The General Manager, Southern Railway, Madras-3 vs The State Consumer Protection Disputes Redressal Commission, R.K. Mutt Road. Mylapore, Madras-4 and The Chairman, Madras Provincial Consumers Association, Chepauk, Madras-5.

Bakthavatsalam, J.—When the miscellaneous petitions came up for hearing, by consent of both parties the main writ petition itself is taken up for disposal. The short point that arises for consideration in this writ petition is whether the State Consumer Disputes Redressal Commission (in short, State Commission) has got jurisdiction to pass an order modifying the order of the District Consumer Disputes Redressal Forum (in short, District Forum) to supply water in the first and second Class compartments in the Southern Railway in separate containers.

Mr. R. Thiagarajan, the learned senior counsel appearing for the petitioner states that no such statement was given by the learned counsel appearing for the Southern Railway before the State Commission and that by the impugned order in Appeal No. 7 of 1991 dated 22-2-1991, the State Commission has exceeded its jurisdiction. That apart, the learned senior counsel states that the State Commission has no jurisdiction to pass an order of imprisonment-According to the learned senior counsel, if the order of the State Commission is implemented, the Railways will be mulcted with huge expenses and as such this Court should interfere with the same under Art. 226 of the Constitution of India.

Mr. R.R. Dalavai, who appears for the second respondent, in person, submits before the court that the petitioner is trying to question the order of the State Commission on facts and that it is not open to the petitioner to do so in as much as the petitioner has got a right of Review also to the National Commission under S. 21 of the Consumer Protection Act, 1986 (hereinafter referred to as the ''Act''). According to Mr. R.R. Dalavai, providing drinking water in the compartments is an amenity to the passengers and the Railways ought not to have preferred a writ petition against such an order ordering the basic amenity to the passengers in the I and II Class compartments, especially when the learned counsel appearing for the Railways before the State Commission accepted for the modification of the order of the District Forum, providing drinking water facility in every compartment, instead of providing drinking water in sachets.

Considering the arguments of Mr. R. Thiagarajan, the learned senior counsel appearing for the petitioner and of Mr. R.R. Dalavai, appearing for the second respondent, I am of the view that the writ petition has to be dismissed as it is wholly misconceived. First of all, if the petitioner, wants to challenge the order of the State Commission, he can approach the National Commission under S. 21 of the Act. Under sub-Cl. (b) of S. 21 of the Act, the National Commission has got very wide powers to interfere with the orders of State Commission especially when the order is made without jurisdiction. As such, on the ground that the petitioner has got alternate remedy under S. 21 of the Act, this petition has to fail.

That apart, the position of law is that what happened in a court or in a hearing cannot be substituted by filing an affidavit before this Court which is done in this case. The State Commission has stated in its order dated 22-3-1991 as follows:

"Mr. R.R. Dalavai for the respondent argued before us that it is not necessary to order supply of water in sachets as it would push up the price and it was enough if water is provided in every Second Class and First Class Compartment in well maintained containers. The learned counsel appearing for the Railways is agreeable and assures that there is drinking water facility in every compartment at all time."

This statement of the State Commission is questioned before this Court by filing an affidavit to the effect that such a statement was not made before the State Commission by the learned counsel. In my view, it cannot be done. What is found in the order is final. This position of law is decided by Privy Council as well as by the Supreme Court, in catena of decisions. So, the petitioner cannot file an affidavit before this Court under Art. 226 of the Constitution of India and explain what happened before the State Commission when the case was heard. As such on this ground also the writ petition has to fail. Therefore, on both the grounds, the writ petition will stand dismissed. However, considering the facts and circumstances of the case and also having given due consideration to the arguments of the parties on both sides, the last portion of the order of the District Forum which imposed a punishment for default of the compliance of the order will stand stayed till the petitioner takes appropriate proceedings before the National Commission. However, there will be no order as to costs in this writ petition.