Madras High Court
A.Gurunathan vs K.Natarajan on 9 July, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.07.2012 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(NPD).SR.No.41946 of 2012 A.Gurunathan Petitioner Vs. K.Natarajan Respondent Civil revision petition filed under Article 227 of the Constitution of India against the order dated 05.05.2011 passed by the State Consumer Disputes Redressal Commission, Chennai, in C.M.P.Sr.No.563/2011 in C.M.P.No.1509 of 2010 in F.A.No.483 of 2007h in C.O.P.No.300 of 2003. For Petitioner : Mr.P.Saravanan ORDER
Inveighing the order dated 05.05.2011 passed by the State Consumer Disputes Redressal Commission, Chennai, in C.M.P.Sr.No.563/2011 in C.M.P.No.1509 of 2010 in F.A.No.483 of 2007h in C.O.P.No.300 of 2003, this civil revision petition is focussed.
2. Heard the learned counsel for the petitioner.
3. A thumbnail sketch of the germane facts absolutely necessary for the disposal of this revision, at the number stage, itself would run thus:
(i) The revision petitioner here filed the application C.M.P.No.1509 of 2010 before the State Consumer Disputes Redressal Commission, Chennai, to get restored the appeal F.A.No.483 of 2007, which was dismissed for default. The said application was allowed subject to payment of Rs.1000/- as cost and the order is extracted hereunder:
"Heard. This petition aims to restore the appeal in F.A.483/2007. In view of the default committed by the appellant, the case came to be dismissed for default on 23.11.2010. In order to give an opportunity, we are inclined to restore the appeal on terms. Objection over ruled since the respondent is not willing to receive the cost. Considering the facts and circumstances of the case, the petition is allowed on condition that the petitioner shall deposit a sum of Rs.1,000/- as cost to the legal aid account of the State Commission, by way of Demand Draft, drawn in favour of the Registrar, State Consumer Disputes Redressal Commission, Chennai, on or before 14.3.2011, failing which, the petition shall stand dismissed."
(ii) However, within the time, it appears, the order was not complied with. Whereupon, application was filed to get the time extended. But the State Consumer Disputes Redressal Commission on seeing that the earlier order was not complied with, passed the order thus:
"1. Heard. The petitioner having failed before the District Forum in O.P.No.300/2003, filed an appeal before this Commission in F.A.No.483/2007, which was not diligently prosecuted, despite sufficient time given and finally when the case was posted for appearance and disposal also, resulting dismissal of the appeal on 23.11.2010.
2. Thereafter, CMP.No.1509 of 2010 was filed to restore the appeal, which was allowed on condition to pay a sum of Rs.1000/-, as cost, to legal aid account, on or before 14.3.2011, which was called on 15.3.2011, to ascertain the compliance of conditional order. On that date also, there was no representation, conditional order not complied with, resulting dismissal of that petition. Thereafter, this petition was filed to restore that petition, seeking extension of time.
3. By the conduct of the petitioner, who is the complainant, a case filed in the year 2003, has not come to finality, that too by the deficiency and negligence committed by the complainant. Therefore, we find no reason to extend the time, for compliance of the order dt.24.1.2011, which workout itself, and this petition is also not maintainable, after the disposal of the previous CMP.No.1509of 2010, since this commission has no jurisdiction, to review the said order.
4. Hence the petition is liable to be rejected, taking into consideration the slackness on the part of the complainant, that too, considering the purpose of the Act, which contemplates, early disposal.
5. In the result, the petition is rejected."
4. Being aggrieved by and dissatisfied with the said order, this revision has been focussed on various grounds.
5. Instead of approaching the National Commission under the Consumer Protection Act, the petitioner invoked Article 227 of the Constitution of India on the ground that the order passed by the State Consumer Disputes Redressal Forum in refusing to extent the time to comply with the order was to be set aside, as according to him, such an order is having no legs to stand. He would also cite the following decisions:
(i) Unreported judgement of this Court dated 11.8.2010 in M/S.VIJAY CONSTRUCTIONS V. 1.Mrs.P.R.Leena Mary 2.U.Gandhi
(ii) (2006) MLJ 729 OWRI AMMAL V. MURUGAN, ANBU, SEKAR AND SAROJA;
(iii) CDJ 2005 MHC 580 UMA NURSING HOME AND ANOTHER V. V.JANSIRANI AND OTHERS
(iv) CDJ 1996 MHC 183 INDIAN BANK AND FOUR OTHERS V. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MADRAS AND ANOTHER
(v) CDJ 2008 MHC 3490 VASANTHI THIAGARAJAN PRINCIPAL V. R.NAGESWARAN;
(vi) CDJ 2007 MHC 2314 S.RAGAVACHARI V. V.S.NARAYANAN & ANOTHER
(vii) CDJ 2010 MHC 4958 M/S.VIJAY CONSTRUCTIONS V. MRS.P.R.LEENA MARY AND ANOTHER
(viii) CDJ 2001 CAL HC 868 TAPAS DUTTA V. THE PRESIDENT, STATE CONSUMER DISPUTES REDRESSAL COMMISSION AND ANOTHER
(ix) CDJ 2006 ORISSA HC 016 BIRATUNGA S.C.S.LTD.(MIN BANK) V. SANGGRAM KESHARI PATI;
(x) CDJ 2008 BHC 1198 M/S.SHAHAJI ALLOYS STEEL PVT LTD.AND OTHERS V. SICOM LTD AND OTHERS
(xi) CDJ 2011 BHC 1123 THE MAPUSA URBAN CO-OPERATIVE BANK OF GOA LIMITED V. MR.SKODA TADEO DO ROSARIO COTTA AND ANOTHER;
(xii) CDJ 2011 BHC 1134 THE MAPUSA URBAN CO-OPERATIVE BANK OF GOA LIMITED V SKODA TADEO DO ROSARIO COTTA & ANOTHER
(xiii) CDJ 2011 CAL HC 211 TAHAMINA KHATUN V. ANDHI CENTENARY B.T.COLLEGE
3. At the outset itself, I would like observe that this court has no jurisdiction to entertain this revision in view of the earlier two decisions of this court reported in
1. 2002(1) CTC 15 (Chairman and Managing Director, Indian Overseas Bank, Madras 600 002 and two others vs. The District Consumer Disputes Redressal Forum, Madras-1 and another) and
2. 2006(2) CTC 709 (R.Jaivel, the President Mettupatti Multi Purpose Worker's Industrial Co-operative Society Ltd., Namakkal vs. State of Tamil Nadu, rep.by the Superintending Engineer, PWD, Vellore) and certain excerpts from those two decisions would run thus:
1. 2002(1) CTC 15 (Chairman and Managing Director, Indian Overseas Bank, Madras 600 002 and two others vs. The District Consumer Disputes Redressal Forum, Madras-1 and another) "8. As far as the first submission is concerned,it is settled law that before approaching this court under Article 226 of the Constitution of India, it is the bounden duty of a person to exhaust all alternate remedies. At the same time, it is not as if this court has no power to entertain the writ petition when there are alternate remedies. before entertaining such writ petition, courts will see whether alternate remedy available is effective and further whether the alternate remedy will be a long drawn process and whether the circumstances of the case required an immediate redressal to the affected person. In cases where there are clear violation of Principles of Natural Justice or when authorities act totally without jurisdiction, court will entertain writ petition and adjudicate the matter. But at the same time, it has to be pointed out that the Court exercising jurisdiction under Article 226 of the Constitution of India, will not take up the exercise of examining the disputed question of fact and render factual finding. Normally once the writ petition is admitted, at the time of final disposal the court will not drive the parties to the appellate forum unless there are disputed questions of fact and when all required materials are available before court."
2. 2006(2) CTC 709 (R.Jaivel, the President Mettupatti Multi Purpose Worker's Industrial Co-operative Society Ltd., Namakkal vs. State of Tamil Nadu, rep.by the Superintending Engineer, PWD, Vellore) "16. Arguing upon maintainability of this revision petition, the learned counsel for the revision petitioner again relied upon G.Rajamani v Petchimuthu and others, 2003(1) CTC 300: 2003(2) LW 363 and submitted that inspite of Section 27 of the Consumer Protection Act, Revision under Article 227 of the Constitution of India is not maintainable. In those cases, the question as to the maintainability of a revision under Article 227 de hors the provisions made in Section 27 about the availability of appellate jurisdiction has not been dealt with; whereas the same was dealt with in a later case M/s.Max worth Homes Ltd. v. V.Raman 2005(2) CTC 258: 2005(3) LW 455, in the following line:
"The present order which is under challenge in the above revision came to be passed was only the said circumstances under Section 27 of the Act. As such it cannot be suggested that no appeal shall lie as against the said order. Even otherwise, Section 21(b) of the Act confers wide powers to the National Commission to call for records and pass appropriate orders in respect of any matter pending or orders passed by the 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 the light of such wide powers conferred upon the National Commission and in the light of the present facts on hand, I am not inclined to exercise powers under Article 227 of the Constitution."
(iii) Certain excerpts from one other decision of this Court reported in AIR 2010 MADRAS 201 M/S.AIR CANADA V. M/S.ARPEE GARMENTS & ANOTHER, would run thus:
"9. . . . . . .Section 21(b) of the Act confers wide powers to the National Commission to call for records and pass appropriate orders in respect of any matter pending or orders passed by the 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 the light of such wide powers conferred upon the National Commission and in the light of the present facts on hand, I am not inclined to exercise powers under Article 227 of the Constitution."
A mere perusal of those excerpts including the whole judgments would amply make the point clear that the Consumer Protection Act itself provides for filing revision or appeal, as the case may be, before the National forum under the said Act and get redressed of the grievances by a party concerned; while so, invocation of Articles 226 and 227 of the Constitution of India by the aggrieved person as against the orders of the State Consumer Redressal Commission, would not lie.
12. In respect of the Hon'ble Apex Court's decision cited by the learned counsel for the revision petitioner supra, I would like to point out that in the said decision it has not been pointed out that despite the availability of the revisional forum for the aggrieved party concerned, to get redressal, he can approach the High Court invoking Articles 226 and 227 of the Constitution of India."
A mere perusal of those excerpts including the whole judgments would amply make the point clear that the Consumer Protection Act itself provides for filing revision or appeal, as the case may be, before the specially constituted forum concerned under the said Act and get redressed of the grievances by the aggrieved party; while so, the invocation of Article 227 of the Constitution of India by the aggrieved person as against the orders of the District/State Consumer Redressal Commission, would not lie.
4. The power of the High Court under Article 227 of the Constitution is no doubt a Constitutional power conferred on the High Court to exercise its supervisory jurisdiction and that could be exercised, if at all there is no effective alternative remedy.
5. The learned counsel for the petitioner, by citing the following decision of the Honourable Apex Court reported in CDJ 2010 SC 535 OM PRAKASH SAINI VERSUS DCM LTD., & ANOTHER,certain excerpts from it would run thus:
"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 entertain 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 petitioner 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 and 394 of the Companies Act.
14. The dismissal of the application filed by the appellant for recall of order dated 11.7.2007 is clearly vitiated by a patent error of law. In the petition filed by him, the appellant had averred that he could not file reply because of heart ailment and on the date of hearing he could not reach the High Court because of failure of the public bus transport system. Respondent No.1 did not controvert these averments. Notwithstanding this, the learned Single Judge dismissed the application without even examining sufficiency of the cause shown by the appellant for his non-appearance on the date of hearing.
15. In the result, the appeals are allowed. The impugned order is set aside and the matter is remitted to the High Court for fresh adjudication of CM(M) No.398 of 2007. While deciding the matter, the High Court is expected to take note of the fact that respondent No.1 had an effective alternative remedy against the order passed by the State Commission and, as a matter of fact, it had availed the remedy of appeal. If the High Court comes to the conclusion that respondent No.1 should be relegated to the remedy of appeal, then it may pass appropriate order to facilitate recall of order dated 25.4.2007 passed by the National Commission so that respondent No.1 may be able to pursue the remedy of appeal."
would develop his arguement that the Honourable Supreme Court did not simply dismiss that petition on the ground that the High Court had no jurisdiction, but remitted the matter back to the High Court.
6. I would like to highlight and spotlight the fact that the Honourable Apex Court looked askance at the order of the High Court in entertaining the application under Article 227 of the Constitution overlooking the alternate remedy available to the party concerned. The Honourable Apex Court sheds light on the point that when there is alternative remedy available to a party, the High Court should not invoke Article 227 of the Constitution. As such, raising that question, the matter was remitted to the High Court to consider as to why the High Court should pass order invoking Article 227 of the Constitution. That itself is indicative of the fact that the Honourable Apex Court did not approve the approach of the High Court in invoking Article 227 of the Constitution when there is alternative remedy available.
7. In this case, the impugned order is not one that was grossly injustice or beyond the para meters of the jurisdiction of the State Consumer Disputes Redressal Forum. Within the scope and parameters of its jurisdiction the State Commission passed orders, which could be challenged only before the National Commission.
8. Hence, in view of the aforesaid precedents, I am of the considered view that this court cannot interfere in this matter by entertaining this revision and accordingly, the revision is dismissed at the SR stage itself. No costs. Office is directed to return the relevant papers to the learned counsel for the petitioner immediately.
9. On hearing this order, the learned counsel for the petitioner would make an extempore submission that now then, time has been taken by the petitioner to approach this Court under Article 227 of the Constitution and excluding the time taken for filing this petition and getting this order of dismissal, liberty might be given to the petitioner to approach the National Commission.
10. It goes without saying that such a prayer could be accepted. The petitioner is at liberty to approach the appropriate forum under the Consumer Protection Act, subject to law of limitation, The period between the date of filing of this revision petition i.e. on 27.4.2012 and the date of this order shall stand excluded for filing the necessary petition before the National Commission under the Consumer Protection Act, 1986.
Msk 09.07.2012 Index:Yes Internet:Yes Note to Office: Issue order on 10.7.2012 To The State Consumer Disputes Redressal Commission, Chennai. G.RAJASURIA,J. C.R.P.(NPD).SR.41946 of 2012 09.7.2012