Law laid down / Summery

Narinder Chopra v/s Jaiprakash Associates (NC)

Consumer Complaint no 3258 0f 2017 Along with IA 330 OF 2021 & IA 1130 OF 2021

Decided on 16.5.2021

Facts of the case

·         Consumer Complaint was instituted by Narinder Chopra  on 7.11.2017 and admitted on 20.11.2017.Pleading completed ,evidence taken and matter comes to the  at the stage of argument.

·         Act 2019 came into force on  20.7.2020 repealing the earlier Consumer Protection Act 1986

·         Builder files interlocutory application no IA 5410 of 2020 for transferring the present complaint 3258 0f 2017 to appropriate commission. Application dismissed on 14.9.2020 stating therein that Act 2019 came into force with prospective effect and not retrospective in nature–transfer of case not allowed.

·         Builder files writ against the dismissal order of NCDRC.High Court of Delhi set aside order dated 14.9.2020 of NCDR with direction to commission to decide the issue on its own merits without influenced by administrative order dated 20 .7. 2020

·         Since no reason was given by the commission while dismissing interlocutory application ,NCDRS  on 22.12.2020 ordered to put the case before Hon’ble  President for necessary direction 15.1.2021 President rescues himself from the bench ,on 17.1 29021 directs the case to be put up before the bench on 2.7.2020 in which President J R K Agrawal is no more member

·         Now two more applications are clubbed with this application which were pending before this court against builder for dismissing his application for transfer of case. 

IA NO 330/12-CCNO 344/2019

IA NO 1190/21 FOR CCNO 2440/19

 

Bench heard the case on 29.1.2021,8.2.21,9.2/21&10.2.21

 

IA NO 5410/2020

ISSUES RAISED

1.      A matter involving question of law cannot be heard by a Bench with no judicial member.

2.      Regulation 12 empowers the NCDRF President to constitute another bench with at least one judicial Member enabeling the bench to hear matter involving question of law

3.      Pending matters be transferred to appropriate commission after enhancement of pecuniary jurisdiction 

 

Issue 1- A matter involving question of law cannot be heard by a Bench with no judicial member

It is basically a Two fold issue

A) Can this bench hear about the question of validity of bench

The question is whether this bench can examine the competency under the law if has been unlawfully constituted.

·         No bench can examine validity of constitution of bench or compostion of bench

·         No one can question kind minuts of Presidents about constitution of bench

·         The Commission held that the Bench can not and should not examine whether or not it lacks competency under law or if has been unlawfully constituted

"No Tribunal can examine act of its parent statute. Specifically, no Bench can examine validity of provisions relating to composition of this Commission or relating to constitution of its Benches by the Hon'ble President of the Commission " the Bench observed

B) Now coming to next question whether a bench must comprise of one judicial member if matter involves  any question of law to be decided .

power and authority may be exercised by the benches ; fixes no bar to exercise power. The senior most member is to preside over the bench which makes further clear there is no special mention of judicial member to be there mandatory

Chandra Kumar V/S  Union of India 18.3.1997 in which this issue was taken up with great concern .It held –

 “since now selection committee is headed by judges of Suprene court and nominated by CJI we have reason to believe that the committee would take care to ensure that administrative members are chosen from among those who have some background to deal with such cases

 

ISSUE -2 Regulation 12 empowers the NCDRF President to constitute another bench with at least one judicial Member enabeling the bench to hear matter involving question of law

Pointed out important word is “MAY”  which calls for debate whether bench has mandate  to refer the matter to president to constitute another  bench with judicial member or is on wisdom of bench

The Bench observed that it is at the considered wisdom of the Bench whether or not it considers appropriate and necessary to refer a matter to the President under Regulations 12.

ISSUE NO 3 Pending matters be transferred to appropriate commission after enhancement of pecuniary jurisdiction

!) A similar question was dealt with by the NCDRC in its Judgment 8 April 2011 in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd. which construed Amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003. Relying on the earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran17, the NCDRC had held that the amendments enhancing the pecuniary jurisdiction were prospective in nature.

!!)The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation. Such provisions are necessary because persons appointed to the consumer fora under the Act of 1986 would have otherwise demitted office on the repeal of the legislation.Similar intend can be presumed for transfer of cases also when it is specifically mentioned in section 107 to continue with the same arrangement so far it is not inconsistent to the new act

 

!!!)At the end this commission also discussed that issue of pecuniary jurisdiction is “abeling as well disabeling” because criteria to calculate pecuniary jurisdiction is also changed in the new act . In earlier act criteria was cost paid plus compensation to be calculated where sa in the present act only cost paid is to be considered . With this calculation total amount to be considered will be Rs  Rs 9731017  and entitlement will be District commission It will gravely prejudiced to consumer as they will lose valuable statutary right to appeal/revision allowed to them under the act .

 

 

 

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