GULZARI LAL AGARWALversusACCOUNTS OFFICER

A                          GULZARI LAL AGARWAL
                                    v.
                             ACCOUNTS OFFICER

                              SEPTEMBER 25, 1996

B                (KULDIP SINGH AND S.P. KURDUKAR, JJ.]

         Consumer Protection Act, 1986: Ss. 2(jj), 9(b), 13, 14(2), & (2A), 16,
    18 and 29A.

C         State Commission-President not appointed or President not discharg-
    ing his function-Order passed by State Commission in the absence of
    President-Validity of-Held Senionnost member shall discharge function of
    President until a person is appointed to fill such vacancy or tlze President
    becomes Ju,nctional in tenns of sub-mies (9) and ( 10) of R. 6-17tzts State
    Commission will not be rendered non-functional for want of the Presi-
D   dent-Hence order passed by tlze State Commission in the absence of the
    President is neither illegal nor void-West Bengal Consumer Protection Rules,
    1987, Rule 6(9) and (10).

          Section 14--Scope of-Held: Consumer Fonun has no jurisdiction or
    power to pass any interim order pending disposal of original complaint filed
E   before it:

          Interpretation of Statutes :

          Hamwnious constmction-Held: Every provision in the Act should be
    constmed lzannoniously with a view to promoting the object and spirit of the
F   Act as long as 1w violence is caused to the plain language of the provision.

          The appellant filed a complaint before the District Forum as regards
    inflated telephone· bills. The District Forum passed an interim order
    directing the respondent not to disconnect the telephone connection on the
G   condition that the appellant deposited a sum of Rs. 4,000. The appellant
    complied with the said order.

          Being aggrieved the respondent filed an appeal before the State
    Commission, which was dismissed. Thereafter the respondent preferred a
    Revision Petition under Section 21 of the Consumer Protection Act, 1986
H   before the National Commission, and it allowed the appeal on the ground
                                         708
       G.L AGARWAL v. ACCOUNTS OFFICER [S.P. KURDUKAR, J.               709

that the order passed by the State Commission was illegal and void being A
contrary to Section 14(2A) read with Section 18 of the Act since the State
Commission was not having the President at the relevant time when the
order was passed. The National Commission further held that the District
Forum had no jurisdiction or power to pass any interim order pending
disposal of an original complaint before it.
                                                                               B
       On behalf of the appellant it was contended that the National Com-
mission erroneously concluded that in the absence of the President of the
State Commission the other two members had no jurisdiction to deal with
the disputes/appeal filed before the State Commission; and that Section
2(jj), 14(2- A), 18-A and 29-A of the Act and Rule 6(9) and (10) of the West   C
Bengal Consumer Protection Rules, 1987 should be construed har-
moniously with a view to promoting the object and spirit of the Act.

      Allowing the appeal in part, this Court
                                                                               D
      HELD : 1.1. Every provision in an Act needs to be construed har-
moniously with a view to promoting the object and spirit of the Act but
while doing so, no violence would be done to the plain language used in
the Section. It is this principle that needs to be made applicable while
construing the provision of 14(2) and (2-A) of the Consumer Protection
Act, 1986 read with Rule 6(9) and (10) of the West Bengal Consumer E
Protection Rules, 1987. If sub-sections (2) and (2-A) of Section 14 are read
with Section 29-A of the Act and sub-rules (9) and (10) of Rule 6, it would'
be quite clear that it could never be the intention of the Legislature to stall
or render the State Commission non-functional in the absence of the
President either having not been appointed in time due to some valid F
reasons or if the President is on leave due to certain reasons beyond his
control. Sub-section (2) of Section 14 is a presumptuous provision where
the President of the State Commission is functional but it would not be
correct to say that if the President of the State Commission is non-
functional because of one or the other reason, the State Commission would
stop its functioning and wait till the President is appointed. The only G
harmonious construction that could be given to sub-sections (2) and (2-A)
of Section 14 read with sub-rules (9) and (10) of Rule 6 is that as and when
the President of the State Commission is functional, he alongwith at least
one member sitting together shall conduct the proceeding but where the
President being non-functional, sub-rules (9) and (10) of Rule 6 will govern H
    710                    SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A the proceedings. Sub-rule (9) provides that where any Sl!Ch vacancy occurs
    in the office of the President of the State Commission, the senior most (in
    order of appointment) member holding office for the time being, shall
    discharge the function of the President until a person is appointed to fill
    such vacancy. This sub-rule is made with a view to make the State Com-
    mission functional in the absence of the President and not to allow the
B   State Commission to be rendered non-functional for want of the President.
                                                            [716-E-H, 717-A-C]
          1.2. Since the validity of sub-rules (9) and (10) of Rule 6 was never
    challenged, the above view is taken on the premise that there is no
C   challenge to the validity of the Rules and they hold the filed. [717-D-E]

          1.3; Having regard to the Composition of the District Forum and the
  , State Commission, it is more appropriate and desirable to make the
    appointment of the President of the District Forum and the State Com-
    mission without any delay since the complaints under the Act involved
D fairly large stakes which require a judicial approach. [717-F]
          2. The consumer forum has no jurisdiction or power to pass any
    interim order pending disposal of original complaint filed before it.
                                                                      [718-A]
            Morgan Stanely Mutual Fund v. Kartik Das, (1994) II CPJ 7 SC, relied
E
    on.

            CIVIL APPELLATE JURISDICTION                Civil Appeal No. 33 of
    1996.

F         From the Judgment and Order dated 17.5.95 of the Delhi High Court
    in R.P. No. 393 of 1994.

            S.K. Bhattacharya for the Appellant.

            S.S. Sabarwal and S.K. Sinha for the Respondent.
G
            The Judgment of the Court was delivered by

          S.P. KURDUJCAR, J. This appeal is directed against the order dated
    May 17, 1995, in Revision Petition No. 393/94 passed by the National
    Consumer Disputes Redressal Commission, New Delhi (hereinafter
H   referred to as 'National Commission'). It is not disputed that at the relevant
       G.LAGARWALv.ACCOUNfSOFFICER[S.P.KURDUKAR,J.]                    711

time when the order dated 21.1.1994 was passed by the State Commission A
constituted under the Consumer Protection Act, 1986 (for short 'the Act')
was not having the President since he had retired. No new President was
appointed on the said State Commission. A complaint was filed by the
appellant herein before the District Forum, Bankura as regards inflated
telephone bills. A prayer was made in the said complaint that the respon-
                                                                            B
dent herein be directed not to disconnect the telephone connection. An
order was made by the District Forum in favour of the appellant directing
the respondent not to disconnect the telephone connection and maintain
the telephone line on condition that the appellant deposits a sum of Rs.
4,000. The appellant accordingly complied with the said order. It appears
that despite this order, the telephone connection of the appellant was        c
disconnected on 30.11.1993. The appellant thereafter moved an application
for restoration and it is common premise that on 25.5.1994, the telephone
connection was restored. The complaint as regards the excessive bill of Rs.
 13,896 is still pending.
                                                                              D
         2. The respondent not being satisfied with the order passed by the
  District Forum preferred an appeal to the State Commission and the State
  Commission vide its order dated 21.1.1994 dismissed the said appeal,
  holding that the order passed by the District Forum was in consonance
  with the circular dated 15.10.1992 issued by the Telephone Department.
  Being aggrieved by the order passed by the State Commission, the respon-    E
  dent preferred Revision petition under Section 21 of the Act before the
. National Commission. The National Commission after hearing the parties
  vide its impugned order dated May 17, 1995 allowed the Revision Petition
  primarily on the ground of jurisdiction. The National Commission has held
  as under:                                                                   F
             "The impugned order passed by the State Commission, West
         Bengal has to be held illegal and void on the ground that the said
         order has been passed only by two Members of the State Commis-
         sion without the junction of the President, which is manifestly G
         contrary to mandatory provisions contained in Section 14(2A) read
         with Section 18 of the Consumer Protection Act, 1986. The said
         order of the State Commission is hereby set aside. We also set
         aside the interlocutory orders dated October 14, 1993 (Annexure
         'B') and October 19, 1993 (Annexure 'C') passed by the District
         Forum, Bankura as being totally devoid of jurisdiction in the light H
    712                   SUPREME COURT REPORTS [1996] SUPP. 6 S.C.R.

A           of the recent pronouncement of the Hon'ble Supreme Court in
            Morgan Stanely Mutual Fund v. Kartik Das, (1994) II C.P.J. (S.C.
            7) where it has been categorically laid down that a Consumer
            Forum has no jurisdiction or power to pass any interim order
            pending disposal of an original complaint filed before it".

B         3. It is this order passed by the National ComQlission which is the
    subject matter of challenge in this appeal.

         4. Before we deal with the rival contentions raised before us, it would
  be appropriate to set out relevant provisions of the Act and Rules. Clause
C (ii) of Section 2 defines : member : -
             "member" includes the President and a member of the National
             Commission or a State Commission or a District Forum, as the
             case may be."

D         5. Section 9 in Chapter III refers to the Consumer Disputes Redres-
    sal Agencies and the relevant provisions are as under :

             9. "Establishment of Consumer Disputes Redressal Agencies :

                 There shall be established for the purposes of this Act, the
E            following agencies, namely, : -

             (a) xxxx             xxxx

             (b) a Consumer Disputes Redressal Commission to be known as
             the "State Commission" established by the State Government in the
F            State by notification; and

             (c) xxxx                xxxx                   xxxx"

         6. Section 13 prescribes the procedure to be followed on receipt of
    a complaint.
G
          7. Section 14 enumerates the items on which the District Forum shall
    issue an order to the opposite party directing him to do one or more of
    the following things set out in sub-sections 14(1)(a) to 14(1)(i).

         8. The controversy relates to Section 14(2) and 14(2A) which are
H   reproduced herein below :
      G.LAGARWALv. ACCOUNTS OFFICER [S.P.KURDUKAR,J.] . 713

        14(2)-Every proceeding referred to in sub-section (1) shall be          A
        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 members shall conduct such proceeding de novo.                    B

        14(2A)-Every order made by the District Forum under sub-section
        (1) shall be signed by its President and the members or members
        who conducted the proceeding :

           Provided that where the proceeding is conducted by the Presi-        c
        dent 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
        the opinion of the majority shall be the order of the District Forum.
                                                                                D
      9. Section 16 deals with the Comp0<Lion of the State Commission
and it reads as under :

        "16, Composition of the State Commission : (1) Each State Com-
        mission shall consist of -
                                                                                E
        (a) a person who is or has been a Judge of the High Court,
        appointed by the Statt Goverqment, who shall be its President :

        (Provided that no appointment under this clause shall be made
        except after consultation with Chief JustiCe of the High Court;)
                                                                                F
        (b)   xxxx                 xxxx                      xxxx

        (2)   xxxx                 xxxx                      xxxx

        (3)   xxxx                 xxxx                      xxxx
                                                                                G
        (4)   xxxx                 xxxx                      xxxx''

      10. Section 18 deals with the Procedure applicable to Stat~ Commis-
sions and it reads thus :

        "18. Procedure applicable to State Commission - The provisions of       H
    714                  SUPREME COURT REPORTS (1996] SUPP. 6 S.C.R.

A           Sections 12, 13 and 14 and the rules made thereunder for the
            disposal of complaints by the District Forum shall, with such
            modifications as may be necessary, be applicable to the disposal
            of disputes by the State Commission".                       .

          11. Chapter IV of the Act deals with Miscellaneous Provisions.
B Section 29 refers to the power to remove difficulties. Section 29A is the
    relevant provision which reads as under :

               "29A - Vacancies or defects in appointment not to invalidate
            orders - No act or proceeding of the District Forum, the State
            Commission or the National Commission shall be invalid by reason
c           only of the existence of any vacancy amongst its members or any
            defect in the constitution thereof'.

         12. Sub-section (2) of Section 30 deals with the Powers of State
    Government to make rules. Sub-section (2) of Section 30 reads as under :
D
            "The State Government may, by notification, make rules for carry-
            ing out the provisions contained in (clause (b) of sub-section (2)
            and sub-section (4) of Section 7), sub~section (3) of Section 10,
            Clause (c) of sub-section (1) of Section 13, sub-section (3) of
            section 14, section 15 and sub-section (2) of section 16."
E
            Note:- Bracketed portion was incorporated by Act No. 34of1991;
            with effect from 15.6.1991.

          13. The State Government in exercise of powers conferred by sub-
    section (2) of Section 30 of the Act framed the Rules which are called the
F   West Bengal Consumer Protection Rules, 1987. These rules were brought
    into force immediately. Sub-rules (9) and (10) of Rule 6 are relevant and
    they read as under :

            6(9)-Where any such vacancy occurs in the office of the President
            of the State Commission the seniormost (in order of appointment)
G
            member holding office for time being, shall discharge the functions
            of the President until a person appointed to fill such vacancy
            assumes the office of the President of the State Commission.

            6(10)-When the President of the State Commission is unable to
H           discharge his functions owing to absence, illness or any other cause,
       G.LAGARWALv.ACCOUNTSOFFICER(S.P.KURDUKAR,J.)                         715

         the senior most (in order of appointment) member of the State A
         Commission shall discharge the function of the President until the
         day on which the President resumes the charge of the functions.

       14. In the light of the aforesaid provisions, it is necessary to consider
as to whether the impugned order passed by the National Commission is
legal. The National Commission held that the order passed by the State
                                                                                   B
Commission is manifestly contrary to a mandatory provision contained in
Section 14(2A) read with Section 18 of the Act as it was made by two other
members of the said Commission without the 'junction' of the the Presi-
dent.
                                                                                   c
       15. Mr. Bhattacharya, the learned counsel appearing for the appel-
lant urged that the impugned order is unsustainable. He urged that the
National Commission has totally overlooked certain provisions contained
in the Act and the Rules erroneously came to the conclusion that in the
absence of the President of the State Commission being functional, the D
other two members have no jurisdiction to deal with the disputes/appeal
filed before the State Commission. In support of the submission, Learned
Counsel drew our attention to the definition of a Member contained in
Clause GD of Section 2 and Sections 14{2A), 18A and 29A. Reliance was
also placed on sub-rules (9) and VO) of Rule 6. Mr. Bhattacharya urged
that all these provisions will have to be construed harmoniously with a view E
to promote the object and spirit of the Act. The impugned order passed
by the National Commission is unsustainable and the same be quashed and .
set aside.

       16. Mr. S.K. Sabharwal, the learned Advocate appearing for the              F
respondent supported the impugned order and urged that sub- sections (2)
and (2A) of Section 14 in unmistakable terms indicate that every proceed-
ing referred to in sub-section ( 1) shall be conducted by the President of the
District Forum and at least one member thereof sitting together. Sub-section
(2A) read with section 18 require that every order made by the District            G
Forum/State Commission under sub-section (1) shall be signed by its
President and the Member or Members who conducted the proceedings.
In view of this mandatory provision, counsel urged that any proceeding
conducted before the State Commission in the absence of the President
would be non-est. He further Urged that admittedly when the State Com-
mission passed the orders on October 14, 1993 and October 19, 1993, the            H
    716                   SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

A   President of the State Commission was not appointed by the State Govern-
    ment and, therefore, these orders were rightly held to be illegal.

           17. After giving careful thought to the rival contentions raised before
    us, we are of the considered opinion that the relevant provisions which we
B   have quoted hereinabove will have to be construed harmoniously to
    promote the cause of the consumers under the Act. As indicated earlier,
    the definition of member includes the President and a member of the
    District Forum/State Commission. It is true that sub-section (2) of Section
    14 read with section 18 require that every proceeding referred to under
    sub-section (1) shall be conducted by the President of the district
C   Forum/State Commission and atleast one member thereof sitting together.
    Section 2A is consequential in the sense that every order made by the State
    Commission under sub-section (1) shall be signed by its President and the
    Member of Members who conducted the proceeding. The procedure ap-
    plicable to the District Forum is made applicable to the State Commission
D   vide Section 18 with such modifications as may be necessary. Plain reading
    of sub-sections (2) and (2A) of Section 14 may support the view taken by
    the National Commission but if these provisions are read with Section 29A
    of the Act and sub rules (9) and (10) of Rule 6, it would be quite clear
    that it could never be the intention of the legislature to stall or render the
    State Commission non-functional in the absence of the President either
E   having not been appointed in time due to some valid reasons or if the
    President is on leave due to certain reasons beyond his control. Sub-section
    (2) and (2A) of Section 14 and Section 18A of the Act were brought into
    force with effect from 18.6.1993 whereas Section 12A was made applicable
    from 15.6.1991. The Rules of 1987 were brought into force immediately.
F   The complaint before the District Forum by the appellant was filed on
    14.10.1993. Therefore, all these amended provisions were very much
    brought into force when the complaint was filed. Sub- section (2) of section
    14 is a presumptuous provision where the President of the State Commis-
    sion is functional but it would not be correct to say that if the President of
    the State Commission is non-function:il because of one or the other reason,
G   the State Commission would stop its functioning and wait till the President
    is appointed. In order to avoid such a situation, the State Government has
    framed the Rules and sub-rules (9) ·and (10) quoted hereinabove unmis-
    takably provide answer to such a situation as in the present case. The only
    harmonious constructfon that could be given to sub-section (2) and (2A)
H   of section 14 read with sub-rules (9) and (10) is that as and when the
       G.L.AGARWALv. ACCOUNTS OFFICER (S.P.KURDUKAR,J.]                   717

President of the State Commission is functional, he alongwith atleast one        A
Member sitting together shall conduct the proceeding but where the Presi-
dent being non- functional, sub-rules (9) and (10) of Rule 6 will govern the
proceedings. Sub rule (9) provides that where any such vacancy occurs in
the office of the President of the State Commission, the senior most (in
order of appointment) member holding office for the time being, shall
                                                                                 B
discharge the function of the President until a person is appointed to fill
such vacancy. This sub-rule is made with a view to make the State Com-
mission functional in the absence of the President and not to allow the
State Commission to be rendered non-functional for want of the President.
It is well settled that every provision in the Act needs to be construed
harmoniously with a view to promote the object and spirit of the Act but         C
while doing so, no violence would be done to the plain language used in
the section. It is this principle that needs to be made applicable while
construing the provision of sub- sections (2) and (2A) of Section 14 read
with sub-rules, (9) and (10).

       18. The West Bengal Government has framed the Rules in the year           D
1987 and the object of sub-rules (9) and (10) of Rule 6 appears to us to
keep the State Commission functional in the absence of the President.
From the impugned order it appears that the attention of the National
Commission was not drawn to sub-rules (9) and (10) of Rule 6. It also
appears from the record that the validity of sub-rules (9) and (10) of Rule      E
6 was never challenged. It is made clear that the view which we have taken
in this appeal is on the premise that there is no challenge to the validity of
the Rules and they hold the field.

      19. Having regard to the composition of the District Forum and the
State Commission, it is more appropriate and desirable to make the               F
appointment of the President of the District Forum and the State Commis-
sion without any delay since the complaints under the Act involved fairly
large stakes which require a judicial approach.

      20. In view of above discussion, we are of the opinion that the            G
National Commission committed an error in holding that order passed by
the two members of the State Commission without the junction of the
President is "illegal and void". Impugned order to '11.at extent is set aside.

      21. Coming to the second part of the order as regards the grant of
interim order, in our opinion, the National Commission was right in apply-       H
   718                    SUPREME COURT REPORTS (1996) SUPP. 6 S.C.R.

A ing the law laid down by this Court in Morgan Stanely Mutual Fund v.
   Kartick Das, (1994) II CPJ 7 (SC). The consumer fo:-um has no jurisdiction
   or power to pass any interim order pending disposal of original complaint
   filed before it. The impugned order in this behalf is confirmed.

           22. In the result, the appeal is partly allowed. The impugned order
B holding that the order passed by the State Commission, West Bengal is
    illegal and void is quashed and set aside. But, however, the rest of the
    impugned order is confirmed. In the circumstances, parties are directed to
    bear their own costs.

c v.s.s.                                               Appeal partly allowed.