Babu Joseph v. Consumer Disputes Redressal Forum — 1997 DIGILAW 101 (KER)

Judgment :- Koshy, J. Petitioner in this case challenges Ext. P5 order of the 1st respondent - Consumer Disputes Redressal Forum, Ernakulam by which arrest warrant against the petitioner herein was ordered. 2nd respondent herein filed a consumer dispute in the Consumer Disputes Redressal Forum, Ernakulam. Petitioner is a distributor of LPG. 2nd respondent has applied for a gas connection in his house. When the application matured, the gas connection was not given. Various reasons were pleaded by the 2nd respondent in not giving the gas connection. Since the gas connection was not given 2nd respondent approached the District Forum. The District Forum allowed the application and directed the petitioner to give gas connection to the 2nd respondent and pay compensation of Rs. 1000/-. Aggrieved by the above order, petitioner filed appeal before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, the appellate authority. In the appellate forum it was agreed that petitioner will give gas connection if the 2nd respondent executes a bond that he is not having connection from any other agency. The operative portion of the judgment as can be seen from Ext. P1 is as follows: "We heard the counsel for the appellant and also the respondent/ complainant. After discussion, it was agreed by both parties that the second opposite party will give connection to the complainant executing a bond saying that he has not taken any connection from any other agency or propose to take any gas connection from any other agent. This was to be done within a period of one week from today. Thereupon, the connection will be given within 10 days from kaif furnishing the bond." Inspite of 'the agreement, connection was not given and 2nd respondent filed Ext. P2 execution petition before the 1st respondent and it was numbered as E.P. No. 78 of 1996 in O.P. No. 559 of 1994. Ext. P3 is the preliminary objection filed by the petitioner. According to the petitioner, gas connection was not given because no bond as agreed was executed in time. It is the case of the petitioner that even though Bharat Petroleum Corporation directed to give connection, the petitioner did not give connection because no bond was executed within seven days of the appellate order. According to the petitioner, gas connection was not given because no bond as agreed was executed in time. It is the case of the petitioner that even though Bharat Petroleum Corporation directed to give connection, the petitioner did not give connection because no bond was executed within seven days of the appellate order. According to the petitioner, since 2nd respondent did not approach within a reasonable time and executed a bond within seven days, he is not bound to give the gas connection. Bharat Petroleum Corporation's letter is dated 18.1.1996. Even after that the petitioner took the stand that since 2nd respondent has not approached him within a reasonable time, he is not bound to give the gas connection. It is also stated in Ext. P3 that now the 2nd respondent resides beyond the territorial limits allotted to him and he cannot carry out the direction. The contentions raised by the petitioner were considered elaborately by the 1st respondent -District Forum. Petitioner was given ten days' time to give gas connection to the 2nd respondent and report by 26.6.1996 and the case was posted on 26.6.1996 for reporting the above. Thus, ten more days were given to the petitioner for implementing the order. Petitioner did not implement the order nor did he appear on 26.6.1996 and by Ext. P5 order it is stated that the 1st respondent (petitioner in the O.P.) has not complied with the order. He was absent and therefore, it was decided to issue warrant against him. Contention of the petitioner is that direction to issue warrant by the 1st respondent is totally without jurisdiction. It is contended by the petitioner that Consumer Disputes Redressal Forum have only powers which are specifically conferred by the Statute under S.25 of the Consumer Protection Act. It can be enforced as if it is a decree or order made by a court in a suit. Therefore, order of a Forum can be enforced as if it is a decree and the Forum cannot enforce its decree in its own and cannot direct to issue warrant. It was also submitted that even the Civil Court, in execution of a decree, will no issue warrant. Power to arrest and detention are prescribed in S.51(c) of the CPC. S.51(c) specifically circumscribes itself to S.58. A reading of S.58 shows that arrest and detention can be made only in cases of decree for money. It was also submitted that even the Civil Court, in execution of a decree, will no issue warrant. Power to arrest and detention are prescribed in S.51(c) of the CPC. S.51(c) specifically circumscribes itself to S.58. A reading of S.58 shows that arrest and detention can be made only in cases of decree for money. Even under O. XXI Rules 32,37 and 38, arrest and detention cannot be made for enforcement of a decree like this: R.37 and 38 apply only to claims of money and even for that a notice and hearing is necessary under R.37. O.XXI R.32 can be invoked for decree for specific performance or for restitution of conjugal rights or for an injunction and the present order will not relate to any of the above order. Therefore, under S.25 of the Consumer Protection Act the District Forum has no authority to issue arrest warrant. Therefore, the entire procedure is wrong. 2. 2nd respondent appeared and filed a counter affidavit. According to the 2nd respondent, originally, the District Forum allowed the petition. In appeal, the matter was settled; but, he did not respect the agreement. The only remedy, therefore, is to enforce the order of arrest and the order of arrest is perfectly legal. The only method of enforcing the order is to arrest and, in any event, the discretionary jurisdiction of this Court should not he used as the petitioner has deliberately violated the order. He did not even appear and pray for time. If he wanted more time to execute the order he could have done so. It is also argued by the 2nd respondent that he could have given the gas connection much more earlier as the Bharat Petroleum Corporation itself directed the petitioner to give the connection by letter dated 18.1.1996. Only because of the delay territorial limits were changed and even if there is no territorial jurisdiction, in view of the legally binding order of the Forum, he should have given the connection or he ought to have got permission from the Bharat Petroleum Corporation and intimated the order. Petitioner has not taken any steps to implement the agreement. It was also submitted that if under S.25 there is no power, it should be considered as an order under S.27. It is further contended by the 2ndrespondent that orders of the Consumer Forum cannot be interfered with by this Court. 3. Petitioner has not taken any steps to implement the agreement. It was also submitted that if under S.25 there is no power, it should be considered as an order under S.27. It is further contended by the 2ndrespondent that orders of the Consumer Forum cannot be interfered with by this Court. 3. S.25 of the Act provides as follows: "25. Enforcement of orders by the Forum, The State Commission or the National Commission: Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, The State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the court within the local limit of whose jurisdiction - a)in the case of an order against a Company, the registered office of the company is situated; or b) in the case of an order against any other person the place where the person concerned voluntarily resides or carries on business or personally works for gain is situated, and thereupon, the court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution." This section provides for enforcement of the order of the District Forum in the same manner as if it is a decree or order of a court. Therefore, it is the contention of the petitioner that only after complying with the procedure of execution of a civil decree it can be enforced. According to the petitioner, a reading of Ss.51 and 58 would show that it cannot be enforced by arrest and detention as detention can be made only for enforcement of money decree. According to the 2nd respondent, it is not stated that it can be used only where there is violation of a money decree. It only stated the period of imprisonment depending of the amount of money that is due. There is no prescription in the section that only for enforcement of money decrees this section cannot be used With regard to the contentions that O. XXI Rr. It only stated the period of imprisonment depending of the amount of money that is due. There is no prescription in the section that only for enforcement of money decrees this section cannot be used With regard to the contentions that O. XXI Rr. 37 and 38 are applicable only to money decree and R.32 cannot apply in such a situation also disputed by 2nd respondent. According to the 2nd respondent, the order of the District Forum gives a mandatory direction or a mandatory injunction to the petitioner to give gas connection and that is violated and O. XXI R.32 can be invoked and he can be arrested. 4. Itis the contention of the petitioner that S.27 provides for imposition of penalties wherein the Forum can sentence imprisonment or fine or bom which shall not be less than one month or 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. According to the petitioner, no penalty is imposed under S.27. Therefore, it is not applicable. 5. First contention of the second respondent is that the writ petition is not maintainable because order passed by the District Forum for enforcing its order is not amenable to writ jurisdiction. In the decision reported in A. V. George kutty v. State of Kerala and Ors. (AIR 1994 Kerala 19) it was held by a Division Bench of this Court that the Consumer Protection Act has created hierarchy of bodies under the Act with the power to hear appeals at every stage. The intention of the Legislature appears to be that the District Forum or the State Commission as well as the National Commission should be allowed to perform their duties speedily and without any interruption. The intention of the Parliament will be defeated if their acts are questioned before the High Court under Art.226 of the Constitution. Only in very rare cases, the High Court can interfere and that should the rare exception and not the rule. 6. The intention of the Parliament will be defeated if their acts are questioned before the High Court under Art.226 of the Constitution. Only in very rare cases, the High Court can interfere and that should the rare exception and not the rule. 6. Even though this court will not normally entertain appeal or will not interfere with the orders of the Forum constituted under the Consumer Protection Act, if they act totally without jurisdiction or without any powers, this court can certainly look into the matter as a rarest case as the Act did not exclude jurisdiction under Art.226 of the Constitution. In this connection, I also refer to the decision reported in Registrar, University of Madras and An r. v. Union of India and Ors. (1996 CCJ 668). If the District Forum has no power to issue an order like Ext. P5 and the action is totally without jurisdiction and not warranted by the circumstances of the case, certainly, this Court can look into the argument. 7. However, I am of the opinion that it cannot be stated that Ext. P5 is totally without jurisdiction and in any event, considering the conduct of the petitioner, it is not proper for this Court to interfere in an order like Ext. P5. According to me, S.25 of the Act is not used in this case. Under S.25 every order made by the District Forum, the State Commission or the National Commission can be enforced in the same manner as if it were a decree or order made by a court. S.25 of the Act confers a discretion on the Forum to enforce their orders as decree of civil court only in the event of their inability to execute it themselves. Here, as can be seen from the impugned order, no action is taken or proposed to be taken under S.25, Therefore, question raised by the parties whether like in the CPC there are provisions of arrest, detention etc. enforcement of a decree like this need not be gone into on the facts of this case. But, I agree with the contention of the, petitioner that for enforcement of orders of the Consumer Forum by S.25 procedure prescribed in the CPC has to be followed. Here, no order is passed under S.25. 8. S.27 gives power to the Consumer Court to execute the orders by itself. But, I agree with the contention of the, petitioner that for enforcement of orders of the Consumer Forum by S.25 procedure prescribed in the CPC has to be followed. Here, no order is passed under S.25. 8. S.27 gives power to the Consumer Court to execute the orders by itself. Under S.27, if a party to the dispute refuses to comply with the order of the Consumer Court, it can enforce the order by ordering imprisonment or fine or with both. This power is given for expeditious enforcement of its order. Parliament in its wisdom thought that if the order of the Consumer Court can be enforced only as decrees or orders of civil court, in the long delaying execution process therein with the hierarchy of appeals and revisions of the Civil Procedure Code. Then entire object of the Act will be defeated as the long delay for execution of the Act is sought to be reduced by the Act. The Act itself is enacted "to provide for better protection of the interest of the consumers" as can be seen from the Preamble of the Act. Since S.27 gives ample power for the Consumer Courts to enforce its orders by imprisonment or fine or with both penalties together, principles of natural justice should be complied with before enforcing punishment and the person sought to be proceeded against should be heard. In this case, no final order has been passed under S.27 also. Ext. P4 was a preliminary step (see para 6) before penalties under S.27 of the Act is going to be imposed. This is for complying with the principles of natural justice and there is no infirmity in the order. Ext. P5 is issued for causing attendance of the person. Ext. P1 order which was passed on the basis of agreement was not obeyed by the petitioner. According to the petitioner, 2nd respondent did not execute the bond; but subsequently, even after Bharat Petroleum Corporation wrote and the conditions were complied with, he was not willing to grant gas connection on the contention that bond was executed not in time. In view of the petitioner's own action, the matter was delayed. Now, it is stated that it is incapable for execution as his territorial jurisdiction was changed. In view of the petitioner's own action, the matter was delayed. Now, it is stated that it is incapable for execution as his territorial jurisdiction was changed. It is not stated that why he has not taken any steps by writing to the Bharat Petroleum Corporation to allow him to give this connection in view of the earlier order of the District Forum before the territorial jurisdiction was changed. In any event, his objections were considered and Ext. P4 order was passed. Even now, he can comply with the order and report this to the Consumer Court. No appeal was filed against Ext. P4 order contending that in view of the change of territorial jurisdiction it cannot be implemented. I am also of the opinion that in view of the binding order of the Consumer Court, petitioner can give connection if he wants in spite of change in territorial jurisdiction unless petitioner thinks that he is above law or orders of the Consumer Court need not be obeyed. Bharat Petroleum Corporation is also a party to the case. In spite of Ext. P4 order, he did not do anything. He did not appear on 26.6.1996. Since the petitioner and his advocate was not present, the order of arrest was issued to compel his attendance to decide the question of penalty under S.27. In Ext. P4 order, he has given 10 days' more time to execute the order and report by 26.6.1996. By Ext. P4, District Forum has given a further opportunity to the petitioner before taking action under S.27 of the Act. Therefore, action under S.27 is yet to be taken. 9. Before issuing a final order under S.27 he was given one more opportunity and he was asked to report on 26.6.1996. On 26.6.1996, neither the petitioner nor his advocate was present and, therefore, order of arrest was issued to the petitioner to ensure his presence when order under S.27 is passed. It was open for him to approach the District Forum to cancel or vary the arrest warrant after offering himself for appearing before the Forum in a date fixed and explain why it was not enforced. He can also now obey the order and report to the District Forum. Substantial compliance of the order of the Forum even though belatedly will be an extenuating factor while considering the imposition of a penal order under S.27. He can also now obey the order and report to the District Forum. Substantial compliance of the order of the Forum even though belatedly will be an extenuating factor while considering the imposition of a penal order under S.27. He can even contend with the District Forum that order was incapable of execution because of lapse of time and change of jurisdiction and District Forum may sometimes, order only fine instead of imprisonment. That is the discretion of the Forum. B ut, it is for the petitioner to convince the District Forum about the difficulties faced by him or reasons for non-compliance of the order. 9. S.13(3) and (4) of the Consumer Protection Act which is as follows: "13. (3) No proceedings complying with the procedure laid down in sub-ss.(1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with. (4) For purposes of this section, the District Forum shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely, i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; ii) the discovery and production of any document or other material object producible as evidence; iii) the reception of evidence on affidavits; iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; v) issuing of any commission for the examination of any witness; and vi) any other matter which may be prescribed." S.32 of the Code of Civil Procedure is as follows: "32. Penalty for default: - The Court may compel the attendance of any person to whom a summons has been issued under S.30 and for that purpose may - ; a) issue a warrant for his arrest; b) attach and sell his property; c) impose a fine upon him not exceeding five hundred rupees ; d) order him to furnish security for his appearance and in default commit him to the civil prison". Since the petitioner did not report compliance and did not appeal" on 26.6.1996, to compel the attendance warrant was ordered to be issued. So, it cannot be stated that it is totally without jurisdiction. Since the petitioner did not report compliance and did not appeal" on 26.6.1996, to compel the attendance warrant was ordered to be issued. So, it cannot be stated that it is totally without jurisdiction. Itis for the petitioner to approach the District Forum itself and explain the circumstances and get order for cancelling the order of warrant of arrest after offering to appear on the date fixed for appearance. So far, no final orders are passed under S.27. Issuance of arrest warrant by the Forum cannot be said to be totally lacking jurisdiction. This Court also will not interfere in the proceeding of the Consumer Forums created for speedy disposal of consumer disputes unless there are very compelling reasons and no such reasons are available in this case. In any event, since the petitioner has disobeyed the orders of the District Forum, I am not inclined to exercise the extraordinary discretionary jurisdiction of this Court in his favour to quash Ext. P5 as prayed for by the petitioner. The original petition is dismissed. In the circumstances of the case no order as to costs.