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Judgment
Sujoy Paul, J.—By filing this petition under Article 226 of the Constitution the petitioner has prayed for following reliefs:- (i) Issuing a writ order or direction, thereby directing the respondents not to dispose of the vehicle till the pendency of the complaint No. 431/2001 and the respondent No. 7 be also directed not to transfer the vehicle in question.
(ii) Passing any other order or direction, which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case.
(iii) Costs of the petition may also be awarded to the petitioner.
(iv) Respondents may also be directed to return the vehicle in the same manner in which it was forcibly taken from lawful possession of the petitioner.
Shri Arvind Dudawat, learned counsel for the petitioner submits that the petitioner purchased a chassis of "Ashok Leyland CG 1611" which is a loading truck and manufactured by the respondent No. 2. Respondent No. 6 was an authorised dealer for selling vehicle manufactured by respondent No. 2. After taking delivery of chassis on 15.04.2000, the petitioner constructed the body and got it registered as MP 07-G/3806. The petitioner also obtained loan for purchasing the said vehicle. It is contended that the respondents unauthorizedly and illegally took possession of the vehicle on 22.07.2001 and thereafter the vehicle is in their possession. After alleged illegal seizure of vehicle, the petitioner sent a legal notice. Respondents by communication dated 06.09.2001 (Annexure P/6) informed the petitioner that total outstanding amount is Rs. 1,23,341 and it was advised to deposit the said amount. The petitioner personally met the officer and intended to deposit the said amount. However, since vehicle was not handed over to the petitioner, the petitioner although provided the cheque of the said amount to the respondents, subsequently instructed the bank authority not to make the payment. By placing reliance on Manager, ICICI Bank Ltd. Vs. Prakash Kaur and Others, it is contended that petitioner''s fundamental rights are infringed. Vehicle is forcibly taken from the petitioner by the muscle men, which hits article 21 of the constitution. The truck was the sole source of livelihood and, therefore, this petition be entertained.
Per Contra, Shri D.S. Chauhan, Advocate for respondents No. 2 & 6 supported the action impugned.
I have heard learned counsel for the parties and perused the record.
This is not in dispute between the parties that present petitioner filed a case No. 441/2003 before the District Consumer Forum. The Consumer Forum decided the said matter on merits on 17.03.2005 (Annexure R/1). This order of Consumer Forum was put to test before State Consumer Disputes Redressal Commission (Commission) in appeal No. 702/2005. On 12.06.2007 the said appeal is decided on maintainability as well as on merits.
Shri Dudawat faced with this situation, submits that the orders passed by the Consumer Forum and Commission are void ab-initio and are nullity in the eyes of law. Same are not required to be challenged and same can be ignored. Before dealing with the merits of the matter, I deem it proper to deal with the aspect whether it is open to the petitioner to seek aforesaid relief without challenging the orders passed by the Forum and Commission. A perusal of the order of Forum (Annexure R/1) shows that the petitioner canvassed same grievance on the basis of same facts. The Forum opined that the claim of the petitioner is frivolous. The action of the non-applicants was upheld by the Forum. The decision of the Forum makes it clear that it is delivered on merits. Commission confirmed this finding on merits as well as on maintainability. The Commission opined that " he not only defaulted in repayment of the hire purchase installments, but the cheques issued by him were also dishonoured by the drawee bank. Respondent-financers were, therefore, fully justified in repossessing the truck".
Careful reading of the orders of Forum and Commission makes it clear that there is finding on merits against the petitioner. Although, Shri Dudawat strenuously contended that orders passed by the Forum and the Commission are void ab initio and nullity in the eyes of law and need not to be challenged, in my opinion, in absence of challenging the said orders and seeking such declaration, it cannot be presumed that the orders are void. Although Shri Dudawat relied on Smt. Mustaq Bai Vs. State Transport Appellate Tribunal, Madhya Pradesh, Gwalior and Others, , in the light of judgment of Supreme court considered hereinafter, said judgment will be of no assistance to the petitioner. The Apex Court in Shiv Chander Kapoor Vs. Amar Bose, opined as under:--
''void'' is meaningless in an absolute sense; and ''unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders''. In the words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue.
The Apex Court in Krishnadevi Malchand Kamathia and Others Vs. Bombay Environmental Action Group and Others, opined as under:--
It is settled legal proposition that even if an order is void, it requires to be so declared by a competent Forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala Vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others, ; Tayabbhai M. Bagasarwalla and another Vs. Hind Rubber Industries Pvt. Ltd. etc., ; M. Meenakshi and Others Vs. Metadin Agarwal (D) by LRs. and Others, ; and Sneh Gupta Vs. Devi Sarup and Others, , this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate Forum.
In State of Punjab and Others Vs. Gurdev Singh, , this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC (1956) 1 All ER 855, wherein Lord Radcliffe observed:--(AC pp. 769-70)
....An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
In Sultan Sadik Vs. Sanjay Raj Subba and Others, , this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.
Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration.
As laid down by the Supreme Court, it is clear that the even if the order is void, it has to be declared by the competent Forum that it is void or nullity. In absence of any relief claimed in this regard and in absence of challenging those orders, no such finding can be given. In absence of challenge to those orders, petitioner is not entitled for any adjudication on merits. However, in the interest of justice, I deem it proper to permit the petitioner to file appropriate proceedings (if advised) to seek such declaration or challenge the orders passed by the Forum and Commission. Petition is accordingly disposed of.