Navin M. Raheja & Anr. v. Dinesh Goyal & Ors.

16. Mr. Arjun Mahajan, learned counsel for Decree-Holders submits that same contention was raised by M/s Raheja Developers Ltd. before National Commission and was, outrightly, discarded. It is argued that in the impugned judgment dated 26.08.2022, though it was acknowledged that both the Members comprising Bench were non-judicial, the Bench went on to hold that there was no provision in Consumer Protection Act, 1986 or Rules made thereunder, requiring presence of a Judicial Member for a valid constitution of a Bench. It also observed that the constitution of Benches was an administrative function of the President of the Commission and there was no distinction between a “Judicial Member” and a “Technical Member”. The relevant observation, as recorded in impugned order dated 26.08.2022, reads as under:- ―............The other IA/6143/2022 is seeking a Judicial Member on the Bench to decide the question of law of refund. It is a fact that both the Members of this Bench are non-judicial. However, this Commission is governed by the statute inforce and there are no Order of the Hon‘ble Supreme Court in the matter of constitution of Bench in National Consumer Disputes Redressal Commission. The Benches are constituted by the President of the Commission, which does not distinguish between the Members on grounds of their background, judicial or non-judicial, and therefore this Application is also rejected.‖

17. While referring to the aforesaid, Mr. Mahajan submits that such contention, even otherwise, needs to be rebuffed as there is no mandate in law that any Bench of National Commission has to have one Judicial Member, necessarily. It is also argued that though such issue is pending adjudication before the Hon‟ble Supreme Court, the present petition needs to be rejected on the basis of position of law, as it exists today. It has also been stressed that there is inordinate delay in challenging order dated 26.08.2022 and in such a situation, petitioners cannot be permitted to invoke Article 227 of the Constitution of India. While contending that the interpretation of the provision must be consumer-friendly and in furtherance of welfare objective sought to be achieved by Consumer Protection Act, 1986, it is argued that there is no illegality in the impugned orders. Learned counsel for respondents relies upon Goan Sabha Ibrahimpur and another v. Sh. Kuldeep Singh and Others: 2021 SCC OnLine Del 4330, Ajay Kumar v. Manoj Kumar & Anr.: 2021 SCC Online Del 4367, Gulzari Lal Agarwal v. Accounts Officer: (1996) 10 SCC 590 and Aparna Abhitabh Chatterjee, Others v. Union of India and Others: 2022 SCC OnLine Bom 760 and Union Territory of Ladakh and Others v. Jammu and Kashmir National Conference and Another: 2023 SCC OnLine SC 1140.

18. Coming to the aspect of belated filing of the present petition in context of first impugned order, indeed, there is no justification offered.

19. In Ajay Kumar (supra), learned Single Judge of this Court observed that though there was no prescribed period of limitation in respect of petitions under Article 227, it was settled position of law that the Courts will not entertain the same if these are filed after inordinate delay with no satisfactory explanation, and reliance was placed upon Bithika Mazumdar v. Sagar Pal, (2017) 2 SCC 748. Here, there is no explanation whatsoever, much less, a plausible one. Interestingly, the petitioners herein were not even party to the complaints as all such complaints were directed against the company only i.e. against M/s Raheja Developers Ltd.

20. Let me, therefore, now assess the aspect of corum non judice.

21. However, before taking up the same, it needs to be highlighted that a similar issue pertaining to composition of Benches of National Commission, having no Judicial Member, is pending adjudication before Hon‟ble Supreme Court. Reference in this regard be made to order dated 20.02.2024 passed in The New India Assurance Co. Ltd. vs. M/s Aczet Private Limited: Civil Appeal No. 3743/2023 and also to order dated 29.01.2025 passed in Manik Chandra Khan v. Amit Saha & Ors. Civil Appeal No (s). 5728- 5729/2023.

22. Ideally, the outcome thereof should have been awaited or the petitioner should have, instead, filed an appeal under Section 23 of Consumer Protection Act, 1986 before the Hon‟ble Supreme Court, fact remains that since Writ under Article 227 of the Constitution of India is also maintainable and since learned counsel for both the parties also insisted for hearing, the matter was accordingly taken up. Moreover, mere pendency of analogous issue before a Larger Bench, ipso facto, does not denude the Courts of their jurisdiction to decide on the lis pending before them. Reference in this regard be made to Munni Devi v. Olive Exim (P) Ltd., 2025 SCC OnLine Del 617. As per Union Territory of Ladakh v. Jammu and Kashmir National Conference (supra) also, High Courts must decide matters based on the law as it stands and are not obligated to await the outcome of references or review petitions, unless specifically directed.

23. Mr. Yogender Mishra, learned counsel for petitioners submits that for any Bench of NCDRC, it is imperative to have a member having judicial background. Stressing that it being a tribunal having trappings of a court, any such Bench, therefore, must have a combination of a „judicial member‟ and a „technical member‟. Mr. Mishra states that a judicial member would understand the legal nuances in an effective manner while the companion technical member, being „expert‟ in the relevant field to which such tribunal relates, would be better equipped to understand general underlying issue.

24. Relying on Jagmittar Sain Bhagat (supra), it is argued by learned counsel for petitioners that if any such tribunal passes a decree having no jurisdiction over the matter, it would amount to nullity and the findings of a court or tribunal would become irrelevant, unenforceable and inexecutable, once the forum is found to have no jurisdiction. However, the above precedent does not stand attracted herein as in said case, a ‗government employee‘ claiming himself to be a ‗consumer‘ had approached Consumer Forum and though he did not get any relief by any of the fora below, learned State Commission, while dismissing his appeal observed that though the complaint was not maintainable as the District Forum did not have jurisdiction to entertain the complaint of the appellant as he was not a “consumer” and the dispute between the parties could not be redressed by the said Forum, in view of the fact that the opposite party (State) neither raised the issue of jurisdiction before the District Forum nor preferred any appeal, order of the District Forum on the jurisdictional issue attained finality. It was in the abovesaid peculiar situation, the Hon‟ble Supreme Court was compelled to observe that conferment of jurisdiction was a legislative function which could neither be conferred with the consent of the parties nor by a superior court, and if any court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the root of the cause. Here, nothing of that kind exists.

25. No real advantage can be dug out from Rojer Mathew (supra) as in said case, the core question was whether the judiciary could be kept away from the process of selection and appointment of Members, Vice-Chairman and Chairman of Tribunals. It was also observed therein that the Executive was litigating party in most of the litigation and hence it cannot be allowed to be a dominant participant in such appointments.

26. In Union of India v. Madras Bar Assn (supra), the question pertained to the constitutional validity of Parts IB and IC of the Companies Act, 1956 which provided creation of National Company Law Tribunal and National Company Law Appellate Tribunal. Fact remains that as per provisions of Companies Act, 2013, the powers of the National Company Law Tribunal were to be exercisable by a Bench consisting of two Members, out of whom one shall be a Judicial Member and the other shall be a Technical Member and for Appellate Tribunal also, any such Bench shall have, at least, one Judicial Member and one Technical Member.

27. Since there was a specific provision about the manner of composition of Benches in Companies Act, 2013, such analogy, cannot be, ipso facto, made applicable to a National Commission.

28. Let me, now, take note of the relevant provisions of Consumer Protection Act, 1986 to comprehend whether such composition of Bench is impermissible and proscribed. A caveat right here. Neither the vires have been challenged herein nor the same are being tested here.

29. Section 10 of Consumer Protection Act, 1986 talks about composition of a District Forum and Section 16 deals with composition of a State Commission. There is no need to extract the abovesaid provisions as such Forum at District level has only one Bench and, therefore, it would always have a judicial member in it. In State Commission also, generally, there is one Bench, though, additional/circuit Benches can be made functional.

30. Be that as it may, there is no dispute over constitution of Benches at said levels.

31. The relevant provisions in context of „National Commission‟ are Sections 20, 22, 29-A and 30-A of Consumer Protection Act, 1986 which read as under: -

following qualifications, namely:-

(i) be not less than thirty-five years of age;

(ii) possess a bachelor‘s degree from a recognized university; and

(iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that not more than fifty per cent of the members shall be from amongst the persons having a judicial background. Explanation: - For the purposes of this clause, the expression ―persons having judicial background‖ shall mean persons having knowledge and experience for at least a period of ten years as a presiding officer at the district level court or any tribunal at equivalent level: Provided further that a person shall be disqualified for appointment, if he– (a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the Central Government, involves moral turpitude; or (b) is an undischarged insolvent; or

(c) is of unsound mind and stands so declared by a competent court; or

(d) has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or (e) has, in the opinion of the Central Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) has such other disqualifications as may be prescribed by the Central Government: Provided that every appointment under this clause shall be made by the Central Government on the recommendation of a Selection Committee consisting of the following, namely;- (a) a person who is a Judge of the Supreme Court, - Chairman to be nominated by the Chief Justice of India. (b) the Secretary in the Department of Legal - Member. Affairs in the Government of India

(c) Secretary of the Department dealing with - Member.

consumer affairs in the Government of India] (1A) (i) The jurisdiction, powers and authority of the National Commission may be exercised by Benches thereof.

(ii) A Bench may be constituted by the President with one or more members as the President may deem fit.

(iii) If the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it.) (2) The salary or honorarium and other allowances payable to and the other terms and conditions of service *** of the members of the National Commission shall be such as may be prescribed by the Central Government. (3)Every member of the National Commission shall hold office for a term of five years or up to the age of seventy years, whichever is earlier and shall not be eligible for re appointment. Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of seventy years, whichever is earlier, subject to the condition that he fulfils the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is made on the basis of the recommendation of the Selection Committee: Provided further that a person appointed as a President of the National Commission shall also be eligible for re-appointment in the manner provided in clause (a) of sub-section (1): Provided also that a member may resign his office in writing under his hand addressed to the Central Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned. (4) Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as President or member, as the case may be, till the completion of his term...................

22. Power of and procedure applicable to the National Commission.—(1) The provisions of sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. (2) Without prejudice to the provisions contained in sub-section (1), the National Commission shall have the power to review any order made by it, when there is an error apparent on the face of record. 29A. Vacancies or defects in appointment not to invalidate orders.—No act or proceeding of the District Forum, the State Commission or the National Commission shall be invalid by reason only of the existence of any vacancy amongst its member or any defect in the constitution thereof. 30A. Power of the National Commission to make regulations - (1) The National Commission may, with the previous approval of the Central Government, by notification, make regulations not inconsistent with this Act to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may make provisions for the cost of adjournment of any proceeding before the District Forum, the State Commission or the National Commission, as the case may be, which a party may be ordered to pay.‖

32. Section 20 above talks about composition of National Commission, as a whole.

33. It does not prescribe as to what should be the constitution of its Benches.

34. Apparently, there can be multiple benches of National Commission as Section 20 (1A)(ii) goes on to indicate that a Bench may be constituted by the President with one or more Members as the President may deem fit. It does not specify about the description of such Members and, therefore, Members can be judicial or technical or both. Since the ratio of Judicial Members cannot exceed fifty percent, as a necessary inference, non-judicial members may, in a given scenario, outnumber judicial members.

35. Right here, let me refer to Consumer Protection Regulations, 2005 framed under Consumer Protection Act, 1986.

36. These Regulations have been framed by National Commission in exercise of its powers conferred under Section 30A of the Consumer Protection Act, 1986 (68 of 1986). These are with the previous approval of the Central Government.

37. Regulation 12 reads as under:- ―12. Hearing by Benches-Where a Bench, constituted by the President of the State Commission or the National Commission as provided under section 16 or section 20, as the case may be, does not have a member with judicial background and any complex question of law arises and there is no precedent to decide the law point, the Bench so constituted may refer the matter to the President of the State Commission or the National Commission as the case may be to constitute another Bench of which the President shall be a member.‖

38. The above Regulation, for all purposes, clinches the issue in favour of Decree-Holders.

39. Thus, whenever, there is a complex question of law, any such Bench, not comprising of a judicial member, can refer the matter to its President and based on such reference, the President is under obligation to constitute another Bench, of which President would also be a member. The decision would, then, by a Bench of which president, being a judicial member, is an integral part.

40. As a necessary corollary, any such Bench of National Commission may not, therefore, have a Judicial Member at all, else there would not have been any requirement of coming up with said Regulation.

41. Evidently, in the case in hand, no complex legal issue had been posed to the Bench, else instead of deciding the same, it would have, surely and certainly, referred the matter to its President, in terms of said Regulation.

42. Moreover, Section 29A of Consumer Protection Act, 1986 lays down that no act or proceeding of District Forum, State Commission, or National Commission shall be invalid merely by reason of any vacancy or defect in its constitution. Thus, even where there is a defect in constitution of a Bench, which is not the case here, it shall not invalidate the order passed by such Bench.

43. The petitioners rely upon Divisional Manager N.I.C. Ltd., Jodhpur (supra). In said case, challenge was made to the orders passed by the State Consumer Disputes Redressal Commission, Rajasthan by questioning the authority and jurisdiction of a „Single Member Bench‟ to decide appeals arising from the orders passed by the District Consumer Redressal Forum. Hon‟ble High Court took note of composition of State Commission as given in Consumer Protection Act, 1986 and referred to Section 16(1B)(iii) which reads as under: - ―If the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it.‖

44. On the basis of said provision, substance was found in the plea put forth by the petitioners therein that if a single member of the Commission decides the appeals, the possible difference in opinion contemplated by Section 16(1B)(iii) would never arise. It was held that since the scheme of the Act contemplated a scenario of „difference of opinion amongst two members of the State Commission or the District Forum as the case may be‘ and resolution thereof by the third member, manifestly, such provision could not be allowed to be whittled away or diluted by permitting a single member to hear and decide the appeals. Therefore, in context of State Commission, it was held that its Bench could not be constituted by a single member.

45. Quite clearly, the abovesaid precedent is in context of decision given by a Single Member Bench of State Commission. Herein, we are not seized with any such issue of a Bench having single member.

46. If a two-member Bench of National Commission finds legal complexity in matter or if they differ in opinion on any point, the matter can be referred in terms of Regulation 12 of Consumer Protection Regulations, 2005 or as per Section 20 (1A) (iii) of Consumer Protection Act, 1986 but there is no mandate in law that such two-member Bench of NCDRC must, necessarily, have a judicial member in it.

47. Undoubtedly, a regulation cannot override a statutory provision but herein, the regulation is mere clarificatory and explanatory and does not mitigate or violate any provision of Consumer Protection Act, 1986.

48. The position remains the same even in the amended Act i.e. Consumer Protection Act, 2013 and the Regulations made thereunder. Such provisions are, virtually, analogous.

49. Thus, it cannot be said that the composition of Bench was in violation of any statutory provision. It is entirely upto the Hon‟ble President of National Commission to constitute a Bench and there is no requirement in law, making it obligatory for any such Bench to have one Judicial Member. Moreover, as noted above, if there is any complex question of law and if there is no unanimity between the two Members of a given Bench, matter can always be referred to the President for constitution of another Bench.

50. Strictly speaking, question of interpretation does not arise in the present matter as there is no provision which may, even remotely, hint that such composition was impermissible.

51. In view of foregoing discussion, this Court does not find any merit in the present petition. Same is accordingly dismissed.

52. Pending applications also stand disposed of in aforesaid terms.

JUDGE SEPTEMBER 11, 2025/dr/js