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2022 (5) TMI 793

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....red the question of jurisdiction and has held that against the order passed by the National Commission dated 9.12.2021 in First appeal No. 250/2021, a writ petition would be maintainable under Article 227 of the Constitution of India. By way of Interlocutory Application No. 58657/2022, the appellant herein has sought permission to amend the special leave petition, which is allowed. 3. Feeling aggrieved and dissatisfied with the order passed by the High Court holding that against the order passed by the National Commission passed in an appeal under Section 58(1)(a)(iii) of the Consumer Protection Act, 2019 (hereinafter referred to as the '2019 Act'), a writ petition under Article 227 of the Constitution of India would be maintainable, the original respondent before the High Court has preferred the present appeal before this Court. 4. The jurisdiction of the High Court under Article 227 of the Constitution of India, against the order passed by the National Commission, in an appeal under Section 58(1)(a)(iii) of the 2019 Act, is the moot question for consideration before this Court. 5. The facts leading to the present appeal in a nutshell are as under: The appellant herein booked ....

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.... interest towards compensation within four weeks. A further order came to be passed by the High Court on 17.08.2021 in Writ CM(M) No. 374/2021. Thereafter, the National Commission passed a final order in First Appeal No. 250/2021 vide order dated 09.12.2021 and confirmed the order passed by the State Commission dated 16.10.2020. 5.2 Feeling aggrieved and dissatisfied with the final order dated 09.12.2021 passed by the National Commission, confirming the order dated 16.10.2020 passed by the State Commission, the respondentbuilder again approached the High Court by way of present writ petition being CM(M) No. 1196/2021. By the impugned interim order dated 22.12.2021, till the next date of hearing, the High Court has stayed the operation of final order dated 09.12.2021 passed by the National Commission in First Appeal No. 250/2021. 5.3 Feeling aggrieved and dissatisfied with the impugned interim order passed by the High Court in Writ CM(M) No. 1196/2021, under Article 227 of the Constitution of India, the original complainant has preferred the present appeal. 6. At the time of admission hearing via Video Conferencing on 21.03.2022, this Court passed the following order: "The juri....

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....impugned before the High Court, was maintainable, in that case also, in the limited jurisdiction available under Article 227 of the Constitution of India, the High Court ought not to have stayed the order passed by the National Commission dated 09.12.2021 passed in first appeal No. 250/2021. 9. Shri Karanjot Singh Mainee, learned counsel appearing on behalf of the respondent has vehemently submitted that as the appeal before the National Commission was under Section 58(1)(a)(iii) of the 2019 Act, there is no further appeal provided against the order of the National Commission, as provided to the Supreme Court under section 67 of the 2019 Act, against the order passed by the National Commission under Section 58(1)(a)(iii) of the 2019 Act. Hence, a writ petition under Article 227 of the Constitution of India would be maintainable. In support of his submission, learned counsel appearing on behalf of the respondent - original writ petitioner before the High Court has heavily relied upon the decision of this Court in the case of Associated Cement Companies Limited v. P.N. Sharma, AIR 1965 SC 1595 (paras 44 & 45), and the subsequent decision of this Court in the case of L. Chandra Kumar....

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....ch differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it: Provided that the President or the other member, as the case may be, shall give opinion on the point or points so referred within a period of two months from the date of such reference. xxx xxx xxx 67. Appeal against order of National Commission.-Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) or (ii) of clause (a) of sub-section (1) of Section 58, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said ....

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....cumstances, which it would be impossible and indeed inadvisable to attempt to define exhaustively. The proper thing is to examine each case as it arises, and to ascertain whether the powers vested in the authority can be truly described as judicial functions or judicial powers of the State. For the purpose of this case, it is sufficient to say that any outside authority empowered by the State to determine conclusively the rights of two or more contending parties with regard to any matter in controversy between them satisfies the test of an authority vested with the judicial powers of the State and may be regarded as a tribunal within the meaning of Article 136. Such a power of adjudication implies that the authority must act judicially and must determine the dispute by ascertainment of the relevant facts on the materials before it and by application of the relevant law to those facts. This test of a tribunal is not meant to be exhaustive, and it may be that other bodies not satisfying this test are also tribunals. In order to be a tribunal, it is essential that the power of adjudication must be derived from a statute or a statutory rule. An authority or body deriving its power of a....

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....ct themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Courts and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislativ....

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....se to some other remedies as provided for in other statutes." 13. No so far as the remedy which may be available under Article 136 of the Constitution of India is concerned, it cannot be disputed that the remedy by way of an appeal by special leave under Article 136 of the Constitution of India may be too expensive and as observed and held by this Court in the case of L. Chandra Kumar (supra), the said remedy can be said to be inaccessible for it to be real and effective. Therefore, when the remedy under Article 227 of the Constitution of India before the concerned High Court is provided, in that case, it would be in furtherance of the right of access to justice of the aggrieved party, may be a complainant, to approach the concerned High Court at a lower cost, rather than a Special Leave to Appeal under Article 136 of the Constitution. 14. In view of the above, in the present case, the High Court has not committed any error in entertaining the writ petition under Article 227 of the Constitution of India against the order passed by the National Commission which has been passed in an appeal under Section 58(1)(a) (iii) of the 2019 Act. We are in complete agreement with the view tak....