it was not open to the writ petitioner to defy the order of transfer on the ground of non-communication when more than 100 1 AIR 1970 SC 214 7 Medical Officers were transferred by the same common transfer order. Firstly, he stood relieved by the State of Uttarakhand and secondly, he did not report at the place of posting but submitted an application before Director Medical Health Services.

Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr. 4 observed that judges must know their limits. They must have modesty and humility, and not behave like emperors. The legislature, the executive and the judiciary all have their own broad spheres of operation. It is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

Thus, we feel, it is time to reiterate that public officers should not be called to court unnecessarily. The dignity and majesty of the Court is not enhanced when an officer is called to court. Respect to the court has to be commanded and not demanded and the same is not enhanced by calling public officers. The presence of public officer comes at the cost of other official engagement demanding their attention. Sometimes, the officers even have to travel long 13 distance. Therefore, summoning of the officer is against the public interest as many important tasks entrusted to him gets delayed, creating extra burden on the officer or delaying the decisions awaiting his opinion. The Court proceedings also take time, as there is no mechanism of fixed time hearing in Courts as of now. The Courts have the power of pen which is more effective than the presence of an officer in Court. If any particular issue arises for consideration before the Court and the Advocate representing the State is not able to answer, it is advised to write such doubt in the order and give time to the State or its officers to respond.

it was not open to the writ petitioner to defy the order of transfer on the ground of non-communication when more than 100 1 AIR 1970 SC 214 7 Medical Officers were transferred by the same common transfer order. Firstly, he stood relieved by the State of Uttarakhand and secondly, he did not report at the place of posting but submitted an application before Director Medical Health Services.

The writ petitioner was posted at Badaun. He was to report at the place of posting and after reporting at the place of posting, he should have asked for transfer, if permissible, according to the requirement of the State. But he could not have dictated the place of posting without even joining the place where he was first posted. Therefore, we find that the orders of the High Court dated 05.03.2020 and 07.08.2019 are wholly unjustified, unwarranted, arbitrary and illegal. The same are set aside and the appeal is allowed with no order as to costs.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2320 OF 2021

(ARISING OUT OF SLP (CIVIL) NO. 7487 OF 2020)

THE STATE OF UTTAR PRADESH & ORS. .....APPELLANT(S)

VERSUS

DR. MANOJ KUMAR SHARMA .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by the

Division Bench of the High Court of Allahabad, Lucknow Bench at

Lucknow on 05.03.2020, affirming the order passed by the learned

Single Bench on 07.08.2019. Vide the aforesaid orders, the

appellants were directed to calculate and pay 50% of the back

wages to the respondent, hereinafter referred to as writ petitioner,

and to grant all the consequential benefits in accordance with law.

2. The writ petitioner was posted in State of Uttaranchal (for short

‘Government of Uttaranchal’ now Uttarakhand, hereinafter referred

to as Uttarakhand) as a Medical Officer before the reorganization of

the State of Uttar Pradesh. The writ petitioner was transferred to

State of Uttar Pradesh as per the option given by Medical Officers

of State of Uttar Pradesh including the writ petitioner. As many as

208 Medical Officers and 5 Dental doctors of Class -2 Category

belonging to the U.P. Provincial Medical and Health Services (Male

1

Cadre) were posted in the State of Uttar Pradesh on 6.3.2002. The

name of the writ petitioner appears at Serial No. 99 of the said list

of Medical Officers. The writ petitioner was to report at Badaun

under the Chief Medical Officer.

3. The State of Uttarakhand relieved the Medical Officers in phases.

The writ petitioner was amongst 22 Medical Officers in the second

phase who were relieved by the State of Uttarakhand on 5.7.2003

in terms of the posting order of the Uttar Pradesh Government

dated 06.03.2002. The name of the writ petitioner appears at

Serial No. 13, then posted as Surgeon at District Hospital,

Uttarkashi, Uttarakhand. The writ petitioner was relieved by Chief

Medical Superintendent, District Hospital, Uttarkashi on

12.09.2003.

4. It is thereafter that the writ petitioner instead of reporting at place

of posting i.e., Badaun, submitted a letter to Director Medical

Health Services, Lucknow on 19.09.2003 submitting his joining

report. On the same date, by another letter, a request was made to

get a posting in Muzaffarnagar, Ghaziabad or Bijnore District. Even

though the writ petitioner was posted at Badaun, he did not join

there and was well satisfied by giving a letter to Director Medical

Health Services of his joining in that office.

5. Subsequently, the writ petitioner filed a writ petition in the year

2006 wherein he claimed a writ of mandamus commanding the

State to post the writ petitioner as Medical Officer in any Hospital

according to his qualification and experience in the specialized

2

cadre. The learned Single Judge allowed the writ petition inter alia

on the ground that the counter affidavit was silent as to in what

manner the office memorandum or the posting order was served

upon the writ petitioner. The argument by the State counsel that

the writ petitioner did not join at Badaun was said to be not

supported by any letter of the writ petitioner. The learned Single

Judge found that no decision has been taken in pursuance of letter

dated 19.09.2003 for posting of the writ petitioner. The Court thus

concluded that the posting order or the transfer order was never

communicated or served upon the writ petitioner at any point of

time. Therefore, the judgments referred to by the State counsel

were not applicable in the facts and circumstances of the case.

Further, the Secretary, Medical Health, Government of U.P. was

summoned to the Court who justified the non-posting of the writ

petitioner. The Court concluded as under:

“The aforesaid conduct of the State Government in dealing

with its officers is not happy state of affair. The State

Government should have acted with responsibility and

should have been quick enough to take a decision in the

matter. The State Government has been sitting tight over

the matter since 2006 when the writ petition was filed.

Action of the State Government, therefore in these

circumstances, cannot be justified and neither the State

Government can take benefit of the posting order issued on

6

th March, 2002. We are therefore of the view that a heavy

cost is required to be imposed upon the State Government

for approaching in such a callous manner.

We accordingly impose a cost of Rs.50,000/- upon the State

Government. The State government will deposit the cost

before this Court within fifteen days, which shall be

transferred to the Mediation Centre of this Court. Further, a

writ in the nature of mandamus is issued to the State

Government to issue a posting order in respect of the

3

petitioner within the aforesaid period.

Question of back wages is left open in the present writ

petition.

The Secretary, Medical Health need not appear again.”

6. In pursuance of the said order of the High Court, a fresh posting

order was issued to the writ petitioner on 09.12.2016, posting him

under Chief Medical Officer, Muzaffarnagar. Subsequently, another

writ petition was filed for direction for payment of back wages. The

writ petition was disposed of with a direction to decide the

question of back wages within a period of four weeks.

7. The Principal Secretary declined the grant of back wages on

27.2.2009 inter alia on the following grounds:

“It is pertaining to mention that Dr. Manoj Kumar Sharma

Surgeon District Hospital Uttarkashi after being relieved on

05.07.2003 from the State of Uttaranchal submitted joining

before Director General Medical and Health Services U.P.

Lucknow on 18.09.2003, repeatedly made request for

posting near his home District Saharanpur. If his request for

place of posting was not accepted it was not open to him to

say that any hindrance was created in his joining and he

remained in waiting for posting. The period of Dr. Manoj

Kumar Sharma from 05.07.2003 to 09.12.2016 cannot be

treated as compulsory waiting period as he had been given

posting but he did not comply with posting order and there

was no justification to sit idle for about 13 years and not

performing Government work in anticipation of decision to

be taken on his representation and such attitude does not

reflect his readiness to work.”

8. The back wages for the said period were thus declined for the

reason that the writ petitioner has not performed any government

work from 05.07.2003 till 09.12.2016 and it cannot be treated as

compulsory waiting period under the provisions of Fundamental

4

Rules 9(6)(b)(iii) of Financial Hand Book Volume-2-Part 2-4 and he

was thus granted extra ordinary leave for the aforesaid period.

9. The writ petitioner challenged the said decision by way of another

writ petition. The order of the learned Single Bench shows that an

office memorandum was issued on 08.02.2018 proposing to initiate

departmental enquiry on the ground of non-joining. The contempt

petition was filed and it appears that in view of the contempt

petition, the office memorandum was cancelled on 29.05.2018.

The learned Single Judge in the order dated 7.8.2019 held that the

order in the writ petition dated 26.09.2016 had attained finality,

therefore, the benefit of back wages could not have been declined.

The Court held as under:

“That once the order dated 26.09.2016 attained finality and

there was no challenge to the same, thus, the issues and the

findings in the aforesaid writ petition could not be in the

domain of the respondents to challenge indirectly by issuing

the impugned office memorandum dated 27.02.2019. It is

no more res-integra that what cannot be done directly

cannot be done indirectly either. In the present facts and

circumstances, the issue regarding the fact of the petitioner

not being able to join between 05.07.2003 to 09.12.2016

was the core issue in the earlier writ petition decided on

26.09.2016. The Division Bench of this Court while deciding

and allowing the aforesaid writ petition had categorically

noticed that the State was unable to establish the fact that

the alleged joining order dated 06.03.2002 was ever served

or communicated to the petitioner. This Court has already

re-produced the relevant portion of the aforesaid judgment

and thus, it is evident that the reason indicated in the office

memorandum dated 27.02.2019 is the same which stood

decided in the earlier writ petition in favour of the

petitioner.”

10. The learned Single Judge also noticed the fact that the writ

petitioner was gainfully employed during this period but still

5

granted 50% of back wages. The Court held as under:

“Notwithstanding the aforesaid, this Court has to balance

the equities in between the parties and considering the fact

that the petitioner did not deny the plea of the respondent

that he was gainfully employed even though the burden to

prove the same was on the employer coupled with the fact

that the respondent have only taken a bald plea in their

counter affidavit and no positive evidence or document was

placed on record to substantiate its plea.

Hence, taking a holistic view, this Court is of the opinion that

ends of justice would be served if the petitioner is granted

50% back wages for the period 05.07.2003 to 28.12.2016

treating the petitioner to be in continuous service. As far as

the other consequential benefits, admissible under law, are

concerned the respondents in the impugned order also

admit that the same are to be given to the petitioner.”

It is the said order which was affirmed by the learned Division

Bench, which is subject matter of challenge in the present appeal.

11. The learned Single Bench in the first round held that the State has

not produced as to how and when the posting order was

communicated to him. The Court was aware of the fact that the

writ petitioner has been relieved by the Government of

Uttarakhand on 12.09.2003 and a communication has been

addressed by Shri K.M. Mehrotra, Joint Director on 12.09.2003 and

that he had submitted a joining report on 18.09.2003. The said

joining report was submitted not at the place of posting but before

the Director Medical Health Services. We find that the High Court in

this background, when the writ petitioner stood relieved from

Uttarakhand, could not have returned a finding that the State has

not shown as to how the transfer and posting order was conveyed

6

to the writ petitioner. The High Court overlooked a judgment of this

Court reported as State of Punjab v. Khemi Ram1

 wherein a

question arose that whether the order of suspension was to be

actually received by the employee to be affected. This Court

examined the question as to whether communicating the order

means its actual receipt by the concerned government servant.

The Court held as under:

“16. …It will be seen that in all the decisions cited before us

it was the communication of the impugned order which was

held to be essential and not its actual receipt by the officer

concerned and such communication was held to be

necessary because till the order is issued and actually sent

out to the person concerned the authority making such

order would be in a position to change its mind and modify it

if it thought fit. But once such an order is sent out, it goes

out of the control of such an authority, and therefore, there

would be no chance whatsoever of its changing its mind or

modifying it. In our view, once an order is issued and it is

sent out to the concerned government servant, it must be

held to have been communicated to him, no matter when he

actually received it. We find it difficult to persuade ourselves

to accept the view that it is only from the date of the actual

receipt by him that the order becomes effective. If that be

the true meaning of communication, it would be possible for

a government servant to effectively thwart an order by

avoiding receipt of it by one method or the other till after

the date of his retirement even though such an order is

passed and despatched to him before such date. An officer

against whom action is sought to be taken, thus, may go

away from the address given by him for service of such

orders or may deliberately give a wrong address and thus

prevent or delay its receipt and be able to defeat its service

on him. Such a meaning of the word “communication” ought

not to be given unless the provision in question expressly so

provides. ………”

12. Therefore, it was not open to the writ petitioner to defy the order of

transfer on the ground of non-communication when more than 100

1 AIR 1970 SC 214

7

Medical Officers were transferred by the same common transfer

order. Firstly, he stood relieved by the State of Uttarakhand and

secondly, he did not report at the place of posting but submitted an

application before Director Medical Health Services. In the first

round, even after directing to issue a posting order to the writ

petitioner, the question of back wages was left open. It is

thereafter, in pursuance of another writ petition, the competent

authority in the State passed an order declining back wages but

granted extra ordinary leave for the aforesaid period.

13. Learned counsel for the writ petitioner submitted that in the writ

petition he has sought to post him anywhere in the State of Uttar

Pradesh and that in the order dated 26.09.2016 a finding is

returned i.e., posting order dated 06.03.2002 was not served upon

the writ petitioner. It is also pointed out that the Government of

Uttarakhand has relieved medical officers in stages and all of them

submitted joining report to the Director Medical Health Services,

U.P. and not at the place of posting mentioned in the order issued

by the Uttar Pradesh Government. A reference is made to general

practice in the Government of Uttar Pradesh as a Medical Officer is

asked to submit three choices of place of posting and that this

practice still continues.

14. We do not find any merit in the arguments raised. The writ

petitioner was relieved by the Government of Uttarakhand in 2003,

however, he filed writ petition in 2006, meaning thereby for three

8

years, “he was awaiting posting orders”. Under the guise of

awaiting posting orders, he started private practice and

intentionally delayed the decision on the writ petition for almost 13

years. The writ petition was dismissed in default on 22.09.2008 and

was restored on 11.12.2014. Such conduct of the writ petitioner

suggests that he was not keen to join as a Medical Officer after he

was relieved by the Government of Uttarakhand. The writ petitioner

cannot take a stand that he had not received the order dated

06.03.2002. The order of Uttarakhand Government relieving him on

05.07.2003 is in pursuance of the order of the Government of Uttar

Pradesh on 06.03.2002. It is a case of the feigned ignorance. Even

if there is a practice that the Medical Officer report at the office of

Director Medical Health Services is not a ground on the basis of

which illegality can be permitted to be perpetuated. The option of

posting would be available only if there are general transfers not in

a case where the Medical Officers have been allocated to their

parent state in view of the option exercised.

15. As noticed by the learned Single Bench in the third round, the writ

petitioner was gainfully employed and it is impossible to imagine

that a Medical Officer would sit idle for 13 long years. Therefore,

the grant of 50% of back wages for the entire period would be

giving benefit of one’s own wrong who intentionally abstained from

duty for 13 long years and now wants to take benefit of back wages

as well. Such stand of the writ petitioner is not only unjustified but

wholly condemnable. The State was remiss in not taking action

9

against the writ petitioner for absence from duty. Once the writ

petitioner did not join the place of posting, the State should have

taken steps to initiate disciplinary proceedings. Still further, the

State issued posting order as per the directions in the first writ

petition. The attempt of the State to initiate proceedings in the

year 2018 invited ire of the Court. The State government cancelled

the proceedings to initiate disciplinary proceedings.

16. Another disturbing feature which comes to our notice is that in the

first round, the Secretary, Medical Health was called in-person in

the Court. Even in the present proceedings, after stay of the order

of the Division Bench of the High Court on 22.2.2021, an order was

passed by the High Court on 2.3.2021 to seek personal presence of

the officer on the next date of hearing. In these circumstances, this

Court in the present proceedings passed the following order on

6.4.2021: -

“On 22.02.2021, we had issued notice in the Special Leave

Petition and stayed the operation of the impugned order.

The present application has been filed for stay of the

contempt proceedings on account of the order passed on

02.03.2021.

To say the least, we are quite shocked at the perusal of the

order dated 02.03.2021. Once the operation of the order has

been stayed, the natural consequence would be that the

contempt proceedings would be kept in abeyance. It is not

as if this aspect was not brought to the notice of the learned

Judge dealing with the Contempt Petition No.139/2020 as an

application had been filed for exemption from personal

appearance. However, the exemption from personal

appearance was granted only for the date of 02.03.2021 and

the matter was listed on 08.04.2021 once again directing

both the officers to remain present in Court in pursuance to

10

an earlier order dated 05.02.2021.

Once the order of which contempt was alleged was stayed,

there would be no cause for calling the officers as there was

no question of any non-compliance of the order which had

been stayed. This Court has even on various occasions

through judicial pronouncements deprecated the practice of

unnecessarily calling officers to Court. In that context, it has

been observed that the trust, faith and confidence of the

common man in the judiciary cannot be frittered away by

unnecessary and unwarranted show or exercise of power.

Greater the power, greater should be the responsibility in

exercising such power2

. The frequent, causal and

lackadaisical summoning of high officials by the Court

cannot be appreciated. We may add that this does not mean

that in compelling situations the same cannot be done but

the object cannot be to humiliate senior officials3

. In the

present case, we are concerned with contempt proceedings.

No doubt if the order is not complied with, presence can be

directed unless exempted. However, if the operation of the

order is stayed, we fail to understand what purpose was

being served by calling the officers for the next date as no

specific date had been fixed by the Court post the stay

having been granted. We do believe that this is unnecessary

harassment of the officers and there was no occasion to

pass the order on 02.03.2021. It has resulted in the

petitioners being compelled to move the present

application.

We stay the contempt proceedings in Contempt Petition

No.139/2020 pending before the High Court of Judicature at

Allahabad, Lucknow Bench, Lucknow and further make it

clear the no presence of any officer concerned is required.

We also make it clear that as and when, if the occasion so

arises, for restarting the contempt proceedings, the matter

will be placed before a Bench of another Judge. A copy of

this order be placed before the learned Judge who passed

this order as well as the Chief Justice. The IA stands

disposed of.”

17. A practice has developed in certain High Courts to call officers at

the drop of a hat and to exert direct or indirect pressure. The line of

separation of powers between Judiciary and Executive is sought to

2 State of U.P. & Ors. v. Jasvir Singh & Ors. – (2011) 4 SCC 288

3 R.S. Singh v. U.P. Malaria Nirikshank Sangh & Ors. – (2011) 4 SCC 281

11

be crossed by summoning the officers and in a way pressurizing

them to pass an order as per the whims and fancies of the Court.

18. The public officers of the Executive are also performing their duties

as the third limbs of the governance. The actions or decisions by

the officers are not to benefit them, but as a custodian of public

funds and in the interest of administration, some decisions are

bound to be taken. It is always open to the High Court to set aside

the decision which does not meet the test of judicial review but

summoning of officers frequently is not appreciable at all. The

same is liable to be condemned in the strongest words.

19. This Court in a judgment reported as Divisional Manager,

Aravali Golf Club & Anr. v. Chander Hass & Anr.

4

 observed that

judges must know their limits. They must have modesty and

humility, and not behave like emperors. The legislature, the

executive and the judiciary all have their own broad spheres of

operation. It is not proper for any of these three organs of the

State to encroach upon the domain of another, otherwise the

delicate balance in the Constitution will be upset, and there will be

a reaction. This Court held as under:

“19. Under our Constitution, the legislature, the executive

and the judiciary all have their own broad spheres of

operation. Ordinarily it is not proper for any of these three

organs of the State to encroach upon the domain of another,

otherwise the delicate balance in the Constitution will be

upset, and there will be a reaction.

20. Judges must know their limits and must not try to run

the Government. They must have modesty and humility, and

not behave like emperors. There is broad separation of

4 (2008) 1 SCC 683

12

powers under the Constitution and each organ of the State—

the legislature, the executive and the judiciary—must have

respect for the other and must not encroach into each

other's domains.

21. The theory of separation of powers first propounded by

the French thinker Montesquieu (in his book The Spirit of

Laws) broadly holds the field in India too. In Chapter XI of his

book The Spirit of Laws Montesquieu writes:

“When the legislative and executive powers are united

in the same person, or in the same body of Magistrates,

there can be no liberty; because apprehensions may

arise, lest the same monarch or senate should enact

tyrannical laws, to execute them in a tyrannical

manner.

Again, there is no liberty, if the judicial power be not

separated from the legislative and executive. Were it

joined with the legislative, the life and liberty of the

subject would be exposed to arbitrary control; for the

judge would be then the legislator. Were it joined to the

executive power, the judge might behave with violence

and oppression.

There would be an end of everything, were the same

man or the same body, whether of the nobles or of the

people, to exercise those three powers, that of enacting

laws, that of executing the public resolutions, and of

trying the causes of individuals.”

(emphasis supplied)

We fully agree with the view expressed above.

Montesquieu's warning in the passage above quoted is

particularly apt and timely for the Indian judiciary today,

since very often it is rightly criticised for “overreach” and

encroachment into the domain of the other two organs.”

20. Thus, we feel, it is time to reiterate that public officers should not

be called to court unnecessarily. The dignity and majesty of the

Court is not enhanced when an officer is called to court. Respect to

the court has to be commanded and not demanded and the same

is not enhanced by calling public officers. The presence of public

officer comes at the cost of other official engagement demanding

their attention. Sometimes, the officers even have to travel long

13

distance. Therefore, summoning of the officer is against the public

interest as many important tasks entrusted to him gets delayed,

creating extra burden on the officer or delaying the decisions

awaiting his opinion. The Court proceedings also take time, as

there is no mechanism of fixed time hearing in Courts as of now.

The Courts have the power of pen which is more effective than the

presence of an officer in Court. If any particular issue arises for

consideration before the Court and the Advocate representing the

State is not able to answer, it is advised to write such doubt in the

order and give time to the State or its officers to respond.

21. The writ petitioner was posted at Badaun. He was to report at the

place of posting and after reporting at the place of posting, he

should have asked for transfer, if permissible, according to the

requirement of the State. But he could not have dictated the place

of posting without even joining the place where he was first posted.

Therefore, we find that the orders of the High Court dated

05.03.2020 and 07.08.2019 are wholly unjustified, unwarranted,

arbitrary and illegal. The same are set aside and the appeal is

allowed with no order as to costs.

.............................................J.

(SANJAY KISHAN KAUL)

.............................................J.

(HEMANT GUPTA)

NEW DELHI;

JULY 9, 2021.

14

in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy 4 Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly.”

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION 

WRIT PETITION (C) NO.446 OF 2021

SRI SAI RR INSTITUTE OF 

PHARMACY ...PETITIONER(S)

VERSUS

DR. A.P.J. ABDUL KALAM TECHNICAL

UNIVERSITY AND ANOTHER       ...RESPONDENT(S)

WITH 

WRIT PETITION (CIVIL) NO.448 OF 2021

SHRI BADRINATH COLLEGE OF 

PHARMACY  ...PETITIONER(S)

VERSUS

DR. A.P.J. ABDUL KALAM TECHNICAL

UNIVERSITY AND ANOTHER       ...RESPONDENT(S)

O R D E R

B.R. GAVAI, J.

1. Both   these   writ   petitions   filed   by   the   petitioner   –

colleges   seek   various   directions,   including   the   direction   to

respondent No. 1 ­ Dr. A.P.J. Abdul Kalam Technical University

(hereinafter referred to as “the University”), i.e, to comply with

1

Notification dated 19.3.2021 issued by the State Government

and grant conditional affiliation to the petitioner – colleges for

Academic Year 2020­2021; direction directing the University to

organize   special   examinations   for   B.   Pharma   students   for

Academic Year 2020­2021 in view of the aforesaid Notification

dated   19.3.2021;   and   direction   to   the   University   to   permit

students of the petitioner – colleges to participate in the special

examinations.

2. It is the contention of the petitioner – colleges that the

facts in the present writ petitions are identical with the facts in

Writ Petition (Civil) No. 390 of 2021 (VIIT Pharmacy College and

another vs. Dr. A.P.J. Abdul Kalam Technical University and

another)1

, which was allowed by this Court vide order dated

15.4.2021.

3. Insofar   as   Writ   Petition   (Civil)   No.   390   of   2021   is

concerned, the University has not seriously disputed that the

1 2021 SCC Online SC 322

2

facts in the present writ petitions are similar to that in Writ

Petition (Civil) No. 390 of 2021.  However, it is the contention of

the University, taken for the first time in Writ Petition (Civil) No.

448 of 2021 (Shri Badrinath College of Pharmacy vs. Dr. A.P.J.

Abdul Kalam Technical University & Anr.), that the petitioner ­

Shri Badrinath College of Pharmacy did not participate in the

counselling process and as such, is not entitled to any relief.

Another ground that has been taken is, that there is a similar

writ   petition   pending   before   the   High   Court   filed   by   the

petitioner ­ Shri Badrinath College of Pharmacy with regard to

the same relief. 

4. We   find,   that   the   facts   in   both   the   present   writ

petitions are almost similar to facts in Writ Petition (Civil) No.

390 of 2021 decided by this Court on 15.4.2021.  In both cases,

grant of affiliation was denied by the University on the sole

ground, that the timeline as prescribed by All India Council for

Technical Education (AICTE) had lapsed.  

3

5. It is also not in dispute, that vide Notification dated

19.3.2021,   the   State   Government   after   considering   the

recommendations   made   by   the   Affiliation   Committee   has

granted conditional affiliation to the petitioner ­ colleges for

admission in B. Pharma course in compliance with the order of

the High Court passed in Writ Petition No.12536 of 2020.

6. The writ petitions have been filed by the petitioner –

colleges since the University has refused to grant affiliation to

the petitioner – colleges and to permit their students to appear

for First Year B. Pharma examination.  

7. This Court while allowing Writ Petition (Civil) No. 390 of

2021 has observed thus:

“9. This   Court,   in   the   case   of,  Dr.   S.K.

Toshiwal   Educational   Trusts   Vidarbha

Institute   of  Pharmacy  (supra),  has held as

under:­

“87. In   view   of   the   above   and   for   the

reasons stated above, it is held that in the

field   of   Pharmacy   Education   and   more

particularly   so   far   as   the   recognition   of

degrees   and   diplomas   of   Pharmacy

4

Education is concerned, the Pharmacy Act,

1948   shall   prevail.   The   norms   and

regulations   set   by   the   PCI   and   other

specified authorities under the Pharmacy

Act   would   have   to   be   followed   by   the

concerned institutions imparting education

for   degrees   and   diplomas   in   Pharmacy,

including the norms and regulations with

respect   to   increase   and/or   decrease   in

intake  capacity of the  students  and the

decisions of the PCI shall only be followed

by the institutions imparting degrees and

diplomas in Pharmacy. The questions are

answered accordingly.” 

10. Indisputably, in the present case, the PCI

has granted approval to both the petitioners

vide order dated 10th  April 2020, with intake

capacity of 100 and 60 admissions/students

respectively.  Not only that, the petitions filed

by   the   petitioners   challenging   the   policy

decision of the State Government dated 15th

May   2020,   have   been   allowed   by   the   High

Court   vide   judgment   and   order   dated   9th

November   2020.     Indisputably,   the   State

Government  also vide notification dated  19th

March 2021, has granted conditional affiliation

after considering the recommendations made

by the Affiliation Committee.   In the peculiar

facts   and   circumstances   of   the   case   and

particularly, taking into consideration, that the

averments made on affidavit by the petitioners,

are not controverted by the respondent No.1­

University, we find that the petition deserves to

be allowed.”

5

8. As   in   the   aforesaid   case   decided   by   order   dated

15.4.2021,   in   the   present   case   also   the   approval   has   been

granted by the Pharmacy Council of India (PCI) on 10.4.2021 to

both the petitioner – colleges with an intake capacity of 60

students   each.     The   present   petitioners   have   also   filed   the

petitions   challenging   the   policy   decision   of   the   State

Government dated 15.5.2020 before the High Court and the

same have been allowed by the High Court by judgments and

orders dated 2.11.2020 and 10.11.2020.   In the present case

also, the State Government vide Notification dated 19.3.2021

has   granted   conditional   affiliation   after   considering   the

recommendations made by the Affiliation Committee.  

9. In the peculiar facts and circumstances of the case,

particularly finding that the facts in both the present cases are

almost similar with the facts in Writ Petition (Civil) No. 390 of

2021, we are of the view that the present petitioners are also

entitled to the same relief as is granted by this Court in Writ

Petition (Civil) No. 390 of 2021.   

6

10. We are therefore inclined to allow the petitions in the

following terms:

The University is therefore directed to grant affiliation

to the petitioner ­ Colleges for the Academic Year 2020­21 and

also   permit   the   students   of   the   petitioner   ­   Colleges   to

participate in the special examinations to be organized by the

University   for   the   Academic   Year   2020­21   in   view   of   the

Notification dated 19th March 2021.

11. The writ petitions are allowed in the above terms. 

…..….......................J.

[R.F. NARIMAN]

.................................J.

         [K.M. JOSEPH]

…….........................J.

[B.R. GAVAI]

NEW DELHI;

JULY 06, 2021.

7

delay. in filing of written statement - In our view, since the application for condonation of delay was filed prior to the judgment of the Constitution Bench, which was delivered on 04.03.2020, the said application for condonation of delay ought to have been considered on merits and should not have been dismissed on the basis of the Constitution Bench judgment in the case of New India Assurance Company Limited (supra) because the said judgment was to operate prospectively and the written statement as well as the application for condonation of delay had been filed much prior to the said judgment. Accordingly, the impugned order of the NCDRC deserves to be, and is, hereby set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.988 OF 2021

DR. A. SURESH KUMAR & ORS. APPELLANT(S)

 VERSUS

AMIT AGARWAL RESPONDENT(S)

O R D E R

The respondent had filed a claim for medical

negligence against the appellants-Dr. A. Suresh Kumar and

others. The appellants filed their reply but with a delay

of 7 days beyond the period of 30+15 days (45 days). The

National Consumer Disputes Redressal Commission (for

short ‘NCDRC’) rejected the application for condonation

of delay in filing the written statement on the ground

that in the Constitution Bench judgment of this Court in

the case of New India Assurance Company Limited vs. Hilli

Multipurpose Cold Storage Private Limited, reported in

(2020) 5 SCC 757, it has been held that the delay beyond

the period of 30+15 day (45 days) cannot be condoned by

the NCDRC. However, in paragraph 63 of the said judgment

dated 04.03.2020, it is categorically stated that this

judgment would operate prospectively. In the present

case, the written statement was filed by the appellants

on 25.11.2019 with an application for condonation of

1

delay of 7 days.

In our view, since the application for condonation

of delay was filed prior to the judgment of the

Constitution Bench, which was delivered on 04.03.2020,

the said application for condonation of delay ought to

have been considered on merits and should not have been

dismissed on the basis of the Constitution Bench judgment

in the case of New India Assurance Company Limited

(supra) because the said judgment was to operate

prospectively and the written statement as well as the

application for condonation of delay had been filed much

prior to the said judgment.

Accordingly, the impugned order of the NCDRC

deserves to be, and is, hereby set aside.

At this stage, learned counsel for the parties have

submitted that this Court may consider the matter with

regard to the condonation of delay of 7 days, which has

been rejected by the NCDRC.

Having heard learned counsel for the parties and

after going through the record and for the reasons given

in the application for condonation of delay filed before

the NCDRC and also considering the fact that the delay

was only for 7 days for which valid explanation has been

given and with the consent of learned counsel for the

parties, we condone the delay of 7 days in filing the

reply by the appellants before NCDRC, but on payment of

cost of Rs.25,000/- (Rupees twenty five thousand only).

2

The said cost shall be paid by the appellants to the

respondent within 15 days from today. In case, the said

payment is not made, written statement already filed by

the appellants on 25.11.2019 shall not be accepted.

However, if the payment is made, the written statement

shall be accepted by the NCDRC and every effort shall be

made by the NCDRC to decide the complaint filed by the

respondent as expeditiously as possible, preferably

within six months.

The appeal stands allowed with the above

observations.

..................J.

 (VINEET SARAN)

...................J.

 (DINESH MAHESHWARI)

New Delhi;

July 08, 2021

3

ITEM NO.14 Court 11 (Video Conferencing) SECTION XVII-A

 S U P R E M E C O U R T O F I N D I A

 RECORD OF PROCEEDINGS

Civil Appeal No(s).988/2021

DR. A SURESH KUMAR & ORS. Appellant(s)

 VERSUS

AMIT AGARWAL Respondent(s)

(FOR ADMISSION and IA No.41821/2021-GRANT OF INTERIM RELIEF)

Date : 08-07-2021 This appeal was called on for hearing today.

CORAM :

 HON'BLE MR. JUSTICE VINEET SARAN

 HON'BLE MR. JUSTICE DINESH MAHESHWARI

For Appellant(s) Mr. Anand Shankar Jha, AOR

Mr. Arpit Gupta, Adv.

Mr. Girish Bhardwaj, Adv.

Mr. Abhilash Gopinath, Adv.

Mr. Shubham Tripathi, Adv.

For Respondent(s) Mr. Amalpushp Shroti, AOR

 UPON hearing the counsel the Court made the following

 O R D E R

The appeal is allowed in terms of the signed reportable order.

Pending application(s), if any, stands disposed of.

(ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR)

(COURT MASTER (SH) (BRANCH OFFICER) AR-CUM-PS

(signed reportable order is placed on the file)

4

non filing of written statement - the delay beyond the period of 30+15 day (45 days) cannot be condoned by the NCDRC. However, in paragraph 63 of the said judgment dated 04.03.2020, it is categorically stated that this judgment would operate prospectively.

Supreme Court of India

New India Assurance Co. Ltd vs Hilli Multipurpose Cold Storage ... on 4 March, 2020

Author: Vineet Saran

                                                                   1

                                                            REPORTABLE

                           IN THE SUPREME COURT OF INDIA

                            CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.10941­10942 OF 2013

         NEW INDIA ASSURANCE CO. LTD.               …..APPELLANT(S)

                                       VERSUS

         HILLI MULTIPURPOSE COLD

         STORAGE PVT. LTD.                         ……RESPONDENT(S)

                                        WITH

                            CIVIL APPEAL NO.8343 OF 2014,

                         CIVIL APPEAL NO.1083­1084 OF 2016,

                         CIVIL APPEAL NO.1085­1086 OF 2016,

                           CIVIL APPEAL NO.4473 OF 2016,

                           CIVIL APPEAL NO.6095 OF 2016,

                           CIVIL APPEAL NO.5485 OF 2016,

                CIVIL APPEAL NO. 1964 OF 2020,

  [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.20748 OF 2016]

                           CIVIL APPEAL NO.10127 OF 2016,

                           CIVIL APPEAL NO.10129 OF 2016,

                CIVIL APPEAL NO. 1968 OF 2020,

Signature Not Verified

Digitally signed by

JAYANT KUMAR ARORA

  [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.29264 OF 2016]

Date: 2020.03.04

16:55:50 IST

Reason:

                CIVIL APPEAL NO. 1969 OF 2020,

  [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.31190 OF 2016]

                                                       2

              CIVIL APPEAL NO. 1970 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.36048 OF 2016]

              CIVIL APPEAL NO.10333 OF 2016,

              CIVIL APPEAL NO. 1971 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.1300 OF 2017]

              CIVIL APPEAL NO.10858 OF 2016,

              CIVIL APPEAL NO. 1972 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.35551 OF 2016]

              CIVIL APPEAL NO. 1973 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.34843 OF 2016]

              CIVIL APPEAL NO. 1974  OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.21388 OF 2017]

              CIVIL APPEAL NO. 1975 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.13951 OF 2017]

              CIVIL APPEAL NO. 1976 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.10796 OF 2017]

               CIVIL APPEAL NO.780 OF 2017,

              CIVIL APPEAL NO.4457 OF 2017,

              CIVIL APPEAL NO. 1977 OF 2020,

 [ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.151 OF 2017]

             CIVIL APPEAL NO. 1978   OF 2020,

                                                       3

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.13567 OF 2017]

              CIVIL APPEAL NO. 1979 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.3128 OF 2017]

              CIVIL APPEAL NO. 1965 OF 2020

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.25849 OF 2016]

               CIVIL APPEAL NO.2339 OF 2017,

               CIVIL APPEAL NO.4510 OF 2017,

             CIVIL APPEAL NO. 1980 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.7225 OF 2017]

              CIVIL APPEAL NO. 1981 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.8435 OF 2017]

               CIVIL APPEAL NO. 5219 OF 2017,

              CIVIL APPEAL NO. 1982 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.14346 OF 2017]

            CIVIL APPEAL NO.5574­5575 OF 2017,

              CIVIL APPEAL NO. 1983 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.10544 OF 2017]

               CIVIL APPEAL NO.7100 OF 2017,

            CIVIL APPEAL NO.5578­5579 OF 2017,

              CIVIL APPEAL NO. 1984 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.13962 OF 2017]

                                                                    4

                   CIVIL APPEAL NO.10226 OF 2017,

                   CIVIL APPEAL NO.12456 OF 2017,

                CIVIL APPEAL NO. 1985­86 OF 2020,

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.36314­36315 OF 2017]

                               JUDGMENT

VINEET SARAN, J.

Leave granted.

2. The reference made to this Constitution Bench relates to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 (for short ‘the Act’). The first question referred is as to whether Section 13(2)

(a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days. The second question which is referred is as to what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.

3. The first question was referred by a two judge Bench of this Court vide an Order dated 11.02.2016 passed in Civil Appeal No(s).1083­1084 of 2016, M/s Bhasin Infotech and Infrastructure Pvt. Ltd. versus M/s Grand Venezia Buyers Association (Reg), the relevant portion of which is as under:

“There is an apparent conflict between the decisions of this Court in Topline Shoes Limited vs. Corporation Bank [(2002) 6 SCC 33], Kailash Vs. Nankhu [(2005) 4 SCC 480], Salem Advocate Bar Association Vs. Union of India [(2005) 6 SCC 344] on the one hand and J.J. Merchant & Ors. Vs. Shrinath Chaturvedi [(2002) 6 SCC 635 and NIA Vs. Hilli Multipurpose Cold Storage [2014 AIOL 4615] on the other in so far as the power of the Courts to extend time for filing of written statement/reply to a complaint is concerned. The earlier mentioned line of decisions take the view that the relevant provisions including those of Order 8 Rule 1 of the Civil Procedure Code, 1908 are directory in nature and the Courts concerned have the power to extend time for filing the written statement. The second line of decisions which are also of coordinate Benches however takes a contrary view and hold that when it comes to power of the Consumer Fora to extend the time for filing a reply there is no such power.

Since the question that falls for determination here often arises before the Consumer Fora and Commissions all over the country it will be more appropriate if the conflict is resolved by an authoritative judgment. Further since the conflict is between Benches comprising three Judges we deem it fit to refer these appeals to a five­Judge Bench to resolve the conflict once and for all. While we do so we are mindful of the fact that in the ordinary course a two­Judge Bench ought to make a reference to a three­Judge Bench in the first place but in the facts and circumstances of the case and keeping in view the fact that the conflict is between coordinate Benches comprising three Judges a reference to three Judges may not suffice.”

4. The other question has been referred by another Division Bench of this Court by an Order dated 18.01.2017 passed in this very appeal being Civil Appeal No(s).10941­10942 of 2013, NIA Vs. Hilli Multipurpose Cold Storage Pvt. Ltd, the relevant portion of the judgment is as under:

“……….what is the commencing point of the limitation of 30 days stipulated in Section 13 of the Act is required to be decided authoritatively. The declaration made in JJ Merchant’s case that the said period is to be reckoned from the date of the receipt of the notice by the opposite party or complaint under the Act requires in our humble opinion, a more critical analysis.”

5. We have heard the learned Counsel for the parties at length and have carefully gone through the records.

6. In the Statement of Objects and Reasons of the Consumer Protection Act, in paragraph 4, it has been specifically provided that the Consumer Protection Act is “To provide speedy and simple redressal to consumer disputes, a quasi­judicial machinery is sought to be set up at the district, State and Central levels…….”. The Preamble of the Consumer Protection Act also mentions that the Act is “to provide for better protection of the interests of the consumers”. The nomenclature of this Act also goes to show that it is for the benefit or protection of the consumer. From the above, it is evident that the Consumer Protection Act has been enacted to provide for expeditious disposal of consumer disputes and that, it is for the protection and benefit of the consumer.

7. Before we proceed to analyse and determine the questions referred, we may, for ready reference, reproduce the relevant provisions of the Consumer Protection Act and its Regulations.

“Section 13. Procedure on admission of complaint. – (1) The District Forum shall, on admission of a complaint, if it relates to any goods,­

(a) refer a copy of the admitted complaint, within twenty­one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum.

(b)………………….

(c)………………….

(d)………………….

(e)………………….

(f)………………….

(g)………………….

(2) The District Forum shall, if the complaints admitted by it under section 12 relates to goods in respect of which the procedure specified in sub­section (1) cannot be followed, or if the complaint relates to any services,­

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;

(b) where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle consumer dispute,­

(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or

(ii) ex parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum;

(c) where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits.

(3) No proceedings complying with the procedure laid down in subsections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with.

[(3A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months, if it requires analysis or testing of commodities:

Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum:

Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act.

Provided also that in the event of a complaint being disposed of after the period so specified, the District Forum shall 1 Ins. by Act 62 of 2002, sec. 9 (w.e.f. 15­3­2003).

record in writing, the reasons for the same at the time of disposing of the said complaint.] [(3B) 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.] (4) For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:—

(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness, and

(vi) any other matter which may be prescribed.

5……………….

6……………….

2 Ins. by Act 62 of 2002, Sec. 9 (w.e.f. 15­3­2003). 7……………….

Section 15. Appeal. — Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period;

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of that amount or twenty­five thousand rupees, whichever is less.” Section­19. Appeals.—Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub­clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:

Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty­five thousand, whichever is less.

Section­24A. Limitation period.

(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub­section (1), a complaint may be entertained after the period specified in sub­section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.” (emphasis supplied) Relevant Provisions of the Consumer Protection Regulations, 2005 are reproduced below:

“Reg.­10. Issue of notice.­(1) Whenever the Consumer Forum directs the issuance of a notice in respect of a complaint, appeal or revision petition, as the case may be, to the opposite party(ies)/respondent(s), ordinarily such notice shall be issued for a period of 30 days and depending upon the circumstances of each case even for less than 30 days.

(2) When there is a question of raising presumption of service, 30 days notice shall be required. (3) Whenever notices are sought to be effected by a courier service, it shall be ascertained that the courier is of repute.

(4) Whenever appointing the courier for the purpose of effecting service, security deposit may also be taken.

(5) Along with the notice, copies of the complaint, memorandum of grounds of appeal, petitions as the case may be and other documents filed shall be served upon the opposite party(ies)/respondent(s).

(6) After the opposite party or respondent has put in appearance, no application or document shall be received by the Registrar unless it bears an endorsement that a copy thereof has been served upon the other side.” Reg.­14. Limitation.

(1) Subject to the provisions of sections 15, 19 and 24A, the period of limitation in the following matters shall be as follows:­

(i) Revision Petition shall be filed within 90 days from the date of the order or the date of receipt of the order as the case may be;

(ii) Application for setting aside the ex parte order under section 22A or dismissal of the complaint in default shall be maintainable if filed within thirty days from the date of the order or date of receipt of the order, as the case may be;

(iii) An application for review under sub­section (2) of section 22 shall be filed to the National Commission within 30 days from the date of the order or receipt of the order, as the case may be;

(iv) The period of limitation for filing any application for which no period of limitation has been specified in the Act, the rules of these regulations shall be thirty days from the date of the cause of action or the date of knowledge.

(2) Subject to the provisions of the Act, the Consumer Forum may condone the delay in filing an application or a petition referred to in sub­ regulation (1) if valid and sufficient reasons to its satisfaction are given.

Reg.­26. Miscellaneous.

(1) In all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908):

Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder.

(2)………………..

(3)………………..

(4)………………..

(5)………………..

(6)………………..” (emphasis supplied) Question No. 1: Whether the District Forum has power to extend the time for filing of response to the complaint beyond the period of 15 days, in addition to 30 days, as envisaged under Section 13(2)(a) of the Consumer Protection Act?

8. A bare reading of Section 13(2)(a) of the Act makes it clear that the copy of the complaint which is to be sent to the opposite party, is to be with the direction to give his version of (or response to) the case (or complaint) within a period of 30 days. It further provides that such period of 30 days can be extended by the District Forum, but not beyond 15 days.

9. Sub­Section 2(b)(i) of Section 13 of the Act provides for a complaint to be decided on the basis of the response by the opposite party and the evidence of the complainant and the opposite party, where allegations contained in the complaint are denied or disputed by the opposite party. Sub­Section 2(b)(ii) of Section 13 of the Act provides that where no response is filed by the opposite party, the complaint may be decided ex parte on the basis of evidence brought forth by the complainant.

10. Sub­Section 2(c) of Section 13 of the Consumer Protection Act further provides that where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits. The aforesaid provision [sub­Section 2(c)] was inserted by Act 62 of 2002, w.e.f. 15.03.2003. Similarly, Section (3A) of Section 13 of the Consumer Protection Act, which was also inserted by Act 62 of 2002, provides for deciding every complaint as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the receipt of notice by the opposite party, and within five months, if the complaint requires analysis or testing of commodities. It also provides that no adjournment shall ordinarily be granted by the District Forum, and if the same is to be granted, costs may be imposed, and further that reasons be recorded if the complaint is disposed of after the time so provided.

11. From the above, it is clear that as mentioned in the Statement of Objects and Reasons of the Consumer Protection Act, the District Forum is to provide speedy disposal of consumer disputes. The same has been further reiterated by the legislature by insertion of Section 13(2)(c) and 13(3A) by Act 62 of 2002.

12. Section 13 of the Consumer Protection Act clearly contemplates where time can be extended by the District Forum, and where it is not to be extended. Like, under sub­Section (3A) of Section 13, despite the best efforts of the District Forum, in situations where the complaint cannot be decided within the period specified therein, the same can be decided beyond the specified period for reasons to be recorded in writing by the District Forum at the time of disposing of the complaint. Meaning thereby that the same would not be mandatory, but only directory. The phrase “endeavour shall be made”, makes the intention of the legislature evident that the District Forum is to make every effort to decide the case expeditiously within time, but the same can also be decided beyond the said period, but for reasons to be recorded.

13. On the contrary, sub­Section (2)(a) of Section 13 of the Consumer Protection Act provides for the opposite party to give his response ‘within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum’. The intention of the legislature seems to be very clear that the opposite party would get the time of 30 days, and in addition another 15 days at the discretion of the Forum to file its response. No further discretion of granting time beyond 45 days is intended under the Act.

The question of natural justice is dealt with by the legislature in sub­Section (3) of Section 13 of the Consumer Protection Act, which clearly provides that “No proceedings complying with the procedure laid down in the sub­Section (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with.” The legislature was conscious that the complaint would result in being decided ex parte, or without the response of the opposite party, if not filed within such time as provided under the Consumer Protection Act, and in such a case, the opposite party will not be allowed to take the plea that he was not given sufficient time or that principles of natural justice were not complied with. Any other interpretation would defeat the very purpose of sub­Section (3) of Section 13 of the Consumer Protection Act.

14. The maximum period of 45 days, as provided under the Consumer Protection Act, would not mean that the complainant has a right to always avail such maximum period of 45 days to file its response. Regulation 10 of the Consumer Protection Regulations, 2005 clearly provides that ordinarily such notice to the opposite party to file its response shall be issued for a period of 30 days, but the same can be even less than 30 days, depending upon the circumstances of each case.

15. Now, reverting back to the provisions of the Consumer Protection Act to consider as to whether the provision of sub­ Section 2(a) of Section 13 granting a maximum period of 15 days in addition to 30 days has to be read as mandatory or not, we may also consider the other provisions of the Consumer Protection Act where the legislature intended to allow extension of period of limitation.

Section 15 of the Consumer Protection Act provides for filing of an appeal from the order of the District Forum to the State Commission within a period of 30 days. However, it leaves a discretion with the State Commission to entertain an appeal filed after the expiry of the said period of 30 days, if it is satisfied that there was sufficient cause for not filing it within the stipulated period. Similarly, discretion for filing an appeal before the National Commission beyond the period of 30 days has also been provided under Section 19 of the Consumer Protection Act.

Section 24A provides for the limitation period of 2 years for filing the complaint. However, sub­Section (2) of Section 24A gives a discretion to entertain a complaint even after the period of 2 years, if there is a satisfactory cause for not filing the complaint within such period, which has to be recorded in writing.

16. Regulation 14 of the Consumer Protection Regulations, 2005 also deals with limitation. In addition, the same provides for limitation while dealing with appeals (under Section 15 and 19) and complaint (under Section 24A). Sub­Regulation (2) of Regulation 14 provides for condonation of delay for sufficient reasons to be recorded.

17. The legislature in its wisdom has provided for filing of complaint or appeals beyond the period specified under the relevant provisions of the Act and Regulations, if there is sufficient cause given by the party, which has to be to the satisfaction of the concerned authority. No such discretion has been provided for under Section 13(2)(a) of the Consumer Protection Act for filing a response to the complaint beyond the extended period of 45 days (30 days plus 15 days). Had the legislature not wanted to make such provision mandatory but only directory, the provision for further extension of the period for filing the response beyond 45 days would have been provided, as has been provided for in the cases of filing of complaint and appeals. To carve out an exception in a specific provision of the statute is not within the jurisdiction of the Courts, and if it is so done, it would amount to legislating or inserting a provision into the statute, which is not permissible.

By specifically enacting a provision under sub­Section (3) of Section 13, with a specific clarification that violation of the principles of natural justice shall not be called in question where the procedure prescribed under sub­Sections (1) and (2) of Section 13 of the Consumer Protection Act has been followed or complied with, the intention of the legislature is clear that mere denial of further extension of time for filing the response (by the opposite party) would not amount to denial or violation of the principles of natural justice. This provision of Section 13(3) reinforces the time limit specified in Section 13(2)(a) of the Act.

18. This Court in the case of Lachmi Narain vs Union of India (1976) 2 SCC 953 has held that “if the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the interest that the provision is to be mandatory”. Further, hardship cannot be a ground for changing the mandatory nature of the statute, as has been held by this Court in Bhikraj Jaipurai vs Union of India AIR 1962 SC 113=(1962) 2 SCR 880 and Fairgrowth Investments Ltd. Vs Custodian (2004) 11 SCC

472. Hardship cannot thus be a ground to interpret the provision so as to enlarge the time, where the statute provides for a specific time, which, in our opinion, has to be complied in letter and spirit.

This Court, in the case of Rohitash Kumar vs Om Prakash Sharma (2013) 11 SCC 451 has, in paragraph 23, held as under:

“23. There may be a statutory provision, which causes great hardship or inconvenience to either the party concerned, or to an individual, but the Court has no choice but to enforce it in full rigor.

It is a well settled principle of interpretation that hardship or inconvenience caused, cannot be used as a basis to alter the meaning of the language employed by the legislature, if such meaning is clear upon a bare perusal of the statute. If the language is plain and hence allows only one meaning, the same has to be given effect to, even if it causes hardship or possible injustice.” While concluding, it was observed “that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein, is unequivocal.” Further, it has been held by this Court in the case of Popat Bahiru Govardhane vs Special Land Acquisition Officer (2013) 10 SCC 765 that the law of limitation may harshly affect a particular party but it has to be applied with all its vigour when the statute so prescribes and that the Court has no power to extend the period of limitation on equitable grounds, even if the statutory provision may cause hardship or inconvenience to a particular party.

19. The contention of the learned Counsel for the respondent is that by not leaving a discretion with the District Forum for extending the period of limitation for filing the response before it by the opposite party, grave injustice would be caused as there could be circumstances beyond the control of the opposite party because of which the opposite party may not be able to file the response within the period of 30 days or the extended period of 15 days. In our view, if the law so provides, the same has to be strictly complied, so as to achieve the object of the statute. It is well settled that law prevails over equity, as equity can only supplement the law, and not supplant it.

This Court, in the case of Laxminarayan R. Bhattad vs State of Maharashtra (2003) 5 SCC 413, has observed that “when there is a conflict between law and equity the former shall prevail.” In P.M. Latha vs State of Kerala (2003) 3 SCC 541, this Court held that “Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or settled law.” In Nasiruddin vs Sita Ram Agarwal (2003) 2 SCC 577, this Court observed that “in a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom.” In E. Palanisamy vs Palanisamy (2003) 1 SCC 123, it was held that “Equitable considerations have no place where the statute contained express provisions.” Further, in India House vs Kishan N. Lalwani (2003) 9 SCC 393, this Court held that “The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from by equitable considerations.” It is thus settled law that where the provision of the Act is clear and unambiguous, it has no scope for any interpretation on equitable ground.

20. It is true that ‘justice hurried is justice buried’. But in the same breath it is also said that ‘justice delayed is justice denied’. The legislature has chosen the latter, and for a good reason. It goes with the objective sought to be achieved by the Consumer Protection Act, which is to provide speedy justice to the consumer. It is not that sufficient time to file a response to the complaint has been denied to the opposite party. It is just that discretion of extension of time beyond 15 days (after the 30 days period) has been curtailed and consequences for the same have been provided under Section 13(2)(b)(ii) of the Consumer Protection Act. It may be that in some cases the opposite party could face hardship because of such provision, yet for achieving the object of the Act, which is speedy and simple redressal of consumer disputes, hardship which may be caused to a party has to be ignored.

21. It has been further contended that the language of Section 13(2) of the Consumer Protection Act is pari materia to Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for short ‘the Code’) and if time can be extended for filing of written submission in a suit under the aforesaid provision of the Code, the same would apply to the filing of response to complaint under the Consumer Protection Act as well, and hence the provision of Section 13(2)(a) of the Consumer Protection Act would be directory and not mandatory.

In this regard, what is noteworthy is that Regulation 26 of the Consumer Protection Regulation, 2005, clearly mandates that endeavour is to be made to avoid the use of the provisions of the Code except for such provisions, which have been referred to in the Consumer Protection Act and the Regulations framed thereunder, which is provided for in respect of specific matters enumerated in Section 13(4) of the Consumer Protection Act. It is pertinent to note that non­filing of written statement under Order VIII Rule 1 of the Code is not followed by any consequence of such non­filing within the time so provided in the Code.

Now, while considering the relevant provisions of the Code, it is noteworthy that Order VIII Rule 1 read with Order VIII Rule 10 prescribes that the maximum period of 120 days provided under Order VIII Rule 1 is actually not meant to be mandatory, but only directory. Order VIII Rule 10 mandates that where written statement is not filed within the time provided under Order VIII Rule 1 “the court shall pronounce the judgment against him, or make such order in relation to the suit as it thinks fit”. A harmonious construction of these provisions is clearly indicative of the fact that the discretion is left with the Court to grant time beyond the maximum period of 120 days, which may be in exceptional cases. On the other hand, sub­Section (2)(b)(ii) of Section 13 of the Consumer Protection Act clearly provides for the consequence of the complaint to be proceeded ex parte against the opposite party, if the opposite party omits or fails to represent his case within the time given.

It may further be noted that in Order VIII Rule 10 of the Code, for suits filed under the Commercial Courts Act, 2015, a proviso has been inserted for ‘commercial disputes of a specified value’ (vide Act 4 of 2016 w.r.e.f. 23.10.2015), which reads as under:

“Provided further that no Court shall make an Order to extend the time provided under Rule 1 of this Order for filing the written statement” From the above, it is clear that for commercial suits, time for filing written statement provided under Order VIII Rule 1 is meant to be mandatory, but not so for ordinary civil suits. Similarly, in our considered view, for cases under the Consumer Protection Act also, the time provided under Section 13(2)(a) of the Act has to be read as mandatory, and not directory.

Once consequences are provided for not filing the response to the complaint within the time specified, and it is further provided that proceedings complying with the procedure laid down under sub Section (1) and (2) of Section 13 of the Consumer Protection Act shall not be called in question in any Court on the ground that the principles of natural justice have not been complied with, the intention of the legislature is absolutely clear that the provision of sub­Section 2(a) of Section 13 of the Act in specifying the time limit for filing the response to the complaint is mandatory, and not directory.

22. After noticing that there were delays in deciding the complaints by the District Forum, the legislature inserted sub­ Section (3A) of Section 13 of the Consumer Protection Act providing for a time limit for deciding the complaints. From this it is amply clear that the intention of the legislature was, and has always been, for expeditious disposal of the complaints. By providing for extension of time for disposal of the cases filed, for reasons to be recorded, the legislature has provided for a discretion to the Forum that wherever necessary, the extension of the time can be provided for, and where such further extension is not to be granted [as in the case of Section 13(2)(a)], the legislature has consciously not provided for the same, so as to achieve the object of the Act.

23. In SCG Contracts (India) Private Limited vs K.S. Chamankar Infrastructure Private Limited (2019) 12 SCC 210, this Court, was dealing with a case relating to the filing of written statement under the Code, in respect of a case under the Commercial Courts Act, 2015. After noticing the amendments brought in Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 of the Code with regard to ‘commercial disputes of specified value’ under the Commercial Courts Act, 2015 by way of insertion of the Provisos in the aforesaid provisions, this Court held that “….the clear, definite and mandatory provisions of Order V read with Order VIII Rule 1 and 10 cannot be circumvented by recourse to the inherent power under Section 151 to do the opposite of what is stated therein”. It was, thus, held that there was no scope for enlarging the time for filing of written statement beyond the period of 120 days in commercial suits, as the provision with regard to such suits would be mandatory, and not directory. The said judgment has been affirmed by a Bench of three Judges in Desh Raj vs Balkishan decided on 20.01.2020 in Civil Appeal No.433 of 2020.

24. In Fairgrowth Investments Ltd. Vs Custodian (2004) 11 SCC 472, this Court was dealing with the provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, and the question was whether the Special Court has power to condone the delay in filing the petition under Section 4(2) of the said Act. While holding, that the said provision would be mandatory, it was held in paragraph 13 as under:

“13. It is not for the courts to determine whether the period of 30 days is too short to take into account the various misfortunes that may be faced by notified persons who wish to file objections under Section 4(2) of the Act nor can the section be held to be directory because of such alleged inadequacy of time.” Then, after considering the decisions of this Court in Topline Shoes Ltd. vs. Corporation Bank (2002) 6 SCC 33 and Dr. J. J.

Merchant vs. Shrinath Chaturvedi (2002) 6 SCC 635, this Court held that “the period for filing an objection in Section 4(2) in the Act is a mandatory provision given the language of the Section and having regard to the objects sought to be served by the Act.”

25. Certain other cases, which have been referred to by the learned Counsel for the parties, have, in our considered opinion, no direct bearing on the facts and issue involved in the present case relating to the Consumer Protection Act, and thus, the same are not being dealt with and considered here.

26. We may now deal with the decisions rendered by this Court, which have been referred to in the Reference Order.

27. Division Bench of this Court has referred this Question, after observing that there is an apparent conflict between the decisions of this Court in Topline Shoes (supra); Kailash Vs. Nanhku (2005) 4 SCC 480 and Salem Advocate Bar Association vs. Union of India (2005) 6 SCC 344 on the one hand; and Dr. J. J. Merchant (supra) and NIA vs. Hilli Multipurpose Cold Storage (2015) 16 SCC 22, on the other hand.

28. In Topline Shoes (supra), a Division Bench of this Court, while dealing with the provisions of Section 13(2)(a) of the Consumer Protection Act, has held that the said provision would be directory and not mandatory. While holding so, the Bench relied on the principles of natural justice, and also that no consequence of non­filing of the response to the complaint within 45 days is provided for in the Consumer Protection Act.

In paragraph 8 of the said judgment, this Court held:

“It is for the Forum or the Commission to consider all facts and circumstances along with the provisions of the Act providing time­ frame to file reply, as a guideline and then to exercise its discretion as best as it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principles of natural justice as well”.

(emphasis supplied) It is true that in Clause 4 of the Statement of Objects and Reasons of the Consumer Protection Act, the legislature provided that “quasi–judicial bodies will observe the principles of natural justice”, however, the same is to be observed generally, and not where the same is specifically excluded. In the said judgment, sub­Section (3) of Section 13 has neither been referred, nor taken note of. The same mandates that no proceedings complying with the procedure laid down in sub­Sections (1) and (2) of Section 13 shall be called in question in any Court on the ground that the principles of natural justice have not been complied with. From this it is evident that while considering the provisions of Section 13(2)(a) of the Consumer Protection Act, the law mandates that the principles of natural justice cannot be said to be violated by adopting the said procedure and that the time of 30 days plus 15 days provided for filing the response to the complaint would be sufficient and final.

In case of Topline Shoes (supra), this Court was also of the view that in the Consumer Protection Act, “no consequence is provided in case the time granted to file reply exceeds the total period of 45 days”. While observing so, the Bench did not take into account the provisions of Section 13(2)(b)(ii) of the Consumer Protection Act, which provides that where the opposite party fails to file response to the complaint within the specified time provided in Clause (a), “the District Forum shall proceed to settle the consumer dispute……… on the basis of evidence brought to its notice by the complainant……..”. After the said judgment, by Amendment Act 62 of 2002 (w.e.f. 15.03.2003), the legislature has provided that the District Forum shall proceed to settle the consumer dispute “ex parte on the basis of the evidence”. The word “ex parte” has been added by the Amending Act. As we have observed herein above, the consequence of not filing the response to the complaint within the stipulated time is thus clearly provided for in the aforesaid sub­Section, which has not been noticed by the Bench while deciding the aforesaid case.

29. In the case of Kailash vs. Nanhku (supra), this Court was dealing with an election trial under the Representation of People Act, 1951, and while considering the provision under Order VIII Rule 1 of the Code, it held the same to be directory, and not mandatory. While holding so, the Court was of the view that “the consequences flowing from non­extension of time are not specifically provided” in the Code. The decision in the said case has no bearing on the question under consideration, as the present reference before us is under the Consumer Protection Act, where, as we have already observed, consequences are specifically provided for.

In passing, in paragraph 35 of the said judgment, the Bench referred to the case of Topline Shoes (supra), where the provision of Section 13 of the Consumer Protection Act was considered to be directory, and not mandatory. In our view, the same would not have the effect of affirming the decision of Topline Shoes (supra) since the Court, in the aforesaid case, was dealing with the provisions of the Code and not the specific provisions of Consumer Protection Act.

We are thus of the opinion that Kailash vs Nanhku (supra) has not overruled the decision in Dr. J. J. Merchant (supra) with regard to the provision of the Consumer Protection Act.

30. Again, in the case of Salem Advocates Bar Association (supra), this Court was dealing with a case under Order VIII Rule 1 of the Code and in paragraph 20, it has been held as under:

“20.………The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.” Thereafter, the Court proceeded to refer to the provisions of Order VIII Rule 1, along with Order VIII Rule 10 of the Code. On a harmonious construction of the said provision, it held that the provisions of Order VIII Rule 1 of the Code would be directory, and not mandatory. Relevant paragraph 21 of the said judgment is below:

“21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word “shall”, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule

1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory”.

As such in our view, the said judgment would hold the field with regard to Order VIII Rule 1 of the Code and would not be applicable to cases dealing with the provisions of Section 13(2) of the Consumer Protection Act, or such other enactment wherein a provision akin to Section 13(2) is there and the consequences are also provided.

31. The case of Dr. J. J. Merchant (supra) is one relating to the provisions of the Consumer Protection Act, and has been decided by a Bench of three Judges of this Court (which is after the decision in the case of Topline Shoes (supra) was rendered). In this case it has been held that the time limit prescribed for filing the response to the complaint under the Consumer Protection Act, as provided under Section 13(2)(a), is to be strictly adhered to, i.e. the same is mandatory, and not directory. In paragraph 13 of the said judgment, it has been held that:

“For having speedy trial, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is not adhered to, the legislative mandate of disposing of the cases within three or five months would be defeated.

In the said case of Dr. J. J. Merchant (supra), while holding that the time limit prescribed would be mandatory and thus be required to be strictly adhered to, this Court also considered the Statement of Objects and Reasons of the Consumer Protection (Amendment) Bill, 2002 (which was subsequently enacted as Act 62 of 2002 and has come in force w.e.f. 15.03.2003). The salient features of the same was “to provide simple, inexpensive and speedy justice to the consumers……….” and that “the disposal of cases is to be faster” and after noticing that “several bottlenecks and shortcomings have also come to light in the implementation of various provisions of the Act” and with a view to achieve quicker disposal of consumer complaints, certain amendments were made in the Act, which included “(iii) prescribing the period within which complaints are to be admitted, notices are to be issued to opposite party and complaints are to be decided”. With this object in mind, in sub­Section (2)(b)(ii) of Section 13, the opening sentence “on the basis of evidence” has been substituted by “ex parte on the basis of evidence”. By this amendment, consequences of not filing the response to the complaint within the specified limit of 45 days was to be that the District Forum shall procced to settle the consumer dispute ex parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take action to represent his case within time. For achieving the objective of quick disposal of complaints, the Court noticed that sub­Section (3A) of Section 13 was inserted, providing that the complaint should be heard as expeditiously as possible and that endeavour should be made to normally decide the complaint within 3 months, and within 5 months where analysis or testing of commodities was required. The Provisos to the said sub­ Section required that no adjournment should be ordinarily granted and if granted, it should be for sufficient cause to be recorded in writing and on imposition of cost, and if the complaint could not be decided within the specified period, reasons for the same were to be recorded at the time of disposing of the complaint.

It was after observing so, and considering aforesaid amendments, this Court held that the time limit of 30 plus 15 days in filing the response to the complaint, be mandatory and strictly adhered to.

32. The decision of another Bench of three Judges in NIA vs Hilli Multipurpose Coldstorage (supra), which has been considered in the referring order was passed by a bench of two Judges in the same case, after noticing a conflict of views in the cases of Dr. J. J. Merchant (supra) and Kailash vs Nanhku (supra).

After considering the provisions of the Code and Consumer Protection Act, the reference was answered “that the law laid down by a three Judge Bench of this Court in Dr. J. J. Merchant (supra) should prevail”. In coming to this conclusion, the following was observed in paragraphs 25 and 26 of the said judgment:

“25. We are, therefore, of the view that the judgment delivered in J.J. Merchant holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.

26. There is one more reason to follow the law laid down in J.J.

Merchant. J.J. Merchant was decided in 2002, whereas Kailash was decided in 2005. As per law laid down by this Court, while dealing Kailash, this Court ought to have respected the view expressed in J.J.

Merchant as the judgment delivered in J.J. Merchant was earlier in point of time. The aforesaid legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in J.J. Merchant should be followed.”

33. Although, after the above decision, no further reference was required to be made, but still we have proceeded to answer the question referred to this Constitution Bench and are of the considered opinion that the view expressed by this Court in the case of Dr. J. J. Merchant (supra) is the correct view.

Question No. 2: What would be the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act, 1986?

34. The question for determination is whether the limitation under Section 13 of the Consumer Protection Act for filing the response by the opposite party to the complaint would commence from the date of receipt of the notice of the complaint by the opposite party, or the receipt of notice accompanied by a copy of the complaint.

35. In paragraph 12 of the judgment dated 04.12.2015, of three Judge Bench of this Court, in this very case of NIA vs. Hilli Multipurpose Cold Storage (supra), while referring to the commencing point of limitation of 30 days under Section 13(2) of the Consumer Protection Act, it has been held that “The whole issue centres round the period within which the opponent has to give his version to the District Forum in pursuance of a complaint, which is admitted under Section 12 of the Act. Upon receipt of a complaint by the District Forum, if the complaint is admitted under Section 12 of the Act, a copy of the complaint is to be served upon the opposite party and as per the provisions of Section 13 of the Act, the opposite party has to give his version of the case within a period of 30 days from the date of receipt of the copy of the complaint.”

36. However, another two judge Bench of this Court, by an Order dated 18.01.2017 passed in this very Appeal being Civil Appeal No(s).10941­10942 of 2013, NIA Vs. Hilli Multipurpose Cold Storage, has expressed the view that the declaration made in Dr. J. J. Merchant’s case to the effect that the said period is to be reckoned from the date of receipt of notice by the opposite party or complaint under the Act, requires a more critical analysis. The bench thus opined that “what is the commencing point of the limitation of 30 days stipulated in Section 13 of the Act is required to be decided authoritatively”. It is thus that this question has been placed before us for an authoritative decision.

37. For deciding this question, we may first analyse the relevant provisions of the Consumer Protection Act and the Regulations framed thereunder. Sub­Sections (2)(a) and (2)(b) of Section13 of the Consumer Protection Act specify that it is the copy of the complaint which is to given to the opposite party directing him to give his version of the case within a period of 30 days or such extended period, not exceeding 15 days. As such, from the aforesaid provision itself, it is clear that it is the copy of the admitted complaint which is to be served, after which the period to file the response would commence.

Further, Regulation 10 of the Consumer Protection Regulations, 2005 also specifies the procedure of issuing notice, which should be accompanied by copy of the complaint. Regulation 10(5) clearly mentions that “along with the notice, copies of the complaint, memorandum of grounds of appeal, petitions as the case may be and other documents filed shall be served upon the opposite party(ies)/respondent(s)”. The same would also make it clear that it is on service of a copy of the complaint that the period of limitation for filing the response by the opposite party shall commence.

38. Even in the Code of Civil Procedure, Order VIII Rule 1 prescribes that the written statement shall be filed by the defendant within 30 days from the receipt of the “summons”. “Summons” has been defined in Order V Rule 1 of the Code and Rule 2 provides that “Every summon shall be accompanied by a copy of the plaint.” While considering the aforesaid provisions, a two judge Bench of this Court in the case of Nahar Enterprises vs Hyderabad Allwyn Ltd. (2007) 9 SCC 466 has, in paragraph 8, 9 and 10, held as under:

(8) The learned counsel appears to be correct. When a summons is sent calling upon a defendant to appear in the court and file his written statement, it is obligatory on the part of the court to send a copy of the plaint and other documents appended thereto, in terms of Order 5 Rule 2 CPC.

(9) Order 5 Rule 2 CPC reads as under:

“2. Copy of plaint annexed to summons. – Every summon shall be accompanied by a copy of the plaint.” (10) The learned Judge did not address itself the question as to how a defendant, in absence of a copy of the plaint and other documents, would be able to file his written statement…………………….……..”

39. Even in Arbitration and Conciliation Act, 1996, sub­ Section (5) of Section 31 provides that “after the arbitral award is made, a signed copy shall be delivered to each party”. An application for setting aside the arbitral award is to be made under Section 34 of the said Act. The delivery of the award sets in motion the limitation for challenging the award under Section 34 of the said Act. While interpreting the nature and scope of Section 31(5) of the said Act, a three Judge Bench of this Court in Union of India vs Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239, has, in paragraph 6, held as under:

(6) Form and contents of the arbitral award are provided by Section 31 of the Act. The arbitral award drawn up in the manner prescribed by Section 31 of the Act has to be signed and dated.

According to sub­section (5), “after the arbitral award is made, a signed copy shall be delivered to each party”. The term “party” is defined by clause (h) of Section 2 of the Act as meaning “a party to an arbitration agreement”. The definition is to be read as given unless the context otherwise requires. Under sub­section (3) of Section 34 the limitation of 3 months commences from the date on which “the party making that application” had received the arbitral award. ……………” From the above, what we notice is that wherever limitation is provided, either for filing response/written statement or filing an appeal, it is the copy of the plaint or the order/award which is to be served on the party concerned after which alone would commence the period of limitation.

40. Now reverting to the provisions of the Consumer Protection Act, a conjoint reading of Clauses (a) and (b) of sub­ Section (2) of Section 13 would make the position absolutely clear that the commencing point of limitation of 30 days, under the aforesaid provisions, would be from the date of receipt of notice accompanied by a copy of the complaint, and not merely receipt of the notice, as the response has to be given, within the stipulated time, to the averments made in the complaint and unless a copy of the complaint is served on the opposite party, he would not be in a position to furnish its reply. Thus, mere service of notice, without service of the copy of the complaint, would not suffice and cannot be the commencing point of 30 days under the aforesaid Section of the Act. We may, however, clarify that the objection of not having received a copy of the complaint along with the notice should be raised on the first date itself and not thereafter, otherwise if permitted to be raised at any point later would defeat the very purpose of the Act, which is to provide simple and speedy redressal of consumer disputes.

41. To conclude, we hold that our answer to the first question is that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act; and the answer to the second question is that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complaint by the opposite party, and not mere receipt of the notice of the complaint.

This Judgment to operate prospectively. The referred questions are answered accordingly.

………………………………..J.

[Arun Mishra] ………………………………..J.

[Indira Banerjee] ………………………………..J.

[Vineet Saran] ………………………………..J.

[M. R. Shah] ………………………………..J.

[S. Ravindra Bhat] New Delhi Dated: March 4, 2020