Dismissing challenge against constitutional validity of Section 29 A Consumer Protection Act, 1986, the Bombay High Court has ruled that Consumer Forum Members can pass Judgments without its President who is a Judicial Member.
The Division Bench of Justice V. M. Deshpande and Justice Amit B. Borkar observed the above in a Criminal Writ Petition under Article 226 and Article 227 of the Constitution of India.
The petitioners herein were aggrieved of an order passed by the District Consumer Forum that was signed by only two Members without the President being party to it. As a recourse, instead of availing statutory remedy under the provisions of the Act, they preferred the instant appeal.
The Centre, in the reply filed, questioned that maintainability of the present petition submitting that the petitioners have the statutory remedy of appeal. Reliance was placed on Section 22 of the Act, which deals with the contingency of the vacancy of the President
Reliance was placed on State of Karnataka Vs. Vishwabhuthi House Building Co-operative Society wherein it was held that the Consumer Protection Act, 2019, has been enforced from 20.07.2020 by repelling the Consumer Protection Act, 1986 with the result present challenge to Section 29A of the said Act becomes infructuous.
Further reliance was placed on SC judgement in Gulzari Lal Agrawal Vs. Accounts Officer wherein it was held that Sub-section (2) of Section 14 of the Act is a presumptuous provision where the President of the State Commission is functional. Still, 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. It was held that Rules are framed with a view to making the State Commission functional in the absence of the President and not to halt the State Commission or to render it non-functional for want of the President. Therefore, the provisions of the said Act need to be construed harmoniously to promote the object and spirit of the Act.
Learned Counsel for the petitioner submitted that Section 29A of the said Act permits District Forum to function without President, which is unconstitutional as he is a Judicial Member. He submitted that Section 29A of the said Act is inconsistent with Articles 14 and 21 of the Constitution of India as two unequal are treated as equal. It was submitted that Section 29A of the Act is in conflict with other provisions of the Act. He submitted that the composition of the Forum at the various levels under the Act takes away the guarantee of a fair trial before the Forum as, in the absence of the President, the majority of the members are legally untrained.
Learned ASGI, on the other hand, supported the validity of Section 29A of the Act by submitting that the petitioners have failed to displace the presumption of constitutionality of Section 29A of the Act. He submitted that for the effective administration of consumer disputes in case of unavoidable contingency or in the absence of the President due to leave or other difficulty functioning of District Forum should not be made a standstill. Therefore, Section 29A of the Act protects the delivery of judgment passed by District Forum with such Act.
The Court referred to SC judgement in Joint Secretary, Political Department, Government of Meghalaya, Main Secretariat, Shillong Vs. High Court of Meghalaya through its Registrar, Shillong, 2016 Latest Caselaw 243 SC and noted that the essential requirements of pleadings in the petition challenging discrimination or unreasonable discriminatory standard is concerned, the material needs to be placed before the Court by way of scientific analysis, and it cannot be done by priory reasoning.
It is mandatory for the petitioners to prima facie show acceptable grounds in support of such a challenge, the Court remarked.
"The party has to plead prima facie acceptable grounds showing how the impugned provision of a statute is discriminatory offending Article 14 of the Constitution of India. The consequence of the absence of pleading as law laid down is that a challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine."
The Court after scrutinising the pleadings in the instant case, observed that reading of grounds “B” to “F” indicates that they are vague and do not contain any prima facie acceptable grounds on the basis of which the allegation of discrimination is sought to be brought home.
Dismissing the writ petition, the Court noted that the pleadings as contained in the Writ Petition would hardly satisfy the test of law laid down by the Hon’ble Apex Court in Joint Secretary (supra).
Challenge to Constitutional Validity
The Court went on to note that the Supreme Court has repeatedly stated that Constitutional Courts can strike down legislative enactments only on two grounds, namely:-
i) The legislator does not competent to make the law;
ii) that such statute or provision takes away or breaches any of the fundamental rights enumerated in Part-III of the Constitution of India.
Referring to Shri Ram Krishna Dalmia Vs. Shri Justice S. R. Tendolkar & Ors, 1958 Latest Caselaw 30 SC wherein the scope of a petition challenging constitutional validity has been laid down, noted that it is well settled that any enactment cannot be struck down on the ground that Court thinks it unjustified.
"The Court cannot pass any judgment on the wisdom of the Parliament and Legislators consisting of representatives of the people, who are supposed to know and be aware of the needs of the people. It is also settled that presumption of constitutionality is always in favour of Legislation only if the contrary is shown. The burden of establishing unconstitutionality is always on a person who challenges its vagaries. The Courts should not stall and embark on unnecessary enquiries into the constitutionality of the provision. They should confine their position as far as may be reasonably practical within the narrow limits required on the fact of the case. The Courts cannot examine the constitutional validity if a situation created by impugned legislation is irremediable."
President under Consumer Protection Act, 1986
The Court discussed in length, the Act and noted that while the President of the Forum is a person who has sufficient knowledge of the judicial procedure, he doesn't need to be versatile or well-versed in other subjects, such as economics, commerce, accountancy etc. Except for the President, who is a legally trained person being an existing or past Judge or Judicial Officer, the others could be anyone who, in the opinion of the Government, possesses the 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 not necessarily obtained any degree or diploma in such fields or attained such academic achievements as qualifications or any training for a particular period. The combination of judicial knowledge and expertise in other subjects proves valuable in deciding disputes in a competent manner.
It opined that the language of Section 29A of the Act is intended to provide for a situation where a President of State Commission or District Forum is non-functional, either having not been appointed in time or is on leave due to reasons beyond his control.
"The scheme of appointment and adjudication of consumer disputes is laid down under the Act to make the District Forum or State Commission continuously functional, allowing the Members in the absence of the President to function in a situation beyond the control of the Members of the Forum. Though we expect it is more appropriate and desirable to function with the President of the District Forum or State Commission while adjudicating complaints under the Act, the provisions of the said Act are required to be interpreted as broadly as possible."
It thus observed that mere absence of the President for reasons beyond control alone is not sufficient for striking down Section 29A of the Act as unconstitutional, particularly when such provision has been made to render the District Forum or State Commission functional in the absence of the President. The provisions of the said Act need to be construed harmoniously to promote the object and spirit of the Act, it held.
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