CONTAI COOPERATIVE BANK LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition the petitioner seeks a declaration that the Consumer Protection Act has no application to Co-operative Societies and all disputes relating to a Co-operative Society be decided under the West Bengal Co-operative Societies Act, 1983 and not under the Consumer Protection Act, 1986 and not to give effect to the order dated 29th July, 2009 passed by the District Consumer Disputes Redressal Forum (Consumer Forum), Paschim Medinipore, an execution case no.9 of 2009.

(2.) THE case of the petitioner is that a complaint was lodged by the private respondent against the petitioner with the Consumer Forum for adjustment of sums. A written statement was filed by the petitioner wherein the jurisdiction of the Consumer Forum was questioned. An order was passed on 12th November, 2008 by which it was held that the complainant was a consumer of the petitioner Co-operative Bank and, therefore, was entitled to maintain the said dispute case. From the order a revisional application was filed under Article 227 of the Constitution of India which on the ground of alternative remedy under Section 15 of the 1986 Act was disposed of. THEreafter review application was filed and such review application is pending. During the pendency of the review application execution case no.9 of 2009 was initiated and an order was passed on 29th July, 2009 for issuance of warrant of arrest against the authorized officer of the petitioner. This order has been challenged in this writ petition on the ground that the Consumer Forum initially lacked jurisdiction to entertain the complaint in view of Sections 95 and 134(2)(d) of the 1983 Act. THE 1986 Act is a general law of the land while 1983 Act is a special law and as held in 1995 (2) SCC 479; 2009 (8) SCC 841; 2008 (15) SCC 1 and 2000 (3) CPR 381, the special law, namely, the 1983 Act must prevail over the general law, namely, the 1986 Act. This will also appear from Article 254 (2) of the Constitution of India. THE 1983 Act is a comprehensive code as held in 1995 (6) SCC 482. Under Section 95 of the 1983 Act all the disputes except disciplinary action are to be referred to the Registrar which will result in an award. Such award can be challenged under Section 136 of the 1983 Act before the Appellate Authority. As the subject-matter the dispute is civil in nature the same ought to have been referred to the Registrar under Section 95 of the 1983 Act.

(3.) OPPOSING the said application counsel for the private respondent submits that the complaint was lodged in 2000 and an objection was raised by filing a written statement. Such objection was overruled and an order passed on 12th November, 2008. The review application filed was disposed of in view of the alternative remedy available under Section 15 of the 1986 Act. Therefore, the order dated 12th November, 2008 has not been challenged. The High Court cannot be made to sit in appeal over the order passed on the review application. Section 15 of the 1986 Act provides for an appeal and Section 27A also provides for an appeal against an order passed under Section 27 of the 1986 Act. The period of filing such appeal is thirty days and, therefore, the petitioner ought to have filed an appeal, if any, within the said period of limitation. As no appeal has been filed from the order dated 12th November, 2008 the petitioner has accepted the said order and cannot file the instant application. The issue of jurisdiction was raised before the Consumer Forum and the same was dealt with against which no appeal has been filed. The revisional application though filed was disposed of in view of alternative remedy and the review application has been filed is pending. On the application filed under Section 27 by the private respondent an order has been passed and this application under Article 226 of the Constitution has been filed challenging the order passed in execution case. The said order cannot be challenged as the same would amount to violation of orders and the same cannot be perpetrated in writ jurisdiction as Sections 25 and 27 of the 1986 Act are intra vires the Constitution of India as held in 2003 (2) SCC 412. Therefore, the petitioner was entitled to file proceedings under Section 25 and the private respondent was entitled to file proceedings under Section 27 of the 1986 Act. Sections 25 and 27 be read in conjunction and the order dated 29th July, 2009 is consequential to the order dated 12th November, 2008, therefore, the petitioner is not entitled to any reliefs on this application. In fact an objection was raised and the same was rejected on a choice of appeal being given to the petitioner. The petitioner has not exercised such right of appeal and is entitled to no order on this application.