Calcutta High Court
Binod Behari Das vs Smt. Soma Roy And Others on 18 January, 1996
Equivalent citations: AIR1996CAL231, AIR 1996 CALCUTTA 231, 1997 CCJ 416, (1996) 1 CAL HN 336, (1996) 1 CPJ 264, (1996) 2 CPR 129
ORDER
1. Heard the submission of the learned Senior Advocate Mr. Bhaskar Bhattaeharjee appearing with learned Advocate Mr. P. Sinha and the learned Advocate for the opposite parties Mr. S. S, Mukherjee appearing with the learned Advocate Mr. Debasis Das. Mr. Mukherjee at this stage undertakes to file his power in course of this day. Let it be ' recorded. Considered the materials on record.
2. By the instant application under Art. 227 of the Constitution of India, O. P. No. 2 before the State Commission has come up before this Court challenging the order dated 8-6-95 (not filed) whereby the said State Commission directed issuance of notice or summons upon the O. Ps. in that proceeding wherein O. P. No. 2 figured as one of the opposite parties. The relevant necessary facts on which this revisional application arises is that Smt. Soma Roy, widow of late Tarit Kumar Roy, as a complainant filed an application for compensation for deficiency of medical service under S. 17 of the Consumer Protection Act, 1986, before the West Bengal State Commission Disputes Redressal Commission, Bhabani Bhavan, Calcutta, on 8-6-95 and the same was registered there as State Commission Case No. 166/O/1995. Allegation has been made in that petition that Smt. Soma Roy O. P. herein is the widow of Tarit Kr. Roy and they have two daughters namely, Miss Patrali Roy and Miss Sarmili Roy alias Dia and both of them are minors. The said Tarit Kr. Roy was a lecturer in Accountancy in Rabindra Maha-vidyaiaya, P. O. Champadanga, P. S. Tara-keswar, district Hooghly, in the scale of Rs. 3,000/- to Rs. 4,750/ - and during the time of his death he was drawing an amount of Rs. 7,738.50 paise as his monthly pay and his age of superannuation was 58 years. But he died at the age of 42 years. Due to certain ailment of the said Tarit Kr. Roy, he was taken to Dr. Jagannalh Mondal, 0. P. No. I in the said petition for compensation at his chamber at Arambagh on 4-10-94 and he was accompanied by his wife Smt. Soma Roy and elder brother Tapan Kr. Roy. The doctor was shown the prescriptions given by Dr. Sunil Kundu his attending physician and he was also told of the nature of ailment. The said Dr. Jagannath Mondal examined him and advised him surgical operation of hydrocele and further advised him admission to a nursing home. As per that advice the said Tarit Kr. Roy was admitted to Arambagh Nursing Home, Link Road, Arambagh on 15-11-1995 for operation by the said Dr. Jagannath Mondal. The service charge which was paid was against remuneration and not as personal service. On his admission to the said nursing home certain medicines were prescribed by the said Dr. Jagannath Mondal and those were purchased and given to the said nursing home and Tarit Kr. Roy was administered intravenous injection namely, Lasix and Calmpose before administration of anaesthesia and the patient Tarit Kr. Roy became unconscious and started convulsion. Ultimately he was released on 16-11-1994 in an unconscious state and thereafter on that date he was admitted to Calcutta Medical Research Institute, Diamond Harbour Road, where his condition further deteriorated and never he gained consciousness and ultimately he died on 30-11-94. In this background Mr. Bhattacharjee contended for the petitioner that no cause of action has been disclosed in the petition of complaint for compensation against the petitioner and as such issuance of notice or summons dated 8-6-95 on him is not warranted and an order for such issuance by the Consumer Dispute Redressal Commission, West Bengal, is no! called for. Mr. Bhattacharjee at the very outset made it clear that though a point has been taken in the petition of revision that the doctors are not covered under the Consumer Protection Act, 1986. But subsequently after the decision of Supreme Court he is not taking that point and urging the same before this Court. In support of his submission that Art. 227 of the Constitution of India is available against an order of the State Commission, Mr. Bhattacharjee relied on two decisions to wit. The State of Madhya Pradesh v. Babulal, reported in AIR 1977 SC 1718 and Bimal Sahoo, Secretary, Basudebpur Girls' High School v. Gouri Rani Pahari, , which is a Single Bench decision.
3. Mr. S.S. Mukherjee, on the other hand contended that the constitutional remedy under Art. 227 of the Constitution of India is not available against an order of State Forum or for that any order made under the Consumer Protection Act, 1986 by the authority mentioned in that Act. In support of his submission Mr. Mukherjee placed reliance on two Calcutta decisions to wit. United Bank of India v. Hirak Mukherjee, reported in (1995) I Cal LJ 124 (a Division Bench decision) and A.N.Z. Grindlays Bank v. The President Consumer Dispute Redressal Forum, (a Single Bench decision).
4. Having heard the learned Advocates for the parties and considering the materials on record, I am of the view that Art. 227 of the Constitution of India to challenge an order passed by the District Forum is not available for the following reasons :
The Consumer Protection Act, 1986 is a complete Code in iteslf and provides for liberal procedure for hearing against an Order passed by the District Forum, by the State Commission and against an order passed by the State Commission by the National Commission. The question arises whether Art. 227 of the Constitution of India can be resorted to as an alternative remedy. The Calcutta High Court, in the case of United Bank of India (1995 (1) Cal LJ 124) (supra) and ANZ Grindlays Bank (supra) has held that such alternative remedy is not available. Mr. Bhattacharjee contended that appeal is available only against judgment passed by the District Forum or by the Slate Commission and not against an inter locutory order. That is not the correct position of the law, because Sec. 17 of the Consumer Protection Act, 1986, inter alia, provides the jurisdiction of the State Commission which reads as follows :
"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
(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 Slate Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise ajurisdiciion so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."
Sub-clause.(ii) of clause (a) in that section contemplates appeal against orders of District Forum. So that indicates that "even against orders, appeal can be preferred. Similarly, Sec. 21 of that Act, inter alia, provides as follows:
"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 twenty lakhs 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.'' This also indicates that National Commission has jurisdiction to entertain appeal against the orders of the State Commission as envisaged in sub-clause (ii) to clause (a) of S. 21. So, it is not correct to submit that only against a judgment an appeal is available and not against the order. So an appeal is also available under S. 21 of the Act against the order of issuance of summons and notice as passed by the State Commission. Now, the only question left is whether Art. 227 of the Constitution is available where there is an alternative remedy. 1 have already pointed out that in the Calcutta High Court decisions it has been held that when there is an alternative remedy the constitutional remedy under Art. 227 of the Constitution of India is not. available. Mr. Bhattacharjee referred to the decision of the Apex Court in the case of State of Madhya Pradesh (AIR 1977 SC 1718) (supra) but there the fact was altogether different. In that case an illegal judgment was passed in violation of the law and the Supreme Court, inter alia, held that instead of pushing the party to a further litigation challenging the judgment, the Court, under Article 226 of the Constitution has the power to set aside that judgment. So this decision has got no relevance in this case. Similarly, the case referred to by Mr. Bhattacharjee in Bimal Sahoo (supra) is also of a different nature. There the single Bench of this Court held that the provision of appeal does not bar the exercise of power under Article 227. Power of supervision cannot be equated with power of revision and the High court will strike down a patently illegal exercise of jurisdiction in exercise of jurisdiction under Art. 227 even if an alternative remedy is available. But in effect by the later two decisions of the High Court, one of which is a Division Bench decision in the case of United Bank of India (1995(1) Cal LJ 124 (supra) that decision has been overruled and a judgment of the Division Bench is binding on me superseding a single Bench decision.
5. In such circumstances, I do not find that the application is maintainable. Mr. Bhattacharjee contended that no cause of action has been disclosed in the petition. But that is a question of fact and I cannot go into that question.
6. The revisional application, therefore, stands dismissed.
7. Application dismissed.