Calcutta High Court (Appellete Side)
Tahamina Khatun vs Gandhi Centenary B.T. College on 13 August, 2010
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
(APPELLATE SIDE)
PRESENT :
The Hon'ble Justice Kanchan Chakraborty
C.O. No. 529 of 2006
Tahamina Khatun
Versus
Gandhi Centenary B.T. College
For the petitioner/plaintiff : Mr. Sabyasachi Bhattacharya
Md. Jakir Hossain
For the Opposite Party/respondent : Mr. Bidyut Kr. Banerjee
Mr. R. N. Dutta Mr. Arun Kr. Ghosh Mr. Hare Krishna Halder Mr. Sibasis ghosh Mr. Pradip Basu Heard On : 6.8.2010 Judgement On :13.8.2010 Kanchan Chakraborty, J:
1) The challenge in this application Under Article 227 of the Constitution of India is to the order dated 25.10.2005 passed by the learned State Consumer Disputes Redressal Commission, West Bengal in S.C. Case No. 294/A/04, thereby affirming the order passed by the District Consumer Disputes Redressal Forum, North 24 Parganas in D.F. Case No. 39 of 2004 on 5.7.2004.2
2) Tahamina Khatun (referred to as the petitioner hereinafter) instituted a suit being no. 94 of 1993 in the 2nd Court of learned Munsif at Barasat against Gandhi Centenary B. T. College, Profullanagar at Habra ( referred to as the opposite party hereinafter) and prayed for the following reliefs :-
i) The defendant be directed not to give any effect/further effect to arbitrary/illegal selection made on 24.6.1993, till the disposal of the suit or alternatively keep birth referred for the plaintiff till the disposal of the suit;
ii) Grant provisional admission to the plaintiff and allow the plaintiff to attend the classes in B.Ed.
Class for its 1993-94 sessions;
iii) Temporary/permanent injunction;
iv) Costs;
v) Such other relief or reliefs as the learned Court may
determine;
It was the case of the petitioner that she filed application for admission in B. Ed. Course for the academic sessions 1993-94 in response to the advertisement of the Opposite Party/College. The opposite party published merit list and her name appeared in the list of eligible candidates. All the eligible candidates including the petitioner were asked by the opposite party to report on 22.6.1993 with all necessary documents for the purpose of admission. The petitioner was again asked by the opposite party to 3 report on 24.6.1993 with all documents together with ration card. On 24.6.1993, her documents were verified by the opposite party and the opposite party refused to admit her in the B. Ed. Course for the academic year 93-94. The petitioner felt that the decision of the opposite party was arbitrary and, as such, she filed the suit and prayed for the reliefs mentioned above.
3) The learned Court by one interlocutory order directed the opposite party to admit the petitioner in the B. Ed. Course. The opposite party preferred an appeal being no. Misc. Appeal No. - 117 of 1993 against that interim order. The learned Appellate Court disposed of the Misc. appeal on 7.4.1994 with a direction on the opposite party to admit the petitioner. But the opposite party inspite of carrying out direction of the Court, filed a second appeal being no. S.A.T. 1800/2002 in this Court and this Court by an order dated 19.8.2002, directed the opposite party to admit the petitioner for the academic session 2002-2003 in B. Ed. Course in their college. This Court also disposed of the suit pending in the Court of learned Munsif in view of the admission given to the petitioner. Ultimately, the petitioner had taken admission in the opposite party/college for the academic sessions 2002-03.
4) In the meantime, the opposite party raised question of maintainability of the T.S. 94/93 and also filed an appeal being no. T.A. 93 of 2002. As stated earlier, the suit was disposed of in view of the order dated 23.8.2002 by this Court in S.A.T. 1800 of 2002. But, the T.A. No. 93 of 2000 remained. The petitioner, on 03.03.04, filed one complaint in the District Consumer Disputes 4 Redressal Forum, North 24 Parganas claiming for compensation of Rs. 9,90,000/- and other reliefs from the opposite party on the ground that she lost her valuable nine (9) academic years due to laches and negligence on the part of the opposite party. The petitioner being a consumer under the Consumer Protection Act 1986 was refused by the opposite party to provide proper service in due time. On 5.7.2004, the learned District Forum dismissed the D.F. Case no. 39 of 2004 on the ground that the matter/dispute was sub- judice in Civil Court.
5) The petitioner challenged that order by preferring an appeal in the State Consumer Disputes Redressal Commission, West Bengal. On 25.10.2005, the learned State Commission dismissed the appeal being no. S.C. 294/A/04 on the grounds that the complaint filed in the District Consumer Disputes Redressal Forum, North 24 Parganas was barred by Limitation and that the matter was sub-judice in Civil Court.
6) Being dissatisfied with and aggrieved by the said order dated 25.10.2005, the learned State Commission passed by the learned State Commission in S.C No. 294/A/04, the petitioner has filed this petition under Article 227 of the Constitution of India, mainly, on the following three grounds :-
a) that the learned State Commission erred in holding that the complaint filed in the learned District Former was barred by limitation;
b) that the learned State commission erred in holding that no compensation could be awarded to the 5 petitioner because the dispute/matter was sub-judice ; and that
c) the learned State Commision failed to exercise its jurisdiction properly and thereby committed gross mis-carriage of justice.
7) The point to be decided in this petition under Article 227 of the Constitution is whether the order of the learned State Commission is sustainable in law.
8) Before discussing the points above on merit, I would like to mention that while passing an order on 01.9.2006, this Court kept the question of maintainability of this Revision application open. Naturally, question of maintainability has been agitated before me by the learned Counsel appeared on behalf of the opposite party.
9) While answering to the question of maintainability of this application under Article 227 of the Constitution, Mr. Sabyasachi Bhattacharya, the learned Counsel appearing for the petitioner contended that under the Consumer Protection Act, 1986, there is no scope for appeal in the National Commission against the order impugned passed by the State Commission in an appeal in view of Section 19 of the Act. He had taken me to the provisions of Section 19 which says :
"19. Appeals.- Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub- clause (I) of clause (a) of section 17 may prefer an appeal against such order to the National 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 National Commission may entertain an appeal after the expiry of the said period of thirty days if it is 6 satisfied that there was sufficient cause for not filing it within that period;
(provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent, of the amount or rupees thirty-five thousand, whichever in less.)
10) Section 21 of the Act 1986 is also required to be mentioned here. It says :
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 services and compensation, if any, claimed exceeds (rupees one crore); 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."
11) Mr. Bhattacharya contended that an order made by the State Commission in exercising of its powers conferred by Sub-Clause (i) of Clause
(a) of Sub Section (1) of Section 17 of the Act could only be appealed against in the National Commission. In other words, he contended when a State Forum passes an order in exercising its appellate power under Sub Clause (ii) of Clause (a) of Sub Section (1) of Section 17, no appeal lies against that order 7 in the National Commission. However, he contended that a revision lies in the National Forum under Clause (b) of Section 21 of the Act in such a case. But that does not preclude this Court to entertain an application under Article 227 where the learned State Commission fails to exercise the jurisdiction vested on it properly.
12) Mr. Bhattacharya contended further that by reason of the provision of Section 3 of the Act, remedies provided under the Act are not in derogation of those provided under other laws. The Act supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities. In support of his contention, Mr. Bhattacharya referred to the decision of the Hon'ble Apex Court in State of Karnataka Vs. Biswa Bharati House Building Co- operative Society and others reported in (2003) 2 Supreme Court cases
412. It has been contended by Mr. Bhattacharya that there was no remedy in appeal for the petitioner against the order passed by the learned State Commissioner. Only remedy open to her was to take out an application for revision either in the National Commission or under Article 227 of the Constitution in High Court. The Act of 1986 not being a Act in derogation of other laws, the petitioner's application under Article 227 of the Constitution can not be said to be not maintainable.
13) Mr. Bidyut Kumar Banerjee, learned Counsel appearing on behalf of the opposite party contended that in numerous decisions of this Court as well as other High Courts and Hon'ble Apex Court, it has been held that while Act 8 itself provides remedies in specific forum, an application under Article 227 of the Constitution should not be entertained by the High Courts.
14) Mr. Banerjee, in support of his contention, referred to the following decisions :
a) (1995) 2 CLJ 218 .
b) (2009) 5 Supreme Court cases 616
c) (2009) (1) CLJ (Cal) 929 and
d) (2010) 2 ICC 602
15) A careful reading of the provisions laid down in the Section 17, 19 as well as 21 of the Act, makes it abundantly clear that a State Commission can entertain an appeal against an order passed by a District Forum. The State Commission has also original jurisdiction under Clause (i) (a) of Sub Section (1) of Section 17 of the Act. The State Commission has Revisional power also from interlocutory orders passed by a District Forum in view of Clause (b) of Sub Section (1) of Section 17. The National commission has both original as well as appellate jurisdiction besides Revisional Jurisdiction. The original jurisdiction can be exercised under Sub Clause (I) of Clause (a) of Section 21 of the Act. The National Forum can entertain revision application while exercising its power under Clause (b) of Section 21 from orders passed by the State Forum. The Section 21 of the Act starts with the words "Subject to the other provision of this Act" ( emphasised supplied). The words underlined are referred to the first paragraph of Section 19 of the Act. To be stated preciously, orders pass by the State 9 Commissions in their original jurisdiction not in its appellate jurisdiction, can only be appealed against in the National Forum.
16) But the power of Revision of National commission is wide. The National Commission, of course, is vested with power of Revision from any order passed by State Commission. This position is clear from the unequivocal languages of clause (b) of Section 21 of the act. In the case at hand , the petitioner had remedy in the Act itself. She could have taken out an application in the National Commission praying for revision of the impugned order passed by the State Commission. But, she did not venture to do so. In stead of doing so, she filed an application under Article 227 of the Constitution of India in this Court challenging the legality, validity and correctness of the order impugned passed by the State Commission. In this juncture, the question arises as to whether or not the application under Article 227 of the constitution filed by the petitioner is maintainable.
17) Vishwa Bharathi Vs. Smt. Rakhi Debnath & Ors (1995) 2 CLJ 281, the complaint did not move the State Commision against the order of District Forum but knocked at the doors of the High Court directly by filing an application under Article 226 of the Constitution of India. The Hon'ble Judge of the Karnataka High Court opined that when there was alternative remedy available to a aggrieved party, without exhausting that remedy, she should not be allowed to raise question of facts by invoking the power of High Court under Article 226 of the Constitution of India because remedy 10 available under Article 226 of the Constitution of India is an extra ordinary remedy.
18) The facts of the case before the Hon'ble Karnataka High Court and that of the case at hand are different. In the case at hand by filing a revision application question of improper exercise of jurisdiction is raised. No question over facts has been raised. The petitioner has not prayed before the High Court for invoking its extra ordinary jurisdiction under Article 226 of the Constitution of India. But, she has filed an application under Article 227 of the Constitution of India after taking resort in the last appellate authority i.e. the State Commission.
19) In the Manager Contai Co-operative Bank Limited & Ors. Vs. Gouri Mondal (2009 (1) CLJ (Cal) 929) the petitioner did not prefer any appeal before the State Commission but had taken out an application under Article 227 directly in this Court. The Hon'ble Judge opined that since the alternative forum of appeal was available to the petitioner under the said Act and since the remedy by way of appeal was much more exhaustive, efficacious and speedy, the petitioner can not invoked the jurisdiction of this Court under Article 227 of the Constitution of India.
20) In the case above, the petitioner preferred no appeal before the State Commission. In stead of preferring any appeal before the State forum, it filed an application under Article 227 of the Constitution of India directly in this Court. The Hon'ble Judge, no doubt, was right to opine that the remedy by way of appeal was much more exhaustive, efficacious and 11 speedy and, as such, the petitioner was not supposed invoke the jurisdiction of this Court under Article 227 of the Constitution of India. In the case in hand, the fact is some what different. The petitioner herein preferred an appeal in the State Commission and being unsuccessful there, moved an application under Article 227 of the Constitution of India.
21) In a State of Karnataka Vs. Vishwa Bharathi House Building Co-
operative Society and others reported in (2003) 2 Supreme Court cases 412 the Hon'ble Apex Court while discussing the constitutionality of the Act, 1986, was pleased to observe, "The very fact that in a given case a party under the said Act may approach up to this Court and/or may otherwise take recourse to the remedy of judicial review, the interests of parties must be held to have been sufficiently safe guarded. The provision relating to power to approach appellate Court by a party aggrieved by a decision of the forums/State Commission as also the power of the High Court and this Court under Article 226 / under Article 227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safe guard.
Furthermore, primarily the jurisdiction of the forums/commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a civil Court as he may have to seek for an order of 12 injunction, he indisputably may file a suit in an appropriate Civil Court or may take remedies to some other damages as provided for in other statute."
22) In fair Air Engineers private Limited and others Vs. M.K. Modi reported in (1996) 6 Supreme Court cases 385 the Hon'ble Apex Court was pleased to point out the provisions of Consumer Protection Act, 1986 are in addition to and not in derogation of any other laws.
23) I have carefully gone through the entire Act of 1986 as well as the decisions referred to by the Counsels thoroughly. It appears to me that the Hon'ble Karnataka High Court as well this High Court discouraged to entertain an application under Article 227 of the Constitution of India in the cases where " alternative remedy" to an aggrieved party was available. The views of the Hon'ble High Court do not necessarily imply that this court is completely denude of its power of superintendence over subordinate Courts under Article 227 of the Constitution of India where there is wrong exercise of jurisdiction simply because one alternative remedy is available to an aggrieved party which she has failed to avail. The power under Article 227 of the Constitution of India is inherent to the High Court. It can not be taken away by any Act merely on the ground that an "alternative remedy"
is available to an aggrieved party under the particular act. That can not be a rule of law.13
24) In Maneek Custodjit Surjarji Vs. Sartarazali Nawabali Mirza, Air 1976 SC. 2446, the Hon'ble Apex Court opined that the rule of "
alternative remedy" is only a consideration for exercise of discretion and does not exclude the jurisdiction of the High Court in exceptional Cases.
25) So, in my humble estimate, when an aggrieved party set forth an "exceptional case" requiring interference of the High Court, may take out an application under Article 227 of the Constitution of India although he/she fails to avail the last "alternative remedy" provided under a particular act.
26) On the analogy above, it is imperative for the petitioner herein to make out "exceptional case" so that the power under Article 227 of the Constitution of India is required to be invoked by this Court.
27) This is important because Article 227 of the Constitution of India vests the High Courts with a power of superintendence which is to be sparingly exercised to keep Tribunal and Courts within the bounds of their authority. Under Article 227 of the Constitution of India, Order of Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct mistake of fact and of law. In State Hariyana & Ors. Vs. Monoj 14 Kumar Reported in 2010(2) Indian Civil Cases 602, the Hon'ble Apex Court viewed :-
" More than half a Century ago, the Constitution Bench of this Court in Nagendra Nath Boru and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the Courts below function within the limit of its authority or jurisdiction. This Court placed reliance on Nagendra Nath's case in a subsequent judgment in Niburan Chandra Bag v. Mahendra Nath Ghugu AIR 1963 SC 1895. The Court observed that jurisdiction conferred under Article 227 is not by any means appellate in its nature for correcting errors in the decisions of subordinate Courts or tribunals but is merely a power of superintendence to be used to keep them within the bounds of their authority. This Court had an occasion to examine this aspect of the matter in the case of Mohd. Yunus v. Mohd. Mustaqim & Others (1983) 4 SCC 566. The Court observed as under :-
" The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the fact of the record, much less an error of law, for this case there was, in 15 our opinion, no error of law much less an error apparent on the fact of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or tribunal purports to be based or to correct errors of law in the decision."
This Court again clearly reiterated the legal position in Laxmikant Revchand Bhajwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576. The Court again cautioned that the High Court under Article 227 of the Constitution cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law of justice, where grave injustice would be done unless the High Court interferes. A three-Judge Bench of this court in Rena Drego (Mrs.) V. Lalchand Soni & Others (1998) 3 SCC 34 ) again abundantly made it clear that the High Court cannot interfere with the findings of fact recorded by the subordinate Court or the tribunal while exercising its jurisdiction 16 under Article 227. Its function is limited to seeing that the subordinate Court or the tribunal functions within the limits of its authority. It cannot correct more errors of fact by examining the evidence and re-appreciating it. In Virendra Kashinath Ravat & Another V. Vinayak N. Joshi & Others (1999) 1 SCC 47 this Court held that the limited power under Article 227 cannot be invoked except for ensuring that the subordinate courts function within its limits. This Court over 50 days has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the courts below on merit."
28) In view of discussion above it is to be examined whether the petitioner herein has been able to made out a case which falls within the category of "
exceptional cases" and whether there is gross jurisdictional error on the part of State Commission while dismissing the appeal preferred by the petitioner.
29) From the facts available on record, it appears that the learned State Commission committed no jurisdictional error, whatsoever, while disposing of the appeal preferred by the petitioner against the order passed by the learned District Forum. On facts, the learned State Commission found that the complaint petition filed by the petitioner was hopelessly barred by limitation. The learned State Commission has rightly pointed out that the 17 petitioner was given service by the opposite party on the strength of the order passed by this Court in S.A.T. 1800 of 2002. While passing the order in S.A.T 1800 of 2002, this Court did not award any compensation in favour of the petitioner. The petitioner was denied service by the opposite party in the year 1993. That being the factual aspect, the period of limitation is to be reckoned from the date when the opposite party denied to provide the petitioner with service by way of admitting her in the B. Ed.
Course for the academic year 1993-94. The cause of action can not be said to have arisen because of subsequent admission of the petitioner in the B. Ed. Course in the opposite party/college in view of the order passed by this Court in S.A.T. 1800 of 2002. The learned 2nd Munsif at Barasat in T.S. 94-93 directed the opposite party to keep one berth reserved for the petitioner provisionally in B. Ed. Course for 1993-94 academic year in its college and be given admission till final hearing of the petition. That order was passed in the year 1993. The said order was appealed against. The learned Appellate Court, on 7.4.1994, affirmed that order passed by the learned munsif. The opposite party who contested the petition as well the Misc. appeal, did not carry out the order of the Courts. The petitioner could file the complaint before the District Forum immediately thereafter. She had no reason to wait for the order to be passed in future by this Court. Therefore, I find that the learned State Commission made no error in exercising its jurisdiction by coming to a conclusion that the petition of 18 complaint filed by the petitioner in District Forum was itself hopelessly barred by limitation.
30) In view of the discussion above, I must say that the petitioner failed to make out an " exceptional cases" wherein the State Commission has exercised its jurisdiction improperly and incorrectly necessitating this Court to interfere by invoking its power under Article 227 of the Constitution of India. The petition is not entertainable on that count.
31)In the premises above, the revision application, thus, fails and is disposed of.
32)No order as to costs is passed.
33) Interim stay order, if any, be vacated.
Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities.
(Kanchan Chakraborty,J)