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Judgment
THE true import of the validating Section 5 of the Consumer Protection (Amendment) Ordinance, 1991 and its consequential result if any, on this appeal is the thresh hold question herein.
AS this appeal must technically succeed on the legal issue aforesaid, it is wholly unnecessary to delve deeply into the facts of the case. It suffices to mention that the complainant-appellant had booked a Priya Scooter way back in the year 1984 with the respondent M/s Norton Motors Limited and was duly allotted a priority Number on the 30th of November, 1984. When after the passage of nearly five years no scooter was delivered and allotted to him the complainant sent a letter dated 7th of November, 1989 to make enquiry about the position of his booking. To his surprise he was told that an allotment letter dated the 1 st of June, 1987 was despatched to him which according to the complainant was never received by him at all. In the complaint before the District Forum, Hissar he had alleged that the scooter has been delivered to some other person and in this manner wrongful financial loss had been caused to him in view of the steep rise in the price subsequently. The respondent in his reply controvered the allegations in the complaint and took up the plea that by a letter dated 1.6.1987 duly despatched to the complainant under postal certificate at his Hissar address, he had been duly intimated about his allotment. In the replication the complainant reiterated his stan.
The Learned District Forum in a somewhat brief order merely directed the respondent to refund the amount of Rs. 300/- to the complainant alongwith interest @ 18% per annum and further awarded Rs. 100/- as the cost of litigation. Aggrieved by the same the present appeal has been presented.
MR. V.K. Kapoor apart from submissions on merits has placed in the fore-front his legal attack against the order under appeal. It is highlighted that the said order plainly indicates in its very title that all the three members namely Shri A.S. Chalia, President and MRs. Meena Saini and Shri Raj Pal Singh, Members were seized of the matter. However, the order has been signed only by two members namely the President and MRs. Meena Saini. Placing basic reliance on the CI (1991) C.P.J. 50 (NC), the counsel contended, that on the face of it, the order suffered from incurable legal infirmity and has, therefore, to be set aside on that score alone. If the matter rested at that only the learned counsel for the appellant has patently an impeccable case. The authority aforesaid would completely conclude the matter in his favour because admittedly the order under appeal has been signed by only two members of the District Forum and not by all the three as mandated by the law existing at that time. However, since the filing of the appeal on the 7th of February, 1991. The Consumer Protection (Amendment) Ordinance, 1991 No. 6 of 1991 (hereinafter referred to as the amended ordinance) came to be promulgated vide the Gazette of India, Extraordinary on the 15th of June, 1991. Therein Section 5 provides for the validation of certain orders etc. in the wake of the amending Ordinance. Learned counsel for the appellant was, therefore, invited to first cross the hurdle of the said provision for sustaining his challenge.
IN order to appreciate the submission of the learned counsel for the appellant, it is first essential to notice the basic changes wrought by the amending Ordinance in the Act. Thereby the original sub-Section 2 of Section 14 has been substituted by a new provision under the same heading. Further an altogether new sub-Section 2-A. has been added thereto. Though not very relevant in this case fresh Sections 18-A and 29-A have been added in the Principal Act. Thereafter the material Section 5 has been inserted to validate certain orders etc. The provisions of the amending Ordinance which for our purposes demand notice are sub-Sections 2 and 2-A of Section 14 and Section 5 thereof. The amended Section 14 and the validating provision would now read as under: - Section 14(1) : "If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegation contained in the complaint; about the services are proved, it shall issue an order to the opposite party directing him to take one or more of the following things, namely :- (a) (b) (c) (d) xx xx xx xx xx"
(2): "Every proceeding referred to in sub- Section (1) shall be conducted by the President of the District Forum and at least one member thereof sitting together; Provided that where the member, for any reason, is unable to conduct the proceeding till it is completed the President and the other member shall conduct such proceeding 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 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 the other member for hearing on such point or points and such point or points shall be decided according to the opinion of that other member."
(5): Notwithstanding anything contained in any law or any judgment, decree or order of any Court or Tribunal or other authority any order made by the District Forum or the State Commission under the Principal Act, which would have been validly made if the amendments made to the Principal Act by this Ordinance were in force on the date of such order, shall be deemed to have been validly made as if the amendments made to the principal Act by this Ordinance were in force at all material times when such order was made."
In the light of the aforesaid provisions Mr. V.K. Kapoor, learned counsel for the appellant had forcefully contended that the order under appeal does not come within the four corners of Section 5 of the Ordinance and is, therefore, beyond the pale of validation thereby. It was submitted that the impugned order of the District Forum was not in accordance with the amended subSections 2 and 2-A of Section 14 of the Act at all. The argument was that only if the order under challenge was in strict confirmity with the new sub-Sections 2 and 2-A, then alone it could have been saved by the validating provisions. Once that is not so the taint of violating the original sub- Section 2 would subsist and in view of the ratio in Maruti Udyog''s case (supra), the order is still patently illegal. 3. There appears to be a modicum of merit in the stand taken by the learned counsel for the appellant. What first deserves pointed notice is the fact that the provisions of the amending Ordinance have not been made retrospective. They are clearly prospective and have been declared to come into force at once on the promulgated date on the 15th of June, 1991. Thus prior to that the old unamended provisions would remain intact. 4. What next meets the eye is the fact that Section 5 of the Ordinance does not accord a blanket validation to all the earlier orders of the District Forums or the State Commission passed under the principal Act. If one may say so the said Section only confers conditional validation to earlier orders only if the necessary requisites spelt out therein are satisfied. Consequently in order to be sancetified by Section 5, the impugned order must squarely meet the pre-conditions laid down in the said Section. It is not as if any, and every order of the District Forum or the State Commission rendered earlier would become valid because of this provision. 5. There is no gain-saying the fact that the language of Section 5 is somewhat intricate. However, one thing seems plain that in order to test the validity of an order a fiction is created, as if the amendments made to the Principal Act by the Ordinance were in force at the material time when the order under challenge was made. It is on the basis of such an assumption that the validity or otherwise of such an order has to be tested. 6. Now reading Section 5 as a whole, it would appear that the acid test laid down by it is - whether the order under challenge would be in consonance with the provisions as amended by the Ordinance on the presumption or fiction, that these were in force on the date when such order was made. This seems to be the anvil on which the validity or otherwise of an impugned order has to be tested. 7. Herein applying the said test, it seems somewhat patent that the District Forum''s order under appeal cannot measure up to the same. Both sub-Sections 2 and 2-A visualise the situation where the proceedings are conducted by the President and atleast one member thereof sitting together, and if the proceedings are conducted by only two members then by virtue of sub-Section 2-A, it may be signed only by the President and the member who conducted the proceedings. These provisions were plainly intended to do away with the difficulty of conforming to the earlier sub-Section 2 which required that every order of the District Forum has to be signed by all the three members constituting the same. However, even after the change made by the Ordinance the thrust of the requirement still is that the persons signing the order must be those who had conducted the proceedings. Somewhat plainly this is not the situation in the order of the District Forum under appeal. On its very face, it indicates that the proceedings were conducted by all the three members. However, when it came to the recording and signing of the order the same has been done only by two out of the three who conducted the proceedings. This is not in accord with either the spirit of the letter of the amended sub-Sections 2 and 2-A of Section 14. The core requirement still is that those who conduct the proceedings must record and sign the order as well. The only elasticity that has been now given by the amending provision is that the rigour of all the three members conducting the proceedings and all three of them signing the same has been softened and taken away. Now the presence of the President is made mandatory, but he can conduct the proceedings with only one member alongwith him where the second one cannot join. In a way a quoruam of two has been made possible against the earlier mandate of all the three members being required to both conduct the proceedings and to sign the recorded order. Nevertheless, the said quoruam of two must not only conduct, but also record and sign the order as well, where such a situation prevails. 8. Yet again when sub-Section 2-A is read closely it spells out the where the proceedings have been conducted by the President and the members also, then the order has to be signed by all of them. In the order under appeal, it is manifest that the proceedings have been conducted by all three, but the mandate of signing by all of them has been breached & violated. In view of the above, there is no option but to hold that the order under appeal does not satisfy the requirement of the amended sub-Sections 2 and 2-A of Section 14 when by a fiction of law, it is presumed that they were in force on the 31st of December, 1990 when it was recorded. Consequently, the same would not come within the arena of Section 5.
ONCE it is held as above, the validating Section 5 of the Ordinance would becomes inapplicable and the impugned order of the District Forum has to stand on its own legs for the purposes of its validity. As was said earlier the amending provisions of the Ordinance are not retrospective. If Section 5 does not come into play then at the time of the passing of the order, it had to satisfy the requirements of the original sub-Section 2 mandating the signing thereof by all the three members of the Forum. Clearly it does not do so. The ratio of Maruti Udyog Limited (Supra) would thus continue to apply to the same and it has to be held that it is contrary to law and is hereby set aside..
IN the light of the above conclusion, it is unnecessary and indeed wasteful to notice the challenge to the order under appeal on merits which were also raised by Mr. V.K. Kapoor. The appeal is allowed and the order is set aside and the matter is remanded back to the District Forum for proceeding with the complaint in accordance with law. It is further directed that the parties may be allowed to agitate their case afresh and if necessary to aduce any further evidence for the just decision of the matter. Appeal allowed.______________