Gujarat High Court
Sub vs Ansuyaben on 23 September, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/11044/2010 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11044 of 2010
=========================================================
SUB
POST MASTER & 1 - Petitioner(s)
Versus
ANSUYABEN
GOVINDLAL DOSHI - Respondent(s)
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Appearance
:
MR
SAURABH G AMIN for
Petitioner(s) : 1 - 2.
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/09/2010
ORAL
ORDER
Heard learned advocate Mr. Saurabh G. Amin appearing on behalf of petitioners.
The petitioners have challenged order passed by Consumer Disputes Redressal State Commission in Appeal No.1230 of 2008 dated 14th December 2009, wherein, appeal which was preferred by petitioner against challenging the order passed by District Forum, Navsari in Complaint No.11 of 2005 dated 3rd February 2005 has been dismissed.
Against the order passed by State Commission, petitioner is having alternative effective statutory remedy under Section 21 of the Consumer Protection Act, 1986. Section 21 is quoted as under :
Sec.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.
In case of R. Jaivel V. State of Tamil Nadu reported in AIR 2006 Madras 215, it has been held that when National Consumer Forum can have the jurisdiction to call for the records from the State Commission and to set aside the order containing any per verse finding, naturally alternative remedy is available to approach the National Consumer Forum and when that remedy is not exhausted, approaching High Court under Article 227 cannot be considered as maintainable.
The Division Bench of Madhya Pradesh High Court, Indore Bench has taken a view in case of Rajendra Singh Sisodiya v. madhya Pradesh Housing Board, Indore reported in AIR 2009 Madhya Pradesh 162.
Considering provisions of Section 21(b) of the Consumer Protection Act with Section 2(1)(e), revision before National Commission is maintainable against the order passed in appeal by State Commission. The relevant discussion is made in Para 8 to 10 which are quoted as under :
8. Moreover, a reading of Section 2(1) of the Act quoted above would show that the expressions mentioned in Sec.2(1) of the Act are to mean as indicated in the various clauses mentioned therein Unless the context otherwise required . Hence, while reading the different expressions defined in Sec.2(1) of the Act, the context in which the defined expression is used, has to be borne in mind. Hence the expression consumer dispute , as defined in Sec.2(1)(e) of the Act, will have to be understood keeping in mind the context of Sec.21(b) of the Act. If we now read under Sec.21(b) of the Act quoted above, it is clear that the National Commission has the power 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, if it finds that the State Commission has exercised a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. As defined in Sec.2(1)(e) of the Act, a consumer dispute means a complaint has been made, denies or disputes the allegations contained in the complaint. Where, therefore, the allegations made in the complaint lodged before the District Forum are denied by the other party, there is a consumer dispute. When the Consumer Forum decides the dispute one way or the other and the consumer or the other party files an appeal against the order passed by the District Forum before the State Commission and the State Commission passed an order, the order that is passed by the State Commission is an order passed in a consumer dispute. This is because even at the appellate stage when the State Commission considers the matter, the allegations made in the complaint by the consumer continue to be disputed or denied by the other party and hence, the appeal.
9. Further, by word any preceding the expression consumer dispute in Sec.21(b) would mean all or every dispute pending before the State Commission. In Shri Balaganesan Metals v. M.N. Shanmugham Chetty and others (1987) 2 SCC 707 : AIR 1987 SC 1668, the Supreme Court, relying on Black's Dictionary, has held :
The word any has the following meaning:
Some;
one of many; an indefinite number. One indiscriminately of whatever kind or quantity.
Word any has a diversity of meaning and may be employed to indicate all or every as well as some or one and its meaning in a given statute depends upon the context and the subject matter of the statute.
It is open synonymous with either , every or all . Its generality may be restricted by the context; (Black's Law Disctionary, 5th edn.)
10. The expression any used in any statute will, therefore, have to be interpreted by Courts by looking to the context in which it is used and looking to the context of Sec.21(b) of the Act, we have no doubt that the word any consumer dispute would mean not only consumer dispute arising out of an original complaint filed before the District Forum, but also a consumer dispute arising out of an appeal from the orders of the District Forum before the State Commission.
Recently, Apex Court in case of Om Prakash Saini v. DCM Ltd. & Ors.
reported in 2010 AIR SCW 4229, it has been held that order passed by State Commission in consumer dispute, specific remedy of appeal is provided under the Act. Aggrieved party withdrawing appeal and challenging order of State Commission by filing writ petition . Order of single Judge entertaining writ petition on premise that State Commission had no jurisdiction in view of Scheme sanctioned by Company Judge in said matter u/S.391 of Companies Act Not proper There has to be some justification to make departure from rule that High Court will not entertain writ petition when alternative remedy is available. The relevant discussion is made by Apex Court in Para 12 and 13 which are quoted as under :
12. We have considered the respective submissions. The 1986 Act was enacted to provide for better protection of the interests of consumers by making provisions for establishment of consumer councils and other authorities for settlement of consumer disputes and adjudication thereof. The 1986 Act is a complete Code unto itself. It defines the various terms like `consumer', `consumer dispute', `defect', `deficiency', `goods', `manufacturer', `restrictive trade practice', `service', `unfair trade practice'. It provides for establishment of consumer councils and adjudicatory forums at the District, State and National levels. Any person aggrieved by an order passed by the District Forum can file an appeal before the State Commission. If he is not satisfied with the order of the State Commission, a further remedy is available by way of revision before the National Commission. If the complaint is decided by the State Commission, the aggrieved person can file an appeal before the National Commission.
Elaborate procedure has been laid down for filing of the complaints and disposal thereof. Since the 1986 Act is a special statute enacted by the Parliament for better protection of the interest of consumers and a wholesome mechanism has been put in place for adjudication of consumer disputes, the remedy of appeal available to a person aggrieved by an order of the State Commission cannot but be treated as an effective alternative remedy.
13. Admittedly, respondent No.1 had availed the alternative remedy available to it under Section 21 by filing an appeal against the order of the State Commission. During the pendency of the appeal, respondent No.1 chose to challenge the order of the State Commission by filing a petition under Article 227 of the Constitution, which was entertained by the learned Single Judge on the basis of the assurance given by the learned counsel that the appeal filed before the National Commission will be withdrawn. The order passed by the learned Single Judge on 21.3.2007 or the one by which the petition filed by respondent No.1 was finally disposed of does not contain any indication as to why the learned Single Judge thought it proper to make a departure from the rule that the High Court will not entertain a petition under Article 226 or 227 of the Constitution if an effective alternative remedy is available to the aggrieved person. In our view, during the pendency of the appeal filed by respondent No.1 under Section 21 of the 1986 Act, the learned Single Judge was not at all justified in entertaining the petition filed under Article 227 of the Constitution merely because he thought that the State Commission did not have the jurisdiction to entertain the complaint in view of the scheme sanctioned by the Company Judge under Section 391 read with Sections 392 an 394 of the Companies Act.
In view of aforesaid decision of Madras High Court, Madhya Pradesh High Court and Apex Court, according to my opinion, petitioner is having alternative effective statutory remedy to approach National Commission against the order passed by State Commission in appeal.
Therefore, only on this ground, present petition is not entertained by this Court. Accordingly, present petition is disposed of by this Court without expressing any opinion on merits.
[H.K. RATHOD, J.] #Dave Top