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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 5371 OF 2017
1] M/s. Ankur Seeds P. Ltd.
Through its Managing Director,
27, New Cotton Market Lay-out,
Oppo. Bus Stand, Nagpur.
2] M/s. Tirupati Agro Agencies,
Through its proprietor, 5-6,
Wadalkar Bhawan, Subhash road,
Nagpur - 440018. .....PETITIONERS
...V E R S U S...
Arvind S/o. Vithoba Sawai,
Aged about 46 years,
R/o-Bhagwanpur, Tah-Bhiwapur,
District : Nagpur (M. S.) ...... RESPONDENT
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Shri J. L. Bhoot, Advocate for the Petitioners.
Shri Rahul Tajne, Advocate for the Respondent.
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CORAM : S. C. GUPTE, J.
th DATE : 16 AUGUST, 2017.
ORAL JUDGMENT :
Heard learned counsel for the parties.
02] Rule. Rule made returnable forthwith and taken up for hearing with consent of counsel for the parties. ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 :::
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03] This Writ Petition challenges an order passed by the
State Consumer Disputes Redressal Commission at Nagpur, on an application made to it under Section 13(1)(c) of the Consumer Protection Act, 1986. The subject matter of disputes in the two complaints herein (Complaint Case Nos.CC/17/56 and CC/17/57) is the quality of pumpkin seeds sold by the petitioners (original opposite party to the complaint cases) to the respondent (original complainant in the complaint cases). Since the disputes concern the quality of the seeds supplied, that is to say, the allegation of defect in the goods, a request was made to the State Commission for obtaining a sample of the goods, sealing it and authenticating and thereafter, referring the same to an appropriate laboratory for an analysis or test. It is submitted that only after such analysis or test would it be clear as to whether the goods suffered from the defect alleged or not. This request was rejected by the State Commission. Hence, the present writ petition. 04] The complaints allege that despite passage of 60-70 days after sowing the seeds, though the plants started flowering, there was no formation of fruit. It is the allegation of the respondent that upon inspection of the plants, it was found that though the ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 ::: wp5371.17.J.odt 3/8 plants had flowers, most of them were either male or infertile, and female flowers were absent throughout. It is submitted that there was 99% failure on all accounts, that is to say, of minimum germination, of physical purity and of genetic purity of the product and the same was, therefore, defective. By its very nature, such a complaint cannot be decided one way or the other without subjecting the goods to a test by an appropriate laboratory. It is in fact in cases such as this that the District Forum or the State Commission, as the case may be, is called upon the apply the provisions of Clause (c) of Sub-Section (1) of the Section 13 of the Consumer Protection Act and subject the goods to appropriate laboratory test. Since the conditions here are truly classical to call for a laboratory test, one fails to understand why the application was rejected by the State Commission. The purported reason given by the State Commission for rejecting the application is that no fruitful purpose would be served if the sample of the seeds is sent to the laboratory for testing after 12 th October, 2016, since that was the expiry date mentioned on the packets of the seeds. The State Commission is not an expert to fathom as to whether the particular qualities which are in question in the present complaint are or are not capable being tested after the alleged expiry date. This is a ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 ::: wp5371.17.J.odt 4/8 purely technical issue which ought to have been left rather to the laboratory to analyse and report on than the Court rule on. It is the case of the petitioners that it has maintained a proper record of the seeds within the meaning of Sub-Rule (3) of Rule 13 of the Seeds Rules, 1968 and if samples from these Seeds are sent to the laboratory for analysis, they will yield desired results and enable the laboratory to reflect on the alleged defects in the goods accurately. Anyway this is a matter to be left to the laboratory and this Court has nothing to say one way or the other. 05] The State Commission has also observed in its impugned order that seed samples, which are meant for further record and reference, should be large enough to do purity analysis and be packed in good quality paper, etc.. The Commission has also referred to the sampling requirements in this behalf according to the seeds testing manual. After noting these aspects, the State Commission has proceeded to observe that there was no evidence to show that the opposite party actually complied with the instructions given in the seeds test manual. The question is, did the Commission call for such evidence. The matter appears to have been disposed of by the State Commission at the very threshold, ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 ::: wp5371.17.J.odt 5/8 without allowing the party to produce any evidence in this behalf. 06] In the premises, the impugned order of the State Commission obviously cannot be sustained. Ordinarily, this Court, in the premises, would have remanded the matter to the State Commission for allowing the parties to produce material in support or defence of the application. Considering, however, the imperative need to urgently subject the goods to laboratory tests and considering further the petitioners' plea that samples, which are being sent to the laboratory for analysis, are duly maintained in accordance with the sampling procedure, which is anyway a subject matter for the laboratory to satisfy itself with and finally for the State Commission to rule on, this Court is of the view that the application under Section 13(1)(c) of the Consumer Protection Act, 1986, should rather be disposed of by this Court itself. 07] Learned counsel for the respondent objects to this Court passing an order on merits relying on the judgment of the Hon'ble Supreme Court in the case of Cicily Kallarackal ..vs.. Vehicle Factory, (2012) 8 Supreme Court Case, 524. Learned counsel submits that there is a remedy both by way of an appeal and a ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 ::: wp5371.17.J.odt 6/8 revision against an order passed by the State Commission and both remedies would lie before the National Commission at Delhi. It is important note in this behalf that the provisions of appeal, though the Section (Section 19) uses the word "order" generally, relate to orders, which in a sense adjudicate the rights of the parties or affect their interests. It is not any and every order passed by the Consumer Forum or State Commission which is subjected to an appeal. I am fortified in this view by a judgment of our Court in the case of Virumal Ladharam Rajani ..vs.. Shataayu Hospital and Research Center, 2005(3) Mh. L. J.. The impugned order in the present case clearly is not an order which either adjudicates the rights of the parties or affects their interests so as to invite the appellate jurisdiction of the National Commission. At best, it could be said that there is a provision for filing of a revision before the National Commission. The remedy of revision is not really a matter of right and is something of a discretion of the National Commission. Considering the controversy before this Court in the present petition and also considering the nature of the application and the imperative need to have same disposed of promptly so as to avail of the current sowing season, when the product can be subjected to a grow out test, this Court is of the view that it should, ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 ::: wp5371.17.J.odt 7/8 in the interest of justice, entertain and dispose of the petition, particularly now that this Court has extensively heard it, rather than leave it to the National Forum at Delhi to apply its mind afresh to it.
08] In the premises, the following order is passed :
O R D E R.
(i) The State Commission is directed to obtain a sample of the goods from the petitioner and after sealing and authenticating the same in the manner prescribed, refer the sealed sample to the appropriate laboratory for a grow out test. Before accepting such sample, the State Commission shall insist on material to be produced to satisfy itself that the sample is from the same batch as was sold to the respondent. It is made clear that sending of the sample to the laboratory for testing does not in any way impair the respondent's right to object to the selection of the sample or to its efficacy including the modes and methods of preservation adopted by the petitioner and all other objections on merits. These are ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 ::: wp5371.17.J.odt 8/8 matters to be decided by the State Commission at the hearing of the consumer complaint.
(ii) The State Commission is directed to send the sample to the laboratory for a grow out test within a period of 7 days of receipt of the same from the petitioners.
(iii) Rule is made absolute in the above terms and the petition is disposed of.
(iv) All parties including the State Commission to act on a copy of this order duly authenticated by the Sheristedar of the Court.
JUDGE PBP ::: Uploaded on - 19/08/2017 ::: Downloaded on - 20/08/2017 02:10:07 :::