Writ Petition No.3403 of 1999

11th September, 2014

Petitioner Counsel: Mr. R.L. KHAPRE
Respondent Counsel: Mr. P.B. PATIL

Cases Cited:
Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, AIR 1999 SC 22 (1) [Para 3]
Cicily Kallarackal Vs. Vehicle Factory, 2012 ALL SCR 2591=(2012) 8 SCC 524 [Para 4]
Nivedita Sharma Vs. Cellular Operators Association of India and Others, (2011) 14 SCC 337 [Para 6]

JUDGMENT

A. P. BHANGALE, J. :- The petitioner prays to quash and set aside the Order dt.16.2.1999 passed by the District Consumer Disputes Redressal Forum, Buldana in Case No.348 of 1998 and Order dt.13.5.1999 passed by the Consumer Disputes Redressal Commission, Maharashtra State in Appeal No.700 of 1999.

2. The question that arises in this petition is as to whether the petitioner, who has an alternative, efficacious and cheaper statutory remedy of appeal available, can, without invoking such statutory remedy of appeal, approach the High Court directly under Article 226 of the Constitution of India ? Our answer to the said question is in the negative for the reasons given in the following paras.

3. Mr.R.L.Khapre, learned Counsel for the petitioner wants to submit that merely because the alternate statutory remedy is available, jurisdiction of the High Court is not affected under Article 226 of the Constitution of India, especially in a case where the Authority against whom the Writ is filed is shown to have no jurisdiction or had purported to usurp jurisdiction without any legal foundation. He relied upon the ruling in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others reported in AIR 1999 SC 22 (1). It was observed in paras 20 and 21 thus :-

"20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, especially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "TRIBUNAL".

4. In the recent case of Cicily Kallarackal Vs. Vehicle Factory reported in (2012) 8 SCC 524 : [2012 ALL SCR 2591], however, with regard to maintainability of writ petition when alternative statutory remedy is available in matters arising under the provisions of the Act, the Apex Court has held as follows:

"4. Despite this, we cannot help but 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 exercised 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.

9. 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 orders 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 a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission."

5. Thus, the issue in question is decided by the Apex Court as above upon propriety to entertain Writ Petition. The legal position, therefore, appears settled that a Writ Petition under Article 226 of the Constitution is not to be entertained when the alternative and efficacious statutory remedy of appeal is available under the Special Act (i.e. Consumer Protection Act), unless exceptional circumstances are made out. In this case, the petitioner/opposite party has not made out any exceptional circumstance, to entertain this Writ Petition, despite availability of efficacious alternative remedy before the aforesaid Forums which have been established under the Act. A complaint having been filed under the provisions of the Act, there being alternative statutory appellate Forums existing for an aggrieved party to seek justice, as provided under the Act, we do not find justification to entertain this Writ Petition. The contention that the appellate Forum - National Commission is available in Delhi and not in Nagpur is not the very exceptional circumstance, particularly because the National Consumer Redressal Forum has also started holding periodical sittings at Nagpur as well to provide speedy and cheaper remedy.

6. The Consumer Protection Act, 1986 was enacted for better protection of interests of consumers by making provision for the establishment of Consumer Councils and other Authorities for the settlement of consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer Forums at District, State and National level. In a Writ Petition under Article 226 of the Constitution of India and/or Writ Petition under Article 227 of the Constitution of India, when maintainability is questioned, it needs to be considered when alternative remedy under the Statute is available. Principle of the Rule of exhaustion of Statutory Remedies before approaching the Writ Court needs to be respected. Exceptions to the Rule of Relegation to alternative remedy, although are recognised, however, as held by the Supreme Court, the High Court may not entertain a petition under Article 226 of the Constitution of India if an effective alternative remedy is available to the aggrieved person or the Statute concerned contains an effective mechanism for redressal of grievance vide ruling in the case of Nivedita Sharma .vs. Cellular Operators Association of India and Others reported in (2011) 14 SCC 337.

7. In the result, therefore, the petitioner is needed to avail of the statutory alternative remedy as available, which is statutorily cheaper as well as expeditious in the facts and circumstances of the case. That being so, the remedy to approach the National Consumer Redressal Forum was not availed of for any justifiable reason. Hence, no exceptional ground is made out so as to entertain the writ Petition.

8. In the result, therefore, the Writ Petition is dismissed with no order as to costs. Rule is discharged.

9. Mr.R.L.Khapre, learned Counsel for the petitioner states that he would like to avail of alternate efficacious remedy as stated above. Therefore, he prays to exclude the time consumed in prosecuting this Writ Petition if the alternate remedy, as stated above, is exhausted within a period of 30 days from today. Mr.P.B.Patil, learned Counsel for respondent no.1 opposes the request so made. However, in the interest of justice and since no prejudice would be caused to respondent no.1 if the prayer made by Mr.R.L.Khapre, learned Counsel is granted, the same is granted.

Petition dismissed.