1. This writ application, at the instance of the Calcutta Metropolitan Development Authority, arises out of a complaint made by the Respondent No. 7, Mr. Mohan Lal Bazaz, to the District Forum under S. 12 of the Consumer Protection Act, 1986.
2. The complaint was in respect of the writ petitioner's scheme to construct a public convenience at the Netaji Park on Chitta-ranjan Avenue. On the basis of the said complaint, the District Forum passed an order restraining the Calcutta Metropolitan Development Authority, hereinafter referred to as "CMDA", from making any further construction in pursuance of its aforesaid scheme.
3. The CMDA preferred an appeal against the said order to the Slate Commission under S. 15 of the aforesaid Act. The said appeal was admitted on 22nd February, 1991, and the order passed by the President of the District Forum on 15th January, 1991, was stayed. Thereafter, on 6th April, 1991, the CMDA was restrained from constructing the privy or from making any other construction at the Nataji park (opposite to Mahajati Sadan) on Chittaranjan Avenue, till the matter was taken up for complete hearing on 20th April, 1991. The matter was not, however, taken up for hearing on 20th April, 1991, but was adjourned till 7th June, 1991, since the Respondent No. 7 was not present.
4. In this background, the CMDA filed the instant writ petition.
5. On 25th June, 1991, when the writ application was moved, it was submitted on behalf of the CMDA that the District Forum had no jurisdiction at the initial stage to entertain the Complaint of the Respondent No. 7, under the provisions of the Consumer Protection Act, 1986. At that stage, this Court was prima facie of the view that in view of the provisions of S. 2(d) of the aforesaid Act, the complaint filed before the District Forum by the Respondent No, 7 was not maintainable, as the said complaint appeared to be outside the scope of the Act, and this Court was entitled to decide the question relating to lack of initial jurisdiction.
6. At the time of final hearing of the writ petition, it was submitted on behalf of the Respondent No. 7 that in view of the scheme of the aforesaid Act, the writ Court had no jurisdiction to entertain the writ petition in view of the pending proceedings before the District Forum and the State Commission. It was submitted that in view of the provisions of the aforesaid Act, the High Court did not have jurisdiction to entertain a writ petition in respect of orders passed under the said Act. It was urged that the writ petitioner's relief, if any, lay before the Supreme Court and that the instant writ application was liable to be dismissed with costs.
7. In support of his aforesaid contention, Mr. Nayek, referred to a single Bench decision of the Kerala High Court in the case of Padmanavan v. Consumer D. R. Forum, reported in 1991 (X) CPR 505. In the said case the Kerala High Court was of the view that as the Consumer Protection Act provides efficacious alternate remedy, a writ would not lie for such remedy.
8. Mr. Nayek also referred to the decision of the Delhi High Court in the case of M/s. Ansal Properties and Industries (P) Ltd. v. Shri Chander Bhan Kohli, reported in 1991 (1) CP 679 . In the said case the Delhi High Court was considering the question as to whether a writ petition could be entertained on the question as to whether any complaint in respect of any immovable property could be entertained by the State Consumer Disputes Redressat Commission. The Delhi High Court held that when the Consumer Protection Act provides a machinery, including an appeal to the Supreme Court, it would not be proper for the High Court to entertain a writ petition on the aforesaid question.
9. The law as explained in the two cases cited by Mr. Nayek proceeds on the basis that where an Act provides efficacious alternate remedy, a writ petition would not lie. In fact, the learned single Judge observed that remedy under Art. 226 could be resorted to only in the absence of an efficacious alternate remedy.
10. I am unable to subscribe to such view in view of the various decisions of the Supreme Court that an alternate remedy is not an absolute bar to the invoking of the jurisdiction of the High Court under Art. 226 of the Constitution. As far as the other observations that the petitioner ought to have challenged the question of jurisdiction before the State Forum itself and resorted to the revisional remedy provided for in the Act if he failed before the District Forum, the same cannot also be accepted as an absolute proposition in view of the line of decisions wherein both this Court and the Supreme Court have held that the High Court is entitled to go into the question of lack of initial jurisdiction while considering a prayer for Certiorari. In one of the earlier cases, namely, that of Calcutta Discount Company Ltd. v. Income-tax Officer , the majority decision of a Constitution Bench was that in a proceeding under Art. 226 the High Court can investigate whether the concerned authority acted without jurisdiction or not. The law on this point is now well settled and this view has subsequently been adopted in various other cases also.
11. I am of the view that while considering a prayer for certiorari, the High Court is not entirely powerless to look into the question as to whether the concerned authority at all had jurisdiction to entertain the matter and to decide the question relating to initial lack of jurisdiction.
12. I am, therefore, of the view that the writ application, as filed, is maintainable and this Court is entitled to decide as to whether the District Forum had jurisdiction to entertain the application filed on behalf of the respondent No. 7 herein.
13. In view of the above, we may now proceed to examine the merits of the case made out by the C.M.D.A. According to the C.M.D.A., the Ministry of Urban Development, Government of India, granted sanction in favour of and paid a large sum of money to the C.M.D.A. for the construction of pay and use toilets in the Calcutta Municipal Corporation area in pursuance of the scheme for betterment of health and hygience in the city of Calcutta. The Municipal Authorities were requested to identify sites for the aforesaid purpose. Pursuant to such request, the Calcutta Municipal Corporation identified about 18 to 20 different parks and public places for the purpose of construction of such public conveniences, and one of the selected sites was "Netaji Park" at Chittaranjan Avenue, opposite the Mahajati Sadan.
14. It has been mentioned in the writ petition that the first choice of the C.M.D. A. for construction of a public convenience in the concerned locality was Mohammed AH Park and the Calcutta Municipal Corporation had also agreed to accord sanction in respect of the said site, but subsequently such sanction could not be given on the ground that the said park stands on the structure of an old underground reservoir for supply of water to the inhabitants of the locality. Accordingly, the Moyor-in-Council at its meeting held on 26th March, 1990, took a decision to allow construction of the public convenience at Netaji Park and issued necessary permission in writing for the said purpose.
15. Pursuant to the sanction granted, the lay out was finalised by the Calcutta Municipal Corporation and the construction work for the Pay and Use toilets at Netaji Park was concerned. While the construction was under progress, the C.N.D.A. was served with a notice to show-cause, purported to have been issued under S. 13 of the Consumer Protection Act, 1986, on an application filed before the Calcutta District Forum, Bhabani Bhavan, Alipore. On 15th January, 1991, the petitioner was also served with an order of the President, Calcutta District Forum, directing the petitioner and its authorities to stop the construction of the public convenience during the pendency of the case. The C.M.D.A. was asked to explain at to why the public convenience could not be built at some other place, leaving the Netaji Park intact.
16. It appears that against the order passed by the Calcutta District Forum in the aforesaid case, being CDF case No. 1148 of 1991, the C.M.D.A. preferred an appeal under S. 15 of the Consumer Protection Act, 1986, before the State Commission, West Bengal, being Appeal Case No. 198 of 1991. The Appellate Forum by its order dated 22nd February, 1991, admitted the appeal and stayed the operation of the order passed by the District Forum on 15th January, 1991.
Directions were given for issuance of notice to the respondents and 3rd April, 1991, was fixed for their appearance. According to the petitioner, on 3rd April, 1991, the matter was fixed on 8th April, 1991, for appearance of the Respondent No. 7. However, the Respondent No. 7 appeared before the State Commission on 6th April, 1991, and obtained an order restraining the petitioner herein from constructing the privy or from making any other construction at Netaji Park till the matter was completely heard out on 20th April, 1991. According to the C.M.D.A. on 8th April, 1991, it came to learn of the order passed on 6th April, 1991, and a prayer was made for recalling the same. According to the C.M.D.A. the said order was recalled and the date of hearing of the appeal was fixed on 20th April, 1991. It appears that the appeal was ultimately taken up for hearing on 30th Apil, 1991, and the preliminary point of jurisdiction that the complaint of the Respondent No. 7 did not come within the purview of the Consumer Protection Act, 1986, was also canvassed. It appears that since the learned Advocate of the Respondent No. 7 could not be found when the matter was being heard, the hearing of the appeal was adjourned till 7th June, 1991. Furthermore, it appears that in the circumstances mentioned in paragraph 19 of the writ petition the President of the State Commission directed the interim order passed on 6th April, 1991, to continue.
17. It is at this stage that the writ application was moved on behalf of the petitioner questioning the jurisdiction of the Calcutta District Forum in entertaining the complaint of the Respondent No. 7 herein.
18. Apart from the aforesaid question relating to the lack of jurisdiction of the High Court to entertain the present writ application, it was also urged on behalf of the Respondent No. 7 that since the park in question had been named after Netaji Subhas Chandra Bose, construction of a public convenience in a portion of the said park would be showing disrespect to the memory of the great personality who had contributed so largely to the fight for the freedom of our country. In fact, on 28th June, 1991, it was submitted on behalf of the Respondent No. 7 that a Special Officer be appointed to inspect the premises and to enquire into the progress of the construction work of the public convenience. The said prayer was allowed and a learned Advocate of this Court was appointed as Special Officer for the aforesaid purpose with a direction to submit a report in respect of the enquiry to be conducted by him upon notice to all the parties.
19. From the report submitted by the Special Officer it appears that the inspection of the premises in question was done with notice to all the concerned parties who were all duly represented. According to the report, a portion of the park in question is under the occupation of the Metro Railway Authorities and construction work had already been started in respect of the public convenience in the southern portion of the said park. A total of 9 pillars had been raised to the north of the boundary wall along Munshi Sadaruddin Lane. The pillars were 9 feet in height and were at a level with the wall on the southern side of the park. It appears that the gaps between the pillars have already been filled up by a wall of about 3 feet height.
20. From the aforesaid report it is obvious that a good deal of money has already been spent and the construction work of the public convenience has proceeded to a considerable extent and that the construction on the southern side of the park has been made for the purpose of making ten separate water closets. It appears from the report that only the roof is required to be cast to more or less complete the construction of the public Convenience.
21. Mr. Nayek, appearing for the Respondent No. 7, questioned the report submitted by the Special Officer and he submitted that the report did not disclose as to whether the plastering and the flooring of the construction had been completed. He also submitted that the report did not mention that within one portion of the park there is a Radha Gobinda Temple and a Mother Dairy Milk Booth. He also urged that even under the park in question there was an under-
ground water tank for supply of water to the locality. It was submitted that having regard to the above facts, a further inspection should be held and the aforesaid facts should be ascertained before any final order was passed on the writ application.
22. Mr. Jugal Chandra Porel, appearing for the Calcutta Municipal Corporation and its authorities supported the case of the C.M.D.A. and submitted that from the Affidavit and the Supplementary Affidavit affirmed on behalf of the Calcutta Municipal Corporation, it would be evident that the public convenience would be of great help to the residents of the thickly populated locality. Mr. Porel referred to the annexure to the Supplementary Affidavit, affirmed by the Assistant Chief Engineer (I) of the Calcutta Municipal Corporation, wherein it has been stated that the underground reservoir was not for supply of water to the people of the locality, but for firefighting purposes. The relevant extract of the note submitted to the Major-in-Council in connection with the construction of the public convenience at Netaji Park is as follows :--
"The view of the Ex. Engineer (Water Supply)/Central vide his note dated 12-3-90 runs as follows :--
"There is one underground reservoir for the fire fighting purpose 50,000 gallon capacity below the G.L. of Netaji Park where lav. is proposed. In continuation of my previous note this is.to report that construction of lav. Block can be taken up keeping structural stability of the proposed block i.e. either making construction away from roof of U.G. reservoir and open space/bathing place over reservoir or providing beam over the roof of reservoir making construction direct over beam and slab if any..... It is proposed that approval be accorded to C.M.D.A. for construction of a public toilet on a land measuring 226 sq. mt. at Netaji Park (Opposite Mahajati Sadan) as an alternative site to the proposed latrine at Md. Ali Park.
The cost for the proposed public toilet will be borne by the C.M.D.A Remaining open space at the Netaji Park is to be beautified and maintained by the party who will be entrusted for running the proposed public latrine."
23. Mr. Porel also referred to certain decisions of the Supreme Court and this Court in support of his contention that an alternative remedy was no bar to the filing of a writ petition.
24. On behalf of the Calcutta Municipal Corporation it was also urged that S. 14(2) of the Consumer Protection Act, 1986, required all orders to be signed by all the members of the Forum, but that in the instant case, the order in question had been signed only by the President of the Calcutta District Forum, which rendered the same null and void.
25. In support of his aforesaid contention Mr. Porel relied on two decisions of this Court in the case of (1) In re : State Transport Authority and (2) Smt. N. Taneja v. Calcutta District Forum reported in 1991 (2) CHN 131 and 411 respectively. In both the said two cases, this Court held that an order passed by the District Forum which had not been signed by ail the members, as contemplated under S. 14(2) of the aforesaid Act, were null and void.
26. It was lastly contended that a complaint of the nature made by the Respondent No. 7 before the District Forum did not constitute a complaint within the meaning of S. 2(c) of the aforesaid Act and the Respondent No. 7 did not also come within the meaning of
"consumer"
as defined in S. 2(d) of the said Act.
27. Mr. Porel submitted that the order of the District Forum being a nullity, the writ petition was liable to be allowed and appropriate orders, as prayed for by the C.M.D.A. should be passed thereon.
28. Having considered the submissions made on behalf of the respective parties and the decisions cited on their behalf, it appears to me that the case made out on behalf of the C.M.D.A. cannot be brushed aside on the basis of the submissions advanced on behalf of the Respondent No. 7 (the implement before the District Forum).
29. I have already held that the writ application is maintainable and even as to the merits there is a good deal of force in the submissions advanced on behalf of the writ petitioner.
30. The project in question is one of the sorely needed conveniences for the general public at large, particularly those living in the locality where the proposed toilets are to be situated. The public convenience to be situated in a portion of Netaji Park is part of a general scheme for betterment of health and hygiene in the city of Calcutta for which the Ministry of Urban Development, Government of India, had granted sanction and had paid large sums of money to the C.M.D.A.
31. In my view, the objections raised by the Respondent No. 7 cannot outweigh the need for the construction of the public convenience in question. It is significant that apart from the Respondent No. 7, no one else from the concerned locality has come forward to oppose the construction of the public convenience.
32. It is difficult to understand the logic behind the argument that the construction of a public convenience can cause disrespect to the memory of Netaji Subhash Chandra Bose after when the Park had been named. It is also difficult to accept the submission that the existence of a public convenience near a religious institution can hurt anyone's religious sentiments. In the city of Calcutta itself there are innumerable instances of public conveniences situated near religious institutions of the sheer necessity for people visiting such institutions. As far as the Mother Dairy Milk booth is concerned, it is difficult to appreciate as to how the existence of the public convenience would contaminate the milk being sold from the said booth.
33. Lastly, the Calcutta Municipal Corporation authorities have themselves considered at the highest level the question of the underground reservoir in the park and at a meeting of the Mayor-in-Council, after the matter was considered in detail on the basis of the report submitted by the Assistant Chief Engineer (I), it was felt that no damage would be caused to the reservoir, which was meant for fire-fighting purposes only, by the construction of the public convenience.
34. Moreover, I am inclined to accept the submissions made on behalf of the C.M.D. A. and the Calcutta Municipal Corporation that the complaint made by the Respondent No. 7 did not constitute a "complaint" within the meaning of S. 2(c) of the Consumer Protection Act, 1986, and the Respondent No. 7 did not also come within the meaning of "Consumer" as defined in S. 2(d) of the said Act in respect of the complaint made by him to the District Forum. In my view, the District Forum had no jurisdiction to entertain the complaint made by the Respondent No. 7, as the subject-matter of the complaint did not come within the ambit and scope of the I aforesaid Act.
35. Having regard to the above, and keeping in mind the interest of the general public, as against the objections raised by a single individual, the writ application, in my view, must succeed.
36. The inconvenience that may be caused to a single individual cannot gain precedence over the benefit to be gained by the public at large. If projects of the instant nature are allowed to be stalled, not only will the public suffer great inconvenience, but the health and hygiene of the entire city would be further aggravated with the ever-increasing population and the demand for minimum sanitary facilities. One has also to take into consideration the floating population who come from the suburbs to Calcutta in connection with their work and who did not have toilet facilities which are otherwise available to the residents of Calcutta.
37. I therefore, allow the writ application and quash the proceedings before the Calcutta District Forum, being No. CDF 1148 of 1991, as also the Appeal Case No. 199 of 1991, pending before the State Commission, West Bengal. The concerned respondents are directed to assist the C.M.D.A. in completing the construction of the public convenience on pay and Use basis at the Netaji Park on Chittaranjan Avenue.
38. There will be no order as to costs.
39. Petition allowed.