TMI Blog2021 (9) TMI 1499X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and restrictions that are applicable to the Courts of record in conducting trials, but at the same time, a tribunal is required to look at all matters from the standpoint of substance as well as form and be certain that the hearing is conducted and the matter is disposed of with fairness, honesty, and impartiality. The Hon'ble Supreme Court of India in the case of ROJER MATHEW VERSUS SOUTH INDIAN BANK LTD. OTHERS [ 2019 (11) TMI 716 - SUPREME COURT ] has observed that the delay and backlog in the administration of justice is of paramount concern for any country governed by the rule of law. In our present judicial set up, disputes often take many decades to attain finality, travelling across a series of lower Courts to High Court and ending with an inevitable approach to the Supreme Court. Such Crawling pace of justice delivery system only aggravates the misery of affected parties. It is further observed that it would, however, be wrong to place the blame of such delay squarely on the judiciary, an empirical examination of pending cases clearly demonstrates that the ratio of judges against the Country's population is one of the lowest in the world and the manp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to handle cases, proper personal conduct and ethical behaviour and shall ensure impartiality, fairness and reasonableness in consideration. Whereas the technical member ensures the availability of expertise and experience related to the field of adjudication for which the Special Tribunal is created. In the case in hand admittedly no written test was prescribed in the impugned notice for selection of Members of District and State Commissions but, only a viva-voce test. However, during the pendency of the present petition and in the middle of selection process, a decision was taken by the Selection Committee to hold written test for selection, which is contrary to the well settled principle of law that in the middle of the selection process, rules for selection cannot be changed. There are no hesitation to hold that Sub Rule (9) of Rule 6 of Rules of 2020, framed under the Act of 2019, is ultra vires, and violative of Article 14 of the Constitution of India - Rules 3(2)(b) and 4(2)(c) of the Rules of 2020 prescribing a minimum experience of not less than 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a seeking experience of not less than 20 years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine, for the post of Members of State Commission and experience in similar fields of not less than 15 years for the post of President and Members of District Commission. Rule 6 of the Rules of 2020, is in respect of procedure of appointment. Sub-rule 9 of Rule 6 permits the Selection Committee to determine its procedure for making its recommendations keeping in view the requirement of the State Commission or the District Commission and after taking into account the suitability, record of past performance, integrity and adjudicatory experience. 5. In pursuance to Rule 6, the State of Maharashtra constituted a Selection Committee vide Government Resolution dated 6th November, 2020. Consequently, the applications were invited for the post of President and Members of State Consumer Disputes Redressal Commission and District Consumer Redressal Commission under the Act of 2019. The said notice inviting applications gave cause to the respective petitioners to file these petitions. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras Bar Association Vs. Union of India, Writ Petition (C) No 804 of 2020, decided on 27.11.2020. ii) Grant ad-interim, ex-parte stay to the effect, operation and implementation of the said Rules 2020 (ANNEXURE-P-02) dated 15.07.2020 till the decision of instant petition. iii) Quash and set aside the vacancy Notice dated 02.02.2021 (ANNEXURE-P-01) issued by respondent No. 2 for inviting application for the post of the Presidents and the members of the District Commissions and the members of State Commission in Maharashtra as the same is illegal and bad in law for the reasons stated in this petition. iv) Grant ad-interim, ex-parte stay to the effect, operation and implementation of the Vacancy Notice dated 02.02.2021 (ANNEXURE-P-01) till the decision of petition. v) Confirm ad-interim ex-parte stay granted as per prayer clause (ii iv) above till the decision of petition. vi) Restrain the respondents or their agents and servants from making any appointment of presidents and the members of the District Commissions and the members of State Commission in Maharashtra during the pendency of this writ petition. vii) Grant any other relief which this Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eria, is contrary to the directions issued by the Hon'ble Supreme Court of India in the case of Madras Bar Association Vrs. Union of India 2020 SCC Online SC 962 (herein after referred as MBA-2020 ) and in the case of UPCPBA. It is submitted that the said condition would deprive many lawyers who are otherwise qualified and have legal expertise and experience of 10 years or more. 15. Shri Mandlekar, learned counsel for the petitioner in support of his contentions also relies upon the following judgments. i. Union of India Vrs. R. Gandhi, President, Madras Bar Association 2010 11 SCC (1) (hereinafter referred as MBA-2010 ) ii. Madras Bar Association Vrs. Union of India 2021 SCC Online SC 463 (hereinafter referred as MBA-2021 ) iii. State of Rajasthan and others Vrs. Basant Nahata. (2005) 12 SCC 77 16. Per contra, Shri Aurangabadkar, learned ASGI submits that it may not be possible to conduct the written test as demanded by the petitioners, which may further delay the process of selection. He submits that the State Government is expected to exercise complete transparency in the selection procedure. It is submitted that the procedure which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either expressly or impliedly. The High Courts have appellate and revisional jurisdiction along with the jurisdiction to issue prerogative writs. Some of the High Courts have original jurisdiction as well. The Hon'ble Supreme Court has original jurisdiction and advisory jurisdiction where the President of India may seek opinion. It can issue prerogative writs and has appellate jurisdiction. The Supreme Court has also discretion to entertain Special Leave Petition. 23. The delay and backlog in administration of justice had raised a concern. The Law Commission of India therefore, in its Fourteenth Report (1958) made recommendations for reforming the administration of justice delivery system which have been implemented from time to time to revamp the judicial system with a view to reduce delay and enlarge access to justice. 24. The Tribunal, as a result, emerged as an effective mechanism to reduce the backlog and delay in administration of justice. 25. The term 'Tribunal' is derived from the word 'Tribunes', which means 'Magistrate of the Classical Roman Republic'. 26. In India, history of Tribunals dates back to the year 1941, when first Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd., 2020(6) SCC 1 has observed that the delay and backlog in the administration of justice is of paramount concern for any country governed by the rule of law. In our present judicial set up, disputes often take many decades to attain finality, travelling across a series of lower Courts to High Court and ending with an inevitable approach to the Supreme Court. Such Crawling pace of justice delivery system only aggravates the misery of affected parties. It is further observed that it would, however, be wrong to place the blame of such delay squarely on the judiciary, an empirical examination of pending cases clearly demonstrates that the ratio of judges against the Country's population is one of the lowest in the world and the manpower (support staff) and infrastructure provided is dismal. In addition to the delay in administration of justice, another important facet requiring attention is the rise of specialization and increase of complex and commercial aspects, which require esoteric appraisal and adjudication. The existing lower Courts in the Country are not well equipped to deal with such complex new issues which see constant evolution as compared to the stable nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members appointed to the Tribunal should possess equivalent qualifications required for appointment as District Judges. B. There shall be uniformity in the appointment, tenure and service conditions for the Chairman, Vice-Chairman and Members appointed in the Tribunals. While making the appointments to the Tribunal, independence shall be maintained. C. There shall be constituted a Selection Board/Committee for the appointment of Chairman, Vice-Chairman and Judicial Members of the Tribunal, which shall be headed by the Chief Justice of India or a sitting judge of the Supreme Court as his nominee and two nominees of the Central Government not below the rank of Secretary to the Government of India to be nominated by the Government. For the selection of Administrative Member, Accountant Member, Technical Member, Expert Member or Revenue Member, there shall be a Selection Committee headed by the nominee of the Central Government, to be appointed in consultation with the Chief Justice of India. D. The Chairman of the Tribunals should generally be the former judge of the Supreme Court or the former Chief Justice of a High Court and Judicial Members should be the former j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... G. The Chairman should hold office for a period of three years or till he attains the age of seventy years, whichever is earlier. Whereas Vice-Chairman and Members should hold the office for a period of three years or till they attain the age of sixty seven years whichever is earlier. It will be appropriate to have uniformity in the service conditions of the Chairman, Vice-Chairman and other Members of the Tribunals to ensure smooth working of the system. II. Whether it is permissible and advisable to provide appeals routinely to this Court only on a question of law or substantial question of law which is not of national or public importance without affecting the constitutional role assigned to the Supreme Court having regard to the desirability of decision being rendered within reasonable time? H. Every order emanating from the Tribunal or its Appellate Forum, wherever it exists, attains finality. Any such order may be challenged by the party aggrieved before the Division Bench of the High Court having territorial jurisdiction over the Tribunal or its Appellate Forum. III. Whether direct statutory appeals to the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme court of India in the case of UPCPBA. The Hon'ble Supreme Court of India in the aforesaid matter constituted a Committee presided over by Mr. Justice Arijit Pasayat, a former Judge of the Apex Court, to examine following issues:- (i) the infrastructural requirements of the State Commissions, deficiencies in infrastructure and remedial measures; (ii) the position of vacancies of members at the national, state and district level; (iii) the need for additional Benches at the national, State and district level; (iv) conditions of eligibility for appointment of non-judicial members; (v) administrative powers which have been or should be conferred on the Presiding Officers of the State and District Fora; (vi) service conditions including pay scales governing the Presiding Officers and members; (vii) requirements of staff; (viii) creation of a separate cadre of staff at the national, State and district level; and other relevant issues. (ix) other relevant issues. 38. Thereupon, the Committee inquired extensively into the matters referred to it and made assessment of the prevailing conditions in the Fora constituted under the Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vely implement the objects and purposes of the Consumer Protection Act, 1986. 39. Consequently, the Union Government framed the model rules, whereupon the State Governments were directed to frame rules in accordance with the Final Draft Rules submitted by the Union of India. 40. The State of Maharashtra, appropriately, framed the rules by issuing notification dated 24th May, 2019, in confirmation with the final draft rules, prepared by the Union of India. 41. However, in view of new challenges due to drastic transformation of consumer markets for goods and services, the Act of 1986 was repealed and re-enacted vide Act of 2019. Consequently, the Union of India in exercise of the powers conferred by Sections 29 and 43 r/w Clauses (n) and (w) of sub-section 101 of the Act of 2019, framed the Rules of 2020, vide Notification dated 15.07.2020. 42. In light of above referred facts, to examine the contention of the petitioners that sub-Rule (9) of Rule 6 of the Rules of 2020, is contrary to the directions issued by the Hon'ble the Supreme Court of India in the cases of MBA-2020 and UPCPBA and arbitrary and hence, the same is ultra vires, it is necessary to refer to Sub-Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Maharashtra, framed the rules vide notification dated 24th May, 2019, prescribing therein a written examination and Viva-voce for selection of President and Members of the District Forum and State Forum. 47. It is notable that, even prior to issuance of aforesaid directions by the Apex Court, a written test was prescribed for selection of President or Members of the District Forum or State Commission, Maharashtra. However, in the case in hand, the said procedure has not been followed and viva-voce as the only criteria for selection, was prescribed. 48. In the case of MBA-2021 the Hon'ble Supreme Court of India while dealing with the contentions of learned Attorney General of India that ordinance cannot be challenged on the ground that it is contrary to judgment of Hon'ble the Supreme Court of India, it is held thus: 44. The permissibility of legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under: a) The effect of the judgments of the Court can be nullified by a legislative act removing the basis of the judgment. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry authorities after enactment of the Act of 2019 for such deviation and for not following the direction issued by the Hon'ble the Supreme Court of India in the case of UPCPBA, relating to bringing uniformity of rules across the country in regard to the modalities to be followed in appointment and selections of President and Members of the District Forum and State Forum. 51. For this purpose, we will compare the relevant functions and powers conferred upon the Fora/Commission under the Act of 1986 and the Act of 2019, respectively. The Hon'ble Supreme Court of India in the aforesaid case of UPCPBA, after considering the scheme of the Act of 1986, has held the adjudicatory powers of the Fora constituted under the Act of 1986, as a 'judicial function'. In the light of aforesaid finding, the comparison is made, which is as under:- Act of 1986 Act of 2019 Section 13(2) The District Forum shall, if the complaints admitted by it under section 12 relates to goods in respect of which the procedure specified in sub-section (1) cannot be followed, or if the complaint relates to any services,- (a) ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint on merits if the complainant fails to appear on the date of hearing Section 13(3) No proceedings complying with the procedure laid down in subsections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with. Section 38(5) No proceedings complying with the procedure laid down in subsections (2) and (3) shall be called in question in any court on the ground that the principles of natural justice have not been complied with. Section 13 (3A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities. Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum: Provided further that the District For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 38 (9) For the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely: (a) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (b) requiring the discovery and production of any document or other material object as evidence; (c) receiving of evidence on affidavits; (d) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (e) issuing of commissions for the examination of any witness, or document; and (f) any other matter which may be prescribed by the Central Government Section 13(5) Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission. Section 49 : Procedure applicable to State Commission. (1) The provisions relating to complaints under sections 35, 36, 37, 38 and 39 shall,with such modifications as may be necessary, be applicable to the disposal of complaints by the State Commission. (2) Without prejudice to the provisions of sub-section (1), the State Commission may also declare any terms of contract, which is unfair to any consumer, to be null and void. Section 25 Enforcement of orders by the 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974). (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.) Section 72 : Penalty for noncompliance of order (1) Whoever fails to comply with any order made by the District Commission or the State Commission or the National Commission, as the case may be, 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 twentyfive thousand rupees, but which may extend to one lakh rupees, or with both. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the District Commission, the State Commission or the National Commission, as the case may be,shall have the power of a Judicial Magistrate of first class for the trial of offences under sub-section (1), and on conferment of such powers, the District Commission or the State Commission or the National Commission, as the case may be, shall be deemed to be a Judicial Magistrate of first class for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of UPCPBA, for having uniformity across the country in standards, selection and appointment of President and Members on Fora, are equally binding with full force, even after the enactment of the Act of 2019. 57. The Hon'ble Supreme Court of India, in the case of UPCPBA, has given sufficient reasons to have uniformity across the country as regards standards and modalities in appointments of Presidents and Members of Consumer Dispute Redressal Forum, under the Act of 1986. The Union of India while framing Rules of 2020 under the Act of 2019, ought to have framed the rules in consonance with the directions of the Hon'ble the Supreme Court of India, issued in the case of UPCPBA, to cure defects pointed out in the said judgment, which has admittedly not been done. Whereas, under the Rules of 2020, the uncontrolled and uncanalised discretion has been granted to the Selection Committee, which will produce undesirable results and which will be in violation of fundamental rights to equality before law and equal protection of laws guaranteed by Article 14 of the Constitution of India, that includes a right to have the person's rights adjudicated by a forum which exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent outlook, integrity, character and good reputation. 62. As Justice Stephen Breyer (Supreme Court of the United States), writes:- When you are a judgeit's important to be able to imagine what other people's lives might be like, lives that your decisions will affect. People who are not only different from you, but also very different from each other And this empathy, this ability to envision the practical consequences on one's contemporaries of a law or a legal decision, seems to me to be a crucial quality in a judge. 63. Justice Hidayatulla, former Chief Justice of India has placed observance by judges of punctuality of time, on a very high pedestal. According to him, a Judge who does not observe punctuality of time does not believe in rule of law. Whereas, the Hon'ble Apex Court in the case of UPCPBA has observed that in the Fora under the Act of 1986, non-judicial members do not maintain punctuality. 64. It is enounced by Chief Justice Burger (United States) that a sense of confidence in the Court is essential to maintain a fabric of order and liberty for free people. Three things would destroy that confidence and do incalculable damage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69. In this regard, the observations made by the Hon'ble Supreme Court of India, in the case of UPCPBA, are relevant, which depict a sorry state of affairs in the Fora, as under: a) The fora do not function as effective as expected. b) The quality of presiding members, especially of non-judicial members at the state and district levels is poor. c) Most of the non-judicial members are not even capable of writing or dictating small orders. d) At certain places non-judicial members act in unison against the presiding officer, while passing orders contrary to law, damaging the reputation of the adjudicating body. Presidents, as a result, prefer a situation where such non-judicial members absent themselves from work if only so that judicial work can be carried out by the presiding judge impartially and objectively. e) Many non-judicial members do not maintain punctuality and others attend to work sporadically once or twice a week. f) Many of the non-judicial members attend the place of work only to sign orders which have been drafted by the presiding officer. 70. The Hon'ble Apex Court further quoted three instances showing bureaucratic and pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n invalidation of the relevant provisions relating to the constitution of the tribunal. If the qualifications/eligibility criteria for appointment fail to ensure that the members of the Tribunal are able to discharge judicial functions, the said provisions cannot pass the scrutiny of the higher the judiciary. 74. It is further held in the MBA-2010 that the legislature is presumed not to legislate contrary to rule of law and therefore know that where disputes are to be adjudicated by a judicial body other than Courts, its standards should approximately be the same as to what is expected of mainstream judiciary. 75. In the case of MBA-2021, his Lordship Justice S. Ravindra Bhat, while recording concurrence to the judgment authored by his Lordship L. Nageshwar Rao, has observed thus: 19. .. However, in matters that concerned administration of justices, especially where alternative adjudicatory forums are created, the court's concern is greater. This is because the Constitution does not and cannot be read so as to provide two kinds of justice: one through courts, and one through other bodies. The quality and efficacy of these justice delivery mechanisms have to be the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and Members of District Commission, Maharashtra State, is arbitrary, unreasonable, ex-facie bad in law and violative of the directions issued by the Hon'ble Supreme Court of India in the case of MBA-2020 and MBA-2021 as well as in the case of UPCPBA. 80. Now, we would deal with the challenge made to the validity of Rules 3 and 4 of the Rules 2020. For the sake of convenience, Rule 3 (2)(b) and Rule 4(2)(c) of the Rules, 2020 are reproduced hereunder, which read thus: 3. Qualifications for appointment of President and members of the State Commission- (1). (2) A person shall not be qualified for appointment as a member unless he is of not less than forty years of age and possesses- (a). (b) a bachelor's degree from a recognised university and is a person of ability, integrity and standing, and has special knowledge and professional experience of not less than twenty years in consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine: (3). 4. Qualifications for appointment of President and member of District Commission- (1). (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 years for appointment of President and Members of State Commission and experience of not less than 15 years for appointment of Presidents and Members of District Commission, are unconstitutional and violative of Article 14 of the Constitution of India. 86. During the pendency of the present petitions, the President of State Commission, Maharashtra has been appointed and has joined the office. In absence of challenge to the validity of said appointment, we have refrained ourselves from dealing with its validity. 87. In light of above observations and findings recorded, we pass the following order:- ORDER (i) The Public Interest Litigation No. 11 of 2021 is allowed; (ii) The Writ Petition No. 1096/2021 is partly allowed; (iii) It is held and declared that Rule 3(2)(b), Rule 4(2) (c) and Rule 6(9) of the Rules of 2020, are arbitrary, unreasonable and violative of Article 14 of the Constitution of India for the reasons recorded herein above and hence are quashed and set aside; (iv) The Union of India is directed to provide for appropriately made Rules as substitutes for Rule 3 (2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules, 2020, declared unconstitutional, ke ..... X X X X Extracts X X X X X X X X Extracts X X X X
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