Judgment:
ORDER
Dipak Misra, J.
1. By this writ petition preferred under Articles 226/227 of the Constitution of India the petitioner has prayed for issue of a writ of certiorari for quashing of the order passed by the M.P. State Consumer Disputes Redressal Commission (in short 'the Commission') vide Annexure P-1, whereby the said Commission has dismissed the appeal preferred by the petitioner for default. Assailing the said order it is putforth in the petition that the State Commission could not have decided the appeal in absence of the President. It is apposite to mention here that initially the prayer was confined to the aforesaid extent but later on, an application for amendment was filed to challenge the validity of the Sub-rules (9) and (10) of Rule 6 of the M.P. Consumer Protection Rules, 1987. The said amendment was allowed by this Court. It is urged in the petition that the said sub-rules are ultra vires the Act and, therefore, the appeal could not have been dealt with, as has been dealt with.
2. To appreciate the aforesaid averment, it is apposite to refer Sub-rules (9) and (10) of Rule 6 of the aforesaid Rules. They read as under:--
'6. *** *** *** *** *** ***
(1) *** *** *** *** *** ***
(9) Where any such vacancy occurs in the office of the President of the State Commission, the senior-most (in order of appointment) Member, holding office for the time being, shall discharge the functions of the Presiding until a person appointed to fill such vacancy assumes the office of the President of the State Commission.
(10) When the President of the State Commission 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 State Commission shall discharge the functions of the President until the day on which the President resumes the charge of his functions.'
3. Mr. A.K. Mishra, learned Deputy Advocate General for the State has drawn our attention that a similar situation had arisen in the decision rendered in the case of Gulzarilal Agrawal v. The Accounts Officer, III (1996) CPJ 12 (SC), wherein the Apex Court interpreted the West Bengal Consumer Protection Rules, which are almost similar to the provisions which warrants our consideration and their Lordships in paras 17 and 18 of the judgment held as under:--
'17. After giving careful thought to the rival contentions raised before us, we are of the considered opinion that the relevant provisions which we have quoted hereinabove will have to be construed harmoniously to promote the cause of the consumers under the Act. As indicated earlier, the definition of member includes the President and a Member of a District Forum/State Commission. It is true that Sub-section (2) of Section 14 read with Section 18 require that every proceeding referred to under Sub-section (1) shall be conducted by the President of the District Forum/State Commission and atleast one member thereof sitting together, Section 2-A is consequential in the sense that every order made by the State Commission under Sub-section (1) shall be signed by its President and the Member or Members who conducted the proceeding. The procedure applicable to the District Forum is made applicable to the State Commission vide Section 18 with such modifications as may be necessary. Plain reading of Sub-sections (2) and (2-A) of Section 11 may support the view taken by the National Commission but if these provisions are read with Section 29-A of the Act were brought into force with effect from 18-6-1993 whereas Section 29-A was made applicable from 15-6-91. The Rules of 1987 were brought into force immediately. The complaint before the District Forum by the appellant was filed on 14-10-93. Therefore, all these amended provisions were very much brought into force when the complaint was filed. Sub-section (2) of Section 14 is a presumptuous provision where the President of the State Commission is functional but 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. In order to avoid such a situation, the State Government has framed the rules and Sub-rules (9) and (10) quoted hereinabove unmistakably provide answer to such a situation as in the present case. The only harmonious construction, that could be given to Sub-sections (2) and (2-A) that could be given to Sub-sections (2) and (2-A) of Section 14 read with Sub-rules (9) and (10) is that as and when the President of the State Commission is functional, he along with atleast one Member sitting together shall conduct the proceeding but where the President being non-functional, Sub-rules (9) and (10) of Rule 6 will govern the proceedings. Sub-rule (9) provides that where any such vacancy occurs in the office of the President of the State Commission, the senior-most (in order of appointment) Member holding office for the time being, shall discharge the function of the President until a person is appointed to fill such vacancy. This sub-rule is made with view to make the State Commission functional in the absence of the President and not to allow the State Commission to render non-functional for want of the President. It is well settled that every provision in the Act needs to be construed harmoniously with a view to promote the object and spirit of the Act but while doing so, no violence would be done to the plain language used in the section. It is this principle that needs to be made applicable while construing the provision of Sub-sections (2) and (2-A) of Section 14 read with Sub-rules (9) and (10).
18. The West Bengal Government has framed the Rules in the year 1987 and the object of Sub-rules (9) and (10) of Rule 6 appears to us to keep the State Commission functional in the absence of the President. From the impugned order it appears that the attention of the National Commission was not drawn to Sub-rules (9) and (10) of Rule 6. It also appears from the record that the validity of Sub-rules (9) and (10) of Rule 6 was never challenged. It is made clear that the view which we have taken in this appeal is on the premise that there is no challenge to the validity of the Rules and they hold the field.'
4. In our considered opinion, the law laid down in the aforesaid case shall apply in all fours to the present case and hence, we do not find any reason to declare the Sub-rules (9) and (10) of Rule 6 of the Rules as ultra vires.
5. Ordinarily we would have left the matter at that but as we find the petitioner has also prayed for quashment of Annexure P-1, we think it apposite that the case of the petitioner should be decided on merits. Accordingly, we quash the order passed vide Annexure P-1 and remit the matter to the respondent No. 2 to decide the controversy on merits, in accordance with law.
6. The writ petition is accordingly disposed of.
C.C. as per rules.