Recourse To Article 226/227 In Consumer Disputes: Can The Power Of The High Courts Be Ousted?

Recently, the Supreme Court vide a judgment in Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain^[1], while dealing with the provisions of the 1986 and 2019 Act, held that only in cases where the National Consumer Dispute Redressal Commission [‘NCDRC’] has exercised its ‘original jurisdiction’^[2] will an appeal lie before the Supreme Court. It was categorically held that in cases where the NCDRC exercises appellate/revisional jurisdiction, against which no statutory appeal lies, the aggrieved party must approach the High Courts under Article 226/227 before approaching the Supreme Court under Article 136. Therefore, a Special Leave Petition [‘SLP’], directly assailing the order of the NCDRC passed in its appellate or revisional jurisdiction, would not be maintainable. The Supreme Court in reaching the said conclusion relied upon the judgment of IbratFaizan v. Omaxe Buildhome Private Limited^[3], which in similar circumstances came to a similar finding.

Shortly, after the pronouncement of the judgment in Universal Sompo (supra), the Supreme Court vide another judgment in Ashok Kumar v. New India Assurance Co. Ltd.^[4], set aside the order passed by the NCDRC passed in its ‘revisional jurisdiction’ without any adjudication qua the maintainability of the SLP. Prima facie, this judgment seems to be in contradiction to the approach of the Supreme Court in Universal Sompo (supra) wherein it was observed that in cases where NCDRC passes an order while exercising its appellate/revisional jurisdiction, the litigant should not approach the Supreme Court in an SLP under Article 136 and rather ought to approach the High Courts under Article 226/227. To that extent, at first glance, the judgment in Ashok Kumar (supra) seems per incuriam the judgment in Universal Sompo (supra), however, before arriving at this conclusion, it is necessary to briefly delve into the rationale of the latter.

The Supreme Court while observing in Universal Sompo (supra) that appeals under the Consumer Protection Act can only lie to the Supreme Court in cases where the NCDRC has exercised its original jurisdiction, the findings arrived seems to have purportedly taken a cue from the reasoning adopted by in an earlier decision in Cicily Kallarackal v. Vehicle Factory^[5], though there is no express mention of the latter decision in the former. In the decision of Cicily Kallarackal (supra), the Supreme Court observed, in ‘absolute terms’, that High Courts shall not entertain writ petitions under Article 226 against orders passed by the NCDRC while exercising its original jurisdiction, as a statutory appeal under the Act is provided to the Supreme Court. The relevant observations can be culled out from a perusal of paras 4 & 9 where the Supreme Court held in unambiguous terms that order(s) passed by Consumer Fora are incapable of being questioned in a writ jurisdiction under Article 226 owing to the existence of an alternate statutory remedy. Paras 4 and 9 of the judgment in Cicily Kallarackal (supra) reads as under: -

“4. Despite this, we cannot help but 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.

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9. While declining to interfere in the present special leave petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the orders of the 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 this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission.”

In light of these decisions, each being binding under Article 141, the question that arises and that is attempted to be answered by the present piece is – Does purport of these judgments mean and imply that a petition under Article 226/227 challenging an order passed by a tribunal NCDRC in its original jurisdiction would not be maintainable in light of a statutory appeal?

As can be seen, the findings reached by the Supreme Court in Cicily Kallarackal (supra), which in unambiguous terms ‘cautions’ the High Courts from exercise of its writ jurisdiction, are in the teeth of the findings of the Constitution Bench judgment of the Supreme Court in L. Chandra Kumar v. Union of India^[6]. The constitution bench unequivocally lays down that the power of judicial review vested in High Courts under Article 226/227 is an integral and essential feature of the Constitution thereby constituting part of its basic structure^[7] and cannot be read down by any judgment. In context of Article 323-A and 323-B of the Constitution, it was the finding of Constitution Bench that all decisions of tribunals shall be subject to High Court's jurisdiction under Articles 226/227 and such jurisdiction cannot be ousted. Therefore, in essence, the findings of the judgment in Cicily Kallarackal (supra), to the extent it holds that a litigant, aggrieved by an order of NCDRC passed in its original jurisdiction, cannot challenge the same under Article 226/227, dilutes the basic structure doctrine and divests litigants of their constitutional right only on the ground that there exists a statutory remedy.

Although, and as already stated above, the findings of the Supreme Court are binding on the High Courts^[8], interestingly, the Division Bench of the Calcutta High Court in Universal Consortium of Engineers vs State of WB^[9], while considering the judgment of Cicily Kallarackal (supra), observed that Article 226 does not impose any limitation or restraint on High Courts from entertaining a writ petition even if an efficacious and statutory remedy is available to the party approaching under Article 226. It was observed that the ground of availability of an alternate efficacious remedy was a part of the several ‘self-imposed restrictions’ evolved by the Supreme Court, and therefore, it can in no manner be treated as an ‘absolute bar’ to the exercise of such jurisdiction. Unlike the findings of the Supreme Court in Cicily Kallarackal (supra), the Calcutta High Courtin a protracted judgment, while considering the judgments of L. Chandra Kumar (supra) and 3 judge bench decision in State of Karnataka v. Vishwabharathi House Building Coop. Society^[10], held that the said judgments of larger benches of the Supreme Court ought to have been considered by the Supreme Court in Cicily Kallarackal (supra) prior to coming to a conclusion that Article 226 cannot be invoked to challenge a decision passed by the NCDRC in its original jurisdiction, and therefore, the High Court held that the jurisdiction under Article 226 remains. The conclusion so reached draws strength from the 3-judge bench judgment of the Supreme Court in the matter of Vishwabharathi House Building Coop. Society (supra) wherein the vires of the Consumer Protection Act, 1986 were itself under challenge. The Supreme Court while upholding the 1986 Act, observed in paras 41 and 53, as observed as under: -

“41. By reason of the provisions of the said Act, 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.”

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53. The provisions relating to power to approach appellate court by a party aggrieved by a decision of the forums/State Commissions as also the power of the High Court and this Court under Articles 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards. Furthermore, primarily the jurisdiction of the forums/Commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a civil court as he may have to seek for an order of injunction, he indisputably may file a suit in an appropriate civil court or may take recourse to some other remedies as provided for in other statutes.”

As can be seen from the observations made by the Supreme Court, the existence of both statutory appeals and the scope of judicial review ensures ample safeguards to any dispute that would arise in one’s mind. Therefore, the findings in Cicily Kallarackal (supra) seem to be in conflict and digress from the findings in Vishwabharathi (supra) and, more importantly, the observations of the constitution bench in L. Chandra Kumar (supra), in absolutely barring the ‘maintainability’ of such writ petitions, rather than permitting High Courts to function as Constitutional Courts and determine the ‘entertainability’ of such petitions in their discretion.

The scope of Article 226 was also considered in the judgment of Surya Dev Rai v. Ram Chander Rai^[11], wherein the Supreme Court, while affirming the findings of the Division Bench of the Delhi High Court^[12], observed that powers under Article 226 cannot be whittled down, nullified, curtailed abrogated or taken away either by judicial pronouncements or by the legislative enactment or even by an amendment to the Constitution^[13]. In other words, the power of the High Courts to entertain writ petitions under Article 226/227 against orders of the NCDRC cannot whittled down even by way of judicial pronouncements as the same is not just a constitutional right/power, but a part of the basic structure of the Constitution.

To validate the aforesaid conclusion, that the High Courts cannot be declared ‘incapable’ of exercising their powers under Article 226 against orders wherein a statutory remedy has been prescribed, several judgments passed by the Supreme Court^[14] have held that writ petitions filed impugning the orders passed by the State Commission under the Consumer Protection Act to be ‘maintainable’, however, not ‘entertainable’ in light of their failure to establish the grounds as required and laid down in Whirlpool Corporation v. Registrar of Trade Marks^[15], and in view of an alternative efficacious remedy being available under the Act. Relying upon the judgment in Whirlpool Corporation (supra), the Supreme Court, vide its decision in Radha Krishan Industries v. State of H.P.^[16], summarised the relevant principles of law, which read as under: -

1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
3. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
4. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.

The summary of the findings of the Supreme Court would reflect that the powers of the High Court to exercise its jurisdiction under Article 226 is a matter of discretion which is left to the respective High Courts. The findings of the Supreme Court in Cicily Kallarackal (supra) unfortunately put a complete embargo on the exercise of such jurisdiction which is against the basic structure of the constitution.

CONCLUSION

Although, it is established that the right of seeking judicial review under the Constitution cannot be withheld in any manner, the question gets a little murkier considering that the Supreme Court as late as 2021 still seeks to rely upon the judgment in Cicily Kallarackal (supra) and entertain petitions^[17]. Any reliance so placed on Cicily Kallarackal (supra) would therefore not only be seen to be contrary the basic structure doctrine and the ratio laid down in Kesvananda Bharti (supra) and L. Chandra Kumar (supra), but would also hinder Constitutional Courts from exercising their writ jurisdiction and ‘maintaining’ petitions under the garb of a ‘statutory remedy’. Therefore, the discussion on the reasonings adopted in the judgments of Universal Sompo (supra) and Ashok Kumar (supra) would be dependent upon the future course of action approach adopted by the Supreme Court.

Whether or not an order of NCDRC can be assailed by filing a writ petition under Article 226 is not solely dependent on the question as to what kind of jurisdiction was being exercised by the NCDRC in passing the impugned order; rather, it is a constitutional prerogative and power forming a part of the basic structure of the Constitution which cannot be diluted by judicial decisions. Only time will tell if the Supreme Court adopts a similar approach as adopted by the Calcutta High Court and reconsider the decision in Cicily Kallarackal (supra) to ensures that constitutional rights are not abrogated..

The author is an Advocate practicing at Delhi. Views are personal.