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 .
With the above view IA 5410-2020 DISMISSED by the
bench comprising Sm Kanti Kar Dinesh Singh
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