Orissa High Court
Tpwodl vs District Consumer Dispute on 15 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.39236 of 2021
(Through hybrid mode)
TPWODL .... Petitioner
Mr. P.K.Tripathy, Advocate
-versus-
District Consumer Dispute .... Opposite Parties
Redressal Commission, Sambalpur
and another
Mr. P.C.Panda, Addl. Govt. Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
15.02.2022
Order No.
01. 1. Mr. Tripathy, learned advocate appears on behalf of
petitioner and submits, order dated 13th April, 2021 passed by
District Consumer Disputes Redressal Commission, Sambalpur
has been impugned in the writ petition. On Court pointing out
that there is caution and bar against High Courts exercising
constitutional writ jurisdiction in respect of operation of
Consumer Protection Act, 1986 and now Consumer Protection
Act, 2019, as said earlier by this Bench in order dated 15th
December, 2021 in WP(C) no.32749 of 2021 and order dated
9th February, 2022 in WP(C) no.36033 of 2021, Mr. Tripathy
requests audience.
2. He submits, his client is supplier. The complaint was in
respect of assessment made under section 126 of Electricity
// 2 //
Act, 2003. He relies on judgment of the Supreme Court in
U.P.Power Corporation Ltd. v. Anis Ahmad, reported in
AIR 2013 Supreme Court 2766, paragraph 47 in which, inter
alia, following was said.
"47. xx xx xx
(ii) A "complaint" against the assessment
made by assessing officer under Section 126 or
against the offences committed under Sections 135
to 140 of the Electricity Act, 2003 is not
maintainable before a Consumer Forum.
xx xx xx"
He also relies on views expressed by a Division Bench of the
Calcutta High Court in judgment dated 18th February, 2019
dealing with, inter alia, WP 23027 (W) of 2017 (M/s
Universal Consortium of Engineers (P) Ltd. and another v.
State of West Bengal and others), paragraph-93 onwards. He
submits, the Division Bench interpreted the caution in Cicily
Kallarackal v. Vehicle Factory, reported in (2012) 8 SCC 524
to say that the bar and caution thereby issued by the Supreme
Court was only in respect of orders made by the National
Commission. Constitutional writ jurisdiction can be exercised
by the High Courts against the District and State forums but not
against the National Commission.
3. In paragraph-96 of M/s Universal Consortium of
Engineers (P) Ltd. (supra), following was said.
"It has been contended by learned advocates
for the home buyers that what applies to orders
passed by the National Commission should ex
proprio vigore apply to orders passed by the State
Commission and the District Forum. In view of
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appellate remedies made available by the CP Act,
no challenge to the orders passed by the State
Commission or the District Forum should be
entertained by a bench of this Court under Articles
226/227 of the Constitution of India."
The Division Bench also said, inter alia, in paragraph-100 as
follows.
"100. Be that as it may, in our humble view, the
ruling in Cicily Kallarackal (supra) raises more
questions than what is answered. Since the oath we
have taken ordains us to uphold the Constitution
and the laws, we cannot forget principles of law
supported by decisions of high authority. The dicta
in Cicily Kallarackal (supra) having appeared to
us to be in stark contrast to the law on the point of
entertainability of a writ petition when an
alternative remedy is available but not exhausted
by the party approaching the High Court, it made
us embark on a study/research in relation to the
scope of writ jurisdiction that the High Courts of
the country exercise, having been conferred the
power of judicial review of decisions of
administrative authorities/quashi-judicial bodies
not by an ordinary law but by the Constitution
itself, as well as reference to decisions of the
Supreme Court rendered earlier than Cicily
Kallarackal (supra) which, unfortunately, do not
appear to have been placed before the relevant
Bench for consideration by the respondents."
4. It is clear from U.P.Power Corporation Ltd. (supra)
that law declared thereby bars assessment under section 126 of
Electricity Act, 2003 to be subject matter of complaints
entertained under the Consumer Protection Act. Petitioner has
moved Court under article 226 in the Constitution, to enforce
the bar. Cicily Kallarackal (supra) is issuance of caution
against the High Courts from exercising writ jurisdiction, the
caution issued because the Division Bench of Kerala High
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Court did so against the order passed by the National
Commission. In making the interpretation, the Division Bench
of Calcutta High Court in M/s Universal Consortium of
Engineers (P) Ltd. (supra) relied on earlier decisions of the
Supreme Court, as not taken note of in Cicily Kallarackal
(supra). As such, M/s Universal Consortium of Engineers (P)
Ltd. (supra) being a discussion regarding the caution issued by
the Supreme Court, cannot bind this Bench to disobey the
caution of the Supreme Court.
5. As already said in M/s. Balimela Hydro Electric
Project (supra), 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 order passed by the National Consumer
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 Petition was dismissed
without issuance of notice. In the premises, reliance on the
interpretation by the Division Bench, restricting application of
the caution may cause this Bench to commit violation of article
141 in the Constitution.
6. The writ petition is dismissed.
(Arindam Sinha)
Judge
RKS
