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2017 DIGILAW 332 (JK)

Sohan Lal Ganjoo v. State of J&K

2017-07-15

SANJEEV KUMAR

body2017
JUDGMENT : 1. A short but interesting question of law calls for determination in this case. Case of the petitioner, in short, is that he filed a complaint before the Jammu and Kashmir State Consumers Dispute Redressal Commission (hereinafter called “the State Commission”) against respondent No. 2 for deficiency in service. It is claimed that at the time when the complaint was filed, the State Commission was functioning only by one member and there was no President or second member appointed. It is submitted that in absence of the State Commission having been validly constituted, single member could not have exercised the powers and jurisdiction of State Commission and, therefore, the order impugned passed by the aforesaid member is nullity and without jurisdiction. 2. With a view to examine the question of law, as is fallen for consideration and determination, it would be appropriate to take note of some salient provisions of the Jammu and Kashmir Consumers Protection Act, 1987 (hereinafter called “the Act”). The “State Commission” is defined under Section 2 (p) of the Act, which for facility of reference is reproduced hereunder:- “2 (p) “State Commission” means a Consumer Disputes Redressal Commission established in the State under clause (b) of section 7.” 3. Similarly, it is provided under Section 7 (b) that a Consumer Dispute Redressal Commission to be known as the State Commission would be established by the Government. Section 7 of the Act is also reproduced hereunder:- “7. Establishment of Consumer Disputes Redressal Agencies There shall be established for the purpose of this Act, the following agencies, namely;- (a) a Consumer Disputes Redressal Forum to be known as the “Divisional Forum” established by the Government in each division of the State; (b) a Consumer Disputes Redressal Commission to be known as the “State Commission” established by the Government.” 4. Section 14 of the Act provides about the composition of the State Commission and a bare perusal whereof would show that State Commission would consist of (i) President, who is or has been a Judge of the High Court, appointed by the Government, who would be its President; (ii) two or more members who would be the persons of ability, integrity and having adequate knowledge of law and experience and consumer affairs. For facility of reference, Section 14 of the Act is reproduced hereunder:- “14. For facility of reference, Section 14 of the Act is reproduced hereunder:- “14. Composition of the State Commission (1) Each State Commission shall consist of- (a) a person who is or has been a Judge of a High Court, appointed by the Government, who shall be its President; (b) Two or more members who shall be persons of ability, integrity and having adequate knowledge of law and experience in law and consumer affairs. Provided that every appointment made under this section shall be made by the Government on the recommendation of the Selection Committee consisting of the following, namely:- (i) Chief Secretary ….Chairman (ii) Secretary to Government, Law Department ….Member (iii) Secretary to Government, Food and Supplies Department (Incharge Consumer Affairs)…..Member. (2) The salary or honorarium and other allowances payable to, and the other terms and conditions of service (including tenure of office) of, the members of the State Commission shall be such as may be prescribed by the Government.” 5. From the perusal of the aforesaid Sections reproduced hereinabove, it is abundantly clear that for State Commission to be validly constituted, it is necessary to have President and atleast two members to be appointed by the Government. In the instant case, admittedly, there was no President appointed by the Government and the State Commission was functioning only by one member. That being so, the State Commission, as rightly pointed out by the counsel for the petitioner, was not validly constituted and, therefore, a member sitting singly could not have passed any orders. 6. That being the position, contends the petitioner, the order impugned is nullity and passed by a person who had no authority or jurisdiction to do so. 7. Learned counsel for the petitioner has also placed reliance on Section 16 of the J&K State Consumer Protection Act to contend that the State Commission constituted under the Act is obliged to follow the procedure as specified in Sections 10, 11 and 12 of the Act for the disposal of complaints and in terms of Section 12 (2), every order passed by the State Commission is required to be signed by the majority of members constituting it and, therefore, the order impugned which is signed by the Single member is, therefore, not sustainable. 8. 8. Per contra, counsel for the respondents has contended that in view of the efficacious statutory remedy in the shape of Appeal provided under Section 17 of the J&K State Consumers Protection Act, writ petition is not maintainable and the petitioner deserves to be relegated to the remedy of Appeal. He has, however, not been able to controvert the other contentions raised by the counsel for the petitioner with regard to the constitution of the State Commission and the authority of Single member to pass and sign the order impugned. 9. I have considered the submissions made by learned counsel for the parties and have carefully scanned through the salient provisions of the Consumers Protection Act, particularly, those which have been reproduced hereinabove and I am of the opinion that the order impugned is without jurisdiction and, therefore, not sustainable, for, there was no validly constituted State Commission on the date the order impugned was passed. As admitted by both the parties, on the date impugned order was passed, there was no President appointed by the Government, to head the State Commission and the same was functioning by only one member. As is abundantly clear from the provisions of Section 12 read with Section 2 (p) and Section 7(2), the State Commission to be validly constituted must have President and atleast two members appointed by the Government. Similarly, an order of the State Commission to be effective and sustainable in law has to be signed by the majority of members and single member of State Commission which was not validly constituted, had no jurisdiction or authority to pass the impugned order, representing it to be the order passed by the State Commission. Even the pleas of the petitioner that in terms of Section 16-A, all orders passed by the Divisional Forum or the State Commission which have not been signed by all its members, shall be deemed to have been validly passed and, therefore, defect, if any, would stand cured by operation of the provisions of Section 16-A of the Act, is also misconceived and deserves to be rejected. A bare perusal of Section 16-A of the Act would indicate that no order passed by the State Commission and Divisional Forum would be called in question only on the ground that it has not been signed by all its members and the same would be deemed to have been validly passed provided it is signed by the majority of members. 10. In view of the findings recorded above that in the absence of President and two more member having been appointed by the Government, the State Commission was not validly constituted in terms of Section 12 of the Act and, therefore, had no jurisdiction to proceed in the matter. Even Section 16-A of the Act pre-supposes the provisions of more than two members and, therefore, provides for validation of the order which though not signed by all its members are signed by atleast majority of the members of the State Commission. 11. This brings me to the alternative plea put forth by respondents with regard to the validity of alternative remedy in the shape of Appeal provided under Section 17 of the Consumers Protection Act. It is true that orders passed by the State Commission in the exercise of its powers conferred by sub-Section (i) of Clause (a) of Section 15 of the Act, are appealable before this Court and, therefore, as contended by the petitioner, statutory alternative and equally efficacious remedy was available. Availability of alternative remedy, it is trite law, does not by itself bar the exercise of jurisdiction by this Court under Article 226 of the Constitution of India. Ordinarily, if a statutory alternative remedy equally efficacious is available, this Court in its discretion would not entertain the writ petition but this principle is subject to well recognized exceptions and the instant case falls under such exceptions. 12. As already held, order impugned was without jurisdiction and, therefore, nullity in the eyes of law. That being the position, order impugned cannot be said to be an order passed by the State Commission, which would be appealable in this Court in terms of Section 17 of the Act (See Whirlpool Corporation vs. Registrar Trade marks, 1998 (1) SCC 1, see also 2005 (8) SCC 242 and 2005 (6) SCC 499 ). 13. Viewed from any angle, order impugned cannot sustain. Writ petition is allowed and order impugned is quashed. 13. Viewed from any angle, order impugned cannot sustain. Writ petition is allowed and order impugned is quashed. The State Commission, if validly constituted, can proceed with the complaint after putting both the parties to notice.