# Lucknow Development Authority v. Ganesh Shankar Tripathi & Anr

- **Citation:** (2022) 9 ILRA 764
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-31
- **Case number:** Matters under Article 227 No. 2846 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lucknow-development-authority-v-ganesh-shankar-tripathi-anr-49273
- **Pages:** 10

## Headnote

Civil Law- The Consumer Protection Act,
1986- Section 21, 2(c) & 2(e)- Section
2(e)- Section 21(b)- The learned National
Commission has got jurisdiction under
Section 21(b) of the Act 1986 to call for
records and pass appropriate orders in any
consumer dispute which is either pending
or
has
been
decided
by
the
said
Commission. The order impugned has
been passed by the learned Commission in
an execution case and not in a consumer
dispute and consequently, considering the
provisions of Section 21(b) of the Act read
with definitions as given in Section 2(c)
and 2(e) of the Act 1986, it is apparent
that the petitioner does not have a
remedy of filing of a revision before the
learned National Commission.
There is no alternative remedy by way of a
revision before The National Commission as the
same is vested with the jurisdiction for matters
involving consumer disputes and therefore a
matter arising out of an execution case, which is
not a consumer dispute, cannot be adjudicated
by the National Commission.

The
Consumer
Protection
Act,
1986-
Section
17-
Whether
the
learned
Commission can be considered to be a
''Tribunal' for the purpose of exercise of
power
under
Article
227
of
the
Constitution of India- Once the learned
Commission has been given power to
decide the controversy between two or
more contesting parties with regard to
any matter, then the same would satisfy
the test of the learned Commission being
vested with judicial powers and as such
the learned Commission can clearly be
regarded as a "Tribunal" and consequently
the High Court has got jurisdiction under
Article 227 of the Constitution of India to
entertain petitions against learned State
Commission.

Settled law that where any authority is vested
with judicial powers and is having the trappings
of a court of law then any orders passed by
would be amenable to the jurisdiction of the
High Court under Article 227 of the Constitution
of India.

The Consumer Protection Act, 1986 -
Section 25 - A perusal of the impugned
order would indicate that it is not an
attachment order rather it restrains the
petitioner authority from carrying out the
aforesaid acts of allotting, registering,
transferring or auctioning any plot in
Gomti Nagar Scheme and as such by no
stretch of imagination, can the impugned
order fall within the ambit of being an
attachment
order-
Once
the
State
Commission has passed an order which is
patently beyond its jurisdiction and the
petitioner does not have any alternative
remedy of raising a challenge to the said
order,
accordingly
this
Court
while
exercising jurisdiction under Article 227 of
the Constitution of India and exercising
the power of superintendence over the
9 All. Lucknow Development Authority Vs. Ganesh Shankar Tripathi & Anr.
765
learned Commission can very well see the
validity of the impugned order. It is
apparent that the order impugned dated
21.07.2022 has been passed by the
learned State Commission without any
jurisdiction.

Since the State Commission has no jurisdiction
to pass a restraint order and the National
Commission has no power to entertain a
revision challenging the said order then the High
Court has the jurisdiction to examine the legality
and validity of such order passed by the State
Commission. (Para 10, 11, 19, 24, 25, 26)

Petition allowed. (E-3)

Case Law/Judgements relied upon:-

## Text

764 INDIAN LAW REPORTS ALLAHABAD SERIES
returned to the learned Additional Chief
Standing Counsel.

46. A copy of this order shall be
served
upon
the
Principal
Secretary
(Revenue), Lucknow and the Chairman,
Board of Revenue, Lucknow through the
Senior Registrar of this Court forthwith.
----------
(2022) 9 ILRA 764
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.08.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Matters under Article 227 No. 2846 of 2022

Lucknow Development Authority
 ...Petitioner
Versus
Ganesh Shankar Tripathi & Anr.
 ...Respondents

Counsel for the Petitioner:
Ratnesh Chandra

Counsel for the Respondents:
Ashok Kumar Singh

Civil Law- The Consumer Protection Act,
1986- Section 21, 2(c) & 2(e)- Section
2(e)- Section 21(b)- The learned National
Commission has got jurisdiction under
Section 21(b) of the Act 1986 to call for
records and pass appropriate orders in any
consumer dispute which is either pending
or
has
been
decided
by
the
said
Commission. The order impugned has
been passed by the learned Commission in
an execution case and not in a consumer
dispute and consequently, considering the
provisions of Section 21(b) of the Act read
with definitions as given in Section 2(c)
and 2(e) of the Act 1986, it is apparent
that the petitioner does not have a
remedy of filing of a revision before the
learned National Commission.
There is no alternative remedy by way of a
revision before The National Commission as the
same is vested with the jurisdiction for matters
involving consumer disputes and therefore a
matter arising out of an execution case, which is
not a consumer dispute, cannot be adjudicated
by the National Commission.

The
Consumer
Protection
Act,
1986-
Section
17-
Whether
the
learned
Commission can be considered to be a
''Tribunal' for the purpose of exercise of
power
under
Article
227
of
the
Constitution of India- Once the learned
Commission has been given power to
decide the controversy between two or
more contesting parties with regard to
any matter, then the same would satisfy
the test of the learned Commission being
vested with judicial powers and as such
the learned Commission can clearly be
regarded as a "Tribunal" and consequently
the High Court has got jurisdiction under
Article 227 of the Constitution of India to
entertain petitions against learned State
Commission.

Settled law that where any authority is vested
with judicial powers and is having the trappings
of a court of law then any orders passed by
would be amenable to the jurisdiction of the
High Court under Article 227 of the Constitution
of India.

The Consumer Protection Act, 1986 -
Section 25 - A perusal of the impugned
order would indicate that it is not an
attachment order rather it restrains the
petitioner authority from carrying out the
aforesaid acts of allotting, registering,
transferring or auctioning any plot in
Gomti Nagar Scheme and as such by no
stretch of imagination, can the impugned
order fall within the ambit of being an
attachment
order-
Once
the
State
Commission has passed an order which is
patently beyond its jurisdiction and the
petitioner does not have any alternative
remedy of raising a challenge to the said
order,
accordingly
this
Court
while
exercising jurisdiction under Article 227 of
the Constitution of India and exercising
the power of superintendence over the
9 All. Lucknow Development Authority Vs. Ganesh Shankar Tripathi & Anr.
765
learned Commission can very well see the
validity of the impugned order. It is
apparent that the order impugned dated
21.07.2022 has been passed by the
learned State Commission without any
jurisdiction.

Since the State Commission has no jurisdiction
to pass a restraint order and the National
Commission has no power to entertain a
revision challenging the said order then the High
Court has the jurisdiction to examine the legality
and validity of such order passed by the State
Commission. (Para 10, 11, 19, 24, 25, 26)

Petition allowed. (E-3)

Case Law/Judgements relied upon:-

1. A. Gurunathan Vs K. Natarajan ,2012-4L.W.470 (cited, distinguished on facts)

2. R. Jaivel Vs St. of T.N, 2006(2) CTC 709
(cited, distinguished on facts)

3. Laxmikant Revchand Bhojwani & anr. Vs
PratapsinghMohansingh Pardeshi, (1995) 6 SCC
576

4. Associate Cement Companies Ltd. Vs P. N.
Sharma,AIR 1965 SC 1595

5. L. Chandra Kumar Vs U.O.I (1997) 3 SCC
261

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard learned counsel for the
petitioner and Shri Prashant Chandra,
learned Senior Advocate assisted by Ms.
Mahima Pahwa, learned counsel for the
respondents no. 1.

2. At the very outset, Shri Prashant
Chandra,
learned
Senior
Advocate,
contends that he does not intend to file any
counter affidavit and the matter may finally
be
decided.
Accordingly,
the
Court
proceeds to hear and decide the matter.

3. The instant petition has been filed
praying for following main reliefs:

"(i) Set aside/quash the judgment
dated 21.07.2022 passed in Execution
Application no. EA/43/2018 in complaint
Case no. C/2011/136 (Ganesh Shankar
Tripathi
vs
Lucknow
Development
Authority), a certified copy of which is
contained as annexure no. 1 to this petition.

(ii) Direct the opposite party no.2
to consign the proceedings to records of
Execution Application no. EA/43/2018 in
complaint Case no. C/2011/136 (Ganesh
Shankar Tripathi vs Lucknow Development
Authority) pending before it after declaring
that the judgment and decree dated
21.08.2015 has been fully complied and
satisfied."

4. The facts of the case have already
been set forth by this Court in order dated
23.08.2022,
which
for
the
sake
of
convenience is reproduced below:

"Heard.

Under challenge is the order
dated 21.07.2022 passed by the learned
State
Consumer
Disputes
Redressal
Commission in an execution case, a copy of
which is Annexure-1 to the petition,
whereby the learned Commission has
directed that till the next date no plot in
Gomti Nagar or Gomti Nagar Extension
shall be allotted, registered, transferred or
auctioned.

Learned counsel for the petitioner
contends
that
respondent
no.1,
the
complainant, had filed a complaint under
Section 17 of the Consumer Protection Act,
1986 (hereinafter referred to as the 'Act,
1986'), which was decided vide order dated
21.08.2015, a copy of which is Annexure-5
to the writ petition, whereby the learned
Commission directed the petitioner herein
766 INDIAN LAW REPORTS ALLAHABAD SERIES
(Lucknow
Development
Authority)
to
deliver the possession of plot measuring
200 sq. meters in Gomti Nagar or in any
other scheme in terms of the allotment
letter dated 25.10.1993 along with cost.
Subsequent
thereto,
the
Lucknow
Development Authority issued an allotment
letter dated 18.04.2018, a copy of which is
Annexure-8 to the petition, allotting the
complainant a plot in Sharda Nagar
Extension Scheme. Being aggrieved, the
execution
case
was
filed
by
the
complainant
before
the
learned
Commission. Learned Commission had
perused the allotment letter offered by the
petitioner in Sharda Nagar scheme and
being not satisfied with the same has
passed the impugned order, as indicated
above.

Learned counsel for the petitioner
contends that the judgment passed by the
learned Commission dated 21.08.2015
stood complied with the issuance of the
allotment letter inasmuch the learned
Commission had directed for delivering the
possession of a plot in Gomti Nagar
Lucknow or in any other scheme and as
now through the allotment letter which has
been issued to the complainant a plot has
been
offered
in
the
Sharda
Nagar
Extension scheme, as such, the judgment
passed by the learned Commission has
been complied with. He also contends that
even if for the sake of arguments it is
accepted that the order has not been
complied with then too the learned
Commission could not have passed the
order in the execution proceedings whereby
restraining the Lucknow Development
Authority from allotting or registering or
transferring or auctioning any plot in
Gomti Nagar Scheme inasmuch as the
orders in execution cases under the
provisions of the Act, 1986 can only be
passed in terms of Sections 25 and 27 of the
Act, 1986 which do not contemplate
passing of the order impugned.

Ms. Mahima Pahwa, learned
counsel for the respondent no.1, prays for
some time to address the Court on the
aforesaid issue.

As such, on her request, list this
case in the next week as fresh indicating
her name in the cause list from the side of
the respondents."

5. Shri Prashant Chandra, learned
Senior Advocate, assisted by Ms. Mahima
Pahwa, learned counsel for the respondent
no.1 has contended that the instant petition
is not maintainable on the following
grounds:

(a)
the
petitioner
has
an
alternative remedy of filing of a revision
under Section 21(b) of the Consumer
Protection Act, 1986 (hereinafter referred
to as the Act 1986) before the National
Consumer Disputes Redressal Commission,
New Delhi. In this regard Shri Prashant
Chandra has placed reliance on the
judgements of Madras High Court in the
case of A. Gurunathan vs K. Natarajan
reported in 2012-4-L.W.470 as well as in
the case of R. Jaivel vs State of Tamil
Nadu reported in 2006(2) CTC 709.

(b) the impugned order has
correctly been passed by the U.P. State
Consumer Disputes Redressal Commission
(hereinafter
referred
to
as
learned
Commission) under the provisions of
Section 25(1) of the Act 1986 in as much as
an attachment order can be passed and
impugned order is sort of an attachment
order,

(c) this Court while exercising
jurisdiction under Article 227 of the
Constitution of India cannot correct the
error, if any, which may have been
committed by the court below,
9 All. Lucknow Development Authority Vs. Ganesh Shankar Tripathi & Anr.
767

(d) the petition has been filed by
making false averments, as stated in
paragraphs 17 and 18 of the petition, that the
judgement passed by the learned Commission
had attained finality while the facts are
otherwise in as much as, in the revision filed
by the respondent no. 1 herein, the order of
learned Commission had been modified as
would be apparent from a perusal of the order
dated 12.01.2016, a copy of which annexure
6 to the petition, which has been passed by
the learned National Commission.

(e) Act, 1986 being a special
enactment, as such, keeping in view the law
laid down by Hon'ble the Apex Court in the
case of Laxmikant Revchand Bhojwani
and another vs Pratapsingh Mohansingh
Pardeshi reported in (1995) 6 SCC 576, this
Court under Article 227 of the Constitution of
India cannot assume unlimited prerogative to
correct the error that may have been
committed by the State Commission.

6. Heard learned counsel for the parties
and perused the record.

7. So far as the objection (a) is
concerned i.e. the petitioner having an
alternative remedy of filing of a revision
under Section 21(b) of the Consumer
Protection Act, 1986 before the National
Consumer Disputes Redressal Commission,
New Delhi against the order impugned under
Section 21(b) of the Act 1986, the Court will
have to consider the relevant provisions of
the Act, 1986.

8. Section 21 of the Act, 1986 reads as
under:

"21. Jurisdiction of the National
Commission.-Subject to the other provisions
of this Act, the National Commission shall
have jurisdiction-

(a) to entertain-

(i) complaints where the value of
the goods or services and compensation, if
any, claimed exceeds [rupees one crore];
and

(ii) appeals against the orders of
any State Commission; and

(b) to call for the records and pass
appropriate orders in any consumer dispute
which is pending before or has been decided
by any State Commission where it appears
to the National Commission that such State
Commission has exercised a jurisdiction not
vested in it by law, or has failed to exercise
a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with
material irregularity."

9. Sections 2(c) and 2(e) of the Act,
1986 read as under:

"2(c) "complaint" means any
allegation in writing made by a complainant
that-

[(i) an unfair trade practice or a
restrictive trade practice has been adopted
by (any trader or service provider ;]

(ii) [the goods bought by him or
agreed to be bought by him] suffer from one
or more defects;

(iii) [the services hired or availed
of or agreed to be hired or availed of by
him] suffer from deficiency in any respect;

(iv) a trader or the service
provider, as the case may be, has charged
for the goods or for the services mentioned
in the complaint, a price in excess of the
price-

(a) Fixed by or under any law for
the time being in force;

(b) displayed on the goods or any
package containing such goods;

(c) displayed on the price list
exhibited by him by or under any law for the
time being in force;

(d) agreed between the parties;)
768 INDIAN LAW REPORTS ALLAHABAD SERIES

[(V)
goods
which
will
be
hazardous to life and safety when used, are
being-offered for sale to the public-

(a) in contravention of any
standard relating to safety of such goods as
required to be complied with, by or under
any law for the time being in force;

(b) if the trader could have known
with due diligence that the goods so offered
are unsafe to the public;)

(vi) services which are hazardous
or likely to be hazardous to life and safety
of the public when used, are being offered
by the service provider which such person
could have known with due diligence to be
injurious to life and safety;) with a view to
obtaining any relief provided by or under
this Act;"

2(e) "consumer dispute" means a
dispute where the person against whom a
complaint has been made, denies or
disputes the allegations contained in the
complaint;

10. From the perusal of the aforesaid
it is apparent that the learned National
Commission has got jurisdiction under
Section 21(b) of the Act 1986 to call for
records and pass appropriate orders in any
consumer dispute which is either pending
or
has
been
decided
by
the
said
Commission. "Consumer dispute" has
been defined in Section 2(e) to mean a
dispute where the person against whom a
complaint has been made, denies or
disputes the allegations contained in the
complaint, while "complaint" has been
defined under Section 2(c) of the Act 1986
to mean any allegation in writing made by
a complainant alleging of an unfair trade
practice, defect in the goods bought by him
or
where
the
service
suffers
from
deficiency in any respect or a higher price
has been charged.

11. In the instant case the order
impugned has been passed by the learned
Commission in an execution case and not
in a consumer dispute and consequently,
considering the provisions of Section 21(b)
of the Act read with definitions as given in
Section 2(c) and 2(e) of the Act 1986, it is
apparent that the petitioner does not have a
remedy of filing of a revision before the
learned National Commission.

12. As regards the judgement of
Madras High Court in the case of A.
Gurunathan and R. Jaivel (Supra)
suffice to say that in both the cases the
words "consumer dispute" as used in
Section 21(b) of the Act 1986 have not
been considered and as such the said
judgments will have no applicability in the
instant case.

13. Before proceeding further with the
case and considering the discussion on
objection (a) as has been raised by learned
Senior Advocate and this Court having held
that the petitioner does not have a remedy
of filing of a revision before the learned
National Commission, another question,
which though has not been argued by
learned Senior Advocate, is also to be
considered which is as to whether this
Court, while exercising jurisdiction under
Article 226/227 of the Constitution of
India, has the power of superintendence
over the learned Commission?

14. In this regard the jurisdiction of
learned Commission, as provided under
Section 17 of the Act 1986 has to be seen,
which for the sake of convenience is
reproduced below:

"17. Jurisdiction of the State
Commission.-- [(1)] Subject to the other
9 All. Lucknow Development Authority Vs. Ganesh Shankar Tripathi & Anr.
769
provisions
of
this
Act,
the
State
Commission shall have jurisdiction--

(a) to entertain--

(i) complaints where the value of
the goods or services and compensation, if
any, claimed [exceeds rupees twenty lakhs
but does not exceed rupees one crore]; and

(ii) appeals against the orders of
any District Forum within the State; and

(b) to call for the records and
pass appropriate orders in any consumer
dispute which is pending before or has
been decided by any District Forum within
the State, where it appears to the State
Commission that such District Forum has
exercised a jurisdiction not vested in it by
law, or has failed to exercise a jurisdiction
so vested or has acted in exercise of its
jurisdiction illegally or with material
irregularity.

(2) A complaint shall be instituted
in a State Commission within the limits of
whose jurisdiction,--

(a) the opposite party or each of
the opposite parties, where there are more
than one, at the time of the institution of the
complaint, actually and voluntarily resides or
carries on business or has a branch office or
personally works for gain; or

(b) any of the opposite parties,
where there are more than one, at the time of
the institution of the complaint, actually and
voluntarily resides, or carries on business or
has a branch office or personally works for
gain, provided that in such case either the
permission of the State Commission is given
or the opposite parties who do not reside or
carry on business or have a branch office or
personally works for gain, as the case may
be, acquiesce in such institution; or

(c) the cause of action, wholly or in
part, arises."

15. From perusal of Section 17 of the
Act
1986,
it
emerges
that
learned
Commission has got original jurisdiction to
entertain complaints where the fault of
goods or services and compensation, if any,
claimed exceed Rs 20 lakhs but does not
exceed Rs 1 crore and to hear appeals
against the orders of any district forum
within the State. It also has jurisdiction, as
per Section 17(1)(b), to call for records and
pass appropriate orders on any consumer
dispute which is pending or has been
decided by the district forum within the
state.

16. Undisputedly in this case, the
complaint had been filed by the respondent
no. 1 before the learned Commission under
Section 17 of the Act 1986 which resulted
in the judgement dated 25.08.2015 which
in turn has been affirmed in both the
appeals that have been filed by the
respondent no. 1 herein as well as by the
petitioner (with some modification). When
the judgement of learned Commission has
not been complied, the execution case has
been filed and during the pendency of the
said case, the impugned order has been
passed.

18. Whether the learned Commission
can be considered to be a ''Tribunal' for the
purpose of exercise of power under Article
227 of the Constitution of India by this
Court? This question as to when an
authority
is
a
''Tribunal'
has
been
considered by a Constitution Bench of
Hon'ble the Apex Court in the case of
Associate Cement Companies Limited vs
P. N. Sharma reported in AIR 1965 SC
1595 wherein the Apex Court has held as
under:

"44. An authority other than a
court may be vested by statute with judicial
power in widely different circumstances,
which it would be impossible and indeed
770 INDIAN LAW REPORTS ALLAHABAD SERIES
inadvisable
to
attempt
to
define
exhaustively. The proper thing is to
examine each case as it arises, and to
ascertain whether the powers vested in the
authority can be truly described as judicial
functions or judicial powers of the State.
For the purpose of this case, it is sufficient
to
say
that
any
outside
authority
empowered by the State to determine
conclusively the rights of two or more
contending parties with regard to any
matter
in
controversy
between
them
satisfies the test of an authority vested with
the judicial powers of the State and may be
regarded as a tribunal within the meaning
of
Article
136.
Such
a
power
of
adjudication implies that the authority must
act judicially and must determine the
dispute by ascertainment of the relevant
facts on the materials before it and by
application of the relevant law to those
facts. This test of a tribunal is not meant to
be exhaustive, and it may be that other
bodies not satisfying this test are also
tribunals. In order to be a tribunal, it is
essential that the power of adjudication
must be derived from a statute or a
statutory rule. An authority or body
deriving its power of adjudication from an
agreement of the parties, such as a private
arbitrator or a tribunal acting under
Section 10-A of the Industrial Disputes Act,
1947, does not satisfy the test of a tribunal
within Article 136. It matters little that such
a body or authority is vested with the
trappings of a court. The Arbitration Act,
1940 vests an arbitrator with some of the
trappings of a court, so also the Industrial
Disputes Act, 1947 vests an authority
acting under Section 10-A of the Act with
many of such trappings, and yet, such
bodies and authorities are not tribunals."

19. From the aforesaid judgement it
emerges that in order to ascertain as to
whether learned Commission is a tribunal
and as to whether power being exercised by
learned Commission can be described as
judicial power, suffice to say that once the
learned Commission has been given power
to decide the controversy between two or
more contesting parties with regard to any
matter, then the same would satisfy the test
of the learned Commission being vested
with judicial powers and as such the
learned
Commission
can
clearly
be
regarded as a "Tribunal" and consequently
this Court would have the power under
Article 227 of the Constitution of India
over the learned Commission.

20. Likewise reference may also be
given of another Constitution Bench
judgement of Hon'ble the Apex Court in the
case of L. Chandra Kumar vs Union of
India reported in (1997) 3 SCC 261
wherein, with regard to jurisdiction of the
high courts under Article 226/227 of the
Constitution of India in the respective
powers of judicial review, it was held as
under:

"90. We may first address the
issue of exclusion of the power of judicial
review of the High Courts. We have
already held that in respect of the power of
judicial review, the jurisdiction of the High
Courts under Articles 226/227 cannot
wholly be excluded. It has been contended
before us that the Tribunals should not be
allowed to adjudicate upon matters where
the vires of legislations is questioned, and
that they should restrict themselves to
handling matters where constitutional
issues are not raised. We cannot bring
ourselves to agree to this proposition as
that may result in splitting up proceedings
and may cause avoidable delay. If such a
view were to be adopted, it would be open
for litigants to raise constitutional issues,
9 All. Lucknow Development Authority Vs. Ganesh Shankar Tripathi & Anr.
771
many of which may be quite frivolous, to
directly approach the High Courts and thus
subvert the jurisdiction of the Tribunals.
Moreover, even in these special branches
of law, some areas do involve the
consideration of constitutional questions on
a regular basis; for instance, in service law
matters, a large majority of cases involve
an interpretation of Articles 14, 15 and 16
of the Constitution. To hold that the
Tribunals have no power to handle matters
involving constitutional issues would not
serve the purpose for which they were
constituted. On the other hand, to hold that
all such decisions will be subject to the
jurisdiction of the High Courts under
Articles 226/227 of the Constitution before
a Division Bench of the High Court within
whose territorial jurisdiction the Tribunal
concerned falls will serve two purposes.
While saving the power of judicial review
of legislative action vested in the High
Courts under Articles 226/227 of the
Constitution, it will ensure that frivolous
claims are filtered out through the process
of adjudication in the Tribunal. The High
Court will also have the benefit of a
reasoned decision on merits which will be
of use to it in finally deciding the matter."

21. Keeping in view the aforesaid
judgments of Hon'ble the Apex Court in the
cases of Associate Cement Companies
Limited (supra) and L. Chandra Kumar
(supra) this Court holds that the High Court
has got jurisdiction under Article 227 of the
Constitution of India to entertain petitions
against learned State Commission.

22. So far as the objection (b) is
concerned i.e. the impugned order has
correctly
been
passed
by
the
State
Commission under the provisions of Section
25(1) of the Act 1986 in as much as an
attachment order can be passed and
impugned order is sort of an attachment order
this Court will have to consider the
provisions of Section 25 of the Act 1986.

23. Section 25 of the Act 1986 reads as
under:

"25. Enforcement of orders of the
District Forum, the State Commission or the
National Commission.--

(1) Where an interim order made
under this Act is not complied with, the
District Forum or the State Commission or
the National Commission, as the case may
be, may order the property of the person, not
complying with such order to be attached.

(2) No attachment made under subsection (1) shall remain in force for more
than three months at the end of which, if the
non-compliance continues, the property
attached may be sold and out of the proceeds
thereof, the District Forum or the State
Commission or the National Commission
may award such damages as it thinks fit to
the complainant and shall pay the balance, if
any, to the party entitled thereto.

(3) Where any amount is due from
any person under an order made by a District
Forum, State Commission or the National
Commission, as the case may be, the person
entitled to the amount may make an
application to the District Forum, the State
Commission or the National Commission, as
the case may be, and such District Forum or
the State Commission or the National
Commission may issue a certificate for the
said amount to the Collector of the district
(by whatever name called) and the Collector
shall proceed to recover the amount in the
same manner as arrears of land revenue."

24. From perusal of the Section 25 it
is apparent that when an interim order
made under the Act 1986 is not complied
with, the learned Commission may order
772 INDIAN LAW REPORTS ALLAHABAD SERIES
the attachment of the property of the person
not complying with the order.

25. A perusal of the impugned order
would indicate that it is not an attachment
order rather it restrains the petitioner
authority from carrying out the aforesaid
acts of allotting, registering, transferring or
auctioning any plot in Gomti Nagar
Scheme and as such by no stretch of
imagination, can the impugned order fall
within the ambit of being an attachment
order. As such, the said objection is also
rejected.

26. So far as the objections (c) and (e)
are concerned i.e. this Court while
exercising jurisdiction under Article 227 of
the Constitution of India cannot correct the
error which has been committed by the
court below particularly when Act, 1986 is
a special enactment, suffice to say that once
the State Commission has passed an order
which is patently beyond its jurisdiction
and the petitioner does not have any
alternative remedy of raising a challenge to
the said order, accordingly this Court while
exercising jurisdiction under Article 227 of
the Constitution of India and exercising the
power of superintendence over the learned
Commission can very well see the validity
of the impugned order. This would be
amply clear from perusal of the judgement
of Hon'ble the Apex Court in the case of
Laxmikant Revchand Bhojwani (Supra)
wherein the Apex Court has held as under:

"Before
parting
with
this
judgment we would like to say that the
High Court was not justified in extending
its jurisdiction under Article 227 of the
Constitution of India in the present case.
The Act is a special legislation governing
landlord-tenant relationship and disputes.
The legislature has, in its wisdom, not
provided second appeal or revision to the
High Court. The object is to give finality to
the decision of the appellate authority. The
High Court under Article 227 of the
Constitution of India cannot assume
unlimited prerogative to correct all species
of hardship or wrong decisions. It must be
restricted to cases of grave dereliction of
duty and flagrant abuse of fundamental
principles of law or justice, where grave
injustice would be done unless the High
Court interferes.

 (emphasis by the Court)"

The
said
objection
is
also
rejected.

27. So far as the objection (d) is
concerned i.e. the petition has been filed by
making false averments as contained in
paragraphs 17 and 18 of the petition,
suffice to say that the order dated
12.01.2016 has been annexed by the
petitioner as annexure 6 to the petition. The
National Commission has modified the
order passed by the State Commission by
enhancing the compensation and imposing
penalty. Rest of the order has not been
interfered with. Hence, it cannot be said
that there has been material concealment of
facts in as much as the execution case has
been filed being aggrieved for non
allotment of the plot in Gomti Nagar
Scheme. The said objection is also rejected.

28. Keeping the view the aforesaid
discussion, it is apparent that the order
impugned dated 21.07.2022 has been
passed by the learned State Commission
without any jurisdiction. Accordingly the
petition is allowed. The impugned order
dated 21.07.2022, a copy of which is
annexure 1 to the petition, is set aside.

29. It is provided that learned State
Consumer Disputes Redressal Commission
9 All. Shobhit Shah & Ors. Vs. M/s Induratna Realtors L.L.P. & Ors.
773
shall
proceed
with
the
execution
proceedings
pending
before
it
in
accordance with law considering all the
objections as have been raised by the
authority before it.
----------
(2022) 9 ILRA 773
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 3386 of 2022
(CIVIL)

Shobhit Shah & Ors. ...Petitioners
Versus
M/s Induratna Realtors L.L.P. & Ors.
 ...Respondents

Counsel for the Petitioners:
Ms. Shreya Gupta

Counsel for the Respondents:

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section 8- Section 9 - Commercial Court
Act, 2015- Section 2 (1) (C) (XV) -
Quashing of plaint of Original Suit - To
determine whether the dispute is to be
referred to the arbitrator under clause
21 of the partnership deed, the first
question which needs to be determined
is whether the dispute among the
partners arises out of the partnership
deed. The said issue being an issue of
fact can be adjudicated by the trial court
only on the basis of evidence and
material on record, and this Court
cannot adjudicate the said issue under
its supervisory jurisdiction under Article
227 of the Constitution of India.

Settled law that disputed questions of fact
can only be adjudicated by the trial court by
leading evidence and the said exercise cannot
be
conducted
under
the
supervisory
jurisdiction of the High Court under Article
227 of the Constitution of India.

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section
9-
Section
11-Though
an
application under Section 9 of the Act,
1996 has been filed by respondent no.1
stating that there is an arbitration
clause in the partnership deed that does
not amount to estoppel or acquiescence
as
against
the
respondent
no.1
admitting that dispute falls within the
ambit of the arbitration clause, more so,
when no application under Section 11 of
the
Act,
1996
has
been
filed
for
appointment
of
the
arbitrator-said
application withdrawn and Original Suit
instituted -The question as to whether
the dispute falls within the ambit of the
arbitration
clause
is
yet
to
be
adjudicated
upon-As
the
aforesaid
question has not been determined and
no application under Section 11 of the
Act, 1996 was filed by respondent no.1,
whether pleading made in Section 9
application will amount to acquiescence
on the part of respondent no.1 cannot be
adjudicated upon at this stage in a
proceeding
under
Article
227
of
Constitution of India as it is an issue to
be adjudicated in trial on the basis of
evidence under which circumstances the
respondent no.1 preferred Section 9
application.

Mere filing of an application u/s 9 of the Act
1996 where no application u/s 11 of the Act
1996 has been filed cannot lead to the inference
of either estoppels or acquiescence against the
respondent and neither can the said question be
gone into by the High Court under its
supervisory jurisdiction under Article 227 of the
Constitution of India as it is an issue that can
only be decided in trial.

Article 227 of the Constitution of India -
Arbitration and Conciliation Act, 1996 -
Section 9- Section 11the respondent no.1
did not file any application under Section
11 of the Act, 1996 for appointment of
Arbitrator and got the application under
Section 9 of the Act, 1996 withdrawn, and