Bombay High Court
Mahindra Bhaskar Limaye vs State Of Maha. Thr. Principal Sec. ... on 14 September, 2021
Bench: S.B. Shukre, Anil S. Kilor
pil-11-21(J-1).odt 1/57
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
PUBLIC INTEREST LITIGATION NO. 11 OF 2021
Vijaykumar Bhima Dighe,
Age : 30 Years, Occ. Advocate
Residing at 402, 4th Floor, Balaram
Patil Residency, Sector-29, Agroli
CBD Belapur, Navi Mumbai : PETITIONER
...VERSUS...
1. Union of India,
through Secretary,
Department of Consumer Affairs,
Krishni Bhavan, New Delhi 110 001
2. State of Maharashtra,
Through Secretary,
Consumer Affair Ministry,
Mantralaya, Mumbai
3. National Consumer Disputes Redressal
Forum, through its Registrar,
having office at Upbhokta Bhawan,
I.N.A., New Delhi.
4. State Consumer Dispute Redressal Commission
through its Registrar, having office at
Old Secreteriate Building,
Near Kala Ghoda, Ground Floor,
Fort, Mumbai : RESPONDENTS
WITH
WRIT PETITION NO. 1096 OF 2021
1. Dr. Mahindra Bhaskar Limaye,
Aged about : 56 Years,
Occ. Advocate,
R/o Soni Lane, Sitabuildi,
Nagpur, Maharashtra-440 012 : PETITIONER
...VERSUS...
::: Uploaded on - 14/09/2021 ::: Downloaded on - 15/09/2021 06:31:42 :::
pil-11-21(J-1).odt 2/57
1. The State of Maharashtra,
through its Principal Secretary,
Ministry of Civil Supply &
Consumer Affairs, Mantralaya, Mumbai
2. The Maharashtra State Consumer
Disputes Redressal Commission,
Through its Registrar, Mumbai
having address at Administrative Staff
College Building, Opposite Chatrapati
Shivaji Maharaj Terminus, Hajarimal Somani
Marg, Mumbai 400 001
3. The Secretary Ministry of Consumer
Affairs, Food and Public Distribution,
Department of Consumer Affairs,
Krishi Bhavan, New Delhi 110 001 : RESPONDENTS
=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Shri Uday Warunjikar, Sr.Advocate with Shri S.S.Kate, Advocate for the
petitioner in PIL No. 11 of 2021
Shri T.D.Mandlekar, Advocate with Shri Rohan Malviya, Advocate & Shri
Tajas Fadnavis, Advocate for the Petitioner in W.P.No.1096 of 2021.
Shri Ulhas Aurangabad, ASGI for the respondent-Union of India in PIL
No.11 of 2021 and WP No. 1096 of 2021
Shri Amit Madiwale, AGP for the respondent-State of Maharashtra in PIL
No.11 of 2021 and WP No.1096 of 2021.
=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : SUNIL B. SHUKRE AND
ANIL S.KILOR, JJ.
RESERVED ON : 30th JULY, 2021
PRONOUNCED ON : 14th SEPTEMBER, 2021.
JUDGMENT : (Per : Anil S. Kilor, J.)
With great power comes great responsibility. In
fact, power howsoever small or big comes with proportionate
responsibility as they are complimentary to each other.
Whenever the principle of proportionality is violated, the
pil-11-21(J-1).odt 3/57
effect would be disastrous. It follows that, greater the power
attached to any post, stricter the criteria must be for
appointment to such post. The posts to which the Rules under
challenge here apply, are the posts governed by this principle.
2. In these two petitions the grievance revolves
around the criteria adopted for selection of President and
Members of the State Commission and District Commission,
constituted under the Consumer Protection Act 2019 (for
short 'the Act of 2019'), which according to the petitioners, is
not analogous to the function and powers of Commissions,
under the Act of 2019.
3. The facts giving rise to both these petitions, are as
follows :
The Ministry of Consumer Affairs, Food and
Public Distribution, New Delhi in exercise of the power
conferred under Sections 29 and 43 read with clauses (n) and
(w) of sub-section 2 of Section 101 of the Act of 2019, framed
Rules, vide notification dated 15 th July, 2020, called as
Consumer Protection (Qualification for appointment, method
of recruitment, procedure of appointment, term of office,
resignation and removal of President and Members of the
pil-11-21(J-1).odt 4/57
State Commission and District Commission) Rules 2020 (In
short "the Rules of 2020").
4. The Rules 3(2)(b) and 4(2)(c) of the Rules 2020
deal with the eligibility criteria seeking experience of not less
than 20 years in consumer affairs, law, public affairs,
administration, economics, commerce, industry, finance,
management, engineering, technology, public health or
medicine, for the post of Members of State Commission and
experience in similar fields of not less than 15 years for the
post of President and Members of District Commission. Rule 6
of the Rules of 2020, is in respect of procedure of
appointment. Sub-rule 9 of Rule 6 permits the Selection
Committee to determine its procedure for making its
recommendations keeping in view the requirement of the
State Commission or the District Commission and after taking
into account the suitability, record of past performance,
integrity and adjudicatory experience.
5. In pursuance to Rule 6, the State of Maharashtra
constituted a Selection Committee vide Government
Resolution dated 6th November, 2020. Consequently, the
applications were invited for the post of President and
Members of State Consumer Disputes Redressal Commission
pil-11-21(J-1).odt 5/57
and District Consumer Redressal Commission under the Act of
2019. The said notice inviting applications gave cause to the
respective petitioners to file these petitions.
6. The Public Interest Litigation No.11 of 2021 was
filed before the Principal Bench of this Court, at Bombay and
the same was transferred to Nagpur Bench, to be heard along
with pending Writ Petition No. 1096 of 2021.
7. In Public Interest Litigation No. 11 of 2021 the
following prayers are made:
A. The Public Interest Litigation may kindly be
allowed;
B. This Honourable Court be pleased to hold and
declare that the provisions in Rule 6(9) of
Consumer Protection (Qualification for
Appointment, Method of Recruitment,
Procedure of Appointment, Term of Office,
Resignation and Removal of the President and
Member of the State Commission and District
Commission) Rules, 2020, is arbitrary,
unreasonable and violative of Article 14 of the
Constitution of India and be pleased to strike
down the same to the extent of determining its
procedure for making its recommendation or in
the alternatively be pleased to read down the
same and declare that the Selection Committee
shall conduct a written test and viva voce of the
candidate before making recommendation for
the post of President and the Member of the
District Commission and the State Commission
of State of Maharashtra.
C. During pendency of this Petition, be pleased to
restrain the Respondent from appointing any
pil-11-21(J-1).odt 6/57
person on the post of the President and the
member of the District Commission and the
State Commission as per advertisement dated
2.2.2021 without conducting a written test and
viva voce in view of the judgment of the
Honourable Supreme Court of India in State of
UP vs. UP Consumer Protection Bar Association,
the Honourable Supreme Court approved the
Model Rules of Order dated 18.05.2018 and
dated 21.11.2016.
C. Ad-interim relief in terms of prayer clause(c).
D. Any other suitable and equitable relief may
kindly be granted in favour of the petitioners, in
the interest of justice and facts and
circumstances of the case.
Whereas, in the Writ Petition No. 1096 of 2021 the following
prayers are made:
i) Quash and set aside the said Rules 2020 framed
under Section 101 of the Consumer Protection
Act, 2019 (ANNEXURE-P-2) dated 15.07.2020
made by respondent No.3 as the same are illegal
and ultra virus, bad in law & violation of
directions issued in judgments by Hon Supreme
Court in the matter of State of Up Vs. Up
Consumer Protection Bar Association in Civil
Appeal No:-2740-2007 & Madras Bar
Association Vs Union of India, Writ Petition (C)
No 804 of 2020, decided on 27.11.2020.
ii) Grant ad-interim, ex-parte stay to the effect,
operation and implementation of the said Rules
2020 (ANNEXURE-P-02) dated 15.07.2020 till
the decision of instant petition.
iii) Quash and set aside the vacancy Notice dated
02.02.2021 (ANNEXURE-P-01) issued by
respondent No.2 for inviting application for the
post of the Presidents and the members of the
District Commissions and the members of State
Commission in Maharashtra as the same is
pil-11-21(J-1).odt 7/57
illegal and bad in law for the reasons stated in
this petition.
iv) Grant ad-interim, ex-parte stay to the effect,
operation and implementation of the Vacancy
Notice dated 02.02.2021 (ANNEXURE-P-01) till
the decision of petition.
v) Confirm ad-interim ex-parte stay granted as per
prayer clause (ii & iv) above till the decision of
petition.
vi) Restrain the respondents or their agents and
servants from making any appointment of
presidents and the members of the District
Commissions and the members of State
Commission in Maharashtra during the
pendency of this writ petition.
vii) Grant any other relief which this Ho'ble Court
deems fit in the facts and circumstances of the
case in favor of the petitioner.
8. In both these matters, on 30th June, 2021 the
selection process initiated for appointment of Members of
State Commission, was made subject to the final results of
these petitions, by this Court.
9. We have heard the learned counsel for the
respective parties.
10. Dr. Uday Warunjikar, learned counsel for the
petitioner in Public Interest Litigation No. 11 of 2021, argues
that under the Rules of 2020, the power conferred upon the
Selection Committee to determine its own procedure for
selection of President and Members of the District and State
Commission constituted under the Act of 2019, is in
pil-11-21(J-1).odt 8/57
contravention of the directions issued by the Hon'ble Supreme
Court of India in the case of State of Uttar Pradesh and others
Vrs. All Uttar Pradesh Consumer Protection Bar Association. 1
(hereinafter referred as 'UPCPBA'). Thus, he submits that the
Rule 6(9) of the Rule 2020 is ultra virus.
11. It is submitted that looking at the judicial
functions to be performed by President and Members of the
District and State Commissions constituted under the Act of
2019, the selection without holding written examination, but,
only on the basis of viva-voce, would result into selection of
unsuitable candidates which will further result in denial of
justice.
12. Dr. Uday Warunjikar, learned counsel for the
petitioner further submits that no justification has been
offered by the respondents for not following uniform process
across country, for appointments, as directed by the Hon'ble
Supreme Court of India in the case of UPCPBA.
13. The learned counsel for the petitioner, fairly
concedes that in absence of any challenge raised to the
appointment of the President of the State Consumer Dispute
1 2017 (1) SCC 444
pil-11-21(J-1).odt 9/57
Redressal Commission, State of Maharashtra, which was made
during the pendency of the petition, he does not want to raise
any grievance about the same.
14. Shri Mandlekar, learned counsel for the petitioner
appearing in Writ Petition No. 1096 of 2021, reiterated the
contentions raised by Shri Warunjikar. However, in addition,
he has submitted that, prescribing minimum experience of 20
and 15 years for President and Members of State and District
Commission respectively, in the fields stipulated in the
advertisement as one of the eligibility criteria, is contrary to
the directions issued by the Hon'ble Supreme Court of India in
the case of Madras Bar Association Vrs. Union of India2
(herein after referred as "MBA-2020") and in the case of
UPCPBA. It is submitted that the said condition would
deprive many lawyers who are otherwise qualified and have
legal expertise and experience of 10 years or more.
15. Shri Mandlekar, learned counsel for the petitioner
in support of his contentions also relies upon the following
judgments.
i. Union of India Vrs. R. Gandhi, President, Madras
Bar Association3 (hereinafter referred as "MBA-2010")
2 2020 SCC Online SC 962
3 2010 11 SCC(1)
pil-11-21(J-1).odt 10/57
ii. Madras Bar Association Vrs. Union of India 4
(hereinafter referred as "MBA-2021")
iii. State of Rajasthan and others Vrs. Basant Nahata5
16. Per contra, Shri Aurangabadkar, learned ASGI
submits that it may not be possible to conduct the written test
as demanded by the petitioners, which may further delay the
process of selection. He submits that the State Government is
expected to exercise complete transparency in the selection
procedure. It is submitted that the procedure which has been
adopted by the Selection Committee is as per the powers
conferred upon the Selection Committee under the Rules of
2020, and therefore there is no illegality committed by the
Selection Committee in this matter.
17. Shri Amit Madiwale, appearing for the State,
submits that the Respondent-State is following the procedure
to fill up the vacancies in the State and District Consumer
Commissions, as stipulated under the Rules of 2020. Our
attention has been drawn to paragraph 6 of the affidavit in
reply filed by the State, dated 29th July, 2021, inter alia stating
therein that in response to the advertisement dated 2 nd
4 2021 SCC Online SC 463
5 (2005) 12 SCC 77
pil-11-21(J-1).odt 11/57
February, 2021, total 1138 applications were received for 25
vacant posts of President, District Consumer Disputes
Redressal Commission and Member, District Consumer
Disputes Redressal Commission. It is further pointed out that
considering the huge number of applications it was not
possible to take interviews of all the candidates who are
eligible for these posts. Therefore, the Selection Committee
decided to take written exam of the candidates through an
agency which is on Government Panel.
18. It is further pointed out that considering the
vacant posts, the Selection Committee has decided to take
interviews of 125 candidates i.e. in 1:5 ratio, on merit as per
the decision dated 9th July, 2021. By arguing so, he prays for
dismissal of petition.
19. To consider the rival contentions of the parties,
we have perused the record and gone through various
relevant judgments.
20. Before touching on the challenge raised in these
petitions, we are of the opinion that a brief reference to the
historical background of Tribunalisation in India, is necessary
for better understanding of the controversy.
pil-11-21(J-1).odt 12/57
21. In a democratic country like India, judicial
functions and judicial powers constitute the essential
attributes of a sovereign State and are entrusted to regularly
established Courts by the Constitution of India through a
pattern of common law system. There are constitutional
rights, statutory rights, human rights and natural rights,
protection and implementation of which depends on proper
administration of justice.
22. There is a three tier judicial system, in India. The
subordinate Courts, the High Courts and the Supreme Court.
The subordinate Courts are vested with the original
jurisdiction in all matters except those, which are barred
either expressly or impliedly. The High Courts have appellate
and revisional jurisdiction along with the jurisdiction to issue
prerogative writs. Some of the High Courts have original
jurisdiction as well. The Hon'ble Supreme Court has original
jurisdiction and advisory jurisdiction where the President of
India may seek opinion. It can issue prerogative writs and has
appellate jurisdiction. The Supreme Court has also discretion
to entertain Special Leave Petition.
23. The delay and backlog in administration of justice
had raised a concern. The Law Commission of India therefore,
pil-11-21(J-1).odt 13/57
in its Fourteenth Report (1958) made recommendations for
reforming the administration of justice delivery system which
have been implemented from time to time to revamp the
judicial system with a view to reduce delay and enlarge access
to justice.
24. The Tribunal, as a result, emerged as an effective
mechanism to reduce the backlog and delay in administration
of justice.
25. The term 'Tribunal' is derived from the word
'Tribunes', which means 'Magistrate of the Classical Roman
Republic'.
26. In India, history of Tribunals dates back to the
year 1941, when first Tribunal was established in the form of
Income Tax Appellate Tribunal.
27. The Hon'ble Supreme Court of India has in
various judgments explicitly held that tribunals have been
established with the object of discharging quasi-judicial duties
by acting judicially which differentiates them from other
administrative bodies. A tribunal is neither a Court nor an
executive body, but they have an obligation to act judicially.
Tribunals are endowed with the judicial functions as
pil-11-21(J-1).odt 14/57
distinguished from purely administrative or executive
functions. As a quasi-judicial body, the Tribunal performs the
judicial functions for deciding the matters in a judicious
manner. It is not bound by law to observe all the
technicalities, complexities, refinement, discrimination and
restrictions that are applicable to the Courts of record in
conducting trials, but at the same time, a tribunal is required
to look at all matters from the standpoint of substance as well
as form and be certain that the hearing is conducted and the
matter is disposed of with fairness, honesty, and impartiality.
28. The Constitution (42nd Amendment) Act of 1976
brought about a massive change in the adjudication of
disputes in the Country. It has provided for the insertion of
Articles 323-A and 323-B in the Constitution of India,
whereby the goal of establishment of Administrative Tribunals
by Parliament as well as State Legislature, to adjudicate the
matters specified is made possible.
29. The statement of objects and reasons for insertion
of Articles 323A and 323B show that it were to reduce the
mounting arrears in High Courts and to secure the speedy
disposal of service matters, revenue matters and certain
matters of special importance in the context of the socio
pil-11-21(J-1).odt 15/57
economic development and progress, it is considered
expedient to provide administrative and other tribunals for
dealing with such matters while presenting the jurisdiction to
the Supreme Court in regard to such matters under Article
136 of the Constitution of India and to make certain
modifications in writ jurisdiction of the High Court's under
Article 226 of the Constitution of India.
30. Hence, looking to the desperate need to
overcome hurdles of delay in administration of justice,
creation of tribunals has evolved itself as one solution.
31. The Hon'ble Supreme Court of India in the case
of Rojer Mathew Vrs. South Indian Bank Ltd.,6 has observed
that the delay and backlog in the administration of justice is
of paramount concern for any country governed by the rule of
law. In our present judicial set up, disputes often take many
decades to attain finality, travelling across a series of lower
Courts to High Court and ending with an inevitable approach
to the Supreme Court. Such Crawling pace of justice delivery
system only aggravates the misery of affected parties. It is
further observed that it would, however, be wrong to place
the blame of such delay squarely on the judiciary, an expirical
6 2020(6) SCC 1
pil-11-21(J-1).odt 16/57
examination of pending cases clearly demonstrates that the
ratio of judges against the Country's population is one of the
lowest in the world and the manpower (support staff) and
infrastructure provided is dismal. In addition to the delay in
administration of justice, another important facet requiring
attention is the rise of specialization and increase of complex
and commercial aspects, which require esoteric appraisal and
adjudication. The existing lower Courts in the Country are
not well equipped to deal with such complex new issues
which see constant evolution as compared to the stable nature
of existing civil, criminal and tax jurisdiction.
32. Thus, due to expansion of Government activities
in the social and other similar fields along with commercial
ventures in different sectors, a need had arisen for availing
the services of persons having knowledge in specialized fields
for effective and speedier dispensation of justice, whereas, the
traditional mode of administration of justice by the Courts of
law was felt to be unequipped with such expertise to deal with
the complex issues arising in the changing scenario. Hence,
Tribunal not only emerged as an effective mechanism to
ameliorate the burden of judiciary but also with the expertise
and knowledge in specialized area.
pil-11-21(J-1).odt 17/57
33. However, when the jurisdiction relating to some
special matters was shifted from Courts to Tribunals, issues
relating to lack of uniformity in the matter of qualification,
appointment and service conditions had emerged and
surfaced.
34. In the case of Gujarat Urja Vikas Nigam Ltd vs
Essar Power Limited7, the Hon'ble Supreme Court of India
framed certain questions and requested the Law Commission
to give its report on it. Accordingly, the Law Commission on
27th October, 2017 submitted its 272 nd report titled as
"Assessment of Statutory Frame Work of Tribunals in India",
for consideration of Central Government. The questions and
conclusions to each of the questions framed by the Hon'ble
Supreme Court of India, are tabulated, as follows :
Questions referred by Conclusion recorded by the Law Commis-
the Hon'ble Supreme sion.
Court in the case of
Gujarat Urju Vikas
Nigam Ltd., Vrs. Essar
Power Ltd., to be exam-
ined by the Law Com-
mission
I. Whether any changes A. In case of transfer of jurisdiction of
in the statutory frame- High Court to a Tribunal, the members of
work constituting vari- the newly constituted Tribunal should
ous Tribunals with re- possess the qualifications akin to the
gard to persons ap- judges of the High Court. Similarly, in
pointed, manner of ap- cases where the jurisdiction and the func-
7 2016(9) SCC 103
pil-11-21(J-1).odt 18/57
pointment, duration of tions transferred were exercised or per-
appointment, etc. is formed by District Judges, the Members
necessary in the light of appointed to the Tribunal should possess
judgment of this Court equivalent qualifications required for ap-
in Madras Bar Associa- pointment as District Judges.
tion (Supra) or on any
other consideration B. There shall be uniformity in the ap-
from the point of view pointment, tenure and service conditions
of strengthening the for the Chairman, Vice-Chairman and
rule of law? Members appointed in the Tribunals.
While making the appointments to the
Tribunal, independence shall be main-
tained.
C. There shall be constituted a Selection
Board/Committee for the appointment of
Chairman, Vice-Chairman and Judicial
Members of the Tribunal, which shall be
headed by the Chief Justice of India or a
sitting judge of the Supreme Court as his
nominee and two nominees of the Cen-
tral Government not below the rank of
Secretary to the Government of India to
be nominated by the Government. For
the selection of Administrative Member,
Accountant Member, Technical Member,
Expert Member or Revenue Member,
there shall be a Selection Committee
headed by the nominee of the Central
Government, to be appointed in consulta-
tion with the Chief Justice of India.
D. The Chairman of the Tribunals should
generally be the former judge of the
Supreme Court or the former Chief Jus-
tice of a High Court and Judicial Mem-
bers should be the former judges of the
High Court or persons qualified to be ap-
pointed as a Judge of the High Court.
Administrative Members, if required,
should be such persons who have held
the post of Secretary to the Government
of India or any other equivalent post un-
der the Central Government or a State
Government, carrying the scale of pay of
a Secretary to the Government of India,
for at least two years; OR held a post of
pil-11-21(J-1).odt 19/57
Additional Secretary to the Government
of India, or any other equivalent post un-
der the Central or State Government, car-
rying the scale of pay of an Additional
Secretary to the Government of India, at
least for a period of three years.
Expert Member/Technical Member/Ac-
countant Member should be a person of
ability, integrity and standing, and having
special knowledge of and professional ex-
perience of not less than fifteen years, in
the relevant domain. (can be increased
according to the nature of the
Tribunal).The appointment of Technical/
Expert members in addition to the judi-
cial members be made only where the
Tribunals are intended to serve an area
which requires specialised knowledge or
expertise or professional experience and
the exercise of jurisdiction involves con-
sideration of, and decisions into, techni-
cal or special aspects.
E. While making the appointments to the
Tribunal, it must be ensured that the In-
dependence in working is maintained.
The terms and conditions of service,
other allowances and benefits of the
Chairman shall be such as are admissible
to a Central Government officer holding
posts carrying the pay of Rs.2,50,000/-,
as revised from time to time.
The terms and conditions of service,
other allowances and benefits of a Mem-
ber of a Tribunal shall be such as are ad-
missible to a Central Government officer
holding posts carrying the pay of
Rs.2,25,000/-, as revised from time to
time.
The terms and conditions of service,
other allowances and benefits of Presid-
ing Officer/Member of a Tribunal (to
which the jurisdiction and functions exer-
cised or performed by the District Judges
are transferred) shall be such as are ad-
pil-11-21(J-1).odt 20/57
missible to a Central Government officer
drawing the corresponding pay of a Dis-
trict Judge.
F. Vacancy arising in the Tribunal should
be filled up as early as possible by initiat-
ing the procedure well in time, as early
as possible, preferably within six months
prior to the occurrence of vacancy.
G. The Chairman should hold office for a
period of three years or till he attains the
age of seventy years, whichever is earlier.
Whereas Vice-Chairman and Members
should hold the office for a period of
three years or till they attain the age of
sixty seven years whichever is earlier. It
will be appropriate to have uniformity in
the service conditions of the Chairman,
Vice-Chairman and other Members of the
Tribunals to ensure smooth working of
the system.
II. Whether it is permis- H. Every order emanating from the Tri-
sible and advisable to bunal or its Appellate Forum, wherever it
provide appeals rou- exists, attains finality. Any such order
tinely to this Court only may be challenged by the party aggrieved
on a question of law or before the Division Bench of the High
substantial question of Court having territorial jurisdiction over
law which is not of na- the Tribunal or its Appellate Forum.
tional or public impor-
tance without affecting
the constitutional role
assigned to the
Supreme Court having
regard to the desirabil-
ity of decision being
rendered within rea-
sonable time?
III. Whether direct I. The provisions of Section 3(o) of the
statutory appeals to the Armed Forces Tribunal Act, 2007 ex-
Supreme Court bypass- cludes certain matters from the jurisdic-
ing the High Courts tion of the Armed Forces Tribunal (AFT)
from the orders of Tri- and the parties aggrieved in those mat-
bunal affect access to ters can approach the High Court under
justice to litigants in re- writ jurisdiction. The Act excludes the ju-
mote areas of the coun- risdiction of the High Court under Article
pil-11-21(J-1).odt 21/57
try? 227(4) but not under Article 226. In mat-
ters, where AFT has jurisdiction, parties
must have a right to approach the High
Court under Article 226 for the reason
that a remedy under Article 136 is not by
way of statutory appeal. The issue is
pending for consideration before the
larger Bench of the Supreme Court.
IV. Whether it is desirable J. The Tribunals must have benches in
to exclude jurisdiction of different parts of the country so that peo-
all courts in absence of ple of every geographical area may have
equally effective alterna- easy Access to Justice. Ideally, the
tive mechanism for access
benches of the Tribunals should be lo-
to justice at grass root
cated at all places where the High Courts
level as has been done in
provisions of TDSAT Act situate. In the event of exclusion of juris-
(Sections 14 and 15) diction of all courts, it is essential to pro-
vide for an equally effective alternative
mechanism even at grass root level. This
could be ensured by providing State-
level sittings looking to the quantum of
work of a particular Tribunal. Once that
is done, the access to justice will stand
ensured.
V. Any other incidental
or connected issue
which may be consid-
ered appropriate?'
35. Now, keeping in mind the above referred
historical backdrop of Tribunalisation, we will move ahead to
consider the controversy involved in this matter.
36. In the year 1986 the Consumer Protection Act (in
short the 'Act of 1986') was enacted to provide for better
protection of the interest of consumers and for the purpose of
making provisions for establishing of consumer protection
pil-11-21(J-1).odt 22/57
councils and other authorities for the settlement of consumer
disputes etc.
37. The issue relating to deficiencies relating to
infrastructure in the adjudicatory fora constituted under the
Act of 1986, had cropped up before the Hon'ble Supreme
court of India in the case of UPCPBA. The Hon'ble Supreme
Court of India in the aforesaid matter constituted a
Committee presided over by Mr. Justice Arijit Pasayat, a
former Judge of the Apex Court, to examine following
issues:-
(i) the infrastructural requirements of the State
Commissions, deficiencies in infrastructure and
remedial measures;
(ii) the position of vacancies of members at the
national, state and district level;
(iii) the need for additional Benches at the national,
State and district level;
(iv) conditions of eligibility for appointment of non-
judicial members;
(v) administrative powers which have been or should
be conferred on the Presiding Officers of the State and
District Fora;
(vi) service conditions including pay scales governing
the Presiding Officers and members;
(vii) requirements of staff;
(viii) creation of a separate cadre of staff at the
national, State and district level; and other relevant
issues.
pil-11-21(J-1).odt 23/57
(ix) other relevant issues.
38. Thereupon, the Committee inquired extensively
into the matters referred to it and made assessment of the
prevailing conditions in the Fora constituted under the Act of
1986, in various States including the State of Maharashtra.
The committee consequently, submitted its interim report on
17th October, 2016, whereupon, the Apex Court directed the
Union of India and State Governments, as under:-
(i) The Union Government shall for the purpose of
ensuring uniformity in the exercise of the rule
making power under Section 10(3) and Section
16(2) of the Consumer Protection Act, 1986
frame model rules for adoption by the state
governments. The model rules shall be framed
within four months and shall be submitted to
this Court for its approval;
(ii) The Union Government shall also frame within
four months model rules prescribing objective
norms for implementing the provisions of
Section 10(1)(b), Section 16(1)(b) and Section
20(1)(b) in regard to the appointment of
members respectively of the District fora, State
Commissions and National Commission;
(iii) The Union Government shall while framing the
model rules have due regard to the formulation
of objective norms for the assessment of the
pil-11-21(J-1).odt 24/57
ability, knowledge and experience required to
be possessed by the members of the respective
fora in the domain areas referred to in the
statutory provisions. The model rules shall
provide for the payment of salary, allowances
and for the conditions of service of the
members of the consumer fora commensurate
with the nature of adjudicatory duties and the
need to attract suitable talent to the
adjudicating bodies. These rules shall be
finalized upon due consultation with the
President of the National Consumer Disputes
Redressal Commission, within the period
stipulated above;
(iv) Upon the approval of the model rules by this
Court, the state governments shall proceed to
adopt the model rules by framing appropriate
rules in the exercise of the rule making powers
under Section 30 of the Consumer Protection
Act, 1986;
(v) The National Consumer Disputes Redressal
Commission is requested to formulate
regulations under Section 30A with the
previous approval of the Central Government
within a period of three months from today in
order to effectuate the power of administrative
control vested in the National Commission over
the State Commissions under Section 24(B)(1)
(iii) and in respect of the administrative control
pil-11-21(J-1).odt 25/57
of the State Commissions over the District fora
in terms of Section 24(B)(2) as explained in
this Judgment to effectively implement the
objects and purposes of the Consumer
Protection Act, 1986.
39. Consequently, the Union Government framed the
model rules, whereupon the State Governments were directed
to frame rules in accordance with the Final Draft Rules
submitted by the Union of India.
40. The State of Maharashtra, appropriately, framed
the rules by issuing notification dated 24th May, 2019, in
confirmation with the final draft rules, prepared by the Union
of India.
41. However, in view of new challenges due to drastic
transformation of consumer markets for goods and services,
the Act of 1986 was repealed and re-enacted vide Act of 2019.
Consequently, the Union of India in exercise of the powers
conferred by Sections 29 and 43 r/w Clauses (n) and (w) of
sub-section 101 of the Act of 2019, framed the Rules of 2020,
vide Notification dated 15.07. 2020.
42. In light of above referred facts, to examine the
contention of the petitioners that sub-Rule (9) of Rule 6 of the
pil-11-21(J-1).odt 26/57
Rules of 2020, is contrary to the directions issued by the
Hon'ble the Supreme Court of India in the cases of MBA-2020
and UPCPBA and arbitrary and hence, the same is ultra vires, it
is necessary to refer to Sub-Rule (9) of Rule 6 of the Rules of
2020, which read thus :
"6. Procedure of appointment.--(1) ...
(2) ...
(3) ...
(4) ...
(5) ...
(6) ...
(7) ...
(8) ...
(9) The Selection Committee shall determine its
procedure for making its recommendation keeping in
view the requirements of the State Commission or the
District Commission and after taking into account the
suitability, record of past performance, integrity and
adjudicatory experience."
43. A bare perusal of Sub rule (9) of Rule 6 of the
Rules of 2020, makes it clear that each Selection Committee
of the respective State, is conferred with a complete discretion
to determine its procedure for making its recommendations
keeping in view the requirements of the respective State
Commission or the District Commission and after taking into
account the suitability, record of past performance, integrity
and adjudicating experience.
pil-11-21(J-1).odt 27/57
44. The Hon'ble Supreme Court of India in the case
of L. Chandra Kumar Vrs. Union of India and others 8 has
observed that the numerous Tribunals with lack of uniformity
in the matter of qualification, appointments, tenure and
service conditions is causing the major concern in effective
working of the present Tribunal system.
45. In the 272nd report of the Law Commission, a
need of uniformity in the appointment, tenure and service
conditions for the Chairman, Vice-Chairman and Members
appointed in Tribunals, has been expressed.
46. The Hon'ble Apex Court, in the case of UPCPBA,
has observed that, the difficulty arises because of the vesting
of the rule-making power in the State Government, resulting
in a lack of uniformity of rules across the country, both in
regard to the terms and conditions of service as well as in
regard to the modalities to be followed in ensuring that
persons appointed as members fulfill the qualifications which
are prescribed. It is further noted that in the absence of a
uniform pattern and transparency in selection, the result is of
wide variation in standards with great deal of subjectivity, and
bureaucratic and political interference creeping in. The
8 1997(3) SCC 261
pil-11-21(J-1).odt 28/57
Hon'ble Apex Court therefore, directed the State Governments
to frame appropriate rules in exercise of Rule-making power
in accordance with the Final Draft Model Rules prepared by
the Union of India and adopt the same. Consequently, the
State of Maharashtra, framed the rules vide notification dated
24th May, 2019, prescribing therein a written examination and
Viva-voce for selection of President and Members of the
District Forum and State Forum.
47. It is notable that, even prior to issuance of
aforesaid directions by the Apex Court, a written test was
prescribed for selection of President or Members of the
District Forum or State Commission, Maharashtra. However,
in the case in hand, the said procedure has not been followed
and viva-voce as the only criteria for selection, was
prescribed.
48. In the case of MBA-2021 the Hon'ble Supreme
Court of India while dealing with the contentions of learned
Attorney General of India that ordinance cannot be challenged
on the ground that it is contrary to judgment of Hon'ble the
Supreme Court of India, it is held thus :
44. "The permissibility of legislative override in this
country should be in accordance with the principles laid
pil-11-21(J-1).odt 29/57
down by this Court in the aforementioned as well as
other judgments, which have been culled out as under:
a) The effect of the judgments of the Court can be
nullified by a legislative act removing the basis of
the judgment. Such law can be restrospective.
Retrospective amendment should be reasonable and
nor arbitrary and must not be violative of the
fundamental rights guaranteed under the
Constitution.
b) The test for determining the validity of a
validating legislation is that the judgment pointing
out the defect would not have been passed, if the
altered position as sought to be brought in by the
validating statute existed before the Court at the
time of rendering its judgment. In other words, the
defect pointed out should have been cured such that
the basis of the judgement pointing out the defect is
removed.
c) Nullification of mandamus by an enactment
would be impermissible legislative exercise [See :
S.R.Bhagwant (supra)]. Even interim directions
cannot be reversed by a legislative veto [See:
Cauvery Water Disputes Tribunal (supra) and
Medical Council of India v. State of Kerala & Ors.]
d) Transgression of constitutional limitations and
intrusion into the judicial power by the legislature is
violative of the principle of separation of powers, the
rule of law and of Article 14 of the Constitution of
India."
49. The Hon'ble Supreme Court of India in the case
of MBA-2021 while dealing with the issue of importance of
independence of judiciary, in its majority veiw has observed
thus :
32. The constitutional mandate is that the legislature
should adhere to the principles laid down in Part-IV
of the Constitution of India while enacting
legislations. No provision shall be made in legislative
acts which would have the tendency of making
inroads into the judicial sphere. Any such
encroachment by the legislature would amount to
pil-11-21(J-1).odt 30/57
violating the principles of separation of powers,
judicial independence and the rule of law.
Independence of courts from the executive and the
legislature is fundamental to the rule of law and one
of the basic tenets of the Indian Constitution.
Separation of powers between the three organs i.e.,
the legislature, the executive and the judiciary, is a
consequence of the principles of equality as enshrined
in Article 14 of the Constitution. Any incursion into
the judicial domain by the other two wings of the
Government would, thus, be unconstitutional."
50. In the above referred back drop, it is imperative
to examine, whether any change has taken place in legislative
scheme or in nature of performance of duties and function of
adjudicatory authorities after enactment of the Act of 2019 for
such deviation and for not following the direction issued by
the Hon'ble the Supreme Court of India in the case of
UPCPBA, relating to bringing uniformity of rules across the
country in regard to the modalities to be followed in
appointment and selections of President and Members of the
District Forum and State Forum.
51. For this purpose, we will compare the relevant
functions and powers conferred upon the Fora/Commission
under the Act of 1986 and the Act of 2019, respectively. The
Hon'ble Supreme Court of India in the aforesaid case of
UPCPBA, after considering the scheme of the Act of 1986, has
held the adjudicatory powers of the Fora constituted under
pil-11-21(J-1).odt 31/57
the Act of 1986, as a 'judicial function'. In the light of
aforesaid finding, the comparison is made, which is as under:-
'Act of 1986' 'Act of 2019'
Section 13(2) Section 38(3)
The District Forum shall, if the The District Commission shall, if
complaints admitted by it under the complaint admitted by it un-
section 12 relates to goods in re- der sub-section (2) of section 36
spect of which the procedure relates to goods in respect of
specified in sub-section (1) can- which the procedure specified in
not be followed, or if the com- sub-section (2) cannot be fol-
plaint relates to any services,- lowed, or if the complaint re-
lates to any services,--
(a) refer a copy of such com- (a) refer a copy of such com-
plaint to the opposite party di- plaint to the opposite party di-
recting him to give his version of recting him to give his version of
the case within a period of thirty the case within a period of thirty
days or such extended period days or such extended period
not exceeding fifteen days as not exceeding fifteen days as
may be granted by the District may be granted by the District
Forum; Commission;
(b) where the opposite party, on (b) if the opposite party, on re-
receipt of a copy of the com- ceipt of a copy of the complaint,
plaint, referred to him under referred to him under clause (a)
clause (a) denies or disputes the denies or disputes the allega-
allegations contained in the tions contained in the com-
complaint, or omits or fails to plaint, or omits or fails to take
take any action to represent his any action to represent his case
case within the time given by within the time given by the Dis-
the District Forum, the District trict Commission, it shall pro-
Forum shall proceed to settle the ceed to settle the consumer dis-
consumer dispute,- pute
(i) on the basis of evidence (i) on the basis of evidence
brought to its notice by the com- brought to its notice by the com-
plainant and the opposite party, plainant and the opposite party,
where the opposite party denies if the opposite party denies or
or disputes the allegations con- disputes the allegations con-
tained in the complaint, or tained in the complaint, or
(ii) ex-parte on the basis of evi- (ii) ex parte on the basis of evi-
dence brought to its notice by dence brought to its notice by
the complainant where the op- the complainant, where the op-
posite party omits or fails to posite party omits or fails to
take any action to represent his take any action to represent his
case within the time given by case within the time given by
the Forum. the Commission;
pil-11-21(J-1).odt 32/57
(c) where the complainant fails (c) decide the complaint on
to appear on the date of hearing merits if the complainant fails to
before the District Forum, the appear on the date of hearing.
District Forum may either dis-
miss the complaint for default or
decide it on merits.)
Section 13(3) Section 38(5)
No proceedings complying with No proceedings complying with
the procedure laid down in sub- the procedure laid down in sub-
sections (1) and (2) shall be sections (2) and (3) shall be
called in question in any court called in question in any court
on the ground that the princi- on the ground that the princi-
ples of natural justice have not ples of natural justice have not
been complied with. been complied with.
Section 13 (3A) Section 38(7)
Every complaint shall be heard Every complaint shall be dis-
as expeditiously as possible and posed of as expeditiously as pos-
endeavour shall be made to de- sible and endeavour shall be
cide the complaint within a pe- made to decide the complaint
riod of three months from the within a period of three months
date of receipt of notice by op- from the date of receipt of no-
posite party where the com- tice by opposite party where the
plaint does not require analysis complaint does not require anal-
or testing of commodities and ysis or testing of commodities
within five months if it requires and within five months if it re-
analysis or testing of commodi- quires analysis or testing of com-
ties. modities:
Provided that no adjournment Provided that no adjournment
shall be ordinarily granted by shall ordinarily be granted by
the District Forum unless suffi- the District Commission unless
cient cause is shown and the sufficient cause is shown and
reasons for grant of adjourn- the reasons for grant of adjourn-
ment have been recorded in ment have been recorded in
writing by the Forum: writing by the Commission:
Provided further that the District Provided further that the District
Forum shall make such orders as Commission shall make such or-
to the costs occasioned by the ders as to the costs occasioned
adjournment as may be pro- by the adjournment as may be
vided in the regulations made specified by regulations:
under this Act.
Provided also that in the event
Provided also that in the event of a complaint being disposed of
of a complaint being disposed of after the period so specified, the
pil-11-21(J-1).odt 33/57
after the period so specified this District Commission shall record
District Forum shall record in in writing, the reasons for the
writing, the reasons for the same at the time of disposing of
same at the time of disposing of the said complaint.
the said complaint.
Section 13 (3B) Section 38 (8)
Where during the pendency of Where during the pendency of
any proceeding before the Dis- any proceeding before the Dis-
trict Forum, it appears to it nec- trict Commission, if it appears
essary, it may pass such interim necessary, it may pass such in-
order as is just and proper in the terim order as is just and proper
facts and circumstances of the in the facts and circumstances of
case. the case.
Section 13(4) Section 38 (9)
(4) For the purposes of this sec- For the purposes of this section,
tion, the District Forum shall the District Commission shall
have the same powers as are have the same powers as are
vested in a civil court under vested in a civil court under the
Code of Civil Procedure, 1908 Code of Civil Procedure, 1908
(5 of 1908) while trying a suit in while trying a suit in respect of
respect of the following matters, the following matters, namely:
namely:- --
(i) the summoning and enforc- (a) the summoning and enforc-
ing the attendance of any defen- ing the attendance of any defen-
dant or witness and examining dant or witness and examining
the witness on oath, the witness on oath;
(ii) the discovery and produc- (b) requiring the discovery and
tion of any document or other production of any document or
material object producible as ev- other material object as evi-
idence, dence;
(iii) the reception of evidence on (c) receiving of evidence on affi-
affidavits, davits;
(iv) the requisitioning of the re- (d) the requisitioning of the re-
port of the concerned analysis or port of the concerned analysis or
test from the appropriate labora- test from the appropriate labora-
tory or from any other relevant tory or from any other relevant
source. source;
(v) issuing of any commission (e) issuing of commissions for
for the examination of any wit- the examination of any witness,
pil-11-21(J-1).odt 34/57
ness, and or document;and
(vi) any other matter which may (f) any other matter which may
be prescribed. be prescribed by the Central
Government.
Section 13(5) Section 38(10)
Every proceeding before the Dis- (10) Every proceeding before
trict Forum shall be deemed to the District Commission shall be
be a judicial proceeding within deemed to be a judicial proceed-
the meaning of sections 193 and ing within the meaning of sec-
228 of the Indian Penal Code tions 193 and 228 of the Indian
(45 of 1860), and the district Penal Code, ( 45 of 1806) and
Forum shall be deemed to be a the District Commission shall be
civil court for the purposes of deemed to be a criminal court
section'" 195, and Chapter XXVI for the purposes of section 195
of the Code of Criminal Proce- and Chapter XXVI of the Code of
dure, 1973 (2 of 1974). Criminal Procedure, 1973.
Section 14 Section 39
Finding of the District Forum.- Findings of District Commission:
(1) If, after the proceeding con- (1) Where the District Commis-
ducted under section 13, the sion is satisfied that the goods
District Forum is satisfied that complained against suffer from
the goods complained against any of the defects specified in
suffer from any of the defects the complaint or that any of the
specified in the complaint or allegations contained in the
that any of the allegations con- complaint about the services or
tained in the complaint about any unfair trade practices, or
the services are proved, it shall claims for compensation under
issue an order to the opposite product liability are proved, it
party directing him to do one or shall issue an order to the oppo-
more of the following things, site party directing him to do
namely.......... one or more of the following,
namely.........
Section 15 Appeal Section 41 Appeal against order
of District Commission.
Any person aggrieved by an or- Any person aggrieved by an or-
der made by the District Forum der made by the District Com-
may prefer an appeal against mission may prefer an appeal
such order to the State Com- against such order to the State
mission within a period of Commission on the grounds of
pil-11-21(J-1).odt 35/57
thirty days from the date of facts or law within a period of
the order, in such form and forty-five days from the date of
manner as may be prescribed: the order, in such form and
manner, as may be prescribed:
Section 18 : Procedure applica- Section 49 : Procedure applica-
ble to State Commissions.- ble to State Commission.
[The provisions of Sections (1) The provisions relating to
12, 13 and 14 and the rules complaints under sections 35,
made thereunder] for the dis- 36, 37, 38 and 39 shall,with
posal of complaints by the Dis- such modifications as may be
trict Forum shall, with such necessary, be applicable to the
modifications as may be nec- disposal of complaints by the
essary, be applicable to the State Commission.
disposal of disputes by the
State Commission.
(2) Without prejudice to the
provisions of sub-section (1),
the State Commission may also
declare any terms of contract,
which is unfair to any consumer,
to be null and void.
Section 25 Section 71
Enforcement of orders by Enforcement or orders of Dis-
the Forum, the State Com- trict Commission, State Commis-
mission or the National sion and National Commission.
Commission.-
(1) Where an interim order Every order made by a District
made under this Act, is not Commission, State Commission
complied with, the District Fo- or the National Commission
rum or the State Commission shall be enforced by it in the
or the National Commission, same manner as if it were a de-
as the case may be, may order cree made by a Court in a suit
the property of the person, not before it and the provisions of
complying with such order to be Order XXI of the First Schedule
attached. to the Code of Civil Procedure,
(2) No attachment made un- 1908 ( 5 of 1908) shall, as far as
der sub-section (1) shall re- may be, applicable, subject to
main in force for more than the modification that every ref-
three months at the end of erence therein to the decree
which, if the non-compliance shall be construed as reference
continues, the property at- to the order made under this
tached may be sold and out of Act.
the proceeds thereof, the Dis-
trict Forum or the State Com-
pil-11-21(J-1).odt 36/57
mission or the National Com-
mission may award such dam-
ages as it thinks fit to the com-
plainant and shall pay the bal-
ance, if any, to the party entitled
thereto.
(3) Where any amount is
due from any person under
an order made by a District
Forum, State Commission or the
National Commission, as the
case may be, the person entitled
to the amount may make an ap-
plication to the Distt. Forum, the
State Commission or the Na-
tional Commission, as the case
may be, and such District Fo-
rum or the State Commission
and the National Commission
may issue a certificate for the
said amount to the Collector
of the district (by whatever
name called) and the Collec-
tor shall proceed to recover
the amount in the same man-
ner as arrears of land revenue.)
Section 27 : Penalties.- Section 72 : Penalty for non-
compliance of order
(1) Where a trader or a per- (1) Whoever fails to comply
son against whom a complaint with any order made by the Dis-
is made [or the complainant] trict Commission or the State
fails or omits to comply with Commission or the National
any order made by the Dis- Commission, as the case may be,
trict Forum, the State Commis- shall be punishable with impris-
sion or the National Commis- onment for a term which shall
sion, as the case may be, not be less than one month, but
such trader or person ([or which may extend to three
complainant] shall be punish- years, or with fine, which
able with imprisonment for a shall not be less than twenty-
term which shall not be less five thousand rupees, but
than one month but which may which may extend to one lakh
extend to three years, or with rupees, or with both.
fine which shall not be less
than two thousands rupees but
which may extend to ten thou-
pil-11-21(J-1).odt 37/57
sand rupees, or with both:
(2) Notwithstanding anything (2) Notwithstanding anything
contained in the Code of Crimi- contained in the Code of Crimi-
nal Procedure, 1973 (2 of nal Procedure, 1973, the District
1974), the District Forum or Commission, the State Commis-
the State Commission or the sion or the National Commis-
National Commission, as the sion, as the case may be,shall
case may be, shall have the have the power of a Judicial
power of a Judicial Magistrate Magistrate of first class for the
of the first class for the trial of trial of offences under sub-sec-
offences under this Act, and on tion (1), and on conferment of
such conferment of powers, such powers, the District Com-
the District Forum or the mission or the State Commission
State Commission or the Na- or the National Commission, as
tional Commission, as the case the case may be, shall be
may be, on whom the powers deemed to be a Judicial Magis-
are so conferred, shall be trate of first class for the pur-
deemed to be a Judicial Mag- poses of the Code of Criminal
istrate of the first class for Procedure, 1973 ( 2 of 1974)
the purpose of the Code of
Criminal Procedure, 1973 (2 of
1974).
(3) All offences under this (3) Save as otherwise pro-
Act may be tried summarily vided, the offences under sub-
by the District Forum or the section (1) shall be tried sum-
State Commission or the Na- marily by the District Commis-
tional Commission, as the case sion or the State Commission or
may be.) the National Commission,as the
case may be.
52. Having compared the relevant function and
powers conferred upon the fora / commission, it is explicitly
clear that under the Act of 2019 the District commission and
State Commission are continued to be vested and conferred
with powers of a Civil Court under the Code of Civil
Procedure, 1908, as it was vested under the Act 1986.
pil-11-21(J-1).odt 38/57
53. It is noteworthy that, under Section 71 of the Act
of 2019, every order made by Commission shall be enforced
by it in the same manner as if it were a decree made by a
Court in a suit before it.
54. Furthermore, while re-enacting the Act of 1986,
vide the Act of 2019, the word "Consumer" has been re-
defined and the concept of "Product Liability" has been newly
introduced and defined. Similarly, "e-commerce and
electronic service provider" has been defined by inserting the
same. The Act of 2019 has also introduced a vital concept of
"electronic service provider" and further provided strict
penalties for false and misleading advertisement. The Act of
2019 further introduces a new chapter on "Mediation" as an
Alternate Dispute Resolution Mechanism in order to resolve
the consumer disputes faster without having to approach the
Commission.
55. Admittedly, in this case, neither the Union of
India nor the State Government in their respective replies,
have come up with a case or have pointed out that, after the
enactment of Act of 2019 and Rules of 2020, the directions
issued by the Hon'ble Supreme Court of India in the case of
pil-11-21(J-1).odt 39/57
UPCPBA, have become non-operative or in-effective, relating
to the need for having uniformity of rules across the country
in regard to the modalities to be followed, ensuring that
persons appointed fulfill the qualification prescribed, owing to
any valid and justifiable reason.
56. Thus, it is amply clear that there is no change in
legislative scheme or performance of judicial function of the
State Commission or District Commission, constituted under
the Act of 2019, as they were performing under the Act of
1986. Resultantly, we have no hesitation to hold that the
directions issued by the Hon'ble Supreme Court of India in the
case of UPCPBA, for having uniformity across the country in
standards, selection and appointment of President and
Members on Fora, are equally binding with full force, even
after the enactment of the Act of 2019.
57. The Hon'ble Supreme Court of India, in the case
of UPCPBA, has given sufficient reasons to have uniformity
across the country as regards standards and modalities in
appointments of Presidents and Members of Consumer
Dispute Redressal Forum, under the Act of 1986. The Union
of India while framing Rules of 2020 under the Act of 2019,
ought to have framed the rules in consonance with the
pil-11-21(J-1).odt 40/57
directions of the Hon'ble the Supreme Court of India, issued
in the case of UPCPBA, to cure defects pointed out in the said
judgment, which has admittedly not been done. Whereas,
under the Rules of 2020, the uncontrolled and uncanalised
discretion has been granted to the Selection Committee,
which will produce undesirable results and which will be in
violation of fundamental rights to equality before law and
equal protection of laws guaranteed by Article 14 of the
Constitution of India, that includes a right to have the
person's rights adjudicated by a forum which exercises judicial
power in an impartial and independent manner, as held in
MBA-2021.
58. In the case of State of Rajasthan and others Vs.
Basant Nahata (supra) it has been held by the Hon'ble
Supreme Court of India, that the necessity of the legislatures
delegating its powers in favour of the executive is a part of
legislative function. Such delegation of power, however,
cannot be wide, uncanalised or unguided. The legislature
while delegating, such power is required to lay down the
criteria or standard so as to enable the delegatee to act within
the framework of the statute.
pil-11-21(J-1).odt 41/57
59. However, the Union Government has granted
complete discretion under the Rules of 2020 to the Selection
Committee to determine its own procedure. The ultimate
result of the same would be nothing but creating a situation
which has been narrated in the case of UPCPBA, which
undoubtedly, will again lead to wide variation in standards as
well as a great deal of subjective, bureaucratic and political
interference, and finally it will result in denial of justice which
will be in violation of Article 14 of the Constitution of India.
60. As noted herein above that the Hon'ble the
Supreme Court of India in the case of UPCPBA, has held the
adjudicatory powers of the Fora under the Act of 1986, as
'judicial functions', it would be appropriate at this juncture to
consider the importance of judicial function/ judicial office in
people's life to further understand the proportionate
responsibility attached to it and importance of having a
criteria akin to the responsibility, for appointment.
61. In the case of MBA-2010, the Hon'ble Apex Court,
has observed that the rule of law can be meaningful only if
there is an independent and impartial judiciary to render
justice. An independent judiciary can exist only when persons
with competence, ability and independence with impeccable
pil-11-21(J-1).odt 42/57
character man the judicial institutions. When the legislature
proposes to substitute a tribunal in place of the High Court to
exercise the jurisdiction which the High Court is exercising, it
goes without saying that the standards expected from the
judicial members of the Tribunal and standards applied for
appointing such members, should be as nearly as possible as
applicable to High Court Judges, which, apart from a basic
degree in Law, are reflective of rich experience in the practice
of law, independent outlook, integrity, character and good
reputation.
62. As Justice Stephen Breyer (Supreme Court of the
United States), writes:-
"...When you are a judge...it's important to be able to
imagine what other people's lives might be like, lives that
your decisions will affect. People who are not only different
from you, but also very different from each other... And this
empathy, this ability to envision the practical consequences
on one's contemporaries of a law or a legal decision, seems
to me to be a crucial quality in a judge."
63. Justice Hidayatulla, former Chief Justice of India
has placed observance by judges of punctuality of time, on a
very high pedestal. According to him, a Judge who does not
observe punctuality of time does not believe in rule of law.
Whereas, the Hon'ble Apex Court in the case of UPCPBA has
observed that in the Fora under the Act of 1986, non-judicial
members do not maintain punctuality.
pil-11-21(J-1).odt 43/57
64. It is enounced by Chief Justice Burger (United
States) that a sense of confidence in the Court is essential to
maintain a fabric of order and liberty for free people. Three
things would destroy that confidence and do incalculable
damage to the society; that people come to believe that
inefficiency and delay will drain even a just judgment of its
value; that people who had long been exploited in the small
transactions of day life come to believe that Courts cannot
vindicate their legal rights against fraud and overreaching;
that people come to be believe that the law-in larger sense
cannot fulfill its primary function to protect them and their
families in their homes, at their work and on the public
streets.
65. The historical background of Tribunalisation
depicts that Tribunals have been established to overcome
hurdles of delay in administration of justice and with objects
of discharging quasi-judicial duties by acting judicially. The
Tribunals are endowed with the judicial functions with a duty
to decide the matters in judicious manner.
66. Thus, it is clear that the judiciary is meant to
uphold the constitutional values and protect the citizens from
pil-11-21(J-1).odt 44/57
encroachment of their constitutional rights. Judiciary is a
body of legal and constitutional experts and they are called
upon to decide contentions, issues between the parties, strictly
in accordance with law and the Constitution. Thus, the
judges have a great responsibility and obligation towards the
people. They exercise the authority of the State in public, in
issues of immense importance for the parties and often to the
community at large. The greatest strength of the judiciary is
the faith of the people in it and the very existence of
administration of justice system depends on the judges.
67. The discussion made herein above, further makes
it clear that "Judicial Office" is essentially a public trust and
therefore, it is expected that a judge must be a man of high
integrity, honesty and shall possess several qualities including
legal expertise, ability to handle cases, proper personal
conduct and ethical behaviour and shall ensure impartiality,
fairness and reasonableness in consideration. Whereas the
technical member ensures the availability of expertise and
experience related to the field of adjudication for which the
Special Tribunal is created.
pil-11-21(J-1).odt 45/57
68. Having considered the importance of judicial
function in people's lives and qualities which are needed to be
possessed by a judge, we will now proceed to consider and
examine the adverse effects of not having appropriate criteria
for selection and uniformity in selection.
69. In this regard, the observations made by the
Hon'ble Supreme Court of India, in the case of UPCPBA, are
relevant, which depict a sorry state of affairs in the Fora, as
under:
a) The fora do not function as effective as expected.
b) The quality of presiding members, especially of non-
judicial members at the state and district levels is poor.
c) Most of the non-judicial members are not even capable of
writing or dictating small orders.
d) At certain places non-judicial members act in unison
against the presiding officer, while passing orders contrary
to law, damaging the reputation of the adjudicating body.
Presidents, as a result, prefer a situation where such non-
judicial members absent themselves from work if only so
that judicial work can be carried out by the presiding judge
impartially and objectively.
pil-11-21(J-1).odt 46/57
e) Many non-judicial members do not maintain punctuality
and others attend to work sporadically once or twice a
week.
f) Many of the non-judicial members attend the place of
work only to sign orders which have been drafted by the
presiding officer.
70. The Hon'ble Apex Court further quoted three
instances showing bureaucratic and political influence in
selection process as a result of which the functioning of
consumer fora is detrimentally affected. The instances are as
under.
i) one non-Judicial Member Mr. Jamal Akhtar
posted at District Forum, Meerut has been absenting without
permission since 11th May, 2015, which resulted in his post
being declared vacant and another non-Judicial member
posted elsewhere came to be attached in his place.
ii) One non-Judicial Member who had her first term
at Lucknow and who was enjoying her second term, having
been appointed for District Forum, Barabanki but attached to
Greater Noida, as per the reports, came Forum once or twice a
week. Another woman non-Judicial Member who happened
pil-11-21(J-1).odt 47/57
to be wife of a bureaucrat though appointed for District
Forum, Baghpat was attached/posted at Greater Noida.
iii) In Haryana, a non-judicial Woman Member did/
would not attend the District Forum regularly, as she had to
travel around 150/160 km every day.
71. The Hon'ble Apex Court has therefore, held that
both in relation to the State Commissions and the District
Fora, a member must be a person of ability and standing with
adequate knowledge and experience of at least ten years in
dealing with problems relating to economics, law, commerce,
accountancy, industry, public affairs or administration, as
broad general categories. The Apex Court has thus, found the
need to conduct written test to assess the knowledge of
persons, justifiable.
72. In this matter it seems that the above referred
observations of the Apex Court were not brought to the notice
of the Selection Committee when it determined its own
procedure for selection.
73. The Hon'ble Supreme Court of India, in the case
of MBA-2010 has held that the fundamental right to equality
before law and equal protection of laws guaranteed by Article
pil-11-21(J-1).odt 48/57
14 of the Constitution, clearly includes a right to have the
person's rights, adjudicated by a forum which exercises
judicial power in an impartial and independent manner,
consistent with the recognized principles of adjudication. The
Apex Court in the said case further referred to the case of S.P.
Sampath Kumar etc Vrs. Union of India and others 9, wherein
it has held that where the prescription of qualification was
found by the court, to be not proper and conducive for the
proper functioning of the tribunal, it will result in invalidation
of the relevant provisions relating to the constitution of the
tribunal. If the qualifications/eligibility criteria for
appointment fail to ensure that the members of the Tribunal
are able to discharge judicial functions, the said provisions
cannot pass the scrutiny of the higher the judiciary.
74. It is further held in the MBA-2010 that the
legislature is presumed not to legislate contrary to rule of law
and therefore know that where disputes are to be adjudicated
by a judicial body other than Courts, its standards should
approximately be the same as to what is expected of
mainstream judiciary.
9(1987) 1 SCC 124
pil-11-21(J-1).odt 49/57
75. In the case of MBA-2021, his Lordship Justice S.
Ravindra Bhat, while recording concurrence to the judgment
authored by his Lordship L. Nageshwar Rao, has observed
thus:
19. "..... However, in matters that concerned
administration of justices, especially where
alternative adjudicatory forums are created, the
court's concern is greater. This is because the
Constitution does not and cannot be read so as to
provide two kinds of justice: one through courts,
and one through other bodies. The quality and
efficacy of these justice delivery mechanisms have
to be the same, i.e., the same as that provided by
courts, as increasingly, tribunals adjudicate
disputes not only between state agencies and
citizens, but also between citizens and citizens as
well as citizens and powerful corporate entities.
Therefore, it is the "equal protection" of laws,
guaranteed to all persons, through institutions
that assure the same competence of its personal,
the same fair procedure, and the same
independence of adjudicators as is available in
existing courts, that stands directly implicated....."
76. As discussed herein above, it is clear that the
standard expected from the judicial members of the Tribunal
and standards applied for appointing such members, should
be as nearly as possible applicable to the appointment of
Judges, exercising such powers. It is also clear that if the
qualification or eligibility criteria for appointment fail to
ensure that the Members of the Tribunal are able to discharge
judicial functions, the said provisions cannot pass the scrutiny
of the higher judiciary.
pil-11-21(J-1).odt 50/57
77. In the case in hand admittedly no written test
was prescribed in the impugned notice for selection of
Members of District and State Commissions but, only a viva-
voce test. However, during the pendency of the present
petition and in the middle of selection process, a decision was
taken by the Selection Committee to hold written test for
selection, which is contrary to the well settled principle of law
that in the middle of the selection process, rules for selection
cannot be changed.
78. Moreover, the decision of the Selection
Committee to hold the written test, supports the case of the
petitioner that looking at the judicial functions needed to be
performed by the President and Members of District and State
Commissions, the criteria for selection and appointment shall
be applied as nearly as possible applicable to the judges in
mainstream judiciary, exercising the similar powers.
79. Therefore, for the reasons recorded herein above,
we have no hesitation to hold that Sub Rule (9) of Rule 6 of
Rules of 2020, framed under the Act of 2019, is ultra vires,
and violative of Article 14 of the Constitution of India.
Consequently, we find substance in the contention of the
pil-11-21(J-1).odt 51/57
petitioner that the advertisement dated 2 nd February, 2021
published by the respondent no.2 for the filling up of
vacancies for the post of Members of State Commission and
President and Members of District Commission, Maharashtra
State, is arbitrary, unreasonable, ex-facie bad in law and
violative of the directions issued by the Hon'ble Supreme
Court of India in the case of MBA-2020 and MBA-2021 as well
as in the case of UPCPBA.
80. Now, we would deal with the challenge made to
the validity of Rules 3 and 4 of the Rules 2020. For the sake
of convenience, Rule 3 (2)(b) and Rule 4(2)(c) of the Rules,
2020 are reproduced hereunder, which read thus:
3. Qualifications for appointment of President
and members of the State Commission -
(1)....
(2) A person shall not be qualified for
appointment as a member unless he is of not
less than forty years of age and possesses-
(a)....
(b) a bachelor's degree from a
recognised university and is a person of
ability, integrity and standing, and has
special knowledge and professional
experience of not less than twenty years
in consumer affairs, law, public affairs,
administration, economics, commerce,
industry, finance, management,
engineering, technology, public health or
medicine:
(3)....
pil-11-21(J-1).odt 52/57
4. Qualifications for appointment of President
and member of District Commission -
(1)....
(2) A personal shall not be qualified for
appointment as member unless he-
(a)....
(b)....
(c) is a person of ability, integrity and
standing, and having special knowledge
and professional experience of not less
than fifteen years in consumer affairs,
law, public affairs, administration,
economics, commerce, industry, finance,
management, engineering, technology,
public health or medicine.
(3)...."
81. The Rules 3(2)(b) and 4(2)(c) of the Rules 2020
deal with the eligibility criteria seeking experience of not less
than 20 years in consumer affairs, law, public affairs,
administration, economics, commerce, industry, finance,
management, engineering, technology, public health or
medicine, for the post of Members of State Commission and
experience in similar fields of not less than 15 years for the
post of President and Members of District Commission. In the
case of MBA-2020, the Hon'ble Supreme Court has directed
that the Rules shall be amended to make an advocate with an
experience of atleast 10 years eligible for appointment as
judicial members in the Tribunals.
pil-11-21(J-1).odt 53/57
82. Similarly, in the case of UPCPBA the Hon'ble Apex
Court has observed that both in relation to the State
Commissions and the district fora, a member must be a person
of ability and standing with adequate knowledge and
experience of at least 10 years in dealing with problems
relating to economics, law, commerce, accountancy, industry,
public affairs or administration.
83. Thus, it is clear that the Hon'ble Supreme Court
of India, has repeatedly held that to have 10 years of
experience in law and in other specialized fields as prescribed
and stipulated under the statute, is sufficient for appointment
as a judicial member in the Tribunal.
84. The Rules 3(2)(b) and 4(2)(c) of the Rules of
2020 to the extend prescribing a minimum experience of not
less than 20 years for appointment of President and Members
of State Commission and experience of not less than 15 years
for appointment of Presidents and Members of District
Commission under the Act of 2019, is an attempt to
circumvent the directions issued in MBA-2020 and UPCPBA.
Hence, they are arbitrarily, illegal and violates principle of
equality before law.
pil-11-21(J-1).odt 54/57
85. In the circumstances, we have no hesitation to
hold that the Rules 3(2)(b) and 4(2)(c) of the Rules of 2020
prescribing a minimum experience of not less than 20 years
for appointment of President and Members of State
Commission and experience of not less than 15 years for
appointment of Presidents and Members of District
Commission, are unconstitutional and violative of Article 14
of the Constitution of India.
86. During the pendency of the present petitions, the
President of State Commission, Maharashtra has been
appointed and has joined the office. In absence of challenge to
the validity of said appointment, we have refrained ourseves
from dealing with its validity.
87. In light of above observations and findings
recorded, we pass the following order :-
ORDER
(i) The Public Interest Litigation No.11 of 2021 is
allowed;
(ii) The Writ Petition No.1096/2021 is partly allowed;
pil-11-21(J-1).odt 55/57
(iii) It is held and declared that Rule 3(2)(b), Rule 4(2)
(c) and Rule 6(9) of the Rules of 2020, are arbitrary,
unreasonable and violative of Article 14 of the
Constitution of India for the reasons recorded
herein above and hence are quashed and set aside;
(iv) The Union of India is directed to provide for
appropriately made Rules as substitutes for Rule 3
(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules,
2020, declared unconstitutional, keeping in view
the observations made in the judgment, within four
weeks from the date of the judgment and order;
(v) The vacancy notice dated 2nd February, 2021 issued
by the respondent no.2 for inviting applications for
the post of Members of the State Commission and
President and Members of the District Commission,
is hereby quashed and set aside;
(vi) The process of selection of Members of the State
Commission and President and the Members of the
District Commission, initiated in pursuance to the
vacancy notice dated 2nd February, 2021, stands
cancelled;
(vii) Fresh process of selection of members of the State
Commission, President and the members of the
District Commission be initiated in accordance with
the amended Rules and completed at the earliest as
directed by the Hon'ble Supreme Court of India;
pil-11-21(J-1).odt 56/57
(viii)It is made clear that we have not dealt with the
validity of appointment made of the President of
State Commission, Maharashtra State;
(viii) No orders as to costs.
(ANIL S. KILOR, J) (SUNIL B. SHUKRE, J)
At this stage, Shri Aurangabadkar, learned Assistant
Solicitor General of India made a request to keep the
judgment in abeyance for four weeks. He submits that since
this Court has declared Rule 3(2)(b) and Rule 4(2)(c) and
Rules 6(9) of Rule of 2020 as unconstitutional, it will have
nationwide effect, as in view of the recent directions of the
Hon'ble Apex Court the process in various States for
appointment of the President and Members of the State
Commission as well as District Commission may be going on.
He, therefore, prays to suspend the effect of the present
judgment at least for four weeks.
Shri Mandlekar, learned counsel for the petitioner,
strongly opposes the said request and states that if the effect
pil-11-21(J-1).odt 57/57
of judgment is suspended, there is every possibility that State
of Maharashtra may issue appointment orders in favour of 33
candidates, for the post of Members of the State Commission
and President and Members of the District Commission.
After considering the effect of declaring the above
referred Rules as unconstitutional, we find substance in the
submission of Shri Aurangabadkar, learned Assistant Solicitor
General of India and accordingly we keep this judgment and
order in abeyance for two weeks. However, it is made clear
that during this period, the State of Maharashtra shall not
issue any appointment order as regards Members of the State
Commission and President and Members of the District
Commission, unless otherwise directed by the Hon'ble
Supreme Court of India.
(ANIL S. KILOR, J) (SUNIL B. SHUKRE, J)
sknair
