Karnataka High Court
Indian Engineering Institution vs The President, The District Consumers' ... on 1 February, 1994
ORDER N.Y. Hanumanthappa, J.
1. The petitioner is a society registered under the Societies Registration Act, having its office under the name of 'CAD POINT' situated at Silver Jubilee Building, K.R. Circle, Bangalore. It is an educational institution imparting computer education in various fields of software engineering. As of today a good number of students are undergoing training in computer science. The institution consists of very competent teaching staff. One Mr. M. K. Yuaraj was the working Principal-cum-Co-ordinator. On some false complaint he was arrested and detained in prison. In his absence, as order came to be passed on the complaint lodged before the District Consumer Forum. An order came to be passed as per Annexure-D dated 25.9.1993 whereby the petitioner was directed to refund to the complainants within one month from the date of the order, amounts paid by them, as shown at internal page-4 (para-8 of the order), with a further direction that petitioner should pay each complainant a sum of Rs. 500/- as compensation. Aggrieved by this order the petitioner has preferred this writ petition contending :-
(a) That the order passed by the District Consumer Forum, Bangalore, against a person who was in jail is quite arbitrary and against the principles of natural justice;
(b) The order impugned is without jurisdiction as the petitioner-institution cannot be brought within the purview of Consumer Protection Act, 1986 (Act No. 58 of 1986) since it is imparting education and not rendering any other service which could be brought within the definition of 'consumer' and 'buyer'.
(c) The impugned order is passed without understanding the scope of the relevant provisions of the Act.
(d) Regarding maintainability of the writ petition it is contended that when the impugned order is without jurisdiction, this Court can exercise its powers under Article 226 of the Constitution of India. Learned counsel placed reliance on the decision in the case of Smt. N. Taneja v. Calcutta Distt. Forum, .
2. Elaborating her submission, learned counsel submitted that in the above decision this Court while considering the scope of education held that education does not come within the scope of Consumer Protection Act. Regarding the alternative remedy, the Court observed as follows :-
"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 Section 15 of the Act within the prescribed period. But it must be stated 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 it 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 situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits." This point is decided in favour of the petitioners."
Secondly reliance is placed on the decision in the case of The Calcutta Metropolitan Development Authority v. Union of India, , wherein it is held that under Article 226 of the Constitution, the High Court can issue writ of certiorari when it is held that there is initial lack of jurisdiction and can go into the question as to whether the concerned authority at all had jurisdiction to entertain the matter.
3. Sri Murlidher, learned Government Pleader who was heard for the respondent submitted that as against the order passed by the 1st respondent, an appeal lies under Section 15 of the Act, to the State Commission. Without exhausting the effective and alternate remedy the petitioner has approached this Court. The question of lack of jurisdiction or illegality committed by the District Forum while passing the impugned order can very well be agitated before the State Commission. According to him the authorities relied on by the petitioner are not binding on this Court. This arguing he submitted that it is not a fit case to issue rule.
4. In order to understand the real controversy between the parties, it is proper to bear in mind the scope of Section 15 of the Act. Section 15 of the Act contemplates that against an order passed by the District Consumer Forum, the person aggrieved shall prefer an appeal within 30 days. In the instant case order was passed by the District Consumer Forum on 25.9.1993 and an appeal should have been filed within 30 days therefrom, excluding then time taken for obtaining the certified copy. But the petitioner approached this Court on 31.1.1994. Even if the petitioner had gone to the State Commission on 31.1.1994 without an application for condoning the delay, probably the appellate Court would have rejected the appeal at the threshold itself as barred by time. If an application for condoning delay is preferred probably the appellate authority would have condoned it. With regard to alternate remedy, it is not a universal rule, but it is a matter of convenience (sic) and varies from case to case. In the case on hand the question to be decided is whether the impugned order could have been passed in his absence or not. Secondly whether the type of education the petitioner is imparting could have been brought within the purview of the Consumer Protection Act, 1986.
5. Since question of fact is involved the same cannot be decided in a petition under Art. 226 of the Constitution. Apart from this when a statute has provided for an alternate remedy, it is not proper to bye pass the same. Jurisdiction under Art. 226 of the Constitution can be exercised only when remedy available is quite cumbersome; has to pay heavy court fee or even if approached it is not definite that relief could be got immediately. It is not the petitioner's contention that remedy of appeal provided under the Act is not efficacious. The petitioner has not shown any explanation to invoke Art. 226 of the Constitution except placing reliance on two authorities of the Calcutta High Court. In spite of availability of alternative remedy if this Court starts entertaining petitions without asking the parties to exhaust alternative remedy it will be opening a flood gate and appeal provision made in the Act, will become purely ornamental one without serving any purpose. Apart from the ground urged by the counsel for the petitioner, namely, the impugned order came to be passed by non-application of mind to the applicability of the Act; failure to hear the petitioner and lack of jurisdiction, can be agitated before the appropriate forum. If such grounds are urged the appellate authority will have jurisdiction to grant the same relief which the petitioner is expecting from this Court.
6. Regarding her apprehension that the question of delay may crop up, in fact in order to meet such an eventuality under proviso (3) to Section 15 of the Act, the appellate authority has the discretion to condone delay. The paramount duty of a Court is to do substantial justice and not to prevent a party at its threshold by making reference to technicalities. By such a procedure it will be encouraging perpetuation of injustice in the interest of doing justice by adhering to technicalities. Learned counsel for the petitioner relied on a decision in the case of Collector, Land Acquisition v. Mst. Katiji, for the proposition that always the Court shall bear in mind doing of substantial justice wherein scope of Section 5 of the Limitation Act has been dealt with (sic).
7. For the above reasons, writ petition stands disposed of reserving liberty to the petitioner to approach appropriate forum. All other contentions are kept open.
8. Shri Murlidher, Government Pleader is permitted to file her memo of appearance in four weeks. Order accordingly.