2021 (9) TMI 1363 - HC - Indian Laws

Maintainability of complaint - availability of alternative remedy - Jurisdiction - power of CDRC to entertain Ext. P1 application - appealable order or not - HELD THAT - The contention of the petitioners that the writ court can entertain a Writ Petition in certain circumstances even if there is an alternative remedy is a settled position. This is the principle laid down by the Apex Court in WHIRLPOOL CORPORATION VERSUS REGISTRAR OF TRADE MARKS, MUMBAI ORS. 1998 (10) TMI 510 - SUPREME COURT . Even though the Apex Court observed that in certain contingencies, this Court can entertain a Writ Petition under Article 226 of the Constitution of India, the High Court can use its discretion either to entertain such Writ Petition or to reject it. Specific averments are necessary in the Writ Petition for not availing the statutory remedy of appeal when an appealable order is challenged by filing a Writ Petition under Article 226 of the Constitution of India. Simply stating that the authority who passed the order has no jurisdiction alone is not sufficient to invoke the jurisdiction under Art. 226 of the Constitution, especially when the appellate authority also can consider the question of jurisdiction. Here is a case, where Ext. P5 is admittedly an appealable order. When there is a statutory remedy against Ext. P5 order as per the Consumer Protection Act, 2019, this Court need not entertain a Writ Petition unless there are compelling reasons. The petitioners are the University and its authorities. They can approach the State Commission, instead of filing a Writ Petition before this Court under Art. 226 of the Constitution of India. Nothing is mentioned in the Writ Petition which prevents the writ petitioners to move an appeal against Ext. P5 order before the State Commission except the contention that CDRC has no jurisdiction to entertain Ext. P1 complaint. S.41 of the Act, 2019 deals with appeal against the order of the District Commission - Section 47(1)(b) says that the State Commission shall have jurisdiction to interfere when it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law. So the jurisdiction question also can be decided by the State Commission. Then what is the reason to file this Writ Petition before this Court is not clear. If the petitioners can engage a lawyer to file a Writ Petition in High Court, they can very well engage a lawyer at Thiruvananthapuram to file an appeal before the State Commission against Ext. P5. If this Court starts to entertain Writ Petition against orders of CDRC, there will not be any end to it. Writ Petition can be dismissed with the liberty to file an appeal against Ext. P5 order in accordance with law - petition dismissed.

Summary

Issues:
Challenge to jurisdiction of Consumer Disputes Redressal Commission (CDRC) to entertain complaint; Maintainability of Writ Petition under Article 226 of the Constitution against CDRC's order; Availability of statutory remedy of appeal under Consumer Protection Act, 2019.

Analysis:

Issue 1: Challenge to CDRC's Jurisdiction
The petitioners, Controller of Examinations and Kannur University, challenged the jurisdiction of CDRC to entertain the complaint (Ext. P1). The petitioners contended that CDRC had no jurisdiction to entertain the complaint, but CDRC rejected this contention in Ext. P5 order. The petitioners argued that the CDRC's decision was unsustainable, citing judgments from the Apex Court and a local court. Additionally, they highlighted that the decision relied upon by CDRC in Ext. P5 had been reversed by the National Consumer Disputes Redressal Commission (NCDRC).

Issue 2: Maintainability of Writ Petition under Article 226
The High Court considered the maintainability of the Writ Petition under Article 226 against Ext. P5 order, which was found to be appealable under the Consumer Protection Act, 2019. The counsel for the petitioners acknowledged the availability of a statutory remedy through an appeal before the State Commission. However, the petitioners argued that CDRC entertained the complaint without jurisdiction. The High Court referred to the principle laid down by the Apex Court in Whirlpool Corporation's case, emphasizing that the High Court has discretion to entertain a Writ Petition even if an alternative remedy exists, especially in cases of violation of fundamental rights, natural justice, lack of jurisdiction, or challenge to the vires of an Act.

Issue 3: Availability of Statutory Remedy of Appeal
The High Court noted that Ext. P5 was an appealable order under the Consumer Protection Act, 2019, providing the petitioners with a statutory remedy to challenge it before the State Commission. The court highlighted the provisions of the Act regarding appeals against District Commission orders and the jurisdiction of the State Commission. Section 47(1)(b) of the Act empowered the State Commission to intervene if a District Commission had exceeded its jurisdiction. The High Court emphasized that the State Commission could also address jurisdictional issues, making it unnecessary for the petitioners to file a Writ Petition before the High Court. The court dismissed the Writ Petition, granting the petitioners the liberty to file a statutory appeal in accordance with the Consumer Protection Act.

In conclusion, the High Court dismissed the Writ Petition, emphasizing the availability of a statutory remedy through an appeal before the State Commission. The court highlighted the importance of utilizing the statutory appeal process provided under the Consumer Protection Act, 2019, rather than burdening the High Court with cases that could be addressed through the established appellate mechanism.