Kerala High Court
Beaulah Grace Albert vs Rose Jose on 8 September, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
WP(C) NO. 1972 OF 2021 1
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
WP(C) NO. 1972 OF 2021
PETITIONER/S:
1 BEAULAH GRACE ALBERT
AGED 38 YEARS
D/O ALBERT HENRY, FLAT NO.4/4221, KSGB HOUSING
COLONY, BILATHIKULAM, ERANHIPALAM P O, KOZHIKODE-
673006, THE CUSTOMER CARE MANAGER, REPRESENTING
POPULAR VECHICLES AND SERVICES PVT, LTD,
CIVIL STATION P O, KOZHIKODE-673001.
2 JOHN K PAUL
AGED 67 YEARS
S/O LATE K P PAUL, 42/1058, KUTTUKKARAN HOUSE,
ST. BENEDICTS ROAD,
ERNAKULAM NORTH, ERNAKULAM , PIN-682018, THE MANAGING
DIRECTOR, POPULAR VEHILCE PVT LTD, CORPORATE OFFICE,
MAMANGALAM, KOCHI-682025.
BY ADVS.
NIRMAL. S
SMT.VEENA HARI
SMT.RIA ELIZABETH JOSEPH
SMT.IRENE ELZA SOJI
RESPONDENT/S:
1 ROSE JOSE
AGE NOT KNOWN TO THE PETITIONER,
W/O JOSE,
2/2278 NI,
SREEKARTHIKA HOUSE, O P RAMAN ROAD, CIVIL STATION P
O, KOZHIKODE-673001.
WP(C) NO. 1972 OF 2021 2
2 JOSE
AGE NOT KNOWN TO THE PETITIONER,
2/2278 NI,
SREEKARTHIKA HOUSE,
O P RAMAN ROAD, CIVIL STATION P O, KOZHIKODE-673001.
3 THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
KANNUR REPRESENTED BY ITS ADMINISTRATIVE OFFICER, THE
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAKKAD
ROAD, AKG NAGAR HOUSING COLONY, PUZHATHI HOUSING
COLONY, KERALA -670002.
BY ADV SRI.R.K.MURALEEDHARAN
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON 08.09.2021 DELIVERED THE FOLLOWING:
WP(C) NO. 1972 OF 2021 3
'CR'
P.V.KUNHIKRISHNAN, J
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W.P.(C.) No.1972 of 2021
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Dated this the 8th day of September, 2021
JUDGMENT
This writ petition is filed with a prayer to transfer CC No.81/2018 on the file of the District Consumer Disputes Redressal Forum, Kannur to District Consumer Disputes Redressal Forum, Kozhikode. The petitioners are the 1st and 2nd opposite parties in CC No.81/2018, which is a complaint submitted under Sec.12 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act 1986") before the District Consumer Disputes Redressal Forum, Kannur. The first and second respondents herein are the complainants in the said case. According to the petitioners, the 1st respondent was working as the President of Consumer Disputes Redressal Forum, Kozhikode at the time of filing the complaint. Therefore, WP(C) NO. 1972 OF 2021 4 the 1st respondent filed the complaint before the Consumer Disputes Redressal Forum, Kannur. The case of the petitioners is that the Consumer Disputes Redressal Forum, Kannur is not having jurisdiction and no cause of action as alleged in the complaint arose there, at any point in time. It is the case of the petitioners that the 1st respondent misused her official position and various allegations are stated in the writ petition. Hence, the prayer in this writ petition is to transfer the complaint CC No.81/2018 pending before the District Consumer Disputes Redressal Forum, Kannur to the District Consumer Disputes Redressal Forum, Kozhikode. The first respondent is no longer the President of the District Consumer Disputes Redressal Forum, Kozhikode and therefore, there is no prejudice caused, if the complaint is transferred to the Consumer Disputes Redressal Forum, Kozhikode. The grievance of the petitioners is that the petitioners are not in a position to approach the State Consumer Disputes Redressal Commission (Hereinafter mentioned as State Commission) because there is no such power to the State Commission to transfer a case at the instance of the opposite party. Hence, this writ petition is filed. WP(C) NO. 1972 OF 2021 5
2. Heard the learned counsel for the petitioners and the learned counsel for the 1st and 2nd respondents.
3. When this matter came up for consideration, this Court doubted the maintainability of the writ petition. The counsel for the petitioners contended that as per Sec.17A of the Act 1986 there is no power to the State Commission to transfer a complaint from one District Forum to another District Forum, at the instance of a petition from the opposite party in a complaint. On the other hand, the learned counsel for the 1 st and 2nd respondents submitted that, even before Sec.17A of the Act is inserted in the Act 1986, this Court in Malabar Palace v. The Kerala State Consumer Disputes Redressal Commission [2002 (2) KLT 461] held that the State Forum has the power to transfer a case from one District Forum to another. Therefore, the learned counsel submitted that the writ petition itself is not maintainable.
4. Before going through the merit of the case, the question to be decided is whether a complaint filed before the District Forum need to be transferred to another District Forum by the High Court invoking the powers under Article 226 of the WP(C) NO. 1972 OF 2021 6 Constitution of India and whether the State Commission can entertain such application, even if it is filed by the opposite party in a complaint before the District Forum. The petitioners filed the complaint as per Act 1986. In the Act 1986, there is specific power to entertain a transfer application by the State Commission. Sec.17A of the Act 1986 is extracted hereunder :
"17-A. Transfer of cases.-On the application of the complainant or of its own motion, the State Commission may, at any stage of the proceeding, transfer any complaint pending before the District Forum to another District Forum within the State if the interest of justice so requires."
5. Sec.17A of Act 1986 says that, on the application of the complainant or of its own motion, the State Commission may, at any stage of the proceedings, transfer any complaint pending before the District Forum to another District Forum within the State, if the interest of justice so requires. So, there is ample power to the State Commission to transfer a case from one District Forum to another District Forum, based on an application filed by the complainant in a case. But, in Sec.17A of the Act 1986, it is not stated that the transfer is possible based on an application of the opposite party. But, of course, it is stated that the State Commission has got ample power to WP(C) NO. 1972 OF 2021 7 transfer a case from one District Forum to another District Forum on "its own motion if the interest of justice, so requires". Sec.17A was inserted in the Act, 1986 as per the Amendment Act, 62 of 2002 with effect from 15.3.2003. Till Sec.17A was inserted in Act 1986, there was no power specifically given in Act, 1986 to the State Commission to transfer a case from one District Forum to another District Forum. But even then, this Court in Malabar Palace's case (supra) held that the State Commission in the exercise of the powers under Sec.24B(2) r/w sub-sec. 24B(1)(iii) of Act 1986 can transfer a case from one District Forum to another District Forum within its jurisdiction subject to the convenience to the parties, provided the circumstances justify such transfer. It will be better to extract the relevant portion in Malabar Palace's case (supra).
"11. I will keep the aforesaid legal principles in mind while interpreting the provisions of S.17 and 24B of the Act. The situation requires a close look to the provisions of S.17 and 24B(1)(iii) and (2) of the Act. S.17 reads as follows:
"17. Jurisdiction of the State Commission. - Subject to the other 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 five lakhs, but does not exceed rupees twenty lakhs, and
(ii) appeals against the orders of any District Forum within the State; and WP(C) NO. 1972 OF 2021 8
(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.
S. 24B(1)(iii) and (2) reads as follows:
24B. Administrative Control. - (1) The National Commission shall have administrative control over all the State Commissions in the following matter namely: -
(i) xx
(ii) xx
(iii) generally overseeing the functioning of the State Commission or the District Forum to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi judicial freedom. (2) The State Commission shall have administrative control over all the District Forum within its jurisdiction in all matters referred to in sub-s. (1)."
S.17(b) requires consideration. It gives the power to the State Commission to call for the records and pass appropriate orders in any consumer dispute which is pending before any District Forum within the State (omitted irrelevant portions) where it appears to the State Commission that the District Forum has exercised a jurisdiction not vested in it by law, or has acted in exercise of its jurisdiction illegally or with material irregularity. If the President of the District Forum who cannot hear a complaint for the reason which I have already stated as an illustration proceeds with the complaint and takes a decision will it not be a case of exercise of a jurisdiction not vested in it by law or at any rate a case of acting illegally in exercise of its jurisdiction? According to me such a case falls under the latter if not under both the clauses. Deciding a case in gross violation of the principles of natural justice would affect the very jurisdiction of a quasi judicial tribunal like the District Forum or at any rate it would amount to an illegality. The expressions pass appropriate orders' used in S.17(b) of the Act will take in the power to transfer such a case to another District Forum. In this view of the matter the State Commission has got the power under S.17(b) of the Act to call for the records of a case pending before the District Forum and to pass orders transferring the same to another Forum within its jurisdiction provided the circumstances warrants.
12. S.24B(2) of the Act also confers administrative control WP(C) NO. 1972 OF 2021 9 over District Forum in respect of matters specified under sub-s.
(1) to the State Commission. Clause (iii) of sub-s. (1) confers the State Commission the power of generally overseeing the functioning of the District Forum to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi judicial powers. The object and purpose of the Act as already stated is to provide for better protection of the interest of the consumers. If a biased member decides a complaint filed by a consumer will it subserve the better protection of the interest of the consumer? It is doubtful.
The transferring of a complaint from one District Forum to another District Forum does not in any manner interfere with the quasi judicial freedom of the District Forum. On the other hand it will only advance the cause of justice and uphold the prestige of the Forum in a given case. Thus the State Commission in exercise of the powers under S.24B(2) read with sub-s. (1)(iii) thereof can also transfer a case from one District Forum to another District Forum within its jurisdiction of course subject to the convenience of the parties provided the circumstances justify such transfer."
6. It is to be remembered that this Court held that the State Commission can transfer a case from one District Forum to another District Forum even before Sec.17A is inserted in the Act, 1986. Even without Sec.17A of the Act, 1986, this Court observed that in the light of Sec.24B(2) r/w sub-sec.24B(1)(iii) of the Act 1986, the State Commission has got powers to transfer a case. Thereafter, Sec.17A is inserted.
7. Now, Act 1986 is substituted by Consumer Protection Act, 2019, (hereinafter referred to as "Act, 2019"), which received the assent of the President on 9.8.2019 and was published in the Gazette of India. The corresponding provision WP(C) NO. 1972 OF 2021 10 to Sec.17A of the Act, 1986 in the new Act is Sec.48. Sec.48 of the Act, 2019 is extracted hereunder :
"48. On the application of the complainant or of its own motion, the State Commission may, at any stage of the proceeding, transfer any complaint pending before a District Commission to another District Commission within the State if the interest of justice so requires."
8. There is no serious difference between Sec.17A of the Act, 1986 and Sec.48 of the Act, 2019. Sec.48 of the Act, 2019 also says that on the application of the complainant, or of its own motion, the State Commission can transfer a case from one District Commission to another District Commission, if the interest of justice, so requires. In Sec.48 of the Act, 2019 also, there is no mention that the transfer application can be entertained by the State Commission at the instance of an opposite party before a District Forum.
9. The question is whether a transfer application can be entertained by the State Commission, at the instance of an opposite party before the District Commission. According to my opinion, the opposite party also can approach the State Commission with an application for transfer from one District WP(C) NO. 1972 OF 2021 11 Commission to another District Commission if justice requires a transfer. If the State Commission feels that in the interest of justice, the transfer is necessary, the same can be entertained under Section 17A of Act, 1986 and under section 48 of Act, 2019. The State Commission has got the power to transfer a case from one District Commission to another District Commission, on its own motion too. Since there is the power to transfer a case from one District Commission to another District Commission on its own motion by the State Commission, the opposite party in the complaint can bring to the notice of the State Commission that in the interest of justice, a transfer is necessary. If such an application is filed, the State Commission can decide whether a transfer is to be effected invoking its power under Sec.48 by "own motion". So, there is no prohibition for an opposite party in the District Commission to bring to the notice of the State Commission that in the interest of justice, the complaint is to be transferred from one District Commission to another District Commission. Once such an application is received, the State Commission can decide whether its discretionary power is to be exercised to transfer a WP(C) NO. 1972 OF 2021 12 case from one District Forum to another District Forum in the interest of justice.
10. Moreover, in Malabar Palace's case (supra), this Court observed that as per Sec.17(b), the State Commission have jurisdiction 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 jurisdiction, so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. This Court relied on, Sec.24B(2) of the Act, 1986 and held that the State Commission shall have administrative control over all the District Forums, within its jurisdiction in all matters referred to in sub-sec. (1) of Sec 24B. As observed in Malabar Palace's case (supra), it gives power to the State Commission to call for the records and pass appropriate orders in any consumer dispute, which is pending before any District Forum, within the State, where it appears to the State Commission that the District Forum has exercised a jurisdiction not vested in it, by WP(C) NO. 1972 OF 2021 13 law or has acted in exercise of its jurisdiction illegally or with material irregularity. The corresponding section to Sec.17 of the Act, 1986 is Sec.47 in the Act, 2019. Sec.47 of the Act, 2019 is pari materia to Sec.17 of Act, 1986. Sec.47(1)(b) of the Act, 2019 gives the power to the State Commission to call for the records.
11. In such circumstances, according to me, there is no bar to the State Commission to transfer a case from one District Commission to another District Commission at the instance of an opposite party before the District Commission. The Consumer Protection Act itself is enacted to protect the interest of consumers and for the same purpose, to establish authorities for timely and effective administration and settlement of consumers' disputes and matters connected therewith or incidental thereto. If in the interest of justice, if a case is to be transferred at the instance of an opposite party, it cannot be held that the State Commission has no jurisdiction. In the interest of justice, the State Commission itself can act in its own motion, if there is any ground to transfer a case from one District Commission to another District Commission. The WP(C) NO. 1972 OF 2021 14 opposite party also can approach the State Commission to transfer a case from one District Forum to another District Forum. Simply because, it is not specifically stated in Sec.17A of the Act, 1986 or in Sec.48 of the Act, 2019 that the application cannot be filed by the opposite party for transferring a case, it cannot be said that the State Commission has no jurisdiction. The State Commission can transfer a case in its own motion, if such a prayer is brought to the notice of the State Commission by the opposite party also.
12. Moreover, in the light of the principle laid down in Malabar Palace's case (supra) also, according to me, the State Commission has got ample power to transfer a case from one District Forum to another District Forum, if the interest of justice, requires so. Therefore, according to me, the petitioners in this writ petition can very well approach the State Commission to transfer the case, if there are sufficient grounds to transfer the case, in the interest of justice. All the contentions of the petitioners in this writ petition are left open. The petitioners are free to approach the State Commission for transfer, in the light of the observation in this judgment. WP(C) NO. 1972 OF 2021 15
Therefore, with liberty to the petitioners to approach the State Commission to transfer the case from the District Forum, Kannur to District Forum, Kozhikode, this writ petition is dismissed.
The petitioners are given 3 weeks time to approach the State Commission. Till then, the interim stay of the proceedings of the District Consumer Disputes Redressal Forum, Kannur already granted, will continue.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SKS APPENDIX OF WP(C) 1972/2021 WP(C) NO. 1972 OF 2021 16 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE C. C 81/2018 BEFORE THE HON'BLE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANNUR ALONG WITH APPLICATION FOR INTERIM ORDER.
EXHIBIT P2 TRUE COPY OF THE WRITTEN VERSION SUBMITTED BY THE PETITIONERS BEFORE THE HON'BLE DISTRICT REDRESSAL FORUM, KANNUR IN CC.
81/2018.
EXHIBIT P3 TRUE COPY OF THE IA 348/2018 IN CC 81/2018. EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT IN IA 348/2018.
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT & PETITION TO REFUND THE COLLECTED AMOUNT.
EXHIBIT P6 TRUE COPY OF THE COUNTER STATEMENT DATED 08/11/2019.
EXHIBIT P7 THE AFFIDAVIT DATED 23/01/2021.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 11/01/2021 IN CC 81/2018.
EXHIBIT P9 TRUE COPY OF THE RTI APPLICATION DATED 22.1.2021 PREFERRED THE COUNSEL APPEARING FOR THE PETITIONERS HEREIN BEFORE THE COURT BELOW EXHIBIT P10 TRUE COPY OF THE RTI REPLY NO.A266/2019 DATED 17/02/2021 ISSUED BY THE 3RD RESPONDENT RESPONDENT EXHIBITS EXHIBIT R1(a) A TRUE COPY OF THE TRANSFER ORDER DATED 15/02/2018 ISSUED BY THE PRESIDENT OF THE COMMISSION.
WP(C) NO. 1972 OF 2021 17EXHIBIT R1(b) A TRUE COPY OF THE STATEMENT RECEIVED FROM THE CANARA BANK, WEST HILL BRANCH, KOZHIKODE.
EXHIBIT R1(c) A TRUE COPY OF THE PRINTOUT RECEIVED FROM JIO FOR TELEPHONE NUMBER 7012307348.