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Judgment
Sabyasachi Bhattacharyya, J
A question which arises at the outset, a preliminary objection being taken on behalf of the opposite party no. 1 as to the maintainability of the present revisional application before this Court in view of availability of an equally efficacious alternative remedy before the National Commission, is, whether the provisions of Section 21(b) of the Consumer Protection Act, 1986 is an adequate remedy for the petitioner in the present context.
Learned counsel for the petitioner argues that the present application under Article 227 of the Constitution of India has been filed, challenging a final order passed by the State Commission in an appeal and, as such, no remedy is provided before the National Commission against such an order.
By placing reliance on a comparative study of Section 17(1)(b) and Section 21(b) of the Act of 1986, learned counsel for the petitioner argues that it would be evident that both the said provisions are exactly the same. Placing reliance upon Section 17(1)(b) of the Act of 1986, it is argued that the said provision is restricted to interlocutory orders only, in view of an appeal lying against an order of a District Forum before the State Commission.
It is, thus, submitted that since the language of Section 21(b) is exactly the same as Section 17(b), it has to be construed in the same perspective and must relate to interlocutory orders and not a final order.
Moreover, it is submitted that the Act of 1986 provides for an appeal against only orders made by the State Commission of an original nature under Section 17(a)(i) and, as such, no appeal would lie against a final order passed by the State Commission in its appellate jurisdiction. As such, relying on the principal of ubi jus ibi remedium, learned counsel for the petitioner submits that the petitioner cannot be remediless against a final order passed by a State Commission in its appellate jurisdiction and since Section 21(b) does not provide a remedy against a final order, the only appropriate relief could be granted by this Court under Article 227 of the Constitution of India.
Learned counsel for the petitioner, in this context, also places reliance on Section 115 of the Code of Civil Procedure. It is argued that Section 115 of the Code is pari materia with the provision of Section 21(b). It is specifically stipulated in Section 115 of the Code that only where no appeal is available against the impugned order, a revision under Section 115 of the Code lies. Learned counsel for the petitioner argues that any such clause is absent in Section 21. Thus, it is argued, the absence of availability of an appeal, does not automatically apply Section 21(b) to final orders, in the absence of such a stipulation akin to Section 115 of the Code of Civil Procedure in Section 21(b) of the 1986 Act.
However, a perusal of Section 17(1)(b) of the 1986 Act makes it evident that there is no scope for applicability of clause (b) of the said sub-section to a final order passed by the District Forum, in view of Section 17(1)(a)(ii), which provides for an appeal against such order before the State Commission. The difficulty arises in cases of the final orders passed by the State Commission in its appellate jurisdiction, since Section 19 of the 1986 Act does not provide for any appeal against such an order.
However, contrary to the submissions of the petitioner that the absence of a provision under Section 21(b), similar to Section 115 of the Code of Civil Procedure, would debar the National Commission from taking up a revision against final orders, such a bar need not be explicit, but may be implicit, as in the present case.
Section 19 of the 1986 Act specifically provides for an appeal only against original orders passed by the State Commission, but does not provide for an appeal against an appellate order, either interlocutory or final, passed by the State Commission.
Thus, coupled with the fact that Section 21(b) does not restrict the applicability of clause (b) merely to interlocutory matters, a line of distinction has to be drawn between Section 17(1)(b) and Section 21(b), despite the language of the two provisions being the same, by factoring in the effect with Section 19 of the 1986 Act, which does not provide for an appeal against the final order.
Since the Consumer Protection Act, 1986 itself provides for a revision against all orders, irrespective of whether those are interlocutory or final, by way of Section 21(b) against orders passed by the State Commission in its appellate jurisdiction, Section 19(b) operates as an implicit bar, which is akin to the one provided in Section 115 of the Code of Civil Procedure.
As such, a composite reading of Sections 17, 19 and 21(b) of the 1986 Act makes it evident that the National Commission has jurisdiction under Section 21(b) of the 1986 Act to exercise its revisional powers over all orders passed by the State Commission in its appellate jurisdiction, be those interlocutory or final, since no appeal is provided against such orders, but Section 21(b) provides specifically a revisional relief against the same.
In such view of the matter, the maintainability issue is decided against the petitioner.
Accordingly, C.O. No. 3851 of 2015 is dismissed as not maintainable, by granting liberty to the petitioner to approach the National Commission with an appropriately constituted proceeding against the present impugned order.
It is made clear that this Court is of the opinion that the error committed in preferring the present revisional application under Article 227 of the Constitution of India is bona fide, more so, since the matter was entertained by a coordinate Bench of this Court, thereby creating doubt as to the maintainability, which might be considered by the National Commission if an application for condonation of delay in preferring a revision, if any, is taken out before the National Commission.
Leave is also granted to the advocate-on-record for the petitioner to take back the certified copy of the impugned order from the concerned department, upon compliance of due formalities.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of necessary formalities.