Consumer Protection; Tej Bahadur Thapa Vs. Branch Manager of District Central Co-operative Bank Ltd. [Calcutta High Court, 22-08-2016]

Consumer Protection Act, 1986 – Section 21 – Constitution of India – Article 227 – Revision – Power of superintendence over all courts by the High Court – Jurisdiction of the National Commission – the revisional application is very much maintainable before High Court, particularly, when the Court is, prima facie, satisfied on the merit of the case that the finding arrived at by the State Commission is perverse.


IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION APPELLATE SIDE

BEFORE: The Hon’ble Justice SAHIDULLAH MUNSHI

Judgment on : August 22, 2016

C.O. No. 2587 of 2010

TEJ BAHADUR THAPA… Petitioner

-Versus-

BRANCH MANAGER OF DISTRICT CENTRAL

CO-OPERATIVE BANK LTD. & ANR…. Respondents/Opposite Parties

Mr. Siddhartha Banerjee, … For the petitioner Mr. Pabitra Charan Bhattacharjee, Mr. Subhajit Panja … For the opposite parties.

Sahidullah Munshi, J.:-

At the beginning of the hearing learned Advocate Mr. Prabitra Charan Bhattacharjee, appearing for the opposite parties, raised a preliminary objection that in view of Section 21 of the Consumer Protection Act, 1986, this Court has no jurisdiction to entertain a revision under Article 227 of the Constitution usurping the jurisdiction of the National Commission.

In this context, it is necessary to take into consideration of the provisions of Section 21 of the Consumer Protection Act, 1986 which is quoted below :-

“Section 21… Sub-Section (b) gives power and jurisdiction to the National Commission 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 appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law. The Commission may also scrutinize if the State Commission has failed to exercise a jurisdiction so vested, or has acted illegally or with material irregularity in the exercise of jurisdiction.”

Article 227 of the Constitution of India is also quoted below :-

Article 227. Power of superintendence over all courts by the High Court

[(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.]

(2) Without prejudice to the generality of the foregoing provision, the High Court may –

a) call for returns from such courts;

b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.”

The Provisions in Section 21 – “… The Commission may also scrutinize if the State Commission has failed to exercise a jurisdiction…” does not, in any way, curtail the power under clause (1) of Article 227 of the Constitution. On a close scrutiny it further appears, and can be interpreted that even a decision passed by the National Commission under Section 21 of the Consumer Protection Act, 1986, is also amenable to the superintending power of a High Court having territorial jurisdiction over the same. If that be so, why a party, in a given case, according to his convenience, cannot obtain relief under Article 227 of the Constitution, against an order of the State Commission. On further scrutiny of the provisions, as aforesaid, it appears that if for an aggrieved party two options for revisions are provided for by law, one under ordinary Statute and the other under the Constitution itself, it is the choice of the party suffering prejudice by the order aggrieved by.

To strike down usurpation of office is the function and duty of High Courts in exercise of their constitutional powers under Article 226 and Article 227. Article 227 is not merely procedural but confers substantive right on litigant to move High Court against the decisions or orders of Tribunals.

It is true that High Court will not review the discretion of the authority judicially exercised but it may interfere, if the exercise of the discretion is capricious or perverse.

As held by the Apex Court in the case of

Jugal Kishore vs. Sitamarhi Central Co-operative reported in AIR 1967 SC 1494

Article 227 is of wider ambit than Article 226 and it does not limit the jurisdiction of the High Court to the hierarchy of Courts functioning directly under it under Civil Procedure Code and Criminal Procedure Code but it gives the High Court power to correct errors of various kinds of all Courts and Tribunals in appropriate cases.

In support of the objection with regard to the jurisdiction of the High Court to entertain a revisional application under Article 227 of the Constitution of India, Mr. Bhattacharjee, appearing for the opposite parties in his preliminary objection, relied upon some judgments which are as follows :-

• Ravi Kant Srivastava vs. Ashok Kr. Chakraborty reported in (2016) 3 WBLR (Cal) 160

• Nivedita Sharma vs. Cellular Operators Association of India & Ors. reported in (2012) 2 WBLR (SC) 38

• The Manager, Burdwan Co-operative Agriculture and Rural Development Bank Limited vs. Anath Bandhu Dhara reported in 2009(2) CLJ (Cal) 685

• Nilmoni Mukherjee & Ors. vs. Asim Kumar Chattopadhyay & Anr. reported in 2008(1) CLJ (Cal) 892

• Hooghly Co-operative Agriculture and Rural Development Bank Limited vs. Nemai Chandra Ghosh reported in AIR 2007 CAL 230

• Binod Behari Das vs. Smt. Soma Roy & Ors. reported in AIR 1996 CAL 231

• United Bank of India vs. Hirak Mukherjee & Ors. reported in 1995(1) CLJ 124

• Visva Bharati vs. Smt. Rakhi Debnath & Ors. reported in 1995(2) CLJ 218

In Ravi Kant Srivastava vs. Ashok Kr. Chakraborty (supra), a Single Bench of this Hon’ble Court, while answering to the question of maintainability of the revisional application before this Court under the provisions of Article 227 of the Constitution of India has held that High Court should not entertain a petition under Article 227 of the Constitution of India against the order of a State Commission while so holding the learned Single Judge relied on another judgment in the case of Nivedita Sharma vs. Cellular Operators Association of India & Ors. (supra), which held redressal of grievance by way of writ petition should not be entertained ignoring statutory dispensation.

In the case of The Manager, Burdwan Co-operative Agricultural and Rural Development Bank Limited vs. Anath Bandhu Dhara (supra), a Single Bench of this Hon’ble Court has held that when the remedy available under the statute that remedy should be exhausted and before exhausting that remedy, petition under Article 227 cannot be entertained. In the said judgment some decisions of the Hon’ble Apex Court has been referred to but no discussion has been made as to whether those judgments have laid down any law as to the total bar for entertaining a revisional application against the order passed by the National State Commission.

In the case of Nilmoni Mukherjee vs. Asim Kr. Chattopadhyay & Anr. (supra), a Single Bench of this Hon’ble Court held that a party aggrieved by an order passed under Consumer Protection Actshould not approach the High Court under Article 227 of the Constitution. The said decision, however, is based on the issue whether a party can approach before this Hon’ble Court under Article 227 ignoring the provisions of Section 19 of the Consumer Protection Act, which provides for an appeal before the National Commission but not with regard to the power of revision by the State Commission under Section 21 of the Consumer Protection Act. Therefore, ratio of the judgment in the said case is not applicable and is distinguishable on fact.

In the case of Hooghly Co-operative Agricultural and Rural Development Bank Limited vs. Nemai Chandra Ghosh (supra), a Single Bench of this Hon’ble Court held that since an appeal has been prescribed before Consumer Disputes Redressal Commission under Section 15 of the Consumer Protection Act, the petition under Article 227 is not maintainable. The said decision is also on a different question and is not applicable in the present case.

In the case of Binod Behari Das vs. Smt. Soma Ray & Ors. (supra), a Single Bench of this Hon’ble Court held that since the appeal has been prescribed under Consumer Protection Act, no revision under Article 227 could be filed. Therefore, this case is also distinguishable on fact and its scope.

In the case of United Bank of India vs. Hirak Mukherjee & Ors. (supra), the Division Bench of this Hon’ble Court held that when on examination of the facts and circumstances of the case, no mistake can be found so as to attract Article 227 of the Constitution making it a fit case for interference, the petitioner should have gone before the National Commission instead of filing a revisional application under Article 227 of the Constitution. The Division Bench has distinguished the scope of interference with the order passed by the State Commission under Section 21 of the Consumer Protection Act and under Article 227 of the Constitution of India. The Division Bench held that if the petitioner can make out a case or the error of such that has been committed by the State Commission then only a petition under Article 227 would be held to be maintainable, otherwise the petitioner has to go before the appellate forum within the meaning of Section 19 of the Consumer Protection Act. It has also been held that the scope under Section 19 of the Consumer Protection Act is more wider than scope of the petition under Article 227 of the Constitution. In the present case as would appear later that State Commission’s finding suffers from perversity inasmuch as without discussing the evidence on record, it has held that Forum’s finding is not based on evidence.

In the case of Visva Bharati vs. Smt. Rakhi Debnath & Ors. (supra), a Single Bench of this Hon’ble Court with reference to the scope of Section 21 of the Consumer Protection Act held that when the Act clearly makes a provision for appeal against the order of District Forum before the State Commission and even the decision of the State Commission can be challenged in revision before the National Commission, the aggrieved party without exhausting such remedy, ordinarily, should not be allowed to raise disputed question of facts by invoking the power of the High Court under Article 226 of the Constitution. Therefore, this judgment has got no application in the facts and circumstances of the present case.

To contradict the objection with regard to the maintainability of the petition under Article 227 of the Constitution, Mr. Banerjee, appearing for the petitioner, has placed reliance upon the following decisions :-

• Judgment and order dated 20th January, 2016 passed in the case of Bhaskar Jalan & Anr. vs. M/s. Housing Estates Pvt. Ltd. & Ors. (C.O. No. 4158 of 2015).

• Judgment and order dated 20th January, 2014 passed in the case of L & T Finance Ltd. vs. Anup Kumar Bera & Anr. (C.O. No. 3020 of 2012).

• Judgment and order dated 7th March, 2012 passed in the case of The Operation Manager, Auto Loan Consumer Service Department, ABN Amro Bank Ltd. vs. Praveen Khaitan & Anr. (C.O. No. 749 of 2008 with CAN No. 6414 of 2011).

In the case of Bhaskar Jalan and Anr. vs. M/s. Housing Estates Pvt. Ltd. and Ors. (supra), a Single Bench of this Hon’ble Court, while deciding a revisional application against an order passed by State Consumer Redressal Commission in exercise of its power under Section 17(1)(b) of the Consumer Protection Act, 1986 and the preliminary objection with regard to maintainability of the revisional application before this Court under Article 227 of the Constitution, has held –

“…There is a fundamental distinction between a statutory power and a constitutional power. There cannot be any limitations on constitutional power. The limitations, if any, are self-imposed. While statutes are seasonal, the Constitution is perennial. The power exercised by the Court under Article 227 of the Constitution of India is a power bestowed upon the Court by the Constitution and such power cannot be curtailed by any statutes. All the Courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227of the Constitution of India. While appellate or revisional jurisdiction is regulated by the statutes, the power of superintendents under Article 227 of the Constitution is constitutional. The Court under Article 227 of the Constitution of India may interfere with an order passed by the Subordinate Court or Tribunal if the Court finds that the reasons given by the Trial Court are moonshine, flimsy or irrational and not merely because in the exercise of its discretion, another Court might have a different view and allowed the application or because the reasons for giving a ruling on a point or for rejecting an application may be wrong or disclosed a non-judicious exercise of discretion and open to correction in an appeal. The power under Article 227 of the Constitution being a power of judicial superintendents must be exercised sparingly and only to keep Subordinate Courts and Tribunals within the bound of their authority and not to correct mere errors. Moreover, where the statute bears the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution since the power of superintendents was not meant to circumvent statutory law. The said power could not be exercised “as the cloak of an appeal in disguise”. Ordinarily when a statutory forum is created by law for redressal of grievance and that too, in a fiscal statute, the Court may not exercise its supervisory jurisdiction under Article 227 of the Constitution of India. It is misnomer to say that a statutory power debars a Constitutional Court from exercising its jurisdiction under the Constitution. The Court imposes a self- restriction on its power while discharging its function under the Constitution if there is an efficacious alternative remedy available in law to a litigant…”

In L & T Finance Ltd. vs. Anup Kr. Bera and Anr. (supra), a Single Bench of this Hon’ble Court, while considering the point of maintainability of a petition under Article 227 of the Constitution against an order passed by the Station Commission, has held –

“… The Consumer Protection Act, 1986 is enacted to protect the common man from wrongs where the remedy under the common law has become illusory. Under the said Act, a consumer is entitled to participate in a proceeding directly and is helpless against the power business house is sufficiently taken care off. The Consumer can very well ventilate his grievance before the Forum without any procedural wrangles and hypertechnicalities. The Forum also correspondingly owes responsibility to adjudicate on summary trial to serve the ends of justice not only in the form of damages but to bring a change in the attitude of service provider qualitatively. The Forum cannot absolve itself from providing the reasons to avoid the chance of arbitrariness and to provide the higher forum to test the correctness thereof. In the above perspective, the observation of the three judge bench of the Supreme Court in case of Vishwabharathi House Building Coop. Society (supra) can be safely relied upon which reads thus:

“39. The rights of the parties have adequately been safeguarded by reason of the provisions of the said Act inasmuch as although it provides for an alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reasons. Even when quantifying damages, they are required to make an attempt to serve the ends of justice aiming not only at recompensing the individual but also to bring about a qualitative change in the attitude of the service provider. Assignment of reasons excludes or at any rate minimizes the chances of arbitrariness and the higher forums created under the Act can test the correctness thereof.”

The impugned order is bereft of any reasons. The District Forum dismisses the complaint case solely on the ground of having approached the Civil Court. There was no finding recorded by the District Forum which obviously should not be done on the findings relating to the grant of compensation and/or damages. The State Commission while arriving at the finding that the order of the District Forum is not sustainable awarded the compensation and/or damages as claimed in the said complaint petition without recording any findings thereupon. It is still unknown at least from the impugned order as to what evidence and/or materials were produced by the opposite party no.1 on an issue relating to the compensation and/or damages. The State Commission should have scanned the evidence and the documents produced on the issue of the compensation and/or damages and the quantum thereof…”

While deciding the point of maintainability, The Hon’ble Judge also considered the judgment in the case of Nivedita Sharma vs. Cellular Operators Association of India and Ors. (supra), Operation Manager, Auto Loan Consumer Service Department, ABN Amro Bank Ltd. vs. Prabin Khaitan and Anr. (supra). The Hon’ble Judge has also considered the case of