D.K.Kapoor
World Consumer Rights Day is celebrated all over world on March 15 every year. During previous years, it has almost become a regular feature with Govt. of India, CAPD Department to organize such conferences in collaboration with National Consumer Commission of India, Delhi, obviously with a view to assessing the progress taking place in giving effect to consumer rights in India by redressal agencies at District and State level, created under Consumer Protection Act. Such conferences are attended by Presidents of the country’s State Commissions, Registrars and secretaries to Govt. CAPD Department of all states. Great significance is attached to such conferences as all meets result in yielding fruitful results e.g. a large number of amendments came to be incorporated in various provisions of the Consumer Protection Act 1986 (Central Act) and new provisions have been periodically introduced in order to make the Act more meaningful and consumer friendly, of course, as a sequel to such conferences. Very little attention is given to the J&K Consumer Act and consumer fora; the most vital institution has been rendered as persona non grata due to absolute ignorance by State Government. Amendments made in J&K Act in 1993[Act No. 50, w.e.f. 18.6.1993] did not meet the aspirations of consumers of this state. At a point of time the Act looked only a hoax, but the malady it was afflicted with came to be redressed by latest amendments. Based on past experience, the Central Act has undergone modernization by Amendment Act No. 62 of 2002 [enforced vide Notification No. S.O. 270 (E) dated 10.3.2003], which, more or less, overhauled the edifice of the enactment to the extent it emerged as a true friend of Indian consumers. The amended Central Act has now aptly emerged as a consumer-friendly Act and its provisions are scripted as a beneficial legislation in true sense.
Many people may not be aware that we have a separate Consumer Protection Act in our State, which is called the Jammu and Kashmir Consumer Protection Act, 1987. Nevertheless, it would not be exaggeration to say that the whole Act is but a paradoxical attempt to bring in a hypothesized copy of Central Act. Precisely speaking, the Act guarantees twin remedies to a consumer i.e. (i) against defective goods purchased by a consumer and (ii) against deficient service hired by a consumer. Any goods purchased or service hired is excluded from the purview of the Act if it is purchased for ‘resale or for commercial purposes’. Similar provision also applies regarding hired services. The Act also conceives of remedies in cases of unfair trade practices of traders etc. The procedure prescribed is very simple. No fee is paid on complaints by aggrieved consumer on complaints made by him. Even the evidence is taken on affidavits and witnesses need not queue up in Consumer courts. Time-frame disposal of complaints and appeals is provided in the Act. District-level Forum provides remedy up to rupees ten lakh and the State Commission (working in Jammu and Srinagar) has the unlimited jurisdiction in matters above rupees ten lakh. False and frivolous complaints are to be dismissed and clandestine complainant fined up to rupees ten thousand. Moreover, any defiant trader or other person can be imprisoned for a period of ‘not less than one month, but it can extend up to three years’.
All said and done the Act appears to be lucrative. The Central Act has comprehensive provisions for meeting consumers’ grievances. The sorry state of affairs regarding the State Act is that it is full of lacunae and flaws that need to be outrightly addressed. Important provisions of the J&K Act lack legislative precision and need immediate amendments. To quote a few incomplete provisions and those are wanting are…. ‘Section 2(o), which does not exclude hiring of services for commercial purposes and provision like ‘earning livelihood’ etc. in this context is conspicuously missing; S.15 envisages pecuniary jurisdiction of the State Commission, which must be unlimited. The unwitting amending Section 15 reducing pecuniary jurisdiction of the State Commission from unlimited jurisdiction as “exceeding five/ten lac rupees” to “rupees ten lacs” and “rupees fifty lacs” is only a wild joke; there are no provisions for ‘dismissal of complaints in default on account of non-prosecution’ and consequently restoration of complaints/appeals dismissed in default; there is no provision in the Act 1987 regarding “interim relief”, howsoever intense injustice may be fraught on the aggrieved consumer; S.21 provides for punishment and imprisonment to persons not complying consumer Forum’s orders. Unless Judicial Magistrate’s powers are invested on the Fora, section 21 is a meaningless provision in the Act and makes the Act of 1987 only a farce and a toothless tiger; there are no comprehensive Rules and Regulations for the conduct of business by fora framed in consonance with the Act; in spite of a number of Resolutions passed by Center Government (CAPD Department) and National Commission regarding remunerations of the Presidents and Members of State Consumer fora, no honorable salary/honorarium is paid to President and Members who discharge quasi judicial function for the whole day as a result no talent is attracted. By SRO 361 of dated 13.12.2011 PDJs of respective districts are appointed ex officio President of respective district, but only a few District fora are functional. Principal District Judge is a very busy judicial officer and has a number of important matters to address, besides administration. Obviously, therefore, he is unable to give required attention to Consumer Forum proceedings; there is no provision in the State Act regarding administrative control over District Fora. The PDJs will never accept subordination of Government or State Commission. Retired District Judges or persons eligible to be appointed as District Judges can be genuinely appointed Presidents of District fora, as all states across the country have, may be by connecting two-three nearby districts or considering the work load.
At present, not only a large number of District fora are non-functional, even the State Consumer Commission is defunct. Besides acute shortage of staff, at present only one member is looking after both wings of the Commission. It appeared in a section of press recently that the High Court is pleased to direct the State Government to appoint President and members of the State Commission within three weeks. The SAC working under the stewardship of Governor, J&K State may be feeling difficult for want of an available retired High Court Judge for being appointed as President of the Consumer Commission as it has is an uphill task in appointing President/Chairperson for defunct Human Rights Commission, Backward Commission, Chairman PS Board (as its Chairman is likely to complete its term soon), as all these Commissions need a retired Judge of the High Court to be President/Chairman. In this connection, may I suggest that ‘Select Committee (S.14) may immediately appoint a ‘member’ so that the Commission starts functioning at both places i.e. Jammu as well as Srinagar and pass appropriate relief to a host of complainants/ appellants. At present, one Member (Author) is working at Jammu as acting President and on appointment of another Member (from Kashmir, as per past practice), the Commission would legally have a complete quorum (under section 12 of the Act) and the duo can lawfully dispose of consumer complaints/ appeals etc. May I also suggest that S.15 of Amendment Act No. XXI of 2011 also requires to be amended at the earliest so as to vest pecuniary jurisdiction in the State Commission by omitting words “rupees five lacs” and “rupees thirty lacs” the words “rupees ten lacs” and “rupees fifty lacs” and inserting the words “exceeding rupees ten lakhs” as the last amendment has caused a legislative ambiguity in the most vital provision of the Act. Let me add here that unlike National Commission at the Center, we do not have any such forum to hear complaints/appeals. The J & K High Court has only appellate jurisdiction under the 1987 Act or Writ Jurisdiction. This is high time that sincere efforts are made to help people of this State to be benefitted by this consumer-friendly benevolent legislation.
The author is Distt. & Sessions Judge(Retd))
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