Calcutta High Court (Appellete Side)
For The vs Mohd Mustaqim And Others on 21 March, 2013
Author: Harish Tandon
Bench: Harish Tandon
1 21.3.2013
C.O. 2758 of 2012 Mr. Srijan Nayek, Mr. S.S.Koley, Mr. Shovan Banerjee ... For the petitioners.
Mr. Akram Khan ... For the opposite party.
This revisional application is directed against the judgment and order dated April 26, 2012 passed by the State Consumer Disputes Redressal Commission, West Bengal in S.C. Case No.FA/464/2011 by which an application for condonation of delay in filing the statutory appeal is rejected.
A complaint was lodged under Section 12 of the Consumer Protection Act by the opposite party before ks the District Consumer Dispute Redressal Forum, Barasat.
Challenging the purported action of the petitioner in demanding a hefty sum on account of an arrear on the premises for giving a new connection, the District Forum decided the said application against the petitioner and directed the supply to be effected to the opposite party.
The petitioner chooses to challenge the said order by filing statutory appeal.
Section 15 of the Consumer Protection Act, 1986 provides for an appeal to be filed within 30 days from the date of the order.
Since there was some delay in filing the said statutory appeal, the application under Section 5 of the Limitation Act was also filed praying for the condonation of delay in preferring the appeal.
Paragraph 6 of the said application reveals that neither the learned Advocate appearing for the petitioner nor any intimation was given to the concerned Station Manager regarding the order 2 passed by the District Forum.
It is further stated that immediately upon coming to know of the said order, the Station Manager took a decision to file a statutory appeal and, accordingly, applied for certified copy of the order. It is further stated that because of the intra office procedure some time was invested for taking a decision as well as filing the appeal.
It appears that there is a delay of 73 days in preferring an appeal.
The opposite party did not choose to file any objection to the said application. However, at the time of entertaining the said application for condonation of delay, the learned Advocate appearing for the opposite party opposes the said application by taking a plea that the judgment and order passed by the District Forum was well within the knowledge of the petitioner, and, therefore, the application for condonation of delay should not be allowed.
The State Commission proceeded to dismiss the said application as no cogent explanation has been given by the petitioner as to why the recorded Advocate was not in a position to attend the Court regularly and the petitioner should have been more vigilant in taking steps in the proceedings.
The learned Advocate appearing for the petitioner submits that the Court should be more liberal in considering an application for condonation of delay and should not adopt hyper-technical approach.
The petitioner being the Government Undertaking is to follow certain procedures and because of the same, some delay has occasioned in preferring the statutory appeal.
The learned Advocate appearing for the opposite party vehemently opposes the aforesaid contention of the petitioner by saying that this Court should not entertain an application under Article 227 of the Constitution of India even if a wrong decision is passed by the Tribunal. In support of the aforesaid contention, he places reliance upon a judgment of the Supreme Court in case of Mohd. Yunus v. Mohd Mustaqim and others, reported in AIR 1984 3 Supreme Court 38.
He further contends that the jurisdictional error is not capable of being corrected under Article 226 of the Constitution of India as the same can be decided by the Tribunal itself and places reliance upon a Division Bench Judgment rendered by the Kerala High Court in case of A.V. Georgekutty v. State of Kerala and others, reported in AIR 1994 Kerala 19.
By citing a judgment of the Apex Court in case of Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in (1995) 3 Supreme Court Cases 583, it is contended that the Forum constituted under the Consumer Protection Act are quasi-judicial Tribunal and, therefore, the Civil Court's jurisdiction is barred.
Lastly, he contends that there is an express exclusion of the jurisdiction of the Civil Court under the Consumer Protection Act and, therefore, the instant revisional application is not maintainable and places reliance upon a judgment of the Apex Court in case of Dhulabhai v. State of Madhya Pradesh and another, reported in AIR 1969 Supreme Court 78.
The order which is impugned in this revisional application was passed on an application under Section 5 of the Limitation Act. The State Commission refused to condone the delay, as there is no cogent explanation offered in the said application.
There is no dispute that the Consumer Protection Act is a self-contained Code providing various provisions including the provisions for condonation of delay in preferring an application within the period of limitation under Section 24A (2) of the said Act.
There is no hesitation that the provision of Limitation Act applies to a proceeding before the Consumer Tribunal. The Court must adopt a liberal approach in considering an application under Section 5 of the Limitation Act as the meritorious claim should not be thrown on the touchstone of the Law of Limitation.
The petitioner being a Government Undertaking, the immovability in the department is not unknown. There are various procedural hazards, which are to overcome before arriving at a decision. The movement of files takes certain times from one desk 4 to another. I am not oblivious of the position that the Government or the Government Undertaking are not the privileged litigant but certain hard realities cannot be ignored.
The supervisory jurisdiction under Article 227 of the Constitution of India cannot be exercised for correction of a judgment or for reappraisal of the matter but should be exercised to bring the Tribunal within the precincts of law. The said jurisdiction should not be exercised like an Appellate Jurisdiction where the entire matter is at large, but can certainly be exercised to get the inferior Court or the Tribunal within the boundaries of law.
In case of Md. Yunus (Supra), as relied upon by the learned Advocate appearing for the opposite party, the Apex Court held that mere correction of error can be done by the High Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India. It is further held that the High Court exercising the jurisdiction under Article 227 of the Constitution of India does not do so as Appellate Court or the Tribunal.
There is no quarrel to such above settled proposition of law but if the Tribunal has exceeded the jurisdiction or acted beyond settled legal parameters, the High Court should exercise the power of superintendence to see that the inferior Court or the Tribunal are within the limits of its authority and cannot travel beyond.
Before the Kerala High Court in A.V. Georgekutty (Supra), the writ petition was made inviting the attention of the High Court that the complainant is not a consumer within the definition of the Consumer Protection Act. In the backdrop of the aforesaid facts, it was held that the Consumer Forum is competent to decide its own jurisdiction and have the authority to determine whether the person approaching the said Forum satisfies the definition of a consumer as engrafted under the said Act. The similar view is expressed in case of Laxmi Engineering Works (Supra) where the point in dispute was whether the consumer who bought the goods was for commercial purpose or not certainly the said question is capable of being determined by the Forum and the writ or the supervisory jurisdiction should not be invoked for such purposes.
I am afraid whether the said decision has any manner of 5 applicability in the present case. The Tribunal is a creature of Statute and competent to decide its own jurisdiction.
In Dhulabhai (Supra), the point involved before the 5th Judges Bench of the Supreme Court relates to the exclusion of the jurisdiction of the Civil Court. If the special statute expressly ousts the jurisdiction of the Civil Court, the Civil Court cannot be approached touching and/or relating to any matter coming within the ambit of the said Act.
The petitioner has not approached the Civil Court but has assailed the order passed by the State Commission under Article 227 of the Constitution of India. The power provided therein relates to the supervisory jurisdiction which the High Court enjoins.
Therefore, this Court does not find that the judgment cited by the opposite party has any manner of applicability in the facts of the present case.
As already indicated the approach of the Court or the quasi- judicial Tribunal or the authority at the time of dealing an application for condonation of delay should be liberal so that the rights of the parties are not defeated on technicalities but the determination should be made on merit.
This Court, therefore, finds that the Tribunal has exceeded the jurisdiction in not allowing an application for condonation of delay of 73 days in preferring a statutory appeal and, therefore, the order impugned is not sustainable.
Accordingly, the order impugned is set aside. The appeal shall be taken on record.
However, considering the nature of the dispute involved in the said proceeding, this Court feels that the State Commission would make all endeavours to dispose of the said appeal as expeditiously as possible and preferably within three months from the date of communication of this order.
The revisional application is thus disposed of. There shall, however, be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
6(Harish Tandon, J.)