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Judgment
Subhash Chandra, Presiding Member
This appeal challenges the order dated 07.09.2021 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Complaint no. 1543 of 2017 on the grounds that the order was passed by a Member sitting singly and that the same is therefore, non-est being without jurisdiction.
The facts of this case pertains to the respondent/ complainant seeking possession of a flat booked by him with the appellant/ opposite party in a project named ‘The Ridge’ in which respondent no.2 had allotted flat no.1201, 12th Floor ad-measuring 650 sq ft, plot no. 288, Mogul Lane, Mahim, Mumbai 400 016 for a sale consideration of Rs.84 lakh with one parking facility. Despite promising to hand over possession within 18-24 months after having issued the allotment letter dated 21.05.2012 and having collected a sum of Rs.40 lakh from the respondent, possession was not handed over by the respondent as promised. Permission for construction was reportedly obtained in October 2015. Therefore, the respondent approached the State Commission by way of a complaint which ordered in his favour directing refund Rs.40 lakh along with interest @ 12% per annum, compensation of Rs.1.00 lakh and cost of Rs.25,000/- to be paid within 30 days failing which, default rate of interest would be 18% per annum.
This order has been challenged by way of the present First Appeal on the grounds that the order was passed without jurisdiction, in view of the judgment of the High Court of Rajasthan at Jodhpur in Divisional Manager NIC Ltd., Jodhpur vs Rajasthan State Consumer Disputes Redressal Commission and Ors., in SB Civil Writ no.1972 of 2012 holding that a Member of the State Commission sitting singly does not have the jurisdiction to decide matters. It was also contended that the order of the High Court of Rajasthan in Civil Special Appeal (Writ) 1779 of 2018 in State of Rajasthan vs Kamal Travels Ors decided on 04.07.2019 held similarly. It is further contended by the Appellant that the order was upheld by the Hon’ble Supreme Court in SLP (C ) no. 4969 of 2020 in State of Rajasthan vs Kamal Travels and Others. Therefore, it was argued that in view of the settled law that a jurisdiction issue can be raised at any point and since the jurisdiction of the State Commission comprising of single Member Bench was no longer res integra, the impugned order dated 07.09.2021 should be set aside in view of the fact that an order passed without jurisdiction is a nullity.
Per contra, the respondent argued that the order of the State Commission was passed prior to the judgment of the Hon’ble Supreme Court in SLP (C ) 4969 of 2020 and that the issue of jurisdiction being raised by the appellant in appeal had not been raised earlier before the State Commission. It was argued that the Act provided for a single Member hearing a matter as per section 22 (d) of the C P Act 1986 read with section 29 (a).
We have heard the rival contention of both the parties and perused the material on record.
The central question in this appeal is whether a Member sitting singly constitutes a Bench in the light of the judgment of the Rajasthan High Court in Divisional Manager NIC Ltd., Jodhpur (supra) and Kamal Travels and Ors., (supra).
It is thus evident that Section 16 (1) (b) inserted by the Act 62 of 2002 to amend the act provides that a Bench may be constituted by the President with one or more members as the President may deem fit.
In view of this provision of law which authorises the President of the State Commission to constitute a Bench comprising of either a single Member or of more than one Member, the contention of the appellant that the order of the State Commission was without jurisdiction since it was passed by a Member sitting singly does not hold water and cannot be sustained.
Section 16 of the Consumer Protection Act, 1986 deals with the composition of the State Commission and reads as under:
Composition of the State Commission.— (1) Each State Commission shall consist of—
(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President:
1[Provided that no appointment under this clause shall be made except after consultation with the Chief Justice of the High Court;]
2[(b) not less than two, and not more than such number of members, as may be prescribed, and one of whom shall be a woman, who shall have the following qualifications, namely:—
(i) be not less than thirty-five years of age;
(ii) possess a bachelor’s degree from a recognised university; and
(iii) be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration:
Provided that not more than fifty per cent. of the members shall be from amongst persons having a judicial background.
Explanation—For the purposes of this clause, the expression “persons having a judicial background” shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level:
Provided further that a person shall be disqualified for appointment as a member, if he—
(a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude; or
(b) is an undischarged insolvent; or
(c) is of unsound mind and stands so declared by a competent court; or
(d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or
(e) has, in the opinion of the State Government, such financial or other interest, as is likely to affect prejudicially the discharge by him of his functions as a member; or
(f) has such other disqualifications as may be prescribed by the State Government.]
[(1A) Every appointment under sub-section (1) shall be made by the State Government on the recommendation of a Selection Committee consisting of the following members, namely:—
(i) President of the State Commission.......Chairman;
(ii) Secretary of the Law Department of the State.......Member;
(iii) Secretary incharge of the Department dealing with Consumer Affairs in the State.......Member:
Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.
(1B) (i) The jurisdiction, powers and authority of the State 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.
(iii) If the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it.].
From the foregoing, it is amply clear that the intent of the legislation is that a Bench may be constituted by the President and comprise of either one or two members. In the instant case, the Bench constituted by the President of the State Commission comprised of a single Member which is as per the statute. In view of the fact that the only ground taken by the appellant during the arguments pertains to the validity of an order passed by a Bench constituted by a single Member, in the light of the foregoing discussion, the appeal cannot be sustained. It is accordingly dismissed as without merit. The impugned order of the State Commission is affirmed.
All pending IAs if any, shall stand disposed of in the light of this order.