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TMI Blog2021 (6) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... to prevent abuse of the process of law, undo patent illegality, intervene where the proceeding are wholly without jurisdiction or the orders passed are grossly arbitrary. The self imposed restriction of the High Court in exercising jurisdiction under Article 226 of the Constitution of India on the ground of availability of an alternate remedy, is founded on the principles of propriety, equity, consistency and for enforcing rule of law. However, such a restriction shall not deter this Court from invoking its extraordinary jurisdiction to advance the cause of justice and to do substantial justice to the parties concerned. In the instant case, the petitioner has approached this court under Article 226 of the Constitution of India with a grievance that by entertaining the appeal preferred by the respondent No. 4/Developer, the State Commission has acted wholly without jurisdiction. The Consumer Protection Act is a special statute and a self contained code - It is thus evident that not every appeal filed against any order of the District Forum can be entertained for the asking and a stay order granted mechanically. When it is a question of jurisdiction, the appellate authority, should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner and the respondent No. 4/Developer entered into a Development Agreement dated 01.06.2003 for redeveloping the aforesaid property and building flats thereon. The parties had agreed that the petitioner shall receive a share of 45% and the respondent No. 4/Developer shall receive a share of 55% of the built up flats. Alleging that there was a breach of the terms and conditions of the Development Agreement and failure on the part of the respondent No. 4/Developer in meeting his commitments, the petitioner filed a complaint before the District Forum, registered as C.C. No. 1026 of 2007. The said petition was allowed on 09.12.2009 and the respondent No. 4/Developer was directed to complete the construction and handover to the petitioner, her share of the flats. (b) The order of the District Forum was challenged by the respondent No. 4/Developer in F.A. No. 208 of 2010 before the State Commission. A separate appeal, F.A. No. 316 of 2010 was also filed by the petitioner, not being satisfied with the award passed by the District Forum and seeking damages before the State Commission. Both the appeals were disposed of by a common order dated 29.04.2011, with a direction to the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held that no Revision Petition under Section 21(6) of the Act is maintainable against an order passed on an appeal preferred under Section 27A of the Act in execution proceedings. (e) Having exhausted all the remedies available to him in law, both in the original proceedings and the execution proceedings, respondent No. 4/Developer instituted yet another fresh proceeding by filing a miscellaneous application, I.A. No. 29 of 2021 under Section 151 CPC, in the disposed of E.A. No. 38 of 2013 before the District Forum for acquittal. Vide order dated 09.03.2021, the District Forum dismissed I.A. No. 29 of 2021 and issued NBW's against the respondent No. 4/Developer with the following observations: The Petitioner misconstruing the above orders of the Hon'ble National Commission in Revision Petition No. 3715/2017, approached this Commission and filed this petition. The Commission having discharged its function u/s. 27 of the Consumer Protection Act, by convicting the petitioner for non-compliance of direction No. 2 of the order dated 29/4/2011 in F.A. No. 208/2010 has become functus officio. As the Hon'ble State Commission also by its order dated: 07/11/2017 in F.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, there was no question of the respondent No. 4/Developer yet again filing F.A. No. 144 of 2021 against the conviction order passed by the District Forum under Section 73 of the Consumer Protection Act, 2019. The respondent No. 4/Developer is thus estopped from filing an appeal against his conviction order under Section 73 of the Act of 2019 and that State Commission ought not to have entertained F.A. No. 144 of 2021, muchless stay all further proceedings. 4. To substantiate his argument, learned counsel has relied upon the judgment of the Supreme Court in Neena Aneja v. Jai Prakash Associates Limited. He has further contended that the respondent No. 4/Developer is depriving the petitioner of much needed justice and is obstructing her from enjoying the benefits of the award passed in her favour by the District Forum, that was confirmed upto the Supreme Court. It has been argued that the application filed by the respondent No. 4/Developer before the District Forum under Section 151 CPC, is nothing but a camouflage to gain wrongful entry on the file of disposed of E.A. No. 38 of 2013, that too after having exhausted all the available legal remedies against the order of convictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 4/Developer in E.A. No. 38 of 2013, also attained finality. Thus, the original proceedings and the execution proceedings stood concluded. After a gap of four years, I.A. No. 29 of 2021 was filed by the respondent No. 4/Developer under Section 151 CPC for acquittal in E.A. No. 38 of 2013, arising from C.C. No. 1026 of 2007. The point is whether the conviction order passed by the District Forum in E.A. No. 38 of 2013 having attained finality upto the National Commission (albeit the revision petition was rejected on the ground of maintainability), could such an application invoking the provisions of Section 151 of the CPC be entertained, that too in a disposed of petition? 9. In the light of the above sequence of events, the following points arise for consideration:- 1. Whether another round of proceedings could have been instituted by the respondent No. 4/Developer before the District Forum, by invoking Section 151 of the CPC, for acquitting him in E.A. No. 38 of 2013, which stood disposed of on 19.07.2017? 2. Whether the State Commission could have entertained an appeal purportedly filed under Section 73 of the Act of 2019 against the order of the District Forum, dismissing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fundamental rights in Part III of the Constitution, or for any other purpose . A citizen may seek out the writ jurisdiction of the High Court not only in cases where her fundamental right may be infringed, but a much wider array of situations. Lord Coke, commenting on the use of writs by courts in England stated: The Court of King's Bench hath not only the authority to correct errors in judicial proceedings, but other errors and misdemeanours [...] tending to the breach of peace, or oppression of the subjects, or raising of faction, controversy, debate or any other manner of misgovernment; so that no wrong or injury, public or private, can be done, but that this shall be reformed or punished by due course of law.... Echoing the sentiments of Lord Coke, this Court in Uttar Pradesh State Sugar Corporation Limited v. Kamal Swaroop Tondon (2008) 2 SCC 41 observed that: 35... It is well settled that the jurisdiction of the High Court Under Article 226 of the Constitution is equitable and discretionary. The power under that Article can be exercised by the High Court to reach injustice wherever it is found. 12. The role of the High Court under the Constitution is crucial to en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution. 14. These principles are set out in the decisions of this Court in numerous cases and we need only mention a few to demonstrate the consistent manner in which they have been re-iterated. In State of Uttar Pradesh v. Indian Hume Pipe Co. Limited (1977) 2 SCC 724 this Court observed that the High Court's decision to exercise its writ jurisdiction is essentially discretionary: 4...It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably, or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court. ... 19. This understanding has been laid down in several decisions of this Court. In Uttar Pradesh State Spinning Co. Limited v. R.S. Pandey (2005) 8 SCC 264 this Court held: 11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a Rule of self imposed limitation. It is essentially a Rule of policy, convenience and discretion and never a Rule of law. Despite the existence of an alternative remedy it is within the juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant had sufficient cause for not preferring the appeal within the said period of thirty days. 15. It is thus evident that not every appeal filed against any order of the District Forum can be entertained for the asking and a stay order granted mechanically. When it is a question of jurisdiction, the appellate authority, should have first satisfied itself as to whether it is vested with the jurisdiction to entertain the said appeal at all, more so, when the District Forum has clearly held that an application moved by the respondent No. 4 under Section 151 CPC, is not maintainable. It is apparent that the order passed by the District Forum dated 09.03.2021, dismissing I.A. No. 29 of 2021 filed by the respondent No. 4/Developer on the ground that such an application is not maintainable, is not an order passed under Section 72(1) so as to attract the provisions of Section 73 of the Act, 2019. However, instead of deciding the aspect of maintainability of the appeal at the threshold, the State Commission chose to mechanically entertain the said appeal and further, relying on the judgment dated 08.06.2017 passed by a Division Bench of this Court in M/s. Raghavendra Associates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th by the respondent No. 4/Developer, as has been contended by learned counsel for the respondent No. 4/Developer, his remedy lies elsewhere. However, it needs to be noted that the petitioner has vehemently denied such an assertion of compliance of the order of the District Forum by the respondent No. 4/Developer. It is the case of the petitioner that 20 flats have been constructed in terms of the Development Agreement and her share of 45%, comes to just less than 10 flats, whereas, pursuant to the interim order dated 25.01.2021 passed by the National Commission, the petitioner has taken possession of only 7 flats, without prejudice to her rights. 20. This Court is however refraining from making any observations on such claims lest it prejudices the rights of the parties. We are only concerned with the maintainability of the appeal (F.A. No. 144 of 2021) as filed by the respondent No. 4/Developer before the State Commission and not the compliance or otherwise of the order of the District Forum and/or the State Commission. The District Forum having held that there is non-compliance of the order of the State Commission, has dismissed the application moved by the respondent No. 4/Deve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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