ORDER NO. 3 DT. 27.5.11

HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT

Revisionist through Mr. Tamal Banerjee and the OP through Mr. Rajiv Kr. Mishra, Ld. Advocates, are present.  Heard both sides at length.  Judgement is delivered as under :-

This Revisional Application is by the OP/Promoter-Developer of the complaint case against the judgement and order dt. 4.2.11 passed by the South 24 Parganas District Consumer Forum in C.C. Case No. 211 of 2010.  The said order has been passed on a petition filed by the said OP by challenging the maintainability of the complaint case. 

The complaint case has been filed against  the  said OP by alleging that the said OP, the Promoter-Developer, has refused to execute and register the Deed of Conveyance in respect of the flat in question, which has been purchased by the Complainant. 

The said OP has raised substantially three points in support of his petition challenging the maintainability of the complaint case.  First, the OP/Revisional Petitioner being the Promoter-Developer of the said flat in question does not fall within the meaning of Service Provider and as such, the case is not maintainable under the Consumer Protection Act, 1986.  We are unable to accept such contention.  It has been consistently held by the Hon’ble National Commission including the Hon’ble Supreme Court that in a Development Agreement for housing construction the Promoter-Developer is the Service Provider to the purchaser who opts to purchase a flat in a building that is to be constructed by the said Promoter-Developer pursuant to the agreement entered into by and between the Developer-Promoter and the Landowner.  Therefore, the point that has been urged by the said OP is of no substance. 

The second point has been raised by stating that there is no allegation of deficiency in service in the petition of complaint.  The complaint case has been filed by specifically alleging that the Developer-Promoter/OP has refused to execute and register the Deed of Conveyance in respect of the flat in question.   Such refusal itself is the deficiency of service as it is part of the services to be provided by the said Developer-Promoter pursuant to the Development Agreement that has been entered into by and between the said Developer-Promoter and the Landowner for executing and registering the deed of conveyance along with the Landowner in favour of the purchaser of the flat.  Thirdly, it has been argued that the agreement for purchase of the flat in question having not been properly stamped the Consumer Forum cannot proceed with the complaint case on the basis thereof.  It has not been shown before us that the agreement for purchase of the flat in question as entered into by and between the complainant and the OP/Promoter-Developer has been questioned.  If the execution of the agreement is admitted, the admissibility of the same without payment of requisite stamp duty cannot, therefore, be questioned at this stage.  Be that as it may, the complaint case is yet to be finally disposed of.  The District Forum, if necessary, for the purpose of effective disposal of the complaint case, may in appropriate time and circumstances order for impounding of the same. We, therefore, do not find any merit in all three points raised in support of the Revisional Application.

Lastly, upon reference to Section 12A of The West Bengal Building (Regulation of Promotion of Construction & Transfer by Promoters) Act 1993 it has been contended that this complaint case before the Consumer Forum is not maintainable.  Section 12A reads as under :-

“1.     No Civil Court shall have any jurisdiction to entertain or decide any question relating to matters arising under any provisions of this act or the rules made thereunder.

2.       Every order passed by the authorized officer, which is subject to appeal, 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 finall and shall not be questioned in any court of law.”

It stipulates that no civil court shall have any jurisdiction to entertain or decide any question relating to the matter arising under any provisions of the said Act or rules made thereunder.  The Consumer Forum is not a civil court as per the  definition provided under the Code of Civil Procedure.  Secondly, the question as involved in this complaint case does not relate to matters arising out of The West Bengal Building (Regulation of Promotion of Construction & Transfer by Promoters) Act 1993, but the question  as to the refusal by the Promoter-Developer to execute and register the Deed of Conveyance in favour of the purchaser for the purpose of effective transfer of title in the property purchased by the purchaser-complainant.  Reference has also been made to Section 6 of the aforesaid The West Bengal Building (Regulation of Promotion of Construction & Transfer by Promoters) Act 1993 to contend that the complaint case is not maintainable.  The said section provides that any purchaser may, if he has any dispute regarding 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.  This complaint case has been filed not by raising any dispute regarding the purchase of the flat.  There is no dispute about the agreement for purchase of the flat.  Here the dispute is in relation to the execution and registration of the deed of conveyance by the OP for effective transfer of title in respect of the flat in terms of provisions of the Transfer of Property Act.  Therefore, the said  section of the above Act also has no application in this case. Furthermore, Section 3 of the Consumer Protection Act provides that 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.    Therefore, the said Act of 1993 cannot stand in the way of the above complaint case. 

For the foregoing reasons this Revisional Application must fail.  Hence, the Revisional Application is dismissed with cost of Rs. 5,000/- (Rupees five thousand only) payable by the OP of the complaint case to the complainant.  Such cost be paid within a period 30 (thirty) days from this date.