The Controller Of Examinations vs Sreya N
2021 Latest Caselaw 18075 Ker

WP(C) NO. 5679 OF 2021                   1




                                                                        'CR'
                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
            THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                               WP(C) NO. 5679 OF 2021
PETITIONER/S:

      1        THE CONTROLLER OF EXAMINATIONS
               KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O.,
               KANNUR DISTRICT.

      2        THE KANNUR UNIVERSITY
               REP.BY ITS REGISTRAR, THAVAKKARA, CIVIL STATION
               P.O., KANNUR DISTRICT.

               BY ADV M.SASINDRAN



RESPONDENT/S:

               SREYA N.,

               D/O.NARAYANAN P.K., 'SREYAS', FARM ROAD, KARIMBAM
               P.O., KANNUR DISTRICT 670 142.


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    03.09.2021,        THE    COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 5679 OF 2021              2




                                                        'CR'
                      P.V.KUNHIKRISHNAN, J
                --------------------------------------------
                     W.P.(C.) No.5679 of 2021
                   --------------------------------------
            Dated this the 3rd day of September, 2021


                                JUDGMENT

The petitioners in this writ petition are the Controller of

Examinations, Kannur University, and the Kannur University,

represented by its Registrar. This writ petition is filed

challenging Ext.P5 order passed by the District Consumer

Disputes Redressal Commission, Kannur (for short "CDRC").

The main contention of the petitioners is that the CDRC has

no jurisdiction to entertain Ext.P1 application and the

petitioners raised a maintainability issue of Ext.P1 before the

commission, but as per Ext.P5, the CDRC rejected the

contention of the petitioners and found that the complaint is

maintainable. Challenging Ext.P5, this writ petition is filed.

2. Heard the learned Standing Counsel for the

petitioners.

3. When this writ petition came up for consideration,

this Court requested the counsel to argue about the

maintainability of the writ petition against Ext.P5 order, when

there is a statutory remedy to the petitioners by way of filing

an appeal against it before the State Commission, as per the

Consumer Protection Act, 2019 (for short Act 2019). The

counsel for the petitioners conceded that the petitioners can

challenge Ext.P5 before the State Commission by filing an

appeal. But, the counsel submitted that the CDRC entertained

Ext.P1 complaint, without jurisdiction. The Standing Counsel

relied the judgment of the Apex Court in Whirpool

Corporation v. Registrar of Trade Marks, Mumbai and

others [1998 KHC 1225] and also a judgment of this Court in

Principal, St.Joseph College of Communication v.

Consumer Disputes Redressal Forum and others [2010

KHC 6214]. The counsel also submitted that the decision

relied in Ext.P5 order [CPJ 2016 (III) NC 280] is already

reversed by the National Consumer Disputes Redressal

Commission (NCDRC). That decision is also produced [CDJ

2020 (Cons.) Case No.036]. The counsel submitted that the

order passed by the CDRC is unsustainable and the complaint

itself is not maintainable before the CDRC.

4. The contention of the petitioners that the writ court

can entertain a writ petition in certain circumstances even if

there is an alternative remedy is a settled position. This is the

principle laid down by the Apex Court in Whirlpool

Corporation's case (supra). The relevant portion is extracted

hereunder :

"14. The power to issue prerogative writs under Art.226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Art.226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not 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 Fund amental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point put to cut down this circle of forensic Whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

5. Even though the Apex Court observed that in certain

contingencies, this Court can entertain a writ petition under

Article 226 of the Constitution of India, the High Court can

use its discretion either to entertain such writ petition or to

reject it. Specific averments are necessary in the writ petition

for not availing the statutory remedy of appeal when an

appealable order is challenged by filing a writ petition under

Article 226 of the constitution of India. Simply stating that the

authority who passed the order has no jurisdiction alone is not

sufficient to invoke the jurisdiction under Art.226 of the

constitution, especially when the appellate authority also can

consider the question of jurisdiction. This court need not

entertain writ petitions to interfere with orders passed by

authorities without jurisdiction in all situations when a

statutory remedy is available. This court can use discretion

while entertaining such writ petitions considering the facts

and circumstances of each case.

6. Here is a case, where Ext.P5 is admittedly an

appealable order. When there is a statutory remedy against

Ext.P5 order as per the Consumer Protection Act, 2019, this

Court need not entertain a writ petition unless there are

compelling reasons. The petitioners are the University and its

authorities. They can approach the State Commission, instead

of filing a writ petition before this Court under Art 226 of the

constitution of India. I think there is a camp sitting of the

State Commission in some of the centres in Kerala and the

principal sitting is at Thiruvananthapuram. Nothing is

mentioned in the writ petition which prevents the writ

petitioners to move an appeal against Ext.P5 order before the

State Commission except the contention that CDRC has no

jurisdiction to entertain Ext P1 complaint. Sec.41 of the Act,

2019 deals with appeal against the order of the District

Commission. The same is extracted hereunder :

"41. Appeal against order of District Commission - Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Commission, shall be entertained by the State Commission

unless the appellant has deposited fifty per cent of that amount in the manner as may be prescribed:

Provided also that no appeal shall lie from any order passed under sub-section (1) of section 81 by the District Commission pursuant to a settlement by mediation under section 80."

7. Similarly Sec.47 of Act 2019 says about the

jurisdiction of State Commission. Sec.47 is also extracted

hereunder :

"47. Jurisdiction of State Commission - (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--

(a) to entertain--

(i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:

Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;

(ii) complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees;

(iii) appeals against the orders of any District Commission within the State; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.

(2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Bench may be constituted by the President with one or more members as the President may deem fit: Provided that the senior-most member shall preside over the Bench. (3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall

either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it: Provided that the President or the other members, as the case may be, shall give opinion on the point or points so referred within a period of one month from the date of such reference.

(4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or

(c) the cause of action, wholly or in part, arises; or

(d) the complainant resides or personally works for gain."

8. Sec.47(1)(b) says that the State Commission shall

have jurisdiction to interfere when it appears to the State

Commission that such District Commission has exercised a

jurisdiction not vested in it by law. So the jurisdiction question

also can be decided by the State Commission. Then what is

the reason to file this writ petition before this Court is not

clear. If the petitioners can engage a lawyer to file a writ

petition in High Court, they can very well engage a lawyer at

Thiruvananthapuram to file an appeal before the State

Commission against Ext.P5. If this Court starts to entertain

writ petition against orders of CDRC, there will not be any end

to it. This Court is even otherwise burdened with huge

pendency of cases.

9. In such a situation, according to me, this writ

petition can be dismissed with the liberty to file an appeal

against Ext.P5 order in accordance with law. I make it clear

that I have not considered the matter on merit and the

petitioners and the respondent are free to agitate their

contentions before the appellate authority and before the

CDRC, Kannur. All questions raised in this writ petition are

left open.

Therefore, this writ petition is dismissed, with liberty to

the petitioners to file a statutory appeal, as per the Consumer

Protection Act, if they advised so.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 5679/2021

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE COMPLAINT FILED BY THE RESPONDENT BEFORE THE CONSUMER DISPUTE REDRESSAL FORUM, KANNUR

EXHIBIT P2 A TRUE COPY OF THE VERSION FILED BY THE 1ST PETITIONER BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, KNNUR.

EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 12.4.2017 IN W.P.(C).NO.13732 OF 2017.

EXHIBIT P4 A TRUE COPY OF THE AFFIDAVIT PLACED BY THE 1ST PETITIONER BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 9.12.2020 PASSED BY THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR IN I.A.NO.456/2015 IN C.C.NO.13/2018.