Last Updated on October 15, 2020 by Satish Mishra
In this post we will discuss about dismissal of writ petitions in consumer cases when an alternative remedy is provided by the law before Punjab Haryana High Court Chandigarh
Article 32 and Article 226 of the Constitution provide two separate but parallel provisions of writ jurisdiction with the Supreme Court and High Courts respectively. The provision of Article 226 is a constitutional provision, but it is not a fundamental right
The writ Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a subordinate court, Certiorari can be resorted to only after the order or decision has been announced.
ALSO READ- WRIT PETITION HIGH COURT TERMINATION OF EMPLOYMENT
Facts in Brief : THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Pranav Ansal … Petitioner
Vs.
State Consumer Disputes Redressal Commissioner, Punjab and others … Respondents
A complaint was filed by complainants Shriya Sharma and Ritu Sharma under Section 17 of the Consumer Protection Act, 1986 (for short `the Act’) against three Opposite Parties (OPs) i.e. Ansal Lotus Melange Projects Pvt. Ltd., Pranav Ansal (present petitioner) and Pradeep Bansal (being the Managing Director and Director of OP No.1-Ansal Lotus Melange Projects Pvt. Ltd.). In the said proceedings, OPs No.2 and 3 did not appear despite service and were proceeded as against ex-parte. Ultimately, the said complaint was allowed by the learned State Commission vide order dated 26.08.2019 directing the OPs to refund the complainants the deposited amount of Rs.17,33,845/- along with interest @ 12% per annum and to pay a compensation of Rs.35,000/- as compensation on account of mental agony and harassment as well as litigation expenses. As per the facts on record, no appeal has been filed by the OPs against the said order dated 26.8.2019, thereby that the same has attained finality. The complainants filed execution proceedings for compliance of the order dated 26.8.2019. In the said proceedings, the learned State Commission has passed the order dated 26.02.2020, thereby issuing the production warrants of the petitioner. From the said facts, it is apparent that the petitioner chose not appear in the consumer complaint filed by respondent Nos.2 and 3. He also did not lay any challenge to the judgment 26.08.2019 before the National Consumer Disputes Redressal Commission, New Delhi, in terms of Section 19 of the Act. Still further, document on record, shows that the petitioner has already filed objections in the said execution proceedings.
Issues involved : The main issue of the current petition is whether the writ is maintainable in High court ?
The council from the petitioner contended that the writ filed in the court is valid on the ground that primarily it is the right of the petitioner , moreover the petitioner never received or was informed about the complaint filed in the first place . The council of the petitioner also pointed out that the state commission has failed to recognize the fact that the petitioner has no connection with the respondents , he was not a director and proceedings against him are deemed to be quashed and failure to do so will be a gross injustice towards the petitioner .
Judgements cited
The court to decide whether the current case is maintainable in the high court has relied on number of supreme court judgements as follows
In case of Cicily Kallarackal Vs. Vehicle Factory (2012) the supreme court of India has opined that “Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.”
In Rajesh Moti Sujan Vs. State Consumer Dispute Redressal Commission, Maharashtra and others, the High Court of Bombay held as under:-
“12. Perusal of Section 27-A, extracted hereinabove, shows that notwithstanding anything contained in Cr.P.C an appeal under section 27, both on facts and on law, lies before the National Commission when the order is made by the State Pranav Ansal vs State Consumer Disputes Commission. Section 27-A does not make any distinction between interim order and the final order. In view thereof, it has to be held that the Petition is not maintainable before the High Court challenging the order passed by the Commission. Hence, Petition fails and the same is dismissed on the ground of maintainability reserving liberty to the petitioner to approach an appropriate forum. It is made clear that I have not examined the merits of the case. Order accordingly.”
ALSO READ– WRITS IN PUNJAB HARYANA HIGH COURT CHANDIGARH
Findings of the court : After hearing the contentions put forth buy the council . perusal of landmark judgements and examination of documents on record the court firstly read section 27 of consumer protection which reads as follows
“27A. Appeal against order passed under Section 27-
(1) Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from– (a) the order made by the District Forum to the State Commission;
(b) the order made by the State Commission to the National Commission; and
(c ) the order made by the National Commission to the Supreme Court.”
The court stated that , From a plain reading of the aforesaid provision, it appears that the legislature has specifically mentioned the appellate forum under Section 27-A of the Act. In fact, in terms of Section 27-A(1)(b), the appeal lies against the order passed by the State Commission under Section 27 of the Act to the National Commission. In the instant case, the petitioner has approached this Court invoking Article 226 of the Constitution instead approaching the National Commission for setting aside the orders of the Commission-respondent No.1 in the proceedings initiated under Section 27 of the Act.
Accordingly the court passed an order stating that it is amply clear that the Consumer Protection Act, 1986 itself provides for filing of an appeal both on facts and on law, before the specially constituted forum under the said Act for redressal of the grievances of the aggrieved party. In such a situation, the invocation of Article 226 of the Constitution of India by the person aggrieved against the orders of the Commission-respondent No.1 would not be tenable.
Hence the writ was ordered not maintainable.
ALSO READ- WRIT OF MANDAMUS CERTIORARI IN PUNJAB HARYANA HIGH COURT
Conclusion
It is very crucial to bear in mind that the filing of writ is not an absolute right of the citizen , when the legislation has provided alternative remedies available to the citizens, the citizens are expected to exhaust the same before invoking article 32 or 226 . This not only ensures speedy disposal of cases but also lessens the burden on the high courts which is quite necessary given the situation with respect to pending cases in high courts and supreme courts of India .
For case specific advice, please contact writ lawyers of Punjab Haryana High Court in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar Baltana Mullanpur etc.
This post is written by Pranjal Rai.
More on 99888-17966
