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2016 DIGILAW 997 (CAL)

Unnayan Builders Pvt. Ltd. v. Manas Kumar Mallik

2016-12-12

HARISH TANDON

body2016
JUDGMENT : 1. This revisional application is directed against the judgement and order dated 26th September, 2016 passed by the State Consumer Disputes Redressal Commission, West Bengal in Revision Petition No. RP/1/2016, whereby and whereunder the order rejecting the prayer for referring the parties to arbitration was affirmed to the extent of modification that an opportunity was given to the petitioners to file written version. 2. In a complaint case the petitioners appeared and filed an application under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 for an appropriate direction upon the parties to go for arbitration, as the subject disputes are covered under the Arbitration Clause. The District Forum rejects such plea, which was challenged before the State Commission. 3. In course of argument a judgement of the Co-ordinate Bench in C.O. 508 of 2016 decided on 23rd June, 2016 was cited before the State Commission, wherein this Court held that in view of the judgement delivered by the Supreme Court in case of SBP & Company vs. M/s. Patel Engineering reported in AIR 2006 SC 450, the subsequent judgement of the Supreme Court being smaller in quorum and the National Commission cannot be relied upon. 4. What has been held in the said order of the Co-ordinate Bench is that once the dispute raises in a complaint case is covered by an Arbitration Clause, the forum loses jurisdiction having trapping of a Court and it is imperative to refer the parties to arbitration. 5. Strangely enough the State Commission after noticing the said judgement of the Co-ordinate Bench refused to accept the proposition laid down therein and acted contrary thereto relying solely on the judgement rendered in case of Om Prakash Saini vs. DCM Ltd. & Ors. reported in (2010) 6 Scale 294 and Nivedita Sharma vs. Cellular Operators Assn. of India & Ors. reported in (2011) 13 Scale 584 to the extent that the High Court cannot exercise power under Article 227 of the Constitution of India ignoring the availability of effective alternative remedy. 6. What is sought to be percolated by recording such observations is that the moment the Special Act provides a further remedy, the power of the High Court under Article 226/227 of the Constitution of India has been excluded and entertaining any application under the aforesaid provision is beyond the scope and jurisdiction enshrined under the aforesaid provision. 7. 6. What is sought to be percolated by recording such observations is that the moment the Special Act provides a further remedy, the power of the High Court under Article 226/227 of the Constitution of India has been excluded and entertaining any application under the aforesaid provision is beyond the scope and jurisdiction enshrined under the aforesaid provision. 7. I had an occasion to consider the judgement of the Supreme Court in case of L & T Finance Limited vs. Anup Kumar Bera & Anr. reported in 2014 (5) CHN 233 but did not find that the Apex Court has laid down the law in a manner as has been read and perceived by the author of the impugned judgement. It would suffice for the present, if the excerpts from the said judgement is quoted hereinbelow : “We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation – L. Chandra Kumar v. union of India (1997) 3 SCC 261 . However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. In Thansingh Nathmal vs. Superintendent of Taxes AIR 1964 SC 1419 , this Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed : ‘The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.’ In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 , this Court observed: ‘It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkeesford (1859) 6 CBNS 336 : 141 ER 486 in the following passage: ‘There are three classes of cases in which a liability may be established founded upon a statute…….But there is a third class, via., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.’ The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 : (1918-19) All ER Rep. The form given by the statute must be adopted and adhered to.’ The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 : (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. 1935 AC 532 and Secy of State v. Mask and Co. (1939-40) 67 IA 222 : AIR 1940 PC 105 . It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.’ In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536 , B. P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: ‘So far as the jurisdiction of the High Court under article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.’ In the judgements relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar AIR 1969 SC 556 , it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy.” 8. The three Bench decision of the Supreme Court rendered in case of State of Karnataka vs. Vishwabharathi House Building Coop. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy.” 8. The three Bench decision of the Supreme Court rendered in case of State of Karnataka vs. Vishwabharathi House Building Coop. Society reported in (2003) 2 SCC 412 was further noticed wherein it is held that by reason of Section 3, the Consumer Protection Act acts as supplementary jurisdiction and not supplanting jurisdiction of the Civil Court or the other statutory authority. It was further observed that in the event the complaint involves complicated issues of facts and law and large number of witnesses and the documents are to be scanned, it would be proper for the Civil Court to decide the same. 9. It has been consistent view that the power under Article 226/227 of the Constitution of India is a basic feature or the structure of the Constitution and cannot be taken away even by a parliamentary legislation. 10. In my view, the State Commission has completely overlooked and consciously ignored the judgement of the Co-ordinate Bench under a lame excuse and upon a wrong proposition of law that once a special remedy is provided under the Act, the judgement of the High Court loses its binding force or efficacy. The judgement should not be read as a statute. It is a ratio, which binds the subordinate authorities, which is required to be culled out from the facts of the said case. 11. The State Commission has misinterpreted and/or misconstrued the judgement rendered in case of Om Prakash Saini (supra) and Nivedita Sharma (supra) in arriving at the final conclusion that the High Court cannot exercise power enshrined under Article 226/227 of the Constitution of India by ignoring the availability of other efficacious remedies. 12. In plethora of judgements rendered by different High Courts as well as the Supreme Court, it has been consistently held that ordinarily the High Court should refuse to exercise power enshrined in the aforesaid Article, if there is efficacious alternative remedy available to the aggrieved person. The Courts have imposed self-restraint in exercising such jurisdiction. It should not be confused as a rule of rigidity. It is more a rule of discretion than of compulsion. 13. The Courts have imposed self-restraint in exercising such jurisdiction. It should not be confused as a rule of rigidity. It is more a rule of discretion than of compulsion. 13. In a deserving cases the High Court can exercise its power under Article 226/227 of the Constitution of India to keep the Court and the subordinate Tribunals within the periphery of law. A tendency has grown recently when the State Commission is ignoring the judgement or orders passed by the High Court in exercise of such jurisdiction and the meritorious matters are being decided completely in ignorance of law or sometimes opposed to law. There is a least respect or sanctity being given to the orders of the High Court under conscious misconception of law that the High Court loses jurisdiction to entertain any matter flowing or arising from a proceeding initiated under the Consumer Protection Act. 14. The impugned order is a glaring example of such approach, which, this Court feels, should not be allowed to go without any interference, as the High Court cannot sit idle or be a mute spectator or a listener, if clear misuse or abuse of powers are surfaced and apparent on the face of the record. 15. The entire approach of the State Commission is contrary to the order of the Co-ordinate Bench as well as the settled proposition of law and, therefore, this Court cannot give its blessings in the form of rejection of the revisional application on a preliminary objection raised over the jurisdiction. 16. The order impugned is thus set aside. 17. The State Commission is directed to rehear the said appeal after affording an opportunity of hearing to the respective counsels and shall see that the same is disposed of within two weeks from the date of the communication of this order in accordance with law. 18. While disposing of the said appeal the State Commission shall bear in mind the observations recorded hereinabove. 19. For abundant precaution it is hereby made clear that none of the observations recorded hereinabove shall have any persuasive effect or value on the merit of the said application, which shall be decided independently and without being influenced by any observations made hereinabove. 20. With these observations, this revisional application is disposed of. 21. There will be no order as to costs.