The District Consumer Forums and the State Commissions have no power to set aside ex-parte orders, the Supreme Court reiterated the legal position while allowing an appeal filed by Judicial Member of the State Consumer Disputes Redressal Commission, West Bengal.
An interesting fact about this order passed by the bench of Justice KM Joseph and Justice AS Bopanna is that it upheld an order passed by Samaresh Prasad Chowdhury, (a serving Judicial member of Consumer Commission) in an appeal filed by himself against the order passed by the High Court that had set it aside.
The bench also set aside adverse remarks made by Calcutta High Court against Chowdhury. While considering a petition challenging an order passed by him, in which he refused to set aside an ex-parte order, the High Court had made scathing remarks about functioning of the commission presided by him.
Before the Apex Court, Chowdhury contended that there is no power to set aside ex-parte order, as far as the State Commission is concerned. The Section 22A of the Consumer Protection Act only empowered the National Commission in this regard, he submitted. The bench, agreeing with these submissions, observed:
We are of the view that there is merit in the case of the appellant. The observations which have been made against the appellant herein appear to have been unjustified having regard to the actual statutory provisions contained in the Act in question, as interpreted by this Court in a three-Judge Bench decision in Rajeev Hitendra Pathak vs. Achyut Kashinath Karekar, (2011) 9 SCC 541.
Allowing the appeal, the bench expunged all the observations which were made in the High Court Order against Chowdhury.
Senior Advocate P.S. Datta assisted by Advocates Anwesha Saha and Fuzail Ahmad Ayyubi represented Chowdhary and Advocates Partha Sil, Ruchir Mishra, Ramneek Mishra, Tavish B. Prasad appeared for the other side.
Rajeev Hitendra Pathak vs. Achyut Kashinath Karekar
In this case, a three judge bench of the Supreme Court considered the question whether the District Consumer Forums and the State Commissions have the power to set aside their own ex parte orders or in other words have the power to recall or review their own orders? After examining the scheme of the Consumer Protection Act, the court noted that the District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and therefore held that the powers which have not been expressly given by the Statute cannot be exercised. It also observed that even after the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 , the power of review or recall has vested with the National Commission only.