Delhi High Court
Guru Gobind Singh Indraprastha ... vs Anish Sharma & Ors. on 30 April, 2009
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on : 30.04.2009
+ W.P. (C) 7490/2007
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY ..... Petitioner
Through: Mr. Sanjiv Goel with Mr. Praveen Kumar, Advocates.
versus
ANISH SHARMA & ORS. ..... Respondents
Through: Dr. Praveen Kumar Sharma, Advocate for
Respondent No.1.
Mr. D.S. Adel, Advocat for Respondent No.2.
Mr. Sushil Kumar Dubey for Ms. Sonia Mathur for
Respondent No.3.
CORAM:
Mr. Justice S.Ravindra Bhat
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
Mr. Justice S.Ravindra Bhat :
*
1. The writ petitioner, Guru Gobind Singh Indraprastha University challenges an order of
the State Consumer Redressal Commission dated 19.07.2007 in appeal No.367/2002. The State
Commission directed the payment of difference between the fee structure, for paid seats and
free seats from the date of commencement of the course undertaken by the first respondent
from his admission till completion of its course i.e. Rs.140,000/-. It also directed payment of
Rs.10,000/- towards costs.
W.P. 7490/2007 Page 1
2. Briefly the facts are that the petitioner University conducted a common entrance test
for its B.Arch programme for 2000-2001 for the purpose of admission in its affiliating institution
including the second respondent (hereinafter called "the College"). The first respondent
(hereinafter called "the complainant") participated in the process and was admitted in the
College on18.08.2000. He was ranked 923 in the merit list. The first counseling for admission
to the course was held on 13.07.2000 when candidates ranking upto 400 were called for
admission. A second cancellation session was undertaken on 16.08.2000 to fill up the vacant
seats. The complainant was admitted in this session, towards a seat earmarked as "Paid"
category.
3. Alleging that the college as well as the petitioner had acted irregularly and were
therefore guilty of deficiency of service, the complainant approached the District Consumer
Redressal Forum (hereinafter called "The District Forum") preferring complaint No.783/2001 on
05.10.2001. He sought for his transfer to the category of free seats and a further direction to
refund the entire amount paid by him in the "Paid Seat" category. The District Forum after
considering the materials and pleadings of the parties including explanation of the present
complainant dismissed the complaint on 08.01.2002.
4. The complainant thereafter appealed to the State Commission. His appeal was
numbered as 46/2002. On 16.01.2002 the complainant's counsel recorded withdrawal of the
appeal, in the following terms
"16/01/02
Present : Dr. Pawan Kumar Sharma, Counsel for the appellant.
W.P. 7490/2007 Page 2
A-46/2002
The learned counsel for the appellant wants to make a statement. Let the statement of
the learned counsel for the appellant be recorded.
Sd/-
(JUSTICE LOKESHWAR PRASAD)
President
Sd/-
(RUMNITA MITTAL)
Member
Sd/-
(S.P. SABERWAL)
Member
Statement of Dr. Pawan Kumar Sharma, learned counsel for the appellant
(without oath)
Under instructions from my client, the appellant, I have to state that the
present appeal, filed by the appellant, be dismissed as withdrawn. However, the
appellant be given the liberty to approach forum/Court for redressal of his
grievances, being raised by the appellant in the present appeal, is so advised.
Sd/-
(JUSTICE LOKESHWAR PRASAD)
President
Sd/-
(RUMNITA MITTAL)
Member
Sd/-
(S.P. SABERWAL)
Member
RO & AC
ORDER
In view of the above statement made by the learned counsel for the
appellant, the present appeal, filed by the appellant, is dismissed as withdrawn
with liberty aforesaid. No order as to costs.
W.P. 7490/2007 Page 3
A copy of this order, as per statutory requirements, be forwarded to the
parties free of charge and also to the concerned District Forum and thereafter the
file be consigned to the Record Room.
Sd/-
(JUSTICE LOKESHWAR PRASAD)
President
Sd/-
(RUMNITA MITTAL)
Member
Sd/-
(S.P. SABERWAL)
Member"
5. The complainant was apparently dis-satisfied and approached this Court by filing writ
Petition No.702/2002. The learned Single Judge heard the arguments, considered the pleadings
of the writ petitioner (i.e. the present complainant) and dismissed his petition in the following
terms :
"I have heard the learned counsel for the petitioner at length. Learned
counsel for the petitioner submitted that the petitioner had been assigned
enrollment No.20 by respondent No.2 as it appears at page 17 of the paper book.
Petitioner contends that a nominated member Ms. Smriti Sood was at number
19. She was the candidate for a nominated seat of Himachal Pradesh. Petitioner
submits that he was entitled to be upgraded to the free seat from paid seat.
However, the nominated seat was over and above to the quota. It may be noted
that the petitioner earlier filed a complaint under the Consumer Protection Act
before the Consumer Disputes Redressal Forum, Tis Hazari. District Forum
considered the matter at length and in its detailed judgment dated 8.1.2002
dismissed the complaint of the petitioner, the District Forum took note of the fact
that the petitioner had been admitted in the academic year in a paid seat and
with an undertaking that the upgradation to the free seat could only be there, if
the paid seats get filled on the basis of merit, the petitioner could be upgraded.
The Consumer Disputes Redressal Forum examined the records also. If opined
that if there is a vacancy in the free seats, it will go to one Mr. Santosh Kumar,
whose rank number is 882 over and above that of the complainant/petitioner
who had been admitted against a paid seat. Petitioner also raise the grievance
with regard to allotment of seat to Ms. Smriti Sood as not been on merit.
Consumer Redressal Forum clarified that Ms. Smriti Sood has been allotted a seat
under the nominated quota of the State, which was over and above the
W.P. 7490/2007 Page 4
sanctioned seats namely free seats or the paid seats. The case of Ms. Smriti Sood
would therefore not materially affect the petitioner. Counsel for the petitioner
attempted to urge before me that respondent No.2 had given an enrolment
showing 20 as per seniority. Learned counsel for the respondent has clarified
that the said number was allotted by the respondent No.2/ college and not by
respondent No.10. It was not in accordance with seniority as per merit.
In these circumstances, I find no merit in the writ petition or ground to
interfere in the exercise of writ jurisdiction.
Writ petition is dismissed.
Sd/-
Manmohan Sarin
Judge
January 31, 2002"
6. The complainant further felt aggrieved and approached the Division Bench through
Letters Patent Appeal. The Division Bench by an elaborate order dated 06.03.2002 took note of
and even extracted the District Consumer Forum's order and further that he had preferred a
writ petition before the Court which was dismissed as unmerited. The order of the Division
Bench which has an important bearing on the present case dated 06.03.2002 is in the following
terms :
"On 16th January, 2002, the appellant withdrew the appeal and accordingly the
appeal before the State Consumer Disputes Redressal Commission was dismissed
as withdrawn.
Thereafter, the appellant filed a writ petition before this Court. The
learned Single Judge found no merit in the writ petition and, accordingly, the writ
petition was dismissed. The learned counsel appearing for the appellant submits
that the appellant was entitled to a free seat as he had attained 20 th position in
the Common Entrance Examination conducted by the first respondent. We have
considered the submission of the learned counsel. We are of the view that the
appellant having withdrawn the appeal which was filed before the State
Consumer Disputes Redressal Commission cannot urge before us that the
appellant was entitled to a free seat. The District Forum which the appellant
selected, came to the conclusion that the appellant was not entitled to free seat.
The appellant cannot rake up the controversy afresh by invoking Article 226 of
the Constitution. In case the appellant was confident of the merit of his case, he
W.P. 7490/2007 Page 5
should have pursued the remedy of appeal before the State Consumer Disputes
Redressal Commission. Once the appellant withdrew the appeal he was not
entitled to invoke the writ jurisdiction of this Court, accordingly, the appeal fails
and is hereby dismissed.
CM No.477/2002
Since the appeal has been dismissed, no further orders are required to be
passed on this application.
The application stands disposed of. "
7. On 17.04.2002, the complainant filed the following pleading/letter before the State
Consumer Disputes Redressal Commission, contending that it was with reference to Case No.A-
46/2002 (the previously filed appeal which was permitted to be withdrawn by the State
Commission):
"Before the State Consumer Disputes Redressal Commission :
New Delhi
In the matter of :
Shri Anish Sharma ....... Appellant
Vice Chancellor
V/s
Guru Govind Singh, Indraprastha University
Delhi and Another ....... Respondents
Sir,
Most respectfully showth
Sir,
That with reference to case No.A-46/2002 dated 16/01/2002 the
appellant was given the liberty to approach the appropriate forum/Court for
redressal of his grievance.
Therefore may I take this privilege/liberty again to file an appeal before
The State Consumer Disputes Redressal Commission : New Delhi.
Delhi Appellant
Dated :17/4/02
Through:
Dr. Praveen Kumar Sharma
W.P. 7490/2007 Page 6
Advocate
K-150 Lawyers Chambers
Tis Hazari Court Complex
Delhi-110054"
8. Apparently the complainant's submission was that he had the liberty to approach the
State Commission again. He filed (what was termed as additional necessary legal information
pertaining to the abovementioned matter) disclosing that writ petition was filed before this
Court which was disposed of on 31.01.2002 as well as the disposal of the Letters Patent Appeal.
9. The response of the college clearly mentioned that the complainant had withdrawn the
appeal before the State Commission and that it formed the ground for rejection of his
subsequent appeal to the Division Bench. It was contended that the second attempt before the
State Commission constituted abuse of the process of Court. The petitioner University also
disclosed the full facts including the orders of the District Forum, this Court and the Division
Bench and stated that once the matter had been heard and decided on merits, the State
Commission ought not to entertain and decide the appeal against the District Forum's order.
10. The State Commission in the impugned order proceeds to discuss the merits of the case
and accepted the complainant's contention that a verbal assurance had been held out that he
would be adjusted against a "Free Seat" in his turn. The State Commission concluded that the
petitioner University did not honour such verbal assurance which constituted unfair trade
practice.
11. The petitioner challenges the impugned order as having been made beyond jurisdiction.
It contends that having exhausted the remedy through complaint - which was dismissed by the
District Forum, and later withdrawn the appeal, the complainant abused the judicial process
W.P. 7490/2007 Page 7
earlier too when he approached the High Court. The Division Bench noted this aspect, while
dismissing his appeal against the learned Single Judge's order. In these circumstances, the
State Commission could not have entertained the matter much less adjudicated upon it and
rendered findings. Learned counsel submitted that apart from abuse of the process, by the
complainant, the State Commission's order amounted to over-reaching the judgment of the
Division Bench, which was binding on the parties a well as on the said commission.
12. The complainant, through his counsel, contends that the present writ petition should
not be entertained, as the writ petitioner had not exhausted its remedy provided under the
Consumer Protection Act, 1986, by way of revision to the National Consumer Disputes
Redressal Commission. It was submitted besides that the State Commission was made aware of
the previous litigation and there the complaint's grievance against the earlier District Forum's
order was un-redressed. The dismissal of the writ petition, it was contended, did not preclude
the State Commission from entertaining and considering the appeal on merits, since in the
earlier order, the rival merits were not examined. Terming the writ petition as a gross abuse of
process, the complainant contends that the University instead of complying with the State
Commission's order, is raising technical pleas of lack of jurisdiction, which is without substance
or merit.
13. The above discussion would reveal that the complainant had approached the District
forum, complaining of actionable wrong, in the form of deficiency of service, by the petitioner
in 2001. That complaint was dismissed on merits, after due consideration of all the materials
and pleadings. For reasons best known, the complainant withdrew his appeal filed earlier
W.P. 7490/2007 Page 8
before the State Commission. His writ petition was heard and dismissed by this Court on the
merits. Not content, he appealed to the Division Bench, which rejected his appeal in no
uncertain terms. The Division Bench's ruling - affirming the Single Judge's order, on its merits,
became final, and bound the parties. This alone precluded the complainant from approaching
any other forum in a third inning, as it were. Yet he did so, and the State Commission not only
entertained the appeal afresh, but decided it on the merits.
14. The petitioner argues - justifiably that this third attempt at having the matter
adjudicated, after repeated rejection on merits, constituted an abuse of process of court. The
writ petition filed earlier had complained against findings of the District Forum; an order on
merits was recorded by this court and affirmed by the Division Bench. The principle of finality
precluded the complainant approaching any forum - much less the State Commission, on the
subject matter. Even in a case where a complaint under the Consumer Protection Act, is
dismissed for non-prosecution, a subsequent complaint, for the same cause (if shown to be
motivated to harass) has been held to be barred in law (See New India Assurance Co. Ltd. Vs.
R.Srinivasan 2000 (3) SCC 242). In these circumstances, the complainant could not have
agitated the matter at all.
15. Apart from the above circumstance, once the High Court, in exercise of jurisdiction
lawfully vested in it, rules on any cause or lis, unless its decision is upset in a manner known to
law - i.e. by an appellate ruling, or by an overriding legislation, the determination - of the
issues and causes are binding on counts and tribunals, over which it can exercise jurisdiction,
through corrective orders, under Article 226 and 227 of the Constitution.
W.P. 7490/2007 Page 9
16. There is one more, substantial reason why the petition has to succeed. As held in Cassel
Vs. Broome, 1972 (1) All ER 01, where a hierarchical system of courts and tribunals exists, the
decision of the higher courts are to prevail, and be accepted loyally by Courts and Tribunals in
the lower tiers. This decision was approved in Tirupati Balaji Developers (P) Ltd. Vs. State of
Bihar 2004 (5) SCC 1. Regrettably, the State Commission in this case completely disregarded
the previous ruling of this Court, which bound it to refrain exercising any kind of jurisdiction
over the complainant's particular grievance. By doing precisely that, and encouraging the
complainant's litigative proclivities, the State Commission clearly overstepped the bounds of its
jurisdiction. The impugned order virtually sets itself above this Court's determination of the
cause, on the merits.
17. The writ petition has to, for the above reasons, succeed. It is therefore allowed. The
State Commission's impugned order is hereby quashed. The respondent complainant shall bear
the costs of these proceedings, quantified at Rs.25,000/-; it shall be paid to the petitioner,
within six weeks.
(S. RAVINDRA BHAT)
JUDGE
APRIL 30, 2009
W.P. 7490/2007 Page 10
