Calcutta High Court (Appellete Side)
The New India Assurance Company Ltd. & ... vs M/S. Bhagwandas Vyapar Udyog Ltd. & Anr on 8 August, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Debangsu Basak
C.0. No. 711 of 2014
The New India Assurance Company Ltd. & Ors.
Vs.
M/s. Bhagwandas Vyapar Udyog Ltd. & Anr.
For the Petitioners : Mr. Nripendra Ranjan Mukherje, Advocate
For the Opposite Parties : Dr. Madhusudan Saha Ray, Advocate
Mr. Debesh Halder, Advocate
Mr. Somenath Chakraborty, Advocate
Heard on : July 25, 2014
Judgment on : August 08, 2014
DEBANGSU BASAK, J.:
The revisional application is directed against an Order dated January 3, 2014 passed by the State Consumer Disputes Redressal Commission, West Bengal.
The petitioner contends that, a single member of the State Commission has no jurisdiction to pass the impugned order. The provisions of the Consumer Protection Act, 1986 does not permit a single member of the State Consumer Disputes Redressal Commission, West Bengal to dispose of an appeal unless on a reference made by the President of the State Commission on a division of opinion in an order rendered by a two members bench.
In support of such contention learned Advocate for the petitioner refers to Section 2(jj) of the Consumer Protection Act, 1986. It defines a member. He refers to Section 17 for the purpose of the jurisdiction of the State Commission.
He also refers to Section 14 of the Act of 1986 which relates to finding of the District Forum. In particular he refers to Sub-Section (2) and Sub-Section (2A) of Section 14 of the Act of 1986 which provides that every proceeding of the District forum is to be conducted by the District Forum with at least two members sitting together. He refers to Section 18 of the Act of 1986 and submits that, the provisions of Sections 12, 13 and 14 and the Rules made thereunder for the disposal of complaints by the District Forum will apply to the disposal of disputes by the State Commission.
He refers to Section 16 of the Act of 1986 and in particular Section 16(1B) thereof. According to the learned Advocate for the petitioner, a bench of the State Commission is to be constituted by the President of the State Commission with one or more members as the President of the State Commission may deem fit. According to him, when Section 16(1B)(ii) gives the power to the President to constitute a bench of the State Commission with one member it has to be read in the context of Section 16(1B)(iii) of the Act which provides that, in case of difference of opinions between the two members of a bench the matter is to be referred to a third member. It is only on such an event of reference, he submits, that the President of a State Commission is entitled to constitute a bench with a single member.
He refers to 1996 Volume 10 Supreme Court Cases page 590 (Gujarilal Agarwal v. Accounts Officer) and CAL LT 1996 Volume 1 High Court page 254 (Hindustan Lever & Anr. v. State Consumer Redressal Forum & Ors.) for the proposition that, a single member of the State Commission cannot pass an order. He also refers to an unreported judgment passed by the Court in C.O. 3441-44 and C.O. 3448-51 of 2007 which is of the view that, a bench of the State Commission without the President cannot be constituted. Referring to a notification dated January 2, 2014 issued by the State Consumer Disputes Redressal Commission, West Bengal learned Advocate for the petitioner submits that, exercising powers under Section 16(1B) (ii) of the Act of 1986 the President constituted two benches of the State Commission with effect from January 3, 2014. Such Office Order speaks of constitution of the first bench to be of three members with the President of the State Consumer Disputes Redressal Commission presiding it while the second bench to be two members.
He relies on All India Reporter 2012 Supreme Court page 364 (State of Punjab v. Davinder Pal Singh Bhullar & Ors.) for the proposition that, it is for the Chief Justice of a Court to allocate the business to a learned Judge and that, an order passed by a learned Judge acting beyond the allocation of business is a nullity.
The revisional application is contested. Learned Counsel for the opposite party refers to Sub-Rule (5) of Rule 7 of the West Bengal Consumer Protection Rules, 1987. According to him, such Rule gives power to a single member to hear and pass an order in respect of an appeal. He contends that the revisional application is not maintainable in view of the alternative statutory remedy available to the petitioner. An appeal under Section 21 of the Act of 1986 is available to the petitioner against the order impugned herein. He submits that, the petitioner should be asked to exhaust the statutory appeal provided under the Act of 1986. In this context he refers to unreported judgments of the Supreme Court, namely, Civil Appeal No. 2123 of 2012 (Phalguni Das v. Tapas Dutta) decided on February 15, 2012 and Civil Appeal No. 10706 of 2011 (Nivedita Sharma v. Cellular Operators Association of India & Ors.) decided on December 7, 2011. In the same context he refers to 2012 Volume 8 Supreme Court Cases page 524 (Cicily Kallarackal v. Vehicle Factory) and 1995 Volume 1 Calcutta Law Journal page 124 (United Bank of India v. Hirak Mukherjee & Ors.).
He refers to the legal maxim a verbis legis non est recedendum which means, "from the words of law, there must be no departure" and 2014 Volume 3 Supreme Court Cases page 92 (Hardeep Singh v. State of Punjab). He refers to a judgment and order dated December 1, 2010 passed by Justice Prasenjit Mondal in C.O. No. 3202 of 2010 (Duncans Industries Ltd. v. Narayan Kumar Khaitan) in which the Court opines that, it has no authority to entertain an application under Article 227 of the Constitution of India in view of the provisions of the Consumer Protection Act, 1986.
In reply learned Counsel for the petitioner submits that, the pronouncement of the Supreme Court rendered in Phalguni Das (supra) and Nivedita Sharma (supra) as well as the contention as to whether or not a petition under Article 227 of the Constitution of India is maintainable against an order passed by the State Commission was considered in C.O. No. 3020 of 2012 (L & T Finance Limited v. Anup Kumar Bera & Anr.). The judgment and order dated January 20, 2014 passed in L & T Finance Limited (supra) holds that a petition under Article 227 is maintainable notwithstanding existence of a statutory remedy.
I have considered the rival contentions of the respective parties and the materials on record.
The order impugned before me is passed by a single member of the State Commission. The question, therefore, coming up for consideration is whether a single member of the State Commission can hear an appeal and pass an order thereon. Bereft of the niceties of law the question can be answered, in the instant case, by the two Office Orders of the State Consumer Disputes Redressal Commission. I, therefore, propose not to consider the question as to whether the provisions of the Consumer Protection Act, 1986 permits constitution of a single member bench of the State Commission to hear an appeal and pass an order thereon in this revisional application.
By an Office Order bearing No. 01/SC dated January 2, 2014 the President of the State Commission exercising powers under Section 16B constitutes two benches of the Commission. Under such Office Order two benches of the State Commission are constituted with effect from January 3, 2014. The first bench consists of three members with the President heading the bench. The second bench consists of two members. The Office Order states that such order supersedes all the previous orders regarding constitution of Bench and would remain valid until further order.
For a better understanding of the Office Order it is set out below:-
"In terms of section 16(1)(1B)(ii) of Consumer Protection Act, 1986, the two Benches of this Commission be constituted with the following members for adjudication of cases w.e.f. 03.01.2014.
A. 1st Bench :
1) Mr. Justice Kalidas Mukherjee, President.
2) Smt. Mridula Roy, Member.
3) Sri Tarapada Gangopadhyay, Member.
B. 2nd Bench :
1) Sri Debasis Bhattacharjee, (Presiding Member).
2) Sri Jagannath Bag, Member.
This order supersedes all the previous orders regarding constitution of Bench and remains valid until further order." A subsequent Office Order bearing No. 56/SC dated July 11, 2014 is relied upon by the opposite party in support of the contention that the President of a State Consumer Disputes Redressal Commission can constitute a bench consisting of one member. By the Office Order No. 56/SC dated July 11, 2014 the President of the State Consumer Disputes Redressal Commission exercising powers under Section 16 of the Act of 1986 reconstitutes the second bench of the Commission with effect from July 14, 2014 until the other member of the second bench resumes his duty. This Office Order goes on to say that the Office Order bearing No. 01/SC dated January 2, 2014 will be kept in abeyance for the period as mentioned in the Office Order No. 56/SC dated July 11, 2014. Office Order No. 56/SC dated July 11, 2014 is as follows:-
"In terms of section 16(1)(1B)(ii) of Consumer Protection Act, 1986, the 2nd Bench of this Commission be constituted with the following member for adjudication of cases w.e.f. 14/07/2014 until Shri Debasis Bhattacharya, Ld. Member resumes his duty.
2nd Bench:
1) Shri Jagannath Bag, Presiding Member.
This Commission's Order No. 01/SC dt. 02/01/2014 shall be kept in abeyance for the said period to the extent as above." Therefore, on reading the two Office Orders it is clear that, on January 3, 2014 the second bench of the State Commission comprises of two members. The President did not constitute a bench consisting of a single member of the State Commission on January 3, 2014. On January 3, 2014, therefore, there cannot be any bench constituted by the Commission who could hear an appeal and pass an order therein acting singly.
The impugned order herein is passed by the presiding member of the second bench sitting singly on January 3, 2014. The order impugned is dated January 3, 2014. The Office Order bearing No. 01/SC dated January 2, 2014 issued by the President on January 2, 2014 requires the member of the State Commission which passed the order impugned to sit with another member on and from January 3, 2014. The member which passed the impugned order acted beyond the Office Order No. 01/SC dated January 2, 2014 in proceeding to hear and dispose of an appeal sitting singly on January 3, 2014.
Davinder Pal Singh Bhullar & Ors. (supra) is one of importance in the context of the present case. The Supreme Court is of the view that, a Chief Justice of a Court allocates the business to a learned Judge. No Judge or a Bench of Judges assumes jurisdiction unless the case is allotted to him or them under the orders of the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from this procedure is permissible. Any order passed by a learned Judge acting beyond the allocation of business made the Judge coram non-judice.
Applying such ratio to the facts of the instant case, the President of the State Consumer Disputes Redressal Commission is empowered under the Consumer Protection Act, 1986 to constitute a bench. He in exercise of such powers constitutes a two benches one consisting of three members and the other of two members on and from January 3, 2014. No bench comprising of a single member is constituted by the President of the State Consumer Disputes Redressal Commission with effect from January 3, 2014. Consequently, a single member of the State Commission could not have assumed jurisdiction over an appeal and pass an order thereon. A single member of the State Commission does not have the authority to allocate any business to itself under the provision of the Consumer Protection Act, 1986. The single member acting beyond the allocation of business assumes jurisdiction of a subject matter which he ought not to on January 3, 2014. The action of the single member on January 3, 2014 is, therefore, a nullity in view of Davinder Pal Singh Bhullar & Ors. (supra).
Gujarilal Agarwal (supra) and Hindustan Lever & Anr. (supra) are cited for the proposition that, a single member of the State Commission cannot pass an order on an appeal. Since I have kept open such question, to these authorities are not required to be considered presently.
Phalguni Das (supra) and Nivedita Sharma (supra) are considered in C.O. No. 3020 of 2012. United Bank of India (supra) concerns a challenge to an award. The facts of the instant case are completely different. Cicily Kallarackal (supra) considers whether the High Court is correct in entertaining a petition under Article 226 of the Constitution of India against an order of the National Commission when statutory appeal lies before the Supreme Court. In such context, the Supreme Court is of the view when the statute provides an appeal to a higher Court, exercise of jurisdiction under Article 226 to bypass such statutory appeal is not proper. In the case at hand, the order impugned is of the State Commission with the challenge that the impugned order is of a member who is coram non-judice.
Hardeep Singh (supra) is cited for a legal maxim. Such legal maxim has no relevance to the facts of the case. In Duncans Industries Ltd. (supra) the learned Judge did not intervene in respect of an order passed by the Commission in view of the availability of an alternative statutory remedy. The refusal to intervene is in the factual matrix of that case. As is explained in C.O. No. 3202 of 2010 (Duncans Industries Ltd.) (supra) the existence of a statutory remedy ipso facto did not bar the jurisdiction of a High Court to entertain a petition under Article 227 of the Constitution of India on a given factual scenario warranting its invocation.
The issue of maintainability of the petition under Article 227 of the Constitution of India also requires consideration. This issue is considered in C.O. No. 3020 of 2012 (L & T Finance Limited) (supra). Relying upon paragraphs 41 and 53 of a Three Judge Bench of the Supreme Court in the case reported at 2003 Volume 2 Supreme Court Cases page 412 (State of Karnataka v. Vishwabharathi House Building Co-operative Society) it was held that, the power of the High Court under Articles 226 of 227 of the Constitution of India is not taken away because of the alternative efficacious remedy provided under the statute. Phalguni Das (supra) is considered. It is held that, the Supreme Court in Phalguni Das (supra) did not find the case before it to come within the exception curved out for entertaining an application under Article 226 of the Constitution of India. Nivedita Sharma (supra) is also considered. Nivedita Sharma (supra) did not hold that, the High Court powers under Articles 226 or 227 of the Constitution of India are completely excluded. On the issue of the maintainability of a petition under Articles 226 or 227 of the Constitution of India against an order of the State Commission the following views are expressed in C.O. No. 3020 of 2012 (L & T Finance Limited) (supra).
"41. By reason of the provisions of the said Act, the power of judicial review of the High Court, which is a basic feature of the Constitution, has not been nor could be taken away.
53. The provisions relating to power to approach appellate court by a party aggrieved by a decision of the forums/State Commissions as also the power of the High Court and this Court under Articles 226/227 of the Constitution of India and Article 32 of this Court apart from Section 23 of the Act provide for adequate safeguards. Furthermore, primarily the jurisdiction of the forums/Commissions is to grant damages. In the event, a complainant feels that he will have a better and effective remedy in a civil court as he may have to seek for an order of injunction, he indisputably may file a suit in an appropriate civil court or may take recourse to some other remedies as provided for in other statutes."
The question, therefore, is whether I should interfere with the order impugned solely on the ground that, the order impugned is passed by a member in breach of an Office Order of the State Commission constituting a bench of two members, or not. The order impugned passed by the single member is in breach of the Office Order dated January 2, 2014. The single member had no jurisdiction to pass the order impugned in view of the Office Order dated January 2, 2014. The case before me is, therefore, of an order passed by an authority established by statute in excess of jurisdiction vested upon him in law. This is one of such circumstance where a High Court in its discretion can intervene in a petition under Articles 226 or 227 of the Constitution of India.
The order impugned passed by single member cannot withstand judicial scrutiny on the touch stone of the Office Order of the State Commission dated January 2, 2014.
In such circumstances the order impugned in this petition is set aside. C.O. No. 711 of 2014 is allowed. No order as to costs.
[DEBANGSU BASAK, J.]