A.P.J. SCHOOL,FARIDABAD vs M.K.MALHOTRA

WHETHER the State Consumer Disputes Redressal Commissions have the power to transfer a complaint from one District Forum to another or to themselves, is the solitary though very significant issue in this set of three revision petitions.

IN view of the pristinely legal question aforesaid the facts would pale into relative insignificance. Nevertheless to provide the necessary terrafirma these may be noticed from revision petition No. 2 of 1992, A.P.J. School v. M.K. Malhotra. It is averred on behalf of the petitioner-school that the respondent has filed a consumer complaint before the District Forum at Faridabad and Professor C.D. Verma is one of members of the said Forum. It is alleged that Shri Verma had made unwarranted requests to the Principal of the School for admission of certain children who were closely related to him and these being declined by the Principal he had become acutely annoyed thereby and threatened the Principal with adverse action through the District Forum. It was even alleged that the aforesaid member had incited the people to file complaints against the petitioner-school to settle his personal score and in one of such cases, namely Shri K.L. Galhotra v. A.P.J. School, he alongwith another Member had granted unwarranted relief against the petitioner whilst the President of the District Forum had forcefully dissented therefrom (vide Annexures P.2 & P.3). Firm reliance is placed on Annexure P.I alleged to have been written by Professor Verma to the Principal of the School informing him that his son-in-law was coming to meet him and suggesting that he be given a patient hearing and his work be done. On the basis of the aforesaid facts, it is stated that the petitioner has genuine fears that they will not get due justice from the District Forum, Faridabad and it is essential that the matter in dispute may not be heard by a body of which Professor C.D. Verma is a member. Consequently, it is prayed that the consumer dispute pending before the District Forum be transferred to any other District Forum for a fair trial.

Before adverting to the merits, it may be noticed that at the very threshold the attention of the learned Counsel for the petitioner was drawn to II (1991) CPJ 335, Girraj Prasad Tikkiwal v. Ram Deo Saini & Ors., wherein the Rajasthan State Consumer Disputes Redressal Commission, Jaipur has observed that in the absence of any provision in the Act about the transfer or withdrawal of a complaint pending before the District Forum a complaint cannot be so transferred or withdrawn. In view of this, full dress arguments on the threshold question of the very power of the State Commission to transfer cases have been heard.

MR. Harsh Aggarwal, the learned Counsel for the petitioners had first placed reliance on clause (b) of Section 17 of the Act in his support. It was contended that the wide-ranging revisional power conferred thereby would include within its ambit a power to transfer a complaint from one District Forum to another. Though no precedent could be cited, it was suggested that the language of the provision could with elasticity be stretched to imply such a power. To appraise the aforesaid submission, one must inevitably resort somewhat closely to the language of clause (b) aforesaid which may be noticed in extenso at the very outset; "17. Jurisdiction of the State Commission: Subject to the other provisions of this Act, the State Commission shall have jurisdiction,- xx xx xx xx xx (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that such District. Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity."

IT needs no great erudition to notice that the aforesaid provision is virtually derived from the well-known provisions of Section 115 of the Civil Procedure Code conferring revisional powers on the High Court in identical terms. The language employed in Section 17(b) of the Act though wholly in parimateria with Section 115 of the C.P.C. is indeed so closely analogous as to indicate no meaningful point of distinction. A bare reading of the provisions would high-light its three facets. Interference thereunder is merited only in cases where the District Forum has firstly exercised jurisdiction not vested in it by Law. Secondly, in a situation where it has failed to exercise a jurisdiction so vested. And thirdly and lastly where it has acted in exercise of its jurisdiction illegally or with material irregularity. It would be somewhat manifest that in an application seeking transfer of the complaint from one District Forum to another that not one of these pre-conditions can possibly come into play. Obviously, herein there is no question of any order having been passed by the District Forum which would suffer from any of the three infirmities noticed above which would warrant interference under this clause. On principle and the language of the provisions, it must be held that it is not easy to infer any power to order transfer of cases by virtue of this revisional power. Apart from the language of the statute, it deserves recalling that by now, a mass of hallowed case law has arisen around Section 115 of the CPC which as already noticed, is in parimateria with what we are called upon to construe. In the plethora of precedents on the point it has never been held that under Section 115 of the Civil Procedure Code the revisional jurisdiction envisages the power of transfer within its scope. Indeed, the learned Counsel for the petitioners had candidly conceded his inability to cite any precedent out of the thicket of unending case law which has evolved around the revisional jurisdiction either under the C.P.C. or innumerable other provisions conferring such a power. Consequently, it has to be held that neither the language of Section 17(b) nor principle or precedent, can possibly warrant the inclusion of the power of transfer within its scope.

MR. Harsh Aggarwal, the learned Counsel for the petitioner then forcefully advocated that the administrative powers of the Commission entitle it to grant the necessary and vital relief of the transfer of a case in a situation where there is no option but to grant such a relief. It was projected that even in the absence of any statutory provision expressly conferring the power of transfer an implied administrative power would necessarily vest in the State Commission to do so.

CONCEDEDLY neither in the Act itself nor in the rules framed thereunder, is there any specific conferment of superintendence or administrative control vested in a State Commission. Ordinarily, one would have been different to assume such power. However, the recent observations of their Lordships of the Supreme Court undoubtedly gave strong support to the stance taken by the learned Counsel for the petitioner. A somewhat closely analogous issue appears to have come up for the pointed consideration of their Lordships of the Supreme Court in Civil Writ Petition No. 1141 of 1988 and No. 742 of 1990, Common Cause a Registered Society v. Union of India & Ors., decided on the 22nd of October, 1991. Therein, it has been categorically observed as under :- "An amendment to the Act is in contemplation as we are told at the Bar. There is some small dispute as to whether the amendment contained or intends to give administrative and superintending jurisdiction to the National Forum over the State Commissions and to the State Commissions over District Forums. Experience shows that on account of want of such authority, the National Forum is not able to exercise appropriate jurisdiction over the State Forums and the State Forums are not able to exercise appropriate control over the District Forums. Proper operation of the statute requires both administrative and judicial superintendence. While the Act had contemplated judicial superintendence, there is no provision for administrative superintendence. This is a lacuna in the statute. Realising this defect, we had pointed out earlier that the requisite forum should be conferred with the power of superintendence and we commend to the Union Government as quickly as possible to remove the deficiency by conferring appropriate power of superintendence on the State and the National Commissions. Until that is done, we direct that to meet the situation, the National Commission would be entitled to exercise administrative jurisdiction over the State Commissions and the State Commissions would be entitled to exercise such administrative jurisdiction in their respective areas of control. This order shall be forwarded to the National Commission as also to the State Commissions forthwith."

In view of the above, one has only to harken back to Article 141 of the Constitution mandating that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Consequently, if not by express Legislative conferment, by judicial mandate the National Commission and the State Commissions stand vested with administrative jurisdiction in their respective areas of control. That being so, the submission of the learned Counsel for the petitioners has undoubtedly a modicum of merit. It may, therefore, well be said that in the vacuum created by a Legislative lacuna, the administrative power may well be invoked to grant relief where the situation is irremedial except by the exercise of the power of transfer.

However, in all fairness one must notice that the a fore-quoted observations of their Lordships appeared to be transient in nature in order to tide over the intregnum. The question still remains whether on the existing statutory provisions without any contemplated amendment the power of transfer inheres in the State Commissions. Undoubtedly, in grappling with this issue of the admittedly much needed power to transfer in the absence of a statutory mandate, one is on relatively virgin ground. It is somewhat plain to the eye that the very concised thirty-one Sections of the Consumer Protection Act do not either in terms or by necessary implication, confer such a power. Section 18 of the Act prescribed that the procedure specified in Sections 12, 13 and 14 and the rules framed thereunder with such modifications as may be necessary would be applicable to the disposal of consumer disputes by the State Commission. It is unnecessary to advert in any great depth to the aforesaid three sections. It suffices to observe that even when construed with the utmost liberality, they do not suggest or confer any power to transfer cases either expressly or impliedly. This seems equally to be true as regards the Haryana Consumer Protection Rules, 1988 framed under the Act. The said rules 1 to 8 only are again very far from being exhaustive and even a close perusal thereof leads to no inference, either of an express or implied power of transfer in the State Commission.

AGAINST the aforesaid statutory background what deserves highlighting is the fact that even the learned Counsel for the respondents Mr. Ashok Aggarwal with great fairness had himself stated that the power of transfer in the consumer jurisdiction would be indeed a fundamental need. In the total absence of the same, grave failures of justice would inevitably ensue. It was forcefully pointed out that a problem may well arise where a trial of a complaint by a patently biased District Forum would have no other solution except that of the transfer of the complaint to another jurisdiction. Failing that, such a trial would be a parody of justice and a virtual negation of the beneficent rights conferred on the consumers by the Act. The aforesaid stance taken even on behalf of the respondents appears to us as patently meritorious. Indeed, this Commission itself was recently faced with the difficult and ticklish situation where one of the members of the District Forum had himself lodged a complaint before his own District Forum for seeking redress at the hands of his other colleagues. In the somewhat exhaustive order of this Commission in First Appeal No. 228 of 1992, National Insurance Company Ltd., Chandigarh v. Dewan Bal Krishan of Narwana, decided on the 13th of August, 1992. This aspect was considered in depth in paragraphs 24 to 32 thereof. Though a reference to this is instructive, it is unnecessary to burden this order by noticing them in extenso and it would perhaps suffice to quote the ultimate conclusion in the following terms:-; "31. We regret our inability to subscribe to the aforesaid view in the light of what has been said earlier. Indeed the crucial issue herein is not of hyper-technicality but one of the highest principles and judicial propriety. In a situation of this kind it is best to recall the hallowed dictum which has now held sway for ever a century - That justice must not only be done but must ''appear to be so done. In view of this cardinal rule it is somewhat plain that herein the case of the complainant suffers from yet another fatal infirmity. 32. It would appear to us that when faced with the predicament of this nature it would indeed be more apt and proper for a District Forum to refer the complaint to the State Commission for consideration whether the same should be tried by another District Forum or to transfer the same to the Commission itself for adjudication. In such like circumstances arising in the future, the cardinal principles noticed aforesaid must never be lost sight of."

IT would be manifest from the above that this Commission has already taken the view that there is an implied power to transfer a complaint to another District Forum or to itself for adjudication where the situation so compels. IT is true that in that order, the issue was not directly and frontally raised as herein. However, by implication, the order aforesaid resting on the larger principle that justice must not only be done but must appear to be so done, has undoubtedly held that it was virtually obligatory on the State Commission in the kind of situation noticed in that case to transfer the lis. It appears to us that in the absence of an express power of transfer on the one hand and the virtual necessity thereof in the very functioning of the consumer jurisdiction, one comes to the crossroads of a legal conundrum epitomised in the celebrated observations of Denning L.J. in Seaford Court Estates Ltd. v. Asher, (1949 (2) Kings Bench 481). What have now become virtually classic words would yet bear repetition within the some- what nascent consumer Jurisdiction :- xx xx xx xx xx "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature."

In view of the hallowed observations above, the kernel question herein is whether the National Commission or the State Commission should simply fold their hands and blame the draftsmen for the lacuna or in the alternative to give force and life to the real intention of the Legislature. The answer in our view must necessarily be the latter one. This seems to be the more so because it is one conceded in all hands that the Act is a beneficient statute in construing which the object thereof should be furthered and where two constructions are reasonably possible, the broader one must be adopted. This has been authoritatively so held in The Regional Provident Funds Commissioner, Punjab v. Shib Metal Works, AIR 1965 SC 1076 in the following terms:- "If the words used in the entry are capable of a narrow or broad construction, each construction being reasonably possible, and it appears that the broad construction would help the furtherance of the object, then it would be necessary to prefer the said construction."

HEREIN what prominently meets the eye in the fact of the acute paucity of procedural provisions both in the Act itself and the rules framed thereunder. It bears repetition that Sections 12,13 and 14 of the Act and the relevant provisions of the Haryana Consumer Protection Rules leave wide gaps in the procedure necessary for the trial of a lis within the consumer jurisdiction. It is in this situation of a virtual procedural vacuum that the redressal agencies have necessarily to fall back on the well-accepted rule of devising its own procedure in the absence of a clear prescription. It is unnecessary to enlarge on this aspect on principle because the matter seems well-covered by precedents. It would suffice to refer to the Division Bench judgment in New India Assurance Co. v. Punjab Roadways, AIR (51) 1964 Punjab 235. Therein, in a somewhat analogous situation, in the absence of any procedure under Section 110-B of the Motor Vehicles Act it was held that the principle embodied in order 1 Rule 10 of the Civil Procedure Code could be followed. It was authoritatively observed: "From this it follows that unless there is any prohibition in the rules framed under the Act, the Tribunal is free to follow any procedure which it considers expedient in the interests of justice. In similar situation, Bhandari, C.J. observed in 59 Pun LR 45 that in the absence of a restraining provision a Tribunal is at liberty to follow any procedure that it may choose to evolve for itself so long as the said procedure is orderly and consistent with the rules of natural justice and does not contravene the positive provisions of the law. The section expressly confers powers on the Tribunal to formulate its own procedure, and for the purpose of promoting the ends of justice it could well resort to all the principles of an orderly trial and for that purpose exercise the powers of allowing amendments or substitution so as to rectify a mistake or to bring on record parties which were necessary or proper."

YET again in AIR (60) 1973 J&K 38, M/s. South India Insurance Company v. Motor Accidents Claims Tribunal Jammu & Kashmir & others, it was observed as follows :- "In the instant case, there being no rules the procedure had to be formulated by the Tribunal itself and there was no specific bar in the Act to dismiss a petition in default or to restore it. Whatever action was taken by the Tribunal either in dismissing the petition or in restoring the same will be deemed to be the procedure formulated by the Tribunal. xx xx xx xx xx The matter truly and essentially pertains to the domain of judicial discretion governed by the rules of reasons and justice. The Tribunal in the absence of positive authority like the provisions of the Civil Procedure Code has to accept the reasons by analogy as nearly as possible to such provisions and has to come to a decision by weighing rival considerations according to the trained judicial technique."

Nearer home, within the consumer jurisdiction, the Madhya Pradesh State Commission in I (1992) CPJ 356, T.P. Chaturvedi v. Deomani Kotedar has taken the view that the District Forums in the absence of the specific provisions of the Code of Civil Procedure being made applicable have to formulate for its working, its own procedure keeping in mind the rules of natural justice and in certain cases principles incorporated in the Civil Procedure Code unless of course the Act and the rules prohibit such application. Equally one must herken back to the hallowed principles of natural justice which must inevitably come into play in the absence of embodied rules. The larger principle that no man must be a judge in his own cause or that there should be the total absence of any bias in the quasi judicial or even the administrative field should not be either lost sight of. Reference to the celebrated case A.K. Kraipak v. Union of India; AIR 1970 SC 150 would be instructive in this context wherein it was observed as under ;- "The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct."

It seems unnecessary to labour the point any further. In view of the aforesaid discussion, it would seem to follow that the administrative power may well be invoked to transfer a case where the situation is irremedial except by its exercise. In the alternative and equally within the quasi judicial field such a power has to be necessarily devised as a procedure in the absence of express prescription.

IN the light of the above, the answer to the meaningful question posed at the outset has to be rendered in the affirmative. It is held that the State Commissions have the power to transfer a complaint from one District Forum to another or to themselves wherever the exigencies of the situation so require. Before parting with this aspect, reference has inevitably to be made to Girraj Prasad Tikkiwal v. Ram Deo Saini & ors. (supra) wherein a contrary view has been taken. However, a close perusal of the said order would indicate that its authority is considerably eroded by a variety of reasons. What first meets the eye is the significant fact (as indicated from the report) that the order has been passed by the learned President alone without associating any other member of the State Commission. In view of Sub-section (2) of Section 14 read with Section 18 of the Act, it is mandatory that the order of the State Commission has to be signed by all the members constituting it and even after the recent amendment thereto it is still the inflexible requirement of the law that the President has to be associate one other member of the Commission with him for the purposes of a valid order. In view of the binding decision of the National Commission in I (1991) CPJ 50 (NC), Maruti Udyog v. Shri V.K. Jain, any order passed singly is therefore of no validity. This apart a reading of the same would indicate that it was rendered on an application and it appears to have been so done on the administrative side without notice to the opposite party and consequently without the benefit of a well-matched argument on either side. The conclusion again has turned merely on the fact that there is no provision in the Act about the transfer or withdrawal of a complaint without considering as to what should be the situation in the absence of such an express prescription. It would seem that the authorised representative of the applicant was somewhat remiss, and probably not capable of presenting the matter in an exhaustive fashion on the larger judicial principles which have been considered and discussed above. With the deepest deference to the learned President of the State Commission, we regret our inability to agree with the said view and must record a respectful dissent therefrom.

THOUGH the petitioner herein succeeds on the larger question advocated on their behalf yet theirs is a pyrrhic victory as regards the merits of seeking the transfer of the case. Herein, what is significant is the fact that now the issue involved in the complaint pending before the District Forum is broadly governed if not wholly covered by the decision of this Commission in First Appeal No. 225 of 1992 ''A.P.J. School of Faridabad v. Dr. K.L. Galhotra of Faridabad'' decided on 14.8.92. The mere fact that Dr. C.D. Verma has earlier taken a considered view in the said case against the petitioner is not adequate ground for laying any bias at his door. The fact of the President having taken a contrary view in the said case is equally not in any way a material factor for seeking a transfer. Equally the fact that Dr. C.D. Verma had written a brief letter to the Principal in innocuous terms is not necessarily conclusive on the point of bias. We have no manner of doubt that a person of Dr. C.D. Verma''s stature would remain wholly uninfluenced by any such marginal factors in dis-passionately trying and adjudicating upon the case before him if necessary. Consequently, we find out enough merit in this application for transfer which has to be necessarily declined. Petition dismissed.