Dismissed

The Controller of Examinations v. Sreya N.

Kerala HC3 Sept 2021WP(C)/5679/2021

Case brief

AI extract

What is this about?

Petitioners challenged the maintainability of a complaint before the District Consumer Disputes Redressal Commission. The Court held that since a statutory appeal lies to the State Commission, the writ petition is dismissed without considering merit, with liberty to file an appeal.

What did the court decide?

Writ petition dismissed with liberty to file an appeal against Ext.P5 order under the Consumer Protection Act, 2019.

The Controller of Examinations Vs Sreya N. — Consumer Protection | Kerala HC (2021)

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WP(C) NO. 5679 OF 2021

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'CR'

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 3^RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 WP(C) NO. 5679 OF 2021

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PETITIONER/S:

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1 THE CONTROLLER OF EXAMINATIONS KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT.

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2 THE KANNUR UNIVERSITY REP.BY ITS REGISTRAR, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT.

BY ADV M.SASINDRAN

RESPONDENT/S:

SREYA N.,

D/O.NARAYANAN P.K., 'SREYAS', FARM ROAD, KARIMBAM P.O., KANNUR DISTRICT 670 142.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5679 OF 2021

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'CR'

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P.V.KUNHIKRISHNAN, J

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W.P.(C.) No.5679 of 2021

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Dated this the 3^rd day of September, 2021

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JUDGMENT

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The petitioners in this writ petition are the Controller of Examinations, Kannur University, and the Kannur University, represented by its Registrar. This writ petition is filed challenging Ext.P5 order passed by the District Consumer Disputes Redressal Commission, Kannur (for short "CDRC"). The main contention of the petitioners is that the CDRC has no jurisdiction to entertain Ext.P1 application and the petitioners raised a maintainability issue of Ext.P1 before the commission, but as per Ext.P5, the CDRC rejected the contention of the petitioners and found that the complaint is maintainable. Challenging Ext.P5, this writ petition is filed.

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Heard the learned Standing Counsel for the

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petitioners.

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When this writ petition came up for consideration, this Court requested the counsel to argue about the maintainability of the writ petition against Ext.P5 order, when there is a statutory remedy to the petitioners by way of filing an appeal against it before the State Commission, as per the Consumer Protection Act, 2019 (for short Act 2019). The counsel for the petitioners conceded that the petitioners can challenge Ext.P5 before the State Commission by filing an appeal. But, the counsel submitted that the CDRC entertained Ext.P1 complaint, without jurisdiction. The Standing Counsel relied the judgment of the Apex Court in Whirpool Corporation v. Registrar of Trade Marks, Mumbai and others [1998 KHC 1225] and also a judgment of this Court in Principal, St.Joseph College of Communication v. Consumer Disputes Redressal Forum and others [2010 KHC 6214]. The counsel also submitted that the decision relied in Ext.P5 order [CPJ 2016 (III) NC 280] is already reversed by the National Consumer Disputes Redressal Commission (NCDRC). That decision is also produced [CDJ

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WP(C) NO. 5679 OF 2021

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2020 (Cons.) Case No.036]. The counsel submitted that the order passed by the CDRC is unsustainable and the complaint itself is not maintainable before the CDRC.

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The contention of the petitioners that the writ court can entertain a writ petition in certain circumstances even if there is an alternative remedy is a settled position. This is the principle laid down by the Apex Court in Whirlpool Corporation's case (supra). The relevant portion is extracted hereunder :

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“14. The power to issue prerogative writs under Art.226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

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Under Art.226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fund amental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.”

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WP(C) NO. 5679 OF 2021

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Even though the Apex Court observed that in certain contingencies, this Court can entertain a writ petition under Article 226 of the Constitution of India, the High Court can use its discretion either to entertain such writ petition or to reject it. Specific averments are necessary in the writ petition for not availing the statutory remedy of appeal when an appealable order is challenged by filing a writ petition under Article 226 of the constitution of India. Simply stating that the authority who passed the order has no jurisdiction alone is not sufficient to invoke the jurisdiction under Art.226 of the constitution, especially when the appellate authority also can consider the question of jurisdiction. This court need not entertain writ petitions to interfere with orders passed by authorities without jurisdiction in all situations when a statutory remedy is available. This court can use discretion while entertaining such writ petitions considering the facts and circumstances of each case.

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Here is a case, where Ext.P5 is admittedly an appealable order. When there is a statutory remedy against

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Ext.P5 order as per the Consumer Protection Act, 2019, this Court need not entertain a writ petition unless there are compelling reasons. The petitioners are the University and its authorities. They can approach the State Commission, instead of filing a writ petition before this Court under Art 226 of the constitution of India. I think there is a camp sitting of the State Commission in some of the centres in Kerala and the principal sitting is at Thiruvananthapuram. Nothing is mentioned in the writ petition which prevents the writ petitioners to move an appeal against Ext.P5 order before the State Commission except the contention that CDRC has no jurisdiction to entertain Ext P1 complaint. Sec.41 of the Act, 2019 deals with appeal against the order of the District Commission. The same is extracted hereunder :

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“ 41. Appeal against order of District Commission - Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed:

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Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period:

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Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Commission, shall be entertained by the State Commission

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unless the appellant has deposited fifty per cent of that amount in the manner as may be prescribed: Provided also that no appeal shall lie from any order passed under sub-section (1) of section 81 by the District Commission pursuant to a settlement by mediation under section 80.”

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Similarly Sec.47 of Act 2019 says about the

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jurisdiction of State Commission. Sec.47 is also extracted hereunder :

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“ 47. Jurisdiction of State Commission - (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

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(a) to entertain—

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(i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:

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Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;

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(ii) complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees;

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(iii) appeals against the orders of any District Commission within the State; and

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(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission 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.

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(2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Bench may be constituted by the President with one or more members as the President may deem fit: Provided that the senior-most member shall preside over the Bench.

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(3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall

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either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:

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Provided that the President or the other members, as the case may be, shall give opinion on the point or points so referred within a period of one month from the date of such reference.

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(4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--

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(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or

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(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or

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(d) the complainant resides or personally works for gain.”

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Sec.47(1)(b) says that the State Commission shall

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have jurisdiction to interfere when it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law. So the jurisdiction question also can be decided by the State Commission. Then what is the reason to file this writ petition before this Court is not clear. If the petitioners can engage a lawyer to file a writ petition in High Court, they can very well engage a lawyer at Thiruvananthapuram to file an appeal before the State Commission against Ext.P5. If this Court starts to entertain

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writ petition against orders of CDRC, there will not be any end to it. This Court is even otherwise burdened with huge pendency of cases.

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In such a situation, according to me, this writ petition can be dismissed with the liberty to file an appeal against Ext.P5 order in accordance with law. I make it clear that I have not considered the matter on merit and the petitioners and the respondent are free to agitate their contentions before the appellate authority and before the CDRC, Kannur. All questions raised in this writ petition are left open.

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Therefore, this writ petition is dismissed, with liberty to the petitioners to file a statutory appeal, as per the Consumer Protection Act, if they advised so.

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SD/-

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P.V.KUNHIKRISHNAN JUDGE

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SKS

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WP(C) NO. 5679 OF 2021

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APPENDIX OF WP(C) 5679/2021

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PETITIONER EXHIBITS

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EXHIBIT	P1 A TRUE COPY OF THE COMPLAINT FILED BY THE RESPONDENT BEFORE THE CONSUMER DISPUTE REDRESSAL FORUM, KANNUR
EXHIBIT	P2 A TRUE COPY OF THE VERSION FILED BY THE 1ST PETITIONER BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, KNNUR.
EXHIBIT	P3 A TRUE COPY OF THE JUDGMENT DATED 12.4.2017 IN W.P.(C).NO.13732 OF 2017.
EXHIBIT	P4 A TRUE COPY OF THE AFFIDAVIT PLACED BY THE 1ST PETITIONER BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR.
EXHIBIT	P5 A TRUE COPY OF THE ORDER DATED 9.12.2020 PASSED BY THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR IN I.A.NO.456/2015 IN C.C.NO.13/2018.

The Controller of Examinations v. Sreya N.

Case brief

What is this about?

What did the court decide?

The Controller of Examinations v. Sreya N.

Case brief

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