JOSEPH Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONERS in this case are Partners of two Partnership concerns, namely, K. A. Joseph and sons and Jose & Sons. PETITIONERS 1 to 9 are partners of the partnership firm K. A. Joseph and sons and in Jose & sons there are only four partners, petitioners 6,7,2 & 4 respectively. It is averred that these two firms are registered under the Kerala Money Lenders act and they are having necessary licences for money lending business. It is stated that petitioners 10 and 11 are not partners Of either 'of I hi "'concerns. PETITIONERS, in the course of business, did not refund the amount due to the customers and the customers approached the. Consumer Disputes redressal Forum, Trissur constituted under the Consumer Protection Act,1986 (hereinafter referred to as 'the act ). Respondents 5 to 43 have filed various claims before the Consumer Disputes Redressal Forum and all the petition were allowed. Copies of all orders were not produced in the original petition. Ext. P3 is the copy of order passed in O. P. No. 853/94 by the 2nd respondent. It can be seen from Ext. P3 order that respondents in that case (PETITIONERS 1, 4, 8 & 9 in the original petition) did not appear before the Forum. No objections were filed in spite of service of notice. It is also not stated that any statutory appeals were 'filed against the above orders. Therefore, the above orders have become final.

(2.) THE customers filed execution petitions before the consumer Disputes Redressal Forum under S. 27 of the Act. Ext. P7 is an order passed in E. P. No. 61/96 in O. P. No. 855/94. Since the petitioner did not comply with the final order passed in O. P No. 855/94, Ext. P7 order was passed under S. 27 of the Act by sentencing the respondents in that case to undergo simple imprisonment for one year and to pay fine of Rs. 10,000/- each. It was also ordered that fine if not paid will be realised by issuing warrant by the district Collector under S. 421 (1) of the Code of Criminal Procedure and fine, if realised, will be paid to the complainants. Only five of the petitioners are seen as respondents in the above Ext. P7 order. THEy are described in the order as partners of Kollannur Jose and sons. It is stated by the petitioners that the firm Kollannur Jose & Sons is wound up and is not in existence. It is also further stated that similar orders were passed or being passed under S. 27 of the Act for implementing the orders in O. P. Nos. 257, 853, 854, 1054, 1085, 1089, 1086, 1087, 1088 of 1994, 548, 549, 671, 837, 842, 843, 845, 1339, 1340 of 1995, 199, 202, 203, 241, 540, 541, 542, 543, 750, 751 and 1079 of 1996 of the Consumer Disputes Redressal Forum, Trissur. Ext. P7 order is passed in E. P. No. 61/96 in O. P. No. 855/94. Other orders are not. produced. Individual orders are not challenged on merits of each case. According to the petitioners, S. 27 of the Act is unconstitutional and is violative of Arts. 14 and 21 of the constitution of India. THEre is uncontrolled powers given to the Forum. THEre is no specific rule or procedure laid down for imposing extra-ordinary punishment of imprisonment for non-payment of. money. Personal liberty contemplated under Art. 21 of the Constitution must be given in broad liberal interpretation and procedure established by law must be in accordance with law in continuity with Arts. 14 and 21 of the Constitution. According to the petitioners, S. 27 of the Act is arbitrary and unreasonable and against principles of natural justice. THErefore, prayer in the writ petition is to quash S. 27 of the Act and consequently all the orders passed in O. P. Nos. 257, 853, 854, 855, 1054, 1085, 1089, 1086, 1087, 1088 of 1994, 548, 549, 671, 837, 842, 843, 845, 1339, 1340 of 1995, 199, 202, 203, 241, 540, 541, 542, 543, 750, 751 and 1079 of 1996 should be quashed. It is also pointed out that several other cases were also filed by the creditors against the petitioners and pending in Sub-Court, Thrissur etc. It is stated in paragraph 12 of the O. P. that petitioners preferred I. P. No. 1/96 before the Sub Court, Trissur. But ext. P5 shows that it was filed only by one person and not by all the petitioners. It is also not stated that any orders were passed in the said petition. THE merits of the individual orders are not challenged. THE only question to be looked into is whether S. 27 of the Act is violative of the constitutional provisions and whether it is liable to be struck down.

(3.) IN the decision reported in A. V. Georgekutty v. State of Kerala & Ors. 1993 (2) KLT 755 = (AIR 1994 Kerala 19) it was held by a division Bench of this Court that the Consumer Protection Act has created a hierarchy of bodies under the Act with the power to hear appeals at every stage. The intention of the Legislature appears to be that the District Forum or the State Commission as well as the National Commission should be allowed to perform their duties speedily and without any interruption. The contention of the petitioners that wide discretion is given to the Consumer Disputes Redresal forum under S. 27 of the Act and the powers are not guided and, therefore, it may lead to' grave error cannot be accepted. The provisions with regard to the composition of the District Forum are contained in S. 10 of the Act which provides that the President of the Forum shall be a person who is or who has been or is qualified to be a District Judge and the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience or, having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of them shall be a woman. Similarly, with regard to the composition of the State Commission, it is provided in S. 16 of the Act that the president of the Commission shall be a person who is or who has been a judge of high Court appointed by the State Government in consultation with the Chief justice of the High Court and that the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience of, or having shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry 'public affairs or administration and one of them shall be a woman. The composition of the National Commission is governed by S. 20 of the Act which provides that the President of the Commission shall be a person who is or who has been a judge of the Supreme Court to be appointed by the Central Government after consultation with the Chief Justice of INdia and four other members shall be persons of ability, integrity and standing having adequate knowledge or experience of, or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of them shall be a woman. It will thus be seen that the President of the District Forum is required to be a person who is or who has been or is qualified to be a District Judge and the President of the state Commission is required to be a person who is or who has been the judge of the High Court and the President of the National Commission is required to be a person who is or who has been a judge of the Supreme Court, which means that all the Consumer Disputes Redressal Agencies are headed by a person who is well versed in law and has considerable judicial or legal experience. The Supreme court in the decision reported in INdian Medical Association v. V. P. Shantha & Ors. (AIR 1996 SC 550) held that the composition of the Forum is competent to decide the disputes. It held as follows: "in the matter of constitution of the District forum, the State Commission and the National Commission the Act combines with legal competence the merits of lay decision making by members having knowledge and experience in dealing with problems relating to various fields which are connected with the object and purpose of the Act, namely, protection and interests of the consumers. ". (Para 36) At the end of paragraph 58 of the above decision, the supreme Court also, in general, said that no case is made out that the Act suffers from the vice of arbitrariness or unreasonableness so as to be violative of Arts. 14 & 19 (1) (g) of the Constitution. The Supreme Court also held that the provisions of the Act are not violative of the provisions of the constitution even though Court does not examine specifically with respect to s. 27 of the Act.