ORDER
N.D. Patnaik, J.
1. An important question of law arises for consideration in this revision petition i.e., whether the jurisdiction under the Consumer Protection Act can be invoiced in the matter of granting leases by the Government under the Mines and Minerals Act and the Rules made thereunder.
2. The brief facts which are relevant are as follows:-The 1st respondent i.e. Taraka Rama Labour Contract Co-operative Society has filed an application dated 2/-2-1989 before the Deputy Director of Mines and Geology, Warangal for grant of lease for quarrying in an extent of ac. 2.00 in Ramanaiahgutta covered by S.No. 64 of Burhampur village in Khammam district. The Deputy Director by his order dated 23-4-1989 granted the lease of the land but directed the 1st respondent society to execute lease in the prescribed form within a period of 90 days. It is stated that one day prior to the last day for executing the lease the 1st respondent filed the papers in the office of the Assistant Director of Mines and Geology but the lease was not executed. Meanwhile on an application dated 30-5-1989 filed by the 3rd respondent i.e. Laxmi Vaddera Labour Contract Co-operative Society requesting for granting of lease of the land the Deputy Director passed another order dated 20-7-1989 modifying the earlier order granting the lease of ac. 2.00 in favour of Tarakarama Labour Contract society and granting lease of ac. 1.00 each to the two societies i.e. respondents 1 and 3. The 1st respondent society filed a consumer dispute under the Consumer Protection Act before the District Consumer Forum at Khammam (CD.No. 62/1989) and also filed an application C.D.M.P. 5/89 under Section 12(b) of the Consumer Protection ac. to issue interim direction to the Assistant Director of Mines and Geology, Khammam to execute lease agreement in accordance with the order dated 23-4-1989 passed by the Deputy Director of Mines and Geology, Warangal granting lease of ac. 2.00. The District Consumer Forum by its order dated 5th August, 1989 issued ex-parte interim dilution to the Assistant Director of Mines and Geology, Khammam to execute the lease agreement. Aggrieved by that the Assistant Director, Mines and Geology filed this revision petition under Article 227 of the Constitution of India.
3 The main contention of the learned Government Pleader appearing for the petitioner is that the grant of the mining lease of the Government lands is covered by the Mines and Minerals Act and the Rules made thereunder i.e. the A.P. Minor Mineral Concession Rules and that the Consumer Protection Act is not at all applicable to the gram of such leases.
4. The Consumer Protection Act of 1986, as its preamble reads, is an Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and for matters connected therewith. Section 2(d) of the Act defines the 'consumer' as any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;'
'Trader' means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof, (vide Section 2(q). 'Service' is defined in Clause (o) of Section 2 as service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying news' or other information, but does not include the rendering of any service free of charge or under a contract of personal service'. Section 11 of the Act provides that subject to the other provisions of the Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed is less than rupees one lakh. Section 12 says that a complaint, in relation to any goods sold or delivered or any service provided, may be filed with a District Forum by the persons named thereunder. Section 13 prescribes the procedure on receipt of complaint. It is therefore contended by the learned Government Pleader for the petitioner that the 1st respondent is not a consumer, the petitioner is not a trader and no service is provided by the Government while granting lease under the Mineral Concession Rules. He has pointed out that according to the definition of service some Government departments or undertakings may be included within the purview of the Consumer Protection Act for example Railways, Postal and Tele-communications, running bus services, supply of electricity or water or similar departments which render services to the consumer by collecting charges therefor. But granting the leases under the statutory rules ie., the Mineral Concession Rules cannot be construed as rendering service within the meaning of the Consumer Protection Act. The jurisdiction under the Act relates to disputes regarding the goods sold or services provided as could be seen from Sections 11 and 12 of the Act. In this case obviously there is no sale of goods. I also agree with the contention of the learned Government Pleader appearing for the petitioner that no service is rendered by the petitioner or the Government while granting the mining lease and therefore the provisions of Consumer Protection Act cannot be invoked for granting mining leases.
5. The learned counsel for the 1st respondent has referred to certain decisions given by the Consumer Disputes Commissions of Rajasthan, New Delhi and also the National Consumer Disputes Redressal Commission, New Delhi. They all relate to disputes regarding insurance companies, telecommunications. Railways and Banks. These are all governed by the definition of 'service'. He has also referred to an article in the Hindu dated 12th November, 1989 regarding the Consumer Movement and the remedy provided by the Consumer Protection Act for speedy redressal of the complaints. It is no doubt true that the Consumer Protection Act which has been enacted for the protection and interests of the consumers has to be liberally construed so that it may serve the purpose for which it is enacted i.e., to protect the interests of the consumers. But, it can be availed of by only persons who are consumers as denned in the said Act i.e., those who buy any goods or those who engage any services i.e., there must be a sale of goods or rendering service. In this case the lease is granted by the Deputy Director under the A.P. Mineral Concession Rules of 1966 which are the statutory rules framed by the State Government in exercise of the powers conferred by Sub-section (1) of Section 15 of the Mines and Minerals (Regulations and Development) Act, 1975. (Sic. 1957) Those rules provide for grant of lease, the conditions of lease, etc. The application is made by the 1st respondent for grant of lease under the said rules to the concerned authorities. If the 1st respondent is aggrieved by the subsequent order passed by the Deputy Director modifying the original order, he can file an appeal as provided under Rule 35 of the said rules. But in this case there is no sale of goods or service to be rendered. So, the 1st respondent does not come within the definition of the consumer under the Consumer Protection Act. Therefore, I agree with the contention that the 1st respondent cannot invoke the jurisdiction under the Consumer Protection Act to direct the petitioner to execute the lease deed.
6. The learned counsel for the 1st respondent i.e., Tarakarama Co-op. Society has contended that if the petitioner i.e., the respondent before the Consumer Forum of Khammam wants to question the jurisdiction of that forum he should take objection before that forum. He has also pointed out that if the petitioner is aggrieved by any order passed by the District Consumer Forum he can file appeal before the State Commission under Section 15 of the Act but cannot file this revision in the High Court under Article 227 of the Constitution of India.
7. Since the interim order was an ex-parte order there was no opportunity for the petitioner to question the jurisdiction of the consumer forum to entertain the matter. Subsequently the petitioner has filed a counter in the main case i.e. CD. 62/1989 in which he has contended that the Consumer Protection Act is not applicable to the case and that the matter is still pending.
8. The learned counsel for the 1st respondent has argued that under Section 15 of the Consumer Protection Act any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission and so the petitioner should have filed an appeal before the State Commission against the orders of the District Forum.
9. I will consider the decision cited by the counsel on either side regarding the exercise of jurisdiction under Article 227 of the Constitution of India.
10. In U. P. State v. Mohd. Nooh, AIR 1958 S.C. 86 supra it is pointed out that 'If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may. quite properly exercise its power to issue the prerogative writ of Certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to the notice of the Supreme Court.'
11. In Mohd. Yunus v. Mohd Mustaqom, : [1984]1SCR211 it was held that the 'Supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited 'to seeing that an inferior court or Tribunal functions within the limits of its authority' and not to correct an error apparent on the face of the record, much less an error of law'. In that case it was held that an appeal lay form an order passed under Order 21 Rule 90 C.P.C. and further questions raised fell with in Section 47 C.P.C. and were appealable. At least a revision lay to High Court against the order and hence the High Court had no jurisdiction to interfere with the order of Subordinate Judge under Article 227 of the Constitution.
12. The learned counsel for the 1st respondent had referred to the decision of the Supreme Court in Nilakanth Prasad v. State of Bihar's, : AIR1962SC1135 . In that case it was pointed out that when a scheme has been notified and a route had already been granted to the State Transporting undertaking the Regional Transport Authority was incompetent to renew a permit in favour of private operators over a route embracing the said route. Where it renewed such permits it failed to do its duty under law and the Appeal Board was entitled, when the record was before it to revise the order of the Regional Authority, even in cases where the appeal was incompetent. It was pointed out in such a case neither the High Court nor the Supreme Court would interfere in its discretionary powers under Articles 226 and 227 with the order of the Appeal Board setting aside the renewal of such permits because even if the appeal for some reason was incompetent, the Appeal Board had the record before it and gave effect to the incorrect legal position arising from a notified scheme.
13. In Maneck Custodui v. Sar af azali, : AIR1976SC2446 it was pointed out that the respondent had dearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and that remedy was not only adequate but was more comprehensive than the one under Article 227 of the Constitution. It is true that despite the existence of an alternate legal remedy the High Court may interfere in favour of an applicant under Article 226 of the Constitution but this was certainly not one of such extraordinary cases. It was not proper for the High Court to entertain an application under Article 227 against a decree passed by a subordinate Court when the procedural law allows an appeal against it and that appeal lay to the High Court itself.'
14. A division bench of the Bombay High Court has stated in Kassam Ibrahim v. M.M. Chudasama, : AIR1956Bom545 that if the law provides adequate legal remedy, which remedy is as efficacious as the remedy which the High Court can give under the Constitution, then the petitioner must exhaust that remedy before he comes to the High Court for the exercise of its special jurisdiction under Articles 226 and 227. Thus where a dismissed police constable instead of going to the appellate Tribunal which the Police Act sets up, comes to the High Court by an application under Article 227 by way, as it were, of a short circuit, the High Court cannot permit the petitioner to do that'.
15. But in these cases the orders were passed by the Tribunals or Courts which had jurisdiction to act within the provisions of law and in those cases where appeal or revision is provided it is held that Articles 226 and 227 cannot apply. But, in the present case the Consumer Protection Act is not at all applicable for granting a mining lease and the District Forum had no jurisdiction at all to pass the impugned order under that enactment. When the Act itself is not applicable, directing the parties to file appeals or revisions to the authorities created under the said Act will be a futile exercise because even the appellate authority will not have jurisdiction to pass any order when the Act is not applicable.
16. As pointed out by the Supreme Court in the decision reported in V.P. State v. Mohd Nooh (1 supra) and Mohd Yunus v. Mohd. Mustaqom (2 supra) referred to above, the High Court can interfere if the inferior Court or Tribunal acts wholly without jurisdiction or to see that the inferior Court or Tribunal functions within the limits of its authority. Following the said principle, I agree with the contention of the petitioner that as the District Forum has no authority to invoke the jurisdiction under the Consumer Protection Act, the High Court can exercise its jurisdiction under Article 227 of the Constitution of India and interfere.
17. In view of my conclusion that the Consumer Protection Act is not applicable to the leases granted by the Government under the Andhra Pradesh Minor Mineral Concession Rules and therefore the District Consumers Forum of Khammam had no jurisdiction to pass any order regarding the grant of the lease, the petitioner can challenge such order by way of Revision under Article 227 of the Constitution of India before the High Court even though it had not filed any appeal as provided under Section 15 of the Consumer Protection Act.
18. The Revision Petition is allowed and the order of the District Consumers Forum, Khammam dated 5th September, 1989 in C.D.M.P.No. 5 of 1989 is set aside. No costs. Government Pleader's fee Rs. 200/-.
W.P. 15335/1989.
19. The petitioner ie., Tarakarama Labour Co-operative Society has filed the petition under Article 226 of the Constitution of India to issue any appropriate writ, order or direction and call for the records on the file of the 1st respondent ie., Deputy Director of Mines and Geology, Warangal and quash the order dated 20-7-1989 and further direct the respondents to execute the lease in favour of the petitioner society as per the order dated 23-4-1989.
20. The contention of the Government is that under Rule 13 of the A.P. Minor Mineral Concession Rules the lease deed shall be executed within 90 days from the date of grant of lease or within such further period as the Director may allow and if no such lease deed is executed within the said period due to any default on the part of the applicant, the Deputy Director may revoke the order granting the lease. Therefore, since the petitioner has not executed the lease deed, within the prescribed period the lease is not completed. The learned counsel for the petitioner has pointed out that though the petitioner has paid the necessary fees and filed the draft of the lease deed it is not executed by the department and so he is not at fault. Further he contends that no order is issued by the Deputy Director revoking the grant of lease dated 23-4-1989. He contends that the order of the Deputy Director passed on 20-7-1989 apportioning ac. 1.00 of land to each society is not at all in accordance with the rules and therefore as the order dt. 23-4-1989 is not revoked the authorities may be directed to execute the lease deed in favour of the petitioner.
21. Rule 35 of the A.P. Minor Mineral Concession Rules, 1966 provides for an appeal against any order passed by the Assistant Director or Deputy Director under these rules to the Director within a period of two months from the date of communication of such order to the party aggrieved. Rule 35-A provides for revision to the Government against any order passed by the Director, Deputy Director or Assistant Director. It is, therefore, contended that as there is an effective alternative remedy the petitioner cannot file writ petition without exhausting the remedies provided by the Rules. In K.K. Shrivastava v. B.K. Jain, : AIR1977SC1703 it is pointed out,' It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off'. In Sheonath Prasad Moti Lal v. Income-tax Office, 47 I.T. Reports 493 relied on by the learned counsel for the petitioner the Allahabad High Court pointed out that 'where a writ of Certiorari is concerned the existence of an alternative remedy can be no bar. In any case the existence of an alternative remedy is only one of the matters to be taken into consideration by the court in exercising its discretion under Article 226.'
22. In this case the petitioner has applied for the lease under the Minor Mineral Concession Rules to the Deputy Director and he granted the same. He is challenging the subsequent orders of the Deputy Director modifying the earlier order granting lease of ac. 2.00 and restricting it to one acre. That order was also passed by the Deputy Director acting under the Mineral Concession Rules. The Rules provide for an appeal to the Director and Revision to the Government against any order passed by the Deputy Director. Therefore, there is alternative and effective remedy. Following the decision of the Supreme Court referred to above, I agree with the contention of the learned Government Pleader that the petitioner cannot file the writ petition without exhausting the alternative remedy. The writ petition is therefore dismissed. No costs. Government Pleader's fee Rs. 200/-
W P. 13342/1989:
23. This petition is filed by two petitioners who have applied for grant of mining lease but their applications were not considered. They sought a writ, order or direction in the nature of Mandamus declaring that they are entitled to quarry any building stone without the necessity of lease or permission in Ramayyagutta, Khammam by virtue of G.O.Ms.No. 19 Industries and Commerce dt. 6-1-1971 and further declaring that the grant of lease to the 2nd respondent i.e., Tarakarama Labour Contract Co-op. Society by the 1st respondent is illegal, arbitrary and void. Their case is that they belong to Vaddera Communny who earn their livelihood by cutting the stones for building or roads and selling the same. They allege that about 200 families of Vaddera Community are eking out their livelihood by cutting stone in the hillock in S.No. 64 which is called Ramanayya-gutta in an area of about ac. 2.00 for the last 30 years. Under G.O.Ms.No. 19 Industries and Commerce dt. 6-1-1971 Vadderas are exempted from payment of seigniorage fees as well as obtaining lease or permit for working any quarry or building stone, road metal etc. for local purposes. However, the petitioners were advised to make application to the 1st respondent for grant of lease by way of abundant caution and accordingly they submitted application on 30-6-89 by paying the necessary fees. But the 1st respondent is not taking any further steps to consider their application on the ground that the matter is pending in the Court.
24. In the counter filed on behalf of the 1st respondent it is stated that though the petitioners have applied for grant of quarry lease on 10-6-89 stating that they are stone cutters they have not mentioned their caste in the application form nor submitted proof of caste from the competent authority. For some time past Vadderas are working on Ramanayyagutta which is situated in S.No. 64 of Burahanpuram of Khamman town and they were exempted from payment of seigniorage fee etc. under Order O.Ms.No. 19 dt. 6-8-71. The Vadderas can work in the quarry as long as some other person has not applied for lease and now after the amendment to Rule 12 of the Mineral Concession Rules no quarry lease for stone can be granted other than Vadderas and professional quarry cutters. Therefore, the orders in G.O.Ms.No. 19 are no longer in force after the amendment of the rules. It is further contended that the applications are deemed to have been refused as they could not be disposed of within 90 days.
25. Rule 5 of the A.P. Minor Mineral Concession Rules of 1966 provides that no person shall undertake quarrying of any minor mineral in any area, except under and in accordance with the terms and conditions of a quarry lease or a permit granted under these rules, provided that the Government shall have the power to grant exemption from obtaining a lease or permit for quarrying any minor mineral in any area in the case of any category of persons, subject to such conditions as may be specified in the order granting such exemption. In G.O.Ms.No. 19 the Government directed that all stone-workers by profession, who work by their own manual labour or by that of their families, shall be exempted from the levy of seigniorage fees as well as the requirement of obtaining lease or permit, for working any quarries of rough stone, building stone, road metal etc. By G.O.Ms.No. 29 Industries and Commerce dt 12-1-1976 the orders in G.O.Ms.No. 19 dt. 6-1-71 and G.O.Ms.No. 1052 dt. 21-11-76 were modified to the extent that the Vadderas be allowed the concession given in the said G.Os. or in . cases where they produce the minor minerals for the limited/local sales consumption and where the Public Works Department, Railways, Zilla Parishads and other contractors are not involved in utilisation of the material quarries by the Vadderas or other professional quarry workers. No doubt according to G.O.Ms.No. 19 as modified by G.O.Ms. No; 29 Vadderas can carry on the quarrying without obtaining any lease or permit for a limited purpose. But that is as long as the Government does not lease out the land to others. The Government has to the right to lease out the lands to others in accordance with the rules. Rule 12 deals with grant of quarry lease on application and it gives the priorities. The Rule was amended and the Rule as it now stands gives the priorities as follows:-
(i) Applications of Co-op. Societies consisting exclusively of professional/traditional stone cutters (Vadderas, etc.) their family members or by the use of machinery;
(ii) Applications of individual professional/traditional stones cutters (Vadderas, etc.);
(iii) Applications of Government Departments and Government Corporations and Government Companies provided they directly undertake quarrying departmentally without sub-contracting the work to others.
As I have stated above the petitioners have also applied for grant of the mining lease under Rule 12. According to the Rule the first priority should go to Co-operative Societies consisting exclusively of professional stone cutters and then the applications of individuals have to be considered. The contention of the Government is that the petitioners have not mentioned their caste that they are Vadderas in that application and did not produce proof thereof and their applications were not considered and they are deemed to have been lapsed under Rule 13 of the Rules which says that the application for the grant of a quarry lease should be dispossed of within ninety days from the date of its receipt and if it is not disposed of within that period, the application shall be deemed to have been refused. The learned Government Pleader has further contended that if the petitioners were aggrieved as their applications were not considered by the Deputy Director, they could have filed revision before the Government as required under Rule 35-A which provides that the Government may either suo motu at any time or on an application made within ninety days, call for and examine the record relating to any order passed or proceeding taken by the Director, Deputy Director or Assistant Director, under these rules for the purpose of satisfying themselves as to the legality or propriety of such order or as to the regularity of such proceedings and pass such order in reference thereto as they think fit.
26. Though the petitioners now allege in this writ petition that as they belong to Vsddera community and so they are entitled to carry on the quarrying without any lease or permit as per the exemption granted in G.O.Ms.No. 19 dt. 6-1-1971, they have applied to the Deputy Director for grant of lease, under Rule 12 of the Rules. Those applications were not considered by the Deputy Director for some reason or other and if they are aggrieved by that they have a remedy under Rule 35-A by way of rev ision to the Government. But, without exhausting that remedy, which is provided by the statutory rules they have filed this writ petition. I, therefore, agree with the contention of the learned Government Pleader that the writ petition is not maintainable.
27. Accordingly W.P. 13342/1989 is dismissed. No costs. Government Pleader's fee Rs. 200/-.