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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD.

WRIT PETITION NO. 2995 of 2014

Dhanaji S/o Zumbar Thorat,

age major occupation agriculture

R/o Therwadi Taluka Karjat Dist. Ahmednagar.

...PETITIONER

VERSUS

1.

Dr. Smt. Shilpa Rajiv Suryawanshi,

age major occupation Medical Practitioner

R/o Surya Speciality Surgery Center,

Prasanna Brain and Spine Center,

near Prerna Archade, infront of Tarakpur Bus Stand,

Ahmednagar.

2.

Dr. Rajiv Suryawanshi,

age major occupation and R/o as above.

...RESPONDENTS.

Mr Shantanu A. Deshpande, Advocate holding for Mr N.V. Gaware,

Advocate for petitioner.

Mr Mahesh S. Taur, Advocate for respondent No.1

Mr Abhijit G. Choudhary, Advocate for respondent No.2.

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CORAM : NITIN W. SAMBRE, J.

DATE: 6^th September 2017

ORAL ORDER:

The Sate Consumer Disputes Redressal Commission,

Mumbai, vide order dated July 1, 2013, dismissed an appeal

preferred by present appellant/original complainant. As such, this

petition.

2.

Based on the judgment of the Apex Court in the matter

of Nivedita Sharma Vs. Cellular Operators Association of India

and others, reported in {(2011) 14 Supreme Court Cases 337},

particularly paragraphs No. 15 and 16, which reads thus:

“15. In the judgments relied upon by Shri

Vaidyanathan, which, by and large, reiterate the

proposition laid down in Baburao Prakash Chandra

Maheshwari Vs. Antarim Zila Parishad (AIR 1969

SC 556), it has been held that an alternative remedy is

not a bar to the entertaining of writ petition filed for the

enforcement of any of the fundamental rights or where

there has been a violation of the principles of natural

justice or where the order under challenge is wholly

without jurisdiction or the vires of the statute is under

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challenge.

16.

It can, thus, be said that this Court has

recognised some exceptions to the rule of alternative

remedy. However, the proposition laid down in

Thansingh Nathmal V. Supt. of Taxes (AIR 1964 SC

1419) and other similar judgments that the High Court

will not entertain a petition under Article 226 of the

Constitution if an effective alternative remedy is

available to the aggrieved person or the statute under

which the action complained of has been taken itself

contains a mechanism for redressal of grievance still

holds the field.” ,

the learned Counsel for the respondents placed preliminary objection

on the issue of maintainability of the petition.

3.

The learned Counsel for the respondents also placed

reliance on the Judgment in the matter of Cicily Kallarackal Vs.

Vehicle Factory, (2012) 8 SCC 524, particularly, paragraphs 4 and

9, on the said issue of availability of alternative statutory remedy,

wherein the Apex Court has observed thus:

“4. Despite this, we cannot help but state in absolute

terms that it is not appropriate for the High Courts to

entertain writ petitions under Article 226 of the

Constitution of India against the orders passed by the

Commission, as a statutory appeal is provided and

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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 Article 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 exercises 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 ground