Union of India vs. Smt. N. Nethravathi dated 2012-04-12
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO.3749 OF 2011
I.A’s for Stay and condonation of delay)
(Against the order dated 16.8.2007 in Appeal No.2443/2006
of the State Commission, Karnataka)
Union of India
Through Post Master General
In Karnataka Police Thimmaiah Circle,
Bangalore – 560 001 …Petitioner no.1
The Senior Superintendent of Post Offices
Bangalore – 560 024 …Petitioner no.2
The Senior Superintendent of Post Offices
Bangalore – 560 02 …Petitioner no.3
Smt. N. Nethravathi
C/o G. Krishna
R/o 43, ( New No.2305),
12th Main III Block,
Bangalore – 560 011. …Respondent
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MR. VINAY KUMAR, MEMBER
For the Petitioners : Mr. R.N. Singh, Advocate with
Mr. A.S. Singh, Advocate
Pronounced on: 12th April, 2012
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
. Being aggrieved by order dated 16.8.2007, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short as ‘State Commission), petitioner has filed this present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short as ‘Act’).
2. Alongwith this revision petition, an application seeking condonation of delay of 4 years 91 days has also been filed.
3. Respondent (complainant before the District Forum) had filed complaint against the present petitioners (opposite parties before the District Forum) stating that she has invested Rs.30,000/- in Indra Vikas Patra. However, the original certificates were lost and facts about the loss was reported to the Police Station. After maturity, when respondent made a claim for payment of the money, the same was rejected.
4. District Forum, vide its order dated 5.7.2004, dismissed the complaint.
5. Aggrieved by the order of District Forum, respondent preferred an appeal before the State Commission. The State Commission, vide order dated 5th July, 2005 dismissed the appeal and observed as under;
“It is still open for the opposite parties to examine the claim of the complainant with reference to the records maintained in the Post Office. In the event if no person has got encashed IVP, the claim of the complainant may be considered for payment”
6. Thereafter, respondent gave a representation and requested for encashment of the IVPs in question. After reexamination of the case, petitioners rejected the request of respondent .
7. Thereafter, respondent filed execution petition before the District Forum which dismissed the same, vide its order dated 4.9.2006. Aggrieved by the order, respondent filed an appeal before the State Commission, which vide impugned order allowed the appeal of the respondent.
8. This is how the matter has reached before this Commission.
9. Taking up application for condonation delay, it is contended by learned counsel for the petitioners that delay has occurred due to procedural requirement and also due to the fact that writ petition was filed before the High Court of Karnataka challenging the impugned order. The delay is bona fide and not deliberate or willful and sufficient grounds are made out for condonation of delay. Even otherwise on merits, petitioners have good case.
10. In support, learned counsel has relied upon the following judgement of the Hon’ble Supreme Court;
(i) State of Haryana vs. Chandra Mani and others, AIR 1996 Supreme Court 1623 and
(ii) “Special Tehsildar, land Acquisition, Kerala vs. K.V. Ayisumma, AIR 1996 Supreme Court 2750.
11. The main ground pleaded in the application for condonation of delay is that, petitioners are Govt. Department and as per norms laid down, an order/judgement of the court against the Government, before implementation has to be considered at various levels. Accordingly, the matter was considered at various levels in the department and due to ill advice, a writ petition was filed in the Karnataka High Court, which was later on withdrawn with liberty to file the present revision petition. Thus, the delay was bona fide and not deliberate and there are sufficient and good reasons for condoning the delay.
12. A similar question arose in “K. Rajiv and M/s. Kamla Builders and others, Civil Appeal No. 11431-11434 of 2011” decided by Hon’ble Supreme Court on 16.12.2011, in which the Court observed;
“The question whether the High Court can directly entertain the writ petition under Article 226 of the Constitution against the order passed by the State Commission ignoring that the aggrieved party is entitled to avail statutory remedy of appeal under Section 19 of the Act was recently considered in Civil Appeal No.10706 of 2011 Nivedita Sharma vs. Cellular Operators Association of India and others decided on 07.12.2011 and answered in negative. The relevant portions of that order are extracted below:-
There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation- L. Chandra Kumar v. Union of India (1997) 3 SCC 261. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body / authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
In Thansingh Nathmal v. Superintendent of Taxes AIR 964 SC 1419, this Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed:
"The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, this court observed
"It is now well recognised that where a right or Liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford (1859) 6 CBNS 336 : 141 ER 486 in the following passage:
'... There are three classes of cases in which a liability may be established founded upon a statute ............ But there is a third class, viz., where a liability not existing at common law is created by statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.'
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 : (1918-19) All ER Rep. 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd 1935 AC 532 and Secy. of State v. Mask and Co. (1939-40) 67 IA 222 : AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed:
"So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now