Kerala High Court
Madhavadas @ Shaji vs Bhaskaran Nair on 3 March, 2025
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
WP(C) NO. 20356 OF 2024
PETITIONER:
MADHAVADAS @ SHAJI
AGED 43 YEARS
S/O. BHASKARAN, THEKKEDETH HOUSE, KUNISSERY AMSOM,
KUNISSERY P.O., ALATHUR TALUK, PALAKKAD, PIN -
678681
BY ADVS.
GIRISH KUMAR M S
AKASH S.
ANJALI MENON
LIMA.J
RICHU THERESA ROBERT
RESPONDENT:
BHASKARAN NAIR
AGED 80 YEARS
MANGHAT HOUSE THEKKETHARA, KUNISSERY AMSOM,
KUNISSERY P.O., ALATHUR TALUK, PALAKKAD, PIN -
678681
BY ADV ARJUN S.
OTHER PRESENT:
SRI. ARJUN. S, FOR THE RESPONDENT.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.10.2024, THE COURT ON 03.03.2025 DELIVERED
THE FOLLOWING:
WP(C).No.20356/2024
2
V.G.ARUN, J
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W.P.(C).No.20356 of 2024
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Dated this the 3rd day of March, 2024
JUDGMENT
The writ petition is filed challenging the concurrent
orders of the three forums under the Consumer Protection Act,
2019 ('the Act' for short). The essential facts, leading upto the
filing of the writ petition, are as under;
The respondent had entered into an agreement with the
petitioner for the construction of a new RC building, by
demolishing the respondent's old house. Alleging that, after
receiving advance the petitioner failed to complete the work,
the respondent approached the District Consumer Redressal
Commission, Palakkad claiming compensation of Rs.5 lakhs for
the mental agony and financial loss suffered, Rs.4,52,000/-
towards the amount expended for completing the balance work
and Rs.25,000/- towards the cost of the litigation. The
petitioner's failure to file his version within the statutory period
resulted in him being set ex parte and the District Commission
passing Ext.P4 order allowing the complaint as such.
Aggrieved, the petitioner preferred an appeal before the State
Consumer Disputes Redressal Commission, but with a delay of
145 days. As the State Commission was not satisfied with the
explanation offered for the delay, the petition for condonation of
delay and consequently, the appeal was dismissed as per
Exts.P8 and P9 orders. The revision petition filed before the
National Consumer Disputes Redressal Commission also got
dismissed as per Ext.P11. Hence, this writ petition under
Article 226 seeking the following reliefs;
i. to call for the records leading up to Exts P3 and P4
orders of the District Consumer Disputes Redressal
Commission, Palakkad and quash the same by a writ of
certiorari or any other appropriate writ, order or direction;
ii. to call for the records leading up to Exts P8 and P9
orders of the Kerala State Consumer Disputes Redressal
Commission and quash the same by a writ of certiorari or
any other appropriate writ, order or direction;
iii. to call for the records leading up to Ext P11 order of
the National Consumer Disputes Redressal Commission
and quash the same by a writ of certiorari or any other
appropriate writ, order or direction."
2. Learned counsel for the petitioner contended that
Ext.P11 order of the National Commission is ex facie illegal, the
order having been passed by a single Member, contrary to the
stipulation in Section 58(2) of the Act and Rule 16(2) of the
Consumer Protection (Consumer Disputes Redressal
Commissions) Rules, 2020. According to the counsel, a conjoint
reading of the aforementioned provisions leads to the
irrefutable conclusion that the Bench of the National
Commission should consist of at least two members. It is hence
contended that Ext.P11 order is hit by the doctrine of coram
non-judice. It is then argued that the failure of the opposite
party to file his version within the statutory period did not
empower the District Commission to decide the complaint ex
parte and even if the version is not filed, the opposite party
should have been permitted to participate in the proceedings.
Support for this argument is sought to be drawn from the
decision of this Court in Saint -Gobain India Pvt.Ltd (M/s.) v.
Deepak Achuthan [2024 4 KHC 183] and that of the Apex
Court in ARN Infrastructure India Limited v. Hara Prasad
Ghosh [2023 LiveLaw (SC) 763]. It is also the contention of
the counsel that the State Commission grossly erred in
dismissing the petition for condonation of delay in filing the
appeal, in spite of the petitioner offering an acceptable
explanation.
3. Learned counsel for the respondent raised a
preliminary objection as to the maintainability of the writ
petition by relying on the decision of the Division Bench in Dr
Valsamma Chacko v. Leelamma Joseph [2024 (4) KLT 907].
It is contended that an order passed by the National
Commission situated in Delhi cannot be entertained by this
Court.
4. The learned counsel for the petitioner countered the
contention by placing reliance on the decision of the Supreme
Court in Siddhartha S.Mookerjee v. Madhab Chand Mitter
[2024 KHC 8321]. It is pointed out that Dr.Valsamma Chacko
(supra) was rendered without taking note of the decision in
Siddhartha S. Mookerjee (supra) and a learned single Judge
of the High Court of Delhi has noted this omission in General
Manager Punjab National Bank v. Rohit Malhotra [2024
KHC OnLine 13584] Moreover, as the writ petition is filed
under Article 226 of the Constitution of India, the issue of
jurisdiction is dependent on the cause of action and not the seat
of the authority whose order is under challenge.
5. The question whether the orders of the National
Consumer Redressal Commission are amenable to writ
jurisdiction is no longer res integra in view of the declaration of
law in Ibrat Faizan v. Omaxe Buildhome Private Limited
[(2023) 11 SCC 594] , the relevant portion of which reads as
under;
''18. Whether the National Commission can be said to be a
"tribunal" for the purpose of exercise of powers under Article 227
of the Constitution by the High Court is concerned, has been
considered by a Constitution Bench of this Court in Associated
Cement Companies [Associated Cement Companies Ltd. v. P.N.
Sharma, 1964 SCC OnLine SC 62 : AIR 1965 SC 1595] , which is
required to be referred to. In paras 44 and 45, it is observed and
held as under : (SCC p. 1609)
"44. An authority other than a court may be vested by statute with
judicial power in widely different circumstances, which it would be
impossible and indeed inadvisable to attempt to define exhaustively.
The proper thing is to examine each case as it arises, and to ascertain
whether the powers vested in the authority can be truly described as
judicial functions or judicial powers of the State. For the purpose of this
case, it is sufficient to say that any outside authority empowered by
the State to determine conclusively the rights of two or more
contending parties with regard to any matter in controversy between
them satisfies the test of an authority vested with the judicial powers
of the State and may be regarded as a tribunal within the meaning of
Article 136. Such a power of adjudication implies that the authority
must act judicially and must determine the dispute by ascertainment of
the relevant facts on the materials before it and by application of the
relevant law to those facts. This test of a tribunal is not meant to be
exhaustive, and it may be that other bodies not satisfying this test are
also tribunals. In order to be a tribunal, it is essential that the power of
adjudication must be derived from a statute or a statutory rule. An
authority or body deriving its power of adjudication from an agreement
of the parties, such as a private arbitrator or a tribunal acting under
Section 10-A of the Industrial Disputes Act, 1947, does not satisfy the
test of a tribunal within Article 136. It matters little that such a body or
authority is vested with the trappings of a court. The Arbitration Act,
1940 vests an arbitrator with some of the trappings of a court, so also
the Industrial Disputes Act, 1947 vests an authority acting under
Section 10-A of the Act with many of such trappings, and yet, such
bodies and authorities are not tribunals.
45. The word "tribunal" finds place in Article 227 of the Constitution also,
and I think that there also the word has the same meaning as in Article
136."
Therefore, the National Commission can be said to be a "Tribunal"
which is vested by statute with the powers to determine conclusively
the rights of two or more contending parties with regard to any matter
in controversy between them. Therefore, as observed hereinabove in
the aforesaid decision, it satisfies the test of an authority vested with
the judicial powers of the State and therefore may be regarded as a
"Tribunal" within the meaning of Article 227 and/or 136 of the
Constitution. Also, in a given case, this Court may not exercise its
powers under Article 136 of the Constitution, in view of the remedy
which may be available to the aggrieved party before the High Court
concerned under Article 227 of the Constitution, as it is appropriate
that aggrieved party approaches the High Court concerned by way of
writ petition under Article 227 of the Constitution."
6. The legal position that the remedy of appeal against the
orders of the NCDRC to the Supreme Court is available only
with respect to the orders passed by the National Commission
in exercise of its original jurisdiction is also settled by the
recent decision in Universal Sompo General Insurance
Company Limited. v. Suresh Chand Jain and Another
[(2024) 9 SCC 148], the contextually relevant paragraph of
which is extracted below;
"17. A plain reading of the aforesaid provisions of the 1986
Act and the 2019 Act, respectively, would indicate that the
remedy of appeal to this Court is available only with respect to
the orders passed by NCDRC in exercise of its powers conferred by
Section 21(a)(i) of the 1986 Act and Section 58(1)( a)(i) or 58(1)
(a)(ii) of the 2019 Act. In other words, both the Acts provide for
the remedy of appeal to this Court only with respect to the
orders which are passed by NCDRC in its original jurisdiction or as
the court of first instance (original orders) and no further appeal
lies against the orders which are passed by NCDRC in exercise of
its appellate or revisional jurisdiction."
7. The other question is whether the decision of the
NCDRC situated in Delhi can be challenged before the High
Court of Kerala. The Division Bench of this Court in
Dr.Valsamma Chacko answered the question in the following
manner;
"9.On an analysis of the above precedents, we find that
the Hon'ble Supreme Court in Alapan Bandyopadhyay (supra)
has categorically held that the law laid down by the Constitution
Bench in L.Chandrakumar's case is to the effect that the power
under Art.227 can be exercised only over the courts and tribunals
situated within the territorial limits of the respective High Courts.
True, another bench of two judges of the Apex Court has made a
reference to larger bench about the conclusions in Alapan
Bandyopadhyay as we find in Union of India v. Sanjiv
Chaturvedi and others (supra). Nevertheless, the proposition
laid down in Alapan Bandyopadhyay is still binding on us
despite the reference. Nothing contrary to the said proposition is
laid down either in Ibrat Faizan or Universal Sompo General
Insurance Company Limited. Obviously, Apex Court, in the
judgment in Alapan Bandyopadhyay cautions that when a
Constitution Bench lays down the law it is impermissible to make
any further construction on the said issue. This was said after
specifically referring to the following elucidation by the
Constitution Bench in Chandrakumar - "All decisions of these
Tribunals will, however, be subject to scrutiny before a Division
Bench of the High Court within whose jurisdiction the concerned
Tribunal falls." As we have referred above, in Ibrat Faizan it has
been held that NCDRC can be regarded as a tribunal within the
meaning of Art.227. Hence, a close reading and comprehensive
analysis of the precedents leads us to the conclusion that this
Court can exercise the jurisdiction under Article 227 only over
those courts and tribunals situated within the territorial limits of
this Court. Hence, over the NCDRC, falling within the territorial
jurisdiction of the Delhi High Court, this Court has no supervisory
jurisdiction under Art.227.''
8. As contended by the counsel for the petitioner, in
Siddhartha S.Mookerjee the Apex Court held that, the seat of
the NCDRC which had passed the impugned order being at
Delhi cannot be treated as a ground to invoke the jurisdiction of
the High Court of Delhi. Therein it was held that the parties
should have approached the High Court of Kolkata, since the
case had arisen in Kolkata. The counsel is also correct in his
submission that Siddhartha S Mookerjee was not taken note
of by the Division Bench, while rendering the judgment in
Dr.Valsamma Chacko. Be that as it may, I am not venturing to
decide upon the correctness of the Division Bench decision,
since the instant writ petition is filed under Article 226 and not
Article 227 of the Constitution.
9. The remaining question is whether this is a fit case to
exercise the extraordinary power under Article 226. While
answering the question, it will be profitable to bear in mind the
following principles laid down by the Apex Court in Central
Council for Research in Ayurvedic Sciences v. Bikartan
Das [AIR 2023 SC 4011];
"64.Thus, from the various decisions referred to above, we
have no hesitation in reaching to the conclusion that a writ of
certiorari is a high prerogative writ and should not be issued on
mere asking. For the issue of a writ of certiorari, the party
concerned has to make out a definite case for the same and is
not a matter of course. To put it pithily, certiorari shall issue to
correct errors of jurisdiction, that is to say, absence, excess or
failure to exercise and also when in the exercise of undoubted
jurisdiction, there has been illegality. It shall also issue to correct
an error in the decision or determination itself, if it is an error
manifest on the face of the proceedings. By its exercise, only a
patent error can be corrected but not also a wrong decision. It
should be well remembered at the cost of repetition that
certiorari is not appellate but only supervisory.
65. A writ of certiorari, being a high prerogative writ, is
issued by a superior court in respect of the exercise of judicial or
quasi-judicial functions by another authority when the contention
is that the exercising authority had no jurisdiction or exceeded
the jurisdiction. It cannot be denied that the tribunals or the
authorities concerned in this batch of appeals had the jurisdiction
to deal with the matter. However, the argument would be that
the tribunals had acted arbitrarily and illegally and that they had
failed to give proper findings on the facts and circumstances of
the case. We may only say that while adjudicating a writ-
application for a writ of certiorari, the court is not sitting as a
court of appeal against the order of the tribunals to test the
legality thereof with a view to reach a different conclusion. If
there is any evidence, the court will not examine whether the
right conclusion is drawn from it or not. It is a well-established
principle of law that a writ of certiorari will not lie where the
order or decision of a tribunal or authority is wrong in matter of
facts or on merits. (See: King v. Nat Bell Liquors Ltd., (1922)2 A
C 128 (PC)"
10. In the case at hand, the orders of the District Forum
and State Commission have attained finality by Ext.P11 order of
the National Commission. The challenge against Ext.P11 is on
the premise that as per Section 58(2) of the Act, the
jurisdiction, powers and authority of the National Commission
can be exercised only by Benches consisting of more than one
member. The said contention cannot be countenanced, even
going by the plain words of Section 58(2) extracted below;
"(2) The jurisdiction, powers and authority of the National
Commission may be exercised by Benches thereof and a Bench
may be constituted by the President with one or more members
as he may deem fit: Provided that the senior-most member of
the Bench shall preside over the Bench."
(underline supplied)
11. A reading of above provision makes it clear that the
jurisdiction and powers can be exercised by a Bench with one
or more Members constituted by the President. Therefore,
Ext.P11 order passed by a Bench consisting of one Member is
in tune with Section 58(2) and the challenge on the ground is
liable to be rejected. This Court also finds no reason to
interfere with the order of the State Commission, since the
exercise of discretion by the Commission, in deciding to dismiss
the delay condonation application and the appeal, is not so
patently illegal as to warrant the issuance of a writ of
certiorari, in spite of confirmation of the orders by the National
Commission. The contentions based on which the writ of
certiorari is sought to be issued having thus been found
unsustainable, the question whether the writ petition filed
under Article 226 is maintainable, has lost its relevance. The
fact that the 1st respondent is aged more than 81 years and had
fought the case up to the National Commission, also deters this
Court from invoking the extraordinary jurisdiction.
For the aforementioned reasons, the writ petition is
dismissed.
sd/-
V.G.ARUN, JUDGE
sj
APPENDIX OF WP(C) 20356/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT IN C.C. NO.
201/2022 FILED BY THE RESPONDENT BEFORE
THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, PALAKKAD
Exhibit P2 TRUE COPY OF THE AGREEMENT DATED
22/09/2018 ENTERED INTO BETWEEN THE
RESPONDENT AND THE PETITIONER
Exhibit P3 TRUE COPY OF THE ORDER DATED 16/05/2023
OF THE DISTRICT COMMISSION SETTING THE
PETITIONER EX PARTE
Exhibit P4 TRUE COPY OF THE ORDER DATED 11/07/2023
IN C.C. NO. 201/2022 OF THE DISTRICT
CONSUMER DISPUTES REDRESSAL COMMISSION,
PALAKKAD
Exhibit P5 TRUE COPY OF THE APPEAL MEMORANDUM IN
APPEAL NO. 84/2024 BEFORE THE KERALA
STATE CONSUMER DISPUTES REDRESSAL
COMMISSION FILED BY THE PETITIONER
Exhibit P6 TRUE COPY OF THE I.A. NO. 174/2024 IN
APPEAL NO. 84/2024 FILED BY THE
PETITIONER SEEKING CONDONATION OF DELAY
Exhibit P7 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT TO I.A. NO. 174/2024 IN
APPEAL NO. 84/2024 ON THE FILE OF THE
STATE CONSUMER REDRESSAL COMMISSION,
THIRUVANANTHAPURAM
Exhibit P8 TRUE COPY OF THE ORDER DATED 09/04/2024
IN I.A. NO. 174/2024 IN APPEAL NO.
84/2024 OF THE KERALA STATE CONSUMER
DISPUTES REDRESSAL COMMISSION
Exhibit P9 TRUE COPY OF THE ORDER DATED 09/04/2024
IN APPEAL NO. 84/2024 OF THE KERALA
STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Exhibit P10 TRUE COPY OF THE MEMORANDUM OF REVISION
PETITION IN R.P. NO. 1148/2024 FILED BY
THE PETITIONER BEFORE THE NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
Exhibit P11 TRUE COPY OF THE ORDER DATED 26/04/2024
IN R.P. NO. 1148/2024 OF THE NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
