Allahabad High Court
Ghaziabad Development Authority And ... vs Union Of India (Uoi) And Anr. on 6 August, 2003
Equivalent citations: 2003(4)AWC3078B, 2004 ALL. L. J. 245, (2003) 10 ALLINDCAS 932 (ALL), (2003) 2 ALL RENTCAS 330, (2004) 16 INDLD 326, (2003) 4 ALL WC 3078, (2003) 2 CPR 455, (2003) 53 ALL LR 330
Author: M. Katju
Bench: M. Katju, R.S. Tripathi
JUDGMENT M. Katju, J.
1. Heard learned counsel for the petitioner and learned standing counsel.
2. The petitioner has challenged the constitutional validity of Section 27 of the Consumer Protection Act, 1986.
3. The petitioner, Ghaziabad Development Authority, is a statutory body constituted under the U.P. Urban Planning and Development Act, 1973. The petitioner No. 2 is Secretary of the Ghaziabad Development Authority and he is aggrieved by the orders dated 28.2.2001 passed by the District Consumer Forum, Ghaziabad convicting and sentencing him to six months imprisonment, vide Annexures 1 and 2 to the writ petition.
4. Learned counsel for the petitioner submitted that Section 27 of the Consumer Protection Act, 1986 is unconstitutional as it has not provided for any procedure for the trial. Learned counsel relied on a Division Bench decision of the Karnataka High Court in Paramjit Singh v. Union of India, 1999 CTJ 570, in which it was held that the proviso to Section 27 of the Consumer Protection Act is violatlve of Articles 20 and 21 of the Constitution. It was held by the Karnataka High Court therein that while the main part of Section 27 of the Act is not unconstitutional the proviso thereto is unconstitutional. Hence, it was held that the offence created by Section 27 can only be tried by filing a criminal complaint before the criminal court and cannot be tried by the District Consumer Forum, State Commission or National Commission as the case may be,
5. We respectfully disagree with the view taken by the Karnataka High Court.
6. Section 27 of the Act states :
"Penalties.--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 :
Provided that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section."
7. A perusal of Section 27 shows that the main clause prescribes punishment for non-compliance of an order of the District Consumer Forum, State Commission or National Commission. However, the proviso to Section 27 states that the District Forum, the State Commission or the National Commission, as the case may be, may impose a sentence of imprisonment or fine.
8. Thus, the language of the proviso to Section 27 is very clear. The sentence of imprisonment or fine can be imposed by the District Forum, State Commission or the National Commission themselves, and they need not make a complaint to the regular criminal court for this purpose.
9. It is well-settled that where the language of the statute is clear, the literal rule of interpretation should be followed and the Court should not twist or distort the meaning. It is a basic principle of interpretation that if the language of the statute is clear the natural and grammatical meaning should be given to it.
10. In Hiralal Ratanlal v. S.T.O.. AIR 1973 SC 1034 (vide para 21), the Supreme Court observed :
"In construing a statutory provision the first and foremost rule of construction is the literary construction. All that we have to see at the very outset is what does the provision say? If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear."
11. As observed by Viscount Simon in Nokes v. Doncaster Amalgamated Collieries Ltd., (1940) 3 All ER 447 (553). "The golden rule is that the words of a statute must prima facie be given their ordinary meaning." (followed in Chandayarkar Sita Ratna Rao v. Ashalata, AIR 1987 SC 117 vide para 62). The natural and ordinary meaning cannot be departed from by the Judges in the light of their own views as to policy vide Shah. v. Barnet London Borough Council, (1983) 1 All ER 226,
12. In Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376 (vide para 6) the Supreme Court observed :
"The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the Legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation. In the present case a literal construction of the rule leads to no apparent absurdity, and therefore, there can be no compelling reason for departing from that golden rule of construction."
13. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907 (vide para 6), the Supreme Court observed :
"The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise."
Similarly, in Mahadeolal Kanodia v. Administrator General of West Bengal, AIR 1960 SC 936 (vide para 8), the Supreme Court observed :
"The intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal grammatical meaning."
14. In Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165, the Privy Council observed :
"The strict grammatical meaning of the words (of a statute) is, their Lordships think, the only safe guide."
The above view was followed by the Supreme Court in Municipal Board, Pushkar v. State Transport Authority, Rajasthan, AIR 1965 SC 458 (paras 22 and 23).
15. Since the language of the proviso to Section 27 is clear, we have to hold that the District Forum, State Commission or National Commission can themselves impose sentence of imprisonment or fine and they need not refer a complaint to the regular criminal court for this purpose.
16. With profound respect to the Karnataka High Court which held that the proviso to Section 27 is ultra vires Articles 20 and 21 of the Constitution, we are of the opinion that perhaps the real nature of proceedings under Section 27 of the Consumer Protection Act was not understood. In our opinion, proceedings under Section 27 are really in the nature of proceedings for civil contempt. Although Section 27 itself does not mention that the proceedings therein are proceedings for civil contempt, in our opinion, we have to see the substance of the matter, i.e., the nature and purpose of these proceedings.
17. It is well-settled that there are two types of contempt, namely, civil contempt and criminal contempt.
18. The meaning of civil contempt and criminal contempt have been explained in the Contempt of Courts Act, 1971. Section 2 of the said Act states :
"(a) 'Contempt of Court' means civil contempt or criminal contempt;
(b) 'civil contempt' means willful disobedience to any judgment, decree, direction, order, writ or other process of a court, or willful breach of an undertaking given to a court ;
(c) 'criminal contempt' means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which :
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings ; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other matter."
19. Thus, criminal contempt means scandalizing the Court or lowering its authority or Interfering with the Court of Justice. On the other hand, civil contempt means disobedience of any order of the Court and the purpose of civil contempt is to compel obedience of the order of the Court. The principal object of civil contempt proceedings is hence to secure enforcement of the order of the Court vide State v. Dasrath Jha, AIR 1951 Pat 443 ; Vidya Sagar v. IIIrd Additional District Judge, 1991 (2) AWC 869 : 1991 ALJ 816 ; C.S. Majoo v. Administrator General, 1964 (1) Cr LJ 449 ; In re Swaminathan. AIR 1955 Mad 121 ; Bhagwati Prasad Tripathi v. Sri Raj Vir Singh, 1986 (2) ARC 385, etc.
20. A perusal of Section 27 clearly shows that proceedings therein are in the nature of proceedings for civil contempt, and their object is to compel obedience of the orders of the District Forum, State Commission or the National Commission.
21. Once this aspect is understood, it will be immediately realized that the submission of the learned counsel for the petitioner that the proviso to Section 27 is unconstitutional as it has not provided for any procedure for the trial is totally misconceived. The proceedings under Section 27 are really not ordinary criminal proceedings in respect of offences under the I.P.C. or some other statute. The proceedings under Section 27, as stated above, are really in the nature of civil contempt proceedings. Hence, the only procedure required in these proceedings is that the principles of natural justice should be complied with.
22. It may be mentioned that under the Contempt of Courts Act, 1952, there was no procedure for the contempt of court proceedings and only the well-settled customary principles were applicable to such proceedings. No doubt under the Contempt of Courts Act, 1971 and Chapter 35E of the Allahabad High Court Rules, the procedure for contempt of court proceedings in the Allahabad High Court has been prescribed, but in our opinion, this procedure need not be followed by the District Forum, State Commission or the National Commission in proceedings under Section 27. Hence, the District Forum, State Commission or the National Commission need only to follow the rules of natural justice in respect of such proceedings,
23. It appears that Parliament has specifically enacted Section 27 so as to give teeth to the provisions of the Consumer Protection Act. Had there been no provision for enforcement of the orders of the authorities under the Act, the entire purpose of the Statute would have been frustrated as nobody would obey the orders of these authorities. Without the sanction of Section 27, the entire consumer jurisdiction would only be a paper tiger lacking teeth.
24. For the reasons given above, we respectfully disagree with the Karnataka High Court which held that the proviso to Section 27 is ultra vires. In our opinion, a statute should not be declared as ultra vires so readily.
25. For the reasons given above, we are of the opinion that Section 27 including its proviso is constitutionally valid. The petition is hence, dismissed.
26. Before parting with this case, we would like to briefly comment on the subject of judicial review of a statute, which was first enunciated by Chief Justice Marshall of the U.S. Supreme Court in Marburg v. Madison, 5 US (1 Cranch) 137 (1803). We feel justified in making these comments because the times which this Country is passing through requires clarification of the role of the judiciary vis-a-vis the Legislature.
27. Under our Constitution, the judiciary and the Legislature have their own spheres of operation. It is important that these organs do not entrench on each others proper spheres and confine themselves to their own, otherwise there will always be danger of a reaction. The judiciary must, therefore, exercise self-restraint and eschew the temptation to act as a super-Legislature or a court of appeal sitting over the Laws made by the Legislature or as a third house of Parliament. By exercising restraint, it will enhance its own respect and prestige. Of course if a law clearly violates some provision of the Constitution or is beyond its legislative competence, it will be declared by the Court as ultra vires, but as long as it does not do so, it is not for the Court to sit in appeal over the wisdom of the Legislature.
28. It must never be forgotten that the Legislature has been elected by the people, while Judges are not, and in a democracy, it is the people who are supreme. No court should, therefore, strike down an enactment solely because it is perceived by it to be unwise. A Judge cannot act on the belief that he knows better than the Legislature on a question of policy, because he can never be justifiably certain that he is right. Judicial humility should therefore, prevail over judicial activism is this respect,
29. Judicial restraint is consistent with and complementary to the balance of power among the three independent organs of the State. It accomplishes this is two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, but also fosters that equality by minimizing inter branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other co-equal branches. In contrast, judicial activism's unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of inter-branch equality.
30. Second, judicial restraint tends to protect the independence of the judiciary. When courts become engaged in social legislation, almost inevitably voters, legislators, and other elected officials will conclude that the activities, it Judges should be elected officials will conclude that the activities of Judges should be closely monitored. If Judges act like legislators, it follows that Judges should be elected like legislators. This is counterproductive. The touchstone of an independent judiciary has been its removal from the political process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.
31. The constitutional trade off for Independence is that Judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint complements the twin, overarching values of the Independence of the judiciary and the separation of powers.
32. The Court should always hesitate to declare a statute unconstitutional, unless it finds it clearly so, because invalidating a statute is a grave step. Of the three organs of the State, only the judiciary has the power to declare the Constitutional limits of all three. This great power should therefore, be used by the judiciary with the utmost humility and self-restraint.
33. As observed by the Supreme Court in M. H. Qureshi v. State of Bihar, AIR 1958 SC 731, the Court must presume that the Legislature understands and correctly appreciates the needs of its own people. The Legislature is free to recognize degrees of harm and may confine its restrictions to those where the need is deemed to be the clearest. In the same decision it was also observed that the Legislature is the best judge of what is good for the community on whose suffrage it came into existence.
34. One of the earliest scholarly treatments of the scope of Judicial review is Prof. James Bradley Thayer's article "The Origin and Scope of the American Doctrine of Constitutional Law," published in 1893 in the Harvard Law Review. This paper is a singularly important piece of American legal scholarship, if for no other reason than that Justices Holmes and Brandeis, among modern Judges, carried its influence with them to the Bench, as also did Mr. Justice Frankfurter.
35. Thayer, who was a Professor of Law at Harvard University, strongly urged that the courts must be astute not to trench upon the proper powers of the other departments of Government, nor to confine their discretion. Full and free play must be allowed to "that wide margin of considerations which address themselves only to the practical judgment of a legislative body." Moreover, every action of the other departments embodies an Implicit decision on their part that it was within their constitutional power to act as they did. The judiciary must accord the utmost respect to this determination, even though it be a tacit one.
36. This meant for Thayer--and he attempted to prove that it had generally meant to the courts--that a statute could be struck down as unconstitutional only "when those who have the right to make laws have not merely made a mistake, but have made a very clear one,--so dear that it is not open to rational question." After all, the Constitution is not a legal document of the nature of a title deed or the like, to be read closely and construed with technical finality, but a complex charter of Government, looking to unforeseeable future exigencies. Most frequently, reasonable men will differ about its proper construction. The Constitution leaves open "a range of choice and judgment," and hence constitutional construction 'involves hospitality to large purposes, not merely textual exegesis.
37. In Lochner v. New York, 198 US 45 (1905), Mr. Justice Holmes, the celebrated Judge of the U.S. Supreme Court in his classic dissenting judgment pleaded for judicial tolerance of state legislative action even when the Court may disapprove of the State Policy. Similarly, in his dissenting Judgment in Griswold v. Connecticut, 381 US 479, Mr. Justice Hugo Black of the U.S. Supreme Court warned that "unbounded judicial creativity would make this Court a day-to-day Constitutional Convention." Justice Frankfurter has pointed out that great Judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter's 'Some Reflections on the Reading of Statutes').
38. As Mr. Justice Holmes of the U.S. Supreme Court observed in his dissenting judgment in Tyson v. Banton. 273 US 418 (at p. 447) ;
"1 am far from saying that I think this particular law a wise and rational provision. That is not my affair. But, if the people of the State of New York speaking by their authorized voice say they want it, I see nothing in the Constitution of the United States to prevent their having their will."