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Judgment
THIS complaint was presented in the registry by Mohammad Abdullah on 8.1.96 praying for a direction that the opposite party be directed to pay Rs. 13,65,400/- with interest @ 18% from 30.1.79 to 20.4.93 and till the payment is made along with compound interest thereon. He has also prayed for a direction that Rs. 15,000/- be paid as compensation for his approach and efforts made during the period from 20.4.93 to 2.9.95 along with interest @ 18%, Rs. 15,000/- as compensation for mental agony and harassment and the cost of the proceedings.
THE case of the complainant, as alleged, is for recovery of commission charges of Rs. 10,65,000/ - @ 15% interest for the order supplied through him for a period from 30.1.79 to 30.4.92 out of which he was paid Rs. 5,000/- and the balanceof Rs.5,65,000/- remained to be paid. He has claimed on this balance of Rs. 5,65,000/- a commission of Rs. 1,50,000/- interest @ 18% Rs. 1,30,000/-, and compound interest from 30.3.79 to 20.4.93 Rs. 1,30,000/- and also compensation of Rs. 3,90,400/- for 70 rounds taken by him to collect his amount of commission during the period from 20.3.79 to 20.2.92. THE complainant has alleged that the opposite party entered into an agreement with the complainant for engaging him as tourist and agent for seeking the supply orders for the opposite party on a commission of 15% but he was not paid the commission for the period 30.1.89 to 20.4.93 as alleged above and thereby opposite party has violated the terms and conditions of the con tract and therefore, he as a compulsion moved this complaint before this Commission for a direction for payment of the balance of the commission along with interest and other reliefs as already mentioned above. In para one and six of the complaint the complainant has admitted that the opposite party in order to avoid the payment of the commission to the complainant has falsely instituted a suit in the District Court, Aligarh. On the very face of the reading of the complaint it appears a case of recovery of the commission amount in accordance with the terms and conditions of a contract between the complainant and the opposite party which does not appear to be a ''consumer'' dispute. On this issue the learned Counsel Mr. S.C. Awasthi for the complainant sought adjournment on 30.10.96, 1.11.96 and 21.11.96 and again on 27.11.96 to show law on the point whether the dispute alleged in the complaint for recovery of commission in terms of the agreement is a ''consumer dispute'' as contemplated under the provisions of the Consumer Protection Act, 1986 and the question of the jurisdiction of the two Members of the State Commission in the absence of the President, who has gone abroad, to hear, decide and sign the order in disposal of the complaint. But on 29.11.96 for which this case was adjourned for preliminary hearing xxx no one appeared on behalf of the complainant nor any application for adjournment has been received. Therefore, we have reserved the order to be given later on when we look into this matter ourselves.
Before we proceed to decide the issue whether the dispute alleged in the complaint is a ''consumer'' dispute or not, we would like to take up the second issue whether the two Members of the State Commission have jurisdiction to dispose of the complaint and pass orders during the existence of the vacancy in the office of the President who has gone abroad and expected to return after December 31,1996. This issue has already been decided and set at rest by us in Appeal No. 1959/SC/1993, Rakesh Gupta v. Ashok Interprises, and decided on 21.11.96 in the light of the procedural law laid down by the Supreme Court in Gulzari Lal Agrawal v. Accounts Officer, III (1996) CPJ 12 (SC)=1996 (7) Supreme page 505, decided on 25.9.96. Since this question of jurisdiction of the two Members in the absence of the President has again been specifically raised in this case, we take up it again to examine, and decide.
THE apprehension of the complainant''s learned Counsel was that on the face of the plain reading of Sections 14(2) and (2-A) - of the Consumer Protection Act, 1986 the President along with the Members or atleast one Member shall participate in the proceedings of hearing of the complaint , and also the President along with Members who have participated in the conduct of the proceedings shall also sign the order and in case of difference of opinion the majority view shall be the order of the Commission. Sections 14(2) and (2-A) are read as follows: "14(2):- "Every proceeding referred to in sub-para (1) shall be conducted by the President of the District Forum and alteast one Member thereof sitting together. Provided that whether the Member, for any reason, is unable to conduct the proceeding till it is completed, the President and the other Members shall conduct such proceedings de-novo."
(2-A): "Every order made by the District Forum under Sub-section 1 shall be signed by its President and the Member or the Members who conducted the proceeding; Provided that where the proceeding is conducted by the President and one Member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to other Member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum."
These provisions of Sections 14(2) and 14(2-A) have been made applicable for the disposal of the complaints with such modification as may be necessary for the disposal of disputes by the State Commission u/Section 18 of the Consumer Protection Act, 1986. This Section 18 reads as follows: "Procedure applicable to State Commission.- The provisions of Sections 12,13 and 14 and the rules made thereunder for the disposal of the complaints by the District Forum, shall with such modifications as may be necessary be applicable to the disposal of the disputes by the State Commission."
THUS according to Section 18 of the Consumer Protection Act, 1986, the provisions contained in Sections 12,13 and 14 have been made applicable in the matter of the disposal of the complaint before the State Commission with such modifications as are necessary and the rules made thereunder have also been made applicable in these matters before the State Government also. Section 12 provides the manners in which the complaint shall be made. Section 13 prescribes a procedure on receipt of the complaint and Section 14 provides for the conduct of the proceedings and final direction to be given by the Fora constituted under the Consumer Protection Act. Sub-rule (3) of Rule 14 also provides that subject to the foregoing provisions the procedure relating to the conduct of the meetings of the Fora its sittings and other matters shall be such as may be prescribed by the State Government. THUS it is clear that the State Government has been empowered to frame rules for prescribing the procedure in dealing with the proceedings of the complaint filed before the District Forum, State Commission or the National Commission with such modification as are necessary. Section 30(2) of the Act empowers the State Government to make rules by notification for carrying out the provisions contained in Clause (b) of Sub-section (2) and Sub-section (4) of Section 7, Sub-section (3) of Section 10, Clause- C of Sub-section (1) of Section 13, Sub-section (3) of Section 14, Section 15 and Sub-section (2) of Section 16. Accordingly the State Government has made rules which are known as U.P. Upbhogta Sanrakachhan Niyamawali, 1987, (U.P. Consumer Protection Rules, 1987). Sub- rules (9) and (10) of Rule 6 of U.P. Consumer Protection Rules, 1987 read as below: "(9) Where any such vacancy occurs in the office of the President of the State Commission, the senior-most (in order of appointment) Member, holding office for the time being, shall discharge the function of the President until a person appointed to fill such vacancy assumes the office of the President of the State Commission."
(10) Where the President of the State Commission is unable to discharge the function owing to absence, illness or any other cause, the senior-most (in order of appointment) Member of the State Commission shall discharge the function of the President until the date on which the President resumes the charge of his functions. Sub-rule (10) of Rule 7 of the U.P. Consumer Protection Rules, 1987 reads as follows:- "Orders of the State Commission shall be signed and dated by the Members of the State Commission constituting the Bench and shall be communicated to the parties free of charge."
THE above rules, therefore, clarify the position that while there is a vacancy in the office of the President due to his retirement or resignation or otherwise or the President is unable to discharge the function owing to absence, illness or any other cause, the Members of the Commission shall conduct the proceedings in the matter of hearing and disposal of the complaint filed under Sub-section (1) of Section 17(a)(i) of the Act.
SECTION 29-A which was added by the Legislature by the Act 34 of 1991 with effect from 15.6.91 reads as follows: "SECTION 29-A:- Vacancy or defects in appointment not to invalidate orders'' - No act or proceeding of the District Forum, the State Commission, or the National Commission shall be invalid by reasons only of the existence of any vacancy amongst it''s Members or any defect in the constitution thereof."
This section provides that any act or proceeding taken by the State Commission shall not be invalid by reasons only of the existence of any vacancy amongst its Members. The term "Member" has been defined under Sub-section (1)(ii) of Section 2 as follows: "Member" includes the President and a Member of the National Commission or a State Commission or a District Forum as the case may be." According to above definition the President is also included in the term Member in the afore- said Section 29-A of the Act. Therefore, the action or proceeding can be taken in the absence of the Member including the President and such proceeding in the matter of complaint or appeal shall be valid. Vacancy in the office of the President or Member may be caused as already observed above due to retirement, resignation or delay in appointment or may be due to the absence of the President or the Member on account of illness, leave or any other cause. In the present case the President of the State Commission is not available and non-functional as he has gone out (abroad and in expected to return after December 31,1996 and, therefore, there exists the vacancy in the office of the President and during existence of the vacancy due to the absence of the President the other two Members of the State Commission are vested with the jurisdiction to hear, dispose of the complaint in view of the provisions of Section 29(4) of the Consumer Protection Act, 1986 read with Sub-rules (9), (10) of Rule 6 and Sub-rule (10) of Rule 7 of the U.P. Consumer Protection Rules, 1987. This view finds support from the recent decision of the Supreme Court in Gulzari Lal Agrawal v. Accounts Officer, III (1996) CPJ 12 (SC)=1996 (7) Supreme 505 decided on September 25,1996. The para 17 of the decision of the Supreme Court is relevant in this matter which reads as follows: "17. After giving careful thought to the rival contentions raised before us, we are of the considered opinion that the relevant provisions which we have quoted herein above will have to be construed harmoniously to promote the cause of the consumers under the Act. As indicated earlier, the definition of Member includes the President and a Member of a District Forum/ State Commission. It is true that Sub-section (2) of Section 14 read with Section 18 require that every proceeding referred to under Sub-section (1) shall be conducted by the President of the District Forum/ State Commission and atleast one Member thereof sitting together. Sub-section 2-A is consequential in the sense that every order made by the State Commission under Sub- section (1) shall be signed by its President and the Member or Members who conducted the proceeding. The procedure applicable to the District Forum is made applicable to the State Commission vide Section 18 with such modifications as may be necessary. Plain reading of Sub-sections (2) and (2A) of Section 14 may support the view taken by the National Commission but if these provisions are read with Section 29A of the Act and Sub-rules (9) and (10) of Rule 6, it would be quite clear that it could never be the intention of Legislature to stall or render the State Commission non-functional in the absence of the President either having not been appointed in time due to some valid reasons or if the President is on leave due to certain reasons beyond his control. Sub-sections (2) and (2A) of Section 14 and Section 18A of the Act were brought into force with effect from 18.6.93 whereas Section 29A was made applicable from 15.6.91. The Rules of 1987 were brought into force immediately. The complaint before the District Forum by the appellant was filed on 4.10.93. Therefore, all these amended provisions were very much brought into force when the complaint was filed. Sub-section (2) of Section 14 is a presumptuous provision where the President of the State Commission is functional but it would not be correct to say that if the President of the State Commission is non- functional because of one or the other reason, the State Commission would stop its functioning and wait till the President is appointed. In order to avoid such a situation, the State Government has framed the Rules and Sub-rules (9) and (10) quoted herein-above unmistakably provide answer to such a situation as in the present case. The only harmonious construction that could be given to Sub-sections (2) and (2A) of Section 14 read with Sub-rules (9) and (10) of Rule 6 is that as and when the President of the State Commission is functional, he alongwith alteast one Member sitting together shall conduct the proceeding but where the President being non- functional, Sub-rules (9) and (10) of Rule 6 will govern the proceedings. Sub-rule (9) provides that where any such vacancy occurs in the office of the President of the State Commission, the senior-most (in order of appointment) member holding office for the time being, shall discharge the function of the President until a person is appointed to fill such vacancy. This sub-rule is made with a view to make the State Commission functional in the absence of the President and not to allow the State Commission to render non-functional for want of the President. It is well settled that every provision in the Act needs to be construed harmoniously with a view to promote the object and spirit of the Act but while doing so, no violence would be done to the plain language used in the section. It is this principle that needs to be made applicable while construing the provision of Sub-sections (2) and (2A) of Section 14 read with Sub-rules (9) and (10) of Rule 6 above".
This decision of the Supreme Court refers to the Sub-rules (9) and (10) of Rule 6 of the West Bengal Consumer Protection Rules, 1987 which are similar and identical to Sub-rules (9) and (10) of Rule 6 of the U.P. Consumer Protection Rules, 1987 which are produced below:-West Bengal Consumer Protection Rules, 1987. U.P. Consumer Protection Rules, 1987 1. 6(9): Where in such occurs in the office of the 1.6(9): Where is such vacancy occurs in the President of the State Commission the office of the President of the State Commission senior-most (in order appointment) Member, the senior-most (in order of order of appointment) holding office for the time being, shall discharge Member, boding office for the time being, shall the function of the President discharge me function of the President of the of the State Commission. State Commission until a person appointed to fill such vacancy assumes the office of me President of the State Commission. 2.6(10):- 2.6(10):- When the President of the State Commission is When the President of the State Commission is unable to discharge the function owing unable to discharge the function owing to absence, to absence, illness or any other cause, the illness or any other cause, the senior-most senior-most (in order of the appointment) (in order of appointment) Member of the State Member of the State Commission shall Commission shall discharge me functions discharge the functions of the President of the President until the day on which the President until the day on which the President resumes the charge of the functions. resumes the charge of the functions.
THUS the above ruling of the Supreme Court also supports that in the absence of the President who is non-functional because of his going abroad, the Members have full jurisdiction to taken up the proceedings, hear and dispose off the matters of complaints filed u/Section 17(a)(i) of the Act. Now we proceed to decide the issue whether me dispute, raised in the complaint of Sri Mohammad Abdullah is a consumer dispute. As already observed the case of the complainant is in respect of the money recovery in a specific performance of a contract between him and the opposite party regarding the agency on the basis of the commission @ 15% against the orders supplied by him. This is neither a case of sale of good s for self consumption nor a case of service as contemplated u/Sections 2(1)(d) and (o) of the act. The reliefs prayed for are of the nature of a recovery of the amount of commission which is a subject matter of Civil Court and not of a consumer case. As per the allegations of the complainant the case is otherwise. The opposite party has taken the services of the complaint of payment of consideration of 15% commission on the sale against the order supplied through him. Therefore, there is no case of the complainant also of hiring or availing of the service of the opposite party on consideration. Therefore, the complainant is not maintainable.
THE claim alleged in the complaint is also barred by time as it related to the commission for the period from 30.1.79 to 20.2.92 or 1993 while the complaint was filed before the State Commission on 8.1.96 after the expiry of the period of two years. No explanation of delay or prayer for condonation thereof has been made. THErefore, on this ground too this complainant is not maintainable. As admitted by the complainant in paras(1) and (6) of the complaint the opposite party had already filed a suit in the District Court for the same dispute of the Commission, the case is sub-judice and as such not maintainable as consumer case. The complaint is accordingly dismissed being non-maintainable. We leave the party to bear his own cost as the matter has been disposed of at the preliminary hearing without issuing the notice to the opposite party.
LET a copy of this order be made available to the complainant within a week. Complaint dismissed.