Gujarat High Court
District Agricultural Officer vs Legal Heirs Of Late Pankajbhai Janubhai ... on 16 January, 2019
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/6061/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6061 of 2017
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DISTRICT AGRICULTURAL OFFICER
Versus
LEGAL HEIRS OF LATE PANKAJBHAI JANUBHAI CHAUDHARI
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Appearance:
MS SEJAL K MANDAVIA(436) for the PETITIONER(s) No. 1
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 2
HCLS COMMITTEE(4998) for the RESPONDENT(s) No. 1
MS. SHIVANGI M RANA(7053) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 16/01/2019
ORAL ORDER
1. By way of this petition which is filed under Articles 226 and 227 of Constitution of India, the petitioner has challenged the order dated 19.1.2017 passed by Consumer State Commission in C.M.A.No.347 of 2016.
2. Heard learned advocate Ms.Sejal Mandavia for the petitioner and learned advocate Ms.Shivangi Rana for respondent no.1.
3. Learned advocate Ms.Mandavia appearing for the petitioner submitted that the respondent no.1 had filed complaint under the provisions of the Consumer Protection Act, 1986 before the Consumer Forum in which the respondent no.1 Page 1 of 7 C/SCA/6061/2017 ORDER prayed that the direction be given to the present petitioner to pay Rs.1 lac with 9% interest by way of compensation for the incident which has taken place. It is submitted that the husband of the original complainant had taken insurance from the insurance company under the scheme of Gujarat Collective Group (Public) Accident Insurance Scheme. The husband of the complainant had expired due to snake bite on 29.1.2014. However, claim of the complainant was not entertained. It is submitted that the complaint of the present respondent no.1 was partly allowed by the concerned forum. It is further submitted that copy of the order passed by the consumer forum was not served to the petitioner and thereafter the original complainant filed execution application before the consumer forum. The summons for the execution application was served to the present petitioner and at that time only, the present petitioner came to know about the passing of the order in the complaint filed by the original complainant. The petitioner, therefore, filed the appeal before the Consumer Disputes Redressal Commission, Gujarat state along with the application for condonation of delay being C.M.A.No.347 of 2016. It is submitted that though there was a delay of only 14 days in filing the appeal, the State Commission rejected the C.M.A., and therefore the petitioner has Page 2 of 7 C/SCA/6061/2017 ORDER filed the present petition. Learned advocate for the petitioner submitted that the respondent- State Commission ought to have condoned the delay and ought to have considered the appeal filed by the petitioner on its own merits and therefore the impugned order be set aside.
4. On the other hand, learned advocate Ms.Rana has opposed this petition and submitted that the present petition is not maintainable in view of the fact that the petitioner is having alternative statutory remedy. It is submitted that under Section 21 of the Consumer Protection Act, 1986, the petitioner can challenge the order passed by the State Commission by filing revision application before the National Commission. It is, therefore, submitted that this Court may not entertain this petition. Learned advocate Ms.Rana has placed reliance upon the decision rendered by the Division Bench of this Court in the case of Kirit Ramnaji Thakore V/s Vodafone Essar Gujarat Limited through Ashesh Thakore Companys reported in 2013(2) GCD 1157.
5. This Court has considered the submissions canvassed by learned advocates appearing for the parties. It is not in dispute that in the present petition, the petitioner has challenged the order dated 19.1.2017 passed by Page 3 of 7 C/SCA/6061/2017 ORDER the Consumer Disputes Redressal Commission, Gujarat State passed in C.M.A.No.347 of 2016, by which the application for condonation of delay in filing the appeal is rejected.
6. At this stage, if the provision of Section 21 of the Consumer Protection Act, 1986 are looked into, it provides as under:
"21. Jurisdiction of the National Commission
- Subject to the other provisions of this Act, the National Commission shall have jurisdiction-
(a) to entertain -
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds [rupees one crore]; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity."
7. The Division Bench of this Court in a similar matter in the case of Kirit Ramnaji Thakore (supra), has observed and held in paragraphs 8,11,12,13,14 and 22 as under:
"8. From the perusal of the para 12 of the aforesaid judgment it is clear that the Apex Page 4 of 7 C/SCA/6061/2017 ORDER Court has held that the Consumer Protection Act 1986 provides complete machinery and the 1986 Act is a special statute enacted by the Parliament and it provides complete mechanism for adjudication of the consumer disputes. The order of State Commission could be challenged before the National Commission in Revision.
11. In the aforesaid two decisions of the Apex Court, the Apex Court has clearly laid down the law that after the order passed by the State Commission, alternative remedy of filing a Revision under Section 21 of the Consumer Protection Act, 1986 has to be exhausted.
12. The Consumer Protection Act, 1986, is a complete Code in itself and provides for liberal procedure for hearing against the order passed by the District Forum by State Commission and against the order passed by the State Commission by the National Commission.
13. The question has raised in order dated 25th January 2011 that whether Article 226 or 227 of the Constitution of India can be resorted to as an alternative remedy? For the purpose it would be appropriate to recollect the provision of Section 21 of the Consumer Protection Act, 1986 which reads as under:
"21. Jurisdiction of the National Commission
- Subject to the other provisions of this Act, the National Commission shall have jurisdiction-
(a) to entertain -
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds [rupees one crore]; and
(iii) appeals against the orders of any State Commission; and
(b) to call for the records and pass Page 5 of 7 C/SCA/6061/2017 ORDER appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity."
14. Thus, when the National Consumer Commission has jurisdiction to call for the records from the State Commission and to set aside the order containing any perverse finding, if the State Commission has exercised jurisdiction not vested in it by law or has acted in exercise of its jurisdiction illegally or with material irregularity, naturally alternative remedy is available to approach the National Consumer Commission and when the said remedy is not exhausted, the act of approaching High Court under Article 226 and 227 can not be maintainable. The powers of supervision of all judicial authorities within State by the High Court, under the Constitution cannot be acquitted with such power of Revision as it is provided specifically under the statute to the judicial authorities like National Consumer Commission and therefore, it would be patently illegal exercise of jurisdiction by the High Court, if such Writ Petitions are entertained.
22. In view of the aforesaid facts, this Letters Patent Appeal succeeds and is allowed. The order passed by the Learned Single Judge datd 08.12.2010 in Special Civil Application No.8907 of 2010 is set aside. Special Civil Application No.8907 of 2010 is dismissed on the ground of availability of alternative remedy of Revision under Section 21 of the Consumer Protection Act, 1986."
Page 6 of 7 C/SCA/6061/2017 ORDER8. Keeping in view the aforesaid decision rendered by the Division Bench and statutory provisions contained in Section 21 of the Consumer Protection Act, 1986, this Court is of the opinion that the present case is squarely covered by the aforesaid decision rendered by the Division Bench and therefore this petition is not maintainable on the ground of availability of alternative remedy of revision under Section 21 of the Consumer Protection Act, 1986. Therefore, this petition is required to be dismissed and accordingly dismissed.
(VIPUL M. PANCHOLI, J) SRILATHA Page 7 of 7