{"id":261622,"date":"2005-05-04T00:00:00","date_gmt":"2005-05-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-and-anr-vs-national-consumer-awareness-on-4-may-2005"},"modified":"2018-11-08T02:42:14","modified_gmt":"2018-11-07T21:12:14","slug":"state-of-haryana-and-anr-vs-national-consumer-awareness-on-4-may-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-haryana-and-anr-vs-national-consumer-awareness-on-4-may-2005","title":{"rendered":"State Of Haryana And Anr vs National Consumer Awareness … on 4 May, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Haryana And Anr vs National Consumer Awareness … on 4 May, 2005<\/div>\n
Author: B Srikrishna<\/div>\n
Bench: K.G. Balakrishnan, B.N. Srikrishna<\/div>\n
           CASE NO.:\nAppeal (civil)  3044-3045 of 2005\n\nPETITIONER:\nState of Haryana and Anr.\n\nRESPONDENT:\nNational Consumer Awareness Group and Ors.\n\nDATE OF JUDGMENT: 04\/05\/2005\n\nBENCH:\nK.G. Balakrishnan & B.N. Srikrishna\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
B.N. SRIKRISHNA, J.\n<\/p>\n
Leave granted.\n<\/p>\n
What is the content of the statutory consultation with the Chief Justice of
\nthe High Court postulated under Section 16(1)(a)<\/a> of the Consumer Protection
\nAct, 1986, is the core issue subjected to debate before us in these two
\nappeals.\n<\/p>\n
The Consumer Protection Act<\/a>, 1986 (hereinafter referred to as `the Act’)
\nwas brought into force on 24.12.1986. It is an Act “to provide for better
\nprotection of the interests of consumers and for that purpose to make
\nprovision for the establishment of consumer councils and other authorities
\nfor the settlement of consumers’ disputes and for matters connected
\ntherewith.” The Act<\/a> established fora at district level, state level and
\nnational level and laid down the procedure of appointing the members of the
\nfora and their respective Chairmen. The dispute pertains to the statutory
\nprocedure contemplated for appointments of the Chairman of the State
\nCommission-the forum at the State level.\n<\/p>\n
Section 16(1)<\/a> provides for the composition of the State Commission
\nincluding the appointment of the President and members of the State
\nCommission. As originally enacted, Section 16<\/a> read as under :\n<\/p>\n
“16. Composition of the State Commission.- (1) Each State Commission shall
\nconsist of-\n<\/p>\n
(a) a person who is or has been a Judge of a High Court, appointed by the
\nState Government, who shall be its President;\n<\/p>\n
(b) two other members who shall be persons of ability, integrity and
\nstanding and have adequate knowledge or experience of, or have shown
\ncapacity in dealing with, problems relating to economics, law, commerce,
\naccountancy, industry, public affairs and administration, one of whom shall
\nbe a woman.\n<\/p>\n
By (Amendment) Act<\/a> 50 of 1993, which was retrospectively made effective
\nwith effect from 18.6.1993, an amendment was made to Section 16<\/a> by the
\naddition of a proviso and the amended section read as under :\n<\/p>\n
“16. Composition of the State Commission.- (1) Each State Commission shall
\nconsist of-\n<\/p>\n
(a) a person who is or has been a Judge of a High Court, appointed by the
\nState Government, who shall be its President:\n<\/p>\n
\tProvided that no appointment under this clause shall be made except
\n\tafter consultation with the Chief Justice of the High Court;\n<\/p>\n
(b) two other members who shall be persons of ability, integrity and
\nstanding and have adequate knowledge or experience of, or have shown
\ncapacity in dealing with, problems relating to economics, law, commerce,
\naccountancy, industry, public affairs and administration, one of whom shall
\nbe a woman:\n<\/p>\n
\tProvided that every appointment made under this clause shall be
\n\tmade by the State Government on the recommendation of a Selection
\n\tCommittee consisting of the following namely:-\n<\/p>\n
(i) President of the State Commission.\t-Chairman<\/p>\n
(ii) Secretary of the Law Department of the State.\t-Member<\/p>\n
(iii) Secretary incharge of the Department dealing with<\/p>\n
\tConsumer Affairs in the State. \t-Member<\/p>\n
By a further amendment, vide (Amendment) Act<\/a>, 62 of 2002, Section 16<\/a> (1)(b)
\nwas substituted by new provision of sub-sections (1A) and (1B) which were
\ninserted in Section 16<\/a>. The amended Section 16<\/a>, brought into force with
\neffect from 15.3.2003, reads as under :\n<\/p>\n
“16. Composition of the State Commission :- (1) Each State Commission shall
\nconsist of-\n<\/p>\n
(a) \ta person who is or has been a Judge of a High Court, appointed by
\nthe State Government, who shall be its President :\n<\/p>\n
\tProvided that no appointment under this clause shall be made except
\n\tafter consultation with the Chief Justice of the High Court.\n<\/p>\n
(b) \tnot less than two, and not more than such number of members, as may
\nbe prescribed, and one of who shall be a woman, who shall have the
\nfollowing qualifications, namely :-\n<\/p>\n
(i)\tbe not less than thirty-five years of age;\n<\/p>\n
(ii)\tpossess a bachelor’s degree from a recognised university; and<\/p>\n
(iii)\tbe persons of ability, integrity and standing, and have adequate
\nknowledge and experience of at least ten years in dealing with problems
\nrelating to economics, law, commerce, accountancy, industry, public affairs
\nor administration:\n<\/p>\n
\tProvided that not more than fifty per cent. of the members shall be
\n\tfrom amongst persons having a judicial background.\n<\/p>\n
\tExplanation….\n<\/p>\n
\tProvided further that ….\n<\/p>\n
\t(a) …\n<\/p>\n
\t(b) …\n<\/p>\n
\t(c) …\n<\/p>\n
\t(d) …\n<\/p>\n
\t(e) …\n<\/p>\n
\t(f) …\n<\/p>\n
\t(1-A) Every appointment under sub-section (1) shall be made by the
\n\tState Government on the recommendation of a Selection Committee
\n\tconsisting of the following members, namely :-\n<\/p>\n
(i) President of the State Commission-Chairman;\n<\/p>\n
(ii) Secretary of the Law Department of the State-Member;\n<\/p>\n
(iii) Secretary incharge of the Department dealing with Consumer Affairs in
\nthe State-Member :\n<\/p>\n
\tProvided that where the President of the State Commission is, by
\n\treason of absence or otherwise, unable to act as Chairman of the
\n\tSelection Committee, the State Government may refer the matter to
\n\tthe Chief Justice of the High Court for nominating a sitting Judge
\n\tof that High Court to act as Chairman.\n<\/p>\n
(1-B) (i) The jurisdiction, powers and authority of the State Commission
\nmay be exercised by Benches \tthereof.\n<\/p>\n
(ii) \tA Bench may be constituted by the President with one or more
\nmembers as the President may deem fit.\n<\/p>\n
(iii) \tIf the members of a Bench differ in opinion on any point, the
\npoints shall be decided according to the opinion of the majority, if there
\nis a majority, but if the members are equally divided, they shall state the
\npoint or points on which they differ, and make a reference to the President
\nwho shall either hear the point or points himself or refer the case for
\nhearing on such point or points by one or more or the other members and
\nsuch point or points shall be decided according to the opinion of the
\nmajority of the members who have heard the case, including those who first
\nheard it.\n<\/p>\n
(2) \tThe salary or honorarium and other allowances payable to, and the
\nother terms and conditions of service of, the members of the State
\nCommission shall be such as may be prescribed by the State Government.\n<\/p>\n
\tProvided that the appointment of a member on whole-time basis shall
\n\tbe made by the State Government on the recommendation of the
\n\tPresident of the State Commission taking into consideration such
\n\tfactors as may be prescribed including the work load of the State
\n\tCommission.\n<\/p>\n
(3)\t…..\n<\/p>\n
(4)\t…..”\n<\/p>\n
Justice Amarjeet Chaudhary, the then incumbent, was to demit his office on
\n4.9.2003 on completion of his term as President of the Haryana State
\nConsumer Disputes Redressal Commission (hereinafter referred to as `the
\nState Commission’). On 25.8.2003 the Chief Minister of Haryana addressed a
\nletter to the Chief Justice of Punjab & Haryana High Court drawing his
\nattention to the vacancy that was likely to arise on 5.9.2003, and
\nexpressed his view that Justice R.S. Mongia, retired Chief Justice of
\nGauhati High Court, would be a befitting incumbent to be appointed to the
\nsaid post and requested for communication of the views of the Chief Justice
\nof Punjab and Haryana High Court. By a communication dated 26.8.2003, the
\nChief Justice of the Punjab & Haryana High Court drew the attention of the
\nChief Minister to the decision of this Court in Ashish Handa v. Hon<\/a>‘ble the
\nChief Justice of High Court of Punjab & Haryana and Ors.1 and took the
\nstand: “…even for initiation of the proposal…the executive is expected
\nto approach the Chief Justice when the appointment is to be made for taking
\nthe steps to initiate the proposal, and the procedure followed should be
\nthe same as for appointment of a High Court Judge. That would give greater
\ncredibility to the appointment made.” He, however, postponed a decision, as
\nthe seniormost Judge of the collegium was out of station. By a confidential
\ncommunication dated 27.8.2003, the Chief Justice informed the Chief
\nMinister that the collegium of the High Court had met and considered the
\nnames of several persons, and unanimously decided to recommend Justice R.C.
\nKathuria (retired) of the Punjab & Haryana High Court as most suitable and
\nfit for appointment as President of the State Commission. A copy of the
\nrelevant resolution was forwarded for information. The resolution took note
\nof the credentials of the three retired Judges, whose suitability was
\nconsidered, and decided to recommend Mr. Justice R.C. Kathuria as most
\nsuitable and fit for appointment. Justice R.S. Mongia was also one of the
\nthree retired Judges, whose suitability was considered by the said
\nresolution.\n<\/p>\n
By a letter dated 29.10.2003 the Chief Minister, Haryana, raised certain
\nobjections to the proposal made by the Chief Justice. The collegium of the
\nHigh Court considered the letter dated 29.10.2003 of the Chief Minister,
\nHaryana and reiterated its earlier recommendation. By a letter of 1.12.2003
\nthe Chief Minister drew the attention of the Chief Justice to what he
\nconsidered were the deficiencies in the candidature of the learned Judge,
\nwhose name was proposed by the High Court. Once again, the High Court after
\ncalling for several records and considering various other aspects of the
\nmatter reiterated its stand that there was no reason to recall the earlier
\nrecommendations to appoint Justice R.C. Kathuria (Retired) as the President
\nof the State Commission. By another letter dated 7.1.2004, the Chief
\nMinister of Haryana drew the attention of the Chief Justice of Punjab &
\nHaryana High Court to the newly introduced Section 16(1A)<\/a>, vide (Amendment)
\nAct<\/a> 62 of 2002, and stated that since the post of the President of the
\nState Commission was vacant at the moment, a Hon’ble sitting Judge of the
\nPunjab & Haryana High Court was required to be nominated to act as Chairman
\nof the Selection Committee to be constituted under Section 16(1A)<\/a>. There
\nwas certain other correspondence about certain representations made, which
\nis not material.\n<\/p>\n
In response to a representation dated 22.12.2003 received from the National
\nConsumer Awareness Group, Respondent No. 1, on 31.12.2003 the Government of
\nIndia, Department of Consumer Affairs, issued a clarification to all the
\nState Governments\/ U.T. Administration including the Government of Haryana
\nState inter alia opining, in substance, that the procedure contemplated for
\nconstitution of a Selection Committee would be equally applicable for
\nappointment of the President of the State Commission, though for that
\npurpose the Chief Justice of the High Court be requested to nominate a
\nsitting Judge of the High Court to act as Chairman of the Selection
\nCommittee.\n<\/p>\n
In the meanwhile, Civil Writ Petition No. 174\/04 was filed by the first
\nrespondent before the High Court of Punjab & Haryana at Chandigarh invoking
\nArticles 226\/227 of the Constitution for a mandamus to the Union of India,
\nthe Chief Justice of Punjab and Haryana High Court, State of Haryana and
\nDepartment of Consumer Affairs, State of Haryana, to follow the procedure
\nas laid down in Section 16<\/a> of the Consumer Protection Act in its letter and
\nspirit for the appointment of the President of the State Commission.
\nAnother writ petition, C.W.P. No. 17262\/03, which had been filed earlier by
\none Dharminder Singh Rawat, Advocate, on the connected subject of
\ninitiation of the proposal, was heard along with C.W.P. No. 174\/04 filed by
\nthe first respondent. The High Court by a common judgment allowed the two
\nwrit petitions and made appropriate directions to the State Government
\ntherein. The High Court followed the decision of this Court in Ashish Handa
\n(supra) which held the field at the material time. By taking the view that
\nthe process of consultation contemplated under Section 16<\/a> (1)(a) of the Act
\nwas almost identical to the process of consultation required under Article
\n217<\/a> of the Constitution, the High Court upheld the appointment of Justice
\nM.R. Agnihotri, a retired Judge of the High Court, as the President of the
\nState Commission, as communicated by the Registrar of the High Court to the
\nHaryana Government on 10.6.1994. Finding that there was substantial
\ncompliance with Section 16(1)(a)<\/a> of the Act, the appointment of Justice
\nAgnihotri was upheld and the writ petition challenging his appointment was
\ndismissed. On the question of interpretation of the newly introduced
\nSection 16(1A)<\/a>, the High Court was of the view that there was no conflict
\nbetween the provisions of Sections 16(1)(a)<\/a> and 16(1A)<\/a> of the Act as they
\ncould effectively operate in their respective fields, which did not
\noverlap. The High Court was further of the view that the provisions of
\nSection 16(1A)<\/a> would have hardly any, much less an effective, role in the
\nappointment of the President of the State Commission in terms of Section
\n16(1)(a)<\/a>, and that the Selection Committee contemplated by Section 16(1A)<\/a>
\ncould not be utilized for the selection of the President for which a
\nseparate provision was made under Section 16(1)(a)<\/a>. The writ petition was
\naccordingly allowed and appropriate directions were issued.\n<\/p>\n
At the outset, Mr. Shanti Bhushan, learned counsel appearing for the
\nappellant-State of Haryana submitted that the appeal was being pursued not
\nso much for appointment or non-appointment of a particular incumbent – in
\nany event, time the great healer having solved the problem, but only for
\nthe purpose of settling the question of interpretation to be placed on the
\nprovisions of Sections 16(1)(a)<\/a> and 16<\/a> (1A) of the Act<\/a>.\n<\/p>\n
In a recent judgment in Ashok Tanwar and Anr. v. State of Himachal Pradesh
\nand Ors<\/a>.2, (to which both of us were parties), the Constitution Bench of
\nthis Court had occasion to consider the issue of “consultation with the
\nChief Justice of High Court” under Section 16<\/a> of the Consumer Protection
\nAct, 1986. The Constitution Bench specifically overruled the decision in
\nAshish Handa (supra) only on this issue holding that the process and
\ncontext of “consultation with the Chief Justice of the State High Court”
\nwithin the meaning of Section 16(1)(a)<\/a> is not to be equated with the
\nconsultation contemplated under Article 217<\/a> of the Constitution for
\nappointment of a High Court Judge, observing :\n<\/p>\n
“It is thus clear that the expression “consultation” used in Article 217<\/a> of
\nthe Constitution in relation to appointment of High Court Judges cannot be
\nread in the same way into “consultation” as contemplated under Section 16<\/a>
\nof the Act in the light of what is stated above in Supreme Court Advocates-
\non-Record Assn.3″ (vide paragraph 19)<\/p>\n
The Constitution Bench pointed out that, though the process may be similar
\nin several other aspects, the two consultations cannot be held to be
\nqualitatively identical as one was for appointment to a statutory post,
\nwhile the other was a Constitutional appointment. It was also held (vide
\nparagraph 20) that the requirement of consultation with two seniormost
\nJudges of the High Court could not be read into the consultation required
\nunder Section 16<\/a> (1A) for appointment of the Chairman of the State
\nCommission, and that consultation with the Chief Justice of the High Court
\nwas sufficient. Although overruling Ashish Handa (supra) on this aspect of
\nthe matter, the Constitution Bench referred with approval to the said
\njudgment and said :\n<\/p>\n
“In Ashish Handa (supra) this Court, having regard to what is stated above,
\nheld that it is the Chief Justice of the High Court, who should initiate
\nthe process in the matter of appointment of a Judge, sitting or retired, as
\nPresident of the State Commission.” (vide paragraph 21)<\/p>\n
Finally, it concluded thus :\n<\/p>\n
“Certain statements made by this Court in Ashish Handa (supra) in para 3,
\ngive an impression that the Chief Justice of a High Court has to consult
\nhis two seniormost colleagues before recommending a sitting or retired
\nJudge for appointment as President of a State Commission as per Section 16<\/a>
\nof the Act. In our view that is not the correct position and we do not
\napprove the same. To put it positively, we state that for the purpose of
\nSection 16<\/a> of the Act, a Chief Justice of a High Court need not consult his
\ntwo seniormost colleagues in the High Court for recommending a sitting or
\nretired Judge of a High Court for appointment as President of a State
\nCommission.” (vide paragraph 22)<\/p>\n
A careful reading of Ashok Tanwar (supra) shows that the Constitution Bench
\ndiffered from Ashish Handa (supra) only on the issue whether consultation
\nwith the Chief Justice meant consultation with the collegium of the High
\nCourt. In other respects, Ashish Handa (supra) is approved.\n<\/p>\n
Mr. Shanti Bhushan, learned counsel for the appellants, urged that even
\nwith the interpretation of Section 16(1)(a)<\/a>, as decided by the Constitution
\nBench in Ashok Tanwar (supra), it still leaves undecided the question as to
\nwho should initiate the proposal for appointment to be made under Section
\n16(1)(a)<\/a>. He contended that `consultation’ meant meeting of minds between
\ntwo Constitutional authorities of equal rank and there was no reason why
\nthe Chief Justice should not initiate the proposal. We are unable to accept
\nthis contention. In the first place, the processual mechanics of
\n`consultation’ was decided in Supreme Court Advocates-on-Record Association
\n(supra) judgment by a decision of nine learned Judges and reiterated in
\nAshish Handa (supra), with which the Constitution Bench in Ashok Tanwar
\n(supra) did not disagree. The only point of disagreement between Ashish
\nHanda (supra) and Ashok Tanwar (supra) was on the issue whether the
\nconsultation with the Chief Justice meant consultation with the collegium
\nof the High Court. The manner of initiation of proposal has remained same
\nthroughout and it is not open for us to take a different view of the
\nmatter. Learned counsel attempted to pursuade us to refer the matter to a
\nlarger Bench. We decline to do so as the law is quite settled; it is
\nbinding on us and we agree with it. Thus, the manner of initiation of
\nproposal for a consultation with the Chief Justice under Section 16(1)(a)<\/a>
\nof the Act must take place in the manner as laid down by the judgment of
\nthis Court in Ashish Handa’s case (supra).\n<\/p>\n
The next contentious issue raised before us is with regard to the import of
\nthe amendment in the Act by introduction of Section 16(1A)<\/a>. Shri M. N.
\nKrishnamani, learned counsel for the Union of India, sought to canvass the
\ninterpretation given by Government of India (vide D.O. letter dated
\n31.12.2003) that the provisions of Section 16(1A)<\/a> may also be used for
\nappointment of the President of the State Commission.\n<\/p>\n
Learned counsel for the Union of India urged that sub-section (1A) of
\nSection 16<\/a> itself contemplates that every appointment made under sub-
\nsection (1) of Section 16<\/a> has to be made on the recommendation of a
\nSelection Committee consisting of – (i) President of the State Commission
\nas Chairman; (ii) Secretary of the Law Department of the State; and (iii)
\nSecretary incharge of the Department dealing with Consumer Affairs in the
\nState as Members. He also emphasized the proviso to sub-section (1A) which
\nhas been added to take care of the situation where the President of the
\nState Commission is absent, or otherwise unable to act as Chairman of the
\nSelection Committee in which case the State Government may request the
\nChief Justice of the High Court to nominate a sitting Judge of that High
\nCourt to act as Chairman.\n<\/p>\n
We are unable to accept this contention of the learned counsel for the
\nUnion of India. It is inconceivable that sub-section (1A) is intended for
\nappointment of the President of the State Commission itself. In the first
\nplace, we cannot accede to the contention that the Chairman of the State
\nCommission, who is or has been a Judge of the High Court, can be selected
\nby a Selection Committee comprising two Secretaries of the State
\nGovernment. Nothing could be more erosive of judicial independence than
\nsuch interpretation of sub-section (1A). This conclusion of ours is driven
\nhome by the proviso to sub-section (1A). This proviso is intended to take
\ncare of a contingency where there exists a President of the State
\nCommission, who is unable to Chair the Selection Committee meeting because
\nof absence or other similar reasons. It is only in such a situation, that
\nthe State Government may request the Chief Justice of the High Court to
\nnominate a sitting Judge to act as Chairman of the Selection Committee. If
\nthe argument of the learned counsel of the Union of India and the
\nconstruction canvassed by him is admitted, it would mean that even where
\nthe President of the State Commission is appointed for the first time, the
\nprocedure would be that he would be appointed by a Committee of which two
\nSecretaries would be members. That would be obviously destructive of
\njudicial independence.\n<\/p>\n
The learned counsel, alternatively, argued that the scheme contemplated by
\nsub-section (1A) is quite workable even in a situation where there exists
\nalready a President, but the question arises of his re-appointment which
\nwould make him unable to act as Chairman of the Selection Committee. In
\nsuch cases, a sitting Judge of the High Court could be nominated by the
\nChief Justice of the High Court to act as a Chairman. Even this argument
\ndoes not commend itself to us. A literal reading of sub-section (1A) may
\nprima facie suggest that appointments under clauses (a) and (b) of sub-
\nsection (1) are also governed by the procedure contemplated therein, under
\nsub-section (1A), but as rightly held by the High Court the two sub-
\nsections have to be harmoniously construed. The procedure contemplated
\nunder sub-section (1A) can apply only in respect of appointment of members
\nfalling within the contemplation of clause (b) of sub-section (1) of
\nSection 16<\/a>. In our view, the High Court has given adequate and justifiable
\nreasons for this interpretation with which we agree. The interpretation
\ngiven by the circular, and the view taken by the Union of India in the
\nmatter of Section 16(1A)<\/a>, is incorrect and we hold that the procedure
\ncontemplated therein applies only to the appointments made under clause (b)
\nof sub-section (1) of Section 16<\/a>.\n<\/p>\n
In our view, no fault can be found with the impugned judgment of the High
\nCourt on both the counts. Seeing no merit in these appeals, we dismiss the
\nappeals.\n<\/p>\n
No order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Haryana And Anr vs National Consumer Awareness … on 4 May, 2005 Author: B Srikrishna Bench: K.G. Balakrishnan, B.N. Srikrishna CASE NO.: Appeal (civil) 3044-3045 of 2005 PETITIONER: State of Haryana and Anr. RESPONDENT: National Consumer Awareness Group and Ors. DATE OF JUDGMENT: 04\/05\/2005 BENCH: K.G. Balakrishnan & B.N. 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