Lulu International Shopping Mall Private Limited v. Rema George and Consumer Disputes Redressal Forum, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937** **WP(C).No. 6608 of 2016 (A) ---------------------------** ## **PETITIONER(S):** **--------------------------** **LULU INTERNATIONAL SHOPPING MALL PRIVATE LIMITED REPRESENTED BY ITS DIRECTOR M.A.NISHAD, 34/1000, NH 47 EDAPPALLY, ERNAKULAM DISTRICT-682 024.** **BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.T.U.ZIYAD SMT.RAMEENA.P.K.** ## **RESPONDENT(S):** **----------------------------** ## **1. REMA GEORGE** **W/O. GEORGE MATHEW, EDASSERYPARAMBIL HOUSE MAGANAM P.O., PUTHUPPALLY, KOTTAYAM DISTRICT-686 018.** ## ***2. CONSUMER DISPUTES REDRESSAL FORUM** **ERNAKULAM, REPRESENTED BY ITS REGISTRAR, KATHRIKADAVU KOCHI-682 017.** **(*R2- DELETED FROM THE PARTY ARRAY AS PER ORDER DTD.2.3.2016 IN THE WRIT PETITON)** **R1 BY ADV. SRI.SAIBY JOSE KIDANGOOR R1 BY ADV. SRI.R.LAIJU GOVERNMENT PLEADER SRI.P.V.ELIAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 6608 of 2016 (A)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **P1 : COPY OF THE ORDER DTD.16.2.2016 IN IA NO.3/2016 IN CC NO.12/2016 PASSED BY THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM. P2 : COPY OF THE COMPLAINT IN CC NO.12/2016 ON THE FILE OF CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.** **P3 : COPY OF THE IA NO.3/2016 IN CC NO.12/2016 ON THE FILE OF CONSUMER REDRESSAL FORUM, ERNAKULAM.** **P4 : COPY OF THE CHALLAN FOR SERVICE TAX PAYMENTS.** **P5 : COPY OF THE LETTER DTD.30.4.2016 ISSUED BY THE KALAMASSERY MUNICIPALITY.** **P6: COPY OF THE REGISTRATION DETAILS OF THE VEHICLE KL 35 D 4546.** **P7: COPY OF THE PHOTOGRAPH WHERE THE SAID SHEEN JOSE HAS BEEN FLAUNTING THE VEHICLE.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** sdk+ ///True copy/// P.S. to Judge ## ALEXANDER THOMAS, J. ================== W.P.(C).No. 6608 of 2016 ================== Dated this the 2[nd] day of March, 2016 J U D G M E N T The main challenge in the abovecaptioned Writ Petition instituted by the petitioner company is directed against Ext.P-1 interim order dated 16.2.2016 rendered on interlocutory application, Ext.P-3 I.A.No. 3/2016 in Consumer Complaint, Ext.P-2 C.C.No.12/2016 passed by the Consumer Disputes Redressal Forum, Ernakulam. 2. The main prayer in the main matter in Ext.P-2 Consumer Complaint is to restrain the opposite parties concerned from levying any parking fees for the vehicle parked in their shopping mall. The prayer in Ext.P-3 interlocutory application is also for a direction to restrain the opposite parties concerned from levying any parking fee. It is the case of the petitioner company that the petitioner company, which owns and manages the shopping mall, has not been impleaded in the respondent array in the complaint, even though the petitioner company is a necessary party to the proceedings. It is pointed out that only the personal incumbent holding the office of the chief executive officer/managing director W.P.(C).6608/16 - : 2 :- of the company in his personal capacity and the manager of the shopping mall alone are made opposite parties in the complaint. It is the case of the petitioner that though the opposite parties were earlier served with Ext.P-2 (main complaint), they had entered appearance on 6.2.2016 and on that day, the Forum had adjourned the case to 11.2.2016. It is further stated that on 11.2.2016 there was no sitting for the Forum and the case was adjourned to 16.2.2016 and that on 16.2.2016 the Forum had granted 45 days' time to the opposite parties to file their written versions, but that at that time, a copy of Ext.P-3 interlocutory application was served on the counsel appearing for the opposite parties and the Forum proceeded to hear the prayer in the interlocutory application, without giving an opportunity to the opposite parties to submit their written versions/objections to the said interlocutory application and had passed the impugned Ext.P-1 order dated 16.2.2016, whereby the Forum has directed the opposite parties to deposit the entire amount of the parking fee collected by them, with the Forum. It is this order that is under challenge in this case. The prayers sought in the instant Writ Petition (Civil) are as follows: - “(i) quash Exhibit P1 order by the issue of a writ of certiorari or other appropriate writ, order or direction: W.P.(C).6608/16 - : 3 :- - (ii) issue a writ of prohibition or other appropriate writ, order or direction restraining the Consumer Disputes Redressal Forum, Ernakulam from proceeding further with C.C.No. 12/2016 as the same is not maintainable. - (iii) issue such other orders as are deemed fit and proper in the circumstances of the case.” 3. Heard Sri.P.K.Suresh Kumar, learned Senior Counsel instructed by Sri.T.U.Ziyad, learned counsel appearing for the petitioner and Sri.Laiju Ram, learned counsel appearing for the respondent (complainant in Ext.P-2). 4. The Apex Court in the case NIVEDITA SHARMA v. CELLULAR OPERATORS ASSOCIATION OF INDIA & ORS. reported (2011) 14 SCC 337, has dealt with the issue regarding maintainability of petitions filed under Articles 226 and 227 of Constitution of India to impugn proceedings of the Forums created under the Consumer Protection Act, 1986. The Apex Court has noted the provisions of alternative remedies available under that special enactment and has held that it is the rule of self-imposed restraint in entertaining Writ Petition on availability of alternative remedy, and as the power of the High Courts to issue directions, orders or writs under Art.226 of the Constitution of India is a basic feature of the Constitution, the same cannot be curtailed by parliamentary legislation, but that not every such petition must be entertained by High Court as a matter of W.P.(C).6608/16 - : 4 :- course ignoring the fact that aggrieved person has an alternate effective remedy. That when statutory forum is created by law for redressal of grievances, a writ petition under Art.226 of the Constitution should not ordinarily be entertained ignoring statutory dispensation. In paras 15 and 16 of the said ruling, the Apex Court has clearly held that an alternative remedy by itself is not a bar to the entertaining of a Writ Petition filed for enforcement of the fundamental rights or where there has been violation of principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. The court has recognized some exceptions to the rule of alternative remedy. 5. Though the Writ Petition has made certain averments based on the registration number of the car involved in Ext.P-2 complaint, now it has come out on record based on the report made available by the Forum as well as the affidavit filed by the respondent, that the registration number of the car was wrongly given in Ext.P-2 complaint as KL-35-D-4546 and that this happened to be a mistake and that the correct number of the car which the respondent complainant was using on that day, which led W.P.(C).6608/16 - : 5 :- to the impugned complaint, is KL-5-AE-4766. 6. The learned Senior Counsel appearing for the writ petitioner has fairly submitted that the petitioner is not now intending to make any submissions or contentions regarding the car that was involved in the impugned complaint and that this Court may proceed on the premise that the details presently given in that regard by the respondent complainant are correct. 7. The learned Senior Counsel appearing for the petitioner has made several contentions regarding the maintainability of the complaint and regarding violation of principles of natural justice inasmuch as the copy of Ext.P-3 interlocutory application was not earlier served to the opposite parties and that the same was served on them only on 16.1.2016 as narrated above and that in spite of the request, no time was granted to file their written submissions to the I.A. and the impugned Ext.P-1 order was passed without grating a reasonable opportunity to the opposite parties to file their written objections. Moreover, it is also strongly argued by the petitioner that the averments in Ext.P-2 complaint do not disclose any cause of action as regards any deficiencies in any service provided by the petitioner company and that there is no law regulating the fixation W.P.(C).6608/16 - : 6 :- of tariff for private vehicular parking spaces. It is also pointed out that the petitioner company is only owning the building used for the purpose of shopping mall concerned and that individual shops in the mall are let out to various independent shopping facilities and that the service of parking provided by the petitioner company as the owner of the shopping mall is not in any way related to the services or goods that are offered in the various shop buildings run by the proprietors concerned. That there is no compulsion whatsoever that the customers can use the facilities of the various shops in the Mall, only if they avail the vehicular parking facility offered by the Mall owner. That the facility of parking offered by the owner of the shopping mall is independent and distinct from the services or goods that are offered in the various shops in the shopping mall and that therefore the charging of parking fee by the owner of the shopping mall cannot, by any stretch of imagination, constitute a “restrictive trade practice” within the meaning of Sec.2(nnn) of the Consumer Protection Act, 1986. Moreover, it is pointed out that the main prayer in Ext.P-2 complaint itself is the prayer in Ext.P-3 interlocutory application. As stated earlier hereinabove, though the petitioner had made W.P.(C).6608/16 - : 7 :- certain contentions regarding “reasonable likelihood of bias”, the same has now been given up during the course of the submissions in view of the subsequent developments. 8. It is also contended by the petitioner that the parameters laid down by the ruling of this Court in the case Beena Kannan v. Mathew reported in 2010 (2) KLT 228, regarding the principles that govern the consideration of grant of interlocutory orders in complaints under the Consumer Protection Act, have not been adhered to by the Forum while passing the impugned order. 9. It is further pointed out by the learned Senior Counsel appearing for the petitioner company that there is no specific averment in the complaint that the complaint has been instituted as a class action and that no permission has been obtained by the complainant under Sec. 12(1)(c) of the Consumer Protection Act and that therefore the complaint can be entertained only for ventilating an individual centric grievance of the complainant and not on behalf of any one else. This crucial aspect of the matter has not been adverted to by the Forum while passing the impugned Ext.P-2 order, it is urged. 10. Sri.Laiju Ram, learned counsel appearing for the W.P.(C).6608/16 - : 8 :- respondent would submit that even the respondent complainant is aggrieved by the nature of the interim relief granted in Ext.P-2 interlocutory order inasmuch as what was sought by the complainant was to restrain the opposite parties from levying any parking fee, whereas the interim relief granted by the Forum is a direction to the opposite parties to deposit the parking fee collected by them, before the Forum. It is also pointed out that the respondent complainant is a lady, who is residing at Puthuppally, Kottayam and that it will be more convenient for her, if the case is ordered to be transferred to the Forum at Kottayam, in terms of provisions contained in Sec.17(a) of the Consumer Protection Act. 11. Having regard to the other contentions raised on behalf of the petitioner, it is submitted by Sri.Laiju Ram, learned counsel appearing for the respondent that the respondent would implead the petitioner herein as an additional opposite party in Ext.P-2 complaint and in Ext.P-3 interlocutory application and that the respondent has no objection in this Court setting aside the impugned Ext.P-1 order and remit the matter for fresh consideration by the Forum. 12. Regarding the transfer of the case, it is pointed out on W.P.(C).6608/16 - : 9 :- behalf of the petitioner that Ernakulam or Thrissur would be more convenient to the opposite parties, keeping in view the functioning of the petitioner company, but that the petitioner will not stand in the way, if this Court is inclined to grant the request of the respondent that the matter be transferred to Kottayam. It is further pointed out by the petitioner that since the main relief in the main complaint itself is sought as the relief in the interlocutory application, this Court may direct that the main matter itself be heard and decided by the Forum within 3 months or so. The learned counsel appearing for the respondent complainant has no objection to that course of action. ## 13. Accordingly, based on consent of both parties, the following directions are issued: - (i) The impugned Ext.P-1 order dated 16.2.2016 in Interlocutory Application, I.A.No.3/2016 in Consumer Complaint, C.C.No. 12/2016 on the file of the Consumer Disputes Redressal Forum, Ernakulam, is set aside. - (ii) Ext.P-2 complaint and all papers connected therewith will stand transferred from the file of the Consumer Disputes Redressal Forum, Ernakulam, to the Consumer Disputes Redressal Forum, Kottayam, for adjudication. The Forum at Ernakulam will immediately transfer the case files to the Forum at Kottayam. - (iii). The complainant and the opposite parties will appear before the Consumer Disputes Redressal Forum, Kottayam, at 11 a.m. on 19.3.2016. The opposite parties will file their written versions within six weeks. - (iv) The respondent will implead the petitioner herein as an additional opposite party in Ext.P-2 complaint and Ext.P-3 interlocutory application without any further delay. W.P.(C).6608/16 - : 10 :- 14. In view of the consent of both parties, it is ordered that no separate orders need be passed on Ext.P-3 interlocutory application and the Consumer Disputes Redressal Forum Kottayam, will endeavour to ensure that all reasonable steps are taken to complete the adjudication process and to pass final orders in Ext.P-2 complaint within 3-4 months from the aforestated date of appearance of the parties concerned. If the parties are of the opinion that any additional opposite party like the Kalamassery Municipality is to be impleaded, it will be open to the complainant to take necessary steps in that regard also. It is made clear that all the contentions of either side are left open to be considered by the Forum and the opposite parties will also be at liberty to raise their contentions regarding maintainability of the complaint as well, which should be considered as the first issue during the final hearing of the main complaint. In case, on account of any unforeseen reasons, the Forum is not able to finally dispose of the complaint within the aforestated time limit, then it is made clear that there is no necessity for the Forum to seek any extension of that time limit, but in such eventuality, the Forum will ensure that the complaint is disposed of without further delay. W.P.(C).6608/16 - : 11 :- With these observations and directions, the Writ Petition (Civil) stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. To Judge.