Umesh Prasad Sharma vs State Of West Bengal & Ors.

Biswanath Somadder, J

By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for appropriate order.

The instant appeal arises out of a judgment and order dated 17th August, 2017, passed by a learned Single Judge in W. P. 15353 (W) of 2017 (Umesh Prasad Sharma vs. The State of West Bengal & Ors.).

By the impugned judgment and order, the learned Single Judge proceeded to dispose of the writ petition without interfering with the order dated 3rd May,2017, passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II, in Complaint Case No.486 of 2016 (Umesh Prasad Sharma vs. M/s. Bharat Construction).

The instant appeal has been preferred by the writ petitioner.

According to the learned advocate for the appellant/writ petitioner, the said order dated 3rd May, 2017, being without jurisdiction, the writ petition was maintainable. In this context, he has referred to two decisions, which were taken notice of by the learned Single Judge as well.

In the facts of the instant case, we notice that the learned Single Judge has taken into consideration that the order dated 3rd May, 2017, was appealable under section 15 of the Consumer Protection Act, 1986. The Court has held that the existence of a statutory alternative remedy was not an absolute bar to the maintainability of a writ petition. The learned Single Judge referred to the decisions cited by the appellant/writ petitioner wherein it was held that a writ petition was maintainable if the impugned order was without any jurisdiction. However, the learned Single Judge took note of the fact that a complaint was made by the writ petitioner to the District Disputes Redressal Forum. Three issues framed by the forum for consideration were related to deficiency in service rendered, limitation and entitlement to the relief prayed. All the three issues were held against the appellant/writ petitioner. In answer to one of the issues, the forum which passed the order dated 3rd May, 2017, held that the claim made by the writ petitioner exceeds its pecuniary jurisdiction. The learned Single Judge, however, has observed to the effect that it cannot be said that the merits of the matter were not looked into or that the forum was denuded of jurisdiction having arrived at a finding that the claim was beyond its pecuniary limits. The learned Single Judge has also opined that the forum had jurisdiction to receive the complaint and decide thereon. The jurisdiction of the forum was invoked by the writ petitioner himself. While choosing not to interfere, the learned Single Judge has observed to the effect that the Court's order will not prevent the writ petitioner from availing of his remedies in accordance with law before the appropriate forum.

We are of the view that in the facts of the instant case, the appropriate forum shall be the State Commission. The reason is, while passing the order dated 3rd May, 2017, the District Consumer Disputes Redressal Forum, Kolkata, Unit-II, in Complaint Case No.486 of 2016, came to a categorical finding that the claim of the writ petitioner exceeded its pecuniary jurisdiction. Once this finding was arrived at, the District Consumer Disputes Redressal Forum, Kolkata, Unit-II, ought not to have proceeded further by deciding on the merits of the case as presented by the writ petitioner. The District Consumer Disputes Redressal Forum, Kolkata, Unit-II, in the facts of the present case should have referred the case to the State Commission, having pecuniary jurisdiction.

As such, we grant liberty to the appellant/writ petitioner to approach the State Commission by filing a proper application. The State Commission shall hear out the application and decide on the merits of the case in accordance with law without being influenced in any manner by any observation made by the District Forum in its order dated 3rd May, 2017.

Since no affidavit has been called for, allegations made in the application for appropriate order shall be deemed to be not admitted by the private respondent no.4, namely, M/s. Bharat Construction.

The appeal along with the connected application stands disposed of accordingly.

Urgent photostat certified copy of this order, if applied for, be given to the parties.