S.K. BHARAGAVA vs MAHADEVA

THIS revision petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (the ''Act'') is directed against the order dated 18.11.1997 whereby the Distt. Forum, Alwar held that the petitioners had failed or omitted to comply with the basic order dated 25.6.1997 made in Non-petitioner''s Complaint Case No. 84 of 1997. Therefore, Distt. Forum in exercise of its powers under Section 27 of the Act sentenced the petitioners to undergo rigorous imprisonment for one year each and also pay a fine of Rs. 10,000/- each or in case of committing default in making payment of the fine to undergo simple imprisonment for three months each.

WE heard the learned Counsels for the petitioners and examined the material on the record of the Forum. By basic order dated 25.6.1997 the Distt. Forum had ordered as under: "Hindi matter omitted" Aggrieved by the above order the opposite parties to the complaint, (the RSEB and its officers-the Board), who the petitioners were in their official capacities, had filed Appeal No. 1898 of 1997 (RSEB) Executive Engineer and Asstt. Engineer v. Mahadeva, Such appeal has, however, been dismissed by us by an order dated September 8, 2003. The record of the proceedings under Section 27, C.P. Act was not received from the Forum. Looking to the fact that the petition has been pending since 1997 and the record of proceeding under Section 27 of the Act could, perhaps, be not requisitioned under the misunderstanding that record of the complaint itself had been requisitioned in connection with the appeal and this petition was found tagged with such record of the appeal (to be taken up for disposal along with the appeal) and now requisition of the record is likely to consume some time we have thought it in the interest of the petitioners to dispose of this petition also at this stage on the basis of material available on our record.

Looking to the nature and purport of the directions as were given by the D.F. in the operative part of its basic order, which has been reproduced above, it cannot be said that the directions were, in any way so oppressive, unjust or illegal as might have necessitated the Board to enter into this avoidable litigation and the petitioners to take the risk of attracting the penal consequences flowing from their acts of failure or omission to comply with the said order of the Forum. Before placing too much reliance upon Board''s letter No. 1065 dated 18.10.1995 and insisting upon strict compliance thereof they should have read the intention of the Board and the policy of the State Government laid down in Clause 4 of the Guidelines No. 473, dated 24.6.1995 which provided that "Hindi matter omitted" and which guideline had been repeated verbatim in Clause 5 of the Guidelines No. 198, dated 2.8.1996 also. The basic order, as made by the Forum, required no more than what the petitioners were required to do under the Guidelines issued by the Board from time-to-time. If the petitioners had issued demand notice to the respondent on 9.6.1995 without having examined technical feasibility on the spot; it was their own fault. However, if they had declined to comply with the basic order of the Distt. Forum by relying upon Board''s letter, dated 18.10.1995, they should have explained and if not done so earlier may do now, to the Forum in proceedings under Section 27 of the Act, as to why they could not act in compliance of the instructions contained in Clause 5 at page 5 of the Guidelines No. 198, dated 2.8.1996 which superseded Board''s letter dated 18.10.1995 and stressed upon regularising the connections, which were applied for before 15.1.1996, after charging the expenses, as specified therein, from the applicants.

TAKING into account the above state of affairs we are of the opinion that the petitioners should once again get an opportunity to explain their conduct in relation to the non-compliance of the basic order of the Distt. Forum dated 25.6.1999. At this stage we would like to point out that during the meanwhile Sections 25 and 27 of the Act have been drastically changed by Consumer Protection (Amendment) Act, 2002 w.e.f. 15.3.2003. Prior to the amendment, every order made by a Redressal Agency under the Act was enforceable in the same manner as if it were a decree or order made by a Court in a suit pending therein and it was lawful for such Agency to send, in the event of its inability to execute it, such order to the Court within the local limits of whose jurisdiction the place, where ther person against whom the Forum had passed the basic order voluntarily resides, or carried on business or personally worked for gain, was situated or, in the case of the same being against a company, the registered office of the company was situated. On receipt of the order of the Forum in the manner stated above, the transferee Court was to execute the order as if it were a decree or order sent to it for execution.

THE C.P. (Amendment) Act, 2002 has, however, done away with the above procedure. THE newly substituted Section 25, now reads as under: "Enforcement of orders of the District Forum, the State Commission or the National Commission.-(1) Where an interim order made under this Act is not complied with the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached.

(2) No attachment made under Sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damage as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.

(3) Where any amount is due from any person under an order made by a District Forum or the State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the District (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue."

It may be appreciated that Sub-sections (1) and (2) of Section 25 above, talk of the mode and manner for executing "interim order made under the Act". Compliance of the interim orders may now be enforced by ordering the property of the person, not complying with such order, to be attached and, in the event of continuance of the disobedience of the interim order for more than three months, to sell the property attached and award such damages to the complainant out of the sale-proceeds, as thought fit by the Redressal Agency concerned, and pay the balance to the person entitled to such balance. Proceedings under the Act being of summary nature, necessity was felt for arming the Redressal Agency with the power of passing such interim order, which may give interim relief to the consumer-complainant during the pendency of the complaint before such Agency and in the event of non-compliance, may be enforceable through attachment and sale of the property of the party against which such interim order was made. Such interim order should, however, be revisable by the higher Redressal Agency in the hierarchical setup of the Agencies under the Act. Therefore, Sub-section (3B) of Section 13 of the Act was bought on the Statute Book. The position now is that "interim order" may be passed under Section 13(3B) of the Act in the course of hearing of the complaints by the Redressal Agencies and compliance of such orders may be enforced by following the procedure laid down in Sub-sections (1) and (2) of Section 25 of the Act. But what about the enforceability of final order passed by the Redressal Agency in the complaint? Sub-section (3) of Section 25 speaks of the mode of enforceability of only such final order which relates to payment of the amount due from any person under such order. In that behalf what the Agency is required to do is to record its satisfaction, on the application from the person entitled to receive such amount, to the effect that the amount payable under the order has not been paid and issue a certificate to that effect to the Collector concerned who shall then proceed to recover the amount in the same manner in which arrears of land revenue are to be realised under the Public Dues Recovery System.

BUT what procedure should be adopted for enforcement of the orders which are neither of the nature "interim orders", enforceable under Sub-sections (1) and (2) of Section 25 nor of the nature of "final orders" enforceable under Section 25(3) of the Act. In other words, how a final order, which is made under Section 14 of the Act and which directs a party to the complaint to do or abstain from doing an act but in the event of non-compliance of such order casts no pecuniary liability upon the person not complying with such order, would be enforceable? The answer to this pertinent question is given by the newly amended Section 27, which reads as under: "Penalties.-(1) Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may be extended to ten thousand rupees, or with both.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the powers of a Judicial Magistrate of the First Class for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be Judicial Magistrate of the First Class for the purpose of the Code of Criminal Procedure, 1973.

(3) All offences under this Act may be tried summarily by the District Forum or the State Commission or the National Commission, as the case may be."

THE words "any order"used in the language of Sub-section (1) of Section 27 are, in our opinion, wide enough to embrace within its fold the nature of the order, pointed out above by us. THErefore, an order, which is though not an interim order talked of under Section 13(3B) and enforceable in the manner laid down in Sub-sections (1) and (2) of Section 25, yet has the characteristics of such an order due to its directing a person to do or abstain from doing an act, may be enforced as per procedure laid down in Section 27 of the Act. It may be noted that Section 27 regards the failure or omission to comply with such an order as an act amounting to an offence punishable with imprisonment or with fine or with both, as specified in Sub-section (1) of Section 27. It would thus appear that the Legislature seems to have taken a serious view of the failure or omission to comply with ''any order'' made by the Redressal Agencies under the Act and besides providing for the mode of enforcement of such orders, as per procedure laid down in Section 25, has further provided for an additional and simultaneous mode of enforcement of such orders under Section 27 of the Act. With a view to make such additional mode for enforcement of an order, whether prayed for simultaneously along with the mode available under Section 25 or subsequent to the availment of that mode, effective and practically meaningful, the Legislature has conferred upon the Redressal Agencies the power of Judicial Magistrate of the First Class for the purposes of the Code of Criminal Procedure, 1973. It may be true that strictly speaking Section 27 has nothing to do with the execution of the order of the Forum. But the opening clause in the sentence of Sub-section (1) of Section 27 clearly exhibits the intention and anxiety of the Legislature to see that the orders made by the Redressal Agencies under the Act be enforced and executed by such person(s) against whom those are passed as the successful achievement of purpose of the Act lies in the enforceability and executability of the orders made by the Redressal Agency. The majesty of law lies in its awe and the fear of imposition of imprisonment or fine or both upon the opposite party, in the event of his failure or omission to comply with an order made under Section 13(3B) or Section 14 of the Act, may force or compel him to comply with such order and thus the very object and purpose of the Act-redressal of grievance of the consumer-may be achieved.

It may further be noted that by prescribing the procedure for depriving a person of personal liberty (Sub-section 3 of Section 27) and providing a right of appeal under Section 27A to the aggrieved person against an order made under Section 27, the Legislature has not left it to the "Judge made" procedure. The procedure being reasonable has now statutory recognition and should be followed in conformity with the Legislative intention.

WE should not be misunderstood as laying down that recourse to the procedure for enforcement of the orders made by the Redressal Agencies under the Act should be taken in respect of each and every order and the person(s) who fail or omit to comply with such orders should be necessarily sentenced to imprisonment or fine or both. No, not at all. In administering the provisions contained in Section 27 the dominant object and purpose of the Act is not to be forgotten. And the object and purpose of the Act is to ensure as to how the interest of the consumer can be best served. The Act is more concerned with the ''Redressal of grievance'' of the Consumer rather than imposition of punishment on person(s) who fail or omit to comply with the orders of the Forum. It is, therefore, desirable that in administering the provisions contained in Section 27 of the Act the person who fails or omits to comply with the order of the Forum, should, in the course of such proceedings, be given at least one and not more than two opportunities to comply with the order and if he fails or omits to comply with the order despite availing such opportunity or opportunities, the legislative intent in forming Section 27 should be fulfilled. In any case, the redressal of grievance of the consumer should take precedence to punishment for dis-obedience of the order of the Agency. In the result the impugned order is set aside and the revision petition is allowed. The case is remanded to the Distt. Forum to complete and finalise the proceedings against the petitioners in accordance with the newly amended provisions contained in Section 27 and in the light of the observations made herein-above. The Distt. Forum shall try to dispose of such proceedings as expeditiously as possible, preferably within next two months from the date of appearance by the petitioner before it on 6.10.2003. Revision Petition allowed.