GENERAL MANAGER, M.T.N.L. LTD. vs NOZAR J. IRANI

THE proceedings in this case commenced with a complaint filed by the Respondent herein before the District Forum, Bombay, against the General Manager, M.T.N.L. & Anr. claiming compensation for the alleged illegal disconnection of the Complainant''s telephone. THE case was disposed of by the District Forum by its Order dated 11.07.1990. THE hearing of the case was conducted only by the President of the District Forum sitting alongwith one other Member, the third member of the Forum being absent, there was a difference of opinion between the President and the other Member and they delivered separate divergent judgments in the case. But by invoking sub-Rule 4 of Rule 11 of the Maharashtra Consumer Protection Rules, 1987 the decision of the President which was in favour of the Opposite Party was trearted as the decision of the District Forum.

THE Complainant took up the matter in an appeal before the State Commission, Bombay. THE State Commission without going into the question of legality of the disposal of the matter by 2 Members of the District Forum went into the merits of the appeal petition and set aside the Order of the President of the District Forum and issued a direction to the Opposite Party M.T.N.L., Bombay to reconnect the telephone of the Complainant within a period of one month from the to Complainant by way of his costs. In this Revision Petition filed by the General Manager, M.T.N.L., Bombay, the main contention advanced on behalf of the Revision Petitioner is that there was no valid disposal of the complainant petition by the District Forum and hence the State Commission should have remanded the matter to the District Forum for fresh disposal. The Counsel appearing on behalf of the Revision Petitioner relied on the decision of this Commission in M/s. Maruti Udyog Ltd. v. V.K. Jain in Revision Petition No. 41 of 1990 to support his contention that the disposal of the case by two Members only of the District Forum was nullity.

We have, however, examined the said contention in the light of the provisions of the Consumer Protection (Amendment) Act, 1991. which has amended Sec. 14 of the principal Act. By the said amendment Act, the following sub-section have been substituted in place of the original subsection 2 of Section 14 as it originally stood : " (2) Every proceeding referred to in subsection (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.

(2A) 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."

IT will be seen that under the proviso of Sub-Section 2A in every case; where the case is heard by a President and only one member and there is a difference of opinion between them on any point or points on which they differ to the remaining member who had not heard the case and the decision of the case shall depend upon the opinion of the other member. Sec. 5 of the amending Act, 1991 is in the following terms : Notwithstanding anything contained in any law or any judgment, degree 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 (Amendment) Act, 1991 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 (Amendment) Act, 1991 were in force at all material times when such order was made. This Section validated only such of the order passed by the District Forum and State Commissions as are found to have been made in conformity with the provisions of the Act as now amended. In other words, the touch stone to be applied is to see whether the order passed by the District Forum or by State Commission, as the case may be, would pass the test of legality if the amendments to the principal Act made by the (Amendment) Act, 1991 are deemed to have been in force on the date of passing of the Order.

ON an application of the aforesaid test it is manifest that the Order of the District Forum in the present case, wherein the opinion of the President of the Forum was treated as having overriding effect notwithstanding the divergent opinion expressed by the other member who heard the case, cannot be regarded as legally valid since it is not in conformity with the mandatory procedure prescribed in the proviso to Sub-Section 2A of Section 14 of the Act. In our opinion, there is force in the contention of the Revision Petitioner that the State Commission was not right in declining to go into the question of legality of the Order passed by the District Forum. In the result, we are constrained to set aside the Orders passed by the State Commission and the District Forum and remand the matter to the District Forum, Bombay for fresh disposal in accordance with law after giving both sides a further opportunity to raise all their contentions and to place all the materials, which they wish to place on record.

THE District Forum is directed to dispose the matter within a period not exceeding eight weeks from the date of receipt of the records from the Registry of this Commission. THE Registrar will dispatch all these Orders to the District Forum, Bombay forthwith. Ordered Accordingly.