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2013 DIGILAW 585 (MP)

N. K. Jain v. State of M. P.

2013-05-02

ALOK ARADHE

body2013
JUDGMENT : In this petition, the petitioner inter alia seeks quashment of the impugned condition of adjustment of pension of the petitioner against salary payable to him for the post of Chairman, M. P. State Consumer Disputes Redressal Commission (in short 'the Commission') incorporated in the order dated 27-9-2003. The petitioner also seeks a direction to the respondent No. 1 to make payment of entire amount deducted from the salary of the petitioner along with interest at the rate of 12% per annum. 2. The facts, essential to be stated for adjudication of the controversy involved in the writ petition are that the petitioner is a retired Judge of High Court of M. P. By an order dated 13-8-2003 the petitioner after consultation with the Chief Justice of the High Court of Madhya Pradesh was appointed as Chairman of the Commission. Thereafter vide order dated 27-9-2003 the terms and conditions of appointment of the petitioner were notified and it was provided that the petitioner shall draw the salary payable to a Judge of the High Court minus pension payable to him on retirement as Judge of High Court of Madhya Pradesh. The petitioner joined as Chairman of the Commission on 30-9-2003. Being aggrieved by the aforesaid condition, the petitioner submitted representations on 5-9-2008 and 14-1-2009. However, the representations submitted by the petitioner failed to evoke any response. In the aforesaid factual backdrop, the petitioner has approached this Court. 3. Learned senior counsel for the petitioner submitted that section 16(2) of the Consumer Protection Act, 1986 (for short 'the Act') provides that 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. While inviting the attention of this Court to section 2(1)(n) of the Act, it is submitted that word 'prescribed' means prescribed by rules made by the State Government. It is pointed out that in exercise of power under section 30(2) of the Act, the State Government has framed the rules, namely, Madhya Pradesh Consumer Protection Rules, 1987 (in short 'the 1987 Rules') and Rule 6(1) of the 1987 Rules provides that President of the State Commission shall receive the salary of the Judge of the High Court if appointed on whole-time basis. It is urged that the impugned condition is contrary to Rule 6(1) of the Rules and by an executive order, no such condition can be prescribed which is contrary to the statutory rules. 4. It is also submitted that wherever legislature intended to provide for deduction of the amount of pension from the salary, specific provision has been made. In this connection reference has been made to the provisions of M. P. Lokayukta Avam Up-Lokayukta Adhiniyam, 1981 as well as Rule 3 of the M. P. Human Rights Commission Chairman and Members (Salaries, Allowances and Other Conditions of Service) Rules, 1995. However, no such condition is prescribed in the 1987 Rules and on the other hand an express provisipn has been made under Rule 6(1) of the 1987 Rules which provides that President of the State Commission shall receive the salary of the Judge of the High Court. It is also contended that the controversy involved in the instant case has been put to rest by the Division Bench decision of Orissa High Court in the case of Justice Debendra Mohan Patnaik vs. State of Orissa and others, AIR 2008 Orissa 28. Learned senior counsel has also invited the attention of this Court to the order dated 3-12-2009 passed by Government of Chhattisgarh by which it is provided that the Chairman of Chhattisgarh State Consumer Disputes Redressal Commission shall draw the salary as is admissible to a Judge of the High Court. Lastly, it is submitted that there is no delay in filing the writ petition and even assuming that there is delay on the part of the petitioner, the delay is not such which would disentitle the petitioner to seek enforcement of his right in law and there cannot be any estoppel against law. 5. On the other hand, learned Advocate General submitted that the petitioner with his eyes wide open accepted the order of appointment which contains the impugned condition and for the first time he submitted the representation with regard to his grievance towards the fag end of his tenure and, therefore, he cannot be permitted to mount a challenge to the impugned condition at this point of time. It is further submitted that pension and salary of the petitioner is drawn from the consolidated fund and therefore, the pension has to be deducted from the salary which is payable to the petitioner. It is further submitted that pension and salary of the petitioner is drawn from the consolidated fund and therefore, the pension has to be deducted from the salary which is payable to the petitioner. In support of his submissions, learned Advocate General has placed reliance on the decisions in V. S. Mallimath vs. Union of India and another, AIR 2001 SC 1455 and M. S. Chawla and others vs. State of Punjab and another, AIR 2001 SC 1706 . 6. I have considered the respective submissions made by learned counsel for the parties. Before proceeding further it would be appropriate to notice relevant statutory provisions. Section 16 of the 1986 Act deals with the composition of State Commission. Section 16(2) of the Act reads as under : "16. Composition of the State Commission. - (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 the 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." 7. Section 2(n) defines the expression "prescribed" as under : "2. Definitions. - (n) "prescribed" means prescribed by rules made by the State Government, or as the case may be, by the Central Government under this Act." 8. Section 13 (2) of the Act empowers the State Government to frame the Rules under which the State Government has framed the rules, namely Madhya Pradesh Consumer Protection Rules, 1987. Rule 6 of the aforesaid Rules deals with the salary and other allowances and terms and conditions of the President and Members of the State Commission. The relevant extract of Rule 6 of the 1987 Rules reads as under : "6. Salary and Other allowances and terms and conditions of the President and Members of the State Commission. - (1) President of the State Commission shall receive the salary of the Judge of the High Court, premises. The relevant extract of Rule 6 of the 1987 Rules reads as under : "6. Salary and Other allowances and terms and conditions of the President and Members of the State Commission. - (1) President of the State Commission shall receive the salary of the Judge of the High Court, premises. This revision application has been filed on 7-1-2013, within few days of passing of the impugned order, on 12-12-2012, thus, prima facie, there is some substance in the contention of the learned counsel for the tenant/defendant, who is applicant in this revision that against the law the possession has been obtained. However, the learned counsel for the landlord/respondent is not in a position to say whether the possession of the suit premises has been obtained by the landlord or not. 9. On bare perusal of the impugned order, it is gathered that the tenant/defendant has not paid to the landlord or deposited the rent at the rate of Rs. 1,000/- per month with effect from 1-1-2011 in the Court, which comes to Rs. 24,000/-. On bare perusal of the application seeking leave to defend, the rate of rent has also not disputed by the present applicant and there is no whisper in the application that he is not in arrears of rent and therefore, it can be inferred that the tenant has to pay a sum of Rs. 24,000/- to the landlord. Thus, because prior to the expiry of two months, the possession of the suit premises has been obtained by the landlord/respondent, he is liable to pay compensation of Rs. 24,000/- to the tenant/applicant. Since I have held that tenant is in arrears of rent of Rs. 24,000/- the respondent/landlord shall not be entitled to recover the same and that amount of Rs. 24,000/- be adjusted towards the compensation, if possession of the suit premises has been obtained contrary to section 23-G of the Act. 10. The learned counsel for the applicant further submits that certain material is lying in the house in question, but the same has not been returned to the tenant, however, no detail of the said items has been stated in the revision application and therefore since Shri Rawat, learned counsel for the respondent is not in a position to say anything in this regard. If necessary application is filed by the tenant before the Rent Controlling Authority and if the factual aspect is disputed by the landlord, the learned Rent Controlling Authority shall hold an enquiry in this regard and pass a suitable order by passing an order to return the articles of tenant, if any lying in the suit premises. 11. With the aforesaid observations, this revision application is hereby allowed in part. The eviction decree passed by the learned Rent Controlling Authority is hereby affirmed. The parties are directed to bear their own costs. Revision partly allowed.