CICILY KALLARACKAL Vs VEHICLE FACTORY
Bench: B.S. CHAUHAN,SWATANTER KUMAR
Case number: SLP(C) No.-024228-024229 / 2012
Diary number: 23932 / 2012
Advocates: K. RAJEEV Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
S.L.P.(C) No.24228-24229 of 2012 (CC Nos. 12891-12892 of 2012)
Cicily Kallarackal …Petitioner
Versus
Vehicle Factory …Respondent
O R D E R
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 petitions 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
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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., 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 Art. 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 Art. 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)
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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.
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 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.
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
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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 a matter where the
special courts/tribunals 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.
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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.
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 Hon'ble the Chief
Justices and Hon'ble Judges of the respective High Courts.
………..……………………….J. (Dr. B.S. CHAUHAN)
……….………………………..J. (SWATANTER KUMAR)
New Delhi, August 6, 2012
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