1 wp11541.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 11541 OF 2010 Jagannath Dayaram Lokhande and others ..PETITIONERS -VERSUS- The State of Maharashtra and others ..RESPONDENTS ..... Mr. M.S. Deshmukh, advocate for petitioners. Mr. S.B. Pulkundwar, A.P.P. for respondent nos. 1, 3 and 4. Mr. P.B. Salunke, advocate for respondent nos. 6 to 8 ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 17th March, 2011. PER COURT : 1. By this Petition preferred under Article 226 and 227 of the Constitution of India, the petitioners who are executive committee members of petitioner no.11 (subsequently deleted) Co-operative society challenge the cognizance of grievance of respondent nos. 6 to 9 taken by District Consumer Forum i.e. respondent no.5. Contention is that the said Forum has no jurisdiction to take action either against the person or the property of committee members. Reliance is being placed upon the judgment dated 22.12.2010 delivered by Single Judge of this Court in Writ Petition no. 5223 of 2009 and other connected matters. 2. Learned A.G.P. appearing for respondent nos.1, 3 and 4 has supported the impugned order. Advocate Mr. P.B. Salunke for respondent nos. 6 to 8 also supports the impugned order. 2 wp11541.10 3. Advocate Mr. R.M. Deshmukh appearing for respondent no. 5 in writ petition no. 11543 of 2010 has raised preliminary objection. According to him, in the light of orders passed by Division Bench of this Court dated 7th March, 2011 in Writ Petition no. 989 of 2011, the petitioners have to approach the State Forum in appeal. 4. Mr. M.S. Deshmukh for petitioners contended that the order dated 7th March, 2011 notices withdrawal of writ petition and therefore, does not lay down any law. He relies upon the judgment dated 24th February, 2011 delivered by me in writ petition no. 9964 of 2010 particularly objection raised in paragraph no.2 and answer thereto in paragraph no. 4 to urge that the Court has already laid down law therein and the subsequent order of Division Bench dated 7th March, 2011 does not in any way derogate from it. 5. In judgment dated 24th February, 2011 in Writ Petition no. 9964 of 2010, this Court has noticed objection of respondents about belated approach to High Court, not raising appropriate defences before District Forum and also about availability of statutory appeal. Thereafter in paragraph no.4 this Court has found that in writ petition no. 5223 of 2009 decided on 22.12.2010 the finding is of total absence of jurisdiction in District Forum. In view of that findings, it has been further recorded that the individual committee member by his act or omission in appearing or raising objection before the District Forum could not have bestowed it with jurisdiction which it did not possess. Therefore, the preliminary objection raised by the counsel for petitioners was overruled and the Petition came to be allowed. 3 wp11541.10 6. Before Division Bench on 7th March, 2011 very same objection was raised and thereafter in paragraph no.3, the Division Bench has recorded "it is against this backdrop, learned counsel for petitioners prayed for withdrawal of this writ petition with liberty to the petitioners to approach District Consumer Redressal Forum seeking cancellation of warrants and for other appropriate reliefs, relying upon the aforementioned judgment of this Court in the group of writ petitions." 7. Perusal of said order dated 7th March, 2011 does not show any contention by the learned counsel appearing before it to the tenability of Petition on the ground of availability of alternate remedy. Act of withdrawal of writ petition appears to be voluntary and unilateral act/decision of the petitioners. I therefore find, Mr. M.S. Deshmukh right in contending that the Division Bench of this Court does not lay down any law in that respect. On the contrary this Court on 24th February, 2011 decided the very same objection in favour of the petitioners and against the respondent. 8. Before me, the respective learned counsel for respondents has urged that the orders of the District Forum were passed long back i.e. some time in the year 2008 and thereafter no steps were taken by individual committee members to file appeals or to comply with those orders. As the provisions of section 15 of the Consumer Protection Act mandates the deposit of 50% of the claim amount, only with a view to avoid that deposit the present Writ Petitions are filed. It is contended that in such circumstances, this Court in its extra ordinary jurisdiction should not take cognizance and the petitioners should be relegated to remedy of filing appeal before 4 wp11541.10 the State Forum. 9. The law laid down by this Court on 22nd December, 2010 is very clear. When no action against the person or property of committee member is possible, it is clear that the order of District Consumer Forum which are said to be executed can not be permitted to be stand. The procedure for execution as contemplated by section 25 and 27 of the Consumer Protection Act contemplates attachment and also imprisonment. Thus, the right to property and personal liberty can be curtailed while executing those orders. When orders are found to be without jurisdiction, it is apparent that such restrictions on property or liability can not be allowed to be implemented. Threat to such right is a continuous cause. 10. In this view of the matter, the Writ Petition is allowed and the orders of the District Consumer Forum, Jalgaon dated 16.06.2010 in Complaint nos. 944/2008, 945/2008, 946/2008 and 947/2008 are quashed and set aside. The petitioners shall individually pay four sets of Court fees. The certified copies shall be made available to the petitioners only after the deficit court fees is paid within a period of three weeks from today. Rule made absolute accordingly. No costs. (B.P. DHARMADHIKARI) JUDGE gas/wp11541.10