Delhi High Court
Yashbeer Singh vs Gnct Of Delhi And Anr on 13 February, 2012
Author: Vipin Sanghi
18 & 19.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 13.02.2012
% W.P.(C) 153/2011 & C.M. No. 289/2011 (for stay)
YASHBEER SINGH ..... Petitioner
Through: Mr. Ashish Mohan & Mr. Rohit
Gandhi, Advocates.
versus
GNCT OF DELHI AND ANR ..... Respondents
Through: Mr. N. Waziri & Ms. Neha Kapoor,
Advocates.
AND
W.P.(C) 305/2011 & C.M. No. 558/2011 (for stay)
SUBHASH CHANDER JAIN ..... Petitioner
Through: Mr. N.N. Aggarwal & Mr. Rohit
Gandhi, Advocates.
versus
GNCT OF DELHI AND ORS ..... Respondents
Through: Mr. N. Waziri & Ms. Neha Kapoor,
Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (Oral)
1. By these petitions preferred under Articles 226 & 227 of the
Constitution of India, the petitioners assail the advertisement dated
21.12.2010 issued by respondent No. 2/GNCTD for the purpose of
inviting applications from candidates for appointment as whole-time
members of the State Consumer Disputes Redressal Commission in
Delhi (State Commission), established under the Consumer Protection
Act, 1986 (The Act). The advertisement relates to two posts, out of
which one post has been reserved for "Member (Female - non-
judicial)" and the second post has been reserved for "Member
(judicial)", for the purpose of creation of a second bench of the State
Commission.
2. To appreciate the submissions of the parties and to examine the
issues raised by the petitioners, it is necessary to set out Section 16 of
the Consumer Protection Act, 1986, which reads as follows:
"16. Composition of the State Commission. (1) Each
State Commission shall consist of--
(a) a person who is or has been a Judge of a
High Court, appointed by the State
Government, who shall be its President:
[Provided that no appointment under this clause
shall be made except after consultation with the
Chief Justice of the High Court;]
[(b) not less than two, and not more than such
number of members, as may be prescribed,
and one of whom shall be a woman, who
shall have the following qualifications,
namely:-
(i) be not less than thirty-five years of age;
(ii) possess a bachelor's degree from a
recognized university; and
(iii) be persons of ability, integrity and
standing, and have adequate knowledge
and experience of at least ten years in
dealing with problems relating to
economics, law, commerce, accountancy,
industry, public affairs or administration:
Provided that not more than fifty per cent of
the members shall be from amongst persons
having a judicial background.
Explanation.- For the purposes of this
clause, the expression "persons having a
judicial background" shall mean persons
having knowledge and experience for at
least a period of ten years as presiding
officer at the district level court or any
tribunal at equivalent level:
Provided further that a person shall be disqualified
for appointment as a member, if he-
(a) has been convicted and sentenced to
imprisonment for an offence which, in the
opinion of the State Government, involves
moral turpitude; or
(b) is an undischarged insolvent; or
(c) is of unsound mind and stands so declared
by a competent court; or
(d) has been removed or dismissed from the
service of the Government or a body
corporate owned or controlled by the
Government; or
(e) has, in the opinion of the State Government,
such financial or other interest, as is likely
to affect prejudicially the discharge by him
of his functions as a member; or
(f) has such other disqualifications as may be
prescribed by the State Government.]
[(1A) Every appointment under sub-section (1) shall be
made by the State Government on the recommendation of
a Selection Committee consisting of the following
members, namely:-
(i) President of the State Commission--Chairman;
(ii) Secretary of the Law Department of the State--
Member;
(iii) Secretary, incharge of the Department dealing with
consumer affairs in the State-- Member.
Provided that where the President of the State
Commission is, by reason of absence or otherwise, unable
to act as Chairman of the Selection Committee, the State
Government may refer the matter to the Chief Justice of
the High Court for nominating a sitting Judge of that High
Court to act as Chairman.
(1B) (i) The jurisdiction, powers and authority of
the State Commission may be exercised by Benches
thereof.
(ii) A Bench may be constituted by the
President with one or more members as the
President may deem fit.
(iii) If the members of a Bench differ in opinion
on any point, the points shall be decided according
to the opinion of the majority, if there is a majority,
but if the members are equally divided, they shall
state the point or points on which they differ, and
make a reference to the President who shall either
hear the point or points himself or refer the case for
hearing on such point or points by one or more of
the other members and such point or points shall be
decided according to the opinion of the majority of
the members who have heard the case, including
those who first heard it.]
(2) The salary or honorarium and other allowances payable
to, and the other terms and conditions of service of, the
members of the State Commission shall be such as may be
prescribed by the State Government.
Provided that appointment of a member on whole-
time basis shall be made by the State Government on the
recommendation of the President of the State Commission
taking into consideration such factors as may be
prescribed including the work load of the State
Commission.
(3) [Every member of the State Commission shall hold
office for a term of five years or up to the age of sixty-
seven years, whichever is earlier;
Provided that a members shall be eligible for re-
appointment for another term of five years or up to the age
of sixty-seven years, whichever is earlier, subject to the
condition that he fulfils the qualifications and other
conditions for appointment mentioned in clause (b) of sub-
section (1) and such re-appointment is made on the basis
of the recommendation of the Selection Committee:
Provided further that a person appointed as a
President of the State Commission shall also be eligible for
re-appointment in the manner provided in clause (a) of
sub-section (1) of this Section:
Provided also that a member may resign his office in
writing under his hand addressed to the State Government
and on such resignation being accepted, his office shall
become vacant and may be filled by appointment of a
person possessing any of the qualifications mentioned in
sub-section (1) in relation to the category of the member
who is required to be appointed under the provisions of
sub-section (1A) in place of the person who has resigned.
(4) Notwithstanding anything contained in sub- section (3),
a person appointed as the President or as a member before
the commencement of the Consumer Protection
(Amendment) Act, 2002, shall continue to hold such office
as President or member, as the case may be, till the
completion of his term]." (emphasis supplied)
3. The submission of learned counsel for the petitioners is that the
present constitution of the State Commission is as follows:
"
S.No. Name Post
1. Mr. B.R. Zaidi President
2. Mrs. Salma Noor Non-Judicial Member
3. Mrs. Kanwal Inder Judicial Member
"
4. Learned counsel submits that at present, apart from the
President, who is a retired High Court Judge, the existing two members
are females. He, therefore, submits that the respondent could not
have reserved any post for a Member (Female - non-judicial), since the
requirement of Section 16(1)(b), which provides that one of the
members of the State Commission should be a woman, already stands
satisfied. I may note that the respondent No. 1/UOI supports this stand
of the petitioner in relation to the reservation of one post for Member
(Female - non-judicial).
5. The submission of respondent No. 2 is that the two female
members in the existing strength of the State Commission have been
appointed, not on account of their being females, but as Non-judicial
member (Mrs. Salma Noor) and Judicial member (Mrs. Kanwal Inder).
6. Mrs. Kanwal Inder, the judicial member already stands retired.
Presently, the State Commission is left with only two incumbents, i.e.
the President Mr. B.R. Zaidi and a non-judicial member Mrs. Salma
Noor. It is argued that the advertisement in question is to fill up one
reserved vacancy for Member (Female - non-judicial), as the earlier
appointee viz. Mrs. Salma Noor was not appointed on account of her
being a female.
7. Insofar as the advertisement for the second vacancy is
concerned, namely that of Member (judicial), the submission of learned
counsel for the petitioners is that Section 16 does not purport to
reserve any vacancy for a judicial member. On the contrary, it seeks
to limit the appointment of "persons having judicial background" to not
more than 50% while making appointment of members who meet the
eligibility criteria set out in Section 16(1)(b) (i), (ii) & (iii). It is argued
that the reservation made for Member (judicial) is contrary to Section
16 of the Act.
8. Learned counsel for the petitioners places reliance on various
decisions on the interpretation of statutes to submit that normal
function of a proviso is to except something out of the enactment, or to
qualify something enacted therein which, but for the proviso, would be
within the purview of the enactment. The proper function of a proviso
is to except and to deal with a case which would otherwise fall within
the general language of the main enactment and its effect is confined
to that case. It is a qualification of the preceding enactment which is
expressed in terms too general, to be quite accurate. As a general
rule, proviso is added to an enactment to qualify or create an
exception to what is in the enactment and ordinarily, a proviso is not
interpreted as stating a general rule. (See Nagar Palika Nigam Vs.
Krishi Upaj Mandi Samiti & Others, AIR 2009 SC 187)
9. Reliance is also placed on Nasiruddin and Others Vs. Sita
Ram Agarwal, (2003) 2 SCC 577, to submit that the jurisdiction to
interpret a statute can be invoked when the same is ambiguous. The
Court cannot interpret a legislation so as to enlarge the scope of the
legislation, when the language of the provision is plain and
unambiguous. It cannot add or subtract words to a statute or read
something into it which is not there. It cannot re-write or re-cast
legislation. It is submitted that the proviso to Section 16(1)(b) is
worded in a negative way to prescribe that not more than 50% of the
members shall be persons having a judicial background. Negative
words are prohibitive and are ordinarily used as a legislative device to
make a statute imperative (see M. Pentiah and Others Vs.
Muddala Veeramallappa and Others, AIR 1961 SC 1107). It is
submitted that when the statute provides that not more than 50% of
the members shall be persons having a judicial background, it cannot
mean that, necessarily, 50% of the members should be persons having
a judicial background.
10. Learned counsel for the petitioners submits that the President of
the State Commission is also a "member". Thus considered, the
appointment of another judicial member would breach the restriction
contained in proviso to Section 16(1)(b), as the number of judicial
members, including the President, would exceed 50% of the total
strength of the State Commission, as, apart from the President and
Mrs. Kanwal Inder, one more member would be a person having a
judicial background - thus raising their number to three, whereas, the
number of members not having a judicial background shall be only
two, even if another member (Non-judicial) is appointed.
11. In support of this submission, learned counsel for the petitioners
place reliance on the definition of the expression „member‟ contained
in Section 2(jj) of the Act, and also on the decision of the Kerala High
Court in K. Kanakachandran Vs. State of Kerala and Others, AIR
2007 Kerala 155. He also places reliance on the decision of the
Supreme Court in Central Bank of India Vs. Ravindra and Others,
AIR 2001 SC 3095. In this case, the Supreme Court has observed that
"ordinarily, a word of expression used at several places in one
enactment should be assigned the same meaning so as to avoid "a
head-on clash" between two meanings assigned to the same word or
expression occurring at two places in the same enactment. It should
not be lightly assumed that "Parliament had given with one hand what
it took away with the other" [See- Principles of statutory Interpretation,
Justice G.P. Singh, 7th Edition 1999, p.113]. That construction is to be
rejected which will introduce uncertainty, friction or confusion into the
working of the system (ibid, p. 119). While embarking upon
interpretation of words and expressions used in a Statute it is possible
to find a situation when the same word or expression may have
somewhat different meaning at different places depending on the
subject or context. This is however an exception which can be
resorted to only in the event of repugnancy in the subject or context
being spelled out. It has been the consistent view of Supreme Court
that when the Legislature used same word or expression in different
parts of the same section or statute, there is a presumption that the
word is used in the same sense throughout, (ibid, p.263). More correct
statement of the rule is, as held by House of Lords in Farrell V.
Alexander, (1976) 2 All ER 721, 736, "where the draftsman uses the
same word or phrase in similar contexts, he must be presumed to
intend it in each place to bear the same meaning"."
12. Having heard learned counsel for the parties, considered the
rival submission in the light of the judgments cited before me and after
giving my due consideration to the provisions of the Act, I am of the
considered view that so far as the advertisement of one post for
Member (Female - non-judicial) is concerned, the same appears to be
contrary to the provisions of Section 16(1)(b) of the Act. However, the
advertisement of one post for Member (judicial) appears to be in order,
and in consonance with the provisions of the Act.
13. A perusal of Section 16 of the Act clearly shows that there is no
reservation of posts, either in favour of a woman or a person having
judicial background, for being appointed as a Member of the State
Commission. All that Section 16(1)(b) provides is that, of the members
appointed to a State Commission, at least one shall be a woman. It
does not mean that a slot or a post of a member of the State
Commission can be labled or classified as that reserved for a Member
(Female). What Section 16(1)(b) provides is that while making
appointment of members to the State Commission, if none of the
existing members is a woman, the appointing authority shall give
priority to a candidate who is a female, who otherwise fulfills the
criteria set out in Section 16(1)(b) (i), (ii) & (iii) of the Act.
14. For example, if only one post of a member of the State
Commission is required to be filled, and none of the existing members
is a woman, then the respondent No. 2 would be justified in advertising
the post for a member, while restricting the applicants to female
candidates. It would serve no purpose to call for applications even
from male candidates, as the necessity is to appoint a woman
member, and the appointment of a male member would, in that
eventuality, be in breach of Section 16(1)(b) of the Act.
15. The Act also does not restrict the number of women appointees
as members of the State Commission. There could be more than one
women members of the State Commission, who may be appointed on
their own merit, but the statutory requirement is that at least one of
the members of the State Commission should be a woman. That
woman member may, or may not, be a person having a judicial
background, and may belong to any of the fields, i.e. economics, law,
commerce, accountancy, industry, public affairs or administration with
adequate knowledge and experience of at least 10 years.
16. The requirement of having at least one woman member having
been fulfilled with the appointment of Mrs. Salma Noor, who still
continues to be Member (Mrs. Kanwal Inder having already retired), the
advertisement of one of the posts of member, with reservation for
Female - non-judicial candidate, appears to be in the teeth of Section
16(1)(b) of the Act. As aforesaid, the respondent No. 2 cannot shut out
applications by other aspirants, who may otherwise satisfy the
requirement of Section 16(1)(b) of the Act, and who may, or may not,
be women. The respondent No. 2 is not precluded from appointing a
woman from amongst the applicants, but the said appointment should
be based entirely on the applicants‟ merit and should not be swayed
by the consideration that she is a woman. The understanding of
respondent No. 2 that the earlier appointee, namely Mrs. Salma Noor
was not appointed on account of her being a woman and, therefore, a
post of Member is still reserved for a woman, is clearly not in
consonance with the language and spirit of the Act.
17. So far as the advertisement of one post for a Member (judicial) is
concerned, the same stands on a very different footing. The Consumer
Courts constituted under the Act provide an additional and alternate
forum to consumers to seek redressal of their grievance in relation to
the goods & services that they may procure for consideration and for
their personal use or consumption. The Consumer Courts which have a
3-tier hierarchy, are required to function in compliance of the principles
of natural justice. They are vested with the same powers as a Civil
Court while trying a suit in respect of various matters, such as
summoning and enforcing the attendance of any defendant or witness,
examination of the witnesses on oath; the discovery and production of
any document or other material object producible as evidence; the
reception of evidence on affidavits; the requisitioning of the report of
the concerned analysis or test from the appropriate laboratory or from
any other relevant source; issuing of any commission for the
examination of any witness, and; such other matter as may be
prescribed.
18. Proceedings before the Consumer Courts are deemed to be
judicial proceedings within the meaning of Sections 193 and 228 of the
I.P.C. and they are deemed to be Civil Courts for the purpose of Section
195, and Chapter XXVI of the Cr.P.C. The provision of Order I, Rule 8 of
the First Schedule to the C.P.C., with modifications, apply to
proceedings before the Consumer Courts.
19. The legal issues which arise before the Consumer Courts for
determination, experience has shown, can attain high degree of
complexity. The orders passed by the District Forum are appealable
before the State Commission. Similarly, the orders passed by the State
Commission are appealable before the National Commission, and the
orders of the National Commission are appealable before the Supreme
Court directly.
20. The orders of the District Forum, State Commission and the
National Commission are statutorily enforceable on the pain of
attachment of the property of the person, who fails to comply with
such orders and penalties in the form of imprisonment are also
prescribed for failure to comply with the orders of the District Forum,
the State Commission or the National Commission. Whereas the
District Forum is statutorily mandated to be headed by a person who
is, or has been or is qualified to be, a District Judge as its President, the
State Commission necessarily has to be headed by a person, who is or
has been a Judge of a High Court as its President, and the National
Commission is headed by a person, who is or has been a Judge of the
Supreme Court as its President. The Consumer Courts have jurisdiction
to rule on the civil rights of the parties in respect of the subject matters
which fall within their jurisdiction, and their orders have civil
consequences. It is, therefore, abundantly clear that the Consumer
Courts discharge a part of the judicial function of the State.
21. It is precisely for this reason that the Presidents of the State
Commission and the National Commission necessarily have to be
sitting or retired High Court Judge, or sitting or retired Supreme Court
Judge respectively. Even in respect of the President of the District
Forum, he has to be a person who is, or has been, or is qualified to be
a District Judge. Being judicial organizations, ordinarily the choice
would be to induct persons having judicial background as members,
meaning - persons having knowledge and experience as Presiding
Officer at the district level Court or a Tribunal at equivalent level.
However, to make the Consumer Courts more consumer friendly, so
that they are more sensitive to the needs, the plight and the difficulties
of the consumers, and considering the vast scope of their jurisdiction,
the Act provides that not more than 50% of the members shall be from
amongst the persons having a judicial background, and atleast one of
them shall be a woman. This is to ensure that at least 50% of the
members are those who are appointed, not on account of their having
a judicial background, but on account of their having adequate
knowledge and experience in dealing with problems relating to
economics, law, commerce, accountancy, industry, public affairs &
administration
22. In S.P. Sampath Kumar v. Union of India & Others, (1987) 1
SCC 124, the Supreme Court was examining the validity of the
Administrative Tribunals Act, 1985, whereby the jurisdiction of the High
Court under Articles 226 and 227 of the Constitution of India, of judicial
review in service matters was excluded. The Administrative Tribunals
Act was enacted under Article 323A(1) of the Constitution of India,
introduced by the Constitution (42nd Amendment) Act, 1976. Though
the examination of the provisions of the Administrative Tribunals Act
was in the context of the exclusion of the jurisdiction of the High Court
under Articles 226 and 227 of the Constitution of India, so as to
examine whether the Administrative Tribunals were an effective
alternative institutional mechanism for judicial review, the Supreme
Court dwelt upon the necessity of the Administrative Tribunal
necessarily consisting of a judicial member.
23. Chief Justice Bhagwati, in his concurrent judgment, observed as
follows:
"5. It is necessary to bear in mind that service matters
which are removed from the jurisdiction of the High Court
under Articles 226 and 227 of the Constitution and
entrusted to the Administrative Tribunal set up under the
impugned Act for adjudication involve questions of
interpretation and applicability of Articles 14, 15, 16 and
311 in quite a large number of cases. These questions
require for their determination not only judicial approach
but also knowledge and expertise in this particular branch
of constitutional law. It is necessary that those who
adjudicate upon these questions should have same
modicum of legal training and judicial experience because
we find that some of these questions are so difficult and
complex that they baffle the minds of even trained Judges
in the High Courts and the Supreme Court. That is the
reason why at the time of the preliminary hearing of these
writ petitions we insisted that every bench of the
Administrative Tribunal should consist of one judicial
member and one administrative member and there should
be no preponderance of administrative members on any
bench. Of course, the presence of the administrative
member would provide input of practical experience in the
functioning of the services and add to the efficiency of the
Administrative Tribunal but the legal input would
undeniably be more important and sacrificing the legal
input or not giving it sufficient weightage would definitely
impair the efficacy and effectiveness of the Administrative
Tribunal as compared to the High Court. .... ... ..."
24. In R.K. Jain v. Union of India, (1993) 4 SCC 119, the Supreme
Court relied upon its earlier decision in Krishna Sahai v. Sate of
U.P., (1990) 2 SCC 673, wherein, in relation to the constitution of the
U.P. Services Tribunal, the Supreme Court had observed that it would
be appropriate for the State of U.P. to change its manning and a
sufficient number of people qualified in law should be on the tribunal to
ensure adequate dispensation of justice and to maintain judicial
temper in the functioning of the tribunal. It also referred to Rajendra
Singh Yadav v. State of U.P., (1992) 2 SCC 763, wherein it was
observed that the Services Tribunal mostly consist of administrative
officers and the judicial element in the manning part of the tribunal is
very small. The disputes require judicial handling and the adjudication
being essentially judicial in character, it is necessary that adequate
number of judges of the appropriate level should man the Services
Tribunals. This would create appropriate temper and generate the
atmosphere suitable in an adjudicatory tribunal and the institution
would command the requisite confidence of the disputants.
25. The Supreme Court in A.P. Pollution Control Board Vs. Prof.
M.V. Nayudu (Retd.) and Others, etc., AIR 1999 SC 812, dealt with
the issue of the constitution of environmental appellate
authorities/tribunals. The Supreme Court noticed that in different
Statutes, different provisions existed with regard to the constitution of
the Appellate Authorities/Tribunals. The Supreme Court held that most
of these bodies fall short of a combination of judicial and scientific
needs The Supreme Court in paragraphs 39, 40, 41, 45, 46 & 50 held
as follows:
"39. Different statutes in our country relating to
environment provide appeals to appellate authorities. But
most of them still fall short of a combination of judicial and
scientific needs. ..... ..... ..... ..... .....
40. Good Governance is an accepted principle of
international and domestic law. It comprises of the rule of
law, effective State institutions, transparency and
accountability in public affairs, respect for human rights
and the meaningful participation of citizens - (including
scientists) - in the political processes of their countries and
in decisions affecting their lives. (Report of the Secretary
General on the work of the Organization, Official records of
the UN General Assembly, 52 session, Suppl. I (A/52/1)
(para 22)). ..... ..... ..... ..... ..... Of paramount
importance, in the establishment of environmental
Courts, Authorities and Tribunals is the need for
providing adequate Judicial and scientific inputs
rather than leave complicated disputes regarding
environmental pollution to officers drawn only from
the Executive.
41. It appears to us from what has been stated
earlier that things are not quite satisfactory and
there is an urgent need to make appropriate
amendments so as to ensure that at all times, the
appellate authorities or tribunals consist of Judicial
and also Technical personnel well versed in
environmental laws. Such defects in the constitution
of these bodies can certainly undermine the very
purpose of those legislations. We have already referred
to the extreme complexity of the scientific or technology
issues that arise in environmental matters. Nor, as pointed
out by Lord Woolf and Robert Cranworth should the
appellate bodies be restricted to Wednesbury limitations.
42. x x x x x x x x x
43. x x x x x x x x x
44. x x x x x x x x x
45. As stated earlier, the Government of India
should, in our opinion, bring about appropriate
amendments in the environmental statutes, Rules
and notification to ensure that in all environmental
Courts, Tribunals and appellate authorities there is
always a Judge of the rank of a High Court Judge or
a Supreme Court Judge, - sitting or retired - and
Scientist or group of Scientists of high ranking and
experience so as to help a proper and fair
adjudication of disputes relating to environment and
pollution.
46. There is also an immediate need that in all the
States and Union Territories, the appellate
authorities under section 28 of the Water
(Prevention of Pollution) Act, 1974 and section 31 of
the Air (Prevention of Pollution) Act, 1981 or other
rules there is always a Judge of the High Court,
sitting or retired and a Scientist or group of
Scientists of high ranking and experience, to help in
the adjudication of disputes relating to environment
and pollution. An amendment to existing notifications
under these Acts can be made for the present.
47. x x x x x x x x x
48. x x x x x x x x x
49. x x x x x x x x x
50. As stated above and we reiterate that there is
need to see that in the appellate authority under
the Water (Prevention of Pollution) Act, 1974, the
Air (Prevention of Pollution) Act, and the appellate
authority under Rule 12 of the Hazardous Wastes
(Management & Handling) Rules, 1989, under the
notification issued under section 3(3) of the
Environment (Protection) Act, 1986 for National
Capital Territory and under section 10 of the
National Environment Tribunal Act, 1995 and other
appellate bodies, there are invariably Judicial and
Technical Members included. This Court has also
observed in M.C.Mehta vs. Union of India and Shriram
Foods & Fertilizers Case [ 1986 (2) SCC 176] (at 262) that
there should be a right of regular appeal to the Supreme
Court, i.e. an appeal incorporated in the relevant statutes.
This is a matter for the Governments concerned to
consider urgently, by appropriate legislation whether
plenary or subordinate or by amending the notifications."
(emphasis supplied)
26. I may also refer to the Division Bench judgment of this Court in
Rajeshwar Kumar Gupta v. Lt. Governor & Others in W.P(C)
7718/2007 . In this case, the issue raised in the petition was whether
the constitution of the Delhi Cooperative Tribunal is constitutional,
legal and as per the Rules or not. Rule 144(2) of the Delhi Cooperative
Societies Rules 1973 prescribes that the presiding officer or the
president of the tribunal shall be the person who has been a judge of
any High Court, or a retired District Judge or a person who has for not
less than ten years been an advocate or a pleader, or who has held the
office of the Registrar, Joint Registrar or Deputy Registrar for not less
than continuous period of three years at a time, or has not less than
five years judicial experience at his credit. The Lt. Governor was
empowered to relax the qualification in case of any person otherwise
qualified in his opinion. The Division Bench placed reliance on the
aforesaid decision in the case of S.P. Sampath Kumar (supra), and
set aside the notification dated 26.05.2006, whereby the Delhi
Cooperative Tribunal was constituted, and directed the constitution of
a proper tribunal of which the Chairman should be a judicial member,
preferably a retired District Judge.
27. The reasoning adopted by the Supreme Court in Sampath
Kumar (supra), R.K. Jain (supra), A.P. Pollution Control Board
(supra) and Rajeshwar Kumar Gupta (supra), in my view, applies
with the same force to Consumer Courts. The Consumer Courts
adjudicate civil rights arising out of contractual matters relating to sale
of goods and provision of services to a consumer. Complex laws
relating to banking, financing, insurance etc. fall within the jurisdiction
of the Consumer Courts. Apart from these, the Contract Act, the sale
of Goods Act etc which too require legal background and
understanding for proper appreciation also routinely fall for
consideration by the Consumer Courts. In the case of Consumer
Courts as well, the legal input would undeniably be equally important
as the inputs that the other members may provide and sacrificing the
legal input and not giving its sufficient weightage would definitely
impair the efficacy and effectiveness of the Consumer Courts. Since
the Consumer Courts discharge judicial function, and the proceedings
are judicial proceedings, wherein advocates also appear and argue
case and make legal submissions, the presence of a person having
judicial background would certainly further the cause of efficacy,
consistency and quality in the decision making process of the
Consumer Courts and would help in maintaining judicial temper. The
Consumer Courts and its benches, if there are more than one, should
consist of at least one person having judicial background, unless it is
presided by the President himself.
28. The aforesaid being the position, if the Government decides to
specifically appoint a person having judicial background so as to
facilitate the creation of a bench of the State Commission and,
therefore, advertises the post by inviting applications from persons
having a judicial background, the petitioners can have no grievance,
particularly when the percentage of the persons having judicial
background would not exceed 50%, even after the filling up of the
advertised post.
29. The State Government is entitled to fill the vacancy of a Member
from amongst the persons having judicial background if that is the
need of the hour. There is no purpose of inviting applications from the
general public under Section 16(1)(b) and then making an appointment
of a person having judicial background from amongst the applicants.
Unless a specific advertisement is issued to make appointment of a
person having judicial background, it is quite likely that persons with
such credentials may not even apply. At the same time, it would be a
wasted exercise for those who do not have such background, to
require them to submit their applications, if the need is to appoint a
person having judicial background.
30. As aforesaid, Mrs. Kanwal Inder has already retired and even if
the President of the State Commission is considered as a "member" for
the purpose of Section 16(1)(b) of the Act, the appointment of another
person having a judicial background would not breach the upper limit
of 50% of posts of members of the State Commission. Since the tenure
of the persons of the State Commission is provided for in Section 16(3),
the State Government would in advance, be aware of the date of
expiry of the term of each of the members, and would do well to
advertise the posts in advance to fill up the impending vacancies, so
that the work of the Consumer Courts do not suffer due to non-filling
up of vacancies.
31. Even if Mrs. Kanwal Inder had not retired, and the respondents
were to appoint another person having judicial background, to my
mind, there would be no breach of Section 16(1)(b) of the Act. Section
16(1) clearly draws a distinction between a "President" who is, or has
been a Judge of a High Court, and a "member" appointed under
Section 16(1)(b). In my view, the expression "member" as used in
Section 16(1)(b) as well as the proviso to Section 16(1)(b) does not
include the President, even though the term "member" has been
defined in Section 2(jj) to include the President of the National
Commission, or a State Commission, or a District Forum, as the case
may be. The definitions in Section 2 begin with the words "In this Act
unless the context otherwise requires, ..... ..... .....". (emphasis
supplied) Therefore, the definitions contained in Section 2 may not be
relevant, if the context in which the defined expression is used, is
different. The "President" of the State Commission is dealt with in
clause (a) of Section 16(1), whereas the "member(s)" are dealt with in
clause(b). The President stands on a different-rather a higher footing,
than the members of the State Commission. His position, his terms of
engagement, as well as the salary paid to him are different from the
position, the terms of engagement and the salary paid to the
members. The president of the State Commission is not merely the
first amongst equals. His position is clearly on a higher pedestal,
though he may sit in a bench with the other members to discharge his
judicial functions. The context in which the expression "member" has
been used in Section 16 of the Act requires that the expression
"President" be not read or understood to mean a "member".
32. In my view, the decision in Central Bank of India (supra)
supports the view that I am taking. The Supreme Court recognized
that while embarking upon interpretation of the words used in a
Statute, it is possible to find a situation when the same word or
expression may have somewhat different meaning at different places,
depending on the subject or context. This is an exception to the
general rule that when the legislature has used the same word or
expression in different parts of the same Section or Statutes, there is a
presumption that the word is used in the same sense throughout. In
my view, the present case clearly falls in the exception, rather than
under the aforesaid rule.
33. It is clear to me on a plain reading of Section 16 that the State
Commission consists of at least three persons, i.e. the President
appointed under Section 16(1)(a), and not less than two members
appointed under Section 16(1)(b). If the submission of learned counsel
for the petitioners that the President is also a "member" for the
purpose of Section 16(1)(b) were to be accepted, it would mean that
the State Commission could consist of two members, i.e. one President
and a second member appointed under Section 16(1)(b). This scheme
of things would not explain Section 16(1B)(iii) which, inter alia,
provides that if the members of a Bench differ in opinion on any point,
the points shall be decided according to the opinion of the majority, if
there is a majority, but if the members are equally divided, they shall
state the point or points on which they differ, and make a reference to
the President who shall either hear the point or points himself, or refer
the case for hearing on such point or points by one or more of the
other members, and such point or points shall be decided according to
the opinion of the majority of the members, who have heard the case,
including those who first heard it.
34. Without, at least, three incumbents in the State Commission
(including the President), there is no question of a "majority" view or
opinion. In that case, the deadlock created on account of difference of
opinion between the President and the other member would never get
resolved. It is, therefore, clear that the State Commission has to
necessarily consist of at least three persons, i.e. the President and two
other members. It is obvious that the expression "member/members"
used in Section 16(1)(b) does not include the President.
35. Viewed thus, even if Mrs. Kanwal Inder had not retired and the
appointments in terms of the advertisement in question had been
made (which have not been made on account of pendency of these
proceedings), the number of members having judicial background
would have remained at two, and the number of members not having
judicial background, but appointed under Section 16(1)(b), would also
have remained at two. In that eventuality as well, the proviso to
Section 16(1)(b) would not have been breached.
36. Reliance placed by the learned counsel for the petitioners on
various decisions, as aforesaid, on the aspect of interpretation of
statutes have no relevance in the facts of the case and also in view of
the aforesaid discussion.
37. The decision in Nasiruddin and Others (supra) does not
advance the case of the petitioners in the light of the aforesaid
discussion. Similarly, the decision in M. Pentiah and Others (supra)
also does not advance the petitioners‟ case, since the upper limit of
50% for appointment of members of the State Commission having a
judicial background has not been breached. The decision in Nagar
Palika Nigam (supra) also has no relevance since the restrictions
contained in the proviso to Section 16(1)(b) have not been breached
by the respondents.
38. The decision of the Kerala High Court in K. Kanakachandran
(supra) also does not advance the petitioners‟ case. It is clear from
reading of paras 5 & 6 of the said judgment that the Court apart from
recording the submission of the petitioner had not expressed a definite
view on the issue whether the President was a "member" in the
context of Section 16(1)(b) of the Act, as the said issue did not arise for
determination in the facts of that case. This is clear from a reading of
para 6, the relevant part of which reads as follows:
"6. Even if the contention of the petitioner that the
members mentioned therein does not include the President
is accepted, I feel that the same will also make no
difference on the outcome of the case. Among the 4
members, if one is a member with a judicial background,
the representation will be 25%. Twenty five percent is
definitely a percentage which is not more than 50% as
contemplated by the proviso to Section 16(1)(b) of the Act.
But, the learned counsel for the petitioner submits that the
said proviso should be read to mean that the persons with
judicial background should be at leat 50%."
39. For all the aforesaid reasons, I partially allow these petitions and
hold that the advertisement in question issued by respondent No. 2 for
filling the post of Member (Female - non-judicial) is contrary to the
provisions of the Act. However, the said advertisement to fill the post
of a Member (judicial), i.e., to appoint a person having judicial
background is in accord with Section 16 of the Act and is, therefore,
upheld.
40. The petitions stand disposed of in the aforesaid terms leaving
the parties to bear their own costs.
VIPIN SANGHI, J
FEBRUARY 13, 2012
„BSR‟/sr
