Kerala High Court
Beaulah Grace Albert vs Rose Jose on 8 September, 2021
WP(C) NO. 1972 OF 2021 1
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
WP(C) NO. 1972 OF 2021
PETITIONER/S:
1 BEAULAH GRACE ALBERT
AGED 38 YEARS
D/O ALBERT HENRY, FLAT NO.4/4221, KSGB HOUSING
COLONY, BILATHIKULAM, ERANHIPALAM P O, KOZHIKODE-
673006, THE CUSTOMER CARE MANAGER, REPRESENTING
POPULAR VECHICLES AND SERVICES PVT, LTD,
CIVIL STATION P O, KOZHIKODE-673001.
2 JOHN K PAUL
AGED 67 YEARS
S/O LATE K P PAUL, 42/1058, KUTTUKKARAN HOUSE,
ST. BENEDICTS ROAD,
ERNAKULAM NORTH, ERNAKULAM , PIN-682018, THE MANAGING
DIRECTOR, POPULAR VEHILCE PVT LTD, CORPORATE OFFICE,
MAMANGALAM, KOCHI-682025.
BY ADVS.
NIRMAL. S
SMT.VEENA HARI
SMT.RIA ELIZABETH JOSEPH
SMT.IRENE ELZA SOJI
RESPONDENT/S:
1 ROSE JOSE
AGE NOT KNOWN TO THE PETITIONER,
W/O JOSE,
2/2278 NI,
SREEKARTHIKA HOUSE, O P RAMAN ROAD, CIVIL STATION P
O, KOZHIKODE-673001.
WP(C) NO. 1972 OF 2021 2
2 JOSE
AGE NOT KNOWN TO THE PETITIONER,
2/2278 NI,
SREEKARTHIKA HOUSE,
O P RAMAN ROAD, CIVIL STATION P O, KOZHIKODE-673001.
3 THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
KANNUR REPRESENTED BY ITS ADMINISTRATIVE OFFICER, THE
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAKKAD
ROAD, AKG NAGAR HOUSING COLONY, PUZHATHI HOUSING
COLONY, KERALA -670002.
BY ADV SRI.R.K.MURALEEDHARAN
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON 08.09.2021 DELIVERED THE FOLLOWING:
WP(C) NO. 1972 OF 2021 3
'CR'
P.V.KUNHIKRISHNAN, J
--------------------------------------------
W.P.(C.) No.1972 of 2021
--------------------------------------
Dated this the 8th day of September, 2021
JUDGMENT
This writ petition is filed with a prayer to transfer CC
No.81/2018 on the file of the District Consumer Disputes
Redressal Forum, Kannur to District Consumer Disputes
Redressal Forum, Kozhikode. The petitioners are the 1st and 2nd
opposite parties in CC No.81/2018, which is a complaint
submitted under Sec.12 of the Consumer Protection Act, 1986
(hereinafter referred to as "the Act 1986") before the District
Consumer Disputes Redressal Forum, Kannur. The first and
second respondents herein are the complainants in the said
case. According to the petitioners, the 1st respondent was
working as the President of Consumer Disputes Redressal
Forum, Kozhikode at the time of filing the complaint. Therefore,
the 1st respondent filed the complaint before the Consumer
Disputes Redressal Forum, Kannur. The case of the petitioners
is that the Consumer Disputes Redressal Forum, Kannur is not
having jurisdiction and no cause of action as alleged in the
complaint arose there, at any point in time. It is the case of the
petitioners that the 1st respondent misused her official position
and various allegations are stated in the writ petition. Hence,
the prayer in this writ petition is to transfer the complaint CC
No.81/2018 pending before the District Consumer Disputes
Redressal Forum, Kannur to the District Consumer Disputes
Redressal Forum, Kozhikode. The first respondent is no longer
the President of the District Consumer Disputes Redressal
Forum, Kozhikode and therefore, there is no prejudice caused, if
the complaint is transferred to the Consumer Disputes
Redressal Forum, Kozhikode. The grievance of the petitioners is
that the petitioners are not in a position to approach the State
Consumer Disputes Redressal Commission (Hereinafter
mentioned as State Commission) because there is no such
power to the State Commission to transfer a case at the
instance of the opposite party. Hence, this writ petition is filed.
2. Heard the learned counsel for the petitioners and the
learned counsel for the 1st and 2nd respondents.
3. When this matter came up for consideration, this
Court doubted the maintainability of the writ petition. The
counsel for the petitioners contended that as per Sec.17A of the
Act 1986 there is no power to the State Commission to transfer
a complaint from one District Forum to another District Forum,
at the instance of a petition from the opposite party in a
complaint. On the other hand, the learned counsel for the 1 st
and 2nd respondents submitted that, even before Sec.17A of the
Act is inserted in the Act 1986, this Court in Malabar Palace v.
The Kerala State Consumer Disputes Redressal
Commission [2002 (2) KLT 461] held that the State Forum has
the power to transfer a case from one District Forum to another.
Therefore, the learned counsel submitted that the writ petition
itself is not maintainable.
4. Before going through the merit of the case, the
question to be decided is whether a complaint filed before the
District Forum need to be transferred to another District Forum
by the High Court invoking the powers under Article 226 of the
Constitution of India and whether the State Commission can
entertain such application, even if it is filed by the opposite
party in a complaint before the District Forum. The petitioners
filed the complaint as per Act 1986. In the Act 1986, there is
specific power to entertain a transfer application by the State
Commission. Sec.17A of the Act 1986 is extracted hereunder :
"17-A. Transfer of cases.-On the application of the
complainant or of its own motion, the State Commission may,
at any stage of the proceeding, transfer any complaint
pending before the District Forum to another District Forum
within the State if the interest of justice so requires."
5. Sec.17A of Act 1986 says that, on the application of
the complainant or of its own motion, the State Commission
may, at any stage of the proceedings, transfer any complaint
pending before the District Forum to another District Forum
within the State, if the interest of justice so requires. So, there
is ample power to the State Commission to transfer a case from
one District Forum to another District Forum, based on an
application filed by the complainant in a case. But, in Sec.17A of
the Act 1986, it is not stated that the transfer is possible based
on an application of the opposite party. But, of course, it is
stated that the State Commission has got ample power to
transfer a case from one District Forum to another District
Forum on "its own motion if the interest of justice, so requires".
Sec.17A was inserted in the Act, 1986 as per the Amendment
Act, 62 of 2002 with effect from 15.3.2003. Till Sec.17A was
inserted in Act 1986, there was no power specifically given in
Act, 1986 to the State Commission to transfer a case from one
District Forum to another District Forum. But even then, this
Court in Malabar Palace's case (supra) held that the State
Commission in the exercise of the powers under Sec.24B(2) r/w
sub-sec. 24B(1)(iii) of Act 1986 can transfer a case from one
District Forum to another District Forum within its jurisdiction
subject to the convenience to the parties, provided the
circumstances justify such transfer. It will be better to extract
the relevant portion in Malabar Palace's case (supra).
"11. I will keep the aforesaid legal principles in mind while
interpreting the provisions of S.17 and 24B of the Act. The
situation requires a close look to the provisions of S.17 and
24B(1)(iii) and (2) of the Act. S.17 reads as follows:
"17. Jurisdiction of the State Commission. - 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
and compensation, if any, claimed exceeds rupees five lakhs,
but does not exceed rupees twenty lakhs, and
(ii) appeals against the orders of any District Forum
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 Forum within the State, where it
appears to the State Commission that such District Forum
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.
S. 24B(1)(iii) and (2) reads as follows:
24B. Administrative Control. - (1) The National
Commission shall have administrative control over all the
State Commissions in the following matter namely: -
(i) xx
(ii) xx
(iii) generally overseeing the functioning of the State
Commission or the District Forum to ensure that the objects
and purposes of the Act are best served without in any way
interfering with their quasi judicial freedom.
(2) The State Commission shall have administrative control
over all the District Forum within its jurisdiction in all
matters referred to in sub-s. (1)."
S.17(b) requires consideration. It gives the power to the State
Commission to call for the records and pass appropriate orders
in any consumer dispute which is pending before any District
Forum within the State (omitted irrelevant portions) where it
appears to the State Commission that the District Forum has
exercised a jurisdiction not vested in it by law, or has acted in
exercise of its jurisdiction illegally or with material irregularity.
If the President of the District Forum who cannot hear a
complaint for the reason which I have already stated as an
illustration proceeds with the complaint and takes a decision
will it not be a case of exercise of a jurisdiction not vested in it
by law or at any rate a case of acting illegally in exercise of its
jurisdiction? According to me such a case falls under the latter
if not under both the clauses. Deciding a case in gross violation
of the principles of natural justice would affect the very
jurisdiction of a quasi judicial tribunal like the District Forum
or at any rate it would amount to an illegality. The expressions
pass appropriate orders' used in S.17(b) of the Act will take in
the power to transfer such a case to another District Forum. In
this view of the matter the State Commission has got the power
under S.17(b) of the Act to call for the records of a case
pending before the District Forum and to pass orders
transferring the same to another Forum within its jurisdiction
provided the circumstances warrants.
12. S.24B(2) of the Act also confers administrative control
over District Forum in respect of matters specified under sub-s.
(1) to the State Commission. Clause (iii) of sub-s. (1) confers
the State Commission the power of generally overseeing the
functioning of the District Forum to ensure that the objects and
purposes of the Act are best served without in any way
interfering with their quasi judicial powers. The object and
purpose of the Act as already stated is to provide for better
protection of the interest of the consumers. If a biased member
decides a complaint filed by a consumer will it subserve the
better protection of the interest of the consumer? It is doubtful.
The transferring of a complaint from one District Forum to
another District Forum does not in any manner interfere with
the quasi judicial freedom of the District Forum. On the other
hand it will only advance the cause of justice and uphold the
prestige of the Forum in a given case. Thus the State
Commission in exercise of the powers under S.24B(2) read with
sub-s. (1)(iii) thereof can also transfer a case from one District
Forum to another District Forum within its jurisdiction of
course subject to the convenience of the parties provided the
circumstances justify such transfer."
6. It is to be remembered that this Court held that the
State Commission can transfer a case from one District Forum
to another District Forum even before Sec.17A is inserted in the
Act, 1986. Even without Sec.17A of the Act, 1986, this Court
observed that in the light of Sec.24B(2) r/w sub-sec.24B(1)(iii)
of the Act 1986, the State Commission has got powers to
transfer a case. Thereafter, Sec.17A is inserted.
7. Now, Act 1986 is substituted by Consumer Protection
Act, 2019, (hereinafter referred to as "Act, 2019"), which
received the assent of the President on 9.8.2019 and was
published in the Gazette of India. The corresponding provision
to Sec.17A of the Act, 1986 in the new Act is Sec.48. Sec.48 of
the Act, 2019 is extracted hereunder :
"48. On the application of the complainant or of its own motion,
the State Commission may, at any stage of the proceeding,
transfer any complaint pending before a District Commission to
another District Commission within the State if the interest of
justice so requires."
8. There is no serious difference between Sec.17A of the
Act, 1986 and Sec.48 of the Act, 2019. Sec.48 of the Act, 2019
also says that on the application of the complainant, or of its
own motion, the State Commission can transfer a case from one
District Commission to another District Commission, if the
interest of justice, so requires. In Sec.48 of the Act, 2019 also,
there is no mention that the transfer application can be
entertained by the State Commission at the instance of an
opposite party before a District Forum.
9. The question is whether a transfer application can be
entertained by the State Commission, at the instance of an
opposite party before the District Commission. According to my
opinion, the opposite party also can approach the State
Commission with an application for transfer from one District
Commission to another District Commission if justice requires a
transfer. If the State Commission feels that in the interest of
justice, the transfer is necessary, the same can be entertained
under Section 17A of Act, 1986 and under section 48 of Act,
2019. The State Commission has got the power to transfer a
case from one District Commission to another District
Commission, on its own motion too. Since there is the power to
transfer a case from one District Commission to another District
Commission on its own motion by the State Commission, the
opposite party in the complaint can bring to the notice of the
State Commission that in the interest of justice, a transfer is
necessary. If such an application is filed, the State Commission
can decide whether a transfer is to be effected invoking its
power under Sec.48 by "own motion". So, there is no
prohibition for an opposite party in the District Commission to
bring to the notice of the State Commission that in the interest
of justice, the complaint is to be transferred from one District
Commission to another District Commission. Once such an
application is received, the State Commission can decide
whether its discretionary power is to be exercised to transfer a
case from one District Forum to another District Forum in the
interest of justice.
10. Moreover, in Malabar Palace's case (supra), this
Court observed that as per Sec.17(b), the State Commission
have jurisdiction to call for the records and pass appropriate
orders in any consumer dispute, which is pending before or has
been decided by any District Forum within the State, where it
appears to the State Commission that such District Forum has
exercised a jurisdiction not vested in it by law or has failed to
exercise jurisdiction, so vested or has acted in exercise of its
jurisdiction illegally or with material irregularity. This Court
relied on, Sec.24B(2) of the Act, 1986 and held that the State
Commission shall have administrative control over all the
District Forums, within its jurisdiction in all matters referred to
in sub-sec. (1) of Sec 24B. As observed in Malabar Palace's
case (supra), it gives power to the State Commission to call for
the records and pass appropriate orders in any consumer
dispute, which is pending before any District Forum, within the
State, where it appears to the State Commission that the
District Forum has exercised a jurisdiction not vested in it, by
law or has acted in exercise of its jurisdiction illegally or with
material irregularity. The corresponding section to Sec.17 of the
Act, 1986 is Sec.47 in the Act, 2019. Sec.47 of the Act, 2019 is
pari materia to Sec.17 of Act, 1986. Sec.47(1)(b) of the Act,
2019 gives the power to the State Commission to call for the
records.
11. In such circumstances, according to me, there is no
bar to the State Commission to transfer a case from one District
Commission to another District Commission at the instance of
an opposite party before the District Commission. The
Consumer Protection Act itself is enacted to protect the interest
of consumers and for the same purpose, to establish authorities
for timely and effective administration and settlement of
consumers' disputes and matters connected therewith or
incidental thereto. If in the interest of justice, if a case is to be
transferred at the instance of an opposite party, it cannot be
held that the State Commission has no jurisdiction. In the
interest of justice, the State Commission itself can act in its own
motion, if there is any ground to transfer a case from one
District Commission to another District Commission. The
opposite party also can approach the State Commission to
transfer a case from one District Forum to another District
Forum. Simply because, it is not specifically stated in Sec.17A of
the Act, 1986 or in Sec.48 of the Act, 2019 that the application
cannot be filed by the opposite party for transferring a case, it
cannot be said that the State Commission has no jurisdiction.
The State Commission can transfer a case in its own motion, if
such a prayer is brought to the notice of the State Commission
by the opposite party also.
12. Moreover, in the light of the principle laid down in
Malabar Palace's case (supra) also, according to me, the State
Commission has got ample power to transfer a case from one
District Forum to another District Forum, if the interest of
justice, requires so. Therefore, according to me, the petitioners
in this writ petition can very well approach the State
Commission to transfer the case, if there are sufficient grounds
to transfer the case, in the interest of justice. All the contentions
of the petitioners in this writ petition are left open. The
petitioners are free to approach the State Commission for
transfer, in the light of the observation in this judgment.
Therefore, with liberty to the petitioners to approach the
State Commission to transfer the case from the District Forum,
Kannur to District Forum, Kozhikode, this writ petition is
dismissed.
The petitioners are given 3 weeks time to approach the
State Commission. Till then, the interim stay of the proceedings
of the District Consumer Disputes Redressal Forum, Kannur
already granted, will continue.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
APPENDIX OF WP(C) 1972/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE C. C 81/2018 BEFORE THE
HON'BLE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, KANNUR ALONG WITH
APPLICATION FOR INTERIM ORDER.
EXHIBIT P2 TRUE COPY OF THE WRITTEN VERSION SUBMITTED
BY THE PETITIONERS BEFORE THE HON'BLE
DISTRICT REDRESSAL FORUM, KANNUR IN CC.
81/2018.
EXHIBIT P3 TRUE COPY OF THE IA 348/2018 IN CC 81/2018.
EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT IN IA
348/2018.
EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT & PETITION TO
REFUND THE COLLECTED AMOUNT.
EXHIBIT P6 TRUE COPY OF THE COUNTER STATEMENT DATED
08/11/2019.
EXHIBIT P7 THE AFFIDAVIT DATED 23/01/2021.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 11/01/2021 IN
CC 81/2018.
EXHIBIT P9 TRUE COPY OF THE RTI APPLICATION DATED
22.1.2021 PREFERRED THE COUNSEL APPEARING
FOR THE PETITIONERS HEREIN BEFORE THE COURT
BELOW
EXHIBIT P10 TRUE COPY OF THE RTI REPLY NO.A266/2019
DATED 17/02/2021 ISSUED BY THE 3RD
RESPONDENT
RESPONDENT EXHIBITS
EXHIBIT R1(a) A TRUE COPY OF THE TRANSFER ORDER DATED
15/02/2018 ISSUED BY THE PRESIDENT OF THE
COMMISSION.
EXHIBIT R1(b) A TRUE COPY OF THE STATEMENT RECEIVED FROM
THE CANARA BANK, WEST HILL BRANCH,
KOZHIKODE.
EXHIBIT R1(c) A TRUE COPY OF THE PRINTOUT RECEIVED FROM
JIO FOR TELEPHONE NUMBER 7012307348.
