Kerala High Court
The Deputy Commissioner Of ... vs Belsi on 22 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Thursday, the 22nd day of December 2022 / 1st Pousha, 1944
WA NO. 1769 OF 2022
AGAINST JUDGMENT DATED 10-10-2022 IN WP(C) 8525/2009 OF THIS COURT
APPELLANT/PETITIONER IN WP(C):
THE DEPUTY COMMISSIONER OF CUSTOMS, AIR CARGO COMPLEX,
THIRUVANATHAPURAM.
BY ADV.SMT. PREETHA S.NAIR
RESPONDENTS/RESPONDENTS IN WP(C):
1. BELSI.W/O CHELLAPPAN NADAR, PARAKKENVILAL VEEDU, KAVUVILA,
KEEZHKULAM P.O. VILAVAMOODE TALUK, KANYAKUMARI DISTRICT, PIN -
629163.
2. SELIN D/O. CHELLAPPAN, PARAKKENVILAL VEEDU, KAVUVILA, KEEZHKULAM
P.O.,VILAVAMOODE TALUK, KANYAKUMARI DISTRICT. PIN 629163.
3. AJIN, S/O. CHELLAPPAN, PARAKKENVILAL VEEDU, KAVUVILA, KEEZHKULAM
P.O.,VILAVAMOODETALUK, KANYAKUMARI DISTRICT., PIN - 629163.
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the judgment dated 10-10-2022 of the Learned
Single Judge in Writ Petition (Civil ) No.8525 of 2009, pending disposal
of the above Writ Appeal.
This Writ Appeal coming on for orders on 22/12/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P3:TRUE COPY OF THE ORDER DATED 4.7.2022
OF THE DISTRICT FORUM.
EXT.P4:TRUE COPY OF THE ORDER DATED 13.8.2008
OF THE STATE COMMISSION.
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
-----------------------------------------------
WA. No. 1769 of 2022
----------------------------------------------
Dated this the 22nd day of December, 2022
ORDER
S. Manikumar, CJ.
Before the writ court, the Deputy Commissioner of Customs,
Thiruvananthapuram, has sought for the following reliefs:
"i) Call for the records relating to Exhibits. P3 and P4 and
quash the same by the issuance of a Writ of Certiorari or any
other appropriate Writ, Order or Direction;
ii) Declare that the officers of the Customs Department
while exercising their functions under the Customs Act are
not liable to be proceeded against under the provisions of
Consumer Protection Act;
iii) Declare that in the facts and circumstances of this case
the District Consumer Redressal Forum,
Thiruvananthapuram and the State Consumer Disputes
Redressal Commission acted wholly without jurisdiction in
entertaining the complaint filed against the Customs
Department and its officers."
2. Taking note of the Division Bench judgment of this Court
in Regional Cancer Center, Tvm v. Kerala State Consumer
Disputes Redressal Commission, Tvm and Others reported in
W..A1769/2022
[2021 (5) KHC 236] and the availability of alternative remedy of
filing an appeal before the National Commission, writ court vide
judgment dated 10.10.2022, declined to grant the reliefs sought
for and disposed of the writ petition thus:
"Therefore, this writ petition is disposed of in the following
manner:
1. The petitioner is free to approach the National Commission
against Ext.P4, if the petitioner is aggrieved by the same,
within two months from today.
2. If any appeal is filed, the National Commission will consider
the fact that the writ petition was pending before this
Court from 16.03.2009 and the petitioner was bonafidely
pursuing this matter before this Court, while calculating the
limitation period.
3. For a period of two months, the interim stay already
granted by this Court will continue."
3. Being aggrieved, instant writ appeal is filed on the
grounds inter alia that respondents will not fall under the
definition of 'Consumer' and that Customs Department, a
statutory authority, is not rendering any service for
consideration, falling within the definition of Section 2(o) of the
Consumer Protection Act, 1986 (for short 'Act 1986').
4. Reliance is also made on decisions of Hon'ble Supreme
Court in Whirlpool Corporation v. Registrar of Trademarks,
W..A1769/2022
Mumbai reported in [(1998) 8 SCC 1] and Radha Krishna
Industries v. State of Himachal Pradesh & Ors reported in
[(2021) 6 SCC 771] to contend that there exception to the rule
of alternate remedy.
5. According to the appellant, the respondents cannot be
said to be consumers under the provisions of the Consumer
Protection Act, 1986 nor the duties and functions of the Customs
Department would fall under the definition of 'service',
warranting a complaint to be entertained, under the provisions of
the Act 1986.
6. Having regard to the grounds raised, we are inclined to
admit the writ appeal. Accordingly, writ appeal is admitted. Issue
notice to respondents by speed post, returnable in three weeks.
7. There will be an interim stay of the directions issued, till
25.1.2023. Post the writ appeal on 24.1.2023.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
22-12-2022 /True Copy/ Assistant Registrar
