1 wp-5881-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO. 5881 OF 2010 Shri Dinkar Bapuso Patil & Ors. ..Petitioners Vs. The State of Maharashtra & Ors. ..Respondents Mr. Amit Borkar for the petitioners. Mrs. M.P. Thakur, AGP for respondent Nos. 1, 3 and 4. Mr. Girish Kulkarni and Mr. Ashok Varma for respondent No.2. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATE: 19th October, 2010. P.C. We have heard Mr. Borkar, the learned Counsel for the petitioner. In this petition filed under Article 226 of the Constitution while challenging the orders passed by the Kolhapur District Consumer Disputes Redressal Forum, on 22nd August, 2008 and 6th July, 2009 in Complaint Nos.284 to 286 of 2008 and 142 of 2009, the petitioners have prayed for a writ of prohibition against the said Forum so as not to entertain any complaint filed under the Consumer Protection Act, 1986 (“the Act” for short). In addition, the petitioners have also brought in question the constitutional validity of Section 15 of the Act. 2 wp-5881-10 2. It is submitted by Mr. Borkar that the petitioners are the managing committee members of the respondent No.6-Shree Namdeo Nagari Sahakari Patsanstha Maryadit registered under the Maharashtra Co- operative Societies Act, 1960 and the complainants who are respondent Nos. 7 to 12 are the depositors of the said society. Mr. Borkar, the learned Counsel for the petitioners referred to the definitions of the terms like “consumer”, “complainant”, “trader” and “unfair trade practice” as defined in the said Act and submitted that the depositors could not be termed to be a consumer and there is no question of deficiency in service, in returning their fixed deposit amounts on maturity along with the interest. For these reasons as per Mr.Borkar the Consumer Forum at the District level and which is known as District Forum has no jurisdiction to entertain a complaint filed under Section 12 of the Act. As per Section 15 of the Act any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed, but it appears that the petitioners are aggrieved by the second proviso thereunder which reads as, “Provided further that no appeal by a person, who is required to pay 3 wp-5881-10 any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of t5hat amount or twenty-five thousand rupees, whichever is less”. Mr. Borkar submitted that the second proviso so added by the amending Act 62/02 and brought into force from 15th March, 2003 puts an unreasonable restriction on the rights to appeal and even in a case where the District Forum had no jurisdiction to entertain a complaint, the aggrieved party by the order of the District Forum would be required to pay fifty per cent of the decretal amount or twenty five thousand rupees whichever is less. This condition as per Mr. Borkar is unconstitutional and puts an unresaonable restriction on the right to file an appeal. Mr. Borkar referred to some decisions in support of his challenge to the constitutional validity of Section 15 of the Act as well as for seeking a writ of prohibition against the District Consumer Forum. 3. The depositors who are impleaded as respondent Nos. 7 to 12 are undoubtedly the members of the respondent No.6 society and from time to time they had invested their savings with the said society for a fixed period. On maturity of the deposits they were entitled for refund of the deposited 4 wp-5881-10 amount along with the interest and they could not be paid the said amount may be on account of the precarious financial conditions of the respondent No.6 or on account of the mismanagement of the said society. The deposited amount varied from Rs.237/- to Rs.25,000/- and the deposits are matured in the year 2006, 2007 as well as in early part of 2008. 4. Undoubtedly, the issues which are raised by Mr. Borkar namely whether the depositors could be called “consumers” is defined under the Act, whether there could be any deficiency of service between the society and its managing committee members on one hand and the depositors on the other hand are the issues which can be adjudicated upon by the State Commission in an appeal filed under Section 15 of the Act. 5. What remains, therefore, is the challenge to the constitutional validity of the second proviso added to Section 15 of the Act. This issue is no longer res integra so far as this Court is concerned, in view of the order passed in Writ Petition No.1714 of 2009 on 12th November, 2009. This Court (Division Bench) in Writ Petition No.1714 of 2009 referred the decisions in the case of (1) Seth Nand Lal and Anr. vs. State of Haryana 5 wp-5881-10 and Ors., 1980 (Supp.) S.C.C. 574, (2) Anant Mills Co. Ltd. vs. State of Gujrat 1975 (2) S.C.C. 175, (3) Vijay Prakash D. Mehta & Anr. vs. Collector of Customs (Preventive), Bombay, (1988) 4 SCC 402 (4) State of Tripura vs. Monoranjan Chakraborty & Ors. (2001) 10 SCC 740 and a decision of this Court in the case of Kausalya Sampat vs. Vasant Sahakari Bank Ltd. & Ors., 2004 (6) Bom. C.R. 661, and held that challenge to the second proviso contending that it is violative of the guarantee under Article 14 of the Constitution was totally devoid of any substance. This Court held that there are appellate provisions in various Statutes laying down condition of pre-deposit, some vesting discretion in the Appellate Authority to dispense with the condition of pre-deposit, some not doing so, all those provisions have been upheld by the Supreme Court from time to time. This decision in Writ Petition No.1714 of 2009 is the complete answer to the petitioners' challenge to the Constitutional validity of the second proviso added to Section 15 of the Act and the said challenge is without any substance. 6. Hence the petition is rejected with liberty to the petitioners to file an Appeal under Section 15 of the Act and if such an Appeal is filed within a period of two weeks from today, it be heard on its own merits and by 6 wp-5881-10 treating it as to have been filed within limitation and all the issues are left open. ( U.D.SALVI, J.) (B. H. MARLAPALLE, J.)