(This Writ Petition Is Filed Under Articles 226 And 227 Of The Constitution Of India Praying To Quash The Notice Dated 12.12.2013 Vide Annexure-C Under Section 13 Of Consumer Protection Act, 1986 In Complaint No.2672/2013 Ok The File Of I Addl. District Consumer Redressal Forum, Bangalore And Declare That The Respondent Does Not Come Under The Jurisdiction Of Consumer Protection Act, 1986 As The Respodnent Is Not A Consumer Within The Meaning Of Section 2(1)(D) Of Consumer Protection Act, 1986.
This Writ Petition Coming On For Preliminary Hearing This Day, The Court Made The Following:)
1. This writ petition has been filed to quash a notice issued under S.13 of the Consumer Protection Act, 1986 (for short 'the Act') in complaint No.2672/2013 by the I Additional District Consumer Disputes Redressal Forum, Bangalcre-560 020 and to declare that the petitioner does not come under the jurisdiction of the Act and for grant of consequential reliefs.
2. Brief facts of the case are the following:
Petitioner is a Company incorporated under the Companies Act, 1956, carrying on business in running vegetarian restaurants in Bangalore, Mysore and other places. It has entered into a Memorandum of Understanding dated 29.08.2013 with Akshaya Patra Foundation, a non-governmental organization, which is providing mid-day meals to the students of Government Schools, In the States of Karnataka, Rajasthan and Chhattishgarh, Petitioner decided to donate, a rupee collected from every consumer, who visits its restaurant/s, on the rates mentioned in the menu card, in each dish, for being donated to Akshaya Patra Foundation.
On 24.11.2013, respondent No.2 having visited the petitioner's branch at Dickenson Road, Bangalore-42, to have his breakfast, ordered for two idlies, cost of which as per the menu was RS- 24/- and Rs. 25/- having been collected and when questioned, having been told that Rs. 1/- extra was being collected from all consumers, for being donated to the said Foundation, he filed Complaint No.2672/2013 vide Annexure-B, in the District Forum against the petitioner. The District Forum having issued a notice under S.13 of the Act, directing the petitioner to appear before it on 09.01.2014, this writ petition was filed to grant the reliefs, noticed supra.
3. Sri Harikrishria S. Hoila, learned advocate, firstly, contended that the action of the District Forum in taking cognizance of tne complaint filed by the respondent No.2 is without jurisdiction. Secondly, the respondent No.2 does not fall within the definition of 'Consumer' under 5.2(l)(d) of the Act. Thirdly, providing food does not fall witnin the definition of 'Service' under S.2(o) of the Act and the petitioner, which is primarily engaged in providing food, falls outside the scope of the Act. Fourthly, the provisions of the Act cannot be invoked by a person, who visits a Hotel and Restaurant, as held in the case of TheFederation of Hotels and Restaurants Association of India and others Vs. Union of India and others, reported in AIR 2007 Delhi 137. Lastly, the District Forum, which has no jurisdiction, having taken cognizance of the complaint, issued the notice for appearance, and as the petitioner likely to be subjected to lengthy proceedings and unnecessary harassment, the writ petition was filed.
4. In view of a resolution dated 09.04.1985 of the General Assembly of the United Nations Organization, which is commonly known as 'Consumer Protection Resolution No.39/248'f to which, India is a signatory, the Act was enacted. The Preamble of the Act suggests, that it is to provide better protection for the consumers and their interests. By this Act, the Legislature has constituted quasi-judicial Tribunals/Commissions, as an alternative system of adjudicating the consumer disputes.
5. S.3 of the Act provides an additional remedy for deficiency of the service and that remedy is not in derogation of any other remedy under any other law. as has been held by the Apex Court, in the case of State of Karnataka vs. Vishwabharathi House Building Co-operative Society, (2003) 2 SCC 412.
6. In the case of Fair Air Engineers Pvt. Ltd. and another Vs. N.K. Modi, (1996) 6 SCC 385, with regard to scope of S.3 of the Act, Apex Court has held as follows:
"15. Accordingly, It must be held that the provisions of the Act are to oe construed widely to give effect to the object and purpose o^" the Act. It is seen that Section 3 envisages that the provisions of the Act ore in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Sun, that the words 'in derogation of the provisions of any other :aw for the time being in force' would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Aroitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy."
(emphasis supplied)
7. In the case of Secretary, Th'rumurngan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) through L.Rs. and Others, (2004) 1 SCC 305, with regard to scope of S.3 of the Act, Apex Court has held as follows:
"12. As per Section 3 of the Act, as already stated above, the provisions of the Act shail be in addition to and not in derogation of any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers better, the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is a clear bar."
(emphasis supplied)
8. In the case of Trans Mediterranean Airways Vs. Universal Exports and another, (2011) 10 SCC 316, with regard to remedies available under the Act, after survey of the previous decisions, Apex Court has held as follows:
"41. In our view, the protection provided unaer the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy. In the instant case, at the relevant point cf time, the value of the subject-matter was more than Rs.20 lakhs, by which the National Commission is conferred jurisdiction for any cause of action that arises unaer the Act. Further, we are not inclined to agree with the argument of Shri Bhagat that exercising of jurisdiction was in contravention of international law, as the Warsaw Convention and the Hague Protocol have been incorporated nto the domestic law by the passage of the CA Act. Therefore, we do not find any legal infirmity in the National Commission exercising its jurisdiction, as the same can be considered a court within the territory of a high contracting party for the purpose of Rule 29 of the Second Schedule to the CA Act and the Warsaw Convention."
(emphasis supplied)
9. In the case of Kishore Lai /s. Chairman, Employees' State Insurance Corpn., (2007) 4 SCC 579, with regard to scope of definition of 'Consumer', Apex Court has held as follows:
"7. The definition of 'consumer' in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration. Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment and includes any beneficiary of such person other than the person who hires the service for consideration. The Act being a beneficial legislation, aims to protect the interests of a consumer as understood in the business parlance. The important characteristics of goods ana services under the Act are that they s~e supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. The comprehensive aefinition aims at covering every man who pays money as the price or cost of goods and services. However, oy virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded, but the services hired for consideration even for commercial purposes are not excluded. The term service' unambiguously indicates in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein. However, a service hired or availed, which does not cost anything or can be said free of charge, or under a contract of personal service, is not included within the meaning of 'service' for the purpose of the CP Act."
(emphasis supplied)
10. In response to notice the issued by the District Forum vide Annexure-C, the petitioner can file its version of the case and raise the question of maintainability of the complaint and the jurisdiction of the Forum to decide the matter. As against an order of the District Forum, under S.14 of the Act, any person aggrieved, can prefer an appeal under S.15, to the State Commission.
11. A writ petition under Article 226 of the Constitution cannot be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out. In this case, the petitioner/opposite party has not made out any exceptional circumstance, to entertain this writ petition, despite the availability of effective alternative remedy before the aforesaid Forums which have been established under the Act. A complaint having been filed under the provisions of the Act, there being statutory Forum for an aggrieved party, provided under the Act, noticed supra, I do not f!nd justification to entertain this writ petition.
12. In the case of Niveclita Sharrna Vs. CeHuiar Operators Association of India and others, (2011) 14 SCC 337, Apex Court has held as follows.
"18. The 1986 Act was enacted for the better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement cf consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedv remedy to me consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation.
19. Prior to trie 1986 Act, the consumers were required to approach the civil court for securing justice for the wrong done to them ana it is a known fact that the decision of the litigation instituted in the civil court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before the Consumer Forums at district, State and national level.
23. A reading of the plain language of Section 17 shows that every State Commission has the jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.20 lakhs but does not exceed Rs.l crore. By Section 18 the provisions of Sections 12 to 14 and the Rules made thereunder, for the disposal of complaints by the District Forum, have been made applicable for deciding the disputes by the State Commission.
24. Section 19 of the 1986 Act provides for remedy of appeal against an order made by the State Commission in exercise of its powers under sub-clause (i) of clause (a) of Section 17, If Sections 11. 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation."
(emphasis supplied)
13. In the case of Cicily Kallarackal Vs. Vehicle Factory, (2012) 8 SCC 524, with regard to maintainability of writ petition when alternative remedy is available in matters arising under the provisions of the Act, Apex Court has held as follows:
"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.
9. While declining tc 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(l)(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."
(emphasis supplied)
14. In view of the above, I do not deem it appropriate to consider and record findings on the first four contentions urged by Sri Harikrishna S. Holla.
15. Contention of Sri Harikrishna S. Hoila, that the petitioners are likely to be subjected to lengthy proceedings and consequential harassment is unacceptable, ivv view of the amendment of the Act by insertion of Suh-Secticn (3-A) of S.13 of the Act. The amended provision reads as follows:
"(3-A), Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months, if't requires analysis or testing of commodities:
Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum:
Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act:
Provided also that in the event of a complaint being disposed of after the period so specified, the District Forum snali record in writing, the reasons for the same at tne time of disposing of the said complaint."
In view of the above, without expressing any opinion on the merits of the contentions urged, the writ petition is rejected. However, it is open to tne petitioner - opposite party, to file its version of the case, to the complaint pending before the District Forum, which shall decide the aspects even relating to maintainability of the complaint and its jurisdiction, if raised in the version of the opposite party.