Dismissed

Chander Bhushan Jaiswal and Anr. v. Haryana State Industries Dev. Corp. Ltd.

Punjab & Haryana HC20 Mar 2013CWP/5359/2013

Case brief

AI extract

What is this about?

Petitioners challenged orders of the National Consumer Commission via writ petition. The Court held writ jurisdiction under Article 226 is generally unavailable given the Act's complete redressal mechanism and finality of National Commissions. The underlying dispute regarding industrial plot status was found non-maintainable as a consumer dispute.

What did the court decide?

Petitioners dismissed; liberty granted to file a suit or writ petition challenging the original order dated 23.3.2006.

Chander Bhushan Jaiswal and Anr. Vs Haryana… — Consumer Protection | Punjab & Haryana HC (2013)

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C.W.P . No.5359 of 2013 -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P . No.5359 of 2013 Date of Decision: March 20, 2013

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Chander Bhushan Jaiswal and another

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... Petitioners

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Versus

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Haryana State Industries Development Corporation Limited, Panchkula

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.... Respondent

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CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE AMOL RATTAN SINGH

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Present: Mr. S.K.S. Bedi, Advocate, for the petitioners.

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SATISH KUMAR MITTAL, J.

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The petitioners have filed the instant writ petition under Articles 226/227 of the Constitution of India for quashing the order dated 20.07.2011 (Annexure P-7) passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula, whereby on an appeal filed by Haryana State Industries Development Corporation Limited (hereinafter referred to as HSIDC') the order of the District Consumer Forum, Panchkula dated 31.10.2007 (Annexure P-5) restoring the industrial plot, which was ordered to be resumed, was set aside, and the complaint filed by the petitioners was held to be not maintainable as the complainant does not fall under the definition of Consumer'. The petitioners have also challenged the order dated 30.05.2012 (Annexure P-8) passed by the National Consumer

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C.W.P . No.5359 of 2013 -2-

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Disputes Redressal Commission (hereinafter referred to as `the National Commission'), whereby the appeal filed by the petitioners against the order of the State Commission, was also dismissed.

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Learned counsel for the petitioners argued that under Section 23 of the Consumer Protection Act, 1986 (hereinafter referred to as `the Act') no further appeal to the Supreme Court lies against the order of the National Commission if the same has been passed under sub-clause (ii) of clause (a) of Section 21 of the Act. Therefore, as per his contention, the petitioners can challenge the said order by filing the writ petition under Article 226 of the Constitution of India as there is no bar for challenging the order of the National Commission before High Court under Article 226.

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After hearing the learned counsel for the petitioners, we do not find any substance in the submission made by the learned counsel, and in our view the present writ petition challenging the order of the National Commission is not maintainable. Though under Section 24 of the Act, the order passed by the National Commission, if no appeal has been provided against such order under the Act, is final, however, under the Act a complete mechanism has been created for redressal of the grouses of the consumers by filing complaint, first appeal and revision against any order up to National Commission and in some cases up to the Hon'ble Supreme Court. Therefore, in our considered opinion when the opposite party to a consumer dispute has an adequate opportunity of defending the complaint before the original Forum and then seeking redressal before the appellate as well as revisional Forum, the further petition for judicial review under Article 226 of the Constitution ordinarily would not lie. In such situation,

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the power of judicial review of an order passed by the highest Forum under the Act, is restricted. A similar controversy came up for consideration before a Division Bench of the Andhra Pradesh High Court in B. Venu Madhav v. National Consumer Disputes Redressal Commission, rep. by its Registrar, New Delhi and others, 2012(2) ALT 717, wherein it was held as under:-

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“The Consumer Protection Act was enacted pursuant to Resolution dated 09.4.1985 of the General Assembly of the United Nations Organisation by the Consumer Protection Resolution No.39/248. It meets the long felt necessity for protecting the common man from the wrongs perpetrated by the suppliers of goods and services. The importance of the Act lies in promoting welfare of the society by ensuring direct participation of the consumers in the market economy and helplessness of the gullible consumer is sought to be minimized ( Lucknow Development Authority v M.K.Gupta (1994) 1 SCC 243 = AIR 1994 SC 787 ). The statement of objects and reasons among others states that the Act ensures the right to be heard and to be assured that the consumers interests will receive due consideration at appropriate fora. The remedies provided in the three-tier hierarchy of fora are not derogation to any other law in force in India. The Act is self-contained Code. It is intended to provide inexpensive and expeditious redressal mechanism for a consumer who suffered injury by reason of defective goods or defective services. Apart from the original remedies before the District Forum, State and National Commissions, the endeavour of the Act is to minimize the appeals and revisions. A perusal of Sections 11, 15, 17, 21 and 23 of the Act would show that the spirit behind the enacted provisions is not to perpetuate the consumer disputes perennial. The Act seeks to give a quietus to disputes by providing

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quicker remedy in preference to common law remedy in civil court. Indeed Section 24 of the Act declares that the order passed by the District Forum, State Commission or National Commission shall be final subject to appeal if any provided by the Act. Therefore, in our considered opinion when the opposite party to a consumer dispute has an adequate opportunity of defending the complaint before the original Forum and then seeking redressal before the appellate as well as revisional Forum, the further petition for judicial review under Article 226 of Constitution ordinarily would not lie. We do not intend to say that the decision of any statutory authority/Tribunal/Forum is not reviewable. Given the importance of judicial review in the Constitutional scheme the power of which is conferred to the highest Court of the State and the Nation, such a proposition may not always generally be accepted. Nonetheless the scope of judicial review or reviability of a decision of a statutory body depends on the statute creating such a forum and the decision rendered by it subject to provisions of the statute. When the statute renders the decisions of the statutory authorities including Tribunals and Fora final, the Court of judicial review ought to be very very slow to step-in and entertain petitions. This was the ratio of the Supreme Court in Nivedita Sharma.”

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In Nivedita Sharma Vs. Cellular Operators Assn. of India,

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2012 (4) RCR (Civil) 850 , the Hon'ble Supreme Court while dealing with the issue of whether or not the High Court should have entertained a writ petition under Article 226 against the judgment of the State Consumer Commission, held as under :-

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“15. The 1986 Act was enacted for better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities

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for the settlement of consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy, remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is a known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, state and national level.”

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In the same judgment the Supreme Court also held that :- “9. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation- L. Chandra Kumar v. Union of India, 1997 (2) S.C.T. 423 : (1997) 3 SCC 261 . However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must

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be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

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In Thansingh Nathmal v. Superintendent of Taxes, AIR 1964 SC 1419 , this Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:

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“The High Court does not therefore act as a Court of appeal against the decision of a Court or tribunal, to correct errors of fact and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief: Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of one Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.”

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In L. Chandra Kumar Singh Vs. Union of India (supra), no

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doubt, their Lordships held that the power vested in the High Court to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions, is also part of basic structure of the Constitution.

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Paragraphs 79 and 80 of the said judgments read as under:-

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“79. We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of all other judicial functions apart from that of constitutional interpretation, is equally to be avoided.

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However, it is important to emphasis that though the subordinate judiciary or Tribunals created under ordinary legislations cannot exercise the power of judicial review of legislative action to the exclusion of the High Courts and the Supreme Court, there is no constitutional prohibition against their performing a supplemental- as opposed to a substitutional- role in this respect. That such a situation is contemplated within the constitutional scheme becomes evident when one analyses clause (3) of Article 32 of the Constitution which reads as under:-

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“32. Remedies for enforcement of rights conferred by

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this Part-

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the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).”

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However, these observations were specifically in respect of Administrative Tribunals created under Article 323A or under Article 323B of the Constitution.

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Under the Administrative Tribunals Act, 1985, Section 6 thereof stipulates that the Chairman of the Central Administrative Tribunal shall only be a person who is or has been a Judge of a High Court. Therefore, in our opinion, the same situation does not hold good in a case falling under the Act, as it does under the Administrative Tribunals Act, 1985, in view of the scheme of the Act.

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In the present case, no doubt, there is no remedy of appeal provided against an order of National Commission, if passed in exercise of its jurisdiction under Section 21 a (ii) against the orders of a State Commission. Section 23 of the Act only provides for an appeal to the Supreme Court against an order of the National Commission passed in exercise of its original jurisdiction, conferred under Section 21A (i) and, thereafter, Section 24 of the Act specifically gives finality of orders passed by every District Forum, State Commission and the National Commission, if no appeal has been provided for under that Act. However, in our opinion, that would not confer jurisdiction to this Court under Article 226, to entertain a petition challenging the orders of the National Commission, in view of the scheme of the Act. Under Section 16 of the Act, the President of the State Commission is to be a person who is or has been a Judge of a High Court and under Section 20 the President of the National Commission is to be a person who is or has been a Judge of the Supreme Court. Under the Act, a complete code has been evolved providing hierarchy of judicial action and review. Since a sitting Judge of the Supreme Court may be the President of the National Commission, this fact further strengthen our view

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that the Act does not envisage a situation in which the order of the National Commission would be challengeable before a High Court in the writ jurisdiction. In our opinion, any person aggrieved of the order of the National Commission, where no appeal to the Supreme Court is provided against such order under the Act, can, at best avail of the remedy provided under Article 136 of the Constitution, by way of filing a petition for special leave to appeal before the Supreme Court.

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Even otherwise, coming back to the facts of this case, in this case the decision of the State Commission as well as the National Commission to the effect that the dispute relating to allotment/cancellation of the industrial plot is not a consumer dispute which could have been gone into by the District Consumer Forum, is based upon the decision of the National Consumer Disputes Redressal Commission in Rajasthan State Industrial Development and Investment Corporation Ltd. Versus Diksha Enterprises through Partner Sh. Puneel Kumar Aggarwal, III (2010) CPJ 333 (NC). Thus, there is no illegality in the order passed by the State Commission and the National Commission. In the present case, if the complaint filed by the petitioners was dismissed being not maintainable by the State Commission and National Commission, the petitioners could have challenged the basic order passed by the HSIDC by filing a suit or the writ petition, but in the present petition the said basic order, though annexed as Annexure P-2 (dated 23.3.2006), has not been challenged. Thus, in our view, the instant writ petition filed by the petitioners is liable to be dismissed for the aforesaid reasoning. However, liberty is given to the

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petitioners to avail their remedy, against the said order dated 23.3.2006.

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Ordered accordingly.

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(SATISH KUMAR MITTAL) JUDGE

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March 20, 2013 (AMOL RATTAN SINGH) vkg JUDGE

Chander Bhushan Jaiswal and Anr. v. Haryana State Industries Dev. Corp. Ltd.

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Chander Bhushan Jaiswal and Anr. v. Haryana State Industries Dev. Corp. Ltd.

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