Chattisgarh High Court
Hemant Sahu vs Smt Shailja Samuel on 16 July, 2009
HIGH COURT OF CHATTISGARH AT BILASPUR
WP227 No 1198 of 2009 and WP227 No 2121 of 2009 and WP227 No 2122 of 2009 and WP227 No 2123 of 2009 and WP227 No 2116 of 20
and WP227 No 1190 of 2009 and WP227 No 1189 of 2009 and WP227 No 1196 of 2009 and WP227 No 1195 of 2009 and WP227 No 1199 of
and WP227 No 282 of 2009 and WP227 No 281 of 2009 and WP227 No 248 of 2009 and WP227 No 247 of 2009 and WP227 No 246 of 2009
Hemant Sahu
...Petitioners
Versus
Smt Shailja Samuel
N Kalidasan Managing Director
Mehtaru Ram Thakur
Roop Singh
Tika Ram Thakur
Mehtar Ram Sahu
Harish Ch&andra
Dhel Singh Thakur
Santosh Kumar Agrawal
Ratan Lal
Basant Ajgalle
M Trinath
Dev Prasad Sahu
Bala Ram Baya
Badri Singh Dhurve
Kunwar Singh Shyam
SC Paul
TT Giri
Toman Lal Kashyap
Jai Singh Gond
Sunil Kumar Sonwani
Jai Singh Markam
Nok Raju
Manharan Lal
Vishal Ram Sahu
N Ramesh Kumar
Radhey Shyam Kh&andekar
Krat Ram
Ishav Kumar Rathore
Anirudh
Hira Lal Sahu
Purushottam Singh Kanwar
TS Bhatia
Surendra Ch&andravanshi
Dilip Kumar Janghel
Kripa Ram Diwan
Smt Bhuri Bai Dhankar
Chinta Mani Patel
Sawant Ram Sahu
Ram Kailash
Ram Lakhan Sharma
Gyan Singh Tripure
Lekh Ram Sinha
Sukal Singh
SK Soni
Ram Ashish
BL Kachlam
IK Narbode
BR Uaike
RA Yadav
RS Kumare
Shyam Lal Bhargev
BR Maiti
Vijay Kumar Verma
Vishnu Ram Naik
Maleshwar Rao
VL Sahu
Thakur Ram Sahu
BL Gaware
Khuman Lal Sahu
Kashar Singh Packera
Jot Ram Lahare
TD Dhrat Lahare
MR Verma
Kumar Bhardwaj
Bala Ram Sahu
P Singh Kanwar
Santosh Kumar
Baleshwar Singh Jagat
Bharat Lal Deshmukh
Ram Awadh
Bahur Singh Ramteke
Dinb&andhu
Maya Ram Rathia
Sima Chalam
Surendra Ram
Nalin Kumar Semual
AL Packera
DK Meshram
Baliyar Singh Thakur
NP Yadav
Sita Ramaiya Naidu
Sanjay Diwedi
BK Hardel
Laxmi Narayan Ajgalle
PS Sen
Subhash Sahu
Uma Shankar Packera
SR Taram
...Respondents
! Shri Manindra Shrivastava Sr Advocate with Shri Uttam Pandey Advocate for the petitioner
^ Shri Amiykant Tiwari Advocate for the respondent No 1
CORAM : Honble Mr N K Agarwal J
Dated : 16/07/2009
: Judgement
(Writ Petition under Article 227 of the Constitution of India)
(Single Bench: Hon'ble Mr. N.K. Agarwal, J.)
ORDER
(Passed on 16th day of July, 2009) Heard on admission &and question of maintainability of the petitions.
1. This batch of petitions involve common question of law. Therefore, all the petitions are being disposed of by this common order.
2. W.P.(227) Nos. 1520/09, 1532/09, 1531/09, 1524/09, 1539/09, 1522/09, 1521/09, 1545/09, 1197/09, 2121/09, 2123/09, 1913/09, 1916/09, 1917/09, 1930/09, 2122/09, 2239/09, 2094/09, 2096/09, 1202/09, 2116/09, 2237/09, 2120/09, 2240/09, 2238/09, 2242/09, 2241/09, 284/09, 247/09, 282/09, 283/09, 248/09, 1193/09, 1921/09, 1928/09, 1919/09, 7051/08, 1203/09, 416/09, 411/09, 246/09, 6951/08, 6947/08, 6949/08, 6950/08, 1198/09 & 281/09 are directed against the order passed by the State Consumer Dispute Redressal Commission, Raipur, (for short `State Commission), whereby &and whereunder the State Commission has dismissed the appeal on account of refusal to comply Second Proviso to Section 15 of the Consumer Protection Act, 1986 (for short `the Act, 1986') by the petitioner. These petitions have been preferred by the petitioner seeking inter alia following reliefs:
i. That, this Hon'ble Court be pleased to call for the entire records of the case from Distt. Forum Durg &and State Commission, Raipur.
ii. That, the order passed by the Distt. Forum be modified to the extent of absolving the petitioner from the responsibility of payment of amount of the bounced cheque issued by respondent No. 2 along with compensation, cost, interest etc. for which he has been severally &and jointly held liable.
iii. That, the order passed by the learned State Commission be quashed in the ends of justice.
3. Remaining petitions i.e. W.P.(227) Nos. 483/09, 484/09, 564/09, 594/09, 624/09, 1204/09, 455/09, 2223/09, 539/09, 1201/09, 711/09, 794/09, 705/09, 1199/09, 450/09, 452/09, 1190/09, 1192/09, 1189/09, 1206/09, 1194/09, 1195/05, 2367/09, 2368/09, 1914/09, 2363/09, 1196/09, 2364/09, 2366/09, 2377/09, 2365/09, 683/09, 1191/09, 1205/09, 1918/09, 1922/09, 1657/09, 1658/09, 540/09, 795/09, 593/09 &and 706/09 are directly preferred by the petitioner challenging the order passed by the District Consumer Dispute Redressal Forum, Durg, (for short `Distt. Forum), whereby &and whereunder the Distt. Forum has allowed the petition of complainants &and passed the order for payment of compensation against the petitioner as well as the respondent No. 2. These petitions have been preferred by the petitioner seeking inter-alia following reliefs:
i. That, this Hon'ble Court be pleased to call for the entire records of the case from Distt. Forum Durg. ii. That, the order passed by the Distt. Forum be modified to the extent of absolving the petitioner from the responsibility of payment of amount of the bounced cheque issued by respondent No. 2 along with compensation, cost, interest etc. for which he has been severally &and jointly held liable.
iii. That, the execution proceedings initiated by the Distt. Forum Durg may be deferred till decision of this petition for which an Ad-interim application is being filed before this Hon'ble Court.
4. The brief facts of the case are that, &andman Gateways Tour & Travel Pvt. Ltd., Chennai (for short `Company'), a company said to be registered under the Companies Act &and having its Branch Office at Dillan Complex, IInd Floor, Akash Ganga Supela, Bhilai, Distt. Durg, collected money from various persons/complainants in order to provide tour package from Bhilai to &andman Isl&and. The various persons deposited the requisite amount with the petitioner. According to such persons/complainants, the petitioner, who is Director of the said company, collected the money from them but, in some cases journey was not arranged since inception i.e. from Bhilai itself, in some cases, they were not allowed to proceed further from Chennai &and in some cases, return journey from Port Blair to Bhailai has not been arranged. Accordingly, FIR was lodged against the petitioner &and the respondent No. 2. They have also filed complaint before the Distt. Forum, Durg, where the respondent No. 2 remained exparte. The petitioner, by filing his reply, pleaded that whatever amount he has collected from the complainants, the same has been deposited in the Bank account of respondent No. 2, &and he being the employee of the limited company, no liability can be fastened upon him.
5. The Distt. Forum, on close scrutiny of pleadings of the parties, evidence led orally as well as documentary, material placed on record, &and submissions made, passed the award against the petitioner as well as the respondent No. 2.
6. In some cases, as stated above, the petitioner preferred an appeal before the State Commission as provided under Section 15 of the Act, 1986. The State Commission directed to deposit a sum of Rs. 25,000/- or 50 percent of amount awarded by the Distt. Forum in each case. Earlier the petitioner prayed for three months time to deposit the requisite amount as provided under Second Proviso to Section 15 of the Act, 1986, but later on, refused to deposit the said amount &and therefore, no option left with the State Commission but to dismiss the appeal for want of compliance of Second Proviso to Section 15 of the Act, 1986. Hence this petition.
7. Shri Manindra Shrivastava, learned senior counsel appearing for the petitioner referred the compliant filed by the respondent before the Distt. Forum, its reply &and the documents filed by the petitioner alongwith the writ petitions &and submitted that the petitioner had collected the money as an employee/agent of the respondent No. 2 &and this fact was within the knowledge of the respondent, &and therefore, under Section 230 of the Indian Contract Act, the complaint is not maintainable as far as petitioner is concerned. Hence, the order passed by the Distt. Forum, holding the petitioner liable for payment to the respondents is without jurisdiction. He further submitted that although the Act, 1986, which is a self contained code providing the complete machinery for adjudication of the disputes, but as the petitioner is a poor person, he is not able to deposit the requisite amount as provided under Second Proviso to Section 15 of the Act, 1986, &and also as the order passed by the Distt. Forum is illegal, perverse &and contrary to law, therefore, this court should entertain these petitions despite the efficacious alternative remedy available to the petitioner. He further submits that although while exercising jurisdiction under Article 227 of the Constitution of India, this court will not act as an appellate authority, but certainly would exercise its jurisdiction to correct gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, &and thereby occasioning failure of justice.
8. Shri Shrivastava would further submit that as the order passed by the Distt. Forum is without jurisdiction, illegal &and perverse as far as liability fastened upon the petitioner &and therefore, this court should come in his rescue despite efficacious alternative remedy is available to the petitioner. For this he placed reliance upon the judgment passed in the matter of B.K. Muniraju v. State of Karnataka &and Others1 in which the Supreme Court in para 24 observed as under :
"24. It is clear that whether it is a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest &and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, &and (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal &and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
9. Reliance has also been placed upon the judgment of Supreme Court passed in case of Marine Container Services South Pvt. Ltd. v. Go Go Garments2 in which the Supreme Court in para 5 observed as under
5. The District Consumer Disputes Redressal Forum, Madras, before whom the respondent had instituted the claim, had found in favour of the appellant, both on the basis of Section 230 of the Contract Act as also on the issue of limitation. The State Consumer Disputes Redressal Commission, Madras, in appeal, upheld the decision of the District Forum based on Section 230 of the Contract Act &and, therefore, found it unnecessary to consider the aspect of limitation. The National Forum, as aforesaid, took the contrary view on the applicability of Section 230 of the Contract Act on the mistaken basis referred to above as also by reliance on the third clause of the presumptions to the contrary in Section 230, that is to say that an agent is bound by a contract entered into by his principal who, though disclosed, cannot be sued. That the principal here is "some company in Taiwan situated far outside the jurisdiction of the consumer courts in India" does not mean that it could be inferred, for it had not been so found by the District or State Commissions, that it could not be sued."
10. Shri Shrivastava further submits that the High Court of Jharkh&and in case of Managing Director, District Co- operative Milk Union Ltd. v. Presiding Officer State Consumer Disputes Redressal Commission &and Others3 observed in para 4 that existence of alternative remedy by way of revision to National Commission is no bar to maintainability of writ petition, &and submitted that the petition is maintainable despite efficacious alternative remedy available to the petitioner.
11. Reliance has also been placed upon the judgment of Calcutta High Court passed in the matter of Smt. N. Taneja &and Another v. Calcutta Distt. Forum &and Others4 in which Hon'ble Single Judge of Calcutta High Court observed in para 23 as under :
"23. It has been argued on behalf of the respondents that an application under Art. 226 of the Constitution does not lie but at best Art. 227 can be invoked. It is further submitted that any person aggrieved by any order of the District Forum may prefer an appeal to the State Commission under S. 15 of the Act within the prescribed period. But it must be started in all fairness that if the order of the Forum goes wrong &and is made palpably without jurisdiction then certainly a citizen has the right to come under the protection of Art. 226 of the Constitution. The argument of respondent No. 2 is not tenable. In the case of Ram &and Shyam Company v. State of Haryana (Supra) the Supreme Court specifically made is clear as under: "Where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Art. 226 &and such a petition cannot be rejected on the ground that an appeal lies to the higher officer of the State Government. An appeal in all cases cannot be said to provide in all situation an alternative effective remedy keeping aside the nice distinction between jurisdiction &and merits." This point is decided in favour of the petitioners.
12. Per contra, Shri Amiykant Tiwari, learned counsel appearing for the respondent No. 1 in some cases, would submit that the Act, 1986 is a self contained code which provides adequate efficacious alternative remedy to the petitioner. The petitioner should avail such remedy &and in fact had availed in some of the cases, &and therefore, these petitions should be thrown at threshold. He further submitted that the petitioner had shown himself before the respondents as Director of the company &and the respondents believed his statement to be true as he is a local person, deposited the amount with him. He never disclosed this fact to the respondents that he is a mere employee of the company not Director or owner of the company, &and therefore, under Section 230 of the Contract Act, the petitioner is squarely liable to compensate the respondents &and therefore, order passed by the Distt. Forum can neither be said to be without jurisdiction nor illegal or perverse. Moreover, all the questions which the petitioner is raising here could have been raised before the appellate authority &and therefore these petitions deserve to be dismissed. Shri Tiwari relied upon the judgment passed in case of State of H.P. &and Others v. Gujarat Ambuja Cement Ltd. &and Another5 in which the Supreme Court in para 19 observed as under:
"19. We shall first deal with the plea regarding alternative remedy as raised by the appellant State. Except for a period when Article 226 was amended by the Constitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self- imposed limitation. It is essentially a rule of policy, convenience &and discretion &and never a rule of law.
Despite the existence of an alternative remedy, it is within the jurisdiction of description of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should not ensure that he has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction.
13. He further relied upon the judgment passed by the Supreme Court in case of Sadhana Lodh v. National Insurance Co. Ltd. & Another6 in which it has been held in para 6 as under:
"6. The right of appeal is a statutory right &and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds &and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd. v. Nicolletta Rohtagi ). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order &and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie &and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction &and an appeal against refusal to grant injunction has been rejected, &and a State enactment has barred the remedy of filing revision under Section 115 CPC, in such a situation a writ petition under Article 227 would lie &and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 CPC, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution."
14. I have heard learned counsel appearing for the parties, perused the record. In the instant case, the Distt. Forum passed the order after appreciating the material on record which cannot be said without jurisdiction or per-se illegal. The petitioner has in fact preferred an appeal in several cases but as he refused to fulfill the condition as provided under Second Proviso to Section 15 of the Act, 1986, to deposit the requisite amount therefore the appeals were dismissed. The petitioner also failed to file any receipt issued by him in favour of respondent to show that he has received the amount from the respondent as an agent/employee of the respondent No. 2. In all these circumstances, it cannot be said that the order passed by the Distt. Forum suffers from inherent lack of jurisdiction, or the order passed against the petitioner is without jurisdiction.
15. The Supreme Court in case of L.K. Verma v. HMT Ltd.
&and Another7 in para 20 observed as under :
20. The High Court in exercise of its jurisdiction under Article 226 of the Constitution, in a given case although may not entertain a writ petition inter alia on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application.
Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the Act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks, Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd &and State of H.P. v.
Gujarat Ambuja Cement Ltd.)
16. The Supreme Court in case of Shyam Kishore &and Others v. Municipal Corporation of Delhi &and Another8 held that whether adequate remedy can be read in the statute plea of resort to writ remedy under Article 226 &and 227 must be discouraged.
17. The Supreme Court in case of Hindustan Steel Works Construction Ltd. &and Another v. Hindustan Steel Works Construction Ltd. Employees Union9 held that the writ petition under Article 226 of the constitution of India should not be entertained when the statutory remedy is available under the Act unless the exceptional circumstance are made out.
18. The Supreme Court in case of U.P. Spinning Co. Ltd.
v. R.S. P&andey &and Another10 held in para 18 as under :
"18. At this juncture, it would be appropriate to take note of the few expressions in R. v. Hillington, London Borough Council which seem to bring out the position well. Lord Widgery, C.J. stated in this case:
(All ER pp. 648f-649b) "It has always been a principle that certiorari will go only where there is no other equally effective &and convenient remedy.
* * * The statutory system of appeals is more effective &and more convenient than application for certiorari &and the principal reason why it may prove itself more convenient &and more effective is that an appeal to (say) the Secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these ... whereas of course an appeal for certiorari is limited to cases where the issue is a matter of law &and then only it is a matter of law appearing on the face of the order.
* * * An application for certiorari has however this advantage that it is speedier &and cheaper than the other methods &and in a proper case therefore it may well be right to allow it to be used ... I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law."
19. Therefore, in the facts &and circumstances of the case, the petitioner utterly failed to demonstrate such exceptional circumstances so as to invoke the extraordinary jurisdiction of this court under Article 227 of the Constitution of India. The petitioner has efficacious statutory alternative remedy which he can avail &and in fact has availed in some cases.
20. A common thread running into the dicta laid down by the Supreme Court in the aforementioned cases is that, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. Where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedy before resorting to writ jurisdiction, except when a very strong case is made out for making a departure.
21. Applying the well settled dicta laid down by the Supreme Court on the issue of availability of alternative remedy to the facts of the case, no case is made out for making out a departure from normal rule. In view of the aforesaid discussions, these petitions have been filed by surpassing the statutory remedy available under the provisions of law, &and therefore these petitions are liable to be &and are hereby dismissed as not maintainable, in view of the availability of statutory alternative remedy. However, the petitioner is free to take recourse to statutory alternative remedy that may be available to him, under the provisions of law. No order asto costs Judge