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20.01.2016.
Item No. 23

C.O. 4158 of 2015

Bhaskar Jalan and another
Vs.
M/s. Housing Estates Private Limited and others.
Mr. U. C. Jha,
Mrs. M. Sharma,
Ms. T. Banerjee.
for the petitioners.
Mr. Siddhartha Banerjee,
Mr. Avinash Kaukani,
Ms. Sreya Basu Mallick,
Mr. Arnab Seal.
for the opposite party
nos. 1 and 2.
Mr. S. K. Basu,
Mr. P. Majumdar.
for the opposite party
nos. 3 and 6.
Mr. Kamal Pathak,
Mr. Souvik Maji,
Mr. Soumalya Ghosh.
for the opposite party
no. 4.
This revisional application is directed against an order
passed by the State Consumer Disputes Redressal Commission (in
short SCDRC) in exercise of its power under Section 17(1)(b) of
the Consumer Protection Act, 1986, reversing the order passed by
the District Consumer Disputes Redressal Forum, Unit-I (in short
DCDRF)

dismissing

the

maintainability of the dispute.

application

challenging

the

A preliminary objection was raised on behalf of the opposite

parties with regard to the maintainability of the revisional
application on the ground that the impugned order passed by the
SCDRC in its revisional jurisdiction under Section 17(1)(b) of the
Consumer Protection Act is revisable under Section 21(1)(d) of the
Consumer Protection Act, which again is a provision available to
the National Commission in exercise of its revisional jurisdiction.
There is a fundamental difference between a power exercised
by an authority whether original appellate or revisional and a
power exercised by a Court under Article 227 of the Constitution of
India.
There is a fundamental distinction between a statutory
power and a constitutional power. There cannot be any limitations
on constitutional power. The limitations, if any, are self-imposed.
While statutes are seasonal, the Constitution is perennial. The
power exercised by the Court under Article 227 of the Constitution
of India is a power bestowed upon the Court by the Constitution
and such power cannot be curtailed by any statutes. All the Courts
in the jurisdiction of a High Court are subordinate to it and
subject to its control and supervision under Article 227 of the
Constitution of India. While appellate or revisional jurisdiction is
regulated by the statutes, the power of superintendents under
Article 227 of the Constitution is constitutional. The Court under
Article 227 of the Constitution of India may interfere with an order
passed by the Subordinate Court or Tribunal if the Court finds
that the reasons given by the Trial Court are moonshine, flimsy or
irrational and not merely because in the exercise of its discretion,
another Court might have a different view and allowed the
application or because the reasons for giving a ruling on a point or
for rejecting an application may be wrong or disclosed a nonjudicious exercise of discretion and open to correction in an

appeal. The power under Article 227 of the Constitution being a

power of judicial superintendents must be exercised sparingly and
only to keep Subordinate Courts and Tribunals within the bound
of their authority and not to correct mere errors. Moreover, where
the statute bears the exercise of revisional powers it would require
very exceptional circumstances to warrant interference under
Article 227 of the Constitution since the power of superintendents
was not meant to circumvent statutory law. The said power could
not be exercised as the cloak of an appeal in disguise. Ordinarily
when a statutory forum is created by law for redressal of grievance
and that too, in a fiscal statute, the Court may not exercise its
supervisory jurisdiction under Article 227 of the Constitution of
India.
It is misnomer to say that a statutory power debars a
Constitutional Court from exercising its jurisdiction under the
Constitution. The Court imposes a self-restriction on its power
while discharging its function under the Constitution if there is an
efficacious alternative remedy available in law to a litigant.
The question is whether having regard to the scheme of the
Act the Court would exercise its jurisdiction in favour of a litigant,
provision of appeal or revision is available to a litigant under the
scheme of the Act.
In order to appreciate whether the Court should exercise its
jurisdiction under Article 227 of the Constitution of India, the
Court is required to be satisfied that the order impugned is
demonstrably unjust, palpably illegal and has resulted in manifest
injustice. The Court of law exists to do justice between the parties.
Before I advert to the plethora of decisions cited by the
opposite parties in order to nip this application in bud, it is
essential to refer some of the facts leading to the initiation of
proceeding that had culminated into the impugned order.

The petitioners filed a complaint case before the Kolkata

District Consumer Disputes Redressal Forum, Unit I in C.C. No.
497 of 2012 alleging, inter alia, that the opposite parties have
failed to provide essential services as well as they are creating let
and hindrance to the enjoyment of the property in question by
creating encroachment. It was further alleged that the opposite
parties have failed to restore normal water supply to the flats of
the petitioners and to ensure that the petitioners get a clear
passage to the overhead water tank for smooth and normal supply
of drinking water.
Although various facts have been narrated in the complaint
case but it would appear from paragraphs 11(h) to 11(s) of the
complaint petition that the petitioners have alleged deficiency of
service and on such allegation present complaint was filed. It
would appear from the said sub-paragraphs that various issues
were raised contemporaneously with regard to the maintenance of
the said building including furnishing copy of the sanctioned plan
so that unauthorized encroachment could be removed and the flat
owners are not permitted to change the nature of user and cause
nuisance.
In a meeting held on 8th November, 2011 it was decided that
a private limited company would be appointed to look after the
facilities and maintain the common areas of the said building. It is
alleged that this work has not been properly carried out.
The opposite parties instead of delivering their deffence on
merit filed a skeleton application in or around February 2013
alleging that the application was not maintainable inter alia on the
ground of non-joinder of necessary parties and dispute does not
come within the purview of the Act. The said preliminary objection
was decided by the DCDRF by an order dated 21st May, 2013 on
the ground that simply because that the opposite party no. 1 and 2

are vendors, which would appear from the Deed of Conveyance

itself the complaint case cannot be dismissed.
Against that order a revision was preferred in which in
addition to the points urged before the Trial Court the opposite
parties have raised the point of limitation. It was contended that
the petition of complaint is time barred under Section 24A of the
Act. In deciding the said revision, the Appellate Tribunal appears
to have arrived at a finding that the flats in question were
purchased in the same building with an intention to generate
profit and since the profit is the main element to be realized by
commercial exploitation of the property, the complainant cannot
be treated as Consumer within the meaning of Section 2(1)(d) of
the Act. The said complaint case was also dismissed on the ground
that the complainants purchased the flats on 29th April, 2008 and
prior to that they were in possession of the same and after a long
delay of at least four years they have filed Consumer Complaint
without any application for condonation of delay. Under such
background, the objections with regard to the maintainability of
this present application are to be considered.
The finding of the SCDRC is completely perverse and ex facie
illegal having regard to the fact that there was no record available
before the said Tribunal from which the Tribunal could have
arrived at a conclusion that the said flats were purchased with an
intention to generate profit. On the contrary, the perusal of
complaint petition would clearly show that the petitioners were
complaining that the opposite parties were trying to change the
nature of user. Moreover, the said issue could not have been
decided without evidence. If a finding is arrived at without any
evidence it is ex facie perverse.
The observation with regard to the limitation is equally
perverse having regard to the fact that the SCDRC has not read

the complaint as a whole. If the paragraphs mentioned herein

above were considered it would clearly show that the petition was
filed within the period of two years. In any event, it is continuing
cause of action. An act of nuisance is a continuing breach. This
has been completely overlooked and/or ignored by the SCDRC. It
is equally settled law that a question of limitation is a mixed
question of law and fact and cannot be decided in a demurrer
application unless on the face the complaint is based by limitation.
The learned counsel for the opposite parties has referred to
various

cases,

namely,

P.

Subramanian

vs.

M/s.

Oriental

Insurance Co. Ltd., Divisional Officce, No.4 Promenade Road,

Barathidasan Road, Trichy-1, reported in 2004 (1) TN MAC 493,
Sanjeevani Estates (P) Ltd. & Anr. Vs. Mr. Alok Bhagat & Ors.,
reported in 2012 SCC OnLine Cal 4091, National Insurance Co.
Ltd. vs. Tushar Kanti Sahoo, reported in 2014(2) CHN (Cal) 232,
The Manager, Burdwan Co-operative Agriculture and Rural
Development Bank Limited vs. Anath Bandhu Dhara, reported in
2009 (2) CLJ (Cal) 685, wherein it is held that Section 21(b) of the
Act it an efficacious alternative remedy and in view thereof this
revisional application should not be entertained.
In this regard it would be useful to refer to set out Article
227 of the Constitution of India, which reads:
Power of superintendence over all courts by the
High
Court.-(1)
Every
High
Court
shall
have
superintendence over all courts and tribunals throughout
the territories interrelation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing
provisions, the High Court may(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms
for regulating the practice and proceedings of such
courts; and

(c) prescribe forms in which books, entries and

accounts shall be kept by the officers of any such
courts.
It is to be remembered that under Article 227 of the
Constitution of India the High Court is exercising its supervisory
jurisdiction and in this sense it is akin to appellate, revisional or
corrective jurisdiction. In exercise of supervisory jurisdiction the
High Court may not only quash or set aside the impugned
proceedings, judgment or order but may also give suitable
directions so as to guide the subordinate Courts as to the manner
in which it should proceed thereafter or afresh. If it appears to the
Court that error is manifest and grave injustice or gross failure of
justice has been occasioned, in the event the impugned order is
retained, availability of an alternative remedy by revision would not
stand in the way of the High Court to intervene and quash the
order.
Whether the Court would exercise the discretion in favour of
a litigant, as I have stated earlier, would largely depends upon the
facts and circumstances of the case. If the order is demonstrably
perverse and illegal, a litigant should not be showed the path to
approach the National Forum at Delhi for redressal of his
grievance. It would not only result i miscarriage of justice but also
would allow a palpably wrong order to survive until the matter is
being heard by the National Forum.
Under such circumstances, the order passed by the SCDRC
is set aside.
However, I make it clear that the observation made in this
order shall not influence the DCDRF to consider the matter on
merits.
It is needless to mention that the District Consumer Forum
would decide the issue as to whether the petitioners are

consumers and the dispute raised is a consumer dispute after

completion of pleadings.
The revisional application is allowed.
However, there shall be no order as to costs.
ab

(Soumen Sen, J.)