Jagannatha Prasad @ Reghu v. State Of Kerala, Represented By the Secretary To Government, Revenue Department
2021-09-30
P.B.SURESH KUMAR
body2021
DigiLaw.ai
JUDGMENT : Petitioner was one of the opposite parties in a Consumer Complaint instituted by respondents 4 and 5 before the District Consumer Dispute Redressal Forum, Kottayam as C.C.No.1055 of 1998. The complaint was allowed by the Forum granting compensation to respondents 4 and 5, and the decision of the Forum was affirmed in appeal by the State Consumer Disputes Redressal Commission with a modification in favour of the petitioner. The petitioner as also respondents 4 and 5 challenged the decision of the State Commission before the National Consumer Disputes Redressal Commission, and in terms of Ext.P1 order, the National Commission affirmed the decisions of the Forum and the State Commission with a modification in favour of the respondents 4 and 5. The complainants thereupon instituted proceedings before the Forum for enforcement of the decision of the Forum and the said proceedings are pending. In the meanwhile, at the instance of respondents 4 and 5, the Forum issued a notice to the petitioner directing him to show cause why penalty in terms of Section 27 of the Consumer Protection Act, 1986 (the Act) shall not be imposed on him. Ext.P10 is the notice issued to the petitioner in this regard. Ext.P10 notice is under challenge in this proceedings on the ground that it is one issued without jurisdiction. 2. Heard the learned counsel for the petitioner. 3. The learned counsel for the petitioner raised two contentions, of which the first one was that in the light of sub-section (3) of Section 25 of the Act, insofar as the order, the non compliance of which is alleged, is an order of the National Commission, proceedings under Section 27 of the Act can be initiated in respect of the same only by the National Commission. The second contention was that in terms of sub-rule (2) of Rule 15A of the Consumer Protection Rules, 1987 (the Rules), Ext.P1 order ought to have been signed either by the President or the senior-most member of the National Commission and the members of the National Commission who conducted the proceeding, and insofar as Ext.P1 order is not signed either by the President or the senior-most member of the Commission, the proceedings initiated in respect of the same under Section 27 of the Act is without jurisdiction. 4. True, Ext.P1 order was signed only by the two members of the National Commission who conducted the proceeding.
4. True, Ext.P1 order was signed only by the two members of the National Commission who conducted the proceeding. Rule 15A of the Rules reads thus : 15A. Sitting of the National Commission and signing of orders. - (1) Every proceeding of the National Commission shall be conducted by the President or the senior-most member and at least two members thereof sitting together except when a bench is constituted by the President of the National Commission with one or more members as he may deem fit. Provided that one member or members for any reason are unable to conduct proceedings till it is completed, the President or the senior-most member, as provided in section 22D of the Act, shall conduct such proceedings from the state at which it was last heard by the previous member. (2) Every order made by the National Commission shall be signed by the President or the senior-most member as provided under section 22D and at least two members who conducted the proceeding and if there is any difference of opinion among themselves, the opinion of majority shall be the order of the National Commission: Provided that where the proceeding is conducted by the President or the senior-most member as provided under section 22D and three members thereof and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and such point or points shall be decided according to the opinion of the majority of the National Commission. Of course, as pointed out by the learned counsel for the petitioner, it is provided in sub-rule (2) of Rule 15A that every order made by the National Commission shall be signed by the President or the senior-most member and at least two members who conducted the proceeding. It is, however, seen that sub-rule (1) of Rule 15A provides that every proceeding of the National Commission shall be conducted by the President or the senior-most member and at least two members thereof sitting together, except when a bench is constituted by the President with one or more members as he may deem fit.
It is, however, seen that sub-rule (1) of Rule 15A provides that every proceeding of the National Commission shall be conducted by the President or the senior-most member and at least two members thereof sitting together, except when a bench is constituted by the President with one or more members as he may deem fit. In the light of sub-rule (1), there cannot be any dispute that the proceeding of the National Commission can be conducted even by one or more members, if a bench is so constituted by its President. A conjoint reading of the provisions contained in Rule 15A of the Rules would indicate that the scheme of the Rule is only that every order made by the National Commission shall be signed by its members including the President who have conducted the proceeding. It is not possible to infer from Rule 15A that it mandates that every order passed by the National Commission shall be signed by the President or senior-most member as well, in addition to the members who have conducted the proceedings. Such an interpretation would be absurd, for one cannot be expected to sign on an order not authored by him/her. It is seen that while drafting sub-rule(2) of Rule 15A, the legislature could not have taken note of the second limb of sub-rule(1) conferring authority on the President to constitute a bench with one or more members of the National Commission, as he may deem fit, for the same was a subsequent insertion to sub-rule(1) with effect from 5.3.2004. There should have been a corresponding amendment to sub-rule (2) also along with the amendment introduced to sub-rule (1) introduced with effect from 5.3.2004 and the omission to make the corresponding amendment led to the contention now raised by the petitioner. Be that as it may, if the contention advanced by the learned counsel for the petitioner is accepted, the second limb of sub-rule (1) of Rule 15A would become redundant. Needless to say, the contention aforesaid of the learned counsel for the petitioner is liable to be rejected and I do so. 5. Sections 25 and 27 of the Act read thus : 25. Enforcement of orders of the District Forum, the State Commission or the National Commission.
Needless to say, the contention aforesaid of the learned counsel for the petitioner is liable to be rejected and I do so. 5. Sections 25 and 27 of the Act read thus : 25. Enforcement of orders of the District Forum, the State Commission or the National Commission. (1) Where an interim order made under this Act, is not complied with, the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached. (2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. (3) Where any amount is due from any person under an order made by a District Forum, the State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue. x x x x x x x x 27. Penalties.
x x x x x x x x 27. Penalties. — (1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but 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: (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973. (3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be. While Sub-section (3) of Section 25 provides that where any amount is due from any person under an order made by a District Forum, the State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue, Section 27 does not mention about the Forum where the proceedings provided for therein is to be initiated.
Section 27 only provides that where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission as the case may be, such a trader or person or complainant shall be punishable. As noted, the contention of the petitioner is that insofar as the order of the District Forum was modified in revision by the National Commission, proceedings under Section 27 can be initiated only by the National Commission. A reading of Section 27 of the Act would show that the intention of the legislature is that a person who fails or omits to comply with an order passed by any of the Forums constituted under the Act shall be punished. If the provision in sub-section (3) of Section 25 is understood in the aforesaid background, it can be seen that the power is conferred on the Forum, whose order is omitted or failed to be complied with, to initiate proceedings under Section 27 of the Act, notwithstanding whether the order has been modified in appeal or revision, once it has become final. Needless to say, the contention aforesaid of the learned counsel for the petitioner is also liable to be rejected and I do so. In the light of the discussion aforesaid, the writ petition is liable to be dismissed and I do so.