Rajasthan High Court - Jodhpur

Ramchandra vs Rajasthan State Consumer Dispute ... on 20 December, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7173/2019

Ramchandra S/o Gangaram, Aged About 37 Years, Resident Of Village Khiyan, Tehsil And District Jaisalmer, (Raj.).

----Petitioner Versus

1. Rajasthan State Consumer Dispute Redressal Commission, Circuit Bench, Jodhpur, Raj.

2. Rajasthan Khadi Gramodhyog, Through Secretary, Having Its Office At Gokul Bhai Bhatt Smriti Bhawan, Jawaharlal Nehru Marg, Bajaj Nagar, Jaipur.

3. District Officer- Khadi, Zila Udyog Kendra, Jaisalmer.

4. Branch Manager, Jaisalmer, Central Cooperative Bank Ltd Having Its Branch At Village Sultana, Tehsil And District Jaisalmer.

5. Managing Director, The Jaisalmer Central Cooperative Bank Ltd Having Its Registered Office At Chandraveer Singh Colony, Opp. To Collectorate, Jaisalmer.

                                                                    ----Respondents


For Petitioner(s)             :      Mr. Manas Ranchhor Khatri
For Respondent(s)             :      Mr. Rajat Arora for
                                     Mr. Karan Singh Rajpurohit, AAG

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

20/12/2021

Despite service, none of the respondents, except respondent

No.1, are represented by their respective counsel.

Learned counsel for the petitioner as well as counsel for the

respondent No.1 jointly submit that the controversy in question

has been decided by this Court in Divisional Manager N.I.C.

Ltd.,    Jodhpur       Vs.    Rajasthan           State      Consumer        Dispute




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Redressal Commission & Ors. reported in 2019(1) WLC

(Raj.) 375, relevant portion of which reads as under:

"I have given my thoughtful consideration to the arguments advanced at the bar and have gone through the material available on record and appreciated the precedents cited at Bar.

Superficially, the controversy is squarely covered by the Hon'ble Supreme Court's decision in the case of Gulzari Lal Agarwal Vs. The Accounts Officer (supra) wherein it was held :

"17. After giving careful thought to the rival contentions raised before us, we are of the considered opinion that the relevant provisions which we have quoted hereinabove will have to be construed harmoniously to promote the cause of the consumers under the Act. As indicated earlier, the definition of member includes the President and a Member of a District Forum/State Commission. It is true that subsection (2) of Section 14 read with section 18 require that every proceeding referred to under sub- section (1) shall be conducted by the President of the District Forum/State Commission and atleast one member thereof sitting together. Section 2A is consequential in the sense that every order made by the State Commission under sub-section (1) shall be signed by its President and the Member or Members who conducted the proceeding. The procedure applicable to the District Forum is made applicable to the State Commission vide Section 18 with such modifications as may be necessary. Plain reading of sub-sections (2) and (2A) of Section 14 may support the view taken by the National Commission nut if these provisions are read with Section 29A of the Act and sub rules (9) and (10) of Rule 6, it would be quite clear that it could never be the intention of legislature to stall or render the State Commission nonfunctional in the absence of the President either having not been appointed in time due to some valid reasons or if the President is on the leave due to certain reasons beyond his control. (2) and (2A) of Section 14 and Section 18A of the Act were brought into force with effect from 18-6-1993 whereas Section 29A was made applicable from 15.6.1991. The Rules of 1987 were brought into force immediately. The complaint before the District Forum by the appellant was filed on 14-

10-1993. Therefore, all these amended provisions were very much brought into force when the complaint was filed. Sub-section (2) if section 14 is a presumptuous provision where the President if the State Commission is functional but it would not be correct to say that if the President of the President of the State Commission id non-functional because of one or the other reason, the State Commission would stop its functioning and wait till the President is appointed. In order to avoid such a situation, the State Government had framed the Rules and sub-rules (9) and (10) quoted hereinabove unmistakably

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provide answerable to such a situation as in the present case. The only harmonious construction that could be given to sub-sections (2) and (2A) of section 14 read with sub-rules (9) and (10) is that as and when the President of the State Commission of functional, he alongwith atleast one Member sitting together shall conduct the proceeding but where the President being non-functional, subrules (9) and (10) of rule 6 will govern the proceedings. Sub-rule (0) provides that where any such vacancy occurs in the office if the President of the State Commission, the senior most (in order if appointment) member holding office for the time being, shall discharge the function of the president until person is appointed to fill such vacancy. This sub-rule is made with a view to make the State Commission functional in the absence of the President and not to allow the State Commission to render nonfunctional for want of the President. It is well settled that every provision in the Act needs to be settled that every provision in the Act needs to be construed harmoniously with a view to promote the object and spirit of the Act but while doing so, no violence would be done to the plain language used in the section. It is this principle that needs to be made applicable while construing the provision of sub- sections (2) and (2A) of Section 14 read with sub-rules (9) and (10)."

Hon'ble Supreme Court has categorically laid down that the conjoint reading of sub section (2) of Section 14 read with Section 18 of the Act requires that the proceedings shall be conducted by the President of the District Forum/State Commission and at least one member thereof sitting together. Thus viewed outwardly, in light of the above observations made by Hon'ble the Supreme Court, there remains hardly any scope for deviation from the conclusion that the State Commission must be comprised by the President and at least one member thereof sitting together. However, controversy on this aspect has arisen with the amendment introduced in Section 16 of the Act of 1986 in the year 2002 whereby President of the State Commission has been conferred the discretion to constitute one or more Benches of the Commission. Previously, there was no provision for constitution of the benches of the State Commission. Composition of the Bench is unquestionably within the exclusive domain of the President as per Section 16(1B) of the Act. Section 16(1) of the Act of 1986, stipulates that the State Government shall constitute the State Commission which shall consist of a President, who is or has been a Judge of the High Court and not less than two and not more than such number of persons as may be prescribed. Thus, composition of the State Commission for deciding the appeals would mandatorily require the presence of the President and two members appointed under the Act at the seat of the Commission. The fact that the State Commission's bench too cannot function without there being at least two members, (one of whom may be the President) is clearly spelt out from a straight line holistic reading of Section 16(1B)(iii) which contemplates a situation of difference in opinion, on single or more issues "amongst the members of the Bench" while deciding a matter and reference

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thereof to be resolved by either the President or another member. Difference in opinion is not contemplated in the decisions rendered by the State Commission which is mandatorily required to be constituted of three persons including the President and thus, the majority opinion would prevail. There are various other indicators in the Act for coming to the conclusion that the bench must be constituted by two or more members. As per Sections 14(2) and 14(2A) of the Act, every proceeding of the District Forum has to be conducted by the President and at least one member thereof sitting together. Sub-clause 14(2A) makes it abundantly clear that the order of the District Forum has to be signed by the President and the member/members, who conducted the proceedings. Proviso to Section 14(2A) of the Act foresees difference in opinion amongst the President and one member on any point or points and the reference thereof to the another member for hearing on such point. Section 18 of the Act puts it beyond pale of doubt that the provisions of Sections 12, 13 and 14 providing the procedure for disposal of complaints by the District Forum, would be mutatis mutandis applicable to the procedure applicable for disposal of appeals by the State Commission. From a logical analysis of the provisions referred to supra, the only visible and marked difference in procedure applicable to the District Forums and the State Commission is available in Section 16(1B) which allows for constitution of Benches whereas, Bench of a District Forum is not contemplated under the Act. Learned counsel for the respondents were put pertinent queries by the Court regarding any manifest statutory modification brought around (by way of rules/notifications etc.) in the procedure of the State Forum in context of Section 18 of the Act apart from the provision to constitute Benches. No other significant modification in procedure could be pointed out by them. As a result, it can safely be concluded that the only modification which has been introduced in the procedure applicable to the State Commissions vis-a-vis the District Forum is that the State Commission has been empowered to constitute and function in Benches as well. However, the composition of a Bench would indisputably be governed by Section 14 of the Act because no dilution has been allowed on this aspect in the entire scheme of the Act. Section 14(2A) of the Act makes it abundantly clear that every order made by the District Forum (which would mutatis mutandis apply to the State Commission in view of Section 18 of the Act) shall be signed by the President and the member/members who conducted the proceedings. The Act does not contemplate an order signed by the President or a single member in case of the District Forum and a consequently of the State Commission or its Benches as well. The two High Court judgments in the cases of Shankuntala Yadav and Bhagwandas Vyapar Udhyog Ltd. (supra) though do refer to the Supreme Court decision in the case of Gulzari Lal Agarwal but manifestly, in neither of these cases was this issue elaborated or considered. The observation made by the Calcutta High Court in the judgment of Bhagwandas Vyapar Udhyog Ltd. (supra) is reproduced hereinbelow :

"The order impugned before me is passed by a single member of the State Commission. The question, therefore, coming up for consideration is whether a single member of the State Commission can hear an appeal and pass an order thereon. Bereft of the

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niceties of law the question can be answered, in the instant case, by the two Office Orders of the State Consumer Disputes Redressal Commission. I, therefore, propose not to consider the question as to whether the provisions of the Consumer Protection Act, 1986 permits constitution of a single member bench of the State Commission to hear an appeal and pass an order thereon in this revisional application."

These observations clearly indicate that the issue was not decided and was left open. The plea put forth by learned counsel for the petitioners that if a single member of the Commission decides the appeals, the possible difference in opinion contemplated by Section 16(1B)(iii) would never arise, is not without merit. Since the scheme of the Act contemplates a scenario of difference of opinion amongst two members of the State Commission or the District Forum as the case may be and resolution thereof by the third member, manifestly, this provision cannot be allowed to be whittled away or diluted by permitting a single member to hear and decide the appeals.

The other significant argument raised by learned counsel for the petitioners regarding possibility of the order passed by the District Forum comprised of a District Judge (sitting or retired) and two members being overturned by a Single Member Bench of the State Commission comprised by a person, who can be a simple graduate also appeals to logic. In all fairness, it is incomprehensible that an order passed by the District Forum comprised of an Officer in the rank of District Judge and two members sitting together could be upturned by a Single Bench of the State Commission in appeal. The situation if allowed to prevail would be totally undesirable and would be nothing short of travesty of justice. Thus also, there is no logic or rational behind the argument of the respondents' counsel that the Bench of the State Commission can be constituted by a Single Member.

Hence, this Court has no hesitation in holding that a Bench of the State Consumer Commission cannot be constituted by a single member and that the same must be comprised of the President and at least one member thereof. In reference to Section 2(jj) of the Act, it is clarified that the word "President" as appearing in the Act, shall always be referred as including a member except where, the jurisdiction of constituting the Bench is to be exercised. The said power is with the President who being the "head of the institution" has the exclusive administrative power to decide the composition of the bench.

After the judgment had been reserved, the learned AAG submitted an additional affidavit 28.9.2018 with an office order dated 23.4.2013 issued by the President of the National Commission. Upon this, the matters were reheard. The office order on which Shri Singh relied upon reads as below:

"No.A20(Maharashtra)/NCDRC/2013 23rd April,

OFFICE ORDER A reference through D.O.No.SC//Mah/13/23 dated 2nd April, 2013 has been received from the President,

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State Commission Maharashtra regarding seniority of the Members & Benches to be presided over at the State Commission level particularly when a judicial Member is junior in senior.

There is no provision in the Consumer Protection Act, 1986 as to who would preside over the additional benches/circuit bench at the State Commission level akin to Section 22 D of the Consumer Protection Act, 1986.

To liquidate the pendency of cases, the additional/circuit benches have been created at the State Commission level vesting the power with the President of the State Commission under Section 16(1)(b)(ii) of the Consumer Protection Act, 1986 to constitute the Benches, which reads as under:- "A Bench may be constituted by the President with one or more members as the President may deem fit."

Accordingly, in exercise of power conferred under Section 24 (B(1) ii) & (iii) vested with, the National Commission, the President of all the State Commissions wherever the additional/circuit benches are functional, may constitute the bench authorising the judicial member to preside over the additional/circuit bench regardless of his inter Superintending Engineer seniority amongst the Members of the State Commission by exercising the power under Section 16(1)(b)(ii)(supra)."

Though the said office order cannot be construed as having any precedential value but even if it is considered as such, then also, there is nothing in the order which suggests that the Bench of State Commission may be constituted by a single member. The office order simply conveys that wherever additional/circuit of the State Commissions are functional, the President may constitute the Bench authorising the judicial member to proceed regardless of his inter-se seniority amongst the members of the State Commission. Thus, the office order merely postulates that the judicial member shall preside over the Bench irrespective of the inter-se seniority amongst the members of the State Commission. Rather this Court is of the opinion that had the National Commission intended that a Bench of the Commission can be comprised of a single member, then a specific clarification would have been offered in this office order itself. Therefore, the office order is also of no help in deciding the issue raised before this Court in this bunch of writ petitions.

As, it has been concluded by this Court that for lawful decision of the cases (appeals or original complaints, as the case may be), the Bench/Benches of the State Commission must be constituted by at least two members of the Commission one of whom may be the President, manifestly, the orders passed by the single member of the State Commission which are assailed in these writ petitions are without jurisdiction and hence, the same cannot be sustained and are thus quashed and set aside. The matters are remanded to the State Commission, who shall either by itself or through properly constituted Benches, ensure fresh expeditious disposal of the appeals after providing opportunity of hearing to all

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concerned. The decision on remand shall be made without being influenced by the previous orders.

However, it is made clear that this verdict will not have any retrospective application considering the fact that such a view may result into a chaotic situation because this Court is apprised that large number of appeals had been decided by single member Benches and the orders have already been complied.

The State Government is directed to ensure that the vacancies existing in the State Consumer Commission and the District Forums are filled up immediately so as to ensure expeditious disposal of the appeals/complaints. The learned AAG shall submit the status report in this regard within next three months.

The writ petitions are allowed in these terms. No order as to costs.

A copy of this order be placed in each file.

List on 31.1.2019 for receiving the compliance report."

In view of such joint submission and the aforequoted order,

the impugned judgment dated 04.09.2018 is quashed and the

matter is remanded back to the State Consumer Disputes

Redressal Commission, who shall by either itself or through

properly constituted Benches ensure fresh expeditious disposal of

the appeal after providing opportunity of hearing to all the

concerned. The decision to be taken in pursuance of this order,

shall not be prejudiced by the previous orders.

The present petition stands disposed of. Stay petition as well