2009 Supreme(Kar) 379

High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. KUMAR
M/s. Shanthiniketan Housing Foundation & Others
Versus
Brig (Retd) J.N. Devaiah & Others
Writ Petition Nos. 700 of 2008 (GM-CON) C/w Writ Petition Nos.14927 of 2006, 16308 of 2006, 17104 of 2006, 17106 of 2006, 17513 of 2006, 17725 of 2006, 17767 of 2006, 18030 of 2006, 18212 of 2006, Writ Petition Nos. 1008 of 2007, 1010 of 2007, 1011 of 2007, 1077 of 2007, 1078 of 2007, 2723 of 2007,2978 of 2007, 3371 of 2007, Writ Petition Nos. 6857 of 2008, 8118 of 2008, 8395 of 2008 8453 of 2008, 8504 of 2008, 10572 of 2008, 10573 of 2008
Decided on : 19-06-2009

Headnote:CONSTITUTION OF INDIA - Articles 226 & 227: [N. Kumar, J] Prayer for striking down Section 27(2) and (3) of Consumer Protection Act - Held, Act made by the Legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. There is a presumption in law, that every statute and its provisions enacted by the legislature, be it by the Parliament or any other law making authority, are constitutional. Unconstitutionality of any statute should not be easily inferred. The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. Further, while considering the validity of the law the Court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the constitution the law can be sustained. That in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation. The rule of construction that if the statutory provision is susceptible or admits of two reasonably possible views then the one which would promote its constitutionality should be preferred on the ground that the legislature is presumed not to have intended an excess of its own jurisdiction, is subject to the further rule that it applies only where two views are reasonably possible on the statutory language. Viewed from this angle, there is no ground made out for striking down Section 27(2) and (3) of the Act. Hence, vires of the provisions of sub-Section (2) and (3) of Section 27 is upheld.

       CONSUMER PROTECTION ACT, 1986 - Sections 25 & 27: [N.Kumar,J] Applications filed under - Circulars issued by the Karnataka State Consumer Redressal forum - Procedure to be followed in dealing with Execution Petitions - Held, The State Commission has sent a circular to all the District Commissions making it clear that while dealing with an execution petition under the act for non-compliance of the order passed by the District Forum all that they have to do is to follow the principles of natural justice as a procedure is to follow the principles of natural justice as a procedure before orders are passed under Section 27 of the Act. Further, it categorically states the procedure prescribed under the Criminal Procedure is not to be strictly followed. Therefore, none of the district Forums as well as the State Forum have followed the procedure prescribed under the Code of Criminal Procedure as contemplated under Section 27(2) and (3) of the Act while passing the impugned orders. In view of the circulars issued by the State Commission making it clear that, it is not necessary to follow the procedure prescribed under the code in trial of offences under the Act, all the impugned order passed in these Writ Petitions are passed without following the procedure prescribed under the Criminal Procedure Code, 1973. In the circumstances, without going into the merits of the impugned orders, it is necessary to quash all these orders as it is contrary to the procedure prescribed under Sections 27(2) and (3) of the Act. Accordingly, all these impugned orders are quashed. All the cases are remitted back to the respective Forums and the Commission, with a direction to try the offence in accordance with the procedure prescribed under the Code of Criminal Procedure read with sub-Sections (2) and (3) of section 27 of the Act, on merits.

       CONSUMER PROTECTION ACT, 1986 - Section 27(2) & (3): [N. Kumar, J] Constitutional Validity of - Procedure followed by the District and State consumer forum in issuing Arrest Warrant against the petitioner - Whether procedure under sub-Sections (2) and (3) of Section 27 would constitute procedure established by law as contemplated under Article 21 of the Constitution - Held, The interpretation of the word ’trial’ will have to promote the purpose of Section 27 of the Act. Therefore, the word trial used in Section 27 of the Act, Therefore, the word trial used in Section 27 of the Act, is wide enough to cover every kind of inquiry and trial and the word ’trial’ in that Section has not been used in any limited or restricted sense. The power to be exercised by the Forum and the Commission is that of the power of Judicial Magistrate of I Class under the Code. Therefore, it cannot be said the personal liberty of a person is sought to be taken away without following the procedure established by law. As the proviso to Section 27 did not provide any procedure before a sentence of imprisonment could be imposed it was struck down as unconstitutional. After striking down the said offending proviso High Court made it clear that the offences under the Act could be dealt with, tried and concluded in accordance with the provisions of the Code of Criminal Procedure. It is in this background sub-Section (2) and (3) of Section 27 was introduced by way of amendment by the Parliament conferring on the Forum the powers of a Judicial Magistrate of I Class under the Code to try the offences under the Act. Therefore, it cannot be said that no procedure is prescribed and the procedure prescribed is not a procedure established by law.