In Re: State Transport Authority and Another

Mitra, J.—In this Re visional Application the petitioners have challenged, inter alia, the order dated 26th March, 1991 passed by the President, Calcutta District Forum under the Consumers Protection Act, 1986 in C.D.F. Case No. 2045 of 1991 and also the order dated 5th April, 1991 passed by the president, State Commission, under the said Act, in SC Ca se No. 256 of 1991, inter alia, on the ground of jurisdiction of both the aforesaid tribunals in passing the respective orders. The case as made out by the petitioners in the Re visional application inter alia, is that the opposite party no. 1 lodged a complaint before the President, Calcutta District Forum under the Consumers Protection Act, 1986 giving rise to CDF Case No. 2045 of 1991 inter alia, for the following reliefs : -

(a) To pass an order directing the writ petitioners to show cause as to why they should not be directed to grant permit to the opposite party No. 1 on the route - Calcutta to Jalpaiguri via. Barasat, Beharampur, Malda, Raiganj and Siliguri, having Long Route Conductor Licence, u/s 30 of the Motor Vehicles Act, 1988;

(b) After hearing both the parties to direct the writ petitioners to grant permit to the opposite party no. 1 on the same route and also for an interim Order directing the writ petitioners to grant and/or issue an interim permit to the opposite party no. 1 on the said route and grant a leave to the opposite party no. 1 to ply a bus on the said route without any interference.

It was also contended by the opposite party no. 1 in the said complaint that he had a Long Route Conductor Licence and having come to know that the State Transport Authority would grant permit on the aforesaid route, submitted an application for grant of temporary permit for the said route on 17th August, 1989, but since then his said applciation has not been considered by the authority concerned. It appears from the orders annexed to the Revisional applciataion, that the President, Calcutta District Forum, on 25th March, 1991 not only directed to issue show cause notices upon the writ petitioners, but at the same time also passed an interim order allowing the opposite party no. 1 to ply his bus on the aforesaid route without any interference till the grant of permit on the same route. Although the said order was in favour of the opposite party no. 1, the opposite party no. 1, however, for reasons best known to him, preferred an appeal before the President, State Commission being S.C. Case No. 256 of 1931, in which the President, State Commission on 5th April, 1991, after admitting the appeal and directing to issue notice upon the respondents therein i.e., the writ petitioners, passed an interim order allowing the opposite party no. 1 to ply his bus on the aforesaid route without any interference till the grant of permit on the said route and the police and the other concerned authorities were also directed not to create any problem in the matter of smooth running of the bus by the opposite party no. 1 on the aforesaid route.

It is contended by Mr. Sett, learned Advocate, appearing on behalf of the writ petitioners, with Mr. Bhattacharjee, that both the President, Calcutta District Forum and the president, State Commission had Lacked initial jurisdiction to entertain the complaint lodged by the opposite party no. 1 as well as the appeal filed by the opposite party no. 1 and the impugned orders, which have been challenged in the present Rs visional Applciation are thus; nullities, inter alia, on the grounds that the opposite party no. 1 not being a consumer within the meaning as given in Section 2(1) (d) of the Consumer protection Act, 1985, has no right to lodge a complaint before the Calcutta'' District Forum as per the provisions of the said Act, inasmuch as, only a consumer under the said Act, can lodge a complaint before the appropriate forum under the said act, for getting relief as provided u/s 14 of the said Act; since the composition of the Calcutta District Forum as w: 11 as the State Commission are. both initially'' defective being violative of the provisions of Sections 10 and 16 respectively, of the aforesaid Act, the impugned orders passed by them are nullities; u/s 3 of the Consumer Protection Act, 1936 the District Forum or the State Commission are to exercise their jurisdiction in addition to but not in derogation of the provisions any other law for the time being in force. In the present case, the orders of the aforesaid tribunals have been passed in derogation of Section 66 read, with Section 192 of the Motor Vehicles Act, the effect being, legalising an offence or an illegal act and thereby giving a complete go by to the provisions of Chapter-VI of the Motor Vehicles Act altogether; neither of the aforesaid tribunals cannot embark upon the domain of the Motor Vehicles Act, which is a complete code in itself; since there is initial statutory defect in the composition of the aforesaid tribunals, the benefits of sub-rule (5) of the West Bengal Consumers protection Rules cannot be given to such Tribunals, inasmuch as that sub-rule relates not to the initial composition but merely to the irregulatities in such composition and also to post appointment vacancy; only a person aggrieved can prefer an appeal under the aforesaid Act, but as the opposite party no. 1 was not aggrieved by the'' impugned order of the District Forum at all, the appeal before the state Commission was not maintainable in law, and lastly, assuming the District Forum or the State Commission could entertain the disputed complaint as well as the appeal, neither of the said tribunals can pass any interim order as they have not been vested with such power under any provision of the aforesaid Act nor do those tribunals enjoy he inherent power under the CPC as neither of them is a Civil Court and the tribunals can only pass final order after formalities u/s 13 of the aforesaid Act are exhausted and satisfaction u/s 14 thereof is arrived at. Mr. Sett lastly contends that the disputed route is a notified route and as such no public operator should be allowed to ply his vehicle on the said route. In support of his contentions several judgments were cited by Mr. Sett, namely, Veerappa Pillai Vs. Raman and Raman Ltd. and Others, ; ATR 1967 SC 1424 ; S.V. Sivaswami Servai Vs. Hafez Motor Transport (Firm) and others,, ; 1939 (1).CLJ 461 and 1935(4) SCC 557.

Mr. Mukherjee, learned Advocate, appearing on behalf of the opposite party no, 1 with Mr. Bannered and Chatter, however, submits, that since his client''s application for permit u/s 80 of the Motor Vehicles Act is long pending, and is not being disposed of by the authority concerned, his client having no other alternative, moved the District Forum under the Consumer protection Act, 1986 as his client certainly is a consumer within its meaning under the aforesaid Act as the matter in dispute relates to supply of amenities to the public in general and though Mr. Sett''s contention as, that the disputed route is a notified route and no public operators should be allowed to ply his vehicle or the said route, Mr. Goose'' client has been granted permit on the said route in violation of the principle of natural justice and equality before the eye of law and there are still now existing vacancies in the said route. Mr. Mukherjee also refers to an unreported judgment of the Division Bench of this Court consisting of A.M. Bhattacharjee & A.N. Roy, JJ., dated 9.1.1991 passed in FMAT No. 593 of 1990 to show that this Court also can direct the authority to grant permit to an applicant, under the Motor Vehicles Art.

Mr. Das, learned Advocate, appearing on behalf of the applicants in toe application for addition of party filed on 31st May, 1991, not only adopts tie arguments of Mr. Sett, but also condends inter alia, that the disputed route is a notified route as would appear from the Calcutta Gazette Extra-Ordinary dated 20th August'', 1938 itself and no private operator can be allowed to ply his vehicle on such route unless the State Transport Authority grants permission to the R.T.A. concerned to issue permits on such route as per the provisions of Chapter-IV of the Motor Vehicles Act and there is no existing vacancy in the said route and if the opposite party No. 1''s application for permit u/s 80 of the Motor Vehicles Act is rejected, an appeal is provided under the said Act itself before the appellate tribunal against such rejection.

Mr. Ghosh, learned Advocate, appearing on behalf of the applicant in the other application for addition of party filed on 30th May, 1991, apart from adopting the arguments advanced by Mr. Sett. contends inter alia, that his client is plying his vehicle on the disputed route by virtue of the ''permit granted by the R.T.A. concerned in accordance with law and although his client is the most vitally affected person by the impugned orders, he was not made a party either before the Calcutta District Forum or in, the appeal before the State Commission, and as such, the impugned orders are nullities in view of Rule 8(7) of the West Bengal Rules framed under the Consumer Protection Act, 1936, specially in view of the proviso to the said Rule.

A consumer has been defined in Clause (d) of Section 2(1) of the Consumer Protection Act, 1985 as follows: -

consumer" means any person who, -

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid of partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system, of deferred payment, when such services are availed of with the approval of the first mentioned person;

From the above definition it is quite clear that a "consumer" means a person who buys any good or hires any services for a consideration under certain systems, but does not include a person who obtains such goods for any commercial purpose. In the present case, the opposite party prayed for grant of a stage carriage permit and as such does not buy any goods for consideration nor does he want to hire any services inasmuch as grant of permit under the Motor Vehicles Act is not a service within its meaning as defined in clause (o) of Section 2(1) of the Consumer protection Act, 1936 as such grant is not a service of any description made available to the potential user of such permit bat brings the matter within the domain of personal contract. Again since the opposite party no. 1 prays for grant of a stage carriage permit admittedly for commercial purpose, he cannot be called as a ''consumer'' as per its definition as stated above. Accordingly, the opposite party cannot be said to be a ''consumer'' as defined in the Consumer Protection Act, 1986 by any stretch of imagination or at all and as such he has no right to lodge a complaint either before the District Forum or before the State Commission under the Consumer Protection Act, 1986 inasmuch as only a consumer, or a recognised consumer association or the Central or the State Government can lodge a compliant before either of the aforesaid two forums under the said Act and hence the complaint lodged by the opposite party no. J before the District Forum and the subsequent appeal preferred by him before the State Commission both are not maintainable in law.

Moreover, composition of the Calcutta District Forum and also the State Commission, are illegal being violative of the provisions of Sections 10 and 16 respectively of the said Act. As per the aforesaid section 10, each District Forum shall consist of : -

(a) a person who is, or has been, or is qualified to be a District Judge to be nominated by the State Government, to be its President;

(b) a person of eminence in the field of education, trade or commerce;

(c) a lady social worker.

Provided that a member may resign his office in writing under his hand addressed to the State Government aid on such resignation being accepted, his office shall become vacant and may be filled by the appointment of a person possessing any of the qualifications mentioned in subsection (1) in relation to the category of the member who has resigned.

Composition of the State Commission as per Section 16 of the Act would be as follows : -

(1) Each State Commission Shall consist of,

(a) a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President;

(b) two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics,

law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman;

From the provisions of the aforesaid two sections, it is thus quite clear, that composition of the District Forum must be of two persons including the President of such forum and the composition of the State Commission must be of three persons including the president. Only the President of the District Forum and/or the President of the State Commission cannot compose or constitute such Forum or Commission, as the case may be, at all, and as such, the President of a District Forum or the President of the State Commission sitting alone, cannot pass any order in any proceeding. Regarding the provisions of sub-rule (5) of Rule 5 and sub-rule (5) of Rule 7 of the west Bengal Consumer Protection Rules, 1987, it may be said that those sub-rules relate to the vacancies, occurring subsequent to the composition of the District Forum and the State Commission, and the word ''defect'' as mentioned in those sub-rules should also mean irregularities in consisting such forum and commission, namely, the qualifications of the members of the Forum and the Commission including their Presidents but regarding the very composition of the Forum or the Commission, inasmuch as Rule 5 and 7 of the aforesaid Rules have been prepared as per the provisions of Sections 14(3) and section 18 of Consumer Protection Act, 1986 respectively and not under the provisions of Section 10 or Section 16 of the said Act, which deal with the composition of the District Forum and the State Commission respectively, and not with the conduct of the meetings of such authorities, their sittings and other matter as mentioned in the aforesaid Section 14(3) and 18 of the act. Accordingly, the impugned orders passed by the president, Calcutta District Forum and the State Commission, being without jurisdiction for the aforesaid reasons also, are nullities.

Next comes the question of passing ad interim order by a tribunal. It is veil settled, that unless a tribunal, set up under a Special Statute is vested with such power under tine statute itself, it cannot pass such an order, not can a tribunal exercise the inherent power as prescribed under the Code of Civil'' procedure, if such a tribunal is not a court. So far as the Consumer protection Act, 1936 is concerned, the procedure to be adopted by a District Forum on receipt of a complaint, is laid down in Section 13 of the said Act and sub-section (4) of the said section 13 states that for the purpose of the said section, the Forum shall enjoy the same powers as are rested in a civil court under the Code of Civil Procedure, while trying a suit, in respect of the following matters, namely : -

(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness; and

(vi) any other matter which may be prescribed, and -same powers have been vested with the State Commission also as per the pro-, visions of Section 18 of the Act.

From the aforesaid provisions it is thus quite clear, that neither a District Forum nor the State Commission has been vested with any power under the Consumer Protection Act, 1986, to grant and/or pass any ad-interim order, not any of those tribunals is a Civil Court so as to be deemed as such to enjoy the inherent powers as embodied in the Code of Civil Procedure. Those tribunals have been vested with only some limited powers of a civil court as specifically stated in Sections 13 and 18 of the said Act and as such, the said tribunals cannot travel beyond their such limited powers. Hence, the interim orders passed both by the President, Calcutta District Forum and the Chairman, State Commission, are wholly without jurisdiction

Again, Section 3 of. the Consumers protection Act, 1936 states in clear terms that the provisions of the said Act are to be invoked in addition'' to bat not in derogation of any other law for the time being in force. The Motor Vehicles Act, 1988 is a complete code in itself, where specific provisions are there for making application for grant of both temporary and permanent route permit and the remidies against such refusal are also provided in the said Act, and as such the provisions of the Motor Vehicles Act, therefore, cannot be encroached upon by the Consumers protection Act in any way, nor the provisions of the Consumers Protection Act, 1986 can be said to have any overriding effect over the provisions of the Motor Vehicles Act. In the present case, both the tribunals in my view, have clearly gone beyond their respective jurisdiction in encroaching upon the domain of the Motor Vehicles Act by passing the impugned orders to allow the opposite party no. 1 to ply his bus on the disputed route in clear violation of the provisions of the Motor Vehicles Act.

Lastly, no court or tribunal should'' pass an interim order to allow any person to ply his bus on any route when his application for grant of permit is pending before the competent authority under the Motor Vehicles Act. The decisions cited by Mr. Sett are clear authorities on this point and I need not discuss the said decisions over again. The unreported decision cited by Mr. Mukherjee although is of a Division Bench Judgment of this Hon''ble Court, but in 1989(1) CLJ 461 which is also a Division Bench Judgment it has been clearly observed that the High Court cannot take upon itself, the powers and responsibilities to grant temporary permits, more particularly when, the necessary power to grant such permit is vested in the Regional or State Transport Authorities and that too on the basis of the necessary satisfaction readied on the four or any of the grounds as stated in Section 62 of the Motor Vehicles Act and the Supreme Court also in Veerappa Pillai Vs. Raman and Raman Ltd. and Others, has held that the order of the High Court directing the authority concerned to grant permits to the applicants is clearly in excess of its pwoers and jurisdiction. The Supreme Court in its latest decision in S.V. Sivaswami Servai Vs. Hafez Motor Transport (Firm) and others,, also refused to accept the common request of the parties before it, to direct that both the parties who were operating on the route in question by the orders of the High Court, or the interim orders passed by the Supreme Court in the matter, should be allowed to ply their stage carriage on the disputed route. The result is, that the re visional application thus succeeds and the impugned orders are sot aside being wholly without jurisdiction, and the complaint and the appeal in which the impugned orders haw been made are also not maintainable in law for the reasons us aforesaid. However, since the application for grant of permit filed by the opposite party no. 1 before the R.T.A. concerned in respect of the disputed route is still pending, it is expected that the R.T.A. concerned should decide the matter at an early date and also make arrange meats for operation of the said route to a to id any inconvenience to the public, in the meantime. There will be no order as to costs.