The court held that maintainability and entertainability are distinct concepts, and a constitutional remedy under Article 227 can be pursued despite the availability of an alternative remedy under the Consumer Protection Act.

ORDER :

Sujoy Paul, J.

1. Heard Sri S.Ashok Anand Kumar, learned Senior Counsel representing Sri N. Gangadhar, learned counsel for the petitioner and Sri M.Venkateswer Rao, learned counsel for respondent No. 2, on admission.

2. This petition filed under Article 227 of the Constitution assails the order passed by the Telangana State Consumer Disputes Redressal Commission, Hyderabad (for short 'the State Commission') in C.C. No.17 of 2016, dated 11.10.2023.

3. Learned Senior Counsel for the petitioner fairly submits that although the impugned order is appealable under the Consumer Protection Act, 2019, the petitioner seeks to avail the remedy under Article 227 of the Constitution, because, in the previous round, in W.P. No.10900 of 2023, this Court directed the State Commission to decide the objection raised by the petitioners therein, as a first issue while deciding the consumer complaint. This Court declined interference and disposed of the said writ petition with the emphasis that the State Commission shall ensure that a reasoned order be passed on the first issue and only if required, proceed further to decide the other issues involved in the complaint.

4. Learned Senior Counsel for the petitioner further submits that the arguments were advanced before the State Commission on 25.08.2023, limited to the issue of maintainability. He himself addressed the State Commission only on the question of maintainability/objection. However, the State Commission passed the final order, while deciding the issue on maintainability/objection, the Commission also decided the matter on merits.

5. It is submitted that the complaint itself is hopelessly barred by time. To wriggle out the aspect of limitation, the complainant, merely, averred that he sent a legal notice and when the requirement was not complied with, he promptly filed the complaint. Learned State Commission opined that the nature of violation brings it within the ambit of continuous cause of action. Criticizing this finding, learned Senior Counsel for the petitioner submits that there was no proper foundation in the complaint and it was nobody's case that there existed any recurring cause of action as understood by the State Commission. He submits that, in this view of the matter, this petition may be entertained despite availability of alternative remedy. In support of maintainability of this petition, he placed reliance on the judgment of Hon'ble Supreme Court in State of Karnataka v. Vishwabharathi House Building Cooperative Society, (2003) 2 SCC 412.

6. Sounding a contra note, learned counsel for respondent No. 2/complainant drawn our attention to paragraph No. 10 of the counter where he specifically denied that the arguments advanced before the State Commission on 25.08.2023 were only confined to the question of maintainability. He submits that the petitioner has an alternative remedy before the National Consumer Disputes Redressal Commission (for short, 'the National Commission').

7. It is pertinent to see the observation of this Court in W.P. No.10900 of 2023. It appears that this Court was conscious enough that against an order passed by the State Commission, there exists an appeal and therefore it was observed that "Given the specific observations made by the Commission that the objection raised by the petitioners shall be considered and decided as a first issue while deciding the consumer case, we are not inclined to interfere with the said order". However, the Court only observed that in view of Commission's own direction, it will be lawful to ensure that the said objection is decided as a first issue.

8. It is trite that "maintainability" and "entertainability" of the petition are two different facets. The constitutional remedy cannot be barred by a legislative Act. Thus, there is no quarrel about the question of maintainability. The only question is regarding "entertainability" despite availability of alternative remedy.

9. The Hon'ble Supreme Court in Whirlpool Corporation v.