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Judgment
Sabyasachi Bhattacharyya, J
The present challenge is directed against an order passed by the State Consumer Disputes Redressal Commission, West Bengal, (hereinafter referred to as the said Commission), directing the petitioner to pay an amount by allowing the claim filed by the respondent nos. 3 and 4 before the said Commission.
Learned counsel appearing for the petitioners argues on two-fold grounds.
First, it is argued that the proceeding before the Commission was not maintainable in view of the bar stipulated in Section 12A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (hereinafter referred to as the said Act of 1993).
Secondly, the argument advanced by learned counsel for the petitioners is that a Single Member of the said Commission passed the order, which is de hors the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the said Act of 1986).
In this context, learned counsel for the petitioners relies on the relevant provisions of the said Act of 1986.
Learned counsel appearing for the respondent nos. 3 and 4, in answer, cites a Division Bench judgment, which is annexed to the affidavit-in-opposition filed by the respondent nos. 3 and 4 to the present writ petition. The said judgement was rendered by a Division Bench of this Court in connection with several matters, including the present writ petition, on February 18, 2019. Such judgement was passed on a reference by a Single Judge, inter alia, on the question as to whether Section 12A of the said Act of 1993 operated as a bar to a proceeding before the Commission. Paragraph nos. 63 and 91 of the said judgment, passed on reference, clearly held that since the consumer fora created under the said Act of 1986 are not 'courts', far less 'civil courts' and their 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 said Act of 1993, such applications/complaints from a home buyer against a promoter are maintainable before the Commission.
The second contentious question is answered by learned counsel for the respondent nos. 3 and 4 by placing reliance on Section 16(1B)(ii) of the said Act of 1986, wherein it is stipulated that a Bench may be constituted by the President with one or more members, as the President may deem fit.
Learned counsel for the respondent nos. 3 and 4 relied on several judgments, one rendered by the Karnataka High Court in Kum. Thilala M T Vs. The Chief Secretary, Deartment of Consumer Affairs, State of Karnataka and another (Writ Petition No. 14298/2019 (GM-CON-PIL), as well as a judgment rendered by the High Court at Kerala in M/s. Eminent Sea Foods Pvt. Ltd. Vs. The Kerala State Industries and others [WP(C). No. 18789 of 2008(J)], apart from an order of National Consumer Disputes Redressal Commission, New Delhi, passed in Revision Petition No. 3261 of 2013 before the said Commission, all of which reiterated the position of law that, on a proper interpretation of Clause (ii) of Section 16(1B) of the said Act of 1986, the provision has to be construed to mean that it is the prerogative of the President of the Commission to constitute a Bench even with a Single Member.
As such, it is argued that the petitioners fail even on the second score, since the order impugned in the present writ petition was passed by a competent Bench.
In this context, learned counsel appearing for the respondent nos. 3 and 4 places reliance on an office order dated November 30, 2016, which is annexed as Annexure - R-6 at page - 102 of the affidavit-in-opposition filed by the respondent nos. 3 and 4 to the present writ petition, which shows that, in terms of Section 16(1B)(ii) of the said Act of 1986, the Second Additional Bench, that is, the Third Bench of the Commission-in-question was constituted with a Single Member and passed the order impugned in the present writ petition.
It is also submitted by learned counsel for the respondent nos. 3 and 4 that, irrespective of the reference, which has been answered in favour of the jurisdiction of the Commission, an independent mandamus appeal was preferred by the said respondents, wherein a direction was given by the Division Bench to the petitioners to deposit the entire amount of claim. However, only a portion of the said amount, being Rs.15,00,000/-(Rupees fifteen lakh) was deposited by the petitioners, for which a contempt application is pending. The contempt, it is submitted, also covers an alleged transfer by the petitioners of the property-in-dispute in the meantime, also in violation of a Division Bench order passed in the said mandamus appeal.
Learned counsel appearing for the respondent-authorities adopts the arguments of the respondent nos. 3 and 4.
The alleged non-compliance of the order of the Division Bench, since already a subject matter of a contempt petition, does not require any further direction from this Court. Any order of disbursal of such amount in favour of the petitioner at this juncture might affect the rights and contentions of the petitioner adversely in the contempt application.
However, it is made clear that the deposit made pursuant to the order of the learned Single Judge shall abide by the result of the final order passed in the contempt application.
As far as the first contention raised by the petitioners is concerned, it is evident from the Division Bench's answer to the reference on such score, that there is no bar for the consumer fora to take up disputes and grievances raised by a home buyer against a promoter in spite of Section 12A of the said Act of 1993.
Hence, such question is answered in favour of the respondent nos. 3 and 4 against the petitioners.
Even the second question raised by the petitioners cannot stand its own ground, in view of the specific language of Section 16(1B)(ii) of the said Act of 1986, read in conjunction with the judgments on that score cited on behalf of the respondent nos. 3 and 4.
As such, there is no further scope for interference on the ground that a Single Member of the Commission passed the order, since the issue is no longer res integra that such a Bench can very well be constituted by the President of the forum.
Annexure- R-6 to the affidavit-in-opposition filed by the respondent nos. 3 and 4 in connection with the present writ petition clearly indicates that the President of the Commission exercised the power conferred on the President under the said section and constituted a Single Member Bench, which passed the impugned order.
Hence, no interference is called for in the present writ petition on either of the questions raised by the petitioners.
Accordingly, W. P. No. 1248(W) of 2017 is dismissed on contest.
Since no affidavit-in-reply has been filed by the petitioners against the affidavit-in-opposition filed by the respondent nos. 3 and 4, it will be deemed that the petitioners do not contest the position of law as disclosed in the said affidavit-in-opposition.
However, it will also be deemed that the petitioners do not admit the factual contentions made in the said affidavit-in-opposition, as per the submissions of the petitioners.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.