PATHERYA J. - (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. As the Consumer Forum lacked initial jurisdiction, therefore, not only the order dated 12th November, 2008 but also the order passed in execution is a nullity and its invalidity can be challenged not only at the execution stage but also in co-lateral proceedings. For the said proposition reliance is placed on 1993 (2) SCC 507; 2009 (13) SCC 354 and 1999 (1) SCC 558. Entry 32 of List II of the seventh schedule of the Constitution of India has empowered the State Government to promulgate the 1983 Act which has been kept out of the purview of List I Entry 43. Although a review application has been filed as held in 2003 (6) SCC 675; AIR 1986 SC 1272 and AIR 1963 SC 946, Articles 226 and 227 of the Constitution of India operate in different fields. Judicial review is the basic structure of the Constitution as held in AIR 1981 SC 344 and 2009 (7) SCC 1 and 1973 (4) SCC 225 and the decisions taken by the Executive or by the Judiciary, is subject to judicial review. The warrant of arrest has been issued in the execution case filed. Orders XX and XXI of the Code of Civil Procedure operate in different fields. Section 25 of the 1986 Act provides for enforcement of the order passed. Section 27 deals with appeals and the subject-matter of the review application was not the execution case but was from the order of the Consumer Forum dated 12th November, 2008. Alternative remedy is not an absolute bar, in the event, the proceeding is without jurisdiction as held in 2007 (10) SCC 88 and the proportionality principle must be considered as held in 2006 (7) SCC 501 and 2000 (10) SCC 1. Section 25 of the 1986 Act provides for enforcement of orders of the Consumer Forum, so also Section 27. On a comparative reading of both the sections of the 1986 Act, it will appear that in Section 25 a lenient, view has been adopted than Section 27 which is a drastic step. No guideline exists for the difference of imposition of penalties in both the aforementioned sections. Therefore, the same is violative of Article14. Reliance is placed on AIR 1967 SCC 1581; 2003 (4) SCC 242 and 2004 (7) SCC 166. This is also violative of Article 21 as held in 2007 (3) SCC 587. Therefore, orders be passed as sought.
(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. Having considered the submission of the parties, the 1983 Act is a comprehensive code as held in 1995 (6) SCC 482. The disputes raised by complaint 58 of 2000 are capable of being the subject of civil litigation. As held in 2009 (8) SCC 481 the Special Act is to prevail over the 1986 Act and disputes ought to have been raised under Section 95 of the 1983 Act. In the written statement filed by the petitioner Co-operative Bank the point of initial lack of jurisdiction was taken but the same was overruled and as held in 1993 (2) SCC 507 and 2009 (13) SCC 354 the petitioner is entitled to canvass the said issue at the stage of execution and in co-lateral proceedings as the said issue goes to the root of the matter. Therefore, the writ petition is undoubtedly maintainable. The next issue that needs consideration is whether in the light of pendency of review application the application filed under Article 226 of the Constitution can be maintained. Articles 226 and 227 of the Constitution operate in different fields. By challenging the order dated 29th July, 2009 passed in execution case no.9 of 2009 the petitioner is seeking judicial review of the said order and proceedings in which such order has been passed which it is entitled to do in view of 1993 (2) SCC 507.;