State Commission and District Forum do not have power to review recall or set aside orders passed by Consumer Fora

State Commission and the District Forum do not have a power to review recall or set aside the orders passed by the Consumer Fora. Such power is only available to the National Commission. The Supreme Court has also observed that there is no inherent power with the Consumer Fora and therefore we cannot also exercise inherent powers like the courts. Consumer fora as observed by the Supreme Court is a creature of law and unless act rules and regulations bestow particular power on the Consumer Fora power cannot be exercised by the Consumer Fora. Since the power of review is not given by the Legislature to the Consumer Fora and as Supreme Court has explained that such power cannot be exercised. Therefore application of review of an order dated 09/10/2012 to the extent of costs cannot be entertained and allowed. We reject the said application.9.  S.R. KANOJIA DIVISIONAL MANAGER V/S SHRI RAMESH K PANCHAL, decided on Tuesday, October 16, 2012. [ In the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, First Appeal No. A/12/35 (Arisen out of Order Dated 11/10/2011 in Case No. 239/2009 of District Mumbai(Suburban)). ] 16/10/2012

Judge(s) : S.B. MHASE, PRESIDENT, S.R. KHANZODE, JUDICIAL MEMBER & NARENDRA KAWDE, MEMBER

S.B. Mhase President. Heard Mr.G.D.Talreja-Advocate for the appellant and respondent in person.2.   This is an appeal filed by one Mr.S.R.Kanojia Divisional Engineer Mahanagar Telephone Nigam Ltd. Mumbai challenging the order passed by District Consumer Disputes Redressal Forum Mumbai Suburban in consumer complaint no.239/2009 decided on 11/10/2011. By this order the appellant has been directed to pay compensation of `25 000/- and by way of costs of the litigation `5000/-. It is further directed that from the date of receipt of the order within 8 weeksthe order shall be complied with otherwise the appellant shall pay interest @ 9% p.a.on the amount of compensation.This order was challenged by filing this appeal on 29/11/2011. The appeal was listed for admission on 25/01/2012. On that date Mr.Piyush Ranjan-Advocate appeared for the appellant. Though the name of Mr.Piyush Ranjan-Advocate appears in the vakalatnama however said vakalatnama has not been signed by Advocate Piyush Ranjan. There are also names of Mr.Haresh Motwani Mr.Jayant Chandnani Mr.R.K.Tambe Ms.Sejal Kulkarni on the said vakalatnama. However these advocates have not signed the vakalatnama. Vakalatnama has been signed by Mr.G.D.Talreja Mr.Vinod Talreja Mr.Nitin Jadhav and Ms.Sarika Sawant. We have mentioned because the advocate who appeared on 25/01/2012 was not an advocate for the appellant. He has also not produced on record authority letter from the advocates on record. However in spite of that on his oral request an adjournment was granted and the appeal was adjourned to 09/05/2012.3.   On 09/05/2012 Advocate Vinod Talreja who is on record appeared before the State Commission and after hearing him appeal was admitted. Not only that the Bench which heard the matter on that date being aware of the fact that the issue of jurisdiction of the Consumer Forum is pending before the larger bench of this Commission observed that the matter will have to be listed along with that matter. However since respondent is required to be served after admission of the matter bench directed to “issue notice after admission to the Respondent by Registered Post Acknowledgement Due only through Commission at the costsof appellant r/o.09/10/2012. Appellant shall make compliance of this order within a period of seven days from today.”On the same day application –Exhibit 6 by which the appellant was seeking stay to the execution of the order was also heard by the State Commission and the conditional order was passed.4.   In view of this order it was necessary for the appellant to submit necessary compilation to the office of the State Commission within a period of 7 days so that the State Commission can send the regular notice to the respondent. However office endorsement shows that the appellants have not submitted the necessary compilation and therefore notice could not be sent to the other side viz. to the respondent. When the matter appeared on 09/10/2012 Advocate Vinod Talreja was present. We pointed out this aspect to the Ld.counsel. However they tried to point out that there is already service on the other side. Other side was also present on that date. We asked other side whether there is service and what type of service is. Then the respondent in person produced before us the letter which was signed by the officer of the appellant on 23/02/2012. By this letter it is informed that “the MTNL has challenged the CDRF order dated 11/10/2011 before the State Commission by filing an appeal no.A/12/35. This appeal is listed before the Hon’ble Member of the State Commission on 09/05/2012. Outcome of the appeal will be intimated in due course. This is for your information.” This letter has been dispatched by them on 23/02/2012 and it appears from the endorsement on the letter that the respondent has received this letter on 24/02/2012 by post. What is important to be noted that this letter was voluntarily issued by the appellant. There were no directions from the State Commission to issue such letter to the respondent. Above all along with this letter if the appellant desires that the respondent should have sufficient notice of the proceeding then appellant should have sent the total compilation of appeal which is filed in the State Commission to the respondent. However the fact remains that such compilation which is required to be given to the respondent was not sent by the appellant to the respondent. It requires to be mentioned that the procedure and principles of natural justice requires that the person who is supposed to oppose the proceeding shall have a complete notice of the facts and also law points which have been raised by the appellant in the appeal memo. In short he must get the knowledge that on what facts and on what law points the order of the District Forum has been assailed by the appellant. Once he knows this then he can prepare himself and respond to and answer those points before the appropriate forum in the present case before the State Commission. Therefore consequence of non service of the compilation along with letter dated 23/02/2012 is that the respondent was unaware of the points on the basis of which the order of the District Forum has been assailed. Since he was not knowing the ground etc. he preferred to remain absent on 09/05/2012. It requires to be stated that this letter is not notice to appear before State Commission but it is an intimation that appeal has been filed and outcome of appeal will be informed in due course. That may be cause for respondent to remain absent on 09/05/2012. The order on that date shows that Advocate Vinod Talreja was present and after hearing him the appeal was admitted and notice after admission was directed to be issued. At this juncture while this dictation is going on Ld.Counsel Mr.Talreja and instructing officer Mrs.Joshi tried to interrupt and stated that on 09/05/2012 respondent was present but his presence is not noted in the order sheet. Apart from that we assume that it is a mistake of the Stenographer but in that case if had respondent been present the Bench which heard the matter on that date would not have issued notice after admission to the respondent and instead of that they could have requested him to waive the notice after admission and this order could have been avoided. Therefore only inference follows is that the respondent was not present on 09/05/2012 and the attempt made by the interruption is unwarranted in the facts of the present case.5.   What we find that the fact still remains that the notice was directed and the appellants were under obligation to comply with direction of the State Commission as reflected in order dated 09/05/2012. At the cost of repetition we state that in view of the official endorsement made which we have already referred above necessary compilation were not submitted to the office within 7 days and the notice could not be sent to the respondent.6.   What we find that earlier in the State Commission whenever the appeals or complaints were admitted the notices were prepared by the office and were given to the complainant or appellant so as to serve it to the opponent or respondent. Sufficient time was used to be given so that complainant and appellant should comply with it. However it was found that even though sufficient time was given as provided under section 13 of the Act yet number of complainants and appellants indulged into an unfair practice viz. instead of immediately sending notice to the other side so that other side should have notice of one month or more than that as contemplated under section 13 of the Act they used to send those notices given by the State Commission or Consumer Fora 2-3 days or a week earlier to the returnable date. In fact for effecting service by RPAD as we know from the experience that at least 3 weeks are required for the postal authorities and receive acknowledgement back to the sender of the said postal packets. But as a result of sending notice one week or two weeks earlier of the returnable date of the date fixed there is no report in respect of service and advocates used to tell that notice is sent and therefore the matter is required to be adjourned to await service so as to receive postal acknowledgement from the postal authorities. In view of the legislative mandate that the complaint shall be disposed within 90 days State Commission noted that the practice then existing is not in consonance with the legislative mandate of the Consumer Protection Act 1986 and therefore to expedite the service other modality was found viz. State Commission started to pass an order directing to issue notice through State Commission and simultaneously permitted a private notice by complainant and/or appellant or through his advocate. We find that initially for some days complainant appellant and advocates reciprocated it but slowly we noticed that they stopped to give compilation to the State Commission and they used to come with a statement that the private notice has been permitted and we have sent the private notice. On verification of postal dispatch receipts we noticed that again they have reverted to the old practice of sending inadequate notice as we have noticed earlier. Therefore we have changed the mode of orders and directed that only notice from the State Commission should go. No private notice henceforth is permitted in order to avoid further prolongation and protraction of the consumer complaint and appeal. Normally we used to give time of 2-3 months for the returnable date expecting that within short possible time they will be giving compilation and State Commission will send notice as required u/sec.13 of the Act giving sufficient time of one month to the other side. But by experience we have noticed that necessary compilation which is required to be given to serve other side is not given by the party and party used to approach to the State Commission one or two weeks earlier of the date fixed which ultimately resulted into reverting back to the earlier practice and therefore we started to pass an order that notice only through State Commission and the compilation shall be submitted within a period of 7 days to the State Commission. In some cases we used to give time only and in some cases we used to pass an order that if the compilation is not submitted within a period of 7 days matter shall stand dismissed. In the facts and circumstances as we gathered from our experience from 2009 and till date we have realized in what manner parties have tried to protract the matter at the stage of service itself and in what manner we tried to improve the situation and to cope up our disposal as reflected in the Consumer Protection Act 1986. The main object of the Consumer Protection Act 1986 is to have speedy and expeditious disposal of the complaint/appeal. What is important that the law requires that if the complaint is not disposed of within specified time limit the Consumer fora are accountable and there shall be reasons for the delayed disposal of the matter and earlier though we have noticed that in many cases reasons are not assigned yet the statutory obligation and accountability exists in the provisions of law which is required so as to develop the above referred procedure of service.7.   In fact the rules framed under Consumer Protection Act 1986 by Central Government and State Government of Maharashtra require that at the time of filing of complaint or appeal the complainant or appellant shall submit copies of complaint or appeal equal to the number of opponent or respondent. Therefore legal obligation is to file compilation for service to other side along with complaint or appeal. But this rule is not followed by parties because they desire to save their moneys i.e. if complaint or appeal is not admitted then other side is not required to be served. Therefore practice is developed of submitting compilation for service after admission. This deviation from rule has resulted into protraction or prolongation of proceeding.8.   Therefore appellant in the present matter was under an obligation to comply with the order dated 09/05/2012 and submit the compilation to the office which he has miserably failed to do. All these aspects we have already quoted in order dated 09/10/2012 and thereafter directed the appellant to comply with the order dated 09/05/2012 subject to payment of costs of `5000/- to be paid to the Legal Aid Fund of this Commission. Today the said order is not complied with. Instead of that Ld.Counsel Mr.G.D.Talreja filed an application making prayer that the order dated 09/10/2012 imposing costs of `5000/- on appellant may be reviewed and recalled and also some interim prayers were made. We need not go into the interim prayers at this stage because we are disposing of the application on its merit. As we have stated that the order dated 09/10/2012 was passed by us on merit after hearing the advocate Mr.Vinod Talreja who is an advocate on record. By this order the earlier orders were directed to be complied with subject to payment of costs. By this application the prayer has been made to review the order dated 09/10/2012 to the extent of imposition of costs. It is well settled in view of the Supreme Court’s judgement in the case of Rajeev Hitendra Pathak & Others V/s.Achyut Kashinath Karekar & another in Civil Appeal no.4307 of 2007 decided on 19/08/2011that the State Commission and the District Forum do not have a power to review recall or set aside the orders passed by the Consumer Fora. Such power is only available to the National Commission. The Supreme Court has also observed that there is no inherent power with the Consumer Fora and therefore we cannot also exercise inherent powers like the courts. Consumer fora as observed by the Supreme Court is a creature of law and unless act rules and regulations bestow particular power on the Consumer Fora power cannot be exercised by the Consumer Fora. Since the power of review is not given by the Legislature to the Consumer Fora and as Supreme Court has explained that such power cannot be exercised. Therefore application of review of an order dated 09/10/2012 to the extent of costs cannot be entertained and allowed. We reject the said application.9.   Affidavit has been also filed by one Mrs.Anjali Joshi to show that the respondent has been served. What we find from the annexures along with said affidavit that after passing of an order on 09/10/2012 appellant has dispatched the notice by Registered Post A.D. That appears to be dispatched on 11/10/2012 and the India Post report has been also on record to show that said packet has been received by the other side namely respondent. What is important that the private notice of the appellant and the advocate was not permitted in this manner. Notice was directed to be issued through State Commission and therefore as per direction within 7 days compilation should have been submitted to the State Commission. Not only that but further amount of `5000/- should have been deposited in the State Commission. On such deposit the State Commission would have sent the notice. However instead of following these directions in the above referred manner appellant innovated his own method and without depositing the amount in the State Commission the notice was sent on 11/10/2012. Thus what we find that the service which has been effected is not in consonance with the order and apart from that service cannot be effected unless the costs are paid and/or deposited. Therefore ultimately result is that there is no service on the other side namely respondent as per direction of the State Commission.10.  Initially when the affidavit was filed the Ld.counsel submitted that the appellant is a Government Corporation and the time is required to obtain the amount being sanctioned from the superior officers and therefore amount could not be deposited and he submitted that affidavit of Mrs.Anjali Joshi has been filed for extension of time. What we find that the provisions for extension of time is not reflected in the Act and the Rules either framed by the Central Government and/or State Government. Then he tried to rely upon for extension of time stating that inherent powers are with the State Commission and therefore time may be extended. What we find that power of review recall setting aside of the order are not with the State Commission in view of the above referred judgement of the Supreme Court and therefore extension of time cannot be considered.11.  In this matter when initially application for review and for extension of time was filed we orally informed to the advocate that this is not permissible under the law and making reference to the Supreme Court’s judgement passed an order rejecting both the prayers. However the Ld.counsel for the appellant then tried to make hue and cry before the State Commission stating and making allegations that he was not heard and even the opportunity has not been given to the parties. Since he is pretty senior counsel making such types of grievances and State Commission never intended to deny opportunity of hearing parties but the State Commission was of the view that when the power has not been given by the act and rules and Supreme Court’s full bench judgement is on the point it is not proper to hear Learned counsel in detail. However when the above referred grievance was made we asked Ld.Counsel and offered a complete opportunity to the Ld. Counsel to make submissions. We heard the Ld. Counsel to his satisfaction and when he submitted that his submissions are over then we started to dictate the above referred order. This we are placing on record because before the Appellate Court/Revisional Court any grievance in this respect should not be made. It should be clear to the Appellate Court/ Revisional Court that the sufficient opportunity was offered and thereafter order on merit has been passed on the review application and the affidavit of extension of time.12.  When this was being dictated the Ld.counsel for the appellant Mr.G.D.Talreja on instructions of Mrs.Anjali Joshi interrupted in the dictation and submitted that today itself costs will be deposited. What is important that today is not the date for deposit of costs and therefore by order dated 09/10/2012 it was directed that the compilation of this proceeding shall be submitted to office to serve respondent within a period of 7 days. This liberty is granted subject to payment of costs of `5000/- to be credited in the Legal Aid Fund of this Commission. Reading these two directions together it was obligatory for appellant that the compilation should have been submitted within 7 days and costs should have been deposited so as to send notice. Therefore before the compilation is served on the respondent amount should have been deposited in the State Commission and thereafter compilation should have been served through State Commission. Thus the order has not been obeyed. However this wisdom has prevailed upon the appellant when prayer for extension of time in view of Supreme Court’s judgement have been rejected. What is important that the ground being mentioned earlier that this is a Government Corporate sector company and the orders are required to be passed and amounts are required to be obtained from the superiors and unless that is complied that amount cannot be deposited. Under these circumstances if the ground is true wherefrom an amount is available with the appellant now to deposit with the State Commission. This conduct of the appellant reflects upon the manner in which they desire to proceed in such types of complaint and in what manner they desire to deal with their customers/consumers. What we find that all these efforts which have been made are not bonafide efforts. Orders are not complied with as directed by the State Commission. Appeal is hereby rejected for non compliance of the order.Pronounced in the open court.

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