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TMI Blog2022 (3) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Usually, in writ petitions, interim orders are passed at the admission stage. At that time, there may not be an appearance for the respondents in all the cases. This Court is admitting a writ petition based on prima facie finding. Prima facie finding regarding the maintainability of the writ petition cannot be taken advantage of by the petitioners at the time of the final hearing especially because it is a finding without hearing the other side. The respondents in the writ petitions are free to raise the question of maintainability based on the argument that there is an alternative remedy, even at the time of final hearing also - Each case has to be decided on the basis of facts in that case. But it is to be declared that, simply because a writ petition is admitted and a stay is granted at the admission stage, there is no rule that the question of maintainability in the light of alternative remedy available cannot be raised at a later stage of hearing the writ petition, even if several years elapsed after the admission of the case. If an order is passed by the National Commission, that order can be challenged even before the Apex Court directly. When such a hierarchy of court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court can use its discretion either to entertain such writ petition or to reject it. Specific averments are necessary in the writ petition for not availing the statutory remedy of appeal when an appealable order is challenged by filing a writ petition under Article 226 of the constitution of India. Simply stating that the authority who passed the order has no jurisdiction alone is not sufficient to invoke the jurisdiction under Art.226 of the constitution, especially when the appellate authority also can consider the question of jurisdiction. This court need not entertain writ petitions to interfere with orders passed by authorities without jurisdiction in all situations when a statutory remedy is available. This court can use discretion while entertaining such writ petitions considering the facts and circumstances of each case. 3. In W.P.(C.) No.36086/2015, the impugned order is Ext.P9, which is an order passed by the Consumer Dispute Redressal Forum, Wayanad, Kalpetta (for short 'District Forum'). The above writ petition was admitted by this Court on 27.11.2015 and this court was pleased to stay all further proceedings to enforce Ext.P9 order for six weeks. Subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b National Bank v.Consumer Disputes Redressal Forum, Alappuzha [2011 (3) KHC 511], Reghu B and anr. v.State Bank of Travancore, Tvm and anr. [2015 (4) KHC 270] and also relying on several other decisions of this court and apex court submitted that the Consumer Forum has no jurisdiction to entertain a complaint against the recovery proceedings initiated by a bank in connection with the default committed in repaying a loan availed by a customer. 7. The counsel appearing for the 3rd respondent in W.P.(C.) No.36086/2015 raised a contention that this writ petition is not maintainable, in the light of the judgment of this Court in Controller of Examination s case (supra). The counsel submitted that the petitioner has got an efficacious and alternative remedy against Ext.P9 order and therefore, this Court may not entertain the writ petition. The counsel also submitted that if the petitioner has got any grievance against the maintainability of the complaint before the District Forum that contentions ought to have been taken before the District Forum properly and after inviting Ext.P9 order, the remedy of the petitioner is to challenge Ext.P9 before the State Consumer Dispute Redressal C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternative remedy is not available in the light of the Apex Court judgment in the State of Uttar Pradesh v. Mohammed Nooh [1958 SCR 595]. 9. The counsel for the 3rd respondent in W.P.(C.) No.36086/2015 submitted that the Apex Court in Genpact Pvt.Ltd. v. Deputy Commissioner of Income Tax and anr. [2019 KHC 7167] considered this point in detail and observed that admission of writ petition cannot estop the court from examining the maintainability of the petitioner on the ground of availability of alternative remedy. The counsel also relied on the judgment of the Apex Court in State of UP anr. v. UP Rajya Khanij Vikas Nigam SS others [2008 (12) SCC 675] and the decision of this Court in Kunhikandan v. State of Kerala [1984 KHC 86]. The counsel for the 3rd respondent in W.P.(C.) No.36086/2015 also relied on a Division Bench judgment of this Court in Georgekutty v. State of Kerala [AIR 1994 KER 19] and argued that question whether the complainant is a Consumer also can be decided by the District Forum itself and writ petition raising the question of jurisdiction of the forum need not be entertained. 10. This court considered the judgments relied by the petitioners to strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nigam Sangharsh Samiti and others, 2008 (12) SCC 675, this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under: 38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari, (AIR 1992 All 331 (Suresh Chandra Tewari vs. District Supply Officer)), that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal . But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) 2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not necessary to refer to all those decisions in this case. It is well settled that ordinarily the existence of an adequate statutory remedy bars the exercise of jurisdiction under Art.226. It is also equally well settled that in cases where there have been violation of principles of natural justice or any statutory provision or rule or an error apparent on the face of the record, the jurisdiction under Art.226 can be exercised. The position in this regard is concluded by the authoritative pronouncement of the Supreme Court in Titaghur Paper Mills Company Ltd. v. State of Orissa (AIR 1983 SC 603). The Supreme Court has held in the above case: 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. That was a case where the party had a right of appeal under the Orissa Sales tax Act. The writ petition filed by the assessee was dismissed by the Supreme Court on the short ground of existence of adequate alternative remedy. This is what is observed by the Supreme Court: We are constrained to dismiss these petitions on the short grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the question of maintainability in the light of alternative remedy available cannot be raised at a later stage of hearing the writ petition, even if several years elapsed after the admission of the case. 15. The learned counsel for the petitioners relied on certain decisions of this Court to support their case. The 1st decision relied on by the counsel is Tahasildar, Pathanapuram s case (supra). A Single Judge of this Court in that decision observed in paragraph 22 relying on two Division Bench judgment of this court and observed that the question of alternative remedy is relevant only at the stage of exercising the discretion of this Court as to whether the writ petitions to admit or not. Paragraph No.22 of Tahsildar, Pathanapuram s case (supra) is extracted hereunder: 22. With regard to the availability of the alternate remedy and the challenge raised against the maintainability of the present writ petition, the question of alternate remedy is relevant only at the stage of exercising the discretion of this Court as to whether the writ petition is to be admitted or not, as made clear by two Division Benches of this Court as reported in Thressiamma v. Union of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt observed like this : 13. Mr. Roy Chacko, learned Senior Government Pleader, strenuously urged that the respondent had an alternate remedy of revision before the statutory authorities, and, therefore, the Original Petition ought not have been entertained. The learned Single Judge has rightly given short shrift to this contention by holding that alternate remedy is an attractive argument only when a Writ Petition comes up for admission; it is open for this Court to decline to exercise its plenary powers under Art.226 of the Constitution and relegate the petitioner to the statutory remedies, if they are equally efficacious alternate remedies. The learned Single Judge disposed of the contention by holding that, at the end of five years, the petition could not be summarily dismissed on the ground of availability of equally efficacious alternate remedy. Apart from this reasoning of the learned Single Judge, we have our own doubt as to whether a revision can be an equally efficacious alternative remedy. (underline supplied) 18. Moreover, in Thressiamma's case (supra), another Division Bench of this Court observed like this : 12. Further, in this case, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, has also taken the view that when a Writ Petition has been pending for a long time, it may not be proper to dismiss that Writ Petition on the ground of alternate remedy. We are in agreement with the above decisions. 13. According to us, after the Writ Petition is admitted, it has to be disposed of on merits. Of course while disposing of the case, the court may have to exercise its discretion when disputed question of facts arise. But to dismiss such a Writ Petition after a lapse of years on the ground of alternate remedy is not proper. (underline supplied) 19. The observations in the above judgments are based on the facts of each case. But the general finding if any in the above judgments to the effect that, the maintainability of the writ petition on the ground of alternative remedy is relevant only at the stage of exercising the discretion of this Court as to whether the writ petition is to be admitted or not, cannot be accepted in the light of the judgment of the Apex Court in Genpact India Pvt.Ltd.'s case (supra) and UP Rajya Khanij Vikas Nigam SS's case case (supra). Such findings in those judgments are not good law in the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled position that even if there is alternative remedy, the High Court can entertain a writ petition under Article 226 of the Constitution of India, if the justice demands for the same. When a writ petition came up for admission challenging the orders passed by the Consumer Forums constituted as per the Consumer Protection Act, normally this Court will not entertain the same, unless there is an extraordinary situation to entertain such a writ petition. This Court will not entertain a writ petition filed in a routine manner against the orders passed by the Consumer Forums. Therefore, each case has to be decided on its own merit. Now, I will consider the contention of the petitioners in these two writ petitions separately. W.P.(C.) No. 3801/2014 21. This is a writ petition filed by the Union Bank of India, which is a nationalized Bank. Respondent Nos.1 and 2 availed an educational loan from the petitioner-Bank and when there was a default in repaying, revenue recovery proceedings were initiated. Challenging the same, Ext.P1 complaint was filed before the Consumer Dispute Redressal Forum, Idukki as evident by Ext.P1 complaint. The District Forum passed Ext.P2 order restrai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Art.226 of the Constitution, in spite of the alternative 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. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the TRIBUNAL . In the above view of the matter, we are of the view that no error was committed by the learned Single Judge while entertaining the Writ Petition under Art.226 of the Constitution of India against the order passed by the Commission on 25/11/2014 on the ground that jurisdiction of the Commission is barred under S.34 of the 2002 Act and the Commission has no jurisdiction to stay the recovery proceedings under the 2002 Act. The first submission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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