JUDGMENT
Altamas Kabir, J.
1. This writ application has been filed by the Food Corporation of India (hereinafter referred to as “the F.C.I.”) established under the Food Corporations Act, 1964, for the purpose of trading in food-grains and other foodstuff and sugar, with a view to ensuring that farmers got the benefit of the minimum price announced by the Government of India from time to time and to also protect the consumers from speculative trading in food and foodgrains in India.
2. In order to fulfil the aforesaid objectives of the Central Government, the petitioner-corporation has to purchase foodgrains, foodstuff and sugar from farmers and sugar producers in the country. It is also the function of the F.C.I. to purchase levy sugar from different sugar mills in the various States at the price fixed by the Government of India and to supply the same to consumers in the country through the public distribution system. In this regard, the F.C.I. has to follow the specific instructions issued from time to time by the Directorate of Sugar, Ministry of Food, Government of India.
3. It is the F.C.I.’s case that in terms of previous instructions given by the Ministry of Food, Government of India, sugar purchased from the sugar mills were to be filled in new A-twill empty gunny bags, the tare weight whereof was to be 1,190 gms. as per specification No. I. S. 1943-1964.
4. According to the F.C.I., it had to suffer various difficulties in following the above instructions of the Government of India owing to the variation of the tare weight of different gunny bags, and, ultimately, the matter had to be taken up with the Ministry of Food and also the Jute Commissioner.
5. It is the specific case of the F.C.I. that, thereafter, the instructions regarding the tare weight of empty gunny bags were altered and fresh instructions were given to the F.C.I. that after weighing 20/25 gunny bags the average weight was to be taken and then the bags were to be filled with net 100 kgs. sugar. It is the F.C.I.’s case that in view of such variation, the provisions relating to tare weight of empty gunny bags, as provided for in the Sugar (Packing and Marketing) Order, 1970, are not strictly followed by the sugar factories. What is important is that each gunny bag contains a net weight of 100 kgs. sugar.
6. According to the writ petitioner Corporation, the average tare weight of each gunny bag containing net 100 kgs. of sugar has been mentioned as 1,000 gms., and, therefore, the Corporation effects delivery of the same stock deducting tare weight of gunny bags as 1,000 gms.
7. It appears that in 1993, one Sri Amiya Kumar Saha, the secretary of the West Bengal M. R. Distributors’ Association, Nadia District Committee, filed an application and/or complaint before the District Consumer Forum, Nadia, being Case No. 4 of 1993, against the F.C.I. and its Nadia District Authority alleging that M. R. Distributors were being short-supplied with about 190 gms. of sugar per quintal since the Food Corporation of India authorities were deducting the tare weight of each empty gunny bag at the rate of 1,000 gms. instead of 1,190 gms., thereby causing financial loss to the members of the said association. In the said complaint, the association also prayed for compensation to the tune of Rs. 99,900 and also prayed for a direction upon the Food Corporation of India authorities to fix the tare weight of an empty gunny bag at 1,190 gms. as was previously being done.
8. The said complaint was opposed by the F.C.I. by filing a written objection and it appears that during the course of the proceedings before the District Consumers’ Forum, the F.C.I. filed an application contending that the application/complaint filed by the association was not maintainable and the District Consumer Forum had no jurisdiction to entertain the same since an association of M. R. Distributors could not be said to come within the definition of “consumer” under the Consumer Protection Act, 1986.
9. It appears that by its order dated January 30, 1993, the District Consumer Forum after considering the submissions made on behalf of the respective parties, held that the application/complaint under Section 11 of the above Act was maintainable and it had jurisdiction to entertain the same.
10. No appeal was preferred by the F.C.I. against the said order dated January 30, 1993, nor was the question of jurisdiction brought into question in this court in its writ jurisdiction.
11. The matter was, thereafter, fixed for hearing, and, ultimately, on January 18, 1994, the District Consumer Forum disposed of the said application under Section 11 of the aforesaid Act by allowing the same in part and by directing the F.C.I. to deduct the tare weight of each A-twill empty gunny bag at the rate of 1,190 gms., while delivering sugar for distribution through the public distribution system.
12. The F.C.I. preferred an appeal against the said order of the District Consumer Forum, being S. C. Case No. 103A of 1994 before the State Commission. Although in the appeal itself no plea was taken regarding the maintainability of the application filed by the association under Section 11 of the above Act, a separate application was filed in the appeal where such plea was taken and the same was taken up for consideration by the State Commission along with the appeal itself. The State Commission was of the view that since the F.C.I. had not preferred any appeal against the order dated January 30, 1993, holding that the complaint was maintainable and the District Forum had jurisdiction to hear the matter, and since the said plea had not also been taken in the appeal preferred against the final order passed by the District Forum, the same could not be taken in the appeal by way of a separate application. The appeal was .dismissed even on the merits and the orders of the District Forum dated January 30, 1993, as also January 18, 1994, were upheld by the State Commission.
13. This writ application is now being filed by the F.C.I. once again raising the plea of maintainability of the proceedings before the District Forum on the ground that the complainant Association of M. R. Distributors could not be said to be a “consumer” within the meaning of the Consumer Protection Act, 1986.
14. Appearing in support of the writ application, Mr. Asoke Banerjee, learned advocate, urged that apart from the merits of the case, the application/complaint before the District Forum was not maintainable and since the point had also been taken before the State Commission in appeal, the State Commission had failed to exercise its jurisdiction in not deciding the said question upon erroneously holding that since no appeal had been preferred against the order of January 30, 1993, it was no longer open to the appellant to do so in the appeal. Mr. Banerjee urged that as has been consistently held by the courts, a question of law could be taken at any stage of a proceeding, prior to a final order being passed therein.
15. Mr. Banerjee also urged that it was not always necessary to prefer an appeal against an interlocutory order, since the same merged with the final judgment and it was open to the parties to challenge such interlocutory finding in an appeal preferred against the final judgment.
16. Mr. Banerjee urged that the State Commission had committed an error of law in holding that the appellant was not entitled to take the point regarding maintainability of the application since the interlocutory order in respect thereof had not been challenged earlier.
17. On the point of maintainability of the application under Section 11 of the Consumer Protection Act, 1986, Mr. Banerjee referred to my decision in the, case of Calcutta Metropolitan Development Authority v. Union of India, , wherein I had held that the High Court could decide the question relating to initial lack of jurisdiction of a concerned authority while considering a prayer for certiorari.
18. Mr. Banerjee urged further that while considering a similar question in an appeal preferred by Smt. Saswati Mehrotra (FMAT No. 52 of 1994), a Division Bench of this court had occasion to consider my judgment in the aforesaid case and it was observed that while the High Court had the jurisdiction to determine such question of jurisdiction, the High Court should not interfere with the proceedings of such tribunals except for compelling reasons, such as where clear absence of jurisdiction is obviously apparent on the face of the record on the admitted facts and without any dispute.
19. Mr. Banerjee urged that not only was the writ application maintainable, but the State Commission had also erred in disallowing the petitioner’s contention relating to jurisdiction on the ground that no appeal had been preferred against the interlocutory order rejecting the contention of the F.C.I. that the application/complaint filed under Section 11 of the aforesaid Act was not maintainable.
20. Mr. Banerjee urged that the orders dated January 30, 1993, and January 18, 1994, passed by the District Forum, Nadia, as also the order passed on December 1, 1994, by the State Consumers’ Dispute Redressal Commission, West Bengal, were liable to be revoked and cancelled.
21. Opposing the writ application on behalf of respondent No. 6, Mr. Debabrata Saha Roy urged that apart from the merits of the case, the writ application was misconceived and was not maintainable having regard to the provisions of the Consumer Protection Act, 1986.
22. Mr. Sana Roy submitted that the order passed by the District Forum on January 30, 1993, dismissing the petitioner’s contention that the District Forum had no jurisdiction to entertain the application-complaint of respondent No. 6, not having been challenged by the F.C.I., the same had attained finality between the parties, particularly when the same had not been initially challenged even in the appeal filed before the State Commission.
23. Mr. Saha Roy submitted that the writ petitioner’s relief, if any, lay before the National Commission in terms of Section 21 of the above Act.
24. In support of his aforesaid contention, Mr. Saha Ray firstly referred to a Bench decision of the Andhra Pradesh High Court in the case of Tulasi Enterprises v. Andhra Pradesh State Consumer Commission, , wherein it was observed that the High Court should not entertain writ petitions in regard to matters filed before the District Forum or the State Commission under the above Act, except in the rarest of rare cases.
25. Mr. Saha Roy also referred to the decision of a Division Bench of the Kerala High Court in A.V. Georgekutty v. State of Kerala, and the Bench decision in the case of Smt. Saswati Mehrotra (FMAT No. 52 of 1994) also referred to by Mr. Baner-jee, wherein similar views to those of the Andhra Pradesh High Court, have been expressed.
26. Mr. Saha Roy then contended that when an alternative remedy had been provided for in the statute itself, the court should, not interfere in such matters in exercise of its writ jurisdiction. Mr. Saha Roy referred to the decision of the Supreme Court in the case of Shyam Kishore v. Municipal Corporation, Delhi, , wherein it was observed that where the statute provides for an alternative remedy, applications under Articles 226 and 227 of the Constitution may not be appropriate and proper.
27. Mr. Saha Roy lastly contended that even if the writ petition is held to be maintainable, the petitioner should have challenged the order passed by the District Forum on January 30, 1993, and in the absence of such challenge, the writ petition was liable to be dismissed on such score also.
28. Mr. Saha Roy urged that having regard to the above, the writ application was liable to be dismissed with appropriate costs.
29. I have carefully considered the submissions made on behalf of the respective parties and the views expressed by this court and other High Courts, regarding the maintainability of writ applications in respect of matters pertaining to the District Forum or State Commission.
30. The views expressed in the various decisions cited at the Bar do not in essence differ from the views expressed by me in Calcutta Metropolitan Development Authority v. Union of India, . In the Bench decisions of this court, the Andhra Pradesh High Court and the Kerala High Court, it has consistently been observed that the powers of the High Court under Article 226 of the Constitution remained unaffected by the provisions of the Consumer Protection Act, 1986, but since a statutory remedy had been provided, the writ court should be slow to interfere in matters concerning the District Forum and the State Commission.
31. In the case of Tulasi Enterprises v. Andhra Pradesh State Consumer Commission, of the judgment, the Andhra Pradesh High Court observed as follows :
“10. It is true that whenever the Legislature creates a separate Tribunal with a hierarchy of appeals, the jurisdiction of the High Courts under Article 226 of the Constitution to deal with the orders passed by the said Tribunals is not and cannot be ousted. It is also true that whenever questions of jurisdiction are raised, the High Court normally permits such questions to be raised under Article 226 of the Constitution and examines whether the applications or the other proceedings filed before the Tribunal are within the jurisdiction of the said Tribunal or not. But the High Court has a discretion to entertain the writ petitions and, in particular, to decide, for example, any questions of jurisdiction unless they involve serious or disputed questions of fact. It is not as if the High Court is bound to entertain every writ petition which raises a question of jurisdiction of a Tribunal.”
32. In the case of A.V. Georgekutty v. State of Kerala, the Kerala High Court expressed similar views and observed that ordinarily it would not be wise for the High Court to undertake the burden of deciding disputes relating to jurisdiction, although rare cases may warrant interference.
33. Even in Smt. Saswati Mehrotra (FMAT No. 52 of 1994), the Division Bench of this court held that while the High Court in exercise of its writ jurisdiction was entitled to determine the question of jurisdiction of the Tribunal, the writ court should not interfere with the proceedings of the Tribunal except for compelling reasons as where clear absence of jurisdiction is obviously apparent on the face of the record on the admitted facts without any dispute.
34. The consistent view, therefore, is that while the High Court in its writ jurisdiction can determine the question of jurisdiction of the Tribunal to entertain a matter, it should do so sparingly and in rare cases where the Tribunal’s lack of jurisdiction is clear on the face of the record.
35. This is also the view expressed by me in Calcutta Metropolitan Development Authority v. Union of India, . Whether a particular matter involving the jurisdiction of the Tribunal is to be entertained or not by the writ court, is a matter of discretion, which should be sparingly exercised by the writ court, and not as a matter of course in every case.
36. In the instant case, the facts do not warrant interference by the writ court, since the petitioner is in effect asking the writ court to sit in appeal over the decision of the State Commission which was sitting in appeal from the decision of the District Forum.
37. The F.C.I. did not challenge the interlocutory order of the District Forum passed on January 30, 1993, on the self same question, before this court in its writ jurisdiction, and did not do so even after the final order was passed on January 18, 1994. It preferred a statutory appeal before the State Commission, and after the same failed, and the State Commission did not choose to entertain the plea of jurisdiction, it has now chosen to raise the question of jurisdiction after the same had been negated by the State Commission, albeit on a proposition which appears to be legally unsound, since a point of jurisdiction is essentially a point of law and can be raised at any stage of a proceeding.
38. In the instant writ application it is not the question of jurisdiction which is relevant, but the fact that the State Commission refused to entertain the said question in appeal.
39. In my view, there is a world of difference in raising a question of jurisdiction simpliciter and contending that the State Commission had erred in not entertaining the same question on an erroneous understanding of the law. The latter situation, in my view, does not call for interference by the writ court, but has to be left to the statutory forum, provided for the said purpose, to decide.
40. As the facts of this case are covered by the second fact situation referred to above, I am not inclined to interfere in the present writ application, and the same is, accordingly, dismissed.
41. This will not, however, prevent the F.C.I. from seeking its relief, if any, before any other forum available to it. I also make it clear that I have not gone into the merits of the case.
42. There will be no order as to costs.