Heard Learned Counsel for the Applicant and the Learned Counsel for the Opposite Party. The present Transfer Application was moved in peculiar circumstances where the State Commission of Arunachal Pradesh does not have the quorum of the requisite Members for the State Commission to function and hear an Appeal, filed by the Applicant against an order of the District Commission. The prayer made in this Transfer Application is to transfer the Appeal of the Applicant before the State Commission of Assam by exercising powers under Section 62 of the Consumer Protection Act, 2019. While referring to an order passed by this Commission on 25.01.2024 in Diary No.46090/NCDRC/2023 M/s Tayo Enterprises Vs. New India Insurance Company Limited, it was observed that in view of the provisions of Section 62 of the Consumer Protection Act, 2019, since the power given is to transfer a complaint, which is an original trial, without the section mentioning an Appeal or revision, the Transfer Application for transferring an Appeal can not be entertained. It was also observed in the said order that a Complainant might avail of the remedies before a Constitutional Court in exercise of Writ Jurisdiction under Article 227 of the Constitution of India. The said order dated 25.01.2024 is extracted herein under:- "62. Transfer of cases. - On the application of the complainant or of its own motion, the National Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the District Commission of one State to a District Commission of another State or before one State Commission to another State Commission.'' A perusal of the said provision would indicate that it relates to the transfer of a complaint, and not of an appeal. The jurisdiction therefore under Section 62 for transfer of an appeal pending before a State Commission cannot be entertained in view of the terminology used in Section 62. In such an event, seeking an extraordinary remedy might be available to the Applicant before a Constitutional Court in exercise of writ jurisdiction or the supervisory jurisdiction under Article 227 of the Constitution of India keeping in view the pronouncements of the Apex Court in the cases of Ibrat Faizan Vs. Omaxe Buildhome Pvt. Ltd. 2022 SCC Online SC 620 and Universal Sompo General Insurance Co. Ltd. Vs. Suresh Chand Jain and Anr. 2023 SCC Online SC 877. The Apex Court in the case of Ibrat Faizan (Supra) went on to hold that the National Commission can be construed to be a tribunal and then has proceeded to observe with the aid of the Constitution Bench judgment in the case of L. Chandra Kumar Vs. Union of India (1997) 3 SCC 261 that the power of the High Court under Article 227 of the Constitution of India to exercise judicial superintendence is available against an order passed by the tribunal. Other judgments have also been referred to therein. The said judgment has been noticed in the subsequent judgment of the Apex Court in the case of Universal Sompo General Insurance Co. Ltd. (Supra), and after having extracted the order passed by the Apex Court in the case of Ibrat Faizan (Supra) went on to hold in para-38 as follows: "38. In the aforesaid view of the matter, we have reached to the conclusion that we should not adjudicate this petition on merits. We must ask the petitioner herein to first go before the jurisdictional High Court either by way of a writ application under Article 226 of the Constitution or by invoking the supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution. Of course, after the High Court adjudicates and passes a final order, it is always open for either of the parties to thereafter come before this Court by filing special leave petition, seeking leave to appeal under Article 136 of the Constitution." Accordingly, the Applicant is not remediless but he has to avail of the appropriate remedy in the light of the discussion made hereinabove.” It may be mentioned that the said Diary number was filed as a Revision Petition but it was neither entertained as a Revision or an Appeal, but at the same time, the argument that powers under Section 62 of the 2019 Act may be exercised was declined as per the order quoted above. In the present case, the applicant did take recourse to the constitutional remedy under the Act 227 of the Constitution of India, but the High Court of Gauhati declined relief. The order of the Gauhati High Court dated 12.03.2024 is extracted herein under:- “Heard Mr. T.Sunil, learned counsel for the petitioner as well as Mr. M. Kato, learned counsel for the respondent. The petitioner was the respondent before the District Consumer Dispute Redressal Forum. He did not appear before the Tribunal and, therefore, Tribunal passed ex parte order against him and directed him to pay an amount of Rs.6,40,000/- along with interest @ 6% per annum within one month from the date of the order. Thereafter, the petitioner filed an appeal before the State Commission, which is still pending. In the meantime, the District Consumer Dispute Redressal Forum started execution proceeding. The petitioner has filed objection before the Forum but the same was rejected. Now, the petitioner submits that the State Commission is not working now because of non-availability of Presiding Officer, Therefore, the present application under Section 227 of the Constitution of India has been filed challenging the order dated 30.06.2023 passed by the District Consumer Dispute Redressal Forum, Papumpare, Capital Complex at Yupia, Arunachal Pradesh. I have considered the submission made by the learned counsel for both the sides. There is no dispute that the appeal is still pending before the State Commission. Therefore, the proper Forum will be the State Commission who can pass necessary order in this matter. On the face of the record, there is nothing wrong in the impugned order warranting exercise of power under Section 227 of the Constitution of India. Therefore the petitioner is advised to move the State Commission where his appeal is presently pending for disposal. With the above direction, the civil revision petition is disposed of.” The High Court was of the opinion that the Petitioner should approach the State Commission itself for redressal. It is in these circumstances that noticing that the High Court had not entertained the Petition under Article 227, this Commission passed the following order on 22.03.2024:- “This is yet another case arising from the State of Arunachal Pradesh where a transfer has been sought of an Appeal filed by the Applicant before the State Consumer Disputes Redressal Commission assailing an order of the District Consumer Disputes Redressal Commission, Papum Pare, Yupia, Arunachal Pradesh. The facts as appear on record are that the Complaint being 2 of 2020 was instituted by the Complaint Mr. Mogom Ete alleging that he booked a Ford Freestyle Titanium vehicle with the Applicant / Appellant on a payment of Rs.10,000/-. The Complainant had further alleged that he had deposited a sum of Rs.3,90,000/- on the instructions of Mr. Anup Baruah who was arrayed as Opposite Party No.-2, General manager of the Appellant. It was further alleged that since the vehicle was not delivered to the Complainant he sought refund whereupon the Applicant tendered a sum of Rs.10,000/- only which was just the booking amount. The balance of payment was denied on the ground that it had not been received by the Applicant / Appellant at any point of time and the same had been deposited in the personal account of Mr. Anup Baruah who had no authority to receive or retain the same. The Complaint was contested and it was also stated therein that an FIR was lodged on 06.12.2019 against Mr. Anup Baruah but the allegations of payment of Rs.3,90,000/- was denied. Nonetheless the Complaint proceeded and since Mr. Anup Baruah did not appear he was proceeded ex-parte. At the time of final hearing the State Commission recorded that none of the Opposite Parties appeared and therefore the decision was rendered ex-parte concluding that the Complainant had proved his case of deficiency in service and therefore he was entitled for a refund of Rs.3,90,000/- together with other reliefs prayed for. The State Commission accordingly awarded refund of the said amount and for deficiency in service awarded a compensation of Rs.1,50,000/- together with Rs.50,000/- towards mental agony and harassment and Rs.50,000/- towards cost of litigation (Total Rs.6,40,000/-). Learned Counsel for the Applicant states that aggrieved by the said Order the Appellant preferred a statutory Appeal before the State Commission. Before the Appeal could be heard as the quorum was not available the Complainant moved for execution and on 30.06.2023 the Executing Forum has proceeded with the matter which will obviously result in compelling the Applicant / Appellant to comply with the Order of the District Consumer Disputes Redressal Commission, Papum Pare, Yupia. Since there was a want of quorum and the State Commission was not functioning the Applicant approached the Gauhati High Court by filing CRP No. 37 of 2023 that was disposed of on 12.03.2024 with the observation that since the Appeal is still pending before the State Commission therefore the proper Forum will be the State Commission to pass necessary Orders and consequently any relief under Section 227 of the Constitution of India was declined. It is in these circumstances that the present Application has been filed under Section 62 of the Consumer Protection Act, 2019 praying that the Appeal be transferred to the State Commission of Assam as the quorum of the State Commission, Arunachal Pradesh is yet not final. This issue of non-availability of the quorum had come up in another transfer application that was entertained before this Commission in diary no. 46090 of 2023 NCDRC/RP. In that case the Appeal had not yet been filed and therefore the Application was not entertained leaving it open to the Applicant to approach the State Commission, Arunachal Pradesh and file an Appeal, and then approach the appropriate Forum seeking the reliefs as prayed for. The Order dated 25.01.2024 passed in diary No. 46090 of 2023 NCDRC/RP shall be placed on the record of this Transfer Application as well. The question about the relief that can be entertained and granted in the present case would have to be assessed, as in the present case the Appeal has already been filed before the State Commission, and it is the transfer of the Appeal that has been sought to Assam State Commission. Learned Counsel contends that in terms of Section 62, even though the word ‘Complaint’ has been used and empowers this Commission to transfer the same, yet since an Appeal is a continuation of the Complaint, therefore the Appeal filed before the State Commission, Arunachal Pradesh can be ordered to be transferred to the State Commission, Assam by this Commission in exercise of the powers vested under Section 62 of the Act by construing and interpreting the provision accordingly. Apart from this it is also urged that since the Execution Application has been filed and the Appeal cannot be entertained due to want of quorum coupled with the fact that the High Court of Guahati has declined to grant any relief, it is urged that appropriate orders be issued in this Transfer Application. Prima facie the aforesaid facts virtually renders the Applicant without any remedy at this stage and therefore looking at the peculiar facts of this case, it would be appropriate to issue notice on this Transfer Application and also intimate the Government of the State of Arunachal Pradesh to redeem this situation which has emerged on account of non-fulfilment of Quorum of the State Commission, Arunachal Pradesh in terms of the provisions of the Consumer Protection Act, 2019. This therefore is the second case in recent times which has come up before this Commission and therefore in order to resolve this issue let notice be issued to the Complainant / Non-Applicant calling upon him to answer this Transfer Application by the next date fixed. It will be open to the Complainant to either physically appear before this Commission or through his Counsel or even connect to this Commission online for which a request can be made to the Registry of this Commission to enable the Commission to provide the aforesaid facility to the Complainant / Non-Applicant or to the Applicant as well. Since the execution proceedings are stated to have commenced it is provided that further proceedings of Execution arising out of the Order dated 28.10.2022 passed by the District Consumer Disputes Redressal Commission, Papum Pare, Yupia, Arunachal Pradesh shall remain stayed. A copy of this Order shall be placed on the record of the Appeal filed before the State Commission as also the Executing Forum where the execution is stated to have commenced. Notice will be dispatched to the Complainant through registered post. The Applicant shall also take dasti and serve the Complainant or to his learned Counsel by hand. Proof of service be filed by the next date fixed. Orders dasti. The Registrar, NCDRC shall dispatch a copy of this Order to the Secretary, Government of Arunachal Pradesh for information as well as to the Secretary, Consumer Affairs, Government of India to kindly issue necessary instructions to make the State Commission of Arunachal Pradesh functional. As prayed, list on 07.06.2024.” In response to this Transfer Application, the Counsel for the Opposite Party submits that the Transfer Application is not maintainable as according to Section 62 this Commission has the powers only to transfer a complaint and not an Appeal or a Revision. On the merits of the Transfer Application, Learned Counsel for the Opposite Party on instructions has conceded to the position that he has no objection to the interim stay protection granted to the Complainant being continued till the quorum of the State Commission of Arunachal Pradesh is constituted but the power of transfer may not be exercised for transferring the Appeal to the State of Assam. Learned Counsel for the Applicant submits that so long as the interim protection granted to it is allowed to continue, he has no objection to wait for the constitution of the quorum of the State Commission of Arunachal Pradesh for the hearing of this Appeal. Accordingly on this agreed position, with the consent of the Counsel for the parties, for allowing the interim stay of the execution proceedings to continue, this Application is disposed off in view of the aforesaid concessions on behalf of the both parties that the execution proceedings arising out of the order of the District Commission dated 28.10.2022 at Papum Pare, Yupia, Arunachal Pradesh shall remain stayed till the disposal of the Appeal no.2 of 2023 pending before the SCDRC, Arunachal Pradesh. The Appeal shall be heard as and when the Bench is constituted with the requisite quorum as per the provisions of 2019 Act. This order may be brought to the notice of the President/Acting President/In-charge President of the Commission to bring this order to the notice State Government as well, enabling them for making appointments so that the State Commission starts functioning at the earliest. Since this order has been passed in peculiar circumstances and concessions, the same shall not be treated as a precedent, leaving the question of law open to be decided in an appropriate case. Disposed off with the said observations. |
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