- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Magh Raj Singhvi vs. The State Commission for Consumer Disputes Redressal & Ors. S.B.CIVIL WRIT PETITION NO.621/2008 DATE OF ORDER : April 29th , 2008 P R E S E N T HON'BLE JUSTICE SHRI GOPAL KRISHAN VYAS Mr.M.S.Singhvi, for the petitioner. Mr.Nand Lal Jangid, respondent in person. BY THE COURT: This writ petition has been filed by a practicing lawyer of this court having standing of about 33 years at the bar. The petitioner has challenged the proceedings initiated against him by the District Consumer Forum, Jodhpur in complaint case no. 409/2007 and prayed for quashing the proceedings as well as the order dated 5/5/2007, whereby, the said complaint was admitted. Further it is prayed that order dated 7/1/2008 passed by the State Consumer Redressal Commission, Rajasthan, - 2 - Circuit Bench, Jodhpur in revision no.3/2007 remanding the matter to the District Consumer Forum, Jodhpur be set aside and any other relief, which the Court deems fit may be granted. As per the facts narrated in the writ petition, a complaint was filed by the respondent no.3 Shri Nand Lal Jangid before the District Consumer Forum, Jodhpur stating therein that for contesting the writ petition before the Rajasthan High Court filed for claiming monetary benefits on promotion to the post of ACTO, CTO. CTO Senior Scale and Dy. Commissioner Selection Scale he has engaged the petitioner and paid Rs.8000/- as fees for his services. The petitioner prepared the writ petition for the aforesaid reliefs and filed the same before the High Court and the said writ petition was registered as S.B.Civil Writ Petition No.3520/1995. In the said writ petition, initially show cause notices were issued and after service of notices after filing reply by the department, the writ petition was admitted on 10/11/1997. On 17/11/1998, Court passed an order for listing the said writ petition for final disposed in the first week of December, 1998. Thereafter, the matter was listed - 3 - in the court on various dates but the matter was not taken up. The non-petitioner no.3 directly sent an application for early hearing which came to be rejected by this Court vide order dated 5/7/2004. Yet another application was moved by the petitioner, who was representing the non- petitioner no.3, but the said application for early hearing was also rejected on 6/10/2004. The non-petitioner no.3 wrote a letter on 18/3/2005 (Annex.1) to the petitioner making absolutely reckless allegations against the petitioner and asked the petitioner to return the case file to him for engaging another advocate. Thereafter, non-petitioner no.3 took the file from petitioner on 3rd April, 2005. Thereafter, he appeared in person from 7th April, 2005 and in presence of non-petitioner no.3, an order was passed by this Court for early hearing of his writ petition and 21/4/2005 was fixed for final hearing. On 21/4/2005,when non-petitioner no.3 appeared before the Court, the case was adjourned to first week of May, 2005. Again on 6/5/2005, at the request of non-petitioner no.3, - 4 - the case was adjourned to 12/5/2005. Thereafter the case was adjourned from time to time on various dates. At last, on 27/7/2005 the matter was argued by the non-petitioner no.3 and the writ petition filed by non-petitioner no.3 was dismissed vide judgment dated 29/7/2005 (Annex.2) It is submitted by the learned counsel for the petitioner that after more than one and half year of the judgment, the non-petitioner filed a complaint before the District Consumer Forum, Jodhpur on 18/3/2007 claiming refund of fees of Rs.8000/- and interest, so also, he claimed compensation of Rs.5000/- and expenses of Rs.1100/- by treating him as consumer. The said complaint was filed under Section 11 of the Consumer Protection Act, 1986. According to the petitioner, the non-petitioner no.3 made absolutely false, frivolous and vexatious allegations against the petitioner and though in the complaint filed by the non-petitioner no.3 no case is made out for deficiency in service, nor the non-petitioner no.3 can be defined as `complainant' or `consumer' within the meaning of Section 2(b) & 2(d), respectively, of the Act of 1986 nor petitioner - 5 - can be defined as `service provider' under the Act but while ignoring provisions of law, the complaint filed by the respondent no.3 was admitted vide order dated 5/5/2007. After admitting the said complaint, the District Consumer Forum issued notice to the petitioner and gave `dasti' to non-petitioner no.3 for service but he did not send complete set of notices nor notices were served upon the petitioner in person and infact the registered cover containing notices with incomplete paper book was received by the watchman of the complex where the petitioner's office is situated. According to the petitioner, he went abroad and returned on 1/7/2007. The watchman handed over the envelop to him and upon perusal of said envelop it was found that complaint was not accompanied with annexures. The petitioner made an inquiry about the subsequent date in the matter. Petitioner put his appearance on 16/7/2007 and filed an application for supply of copies of annexures appended to the complaint. The District Consumer Forum vide order dated 16/7/2007 rejected the said application and closed the right of petitioner to file reply to the complaint by treating the - 6 - service of notice upon petitioner on 10/5/2007 to be sufficient. Aggrieved by the orders dated 5/5/2007 and 16/7/2007, the petitioner preferred revision petition under Section 17(1)(b) of the Act of 1986 before the State Commission for Consumer Disputes Redressal, Rajasthan, Circuit Bench at Jodhpur (hereinafter referred to as `the commission'). The said revision petition was partly allowed by the Commission on 7/1/2008 but the Commission declined to decide the question of maintainability of complaint and case was remanded to the District Consumer Forum with a direction to decide preliminary objection first. The petitioner in this writ petition is challenging the whole proceedings initiated against him upon complaint filed by the respondent no.3 shri Nand Lal Jangid. As per petitioner, the allegations levelled in the complaint are absolutely false, frivolous and vexatious and according to petitioner non-petitioner no.3 cannot be treated as `consumer' as defined in the Act of 1986 nor the act of petitioner can be defined as “service provider”. According to - 7 - the petitioner the District Consumer Forum lost its sight of the fact that the complaint was filed after about two years of taking file from the petitioner. The petitioner never declined to argue the case of non-petitioner no.3, on the contrary, non-petitioner no.3 himself asked the petitioner to return the case file, which is evident from the letter sent by him and after taking away the file from the petitioner, the respondent himself appeared before the Court and, therefore, there is no question of deficiency of service by the petitioner. But all these facts were not taken into consideration by the District Consumer Forum before passing the order of admission, which is necessary as per the provisions of the Act of 1986. It is submitted by the learned counsel for the petitioner that the State Commission was also under obligation to decide the validity of the order dated 5/5/2007 with regard to maintainability of the complaint but instead of doing so, the Commission has remanded the matter to the District Consumer Forum to decide the preliminary objection. Therefore, the petitioner has filed this writ petition under Article 226 of the Constitution for issue of - 8 - writ of prohibition against the District Consumer Forum because the petitioner who is part and parcel of the judicial system should not be implicated in such type of false case. Learned counsel for the petitioner Shri M.S.Singhvi argued that first of all the order of admission passed by the District Consumer Forum is per se illegal and is in contravention of the procedure laid down in the Act of 1986. while inviting the attention of the Court towards Section 12 (3), it is submitted by the learned counsel for the petitioner that on receipt of a complaint made under sub-section (1), the District Forum is required to decide whether there is any material to proceed or to reject the complaint. According to proviso (ii) to sub-section (3) of Section 12, it is specifically provided that admissibility of complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received. Meaning thereby, it is the duty of the District Consumer Forum to first pass an order after application of mind for admission of the complaint. In this case, the Consumer Forum has passed the order of admission in mechanical manner, more so, the order has been passed on a set printed format, which is evident from - 9 - the order sheet Annex.4, page 61 of the writ petition. Upon perusal of said order sheet, it reveals that even the column of respondent to whom notices are issued is also blank. Meaning thereby, before issuing notice the learned District consumer Forum has not applied its mind toward the contents of the complaint because upon perusal of complaint no case is made out against the petitioner. The complaint was filed on 18/3/2007 before the District Consumer Forum, whereas, the same was admitted on 5/5/2007 i.e.after expiry of the time provided under the proviso to sub-section(3) of Section 12. Therefore, it is obvious that the District Consumer Forum has committed an error of law while issuing notice after admission beyond 21 days. Learned counsel for the petitioner argued that the order passed by the District Consumer Forum dated 5/5/2007 is without jurisdiction because the petitioner neither falls within the category of `service provider' nor non-petitioner no.3 falls within the definition of `consumer' or `complainant' but the Forum without examining the matter as to whether the complaint is maintainable under - 10 - the Act of 1986 has passed the order of admission in mechanical manner. When this fact was brought to the notice of the State Commission, the State Commission also without deciding the question of maintainability of the complaint remanded the matter to the District Consumer Forum, Jodhpur. Therefore, both the orders passed by the District Consumer Forum as well as the State Commission deserve to be set aside. Learned counsel for the petitioner while inviting the attention of the court toward the fact that non- petitioner no.3 himself asked to return the file from the petitioner and argued the case in person then how any allegation with regard to deficiency in service can be levelled against the petitioner. In fact, the petitioner never refused to argue the case and he made all his efforts for final disposal of the writ petition and for that purpose he filed application for early hearing twice but those applications were rejected and at last the non-petitioner no.3 took away the file from him, therefore, no case of deficiency of service is made out and without considering this aspect of the matter, straightway notices are issued - 11 - after admitting the complaint by the Consumer Forum, which is totally illegal and without jurisdiction. According to the petitioner, an advocate does not fall within the category of `service provider' nor client falls within the category of `consumer'. So also, as per the order sheets of writ petition, it is clear that petitioner being advocate of respondent no.3 made all his efforts for final hearing of the matter but once the case was admitted, it was placed in due course and time and again petitioner made efforts for listing the case for final disposal and for said purpose, twice he filed applications for early hearing, as is evident from order sheet dated 5/7/2004 and 6/10/2004 but both the applications were dismissed and in the order sheet dated 6/10/2007 this Court has specifically passed the following order while dismissing the earlier hearing application that: “Put up the matter for hearing in due course.” In these circumstances, all the allegations levelled by the non-petitioner no.3 against the petitioner in his complaint before the District consumer Forum are - 12 - baseless and have no foundation to stand before the eye of law. According to the learned counsel for the petitioner, petitioner did not refuse to appear on behalf of non-petitioner no.3 and the case file was returned as per letter sent by non-petitioner no.3 on 18/3/2005. After taking file from petitioner the case was argued by non- petitioner no.3 himself and ultimately writ petition was dismissed vide judgment dated 29.7.2005. It is quite understandable that after returning file to the non-petitioner no.3, there was no occasion or any duty of the petitioner to argue the case. Therefore, no case of deficiency in service by the petitioner is made out nor petitioner can be blamed for deficiency in service. Learned counsel for the petitioner vehemently argued that if such a false, frivolous and vexatious complaint is allowed to stand then advocates will not be able to practice independently and this is not a case of petitioner alone but it is a case of whole judicial fraternity because if such type of complaints are filed then not only the petitioner but most - 13 - of the advocates, in whose cases this Court has passed an order for placing the matter in due course will suffer. Therefore, District Consumer Forum, Jodhpur before issuing notice to the petitioner was under an obligation to assess the intention of the complainant and the facts of the case. It is obvious from the fact that there is no lack on the part of the petitioner. He made his all efforts for final adjudication of the matter but at last when this Court passed the order of rejection of early hearing application then there was no option with the petitioner but to wait for the turn of the case. The non-petitioner no.3 himself took away the file from the petitioner then there was no occasion for the petitioner to argue the matter. Learned counsel for the petitioner has invited the attention of the Court towards the following judgments in support of his contentions: 1.AIR 1986 SC page 1253 2.AIR 1961 SC page 372 3.AIR 1962 SC page 1893 4.1998 (8) SCC 1 & - 14 - 5.AIR 2004 (AP) page 49. While citing the aforesaid judgments, it was prayed that writ can be issued in the present circumstances, so also even if alternative remedy is available under the Act and this Court can exercise its power under Article 226 of the Constitution of India. Per contra, respondent Nand Lal Jangid, who appeared in person argued that this writ petition is not maintainable in view of the fact that alternative remedy is available to the petitioner under the Act itself. Secondly, it is submitted that at the time of engaging petitioner he has paid Rs.8000/- as fee and he was assured that he will get final adjudication within five years. But even after lapse of about ten years his case was not finalised. According to him, many a times he made requests to the petitioner for arguing the case but he took adjournments and did not argue the case which resulted into deficiency in service, therefore, the complaint filed by him was rightly admitted by the District Consumer Forum, - 15 - Jodhpur. Respondent further argued that while taking back the file from the petitioner he made a request to return the fees but the petitioner refused to return the same. Thereafter, on 15/7/2005 he again met the petitioner and requested him to argue the case but he flatly refused to argue the case, therefore, conduct of the petitioner certainly falls within the deficiency of service. According to the respondent, he made this request after the order was passed by this Court for listing the matter for final hearing on 15/7/2005. According to him the order passed by the District Consumer Forum on 5/5/2007 is perfectly legal and there is no error in the order passed by the Forum. Likewise, the order passed by the State Commission is also in consonance with the provisions of law and petitioner has been granted an opportunity to argue his matter with regard to maintainability of complaint before the District Consumer Forum but instead of availing that remedy, he has preferred this writ petition, therefore, this writ petition may be dismissed and petitioner may be - 16 - directed to appear before the District Consumer Forum, Jodhpur as directed by State Commission. According to the respondent, under Section 17(1) (b) of the Act of 1986, there is a remedy to the National Commission against the order of State Commission but without availing the said remedy the petitioner straightway approached this Court by way of filing writ petition, which is not permissible under law. With regard to service of notice, it is submitted that he has supplied all the documents as per the notice given by the District Consumer Forum and it is incorrect to say that full set of notices were not received along with the notices. It is further submitted by the respondent that it is a fit case in which action of the petitioner falls under the category of `deficiency in service' as he has refused to argue the case when complainant made a request on 15/7/2005. Therefore, the complaint has rightly been filed against the petitioner and the District Consumer Forum has rightly issued notices after admitting the said complaint after due application of mind. - 17 - After hearing both the parties, first of all in this case it is to be seen whether this writ petition is maintainable or not because a complete procedure is provided under the Act of 1986 for deciding the complaint filed by the consumer, so also remedy is provided under the Act. In this case, from the facts narrated by the petitioner so also the material available on record, it is obvious that writ petition was admitted in the presence of petitioner, who was advocate of non-petitioner no.3 in the writ petition. It is also apparent from the facts that petitioner did not refuse to argue or conduct the case of non-petitioner no.3. Moreover, twice he filed application for early hearing of the matter and second application was rejected while observing that application for early hearing is rejected and case may be put up in due course. Therefore, apparently it is not a case of deficiency in service by the petitioner. It is relevant to observe that so many writ petitions are pending before this Court and are in due course and everyday applications are filed by litigants for early hearing of the matter. In this case also, applications were made by the petitioner for - 18 - listing the matter at an early date but after admission case was placed in due course and thereafter, applications for early hearing were filed but ultimately those applications were rejected, therefore, petitioner cannot be blamed for the delay in deciding the matter. Another relevant fact is that petitioner returned the file upon letter received by the non-petitioner no.3 on 8/1/2005 in which he specifically asked the petitioner to return his file. Therefore, in my opinion, there was no ground for initiating any proceeding against the petitioner by the District Consumer Forum, Jodhpur but despite that notices were issued without application of mind, so also the State Commission rejected the prayer for deciding the maintainability of complaint and remitted the case to the District Consumer Forum. In my opinion, in such peculiar facts and circumstances of the case, this Court certainly is required to interfere under Article 226 of the Constitution of India even if alternative remedy is available under the Act itself. In this context, the Division Bench of Andhra Pardesh High Court in case of M/s Megacity Builders vs. A.P.State Consumer Dispute Redressal Commission, Hyderabad reported in AIR 2004 AP 49 held that writ petition against the order passed by the State - 19 - Commission under the provisions of the Consumer Protection Act is maintainable and it is always for the Court to exercise its discretion as to when and under what circumstances to entertain the writ petition. The self imposed restriction cannot operate as obstacle in the matter of exercise of jurisdiction by the High Court in appropriate cases. The Division Bench of Andhra Pradesh High Court in M/s Megacity Builder's case (supra) held that the writ petition filed by the petitioner is maintainable and I am in full agreement with the view expressed by Division Bench of Andhra Pradesh High Court that jurisdiction of High Court under Article 226 of the Constitution can be exercised even if alternative remedy is available under the Act but at the same time the facts of particular case are required to be taken into account for the purpose of entertaining such writ petition. Relevant paras 23 to 29 of the judgment of Division Bench of Andhar Pradesh High Court reported in AIR 2004 (AP) 49 are as follow:- “23. When an order complaint of is illegal and ultra vires, this Court in appropriate cases can entertain th writ petition and adjudicate the same on merits. That on the facts and in the - 20 - circumstances, we are not inclined to dismiss the writ petition on the ground of availability of alternative remedy at this stage of hearing after its admission by this Court for its consideration and disposal on merits. 24. However, learned counsel for the 2nd respondent relied upon the decision of the Madras High Court reported in K.Pudur Primary Agriculture Co-op. Bank Ltd. vs. the State Consumer Disputes Redressal Commissioner, (2201) 1 CPJ 37 in support of the submission that the writ petition against the order passed by the State Commission is not maintainable. 25. We have carefully perused the judgment, upon which reliance has been placed by the learned counsel for the 2nd respondent. In our considered opinion, the Madras High Court did not lay down any such law holding that this Court's jurisdiction under Article 226 of the Constitution of India gets effected on account of there being availability of an alternative remedy to an aggrieved person. It is no doubt true that the Madras High Court refused to entertain the writ petition on the ground of availability of an alternative remedy. 26. The next decision, upon which reliance has been placed by the learned counsel for the 2nd respondent reported in Smt. Saswati Mehrotra (near Mukhopadhyay) vs. State of West Bengal, 1994 (1) CPR 522: 1996 AIHC 1178. The judgment - 21 - not only does not render any assistance nor supports the point urged by the learned counsel for the 2nd respondent, but on the other h and, says that the High Court cannot hold that it cannot entertain a petition under Article 226 of the Constitution of India challenging the jurisdiction of the State Commission. Having stated the principle, the Calcutta High Court observed that when the State Commission is in seisin of a matter, the tendency of the parties to rush to the High Court at every drop of a hat must be discouraged. The Court observed that even the question relating to the jurisdiction of the State Commission can be gone into by the Commission itself and in such view, the High Court should ordinarily refuse to entertain such a question by -passing that Commission. 27. Neither of the decision holds that availability of an alternative remedy in any manner affects the jurisdiction of this Court under Article 226 of the Constitution of India. We accordingly, over-rule the preliminary objection raised by the learned counsel for the 2nd respondent. We hold that the writ petition against an order passed by the State Commission under the provisions of the Consumer Protection Act, 1986 is maintainable. But it is always for the Court to exercise its discretion as to when and under what circumstances to entertain the writ petition. The self imposed restriction, cannot operate as an obstacle in