# Ghaziabad Development Authority, Ghaziabad and another v. Union of India, & another

- **Citation:** (2003) 3 ILRA 835
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-06
- **Case number:** Civil Misc. Writ Petition No. 20230 of 2001
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghaziabad-development-authority-ghaziabad-and-another-v-union-of-india-another-40213
- **Pages:** 7

## Headnote

Consumer Protection Act 1986 -Section
27-Power of the forum to initiate
contempt proceeding whether is such
provision unconstitutional? Held, 'No'
1999 CTJ 570
AIR 1973 SC 1034
AIR 1987 SC 117
(1983) I ALLER 226
AIR 1955 SC 376
AIR 1957 SC 907
AIR 1960 SC 936
AIR 1932 PC 165
AIR 1965 SC 458
AIR 1951 Pat. 443
1991 ALJ 816
1964 (1) Cr. L.J. 449
AIR 1955 Madras 121
1986 (2) ARC 385
5 U.S. (1 Cranch) 137 (1803)
AIR 1958 S.C. 731
198 U.S. 45 (1905)
381 U.S. 479
273 U.S. 418 (at 447)

## Text

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3 All] G.D.A., Ghaziabad and another V. Union of India and another
835
36. Office is directed to send copy
of this order to C.J.M. Etah for
compliance and report within a month.
---------
ORIGINAL JURISDICTION
CIVIL SIDE

DATED: ALLAHABAD 06.08.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 20230 of 2001

Ghaziabad
Development
Authority,
Ghaziabad and another
 ...Petitioner
Versus
Union of India, & another ...Respondent

Counsel for the Petitioners:
Sri U.N. Sharma
Sri A.K. Bajpai

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
S.C.

Consumer Protection Act 1986 -Section
27-Power of the forum to initiate
contempt proceeding whether is such
provision unconstitutional? Held, 'No'
1999 CTJ 570
AIR 1973 SC 1034
AIR 1987 SC 117
(1983) I ALLER 226
AIR 1955 SC 376
AIR 1957 SC 907
AIR 1960 SC 936
AIR 1932 PC 165
AIR 1965 SC 458
AIR 1951 Pat. 443
1991 ALJ 816
1964 (1) Cr. L.J. 449
AIR 1955 Madras 121
1986 (2) ARC 385
5 U.S. (1 Cranch) 137 (1803)
AIR 1958 S.C. 731
198 U.S. 45 (1905)
381 U.S. 479
273 U.S. 418 (at 447)

(Delivered by Hon'ble M. Katju, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.

2. The petitioner has challenged the
Constitutional validity of Section 27 of
the Consumer Protection Act, 1986.

3.
The
petitioner,
Ghaziabad
Development Authority, is a statutory
body constituted under the U.P. Urban
Planning & Development Act, 1973. The
petitioner no. 2 is Secretary of the
Ghaziabad Development Authority and he
is aggrieved by the orders dated 28.2.2001
passed by the district consumer Forum,
Ghaziabad convicting and sentencing him
to
six
months
imprisonment,
vide
Annexure 1 and 2 to the writ petition.

4. Learned counsel for the petitioner
submitted that Section 27 of the consumer
Protection Act 1986 is unconstitutional as
it has not provided for any procedure for
the trial. Learned counsel relied on a
Division Bench decision of the Karnataka
High Court in Paramjit Singh vs. Union of
India 1999 CTJ 570 in which it was held
that the proviso to Section 27 of the
Consumer Protection Act is violative of
Articles 20 and 21 of the Constitution. It
was held by the Karnataka High Court
therein that while the main part of Section
27 of the Act is not unconstitutional the
proviso thereto is unconstitutional. Hence
is was held that the offence created by
Section 27 can only be tried by filing a
criminal complaint before the Criminal
Court and cannot be tried by the District
Consumer Forum, State Commission or
National Commission as the case may be.
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836 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
5. We respectfully disagree with the
view taken by the Karnataka High Court.

6. Section 27 of the Act states:

"Penalties--- Where a trader or a
person against whom a complaint is made
(or the complainant) fails or omits to
comply with any order made by the
District Forum, the State Commission or
the National Commission, as the case may
be, such trader or person or complainant
shall be punishable with imprisonment for
a term which shall not be less than one
month but which may extend to three
years, or with fine which shall not be less
than two thousand rupees but which may
extend to ten thousand rupees, or with
both:

Provided that the District Forum, the
State Commission or the Nnational
Commission, as the case may be, may, if it
is satisfied that the circumstances of any
case so require, impose a sentence of
imprisonment or fine, or both for a term
lesser than the minimum term and the
amount lesser than the minimum amount
specified in this section."

7. A perusal of Section 27 shows
that
the
main
clause
prescribes
punishment for noncompliance of an
order of the District Consumer Forum,
State
Commission
or
National
Commission. However, the proviso to
Section 27 states that the District Forum,
the State Commission or the National
Commission, as the case may be, may
impose a sentence of imprisonment or
fine.

8. Thus the language of the proviso
to Section 27 is very clear. The sentence
of imprisonment or fine can be imposed
by the District Forum, State Comission or
the National Commission themselves, and
they need not make a complaint to the
regular criminal Court for this purpose.

9. It is well settled that where the
language of the statute is clear the literal
rule of interpretation should be followed
and the Court should not twist or distort
the meaning. It is a basic principal of
interpretation that if the language of the
statute
is
clear,
the
natural
and
grammatical meaning should be given to
it.

10. In M/s Hiralal Ratanlal vs. STO
AIR 1973 SC 1034 (vide para 21) the
Supreme Court observed:

"In construing a statutory provision
the first and foremost rule of construction
is the literary construction. All that we
have to see at the very outset is what does
the provision say? If the provision is
unambiguous and if from the provision
the legislative intent is clear, the Court
need not call into aid the other rules of
construction of statutes. The other rules of
construction are called into aid only when
the legislative intent is not clear."

11. As observed by Viscount Simon
in Nokes v. Doncaster Amalgamated
Collieries Ltd. (1940) 3 All ER 447 (553):
"The golden rule is that the words of a
statute must prima facie be given their
ordinary
meaning."
(followed
in
Chandavarkar
Sita
Ratna
Rao
vs.
Ashalata AIR 1987 SC 117 vide para 62).
The natural and ordinary meaning cannot
be departed from by the Judges in the
light of their own views as to policy vide
Shah vs. Barnet London Borough Council
(1983) 1 All ER 226.
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3 All] G.D.A., Ghaziabad and another V. Union of India and another
837
12. In Jugalkishore Saraf vs. Raw
Cotton Co. Ltd. AIR 1955 SC 376 (vide
para 6) the Supreme Court observed:

"The cardinal rule of construction of
statutes is to read the statute literally, that
is, by giving to the words used by the
legislature their ordinary, natural and
grammatical meaning. If, however, such a
reading leads to absurdity and the words
are susceptible of another meaning, the
Court may adopt the same. But if no such
alternative construction is possible, the
court must adopt the ordinary rule of
literal interpretation. In the present case
a literal construction of the rule leads to
no apparent absurdity, and therefore,
there can be no compelling reason for
departing from that golden rule of
construction."

13. In Kanai Lal Sur vs. Paramnidhi
Sadhukhan AIR 1957 SC 907 (vide para
6) the Supreme Court observed:

"The words used in the material
provisions
of
the
statute
must
be
interpreted in their plain grammatical
meaning and it is only when such words
are capable of two constructions that the
question of giving effect to the policy or
object of the Act can legitimately arise."

Similarly in Mahadeolal Kanodia vs.
Administrator General of West Bengal,
AIR 1960 S.C. 936 (vide para 8) the
Supreme Court observed:

"The intention of the Legislature has
always to be gathered from the words
used by it; giving to the words their plain,
normal, grammatical meaning."

14. In Nagendra Nath Dey vs.
Suresh Chandra Dey AIR 1932 PC 165
the Privy Council observed:

"The strict grammatical meaning of
the words (of a statute) is, their Lordship
think, the only safe guide."

The above view was followed by the
Supreme Court in Municipal Board,
Pushkar vs. State Transport Authority,
Rajasthan, AIR 1965 SC 458 (paras 22
and 23).

15. Since the language of the
proviso to Section 27 is clear we have to
hold that the District Forum, State
Commission or National Commission can
themselves
impose
sentence
of
imprisonment or fine and they need not
refer a complaint to the regular criminal
court for this purpose.

16. With profound respect to the
Karnataka High Court which held that the
proviso to Section 27 is ultra vires Article
20 and 21 of the Constitution, we are of
the opinion that perhaps the real nature of
proceedings under Section 27 of the
Consumer
Protection
Act
was
not
understood. In our opinion proceedings
under Section 27 are really in the nature
of
proceedings
for
civil
contempt.
Although Section 27 itself does not
mention that the proceedings therein are
proceedings for civil contempt, in our
opinion we have to see the substance of
the matter i.e. the nature and purpose of
these proceedings.

17. It is well settled that there are
tow types of contempt, namely, civil
contempt and criminal contempt.
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838 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
18. The meaning of civil contempt
and
criminal
contempt
have
been
explained in the Contempt of Courts Act,
1971. Section 2 of the said Act states:

"(a) "Contempt of Court" means civil
contempt or criminal contempt;
(b) "civil
contempt"
means
willful
disobedience to any judgment, decree,
direction, order, writ or other process of a
Court or willful breach of an undertaking
given to a Court;
(c) "criminal
contempt"
means
the
publication (whether by words, spoken or
written, or by signs, or by visible
representations, or otherwise) of any
matter or the doing of any other act
whatsoever which ---
(i) scandalizes or tends to scandalize, or
lowers or tends to lower the authority of
any Court; or
(ii) prejudices, or interferes or tends to
interfere with, the due course of any
judicial proceedings; or
(iii) interferes or tends to interfere with,
or obstructs or tends to obstruct, the
administration of justice in any other
matter;"

19. Thus criminal contempt means
scandalizing the Court or lowering its
authority or interfering with the Court of
justice. On the other hand, civil contempt
means disobedience of any order of the
Court and the purpose of civil contempt is
to compel obedience of the order of the
court. The principle object of civil
contempt proceedings is hence to secure
enforcement of the order of the Court vide
State v. Dasrath Jha AIR 1951 Pat. 443,
Vidya Sagar vs. IIIrd A.D.J. 1991 ALJ
816; C.S.Majoo v. Administrator General
1964 (I) Cr. L.J. 449; In re Swaminathan
AIR 1955 Madras 121; Bhagwati Prasad
Tripathi v. Sri Raj Vir Singh 1986 (2)
ARC 385, etc.

20. A perusal of Section 27 clearly
shows that proceedings therein are in the
nature of proceedings for civil contempt,
and their object is to compel obedience of
the orders of the District Forum, State
Commission or the National Commission.

21. Once this aspect is understood it
will be immediately realized that the
submission of the learned counsel for the
petitioner that the proviso to Section 27 is
unconstitutional as it has not provided for
any procedure for the trial is totally
misconceived. The proceedings under
Section 27 are really not ordinary criminal
proceedings in respect of offences under
the I.P.C. or some other statute. The
proceedings under Section 27, as stated
above, are really in the nature of civil
contempt proceedings. Hence the only
procedure required in these proceedings is
that the principles of natural justice
should be complied with.

22. It may be mentioned that under
the Contempt of Courts Act 1952 there
was no procedure for the contempt of
court proceedings and only the well
settled
customary
principles
were
applicable to such proceedings. No doubt
under the Contempt of Courts Act 1971
and Chapter 35-E of the Allahabad High
Court Rules the procedure for contempt of
Court proceedings in the Allahabad High
Court has been prescribed, but in our
opinion this procedure need not be
followed by the District Forum, State
Commission or the National Commission
proceedings under Section 27. Hence the
District Forum, State Commission or
National Commission need only to follow
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3 All] G.D.A., Ghaziabad and another V. Union of India and another
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the rules of natural justice in respect of
such proceedings.

23. It appears that Parliament has
specifically enacted Section 27 so as to
give teeth to the provisions of the
Consumer Protection Act. Had there been
no provision for enforcement of the orders
of the authorities under the Act the entire
purpose of the Statute would have been
frustrated as nobody would obey the
orders of these authorities. Without the
sanction
of
Section
27
the
entire
consumer jurisdiction would only be a
paper tiger lacking teeth.

24. For the reasons given above we
respectfully disagree with the Karnataka
High Court which held that the proviso to
Section 27 is ultra vires; In our opinion a
statute should not be declared as ultra
vires so readily.

25. For the reasons given above we
are of the opinion that Section 27
including its proviso is constitutionally
valid. The petition is hence dismissed.

26. Before parting with this case we
would like to briefly comment on the
subject of judicial review of a statute,
which was first enunciated by Chief
Justice Marshall of the U.S. Supreme
Court in Matbury vs. Madison, 5 U.S. (1
cranch) 137 (1803). We feel justified in
making these comments because the times
which this country is passing through
requires clarification of the role of the
judiciary vis-à-vis the legislature.

27. Under the Constitution the
judiciary and the Legislature have their
own spheres of operation. It is important
that these organs do not entrench on each
others
proper
spheres
and
confine
themselves to their own, otherwise there
will always be danger of a reaction. The
judiciary must therefore exercise self
restraint and eschew the temptation to act
as a super legislature or a Court of Appeal
sitting over the Laws made by the
Legislature or a as a third house of
Parliament. By exercising restraint it will
enhance its own respect and prestige. Of
course if a law clearly violates some
provision of the Constitution or is beyond
its legislative competence it will be
declared by the Court as ultra vires, but as
long as it does not do so it is not for the
Court to sit in appeal over the wisdom of
the legislature.

28. It must never be forgotten that
the legislature has been elected by the
people, while Judges are not, and in a
democracy it is the people who are
supreme. No Court should therefore strike
down an enactment solely because it is
perceived by it to be unwise. A Judge
cannot act on the belief that he knows
better than the legislature on a question of
policy, because he can never be justifiably
certain that he is right. Judicial humility
should therefore prevail over judicial
activism in this respect.

29. Judicial restraint is consistent
with and complementary to the balance of
power among the three independent
organs of the State. It accomplishes this in
two ways. First, judicial restraint not only
recognizes the equality of the other two
branches with the judiciary, but also
fosters that equality by minimizing
interbranch interference by the judiciary.
In this analysis, judicial restraint may also
be called judicial respect, that is, respect
by the judiciary for the other coequal
branches. In contrast, judicial activism's
unpredictable results make the judiciary a
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840 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
moving target and thus decreases the
ability to maintain equality with the cobranches. Restraint stabilizes the judiciary
so that it may better function in a system
of interbranch equality.

30. Second, judicial restraint tends
to protect the independence of the
judiciary. When courts become engaged
in social legislation, almost inevitably
voters, legislators, and other elected
officials will conclude that the activities
of judges should be closely monitored. If
judges act like legislators, it follows that
judges should be elected like legislators.
This is counterproductive. The touchstone
of an independent judiciary has been its
removal from the political process. Even
if this removal has sometimes been less
than complete, it is an ideal worthy of
support and one that has had valuable
effects.

31. The constitutional trade off for
independence is that judges must restrain
themselves from the areas reserved to the
other separate branches. Thus, judicial
restraint
complements
the
twin,
overarching values of the independence of
the judiciary and the separation of
powers.

32. The Court should always
hesitate
to
declare
a
statute
unconstitutional, unless it finds it clearly
so, because invalidating a statute is a
grave step. Of the three organs of the
State, only the judiciary has the power to
declare the Constitutional limits of all
three. This great power should therefore
be used by the judiciary with the utmost
humility and self-restraint.

33. As observed by the Supreme
Court in M.H. Qureshi vs. State of Bihar,
AIR 1958 SC 731, the Court must
presume that the legislature understands
and correctly appreciates the needs of its
own people. The legislature is free to
recognize degrees of harm and may
confine its restrictions to those where the
need is deemed to be the clearest. In the
same decision it was also observed that
the legislature is the best judge of what is
good for the community on whose
suffrage it came into existence.

34. One of the earliest scholarly
treatments of the scope of judicial review
is Prof. James Bradley Thayer's article
"The Original and Scope of the American
Doctrine
of
Constitutional
Law,"
published in 1893 in the Harvard Law
Review. This paper is a singularly
important
piece
of
American
legal
scholarship, if for no other reason than
that Justices Holmes and Brandeis, among
modern judges, carried its influence with
them to the Bench, as also did Mr. Justice
frankfurter.

35. Thayer, who was a Professor of
Law at Harvard University, strongly
urged that the courts must be astute not to
trench upon the proper powers of the
other departments of government, nor to
confine their discretion. Full and free play
must be allowed to "that wide margin of
considerations which address themselves
only to the practical judgment of a
legislative body." Moreover, every action
of the other departments embodies an
implicit decision on their part that it was
within their constitutional power to act as
they did. The judiciary must accord the
utmost respect to this determination, even
though it be a tacit one.

36. This meant for Thayer-and he
attempted to prove that it had generally
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3 All] Chilhuwan V. State of U.P. and others
841
meant to the courts-that a statute could be
struck down as unconstitutional only
"when those who have the right to make
laws have not merely made a mistake, but
have made a very clear one,-so clear that
it is not open to rational question." After
all, the Constitution is not a legal
document of the nature of a title deed or
the like, to be read closely and construed
with technical finality, but a complex
charter
of
government,
looking
to
unforeseeable future exigencies. Most
frequently, reasonable men will differ
about
its
proper
construction.
The
Constitution leaves open "a range of
choice
and
judgment,"
and
hence
constitutional
construction
'involves
hospitality to large purposes, not merely
textual exegesis'.

37. In Lochner vs. New York, 198
U.S. 45 (1905), Mr Justice Holmes, the
celebrated Judge of the U.S. Supreme
Court in his classic dissenting judgment
pleaded for judicial tolerance of state
legislative action even when the Court
may disapprove of the State Policy.
Similarly, in his dissenting judgment in
Griswold vs. Connecticut, 381 U.S. 479.
Mr. Justice Hugo Black of the U.S.
Supreme Court warned that "unbounded
judicial creativity would make this Court
a day-to-day Constitutional Convention."
Justice Frankfurter has pointed out that
great judges have constantly admonished
their brethren of the need for discipline in
observing
their
limitations
(see
Frankfurter's 'Some Reflections on the
Reading of Statutes')

38. As Mr. Justice Holmes of the
U.S. Supreme Court observed in his
dissenting judgment in Tyson v. Banton,
273 US 418 (at petitioner 447)

"I am far from saying that I think
this particular law a wise and rational
provision. That is not my affair. But if the
people of the State of New York speaking
by their authorized voice say they want it,
I see nothing in the Constitution of the
United States to prevent their having their
will."
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.8.2003

BEFORE
THE HON'BLE M.KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 27427 of 2003

Chilhuwan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Gupta

Counsel for the Respondents:
Sri V.K. Singh, S.C.

Constitution of India, Article 14 Fishery
Right-Fishery
lease
granted
without
public auction/public tender, without
advertising in well known newspapers
having wide circulation. Held, illegal.

Held-Para 3

It has been held in several division
bench decisions of this Court that fishery
lease can only be granted by public
auction/public tender after advertising
the same in well known newspapers
having wide circulation in which all
persons can bid vide Ram Bharosey Lal
vs. State of U.P. 2002 (93) RD 659,
Diwaker Rai vs. SDO 2003 (95) RD 84,
Panchoo Vs. Collector 1995 (90) RD 186
etc. that fishery lease can only be
granted
by
a
public
auction/public
tender after advertising it in well known