cicily

Kallarackal v. Vehicle Factory, reported in (2012) 8 SCC 524, was cited on

behalf of the home buyers to urge that the civil revisional applications/writ

petitions at the instance of the promoters before this Court were not

maintainable in view of the alternative remedy of appeal/revision provided by the

CP Act that could be pursued by them. Having regard to the caution sounded in

Cicily Kallarackal (supra) and circulation of the decision amongst the learned

Judges of the High Courts the country over, a word or two about the jurisdiction

conferred by Article 226 of the Constitution on the High Courts and discussion of

certain relevant decisions in relation thereto, may not be inapt. From the

discussions that follow hereafter, it may not be understood even impliedly that

the decision in Cicily Kallarackal (supra) should not demand the deference that

is so very intrinsically associated with pronouncements of the Supreme Court but

 as far as its applicability is concerned, the party relying on it might have to

justify his point with the support of established principles of law.

94. The basic issue in Cicily Kallarackal (supra) was whether the Kerala High Court

did have the jurisdiction to entertain the writ petition against the judgment and

order passed by the National Commission, since such order could be challenged

before the Supreme Court in view of the provisions of the CP Act. It was

contended on behalf of the petitioner that the order of the High Court impugned

before the Supreme Court was a nullity for want of jurisdiction. So far as the

issue of jurisdiction is concerned, the Bench ruled in paragraph 3 that the

“learned counsel for the petitioner is right that the High Court had no jurisdiction to

deal with the matter against the order of the Commission” (underlined for

emphasis by us). This was followed by observations in paragraph 4 that read:

4.***, we cannot help but state in absolute terms that it is not appropriate
for the High Courts to entertain writ petitions under Article 226 of the
Constitution against the orders passed by the Commission, as a statutory
appeal is provided and lies to this Court under the provisions of the
Consumer Protection Act. Once the legislature has provided for a statutory
appeal to a higher court, it cannot be proper exercise of jurisdiction to
permit the parties to bypass the statutory appeal to such higher court and
entertain petitions in exercise of its powers under Article 226 of the
Constitution of India. ***”

(underlining for emphasis by us)

95. It is further found from paragraph 9 of the said decision that the Bench sought to

make it clear that the orders of the National Commission are incapable of being

questioned under the writ jurisdiction of the High Court as a statutory appeal in

terms of section 27-A(1)(c) lies to the Supreme Court. The direction of caution,

referred to earlier, was accordingly issued that it would not be appropriate in the
 exercise of jurisdiction by the High Courts to entertain writ petitions against the

orders of the National Commission and copy of the judgment of the Court was

directed to be circulated to all the High Courts.

96. It has been contended by learned advocates for the home buyers that what

applies to orders passed by the National Commission should ex proprio vigore

apply to orders passed by the State Commission and the District Forum. In view

of appellate remedies made available by the CP Act, no challenge to the orders

passed by the State Commission or the District Forum should be entertained by

a bench of this Court under Articles 226/227 of the Constitution of India.

97. The decision in Cicily Kallarackal (supra) states in absolute terms that no

challenge to an order passed by the National Commission should be entertained

by any High Court. Why? The reason, as can be culled out by us therefrom, is

that a remedy of appeal to a higher court, i.e., the Supreme Court is available,

and a litigant aggrieved by an order of the National Commission must pursue the

statutory remedy of appeal before the Supreme Court instead of invoking the

jurisdiction of judicial review by the High Courts.

98. Normally, in the exercise of judicial discretion, a High Court hearing a petition

under Article 226 of the Constitution or an application under Article 227 thereof

may decline to entertain the same if the relevant statute makes an alternative

appellate remedy available. Exhaustion of such remedy is insisted upon or else

the purpose of providing such appellate remedy could be frustrated. Moreover, an

appeal would entitle a party to raise both questions of facts as well as law,

whereas the scope of judicial review or superintendence is limited in the sense

 that in the former, scrutiny would be confined to the decision making process

only and not the decision, and in the latter interference could be made only if

there occasions a grave miscarriage of justice. If indeed the decision in Cicily

Kallarackal (supra) has to be read (in the manner the learned Judges of the

Bench have required learned Judges of the High Courts to read it) as foreclosing

the remedy of judicial review against an order of the National Commission, no

High Court should entertain a writ petition wherein an order of the National

Commission is under challenge. This is so, because an appeal lies to a court

higher than the High Courts and hence the latter have no jurisdiction.

99. Thus read, it may not follow from the decision in Cicily Kallarackal (supra) that

the High Courts would have no jurisdiction to entertain writ

petitions/applications under Article 227 of the Constitution questioning orders of

the State Commission or the District Forum. The State Commission and the

District Fora in a particular State are quasi-judicial bodies inferior to the relevant

High Court and therefore, the special reason for which orders passed by the

National Commission were held in Cicily Kallarackal (supra) to be immune from

challenge before the High Courts would not apply. Therefore, Cicily Kallarackal

(supra) cannot be pressed into service unless an order of the National

Commission is challenged in a writ petition before the High Court.

100. Be that as it may, in our humble view, the ruling in Cicily Kallarackal (supra)

raises more questions than what is answered. Since the oath we have taken

ordains us to uphold the Constitution and the laws, we cannot forget principles

of law supported by decisions of high authority. The dicta in Cicily Kallarackal

 (supra) having appeared to us to be in stark contrast to the law on the point of

entertainability of a writ petition when an alternative remedy is available but not

exhausted by the party approaching the High Court, it made us embark on a

study/research in relation to the scope of writ jurisdiction that the High Courts

of the country exercise, having been conferred the power of judicial review of

decisions of administrative authorities/quasi-judicial bodies not by an ordinary

law but by the Constitution itself, as well as reference to decisions of the

Supreme Court rendered earlier than Cicily Kallarackal (supra) which,

unfortunately, do not appear to have been placed before the relevant Bench for

consideration by the respondents.

101. Under Article 227(1) of the Constitution, the High Courts have the power of

superintendence over all courts and tribunals throughout the territories in

relation to which it exercises jurisdiction. Clauses (2) and (3) of Article 227

contains provisions empowering the High Courts to exercise control over the

courts subordinate to it in the manner as ordained.

102. Reading Article 227 as it is, it admits of no doubt that the National Commission

is not a tribunal over which the High Courts can or may exercise its power of

superintendence. Any application under Article 227 of the Constitution

challenging an order of the National Commission would, therefore, not be

maintainable before a High Court.

103. To our mind, it has never been the law at least prior to Cicily Kallarackal (supra)

and till this date that a writ petition would not be maintainable if the alternative

remedy that is available is not exhausted. The relevant question is that of

 entertainability, and not maintainability. We need not dilate on the fine

distinction here, but nonetheless Cicily Kallarackal (supra) opens up new vistas.

Keeping aside our understanding of the law of writs, it has to be re-read and re-

understood. On such re-reading, we find no provision in the Constitution that

excludes a High Court from exercising jurisdiction and/or its power of judicial

review under Article 226 of the Constitution if an order passed by any quasi-

judicial tribunal having its seat beyond the territorial limits of such High Court

but where the cause of action in part has arisen within such limits, is challenged.

Although elementary, it is to be restated that on a plain reading of clauses (1)

and (2) of Article 226, what appears is that a writ can be issued by a High Court

to any Government or authority or person (i) if the seat of such Government or

authority or the residence of such person is within such court’s territorial limits,

or (ii) if the cause of action, wholly or in part, has arisen within the territorial

limits in relation to which the High Court exercises jurisdiction notwithstanding

that the seat of such Government or authority, or the residence of such person,

is not within such territory.

104. Article 226 of the Constitution does not, in terms, impose any limitation or

restraint on a High Court from entertaining a writ petition if an efficacious

alternative remedy is available to the party approaching it. That a High Court

ought not to entertain a writ petition where an efficacious alternative remedy is

available to such party is part of the several ‘self-imposed restrictions’ evolved by

the Supreme Court in its various pronouncements. Requiring a party to exhaust

the alternative remedy prior to approaching the court of writ is not a rule of law
 but a rule of convenience and discretion which, at any rate, does not oust the

jurisdiction of the Court. If any authority for this proposition is necessary,

reference may usefully be made to the decision in Ram & Shyam Co. v State of

Haryana, reported in (1985) 3 SCC 267. In such decision, the decision of the

Constitution Bench of the Supreme Court in State of U.P. v. Mohammad Nooh,

reported in AIR 1958 SC 86, was relied on wherein the Constitution Bench had

observed “that there is no rule, with regard to certiorari as there is with

mandamus, that it will lie only where there is no other equally effective remedy”.

105. In Whirlpool Corporation v. Registrar of Trade Marks, reported in (1998) 8

SCC1, almost all the precedents on the point of entertainability of a writ petition

where a statutory remedy by way of appeal or revision was available, were

considered. The observations of the Court read thus:

“14. The power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other provision
of the Constitution. This power can be exercised by the High Court not only
for issuing writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari for the enforcement of any of the Fundamental
Rights contained in Part III of the Constitution but also for ‘any other
purpose’.
15. Under Article 226 of the Constitution, the High Court, having regard to
the facts of the case, has a discretion to entertain or not to entertain a writ
petition. But the High Court has imposed upon itself certain restrictions
one of which is that if an effective and efficacious remedy is available, the
High Court would not normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to operate as a bar in
at least three contingencies, namely, where the writ petition has been filed
for the enforcement of any of the Fundamental Rights or where there has
been a violation of the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law on this point but to cut down
this circle of forensic whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still hold the field.”
 (underlining for emphasis by us)

106. One may not also overlook the decision of the Supreme Court in Surya Dev Rai

v. Ram Chander Rai, reported in AIR 2002 SC 3044, for a limited purpose.

Therein, the robust view of a Division Bench of the Delhi High Court in Govind v

State (Govt. of NCT of Delhi), reported in 2003 (6) ILD 468, was approved. It

was held in Govind (supra) as follows:

“The power of the High Court under Article 226 cannot be whittled down,
nullified, curtailed, abrogated, diluted or even taken away by judicial
pronouncement or legislative enactment or even by amendment of the
Constitution. The power of judicial review is an inherent part of the basic
structure and it cannot be abrogated without affecting the basic structure
of the Constitution”.

(underlining for emphasis by us)

107. Although Surya Dev Rai (supra) has been overruled on the point that a writ

petition under Article 226 of the Constitution would not be maintainable against

a judicial order passed by a ‘civil court’ and Article 227 thereof provides a remedy

to challenge such order, the discussions on the point of wide and expansive

powers exercisable under Article 226 have not been overruled.

108. The question of jurisdiction of the High Courts under Article 226 has also to be

viewed in the broad perspective of what the Constitution says and its

interpretation by the Supreme Court in its decision in L. Chandra Kumar v.

Union of India, reported in AIR 1997 SC 1125, and not from any perceived

narrow or constricted view that one might choose to take to shield decisions of

tribunals set up at the national level from judicial scrutiny under Article 226 on

the specious ground that an appeal lies to the Supreme Court. Provisions
inserted in the Constitution by the Constitution (Forty-second) Amendment Act,

1976, i.e., Articles 323A and Article 323B, seeking to exclude inter alia the power

of judicial review of the High Courts under Article 226 was struck down as ultra

vires on the ground that it violates the basic structure of the Constitution. If

indeed, the Parliament, the supreme authority to enact laws in the nation lacks

the power to introduce any provision in the Constitution by amendment that

seeks to exclude the power of judicial review by the High Courts (which is part of

the basic structure of the Constitution), a fortiori, does it not follow that such

power cannot be excluded by the judicial pronouncement of the apex judicial

authority? The core principle of the rule of law “be you ever so high, the law is

above you” applies as much to the Supreme Court as to any other constitutional

authority as held in State of UP v. Jeet S. Bisht, reported in (2007) 6 SCC 586.

Viewed in such context, can it be held that the jurisdiction of the High Courts is

barred when power of judicial review is urged to be exercised to interfere and set

aside an order/decision of the National Commission on the specious ground that

an appeal lies to a higher court? Interestingly, the provisions of the CP Act were

held to be constitutional by the Supreme Court in Vishwabharathi House

Building Coop. Society (supra) where one of several contentions raised was that

the provisions of the CP Act strike at the independence of the judiciary. The

contention was repelled and constitutional validity of the CP Act upheld. What

the Supreme Court inter alia held is reflected thus:

“41. By reason of the provisions of the said Act, the power of judicial review
of the High Court, which is a basic feature of the Constitution, has not
been nor could be taken away.”
 (underlining for emphasis by us)

109. In terms of the CP Act, an appeal lies under section 23 to the Supreme Court

from an order passed by the National Commission under section 21(a)(i), i.e. an

order in exercise of original jurisdiction. An appeal also lies under section 27-

A(1)(c) of the CP Act against an order passed by the National Commission under

section 27 thereof, i.e. an order imposing penalties. If indeed an order passed by

the National Commission is not open to challenge before a High Court within

whose territorial limits the cause of action may have arisen and the appellate

remedy before the Supreme Court is the only remedy that is made available by

the CP Act, thereby excluding the power of judicial review of the High Court, does

it not erode the very basis on which the decision in Vishwabharathi House

Building Coop. Society (supra) is structured? The Supreme Court while

considering the issue of constitutionality of the CP Act having held in

unambiguous terms that the power of judicial review is not taken away, the dicta

in Cicilly Kallarackal (supra) seems to us to be in conflict therewith. Thus, the

said decision loses much of its efficacy as a binding precedent.

110. In an appropriate case, where a party without exhausting the alternative remedy

that is available to him/it, invokes the writ jurisdiction of a High Court and while

challenging an order of the National Commission sets up a case of any of the

exceptional situations to exist (the writ is claimed (i) for enforcement of a

Fundamental right, or (ii) to remedy a breach of natural justice, or (iii) for

quashing an act/order that is wholly without jurisdiction), there ought to be no

valid reason as to why the High Court may not look into the petition to ascertain
 whether what is claimed is correct, instead of dismissing it at the threshold on

the ground that the impugned order has been passed by the National

Commission. Incidentally, if in such a writ petition constitutionality of a

provision of the CP Act is under challenge along with an order of the National

Commission and the petition contains dual prayers to declare the impugned

statutory provision as ultra vires the Constitution as well as a writ of certiorari to

quash such order, would the remedy of an appeal being available before a higher

court, i.e., the Supreme Court, be of any immediate significance and relevance?

We doubt whether the Supreme Court would declare a provision unconstitutional

while exercising its appellate power under the CP Act. Any declaration on the

vires of a statute/statutory provision ideally would come from the Supreme Court

exercising original writ powers (Article 32) or writ powers while hearing a civil

appeal arising out of a writ petition after grant of special leave (Article 136). On

the other hand, if the High Court is satisfied that there has been gross

miscarriage of justice and also that the provision impugned is unconstitutional,

should the High Court stay at a distance and say that the dicta in Cicilly

Kallarackal (supra) has to be shown respect since the decision itself has been

circulated for ensuring compliance and not the other decisions of high authority

which went unnoticed in Cicilly Kallarackal (supra)?

111. Access to justice is now regarded as a guaranteed Fundamental Right. We need

not refer to decisions of the Supreme Court holding so. However, the decision in

Cicilly Kallarackal (supra) could result in rendering such right illusory for a

party. Take for instance a party (not covered by section 12 of the Legal Services
Authorities Act, 1987), who is based in Campbell Bay, Nicobar Islands and does

not have the financial as well as other resources to carry an order passed by the

National Commission adversely affecting his interest to the Supreme Court in

appeal. Perceiving that the order, which is alleged to have been passed behind his

back, would intrude upon any of his Fundamental Rights, he seeks to have such

order effaced from the record and impugns such order before the Circuit Bench

of the High Court at Calcutta at Port Blair complaining of observance of the

principles of natural justice in the breach by the National Commission and prays

for a writ of certiorari. In such a scenario, should such a party be relegated to the

appellate forum in New Delhi in terms of an ordinary law enacted by the

Parliament for no better reason than that an appeal is available before a court

higher than the High Court? Would the High Court be denuded of its jurisdiction

although the Constitution may have conferred upon the party the liberty to move

the court of writ? We are inclined to believe that the answers, on the basis of all

the precedents on the point [but not considered in Cicilly Kallarackal (supra)],

ought to be in the negative. Whether such writ petition would be entertained or

not having regard to the pleaded case as well as the existence of the remedy of a

statutory appeal before the Supreme Court is entirely the discretion of the

concerned learned Judge. The discretion may be declined acting judiciously but

to hold that the writ court would have ‘no jurisdiction’ to entertain the grievance

voiced in the writ petition and that it is the appellate power of the Supreme Court

conferred by the provisions of the CP Act that is to be invoked, if it were intended

in Cicilly Kallarackal (supra), we must say with the greatest of respect at our
 command that Cicilly Kallarackal (supra) is a judicial pronouncement that

whittles down, nullifies, curtails, abrogates, dilutes and takes away the power

conferred on the High Courts by the Constitution to enforce the Fundamental

Rights and other rights that can validly be claimed by a party which, in terms of

the several previous decisions of the Supreme Court itself, the Supreme Court

cannot.

112. The principle underlying Article 141 of the Constitution is very clear. The law

declared by the Supreme Court shall be binding on all the courts within the

territory of India. Technically speaking, we are as much bound by Cicilly

Kallarackal (supra) as all other decisions rendered prior to it that we have

referred to above. In such a situation, dismissing a writ petition or a civil

revisional application wherein an order of the State Commission or the District

Forum is under challenge without even looking into the ground of challenge and

the nature of right sought to be enforced by blindly following the decision in

Cicilly Kallarackal (supra) may not be a proper exercise of discretion. Showing

respect to Cicilly Kallarackal (supra) should not be seen as showing disrespect

to the other decisions of high authority of the Supreme Court in any manner. If

an attempt were made to reconcile the conflicting views, the decision in Cicilly

Kallarackal (supra) should be read as one which lays down the law that

interference with the orders of the National Commission under sections 21(a)(i)

and 27 of the CP Act would not be permissible in the absence of any of the

exceptions summarized in Whirlpool Corporation (supra) being satisfied. The

National Commission, which is a creature of the CP Act, would not have the
 power to decide on a question of constitutionality of a provision of the CP Act and

if such question incidentally arises while the order of the National Commission is

under challenge in any writ petition, would it not be proper to hold that the High

Court should decide the same at the first instance? The National Commission

does not enjoy any exalted status that its orders would not be subject to judicial

review, whatever be the nature of grievance that a party may have in relation to

it.

113. There is one other important aspect, sight of which cannot be lost. The decision

in Cicilly Kallarackal (supra) does not appear to have dealt with the same. Apart

from the power that the National Commission is empowered to exercise under

sections 21(a)(i) and 27 of the CP Act, it can exercise appellate power under

section 21(a)(ii) and revisional power under section 21(b) thereof. No doubt, an

appeal would lie before the Supreme Court against an order passed by the

National Commission either under section 21(a)(i) or section 27 of the CP Act.

What would be the legal position if a writ petition is presented before a High

Court challenging an appellate order under section 21(a)(ii) or a revisional order

under section 21(b), against which a statutory right of appeal before the Supreme

Court is not provided in the CP Act? Answer to this question would not be found

in Cicilly Kallarackal (supra), since the order under challenge there was not

passed in exercise of either appellate or revisional power by the National

Commission. Having regard to the special reason for which the High Courts were

held not to have any jurisdiction to entertain writ petitions against the orders of

the National Commission (an appeal is available to the Supreme Court against
 orders passed thereunder), the said decision cannot be read as an authority

laying down the law that no order passed by the National Commission,

irrespective of the power exercised by it, would be amenable to challenge before

the High Courts. Given the limited right that the CP Act confers for presenting

appeals to the Supreme Court and that an appeal cannot be presented against an

order passed by the National Commission either under sub-clause (ii) of clause

(a) or under clause (b) of the CP Act, we are inclined to the view based on the

reason given in Cicilly Kallarackal (supra) itself that the High Courts would

have the jurisdiction to entertain writ petitions against appellate and revisional

orders of the National Commission.

114. On a cumulative assessment of the decisions of the Supreme Court, we find it

difficult to persuade ourselves to agree with the proposition of law that if in a writ

petition under Article 226 of the Constitution the order of the National

Commission is under challenge, the High Court must dismiss the petition

irrespective of the ground(s) on which such order is challenged. Indeed,

notwithstanding the availability of an appellate remedy before the Supreme

Court, such remedy would be illusory for many and if such a reason were

assigned to dismiss a writ petition, it is justice that could be the casualty. In a

given case where a party attempts to bypass a statutory redressal mechanism

without any of the exceptional situations being shown to exist, most certainly the

dicta in Cicilly Kallarackal (supra) would apply but such decision may not be

relied upon by a respondent at the admission stage of every case to have his

opponent’s case dismissed as if the High Courts have no jurisdiction to receive

 writ petitions against any order that the National Commission is empowered to

pass under the CP Act.

115. The preceding analysis is based on our own understanding of what the law is,

which a Judge ought to bear in mind while deciding an objection to the

maintainability of a writ petition that is raised relying on Cicilly Kallarackal

(supra). This analysis has been necessitated in view of a decision of the Supreme

Court of recent origin in State Bank of Travancore v. Mathew K.C., reported in

(2018) 3 SCC 85. There the relevant High Court had interfered with measures

taken by a secured creditor without abiding by the caution sounded in previous

decisions of the Supreme Court including Satyawati Tondon (supra). Relevant

paragraphs from Mathew K.C. (supra), read as follows :

“15. It is the solemn duty of the court to apply the correct law without
waiting for an objection to be raised by a party, especially when the law
stands well settled. Any departure, if permissible, has to be for reasons
discussed, of the case falling under a defined exception, duly discussed after
noticing the relevant law. ***”
***
17. We cannot help but disapprove the approach of the High Court for
reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy
Engg. Works (P) Ltd, (1997) 6 SCC 450, observing:
‘32. When a position, in law, is well settled as a result of judicial
pronouncement of this Court, it would amount to judicial impropriety to
say the least, for the subordinate courts including the High Courts to
ignore the settled decisions and then to pass a judicial order which is
clearly contrary to the settled legal position. Such judicial adventurism
cannot be permitted and we strongly deprecate the tendency of the
subordinate courts in not applying the settled principles and in passing
whimsical orders which necessarily has the effect of granting wrongful
and unwarranted relief to one of the parties. It is time that this tendency
stops.’
115. Under the Constitutional regime, each High Court judge is duty bound to apply

the law that is well-settled by judicial pronouncements of the Supreme Court

which have stood the test of time. Any departure from Cicilly Kallarackal (supra)

must be supported by cogent reasons, after giving it the respect the same

deserves but such decision may not be preferred to other decisions of high

authority, which we have referred to above, mechanically.

116. We end our discussion expressing hope and trust that the individual writ

petitions/civil revisional applications/writ appeal shall be heard on its own

merits by the appropriate Bench having determination in the light of all the

relevant decisions of the Supreme Court and bearing in mind that the National

Commission’s orders are not under challenge in any of these proceedings.

117. We record our sincere appreciation for the able assistance rendered by each

learned advocate for their address to enable us answer the reference

appropriately.

(BIBEK CHAUDHURI, J.) (DIPANKAR DATTA, J.)