M/S Chandel Cold ... vs State Consumer Disputes ...
2019 Latest Caselaw 4684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR 
 
Court No. - 25
 

 
Case :- MISC. SINGLE No. - 5743 of 2010
 
Petitioner :- M/S Chandel Cold Storage,Barabanki Thru Partner Dushyant Sin
 
Respondent :- State Consumer Disputes Redressal Commission,U.P. & Ors.
 
Counsel for Petitioner :- Rajesh Kumar Singh,Himanshu Suryavanshi,Rajesh Kumar Singh
 
Counsel for Respondent :- C.S.C.,Sanjay Kr. Verma
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

Heard learned counsel for the petitioner Sri Himanshu Suryavanshi, learned Standing Counsel for the State-respondent and Sri Sanjay Kumar Verma for respondent no.3.

It is the case of the petitioner that the petitioner runs a Cold Storage and the licence has been granted by the Horticulture Department under Section 6 of the U.P. Regulation of Cold Storages Act, 1976 (for short 'the Act of 1976'). The Act of 1976 is a complete Code for licencing, supervision and control of Cold Storages in the State of U.P.

Under Sections 12 to 20 of the Act of 1976, the rights and duties of a licencee like the petitioner have been enumerated. The licencee has to take care of the goods stored in Cold Storage in a reasonable and prudent manner. In case of deterioration of goods or possibility of such deterioration of goods stored by the hirer, steps are to be taken for intimation to the hirer and thereafter Sections 24 and 25 of the Act of 1976 provide for compensation for loss and destruction of goods stored in the Cold Storage and give a right to the hirer to file a complaint before the licencing officer. Section 36 provides for an appeal to the Tribunal against the order passed by the licencing officer, including an order passed under Section 25 of the Act of 1976.

It has been submitted that under the Regulations framed for Cold Storage Tribunal by the State of U.P. in 1978, a complete procedure is provided with regard to the complaints and their redressal. It has been submitted that the goods stored by the respondent no.3 are insured by the National Insurance Company Ltd. The respondent no.3 as well as other farmers stored their potatoes in the Cold Storage of the petitioner, but due to failure of power supply and mechanical fault in the generator, the supply of electricity was not continuous. Despite all efforts for restarting the Cold Storage Plant, the petitioner could not succeed and, therefore, it informed the District Horticulture Officer, Barabanki for the same and also that it was not possible for the petitioner to maintain the temperature for proper storage of potatoes. The petitioner thereafter circulated a general notice, including one published in the local news paper, but the respondent no.3 did not turn up to reclaim the potatoes stored by him in the petitioner's Cold Storage.

It has been submitted that respondent no.3 instead of filing a complaint before the licencing officer and pursuing his remedy under Sections 24 and 25 and thereafter under Section 36 of the Act of 1976, approached the District Consumer Dispute Redressal Forum, Barabanki (for short 'the Consumer Forum'), claiming deficiency in service and the Consumer Forum passed an ex-parte order in favour of respondent no.3, directing the petitioner to pay Rs.1,55,770/- to respondent no.3.

The petitioner filed an appeal before the State Consumer Disputes Redressal Commission, U.P., Lucknow (for short 'the State Commission') under Section 15 of the Act and such appeal was entertained and notices were issued on the delay condonation application moved by the petitioner, but a direction was issued to deposit Rs.50,000/- in addition to already deposited amount of Rs.25,000/- for filing an appeal as provided under the Act. There was no interim order granted by the State Commission and, therefore, the petitioner had approached this Court on legal advice, as according to the petitioner, its case was covered by a judgment and order dated 21.8.2009 passed in Writ Petition No.557 (MS) of 2009.

The petitioner has filed this writ petition, challenging the order dated 26.7.2010 passed by the State Commission in Appeal no.FA-1252 of 2010 and has also impugned the Award of the Consumer Forum dated 11.5.2010.

Respondent no.3 has raised an objection regarding maintainability of the writ petition as simultaneous remedy cannot be availed of, by the petitioner. The petitioner has already filed an appeal before the State Commission, which is pending and the conditional interim order has been challenged before this Court.

Learned counsel for the petitioner has placed reliance upon the detailed interim order granted by this Court on 21.9.2010, wherein this Court had referred to the judgment rendered by a coordinate Bench in the case of M/s. Behari Colds (P) Ltd. vs. State Consumer Disputes Redressal Commission, Lucknow and others (Writ Petition No.557 (MS) of 2009), decided on 21.8.2010 and also an interim order granted in Writ-C No.13909 of 2010: M/s. Mohan Ice and Cold Storage Pvt. Ltd vs. District Consumer Disputes Redressal Forum and others.

This Court in Writ-C No.13909 of 2010 had entertained the petition and stayed further proceedings in Appeal no.FA-1252 of 2010 (M/s. Chandel Cold Storage vs. Asha Ram) pending before the State Commission and had also stayed the Award of the Consumer Forum dated 11.5.2010 in Complaint Case no.160 of 2008 till the next date of listing, subject to the condition the petitioner deposits Rs.30,000/- within a period of four weeks from the date of passing of the order by this Court.

Sri Sanjay Kumar Verma, appearing for respondent no.3 has specifically pointed out Section 3 of the Consumer Protection Act, 1986, which says that the remedy provided under the Act is in addition to the remedies provided under the other Acts and it does not restrict a consumer from approaching the appropriate forum in case of deficiency in service. It was the case of respondent no.3 that he was a consumer and had hired space in the Cold Storage for proper storage of his potatoes, which were his agricultural produce.

Learned counsel for the petitioner having placed reliance upon the judgment rendered in M/s. Behari Colds (P) Ltd. (supra), has filed a copy of the said judgment rendered by a coordinate Bench on 21.8.2010 as Annexure-5 to this writ petition.

I have considered the judgment rendered on 21.8.2010, wherein this Court had negatived the preliminary objection raised by the respondents therein regarding maintainability of the writ petition on the ground that the order passed by the State Commission is revisable by the National Commission under Section 21(b) of the Act. This Court considered the judgment relied upon by the learned counsel for the respondents therein regarding the applicability of the Consumer Protection Act, namely, State of Karnataka vs. Vishwabharthi House Building Co-operative Society and others, 2003 (50) ALR 47, but had come to the conclusion that the licencing of Cold Storages was done under the Act of 1976 and the Act of 1976 being a complete Code in itself, the Consumer Forum and the State Commission had no jurisdiction to entertain the complaint case filed by the consumer.

This Court in M/s. Behari Colds (P) Ltd. (supra) also relied upon the judgment in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, AIR 1999 SC 22 and observed that the hirer/respondent no.4 in the said writ petition was free to approach the licencing officer, in case of any damage caused to the goods stored by the licencee and thereafter it was also open for him to prefer an appeal. In the case before this Court, respondent no.4 had approached the Consumer Forum for the same cause of action for which, he had already approached the licencing officer. The licencing officer had already passed an order against the hirer, which was not appealed and had become final. This Court, therefore, set aside the orders passed by the State Commission and the Consumer Forum while leaving it open for the private respondent therein to file an appeal against the order passed by the licencing officer under Section 36 of the Act of 1976.

It has been submitted by the learned counsel for the petitioner that the Act of 1976 has a non obstante clause under Section 43, which gives an overriding effect to the Act and the Rules framed thereunder, over any other enactment or any contract entered into between the parties.

Learned counsel for the respondent no.3, on the other hand, has placed reliance upon a Division Bench judgment rendered in Writ-C No.30448 of 2013: Subodh Chandel and another vs. The President, District Consumer Disputes Redressal Forum and another, on 28.5.2013.

It has been submitted by the learned counsel for respondent no.3 that all the arguments raised by the learned counsel for the petitioner before this Court have been considered in the judgment rendered by the Division Bench. The Division Bench was considering the Act of 1976 and the Rules framed thereunder and also the Consumer Protection Act, 1986. It has dealt with the argument raised by the learned counsel for the Cold Storage that the Act of 1976 is a special law and a complete Code in itself and has an overriding effect over all other laws or enactment or contract, therefore, the forum provided under the Consumer Protection Act, 1986 could not be approached by a farmer, who had hired space for storage of potatoes in the Cold Storage of the writ petitioner.

This Court, however, had found that the Act of 1976 being a State Act and being enacted prior to the Consumer Protection Act, 1986, which was a Central Act, could not be said to override the Central Act. The Central Act operates in an entirely different field.

This Court also considered the argument raised by the learned counsel for the petitioner that under Section 2(1)(d) of the Consumer Protection Act, 1986, the farmers keeping their potatoes in the Cold Storage, availed the facilities, which are commercial in nature and such farmers would not fall within the definition of consumer under Section 2(1)(d) of the Consumer Protection Act, 1986. However, this Court relied upon the judgment of the Supreme Court in the case of National Seeds Corporation Limited vs. M. Madhusudhan Reddy and another, (2012) 2 SCC 506, wherein somewhat similar facts were there where farmers, who had stored their seeds for future crops, had approached the forum on loss/damage caused to the seeds, they had produced. The Supreme Court had held that where the farmers/growers agreed to produce seeds on behalf of seed seller for the purpose of earning their livelihood by self employment by using their skill and labour, such purpose cannot be said to be commercial purpose.

This Court referred to the explanation given under Section 2(1)(d) of the Consumer Protection Act, 1986, wherein there was an exclusion from the definition of consumer for a consumer of goods produced by him exclusively for the purpose of earning his livelihood by means of self employment. This Court observed that the farmer, who stored his agricultural produce in the Cold Storage, to be taken out at a later point of time, for getting higher return, would fall within the definition of Section 2(1)(d) of the Consumer Protection Act, 1986 as the goods produced by him would be used for the purpose of earning his livelihood by means of self employment.

On a careful perusal of the judgment rendered by the Division Bench on 28.5.2013 in the aforecited case of Subodh Chandel (supra), this Court is of the considered opinion that the Division Bench having fully appreciated the law, hence, this Court is not bound by the coordinate Bench decision of a Hon'ble Single Judge rendered on 21.8.2009 in the case of M/s. Behari Colds (P) Ltd. (supra).

Learned counsel for respondent no.3 has also placed reliance upon a judgment rendered by the Supreme Court in the case of Nivedita Sharma vs. Cellular Operators Association of India and others, (2011) 14 SCC 337, wherein the Supreme Court had considered the maintainability of the writ petition under Articles 226 and 227 of the Constitution of India where remedy of appeal was available under Section 19 of the Consumer Protection Act, 1986 to the National Commission against the orders of the State Commission. The Supreme Court observed that when the statutory forum is created by law for redressal of grievances, writ petition should not be entertained, ignoring the statutory dispensation.

This Court has considered the said judgment rendered by the Supreme Court and the observations made in Paragraph-11 thereof, and the fact that the Supreme Court in the aforecited judgment has referred to several binding precedents where similar views had been expressed by the Supreme Court that where the statutory remedy is available under the Act, the Writ Court should ordinarily not entertain a writ petition and should relegate the parties to avail the statutory remedy available to them.

The Supreme Court also considered Section 3 of the Consumer Protection Act, 1986 and observed that the Consumer Protection Act being a special Act, which provides remedy to a consumer, which is expeditious, inexpensive and simple, the benevolent piece of legislation should be given as wide interpretation as possible.

The Supreme Court in the aforecited judgment in the case of Nivedita Sharma (supra) had considered the fact also that one of the aggrieved parties had already filed an appeal against the order of the State Commission before the National Commission and then observed that the High Court without referring to Sections 17 and 19 of the Consumer Protection Act, 1986 and the law laid down in various judgments of the Supreme Court, could not have declared that the protections given by the State Commission are without jurisdiction. Liberty was given to the respondent no.1 to challenge the order of the State Commission by availing the statutory remedy of appeal under Section 19 of the Consumer Protection Act, 1986.

In the case of the petitioner, it is not disputed by it that it had already approached the Appellate Forum and a conditional order was passed by the Appellate Forum in Appeal No.FA-1252 of 2010 on 26.7.2010, directing the petitioner to deposit Rs.50,000/- in addition to Rs.25,000/-, the statutory requirement for entertaining the appeal. Because of an interim order granted by this Court on 21.9.2010, the proceedings before the Appellate Forum have remained stayed.

This writ petition is dismissed with liberty to the petitioner to pursue the statutory remedy i.e. its Appeal No.FA-1252 of 2010 before the State Commission.

It is, however, made clear that if any amount has been deposited before this Court by the petitioner in pursuance of the interim order granted earlier, it shall be open for the petitioner to file an appropriate application for withdrawal of the same, and to deposit the amount as directed by the State Commission, before the State Commission itself.

In case the deposit, which is to be made by the petitioner in compliance of the order of the State Commission, which is challenged before this Court, is made by the petitioner within a period of three weeks from today, the State Commission shall make an endeavour to decide the appeal itself within a period of three months thereafter.

Order Date :- 17.5.2019

Sachin