State Consumer Disputes Redressal Commission
M/S Ganpati Builders vs Sh. Manoj Kumar on 10 February, 2022
GANPATI BUILDERS & ANR. VS SHRI MANOJ KUMAR 10.02.2022 Present: Mr. R.K. Tiwari, Counsel for the Petitioner. RA-02/2022 1.
Order in the present application was reserved on 01.02.2022.
2. The Opposite Party has preferred a review application under section 50 of the Consumer Protection Act, 2019 seeking the review/modification of the judgment dated 24.02.2021 and in specific, the directions which have been issued in para 10 of the said order. Para 10 of order dated 24.02.2020 has been reproduced as under:
"10. It is admitted position that till date no offer of possession has been given by the OP to the complainant. There is no explanation of delay as the OP was proceeded ex-parte. From the un-rebutted evidence of the complainant, deficiency in service on the part of OP stands proved. The allottee is not expected to wait for possession of the flat for an indefinite period. I, therefore, allow this complaint and directed the Opposite Party to refund an amount of Rs. 13,50,000/- along with interest @10% p.a. from the date of each deposit till realization. There is no separate order for compensation as the interest has been awarded in the form of compensation. OP shall pay Rs. 25,000/- towards cost of litigation."
2. The bare perusal of the application filed by the Opposite Party reflects that it has been preferred under section 50 of the new act i.e. the Consumer Protection Act, 2019. However, the entire proceedings of the present case took place according to the old act. Even the judgment in the complaint case was delivered before coming into effect of the new act i.e. on 24.02.2020.
3. Hence, before delving into the merits of the present application, it is imperative to ascertain whether the present application filed on 27.01.2022 for review of the order dated 24.02.2020 is maintainable under the new act?
4. The repeal of a law shall not affect the previous operation of any enactment i.e. the proceedings under Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020. The same is evident from the repeal and saving section (Section
107) of the Consumer Protection Act, 2019 which has been reproduced below:
"107. (1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal."
5. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further this view. Section 6 (b) of the General Clauses Act, 1897 has been reproduced below:
"6 Effect of repeal. : Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder"
6. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered prospective. The aforesaid view has been taken by the Apex Court in the case of CIT v. Vatika Township (P) Ltd. reported in (2015) 1 SCC 1 wherein the Court discussed the proviso to Section 113 of the Income Tax Act, 1961 and held that it was prospective and not retrospective. While deciding the case, the Constitution Bench laid down certain general principles which have been reproduced as under:
"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'OfficeCherifien des Phosphates v. Yamashita- Shinnihon Steamship Co. Ltd. [L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."
(emphasis in original)
7. Similarly, the Apex Court in Hitendra Vishnu Thakur vs State of Maharashtra reported in 1994 (4) SCC 602, the court has culled out the ambit and scope of an amending Act and its retrospective operation and has held the following:
"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
8. Taking into account the aforesaid discussion, we conclude that the Consumer Protection Act, 2019 is prospective in nature. Thus, the cases pending or adjudicated and rights/obligations created before the coming into effect of the Consumer Protection Act, 2019 will continue to be adjudicated under the old Act i.e. Consumer Protection Act, 1986. Hence, the Opposite party cannot resort to the provisions as inculcated in the new act so far as the present case is concerned as their case will be governed by the provisions of the old act since it was already adjudicated on 24.02.2020 i.e. before the coming into effect of the new act.
9. So far as the provisions of the Consumer Protection Act, 1986 is concerned, it does not provide the power of review to the State Commissions. This position of law was settled in the case of Rajeev Hitendra Pathak and Ors. v. Achyut Kashinath Karekar and Anr. reported in (2011) 9 SCC 541 wherein the Apex Court held:
"36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law."
10. Having discussed the legal position of law in terms of the power of review with the State Commission, we hold that the proceedings in Complaint Case No. 686 of 2018 will be governed by the Consumer Protection Act, 1986 and the order dated 24.02.2020 cannot be reviewed by this commission. Consequently, the application of the Opposite party is dismissed as not maintainable.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL)