Kerala High Court
Jagannatha Prasad @ Reghu vs State Of Kerala on 30 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 30TH DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943
WP(C) NO. 20153 OF 2021
PETITIONERS:
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:
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,
ARACKAL SREEGOKULAM, THIRUVATHUKKAL, KOTTAYAM WEST
P.O., KOTTAYAM-686 003.
5 SUSHEELA,
W/O.K.VENUGOPAL, ARACKAL SREEGOKULAM, THIRUVATHUKKAL,
KOTTAYAM WEST P.O., KOTTAYAM-686 003.
BY ADV.PRINCY XAVIER, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.R.
P.B.SURESH KUMAR, J.
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W.P.(C) No.20153 of 2021
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Dated this the 30th day of September, 2021
JUDGMENT
Petitioner was one of the opposite parties in a
Consumer Complaint instituted by respondents 4 and 5 before
the District Consumer Dispute Redressal Forum, Kottayam as
C.C.No.1055 of 1998. The complaint was allowed by the Forum
granting compensation to respondents 4 and 5, and the
decision of the Forum was affirmed in appeal by the State
Consumer Disputes Redressal Commission with a modification
in favour of the petitioner. The petitioner as also respondents
4 and 5 challenged the decision of the State Commission
before the National Consumer Disputes Redressal Commission,
and in terms of Ext.P1 order, the National Commission affirmed
the decisions of the Forum and the State Commission with a
modification in favour of the respondents 4 and 5. The
complainants thereupon instituted proceedings before the
Forum for enforcement of the decision of the Forum and the
said proceedings are pending. In the meanwhile, at the
instance of respondents 4 and 5, the Forum issued a notice to
the petitioner directing him to show cause why penalty in terms
of Section 27 of the Consumer Protection Act, 1986 (the Act)
shall not be imposed on him. Ext.P10 is the notice issued to
the petitioner in this regard. Ext.P10 notice is under challenge
in this proceedings on the ground that it is one issued without
jurisdiction.
2. Heard the learned counsel for the petitioner.
3. The learned counsel for the petitioner raised
two contentions, of which the first one was that in the light of
sub-section (3) of Section 25 of the Act, insofar as the order,
the non compliance of which is alleged, is an order of the
National Commission, proceedings under Section 27 of the Act
can be initiated in respect of the same only by the National
Commission. The second contention was that in terms of sub-
rule (2) of Rule 15A of the Consumer Protection Rules, 1987
(the Rules), 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 proceeding, and insofar as Ext.P1 order is not
signed either by the President or the senior-most member of
the Commission, the proceedings initiated in respect of the
same under Section 27 of the Act is without jurisdiction.
4. True, Ext.P1 order was signed only by the two
members of the National Commission who conducted the
proceeding. Rule 15A of the Rules reads thus :
15A. Sitting of the National Commission and signing of
orders. -
(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 one member or members for any
reason are unable to conduct 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 state 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 under 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 according to the
opinion of the majority of the National Commission.
Of course, as pointed out by the learned counsel for the
petitioner, it is provided in sub-rule (2) of Rule 15A that every
order made by the National Commission shall be signed by the
President or the senior-most member and at least two
members who conducted the proceeding. It is, however, seen
that sub-rule (1) of Rule 15A provides 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 when a bench is constituted by the
President with one or more members as he may deem fit. In
the light of sub-rule (1), there cannot be any dispute that the
proceeding of the National Commission can be conducted even
by one or more members, if a bench is so constituted by its
President. A conjoint reading of the provisions contained in Rule
15A of the Rules would indicate that the scheme of the Rule is
only that every order made by the National Commission shall
be signed by its members including the President who have
conducted the proceeding. It is not possible to infer from Rule
15A that it mandates that every order passed by the National
Commission shall be signed by the President or senior-most
member as well, in addition to the members who have
conducted the proceedings. Such an interpretation would be
absurd, for one cannot be expected to sign on an order not
authored by him/her. It is seen that while drafting sub-rule(2) of
Rule 15A, the legislature could not have taken note of the
second limb of sub-rule(1) conferring authority on the President
to constitute a bench with one or more members of the
National Commission, as he may deem fit, for the same was a
subsequent insertion to sub-rule(1) with effect from 5.3.2004.
There should have been a corresponding amendment to sub-
rule (2) also along with the amendment introduced to sub-rule
(1) introduced with effect from 5.3.2004 and the omission to
make the corresponding amendment led to the contention now
raised by the petitioner. Be that as it may, if the contention
advanced by the learned counsel for the petitioner is accepted,
the second limb of sub-rule (1) of Rule 15A would become
redundant. Needless to say, the contention aforesaid of the
learned counsel for the petitioner is liable to be rejected and I
do so.
5. Sections 25 and 27 of the Act read thus :
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, the 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.
xxxxxxxx
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 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:
(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.
While Sub-section (3) of Section 25 provides that where any
amount is due from any person under an order made by a
District Forum, the 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 and the Collector shall
proceed to recover the amount in the same manner as arrears
of land revenue, Section 27 does not mention about the Forum
where the proceedings provided for therein is to be initiated.
Section 27 only provides that 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 a trader or person or complainant shall be punishable.
As noted, the contention of the petitioner is that insofar as the
order of the District Forum was modified in revision by the
National Commission, proceedings under Section 27 can be
initiated only by the National Commission. A reading of Section
27 of the Act would show that the intention of the legislature is
that a person who fails or omits to comply with an order passed
by any of the Forums constituted under the Act shall be
punished. If the provision in sub-section (3) of Section 25 is
understood in the aforesaid background, it can be seen that the
power is conferred on the Forum, whose order is omitted or
failed to be complied with, to initiate proceedings under
Section 27 of the Act, notwithstanding whether the order has
been modified in appeal or revision, once it has become final.
Needless to say, the contention aforesaid of the learned
counsel for the petitioner is also liable to be rejected and I do
so.
In the light of the discussion aforesaid, the writ
petition is liable to be dismissed and I do so.
Sd/-
P.B.SURESH KUMAR
JUDGE
YKB
APPENDIX OF WP(C) 20153/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMMON ORDER PASSED
IN RP NO.107/2011 AND 1870/2011 DATED
20.10.2015 PASSED BY THE NATIONAL
CONSUMER REDRESSAL COMMISSION.
Exhibit P2 TRUE COPY OF THE NOTICE DATED NIL
ISSUED BY THE DISTRICT FORUM, KOTTAYAM
DIRECTING APPEARANCE OF THE PETITIONER
ON 28.04.2016.
Exhibit P3 TRUE COPY OF THE EXECUTION PETITION EP
19/2016 IN CC NO.1055/1998 DATED
23.03.2016 FILED BY RESPONDENTS 4 AND
5 BEFORE THE DISTRICT FORUM, KOTTAYAM.
Exhibit P4 TRUE COPY OF THE OBJECTION DATED
24.05.2016 FILED BY THE PETITIONER
BEFORE THE DISTRICT FORUM, KOTTAYAM.
Exhibit P5 TRUE COPY OF THE EA NO.17/17/2017 IN
EP NO.19/2016 IN CC NO.1055/1998 DATED
08.02.2017 FILED BY THE PETITIONER
BEFORE THE DISTRICT CONSUMER FORUM.
Exhibit P6 TRUE COPY OF THE IA NO.301/2017 IN EP
19/2016 IN CC NO.1055/1998 DATED
02.07.2017 FILED BY THE PETITIONER
BEFORE THE DISTRICT FORUM.
Exhibit P7 TRUE COPY OF THE ORDER PASSED BY THE
DISTRICT CONSUMER FORUM DATED
31.05.2018 IN IA NO.301/2017 IN EA
NO.19/2016 IN CC NO.1055/1998.
Exhibit P8 TRUE COPY OF THE JUDGMENT OF THE
LEARNED SINGLE JUDGE DATED 01.11.2018
IN WPC NO.31554/2018.
Exhibit P9 TRUE COPY OF THE ORDER DATED
07.12.2018 IN RP NO.50/2018 PASSED BY
THE KERALA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION.
Exhibit P10 TRUE COPY OF THE SHOW CAUSE NOTICE
DATED 08.07.2021 AND SIGNED ON
14.07.2021 ISSUED BY THE DISTRICT
FORUM, KOTTAYAM ADDRESSED TO THE
PETITIONER.
Exhibit P11 TRUE COPY OF THE REPLY DATED
14.08.2021 FILED BY THE PETITIONER
BEFORE THE DISTRICT FORUM, KOTTAYAM.
Exhibit P12 TRUE COPY OF THE PETITION IEA
NO.17/2019 IN EP NO.19/2016 IN CC
NO.1055/1998 DATED 12.12.2019 FILED BY
THE PETITIONER BEFORE THE DISTRICT
FORUM, KOTTAYAM.
Exhibit P13 TRUE COPY OF THE AFFIDAVIT DATED 22.09
(NO YEAR) FILED BY THE RESPONDENTS 4
AND 5 BEFORE THE DISTRICT FORUM.
Exhibit P14 TRUE COPY OF THE PETITION DATED
24.09.2018 FILED BY THE RESPONDENTS 4
AND 5 BEFORE THE DISTRICT FORUM,
KOTTAYAM.
Exhibit P15 TRUE COPY OF THE ORDER DATED
08.07.2021 PASSED BY THE DISTRICT
FORUM, KOTTAYAM DIRECTING RETURN OF
NOTICE AND POSTING THE CASE TO
25.08.2021 FOR RETURN OF NOTICE.
Exhibit P16 TRUE COPY OF THE REVIEW PETITION IEA
NO.6/2021 DATED 06.08.2021 FILED BY
THE PETITIONER BEFORE THE DISTRICT
FORUM, KOTTAYAM.
Exhibit P17 TRUE COPY OF THE OBJECTION DATED
25.08.2021 IN EA NO.19/2016 IN CC
NO.1055/1998 FILED BY THE PETITIONER
BEFORE THE DISTRICT FORUM, KOTTAYAM.
