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writ petition under Article 226 of the Constitution of India before the High Court, inter alia, praying that Regulation 15 of the Regulations be struck down on the ground that the said Regulation being ultra vires of the said Act, and further the review application filed by the appellant should be re-heard by the National Commission granting an opportunity to present the case by making oral arguments. = Surendra Mohan Arora … Appellant :Versus: HDFC Bank Ltd. and Others …Respondents = 2014 (April. Part)http://judis.nic.in/supremecourt/filename=41471

writ petition under Article 226 of the Constitution of India  before the High Court, inter alia, praying that Regulation 15  of  the  Regulations be struck down on the ground that the said Regulation being ultra  vires  of the said Act, and further the review  application  filed  by  the  appellant should be re-heard by the National Commission  granting  an  opportunity  to

present the case by making oral arguments. =


 The appellant filed a complaint before the District Forum under  the

said Act. The foundation of the filing of such complaint was  an  allegation

made against respondent No. 1 – HDFC Bank  Ltd.   for  indulging  in  unfair

trade practice on the ground of failure to provide professional services  to

the appellant resulting in pre-payment of loan to  respondent  No.1  seeking

to levy a penalty for pre-payment.

By an order dated August 2, 2007, the District Forum held in  favour

of the appellant. Respondent No.1  preferred  an  appeal  against  the  said

order before the State Commission resulting in dismissal by an  order  dated

November 19, 2007.  A  revision  petition  was  filed  before  the  National

Consumer Disputes Redressal Commission  (hereinafter  referred  to  as  “the

National Commission”) which set aside the orders of the District  Forum  and

the State Commission vide an order dated August 14, 2012  on  the  basis  of

the  agreements  inter  se  between  the  parties.  Being   aggrieved,   the

appellant  filed  a  review  application  before  the  National   Commission

resulting in dismissal by an order dated September 24, 2012.

Being aggrieved and dissatisfied with the said  order,  the  appellant

filed a writ petition under Article 226 of the Constitution of India  before

the High Court, inter alia, praying that Regulation 15  of  the  Regulations

be struck down on the ground that the said Regulation being ultra  vires  of

the said Act, and further the review  application  filed  by  the  appellant

should be re-heard by the National Commission  granting  an  opportunity  to

present the case by making oral arguments.

High court dismissed the writ petition filed  by  the  appellant,  questioning  the

   vires of Regulation 15  of  the  Consumer  Protection  Regulations,  2005

   (hereinafter referred to as “the Regulations”)  framed under the Consumer

   Protection Act, 1986 (hereinafter referred to as “the said Act”).=

 

whether the review petitions will  be  decided  after

   granting an opportunity of being heard to the petitioner. 

From the  order

   of the High Court,  we  find  that  no  such  request  was  made  in  the

   application before the National Commission for  such  hearing.  

In  these

   circumstances, the High Court correctly held that the  writ  petition  is

   misconceived and devoid of merit without even laying the basic foundation

   for having sought an oral hearing of the review application.  

We  do  not

   find any reason to interfere with the order passed  by  the  High  Court.

   Accordingly, we uphold and affirm the said order and dismiss this appeal.=

 


2014 (April. Part)http://judis.nic.in/supremecourt/filename=41471                                   GYAN SUDHA MISRA, PINAKI CHANDRA GHOSE  

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4891 OF 2014
(Arising out of Special Leave Petition (Civil) No.14965 of 2013)

Surendra Mohan Arora …
Appellant

:Versus:

HDFC Bank Ltd. and Others
…Respondents

 

J U D G M E N T
Pinaki Chandra Ghose, J.

1. Leave granted.
2. This appeal is directed against the judgment dated January 7, 2013
passed by the High Court of Delhi in Writ Petition No. 64 of 2013
dismissing the writ petition filed by the appellant, questioning the
vires of Regulation 15 of the Consumer Protection Regulations, 2005
(hereinafter referred to as “the Regulations”) framed under the Consumer
Protection Act, 1986 (hereinafter referred to as “the said Act”).
3. The facts of the case briefly are as follows :
(3.1) The appellant filed a complaint before the District Forum under the
said Act. The foundation of the filing of such complaint was an allegation
made against respondent No. 1 – HDFC Bank Ltd. for indulging in unfair
trade practice on the ground of failure to provide professional services to
the appellant resulting in pre-payment of loan to respondent No.1 seeking
to levy a penalty for pre-payment.
(3.2) By an order dated August 2, 2007, the District Forum held in favour
of the appellant. Respondent No.1 preferred an appeal against the said
order before the State Commission resulting in dismissal by an order dated
November 19, 2007. A revision petition was filed before the National
Consumer Disputes Redressal Commission (hereinafter referred to as “the
National Commission”) which set aside the orders of the District Forum and
the State Commission vide an order dated August 14, 2012 on the basis of
the agreements inter se between the parties. Being aggrieved, the
appellant filed a review application before the National Commission
resulting in dismissal by an order dated September 24, 2012.
(3.3) Being aggrieved and dissatisfied with the said order, the appellant
filed a writ petition under Article 226 of the Constitution of India before
the High Court, inter alia, praying that Regulation 15 of the Regulations
be struck down on the ground that the said Regulation being ultra vires of
the said Act, and further the review application filed by the appellant
should be re-heard by the National Commission granting an opportunity to
present the case by making oral arguments.
4. Mr. Nikhil Majithia, learned counsel appearing on behalf of the
appellant, drew our attention to the Statement of Objects and Reasons of
the said Act which is to provide for better protection of interest of
consumers and it is towards that objective that Section 22 of the said
Act was amended by Act No.62 of 2002 with effect from March 15, 2003,
conferring the power of review on the National Commission, which was not
available in the original Act. According to him, Regulation 15 is ultra
vires Section 22 of the said Act. It is also his contention that by
introducing Regulation 15, the National Commission has exceeded its
jurisdiction and the power vested in it under Section 30A of the said
Act.
5. Section 22 of the said Act reads as follows :

“Section 22.  Power of and procedure applicable to the National
Commission. — (1) The provisions of sections 12, 13 and 14 and the
rules made thereunder for the disposal of complaints by the District
Forum shall, with such modifications as may be considered necessary by
the Commission, be applicable to the disposal of disputes by the
National Commission.

(2)   Without prejudice to the provisions contained in sub-section
(1), the National Commission shall have the power to review any order
made by it, when there is an error apparent on the face of record.”

 

 

It is necessary to quote Regulation 15 for our purpose which is as under:

“Regulation 15. Review.-(1) It shall set out clearly the grounds for
review.
(2) Unless otherwise ordered by the National Commission, an
application for review shall be disposed of by circulation without
oral arguments, as far as practicable between the same members who had
delivered the order sought to be reviewed.”

 

6. It is needless to mention here that the said Regulations were duly
published in the Official Gazette dated May 31, 2005 and were so made in
pursuance of the power conferred under Section 30A of the said Act
conferring power on the National Commission to make such regulations with
the prior approval of the Central Government. According to Mr. Majithia,
the Consumer Protection Act has been enacted to protect and advance the
cause of consumers. He further contended that the Statement of Objects
and Reasons of the Act in Clause 2 states that the Act seeks to promote
and protect the rights of consumers including the right to hear and
further to assure that the interest of the consumers will receive due
consideration at appropriate fora. He further submitted that all these
fora are quasi-judicial authorities, therefore, are bound to observe the
principles of natural justice.
7. He further pointed out that the amendment of Section 22 is only to
empower the National Commission to function more explicitly and further
to streamline the functioning of the consumer fora. The main grievance of
the appellant is that the National Commission has provided for disposal
of review application by circulation without oral arguments. Mr. Majithia
submitted that the said Act has provided for promotion and protection of
the rights of the consumers which includes the right to be heard. The
said Act has also provided that the principles of natural justice shall
be adhered to by all quasi-judicial fora which include the National
Commission. He submitted that the salient features of the Act are sought
to be rendered redundant by way of Regulation 15, by taking away the
right of being heard and there is no adherence to principles of natural
justice, thereby making it ultra vires to Section 22 of the said Act. In
these circumstances, he submitted that Regulation 15 should be struck
down.
8. To fortify his submission, he relied on the decisions of this Court in
State of Orissa vs. Dr. (Miss) Binapani Dei and Ors[1] followed in Maneka
Gandhi vs. Union of India[2] & Anr., Sahara India (Firm), Lucknow vs.
Commissioner of Income Tax, Central-I & Anr.[3] and Automotive Tyre
Manufacturers Association vs. Designated Authority and Ors.[4], and it
has been contended by Mr. Majithia that the courts have emphasized on the
right of being heard time and again even when an order is passed by an
administrative authority and that written arguments cannot be a
substitute for oral hearing. It is also the case of the appellant that
the national Commission has exercised its power beyond the scope of
Section 30A of the Act while enacting Regulation 15, which in its present
form defeats the objective of the amended Section 22 of the Act as the
right of making oral arguments is taken away from the consumer, making
the Regulation inconsistent with the objective of the Act. It has also
been submitted that the impression given by Regulation 15(2) that oral
arguments can be made when allowed by the National Commission, is
fallacious as it does not consider the fact that the Act has given the
prerogative to the consumer and not to the National Commission.
Moreover, this would also lead to inequality as some consumers are given
the right of being heard in open court and some are deprived of the same
at the discretion of the National Commission. Another submission of the
learned counsel is that in the light of the principle that justice must
not only be done but also be seen to have been done; Section 22 is
rendered redundant on account of Regulation 15 as the same is contrary to
the principle of audi alteram partem which is undisputedly followed by
judicial and quasi-judicial bodies alike.
9. We have perused Section 22 of the said Act. Under Section 22(2), the
National Commission has been empowered to review an order made by it when
there is an error apparent on the face of the record. We have also
noticed sub-section (1) of the said Act. It is a fact that this provision
streamlines the functioning of the consumer Redressal forums and also
reduces the number of appeals to the Supreme Court from the orders of the
National Commission. The power of review did not exist earlier. It is
trite law that unless the power of review is specifically conferred by
the statute, there cannot be any inherent power of review.
10. In the instant case, the power conferred by Section 22 of the said Act
on the National Commission is not an inherent power and further the
Commission has the power to review its order when there is an error
apparent on the face of the record. We do not find any dispute that the
Regulations have been framed in accordance with the power conferred under
Section 30A on the Commission, thereby effecting its right to frame
Regulations. Therefore, the Regulations have been framed in accordance
with law. We have minutely gone through Regulation 15(2) and found that
power to deal with review applications lies with the Commission. The
procedure is to be adopted by the National Commission, whether the review
petition would be decided after hearing the parties orally or can be
disposed of by way of circulation. Therefore, we do not find that any
mischief has been done by framing the said Regulations. In our opinion,
the said Regulations under Section 22 of the said Act, cannot be said to
be ultra vires the said Act. Accordingly, we do not find any substance in
the arguments put up before us by Mr. Majithia. There is no reason to
believe that the National Commission by enacting Regulation 15 exceeded
its jurisdiction or the power vested in it under Section 30A of the said
Act, as has been tried to be contended by Mr. Majithia.
11. The other grievance of Mr. Majithia is that the National Commission in
its Cause List specifically issued a notice that no proxy counsel shall
be allowed to make submissions. According to him, such a direction is bad
in law and is without any jurisdiction. According to him, such direction
is also arbitrary and illegal as it prevents a qualified lawyer enrolled
on the rolls of a State Bar Council from presenting his case before the
National Commission. He further submitted that it is also in violation of
Article 19(1)(g) of the Constitution, being the fundamental right to
practice. He further stated that under Section 30 of the Advocates Act,
1961, an Advocate, after having been enrolled, has a right to appear
before the courts or any other authority and, therefore, it is
curtailment of the right of an Advocate. We find that under the Advocates
Act, there is no terminology which defines “proxy counsel”. We have found
in a very recent decision of this Court in S.L.P. (Criminal) No.9967 of
2011 (Sanjay Kumar v. The State of Bihar & Anr.), a three-Judge Bench of
this Court in its order dated January 28, 2014 has held as follows :
“In such a chaotic situation, any “Arzi”, “Farzi”, half-baked
lawyer under the label of “proxy counsel”, a phrase not traceable
under the Advocates Act, 1961 or under the Supreme Court Rules, 1966
etc., cannot be allowed to abuse and misuse the process of the court
under a false impression that he has a right to waste public time
without any authority to appear in the court, either from the litigant
or from the AOR, as in the instant case. ….”

 
Therefore, we do not find any substance in the submission of Mr.
Majithia with regard to “proxy counsel”. We also do not find that the
decisions cited by Mr. Majithia before us can extend any help in the facts
and circumstances of this case.
12. The foundation, as it appears to us for filing this appeal by the
appellant, is only to curtail the rights of the National Commission to
adopt the procedure whether the review petitions will be decided after
granting an opportunity of being heard to the petitioner. From the order
of the High Court, we find that no such request was made in the
application before the National Commission for such hearing. In these
circumstances, the High Court correctly held that the writ petition is
misconceived and devoid of merit without even laying the basic foundation
for having sought an oral hearing of the review application. We do not
find any reason to interfere with the order passed by the High Court.
Accordingly, we uphold and affirm the said order and dismiss this appeal.

…….……………………..J.
(Gyan Sudha Misra)

New Delhi;
…………………………….J.
April 25, 2014. (Pinaki
Chandra Ghose)
———————–
[1] (1967) 2 SCR 625
[2] (1978) 1 SCC 248
[3] (2008) 14 SCC 151
[4] (2011) 2 SCC 258

———————–
10

 

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