Kerala High Court
Jagannatha Prasad @ Reghu vs State Of Kerala on 13 December, 2021
Author: Shaji. P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TH
MONDAY, THE 13 DAY OF DECEMBER 2021 / 22ND AGRAHAYANA, 1943
WA NO. 1622 OF 2021
AGAINST THE JUDGMENT IN WP(C) 20153/2021 OF HIGH COURT OF KERALA DATED 30.9.2021
APPELLANT/PETITIONER:
JAGANNATHA PRASAD @ REGHU, AGED 65 YEARS, S/O. LATE C. SAHADEVAN, C.S.
SADANAM, NEAR KSRTC STATION, T.B. ROAD, KOTTAYAM-686 001.
BY ADV ROY CHACKO
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE DISTRICT COLLECTOR, KOTTAYAM-686 001.
3 THE DEPUTY TAHSILDAR (RR), TALUK OFFICE,
MINI CIVIL STATION, KOTTAYAM-686 001.
4 K. VENUGOPAL, ARACKALSREEGOKULAM, THIRUVATHUKKAL,
KOTTAYAM WEST P.O, KOTTAYAM-686 003.
5 SUSHEELA, W/O. K. VENUGOPAL, ARACKAL SREEGOKULAM, THIRUVATHUKKAL,
KOTTAYAM WEST P.O, KOTTAYAM-686 003.
SRI.K.P.HARISH, SR.G.P.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WA NO. 1622 OF 2021
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C.R.
JUDGMENT
Dated this the 13th day of December 2021 SHAJI. P. CHALY, J.
The captioned appeal is preferred by the petitioner in W.P. (C)No.20153/2021 challenging the judgment of the learned Single Judge dated 30th September 2021 by which, the following relief sought for in the writ petition was declined:
"Issue a writ of certiorari or any other appropriate writ, order, or direction calling for the records relating to Exhibits P10 and P15 issued by the District Consumer Redressal Commission, Kottayam and to quash the same."
2. Brief material facts for the disposal of the appeal are as follows:
Appellant was one of the opposite parties in C.C.No.1055 of 1998 on the files of the District Consumer Dispute Redressal Forum, Kottayam. The complaint was in respect of an agreement executed by and between the complainant and the Managing Director of a construction company for constructing a building having an area of 2035 sq. ft. at the rate of Rs.250 per sq. ft. and the total cost of construction was agreed to be Rs.5,08,732.50. According to the complainant, the complainant paid a total sum of Rs.7,01,119/- for the said construction, and the key of the WA NO. 1622 OF 2021 :: 3 ::
house after the construction was handed over on 2.2.1998. It was the case of the complainant that a number of defects were noticed by the complainants in the building and there was leakage in the rooms, dampness on the walls of the building and the materials used were not of good quality, etc. Anyhow, the complaint was allowed by the District Forum granting compensation to respondents 4 and 5 herein and the decision of the Forum was affirmed in appeal by the Consumer Disputes Redressal Commission with a modification in favour of the appellant. The appellant and the party respondents challenged the decision of the State Commission before the National Consumer Disputes Redressal Commission and as per Ext.P1 order, the National Commission upheld the decision of the Forum and the State Commission with a modification in favour of respondents 4 and 5. Thereupon, the complainants instituted proceedings before the Forum for enforcement of the decision of the Forum with the modification made by the National Commission and the said proceedings are pending consideration. In the meanwhile, at the instance of respondents 4 and 5 i.e., the complainants, the Forum issued a notice to the appellant directing him to show cause why penalty in terms of Section 27 of the Consumer WA NO. 1622 OF 2021 :: 4 ::
Protection Act, 1986 shall not be imposed on the appellant, evident from Ext.P10. It is thus, basically challenging Ext.P10, the writ petition was filed. Ext.P15 is the order sheet of the Forum in E.A.No.214/2018 dated 8.7.2021 whereby, notice was issued to the respondents in the Execution Application under Section 27 of the Consumer Protection Act, 1986 and the matter was adjourned to 25.8.2021. The paramount contention advanced by the appellant before the writ court was that in the light of Sub Section 3 of Section 25 of the Act, 1986, the non compliance that is alleged is an order of the National Commission and therefore, proceedings under Section 27 of the Act, 1986 can be initiated only by the National Commission. Yet another contention was that in terms of Sub Rule 2 of Rule 15A of the Consumer Protection Rules, 1987 (Rules 1987), 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 proceedings and insofar as Ext.P1 order of the National Commission is not signed either by the President or the Senior most member of the Commission, the proceedings initiated under Section 27 of Act, 1986 is without jurisdiction. The learned Single Judge after appreciating the WA NO. 1622 OF 2021 :: 5 ::
scope of Sections 25 and 27 of Act, 1986 and Rule 15A of Rules 1987 has dismissed the petition holding that a reading of the provisions would show that the contentions raised by the appellant has no legal basis and therefore, the appellant was not entitled to get any relief. It is thus, challenging the legality and correctness of the judgment of the learned Single Judge, the appeal is preferred.
3. We have heard Sri.Roy Chacko appeared for the appellant, Sri.K.P.Harish, learned Senior Government Pleader for respondents 1 to 3 i.e., the State and its officials and perused the pleadings and materials on record.
4. The sole question to be considered is whether any manner of interference is required to the judgment of the learned Single Judge. The paramount contention advanced by the appellant is that the Consumer Disputes Redressal Forum was not right and legal in issuing Ext.P10 show cause notice in E.A.19/2016 in C.C.1055/1998 under Section 27 of the Act 1986 asking the appellant to show cause why action shall not be initiated against the appellant in the Execution Application. The case advanced is that the order passed by the District Forum was modified by the National Commission as per Ext.P1 common WA NO. 1622 OF 2021 :: 6 ::
order dated 20.10.2015 in R.P.No.107/2011 and 1870/2011, and therefore, going by the provisions of Section 27 only the National Commission is vested with powers to initiate the proceedings under Section 27. In order to understand the real and true implication of Section 27, a reference to Section 25 of Act, 1986 would be relevant, which is extracted hereunder:
"Section 25 in the Consumer Protection Act, 1986:
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, 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.]"
5. Therefore, on a reading of Section 25(3), it is clear that it deals with the primary order passed either by the District Forum or the State WA NO. 1622 OF 2021 :: 7 ::
Commission or the National Commission, and that is why Sub Section 3 is couched in such a manner so as to contain the orders passed by the three different bodies in their jurisdictional hierarchy. This is because as per the Act 1986 the District Forum, the State Commission as well as the National Commission have original jurisdiction to entertain and adjudicate complaints in accordance with the pecuniary jurisdiction conferred on the said authorities under the Act 1986, and amended from time to time. Now bearing in mind the said legal principle, we proceed to consider Section 27 of Act 1986, which reads thus:
Section 27 in the Consumer Protection Act, 1986:
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 96 [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:
[xxxx] [(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.] WA NO. 1622 OF 2021 :: 8 ::
6. On an analysis of the said provisions also, it is clear that the three different bodies are separately and individually identified in the matter of exercising their jurisdiction, paraphrasing or adding a rider, "as the case may be", to denote significantly and with precision the primary authority which passed the order, and competent to take action in accordance with the powers conferred thereunder. Thus to say, merely because an order passed by a primary authority is modified by an appellate or revisional authority one cannot insist that due to the modification so made the order is to be implemented by the final authority which modified the order of the primary authority or the first appellate authority. To put it otherwise, Sections 25 and 27 deal with the execution of the orders passed by the appropriate forum/ commission on the basis of its primary order. This is a case where the primary order was passed by the District Forum and apparently some modification was made by the State Commission to the disadvantage of the complainants also, and it was aggrieved by the same, both parties preferred revision before the National Commission, and the National Commission as is evident from Ext.P1 order has modified the orders of the District Forum as well as the State Commission to the advantage of WA NO. 1622 OF 2021 :: 9 ::
the complainants. Ultimately, it is that order modified and passed by the National Commission is to be executed by the District Forum which passed the primary order. Even though arguments were advanced by learned counsel for the appellant that the recitals contained in Sections 25 and 27 would establish that since the order is modified by the National Commission, only the National Commission is vested with powers to issue certificate to the appropriate statutory authority as per the provisions of sub section 2 of Section 27, we are unable to agree with the same and if we make an interpretation as is contended by learned counsel for the appellant, we are of the clear opinion that we would be doing violence to the provisions of law, and putting the complainant into more and more difficulties, which would be quite detrimental and hampering the intention of the Consumer Protection Act, 1986 for speedy justice. Therefore, we are of the definite opinion that there is no requirement for interference with the order of the single judge in regard to the provisions of Sections 25 and 27 of the Act, 1986. The next question raised by the appellant is on the basis of Rule 15A of the Rules, 1987 which reads thus:
15A. Sitting of the National Commission and signing of orders.-
WA NO. 1622 OF 2021 :: 10 ::
(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 where the member or members for any reason are unable to conduct the 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 stage 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 in 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 accordingly to the opinion of the majority of the National Commission.
7. On a deep seated survey of Section 15A(1), it is clear 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 under the circumstances where, a bench is constituted by the President of the National Commission with one or more members as he may deem fit. On a bare and simple reading of Sub Rule (1) of Rule 15A, it is clear that the President or the senior most WA NO. 1622 OF 2021 :: 11 ::
member is entitled to conduct proceedings of the National Commission in accordance with the statutory prescription as above. However, the members are not entitled to sit single and conduct the proceedings and that is why, it is clearly specified that the proceedings shall be conducted at least by two members thereof sitting together. We are unable to understand how the appellant can say that since the proceedings are to be conducted by the President or senior most member the two members are not empowered to sit together and conduct the proceedings. It is equally fallacious to contend that even if an order is passed by the two members sitting together such an order needs to be signed by the President or the Senior most member. We could not locate any such requirement in Rule 15A of the Rules, 1987, and in order to contain the argument so advanced by learned counsel for the appellant we would have to add or employ words or phrases into the said provision. It is well settled in law that one will have to appreciate and interpret the provisions of a statute and the Rules as they remain as such in the statute book and it is not for the courts to provide interpretation by adding words or phrases to the provisions of law. Considering the issue raised by the appellant in that regard also, WA NO. 1622 OF 2021 :: 12 ::
we do not find any reason to interfere with the judgment of the learned Single Judge.
8. Above all, a Division Bench of this Court in Jose P.K. v. Aby.M.S. and others 2014 KHC 423 = 2014 (3) KLT 333 in regard to the composition of State Commission by interpreting the provisions with regard to the same and held that the adjudication by the State Commission can be either by a single member bench or by a bench with more members and the orders of the Commission shall be signed by those who adjudicated the proceedings. We are also unable to agree with the contention advanced by the learned counsel for the appellant that even if the President of the National Commission or a senior member was not a party to the bench they should sign the order. It is well settled in law that an order or the judgment would be signed only by the author or the authors of the order or judgment, and nobody can be compelled to sign an order passed by a judicial forum or a statutory authority without being a consenting party to an adjudication of the litigation.
9. Above all these aspects, if in any case the order passed by the National Commission has got any legal infirmity as is contended above, a court executing a decree or a writ court cannot be required to WA NO. 1622 OF 2021 :: 13 ::
adjudicate such an issue but the appellant ought to have worked out his remedy to correct the alleged error in accordance with law and as provided as per Section 22(2) of the Act 1986. Therefore, there is no justification for the appellant to deviate from the track provided under the Act, 1986 and thus making an attempt to challenge the order of the National Commission collaterally by resorting to Article 226 of the Constitution of India.
Considering all the above facts and circumstances, we have no hesitation to hold that the appeal lacks merit and the appellant could not establish any jurisdictional error or other legal infirmities justifying our interference in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958. Needless to say, the appeal fails and accordingly, it is dismissed.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
SHAJI P. CHALY JUDGE jes