Can HCs Entertain Writ Petitions Against Orders Of Consumer Fora? Calcutta HC Answers [Read Judgment]

Can HCs Entertain Writ Petitions Against Orders Of Consumer Fora? Calcutta HC Answers [Read Judgment]

"The Supreme Court while considering the issue of constitutionality of the CP Act having held in unambiguous terms that the power of judicial review is not taken away, the dicta in Cicilly Kallarackal (supra) seems to us to be in conflict therewith. Thus, the said decision loses much of its efficacy as a binding precedent”

The Calcutta High Court has observed that High Courts do not lack jurisdiction to entertain writ petitions/applications under Article 227 of the Constitution questioning orders of the State Consumer Commission or the District Forum.

The bench comprising Justice Dipankar Datta and Justice Bibek Chaudhuri, were addressing the contention raised by home-buyers, that in view of appellate remedies made available by the Consumer Protection Act, no challenge to the orders passed by the State Commission or the District Forum should be entertained by High Court under Articles 226/227 of the Constitution of India.

The bench was answering a reference on a question about jurisdiction of Consumer Fora. The question referred to the division bench was whether the fora constituted under the Consumer Protection Act, 1986 have jurisdiction over disputes between promoters/developers and purchasers of residential buildings or flats, having regard to the provisions of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act. The bench held that the fora under the Consumer Protection Act is competent to receive a complaint from a home buyer against a promoter if the former has any grievance against the latter in respect of services provided pertaining to purchase of a flat/apartment.

Writ Petitions Against District Forum/State Commission Maintainable

To contend that the High Courts would have no jurisdiction to entertain writ petitions/applications under Article 227 of the Constitution questioning orders of the State Commission or the District Forum, heavy reliance was placed on Supreme Court judgment in Cicily Kallarackal v. Vehicle Factory. The said judgment had held that the orders of the National Commission are incapable of being questioned under the writ jurisdiction of the High Court as a statutory appeal in terms of section 27-A(1)(c) lies to the Supreme Court. In this regard, the bench said:

"If indeed the decision in Cicily Kallarackal (supra) has to be read (in the manner the learned Judges of the Bench have required learned Judges of the High Courts to read it) as foreclosing the remedy of judicial review against an order of the National Commission, no High Court should entertain a writ petition wherein an order of the National Commission is under challenge. This is so, because an appeal lies to a court higher than the High Courts and hence the latter have no jurisdiction.. Thus read, it may not follow from the decision in Cicily Kallarackal (supra) that the High Courts would have no jurisdiction to entertain writ petitions/applications under Article 227 of the Constitution questioning orders of the State Commission or the District Forum. The State Commission and the District Fora in a particular State are quasi-judicial bodies inferior to the relevant High Court and therefore, the special reason for which orders passed by the National Commission were held in Cicily Kallarackal (supra) to be immune from challenge before the High Courts would not apply. Therefore, Cicily Kallarackal (supra) cannot be pressed into service unless an order of the National Commission is challenged in a writ petition before the High Court."

Cicily Kallarackal Judgment Raises More Questions Than What Is Answered

The bench went on to observe that the ruling in Cicily Kallarackal raises more questions than what is answered. Requiring a party to exhaust the alternative remedy prior to approaching the court of writ is not a rule of law but a rule of convenience and discretion which, at any rate, does not oust the jurisdiction of the Court, said the bench referring to various other Supreme Court decisions.

The bench particularly noted the judgment of Supreme Court in State of Karnataka vs. Vishwabharathi House Building Coop. Society, where it held that the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been nor could be taken away. The court said:

"If indeed an order passed by the National Commission is not open to challenge before a High Court within whose territorial limits the cause of action may have arisen and the appellate remedy before the Supreme Court is the only remedy that is made available by the CP Act, thereby excluding the power of judicial review of the High Court, does it not erode the very basis on which the decision in Vishwabharathi House Building Coop. Society (supra) is structured? The Supreme Court while considering the issue of constitutionality of the CP Act having held in unambiguous terms that the power of judicial review is not taken away, the dicta in Cicilly Kallarackal (supra) seems to us to be in conflict therewith. Thus, the said decision loses much of its efficacy as a binding precedent"

The bench concluded its views as follows:

"On a cumulative assessment of the decisions of the Supreme Court, we find it difficult to persuade ourselves to agree with the proposition of law that if in a writ petition under Article 226 of the Constitution the order of the National Commission is under challenge, the High Court must dismiss the petition irrespective of the ground(s) on which such order is challenged. Indeed, notwithstanding the availability of an appellate remedy before the Supreme Court, such remedy would be illusory for many and if such a reason were assigned to dismiss a writ petition, it is justice that could be the casualty. In a given case where a party attempts to bypass a statutory redressal mechanism without any of the exceptional situations being shown to exist, most certainly the dicta in Cicilly Kallarackal (supra) would apply but such decision may not be relied upon by a respondent at the admission stage of every case to have his opponent's case dismissed as if the High Courts have no jurisdiction to receive writ petitions against any order that the National Commission is empowered to pass under the CP Act."

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