Delhi

North East

CC/165/2018

Sh. L.C. Gupta - Complainant(s)

Versus

B.S.E.S. Yamuna Power Ltd. - Opp.Party(s)

10 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: N-E

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.165/18

 

In the matter of:

 

	Shri L.C. Gupta (Super Senior Citizen) 8387, First Floor & Second Floor Model Basti, Near Filmistan Cinema New Delhi-110005	Complainant
	Versus
1.         2.	BSES Yamuna Power Ltd 219, CPC, 2nd Floor Shankar Road, New Delhi-110060. Through its Principle Officer.   M/s Karun Advertisers 8714, Shiddipura, Model Basti Karol Bagh, New Delhi-110005 Through its Principale Officer.	Opposite Parties

 

 

Date of Decision:-10.10.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The complainant has filed written submission with regard to maintainability of the present complaint before this Forum on grounds of territorial jurisdiction alongwith compilation of judgments relied upon to buttress his arguments on the same.
2. The complainant has argued that Delhi is a Union Territory and is one district which was divided into 10 districts for administrative convenience for expeditious disposal of consumer disputes as prescribed under section 13 (1) (a) of the Consumer Protection Act, 1986 and placed reliance upon the judgments of Hon’ble Delhi SCDRC in cases of Holy Family Vs Amit Kumar, Singh Dental Hospital Vs Amrit Lal Dureja and Sardar Swaranjeet Singh Vs Anil Kumar Dixit passed in the year of 2010 which were reiterated and followed in the subsequent judgment of Hon’ble SCDRC in judgment dated 25.05.2012 in the case of Mahesh Ramnath Vs The Secretary-cum-Commissioner, Transport Department, GNCT of Delhi and Ors. in F.A. No. 216 of 2012. In the said judgment the Hon’ble State Commission while referring to the order dated 31.10.2007 in Singh Dental Hospital Vs Amrit Lal Dureja had held that Delhi is one District and divided into 10 districts several for the sake of administrative convenience and not for the sake of territorial jurisdiction. Further the judgment stated the Act  provides that there shall be one District Forum in one District. Since Delhi happens to be one District, every District Forum has jurisdiction over every case and if any District Forum takes final decision in the matter, irrespective of having no administrative territorial jurisdiction, the order cannot be set aside. Order can be set aside, if the person taking final decision is not competent to take decision. District Forums are presided by a person who is or has been or is qualified to be a District  Judge and since every District Forum is headed by such person, therefore, any decision taken by any District Forum irrespective of the complaint being not within the territorial jurisdiction of the concerned District Forum cannot be set aside or held invalid. The complainant submitted that the said decision were unchallenged and attained finality. Thereafter in the case of Mahesh Ramnath, Revision Petition no. 2816 of 2012 was preferred before Hon’ble NCDRC in which the complainant has placed on record certain typed versions of daily orders which were been passed from 27^th September 2012 till 27^th November 2012 by Hon’ble NCDRC and ultimately the said petition was dismissed in default for non prosecution vide order dared 09.09.2014.   
3. The complainant has submitted that the dispute of territorial jurisdiction of consumer Fora in Delhi came up again before Hon’ble SCDRC in the case of Prem Joshi Vs Jurasik Park Inn in FA 488/2017 in which the Hon’ble SCDRC placing reliance upon the daily orders passed by Hon’ble NCDRC in Mahesh Ramnath case, in its judgement dated 01.11.2017, dismissed the appeal with directions / observation that all district Forums should strictly comply with the notification dated 20.04.1999 passed by Lieutenant Governor, NCTD dividing Delhi into 10 districts defining their respective areas on which the Hon’ble National Commission had also taken a very serious view and on the basis of the said notification, the Registrar of the Hon’ble State Commission vide letter no. F.1/(Misc)/SC/2012/5045 dated 08.11.2012 had advised the Presidents of all District Forums to strictly comply with the directions i.e. the said notification.
4. The complainant has further submitted that pursuant to the judgment of Hon’ble State Commission in Jurasik Park Inn case the District Foras started dismissing the complaints on grounds of territorial jurisdiction. Therefore a Writ Petition No. 11424/2016 & CM No. 44784/2016 was filed by the Delhi State & District Consumer Courts Practitioner Welfare Association before the Hon’ble Delhi High Court against Lieutenant Governor & Ors and the Hon’ble Delhi High Court Vide order dated 01.02.2018 directed that districts Forums shall strictly abide by the principles laid down by the Hon’ble State Commission in their decisions.
5. The complainant further submitted that the crucial issue which arose for consideration for maintainability of a complaint was whether the consumer Foras would abide by the principles laid down by the Hon’ble State Commission in their decision as mentioned and directed by Hon’ble Delhi High Court in the above mentioned Writ Petition or by Daily Orders passed by Hon’ble National Commission in the case of Mahesh Ramnath which was dismissed in default. The complainant argued that reliance on such daily orders given directions suffer from the rule of sub silentio which term has been explained by the Hon’ble Supreme Court in the case of MCD Vs Gurnam Kaur (1989) 1 SCC 101 in which the Hon’ble Supreme Court held that a decision is to be passed sub silentio when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of one party because of point A which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour ; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B therefore the point B is said to pass sub silentio.
6. In light of the above, the complainant submitted that the direction was given by Hon’ble NCDRC in Mahesh Ramnath Case suffer from the rule of sub silentio and does not acquire the character of a precedent since it is well settled that a mere direction of a court (even Hon’ble Supreme Court) without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that is will amount to a precedent. In this regard the complainant placed reliance on the judgment of Hon’ble Supreme Court in the case of State of UP and Ors Vs Jeet S. Bisht and Anr in Civil Appeal No. 2740/2007.
7. The complainant further submitted that that it is well settled that a decision is binding not because of its conclusion but in regard to its ratio and the principles laid down therein and any declaration of conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or over ruling is for the sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. It is clear that the judgment per incurium  cannot be deemed to be law declared to have binding effect. Uniformity and consistency are core of judicial discipline.
8. The complainant further submitted that it is also well settled that if a subsequent coordinate bench of equal strength wants to take a different view it can only refer the matter to a larger bench, otherwise the prior decision of a coordinate bench in binding on the subsequent bench of equal strength and if the decision in earlier case was not noticed or discussed, the subsequent decision is a judgment per incurium as held by the Hon’ble Supreme Court in Union of India Vs S K Kapoor in Civil Appeal no. 5341/2006. Lastly the complainant discussed the law of precedent and binding precedent in the light of judgment of Hon’ble Supreme Court in the case of Director of Settlements A.P. Vs M .R Apparao AIR 2002 SC 1598 wherein distinction between ‘obiter dicta’ and ‘ratio decidendi’ has been explained by Hon’ble Supreme Court in as much as an ‘obiter dictum’ is an observation by court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for decision pronounced, but even though a obiter may not have a binding effect as a precedent, it cannot be denied that it is of considerable weight (AIR 1970 SC 1002 and AIR 1973 SC 794). When Hon’ble Supreme Court decides a principle, it would be the duty of Hon’ble High Court or any subordinate court to follow its principle. The complainant replied upon the judgment of Yeshbai and Anr Vs Ganpat AIR 1975 Bom 20, State of Karnataka Vs Ranganatha Reddy AIR 1978 SC 215, Union of India and Ors Vs Dhanwanti Devi (1996) 6 SCC 44 and Arnit Das Vs State of Bihar (2000) 5 SCC 488 with regard to the legal principle of ratio decidendi and the binding nature of the same.
9. Summarising his arguments in view of the forgoing submissions, the complainant stated that the decision of Hon’ble State Commission in Holy Family, Singhs Dental and Sardar Swranjeet had attained finality and were binding on all Foras  as precedents as opposed to daily orders passed by Hon’ble National Commission in Mahesh Ramnath case which were mere directions and not binding precedent since they suffer from the rule of sub silentio and per incurium and even otherwise these directions had not set aside the decision of Hon’ble State Commission in the said case under appeal before it. The complainant also argued that the judgment of Hon’ble Delhi High Court in the Writ Petition no. 11424 of 2016 was binding on all Consumer Foras in Delhi w.e.f  01.02.2018 and which was subsequent to directions given by Hon’ble National Commission in its daily orders in Mahesh Ramnath case. The complainant further argued that in the said Writ Petition, the Hon’ble LG of Delhi was the respondent party and the decision ought to have been passed after considering his submissions on the aspect of jurisdiction of consumer Forums in the light of 1999 notification. The complainant laid emphasis on argument that it is the ‘ratio’ of the judgment and not the ‘dicta’ which is binding on the sub ordinate courts and neither has been decided or laid down by the Hon’ble National Commission in Mahesh Ramnath case. The complainant therefore prayed for admission of the present complaint on grounds of territorial jurisdiction.                 
10. We have heard the exhaustive and detailed arguments addressed by the counsel of the complainant and have thoroughly perused the complaint as well as the written submissions alongwith the judgment compilation placed on record.

Section 11(2) (a),(b),(c) of the CPA governs the determination of territorial jurisdiction of the District Forum for entertaining a complaint and leaves no ambiguity for admission of complaint to be instituted in a District Forum within the local limits of whose jurisdiction the opposite party (ies) or any of the opposite parties at the time of institution of complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain and in case of several opposite parties, complaint to be filed only at one particular place on the choice of the complainant subject to the condition that

1. the District Forum, where the complaint has been instituted has given permission to the complainant to institute his complaint in that Forum despite the fact that some of the opposite parties are not residing or not having branch, or are not carrying on business or are not working for gain within the local limits of the jurisdiction of such District Forum; or
2. the opposite parties not so residing, or not having branch office or not carrying on business or not personally working for gain within such territorial limits, acquiesce in such institution.

Clause b of sub section 2 of section 11 has not provided any criteria or guideline on basis of which the complainant can ensure that the District Forum would, in all probability grant such permission; this therefore is a matter within the discretion of the District Forum.

11. The Hon’ble SCDRC in an iconic recent judgment dated 01.11.2017 in the case of Prem Joshi Vs Jurasik Park Inn passed in FA No. 488 of 2017 has dealt with similar issue of territorial jurisdiction in which the appellant had relied upon the same judgments passed by Hon’ble SCDRC in cases of Mahesh Ramnath Vs Secretary Cum-Commissioner Transport, Singhs Dental Hospital Vs Amrit Lal Dureja, Holy Family Hospital Vs Amit Kumar and Sardar Swaranjeet Singh Vs Anil Kumar Dixit. The Hon’ble State Commission has pertinently observed that vide notification dated 20.04.1999, the Hon’ble Lt. Governor of NCTD divided Delhi in ten Districts defining their respective area and this notification was issued for being complied with instead of being flouted. Obviously, therefore, the purpose of defining jurisdiction was to regularize and distribute the work to bring certainty instead of creating chaos. If all the litigants prefer to chose one Forum, that Forum would be overburdened and remaining nine Forums would become idle and had dismissed the Appeal.
12. The Hon’ble SCDRC in the said judgment had further observed that appellant in FA 216/12 namely Mahesh Ram Nath preferred Revision Petition in National Commission which was registered as No. 2816/2016. The said petition came up for hearing on 17.08.2012. National Commission called for report from President of Hon’ble State Commission as to whether there was any demarcation of territorial jurisdiction and if so whether the same being followed or not and if not for what reasons. On 27.09.2012 it was observed that territorial jurisdiction of various district Forums of Delhi was a matter of great public importance. Therefore, Secretary & Commissioner, Deptt of Consumer Affairs, Govt. of NCT of Delhi was directed to appear in person on notification. Mr. Shakti Bangar, Asstt. Director assured the Hon’ble National Commission to communicate directions of National Commission to officers concerned for compliance. Hon’ble National Commission was informed by some advocate that notification relating to distribution of jurisdiction in various consumer for a functioning in Delhi was not being followed in its letter and spirit. Therefore Deptt of Consumer Affairs was directed by Hon’ble NCDRC to furnish reports from all the District Forums as to whether they were strictly following the notification and if not, they were to give the number of cases which have been entertained / decided contrary to the stipulation contained in notification. Mahesh Ramnath revision petition was dismissed by Hon’ble NCDRC on 09.09.2014. However irrespective of such dismissal, question of territorial jurisdiction already stood decided before that by Hon’ble NCDRC by orders dated 27.09.2001 itself. Further directions of Hon’ble NCDRC dated 05.11.2012 apprised the Ld. Commissioner Cum-Secretary Department of Consumer, Food and Civil Supplies Government of NCT of Delhi about its concern with regard to exercise their territorial jurisdiction by ten consumer Fora for which the Ld. Commissioner had assured the Hon’ble NCDRC that various Distt Fora  working in NCTD shall exercise its jurisdiction and power strictly and accordance with the demarcation of their respective jurisdiction in terms of Government of Delhi, Director of Consumer Affair, Gazette Extra Ordinary (part IV) notification No. F.50(47)46/F&S (CA) dated 20.04.1999. According to Hon’ble NCDRC this is otherwise necessary to avoid Forum shopping and thereby has over ruled the view taken by Hon’ble SCDRC in Mahesh Ram Nath case and impliedly over ruled other such decision of Hon’ble SCDRC including Sarwan Singh case, Sardar Swaranjeet Singh case, Holy Family Hospital etc. On perusal of the above said notification it is clear that by virtue of this said notification, Hon’ble Lt. Governor of Delhi has made specific provision in general for allocation of business amongst various District Forums ear marking and specified the territories falling under different police station to each District Forum. The cause of action, residence of the OP, head office or branch office or area corporation of OP shall determine the territorial jurisdiction of each district Forum in consonance with the area specified in the said notification of Hon’ble LG of Delhi. Moreover, both the branch office and cause of action partly or Holly should coexist within the territorial jurisdiction of the district Forum to attract of its jurisdiction in view of Sonic Sugical’s case. In Sonic Sugicals Vs National Insurance Co. Ltd, the Hon’ble Supreme Court on 20.10.2009 has sealed the issue of territorial jurisdiction leaving no ambiguity with respect thereto.  
13. The Director, Consumer Affairs, issued a circular No. F50(21)/2003/F&S/CA/1053-1054 dated 07.11.2012 conveying the feelings of National Commission regarding not following the notification in its letter and spirit. It was also conveyed that National Commission took a very serious view and stated that inspite of notification promulgated by Govt. of NCT of Delhi on 20.04.1999 clearly demarcating jurisdiction district wise, District Forums were violating the order. On the basis of said letter Registrar of Hon’ble SCDRC wrote a letter No. F1. (Misc)/SC/2012/5045 dated 08.11.2012 advising President, District Forums to strictly comply with the directions i.e. the above mentioned notification/circular. National Commission took a serious view about not following the notification defining territorial jurisdiction.
14. Subsequent to the judgment of Hon’ble Delhi High Court in Writ Petition no. 11424 of 2016 passed on 01.02.2018, the Hon’ble National Commission vide order dated 01.03.2018 in Revision Petition 575 of 2018 arising against the order dated 01.11.2017 in Appeal no. 488 of 2017 passed by Hon’ble SCDRC in Prem Joshi vs Jurasic Park Inn & Ors held that in terms of Section 11 of CPA a complaint can be instituted inter alia in a district Forum within the local limits of whose jurisdiction the cause of action only or in part arises and since in the present case the complainant booked the tickets for the amusement part of OP online from his office at Karol Bagh, the district Forum at Tis Hazari would have territorial jurisdiction as part cause of action arose under his jurisdiction as per Section 11 (2) (c) of CPA. The Hon’ble National Commission further held that the cause of action is a bundle of facts which a person will have to prove in order to succeed in the LIS. Therefore in order to succeed in the consumer complaint the complainant will necessarily have to prove the cause of action falling within the territorial jurisdiction of the concerned district Forum.
15. In view of the latest settled proposition of law by Hon’ble NCDRC in the above mentioned Order pronounced in the Revision Petition no. 585 of 2018 passed in Prem Joshi vs Jurasik Park Inn case, the objections raised by the complainant regarding reliance on daily orders of Hon’ble National Commission in Mahesh Ramnath suffering from rule sub silentio and judgments of Hon’ble State Commission in Holy Family, Singhs Dental and Sardar Swranjeet having attain finality are put to rest / rather silenced. Further by clarifying and strictly defining and broad lining the territorial jurisdiction within the meaning of section 11 (2) of Consumer Protection Act in the Revision Petition 585 of 2018 arising out of Appeal no. 488 of 2017 in Prem Joshi Case, the Hon’ble National Commission has left no room for doubt that the judgment is not per incurium since the matter was referred to Higher Commission and therefore the said judgment shall have binding effect on all district Foras as is founded on reasons and on consideration of issue of territorial jurisdiction. Therefore this objection of the complainant is also assailed. Lastly in view of the binding nature of this judgment passed by the Hon’ble National Commission, it has acquired the status of ratio decidendi and is not reduced to a mere obiter dicta.
16. Coming to the complaint before us for admission, the complainant has failed to show anywhere in the complaint as to how the present complaint falls within the territorial jurisdiction of this Forum under Section 11 (2) (a) or (b) or (c)  since OP1 has its office at Shankar Road and OP2 at Karol Bagh and no cause of action wholly or partly has arise within the territorial jurisdiction of this Forum anywhere as per the pleadings in the complaint.
17. In the present case therefore none of the conditions laid down for admissibility of complaint under section 11 sub clause (a) (b) (c) is getting fulfilled in terms of the arraignment of opposite party (ies) in as much as they are neither residing nor carrying on business nor having a branch office nor are personally working for gain and lastly no cause of action wholly or in part has arisen within the jurisdiction of this Forum. The above mentioned complaint is hereby dismissed in limine due to erroneous jurisdiction which does not accord or vest in this Forum power to entertain and adjudicate the present complaint.
18. Let the present complaint therefore be returned to the complainant with liberty to the complainant to file the same before the appropriate Forum as per section 11(2) of the Consumer Protection Act. Let the copy of this order be sent to the complainant free of cost. 

     File be consigned to Record Room.

Announced On 10.10.2018

(N.K. Sharma)      President

(Sonica Mehrotra )  Member