AD INTERIM RELIEF Whether can be granted under the J&K Consumer Protection Act, 1987- A Viewpoint
JKJ 2004 (2) J-1

Now that the Consumer Protection Act, 2003 (Central Act) provides for interim relief to the consumer under S.13 (3-B), it becomes a question of debate as to whether the interim relief can be granted to a consumer by the Consumer Fora constituted under the J&K Consumer Protection Act, 1987 (hereinafter referred to as ‘the Act, 1987’ for brevity only) as there is no such provision in the Act, 1987. It is an acknowledged fact that the Consumer Protection Act is a social & benevolent piece of legislation intended to protect a large body of consumers and exploitation (2000(7) SCC 668) and was dedicated to the people of the Indian Republic in the middle eighties. In fact after the enactment of the Consumer Protection Act, 1986 a great need was felt all over the country that the Act may not come up to the expectations of the consumers of the day and in some cases it may prove only a toothless tiger, when the complainant fails to get the required relief quickly albeit interim relief, particularly in cases of dire necessity and emergent nature As per provision of Section 11 of the Act, 1987(which corresponds to Section 13 of the Central Act) when a complaint is presented before the Consumer Forum, a copy of the same is served on ‘the seller of goods or the service provider’, as the case may be, called ‘the opposite party’, directing him to file his demurrer, known as ‘written version of his claim, ’ within a period of thirty days from receipt of copy of the said complaint. The Consumer Forum may still extend this period of thirty days for further ‘fifteen days’ i.e. a clever respondent/opposite party can procure 45 days (30+15) for filing his version of the case at the cost of the consumer’s relief, however emergent it may be. This apart, Hon’ble the Supreme Court of the country has held that there is no absolute mandate in section 11 of the Act, 1987 and the provision of extending period for filing written version by the Opposite party even after 45 days has been held “directory” and not “mandatory” (Topline shoes Ltd. vs. Corporation Bank, AIR 2002 SC 2487). This, therefore, establishes that an aggrieved consumer cannot have any relief prior to the expiry of at least 45 days which period may also be extended at the discretion of the Forum notwithstanding the fact that it may cause any amount of injustice, pain or agony to an aggrieved consumer. Take, for example, a case where the Electricity Department disconnects the electric supply to the house of a consumer on the ground of non-payment charges of tariff although the consumer has paid all the dues.

Imagine the quantum of damage that would be caused to the consumer for being without electricity for at least 45 days, if the subscriber/consumer files a complaint before the Consumer Forum for deficiency in service against the Electricity Department & is denied the ad interim relief i.e. directing the Opposite party to reconnect the electric connection pending disposal of the complaint under section 10 of the CPA, 1987 although he places before the Forum all the receipts duly issued by the Electric Department showing the payment of tariff to which presumption of truthfulness attaches under law, proving that he is not in arrears? (It is unfathomable, eh!) Since there is no specific provision in the Act, 1987, the interim relief will always elude a bona fide consumer. May be it is scorching summer or biting winter, maybe the career of his studying children is ruined, may be he is forced to make alternate arrangements for illuminating his house by spending sizable/huge amount of money etc. and may be the subscriber goes from pillar to post lamenting his grievance, there is no immediate relief for his miseries and he will be left helpless due to laconic provisions in the Consumer Protection Act, 1987. Even after the Opposite party files his written version of the case, of course after 30 or 45 days of receipt of the copy of the complaint by him, as the case may be, and the complainant craves the indulgence of the Forum for interim relief of supply of electricity at his house, which is the basic necessity for the human beings and for which he has paid all fees/charges, the relief would still be miles away from him, because ‘there is no provision in the Act providing to grant interim relief’ and in that case the consumer will have to wait for the proceedings initiated by him to come to an end, no matter whether it takes months together, in some cases it may be years, due to extra ordinary congestion of work in the Divisional Forum, for the proceedings to come to an end. During this period a bona fide consumer may enervate without electricity in his house for which his other family members, who are the “beneficiaries”{S.2 (d)(ii)} of the electricity & for whom the consumer has arranged the same, are also put to great mental agony etc. Another example can be of a subscriber of the telephone who may have paid all the telephone bills can still face similar harassment at the hands of the BSNL or other agency as the reason assigned by the Telephone Department for disconnecting telephone service may be ‘non-payment of telephone bill’, no matter if the department has not updated its accounts and register maintained therefor. Or in a case where the telephone subscriber of a Non-STD telephone incurs a telephone bill for Rs.600-700/- bi-monthly in the usual course of things but he is served a bill of Rs.9000-10, 000/- bimonthly or the like and telephone is disconnected for non payment. In such a situation the Consumer Protection Act, 1987 will be silent and serve no purpose to an aggrieved consumer although he will be arbitrarily harassed & pressurized to make the uncalled for & undue payment in order to make his telephone functional.

As we have seen that there is a common practice among the Consumer Fora to deny interim relief to a consumer on the ground/excuse that the Act does not prescribe for the same, although it may be very essential in the interest of justice, and with a view to overcoming the injustice fraught on the poor consumer due to act of acute deficiency on the part of the authorities engaged in providing service to the consumers, on payment, on the solitary ground of there being no provision in the Act, 1987. May I, therefore, most humbly and without any intention of undermining the prestige of the Consumer Fora, which are headed by a senior judicial officer of the rank of a District & Sessions Judge & a retired High Court Judge, as President of the Divisional Forum and State Commission respectively, seek to bona fide comment as to whether there is any provision in the Act that prohibits the grant of interim relief in the genuine cases ? Moreover, under what provision of the Code of Criminal Procedure, 1889, do the Magistrates grant interim maintenance to the wives or the children, denied maintenance by their husband or father, as the case may be, under the scheme of Section 488 Cr.P.C which corresponds to Section 125 Cr.P.C, 1974? Is there any provision in Chapter XXXVI of the Cr.P.C, 1989(1933 A.D.) which prescribes to provide interim maintenance as above said under section 488 Cr.P.C or elsewhere in the entire Code of Criminal Procedure and for that matter is there any prohibition to grant interim relief/maintenance in the Code, particularly when the main relief is available to an indigent applicant u/s 488 Cr.P.C ? The answer will be certainly “No”. Why then, therefore, the Judicial Magistrates provide interim maintenance to the indigent wives & children ignored by their husbands or the fathers, as the case may be? It is only on the strength of the law laid by the Apex Court in the landmark judgment in case titled (Smt) Savitri v. Govind Singh Rawat, (AIR 1986 SC 984); 1986 Cri.L.J.41 (1985) 4 SCC 337(see also Rajinder Kumar v. Aneeta Devi, 1988 SLJ 119 & Mohd.Taj v. Sakina Bi, 1988 SLJ 443, J&K) that the Magistrates have been granting interim maintenance allowance to the wives or the children ignored by their husbands or fathers, as the case may be, and deny to maintain them, at the stage when even the respondent has not put up appearance before the Court. Hon’ble Supreme Court authorises the Judicial Magistrate seized of the matter to grant interim maintenance in an appropriate case even ex parte i.e. at the ad interim stage when even the non-applicant has not been before the court. The Apex Court has commanded that, “Before granting interim maintenance, as in civil cases, the Magistrate would call upon the applicant to file an affidavit stating the grounds in support of the claim for interim maintenance to satisfy himself that there is a prima facie case for making such an order.” While holding as above the Apex Court laid down the following guidelines while determining ‘as to whether the Magistrate can also make an interim order or not: -

“5.The jurisdiction of a Magistrate under Chapter IX of the Code is not strictly a criminal jurisdiction. While passing an order under this Chapter asking a person to pay maintenance to his wife, child or parent, as the case may be, the Magistrate is not imposing any punishment on such person for a crime committed by him. Chapter IX of the Code contains a summary remedy for securing some reasonable sum by way of maintenance, subject to a decree, if any, which may be made in a civil court in a given case provided the Personal Law applicable to the person concerned authorises the enforcement of any such right to maintenance. The Code, however, provides a quick remedy to protect the applicant against starvation and to tide over immediate difficulties. Chapter IX of the Code does not in reality create any serious new obligation unknown to the Indian social life. In Bhagwan Dutt v. Smt. Kamla Devi, (1975) 2 SCR 483 at page 486 (AIR 1975 SC 83 at p.85) this Court has explained the object of Ss.488, 489 and 490 of the Code of Criminal Procedure, 1898 which are replaced by the provisions in Chapter IX of the Code, thus:

‘Sections 488, 489 and 490 constitute one family. They have been grouped together in Chapter XXXVI of the Code of 1898 under the caption “Of the maintenance of wives and children”. This Chapter, in the words of Sir James Fitzstephen provides “ a mode of preventing vagrancy, or at least of preventing its consequences.” These provisions are intended to fulfill a social purpose. Their object is to compel a man to perform the moral obligation, which he owes to society in respect of his wife and children. By providing a simple, speedy but limited relief, they seek to ensure that the neglected wife and children are not left beggared and restituted on the scrapheap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence. Thus, S.488 is not intended to provide for a full and final determination of the status and personal rights of the parties. The jurisdiction conferred by the section on the Magistrate is more in the nature of a preventive rather than a remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson’s case 6 NWP 205 the scope of the Chapter XXXVI is limited and the Magistrate cannot except as thereunder provided, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts. Sub-sec. (2) of S.489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudication that may be made by a civil Court between the parties regarding their status and civil rights.’

6. In view of the foregoing it is the duty of the court to interpret the provisions in Chap.IX of the Code in such a way that the construction placed on them would not defeat the very object of the legislation. In the absence of any express prohibition, it is appropriate to construe the provisions in Chapter IX as conferring an implied power on the Magistrate to direct the person against whom an application is made under S.125 of the Code to pay some reasonable sum by way of maintenance to the applicant pending final disposal of the application. It is quite common that applications made under S.125 of the Code also take several months for being disposed of finally. In order to enjoy the fruits of the proceedings under S.125, the applicant should be alive till the date of final order and that the applicant can do in a large number of cases only if an order for payment of interim maintenance is passed by the Court. Every Court must be deemed to possess by necessary intendment all such powers as are necessary tomake its orders effective. This principle is embodied in the maxim ‘ ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist)—Vide Earl Jowit’s Dictionary of English Law 1959 Edn.p.17967).

Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorized in express terms be also done then that something else will be supplied by necessary intendment. Such a construction though it may not always be admissible in the present case however would advance the object of the legislation under consideration. A contrary view is likely to result in grave hardship to the applicant, who may have no means to subsist until the final order is passed. There is no room for the apprehension that recognition of such implied power would lead to the passing of interim orders in a large number of cases where the liability to pay maintenance may exist. It is possible that such contingency may arise in a few cases but the prejudice caused thereby to the person against whom it is made is minimal as it can be set right quickly after hearing both the parties.’ (Emphasis supplied).

This apart, we should not forget that the Consumer Protection Act is a benevolent legislation & the principles of cardinal rule of law require that the provisions of such a legislation must be interpreted in favour of those (consumers in this case) for whom these have been made. In this context the relevant observations of the Hon’ble Apex Court in the landmark case titled Lucknow Development Authority v. M.K.Gupta {(1994) 1 SCC 243} are, ‘The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of the public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked’. In addition to it reference may be profitable made to another Apex Court Judgment viz; Fair Air Engineers vs. N.K.Modi (1996) 6 SCC 385 & Satpal Mohindra Vs. Surindra Timber Stores reported in (1999) 5 SCC 696 that, ‘The provision of the Act are required to be interpreted as broadly as possible. It has jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis.’ This apart, there is catena of authority on the subject but it would be sufficient to refer to the recent case Transport Corpn. Of India v. Employees State Insurance Corp. 2001 SCC 332 at page 355 para 27 wherein the Apex Court has held that ‘Such a beneficial piece of legislation has to be construed in its correct perspective so as to fructify the legislative intention underlying its enactment.’ Their lordship were dealing a case under the Employees State Insurance Act & Rules framed thereunder. Inspiration was, however, sought from the previous case titled Buckingham and Carnatic Co.Ltd. Vs. Venkatiah, AIR 1964 SC 1272 wherein it has been held that “It is a piece of social legislation intended to confer specified benefits on the workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provision in a technical or a narrow sense. This position cannot be disputed.............” It is therefore amply clear that this consumer-friendly social piece of legislation cannot be interpreted so narrowly & in a hyper technical manner that it deprives the consumer, for whom the same has been enacted, of the most genuine relief. Ignoring the quick relief to the consumer would be doing violence to the provisions of the Act and it is sure to frustrate the legislative intent behind this enactment.

The next important aspect of the case that cannot be lost sight of in this context is that the Consumer Fora across the country are acting on the solitary judgment of the Apex Court in case Morgan Stanley Mutual Fund vs. Kartik Das, (1994) II CPJ 7(SC) and out rightly refuse interim relief even at the cost of justice to the aggrieved consumer which defeats the very object of the enactment, the preamble whereof provides for, “An Act to provide better protection of interests of consumers and............for the settlement of consumers’ disputes and for matters connected therewith.” Although the Supreme Court in Morgan Stanley’s case (supra) held that a Consumer Forum does not have the power to grant an interim relief or even ad interim relief but the Hon’ble Apex Court was dealing with unamended section 14 of the Act which did not have sub sections (e) to (i)* at that time (see para 23 at pp.18-20). Section 14 was amended in the year 1993 where relief enumerated under sub-sections (e) to (i) was introduced. At the time of this Judgment relief in sub section (e), in particular, was not available in the Act itself, nor the Apex Court had any occasion. Therefore, Hon’ble SC had no occasion to interpret the law in view of the relief provided for in sub-section (e), which has been introduced by the Consumer Protection (Amendment) Act 1993, which provides for relief “to remove the defects or deficiencies in the service in question.” When the main relief was not there in the Act itself at the time the Apex Court passed Judgment in Morgan Stanley Mutual Fund case (supra), how a Court, Tribunal or Forum, could be in a position to grant interim relief to the party asking for it? As a matter of logical corollary it follows that ‘interim relief’ always flows from the main relief. The only relief prior to amendment of 1993 that were available in the Act are: (a) to remove the defect pointed out by the appropriate laboratory from the goods in question;(b) to replace the goods with new goods of similar description which shall be free from any defect;(c) to return the complainant the price, or, as the case may be, the charges paid by the complainant & (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. Obviously, therefore, there was no provision in the Act when Morgan Stanley’s Judgment came in the facts and circumstances of that case or for that matter the section 14 of the Central Act was not amended when the case was originally filed before the trial court, therefore, the Hon’ble Supreme Court has rightly held that interim relief was beyond the scope of the Act. But now when sub-section (e) of the same section categorically provides “ to remove the defects or deficiencies in the services in question” no fault can be founded with the Apex Court judgment in Morgan Stanley’s case (supra) and it is clearly distinguishable in cases filed after the abovesaid amendment. The same should not be applied without application of judicial mind. Therefore, now since the Forum has the power to direct the Opposite Party, in a complaint under Section 10 of the Act, 1987, to remove the defects in the goods sold and/or deficiencies in the service provided to the consumer why, therefore, it must have any inhibitions and shirk from passing an ad interim order in a genuine case of a bona fide complainant. Admittedly there is no specific provision in the Act, 1987 to grant interim relief to a complainant. Obviously because the Consumer Forum is not a Court under the Act, strictly speaking, therefore it cannot exercise inherent powers also and consequently pass interim order in favour of the aggrieved complainant or any aggrieved party. No doubt the inherent powers can be exercised by a civil court or a quasi judicial authority only but the Supreme Court has unambiguously held that ‘although consumer Fora are not Courts yet they have all the trappings of a civil court,’ therefore, there is no impediment for the Consumer Forum to grant interim relief in appropriate cases of emergent nature wherein the interim relief is necessary to avoid injustice being done to the Consumer and secure the ends of justice in exercise of inherent powers as well. Besides, it has been held in a number of cases by the Consumer Fora & the Apex Court in that Consumers For a are ‘quasi judicial authorities’ and there is no bar to their exercising inherent powers to do away with the injustice being done to the consumers.

Even otherwise there is no bar to a consumer Forum to exercise inherent powers as the Supreme Court has categorically held in New India Assurance Co.Ltd. Vs. R.Srinivasan, I (2000) CPJ 19(SC) = (2000) 3 SCC 242 that “the Consumer Disputes Redressal Forum concerned has inherent power and jurisdiction to restore the complaint dismissed for default provided the complainant shows good reasons for non-appearance.” It would be profitable to reappraise ourselves with the relevant provision of Section 13(4) of the Central Act (equivalent to S.11 (4) of Act, 1987) in order to understand that the provision of the Code of Civil Procedure i.e. O.9, R.9 or O.9, R.13, have not been made applicable to the proceedings under the Act & yet the Hon’ble Apex Court commanded that inherent powers cant be used by the consumer Fora to setting aside ex- parte proceedings or restoration of complaint dismissed for non-appearance of the complaint. This kind of provision is inserted in the Central (Amendment) Act of 2003 as it did not exist prior to that. There is, therefore, no doubt that inherent powers vest in the Consumer Fora. Granting of interim relief would also be in consonance with the preamble and intendment of the Act providing ‘better protection of interests to the consumers’ and refusal thereof would certainly defeat the purport behind this benevolent legislation. On account of cleavage amongst the Consumer Fora of the country, legislators, jurists and consumer- friendly Organisations made furor across the country that the Act is only a toothless tiger without a specific provision for interim relief, and due to public indignation and legal clamour the Legislature was impelled to introduce a specific provision for the interim relief in the Act, 2003. Sub-section 3-B of Section 13 of the Act 2003 has been introduced in the Act, 2003 which prescribes that, “ where during the pendency of any proceeding before the District Forum, it appears to it necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case.” In the absence of such a specific provision, when it has been held by the Apex Court that the Consumer Fora have all the trappings of a civil court, there is no impediment for the later to exercise inherent powers also and grant interim relief to the consumer in an appropriate case, of course, considering the well recognized guidelines given in a number of cases & also in the Morgan Stanley’s case (supra) in view of the provisions of O: XXXIX CPC, with particular adherence to Rule 3-A. The same has been reiterated in a recent case titled State of Jammu & Kashmir and Ors vs. Dr. Gian Chand 2003(I) KLJ 49 at page 51, while making a reference to another recent Judgment of the Apex Court, Union Of India Vs. Era Educational Trust, (2000) 5 SCC 57 as under:

“It may be pointed out that Order XXXIX CPC would not be applicable at the stage of granting interim relief in a petition under Article 226 or 227 of the Constitution, but at the same time various principles laid down under Order XXXIX for granting ad interim or interim reliefs are required to be taken into consideration. In the case of Morgan Stanley Mutual Fund vs. Kartick Das after considering the various authorities this court laid down the guiding principles in relation to grant of ad interim injunction which are as under: (SCC pp.241-42, para 36)

“36. As a principle, ex parte injunction could be granted under exceptional circumstances. The factors, which should weigh with the Court in the grant of ex parte injunctions, are:

a. Whether irreparable or serious mischief will ensue to the plaintiff:

b. Whether the refusal of ex parte injunction would involve greaterinjustice than the grant of it would involve:

c. The Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented:

d. The Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction:

e. The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application:

f. Even if granted, the ex parte injunction would be for a limited period of time:

g. General principles like prima face case, balance of convenience and irreparable loss would also be considered by the Court."

From the above conspectus from the Morgan Stanley’s case (supra) it can be safely inferred that the Supreme Court did not create an absolute bar on the authority of the Consumer Fora to pass interim relief in appropriate cases and kept the option open for the Fora to grant even ex parte ad interim relief even if there was no relief of the kind now provided in sub-section (e) after amendment viz; w.e.f.18th June, 1993. The passing of interim relief by the CONSUMER FORA, which have all the trappings of a civil court, therefore, will be within the precincts of law. Additional support can be had from the law laid by the Supreme Court in (Smt.) Savitri’s case (supra) in which granting of interim maintenance to the wife neglected to be maintained by her husband, a respondent, in an application filed by her under section 488 Cr.P.C.has been held to have the sanction of law although there is no specific provision therefor, nor the provisions of O: XXXIX CPC or S.151 CPC are made applicable, expressly or by necessary implication, to S.488 Cr.P.C. under Chapter XXXIV of the J&K Code Of Criminal Procedure. Moreover reading the Stanley Morgan Mutual Funds Judgment of the Apex Court (supra) between the lines one surely comes to the conclusion that the Apex Court has nowhere said that interim relief cannot be given to a consumer if he establishes a prima facie case & fulfils other requirements of law, as above said, besides the fact that the case is one of emergent nature wherein denial of relief at an interim stage would do only injustice to the aggrieved consumer and violence to the intendment of the legislature in enacting the said Act. A law, which does not fulfils the aspirations of those for whose benefits it is made is a bad law and always open to review. Whereas it is suggested that the Act, 1987 may be immediately amended and a provision like the one in Act 2003 S.13(3-B) may be introduced so as to overcome the impracticability of the consumer Protection Act, 1987.