Samaresh Banerjea, J.
1. In the instant writ application the writ petitioner Company has challenged the ad interim order dated 28th June 1995 passed by the State Consumer Dispute Commission, West Bengal being the respondent No. 1 (hereinafter referred to the State Commission), on the ground of total lack of jurisdiction of the State Commission to pass such order. By the aforesaid ad-interim order the State Commission restrained the petitioner Company from selling their product of toilet soaps, detergent etc in the Indian market and abroad till disposal of the case.
2. The main challenge of the petitioners of the aforesaid ad interim order is on the ground of total lack of jurisdiction of the state Commission to pass interim order.
3. The other main ground of challenge is that the said order is void as the order was to passed and signed by the President of the Commission but only by the other two members. In course of hearing it was admitted by the parties that the proceedings in question was initiated and the aforesaid order was passed by the two members of the State Commission in absence of the President who has reportedly not been attending the Commission being out of the station.
4. When the writ petition was moved, prima facie being satisfied that the impugned order is totally without jurisdiction as the State Commission does not have the power to pass any interim order or ad-interim order, following the decision of the Supreme Court reported in the case of Morgan Stanley Mutual Fund v. Kartik Dal reported in : (1994)4SCC225 and the case of In Re : State Transport Authority, reported in 1991(2) Calcutta High Court Notes, page 131, an interim order for a limited period was granted on 30th June 1995 after dispension of service under Rule 27 because of the urgency of the situation. The respondent No. 2 thereafter appeared through its Learned Advocate and opposed the prayer to extend the interim order contending, inter alia, that the writ application is not maintainable because of existence of alternative remedy of appeal under Consumers Protection Act 1986 itself.
5. In course of such hearing both the parties agreed that since only pure questions of law are involved in the writ petition the same itself can be disposed of on merits without any affidavits and accordingly both the parties addressed the Court in full on the aforesaid questions of law and also submitted the written notes of argument.
6. But before going into the merits of the case it is necessary to dispose of the preliminary objection which has been raised by the respondents as to the maintainability of the writ petition. It has been contended by the respondents, inter alia, because of presence of alternative remedy under the Consumers Protection Act 1986 by way of appeal and the said Act being a complete code itself and the Appellate Authority under the said Act being also competent to go into the question of jurisdiction, the petitioners cannot maintain the present writ petition. In support of their submissions the respondents, inter alia, have relied on the decision of Division Bench of this Court presided over the Hon'ble Mr. Justice A.M. Bhattacharjee Chief Justice, as His Lordship was there, in the case of Smt Saswati Mehrotra (nee Mukhpadhyay) v. State of West Bengal and Ors. reported in 1994(1) Calcutta High Court Notes, page 167, and decision of Satyabrata Singh, J in the case of ANZ Grindlays Bank and Ors. v. President, Dist. Consumers Disputes Redressal Forum and Ors. reported in 1995(I) Calcutta Law Journal, page 169. In the aforesaid Division Bench decision it has been held, inter alia, because of provisions of alternative remedy in the Consumers Protection Act, the writ Court should not ordinarily interfere with an order of the Consumers Forum and the practice to move the writ Court against every order of the Forum 'at the drop of hat' is to be discouraged. In the case of Grindlays Bank and ors. v. Consumers of District Forum, Satyabrata Sinha, J under the facts and circumstances of the case was of the view that the question which was raised in the writ Court should be raised before the Forum itself as the said Act is a complete code in itself.
7. No authority is however, really needed in support of the well settled principle that in presence of alternative remedy the writ Court will not ordinarily interfere. Equally well settled however, is also the principle that existence of alternative remedy is not an absolute bar for the writ Court to interfere in a fit and proper case and existence of alternative remedy as a bar to the exercise of jurisdiction by the writ Court is more of a public policy than a Rule and the Writ Court is entitled to use its discretion and interfere even when alternative remedy exists in a fit and proper case, like lack of jurisdiction, violation of principles of natural justice or nullity of the impugned order.
8. Facts and circumstances of this particular case, in my view, certainly justify interference by the writ Court even though alternative remedy exists under the Act.
9. Points which have been raised by the petitioners, namely total lack of jurisdiction of the State Commission to pass an interim order and the impugned order also being a nullity not having been signed by the President, such matters go at the very root of the proceedings and if sustained makes the entire proceedings and the impugned order nullity and void ab initio and such questions really required interpretation of the relevant provisions of the Consumers Protection Act, 1986.
10. Interference by the Writ Court in my view, is further necessary under the facts and circumstances of the case as it appears to this Court the decision of the Supreme Court in the aforesaid case of Morgan Stanley Mutual Fund and also of this Hon'ble Court in the case of In Re : State Transport Corporation have not gone down to the State Commission and the Commission inspite of the pronouncement of a law by the Supreme Court as to the lack of power of the Commission to grant any interim order or even ad-interim order, is proceedings contrary to the aforesaid pronouncement of law which is binding upon it.
11. In view of the clear pronouncement of the Hon'ble Supreme Court in the aforesaid case of Morgan Stanley Mutual Fund that the Commission or the District Forum does not have the jurisdiction to pass any interim order or even ad-interim order the impugned order passed by the State Commission granting ad-interim relief to the complainant before the State Commission ex facie is without Jurisdiction and therefore is nullity and void. In the said case of Morgan Stanley Mutual Fund the Hon'ble Supreme Court while examining Section 14 of the said Act clearly held that there is no power under the Act to grant any interim relief or even ad-interim relief and only final relief could be granted under the said Act. The impugned order passed by the State Commission therefore by way of granting ad- interim relief to the complainant before the State Commission is, totally without jurisdiction and is contrary to the law laid down by the Hon'ble Supreme Court and therefore cannot be sustained.
12. The contention of the respondent No. 2 that the aforesaid decision of Hon'ble Supreme Court will not be applicable in the instant case as Section 14 has undergone a change by the Consumer Protection (Amendment) Act 1993, is wholly misconceived. It is submitted on behalf of the respondent that when the Supreme Court was considering and interpreting Section 14 of the Consumers Protection Act 1986, it did not contain Clause 'E' to Sub-section 1 of Section 14 which was inserted by the aforesaid amendment Act with effect from 18th of June 1993; and because of the aforesaid insertion of the said amended Clause the Commission has now the power to pass interim order.
13. It is however, beyond the comprehension of this Court as to how the aforesaid amendment will nullify the aforesaid pronouncement of law of the Supreme Court in the said case of Morgan Stanley Mutual Fund. The various Clauses under Sub-section 1 of Section 14 enumerates one or more of the things which an opposite party before the Commission may be required to do by the commission if after the proceedings conducted under Section 13 the Commission is satisfied that the goods complained against suffers from any of the defects specified in the complaints or any of the allegations contained in the complaint about the services are proved. Prior to the aforesaid amendment of the said Section by the 1993 amendment which came into operation from 18th of June 1993, the said Sub-section contained four Clauses, namely Clause a to Claused. With effect from 18th of June 1993, because of the aforesaid amendment 5 more Clauses have been inserted. Each of such newly added clauses by the aforesaid amendment however, also merely enumerates the thing or things which an opposite party may be required by the Commission to do after the proceedings conducted under Section 13 if the Commission is satisfied that the goods complained against suffer from any of the defects specified in the complaint or any of the allegations contained in the complaint is proved. Neither Section 14 of the said Act nor any other provision of the said Act empowers the Commission to direct the opposite party to do such things contained in the various Clauses under Sub-section 1 of Section 14 of the said Act including the clause (e) of Section 14 of the said Act by way of interim order or ad-interim order. On the contrary Sub-section 1 of Section 14 makes it absolutely clear that such things the opposite party can be directed by the Commission to do only if the Commission or the District Forum as the case may be is satisfied after the conclusion of the proceedings under Section 13, that the goods complained of suffer from the defects specified in the complaint about deficiency services or allegations, in the complaint are proved. The question of such satisfaction by the commission and proof of such allegations can only arise after the final decision of the Commission and not at the initial stage when the complaint is filed.
14. The further contention of the respondent No. 2 that such power to grant interim relief, is implied and in absence of such power to grant interim relief, the proceeding itself may become infructuous and the reference to various decisions as the inherent power of the Court or under Order 39 Rule 1 of the Code Civil Procedure is also misconceived and emanetes from the wrong conception that the consumer Forum or a Commission is a Court, which it is not. The Commission not being a Court, the question of exercise of inherent power to grant interim relief or ad-interim relief there/or cannot arise. The fact that only certain provisions of the Civil Procedure Code and not all will be applicable to a proceedings before the said Forum or Commission because of provision under Section 13(3) of the said Act, which provides, inter alia, that the Forum shall have the same power as vested in Civil Court under the Code of Civil Procedure while trying a suit in respect of matters like summoning and enforcing attendance of any defendant or witness and examining the witness under oath, discovery and production of any documents reception of evidence on affidavits requisitioning of report of the concerned analysis or test from the appropriate laboratory, issuing any Commission for examining of any witness and any other matter which may be prescribed, none of which includes the power to grant temporary injunction under order 39 of the Code of Civil Procedure, indicates that the Commission lacks such power.
15. It has also been contended by the respondents that no interference is called for with the impugned ad-interim order passed by the Commission as subsequently to passing such order the Commission itself by another order has kept the aforesaid ad-interim order in abeyance until further orders. Such contention of the respondents however is not tenable. If the Commission does not have the jurisdiction to grant any interim relief or even ad-interim relief the main ad-interim order passed by the Commission is wholly without jurisdiction and therefore the same is void ab initio and nullity. The question therefore of keeping such orders in abeyance until further order does not and cannot arise. That apart by the subsequent order the Commission has not recalled and or rescined the order but merely has kept the same in abeyance.
16. As regards the other contention raised by the petitioner, examination of the various provisions of the Act makes it abundantly clear that entertainment and disposal of a complaint has to be made by the President of the Commission sitting with at least one member and the relevant provision of the Act in respect thereof are mandatory. Section 16 of the said Act which deals with the composition of the State Commission provides that each State Commission shall consist of a person who is or has been a judge of a High Court, appointed by the State Government who shall be its President and two other members. Section 18 provides that the provision of Section 12, 13 and the Rules made thereunder for disposal of complaints by the district Forum shall, with such modification as may be necessary be applicable to the disposal of dispute by the State Commission. Sub-section 2 of Section 14 of the said Act provides that every proceeding referred to in Sub-section 1 of Section 14 shall be conducted by the President of the district Forum and at least one member thereof sitting together provided that where the member for any reason is unable to conduct the proceeding till it is completed the President and the other members shall conduct such proceeding denovo.
17. Sub-section 2A of said Section 14 provides that every order made by the District Forum Under-Sub-section 1 shall be signed by its President and the member or members who conducted the proceedings.
18. The aforesaid Sub-section 2 of Section 14, makes it clear that every proceedings referred to in Sub-section 1 of Section 14 which would also includes proceeding before the State Commission, shall have to be conducted by the President silting with at least one member and the order passed by the Commission must be signed by the President and the member or members who conducted the proceedings alone with the President. The proviso to Sub-section 2 of Section 14 further makes it clear that conducting the proceedings by the President is mandatory and his presence cannot be dispensed with or he cannot be replaced by any one and he has to conduct the proceeding siting with at least one member. The President along with at least one member of the Commission or the District Forum as the case may be will form the quorum of the same. Presence of the President for conducting the proceeding and his signature in the order is therefore a must.
19. The fact that the legislature intended that the presence of the President in conducting such proceedings is a must will be further evident from Section 18A of the said Act which was introduced by the Consumer Protection (Amendment) Act 1991 with effect from 15th June 1991, which provides, inter alia, when the office of the President of the District Forum or the State Commission is vacant or when such President is by reason of absence or otherwise unable to perform duties of his office, the duties of his office shall be performed by such persons who is qualified to be appointed as President of the District Forum or State Commission as the case may be, to be appointed by State Government for the purpose. Since under Section 14 of the said Act the presence of President in conducting any proceeding is a must, the legislature has empowered the State Government of fill up a vacancy in the office of the president or to appoint someone being qualified to be appointed as a President when the President is absent, obviously for the reason that the work of Commission may not suffer.
20. Because of the aforesaid provision of the Act in my view, no proceedings of such a commission or District Forum can be conducted in absence of President.
21. The writ petitioner has fortified his submission in support of the above mentioned contention by relying on a few decisions of the National Consumer Disputes Redressal Commission. In the case of M/s. Modern Rice Milk Machinary Company v. Susil Kr. Mondal reported in III (1992) Consumer Protection Journal 12(NC) it has been held and in my view correctly, inter alia, that under the provision of Section 14 of the Consumer Protection Act after its amendment in 1991 the provision for disposal of a complaint by the District Forum consisting of President and at least one other member is mandatory and the Proceeding which was conducted at the District Forum by only one member siting singly and the appeal by the Commission only by the President alone were bad. Same view has been taken in the case of Baroda Municipal Corporation v. Akhil Bharatiya Grahak Panchayet Ltd. reporters in 1 (1993) Consumer Protection Journal 9(NC). The same view has also been taken by the West Bengal State Consumer Dispute Redressal Commission Calcutta and Behar State Consumer Disputes Redressal Commission, Patna in the case of West Bengal State Electricity Board v. Paharimata Cold Storage and in the case of DET Majaffarpur v. Agricultural Marketing Board respectively.
22. It has been contended by the respondents that in the absence of President, two members of the Commission can conduct the proceedings and can sign the order and such a proceeding an order passed therein will not be a nullity and the decisions referred to above will not be applcable in view of the 1993 Amendment of the Act which has introduced Section 29A of the Act and by virtue of Rule 6(9) and Rule 6(10) of the West Bengal Rules framed under the said Act.
Aforesaid Section 29A is quoted hereunder :-
'Vacancies or defects in appointment not to invalidate orders '- No act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof.
23. Section 29A of the Act however cannot be read independently, but has to be construed with reference to other provisions of the said Act and the statute itself has to be read as a whole to understand the correct meaning and scope of said Section 29A. Since Section 14 makes it abundantly clear that the provisions for conducting of the proceeding by President sitting together with at least one member of the Commission and presence of their signature in the order, is mandatory, Section 29A has to be read harmoniously with the aforesaid Section 14 of the said Act and not in contradiction and derogation thereof, following the well established principles of interpretation of statute. The interpretation which is sought to be made by the respondents of Section 29A, namely absence of a President in a proceeding and his signature in the order could not make the proceeding nullity, will be wholly inconsistent with provision of Section 14 of the said Act and in negation thereof which makes the presence of the President at least with one member in a bench as well as his signature in the order as mandatory. The same however could never be intention of the legislature.
24. If Section 29A is read harmoniously with Section 14, the same will make it immediately clear that the provision of the said Section deals with only such a situation when there is a vacancy in the office of a member or there is defect in the constitution of the District Forum of the State Commission. The same does not guard against a situation when the office of the President is vacant or for some reasons the President is absent and is unable to perform his duties. Mr. Palit appearing for the respondents has drawn the attention of the Court to the amended Clause jj of Section 2 of the said Act which provides that 'member' includes the President and a member of the Commission and has contended that in view of such definition of member Section 29A also deals with vacancy of President.
25. Even if reference to member in Section 29A includes Prsident, the same really does not help the respondent. Section 29A deals with as pointed out hereinbefore vacancy in the office of members or any defect in the constitution. Vacancy in an office, which is caused by death, resignation or retirement of the incumbent, is not absence and in the instant case, we are really concerned not with the vacancy but with absence of the President. Absence of the President is also not defect in the constitution of the Commission. It is Section 18A of the said Act which really deals with a situation when the office of the President is vacant or the President because of absence or otherwise is unable to perform his duties. Under the provision of the said Section in such a situation it is for the State Government to appoint a person, to perform the duties of such office, who is qualified to be appointed as a President of the District Forum or State Commission as the case may be.
26. It is therefore obvious that Section 29A prevents the proceeding and orders of the Forum or the Comission from becoming invalid only because there might have some defects in the Constitution of the Commission, for example when the Commission is constituted by the President and one member instead of two members as required under Section 16 of the said Act or members of the Commission were found to be lacking the requisite qualification to become a member and the like. It also quards against a situation where after the conclusion of the proceeding the office of the President falls vacant because of his death or resignation or retirement for which he is unable to sign the order. There cannot be any other reasonable interpretation of Section 14 and other provisions of said Act.
27. The fact, Section 29A does not contemplate a situation of absence of the President will be further evident from the Act that under Section 18A of the said Act, which was inserted Act by the 1991 Amending Act, if there is a vacancy in the office of the President, or if the President because of absence or otherwise is unable to perform his duties, it is incumbent upon the State Government to appoint some one who is qualified to be appointed as a President of the Commission for performing the duties of the President, so that the work of the Commission does not suffer.
28. It is true that the Rules 6(9) and 6(10) of the West Bengal Rules provides that in absence of the President the senior most of the members of the State Commission shall discharge the function of the President until a person is appointed.
29. The aforesaid provision of the said Rules however, in my view, are wholly contrary to the provision of Section 14(2), 14(2A) and Section 16 and 18A of the Act. Section 16 clearly lays down who can be appointed as a President of the Commission, namely, a person who is or has been a Judge of High Court and his appointment has to be made after consultation of the Chief Justice of High Court. The qualification of two other members are also laid down under Section 16(b) of the said Act. As pointed out hereinbefore Sub-section 2 of Section 14 makes it clear that conducting the proceeding by the President and his presence in the proceeding with another member is must as also his signature in the order along with member with whom he conducted the proceedings. Section 18A empowers the State Government to appoint a person to act as the President in case of vacancy in the office of the President or in his absence who is qualified to be appointed as a President. Under Section 16(a) only a person who is or has been a Judge of High Court is qualified to be the President of the State Commission. The aforesaid Provision of Act therefore clearly provides who can be the President of the Forum and even Under Section 18A when the office of the President of the District Forum or of the State Comission, as the case may be, is vacant or when any such President is, by reason of absence or otherwise is unable to perform the duties of his office, the duties of such office can be performed only by such person, who is qualified to be appointed as President of the District Forum or, as the case may be of the State Commission as the State Government may appoint for the purpose.
30. The aforesaid provision Rules 6(9) and 6(10) empowers the senior most member to function as President in absence of the President or in case of vacancy in such office is therefore wholly contrary to and overrides Section 14(2), 16(a) and Section 18A as admittedly the members of the Commission are not qualified to be appointed as a President. That apart because of the provision of Section 18A of the said Act it is only the State Government which is empowered, in case of absence or to appoint such vacancy some one to perform such duties as a temporary measure who is qualified to be appointed as the President. But the said Rules empower the senior most member of the Commission to perform the duties of the office of the President. Such provision of the said Rule therefore really do not supplement aforesaid Section, 14, 16 or 18A of the said Act but clearly subplant and override the same. Such Rule however being a piece subordinate legislation cannot override aforesaid provision of the Act and the said Rules therefore are clearly contrary to the aforesaid provision of the Act and cannot prevail over the Act.
31. For the reason stated above the impugned order passed by the Commission cannot be sustained.
32. I am not oblivious of the position that in such a situation of absence of the President if the proceeding cannot be conducted the same will obviously create difficulty and inconvenience to the members of the public. But such difficulty and inconvenience cannot empower the members of the Commission or the District Forum as the case may be to usurp any power which they do not possess. If such a situation arises creating such difficulty it is for the State Government to take prompt action under the provision of Section 18A of the said Act by appointing some one who is qualified to be appointed as the President.
33. Dr. Banerjee appearing for the petitioner has also complained that even a copy of the complaint was not served upon the petitioner. He has also invited this Court to determine as to the dispute referred to in the complaint quite at all be entertained by the Commission as according to Dr. Banerjee the same does not come within the meaning of Consumer Disputes.
34. I am however not inclined to go into such question at all in view of my decision as aforesaid. Since I am of the view that the impugned order is a nullity both because of the reason that the Commission has no jurisdiction to pass ad-interim order and the entire proceeding and the order is vitiated as the proceeding was conducted in absence of the President by two other members of the Commission and the order was signed by them and not by the President and the entire proceeding is therefore quashed.
35. The writ application therefore succeeds. Impugned order dated 28th June 1995 passed by the State Consumer Disputes Redressal Commission in SC Case 297/0/95 as also the entire proceeding in the aforesaid case are hereby quashed.
It is however made clear, this order will not prevent the respondent to file a fresh complaint on the self same cause of action if the respondents is so advised in accordance with law and in the event such application is filed the same shall be entertained and tried by the President of the Commission sitting with at least one member thereof and if the present petitioner is of the view that such a complaint does not raise any Consumer Disputes within the meaning of the Act the petitioner will be at liberty to raise such point before the Commission itself.