Ghaziabad Development Authority ... vs R.C.Saxena And Ors.
2011 Latest Caselaw 1026 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 23
 

 
Case :- MISC. SINGLE No. - 2191 of 2011
 

 
Petitioner :- Ghaziabad Development Authority Through Its V.C. Ghaziabad
 
Respondent :- R.C.Saxena And Ors.
 
Petitioner Counsel :- Arvind Kumar
 

 
Hon'ble Shri Kant Tripathi,J.

Heard learned counsel for the petitioner and perused the record.

The learned counsel for petitioner submitted that the instant writ petition has been filed under Article 226 of the Constitution of India for quashing the order dated 9.8.2010 passed by the Uttar Pradesh Consumer Disputes Redressal Commission (hereinafter referred to as the 'State Commission') in revision no.109 of 2006, whereby the State Commission dismissed the petitioner's revision and confirmed the order dated 28.4.2006 of the District Forum, Ghaziabad. The learned counsel for the petitioner further submitted that the State Commission has passed the aforesaid order in exercise of its revisional jurisdiction under section 17(1)(b) of The Consumer Protection Act, 1986 (hereinafter referred to as 'the Act'), therefore, the order so passed is not appealable before the National Consumer Disputes Redressal Commission (hereinafter referred to as the 'National Commission'). According to section 19 of the Act only an order passed under sub clause (i) of clause (a) of section 17 of the Act is appealable before the National Commission, therefore, the instant writ petition under Article 226 of the Constitution of India is maintainable.

The Consumer Protection Act, 1986 has been enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith. The Act has provisions for constitution of District Forum, State Commission and National Commission, respectively, at the District level, State level and the National level for redressal of the grievances (complaints) of the consumer.

The National Commission has power of revision and that power has been very specifically conferred on the National Commission under section 21 (b) of the Act. Moreso, section 21 (a) (ii) of the Act has conferred jurisdiction on the National Commission to entertain appeals against the orders of any State Commission but there is no specification as to which of the orders of the State Commission is appealable under section 21 (1)(a) of the Act. Therefore, the provisions of section 21 (a) (ii) of the Act have to be read alongwith the provisions of section 19 of the Act. As such the orders passed by the State Commission in exercise of original jurisdiction under section 17 (1) (a) (i) of the Act is appealable before the National Commission. If the provisions of section 21 (a)(ii) of the Act is read in isolation, each and every order passed by the State Commission is appealable before the National Commission. In fact section 21 of the Act deals with the jurisdiction of the National Commission which confers on it not only the original jurisdiction of value of certain amount but also deals with the jurisdiction to entertain appeal against the order of the State Commission and also to exercise revisional jurisdiction. Whereas section 19 of the Act provides as to which order of the State Commission is appealable, therefore, sections 19 and 21 of the Act have to be read together to decide the question as to whether a particular order is appealable or not.

The impugned order dated 9.8.2010 has been passed by the State Commission in exercise of revisional jurisdiction and there is no bar of second revision. As such the order passed by the State Commission in exercise of revisional jurisdiction can very well be subjected to revisional jurisdiction of the National Commission under section 21 (b) of the Act.

In view of the aforesaid, the petitioner has an appropriate alternative efficacious remedy by way of filing a revision under section 21 (b) of the Act against the impugned order dated 9.8.2010 (Annexure 1), therefore, it does not appear to be just and expedient to exercise extra ordinary writ jurisdiction under Article 226 of the Constitution of India.

The Supreme Court has almost settled the legal position regarding maintainability of writ petition under Article 226 of the Constitution of India in a case where alternative remedy is available to the petitioner. Some of the important cases are being referred to hereinbelow.

In Whirlpool Corporation vs. Registrar of Trade Marks and others, AIR 1999 SC 22, the Supreme Court has held that under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion 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 Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

A similar view has been expressed in the case of State of H.P. and others vs. Gujrat Ambuja Cement Ltd. and another (2005) 6 Supreme Court Cases 499, in which the Supreme Court observed after relying on few important earlier decisions that except for a period when Article 226 was amended by the Constitution (Forty second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction.

In Harbanslal Sahnia vs. Indian Oil Corpn. Ltd. (2003) 2 SCC 107, the Supreme Court reiterated the same principles and held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights where there is a failure of the principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

It is also well settled in the case of U.P. State Bridge Corporation Ltd. and others vs. U.P. Rajya Setu Nigam S. Karamchari Sangh (2004) 4 Supreme Court Cases 268 and other cases that it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the Statute, the person who insists upon such remedy can avail of the process as provided in that Statute and in no other manner.

In the case of A.P.Foods vs. S. Samuel and others (2006) 5 S.C.C. 469, the Supreme Court reiterated the same principles and held that a writ petition under Article 226 of the Constitution of India should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out.

Expressing a serious concern over the heavy arrears in this court, a Division Bench of this Court held in Manvendra Misra (Dr.) Vs. Gorakhpur University (2000) 1 UPLBEC 702 that since writ jurisdiction is a discretionary jurisdiction hence if there is an alternative remedy the petitioner should ordinarily be relegated to his alternative remedy. This is specially necessary now because of the heavy arrears in the High Court, and this Court can no longer afford the luxury of entertaining writ petitions even when there is an alternative remedy in existence. No doubt alternative remedy is not an absolute bar, but ordinarily a writ petition should not be entertained if there is an alternative remedy.

Considering the aforesaid decisions, a division bench of this Court has again held in the case of Nanhe @ Indra Kumar vs. State of U.P. and others, 2009 (2) ACR 2349, that no writ petition under Article 226 of the Constitution should be entertained when statutory remedy is available under the concerned statute unless exceptional circumstances propounded in Whirlpool's case (supra) are made out.

As already discussed, the Act is a complete code in regard to redressal of grievances (complaints) of the consumer and also in regard to appeal and revision against the order passed by the State Commission and other authorities, and as such the extra ordinary writ jurisdiction under Article 226 of the Constitution of India, which is a discretionary jurisdiction, should not be invoked in such matters.

In view of the aforesaid, the writ petition is not maintainable and is accordingly dismissed with costs.

Order Date :- 13.4.2011

RKSh