K.S. Chaudhari, Presiding Member— While hearing arguments in F.A. No.493 of 2011 and R.P. No. 90 of 2011, Bench No.1 observed as under:
“We feel that there is divergence of opinion on the question as to whether against an order made by the State Commission (interim or final) under Section 25 of the Consumer Protection Act, 1986 and an order other than a final order, under Section 27, an Appeal under Section 21(1)(ii) or a Revision Petition under Section 21(b) or none of the either would be maintainable before this Commission. In several orders, this Commission has taken the view that against such orders an Appeal under Section 27A of the Act and not a Revision Petition under Section 21(b) of the Act would be maintainable. Under the circumstances, it would be appropriate that the said issue is resolved by a Larger Bench”.
2. Hon'ble President constituted a larger bench for opinion on aforesaid issue. Later on, R.P. No. 1792 of 2012 - Shrikant Gopalrao Prabhune v. Branch Manager, HDFC Bank Ltd. in which similar issue was involved as per orders of Hon'ble President this matter was placed before our Bench.
3. Heard learned Counsel for the parties and Mr. Pradeep Gupta, Authorized Representative of Complainant M/s. Perfect Prints and Mr. Avinash Vinayak Prabhune, Authorized Representative of Petitioner in R.P. No. 1792 of 2012.
4. The core question to be decided by this Bench is whether any appeal or revision or none lies against order of State Commission (interim or final) under Section 25 of the C.P. Act and order other than final order under Section 27 of the C.P. Act.
5. Learned Advocate Mr. Kishore Rawat submitted that both appeal and revision lie against interim or final order under Section 25 and interim under Section 27 whereas Mr. Pradeep Gupta, Auth. Representative of Complainant M/s. Perfect Prints submitted that neither appeal, nor revision lies against aforesaid orders as orders are not passed on consumer dispute, but are passed in execution proceedings. Learned Advocate Mr. Sharique Hussain also supported Mr. Pradeep Gupta.
6. Section 19 of Consumer Protection Act, runs as under:
“l9. Appeals.—Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less:
Section 21 of Consumer Protection Act, runs as under:
21. Jurisdiction of the National Commission. — Subject to the other provisions of this Act, the National Commission shall have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
Perusal of Section 19 makes it clear that right has been conferred on the aggrieved persons to file appeal against order of State Commission in Consumer Dispute to the National Commission and Section 21(a)(ii) gives jurisdiction to the National Commission to entertain appeal against orders of State Commission. Thus, it becomes clear that appeal under Section 17(1)(a)(ii) can be entertained only against final order of State Commission passed in complaint (consumer dispute), but not in any other proceedings. Section 21(b) empowers National Commission to call for records and pass appropriate order in any consumer dispute pending or decided by State Commission meaning thereby, National Commission may under revisional jurisdiction call for record of State Commission and pass appropriate order or aggrieved person can challenge other order except final order on consumer dispute whether pending or disposed of by State Commission before the National Commission as jurisdiction to entertain appeal has already been given in preceding provision, i.e. Section 19.
7. Section 25(1) authorizes Consumer Fora to attach property for non-compliance of interim order made under the Act and Section 25(3) authorizes Consumer Fora to issue certificate to the Collector of the District to recover any amount due from any person under an order made by Consumer Fora.
8. As no appeal has been provided under Section 19 of the Act against interim or final order passed by State Commission under Section 25 of the Act, only revision can be entertained by National Commission under Section 21(b) against interim or final order passed by State Commission under Section 25 of the Act.
9. Mr. Pradeep Gupta, Auth. Rep. of Complainant submitted that neither appeal, nor revision lies against orders passed under Section 25 as orders are not passed on consumer disputes, but are passed in execution proceedings filed for reaping fruits of orders passed on the complaint. As far non-maintainability of appeal is concerned, we agree with the submission of Mr. Gupta, but we do not agree with the submission that no revision lies against interim or final order under Section 25 of the Act. Legislature never intended that a party can be left remedyless at the mercy of Consumer Fora for complying such orders which are not in accordance with law and in such circumstances, revision lies under Section 21(b) before National Commission against such orders of State Commission.
10. Admittedly, State Commission has no power to review its order and in case State Commission directs a person to comply order of State Commission though he may not be party to the consumer dispute or commits mistake in calculation of interest awarded in consumer dispute and issues certificate to the Collector for recovery of the amount, such a party cannot be expected to move to the Hon'ble Supreme Court under Article 136 of the Constitution of India for redressal of his grievances. No party can approach under Article 136 of Constitution of India as of right and it is exceptional remedy provided under the Constitution. When no appeal lies against any order of State Commission and National Commission has been given power to entertain revision petition, naturally revision will lie against an order against which no appeal lies. In such circumstances, we are of the view that revision lies against interim or final order passed by State Commission under Section 25 of the Consumer Protection Act.
11. Now it is to be seen whether any appeal or revision or none lies against interim order of State Commission under Section 27 of the C.P. Act. Section 27 of the C.P. Act runs as under:
27. 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 thousands rupees but which may extend 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 power 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 a Judicial Magistrate 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.
Perusal of Section 27 makes it clear that Consumer Fora has power to pass sentence of imprisonment as well as impose fine for not complying with the orders of the State Commission given to any of the parties in the complaint.
12. Section 27A runs as under:
27A. Appeal against order passed under section 27- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal under section 27, both on facts and on law, shall lie from-
(a) the order made by the District Forum to the State Commission;
(b) the order made by the State Commission to the National Commission; and
(c) the order made by the National Commission to the Supreme Court.
(2) Except as aforesaid, no appeal shall lie to any court from any order of a District Forum or a State Commission or the National Commission.
Which provides right of appeal to the National Commission against order made by State Commission under Section 27. This Section does not bifurcate orders in the category of interim or final order and allows appeal against any order passed by State Commission under Section 27 of the Act. Section 27A(2) further provides that no appeal shall lie to any Court except as provided under Section 27(1), which makes it clear that neither appeal under Section 21(b)(II), nor revision under Section 21(b) lies against any order interim or final passed by State Commission under Section 27 of the C.P. Act. Hon'ble A.P. High Court in AIR 2004 AP 49 - Megacity Builders v. A.P. State Consumer Dispute… observed as under:
“29. We are fortified in our view for the fact that the Parliament itself has intervened and accordingly inserted Section 27-A of the Act by Consumer Protection (Amendment) Act 62 of 2002 which has come into effect with effect from 17-12-2002 which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), an appeal under Section 27, both on facts and on law, shall lie from (a) the order made by the District Forum to the State Commission; (b) the order made by the State Commission to the National Commission; and (c) the order made by the National Commission to the Supreme Court. Thus for the first time, an appeal against an order passed under Section 27 of the Act imposing any penalty is made available and lies to the superior body i.e., from the order passed by the District Forum to the State Commission and to the National Commission as against the order passed by the State Commission and to the Supreme Court as against the order passed by the National Commission under Section 27 of the Act.
Thus, it becomes clear that only appeal has been provided under Section 27A against orders passed by State Commission under Section 27 whether interim or final and no appeal or revision is maintainable under Section 21 before the National Commission.
13. In the light of above discussion, reference is answered as under:
1. No appeal lies against interim or final order passed by State Commission under Section 25 of the Act, but revision lies under Section 21(b).
2. Appeal lies under Section 27A against interim order of State Commission passed under Section 27 of the Consumer Protection Act.
In these matters larger Bench was constituted and arguments were heard on 10.11.2014. Presiding Member, Justice K.S. Chaudhari dictated judgment and sent to Hon'ble Member Justice V.K. Jain, who has written separate judgment agreeing with answers given by Justice K.S. Chaudhari, but also has written four more answers. Hon'ble Member Dr. B.C. Gupta agreed with the judgment of Hon'ble Mr. Justice V.K. Jain, Member.
In the light of majority judgment reference is answered as under:
(i) no appeal before this Commission is maintainable against an order whether interim or final passed by the State Commission under Section 25 of the Act. However, such an order can be challenged before this Commission by way of a Revision Petition under Section 21(b) of the Act;
(ii) an appeal under Section 27A of the Act is maintainable before this Commission against an original order passed by the State Commission in exercise of its jurisdiction under Section 27 of the Act irrespective of whether it be a final order, intermediate order or interlocutory order;
(iii) no second Appeal in relation to an order passed by a District Forum under Section 27 of the Act is maintainable;
(iv) an order passed by a State Commission, in exercise of its appellate jurisdiction under Section 27A of the Act, can be challenged only by way of a Revision Petition under Section 21(b) of the Act, before this Commission, irrespective of whether it is a final, intermediate or interlocutory order;
(v) an appeal under Section 19 read with Section 21(a)(ii) is maintainable before this Commission against an order passed by the State Commission, in exercise of its jurisdiction under Section 17(1)(a)(i) of Act, irrespective of whether it is a final, intermediate or interlocutory order. No Revision Petition against such an order is maintainable;
(vi) no appeal is maintainable against an order passed by the State Commission, in exercise of its appellate or revisional jurisdiction. However, such an order can be challenged before this Commission, by way of a Revision Petition under Section 21(b) of the Act.
1. Sections 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) which provides for an appeal to this Commission, Section 21 which refers to the jurisdiction of this Commission and Section 27 which deals with order awarding imprisonment on the ground of non-compliance of any order made by the District Forum, the State Commission or the National Commission and Section 27A which deals with appeals against the order made under Section 27 have already been reproduced in the order of my brother, Hon'ble Mr. Justice K.S. Chaudhari. Section 2(e) which defines the expression ‘consumer dispute’, Section 25 which deals with enforcement of the orders passed by the District Forum, the State Commission or the National Commission and Section 17(1)(a)(i) which deals with the original jurisdiction of the State Commission read as under:
“2(e) “consumer dispute” means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.”
“25. 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 damages 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, 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.”
“17.(1)(a)(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore.”
2. It would be seen from a perusal of Section 19 that it provides for an appeal to the National Commission against ‘an order’ passed by the State Commission, in exercise of the power conferred upon it by Section 17(1)(a)(i) of the Act, which gives jurisdiction to the State Commission to entertain complaints where the value of the goods or services and compensation, if any, claimed by the complainant exceeds Rs.25,00,000/- but does not exceed Rs.1,00,00,000/-. Thus, the remedy of appeal to this Commission can be availed only where a person is aggrieved from an order passed by the State Commission in exercise of its original jurisdiction. Section 19, however, does not restrict the remedy of an appeal only to a ‘final order’ passed by the State Commission, in exercise of its original jurisdiction, meaning thereby that an appeal can be preferred against any order passed by the State Commission, in exercise of its original jurisdiction irrespective of whether the said order is a final order, intermediate order or interlocutory order. Considering the amplitude of the right conferred by Section 19 of the Act, the remedy of filing an appeal, in my view, cannot be restricted to a final order, so long as the order in question is passed by the State Commission in exercise of its original jurisdiction under Section 17(1)(a)(i) of the Act. Restricting the remedy of appeal only to a final order, would amount to denial of the statutory right which the legislature in its wisdom has chosen to confer upon a person, aggrieved from an order, which is not a final order, passed in exercise of the jurisdiction conferred upon the State Commission, by Section 17(1)(a)(i) of the Act.
3. The next question which arises for consideration is as to whether a revision petition against an order passed by the State Commission in exercise of its jurisdiction under Section 17(1)(a)(i) of the Act, is maintainable or not. Though the wording of clause (b) of Section 21 is wide enough to include any order, including an appealable order, the legislative intent, in my view could not have been to simultaneously provide the remedy of Appeal as well as Revision, against the same order. Our attention has not been drawn to any statute providing the remedy of Appeal as well as Revision, against the same order. Moreover, if we take the view that both, the remedy of Appeal as well as Revision are available against an order passed in exercise of the jurisdiction conferred by Section 17(1)(a)(i), that may result in a situation where two different parties seek to avail different remedies, against the same order. This would create an anomalous situation, considering that the scope of interference in a Revision Petition is narrower than that in an Appeal. This could not have been the legislative intent. Therefore, in my view, a Revision Petition is not maintainable against an order passed by the State Commission under Section 17(1)(a)(i) of the Act. The order passed by a State Commission, other than an order passed in exercise of the powers conferred by Section 17(1)(a)(i) of the Act, however, can be challenged by a person, aggrieved from such an order, by filing a Revision Petition in terms of Section 21(b) of the Act. This would include all the orders whether final, intermediate or interlocutory passed by the State Commission in exercise of its appellate jurisdiction under Section 17(1)(a)(ii) of Act, and its revisional jurisdiction under Section 17(1)(b) of the Act.
4. Since the right to file Appeal is conferred by a statute, and no Appeal has been provided in the Act against an order passed by the State Commission, in exercise of its appellate or revisional jurisdiction whether it be a final order, intermediate order or interlocutory order, such an order cannot be challenged before this Commission, by way of an Appeal.
5. The Act does not provide for an Appeal against an order passed by the State Commission under Section 25 of the Act. Therefore, such an order, irrespective of whether it is a final order, intermediate order or interlocutory order, cannot be challenged by way of an Appeal. However, since clause (b) of Section 21 is wide enough to include an order passed under Section 25 of the Act, such an order can be challenged further by way of a Revision Petition before this Commission. If the State Commission passes an order under Section 25 of the Act, in exercise of its revisional jurisdiction against an order passed by a District Forum under Section 25 of the Act, such an order also can be challenged further by way of a Revision Petition before this Commission under Section 21(b) of the Act.
6. Section 27A of the Act inter alia provides for an Appeal to this Commission, against ‘an order’ passed by the State Commission under Section 27 of the Act. Such an Appeal is not restricted to a final order. Therefore, any original order, whether it be a final order, intermediate order or interlocutory order passed by the State Commission in exercise of its jurisdiction under Section 27 of the Act, can be challenged by a person aggrieved from such an order, by way of an Appeal before this Commission.
Since an Appeal against such an order has been statutorily provided, no revision petition, challenging an original order passed by the State Commission in exercise of its jurisdiction under Section 27 of the Act is maintainable.
7. If an order passed by a District Forum under Section 27 of the Act is challenged by way of an Appeal to the State Commission, the order passed by the State Commission in such an Appeal, whether it is a final order, or an intermediate order or an interlocutory order cannot be subjected to yet another Appeal, as no second Appeal is provided under the Act. However, being a non-appealable order passed by the State Commission, such an order can be challenged before this Commission by way of a revision petition under Section 21(b) of the Act.
8. During the course of hearing it was contended on behalf of the complainant that since Section 21(b) provides for a revision petition only against an order, passed in a ‘consumer dispute’ and since the definition of ‘consumer dispute’ given in Section 2(e) of the Act, does not include the orders passed after disposal of a complaint, an order passed under Section 25 of the Act cannot be said to be an order passed in a ‘consumer dispute’ and consequently such an order cannot be challenged even by way of a revision petition. We, however, are unable to accept the contention. A ‘consumer dispute’ as stated in Section 2(e) of the Act starts, when the person against whom a complaint is made, denies the allegations made in the complaint. But, once it starts, the dispute comes to an end only when the order passed in the complaint is taken to its logical conclusion by implementing the same. Therefore, an order passed by the State Commission under Section 25 of the Act, in my view being an order passed in a consumer dispute can be challenged by way of revision petition before this Commission, irrespective of whether this is a final order, intermediate order or interlocutory order; and whether it is passed by the State Commission in its original jurisdiction, appellate jurisdiction or revisional jurisdiction.
9. For the reasons stated hereinabove we answer the reference in the following terms:
(i) no appeal before this Commission is maintainable against an order whether interim or final passed by the State Commission under Section 25 of the Act. However, such an order can be challenged before this Commission by way of a Revision Petition under Section 21(b) of the Act;
(ii) an appeal under Section 27A of the Act is maintainable before this Commission against an original order passed by the State Commission in exercise of its jurisdiction under Section 27 of the Act irrespective of whether it be a final order, intermediate order or interlocutory order;
(iii) no second Appeal in relation to an order passed by a District Forum under Section 27 of the Act is maintainable;
(iv) an order passed by a State Commission, in exercise of its appellate jurisdiction under Section 27A of the Act, can be challenged only by way of a Revision Petition under Section 21(b) of the Act, before this Commission, irrespective of whether it is a final, intermediate or interlocutory order;
(v) an appeal under Section 19 read with Section 21(a)(ii) is maintainable before this Commission against an order passed by the State Commission, in exercise of its jurisdiction under Section 17(1)(a)(i) of Act, irrespective of whether it is a final, intermediate or interlocutory order. No Revision Petition against such an order is maintainable;
(vi) no appeal is maintainable against an order passed by the State Commission, in exercise of its appellate or revisional jurisdiction. However, such an order can be challenged before this Commission, by way of a Revision Petition under Section 21(b) of the Act.