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SCA/11044/2010 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11044 of 2010
=========================================================
SUB
POST MASTER & 1 - Petitioner(s)
Versus
ANSUYABEN
GOVINDLAL DOSHI - Respondent(s)
=========================================================
Appearance
:
MR
SAURABH G AMIN for
Petitioner(s) : 1 - 2.
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 23/09/2010
ORAL
ORDER
Heard
learned advocate Mr. Saurabh G. Amin appearing on behalf of
petitioners.
The
petitioners have challenged order passed by Consumer Disputes
Redressal State Commission in Appeal No.1230 of 2008 dated 14th
December 2009, wherein, appeal which was preferred by petitioner
against challenging the order passed by District Forum, Navsari in
Complaint No.11 of 2005 dated 3rd
February 2005 has been dismissed.
Against
the order passed by State Commission, petitioner is having
alternative effective statutory remedy under Section 21 of the
Consumer Protection Act, 1986. Section 21 is quoted as under :
Sec.21
Jurisdiction of the National Commission
Subject to the other provisions of this Act, the National
Commission shall have
jurisdiction —
(a) to
entertain –
(i) complaints
where the value of the goods or services and compensation, if any,
claimed exceeds [rupees one crore]; and
(ii) appeals
against the orders of any State Commission; 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 State
Commission where it appears to the National Commission that such
State Commission has exercised a jurisdiction not vested in it by
law, or has failed to exercise a jurisdiction so vested, or has acted
in the exercise of its jurisdiction illegally or with material
irregularity.
In
case of R. Jaivel V. State of Tamil Nadu reported
in AIR 2006 Madras 215,
it has been held that when National Consumer Forum can have the
jurisdiction to call for the records from the State Commission and to
set aside the order containing any per verse finding, naturally
alternative remedy is available to approach the National Consumer
Forum and when that remedy is not exhausted, approaching High Court
under Article 227 cannot be considered as maintainable.
The
Division Bench of Madhya Pradesh High Court, Indore Bench has taken a
view in case of Rajendra Singh Sisodiya v. madhya
Pradesh Housing Board, Indore reported
in AIR 2009 Madhya Pradesh 162.
Considering provisions of Section 21(b) of the Consumer Protection
Act with Section 2(1)(e), revision before National Commission is
maintainable against the order passed in appeal by State Commission.
The relevant discussion is made in Para 8 to 10 which are quoted as
under :
8. Moreover,
a reading of Section 2(1) of the Act quoted above would show that the
expressions mentioned in Sec.2(1) of the Act are to mean as indicated
in the various clauses mentioned therein Unless the context
otherwise required . Hence, while reading the different expressions
defined in Sec.2(1) of the Act, the context in which the defined
expression is used, has to be borne in mind. Hence the expression
consumer dispute , as defined in Sec.2(1)(e) of the Act, will
have to be understood keeping in mind the context of Sec.21(b) of the
Act. If we now read under Sec.21(b) of the Act quoted above, it is
clear that the National Commission has the power to call for the
records and pass appropriate orders in any consumer dispute which is
pending before or has been decided by any State Commission, if it
finds that the State Commission has exercised a jurisdiction so
vested, or has acted in the exercise of its jurisdiction illegally or
with material irregularity. As defined in Sec.2(1)(e) of the Act, a
consumer dispute means a complaint has been made, denies or
disputes the allegations contained in the complaint. Where,
therefore, the allegations made in the complaint lodged before the
District Forum are denied by the other party, there is a consumer
dispute. When the Consumer Forum decides the dispute one way or the
other and the consumer or the other party files an appeal against the
order passed by the District Forum before the State Commission and
the State Commission passed an order, the order that is passed by the
State Commission is an order passed in a consumer dispute. This is
because even at the appellate stage when the State Commission
considers the matter, the allegations made in the complaint by the
consumer continue to be disputed or denied by the other party and
hence, the appeal.
9. Further,
by word any preceding the expression consumer dispute in
Sec.21(b) would mean all or every dispute pending before the State
Commission. In Shri Balaganesan Metals v. M.N. Shanmugham Chetty and
others (1987) 2 SCC 707 : AIR 1987 SC 1668, the Supreme Court,
relying on Black’s Dictionary, has held :
The
word any has the following meaning:
Some;
one of many; an indefinite number. One indiscriminately of whatever
kind or quantity.
Word
any has a diversity of meaning and may be employed to indicate
all or every as well as some or one and its
meaning in a given statute depends upon the context and the subject
matter of the statute.
It
is open synonymous with either , every or all . Its
generality may be restricted by the context; (Black’s Law
Disctionary, 5th edn.)
10. The
expression any used in any statute will, therefore, have to be
interpreted by Courts by looking to the context in which it is used
and looking to the context of Sec.21(b) of the Act, we have no doubt
that the word any consumer dispute would mean not only consumer
dispute arising out of an original complaint filed before the
District Forum, but also a consumer dispute arising out of an appeal
from the orders of the District Forum before the State Commission.
Recently,
Apex Court in case of Om Prakash Saini v. DCM
Ltd. & Ors.
reported in 2010 AIR SCW 4229,
it has been held that order passed by State Commission in consumer
dispute, specific remedy of appeal is provided under the Act.
Aggrieved party withdrawing appeal and challenging order of State
Commission by filing writ petition . Order of single Judge
entertaining writ petition on premise that State Commission had no
jurisdiction in view of Scheme sanctioned by Company Judge in said
matter u/S.391 of Companies Act Not proper There has to be
some justification to make departure from rule that High Court will
not entertain writ petition when alternative remedy is available. The
relevant discussion is made by Apex Court in Para 12 and 13 which are
quoted as under :
12. We
have considered the respective submissions. The 1986 Act was enacted
to provide for better protection of the interests of consumers by
making provisions for establishment of consumer councils and other
authorities for settlement of consumer disputes and adjudication
thereof. The 1986 Act is a complete Code unto itself. It defines the
various terms like `consumer’, `consumer dispute’, `defect’,
`deficiency’, `goods’, `manufacturer’, `restrictive trade practice’,
`service’, `unfair trade practice’. It provides for establishment of
consumer councils and adjudicatory forums at the District, State and
National levels. Any person aggrieved by an order passed by the
District Forum can file an appeal before the State Commission. If he
is not satisfied with the order of the State Commission, a further
remedy is available by way of revision before the National
Commission. If the complaint is decided by the State Commission, the
aggrieved person can file an appeal before the National Commission.
Elaborate procedure has been laid down for filing of the complaints
and disposal thereof. Since the 1986 Act is a special statute enacted
by the Parliament for better protection of the interest of consumers
and a wholesome mechanism has been put in place for adjudication of
consumer disputes, the remedy of appeal available to a person
aggrieved by an order of the State Commission cannot but be treated
as an effective alternative remedy.
13.
Admittedly, respondent No.1 had availed the alternative remedy
available to it under Section 21 by filing an appeal against the
order of the State Commission. During the pendency of the appeal,
respondent No.1 chose to challenge the order of the State Commission
by filing a petition under Article 227 of the Constitution, which was
entertained by the learned Single Judge on the basis of the assurance
given by the learned counsel that the appeal filed before the
National Commission will be withdrawn. The order passed by the
learned Single Judge on 21.3.2007 or the one by which the petition
filed by respondent No.1 was finally disposed of does not contain any
indication as to why the learned Single Judge thought it proper to
make a departure from the rule that the High Court will not entertain
a petition under Article 226 or 227 of the Constitution if an
effective alternative remedy is available to the aggrieved person. In
our view, during the pendency of the appeal filed by respondent No.1
under Section 21 of the 1986 Act, the learned Single Judge was not at
all justified in entertaining the petition filed under Article 227 of
the Constitution merely because he thought that the State Commission
did not have the jurisdiction to entertain the complaint in view of
the scheme sanctioned by the Company Judge under
Section 391 read with Sections 392 an 394 of the Companies Act.
In
view of aforesaid decision of Madras High Court, Madhya Pradesh High
Court and Apex Court, according to my opinion, petitioner is having
alternative effective statutory remedy to approach National
Commission against the order passed by State Commission in appeal.
Therefore,
only on this ground, present petition is not entertained by this
Court. Accordingly, present petition is disposed of by this Court
without expressing any opinion on merits.
[H.K.
RATHOD, J.]
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