Orissa High Court

M/S. Balimela Hydro Electric vs District Consumer Redressal on 15 December, 2021

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                           W.P.(C) No.32749 of 2021
                            (Through hybrid mode)

            M/s. Balimela Hydro Electric        ....           Petitioner
            Project (Unit of Odisha Hydro
            Power Corporation Ltd.)
                                         Mr.D.P.Nanda, Senior Advocate
                                      -versus-

            District Consumer Redressal           ....      Opposite Parties
            Commission and anot her
                                                   Mr.V.Mishra, Advocate


                     CORAM: JUSTICE ARINDAM SINHA
                                      ORDER

15.12.2021 Order No.

03. 1. Mr. Nanda, learned senior advocate appears on behalf of petitioner and submits, counter has not been filed by opposite party no.2 inasmuch as his client has not received copy. What was sent by opposite party is order dated 6th August, 2012 of the Supreme Court in S.L.P.(C) nos.24228- 24229 of 2012 (CC nos. 12891-12892 of 2012) (Cicily Kallarackal v. Vehicle Factory).

2. Mr. Mishra, learned advocate appears on behalf of opposite party no.2 and on query from Court submits, his client has not filed counter in spite of direction given in paragraph 3 of order dated 16th November, 2021 because the case can be disposed of on the point of law decided by order dated 6th

// 2 //

August, 2012 (supra). He relies on paragraphs 2 and 7 of the order. It will be sufficient to reproduce paragraph-7.

"7. While declining to interfere in the present Special Leave Petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the order of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27 A (1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission.

             A copy of this order may be sent to           the
       Registrar General of all the High Courts,           for
       bringing the same to the notice of Hon'ble          the
       Chief Justices and Hon'ble Judges of                the
       respective High Courts."

He submits, the Supreme Court in a Petition for Special Leave to Appeal no.14434 of 2021 (STUC Awasiya Grahak Kalyaan Association vs. M/s Supertech Ltd.) by order dated 21st November, 2021 directed issuance of notice, on petitioner relying on Cicily Kallarackal (supra).

3. He submits further, his client invoked jurisdiction of the district Commission by filing the complaint as his client resides or personally works for gain within its local limits of jurisdiction. This has been provided under clause (d) in sub- section (2) of section 34, Consumer Protection Act, 2019. If petitioner is aggrieved, there is statutory remedy of appeal against order of district Commission, provided in section 41.

// 3 //

On query from Court he submits, the case was heard and reserved for judgment on 8th November, 2021. This was not told to Court earlier as he didn't have that instruction, when on 16th November, 2021, his client was directed to file counter. According to him, both omissions, regarding the district Commission case heard ex-parte and reserved for judgment and his client not filing counter, cannot be held against his client since no High Court has jurisdiction to entertain writ petitions against orders of the Commission as declared in Cicily Kallarackal (supra) and relied upon in Kalyaan Association (supra). When interference against orders of National Commission is barred, the bar covers all Commissions. His client is not obliged to comply with any direction issued in exercise of writ jurisdiction, having had approached the district Commission.

4. Text of order dated 16th August, 2021 is reproduced below:-

"1. Mr. Nanda, learned senior advocate appears on behalf petitioner and submits, a frivolous complaint has been lodged in the Regional Branch of the State Commission of Uttar Pradesh (UP), at Aligarh. Opposite party is complainant, who rendered service to his client under a tender. The work was executed in Odisha. Impugned notice stands issued by the Commission, against which his client seeks issuance of writ of prohibition under clause (2) in article, 226 of the Constitution of India.

2. Mr. Mishra, learned advocate appears on behalf of opposite party no.2 complainant and submits, this Court does not have territorial jurisdiction over the Regional Branch of the State Commission at Aligarh. No writ can be issued

// 4 //

against opposite party no.1. Furthermore, section 34 in Consumer Protection Act, 2019 enables a person such as his client to invoke jurisdiction of the Regional State Commission. He submits, his client has provided service to petitioner and seeks payment therefor.

3. This Court will decide on the question of jurisdiction, both of itself and thereafter, if necessary, of the Regional State Commission. For purpose of adjudication, opposite party no.2 will file counter disclosing the complaint made to the Regional State Commission and English translation, if same is in vernacular. Copy of the counter must be served on petitioner by 30th November, 2021. Petitioner will be entitled to use rejoinder on advance copy served. Affidavits will be accepted on adjourned date.

4. List on 6th December, 2021.

5. Mr. Nanda, prays for stay of proceeding in the State Commission at Aligarh. Petitioner has liberty to produce this order before the Commission and pray for adjournment."

The situation in absence of the information as on 16th November, 2021 was, Court given to understand that only a notice had been issued by the district Commission, impugned in the writ petition. Now it appears, judgment has been reserved on ex-parte hearing.

5. Today Mr. Nanda points out from impugned notice that address of opposite party no.2, complainant in the case before the Commission at Aligarh, was given at New Delhi being, according to him, registered office of said party. Therefore, on the face of impugned notice there is clear indication that the

// 5 //

Commission at Aligarh could not be moved by opposite party no.2, on claiming it resides or personally works for gain within local limits of jurisdiction of that Commission. He relies on following judgments of the Supreme Court:

(i) Govinda Menon Vs. Union of India reported in AIR 1967 SC 1274, paragraph 4 reproduced below:

"The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice (See Halsbury's Laws of England, 3rd Edn., Vol. II, p. 114). It was held for instance by the Court of Appeal in The King v. North 1927 (1) K.B. 491 that as the order of the judge of the consistory court of July 24, 1925 was made without giving the vicar an opportunity of being heard in his defence, the order was made in violation of the principles of natural justice and was therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. It is also well-established that a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its jurisdiction (See Regina v. Comptroller-General of Patents and Designs, 1953 (2) W.L.R. 760, 765 and Parisienne Basket Shoes Proprietary Ltd. v. Whyte 59 C.L.R. 369). A

// 6 //

clear distinction must therefore be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non Judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue, proceedings therein in excess of its jurisdiction."

(ii) Navinchandra N. Majithia Vs. State of Maharashtra, reported in AIR 2000 SC 2966.

He submits, the learned Judges in the Division Bench gave separate concurring views. It will be sufficient to extract and reproduce paragraph 13 from view expressed by K.T. Thomas, J.

"We make it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in the particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case."

6. In Navinchandra (supra) it is noticed that the FIRs were registered in places outside territorial limits of Bombay High Court but, the writ petition was filed in that Court.

// 7 //

Paragraph 13 reproduced in the last preceding paragraph is to be seen in context of such facts, for the declaration of law on 'cause of action' referred in article 226 in the Constitution of India. In Govinda Menon (supra), there was declaration of law regarding issuance of writ of prohibition.

7. In spite of record in order dated 16th November, 2021, opposite party no.2 chose to obstruct adjudication on the question of jurisdiction of this Court and thereafter whether or not the Commission at Aligarh is to be served writ of prohibition, by not disclosing its complaint. It also suppressed that the case was already heard ex-parte and judgment reserved. Obviously the party is so emboldened as armed with Cicily Kallarackal (supra).

8. It appears from Cicily Kallarackal (supra), in deciding the controversy, reference to factual controversy was said as not necessary. The Special Leave Petitions, though dismissed on ground of delay, following, reproduced below and extracted paragraph 7 reproduced earlier, were said.

"Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India.

// 8 //

Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds."

On query from Court parties have not been able to point out the provision, neither in Consumer Protection Act, 1986 nor Consumer Protection Act, 2019, on ouster of jurisdiction of Courts exercising writ jurisdiction.

9. Article 226 in the Constitution is a provision notwithstanding anything in article 32. Article 32 of the Constitution provides for remedies for enforcement of rights conferred by Part-III. Clause (2) in the article gives power to the Supreme Court to issue directions or orders or writs for enforcement of those rights. It is, therefore, clear that article 226 confers wider power on the High Courts. The Supreme Court in numerable decisions has said that the High Courts can be moved under article 226 of the Constitution although statutory alternative remedy is available, depending on the criteria declared, inter alia, in Whirlpool Corporation vs. Registrar Of Trade Marks, Mumbai, reported in AIR 1999 SC 22.

10. The High Courts are constitutional Courts while the Consumer Forums/Councils and the National Commission are authorities created by legislation on act of Parliament. It does not appear from Cicily Kallarackal (supra) that there was adjudication whether the Division Bench of the Kerala High Court entertained the writ appeal against the judgment and

// 9 //

order passed by the National Consumer Disputes Redressal Commission, on a question within or without the scope of article 226 in the Constitution of India. There could not have been. The Special Leave Petitions were dismissed without issuance of notice. The dismissal was on the ground of inordinate delay, yet the caution, as seen and relied upon by opposite party no.2 to be a severe reprimand for exercising writ jurisdiction in matters under the Act of 1986 and now 2019. On the Special Leave Petitions dismissed, there was no appeal before the Supreme Court, for the order to be law declared as under article 141. However, there was direction in said order for circulation to all High Courts.

11. This Court notes with dismay, conduct of opposite party no.2. It is exactly that, which the Supreme Court said would happen unless appellate Courts exercise restraint. In A. M. Mathur v. Pramod Kumar Gupta, reported in (1990) 2 SCC 533, said Court said in paragraph 13 of the judgment, reproduced below.

"13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is respect by the judiciary. Respect to those who come before the court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and

// 10 //

public believe that the Judge has failed in these qualities, it will be neither good for the Judge nor for the judicial process."

12. The High Courts are not subordinate to the Supreme Court as the Constitution did not provide an article empowering superintendence of the Supreme Court, corresponding to article 235. In this context may be seen judgment of the Supreme Court in Amar Pal Singh vs. State of Uttar Pradesh, reported in (2012) 6 SCC 491, paragraphs 1 and 15 reproduced below.

"1. The present appeal frescoes a picture and exposits a canvas how, despite numerous pronouncements of this Court, while dealing with the defensibility of an order passed by a Judge of subordinate court when it is under assail before the superior court in appeal or revision, the imperative necessity of use of temperate and sober language warranting total restraint regard being had to the fact that a judicial officer is undefended and further, more importantly, such unwarranted observations, instead of enhancing the respect for the judiciary, creates a concavity in the hierarchical system and brings the Judiciary downhill, has been totally ostracised. Further, the trend seems to be persistent like an incurable cancerous cell which explodes out at the slightest imbalance.

xx xx xx

15. In Ishwar Chand Jain v High Court of P & H it has been observed that while exercising control over the subordinate judiciary under Article 235 of the Constitution, the High Court is under a constitutional obligation to guide and protect the subordinate judicial officers."

// 11 //

13. Facts in this case are glaring. On behalf of opposite party no.2, there was no dispute to the submission of petitioner that said opposite party executed work under a contract and everything in relation thereto happened in Odisha. Clause (ii) in sub-section (7) under section 2 of Consumer Protection Act, 2019 makes the hirer or person availing service for consideration, to be consumer. Opposite party no.2 appears to be service provider. Nevertheless, this Court is bound by the caution in Cicily Kallarackal (supra) and will not entertain the writ petition.