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TMI Blog2001 (8) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... i) As an appeal is provided to the Supreme Court from an order passed by the National Commission, by necessary implication, the power of judicial review of this Court has been taken away. (iii) Since a new offence has been created by reason of Section 27 of the said Act, without providing for the safeguards as provided for under Order 21, Rule 37 of the Code of Civil Procedure, the same would be violative of Articles 14 and 21 of the Constitution. (iv) The constitution of Commission consisting of a retired person and/or retired judicial officer or Judge and untrained persons is violative of the constitutional scheme as regard judicial independence. 3. The learned Counsel for the respondents, on the other hand, submitted: (1) The concept of judicial review can not be applied in vacuum inasmuch as in terms of Section 3 of the said Act, the said Act is not in derogation of any other Act and thus does not take away any right of the parties; (2) While considering the constitutionality or otherwise of a statute, the Court cannot go into the question of legislative policy or wisdom. (3) Section 27 of the Act was enacted with a view to effectuate compliance of an order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order made by the National Commission i.e., when the same is assed in exercise of its original power as conferred by sub-clause (i) of clause (a) of Section 21. 7. Section 25 provides for the enforcement of the orders by the District Forum, State Commission or the National Commission which is in the following terms: Enforcement of orders by the District Forum, the State Commission or the National Commission :--Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the Court within the local limits or whose jurisdiction,-- and thereupon, the Court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution. 8. Section 26 empowers the District Forum, the State Commission or as the case may be the National Commission to dismiss the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; Explanation :--For the purposes of sub-clause (i), commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment ; (e) consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint; (g) deficiency means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; (h) unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Disputes Redressal Commission to be known as State Commission will be established by the State Government in the State and a National Consumer Disputes Redressal Commission by the Central Council. 16. In terms of Section 10, the President of a District Forum shall be a person who is, or has been, or is qualified to be a District Judge and the forum shall also consist of two other members who are required to be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of them shall be a woman. It may be true that the appointing authority for the District Forum is the State Government. However, the tenure of the members of the District Forum is fixed. 17. Section 13 of the said Act lays down a detailed procedure as regard the mode and manner in which the complaints received by the District Forum shall be dealt with. Section 14 provides for the directions which can be issued by the District Forum on arriving at a satisfaction that the goods complained against suffer from any of the defects specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court and such appointment shall be made only upon consultation with the Chief Justice of India. So far as the members of the National Commission are concerned, the same are also to be made on the recommendations of the Selection Committee, the Chairman whereof would be a person who is a Judge of the Supreme Court to be nominated by the Chief Justice of India. The tenure of the Office of the National Commission is also fixed by reason of sub-section (3) of Section 20. By reason of the provisions of the said Act, therefore, independent authorities have been created. 20. In the aforementioned situation, it is not correct to contend that laymen man the Commissions at whose hands justice cannot be expected. 21. The rights of the parties have been safeguarded by reason of the provisions of the said Act inasmuch as although it provides for an alternative system of consumer jurisdiction on summary trial, they are required to arrive at a conclusion based on reasons. Even when quantifying damages, they are required to make an attempt to serve the ends of justice aiming at recompensing the individual but also to bring about a qualitative change in the attitude of the service provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Commission and the National Commission have to be taken by majority and it may be possible in some cases that the President may be in minority. But the presence of a person well versed in law as the President will have a bearing on the deliberations of these Agencies and their decisions. As regards the absence of requirement about a member having adequate knowledge or experience in dealing with the problems relating to medicine it may be stated that the persons to be chosen as members are required to have knowledge and experience in dealing with problems relating to various fields connected with the object and purpose of the Act, viz., protection and interest of the consumers. The said knowledge an experience would enable them to handle the consumer disputes coming up before them for settlement in consonance with the requirement of the Act. To say that the members must have adequate knowledge or experience in the field to which the goods or services, in respect of which the complaint is made, are related would lead to impossible situations. It is no doubt true that the decisions of Ihe District Forum as well as the State Commission and the National Commission have to be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l review is excluded cannot be accepted. The Supreme Court, as noticed hereinbefore, exercises a limited power of appeal. 27. Even in a case where a decision is rendered by the Supreme Court, if it can be shown, that a case for judicial review has been made out, an application under Article 226 would be maintainable. It is true that a decision of the Apex Court is binding on all other Courts. But the same does not mean that thereby the power of judicial review is taken away. The Court exercising the power of judicial review in other cases also may have to follow the decision of the Apex Court. But, it is also trite that in the event it can be shown that an order has been passed without any jurisdiction or in a case where no law has been laid down by the Apex Court, the right of the High Court to exercise its power of judicial review cannot be said to have been taken away. The Supreme Court itself has clearly held in L. Chandra Kumar v. Union of India, , held: We also hold that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions is also part of the basic structure of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndamentally unsound principle would not be correct. The reasons for which the Tribunals were constituted still persist; indeed, those reasons have become even more pronounced in our times. We have already indicated that our constitutional scheme permits the setting up of such Tribunals. However, drastic measures may have to be resorted to in order to elevate their standards to ensure that they stand up to constitutional scrutiny in the discharge of the power of judicial review conferred upon them. We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Articles 226/227 cannot be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict 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 litigant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A of the Act and sub-rules (9) and (10) of Rule 6, it would be quite clear that it could never be the intention of the Legislature to stall or render the State Commission nonfunctional in the absence of the President either having not been appointed in time due to some valid reasons or if the President is on leave due to certain reasons beyond his control. Subsections (2) and (2-A) of Section 14 and Section 18-A of the Act were brought into force with effect from 18-6-1993 whereas Section 29-A was made applicable from 15-6-1991. The Rules of 1987 were brought into force immediately. The complaint before the District Forum by the appellant was filed on 14-10-1993. Therefore, all these amended provisions were very much brought into force when the complaint was filed. Sub-section (2) of Section 14 is a presumptuous provision where the President of the State Commission is functional but it would not be correct to say that if the President of the State Commission is non-functional because of one or the other reason, the State Commission would stop its functioning and wait till the President is appointed. In order to avoid such a situation, the State Government has framed the rule and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is whether the power has been exercised validly by the delegatee, in the present case; if yes, then it can only be for the furtherance of that policy. What is that policy? The policy is the development and use of rural and urban land including construction of colonies, buildings, etc., in accordance with the policy of the planning as laid down under the Act and the rules. When such a wide power is given to any statutory authority including a delegatee then it is obligatory on the part of such authority to clearly record its reasons in the order itself for exercising such a power. Application of mind of such authority at that point of time could only be revealed when the order records its reasons. Even if the section is silent about recording of reasons, it is obligatory on the Government while passing orders under Section 113 to record the reasons. The scheme of the Act reveals, the Government is conferred with wide-ranging power, including power to appoint all important statutory authorities; appoints Director and members of town and country planning under Section 4; constitutes Tamil Nadu Town and Country planning Board under Section 5; the Board to perform such functions as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this connection may also be made to a decision rendered by one of us - V. V.S. Rao, J., in Prudential Capital Markets Limited, Calcutta v. State of A.P., . The analysis of the provisions of the Consumer Act leaves no doubt that it is a special enactment aimed at protecting the consumers brought on to statute book as per the UN Resolution and it is a comprehensive Code in itself. The enactment is intended to provide for Forums at the primary level, appellate level and apex level so as to settle the consumer disputes and give redrcssal to consumers. The remedies provided are not in derogation of the provisions of common law remedies by way of a suit or other remedies provided under other enactments. Indeed, Section 3 of the Consumer Act categorically says that the provisions of the Consumer Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. As observed by the Supreme Court in Lucknow Development Authority's case , the Consumer Act intends to protect the common man for such wrongs for which the remedy under ordinary law has become illusory. (Para 34). The submission of the learned Counsel for the PCML that by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings, then, even in the absence of an exclusionary provision the civil Courts' jurisdiction is impliedly barred. If, however, right preexisting in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil Courts' jurisdiction, then both the common-law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence. To what extent, and on what areas and under what circumstances and conditions, the civil Courts' jurisdiction is preserved even where there is an express clause excluding their jurisdiction, are considered in Dhulabhai's case . 33. The decisions of the Apex Court and the High Courts are galore to the effect that even the Public Sector Undertakings and the statutory authorities by reasons of the said Act, whoever deals in marketing a good or grant service, be it a trader, manufacturer or a professional or the statutory authorities and others, would come within the purview of the said provisions. 34. In Bhandara District Central Cooperative Bank Limited v. Slate of Maharashtra, , it has been held: .Thus, the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, may if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount specified in this section. 38. A bare perusal of the aforementioned provision would clearly go to show that it embraces within its fold not only the opposite party but also the complainant. By reason of such a provision, a separate offence has not been created. It is merely an exclusionary provision and to an extent may also be considered to be akin to Order 39, Rule 2A of CPC or the provisions of Contempt of Courts Act or Section 51 read with Order 21, Rule 37, CPC. The said question came up for consideration before a Division Bench of the Delhi High Court in Ravi Kant, v. National Consumer Dis. Redressal Commission, (1997) CPL 271, wherein it has been held: The contention is that the petitioner has nowhere withal to obey the orders passed by the State and National Commissions and hence 1st petitioner cannot be detained in prison by passing an order for simple imprisonment. Reliance is here placed upon certain observations in the judgment of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is violative of Article 21. 39. A different view, however, has been taken by a Division Bench of the Karnataka High Court, in Paramjit Singh v. Union of India, (1999) 4 Comp.LJ 465 (Karn). 40. The Karnataka High Court proceeded on the basis that by reason of Section 27, a separate offence has been created and thus the same should be dealt with and tried in accordance with the provisions of Code of Criminal Procedure. According to the Karnataka High Court, the section has in no way taken way nor barred the jurisdiction of the Court under the Criminal Procedure Code. It was held: It follows, therefore, that where a trader or a person omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, the complainant in that event can file a complaint before such Forum or Commission and if despite opportunity, the trader or a person fails or omits to comply with the order passed under the Act, the appropriate Forum or the Commission can direct the filing of the complaint in a Court of competent jurisdiction. Upon filing of such complaint, the procedure prescribed under the Code of Criminal Procedure has to be follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice have to be complied with. The authorities under the Act, can pass an ex parte interim order. Section 27 can be taken recourse to only by way of last resort. It has evidently been enacted for the purpose of dealing only with such defaulters, who, despite several opportunities, failed and/or negligent to comply with the directions. 45. It may be true that certain safeguards were provided under Section 51 or Order 21, Rule 37 CPC. But, under the Act, as the authorities are entitled to evolve their own procedure, they should, in a given situation, take recourse to the principles underlying the same. The submission to the effect that even a woman can be sent to prison despite the existence of the provisions of Code of Civil Procedure, in our opinion, has no basis inasmuch the provision appended to Section 27 of the Act empowers the authorities to impose a lesser punishment. We fail to understand as to how the Karnataka High Court while upholding the provisions of Section 27 struck down the proviso appended thereto as violative of Articles 20 and 21 of the Constitution of India. The proviso appended to Section 27 is beneficent to the parties. It confers upon the authorities discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Criminal Procedure Code. Sections 4 and 5 of the Criminal Procedure Code lay down : 4. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. On perusal of these two provisions of Criminal Procedure Code it becomes manifest that all offences under Indian Penal Code have to be investigated, inquired into and tried under the provisions of Criminal Procedure Code and the offences under laws other than under Indian Penal Code shall al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uliar to Courts of Record. After dealing with the law on the subject the Supreme Court held; We hold, therefore, that the Code of Criminal Procedure does not apply in matters of contempt triable by the High Court. The High Court can deal with it summarily and adopt its own procedure. All that is necessary is that the procedure is fair and that the contemnor is made aware of the charge against him and given a fair and reasonable opportunity to defend himself. The judgment was followed in Mrs. V.G. Peterson v. O. V. Forbes, , and also in Delhi Judicial Service Association Tis Hazari Corut v. State of Gujarat, . In this judgment (supra) the Court again dealing with the contempt matter held: The jurisdiction to initiate the proceedings and take seisin of the contempt is inherent in a Court of record and the procedures of the Criminal Procedure Code do not apply to contempt proceedings. Section 5 of the Code of Criminal Procedure lays down that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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