Cicily Kallarackal Vs. Vehicle Factory
Email[From the Judgment & Order dated 16.09.2008 and 17.12.2009 of the High Court of Kerala at Ernakulum in W.A. No. 2518 of 2007 and RP No. 380 of 2009]
[From the Judgment & Order dated 16.09.2008 and 17.12.2009 of the High Court of Kerala at Ernakulum in W.A. No. 2518 of 2007 and RP No. 380 of 2009]
Ms. Tulika Prakash, Mr. M. Khairati, Mr. K. Rajeev, Advocates, for the Appellant (s).
Constitution of India 1950,
Article 226 – Consumer Protection Act 1986, Section 27A (1)(c) – Order passed by National Consumer Disputes Redressal Commission Appeal against – Whether High Court has the Jurisdiction to entertain writ petition against the order passed by commission. Held, High Court has no jurisdiction to deal with petition against order of commission but it is not always necessary to set aside an order passed by any authority/court having no jurisdiction as held in Mohd Swalleh & Ors v. IIIrd All District Judge Meerut [JT 1987 (4) SC 291]. It is not appropriate to entertain writ under Article 226 against order of commission. Statutory appeal is provided to Higher Court under provisions of the Act.
Delay
Consumer Protection Act, 1986
Delay – Condonation – Sufficiency of reason – Orders dt. 16.9.2008 and 17.12.2009 – Delay of 1314 days and 851 days respectively – Illness and hospitalisation cited as reasons. Held reason given not sufficient as he was not to come to the court personally. No reason to condone delay.
Delay – Scope of condonation To provide expeditious remedies to aggrieved persons, special courts/tribunal constituted Consumer Protection Act, one of them. Held delay should be condoned keeping special period of limitation prescribed under the statutes in mind. (Para 4)
So far as the issue of jurisdiction is concerned, the High Court had no jurisdiction to deal with the matter against the order of the Commission. (Para 2)
it is not always necessary to set aside an order if found to have been passed by an authority/court having no jurisdiction. (Para 2.1)
Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. (Para 2.2)
The order of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27 A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission. (Para 7)
A copy of this order may be sent to the Registrar General of all the High Courts, for bringing the same to the notice of Honble the Chief Justice and Honble Judges of the respective High Courts. (Para 8)
2. Mohammad Swalleh & Ors. v. IIIrd All. District Judge, Meerut & Anr.[ JT 1987(4) SC 291] (Para 2)
1. These special leave petitions have been filed against the impugned judgments and orders dated 16.9.2008 in Writ Appeal No. 2518 of 2007 and 17.12.2009 in Review Petition No. 380 of 2009. In order to decide the controversy it is not necessary to make the reference to the factual controversy involved herein.The basic issue has been raised in the petition that the Kerala High Court did not have jurisdiction to entertain the writ petition against the judgment and order passed by the National Consumer Disputes Redressal Commission (hereinafter called the Commission). The said order could be challenged only before this Court in view of the provisions of National Consumer Protection Act, 1986, thus, the order passed by the High Court impugned herein is a nullity for want of jurisdiction.
2. So far as the issue of jurisdiction is concerned, the learned counsel for the petitioner is right that the High Court had no jurisdiction to deal with the matter against the order of the Commission. However, while dealing with a similar issue this Court in Mohammad Swalleh & Ors. v. IIIrd All. District Judge, Meerut & Anr., [JT 1987(4) SC 291 : AIR 1988 SC 94], observed:
7. It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. (sic no appeal lay) On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Article 226 of the Constitution then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken. (Emphasis added)
2.1 In view of the above, it is not always necessary to set aside an order if found to have been passed by an authority/court having no jurisdiction.
2.2 Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercise its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.
3. So far as these petitions are concerned, there is an inordinate unexplained delay of 1314 days in filing the petition against the order dated 16.9.2008 and of 851 days against the order dated 17.12.2009. Cause shown for not approaching this Court within limitation is stated that petitioner was not physically fit and for some days remained in hospital. The cause shown is not sufficient as it was not necessary for the petitioner to come here personally.
4. This court in Anshulal Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in matter where the special courts/tribunal have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the court must keep in mind the special period of limitation prescribed under the statute(s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount
to substituting the period of limitation by this Court in place of the period prescribed by the legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.
7. While declining to interfere in the present Special Leave Petition preferred against the order passed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, we hereby make it clear that the order of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27 A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission.
8. A copy of this order may be sent to the Registrar General of all the High Courts, for bringing the same to the notice of Honble the Chief Justice and Honble Judges of the respective High Courts.
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