- (1.) BEING dissatisfied with the interim order dated 28-3-89 passed in Complaint No. 31/89, by the District Forum, Jaipur, the opposite party-appellant has filed this appeal under s. 15 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) (hereinafter referred to as 'the Act' ).
(2.) THE appellant and the respondent will be referred to as the opposite-party and the complainant respectively in this order. The complainant filed a complaint dated March 14, 1989 against the opposite-party praying that it may be restrained from realising the amount of the electricity bill and from disconnecting the electricity connection and further that the status quo as was existing on March 14, 1989 may be maintained. The opposite-party filed the version of the case dated April 25, 1989 denying the averments made in the complaint. An application was filed on May 23, 1989 by the complainant that during the pendency of the ccmplaint, the opposite-party may be restrained from realising the amount in excess of the real amount and the status quo as it existed then may be maintained. On this application, the District Forum passed the order dated March 28, 1989 urder appeal stating, amongst others, as under : *** The case was ordered to be listed on 26. 4. 89 for filing the reply. The order dated March 28, 1989 is signed by the President of the District Forum. The order does not show whether the other members of the District Forum, were present when the order dated March 28, 1989 under appeal, was passed, as their presence is not recorded in the order-sheet of that date. Aggrieved, this appeal has been filed under s. 15 of the Act. No written submissions were filed on behalf of the complainant. We heard Shri R. C. Saxena, Advocate for the appellant and Shri Mohd. Safiq, Advocate for the respondent and considered the record of the case. A preliminary objection was raised on behalf of the respondent that this appeal is not maintainable under s. 15 of the Act, for, no order was passed by the District Forum under s. 14 of the Act. This is opposed by the learned counsel for the appellant on the ground that s. 15 of the Act provides that person aggrieved by an order made by the District Forum may submit an appeal against such order to the State Commission within a period of 30 days from the date of the order. According to the learned counsel for the respondent, it is only the final order, against which an appeal lies under s. 15 of the Act and since the District Forum has passed an interim order, the appeal is incompetent. It is correct that the District Forum has not passed any final order under s. 14 of the Act, as proceedings under s. 13 of the Act have not been concluded as yet. S. 15 of the Act is conspicuously silent in regard to it as there is no reference in it of the order made by the District Forum under s. 14 of the Act. We do not consider it necessary to make a probe in the matter for the reason that under s. 17 (b) of the Act, the State Commission has jurisdiction to call for the records and pass appropriate orders in any consumer dispute, which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction vested in it by law or has exercised jurisdiction illegally or with material irregularity. Even if the appeal is not maintainable, as contended by Mr. Mohd. Safiq, it can be treated and decided as a revision. The provisions of s. 17 (b) of the Act are similar to the provisions contained in s. 115, C. P. C. excluding the proviso. The preliminary objection is, accordingly, overruled. It was argued by the learned counsel for the opposite party-appellant that the order passed by the District Forum is signed by the President (one member alone) and therefore, it cannot be considered to be an order in accordance with the provisions of s. 14 (2) of the Act. According to him it is an invalid order, for, there is nothing to show that the other two members were present or participated in the proceedings. Learned counsel for the respondent stoutly opposed this and submitted that the order as passed and signed by the President of the District Forum (single member) is valid. In view of the rival contentions, an interesting, but a difficult question crops for our consideration whether an interlocutory order signed by a single member of the District forum is valid and good in law. This has nessitated to consider the various provisions of the Act and the Consumer Protection (Rajasthan) Rules, 1987 (for short 'the Rules)' which were framed in exercise of the powers conferred by s. . 30 (2) of the Act.
(3.) THE District Forum consists of three members. THE District Judge acts as President and the two other as members. S. 14 of the Act deals with the finding of the District Forum. For the present purpose, we may read s. 14 (2) of the Act, which is a under : " (2) Every order made by the District Forum under sub-section (1) shall be signed by all the members constituting it and, if there is any difference of opinion, the order of the majority of the members constituting it shall be the order of the District Forum. " Sub-sec. (3) of s. 14 of the Act lays down that subject to the foregoing provisions of s. 14, i. e. , sub-sections (1) and (2), the procedure in such matters shall be such as may be prescribed by the State Government. Rule 3 (8) of the Rales, reads as follows : " 3. (8) When the President of the District Forum is unable to discharge the functions owing to absence, illness or any other cause, the senior-most (in order of the appointment) member of the District Forum shall discharge the functions of the President until the day on which the President resumes the charge of his functions. " It is material to consider rule 4 (5), which reads as under : " (5) No act or proceedings of the District Forum shall be invalid by reason only of the existence of any vacancy among its members or any defect in its constitution. " Rule 4 (12) is another rule which has to be examined in this case, which is as follows : " (1) Orders of the District Forum shall be pronounced and shall be signed and dated by the members of the District Forum constituting the Bench. " So far as s. 14 (2) of the Act is concerned, it envisages the order made by the District Forum under sub-sec. (1) of s. 14 of the Act. It is a final order, which determines "consumer dispute. ". THE words used in s. 14 (2) are "all the members constituting it. " THE question is whether the expression "all the members constituting it" means all the three members including President of the District Forum or only all the members who are present at the time of passing the order under s. 14 (1) of the Act. THE word used is 'shall' in s. 14 (2 ). Is it mandatory or directory ? This is the second question to be determined in this case. The State Government has been empowered under s. 30 (2) of the Act to make Rules for carrying out the provisions, amongst others, contained in sub-sec. (3) of s. 14 of the Act. S. 13 (4) (vi) is with respect to any other matter, which may be prescribed. A perusal of r. 4 (8) sic. 3 (8) makes it clear that if the President of the District Forum is unable to discharge the functions, may be owing to absence, illness or any other cause, the senior member has been empowered to discharge the functions of the President, until the date, the President resumes the charge of his functions. According to r. 4 (5), if there is existence of any vacancy amongst the members, then the acts or the proceedings 4one by the District Forum are not rendered invalid. This shows that in case of vacancy of any member, acts or proceedings done by the District Forum are not invalid. This envisages that two members can act. Rule 4 (12) of the Rules is like s. 14 (2) of the Act, where order made under sub-sec. (1) has been mentioned but nothing has been specified with respect to the order under r. 4 (12) of the Rules. It merely says 'orders of the District Forum'. The expression "all the members constituting it" has been used in s. 14 (2) of the Act whereas under rule 4 (12), the words "members of the District Forum constituting the Bench" has been used and not "all the members constituting it. " Having regard to the aforesaid provisions of s. 14 (2) of the Act and r. 4 (12) of the Rules, was there the intention that all the members of the District Forum should sign the order under s. 14 (1) of the Act or other orders affecting the rights of the parties (complainant and opposite-party ). They may be interlocutory, which may be passed from time to time during the proceedings of the complaint. The preamble of the Act says that it is an act to provide for better protection of the interest of the consumers and for that purpose to make the provisions for the appointment of consumers counsel and other authorities for the settlement of the consumers' disputes and for matters connected therewith. The Act is intended to give relief to the consumers without delay. The complaints are to be decided expeditiously. In this connection, it will be pertinent to consider some of the well established principles relating to interpretation of statutes pertaining to official action. A statutory provision which pertains to an official action is generally construed as directory rather than mandatory. "where the prescription of a statute relates to the performance of a public duty and where the invalidation of the acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. . . . . . . . . . . . " ;