1995 ALLMR ONLINE 791

D.R. DHANUKA, J.

KRISHNA TRADERS Vs. R. G. KHEDKAR

W. P. No. 1613 of 1995

31st August, 1995

Petitioner Counsel: M. P. Vashi
Respondent Counsel: P. D. Ankalesaria

Consumer Protection Act (1986),S. 10

JUDGMENT

ORDER :- By this petition, filed under Article 226 of the Constitution of India, the petitioner has sought issue of a writ of quo warranto against respondent No. 1. In substance, the petitioner has impugned notification dated 22nd September, 1994 issued by respondent No. 2 appointing respondent No. 1 as the President of Bombay Suburban District Forum under section 10 of Consumer Protection Act, 1986.

2. The respondent No. 1 is a retired Additional Sessions Judge. Section 10(1) of the Consumer Protection Act, 1986 provides that each District Forum shall consist of a person who is, or has been, or is qualified to be a District Judge to be nominated by the State Government, to be its President. The Respondent No. 1 fulfils the requirements of section 10(1)(a) of the Act.

3. On 30th December 1989 the respondent No. 1 was appointed as the President of the District Consumer Redressal Forum. On 29th October 1991, the respondent No. 1 resigned from the said office. On 25th November 1991, the resignation of respondent No. 1 was accepted by respondent No. 2. The respondent No. 1 is re-appointed as President of the Forum by order dated 22-9-1994.

4. Section 18-A of Consumer Protection Act, 1986 provides for filling up of the vacancy in the Office of the President. Section 18-A of the said Act reads as under :

"18A. Vacancy in the office of the President. - When the office of the President of the District Forum or of the State Commission, as the case may be, is vacant or when any such President is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such person, who is qualified to be appointed as President of the District Forum, or, as the case may be, of the State Commission, as the State Government may appoint for the purpose."

5. Shri A. K. Chawla, the then President of the Forum proceeded on leave. In this situation, the respondent No. 2 issued the impugned notification appointing respondent No. 1 as the President of the Forum. The respondent No. 2 passed the said order in exercise of the powers conferred on it by sub- section A of section 18 of the Consumer Protection Act, 1986.

6. Section 10(2) of the Consumer Protection Act, 1986 reads as under :

"10.(2) Every member of the District Forum shall hold office for a term of five years or up to the age of 65 years whichever is earlier, and shall not be eligible for re-appointment :

Provided that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by the appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who has resigned."

7. It is not the case of the petitioner that respondent No. 1 had already held the office for the term of five years on 22nd September 1994. It is not the case of the petitioner that the respondent No. 1 had already crossed the age of 65 years on that date. The age of respondent No. 1 on 22nd September 1994 was 63 years, 5 months. It is not the case of the petitioner that the re-appointment of respondent No. 1 as President of the Forum by impugned order dated 22nd September 1994 is in contravention of the main provision contained in section 10(2) of the Act. The learned counsel for the petitioner submits that on true construction of the proviso appended to section 10(2) of the Act, the Court should take a view that once a member resigns from office, he cannot be re-appointed. The learned counsel for the petitioner submits that the respondent No. 1 was not qualified to be re-appointed as President of the Forum in view of the respondent No. 1 having resigned from the said post on 29th October 1991 and the said resignation having been accepted by the Government of Maharashtra on 25th November 1991. In my opinion, the learned counsel for the petitioner is in error. The proviso to section 10(2) of the Act does not create any bar to re-appointment of a member of the District Forum at all. The said proviso cannot be interpreted in a manner so as to nullify the main part of sub-section (2) of section 10 of the Act. If a member of the District Forum resigns from office, the said vacancy caused as a result of resignation may be filled up by appointment of any person possessing the qualifications mentioned in sub-section (1) of section 10. The Respondent No. 1 does possess such qualifications. The bar to re-appointment comes in only if the member of the Forum has already held office for a period of five years or has crossed the age of 65 years and not otherwise.

8. The learned counsel for the petitioner invited the attention of the Court to the ratio of the judgment of the Supreme Court in the case of Binay Kant Mani Tripathi vs. Union of India reported in AIR 1994 SC 502. In this case, the Apex Court construed section 6 of the Administrative Tribunals Act, 1985. Section 10 of the Consumer Protection Act, 1986 bears no analogy with section 6 of the Administrative Tribunals Act, 1985. In my opinion, the ratio of the said judgment has no relevance whatsoever for the purpose of interpreting section 10(2) of Consumer Protection Act, 1986. The learnedcounsel for the petitioner also invited the attention of the Court to the Article 217 of the Constitution of India. In my opinion, reference to the said Article is equally irrelevant.

9. The learned counsel for the respondent No. 2 points out that this petition has not been filed bona fide as obvious from the date of filing of the petition and the notices issued by the Forum against the petitioner. It appears that a grievance was made by one Miss Margaret Mascarenhas in respect of non-payment of Rs. 8,880/-. It is not necessary to decide this contention raised on behalf of respondents. In my opinion, the impugned notification dated 22-9-1994 was issued by respondent No. 2 lawfully and no case is made out for issue of writ of quo warranto.

10. In the result, the petition fails. The petition is dismissed.

11. Issue of the certified copy expedited.

Writ petition dismissed.