Kerala High Court
T.P.Varghesekutty vs Manoj R.S on 13 November, 2019
Equivalent citations: AIRONLINE 2019 KER 756, 2019 (4) KLT SN 90 (KER)
Author: S.Manikumar
Bench: S.Manikumar, A.M.Shaffique
W.A.2297/2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941
WA.No.2297 OF 2019
AGAINST THE ORDER/JUDGMENT IN WP(C) 35474/2018(H) OF HIGH COURT
OF KERALA
APPELLANT/S:
T.P.VARGHESEKUTTY,
AGED 43 YEARS,
S/O.T.K.PURAVATH, THEKKILAKKAD, PALAMATTAM P.O.,
KOTHAMANGALAM- 686 691.
BY ADVS.
SRI.M.A.ABDUL HAKHIM
SRI.JOSEPH GEORGE (KANNAMPUZHA)
RESPONDENT/S:
1 MANOJ R.S.,
S/O.SREEDHARAN NAIR, MANOJ CHICKENS,
GANESHAPURAM HOUSE, KAMBALAKKAD P.O., NOW RESIDING
AT SREENANDANAM, MEENANGADI P.O., SULTHAN BATHERY,
WAYANAD DISTRICT.
2 THE BRANCH MANAGER,
AXIS BANK, CITY CENTRE, ENGLISH CHURCH ROAD,
PALAKKAD- 678 014.
3 PEROORKADAVU FARMERS DEVELOPMENT SOCIETY,
PALAKKAD, PIN- 678 001,
REPRESENTED BY ITS OFFICE BEARER.
4 INSPECTOR OF COMMERCIAL TAXES,
COMMERCIAL TAX, CHECK POST, NADUPPUNI P.O.,
PALAKKAD DISTRICT.
W.A.2297/2019 2
5 KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
SISUVIHAR LANE, VAZHUTHAKKAD, SASTHAMANGALAM P.O.,
THIRUVANANTHAPURAM- 695 010.
R4, R5 by SR.GP.SRI.TEK CHAND
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.2297/2019 3
"CR"
JUDGMENT
S.Manikumar, CJ.
This writ appeal is directed against judgment made in W.P. (C).No.35474 of 2018 dated 22.10.2019, by which a learned single Judge of this Court, placing reliance on Cicily Kallarackal v. Vehicle Factory reported in [(2012) 8 SCC 524], dismissed the writ petition on the ground that a writ petition against an interim order passed by the Kerala State Consumer Disputes Redressal Commission is not maintainable.
2. Said order is challenged on the grounds, inter alia that the appellant representing the Peroorkadavu Farmers Development Society is not an office bearer or even a member of the said society. We have perused the decision relied on by the writ court. The issue involved in Cicily's case (supra) is that.-
"Whether High Court of Kerala have any jurisdiction to entertain a writ petition against the judgment and order passed by the National Consumer Disputes Redressal Commission. High Court decided that a writ petition is maintainable. Aggrieved by the decision of High Court, parties approached the Hon'ble Supreme Court. After considering the statutory provisions and decision of the Honourable Supreme Court in Muhammad Swalleh and Others v. III rd Addl. District Judge, W.A.2297/2019 4 Meerut and Another reported in [(1988) 1 SCC 40], the Hon'ble Apex Court observed that when an alternate remedy is available under Consumer Protection Act, 1986, writ petition ought not have been entertained."
4. Relevant paragraph of the decision in Cicily's case (supra), for the purpose of instant writ appeal, is extracted hereunder:
"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 Art.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 Art.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."
5. In support of Cicily's case (supra), we are inclined to refer a decision of this Court in KSEB Ltd. and another v. KSCDRC and W.A.2297/2019 5 Others reported in [2018 (4) KHC 315], wherein the relevant portions reads thus:
"9. The decision in Uttar Pradesh Power Corporation Ltd. (supra) was rendered by the very same judges, who rendered the decision in Nivedita Sharma (supra). We observe that the decisions in Nivedita Sharma (supra) and Cicily Kallarackal (supra) would only state that the aggrieved party has to challenge the order passed by any District Forum in an appeal before the State Forum and not by filing a writ petition. But the position will be different when the order is per se without jurisdiction, as is held in Uttar Pradesh Power Corporation Ltd. (supra). The Honourable Supreme Court in 2008 (1) SCC 1, 2008 (1) KHC 17: 2008 (1) KLD 7: AIR 2008 SC 809 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others), held that when the order under challenge is per se without jurisdiction, then the order can be challenged straight away by filing a Writ Petition under Art.226 of the Constitution of India.
The jurisdiction of the High Court in entertaining a Writ Petition under Art.226 of the Constitution of India, in spite of the alternate statutory remedies, is not affected, specially 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."
6. Though Mr.Joseph George, learned counsel for the appellant contended that issue raised before this Court, being jurisdictional, could be adjudicated by this Court in exercise of the powers under Article 226 of the Constitution of India, we are not inclined to accept the said contention. In the light of the decision of the Hon'ble Supreme Court, W.A.2297/2019 6 when there is an alternative remedy, we are of the view that writ petitions should not be entertained for the reason that even jurisdictional issues on facts and clause can be raised before the Appellate Authority, namely, the National Commission.
7. In the light of the above discussions and decisions, we find no merit in this writ appeal, warranting interference.
Writ appeal is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE
DG JUDGE