WHETHER A WRIT PETITION IS MAINTAINABLE AGAINST ORDER OF NATIONAL COMMISSION (NCDRC)

 

Whether a writ petition is maintainable against order of National Commission (NCDRC)

         In reference to Section 58(1)(a)(iii) of CPA 2019

The Consumer Protection Act 2019( In short CPA) as it evolved from the Consumer Protection Act 1986, over the years is a comprehensive Act containing the mode and manner of redressal of consumer complaints, appeals, revisions, reviews and/or execution cases. The final order passed by the National Commission for Consumer Disputes is appealable before Supreme Court under section 67 of the Consumer Protection Act (CPA) 2019.

At the very outset, the provision of appeal against the order of NCDRC as contained in section 67 may be reproduced herein:

Section 67: Appeal Against Order of National Commission.

^*67. Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 58, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order:

Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent. of that amount in the manner as may be prescribed.

 

Contextually, it is also necessary to reproduce section 58 of CPA so as to further deliberate in the aspect. The Section 58 of CPA is reproduced as under:

Section 58: Jurisdiction of National Commission.

58. (1) Subject to the other provisions of this Act, the National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crore:

Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;

(ii) complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ten crore rupees;

(iii) appeals against the orders of any State Commission;^#(iv) appeals against the orders of the Central Authority; and

(b) 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 where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

(2) The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof and a Bench may be constituted by the President with one or more members as he may deem fit:

Provided that the senior-most member of the Bench shall preside over the Bench.

(3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:

Provided that the President or the other member, as the case may be, shall give opinion on the point or points so referred within a period of two months from the date of such reference.

From the bare perusal of Section 67 of the CPA 2019 it is apparent that the appeal before the Supreme Court is provided for only in respect of order of National Commission in terms of sub-clause (i) &(ii) of clause (a) of Section 58(1) of CPA, 2019. What is clear that as regards sub clause (iii) of Section 58(1)(a) no appeal is provided for. In such a situation, what shall be the remedy, if the order is passed by National Commission u/s 58(1)(a)(iii) of CPC 2019?

The short question which is posed for the consideration of the Supreme Court in a matter Ibrat Faizan vs Omaxe Buildhome Pvt. Ltd in a CIVIL APPEAL NO. 3072 OF 2022 was as under:

 “whether, against the order passed by the National Commission in an appeal under Section 58 (1) (a)(iii)  of the 2019 Act, a writ petition before the concerned High Court under Article 227 the Constitution of India would be maintainable?”

The Supreme Court has answered the situation as referred to above, in a matter captioned as Ibrat Faizan vs Omaxe Buildhome Pvt. Ltd (Supra). In the aforesaid case , the order passed by a ld Single Judge of High Court was impugned whereby, the learned Single Judge of the High Court had answered the question of jurisdiction and held that against the order passed by the National Commission in First appeal No. 250/2021, a writ petition would be maintainable under Article 227 of the Constitution of India. The writ petition was allowed. The Special leave Petition was thus preferred, as the petitioner was aggrieved and dissatisfied with the order passed by the High Court holding that against the order passed by the National Commission passed in an appeal under Section 58 (1)(a)(iii) of the Consumer Protection Act, 2019, a writ petition under Article 227 of the Constitution of India would be maintainable. The original respondent before the High Court had preferred the appeal before this Court.

CONTENTIONS OF Appellant

(i)          Against the order passed by the National Commission, an appeal provided under Section 27A (1) (c) of the Consumer Protection Act, 1986, would be maintainable and without exhausting the said remedy, the High Court ought not to have entertained the writ petition under Article 227  of the Constitution of India, which was against the order passed by the National Commission in First Appeal.

(ii)        In the alternative, it was contended that assuming that the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission, impugned before the High Court, was maintainable, then too, as even then, in the limited jurisdiction available under Article 227 of the Constitution of India, the High Court ought not to have stayed the order passed by the National Commission passed in first appeal.

                                        CONTENTIONS OF RESPONDENT

(i)          As the appeal before the National Commission was under Section 58 (1)(a)(iii) of the 2019 Act, there is no further appeal provided against the order of the National Commission, as provided to the Supreme Court under Section 67of the 2019 Act, against the order passed by the National Commission under Section 58 (1)(a)(iii) of the 2019 Act. Hence, a writ petition under Article 227 of the Constitution of India would be maintainable. 

(ii)        Reliance was placed on the decision of Supreme Court in the case of Associated Cement Companies Limited Vs PN Sharma, AIR 1965 SC 1595 (paras 44 & 45), and the subsequent decision of Supreme Court in the case of L. Chandra Kumar Vs Union of India (1997) 3 SCC 261.

(iii)          The High Court has rightly observed and held that against the judgment and order passed by the National Commission, impugned before the High Court, a writ petition under Article 227 of the Constitution of India would be maintainable.

ANALYSIS BY SUPREME COURT

Whether the National Commission can be said to be a “tribunal” for the purpose of exercise of powers under Article 227 of the Constitution of India by the High Court is concerned, has been considered by a Constitution Bench of the Supreme  Court in the case of Associated Cement Companies Limited (supra), which is required to be referred to. In paragraphs 44 and 45, it is observed and held as under:

“44. An authority other than a court may be vested by statute with judicial power in widely different circumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136 . Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. 

CONSTITUTION Bench OF SUPREME COURT

This test of a tribunal in a constitution bench judgment  reported as L. Chandra Kumar (supra) , the Supreme Court had the occasion to deal with the jurisdiction of the High Courts under Articles 226/227 of the Constitution of India in respect of powers of judicial review, it was observed and held in para 90 as under:

“90. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot wholly be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Article 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.” That thereafter, it is observed and held that against the order passed by the tribunal, the aggrieved party may approach the concerned High Court under Article 227 of the Constitution of India”.

The Supreme Court has held in Ibrat Faizan vs Omaxe Buildhome Pvt. Ltd (Supra) that so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed in the case of L Chanra Kumar (Supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article of the Constitution. Therefore, in the present case, the High Court has not committed any error in entertaining the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission which has been passed in an appeal under Section 58(1)(a) (iii) of the 2019 Act. However, while exercising the powers under Article 227  of the Constitution of India, the High Court may subjects itself to the rigour of Article 227 of the Constitution and the High Court has to exercise the jurisdiction under Article 227 within the parameters within which such jurisdiction is required to be exercised. The scope and ambit of jurisdiction of Article 227 of the Constitution has been explained by Supreme Court in the case of Estralla Rubber Vs Dass Estate (P) Ltd, (2001) 8 SCC 97, which has been consistently followed by the Supreme Court in the case of Garment Craft Vs Prakash Chand Goel, 2022 SCC Online SC 29. Therefore, while exercising the powers under Article 227 of the Constitution, the High Court has to act within the parameters to exercise the powers under Article 227 of the Constitution. It goes without saying that even while considering the grant of interim stay/relief in a writ petition under Article 227 of the Constitution of India, the High Court has to bear in mind the limited jurisdiction of superintendence under Article 227 of the Constitution. Therefore, while granting any interim stay/relief in a writ petition under Article 227 of the Constitution against an order passed by the National Commission, the same shall always be subject to the rigour of the powers to be exercised under Article of the Constitution of India.

Therefore, it is held that a writ petition under Article 227 of the Constitution of India before the concerned High Court against the order passed by the National Commission in an appeal under Section 58(1)(a)(iii) of the 2019 Act shall be maintainable and necessary orders could be passed by the High Court.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com