Consumer Forums have powers of JMFC

Andhra High Court

Victory Projects And Another vs The A.P. State Consumer Disputes ... on 23 June, 2010

THE HON'BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON'BLE SRI JUSTICE G. Writ Petition No.9450 of 2010
23-06-2010
Victory Projects and another
The A.P. State Consumer Disputes Redressal Commission and others
For the Petitioner: Mr. V.V. PRABHAKARA RAO
For the Respondents: Mr. V.V. PRABHAKARA RAO
:Oral Order: (Per Sri GM, J)
This Petition is filed seeking to issue writ of Prohibition to the respondent no.1-A.P. State Consumer Disputes Redressal Commission prohibiting it from exercising the jurisdiction of Judicial First Class Magistrate under section 27 of the Consumer Protection Act, in the proceedings in E.A.No.23 of 2009 in CD NO.238 of 1993 on the file of the respondent no.1-the A.P. State Consumer Disputes Redressal Commission represented by its President, Hyderabad. Brief facts of the case leading to filing of the writ petition are that a Consumer Dispute was raised by the respondents 2 to 14 against the petitioners alleging defect in construction of Flats. Upon consideration of the matter, the 1st respondent-A.P. State Consumer Disputes Redressal Commission, awarded a sum of Rs.2,90,000/- along with compensation of Rs.20,000/- and costs of Rs.3000/- and that they paid a sum of Rs.75,000/- and sought some more time to satisfy the award. However, respondents 2 to 14 have filed E.A.No.23 of 2009 in CD No.238 of 1993 before the 1st respondent, under section 27 of the Consumer Protection Act, 1986, ( for short " the Act"), seeking to punish the petitioners for non- compliance of the aforementioned order dated 25-9-2008.
According to the petitioners, the order was partly complied with when a sum of Rs.75,000/- is deposited before the 1st respondent-Commission and that the 1st respondent-Commission instead of returning the EA No.23 of 2009 in CD No.238 of 1993 as not maintainable, took cognizance of the case even though the High Court or the State Government has not conferred the powers as provided under section 32 of the
Criminal Procedure Code. According to the petitioners, taking the cognizance of E.A.No.23 of 2009 in CD No.238 of 1993 and issuing summons and passing consequential orders against the petitioners by exercising the powers of Judicial First Class Magistrate are wholly illegal and without jurisdiction. Mr. Ganta Rama Rao, learned counsel for the petitioner contends that neither the High Court nor the A.P. State Government have so far conferred the powers of a Judicial First Class Magistrate powers on any of the District Forums including the 1st respondent-Commission and therefore, the 1st respondent-Commission cannot entertain the complaint under Section 27 of the Consumer Protection Act, and issue the process under the provisions of the Code of Criminal Procedure, 1973. It is further contended that unless such power is conferred on the Consumer Forums, the 1st respondent-Commission cannot exercise the power of Judicial First Class Magistrate. Relying on the decision reported in RAMACHARAN AGARWAL v. EMPLOYEES STATE INSURANCE CORPORATION, HYDERABAD ((1999(2) ALD 578 (DB)), he contends that in the absence of conferment of powers, the 1st respondent-Commission has no power to exercise the powers of Judicial Magistrate of First Class.
On the other hand, learned Government Pleader appearing for the official respondent submitted that a combined reading of section 27 of the Act, particularly section 27(2) of the Act which starts with non obstante clause, makes it clear that the power has been conferred on the Forums and therefore specific conferment of the power by the High Court or the Government is not necessary, and as such no interference is warranted in this writ petition. It is further contended that the 1st respondent-Commission has the power of a Judicial Magistrate of First class for trial of offences under the Act, in view of Section 27(2) of the Act itself which starts with nonobstante clause and the same was introduced by the Parliament by amending Act 62 of 2002 with effect from 15-3-2003. Proviso to section 27(1) of the Act, prior to amendment stood as under :
" Provided that the District Forum, the State Commission or the National Commission, as the case may be, may if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount specified in this section.
Section 27 of the Act reads as follows :
" 27. PENALTIES. : ( 1) Where a trade or a person against whom a complaint is made or the complaint fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than two thousands rupees but which may extend to ten thousand rupees or with both. ...
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the First Class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973.
(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be. ( emphasis supplied)
Section 32 of the Code of Criminal Procedure,1973 reads as under : "32. Mode of conferring powers.
(1) In conferring powers under this Code, the High Court or the State Government, as the case may be, may, by order, empower persons specially by name or in virtue of their offices or classes of officials generally by their official titles.
(2) Every such order shall take effect from the date on which it is communicated to the person so empowered."
In RAMACHARAN AGARWAL v. EMPLOYEES STATE INSURANCE CORPORATION, HYDERABAD ((1999(2) ALD 578 (DB)), the Division Bench of this Court held that the presiding officers of Industrial Tribunal have no jurisdiction to entertain the case filed under the Employees State Insurance Act, in the absence of a fresh notification issued by the High Court conferring powers on them under the present Code of 1973.
The cardinal rule of interpretation of statutes is to read the statutes literally, that is, by giving to the words their ordinary natural and grammatical meaning. In a situation where no alternative construction is possible, the court must adopt the ordinary rule of literal interpretation. The object of the Act was to provide for better protection of the interests of consumers and for that purpose to make provision for the establishments of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith.
A reading of first limb of Section 27(2) of the Act makes it clear that notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( 2 of 1974), the District Forum or the State Commission or National Commission shall have the power of a Judicial Magistrate of First Class for the trial of offences under the Act. Section 27(2) of the Act thus starts with a non- obstante clause and clarifies that the Forums shall have the power of Judicial Magistrate of First Class for the trial of offences under the Act. The second limb of the said Section thereafter connotes and clarifies that, 'on such conferment of powers, the District forum or the State Commission or the National Commission as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the First Class for the purpose of the Code of the Criminal Procedure, 1973 (2 of 1974). In the present case, the literal construction leads to no apparent absurdity, there can be no compelling reason for departing from that golden rule of construction. Keeping in view the purpose and object of the Act, which was introduced in the year 1986, and on combined reading of section 27(2) of the Act, we are of the view that if the submission of the learned counsel for the petitioner is accepted it will make the purpose and object of Act more so section 27 as redundant. Therefore, the submission of the learned counsel for the petitioners that words occurring in the Section 27(7) of the Act that the consumer courts shall have the power of a Judicial Magistrate of First Class, on such conferment of powers only, does not merit consideration. Therefore, the first limb of the Act 27(2) has to be read in purposive and constructive manner, coupled with the fact that provision under Section 27(3) of the Act provides that all offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be. The proviso to section 27(1) of the Act, omitted by Act 62 of 2002, with effect from 15-3-2002, was also to the effect that the Commission if it is satisfied that the circumstances of any case so require may impose a sentence of imprisonment or fine, both. The fact remains that before omission of that proviso the Commission was vested with the powers to impose sentence of imprisonment or fine also. Therefore, conferment of power again by the High Court or the State Government is not required. It is pertinent to note here that section 27(A) of the Act stipulates that notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974), an appeal under section 27 both on facts and on law, shall lie from the order made by the State Commissioner to the National Commission. Since the petitioners have effective alternative remedy of appeal provided under the Act itself, we are not inclined to entertain the writ petition seeking prohibiting the 1st respondent-Commission to exercise as Judicial First Class Magistrate as per provisions under Section 27 of the Act.
For the foregoing reasons, the writ petition is dismissed as meritless. No
costs.

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