STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble High Court of Gujarat under Article 227 of the
Constitution of India. The Respondent reserves the right to contest the jurisdiction of the High
Court in this matter of Article 227 of the Constitution.

ISSUES RAISED

ISSUE 1: Whether the appeal filed by Ms. Anu Shrivastava, the petitioner in the Hon’ble High
Court of Gujarat is maintainable or not?
ISSUE 2: Whether Ms. Anu Shrivastava has the locus to insist on a new site since her
membership had been cancelled?
Is there any bylaws in gujarat
ISSUE 3: Whether Ms. Anu Shrivastava has committed fraud while applying for membership of
Dave Cooperative society?
SUMMARY OF ARGUMENTS
The Gujarat High Court does not have requisiteJurisdiction to entertain the plea of
the petitioner.
The petitioner approached the Hon'ble High Court of Gujarat under Article 227 of the
Constitution, challenged the order of state commission is not maintainable and without
jurisdiction as the appeal against the order of state commission only lie before the national
commission under Section 73(1)(b) of Consumer Protection Act, 2019.
2. The petitioner does not have locus to insist on a new site since her membership has
been cancelled in light of fraud committed by her.
The petitioner, when applying for membership of Dave Cooperative Society, the respondent
discovered that the petitioner had not been truthful in her application as the petitioner was not an
ordinary citizen of Vadodara and she owned a house in Ranchi, which was against the byelaws
of becoming member at Dave Cooperative Society.
 STATEMENT OF FACTS
In the year 2002, Ms. Anu Shrivastava, the petitioner, saw an advertisement of new
housing society being formed by Dave Cooperative Society, the respondents in the outskirts of
Vadodara. She decided to become a member of Dave Cooperative Society.
One of the Byelaws of becoming a member of Dave Cooperative Society, that it is only
for persons ordinarily residing in Vadodara and not owning a property of their own. The
Petitioner applied and became a member in 2002. Also paid an amount of 1.5 lakhs for the
allocation of site. After 12 years, she is allotted site bearing no.13.03.2014.
The petitioner demanded for a site which Dave Cooperative Society on the pretext that
the allotted site was illegal, Dave Cooperative Society refused to allot the same. In 2016, the
petitioner approached the District Consumer Forum under the Consumer Protection Act,1986.
The District Consumer Forum directed society to refund the amount paid by her with interest of
9% annum. She appeals against the order of District Consumer Forum in Gujarat State Consumer
Disputes Redressal Commission. The State Commission allowed the appeal and modified the
order by directing Dave Cooperative Society to allot an alternate site and compensation of INR
5,00,000 for Mental agony and INR 10,000 for litigation costs.
In 2020, The Respondents Cancelled Anu’s membership as she had not been truthful in
her application and that she was not an ordinary resident of Vadodara, and she owned a house in
Ranchi. Also, Dave Cooperative Society filed an appeal before District Consumer Forum for
dismissal of execution proceedings in light of fraud committed by her. District consumer forum
dismissed the application, stating the respondents cannot take up such contention during
execution proceedings.
The Respondents challenged the dismissal of application before state commission under
Section 73 of Consumer Protection Act,2019. The State Commission upholds the order of
District Consumer Forum directed the respondents to allot an alternate site in George Layout, a
new society formed by the respondents, upon paying a revised price for the site.
The Petitioner appealed the order of State Commission before Hon’ble High Court of
Gujarat by way of petition under Article 227 of the Constitution of India on the ground that
appeal filed by the respondents was not maintainable and without jurisdiction. The respondents
appeared before Hon’ble High Court of Gujarat and objects to the petition, both on merits and on
maintainability, inter-alia on the grounds:
The appeal is not maintainable, as an appeal against the order of State Commission can
only lie before the National Commission.
That Anu did not have locus to insist on a new site since her membership had been
cancelled, and that she had not taken any recourse under law against such cancellation.
 ARGUMENTS ADVANCED

1. Appeal filed by Ms. Anu Shrivastava, the petitioner, in the Hon’ble High Court of
Gujarat is not maintainable.

It is Submitted on behalf of the Dave Cooperative Society (hereafter referred to as the

“Respondent”) that the appeal by Ms. Anu Shrivastava (hereafter referred to as the “Appealent”)
is not maintainable, as she approached the Hon’ble High Court for challenging the order of State
Commission, which was out of Jurisdiction.
The Provisions of the Maintainability of the Appeal has been provided in the Article 227(1),
which states:
“Every High Court shall have superintendence over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction”.1
The Appeal against the order of State Commission shall lie before National Commission as
stated under Section 51(1):
“Any person aggrieved by an order made by the State Commission in exercise of its powers
conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of section 47 may prefer an
appeal against such order to the National Commission within a period of thirty days from the
date of the order in such form and manner as may be prescribed”.2
In Om Prakash Saini v. DCM Limited, held that:
“Any person aggrieved by an order passed by the District Forum can file an appeal before the
State Commission. If he is not satisfied with the order of the State Commission, a further remedy
is available by way of revision before the National Commission. If the complaint is decided by
the State Commission, the aggrieved person can file an appeal before the National Commission”

In Rakhi Bhattacharyya v. State Consumer Disputes Redressal Commission –“It is not a

question of this Court not having jurisdiction under Article 227 of the Constitution of India to
entertain the matter but that of propriety, as well as of a self-imposed restriction by
this Court on itself, not to entertain such matters in view of availability of an equally efficacious
alternative remedy. Even if the petitioner has substantial merits in her case, the petitioner ought
to have taken recourse to the appropriate remedy before the proper forum”2

2
Rakhi Bhattacharyya v. State Consumer Disputes Redressal Commission, 2019 SCC OnLine Cal 8363
3
(Home | Department of Consumer Affairs | Ministry of Consumer Affairs Food and Public Distribution |
Government of India, n.d.)
In PNB v. OC Krishnan –“The order which was passed by the Tribunal directing sale of
mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993 (for short “the Act”). The High Court ought not to have
exercised its jurisdiction under Article 227 in view of the provision for alternative remedy
contained in the Act. We do not propose to go into the correctness of the decision of the High
Court and whether the order passed by the Tribunal was correct or not has to be decided before
an appropriate forum Taking recourse to proceedings under Articles 226 and 227 of the
Constitution or by filing a civil suit, which is expressly barred. Even though a provision court
under Articles 226 and 227 of the Constitution, nevertheless when there is an alternative remedy
available judicial prudence demands that the court refrains from exercising its jurisdiction
under the said constitutional provisions. This was a case where the High Court should not have
entertained the petition under Article 227 of the Constitution and should have directed the
respondent to take recourse to the appeal mechanism provided by the Act.”

1.1 The Petitioner has an alternative remedy available during recourse.

The petitioner appealed the order of State Commission in the Hon’ble High court of Gujarat,
when there is an alternative remedy available.
Section 58(a)(iii) of the Consumer Protection Act, 2019 states “The National Commission has
the Jurisdiction to entertain the appeals against the order of any State Commission.”3
In Tej Bahadur Thapa v. District Central Co-Operative Bank Ltd –“In the case of The Manager,
Burdwan Co-operative Agricultural and Rural Development Bank Limited v. Anath Bandhu
Dhara (supra), a Single Bench of this Hon'ble Court has held that when the remedy available
under the statute that remedy should be exhausted and before exhausting that remedy, petition
under Article 227 cannot be entertained. In the said judgment some decisions of the Hon'ble
Apex Court has been referred to but no discussion has been made as to whether those judgments
have laid down any law as to the total bar for entertaining a revisional application against the
order passed by the National State Commission.