Allowed

District Manager,Odisha Agro Industries Corp Ltd,Nayagarh v. Purna Ch Parida

Orissa HC9 Aug 2017WP(C)/19592/2015

Case brief

AI extract

What is this about?

The High Court of Orissa, Cuttack, in a writ petition under Articles 226 and 227 of the Constitution, set aside an order passed by the State Consumer Disputes Redressal Commission dismissing an appeal for non-prosecution. The Court held that complete justice necessitated a decision on merits and remitted the case for proper disposal.

What did the court decide?

The impugned order of dismissal was set aside. The case was remitted to the State Commission with a direction to dispose of the appeal on merits within two months.

District Manager,Odisha Agro Industries Corp Ltd,Nayagarh… — Consumer Protection | Orissa HC (2017)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(C) No. 19592 OF 2015

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In the matter of application under Articles 226 and 227 of the Constitution of India.

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District Manager, Odisha Agro …….. Petitioners Industries Corporation Limited and another

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-Versus-

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Sri Purna Chandra Parida and others ……… Opp. parties For Petitioners : M/s. Banshidhar Baug, M.R. Baug, R.R. Jethi, P.C.P. Das For Opposite Parties : Mr. Prasana Ku. Mishra (For opposite party Nos.1 & 2) : M/s. P.V. Balakrishna & R. Biswal (For opposite party No.4) ------------

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……… Opp. parties

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P R E S E N T :-

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THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY

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------------------------------------------------------------------------------Date of Argument-06.07.2017: Date of Judgment-09.08.2017 ------------------------------------------------------------------------------- DR. D.P. CHOUDHURY, J . Challenge has been made to the order dated 30.03.2015 passed by the State Consumer Disputes Redressal Commission, Cuttack (hereinafter called “the State Commission”) in C.D. Appeal No.29 of 2002 under Consumer Protection Act, 1986 (hereinafter called “the Act”).

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FACTS:

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2. The factual matrix leading to filing of the writ petition is that opposite parties 1 and 2 filed Consumer Dispute Case No.29 of 1998 before the District Consumer Disputes Redressal Forum, Nayagarh (hereinafter called “the District Forum”) alleging defect in the tyre of the H.M.T. tractor which was purchased by them on 30.06.1997. They claimed compensation of Rs.4 lakhs alleging deficiency in service on the part of the present petitioners. The petitioners filed written statement denying the allegations made against them and specifically averred that after purchase of the tractor, opposite party Nos.1 and 2 used the same for commercial purposes although they had purchased it for agricultural purposes having availed necessary subsidy.

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3. The District Forum, after hearing the parties, passed the order by allowing the Consumer Dispute Case and further directed the petitioners along with opposite party No.3 to refund Rs.7,500/- to the complainants towards the cost of the tyre and to change radiator of the tractor with award of Rs.21,000/- as compensation to the complainants to be paid by the present petitioners and the opposite party No.3.

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4. Being aggrieved by the order of the District Forum, the present petitioners challenged the same before the State Commission vide Consumer Dispute Appeal No.29 of 2002 purportedly filed under Section 15 of the Act. The appeal was admitted on 14.02.2002 and

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interim stay was passed against the order of the District Forum. After 08.05.2003, the appeal was not listed for some time but it was posted to 14.01.2015 by issuing intimation to both the parties fixing 11.02.2015 for their appearance. It is, inter alia, alleged that on 11.02.2015 when the case was called, the arguing counsel for the petitioners was absent but his associate Sri P.C.P. Das, advocate appeared, which was ignored by the State Commission as the concerned advocate had no power to conduct the case. So, the case was posted to 20.02.2015, on which date Sri P.C.P. Das, Advocate again appeared as an associate of the arguing counsel Sri B. Baug, but the presence of Sri Das was again ignored. The case was again posted to 12.03.2015 for orders and on the later date Sri Das, Advocate appeared on behalf of Sri B. Baug, Advocate but his presence was again not taken into consideration and the matter was posted to 30.03.2015. On the later date, one Sri Manash Ranjan Baug, Advocate appeared on behalf of Sri B. Baug but the State Commission without accepting his appearance dismissed the appeal for nonprosecution. Having found no other way, the present writ petition is filed alleging the impugned order in question as illegal and void with a prayer to quash the same.

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SUBMISSIONS

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5. Mr. B. Baug, learned counsel for the petitioners submitted that the impugned order suffers from infirmity and illegality inasmuch as in spite of the presence of the lawyer, the State Commission did not take

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note of his presence and passed the order of dismissal for nonprosecution. He further submitted that the order of the State Commission is also incorrect by noting that neither party appeared on call but the fact remains that the counsel for the petitioners was present and placing for adjournment, which are not reflected in the impugned order.

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6. Mr. Baug, learned counsel for the petitioners further submitted that since the impugned order has been passed in appeal and there being no provision for Second Appeal against such order, the present writ petition is maintainable before this Court for which he prays to quash the said order of dismissal on merit with the request to restore the same for proper adjudication of the case. It is always prudent for any judicial forum to dispose of the matter on merit to avoid multiplicity of the proceeding but the State Commission without any sufficient reason dismissed the case for non-prosecution. He also cited decision of this Court passed in Oriental Bank of Commerce -Vrs.- Minarva Dash and others , reported in 2015(II) OLR-786 wherein it has been held that the writ petition under Section 19 of the Act is maintainable as the order is purportedly passed under Section 17(1)(b) of the Act. Moreover, he further submitted that every consumer dispute disposed of uncontested before the Commission should be allowed to be restored for

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the reason that a poor person has little source to go to National Commission at New Delhi for filing appeal or revision.

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7. Mr. P.K. Mishra, learned counsel for opposite party Nos.1 and 2 submitted that the writ petition is not maintainable because the impugned order is nothing but an order passed in the First Appeal. Moreover, in the case of M/s. Jaya Foods, represented through its Proprietor Indrajit Vishwakarma -vrs.- State Consumer Disputes Redressal Commission, Odisha, Cuttack & others (W.P.(C) No.19049 of 2015) , disposed of by this Court, it has been held that the writ petition is not maintainable where there is efficacious remedy available either for filing an appeal or revision before any other forum under the Act.

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8. It is further submitted by learned counsel for opposite party Nos.1 and 2 that the State Commission has no power to review its own order. Hence, he supported the impugned order and prays for dismissal of the writ petition.

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9. POINT FOR DETERMINATION

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(i) The main point for consideration in this case is whether the writ petition, in view of the facts and circumstances, is maintainable and the impugned order is liable to be set aside?

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DISCUSSION

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10. It is admitted fact that opposite party Nos.1 and 2 have purchased the tractor from the petitioners and they were complainant before the District Forum, Nayagarh alleging about deficiency in service. It is not in dispute that the State Commission have not passed the order

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on merit against the petitioners in the First Appeal but dismissed the same for non-prosecution.

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11. The impugned order dated 30.03.2015 is as follows:-

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“ Order No.14 Dated of Order:-30.03.2015

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Neither of parties appears on call. On the last three occasions none appears on their behalf. So, the appeal stands dismissed for non-prosecution.

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Records received from the District Forum be sent back forthwith.”

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In the aforesaid order, it has been stated that on three occasions none appeared on their behalf and also on 30.03.2015 no party appeared for which the appeal was dismissed for non-prosecution. The wit petition does not disclose that the lawyer, who had appeared on behalf of Sri B. Baug arguing counsel, has got any power for the appellant and even if there is no power, the State Commission could have directed them to file fresh power. It is well settled in law that the State Commission has no power to review the impugned order and also there is no attempt made on behalf of the petitioners to file objection to restore the case. However, the legal position is clear from two judgments of this Court.

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12. In the decision of Oriental Bank of Commerce -vrs. - Minarva Dash and others; 2015 (II) OLR-786 where His Lordship passed the order stating that the writ petition is maintainable against the order under Section 17(1)(b) of the Act. Moreover, remedy under Section 21 of the Act is not available against the order passed under Section

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17(1)(b) of the Act by the State Commission. At the same time in the case of M/s. Jaya Foods, represented through its Proprietor Indrajit Vishwakarma -vrs.- State Consumer Disputes Redressal Commission, Odisha, Cuttack and others (W.P.(C) No.19049 of 2015) , this Court has held that where the case has been disposed of under Section 17(1)(a)(i) of the Act but not under Section 17(1)(b), there is remedy available under Section 21 of the Act because the power of review being not available to the State Commission under the Act and there being provision for appeal, the Court should be reluctant to exercise power under Article 226 and 227 of the Constitution of India. Of course, the decisions must be read by taking into consideration of facts and circumstances of each case.

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13. In the case in hand, opposite party Nos.1 and 2 had instituted the consumer dispute before the District Forum and the said consumer dispute was decided in favour of opposite party Nos.1 and 2. The present petitioners preferred appeal under Section 15 of the Act and said appeal has suffered adjournment due to absence of the petitioners and opposite parties and finally on 30.03.2015, the same was disposed of for non-prosecution.

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14. Section 17 of the Act is placed below for reference:-

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“ 17. Jurisdiction of the State Commission. —

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[ (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 and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore] ; and

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(ii) appeals against the orders of any District Forum 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 Forum within the State, where it appears to the State 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.

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[(2) 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, actually and voluntarily 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 that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

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15.

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Section 19 of the Act is placed below for reference:-

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“ 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:

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Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty 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 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 is less.]”

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16. Section 21 of the Act is placed below for reference:-

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“ 21. Jurisdiction of the National Commission. —Subject to the other provisions of this Act, the National 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 and compensation, if any, claimed exceeds [rupees one crore] ; and

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(ii) appeals against the orders of any State Commission; 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 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.“

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From the aforesaid provisions, it is clear that the State Commission

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has power of revision and appeal. It has got power to entertain complaint directly where the value exceeds more than rupees twenty lakhs but does not exceeds rupees one crore and also can entertain the appeal against the order of the District Forum. Section 19 of the Act only allows the appeal filed against the order made by the State Commission if passed under sub-clause (i) of clause (a) of Sub-section (1) of Section 17 of the Act. So, Section 19 of the Act does not take care of the order passed under sub-clause (ii) of clause (a) of sub-Section (1) of Section

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17 of the Act. Section 21 of the Act has conferred power on the National Commission to entertain the complaint whose value is more than rupees one crore and the appeals passed against the orders purportedly under Section 17(1)(a)(i) of the Act passed by the State Commission. It has also given power under Section 21(b) of the Act to the National Commission to call for the records and pass appropriate orders in any consumer dispute which is pending or disposed of by the State Commission, if there is exercise of jurisdiction not vested or has failed to exercise of jurisdiction so vested or exercised jurisdiction illegally or with material irregularity.

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17. In the present case, the State Commission have passed the order of dismissing the Appeal on the ground of non-prosecution. Section 18 of the Act states that the provisions of Sections, 12, 13 and 14 of the Act as available for disposal of the complaint by the District Forum shall be also applicable to the disposal of disputes by the State Commission. Section 13(2)(c) of the Act empowers the District Forum to dismiss the complaint for default or decide the case on merits, when complainant fails to appear on date of hearing. Now applying said provisions the State Commission have exercised jurisdiction by dismissing the appeal for nonprosecution.

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18. When it is observed above that the impugned order is passed in consonance with Section 13 read with Section 18 of the Act, the impugned order per se does not decide the case on merit although it

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could have decided as per said provision. The even justice is always awarded on being contested by the parties. Keeping in view of object in rendering justice in a Consumer Forum and taking note of manner of exercise of the power as has been given under Section 13(2)(c), District Forum or the State Commission, as the case may be, either would dismiss the complaint or appeal respectively on default on being not adjourned the case in compelling circumstance or to decide the case on merit by going through the pleading of both the parties. It is always prudent for the District Forum or State Commission to adopt the method in alternative to the dismissal of the appeal in default which is only adopted on compelling reasons keeping in view that parties have no other remedy to file restoration petition or such forum has no power to restore the same.

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19. In the present case, the appellant remained absent for three times even if alleged by the learned counsel for the petitioners that his associates were always present, but it would have been appropriate for the State Commission to decide the case on merit when statute permits. It is also clear from Sub-section(3) of Section 13 of the Act that no proceeding complying the proceeding laid down in Sub-sections (1) and (2) of Section 13 of the Act shall be called in question on the ground that principle of natural justice has not been complied. So, on conjoint reading of Sub-section (3) of Section 13 read with Section 18 of the Act, it is axiomatic to observe that the State Commission should decide the

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case on merit under suitable facts and circumstances of the case but not always dismissing the case for non-prosecution.

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20 . The aforesaid observation is made keeping in view of the fact that there is no second appeal provided under the statute before the National Commission when the first appeal is disposed of by the State Commission. No doubt, the revision is available under Section 21(b) of the Act before the National Commission but the limited scope is there for intervening in it. In absence of appeal provision against order passed under Section 17(1)(a)(ii), the writ petition is maintainable under certain circumstances like present one where State Commission has not decided the case on merit although dismissed same on default due to absence of both parties.

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21. It is reported in Cicily Kallarackal -vrs.- Vehicle Factory ; reported in (2012) 8 SCC 524 , where Their Lordships observed at para4 in the following manner:

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“4. Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater

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length as we are dismissing this petition on other grounds.”

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22. With due regard to the aforesaid decision, it is clear that the High Court while exercising jurisdiction under Article 226 of the Constitution would not entertain the writ application where there is statutory appeal provided under the provisions of the Act. Here, as stated earlier, no appeal is provided against the impugned order as discussed herein above. Apart from this, in Jaya Foods (supra) the Court was considering the case where case was decided under Section 17(1)(a)(i) and in the Oriental Bank of Commerce (supra) the case was decided under Section 17(1)(b) of the Act. Both the decisions do not relate to the case in hand under Section 17(1)(a)(ii). So, the decisions of this Court are not applicable to the facts and circumstances of the case. 23. Moreover, by going through provisions of the Act, it appears that since there is no appeal against the impugned order passed in appeal by the State Commission, the State Commission has been conferred the power to decide the case on merit even in absence of the parties as forum is a quasi-judicial and nature of dispute is quasi-civil in nature. This conclusion is arrived while viewing that the National Commission has got the power to review the order as prescribed under Section 22 of the Act whereas such power is not conferred with the State Commission. In Jaya Foods’ case (supra) this Court has requested the legislation to look into the possibility of making provision like that of Section 22 of the Act for exercising power by State Commission, but

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same is perhaps yet to take any shape. However, in all fairness, the order passed by the State Commission is assailable in writ jurisdiction in the facts and circumstances of this case.

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24. In terms of the above discussion, the order although appears to have been exercised in consonance with the provisions but the complete justice is not awarded by such decision which could have been decided on merits after going through the pleadings. Hence, such order cannot be sustained in law because the case decided on merit would subserve the avowed object of the Act inasmuch as Consumer Forums are also alternative dispute resolution system to award speedy justice with no intricacies of procedure of law to the common people. Hence, the impugned order is liable to be set aside. The point is answered accordingly.

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CONCLUSION

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25. It is prayed in the writ petition to set aside the impugned order. In terms of the above discussion, when writ petition is entertainable and the impugned order is liable to be set aside, the Court do so. At the same time, the case is remitted back to the State Commission with direction for disposal of same on merit in accordance with law expeditiously, preferably within a period of two months. Both the parties are directed to appear before the State Commission on 18.8.2017 to take further instruction from the State Commission. It is

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made clear that this Court has not made any expression on the merit of the appeal in question.

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The writ petition is disposed of accordingly.

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……………………………. Dr. D.P. Choudhury, J.

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Orissa High Court, Cuttack Dated the 9^th August, 2017/JM

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