Calcutta High Court
Larson & Toubro Ltd. And Anr. vs State Consumer Disputes Redressal ... on 24 February, 1998
Equivalent citations: [1999]33CLA456(CAL), AIR 1998 CALCUTTA 313, (1999) 33 CORLA 456, (1999) 1 CAL WN 252, (1999) 2 ICC 749
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
ORDER Kalyan Jyoti Sengupta, J.
1. By this writ petition the petitioner herein has sought for quashing of an order dated 23rd July, 1996 and a proceedings being SC Case No. 203/0/96 in which the said order has been passed. The impugned proceedings has been initiated by the respondent No. 3 before the respondent No. 1, viz. State Consumer Disputes Redressal Commission, West Bengal who has passed the impugned order. The short point raised in this writ petition is that having regard to the allegations made in the complaint petition being Annexure "A" herein, the respondent No. 1 has no jurisdiction to entertain the said complaint and naturally no authority to pass the impugned order.
2. Mr. Avrajit Mitra, the learned Lawyer, appearing for the petitioners, submits that upon plain reading of the complaint, the respondent No. 3 who was the complainant before the respondent No. 1, it will appear that the following case has been made out.
3. The complainant is a supplier of stones. In pursuance of the order placed by the Writ Petitioner herein, the complainant (the respondent No. 3 herein) on diverse dates supplied stones and other materials to the writ petitioner. The materials were accepted by the writ petitioner, and the bills of supply were raised and submitted to the writ petitioner. Notwithstanding receipt of the same the writ petitioner herein and being the purchaser has failed and neglected to pay an aggregate sum of Rs. 2,05,653.87 paisa. This, according to the complainant is deficiency in services on part of the writ petitioner being purchaser.
4. Mr. Mitra drawing my attention to the allegations made in the complaint, submits that the respondent No. 3 being the complainant cannot be a consumer within the definition of Section 2(d) of the Consumer Protection Act, 1986. He submits a seller and/or supplier of the goods cannot be a consumer. He argues that the respondent No. 1 has misconstrued the definition of 'Consumer' and has entertained a complaint of a person who is not a consumer within the meaning of the aforesaid Act and passed order thereon. The allegations and the subject-matter thereof do not constitute a "Complaint" from a consumer. He argues that unless a proper complaint from a consumer is received by the respondent No. 1 it cannot have any jurisdiction and/or authority; In support of his submission he relies on the decisions .
5. I have heard the submission of Mr. Mitra. I will enquire as to the scope and power as given in a Consumer Protection Act, 1986 to the respondent No. 1. Section 17 of the said Act provides for jurisdiction of the State Commission which is as follows:-
Subject to other provisions of this Act, the State Commission shall have jurisdiction (a) to entertain - (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 1 lakhs but does not exceed Rs. 10 lakhs; and (ii) appeals against the order of any District Forum within the State; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending or has been decided by any District Forum within the State where it appears to the Slate Commission that such District Forum has exercised a jurisdiction not vested in it, by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
6. It will appear from the aforesaid Section 17, the respondent No. 1 has jurisdiction of three kinds - original jurisdiction to entertain complaints exceeding Rs. 1 lac. (now Rs. 2 lacs) but not exceeding Rs. ten lacs, appellate jurisdiction against the orders of the district forum within the State and revisional and/or supervisory jurisdiction over all the district forums within the State.
7. Here the original jurisdiction of the respondent No. 1 is relevant and material. Therefore, the respondent No. 1 has jurisdiction to entertain complaints. It has to be seen what is the definition of the complaints. Section 2, Clause (c) of the said Act defines complaints as follows:-
A complaint means any allegation in writing made by the complainant that (i) as a result of unfair trade adopted by any trader, the complainant has suffered loss or damage, (ii) the goods mentioned in the complaint suffers from one or more defects, (iii) the services mentioned in the complaint suffers 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 obtain any relief provide by or under this Act.
8. So in order to make a complaint one of the four allegations mentioned in the definition must exist and the same must he brought by the complainant.
9. The definition of the complainant has been given in Section 2(b). It will appear from the said Section 2(b) that there are three different classes of complainant, viz. (i) a consumer, (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force, (Hi) the Central Government or any State Government who or which makes a complaint. Jt is clear from conjoint reading of two Sections 2(c) and 2(b) that any one of the three classes of persons (Complainant) can come to the respondent No. 1 with written allegation of any of four subjects as mentioned in Section 2(c) and none else.
10. Here the complainant is the respondent No. 3 who is neither a voluntary consumer association nor any of the Governments. So it must be falling within the category of a consumer. The definition of consumer has been given in Section 2(d) which says as follows :-
(i) 'Consumer' means any person who buys any goods for a consideration which has been paid or promised or partly paid any 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 or partly promised, or under any system of deferred payment when such use is made with the approval of such person but it does not include a person who obtains such goods for resale or for any commercial purpose, or (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payments and includes any beneficiary of such services other than the person who hires the services of 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. Therefore, it will appear from the definition of consumer that one must be a buyer and/or hirer of any services for a consideration from another person. In this case the complaint made by the respondent No. 1 as a seller against the buyer for non-payment of the price of the goods sold and supplied. So a seller cannot be a consumer. The very object and purpose of this Act is to protect amongst other the buyer against any unfair trade practice and/or deficiency in service and further for preventing breach of obligation and/or duty of a seller. The Act does not envisage any remedial measure for the seller against any purchaser of its or his any breach of obligation qua purchaser. In this Act a number of obligation mentioned in the Section 2(d) has been contemplated to be discharged amongst others by the seller whether in terms of the agreement or otherwise. Therefore, in my view the respondent No. 3 being a seller cannot be a consumer and for that matter cannot have any protection and/or remedy under the aforesaid Act.
11. Next question remains whether respondent No. 3 is a consumer or not can be adjudicated in the writ jurisdiction in order to quash the said impugned proceedings as well as the said impugned order passed thereon by the respondent No. 1.
12. As I have discussed above, Section 17 of the said Act confers jurisdiction upon the respondent No. 1 when there was a complaint and not otherwise. In my view as the respondent No. 3 is not and cannot be a consumer oh the basis of its own averment in the complaint petition and further the Act does not enjoin any right to the respondent No. 3 to make any complaint before the respondent No. 1. Therefore, I am of the view, that having regard to the averments made in the complaint the respondent No. 1 has no jurisdiction to entertained the same. It has no jurisdiction to entertain question of adjudicating and disposal on the merit of the complaint by passing order does not and cannot arise. It is settled law that a forum and/or authority who has to jurisdiction cannot pass any order excepting holding that it had no jurisdiction and to reject the same, as it can decide the question of its own jurisdiction. In this context the reference may be made to the following decisions :
1994(1)CHN 167
13. In the decisions cited and relied on by Mr. Mitra, the meaning;
and expression of the jurisdiction has been explained and decided in paragraph 3 of the said judgment quoting a particular observation and/or decision of an old case, reported in AIR 1921 Cal 34 (Full Bench).
14. It is mentioned in paragraph 13 of the aforesaid Supreme Court decision quoting Full Bench decisions stated as follows :--
"The jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it, in other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of a matter presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term jurisdiction, which has been stated to be the power to hear and determine issues of law and fact; the authority by which the judicial officers take cognizance of the decide causes, the authority to hear and decide a legal controversy, the power to hear and determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them, the power to hear, determine and pronounce judgment on the issues before the Court, the power or authority which is conferred upon a Court by the legislature to hear and determine causes between the parties and to carry the judgment into effect, the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry out into execution. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject-matter. ........... .".
15. I have further observed that the said Act does not empower the respondent No. 1 to adjudicate any complaint made by seller. Therefore, the ratio of the said decision is fully supporting the present case.
16. Now the question remains whether the writ Court will set aside a complaint and order passed thereon by the respondent No. 1 in the writ jurisdiction or not particularly when there is an alternative remedy as the said impugned order is a final order. It is now settled law that any order and/or decision passed by any authority and/or Tribunal and/or forum can be set aside and/or quashed by issuing a writ of certiorari on the ground of lack of jurisdiction regardless of the stage of proceedings. It is also settled law that once the writ petition has been admitted and Rule is issued the theory of alternative remedy is no bar to grant appropriate relief by quashing an order passed by an authority not having any jurisdiction under the law. Moreover, it is a rule of prudence and/or convenience rather than a rule of law that the writ Court docs not ordinarily entertain any petition when there exists an alternative remedy. So the said complaint made by the respondent No. 3 before the respondent No. 1 an order passed thereon by the respondent No. 1 can be questioned in this writ petition. The respondent No. 1, however, decided as to his question of jurisdiction in a very casual manner and upon misconception of law and further misunderstanding and/or misapprehension of the decision, . The said Supreme Court decision has no manner of application as in that case there was allegations having element of services by the builder/contractor. But in this case question of rendering services, by the writ petitioner to the respondent No. 3 is totally out of context and question. A purchaser is not supposed to render any services to the seller. The payment of price of the goods purchased by the buyer cannot be termed and nor does constitute the service to a seller. Moreover, I have already observed that the aforesaid Act does not enjoin any right to the seller to initiate any proceeding as it is a piece of legislation beneficial to amongst other purchaser. It is also settled law that when an order has been passed on a patent misunderstanding and/or absurd reasoning and upon misreading of a law the same can be quashed and set aside by the writ Court. Accordingly, I set aside and quash the said impugned order challenged herein and so also the complaint which was made to the respondent No. 1. Thus the writ petition succeeds. There will be no order as to costs.