SSK/ 1 WP/622.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 622 OF 2011 1. Arenja Industries Limited, a company ) incorporated under the provisions of ) Companies Act, 1956 having its office at ) 507, Sharda Chambers, 15, New Marine ) Lines, Mumbai – 400 020. ) 2. Akshar Construction having its office at ) 7 & 8 Shreeji Seva, Plot No.42, Sector 42, ) Opp. Seawood Rly Stn. Nerul, ) Navi Mumbai 400 705. )....Petitioners Versus Jagdish C. Shah, HUF & Bipin C. Shah, HUF, ) Indian Inhabitants, Plot D 2/210, Om Jaylalaxmi ) Co-operative Society Ltd., 4th Floor, Sion (E), ) Mumbai -400 022. )...Respondents with WRIT PETITION NO. 623 OF 2011 1. Arenja Industries Limited, a company ) incorporated under the provisions of ) Companies Act, 1956 having its office at ) 507, Sharda Chambers, 15, New Marine ) Lines, Mumbai – 400 020. ) 2. Akshar Construction having its office at ) 7 & 8 Shreeji Seva, Plot No.42, Sector 42, ) Opp. Seawood Rly Stn. Nerul, ) Navi Mumbai 400 705. )....Petitioners Versus Pravin Nanji Gada, Adult, Indian Inhabitant ) Plot No.441, Daya Bhuvan, Sharddanand Cross ) Road, Matunga (C.R), Mumbai 400 019. )...Respondent with WRIT PETITION NO. 624 OF 2011 1. Arenja Industries Limited, a company ) incorporated under the provisions of ) Companies Act, 1956 having its office at ) 507, Sharda Chambers, 15, New Marine ) Lines, Mumbai – 400 020. ) SSK/ 2 WP/622.11 2. Akshar Construction having its office at ) 7 & 8 Shreeji Seva, Plot No.42, Sector 42, ) Opp. Seawood Rly Stn. Nerul, ) Navi Mumbai 400 705. )....Petitioners Versus M/s. President Enterprises, a partnership firm, ) having its office at 27, Sir P. M. Road, Kermani ) Building, Opp. Citi Bank, Fort, Mumbai 400 001. )...Respondent Mr. M.P.Vashi, Advocate for the petitioners. Dr. Birendra Saraf with Mr.Rajmani Varma & Ms. Darshana Gupta i/b. Navdeep Vora & Associates, Advocates for the respondents. CORAM : SMT. RANJANA DESAI & RANJIT MORE, JJ. DATED : 21st JUNE, 2011. Oral Judgment : (Per Ranjit More, J.) 1. Rule. By consent, Rule is made returnable forthwith and heard Mr.Vashi, and Dr.Saraf, learned counsel, appearing for respective parties, finally. 2. The issue involved in above writ petitions is one and the same therefore, they are being disposed of by this common order. The facts involved in the Writ Petition No.622 of 2011 are being referred for this common order. SSK/ 3 WP/622.11 3. Petitioner no.1 is a Limited Company incorporated under the provisions of the Companies Act, 1956 engaged in the construction activities including developing the premises and is a builder and developer in terms of the provisions of MOFA. Petitioner no.2 is also a Developer who has purportedly acquired development rights from petitioner no.1 for executing a project on certain plots of land being Plot Nos.59, 60 and 61 admeasuring about 7969.10 sq. meters situated at Sector – 15, CBD, Belapur by and under a Development Agreement dated 30th August, 2006. 4. The respondents being in need of a residential premises approached the petitioners in or about September, 1993. Petitioner no.1 represented to the respondents that they had launched a project on the above said plot by the name “Arenja Apartments”. The respondents on the basis of the representation made by petitioner no.1 agreed to purchase a flat in petitioner no.1’s project and petitioner no.1 issued allotment letters dated 25th August, 1993 and 18th December, 1995 to the respondents on receipt of payment of part consideration of the said flat. 5. The respondents claim that they are consumers within the meaning of Section 2 (1)(d) sub-section (ii) of the Consumer Protection Act, 1986 (for short “the said Act”) as they had engaged and availed the services of petitioner no.1 as Developer and Builder within the meaning of Section SSK/ 4 WP/622.11 2(1) of the said Act. The respondents claim that the services of petitioner no.1 are deficient within the meaning of Section 2(1)(g) of the said Act as the petitioner is guilty of delay in delivering the possession of the said flat and has further failed to adhere to the commitments made. The respondents accordingly filed a complaint before the State Consumer Dispute Redressal Commission, Maharashtra, Mumbai (hereinafter referred to as “the Commission”) for declaration that the agreement for sale as recorded in the said allotment letters dated 25th August, 1993 and 18th December, 1995 is valid, subsisting and binding upon petitioner no.1. Directions were also claimed to the petitioner to specifically perform the obligations under the said allotment letters and handover vacant and peaceful possession of the said flat as recorded in the allotment letters. Without prejudice to the prayers, the respondents also claimed direction to the petitioner to pay compensation. 6. The petitioners appeared before the Commission in response to the notice before admission and, took objection to the maintainability of the complaint on the ground of limitation. According to the petitioners, by letter dated 6th February, 2002 they have informed the respondents that since they had not paid the amount of instalment as per the allotment letter their flat was forfeited and they would not be entitled to get the possession of the flat and accordingly the said letter of allotment was terminated. The SSK/ 5 WP/622.11 respondents thereafter within a period of two years have failed to approach the Commission, and thus, the complaint filed in the year 2010 is barred by the law of limitation. The Commission by its Order dated 10th August, 2010 which is impugned in the present petition overruled the petitioners’ objection to the maintainability of the respondents’ complaint on the ground of limitation by holding that the respondents’ complaint is within the limitation period. The complaint came to be admitted and was adjourned to enable the petitioners to file a written statement. 7. Mr. Vashi, learned counsel for the petitioners submitted that the complaint could not have been admitted by the Commission inasmuch as the petitioners have terminated the said letter of allotment in favour of respondents on 6th February, 2002, and thereafter within a period of two years, the respondents failed to approach the Commission. He submitted that the Commission has no jurisdiction to entertain the complaint which is filed beyond the stipulated period of limitation. Mr. Vashi, learned counsel also submitted that since the impugned order is without any jurisdiction, the writ petition challenging the impugned order under 226 of the Constitution of India is maintainable. In this regard, he relied upon the Apex Court decisions in V.N.Shrikhande (Dr.) Versus Anita Sena Fernandes reported in (2011) 1 Supreme Court Cases 53, Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah & Anr. reported in AIR SSK/ 6 WP/622.11 2000 Supreme Court 380, Division Bench judgments of this Court in Associated Electrical Agencies, Worli, Bombay Vs. Commissioner for Workmen’s Compensation & Judge, 3 rd Labour Court, Bombay & Anr. reported in 1995 (1) Mh.L.J.,379, Vasant Balkrishna Wale Vs. Vithal Mahadeo Deshmukh & Ors. reported in 2005(4) Mh.L.J., and a Single Bench decision of this Court in Laxman R. Vajage Vs. Collector of Bombay & Ors. reported in 2005(1) Mh.L.J.. 8. Dr. Saraf, learned counsel for the respondents on the contrary supported the impugned order. He took a preliminary objection to the maintainability of the writ petition under Article 226 of the Constitution of India on the ground that the petitioners have alternative remedy of substantial appeal under Section 19 of the said Act to the National Commission. To substantiate his argument, he relied upon the Apex Court decisions in United Bank of India Vs. Satyawati Tondon & Ors. reported in (2010) 8 Supreme Court Cases 110, Union of India & Ors. Vs. V.N.Singh reported in (2010) 5 Supreme Court Cases 579, Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & Ors. reported in AIR 1985 Supreme Court 330, a Division Bench judgment of the Kerala High Court in A. V. Georgekutty Vs. State of Kerala & Ors. reported in AIR 1994 KERALA 19, a Division Bench judgment of the Andhra Pradesh High Court in SSK/ 7 WP/622.11 Tulasi Enterprises Vs. Andhra Pradesh State Consumer Commission, Hyderabad & Anr. reported in AIR 1991 AP 326 and a Division Bench judgment of the Delhi High Court in Ansal Properties & Industries (P) Ltd. Vs. Chander Bhan Kohli & Ors. reported in 44(1991)DLT316. 9. Having considered the submissions of the learned counsel for the respective parties and having gone through the order impugned in the writ petition and various decisions relied upon by the respective counsel, we are not inclined to entertain the writ petition. Sections 11 and 17 of the said Act deals with the jurisdiction of the District Forum and the State Commission, respectively. Under the said provisions, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed Rs. 20,00,000/-. The State Commission has jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed exceeds Rs.20,00,000/- but does not exceed Rs.1,00,00,000/-. The State Commission also has jurisdiction to entertain appeals against the orders of any District Forum within the State. In case of complaints, where the value of the goods or services and the compensation, if any, claimed exceeds Rs.1,00,00,000/-, the National Commission is conferred the jurisdiction to entertain the said complaint under Section 21 of the said Act. Under the said Section, the National Commission is also conferred the SSK/ 8 WP/622.11 jurisdiction to entertain appeals against the orders of the State Commission. Section 19 of the said Act deals with the appeals against an order under Section 17. Under this Section, the person aggrieved by an order passed by the State Commission under Section 17 of the Act may prefer an appeal to the National Commission within a period of 30 days. A plain reading of the above provisions makes it clear that where the subject matter of the complaint is below Rs.20,00,000/-, the complaint is maintainable before the District Forum. If the subject matter exceeds Rs.20,00,000/- but is less than Rs.1,00,00,000/-, then, the complaint lies before the State Commission, and if the subject matter exceeds Rs.1,00,00,000/-, then, the complaint is required to be filed directly to the National Commission. The statutory appeals against the orders of the District Forum and the State Commission are required to be preferred before the State Commission and the National Commission respectively. By the impugned order, the respondents’ complaint was admitted by the State Commission, and therefore, this order is appealable before the National Commission under the provisions of Section 19 of the said Act. Mr. Vashi, learned counsel for the petitioners, in fact, does not dispute this position. However, he submits that since the impugned order is without jurisdiction, this Court can entertain the writ petition under Article 226 of the Constitution of India and the petitioners need not approach the National Commission. SSK/ 9 WP/622.11 10. We are not impressed by the submission made by Mr.Vashi. The Apex Court in United Bank of India’s case (Supra) was considering the scheme under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short “SARFAESI Act”). In that case, the respondent challenged the notice under Section 13(2) and (4) and the order passed under Section 14 of the SARFAESI Act before a Division Bench of the High Court without availing the alternative remedy under Section 17 of the SARFAESI Act. The Division Bench of the High Court restrained the Appellant-Bank from proceeding under Section 13(4) of the SARFAESI Act against the property of respondent no.1. The matter was carried to the Apex Court. The Apex Court held that the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India. The relevant observations are made in paragraph 43, which reads thus : “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues SSK/ 10 WP/622.11 are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.” The Apex Court also expressed serious concern about entertaining the writ petitions ignoring the availability of the statutory remedies in paragraph 55 which reads thus: “55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” 11. A Division Bench of the Kerala High Court in A.V.Georgekutty’s case (supra) was considering the issue of maintainability of the writ petition, which raised the question of jurisdiction SSK/ 11 WP/622.11 of the District Forum under the Consumer Protection Act, 1986. In this case, writ of certiorari was claimed by the petitioner to quash the notice issued to him by the District Forum on the ground that the District Forum had no jurisdiction to issue the said notice inasmuch as the complainants before the Forum are not consumers. The Kerala High Court examined the statement of objects and the Scheme of the Consumer Protection Act. The Kerala High Court held that that the intention of the Parliament will be defeated if objections as to jurisdiction of the District Forum are permitted to be raised before the High Court under Article 226. The Division Bench further held that the District Forum is presided over by a District Judge or by a retired District Judge and the State Commissions are presided over by a person who is a Judge of a High Court or a retired Judge of a High Court, and therefore, they are fully experienced to decide the question of jurisdiction howsoever complicated. The Division Bench also held that if the petitions are entertained , then, the object behind enactment viz. to provide speedy and simple redressal to the consumer disputes will be frustrated. The relevant observations of the Kerala High Court are made in paragraph 8 of the judgment which reads thus: “8. If writ petitions are entertained and ultimately dismissed by the High Court, then the parties would necessarily avail the further remedy by way of appeal to a Division Bench and then a further appeal to the Supreme Court under Arts. 133 and 136 of the Constitution of India. If the writ is not issued, then, the complaint before the Forum would have to be heard. SSK/ 12 WP/622.11 This will entail lot of delay. The High Courts are already burdened with heavy arrears and that is the precise reason why separate heirarchy of bodies is created under the Consumer Protection Act. It is, therefore, not wise for this court ordinarily to undertake the burden of deciding such disputes, even if they relate to jurisdiction.” 12. In Tulasi Enterprises case (supra), the appellant took objection to the jurisdiction of the Andhra Pradesh State Consumer Commission. The Division Bench held that separate tribunals are created by the Legislature with hierarchy of appeals, and therefore, jurisdiction under Article 226 is ousted. The relevant observations of the Andhra Pradesh High Court are contained in paragraph nos. 10 and 11 which reads thus: “10. It is true that whenever the Legislature creates a separate tribunal with a heirarchy of appeals, the jurisdiction of the High Courts under Art. 226 of the Constitution of India to deal with the orders passed by the said Tribunals is not and cannot be ousted. It is also true that whenever questions of jurisdiction are raised, the High Court normally permits such questions to be raised under Art.226 of the Constitution and examines whether the applications or the other proceedings filed before the Tribunal are within the jurisdiction of the said Tribunal or not. But the High Court has a discretion to entertain the writ petitions and, in particular, to decide, for example, any questions of jurisdiction unless they involve serious or disputed question SSK/ 13 WP/622.11 of fact. It is not as if the High Court is bound to entertain every writ petition which raises a question of jurisdiction of a Tribunal. 11. In relation to the Consumer Protection Act, 1986, it is to be noted that apart from creating a hierarchy of tribunals, there is a specific provision made in S.23 for a further appeal against the final orders of the National Commission. The intention of Parliament appears to be that final orders of the National Commission should not be questioned in the High Courts under Art.226 of the Constitution of India. The District Forums are presided over by the Principal District Judge, while the State Commissions are presided over by no less a person than one who has been a Judge of the High Court or is a sitting Judge of the High Court. Surely, a litigant cannot be permitted to say that a District Judge at the level of the District Forums, or a retired or sitting Judge of the High Court at the level of the State Commission, is not competent to decide the question of jurisdiction. The entire intention of the Parliament was to give a speedy and effective remedy before these authorities. This intention will be defeated if paralled proceedings are permitted before the High Court under Art. 226 of the Constitution of India in respect of matters pending before the bodies under the Consumer Act. We are saying that merely because a question of jurisdiction is raised, the High Court should not feel it imperative to admit the writ petition. If a writ petition is permitted on the question of jurisdiction or other similar grounds, the parties would naturally have a remedy of Letters Patent Appeal and then a further appeal to SSK/ 14 WP/622.11 the Supreme Court under Art. 133 of the Constitution of India. After the question of jurisdiction or other preliminary question is decided in proceedings arising in a writ petition and are carried to the highest court should it be held that the matter is within the jurisdiction of the District Forum or the State Commission—then the main case has to be taken up by the District Forum or the State Commission, as the case may be. This would obviously entail extraordinary delay and would defeat the very purposes of the Act. We have already noticed that the rules provide for speedy disposal of the complaints normally within ninety days or in cases where any analysis or tests have to be conducted, within 150 days. The High Court is already burdened with heavy arrears and that is the precise reason why a separate hierarchy of tribunals has been created. It would therefore, be not wise for the High Court to take upon itself the burden of deciding disputes even if they relate to the jurisdiction which could be decided by the District Forums, presided over by District Judges or by the State Commissions, presided over by sitting or retired High Court Judges.” 13. In Ansal Properties and Industries (P) Ltd. case (Supra), the petitioner sought to challenge the jurisdiction of the Consumer Dispute Redressal Forum in entertaining the complaint submitted against him. According to the petitioner, no complaint in respect of an immovable property could be entertained by the State Commission. The Division Bench of the Delhi High Court noted the provisions of the appeal to the Supreme SSK/ 15 WP/622.11 Court against the order passed by the National Commission and observed that when the law provides complete machinery, including an appeal to the Supreme Court, it would not be proper for the High Court to entertain petition under Article 226 of the Constitution of India. 14. The Apex Court in Assistant Collector of Central Excise’s case (supra) deprecated the practice of entertaining petitions under Article 226 of the Constitution of India by the High Court despite availability of alternative remedy in following words in paragraph 4 which reads as under: “4. In Union of India v. Oswal Woollen Mills Ltd. (AIR 1984 SC 1264), we had occasion to consider an interim order passed by the Calcutta High Court in regard to a matter no part of the cause of action relating to which appeared to arise within the jurisdiction of the Calcutta High Court. In that case the interim order practically granted the very prayers in the writ petition. We were forced to observe : “ It is obvious that the interim order is of a drastic character with a great potential for mischief. The principal prayer in the writ petition is the challenge to the order made or proposed to be made under CI 8-B of the import Control Order. The interim order in terms of prayers (j) and (k) has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties. While we do not wish to say that a drastic interim order may never be passed without hearing the opposite parties even if the circumstances justify it, we are very firmly of the opinion that a statutory order such as the one made in the present case SSK/ 16 WP/622.11 under CI 8-B of the Import Control Order ought not be have been stayed without at least hearing those that made the order. Such a stay may lead to devastating consequences leaving no way of undoing the mischief. Where a plentitude of power is given under a statute, designed to meet a dire situation, it is no answer to say that the very nature of the power and the consequences which may ensue is itself a sufficient justification for the grant of a stay of that order, unless, of course, there are sufficient circumstances to justify a strong prima facie inference that the order was made in abuse of the power conferred by the statute. A statutory order such as the one under CI 8-B purports to be made in the public interest and unless there are even stronger grounds of public interest an ex-parte interim order will not be justified. The only appropriate order to make in such cases is to issue notice to the respondents and make it returnable within a short period. This should particularly be so where the offices of the principal respondents and relevant records lie outside the ordinary jurisdiction of the court. To grant interim relief straightway and leave it to the respondents to move the court to vacate the interim order may jeopardise the public interest. It is notorious how if an interim order is once made by a court, parties employ every device and tactic to ward off the final hearing of the application. It is, therefore, necessary for the courts to be circumspect in the matter of granting interim relief, more particularly so where the interim relief is directed against orders or actions of public officials acting in discharge of their public duty