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

Law Points :

1.      Whether a matter involving question of law can be heard by a Bench with no judicial member.

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

3.      Whether pending matters are to  be transferred to appropriate commission after enhancement of pecuniary jurisdiction 

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

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

5.      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

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

Issue - 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.

SC in earlier decided case of  Chandra Kumar V/S  Union of India 18.3.1997

(2) Whether the Tribunals, constituted either under Article 323A or under Article 323B of the Constitution, possess the competence to test the constitutional validity of a statutory provision/rule?

 had held –Its only SC & High Courts of the country who can hear and decide the constitutional validity of any tribunal under  Article 32 and Artile 226 of the constitution and none else.But there is no constitutional prohibition against performing a supplimenal role in this respect.

“the tribunals are competent to hear matters where virus of statutary provisions are questioned However in discharging this duty they cannot act as substitute for High courts &supreme court which have under our constitutional setupbeen specifically entrustedwithin such obligation ”

It further noted-“ the tribunal shall not entertain any question regarding vires of their parent statute following the settled principal that tribunal which is a creation of an act cannot declare that very act be unconstitutional “

With the above theory.this commission  held on this issue  of competency of the bench to test the competency of constitution of bench -

No bench can examine virus of parent statute

It was also  elaborated in the matter of HD FC BANK V ANURAG GUPTA SLP .

·         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 .

!) For this issue law under ealier act 1986 and law under new act 2019 are very clear Provisions for constitution of benches

Section 20(1A) of Act 1986 & Sec 58 of Act 2019

Section 20 in the Consumer Protection Act, 1986.

 [(1A) (i) The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof.

 (ii) A Bench may be constituted by the President with one or more members as the President may deem fit.

Section 58 (2) of Consumer Protection Act 2019 The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof and a Bench may be constituted by the President with one or more members as he may deem fit: Provided that the senior-most member of the Bench shall preside over the Bench.

With the above provisions ,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

!!) There are precedents Even under the old law Act 1986 under section 9 (establishment of benches ) and Section 53 of act 2019 (establishment of benches )when single member benches were constituted and were held valid

(Referred Case HDFC Bank V/S Anurag Gupta SLP No 31303/31304 OF 2018)

“we find that councel declined to argue the case on merits and sought transfer of the case to another bench on the ground that onlu bench comprising  judicial membere should hear the matter at the outset we make it clear that we disapprove of this conduct .The objection was thoroughly frivolous and attempt to brow beat the bench”.

!!!) We may further refer to the case of Chandra Kumar V/S  Union of India 18.3.1997 in which this issue was taken up with great concern .It held –

“so long as the jurisdiction of High Court under aticle 226/227 and that of this court under  Art 32 is retained there is no reason why the power to test the validity of legislation against provisions of constitution cannot be conferred upon tribunal created under the act or under art 323 b of the constitution ”

It was further quoted-

“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

Hence no argument to creat bench with only judicial ,sc retired judge is competent to decide capable members to adjudicate the mater

Court further observed that If not allowed non judicial member bench then

1.      May split proceedings

1.      may cause delay

2.      question of law involved in many special benches of tribunal art 14 ,15 16 ,if not allowed to deal with constitutional question purpose of constitution of tribunal not served for which they are constituted

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

With Regard to Regulation 2020 , it reads as follows

Regulation 12 Hearing of benches

When a bench is constituted by the president of the state commission or national commission as provided under sub section (2)of section 47 and sub section 2 of section 48 as the case may be ,does not have a member with judicial background and any question of law arises and there is no precedent to decide on the point ,then the bench constituted may refer the matter to the president to constitute another bench in which president should be the member.

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.

Number of cases decided refered from 1014 till 2020 for coming to above conclusion

This objection standas DISMISSED

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

!)There is no provision for transfer of pending cases in the new Act of 2019 was another question to be delt by the Supreme Court  Replying to this query Court held  any direction for the transfer of existing cases would entail disturbing thousands of cases pending before the NCDRC and SCDRCs across the country. data indicates that as on 31 October 2019, 21,216 cases were pending before the NCDRC and 1,25,156 cases were pending before the SCDRC This would cause serious hardship and prejudice to consumers and a waste of judicial time invested till date.!!)Clear words indicative of either an express intent or an intent by necessary implication would be necessary to achieve this result. The Act of 2019 contains no such indication.

!!!)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

!V)Previous decisions of the NCDRC which had interpreted amendments that enhanced pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd.58 construed amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003 as prospective by relying on its earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran, where the NCDRC held that the amendments enhancing the pecuniary jurisdiction are prospective in nature

v)Section 6 of General clauses act 1897 makes it clear that pending proceedings will not be impacted in any manner

V!)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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