Tapas Dutta vs State Of West Bengal And 3 Ors
2022 Latest Caselaw 45 Cal/2

OD 10

                                 RVWO/4/2021
                               IA NO:GA/1/2021
                      IN THE HIGH COURT AT CALCUTTA
                         Constitutional Writ Jurisdiction
                                ORIGINAL SIDE


                               TAPAS DUTTA
                                  Versus
                     STATE OF WEST BENGAL AND 3 ORS.




  BEFORE:
  The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
  Date: 10th January, 2022.

  (Via Video Conference)


                                                                    Appearance:
                                                 Mr. Rajdeep Bhattacharya, Adv.
                                                          Mr. Tapas Dutta, Adv.
                                                              ...for the petitioner

                                                      Mr. Debjit Mukherjee, Adv.
                                                    Mr. Susmita Chatterjee, Adv.
                                                                  ...for the State

                                                 Mr. Sabyasachi Chatterjee, Adv.
                                                       ...for the Pvt. Respondent

The Court: Learned Counsel for the petitioner places reliance on

'Karnataka Housing Board vs. K.A. Nagamani' reported at (2019) 6 SCC 424 and

'Ambience Infrastructure Private Limited vs. Ambience Island Apartment Owners

and Others' reported at (2021) 2 SCC 163 to argue the proposition that no appeal

and/or revision within the purview of Section 21(b) of the Consumer Disputes

Act, is maintainable before any other forum.

As such, it is contended that this Court acted patently without jurisdiction

in passing the order dated February 11, 2021 by relegating the matter to an

alternative forum.

Learned counsel appearing for the judgment-debtor/opposite party

submits that there was no occasion of violation of any fundamental right or any

tenet of natural justice in the order of the executing forum which was challenged

before this Court. As such, it is contended that the principles which are to be

invoked in exercising the discretion under Article 226 of the Constitution of India

are not satisfied in the present case. As such, the dismissal of the writ petition

by the order under review was justified.

Learned counsel appearing for the State submits that the provision of

Section 21 of the said Act clearly envisages such an order as impugned by way of

the writ petition before this Court as well. By further arguing that Section 27A of

the Act contains a specific provision for appeal in connection with an order of

penalty, learned Counsel for the State also contends that the remedy of appeal

has very well been contemplated by the legislature even against an order of the

nature which was challenged in the writ petition.

In reply, learned Counsel for the petitioner argues that the limited scope of

the present hearing is whether the review application deserves to be allowed or

rejected on merits. The merits of the main matter ought not to be gone into at

this stage. Learned Counsel also seeks to place reliance on certain judgments of

the Supreme Court pertaining to the scope of review.

However, in view of the proposed order, the detailed quotation of such

judgments on the scope of review may not be necessary.

The plinth of the submission of the respondent/opposite party is that there

was no occasion for this Court to interfere under Article 226 of the Constitution

of India, since the criteria on which such jurisdiction is invoked was not satisfied

in the present case.

However, the scope of the present hearing, as rightly contended by the

petitioner, is limited to the merits and/or demerits of the order under review vis-

a-vis the scope of review.

It is evident that the ratio laid down by the Supreme Court in Karnataka

Housing Board (supra) and Ambience Infrastructure Private Limited (supra) clearly

indicate that an order passed in an execution proceeding even before the

consumer forum is not a continuation of the main consumer dispute and, as

such, neither any appeal nor revision is maintainable against the same before the

National Forum.

In such view of the matter, the order under review dated February 11,

2021 palpably suffers from an error apparent on the face of the record and, as

such, ought to be recalled.

Accordingly, RVWO/4/2021 is allowed, thereby recalling the order passed

by this Court on February 11, 2021 in WPO/22/2021.

The said writ petition shall be heard on merits afresh on the next

returnable date, i.e., January 17, 2022.

It is made clear that all questions, including the question of maintainability

of the writ petition on other grounds, shall be kept open for being taken by the

parties at the time of final hearing of the writ petition.

The writ petitioner shall serve a notice of this order on the absentee

respondents in the writ petition in order to ensure that all respondents are

represented adequately on the next returnable date.

(SABYASACHI BHATTACHARYYA, J.) B.Pal