Jagannatha Prasad @ Reghu vs State Of Kerala
2021 Latest Caselaw 23922 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM


                                         PRESENT
                THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                            &
                     THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
                           TH
          MONDAY, THE 13        DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943

                                    WA NO. 1622 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 20153/2021 OF HIGH COURT OF KERALA DATED 30.9.2021

APPELLANT/PETITIONER:

              JAGANNATHA PRASAD @ REGHU, AGED 65 YEARS, S/O. LATE C. SAHADEVAN, C.S.
              SADANAM, NEAR KSRTC STATION, T.B. ROAD, KOTTAYAM-686 001.

              BY ADV ROY CHACKO

RESPONDENTS/RESPONDENTS:

      1       STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,
              REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
              THIRUVANANTHAPURAM-695 001.

      2       THE DISTRICT COLLECTOR, KOTTAYAM-686 001.

      3       THE DEPUTY TAHSILDAR (RR), TALUK OFFICE,
              MINI CIVIL STATION, KOTTAYAM-686 001.

      4       K. VENUGOPAL, ARACKALSREEGOKULAM, THIRUVATHUKKAL,
              KOTTAYAM WEST P.O, KOTTAYAM-686 003.

      5       SUSHEELA, W/O. K. VENUGOPAL, ARACKAL SREEGOKULAM, THIRUVATHUKKAL,
              KOTTAYAM WEST P.O, KOTTAYAM-686 003.


              SRI.K.P.HARISH, SR.G.P.

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WA NO. 1622 OF 2021
                                       :: 2 ::




                                                                 C.R.
                                    JUDGMENT

Dated this the 13th day of December 2021

SHAJI. P. CHALY, J.

The captioned appeal is preferred by the petitioner in W.P.

(C)No.20153/2021 challenging the judgment of the learned Single Judge

dated 30th September 2021 by which, the following relief sought for in

the writ petition was declined:

"Issue a writ of certiorari or any other appropriate writ, order, or direction calling for the records relating to Exhibits P10 and P15 issued by the District Consumer Redressal Commission, Kottayam and to quash the same."

2. Brief material facts for the disposal of the appeal are as follows:

Appellant was one of the opposite parties in C.C.No.1055 of 1998 on the

files of the District Consumer Dispute Redressal Forum, Kottayam. The

complaint was in respect of an agreement executed by and between the

complainant and the Managing Director of a construction company for

constructing a building having an area of 2035 sq. ft. at the rate of

Rs.250 per sq. ft. and the total cost of construction was agreed to be

Rs.5,08,732.50. According to the complainant, the complainant paid a

total sum of Rs.7,01,119/- for the said construction, and the key of the WA NO. 1622 OF 2021 :: 3 ::

house after the construction was handed over on 2.2.1998. It was the

case of the complainant that a number of defects were noticed by the

complainants in the building and there was leakage in the rooms,

dampness on the walls of the building and the materials used were not

of good quality, etc. Anyhow, the complaint was allowed by the District

Forum granting compensation to respondents 4 and 5 herein and the

decision of the Forum was affirmed in appeal by the Consumer Disputes

Redressal Commission with a modification in favour of the appellant.

The appellant and the party respondents challenged the decision of the

State Commission before the National Consumer Disputes Redressal

Commission and as per Ext.P1 order, the National Commission upheld

the decision of the Forum and the State Commission with a modification

in favour of respondents 4 and 5. Thereupon, the complainants

instituted proceedings before the Forum for enforcement of the

decision of the Forum with the modification made by the National

Commission and the said proceedings are pending consideration. In the

meanwhile, at the instance of respondents 4 and 5 i.e., the

complainants, the Forum issued a notice to the appellant directing him

to show cause why penalty in terms of Section 27 of the Consumer WA NO. 1622 OF 2021 :: 4 ::

Protection Act, 1986 shall not be imposed on the appellant, evident

from Ext.P10. It is thus, basically challenging Ext.P10, the writ petition

was filed. Ext.P15 is the order sheet of the Forum in E.A.No.214/2018

dated 8.7.2021 whereby, notice was issued to the respondents in the

Execution Application under Section 27 of the Consumer Protection Act,

1986 and the matter was adjourned to 25.8.2021. The paramount

contention advanced by the appellant before the writ court was that in

the light of Sub Section 3 of Section 25 of the Act, 1986, the non

compliance that is alleged is an order of the National Commission and

therefore, proceedings under Section 27 of the Act, 1986 can be initiated

only by the National Commission. Yet another contention was that in

terms of Sub Rule 2 of Rule 15A of the Consumer Protection Rules, 1987

(Rules 1987), Ext.P1 order ought to have been signed either by the

President or the senior most member of the National Commission, and

the members of the National Commission, who conducted the

proceedings and insofar as Ext.P1 order of the National Commission is

not signed either by the President or the Senior most member of the

Commission, the proceedings initiated under Section 27 of Act, 1986 is

without jurisdiction. The learned Single Judge after appreciating the WA NO. 1622 OF 2021 :: 5 ::

scope of Sections 25 and 27 of Act, 1986 and Rule 15A of Rules 1987 has

dismissed the petition holding that a reading of the provisions would

show that the contentions raised by the appellant has no legal basis and

therefore, the appellant was not entitled to get any relief. It is thus,

challenging the legality and correctness of the judgment of the learned

Single Judge, the appeal is preferred.

3. We have heard Sri.Roy Chacko appeared for the appellant,

Sri.K.P.Harish, learned Senior Government Pleader for respondents 1 to

3 i.e., the State and its officials and perused the pleadings and materials

on record.

4. The sole question to be considered is whether any manner of

interference is required to the judgment of the learned Single Judge.

The paramount contention advanced by the appellant is that the

Consumer Disputes Redressal Forum was not right and legal in issuing

Ext.P10 show cause notice in E.A.19/2016 in C.C.1055/1998 under

Section 27 of the Act 1986 asking the appellant to show cause why

action shall not be initiated against the appellant in the Execution

Application. The case advanced is that the order passed by the District

Forum was modified by the National Commission as per Ext.P1 common WA NO. 1622 OF 2021 :: 6 ::

order dated 20.10.2015 in R.P.No.107/2011 and 1870/2011, and

therefore, going by the provisions of Section 27 only the National

Commission is vested with powers to initiate the proceedings under

Section 27. In order to understand the real and true implication of

Section 27, a reference to Section 25 of Act, 1986 would be relevant,

which is extracted hereunder:

"Section 25 in the Consumer Protection Act, 1986:

25. Enforcement of orders of the District Forum, the State Commission or the National Commission.--

(1) Where an interim order made under this Act, is not complied with, the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached. (2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non- compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, 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 application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.]"

5. Therefore, on a reading of Section 25(3), it is clear that it deals

with the primary order passed either by the District Forum or the State WA NO. 1622 OF 2021 :: 7 ::

Commission or the National Commission, and that is why Sub Section 3 is

couched in such a manner so as to contain the orders passed by the three

different bodies in their jurisdictional hierarchy. This is because as per

the Act 1986 the District Forum, the State Commission as well as the

National Commission have original jurisdiction to entertain and adjudicate

complaints in accordance with the pecuniary jurisdiction conferred on the

said authorities under the Act 1986, and amended from time to time. Now

bearing in mind the said legal principle, we proceed to consider Section 27

of Act 1986, which reads thus:

Section 27 in the Consumer Protection Act, 1986:

27. Penalties.-(1) Where a trader or a person against whom a complaint is made [or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person 96 [or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:

[xxxx]

[(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973.

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be.] WA NO. 1622 OF 2021 :: 8 ::

6. On an analysis of the said provisions also, it is clear that the

three different bodies are separately and individually identified in the

matter of exercising their jurisdiction, paraphrasing or adding a rider,

"as the case may be", to denote significantly and with precision the

primary authority which passed the order, and competent to take

action in accordance with the powers conferred thereunder. Thus to

say, merely because an order passed by a primary authority is modified

by an appellate or revisional authority one cannot insist that due to the

modification so made the order is to be implemented by the final

authority which modified the order of the primary authority or the first

appellate authority. To put it otherwise, Sections 25 and 27 deal with

the execution of the orders passed by the appropriate forum/

commission on the basis of its primary order. This is a case where the

primary order was passed by the District Forum and apparently some

modification was made by the State Commission to the disadvantage of

the complainants also, and it was aggrieved by the same, both parties

preferred revision before the National Commission, and the National

Commission as is evident from Ext.P1 order has modified the orders of

the District Forum as well as the State Commission to the advantage of WA NO. 1622 OF 2021 :: 9 ::

the complainants. Ultimately, it is that order modified and passed by

the National Commission is to be executed by the District Forum which

passed the primary order. Even though arguments were advanced by

learned counsel for the appellant that the recitals contained in Sections

25 and 27 would establish that since the order is modified by the

National Commission, only the National Commission is vested with

powers to issue certificate to the appropriate statutory authority as per

the provisions of sub section 2 of Section 27, we are unable to agree

with the same and if we make an interpretation as is contended by

learned counsel for the appellant, we are of the clear opinion that we

would be doing violence to the provisions of law, and putting the

complainant into more and more difficulties, which would be quite

detrimental and hampering the intention of the Consumer Protection

Act, 1986 for speedy justice. Therefore, we are of the definite opinion

that there is no requirement for interference with the order of the

single judge in regard to the provisions of Sections 25 and 27 of the Act,

1986. The next question raised by the appellant is on the basis of Rule

15A of the Rules, 1987 which reads thus:

15A. Sitting of the National Commission and signing of orders.-

WA NO. 1622 OF 2021 :: 10 ::

(1) Every proceeding of the National Commission shall be conducted by the President or the senior most member and at least two members thereof sitting together except when a bench is constituted by the President of the National Commission with one or more members as he may deem fit. Provided that where the member or members for any reason are unable to conduct the proceedings till it is completed, the President or the senior most member, as provided in section 22D of the Act, shall conduct such proceedings from the stage at which it was last heard by the previous member.

(2) Every order made by the National Commission shall be signed by the President or the senior most member as provided in Section 22D and at least two members who conducted the proceeding and if there is any difference of opinion among themselves, the opinion of majority shall be the order of the National Commission:

Provided that where the proceeding is conducted by the President or the senior most member as provided under Section 22D and three members thereof and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and such point or points shall be decided accordingly to the opinion of the majority of the National Commission.

7. On a deep seated survey of Section 15A(1), it is clear that every

proceeding of the National Commission shall be conducted by the

President, or the Senior most member, and at least two members

thereof sitting together except under the circumstances where, a bench

is constituted by the President of the National Commission with one or

more members as he may deem fit. On a bare and simple reading of Sub

Rule (1) of Rule 15A, it is clear that the President or the senior most WA NO. 1622 OF 2021 :: 11 ::

member is entitled to conduct proceedings of the National Commission

in accordance with the statutory prescription as above. However, the

members are not entitled to sit single and conduct the proceedings and

that is why, it is clearly specified that the proceedings shall be

conducted at least by two members thereof sitting together. We are

unable to understand how the appellant can say that since the

proceedings are to be conducted by the President or senior most

member the two members are not empowered to sit together and

conduct the proceedings. It is equally fallacious to contend that even if

an order is passed by the two members sitting together such an order

needs to be signed by the President or the Senior most member. We

could not locate any such requirement in Rule 15A of the Rules, 1987,

and in order to contain the argument so advanced by learned counsel

for the appellant we would have to add or employ words or phrases into

the said provision. It is well settled in law that one will have to

appreciate and interpret the provisions of a statute and the Rules as

they remain as such in the statute book and it is not for the courts to

provide interpretation by adding words or phrases to the provisions of

law. Considering the issue raised by the appellant in that regard also, WA NO. 1622 OF 2021 :: 12 ::

we do not find any reason to interfere with the judgment of the learned

Single Judge.

8. Above all, a Division Bench of this Court in Jose P.K. v. Aby.M.S.

and others 2014 KHC 423 = 2014 (3) KLT 333 in regard to the composition

of State Commission by interpreting the provisions with regard to the

same and held that the adjudication by the State Commission can be

either by a single member bench or by a bench with more members and

the orders of the Commission shall be signed by those who adjudicated

the proceedings. We are also unable to agree with the contention

advanced by the learned counsel for the appellant that even if the

President of the National Commission or a senior member was not a

party to the bench they should sign the order. It is well settled in law

that an order or the judgment would be signed only by the author or

the authors of the order or judgment, and nobody can be compelled to

sign an order passed by a judicial forum or a statutory authority

without being a consenting party to an adjudication of the litigation.

9. Above all these aspects, if in any case the order passed by the

National Commission has got any legal infirmity as is contended above,

a court executing a decree or a writ court cannot be required to WA NO. 1622 OF 2021 :: 13 ::

adjudicate such an issue but the appellant ought to have worked out his

remedy to correct the alleged error in accordance with law and as

provided as per Section 22(2) of the Act 1986. Therefore, there is no

justification for the appellant to deviate from the track provided under

the Act, 1986 and thus making an attempt to challenge the order of the

National Commission collaterally by resorting to Article 226 of the

Constitution of India.

Considering all the above facts and circumstances, we have no

hesitation to hold that the appeal lacks merit and the appellant could

not establish any jurisdictional error or other legal infirmities justifying

our interference in an intra court appeal filed under Section 5 of the

Kerala High Court Act, 1958. Needless to say, the appeal fails and

accordingly, it is dismissed.

sd/-

S.MANIKUMAR CHIEF JUSTICE

sd/-

SHAJI P. CHALY JUDGE jes