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2012 DIGILAW 39 (AP)

B. Venu Madhav v. National Consumer Disputes Redressal Commission, Represented by its Registrar, New Delhi

2012-01-18

G.KRISHNA MOHAN REDDY, V.V.S.RAO

body2012
Judgment :- V.V.S. Rao, J. In this writ petition the order dated 14.10.2011 in Revision Petition No.478 of 2007 passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (hereafter, the National Commission) is assailed as arbitrary, illegal and without jurisdiction, with a further prayer to set aside the same. The brief fact of the matter to the extent necessary for in limine disposal of the writ petition is as follows. The petitioner is Managing Partner of M/s. Rajyalakshmi Constructions, Ramanthapur, Hyderabad. The said firm constructed ‘Rajyalakshmi Apartments’ in Habsiguda, Hyderabad in 1996. The second respondent and his wife purchased plot No.208. The same was alienated under a sale deed dated 17.8.1996. Clause 4 thereof provided that the purchaser shall have the right to enjoy and use along with other co-owners the open land, roadways, approaches and all other means of ingress and egress and shall have all the rights, title and interest in any construction, building, floor area, flat or garage or any portion of the schedule property. Obviously the second respondent and others occupied their respective flats and were making use of the common/parking area in the apartment for parking/other purposes. The second respondent was using the area for parking till July, 2003. At that juncture ‘Rajyalakshmi Apartment Owners Association’ (a registered association, in which the second respondent was a member) allotted specially earmarked parking slots to 23 persons. In the process the second respondent who was statedly using the parking area from 1996 to July, 2003 was forced to have a restricted access to the parking area. He, therefore, approached the District Consumer Redressal Forum, Ranga Reddy District (the District Forum) seeking mainly a declaration that the car parking area belongs to all owners and every flat owner has a right to park his vehicle in the parking area, and consequential directions as well as compensation for mental agony suffered by him. The complaint was dismissed on 02.2.2006 by the District Forum as barred by limitation. Aggrieved by the same, the second respondent filed appeal under Section 15 of the Consumer Protection Act, 1986 (the Act) being F.A.No.216 of 2006 before the learned Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (the State Commission). The complaint was dismissed on 02.2.2006 by the District Forum as barred by limitation. Aggrieved by the same, the second respondent filed appeal under Section 15 of the Consumer Protection Act, 1986 (the Act) being F.A.No.216 of 2006 before the learned Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (the State Commission). By order dated 05.1.2007, the State Commission allowed the appeal directing the petitioner herein to provide car parking space and also gave liberty to the second respondent to approach the Municipal Corporation of Hyderabad for demolition of any illegal construction made by the builder. The plea that remedy was barred by limitation was negatived by the State Commission on the holding that the second respondent has had continuous cause of action. The petitioner then unsuccessfully assailed the order of the State Commission under Section 21(b) of the Act before the National Commission. At the stage of admission itself, the second respondent entered appearance and filed counter affidavit opposing the writ petition on the merits as well as on the question of maintainability. As the factual background is not seriously in issue, it is not necessary to sum up the contents of the counter affidavit nor reiterate the case of the second respondent who set in motion the redressal procedure under the Act. The Counsel for the petitioner raised two contentions. First he would contend that a writ petition under Article 226 of the Constitution is not barred against the order of the National Commission. He made an attempt to draw support from L. Chandra Kumar v Union of India ( (1997) 3 SCC 261 : AIR 1997 SC 1125 ). Secondly he would submit that the claim made by the second respondent is barred by limitation. He would rely on Kandimalla Raghavaiah & Co., v National Insurance Co., ( (2009) 7 SCC 768 ). The Counsel for the second respondent placing reliance on an unreported decision of the Supreme Court in Nivedita Sharma v Cellular Operators Association of India (Civil Appeal No.10706 of 2011, dated 07.12.2011) would vehemently oppose the writ petition. According to him, in view of Sections 20, 21, 23 and 24 of the Act judicial review under Article 226 of the Constitution is barred against the orders passed by the National Commission. According to him, in view of Sections 20, 21, 23 and 24 of the Act judicial review under Article 226 of the Constitution is barred against the orders passed by the National Commission. He would urge that the plea of limitation is misconceived in view of the covenant in the conveyance deed that the second respondent is entitled to use the parking/common area in the apartment block and as and when the right is denied he can always approach the District Forum complaining deficiency of service. Question of limitation The State Commission and the National Commission, after appreciating Clause 4 in the sale deed marked before the District Forum as Ex.A1, have recorded a finding that in view of the right of the flat owner to use common areas including parking area, any denial thereof would give cause of action to seek redressal in the District Forum. It is a continuous cause of action in which event the plea of limitation is certainly misconceived. The decision in Kandimalla Raghavaiah & Co., does not in any manner come to the rescue of the petitioner who does not dispute the sale deed nor assails clause 4 therein as unconscionable on any ground. We have adverted in brief the issue not because we can entertain an application for judicial review but because of debate for considerable length of time in the Court on this aspect. We also may not be understood as having subjected the order of the National Commission to judicial review. The decision of the highest Forum constituted under the Act is given finality under Section 24 of the Act and, therefore, any reconsideration of such issue would not be proper. Question of maintainability of writ petition The Consumer Protection Act was enacted pursuant to Resolution dated 09.4.1985 of the General Assembly of the United Nations Organisation by the Consumer Protection Resolution No.39/248. It meets the long felt necessity for protecting the common man from the wrongs perpetrated by the suppliers of goods and services. The importance of the Act lies in promoting welfare of the society by ensuring direct participation of the consumers in the market economy and helplessness of the gullible consumer is sought to be minimized (Lucknow Development Authority v M.K.Gupta ( (1994) 1 SCC 243 : AIR 1994 SC 787 )). The importance of the Act lies in promoting welfare of the society by ensuring direct participation of the consumers in the market economy and helplessness of the gullible consumer is sought to be minimized (Lucknow Development Authority v M.K.Gupta ( (1994) 1 SCC 243 : AIR 1994 SC 787 )). The statement of objects and reasons among others states that the Act ensures the right to be heard and to be assured that the consumers’ interests will receive due consideration at appropriate fora. The remedies provided in the three-tier hierarchy of fora are not derogation to any other law in force in India. The Act is self-contained Code. It is intended to provide inexpensive and expeditious redressal mechanism for a consumer who suffered injury by reason of defective goods or defective services. Apart from the original remedies before the District Forum, State and National Commissions, the endeavour of the Act is to minimize the appeals and revisions. A perusal of Sections 11, 15, 17, 21 and 23 of the Act would show that the spirit behind the enacted provisions is not to perpetuate the consumer disputes perennial. The Act seeks to give a quietus to disputes by providing quicker remedy in preference to common law remedy in civil court. Indeed Section 24 of the Act declares that the order passed by the District Forum, State Commission or National Commission shall be final subject to appeal if any provided by the Act. Therefore, in our considered opinion when the opposite party to a consumer dispute has an adequate opportunity of defending the complaint before the original Forum and then seeking redressal before the appellate as well as revisional Forum, the further petition for judicial review under Article 226 of Constitution ordinarily would not lie. We do not intend to say that the decision of any statutory authority/Tribunal/Forum is not reviewable. Given the importance of judicial review in the Constitutional scheme the power of which is conferred to the highest Court of the State and the Nation, such a proposition may not always generally be accepted. Nonetheless the scope of judicial review or reviability of a decision of a statutory body depends on the statute creating such a forum and the decision rendered by it subject to provisions of the statute. Nonetheless the scope of judicial review or reviability of a decision of a statutory body depends on the statute creating such a forum and the decision rendered by it subject to provisions of the statute. When the statute renders the decisions of the statutory authorities including Tribunals and Fora final, the Court of judicial review ought to be very very slow to step-in and entertain petitions. This was the ratio of the Supreme Court in Nivedita Sharma. Reliance placed in L.Chandra Kumar is also misplaced. It was a case where the Supreme Court was concerned with the Constitutional vires of the Constitution 42nd Amendment Act which barred any petition for judicial review before a High Court under Article 226 of the Constitution. The Supreme Court read down Section 28 of the Administrative Tribunals Act, 1985, as not excluding the jurisdiction of the High Court to entertain a petition for judicial review against an order of the Service Tribunals in the States. Even such a petition for judicial review has to be heard by a Bench of two Judges presumably for the reason that the Service Tribunals are constituted to discharge supplemental jurisdiction conferred by the Constitution on the High Courts. It does not however mean that High Court under Article 226 of the Constitution can entertain a petition for judicial review against the order passed by the National Commission which is not appealable to Supreme Court under Section 23 of the Act. Having found the provisions of the Act and applying the settled principles of judicial review, we have no manner of doubt to hold that a writ petition against the order of the National Commission would not lie even if such order is not appealable under Section 23 of the Act. The writ petition for the above reasons fails and is, therefore, dismissed with costs quantified at Rs.10,000/- (Rupees ten thousand only).