2. Indisputably both the parties entered into an agreement dated 16.02.2011 for the purpose of construction of house on the plot owned by the respondent / complainant. The cost of construction was to be paid in installments and the construction of house was agreed to be completed in six months, but the same was not done till the date of filing complaint.

3. As per case of the respondent / complainant on 16.02.2011 he entered into an agreement with the appellant / opposite party for construction of house on his plot situated at Kalyan Bag, Rajkishore Nagar. According to which house admeasuring 1100 Sft @ 662/- per Sft. i.e. for Rs.7,28,200/- with material and labour charges was to be constructed within six months. For the additional works like porch, boundary wall, main gate etc. additional amount of Rs.2,60,000/- was to be paid, hence in all Rs.9,88,200/- was to be paid. But even after elapse of agreed term of six months the construction of house was not completed by the appellant/ opposite party and the construction which was done was also not of the agreed standard. When the respondent/ complainant insisted to expedite the construction work, the appellant / opposite party asked him to get the other works done by his own expenses and amount of which would be adjusted at the time of final payment. Then some items like overhead water tank, tiles, kitchen sink, granite tiles for kitchen platform etc. amounting total Rs.2,00,000/- were given to the appellant / opposite party, which was to be adjusted in the final payment. The appellant / opposite party denied to do work at the front portion of the house due to electric wire passing near the site, so the work was got done by the respondent / complainant by another contractor for Rs.50,000/-, with the consent of the opposite party. Hence, even after payment of Rs.11,00,000/- i.e. more than the agreed amount and elapse of 1 year and 9

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months the construction of the house was incomplete and the work which was done was also not of the agreed standard. It was also alleged that the house was not constructed as per the agreed map and the B/U/Area was only 1036 Sft as against the agreed area of construction 1100 Sft. Alleging deficiency in service on various counts complaint was filed before the District Forum seeking direction for payment of excess amount collected by the appellant / opposite party along with compensation for mental agony and cost of litigation etc.

4. The appellant / opposite party in its written version except the admitted facts, refuting the allegations laid upon him has submitted that the agreed rate of construction was not @ Rs.610/- per Sft as mentioned in the agreement, in fact it was Rs.800/- per Sft of the B/U/Area as per oral agreement between the parties and for additional works payment was to be done separately. The respondent/ complainant requested to sign the agreement dated 16.02.2011 at lower rate on the saying that it is just a formality as the rate of Rs.800/- per Sft is more than the Railway Department's rules hence loan is not being sanctioned and on his request only the agreement was signed. The appellant/ opposite party further submitted that 90% construction work was completed in which he incurred cost of Rs.11,00,000/- whereas only Rs.9,78,000/- have been paid by the respondent / complainant, hence Rs.1,22,400/- are yet to be received against the construction work done by him. In fact construction work more than the agreed map was done by him but just for avoiding payment of cost of construction @ Rs.800/- per Sft, the respondent / complainant used to misbehave with the labours, many alterations were done and ultimately stopped the work of construction. Refuting the allegation of deficiency in service the appellant/ opposite party prayed

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that the complaint is filed on false and imaginary grounds and is liable to be dismissed with cost.

5. Learned District Forum after considering the rival contentions of both the parties and documents placed on record allowed the complaint and on the basis expert report of Shri Seemant Tiwari reached to the conclusion that the cost of completion of remaining work of construction was Rs.1,58,782/- and in excess of the agreed amount Rs.2,50,000/- was received, hence in all Rs.4,08,872/- was directed to be paid by the appellant / opposite party to the respondent/ complainant along with compensation for mental agony Rs.1,00,000/- and cost of litigation Rs.5,000/-.

6. We have heard arguments advanced by both parties and perused the record of the District Forum as well as the written argument submitted by both parties.

7. Before us mainly two fold arguments have been advanced by learned counsel for the appellant to the effect that the impugned order is illegal as it was not signed by the President of District Forum and as per Section 14 (2A) of the Act it was mandatory that every order made by the District Forum needs to be signed by its President. In this regard reliance is placed upon judgement of Hon'ble National Commission in the case of

Maruti Udyog Limited Vs. V. K. Jain, (1991) 1 CPR 162. Second ground is that the learned District Forum has misconceived the report of the Commissioner. The Commissioner in his report has clearly mentioned that quality of work was found good and some work more than the

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agreement was executed, but even though the appellant was hold guilty of deficiency in service.

8. So far as the question of legality of order signed by two Members only of the District Forum is concerned, we have gone through various Sections of the Act as well as the M.P./CG State Consumer Protection Rules 1987 and judgement of Hon'ble Apext Court in the case of Gulzari Lal Agrawal Vs. Accounts Officer (1996) 10 SCC 590; State of Karnataka Vs. Vishwabharti House Building Co-operative Society (2003) 2 SCC 412; judgement of Hon'ble High Court of Bombay, Nagpur Bench in the case of Criminal Writ Petition No.199 & 211 to 215 of 2021 between

Aparna Abhitabh Chatterjee & Ors. Vs. Union of India & Ors. decided on 24.03.2022., wherein the judgement of Hon'ble Apex Court in Gulzari Lal Agrawal (supra) & State of Karnataka (supra) were discussed in detail.

9. The law laid down by the Hon'ble Apex Court in the case of

Gulzari Lal Agrawal (supra) is very clear that absence of President will not render the District Forum/State Commission non-functional and order passed by the District Forum/State Commission even in absence of the President cannot be deemed illegal and void. Paragraph No.17 of the judgement is reproduced as under : -

"17. After giving careful thought to the rival contentions raised before us, we are of the considered opinion that the relevant provisions which we have quoted hereinabove will have to be construed harmoniously to promote the cause of the consumers under the Act. As indicated earlier, the definition of member includes the President and a Member of a District Forum/State Commission. It is true that sub-section (2) of Section 14 read with section 18 requires that every proceeding referred to under sub-section (1) shall be conducted by the President of the District Forum/State Commission and at least one member thereof sitting together. Sub-section (2-A) is consequential in the sense that every order made by the State Commission under sub-

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section (1) shall be signed by its President and the member or members who conducted the proceeding. The procedure applicable to the District Forum is made applicable to the State Commission vide Section 18 with such modifications as may be necessary. Plain reading of sub- sections (2) and (2-A) of Section 14 may support the view taken by the National Commission but if these provisions are read with Section 29-A of the Act and sub- rules (9) and (10) of Rule 6, it would be quite clear that it could never be the intention of legislature to stall or render the State Commission non-functional in the absence of the President either having not been appointed in time due to some valid reasons or if the President is on the leave due to certain reasons beyond his control. Sub-sections (2) and (2-A) of Section 14 and Section 18- A of the Act were brought into force with effect from 18-6-1993 whereas Section 29-A was made applicable from 15.6.1991. The Rules of 1987 were brought into force immediately. The complaint before the District Forum by the appellant was filed on 14-10-1993. Therefore, all these amended provisions were very much brought into force when the complaint was filed. Sub- section (2) of Section 14 is a presumptuous provision where the President of the State Commission is functional but it would not be correct to say that if the President of the State Commission is non-functional because of one or the other reason, the State Commission would stop its functioning and wait till the President is appointed. In order to avoid such a situation, the State Government has framed the Rules and sub-rules (9) and

(10) quoted hereinabove unmistakably provide answere to such a situation as in the present case. The only harmonious construction that could be given to sub-sections (2) and (2-A) of Section 14 read with sub- rules (9) and (10) is that as and when the President of the State Commission of functional, he along with at least one member sitting together shall conduct the proceeding but where the President being non-functional, sub- rules (9) and (10) of Rule 6 will govern the proceedings. Sub-rule

(9) provides that where any such vacancy occurs in the office of the President of the State Commission, the seniormost (in order of appointment) member holding office for the time being, shall discharge the function of the President until a person is appointed to fill such vacancy. This sub-rule is made with a view to make the State Commission functional in the absence of the President and not to allow the State Commission to render non- functional for want of the President. It is well settled that every provision in the Act needs to be settled that every provision in the Act needs to be construed harmoniously with a view to promote the object and spirit of the Act but while doing so, no violence would be done to the plain language used in the section. It is this principle that needs to be made applicable while construing the provision of sub-sections (2) and (2-A) of Section 14 read with sub-rules (9) and (10).

In the judgement of State of Karnataka (supra) the Hon'ble Apex Court in Paragraph No.40 has held as under : -

"40. The District Forum, the State Commission and the National Commission are not manned by lay persons. The President would be a person having judicial background and other

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members are required to have the expertise in the subjects such as economics, law, commerce, accountancy, industry, public affairs, administration etc. It may be true that by reason of sub- section (2-A) of Section 14 of the Act, in a case of difference of opinion between two members, the matter has to be referred to a third member and, in rare cases, the majority opinion of the members may prevail over the President. But, such eventuality alone is insufficient for striking down the Act as unconstitutional, particularly, when provisions have been made therein for appeal thereagainst to a higher forum."

Hon'ble High Court of Bombay in the judgement of Aparna Abhitabh Chatterjee (supra) while deciding the issue of declaring Section

29 A of the Consumer Protection Act 1986 to be ultra-vires the Constitution of India has met the similar question of law under the Act as in the instant case and citing the above law laid down by the Hon'ble Apex Court has reached to the conclusion in para No.23 that : -

"23. We, therefore, hold that there is no merit in the challenge to the constitutional validity of Section 29A of the Consumer Protection Act, 1986. Therefore, prayer clause (A) of the petition is rejected."

10. Section 14 (2A) of the Act of 1986 is reproduced as below : -

"(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 proceedings:

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 the opinion of the majority shall be the order of the District Forum."

Section 22 D of the Act is regarding Vacancy in the Office of the President which is as under : -

"22D. Vacancy in the office of the President.- When the office of President of a District Forum, State Commission, or of the National Commission, as the case may be, is vacant or a person occupying such office is, by reason of absence or otherwise, unable to perform the duties of the Office, these shall be performed by the senior-most member of the District Forum, the State Commission or of the National Commission, as the case may be: -----"

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Section 29 A of the Act is envisage that vacancies or defects in appointment not to invalidate orders, which is as under : -

"29A. Vacancies or defects in appointment not to invalidate order.- No act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof.

11. When all the above Sections of the Act and rules of M.P./CG State Consumer Protection Rules 1987 are read together in the light of above law laid down by the Hon'ble Apex Court, the legal picture which emerges as a whole is that the order signed by two members of the District Forum in absence of its President cannot be held void and illegal. The role of the President of District Forum has been envisaged as a member of the quorum of a Bench having equal significance. Neither the role of the President nor Members of the quorum of a Bench has been considered lesser than the others. Hence, we do not find any substance in the arguments of the appellant challenging the legality of the order.

12. As far as the argument of learned counsel for the appellant that learned District Forum has misconceived the report of the expert is concerned, we have gone through the report of the Commissioner Mr. Seemant Tiwari, copy of his register is placed on record as Exhibit OP-8. This document begins with a note at the top "Abstract of Remaining Work of House of Shri Ravindra Sharma" and then details of remaining work was mentioned and inspection was done in presence of the appellant, his counsel Shri O.P. Sahu and the respondent and at the last it has been signed by all the persons. There is no reason to disbelieve the report of the Commissioner appointed by the District Forum, who inspected the site in presence of the appellant, respondent and the counsel for the appellant

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and all of them have signed the report at the site itself. Inspection/Valuation Report dated 10.02.2013 of the Commissioner annexed with copy of letter requesting him to evaluate the remaining work as Annexure-1 and the Abstract of remaining work on the basis of SOR by department of Rural Engineering Services, Govt of CG is submitted as Annexure-2. The remaining work of the house was evaluated by Mr. Seemant Tiwari at Rs.1,58,872.69. We do not find any reason to disbelieve the report of the Commissioner or his estimate for completing the remaining work of construction especially when no any cogent material to counter or disbelieve the estimate is filed by the appellant, whereas the respondent / complainant has filed various bills of purchase of material etc. Hence, we do not find any force in this argument of the appellant also.

13. Learned counsel for the appellant has also argued that the actual agreement was done @ Rs.800/- per Sft and only for the purpose of obtaining loan on the request of the respondent/ complainant written agreement @ Rs.662/- per Sft was done. We are not inclined to give weightage to the oral agreement, if any, against the written agreement filed on record as Exhibit C-64 according to which construction cost was agreed to be paid @ 662/- per Sft in this agreement all the specifications and details have also been mentioned. Details of additional works has been mentioned, calculated and agreed separately.

14. It is an admitted position that the appellant / opposite party has received Rs.9,78,000/- from the respondent, whereas as per the agreed rate of contract if the work would have been completed even though only Rs.7,28,200/- was payable. It is also an admitted position that the

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construction of house was not completed and for completing the work there was an estimate of Rs.1,58,872.69. Considering the amount collected in excess by the appellant/ opposite party and the estimate of remaining work of construction, we are of the considered view that the learned District Forum has rightly calculated the amount of award in favour of the respondent / complainant and we do not find any reason to interfere with the quantum of compensation awarded by the District Forum.

15. Hence, considering the entire facts and circumstances of the case we do not find any infirmity in the impugned order passed by the District Forum on point of legality as well as quantum of compensation. Consequently, for the foregoing reasons we are of the view that the order of the District Forum is just and proper we affirm the same. This appeal being devoid of any merits is liable to be and is hereby dismissed with no order as to cost.

(Justice Gautam Chourdiya) (Smt. Ruchi Goel) President Member

/02/2023 /02/2023

Pronounced On: 17^th February 2023

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