IN THE HIGH COURT OF KARNATAKA 

N. D. R. RAMACHANDRA RAO, Advocate, for the petitioner in both the WPs. 

N. DEVADAS, Central Government Standing Counsel, for respondent 1 in both WPs. 

A. V. SRINIVAS REDDY, Additional Government Advocate, for respondents 2 to 4 in WP No. 30149 and for respondents 2 and 3 in WP No. 30194 of 1996. 

G. S. MAHADEVAPPA, Advocate, for respondent 5 in WP No. 30149 of 1996. 

ORDER 

R. P. SETHI, C.J. - Feeling personally aggrieved by notice, dated 9.9.1996 issued by the City Civil Court (CCH No. 18), District Courts, Bangalore, the petitioner has ignited the process of this court in the name of public interest litigation praying for quashing of the Consumer Protection Act, 1986 (Central Act No. 68 of 1986) (hereinafter called as 'Act'). The Act has been termed to be unconstitutional being violative of the provisions of Articles 14 and 19 of the Constitution. It is, further, submitted that the Act has been passed without jurisdiction. It is contended that the enactment of the Act amounts to changing the basic features of the Constitution inasmuch as attempt has allegedly been made to constitute parallel courts to the hierarchy of courts established under the Constitution, viz., District Courts, High Courts and Supreme Court. According to the petitioner, such a law could not be enacted without amending Constitution in accordance with the procedure as laid down under Article 368 of the Constitution of India. The establishment of consumer forums is apprehended to result in rendering of conflicting decisions. As the orders passed by the consumer forums cannot be equated with the decree passed by the civil courts within the meaning of section 2(2) of the Code of Civil Procedure, the same cannot be executed as provided by section 25 of the Act. It is contended, in the alternative, that even if the Act is held to be intra vires, the provisions of section 25 are required to be struck down being unconstitutional and without the authority of law. It is alleged that as the Act negates the rules of justice and no provision is made for transfer of cases under it, the same is required to be declared unconstitutional. The powers vested in the State Commissions are claimed to be offending Articles 226 and 227 of the Constitution of India. 

2. In the statement of objections filed on behalf of the respondent, it is submitted that the Act has been enacted by the Parliament under the powers vested in it under the Constitution. The Act is claimed to have been enacted to provide for better protection to the consumers by providing them speedy and effective justice. The consumer protection is stated to have become world movement. Even United Nations is stated to have adopted the guidelines for consumer protection in the year 1985. Draft guidelines were submitted by the Secretary General of United Nations Economic and Social Council (UNESCO) in the year 1983. After adoption of guidelines by the United Nations, the International Voluntary Organisation of Consumers known as Consumer International and other consumer organisations in various States are stated to be continuously putting pressures on their Governments for adoption of guidelines. The United Nations itself has been making several attempts to implement the guidelines issued by it with the object that the same are followed by the Member Nations having regard to the tremendous growth of consumer movement in various parts of the world. The country could not remain out for long and as a result, the Act was enacted by the Parliament in the year 1986 which provides for better protection of the interests of the consumers and to make provision for the establishment of Central/State Consumer Protection Councils and other authorities for the settlement of consumer disputes and the matters connected therewith. A quasi-judicial machinery has been provided to be set up at the District, State and Central levels. The Act contemplates that these agencies shall observe principles of natural justice by evolving simple procedure which would provide sufficient protection not only to the consumers, but also to the opposite party who has to answer the complaints lodged by the consumers. The hierarchy of the agencies provided under the Act fully and effectively guarantees the rights of both the parties. The provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force in the country. The Act was enacted on the basis of the experience that the private law was unable to respond to the consumer problems. The ordinary courts are claimed to be still far too bound by the private law's laissez-faire and commercial origins. The allegations of the petitioner that the hierarchy of the agencies constituted under the Act, virtually substitute the civil courts and the High Courts has been vehemently denied. It is submitted that such agencies are provided only to ensure speedy and cheap remedy for the day-to-day problems faced by the consumers. In the market economy dominated by big business and professionals who provide services, an ordinary consumer not only lacks sufficient knowledge about the market economy, but also the sufficient power to fight these powerful bodies. Keeping in view the cost factor in approaching the civil court apart from delay in getting redressal of the grievances, the legislature in its wisdom and in view of the interest and demands decided to enact the Act. It is claimed that the Act and rules made thereunder provide for easy method of filing complaints, ensuring speedy and cheaper justice. Cumbersome procedure prevalent in the ordinary courts has been sought to be liberalised in the interests of the common man. Under the Act, 533 District Forums, 32 State Commissions and one National Commission have been set up. Till middle of June 1998 about 13,391 complaints were filed before the National Commission, 1,50,491 before the State Commissions and 11,65,947 before the District Forums which reflected the awareness of the common man to approach the Forums under the Act for redressal of the grievances. The agencies have also taken effective steps for speedy disposal of the complaints which, according to the respondents, has infused more confidence in the consumers. The National Commission is claimed to have disposed of 7,757 complaints which is 58.6% of the complaints filed before it. Similarly, the State Commissions have disposed of 90,571 complaints which is 60% of the complaints filed with them and District Forums disposed of 8,99,102 cases which amounts to 78% of the cases filed before it. The apprehensions expressed by the petitioner about the judicial system is alleged to be unfounded and without any basis. The Act does not in any way affect the basic structure of the Constitution. The modern system of administration of justice has persuaded the State to constitute various types of Tribunals to deal with various problems of citizens apart from administering justice through civil and criminal courts. No provision of the Act offends any fundamental right of a citizen. 

3. The learned counsel appearing for the petitioners has not seriously disputed the plenary powers vesting in the Parliament to enact the law with respect to the subject covered by the Act. The only grievance projected is, that without amending the Constitution in accordance with the procedure prescribed under Article 368 of the Constitution of India, Union Parliament could not have enacted the law. To support his submission, the learned counsel has referred to Part XIV-A of the Constitution and submitted that as the Tribunals referred to in the said part do not envisage the provisions provided under the Act, the Parliament could not enact the law without first amending the Constitution. Such a submission is bereft of any force as it ignores the effective powers conferred upon the legislature under Part XI of the Constitution. The said Part deals with distribution of legislative powers between Parliament and State Legislatures. If a legislature has the jurisdiction to legislate under Part XI read with Schedule Seven of the Constitution, it cannot be said that the law made by it would be without jurisdiction only on the ground that the same was not referable to any other constitutional provision. However, the Constitutional Courts would be failing in their duties in issuing appropriate direction when they find that the constitutional safeguards ensuring independence of superior judiciary was likely to be affected by the creation of the Tribunals or other quasi-judicial authorities. If, however, the Tribunal or quasi-judicial authorities are found not to be of full and effective substitute of High Courts, but are found to have been created to perform supplemental role, the Constitutional Courts would be loath in interfering with the creation of such quasi-judicial Tribunals or authorities. 

4. Article 246 of the Constitution authorises, the Parliament to make laws for the whole or any part of the country with respect to the subject-matter enumerated in the List I in the Seventh Schedule of the Constitution. Similarly, the State Legislatures have the powers to make laws with respect to any matters enumerated in the State List. So far as list III, viz., the Concurrent List in the Seventh Schedule is concerned, both the Parliament and the State Legislatures can make laws and in case of inconsistency between the laws made by the Parliament and laws made by the State Legislature, the law made by the Parliament shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy be void. There is no dispute that the Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List as residuary power to make any law with respect to any matter not enumerated in the lists of the Seventh Schedule. If the enactment of the Act is not referable to any of the Articles in Chapter I, Part XI read with Seventh Schedule of Constitution, it would not be safe to hold that such law made is without jurisdiction as the Parliament in that event will have no parliamentary power to make the law. The Union Government has the power to legislate for the whole or any part of the country however subject to the provisions of the Constitution. 

5. In the instant case, the respondents have referred to Entry 11-A in the Concurrent List of the Seventh Schedule to show that the Union Parliament had the jurisdiction to enact the Act. The Entry 11-A deals with, 'administration of justice; constitution and Organisation of all courts except the Supreme Court and High Courts'. Such an entry, it is claimed, authorises the Parliament to make law in the form of the Act in terms of Article 246 of the Constitution. The learned counsel for the petitioner has however submitted that the creation of courts under the Act violate the mandate of the Constitution as it amounted to the creation of a parallel hierarchy of the courts which, if permitted, would be against the basic features of the Constitution. The argument is contradictory in terms. As noticed earlier, the Act has been enacted with the purpose of relieving the burden of pendency of cases upon the existing courts and providing for additional legal remedies without taking away the right of the citizens to move the ordinary civil/criminal courts for the redressal of their grievances. While dealing with the question of the jurisdiction to enact the law the court is not called upon to peep beyond the statute for the purposes of substituting its opinion for the opinion of the legislature. The courts are the interpreters of law and not the makers of law. Once the power to make the law is found to be referable to a constitutional provision, this court would be very loath in interfering with the exercise of power unless strong reasons are assigned and proved. 

6. The other contentions of petitioners' counsel with respect to the nature of the authorities/bodies/agencies created under the Act lose all their significance in view of the authoritative pronouncement on the subject by the Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute (1995) 2 Comp LJ 393 (SC) : AIR 1995 SC 1428 : (1995) 3 SCC 583. The court in that case found that after good amount of consultations with Governments and international organisations, the Secretary General of the United Nations submitted draft guidelines for consumer protection to the Economic and Social Council (UNESCO) in 1983. After extensive discussions and negotiations among Governments on the scope and content of the guidelines, the General Assembly of the United Nations adopted the guidelines which inter alia provided the following objectives : 

"Taking into account the interests and needs of consumers in all countries, particularly, those in developing countries, recognizing that consumers often face imbalances in economic terms, educational level, and bargaining power, and bearing in mind that consumer should have the right of access to non-hazardous products, as well as the importance of promoting just, equitable and sustainable economic and social development, these guidelines for consumer protection have the following objectives : 

(a) To assist countries in achieving or maintaining adequate protection for their population as consumers; 

(b) To facilitate production and distribution patterns responsive to the needs and desires of consumers; 

(c) To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers; 

(d) To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers; 

(e) To facilitate the development of independent consumer groups; 

(f) To further international co-operation in the field of consumer protection; 

(g) To encourage the development of market conditions which provide consumers with greater choice at lower prices". 

The court specifically held : 

"A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi-judicial Tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these Forums/Commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional Forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The Forum so created is uninhibited by the equirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognised consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for 'business-to-consumer' disputes and not for 'business-to business' disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal". 

7. In view of the law laid down by the apex court in Laxmi Engineering Works case (1995) 2 Comp LJ 393 (SC) : AIR 1995 SC 1428 : (1995) 3 SCC 583, it cannot be held that the agencies created under the Act were in any way parallel hierarchy to the judicial courts. In that event, the power of the Parliament to enact the Act can be referred to Article 248 read with Entry 97 of List I of the Seventh Schedule, dealing with the powers of the Parliament to make law with respect to residuary matters. In no way the Parliament can be held to be not having the power to make the law in the form of the Act. All the contentions in this behalf being without substance are rejected. It may be noticed that besides Laxmi Engineering Works case (1995) 2 Comp LJ 393 (SC), supra, the Supreme Court also dealt with various aspects of the Act in New India Assurance Company Limited v. G. N. Sainani (1997) 3 Comp LJ 380 (SC) : (1997) 6 SCC 383 and Common Cause, a Registered Society v. Union of India (1997) 1 Comp LJ 30 (SC) : (1997) 10 SCC 729 and did not find any legal infirmity or constitutional vice in the Act. 

8. The argument that the Act violated Article 14 of the Constitution is more hypothetical than reality. The learned counsel appearing for the appellant has not referred to any such specific provision of the Act which could be held to be discriminatory in treatment while dealing with similarly situated persons. He half-heartedly referred to the provisions of sub-section (3) of
section 13 of the Act and contended that as the principles of natural justice are allegedly declared to have been given a go-by, the Act amounted to be a discriminatory piece of legislation. The learned counsel appears to have forgotten the mandatory provisions of sub-sections (1) and (2) of section 13 which specifically provide the procedure ensuring and guaranteeing the compliance of the principles of natural justice. The procedure prescribed negates any such complaint as was sought to be projected in support of the contention referring the alleged violation of the provisions of Article 14 of the Constitution. The procedure prescribed for the District Forum to deal with the complaint is a complete code in itself which allays all apprehensions expressed on behalf of the petitioner making it safe for the court to hold that the argument in that behalf is imaginary, concocted and afterthought. As the Act is not a general law for all remedies, the petitioners cannot throw challenge generally to its provisions on hypothetical grounds couched in the phrases used for preserving the constitutional mandate and the rule of law. In Common Cause case (1997) 1 Comp LJ 30 (SC), supra, the apex court had observed : 

"The object of the legislation, as the Preamble of the Act proclaims, is 'for better protection of the interests of consumers'. During the last few years preceding the enactment, there was in this country a marked awareness among the consumers of goods that they were not getting their money's worth and were being exploited by both traders and manufacturers of consumer goods. The need for consumer redressal fora was, therefore, increasingly felt. Understandably, therefore, legislation was introduced and enacted with considerable enthusiasm and fanfare as a path-breaking benevolent legislation intended to protect the consumer from exploitation by unscrupulous manufacturers and traders of consumer goods. A three-tier fora comprising the District Forum, the State Commission and the National Commission came to be envisaged under the Act for redressal of grievances of consumers". 

9. In L. Chandra Kumar v. Union of India and Others (1998) 1 Comp LJ 385 (SC) : AIR 1997 SC 1125, the apex court found that since independence, the population explosion and the increase in litigation had resulted in accumulation of pendency in the High Courts which necessitated the setting up of various Tribunals under the constitutional scheme. In discharging the duty of dispensation of justice such quasi-judicial Tribunals or agencies cannot be termed to be a substitute for the High Courts and the Supreme Court which have, under the constitutional scheme, been specifically entrusted with the obligation of dispensation of justice and for the enforcement of the rule of law. The function of the Tribunals, in that case being the Administrative Tribunal, was held to be only supplementary and not a substituted. The power of the constitutional courts under Articles 32 and 226 which was described as 'the heart and soul' of the Constitution was declared to have not been taken away by the creation of quasi-judicial Tribunals. The Act being a welfare legislation has to be interpreted keeping in view the purpose and object for which it was enacted. The preamble of the Act indicates that it was intended to provide for better protection of interests of consumers and for that purpose to make provisions for establishment of the Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith. In the statement of object and reasons it was declared : 

"1. The Consumer Protection Bill, 1986, seeks to provide for better protection of the interests of consumers and for that purpose, to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith. 

2. It seeks, inter alia, to promote and protect the rights of consumers such as - 

(a) the right to be protected against marketing of goods which are hazardous to life and property; 

(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices; 

(c) the right to he assured, wherever possible, access to variety of goods at competitive prices; 

(d) the right to be heard and to be assured that consumers' interests will receive due consideration at appropriate forums; 

(e) the right to seek redressal against unfair trade practice or unscrupulous exploitation of consumers; and 

(f) right to consumer education. 

3. These objects are sought to be promoted and protected by the Consumer Protection Councils to be established at the Central and State levels. 

4. To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the District, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give reliefs of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided. 

The Bill seeks to achieve the above objects. The notes on clauses explains in detail the provisions of the Bill." 

10. After going through various provisions of the Act, we have not found any infirmity in its scheme which could be stretched to hold that the Act was either made by the Parliament without legislative competence or suffered from any vice of constitutionality. 

11. The learned counsel appearing for the petitioners has referred to a Single Bench judgment of the Calcutta High Court and attempted to persuade us to agree with the reasoning given therein for holding that the Act was unconstitutional and beyond the scope of legislative competence of the Union Parliament. For the reasons noticed hereinabove, we do not find any substance in such argument and are of the opinion that the view taken by the learned Single Judge of Calcutta High Court is not sound when tested on the touchstone of constitutional scheme and various declarations already made by the Supreme Court. We are of the firm view that the forums created under the Act do not amount to parallel system of courts or a substitute of the ordinary courts entrusted with the dispensation of justice. No offender can claim a fundamental right to be tried by a specified forum or a court. The learned Single Judge of Calcutta High Court appears to have ignored the purpose, scheme, object and international commitments under which the Union Parliament had enacted the law. The reference to Article 368 of the Constitution appears to be illusory in the instant case. Once it is held that the Act has been enacted in exercise of the powers vesting in the Parliament under the constitutional scheme as envisaged under Part XI, Chapter 1, it cannot be accepted that before making the law, the Constitution itself was required to be amended. 

12. In W.P. No. 30149 of 1996 the petitioner has specifically prayed for declaring section 25 of the Consumer Protection Act as ultra vires and unconstitutional on the ground that as the order passed by the District Forum did not amount to decree within the meaning of section 2(2) of the CPC, the same could not be executed under the Civil Procedure Code. It is further contended that as the provisions of order 21 of the CPC have not been made applicable for execution of orders of the District Forum, the action of resorting to execution of the order being illegal was liable to be set aside. It is contended on behalf of the respondents that in cases where the order of the forums established under the Act, are not possible to be executed and enforced, the same can begot executed in a civil court of law as if the order of the Forum was a decree passed by such court. Such a provision does not infringe any of the rights of the parties. According to the respondents, section 25 of the act provides for enforcement of the orders passed by the Forums and such orders cannot be equated with that of the decree passed by a civil court because the provision has been made to enforce the order in the manner a decree could be executed or enforced in a civil court of law. 

13. Section 25 of the Act provides : 

"25. Enforcement of orders by the Forum, the State Commission or the National Commission. - Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the court within the local limits of whose jurisdiction. - 

(a) in the case of an order against a company, the registered office of the company is situated, or 

(b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon, the court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for executions". 

A perusal of the section shows that the orders passed by the Forum, the State Commission or the National Commission have been symbolically and by legal fiction treated as decrees for the purposes of execution. Despite making a provision for the enforcement of the aforesaid orders as a decree, no provision has been made for applying the provisions of order 21 of the CPC for the purposes of execution of the aforesaid orders. The provision of the CPC have also not been made applicable either in general or in particular with reference to specified Chapters, orders and rules. There appears to be a lacuna in the Act which may be remedied by appropriately amending it. Under the existing scheme of the Act, the order passed by the Forum, State Commission or National Commission maybe enforced by such Forum and the Commissions after due notice to the opposite party, but resort to the provisions of order 21 of the CPC cannot be made in the absence of the applicability of the said order to the execution proceedings relating to the orders passed by the Forum and the State Commission. It follows, therefore, that as and when an order is passed under the Act, the Forum or the Commission, as the case, may be, can direct the opposite party to comply with the order and if in any case the compliance of the order is resisted or is not possible, the Forum or the Commission, in that event after recording its inability to execute it, can send the order to a civil court of competent jurisdiction for execution of the same. In that event, the court to which the order is sent for execution shall treat the order as a decree of the court and execute the same in accordance with the various rules under order 21 of the CPC. The order of the Forum and State Commission under the Act, in that event shall symbolically be treated as decree notwithstanding the definition given of the decree as prescribed by section 2(2) of the CPC. The court executing the orders passed under the Act can have resort to all possible coercive measures as envisaged under various rules of order 21 of the CPC. This, however, does not mean that section 25 is unconstitutional being allegedly unworkable. It is always in the interest of the party against whom an order is passed by the Forum or the Commission under the Act, to submit compliance as and when a notice is issued by such Forum or Commission and in case the execution is found not possible, the orders have to be executed in the manner prescribed under the CP.C. No person who has suffered a decree or an order against him can challenge the provisions of law by having resort to imaginary arguments apparently mala fidely advanced. No such defaulter has a right to get the order executed against him in any specified manner. Persons suffering a decree under the CPC and an order under the Act shall be deemed to be similarly situated for the purpose of compliance of the orders and the decrees. 

14. The learned counsel for the petitioners has referred to the orders, dated 19.4.1995 passed in W.P. No. 23455/94 and W.P. No. 20067/94 to argue that as the orders passed under the Act are not executable, the section being inoperative rendered it unconstitutional. In that case also, the court had held - 

"On reading section 25 of the said Act, in our view, it does not empower the District Forum to pass such an order. If at all the Forum wants to enforce the order, it has to send the order to the concerned court which has jurisdiction over the area." 

We have also not taken a different view as the learned counsel appearing for the respondents has not brought to our notice any provisions of law or authority to hold that while executing its orders, the District Forum and Commission under the Act can also have resort to various modes of execution of its orders, as provided under the rules incorporated in order 21 of the CPC. 

15. We are, therefore, satisfied that no provision of the Act including section 25, but excluding the proviso to section 27, which has been declared as unconstitutional in W.P. No. 10363/94, decided today, [since reported as Paramjit Singh v. Union of India and others (1999) 4 Comp LJ 465 (Karn)] suffers from any vice rendering it unconstitutional as canvassed on behalf of the petitioner. We are of the firm opinion that the Act has been validly enacted by the Parliament and the plea regarding the same being without legislative competence is totally unfounded being concocted. We, however, feel that while executing the orders, the District Forum and the Commissions under the Act cannot resort to coercive methods of execution provided under various of order 21 of the CPC and upon notice, if the party against whom the order is passed fails to comply the order, such Forum and Commission, after recording its inability to execute the same, can send the order to the civil court of competent jurisdiction for execution of the said order. Upon receipt of such order, the civil court shall have the powers to execute the order treating it symbolically as a decree of the civil court by having resort to the provisions as incorporated under Part II and Order XXI of the CPC. 

16. Under the circumstances, Writ Petition No. 30194 of 1996 being totally misconceived is dismissed and rule discharged. Writ Petition No. 30149 of 1996 is partly allowed to the extent and in the light of observations made in para 15. Till the Act is amended, the order passed under the Act, if not executed upon notice shall be executable by the civil court after the District Forum and the Commissions under the Act record their inability to execute and send the same for execution to the civil court having jurisdiction in terms of clauses (a) and (b) of section 25 of the Act. The petitioner in Writ Petition No. 30194 of 1996 is held liable to pay costs of Rs. 5,000. 

17. Order accordingly.