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2017 DIGILAW 1105 (GAU)

Motlib Ali v. State of Assam

2017-08-11

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : 1. Heard Mr. J. Sarma, learned counsel for the petitioners. Also heard Mr. M. Phukan, learned counsel for respondent No. 6 and Mr. S.S. Roy, learned State counsel for the State respondents as well as the State Consumer Dispute Redressal Commission, Assam and its members. 2. The petitioners in this writ petition is aggrieved by the order dated 26.3.2010 of the State Consumer Dispute Redressal Commission, Assam (‘SCDRC’) passed in CP No. 20/1994. The said order has been assailed on the ground that the order was passed by 2 members and neither of the two members are the judicial members of the Commission. It is the contention of the petitioners that section 16(1)(a) of the Consumer Protection Act, 1986 (‘Act of 1986’) provides that the Commission shall consist of a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President. 3. The learned counsel for the petitioner contends that the order of 26.3.2010 has been passed by the Acting President Mrs. B. Laskar and the Member Mr. M.K. Barooah. The learned counsel contends that as per section 16(1)(a) the Commission ought to have comprised of at least one person who is or has been a Judge of a High Court, and as neither the Acting President Mrs. B. Laskar nor the Member Mr. M.K. Barooah were a Judge of a High Court, therefore, the said order is without any authority of law and is in violation of section 16(1)(a) of the Act of 1986. 4. It is noticed and clarified that the two learned members of the Assam SCDRC, who had passed the order dated 26.3.2010 had constituted the quorum in the required manner and they did not constitute the whole of the Commission. 5. Section 22D of the Act of 1986 makes it implicitly clear that where the post of President of the Commission is vacant or the person occupying the Office is unable to perform his duties, in that event, the duties of the Commission shall be performed by the senior-most member of the Commission, as the case may be. 6. 5. Section 22D of the Act of 1986 makes it implicitly clear that where the post of President of the Commission is vacant or the person occupying the Office is unable to perform his duties, in that event, the duties of the Commission shall be performed by the senior-most member of the Commission, as the case may be. 6. In view of section 22D, the very fact that at the relevant point of time when the order was passed, the President of the Commission was not available nor a person who is or was a Judge of a High Court was available for discharging the duties of a President, the same by itself cannot be a reason to nullify the order passed by the other two members, where one of whom was the senior-most member of the Commission. 7. In such view of the matter, the said contention of the learned counsel for the petitioners that the order dated 26.3.2010 was passed by a Bench which is not in conformity of the section 16(1)(a) of the Act of 1986 is accordingly, rejected. 8. The second contention raised by Mr. Sarma is with regard to the proviso to section 16(1)(b) of the Act of 1986 which is as follows: (i) be not less than thirty-five years of age; (ii) possess a bachelor's degree from a recognised university; and (iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that not more than fifty per cent of the members shall be from amongst the persons having a judicial background. 9. By relying upon the said proviso, the learned counsel contends that as none of the aforesaid two members of the Commission were from a judicial background, therefore, the composition of the Commission violates the proviso to section 16(1)(b) of the Act. 10. 9. By relying upon the said proviso, the learned counsel contends that as none of the aforesaid two members of the Commission were from a judicial background, therefore, the composition of the Commission violates the proviso to section 16(1)(b) of the Act. 10. In this respect, it is noticed that the Division Bench of this Court in its judgment and order dated 16.6.2011 in WA No. 180/2011 had held that the proviso to clause (iii) of section 16(1)(b) of the Act of 1986 requires that if there are 3 members in the Commission, only 1 person may have a judicial background and, on the other hand, if out of the two other members none of them have a judicial background, the upper limit of 50% of judicial members as provided in the said proviso would not be breached. 11. In view of such categorical finding of the Division Bench, the contentions raised by the learned counsel for the petitioner that none of the 2 members, who had passed the order dated 26.3.2010 are from a judicial background, and, therefore, there was an aberration of the proviso to clause (iii) of section 16(1)(b) of the Act of 1986, also cannot be accepted. 12. In view of the above, this court finds that the writ petition is devoid of any merit, the same stands dismissed.