S.29A Of Consumer Protection Act, 1986 Valid; Consumer Forums Can Pass Orders Without President: Bombay High Court

The facts leading to this challenge involve an order dated 17.02.2020 of the District Consumer Forum that was signed by only two Members without the President being party to it. The petitioners-developers were aggrieved by this order; however, instead of availing statutory remedy under the provisions of the said Act, they filed a writ petition under Articles 226 and 227 of the Constitution of India. The petitioners have challenged Section 29A of the Act on the touchstone of Articles 14 and 21 of the Constitution of India on the ground that the absence of the President, who is a Judicial Member, violates Article 21 of the Constitution of India.

The Respondent submitted that Hon'ble Apex Court, while delivering the judgment in State of Karnataka Vs. Vishwabhuthi House Building Co-operative Society [(2003) 2 SCC 412] has already upheld the virus of the said Act. It stated that the Consumer Protection Act, 2019, has been enforced from 20.07.2020 by repelling the Consumer Protection Act, 1986 with the result present challenge to Section 29A of the said Act becomes infructuous.

Respondent further referred to Hon'ble Apex Court in the case of Gulzari Lal Agrawal Vs. Accounts Officer [(1996) 10 SCC 590] has held that Sub-section (2) of Section 14 of the Act is a presumptuous provision where the President of the State Commission is functional. Still, 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. It is held that Rules are framed with a view to making the State Commission functional in the absence of the President and not to halt the State Commission or to render it non-functional for want of the President. Therefore, the provisions of the said Act need to be construed harmoniously to promote the object and spirit of the Act.

Petitioners submitted that Section 29A of the said Act permits District Forum to function without President, which is unconstitutional as he is a Judicial Member. He submitted that Section 29A of the said Act is inconsistent with Articles 14 and 21 of the Constitution of India as two unequal are treated as equal. It is submitted that Section 29A of the Act is in conflict with other provisions of the Act. He submitted that the composition of the Forum at the various levels under the Act takes away the guarantee of a fair trial before the Forum as, in the absence of the President, the majority of the members are legally untrained.

The bench noted that the Apex Court in the case of Joint Secretary, Political Department, State of Meghalaya Vs. High Court of Meghalaya [(2016) 11 SCC 245 laid down the requirements of pleadings insofar as the petition challenging the constitutional validity of Article 14 is concerned. The essential requirements of pleadings in the petition challenging discrimination or unreasonable discriminatory standard is concerned, the material needs to be placed before the Court by way of scientific analysis, and it cannot be done by priory reasoning. It is mandatory for the petitioners to prima facie show acceptable grounds in support of such a challenge. The party has to plead prima facie acceptable grounds showing how the impugned provision of a statute is discriminatory offending Article 14 of the Constitution of India. The consequence of the absence of pleading as law laid down is that a challenge to the constitutional validity of a statute or statutory provision is liable to be rejected in limine.

The bench said,

"The Supreme Court has repeatedly stated that Constitutional Courts can strike down legislative enactments only on two grounds, namely:- i) The legislator does not competent to make the law; ii) that such statute or provision takes away or breaches any of the fundamental rights enumerated in Part-III of the Constitution of India."

The bench noted that the scope of a petition challenging constitutional validity has been laid down in the decision in Ram Krishna Dalmia v. Justice Tendolkar (A.I.R. 1958 S.C. 538), in which the law was elaborately discussed, and certain principles were laid down. The following are relevant in this case:—

"(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation".

In light of the settled presumption of constitutionality in favour of Legislation unless the contrary is shown, the bench concluded that there is no merit in the challenge to the constitutional validity of Section 29A of the Consumer Protection Act,1986.

Case Title : Aparna Abhitabh Chatterjee v Union of India

Citation: 2022 LiveLaw (Bom) 136

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