STANISLAUS SUARES vs HOYSALA BUILDING DEVELOPMENT CO. PVT. LTD.

THE point for consideration is, after the Consumer Protection (Amendment) Ordinance, 1993, came into force on 18.6.93, which is the Forum which gets jurisdiction to entertain the complaints where the value of the goods or services and the compensation, if any, claimed does not exceed Rupees five lakhs.

SUB-section (1) of Section 11 of C.P. Act, 1986, prior to its amendment read as under : "(1) SUBject to the order provisions of this Act, The District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed is less than rupees one lakh."

By the amendment of this Section, for the words " is less than one lakh", the words "does not exceed rupees five lakhs," has been substituted. It means, the District Forum, shall have jurisdiction to entertain the complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs.

Section 17 of the C.P. Act, 1986, provides for the jurisdiction of the State Commission. Section 17(a), prior to its amendment, read as under : "Subject to the other provisions of this Act, the State Commission shall have jurisdiction, - (a) to entertain - (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one lakh but does not exceed rupees ten lakhs; and (ii) appeals against the orders of any District Forum within the State; and" Section 17, by the Consumer Protection (Amendment) Ordinance, 1993, has been amended to this extent, in Clause (a), in Sub-clause (i), for the words "one lakh but does not exceed rupees ten lakhs", the words "five lakhs but does not exceed rupees twenty lakhs" has been substituted. This would go to show that the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services and the compensation, if any, claimed exceeds rupees five lakhs but does not exceed rupees twenty lakhs.

Therefore, it is clear that the District Forum, has the jurisdiction to entertain the complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs. So, the complaint, where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs, the District Forum shall have jurisdiction to entertain the complaint from 18.6.93 , that is, from the date of coming into force of the C.P.(Amendment) Ordinance, 1993, amending C.P. Act, 1986.

IT is argued that those of the complaints which are already pending must be disposed of by this Commission as they have already been entertained. IT is the contention that the expression "entertain" found in the Section refers to the initiation of the proceedings and not to the stage when the Commission takes up the complaint for consideration on merits. It is next contended that the words of Section 11 are not retrospective, that the complaint was filed before the Consumer Protection (Amendment) Ordinance 1993 came into force and that the substantive right of the complainant to continue his complaint could not be taken away in the absence of express language or clear intendment. We cannot accept this contention. The expression "entertain" does not mean the same thing as the filing of the complaint or admission of the complaint by the Commission. The meaning of this word "entertain" came up for consideration before the Hon''ble Supreme Court.

THE Hon''ble Supreme Court, in M/s. Lakshmiratan Engineering Work Ltd., v. THE Assistant Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur and Another, AIR 1968 S.C. page 488 held as under: " (7) To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question this arises what is the meaning of the word "entertained" in this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? THE dictionary menaing of the word "entertain" was brought to our notice by the parties and both sides agreed that it means either "to deal with or admit to consideration". We are also of the same opinion. THE question, therefore is at what stage can the appeal be said to be entertained for the purpose of the application of the provision? Is it Entertained" when it is filed or is it "entertained" when it is admitted and the date is fixed for hearing or is it finally "entertained" when it is heard and disposed of ? Numerous cases exist in the law reports in which the word "entertained" or similar cognate expressions have been interpreted by the Courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present, we must say that if the Legislature intended that the word "file" or "receive" was to be used, there was no difficulty in using those words. In some of the statutes which were brought to our notice such expressions have in fact been used. For example, under Order 41, Rule 1 of the Code of Civil Procedure it is stated that a memorandum shall not be filed or presented unless it is accompanied etc., in Sec. 17 of the Small Causes Courts Act, the expression is "at the time of presenting the application". In Section 6 of the Courts Fees Act, the words are "file" or "shall be received". It would appear from this that the Legislature was not at a loss for words if it had wanted to express itself in such forceful manner as is now suggested by Counsel for the State. It has used the word "entertain" and it must be accepted that it has used it advisedly. This word has come in for examination in some of the cases of the Allahabad High Court and we shall now refer to them. (9) THE word "entertain" is explained by a Divisional Bench of the Allahabad High Court as denoting the point of time at which an application to set aside the sale is heard by the Court. THE expression "entertain", it is stated, does not mean the same thing as the filing of the application or admission of the application by the Court. A similar view was again taken in Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543 in which the learned Chief Justice Desai and Mr. Justice Dwivedi gave the same meaning to the expression "entertain". It is observed by Dwivedi, J. that the word "entertain" in its application bears the meaning "admitting to consideration", and therefore when the Court cannot refuse to take an application which is backed by deposit or security, it cannot refuse judicially to consider it.... In yet another case of the Allahabad High Court reported in Haji Rahim Bux and Sons v. Firm Samiullah and Sons, AIR 1963 All 320 a Division Bench consisting of Chief Justice Desai and Mr. Justice S.D. Singh interpreted the words of 0.21, R. 90, by saying that the word "entertain" meant not "receive" or "accept" but proceed to consider on "merits or "adjudicate upon". (10) In our opinion these cases have taken a correct view of the word "entertain" which according to dictionary also means "admit to consideration". It would therefore appear that the direction to the Court in the proviso to Sec. 9 is that the Court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax."

The Supreme Court, again in Hindusthan Commercial Bank Ltd. v. Punnu Sahu, AIR 1970 SC page 1384, considered the meaning of the word "entertain" and held as under: "(4) Before the High Court it was contended on behalf of the appellant and that contention was repeated in this Court, that Clause (b) of the proviso did not govern the present proceedings as the application in question had been filed several months before that clause was added to the proviso. It is the contention of the appellant that the expression "entertain" found in the proviso refers to the initiation of the proceedings and not to the stage when the Court takes up the application for consideration. This contention was rejected by the High Court relying on the decision of that Court in Kundan Lal v. Jagan Nath Sharma, AIR 1962 All 547. The same view had been taken by the said High Court in Dhoom Chand Jain v. Chamanlal Gupta, AIR 1962 All 543 and Hazi Rahim Bux and Sons v. Firm Samiullah and Sons, AIR 1963 All 320 and again in Mahavir Singh v. Gauri Shankar, AIR 1964 All 289. These decisions have interpreted the expression "entertain" as meaning "adjudicate upon "or" proceed to consider on merits". This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner, Sales Tax, Kanpur, AIR 1968 SC 488. We are bound by that decision and as such we are unable to accept the contention of the appellant that Clause (b) of the proviso did not apply to the present proceedings."

In these decisions, their Lordships of the Supreme Court interpreted the expression "entertain" as meaning "adjudicate upon" or "proceed to consider on merits". In view of the amplitude of the word ''entertain'', it is not necessary to consider generally to what extent pending cases are affected by subsequent legislation or refer to the principles laid down in New India Insurance Co. Ltd. v. Smt. Shanti Misra, AIR 1976 SC page 237; Bhagat Ram Sharma v. Union of India and Others, AIR 1988 SC page 740; Mithilesh Kumari and Another v. Prem Behari Khare, AIR 1989 SC page 1247; Gajinder Singh v. Union of India and Others, AIR 1981 Sikkim page 9; Parvathi Bai v. Damodar Ananth Hegde, 1965(1), Mysore Law Journal page 100 and in Udainath Misra v. Chhaya Misrani and Others, AIR 1963 Orissa Page 27, regarding the interpretation of statutes while the law is changed during the pendency of a proceeding whether such proceeding would attract or be affected by such change of law. It can be resolved on the language of the enactment. If the expression "entertain" was applicable only to the initiation of a complaint, these cases might have been helpful, but since the "entertain" includes not only the initiation of a complaint, but its continuation to adjudicate upon it. The word "entertain" employed is of sufficient width and certainty to include even pending actions and the contrary rule applies, namely, that unless pending actions are saved from the operation of the new law, they must be taken to be affected. The word "entertain" as referred above, denotes not only the start but also the continuation of a complaint to consider it on merits.

ANOTHER material aspect for consideration is that the amending Act states that in Sub-section (1) of Sec. (11) of the existing Section for the words "is less than rupees one lakh", the words "does not exceed rupees five lakhs", shall be substituted, the inference is that the Legislature intended that the substituted sub-section should be deemed to be part of the Act.

THE meaning of this expression "substitution" came up for consideration before the Supreme Court. THE Supreme Court in Koteshwar Vittal Kamath v. K. Rangappa Baliga & Co. AIR 1969 Supreme Court Page 504 held as under:- "THEre is distinction between supersession of a rule and substitution of a rule. THE process of substitution consists of two steps. First, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. Even if the new rule be invalid, the first step of the old rule ceasing to exist comes into effect."

It is clear from this that by "substitution" of a new provision, the old provision has ceased to exist and the new provision has taken its place. Thus, where the complaint is pending enquiry when the existing sub-section is substituted by a new sub-section that comes into force, it is the amended sub-section that has to be applied. Our High Court considering such an aspect of the matter in Sha Chunnilal Sohanraj v. T. Gurushantappa, 1972 (1) Mysore Law Journal Page 327 held as under:- "Where the amending Act states that the existing section is substituted by a new section, the inference is that the Legislature intended that the substituted provision should be deemed to be part of the Act from the very inception."

Thus, where eviction proceedings were pending when Section 21(2) of the Rent Control Act was substituted by Mysore Act 14 of 1969, and came into force, it is the amended provision that has to be applied."

In the said decision their Lordships also referred to the principles of canons of construction of statutes as stated by the Supreme Court in Shamrao v. District Magistrate, Thana, AIR 1952 Supreme Court Page 324. The Supreme Court in the said decision observed thus:- "The construction of an Act which has been amended is now governing by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one is such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistancy or absurdity) as if the altered words has been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all."

THE amendment takes away the jurisdiction of this Commission to try complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs. To put it in other words, after the coming into force of the amendment, there is an inherent lack of jurisdiction to try such complaints by this Commission. In view of this, the complaint where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs has to sent to the concerned District Forum, to proceed to consider it on merits.

IN this complaint, the value of the goods or services and the compensation claimed does not exceed rupees five lakhs, so the complaint is sent to the Bangalore Urban District Forum. Bangalore, to adjudicate upon it. Complaint send to District Forum.