Professional Documents
Culture Documents
APPELLATE SIDE
with
with
with
with
FMA 1475 of 2018
Manoj Kumar Pandey and ors.
v.
M/s Sanu Construction and ors.
with
CO 292 of 2015
Dibyendu Adhuria and ors.
v.
Sumanta Bhuia and ors.
with
CO 1828 of 2015
and
CO 1842 of 2015
Sarada Cconstruction
v.
Sankar Das and anr.
with
CO 4276 of 2017
Santanu Bhaduri
v.
Gautam Ghosh and anr.
with
CO 3404 of 2015
Riverbank Developers Pvt. Ltd.
v.
Col. Biswajit Mondal
(Assigned)
For the State in all the writ Mr. Tapan Kumar Mukherjee,
petitions Mr. Rabindra Narayan Dutta,
Mr. Hare Kirshna Halder,
Ms. Srilekha Bhattacharyya.
1. The writ petitions and the civil revisional applications under consideration
(hereafter the ‘said matters’, wherever referred to jointly) were assigned to the
Division Bench presided over by one of us (Dipankar Datta, J.) by an order of the
Hon’ble the Chief Justice dated August 23, 2018. Subsequently, a writ appeal
[FMA 1475 of 2018] arising out of W.P. 1248 (W) of 2017 upon being listed before
a Division Bench presided over by the Hon’ble the Chief Justice, it was submitted
on behalf of the appearing parties that W.P. 1248 (W) of 2017 itself had been
November 19, 2018 was passed directing such appeal to be placed before the
presiding judge of this Bench resulting in listing thereof together with the said
matters.
2. Assignment of the said matters by the Hon’ble the Chief Justice ensued because
of an order dated March 7, 2014 passed by a learned Judge of this Court in C.O.
2440 of 2011 (Kamala Properties Limited v. Miss Suchismita Roy & ors.).
Noticing the divergence of opinion expressed by several single Judges, two on one
side holding that the remedy made available by the Consumer Protection Act,
Construction and Transfer by Promoters) Act, 1993 (hereafter the Building Act),
and one on the other holding to the contrary, His Lordship referred the said
revisional application to the Hon’ble the Chief Justice for decision by a larger
bench.
3. Upon the said matters being posted for hearing, it appeared to us that no
question of law had been formulated for our answer. However, from an order
dated September 21, 2016 passed by a coordinate bench, to which the said
matters had been assigned previously, it appeared that Their Lordships had
expressed as follows:
“In all these petitions, the main question involved is as to whether the fora
constituted under the Consumer Protection Act, 1986 have jurisdiction over
disputes between promoters/developers and purchasers of residential
buildings or flats, having regard to the provisions of the West Bengal
Building (Regulation of Promotion of Construction and Transfer by Promoters)
Act”.
4. The parties not having disputed that this was the precise question requiring an
5. Despite the reference arising in connection with the said matters, we have been
addressed on behalf of the promoters only in W.P. 23027 (W) of 2017 and W.P.
1248(W) of 2017 by Mr. U.C. Jha and Mr. Arijit Bardhan, learned advocates,
respectively.
6. Mr. Jha and Mr. Bardhan have endeavoured to impress upon us that either of
the three fora constituted under the CP Act for receiving a complaint regarding
deficiency of service would be a ‘civil court’ within the meaning of section 12A of
the Building Act and hence the provisions of the CP Act, providing for a remedy,
Undertrial Prisoners v. Union of India, reported in (1994) 6 SCC 731, Mr. Jha
been held therein that a ‘Court’ is an agency created by the sovereign for the
conferred judicial powers for administering justice in accordance with law. When
a Judge takes his seat in Court, the Court is said to assemble for administering
justice. Although the words ‘Court’ and ‘Judge’ are frequently used
not to say that when a Judge demits office the Court ceases to exist.
8. Mr. Jha further argued, relying on Fair Air Engineers Pvt. Ltd. v. N.K. Modi,
reported in (1996) 6 SCC 385, that the fora created by the CP Act to resolve
proceedings before them are legal proceedings. Relying on Patel Roadways Ltd.
9. The decision in M/s. SBP and Company v. Patel Engineering, reported in 2005
(7) Supreme 610, was also referred to by Mr. Jha to show that the decision in
10. Incidentally, the decision in Patel Roadways Ltd. (supra) holding that a
proceeding before the consumer forum is a suit, has been approved in Ethiopian
11. In support of the contention that the jurisdiction of a forum created by the CP
Act would stand excluded if the jurisdiction of a ‘civil court’ is barred under the
provision of any special enactment, Mr. Jha sought to draw inspiration from the
(2011) 10 SCC 316, and UP Power Corporation Ltd. v. Anis Ahmad, reported in
dispute arising in this State, it is the authorized officer under section 6 of the
Building Act who alone is empowered to decide such dispute and the forum
13. Mr. Bardhan while adopting the submissions of Mr. Jha relied on the decision of
(2002) 3 SCC 635, in support of his submission that since decision in a civil suit
takes years and that despite the enactment of the CP Act the fora created
Building Act had been enacted creating a special forum only to examine disputes
arising under the Building Act and, therefore, it is such forum created by the
Building Act which alone has the jurisdiction to entertain any dispute between a
Ghosh v. Biswajit Lahiri, reported in AIR 2006 Calcutta 95, where section12A of
the Building Act was held to create an explicit bar on the jurisdiction of the ‘civil
line arising out of alleged non-payment of telephone bills was held to be not
maintainable in view of the provisions of the Telegraph Act, 1885 and the rules
framed thereunder.
14. On behalf of the purchasers in the said matters, we were addressed by Mr. N.R.
Mukherjee, Mr. P.K. Drolia, Mr. L.K. Pal, Mr. T.K. Rakshit and Mr. Sandipto
15. All the learned advocates contended in unison that having regard to the mischief
that the CP Act seeks to remedy as well as the provisions in section 3 thereof,
read with the decisions relied upon by them, the conclusion is irresistible that
the Building Act cannot operate as a bar for the consumer forum created by the
having its genesis in this State were being entertained notwithstanding the
decisions of this Court that the consumer forum has no jurisdiction to resolve
amend the provisions of section 3 of the CP Act and if such amendment were
effected, the jurisdiction of the consumer forum would have been curtailed
substantially; however, that the Parliament in its wisdom did not take a step in
it has been since its inception and by a strained interpretation of the Building
16. We also had the benefit to hear Mr. Kaushik Chanda, learned Additional Solicitor
17. Mr. T.K. Mukherjee, on instructions, submitted that the National Commission
constituted under the CP Act has the jurisdiction to entertain a complaint from a
purchaser notwithstanding the provisions of section 6 read with section 12A of
18. Inviting our attention to section 145 of the West Bengal Cooperative Societies Act,
2006 (hereafter the 2006 Act), Mr. Chanda urged us to hold that the appropriate
forum under the CP Act was competent to receive a complaint from a purchaser
against a promoter for a perceived deficiency in service and to decide it, and also
that ouster of the jurisdiction of the ‘civil court’, ordained by section 12A of the
lodged under the CP Act. It was also submitted by Mr. Chanda that the learned
judges of this Court, who ruled that the consumer fora have no jurisdiction in
view of section 12A of the Building Act, did not have the benefit of considering
the decisions of the Supreme Court wherein it has been categorically laid down
that the fora created by the CP Act are not ‘courts’ but are quasi-judicial bodies
or authorities or agencies.
19. The decisions relied upon by the learned advocates opposing Mr. Jha and Mr.
20. Having heard the parties at length and on consideration of the decisions cited at
the bar, we now venture to answer the reference. Hereafter the purchaser of a
‘promoter’.
21. At the outset, the divergent views giving rise to the reference may be noted.
22. By a judgment and order dated December 14, 2012, a learned Judge of this
Court while deciding Rita Das v. Jayashri Ghosh, reported in 2012 (1) CHN (Cal)
272, held that the Building Act was a special Act and in view of the specific
embargo created thereunder, “the Consumer Forum or the State Commission” was
23. Another learned Judge while deciding Bithi Das v. Debabrata Majumdar,
reported in 2014 (1) CHN (Cal) 50, on August 2, 2013, noticed the decision in
Rita Das (supra) and, inter alia, held that since the district forum constituted
under the CP Act has no authority to pass orders for execution and registration
of the deed in favour of the complainants, the complaint before the district forum
and the appeal before the appellate authority are not maintainable at all for
the complainants to take recourse to the Building Act in accordance with law was
reserved.
24. Concurrence of the aforesaid views expressed in Rita Das (supra) and Bithi Das
another learned Judge. The first one is dated November 7, 2014 in Krishna
Abason Pvt. Ltd. v. Krishna Sarkar, reported in 2015 (2) CHN 82, and the other
is dated November 27, 2014 in Khurshid Ahmed Ansari v. Md. Afzal, 2015 (1)
25. Significantly, apart from generally relying on Rita Das (supra), Bithi Das (supra),
Krishna Abason Pvt. Ltd. (supra) and Khurshid Ahmed Ansari (supra), neither
Mr. Jha nor Mr. Bardhan sought to contend that the maxim leges posteriors
priores contrarias abrogant (later laws repeal earlier laws inconsistent therewith)
26. In contrast to the aforesaid four decisions, decisions of two other learned Judges
(which are unreported) strike discordant notes. The first is a decision dated July
4, 2013 in C.O. 1378 of 2012 (Narayan Chandra Ghosh & anr. v. Biswajit
Lahiri) and the other is dated April 28, 2016 in C.O. 1480 of 2014 (Md. Akbar
the decision in Rita Das (supra); however, for the reasons assigned in the
decisions, the respective learned Judges declined to follow Rita Das (supra) and
arrived at the concurrent conclusion that the fora under the CP Act have the
27. It is because of such divergence of views for and against applicability of the CP
reference was initially made by the learned Judge while hearing C.O. 2440 of
the same point came up for consideration before other learned single Judges
having determination, the same were also referred to the Hon’ble the Chief
Justice for constitution of a larger bench to resolve the apparent conflict in views.
28. It may, however, be placed on record that the initial reference that was made in
C.O. 2440 of 2011 (supra) does not survive because such revisional application
has been dismissed as not pressed on the joint prayers of the parties who at a
any dispute pertaining to a flat purchased by the former from the latter could be
30. We propose to answer the reference by looking at the issue at hand from three
different aspects. The first is, whether the Consumer Disputes Redressal Forum
entertain or decide any question relating to matters arising under any provision
of the Building Act and the rules framed thereunder is barred by section 12A
thereof? The second is, whether it is the legislative intent that jurisdiction of the
fora created by the CP Act should be excluded from resolving disputes between a
home buyer and a promoter? The third and final is, whether despite the explicit
bar that section 12A engrafts, a ‘civil court’ could still be approached by a
31. Before examining the crux of the controversy, it is considered appropriate to note
certain salient features of the Building Act. It is evident from the preamble that
the Building Act was enacted to provide for the regulation of promotion or
customary, section 2 of the Building Act defines terms used therein which would
expressions ‘apartment’, ‘block’, ‘building’ and ‘flat’ at this stage since it is not
disputed that one of the parties to the dispute is a ‘purchaser’ and the other a
‘promoter’ within the meaning of clauses (h) and (g) respectively of section 2 of
the Building Act. The terms ‘promoter’ and ‘purchaser’ are defined in the Building
Act as follows:
32. The regulatory measures that the Building Act envisages, inter alia, are to be
found in section 3 (providing for registration of the name of the promoter and for
without the consent of the purchaser), section 9 (providing for certain prohibition
and the consequences for violation thereof), etc. The original section 13 of the
Building Act has been omitted and replaced by sections 13A and 13 B. The
former provides what would constitute an offence under the Building Act whereas
construct has been made an offence which, if proved, could make the promoter
33. The Building Act further provides an appellate remedy to a promoter in section 5.
An appeal would lie either against an order of the authorized officer refusing
34. It is now time to read sections 6 and 12A of the Building Act. The same are
quoted below:
35. Section 6 of the Building Act, on a bare reading, makes a forum available for a
home buyer to approach if he has any dispute regarding the purchase of any flat
required to be made in the prescribed form to such officer that the State
by Promoters) Rules, 1995 (hereafter the Building Rules) have been framed. An
be preferred in Form ‘G’ before the authorized officer and the officer is required in
terms of rule 7 to decide the application in compliance with the rule of audi
below the rank of Deputy Magistrate and Deputy Collector, or other officer as
Clause (e) of rule 2 provides that the State Government would mean the
36. Adverting attention to section 12A of the Building Act, we find sub-section (2)
thereof to make it clear that orders passed under various provisions of the
Building Act would be final and binding. What emerges from a reading of sub-
section (1) of section 12A is that it bars a ‘civil court’ from exercising jurisdiction
to entertain or decide any question relating to matters arising under any
provision of the Building Act or the Building Rules. In other words, a grievance
that a home buyer has against a promoter relatable to any of the provisions of
the Building Act and/or the Building Rules would be barred from being resolved
by a ‘civil court’.
37. In course of hearing, Mr. Jha and Mr. Bardhan conceded that the respective
mandated by sub-section (1) of section 3 of the Building Act. This aspect of the
matter would be of some significance in our thought process for the reasons that
38. It would be appropriate at this juncture to note what the CP Act provides.
held in Charan Singh v. Healing Touch Hospital, reported in (2000) 7 SCC 668.
39. By reason of the definition of ‘service’ in section 2(o), ‘consumer’ in section 2(d),
‘defect’ in section 2(f) and ‘deficiency’ in 2(g) of the CP Act read with the definition
of ‘consumer dispute’ in section 2(e) thereof, there can be no two opinions that if
reported in (1994) 1 SCC 243, is an authority for the proposition that even when
against it would lie before the consumer forum at the instance of an aggrieved
home buyer.
40. Constitutionality of the provisions of the CP Act was examined by the Supreme
reported in (2003) 2 SCC 412. While repelling the challenge, the object and
purpose of the CP Act, laid down in previous decisions, were noted. Pertinent
“17. The provisions of the said Act clearly demonstrate that it was enacted
keeping in view the long-felt necessity of protecting the common man from
wrongs wherefor the ordinary law for all intent and purport had become
illusory. In terms of the said Act, a consumer is entitled to participate in
the proceedings directly as a result whereof his helplessness against a
powerful business house may be taken care of.
18. This Court in a large number of decisions considered the purport and
object of the said Act. By reason of the said statute, quasi-judicial
authorities have been created at the district, State and Central levels so as
to enable a consumer to ventilate his grievances before a forum where
justice can be done without any procedural wrangles and
hypertechnicalities.
19. One of the objects of the said Act is to provide momentum to the
consumer movement. The Central Consumer Protection Council is also to
be constituted in terms of Section 4 of the Act to promote and protect the
rights of the consumers as noticed hereinbefore.”
41. It is also not disputed before us that but for the enactment of the Building Act
containing sections 6 and 12A, the present controversy may not have emerged,
for, in such case, the home buyer could complain before the appropriate forum
under the CP Act and such complaint would be maintainable without any
“3. Act not in derogation of any other law.—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.”
The plain reading of the aforesaid provision would suggest that the remedy made
other remedies are available to him under any other valid law.
authoritative terms lays down that the remedy made available under the CP Act
supplements and does not supplant the jurisdiction of the civil courts or other
statutory authorities and also that the provisions of the CP Act are required to be
consumer forum has jurisdiction to entertain a complaint despite the fact that
other forums/courts would also have jurisdiction to adjudicate upon the lis.
(2004) 1 SCC 305, the Supreme Court upon considering section 3 of the CP Act
held as follows:
“12. As per Section 3 of the Act, as already stated above, the provisions of
the Act shall be in addition to and not in derogation of any other provisions
of any other law for the time being in force. Having due regard to the
scheme of the Act and purpose sought to be achieved to protect the interest
of the consumers better, the provisions are to be interpreted broadly,
positively and purposefully in the context of the present case to give
meaning to additional/extended jurisdiction, particularly when Section 3
seeks to provide remedy under the Act in addition to other remedies
provided under other Acts unless there is a clear bar.”
45. Not too long ago, the Supreme Court once again in Virender Jain v. Alaknanda
reiterated that the remedy under the CP Act is in addition to the remedies
available under other statutes and the availability of alternative remedies is not a
46. Having dwelled on the Building Act and the CP Act, to the extent relevant, it is
time to enter into the arena of the bar created by section 12A of the former Act.
The discussion following would relate to the first aspect mentioned above.
47. The marginal note of section 12A though uses the term ‘court’, the text of the
main provision is that a ‘civil court’ is barred from receiving and trying a suit
involving matters arising under any provision of the Building Act or the rules
made thereunder. Law is well settled that a marginal note can neither override
the text of the statutory provision nor control the specific meaning of a word in
the text. Therefore, the bar referred to in section 12A is referable to a ‘civil court’
48. This being the unambiguous position, the contentions of Mr. Jha and Mr.
Bardhan that the fora created under the CP Act are ‘civil courts’ and an original
49. We start with Black’s Law Dictionary. There, it is said that ‘Court’ is an organ of
classified and divided according to several methods. Of them, civil courts are
1818, a Constitution Bench of the Supreme Court was seized of the question as
proceeding’ under Article 132(1) of the Constitution. It was held that the
It was further held that a proceeding in which relief is claimed against action of
within the meaning of Article 132(1). A passage from such decision, providing
“8. *** The expression ‘civil proceeding’ is not defined in the Constitution,
nor in the General Clauses Act. The expression in our judgment covers all
proceedings in which a party asserts the existence of a civil right conferred
by the civil law or by statute, and claims relief for breach thereof. A
criminal proceeding on the other hand is ordinarily one in which if carried
to its conclusion it may result in the imposition of sentences such as
death, imprisonment, fine or forfeiture of property. It also includes
proceedings in which in the larger interest of the State, orders to prevent
apprehended breach of the peace, orders to bind down persons who are a
danger to the maintenance of peace and order, or orders aimed at
preventing vagrancy are contemplated to be passed. But the whole area of
proceedings, which reach the High Courts is not exhausted by classifying
the proceedings as civil and criminal. There are certain proceedings which
may be regarded as neither civil nor criminal. For instance, proceeding for
contempt of court, and for exercise of disciplinary jurisdiction against
lawyers or other professionals, such as Chartered Accountants may not fall
within the classification of proceedings, civil or criminal. But there is no
warrant for the view that from the category of civil proceedings, it was
intended to exclude proceedings relating to or which seek relief against
enforcement of taxation laws of the State. The primary object of a taxation
statute is to collect revenue for the governance of the State or for providing
specific services and such laws directly affect the civil rights of the tax-
payer. If a person is called upon to pay tax which the State is not
competent to levy, or which is not imposed in accordance with the law
which permits imposition of the tax, or in the levy, assessment and
collection of which rights of the tax-payer are infringed in a manner not
warranted by the statute, a proceeding to obtain relief whether it is from
the tribunal set up by the taxing statute, or from the civil court would be
regarded as a civil proceeding. The character of the proceeding, in our
judgment, depends not upon the nature of the tribunal which is invested
with authority to grant relief, but upon the nature of the right violated and
the appropriate relief which may be claimed. A civil proceeding is,
therefore, one in which a person seeks to enforce by appropriate relief the
alleged infringement of his civil rights against another person or the State,
and which if the claim is proved would result in the declaration express or
implied of the right claimed and relief such as payment of debt, damages,
compensation, delivery of specific property, enforcement of personal rights,
determination of status etc.”
51. It thus seems to be clear that an action brought to enforce, redress or protect
private rights conferred by the civil law or by statute is a ‘civil action’. Therefore,
a civil action once brought before a ‘Court’ and received by it for decision is
52. There can, thus, be no doubt that a proceeding brought before a forum created
constitutionally valid statute. “Court” is a generic term and other terms like
54. At this stage, a brief reference ought to be made to ‘civil courts’ functional in this
State. The relevant enactment governing ‘civil courts’ is the Bengal, Agra and
Assam Civil Courts Act, 1887 (hereafter the Civil Courts Act). Section 3 of the
Civil Courts Act classifies courts into courts of (i) District Judge; (ii) Additional
Judge; (iii) Civil Judge (Senior Division); and (iv) Civil Judge (Junior Division).
Section 13 of the Civil Courts Act is relatable to the local limits of jurisdiction of
any such civil court. The power of these courts to take cognizance of civil suits
and to try and decide the same flows from the Code of Civil Procedure (hereafter
the CPC). It is of some significance to note that once it is decided according to law
that there is requirement of more ‘civil courts’, such courts are created and
appointing judges to preside over the ‘civil courts’. However, the notifications by
which creation of the State Commission and the District Fora had been made
known to the public were not issued by the Judicial Department, Government of
West Bengal but by the Government in the Food and Supplies Department which
benches/circuit benches thereof. If indeed the fora created by the CP Act were to
other than the Judicial Department could have issued such notifications.
55. This is one reason for which we are not persuaded to agree with Mr. Jha and Mr.
Bardhan that the consumer fora available in this State, created in terms of the
or the National Commission created by the CP Act are not ‘courts’, what then is
their status? We have to take a few steps backward in point of time to find the
answer. With the increase of population over the years, disputes increased
manifold. The ‘civil courts’ that were available were insufficient to cater to the
need of the litigants who approached it. With passage of time, realization having
dawned on the Government of the day that proceedings brought before ‘civil
courts’ in respect of civil actions take a long time to conclude, thereby benefiting
a wrong doer and frustrating the party seeking justice, the idea of constituting
justice seeker. Having regard to the special nature of dispute that is brought
before a tribunal, the proceedings before it could well partake the character of
civil proceedings which, in the absence of such tribunals, could have been
received and tried by the civil courts. Since reducing the burden of the ‘civil
courts’ was the paramount object, the competent legislature invariably engrafted
‘civil courts’ in respect of any matter which under such statute is required to be
received and tried by the specialized tribunal. The fora created by the CP Act,
without doubt, are such special tribunals which were brought into existence to
achieve its avowed objects. In Charan Singh (supra), law has been laid down
that the authorities under the CP Act exercise quasi-judicial powers for redressal
of consumer disputes and it is one of the postulates of such a body that it should
3 SCC 583, views have been expressed that the CP Act has created fora for
decisions in respect of consumer disputes, which are not ‘Courts’ but quasi-
‘civil court’.
58. There are, however, certain fundamental differences between a ‘civil court’ and a
11 SCC 1, traced the differences between courts and tribunals and held as
follows:
“45. Though both courts and tribunals exercise judicial power and
discharge similar functions, there are certain well-recognised differences
between courts and tribunals. They are:
(i) Courts are established by the State and are entrusted with the State’s
inherent judicial power for administration of justice in general. Tribunals
are established under a statute to adjudicate upon disputes arising under
the said statute, or disputes of a specified nature. Therefore, all courts are
tribunals. But all tribunals are not courts.
(ii) Courts are exclusively manned by Judges. Tribunals can have a
Judge as the sole member, or can have a combination of a judicial member
and a technical member who is an ‘expert’ in the field to which the tribunal
relates. Some highly specialised fact-finding tribunals may have only
technical members, but they are rare and are exceptions.
(iii) While courts are governed by detailed statutory procedural rules, in
particular the Code of Civil Procedure and the Evidence Act, requiring an
elaborate procedure in decision-making, tribunals generally regulate their
own procedure applying the provisions of the Code of Civil Procedure only
where it is required, and without being restricted by the strict rules of the
Evidence Act.”
59. A few months prior to the aforesaid decision, while rendering its decision in
Corpn., reported in (2009) 8 SCC 646, the Supreme Court was in seisin of the
question as to whether it or the High Court has the power to transfer a suit
alia, as follows:
“67. The terms ‘tribunal’, ‘court’ and the ‘civil court’ have been used in the
Code differently. All ‘courts’ are ‘tribunals’ but all ‘tribunals’ are not
‘courts’. Similarly all ‘civil courts’ are ‘courts’ but all ‘courts’ are not ‘civil
courts’. It is not much in dispute that the broad distinction between a
‘court’ and a ‘tribunal’ is whereas the decision of the ‘court’ is final the
decision of the ‘tribunal’ may not be. The ‘tribunal’, however, which is
authorised to take evidence of witnesses would ordinarily be held to be a
‘court’ within the meaning of Section 3 of the Evidence Act, 1872. It
includes not only Judges and Magistrates but also persons, except
arbitrators, legally authorised to take evidence. It is an inclusive definition.
There may be other forums which would also come within the purview of
the said definition.
***
69. Civil court is a body established by law for administration of justice.
Different kinds of law, however exist, constituting different kinds of courts.
Which courts would come within the definition of the civil court has been
laid down under the Code of Civil Procedure itself. Civil courts
contemplated under Section 9 of the Code of Civil Procedure find mention
in Sections 4 and 5 thereof. Some suits may lie before the Revenue Court,
some suits may lie before the Presidency Small Cause Courts. The Code of
Civil Procedure itself lays down that the Revenue Courts would not be
courts subordinate to the High Court.”
***
71. Civil courts are constituted under statutes, like the Bengal, Agra and
Assam Civil Courts Act, 1887. Pecuniary and territorial jurisdiction of the
civil courts are fixed in terms thereof. Jurisdiction to determine subject-
matter of suit, however, emanates from Section 9 of the Code.
***
73. *** the word “civil court” vis-à-vis a court must be construed having
regard to the text and context of the statute.
***
88. We have noticed hereinbefore that civil courts are created under
different Acts. They have their own hierarchy. They necessarily are
subordinate to the High Court. The appeals from their judgment will lie
before a superior court. The High Court is entitled to exercise its power of
revision as also superintendence over the said courts. For the
aforementioned purpose, we must bear in mind the distinction between two
types of courts viz. civil courts and the courts trying disputes of civil
nature. Only because a court or a tribunal is entitled to determine an issue
involving civil nature, the same by itself would not lead to the conclusion
that it is a civil court. For the said purpose, as noticed hereinbefore, a legal
fiction is required to be created before it would have all attributes of a civil
court.”
60. Reference made by Mr. Mukherjee and Mr. Drolia to the decisions of the Supreme
61. Paragraph 43 of the decision in Malay Kumar Ganguli (supra) reads as follows:
“54. ***** The proceedings before the National Commission are although
judicial proceedings, but at the same time it is not a civil court within the
meaning of the provisions of the Code of Civil Procedure. It may have all the
trappings of the civil court but yet it cannot be called a civil court.”
62. In Kishore Lal (supra), a Bench of three learned Judges of the Supreme Court
was considering whether the subject dispute could be resolved by the civil court
despite a forum made available by the Employees’ State Insurance Act, 1948
(hereafter the ESI Act). After noticing previous decisions, it had the occasion to
observe as follows:
“17.***** The trend of decisions of this Court is that the jurisdiction of the
consumer forum should not and would not be curtailed unless there is an
express provision prohibiting the consumer forum to take up the matter
which falls within the jurisdiction of Civil Court or any other forum
established under some enactment. The Court had gone to the extent of
saying that if two different fora have jurisdiction to entertain the dispute in
regard to the same subject, the jurisdiction of the consumer forum would
not be barred and the power of the consumer forum to adjudicate upon the
dispute could not be negated.”
In paragraph 21 of the said decision, it was also held by the Court that the
(2) or (3) of section 75 of the 1948 Act. Significantly, sub-section (3) of section 75
prohibits a ‘civil court’ to decide or deal with any question or dispute as in sub-
sections (1) and (2) or to adjudicate any liability which by or under the 1948 Act
63. In view of our discussion as above as well as the authorities that we have noted,
the conclusion is inescapable that the consumer fora created by the CP Act are
not ‘courts’, far less ‘civil courts’, and its jurisdiction to receive a complaint from
a home buyer against a promoter is not barred in view of the provisions of section
64. Having so concluded, we move on to the second aspect, i.e., to ascertain the
65. In M. Lalitha (supra), the Supreme Court was considering the question as to
whether the complaint lodged before the district forum was maintainable having
regard to the provisions of Sections 90 and 156 of the Tamil Nadu Cooperative
Societies Act, 1983. Upon consideration of the provisions of the CP Act, the Court
“18. The decision in Dhulabhai case, AIR 1969 SC 78, also does not help the
appellant. The present case is not one where the question to be considered is
as to the exclusion of jurisdiction of the civil court in view of the provisions of
Section 90 read with Section 156 of the Act. Provisions of the 1986 Act, as
already made clear above, apply in addition to the other provisions available
under other enactments. It follows that the remedies available under the 1986
Act for redressal of disputes are in addition to the available remedies under
the Act. Under the 1986 Act we have to consider as regards the additional
jurisdiction conferred on the forums and not their exclusion. In Dhulabhai
case consideration was whether the jurisdiction of the civil court was
excluded. Propositions (1) and (2) indicate that where the statute gives a
finality to the orders of the Special Tribunals, the jurisdiction of civil courts
must be held to be excluded if there is adequate remedy to do what the civil
courts would normally do in a suit. Further, where there is an express bar on
the jurisdiction of the court, an examination of the scheme of the particular
Act to find the adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the civil court. The
remedies that are available to an aggrieved party under the 1986 Act are
wider. For instance, in addition to granting a specific relief the forums under
the 1986 Act have jurisdiction to award compensation for the mental agony,
suffering etc. which possibly could not be given under the Act in relation to
dispute under Section 90 of the Act. Merely because the rights and liabilities
are created between the members and the management of the society under
the Act and forums are provided, it cannot take away or exclude the
jurisdiction conferred on the forums under the 1986 Act expressly and
intentionally to serve a definite cause in terms of the objects and reasons of
the Act, reference to which is already made above. When the decision of
Dhulabhai case was rendered, the provisions similar to the 1986 Act providing
additional remedies to parties were neither available nor considered. If the
argument of the learned counsel for the appellant is accepted, it leads to
taking away the additional remedies and forums expressly provided under the
1986 Act, which is not acceptable.
19. The question of conflict of decisions may not arise. If the parties approach
both the forums created under the Act and the 1986 Act, as indicated in the
case of Fair Air Engineers (P) Ltd. it is for the forum under the 1986 Act to
leave the parties either to proceed or avail the remedies before the other
forums, depending on the facts and circumstances of the case.”
point of time, the West Bengal Cooperative Societies Act, 1983 (hereafter the
1983 Act) was in force. Section 95 of the 1983 Act provided for reference of
whereas section 134 thereof created the bar of jurisdiction exercisable by a Civil
Court or a Revenue Court in regard to anything done or any action taken or any
order passed under such Act including a dispute required to be referred to the
Registrar under section 95. The 1983 Act was repealed by the 2006 Act. The
provision regarding reference of disputes to the Registrar for decision has now
the 2006 Act requires disputes to be filed before the Registrar, section 103
Section 145 of the 2006 Act has the marginal note ‘Indemnity and bar to
follows :
67. With the introduction of the words “Consumer Disputes Redressal Forum” in
sub-section (2) of section 145 of the 2006 Act, the appropriate consumer forum
in the State of West Bengal would be denuded of the jurisdiction to try a dispute
(supra).
68. The language of 12A of the Building Act is, however, clear as crystal. The
jurisdiction of the ‘civil court’ is barred thereby, and not that of the fora created
by the CP Act, although Mr. Jha and Mr. Bardhan have urged, as noted above,
that the fora created by the CP Act are ‘civil courts’ within the meaning of section
12A. It is because of such contention that section 12A calls for an appropriate
legislature, in its wisdom, did not include the words “Consumer Disputes
Redressal Forum” in section 12A of the Building Act, though the same words are
to be found in the subsequent legislation, i.e., the 2006 Act. That the subsequent
legislation deals with a different subject is not really of any consequence. What is
Disputes Redressal Forum” in sub-section (2) of section 145 of the 2006 Act
clearly suggests the legislative intent to exclude the jurisdiction of the consumer
fora in relation to disputes arising under the 2006 Act from the purview of the CP
Act. If indeed the legislative intent were such that the fora created by the CP Act
promoter under the Building Act, such intent could have been clearly expressed
in section 12A in the same manner as expressed in section 145 of the 2006 Act.
The legislative intent being clearly discernible qua the bar created by section 12A
of the Building Act on the one hand and section 145 of the 2006 Act on the other,
it can safely be held that the net of bar created by section 12A of Building Act
cannot be spread so wide and high that it would preclude the consumer fora to
entertain, try and decide a dispute between a home buyer and a promoter which
the appropriate forum under the CP Act notwithstanding the remedy available
69. The time is now ripe to consider the decisions in Rita Das (supra), Bithi Das
(supra), Krishna Abason Pvt. Ltd. (supra) and Khurshid Ahmed Ansari (supra)
70. In Rita Das (supra), the learned Judge was seized of two questions, viz. (i)
whether the consumer forum is competent to grant the decree for specific
section 12A of the Building Act creates an embargo for the consumer forum to
Martins v. Mafalda Maria Teresa Rodrigues, reported in (1999) 6 SCC 627, and
Consumer Disputes Redressal Forum, reported in 2005 (4) CHN 694, as well as
other decisions, the learned Judge answered both the questions, as aforesaid, in
Court in In Re: State Transport Authority, reported in 1991 (2) CHN 131, to
the effect that neither the District Forum nor the State Commission has the
trappings of a civil court, not to be good law in view of SBP Company (supra).
“Thus, in view of the specific embargo created under the Special Act, the
Consumer Forum or the State Commission was not competent to pass the
order and/or entertain the said complaint. ***”
71. We find it difficult to agree with the learned Judge on the point of exclusion of the
CP Act to a dispute covered by the Building Act. Arvind Mills Limited (supra) is
notice under section 10 of the Carriers Act, 1865 is a pre-condition for lodging a
complaint under the CP Act. Such decision could not have been relied upon to
record the conclusion in paragraph 25, extracted supra. Further, M/s. SBP
Company (supra), is not a direct decision dealing with the CP Act. Decisions of
the Supreme Court dealing with the CP Act, referred to above, have
authoritatively laid down the law that despite having the trappings of a civil
court, the fora created by the CP Act are not civil courts. In our considered
opinion, State Transport Authority (supra) correctly decided that the complaint
before the District Forum was not maintainable at the instance of a person
stage carriage service; the complainant was neither buying goods nor hiring any
service, hence he was not a consumer and grant of permit does not amount to
Krishnan (supra), the Telegraph Act, 1885 was under consideration and not the
CP Act. When there are decisions of the Supreme Court in the field that the
remedy under the CP Act is an additional remedy, which the consumer as defined
other statutes, the decision in M. Krishnan (supra) could have easily been
distinguished. The embargo created by section 12A of the Building Act at the
highest is applicable so far as civil courts are concerned, but in our view would
72. Bithi Das (supra) is also a decision which proceeded on the basis that the
Building Act is a special statute and that it “has an overriding effect”. The learned
Judge also held that the dispute arising for decision was fully covered by the
Building Act thereby rendering the complaint before the appropriate consumer
forum not maintainable. In paragraph 14, the learned Judge held as follows:
“The Court of Forum shall not pass a decree which cannot be executed at
all. From that angle also the said complaint before the District Forum and
its appeal before the Appellate Authority, in my view, are not maintainable
at all. So, both the District Forum and the State Commission have acted
without jurisdiction. In such a situation, this Hon’ble Court can well
interfere ***”
Act. Moreover, it was not considered that the authorized officer acting under
section 6 of the Building Act has not even been conferred powers akin to powers
conferred on the consumer fora by sub-sections (4), (5) and (6) of section 13 of
the CP Act. Also, the learned Judge did not consider the aspect of relief (that
claim before the authorized officer under the Building Act and the rules framed
under the CP Act by the consumer fora. However, we need not dilate much on the
topic of relief that could be had under the provisions of the Building Act since
under the provisions of the CP Act, as held in Rita Das (supra) upon considering
Mookerjee (supra), the consumer forum is competent to grant the decree for
73. In Krishna Abason Private Limited (supra), the learned Judge referred to the
decision in Narayan Chandra Ghosh (supra) and observed that the ratio thereof
had been considered in Rita Das (supra). The learned Judge also observed that
M/s SBP and Company (supra) ruled that the district forum has the trapping of
a civil court. Having regard to the explicit bar created by section 12A of the
Building Act, the complaint before the relevant consumer forum was held to be
not maintainable.
74. The learned Judge who decided Khurshid Ahmed Ansari (supra) was also the
author of the decision in Krishna Abason Private Limited (supra). In view of the
reasons assigned in the latter decision, the complaint in question was held to be
not maintainable.
75. For the reasons we have assigned to express our inability to concur with the
our inability to agree with the other decisions too which followed the same.
76. Pertinently, it does appear on reading of all these decisions that the learned
Judges’ attention were not drawn to Malay Kumar Ganguly (supra), where it was
specifically held that the National Commission may have all the trappings of civil
courts, yet, it is not a civil court and Kishor Lal (supra) which recognises the
availability of a forum under any other enactment and the absence of any express
bar in such enactment prohibiting the consumer fora to entertain any complaint.
77. In our view, the maxim leges posteriores priores contraias abrogant postulates an
inconsistency between two statutes, one which is a general statute and the other
the general statute would have to yield to the special statute. Apart from the legal
position that emerges on a reading of the Building Act and CP Act that there is no
inconsistency and that the two statutes provide different fora for resolution of a
dispute between a home buyer and a promoter, ~ and which can co-exist in the
absence of a clear indication in the special statute that remedy available under
different fora under a general statute and a special statute should ipso facto lead
to the conclusion that the forum created by the general statute would stand
excluded. There is no warrant for the proposition that the forum created by the
CP Act is a ‘civil court’, and therefore, the bar of section 12A of the Building Act
would not be applicable to proceedings before the consumer forum under the CP
Act. The decisions in Rita Das (supra), Bithi Das (supra), Krishna Abason
Private Limited (supra) and Khursid Ahmad Ansari (supra) holding, to the
78. The decisions in Fair Air Engineers Private Limited (supra), M/s SBP and
Company (supra) and Ethiopian Airlines (supra) have been duly perused and
the ratio decidendi thereof noted. Such decisions do not aid Mr. Jha at all for a
79. In SBP and Company (supra), the question arising for decision of the
“2. What is the nature of the function of the Chief Justice or his designate
under Section 11 of the Arbitration and Conciliation Act, 1996 is the
question that is posed before us. ***”
The majority concluded that the power exercised by the Chief Justice of the High
Courts and the Chief Justice of India under section 11(6) is a judicial power.
80. This decision was cited by Mr. Jha to show that the view expressed in Fair Air
Engineers (P) Ltd. (supra) to the effect that a ‘court’ defined in section 2(e) of the
Arbitration Act would include a special tribunal like the consumer forum, was
approved. The said decision did not directly deal with the CP Act and hence any
observation therein with regard to the fora created by the CP Act may not
Constitution of India.
81. The central questions referred for the decision of the larger bench in Ethiopian
Airlines (supra) were whether the appellant could claim sovereign immunity as
also whether proceedings before the consumer forum are suits. The question was
answered in the affirmative considering the provisions of the Carriage by Air Act,
1972 as well as several foreign and Indian decisions. However, it was also held
that section 86 of the CPC does not apply to proceedings under the CP Act and
Airways (supra) and Anis Ahmad (supra) turn on the facts before the Courts and
consideration there.
83. Our conclusion in regard to the decisions cited by Mr. Bardhan is also the same.
84. Now we move on to consider the last aspect as to whether in respect of any
question relating to matters arising under any provision of the Building Act, the
section 12A of the Building Act, an impression is likely to be created that the
arising out of any provision of the Building Act and the Building Rules.
85. In fact, a coordinate Bench of this Court in Narayan Chandra Ghosh (supra),
was of the view (on reading the plaint as a whole) that the relevant civil court had
rightly not entertained the dispute raised by the plaintiffs in their plaint having
regard to the bar created by section 12A of the Building Act, which was an
explicit bar. The plaint revealed that in terms of the agreement entered into by
and between the parties, the plaintiffs had made full payment of the
consideration money to the promoter but the promoter was not complying with
86. While there can be no disagreement with the view expressed in Narayan Chandra
Ghosh (supra) since the pleaded case in the plaint there led to the conclusion
that the suit was not maintainable before the ‘civil court’, and it is a course of
of the ‘civil court’ is raised, we are left to wonder what would be the position if a
within the meaning of promoter as defined in section 2(g) of the Building Act
under sub-section (1) of section 3 of the Building Act? Would the jurisdiction of
the ‘civil court’ be still excluded even though there has been non-compliance with
the provisions of the Building Act by the promoter? Can a promoter who defaults
receiving and trying a suit which could have been a subject of dispute before the
authorized officer under section 6 provided the promoter is not a defaulter? What
plaint as a factor to overcome the bar created by section 12A of the Building Act?
These are questions arising incidentally in course of the reference and we
87. Exclusion of the jurisdiction of the ‘civil court’ is not to be readily inferred, is
settled law. However, law is also well settled that if the jurisdiction of the ‘civil
88. In view of the proviso to clause (g) of section 2 of the Building Act, any person
promoter and such promoter is bound to obtain registration and permission for
section 13A and is liable to punishment, on conviction, under section 13B of the
Building Act. The Supreme Court in Sri Vedagiri Lakshmi Narasimha Swami
reiterating that under section 9 of the CPC the courts shall have jurisdiction to
try all suits of a civil nature excepting suits of which their cognizance is either
settled principle that a party seeking to oust the jurisdiction of an ordinary civil
court shall establish the right to do so”. This observation raises a couple of
questions. The first is, can this observation of establishing “the right to do so” be
read as requiring the objector not only to show that he has a right to object to a
civil court receiving a suit under the particular statute, but also that whatever is
required of him by such statute has been performed by him thereby enabling him
to raise such objection? Secondly, since any person who either does not obtain
Act is a violator of the statute, can such a violator (to escape a determination by
the civil court of the rights and liabilities of the parties) urge that the jurisdiction
of the civil court would be excluded if a civil suit is instituted by a home buyer
complaining of such violation and with an allegation that he has been duped into
In our view, if such person does not discharge the obligation that is required of
him by the statute, to the extent of such non-discharge, the person is deprived of
the protection conferred upon him by the statute in question. In such a case, the
violator (read the promoter) will make himself liable to the remedies available to
an aggrieved (read the home buyer) before any forum including the civil court. We
draw support for this proposition of law from the decision of the Supreme Court
where in the context of a wrong statement made by an aspirant for a post in the
“25. *** A person having done wrong cannot take advantage of his own
wrong and plead bar of any law to frustrate the lawful trial by a competent
court. In such a case the legal maxim nullus commodum capere potest de
injuria sua propria applies. The persons violating the law cannot be
permitted to urge that their offence cannot be subjected to inquiry, trial or
investigation. (Vide Union of India v. Major General Madan Lal Yadav,
(1996) 4 SCC 127 and Lily Thomas v. Union of India, (2000) 6 SCC 224.) Nor
can a person claim any right arising out of his own wrongdoing (jus ex
injuria non oritur).”
Similar view has been expressed by the Supreme Court in Eureka Forbes Ltd. v.
Allahabad Bank, reported in (2010) 6 SCC 193, and Ashok Kapil v. Sana Ullah,
reported in (1996) 6 SCC 342, and the maxim nullus commodum capere potest de
injuria sua propria has been held to be one of the salient tenets of equity.
89. More so, if a case of fraud is set up against the promoter, and relief is claimed
based on such pleading, we see no reason as to why the civil court’s jurisdiction
should be excluded in such a situation. It is true that the Building Act while
creating a forum under section 6 and barring the jurisdiction of the ‘civil court’
under section 12A does not provide, either expressly or impliedly, that a dispute
has not obtained the permission to construct would not be maintainable under
section 6 but nothing really turns on it. It is up to the home buyer to choose his
forum in such a case which would, in terms of the conclusions reached by us,
90. We, accordingly, rule that the decision in Narayan Chandra Ghosh (supra) would
hold the field in a case where it is not pleaded in the plaint that the promoter has
violated the provisions of section 3(1) of the Building Act; however, in a case
where the violation of section 3(1) is pleaded, a promoter may not have the right
to claim ouster of the jurisdiction of the ‘civil court’, and a breach of the
agreement between the parties by such a promoter could give rise to a right of
action in a ‘civil court’. Ultimately, it would be for the court before whom the suit
91. For the foregoing reasons, we hold that the fora under the CP Act is competent to
receive a complaint from a home buyer against a promoter if the former has any
of a flat/apartment.
92. The reference is answered accordingly. Let the records of the individual writ
93. Before parting, we ought to place on record that the decision in Cicily
behalf of the home buyers to urge that the civil revisional applications/writ
petitions at the instance of the promoters before this Court were not
CP Act that could be pursued by them. Having regard to the caution sounded in
Cicily Kallarackal (supra) and circulation of the decision amongst the learned
Judges of the High Courts the country over, a word or two about the jurisdiction
conferred by Article 226 of the Constitution on the High Courts and discussion of
certain relevant decisions in relation thereto, may not be inapt. From the
discussions that follow hereafter, it may not be understood even impliedly that
the decision in Cicily Kallarackal (supra) should not demand the deference that
94. The basic issue in Cicily Kallarackal (supra) was whether the Kerala High Court
did have the jurisdiction to entertain the writ petition against the judgment and
order passed by the National Commission, since such order could be challenged
before the Supreme Court in view of the provisions of the CP Act. It was
contended on behalf of the petitioner that the order of the High Court impugned
before the Supreme Court was a nullity for want of jurisdiction. So far as the
“learned counsel for the petitioner is right that the High Court had no jurisdiction to
deal with the matter against the order of the Commission” (underlined for
4.***, we cannot help but state in absolute terms that it is not appropriate
for the High Courts to entertain writ petitions under Article 226 of the
Constitution against the orders passed by the Commission, as a statutory
appeal is provided and lies to this Court under the provisions of the
Consumer Protection Act. Once the legislature has provided for a statutory
appeal to a higher court, it cannot be proper exercise of jurisdiction to
permit the parties to bypass the statutory appeal to such higher court and
entertain petitions in exercise of its powers under Article 226 of the
Constitution of India. ***”
95. It is further found from paragraph 9 of the said decision that the Bench sought to
make it clear that the orders of the National Commission are incapable of being
questioned under the writ jurisdiction of the High Court as a statutory appeal in
terms of section 27-A(1)(c) lies to the Supreme Court. The direction of caution,
referred to earlier, was accordingly issued that it would not be appropriate in the
exercise of jurisdiction by the High Courts to entertain writ petitions against the
orders of the National Commission and copy of the judgment of the Court was
96. It has been contended by learned advocates for the home buyers that what
apply to orders passed by the State Commission and the District Forum. In view
97. The decision in Cicily Kallarackal (supra) states in absolute terms that no
by any High Court. Why? The reason, as can be culled out by us therefrom, is
that a remedy of appeal to a higher court, i.e., the Supreme Court is available,
and a litigant aggrieved by an order of the National Commission must pursue the
statutory remedy of appeal before the Supreme Court instead of invoking the
98. Normally, in the exercise of judicial discretion, a High Court hearing a petition
under Article 226 of the Constitution or an application under Article 227 thereof
may decline to entertain the same if the relevant statute makes an alternative
appeal would entitle a party to raise both questions of facts as well as law,
only and not the decision, and in the latter interference could be made only if
Kallarackal (supra) has to be read (in the manner the learned Judges of the
Bench have required learned Judges of the High Courts to read it) as foreclosing
High Court should entertain a writ petition wherein an order of the National
higher than the High Courts and hence the latter have no jurisdiction.
99. Thus read, it may not follow from the decision in Cicily Kallarackal (supra) that
the State Commission or the District Forum. The State Commission and the
District Fora in a particular State are quasi-judicial bodies inferior to the relevant
High Court and therefore, the special reason for which orders passed by the
challenge before the High Courts would not apply. Therefore, Cicily Kallarackal
100. Be that as it may, in our humble view, the ruling in Cicily Kallarackal (supra)
raises more questions than what is answered. Since the oath we have taken
ordains us to uphold the Constitution and the laws, we cannot forget principles
study/research in relation to the scope of writ jurisdiction that the High Courts
of the country exercise, having been conferred the power of judicial review of
unfortunately, do not appear to have been placed before the relevant Bench for
101. Under Article 227(1) of the Constitution, the High Courts have the power of
relation to which it exercises jurisdiction. Clauses (2) and (3) of Article 227
contains provisions empowering the High Courts to exercise control over the
102. Reading Article 227 as it is, it admits of no doubt that the National Commission
is not a tribunal over which the High Courts can or may exercise its power of
103. To our mind, it has never been the law at least prior to Cicily Kallarackal (supra)
and till this date that a writ petition would not be maintainable if the alternative
distinction here, but nonetheless Cicily Kallarackal (supra) opens up new vistas.
Keeping aside our understanding of the law of writs, it has to be re-read and re-
excludes a High Court from exercising jurisdiction and/or its power of judicial
review under Article 226 of the Constitution if an order passed by any quasi-
judicial tribunal having its seat beyond the territorial limits of such High Court
but where the cause of action in part has arisen within such limits, is challenged.
and (2) of Article 226, what appears is that a writ can be issued by a High Court
authority or the residence of such person is within such court’s territorial limits,
or (ii) if the cause of action, wholly or in part, has arisen within the territorial
that the seat of such Government or authority, or the residence of such person,
104. Article 226 of the Constitution does not, in terms, impose any limitation or
alternative remedy is available to the party approaching it. That a High Court
the alternative remedy prior to approaching the court of writ is not a rule of law
but a rule of convenience and discretion which, at any rate, does not oust the
reference may usefully be made to the decision in Ram & Shyam Co. v State of
Haryana, reported in (1985) 3 SCC 267. In such decision, the decision of the
reported in AIR 1958 SC 86, was relied on wherein the Constitution Bench had
mandamus, that it will lie only where there is no other equally effective remedy”.
SCC1, almost all the precedents on the point of entertainability of a writ petition
“14. The power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other provision
of the Constitution. This power can be exercised by the High Court not only
for issuing writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari for the enforcement of any of the Fundamental
Rights contained in Part III of the Constitution but also for ‘any other
purpose’.
15. Under Article 226 of the Constitution, the High Court, having regard to
the facts of the case, has a discretion to entertain or not to entertain a writ
petition. But the High Court has imposed upon itself certain restrictions
one of which is that if an effective and efficacious remedy is available, the
High Court would not normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to operate as a bar in
at least three contingencies, namely, where the writ petition has been filed
for the enforcement of any of the Fundamental Rights or where there has
been a violation of the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law on this point but to cut down
this circle of forensic whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still hold the field.”
(underlining for emphasis by us)
106. One may not also overlook the decision of the Supreme Court in Surya Dev Rai
v. Ram Chander Rai, reported in AIR 2002 SC 3044, for a limited purpose.
Therein, the robust view of a Division Bench of the Delhi High Court in Govind v
State (Govt. of NCT of Delhi), reported in 2003 (6) ILD 468, was approved. It
“The power of the High Court under Article 226 cannot be whittled down,
nullified, curtailed, abrogated, diluted or even taken away by judicial
pronouncement or legislative enactment or even by amendment of the
Constitution. The power of judicial review is an inherent part of the basic
structure and it cannot be abrogated without affecting the basic structure
of the Constitution”.
107. Although Surya Dev Rai (supra) has been overruled on the point that a writ
petition under Article 226 of the Constitution would not be maintainable against
a judicial order passed by a ‘civil court’ and Article 227 thereof provides a remedy
to challenge such order, the discussions on the point of wide and expansive
108. The question of jurisdiction of the High Courts under Article 226 has also to be
viewed in the broad perspective of what the Constitution says and its
Union of India, reported in AIR 1997 SC 1125, and not from any perceived
narrow or constricted view that one might choose to take to shield decisions of
tribunals set up at the national level from judicial scrutiny under Article 226 on
the specious ground that an appeal lies to the Supreme Court. Provisions
inserted in the Constitution by the Constitution (Forty-second) Amendment Act,
1976, i.e., Articles 323A and Article 323B, seeking to exclude inter alia the power
of judicial review of the High Courts under Article 226 was struck down as ultra
vires on the ground that it violates the basic structure of the Constitution. If
indeed, the Parliament, the supreme authority to enact laws in the nation lacks
seeks to exclude the power of judicial review by the High Courts (which is part of
the basic structure of the Constitution), a fortiori, does it not follow that such
authority? The core principle of the rule of law “be you ever so high, the law is
above you” applies as much to the Supreme Court as to any other constitutional
Viewed in such context, can it be held that the jurisdiction of the High Courts is
barred when power of judicial review is urged to be exercised to interfere and set
an appeal lies to a higher court? Interestingly, the provisions of the CP Act were
Building Coop. Society (supra) where one of several contentions raised was that
the provisions of the CP Act strike at the independence of the judiciary. The
contention was repelled and constitutional validity of the CP Act upheld. What
“41. By reason of the provisions of the said Act, the power of judicial review
of the High Court, which is a basic feature of the Constitution, has not
been nor could be taken away.”
(underlining for emphasis by us)
109. In terms of the CP Act, an appeal lies under section 23 to the Supreme Court
from an order passed by the National Commission under section 21(a)(i), i.e. an
order in exercise of original jurisdiction. An appeal also lies under section 27-
A(1)(c) of the CP Act against an order passed by the National Commission under
the National Commission is not open to challenge before a High Court within
whose territorial limits the cause of action may have arisen and the appellate
remedy before the Supreme Court is the only remedy that is made available by
the CP Act, thereby excluding the power of judicial review of the High Court, does
it not erode the very basis on which the decision in Vishwabharathi House
unambiguous terms that the power of judicial review is not taken away, the dicta
110. In an appropriate case, where a party without exhausting the alternative remedy
that is available to him/it, invokes the writ jurisdiction of a High Court and while
valid reason as to why the High Court may not look into the petition to ascertain
whether what is claimed is correct, instead of dismissing it at the threshold on
the ground that the impugned order has been passed by the National
provision of the CP Act is under challenge along with an order of the National
Commission and the petition contains dual prayers to declare the impugned
quash such order, would the remedy of an appeal being available before a higher
court, i.e., the Supreme Court, be of any immediate significance and relevance?
while exercising its appellate power under the CP Act. Any declaration on the
vires of a statute/statutory provision ideally would come from the Supreme Court
exercising original writ powers (Article 32) or writ powers while hearing a civil
appeal arising out of a writ petition after grant of special leave (Article 136). On
the other hand, if the High Court is satisfied that there has been gross
should the High Court stay at a distance and say that the dicta in Cicilly
Kallarackal (supra) has to be shown respect since the decision itself has been
circulated for ensuring compliance and not the other decisions of high authority
not refer to decisions of the Supreme Court holding so. However, the decision in
Cicilly Kallarackal (supra) could result in rendering such right illusory for a
party. Take for instance a party (not covered by section 12 of the Legal Services
Authorities Act, 1987), who is based in Campbell Bay, Nicobar Islands and does
not have the financial as well as other resources to carry an order passed by the
appeal. Perceiving that the order, which is alleged to have been passed behind his
back, would intrude upon any of his Fundamental Rights, he seeks to have such
order effaced from the record and impugns such order before the Circuit Bench
principles of natural justice in the breach by the National Commission and prays
for a writ of certiorari. In such a scenario, should such a party be relegated to the
Parliament for no better reason than that an appeal is available before a court
higher than the High Court? Would the High Court be denuded of its jurisdiction
although the Constitution may have conferred upon the party the liberty to move
the court of writ? We are inclined to believe that the answers, on the basis of all
the precedents on the point [but not considered in Cicilly Kallarackal (supra)],
not having regard to the pleaded case as well as the existence of the remedy of a
statutory appeal before the Supreme Court is entirely the discretion of the
concerned learned Judge. The discretion may be declined acting judiciously but
to hold that the writ court would have ‘no jurisdiction’ to entertain the grievance
voiced in the writ petition and that it is the appellate power of the Supreme Court
in Cicilly Kallarackal (supra), we must say with the greatest of respect at our
command that Cicilly Kallarackal (supra) is a judicial pronouncement that
whittles down, nullifies, curtails, abrogates, dilutes and takes away the power
Rights and other rights that can validly be claimed by a party which, in terms of
the several previous decisions of the Supreme Court itself, the Supreme Court
cannot.
112. The principle underlying Article 141 of the Constitution is very clear. The law
declared by the Supreme Court shall be binding on all the courts within the
Forum is under challenge without even looking into the ground of challenge and
to the other decisions of high authority of the Supreme Court in any manner. If
an attempt were made to reconcile the conflicting views, the decision in Cicilly
Kallarackal (supra) should be read as one which lays down the law that
interference with the orders of the National Commission under sections 21(a)(i)
and 27 of the CP Act would not be permissible in the absence of any of the
National Commission, which is a creature of the CP Act, would not have the
power to decide on a question of constitutionality of a provision of the CP Act and
if such question incidentally arises while the order of the National Commission is
under challenge in any writ petition, would it not be proper to hold that the High
Court should decide the same at the first instance? The National Commission
does not enjoy any exalted status that its orders would not be subject to judicial
review, whatever be the nature of grievance that a party may have in relation to
it.
113. There is one other important aspect, sight of which cannot be lost. The decision
in Cicilly Kallarackal (supra) does not appear to have dealt with the same. Apart
from the power that the National Commission is empowered to exercise under
sections 21(a)(i) and 27 of the CP Act, it can exercise appellate power under
section 21(a)(ii) and revisional power under section 21(b) thereof. No doubt, an
appeal would lie before the Supreme Court against an order passed by the
What would be the legal position if a writ petition is presented before a High
under section 21(b), against which a statutory right of appeal before the Supreme
Court is not provided in the CP Act? Answer to this question would not be found
in Cicilly Kallarackal (supra), since the order under challenge there was not
Commission. Having regard to the special reason for which the High Courts were
held not to have any jurisdiction to entertain writ petitions against the orders of
the National Commission (an appeal is available to the Supreme Court against
orders passed thereunder), the said decision cannot be read as an authority
laying down the law that no order passed by the National Commission,
the High Courts. Given the limited right that the CP Act confers for presenting
appeals to the Supreme Court and that an appeal cannot be presented against an
order passed by the National Commission either under sub-clause (ii) of clause
(a) or under clause (b) of the CP Act, we are inclined to the view based on the
reason given in Cicilly Kallarackal (supra) itself that the High Courts would
have the jurisdiction to entertain writ petitions against appellate and revisional
difficult to persuade ourselves to agree with the proposition of law that if in a writ
petition under Article 226 of the Constitution the order of the National
Commission is under challenge, the High Court must dismiss the petition
Court, such remedy would be illusory for many and if such a reason were
without any of the exceptional situations being shown to exist, most certainly the
dicta in Cicilly Kallarackal (supra) would apply but such decision may not be
relied upon by a respondent at the admission stage of every case to have his
115. The preceding analysis is based on our own understanding of what the law is,
(supra). This analysis has been necessitated in view of a decision of the Supreme
(2018) 3 SCC 85. There the relevant High Court had interfered with measures
“15. It is the solemn duty of the court to apply the correct law without
waiting for an objection to be raised by a party, especially when the law
stands well settled. Any departure, if permissible, has to be for reasons
discussed, of the case falling under a defined exception, duly discussed after
noticing the relevant law. ***”
***
17. We cannot help but disapprove the approach of the High Court for
reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy
Engg. Works (P) Ltd, (1997) 6 SCC 450, observing:
‘32. When a position, in law, is well settled as a result of judicial
pronouncement of this Court, it would amount to judicial impropriety to
say the least, for the subordinate courts including the High Courts to
ignore the settled decisions and then to pass a judicial order which is
clearly contrary to the settled legal position. Such judicial adventurism
cannot be permitted and we strongly deprecate the tendency of the
subordinate courts in not applying the settled principles and in passing
whimsical orders which necessarily has the effect of granting wrongful
and unwarranted relief to one of the parties. It is time that this tendency
stops.’
115. Under the Constitutional regime, each High Court judge is duty bound to apply
which have stood the test of time. Any departure from Cicilly Kallarackal (supra)
must be supported by cogent reasons, after giving it the respect the same
deserves but such decision may not be preferred to other decisions of high
116. We end our discussion expressing hope and trust that the individual writ
merits by the appropriate Bench having determination in the light of all the
relevant decisions of the Supreme Court and bearing in mind that the National
117. We record our sincere appreciation for the able assistance rendered by each
appropriately.