Calcutta High Court
Visva Bharati vs Smt. Rakhi Debnath And Ors. on 4 July, 1995
Equivalent citations: (1996)1CALLT51(HC), 1995 A I H C 6578, (1996) 1 CALLT 51, (1996) 1 CIVLJ 783, 1996 CCJ 1216, (1995) 2 CAL LJ 218
Author: Basudeva Panigrahi
Bench: Basudeva Panigrahi
JUDGMENT Basudeva Panigrahi, J.
1. This writ petition is directed against an Order dated 2.9.93 passed in CDF Case No. 1654 of 1993 by the Calcutta District Consumer Redressal Form, Alipore asking the petitioners for Issuance of certificate of fitness on the cassettes deposited by the respondent No. 2 after observing necessary formalities and to pay compensasion of Rs. 15.000/- The petitioner No. 1 is a registered society under the Societies Registration Act, 1860 whose primary function is to espouse and spread the cause of education in the country. Prior to 11.9.93 the Visva Bharati (Society) Music Board was engaged itself to preserve, protect and improvise the musical legendary work of Rabindra Nath Tagore. But by virtu of the amendment of the Visva Bharati Act, 1951, Visva Bharati Music Board was amalgamated with the 'Visva Bharati' and all properties including assets, rights and liabilities became vested in the petitioner No. 1. The petitioner No. 2 who is a Joint Director (Sales) looking after the Granthana Vibhaga of the Visava Bharati. The copyright in the Musical works of Rabindra Nath Tagore has vested with the petitioners. The respondent No. 2 who claims a registered publisher for production of audio cassette communicated in a letter to the petitioners that she desired to publish a cassette of Rabindra Sangit (songs) sung by respondent No. 1 and wanted to obtain certificate of fitness from V.B.S.B. Authority. Pursuant to the said letter the petitioner No. 2 asked the respondent No. 1 through the letter dated 11.11.92 to send the cassette in duplicate containing 12 selected songs of Rabindra Nath Tagore along with Rs. 120/- for the purpose of tune examination fee. The text of the letter sent by petitioner No. 2 is quoted hereunder :-
"Re: Permission for recording Rabindranath Tagore's songs.
This has reference to your letter dated 9.11.92.
You have our permission to record 12 songs, as per list submitted by you, on the following terms and conditions :
1. You will pay an advance royalty of 5% on printed price of the cassette.
2. The following payment of royalty is to be made within the following year, i.e, on the month of April along with a statement of sale.
3. You will also be required to send us cassette in duplicate containing the above songs for our approval before it is marketed along with approval fee of Rs. 120/- for cassette.
4. The label design of the cassette should inscribe the words Approved by the Visya Bharati Music Board or Visva Bharati Snageet Samiti Anumodita.
5. You will have to send us 12 complimentary copies of the cassette.
You are requested to send us the cassettes containing the above songs for our approval.
Thanking you,".
The respondent No. 2 as per the instruction of V. B. S. B. paid Rs. 120/along with it submitted two identical cassettes (each containing the said 12 songs) through the letter dated 23.11.92. After examining those songs the petitioner No. 2 communicated through the letter dated 28.12.92 to the respondent No. 2 asking her to re-take the songs and thereafter send the same to the Board for approval. The cassettes were carefully examined by an expert member Sri Subhas Choudhury who made certain remarks on the cassettes allegedly showing certain mistakes in intonation an also notations of "Swarabitan". It was further indicated that the cassettes contained several mistakes in pronunciation, voices throbbing expression and disrupted voice. The respondent No. 2 in her letter dated 23.2.93 addressed to the petitioner No. 2 however, emphasised that there were no mistakes in the recitation by the respondent No. 1. The words "Rini Rini" were allegedly uttered in place of "Rune Rune". The respondent No. 2 however, sent two 're-taken' cassettes of the said 12 songs together with a fees of Rs. 120/- towards tune examination. After receipt of those cassettes the petitioners claimed to have placed before the Board for giving final approval which awaits result and no immediate action could be taken due to the pendency of the consumer dispute.
2. The respondent No. 1 who was, eventually, the complainant before the District Consumer Redressal Forum without awaiting the results of the Board hurriedly, filed a consumer dispute. It is claimed by the petitioner No. 1 that the Visva Bharati Authority had not been impleaded as a party before the District consumers Redresal Forum but the complainant somehow to take an order only impleaded respondent No. 1 giving improper description of the petitioner No. 2. Though the petitioner No. 2 filed a showcause before the District Forum but the latter without properly considering the same passed the impugned order.
3. The respondent No. 1 inter alia, challenged the arbitrary, whimsical and complacent attitude of the petitioners before the Consumers' Redressal Forum claiming Rs. 70.000/- as compensation. It is further stated that the petitioner No. 2 being a statutory body, it was not expected of them to behave in such a slip-shod manner. It is claimed that the Consumer Forum after a careful consideration of her claim awarded damage Rs. 15.000/- as compensation, over and above the direction to the petitioners for issuing proper fitness certificate within 10 days after observance of necessary formalities.
4. Mr. Pahari, the learned counsel appearing for the petitioner, raised preliminary issue that the Consumer Redressal Forum has no jurisdiction to award compensation to the respondent No. 1. It is further highlighted that the petitioner No. 1 being an Educational Institution, whose fundamental duty is only to profess education amongst the students, is not engaged itself in any other business. In the above premises the Consumers' Redressal Forum seems to have committed a graveous error in treating the petitioner as a person. 'Education' subject is not coming within the purview Consumer Protection Act, 1986. Thus, the Forum was incompetent to take cognizance of such dispute and further decide the issue. The respondent no 1 authorised to one Sri Gopal Ch. Debnath for arguing the case on her behalf. Mr. Debnath submits that the authority being a statutory body can come within the category of 'persons'. Since there was deficiency in service of petitioner No. 2 and the respondent No. 1, the complainant had waited for unreasonably long time and after no response being evoked from the petitioner No. 2, she was obliged to bring the dispute before the Consumer Form. The provisions of Consumer Protection Act, 1986 being a beneficial piece of legislation, the inconvenience suffered by the respondent No. 1 had been rightly compensated. It is also argued that there being appeal provision under the Act, the petitioners without prosecuting remedy under that hirearchy should not have rushed to the Court invoking the Jurisdiction under Article 226 of the Constitution of India.
5. Before considering the rival contentions of the parties, it is appropriate to quote some of the provisions of the Consumer Protection Act, 1986.
"2(c)-"complaint" means any alegation in writing made by a complainant that-
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader;
(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 has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods with a view to obtaining any relief provided by or under this Act;
(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods
(d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, byt does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid an partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;
15. Appeal.-Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.
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 service and compensation, if arty, claimed exceeds rupees (twenty lacs) 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."
6. On a careful reading of the aforesaid provisions there shall be no doubt that those are self-contained provisions under the Act which is a beneficial legislation for the purpose of providing speedy relief to the consumers. The provisions clearly lay down that the complaint received from the consumers shall as far as possible be disposed of within 90 days from the receipt thereof. The respondent No. 1 (hereinafter referred to as complainant) raised the dispute before the District Consumer Redressal Froum for vindicating her right. The petitioner No. 2 also was sent appropriate notice by the forum and on receipt of the same communicated the reply but did not choose to appear in person. Therefore, the Forum after considering the merits of the contentions so raised by both the parties allowed the complaint directing the petitioner to pay compensation over and above to grant certificate of fitness.
7. A contentious plea has been raised by the petitioners that even the allegations accepted on its face value cannot form the subject matter of complaint within the meaning of the said Act. It is further streneously urged that the subject 'education' does not come within the purview of service as has already been held by National Commission. The learned counsel relied on a decision reported in I(1994) CPJ 146(NC) in the case of Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay. It is no doubt indicated in the aforementioned decision that education is not service nor a student be equated with a consumer. How far the aforesaid principle can be streached to the present case needs to be considered by the appropriate authority. It shall not be apposite for me to make an in depth finding regarding the merits of the aforesaid contentions.
8. The representative of the respondent nos. 1 & 2 has however, invited my attention to the letter issued by the petitioner No. 1 asking the respondent No. 2 to deposit Rs. 120/- towards tune examination fee. The letter Annexure 'D' was communicated by the Secretary to the respondent No. 2, I do to wish to express any opinion either way whether it would come within the scope of education subject. The respondent No. 1 in her complaint against the petitioners have made several allegations and those have been specifically denied and disputed by them. Therefore, thus, there exists the disputed question of fact as to whether the dispute comes within the meaning of the said Act. It is well-known that although this Court in exercise of its Jurisdiction under Article 226 of the Constitution can interfere with a notice issued by any statutory authority provided it looked fundamental jurisdiction to seize the matter in issue. But on the facts pleaded by the parties whether the Redressal Forum has jurisdiction can be examined by itself.
9. In this connection a decision reported in 1994 Vol. I CHN 197 in the case of Shrimati Saswati Mehrotra v. State of West Bengal and Ors. may be referred to where it has been decided:-
"Tribunals having the power to decide the question of its own jurisdiction, the High Court should not normally go into the question of the jurisdiction of the tribunal without giving it any opportunity to decide the question itself.
When the legislature has constituted a hierarchy of Tribunals with provisions for appeal to the Supreme Court, the High Court should not interfere with the proceedings of such Tribunal except for compelling reason as where clear absence of jurisdiction is obviously apparent on the face of the record on the admitted facts and without any dispute."
10. The learned counsel has taken me through the provisions of the Act and highlighted that since there has been no right of appeal before the National Commission, their grievance should only be decided by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. I do not find any merit in the aforesaid contention. The provisions clearly direct that there is an appeal against the order of the District Forum before the State Commission. Even after the decision of the State Commission, the aggrieved party may prefer revision before the National Commission and the revisional jurisdiction can be invoked in an appropriate case under section 21 clause B of the Act. Therefore, when there is alternative remedy available to an aggrieved party, without exhausting that remedy, ordinarily, he should not be allowed to raise disputed question of facts by invoking the power of the High Court under Article 226 of the Constitution of India.
11. In the case of State of Uttar Pradesh v. Brahm Dutta Sharma and Ors. the Apex Court has held :-
"9.The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the court should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court, in our opinion, ought not to have interfered with the show cause notice."
In another reported decision it has been held :-
"The departmental instructions may not always be followed and the resort to Articles 226 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the Statute itself. The construction of the section approved by us above vests in the appellate authority a power to deal with the appeal otherwise than by way of final disposal even if the disputed tax is not paid. It enables the authority to exercise a judicial discretion to allow the payment of the disputed tax even after the appeal is filed but, no doubt before the appeal is taken up for actual hearing. The interpretation will greatly ameliorate the genuine grievances of arid hardships faced by, the assess in the payment of tax as determined. Though an asessee may not be able to acquire an absolute stay of the recovery of the tax until the dispute is resolved, he will certainly be able to get breathing time to pay up the same where his case deserves it. If this interpretation is placed on the provision, no question of unconstitutionally can at al arise.
" In the case of Union of India and Ors. v. Upendra Singh, it has been held :-
"In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. "
From the ratio of the above decisions, it is explicitly clear that when the departmental inquiry is pending before the authority which is discharging its judicial and quasi Judicial duties, the High Court should scarcely exercise its jurisdiction under Article 226 of the Constitution of India.
12. The learned counsel Mr. Pahari appearing for Visva Bharati, strongly urged and relied upon a decision reported in AIR 1965 SC 622. But on a close reading of the decision it is clear that the facts in this case can be well contra-distinguished from the case mentioned above. Similarly the decision reported in AIR 1977 SC, Page 393 (Government of India v. Ad-hoc Commissioner and Ors.) strong reliance was pleaced the petitioner but on a serious cogitation of the decision it appears that the principle enunciated in the aforementioned case cannot be streched to this case. In the above cited decision the sole controversy raised was whether the unfair trade practice shall come within the purview of the Act and the Hon'ble Supreme Court after consideration of various aspects held that such disputes could not come within the ambit of the Act. The question whether availability of alternative remedy takes away the right of the petitioners who invoked writ jurisdiction was neither considered nor decided in the aforementioned decision Thus, in my humble opinion that decision has no application to the present facts.
13. Another interesting contention raised by the petitioners is that the respondent No. 1 cannot come within the meaning of Consumer under the Act. Authorised agent of the respondents cited a decision in the case of Lucknow Development Authority v. M.K. Gupta. It is strongly urged by the respondents that the potential users as stated in the 'definition service' has been amplified in the aforementioned case. Since the term 'potential user' is a disputed question which is yet to be decided by the authority. I do not wish to make any further observations on this point since it may affect the interest of either party.
14. Therefore, the trite position emerged from the above discussion is that when other efficacious remedy under the Act is available to a litigant, he without exhausting such remedy should not resort to the extra ordinary remedy available under Article 226 of the Constitution of India.
15. In the above situation, I hold that the writ petition does not have any merit and is accordingly dismissed. Before parting with the case I must make it clear that I have not applied my mind with regard to the merits of the case and my observations hereinbefore may not be construed that I have given my opinion on merits. The observations made above is only for the purpose of showing that the matter at issue may appropriately fall for consideration before the hierarchy under the Consumer Protection Act. It is open to the petitioners to agitate their grivance before the appellent authority if they are so advised.
16. Accordingly, this application is dismissed. However in the facts and circumstances of the case there will be no order as to costs.