1 Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1035 OF 2009 R.B. Upadhyay ) having his office at ) 216-B, Rolex Shopping Centre, ) Station Road, Goregaon (West) ) Mumbai-400 062. )..Petitioner Vs. State Commission for Consumer ) Disputes, Administrative ) Building, Near Motor Accident ) Tribunal, Mumbai. ) 2.Vodafone Essar Ltd., ) Peninsula Corporate Park, ) Ganpatrao Kadam Marg, ) Lower Parel, Mumbai-13, India ) 3.State of Maharashtra through ) 2 Govt. Pleader, P.W.D. Building, ) High Court, Mumbai-400 032. )..Respondent Mr.Ram Upadhyay, i/b. Law Competere Consultus for the Petitioner. Mr. P.S. Anand, for Respondent No.2. CORAM : FERDINO I. REBELLO & J.H. BHATIA, JJ. JUDGMENT RESERVED ON 4TH MARCH, 2010. JUDGMENT PRONOUNCED ON: 4TH MAY, 2010 JUDGMENT (PER FERDINO I. REBELLO, J.): Rule. By consent of parties heard forthwith. 2. The petitioner had filed a complaint against respondent No.2 for deficiency of service on 20 th March, 2008 and had also applied for interim relief. By way of an interim order on 24 th March, 2008 the learned Consumer Redressal Forum was pleased to pass the following order;- “No cause is shown by Opponent. Hence the application is allowed. The Opponent shall not disconnect the mobile connection till the decision of this Complaint”. 3. Inspite of this order restraining the respondent No.2 from disconnecting the mobile connection, according to the petitioner, it was 3 disconnected, whereas according to the respondent No.2 due to oversight in respect of one of the numbers bearing No.9820376241 the outcall facility was barred as the system was showing continuous dues against that number. The same was rectified on 26 th September, 2008 on receiving the order dated 24 th September, 2008. The order dated 24 th September, 2008 came to be passed on an application moved by the petitioner for attachment for failure to comply with the order dated 24 th March, 2008. A show cause notice was issued to respondent No.2 on 26 th September, 2008 on which date according to the respondent No.2 they had complied with the direction. 5. It is necessary for us to refer to the subsequent proceedings arising from this order. The State Commission by its order dated 27 th April, 2009 held that the order cannot be said to be illegal as on the face of it, as it was passed considering breach of the order passed by the Forum below and as the order stands complied with there is no propriety to allow the impugned order to stand and accordingly set aside the order dated 24 th September, 2008. Against that order the petitioner had filed a Writ Petition before this Court being Writ Petition No.564 of 2009, which was dismissed on 6 th 4 January, 2010 for non-prosecution. 6. Petitioner simultaneously had also filed an application under Section 27 of the Consumer Protection Act, 1986, which hereinafter shall be known as the Act. That application came to be heard by the Consumer Dispute Redressal Forum. By order dated 24 th September, 2008 the Forum took the view that a complaint would not be maintainable against an interim order passed under Section 25 of the Consumer Protection Act. The petitioner preferred a Revision before the State Commission, which by its order dated 7 th January, 2009 confirmed the view taken by the District Consumer Forum and held that no complaint would be maintainable under Section 27 on the ground that Section 25 provides a specific provision for enforcement of interim orders. The application, therefore, under Section 27, it held was not maintainable. It is this order which is the subject matter of challenge before this Court. 7. The respondent No.2 has filed an affidavit of Jitesh Dhingra. One of the contentions raised is that the petitioner has an efficacious remedy 5 available before the National Commission under Section 21(b) of the Act and consequently this Court ought not to entertain this petition in the exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. Secondly, it is submitted that the respondent No.2 has complied with the order and as such the cause of action no longer survives and on this count also this Court ought not to exercise its extra ordinary jurisdiction. Lastly, it is set out that the view taken by the District Forum and the State Commission is the only possible view considering the expression “interim orders” which are not specifically included in Section 27 of the Act. The provision being penal should be strictly construed. 8. With that we may gainfully refer to the two relevant provisions of Consumer Protection Act which are Sections 25 and 27 as they stood when the Act was enacted, and which read as follows:- “25. Enforcement of orders by the Forum, the State Commission or the National Commission: Every order made by the District Forum, the State Commission or the National Commission, may be enforced by the District Forum, the 6 State Commission or the National Commission as the case may be, in the same manner as if it were a decree or order made by a court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the court within the local limits of whose jurisdiction- (a) in the case of an order against a company, the registered office of the company is situated, or (b) in the case of an order against any other person, the place where the person concerned voluntarily resides or carries on business or personally works for gain, is situated, and thereupon, the court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution. 27. Penalties Where a trader or a person against whom a complaint is made 2[or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as 7 the case may be, such trader or person 2[or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both: PROVIDED that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than minimum term and the amount lesser than the minimum amount, specified in this section.” 9. The Sections as they now stand, pursuant to the Amendment of the Act by Act 62 of 2002 and other amendments read as under:- “25. Enforcement of orders of the District Forum, the State Commission or the National Commission –(1) Where an interim order made under this Act, is not complied with, the District Forum or the State Commissioner or the National Commission, as the case may be, may order the property of the person, not complying with such 8 order to be attached. (2) No attachment made under sub-section (1) shall remain in force for more than three months at the end of which, if the non-compliance continues, the property attached may be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto. (3) Where any amount is due from any person under an order made by a District Forum, State Commission or the National Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.” “27. Penalties.-- (1) Where a trader or a person against whom 9 a complaint is made [or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person [or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both: (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the District Forum or the State Commission or the National Commission, as the case may be, shall have the power of a Judicial Magistrate of the first for the trial of offences under this Act, and on such conferment of powers, the District Forum or the State Commission or the National Commission, as the case may be, on whom the powers are so conferred, shall be deemed to be a Judicial Magistrate of the first class for the purpose of the Code of Criminal Procedure, 1973 (2 of 1974). (3) All offences under this Act may be tried summarily by the District Forum, State Commission and National Commission, as the case may be.” 10. Before we answer the main questions, we may first deal with the 10 preliminary objection raised on behalf of the respondent No.2 that as a Revision is available before the National Commission, this Court ought not to exercise its extra ordinary jurisdiction. Section 21(b) on which reliance is placed, reads as under:- “21. Jurisdiction of the National Commission (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity” Thus from the clear and literal language of Section 21(b) the revisional jurisdiction can only be if a consumer dispute is pending before or has been decided by the State Commission. In other words the National Commission would have no jurisdiction if the order is passed in exercise of the Appellate power or Revisional jurisdiction exercised by the State Commission under Section 17(b). The power under Section 21(b) is in 11 respect of a complaint filed before the State Commission. In our opinion, therefore, the first contention as urged is devoid of merit. 11. The issue, however, raised by the petitioner is one of vital importance, as to whether an interim order passed by the District Consumer Forum can be the subject matter of an application under Section 27 of the Act. Once the State Commission has taken a view, that a view would be binding on the State Commission unless a larger Bench takes a different view. At any rate, in our opinion, considering the importance of the issue, this would be a fit case to exercise our extra ordinary jurisdiction. 12. The principal question for our consideration is whether under Section 27 of the Act, no complaint is maintainable if the order is an interim order and only a final order can be the subject matter of a complaint under Section 27 of the Act. 13. Initially when the Act was enacted there was no power to grant any interim relief. Similarly the procedure for enforcement of an order of the District Forum, the State Commission or the National Commission was to enforce it as a decree by the aforesaid forums and on their inability, to execute through the Court exercising jurisdiction to execute decrees as set 12 out in this Section. The Section as now substituted apart from conferring power to grant interim relief has provided for enforcement of that interim order under Section 25(1) and (2). Similarly, the procedure for recovery of the amount pursuant to the final order passed by the above forums, is to recover it as arrears of land revenue on a certificate being issued by the respective Forums. The amendment has also introduced section 13(3-B) whereby power was conferred on the District Forum to pass interim orders. Similarly, by virtue of Section 18 the provision of Section 13(3-B) conferring power to grant interim orders was also made applicable to the State Commission. By referring to these provisions, it is sought to be contended that there is a distinction between the expression “interim order” and “order”. As Section 27 uses the expression “order” and considering the penal character of the provisions, it must be presumed that the Legislature knowingly excluded interim orders from the purview of Section 27. It was also sought to be contended that the Judgment of the Supreme Court in State of Karnataka vs. Vishwabarathi House Building Coop. Society, 2003 (2) SCC 578 where the view was taken that the power under Section 27 is the 13 nature of an additional power for execution of the order, considering the subsequent amendment to the Act after the Judgment was delivered, will not apply. 14. We may gainfully refer to the following paragraphs from the judgment in Vishwabarathi House Building Co-op. Society (supra):- “58. Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to Order 39 Rule 2-A of the Code of Civil Procedure or the provisions of the Contempt of Courts Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A Parliamentary statute indisputably can create a tribunal and might say that non- compliance of its order would be punishable by way of imprisonment of fine, which can be in addition to any other mode or recovery. 59. It is well settled that the cardinal principle of interpretation of statute is that courts or tribunals must be held to possess power to execute their own order. 14 60. It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self-contained Code, even if it has not been specifically spelt out, must be deemed to have conferred upon the Tribunal all powers in order to make its order effective. It is true that this Judgment was delivered before the amending Act 62 of 2002. However, Section 27(1) was on the statute book since inception of the Act. At the time the Act was enacted there was no provision for invocation of penalty against an interim order as there was no power conferred to grant interim relief as now provides. As we have noted earlier Section 13(3-B) as introduced with effect from 15 th March, 2003 for the first time conferred power to grant an interim order. 15. To understand the issue, let us examine the provisions of Order 39 Rule 2A of the C.P.C. as to the effect of disobeying an order passed under Order 39 Rule 1 or Order 39 Rule 2 which confer power to pass interim orders. The Supreme Court had an occasion to consider that issue in Tayabhai M. Bagasorwalla & Anr. vs. Hind Rubber Industries Pvt. 15 Ltd., AIR 1987 S.C. 1240. An issue arose. whether a party who had disobeyed an interim order and/or flouted the same can be punished if ultimately the Civil Court arrives at a conclusion that it had no jurisdiction to entertain the suit. The High Court had taken a view that it could not do so. The question for consideration was whether the decision of the High Court meant that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e., for violation and disobedience committed prior to the decision of the High Court on the question of jurisdiction. The Court observed that if the view was upheld namely that no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the decision holding that the Court has no jurisdiction to entertain the suit, it would be subversive of the rule of law and would seriously erode the dignity ad the authority of the Courts. Considering various other judgments it was observed that a party, who knows of an order, whether null or valid, regular or irregular cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid or whether it was regular or irregular. Reference was made to the judgment 16 in Hadkinson v. Hadkinson, (1952) 2 All E.R. 567 where the Court has observed as under:- “It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. ........” This followed from the principle that the party against whom an order is passed knowing of an order, which was null or irregular, and who might be affected by it, must apply to the Court to be discharged. As long as it existed it must not be disobeyed. This is in the nature of obligation and two consequences will in general follow from its breach. The first is that anyone who disobeys an order of the Court is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the Court by such a person will be entertained until he has purged himself of his contempt. The Supreme Court noted that even in United States the law was the same and quoted the following statement by Holmes, J., in United 17 State of America v. John F. Shippetal, (1906) 51 Law Ed. 319 where it was observed as under:- “it has been held, it is true, that orders made by a Court having no jurisdiction to make them may be disregarded without liability to process for contempt: Re Sawyer (1887) 124 US 200, 31 Law Ed 402, 8 Sup Ct Rep 482; Ex Parte Fisk, (1883-84) 113 US 713, 28 Law Ed 1117 5 Sup Ct Rep 7224; Ex parte Rowland, (1879-81) 104 US 604, 26 Law Ed 861. But even if the circuit court had no jurisdiction to entertain Johnson’s petition, and if this Court had no jurisdiction of the appeal, this court, and this court alone, could decide that such was the law. It and it alone necessarily had jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument and to take the time required for such consideration as it might need. See Mansfield, C & LMR Co. v. Swan, (1883-84) 111 US 379, 387, 28 Law Ed 462, 4 Sup Ct Rep 510. Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case to make orders to preserve the existing conditions and the subject of the petition, just as the State Court was 18 bound to refrain from further proceedings until the same time. Rev Stat 8766; act of March 3; 1893, Chap. 326, 27 Statt. At L. 751, U.S. Comp. Stat. 1901 p. 597.” Thus the Court was of the opinion that interim orders so passed are orders within jurisdiction when passed and effective till the Court decides that it has no jurisdiction to entertain the suit. It is open to the Court to modify these orders while holding that it has no jurisdiction to try the suit, put back the party in the position he was on the date of the suit. But this power or obligation has nothing to do with the proposition that while in force, these orders have to be obeyed and their violation can be punished even after the question of jurisdiction is decided against the plaintiff provided the violation is committed before the decision of the Court on the question of jurisdiction. Thus a party can be punished under Order 39 Rule 2-A of the Code of Civil Procedure. Thus it is open to the Legislature in case of breach of interim orders to provide for punishment. 16. To understand what are interlocutory orders let us refer to the judgment in V.C.Shukla v. C.B.I. 1980 Supp. S. C.C. 92. “22. The observations of Das, J. clearly show that the effect of non 19 obstante clause was to supersede the Indian Bar Councils Act and any other Act in so far as they regulate the conditions referred to therein, If we apply this test to the present case then it is manifest that the non obstante clause would have the effect of overriding and excluding the provisions of the Code. Applying the test laid down by Sastri, C. J., we find that the position may be summed up as follows. - (1) We should exclude the statute concerned from consideration. in the instant case 'The Code'; (2) We should construe the words used according to their natural and ordinary meaning instead of referring to the statute which is sought to be excluded. 23. We entirely agree with the approach indicated by Sastri, C.J. and which is also binding on us. Let us see what is the effect of interpreting the non obstante clause according to the test laid down by the decision, referred to above, and particularly the observations of Sastri C. J. Let us for the time being forget the provisions of s. 397(2) of the Code or the- interpretation put by this Court on the term 'interlocutory order' as appearing in the Code because the decisions were based purely on the interpretation of the provisions of the Code. We have, therefore, first to determine the natural meaning of the expression interlocutory order'. To begin with, in order to construe the term 'interlocutory', it has to be construed in contradistinction to or in contrast with a final order. We are fortified by a passage appearing in The Supreme Court Practice, 1976 (Vol. I p. 853) where it is said that an interlocutory order is to be contrasted 20 with a final order referring to the decision of Salaman v. Warner. In other words, the words 'not a final order' must necessarily mean an interlocutory order or an intermediate order. That this is so was pointed out by Untwalia J, speaking for the Court in the case of Madhu Limaye v. State of Maharashtra as follows: "Ordinarily and generally the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order'." Thus, the expression 'interlocutory order' is to be understood and taken to mean converse of the term 'final order'. Now, let us see how this term has been defined in the Dictionaries and the text books. In Webster's Third International Dictionary (Vol. II, p. 1170) the expression 'interlocutory order' has been defined thus: Not final or definitive; made or done during the progress of an action; INTERMEDIATE PROVISIONAL". Stroud's Judicial Dictionary (Fourth Edition, Vol. 3, p. 1410) defines the interlocutory order thus: - "'Interlocutory order' (Judicature Act 1873 (c.66), s.