# NEENA ANEJA & ANR v. JAI PRAKASH ASSOCIATES LTD

- **Citation:** [2021] 15 S.C.R. 96
- **Court:** Supreme Court of India
- **Decided:** 2021-03-16
- **Case number:** Civil Appeal Nos. 3766-3767 of 2020
- **Bench:** Dr. Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/neena-aneja-anr-v-jai-prakash-associates-ltd-35404
- **Pages:** 73

## Headnote

Consumer Protection Act, 2019 - s.107 -Consumer Protection
Act, 1986 - Repeal of 1986 Act -Proceedings instituted thereunder,
if can be continued under the same forum- Enhancement of
pecuniary jurisdiction - Pending proceedings, if to be transferred
-Consumer case was instituted by appellants before the NCDRC on
18.06.20 under the provisions of the 1986 Act-2019 Act came into
force 20.07.20 - Case dismissed by NCDRC on the ground that
after the enforcement of the 2019 Act, its pecuniary jurisdiction
has been enhanced from rupees one crore to rupees ten crores and
the claim of appellants, of Rs. 2.19 crores is below its enhanced
pecuniary jurisdiction-Held: Proceedings instituted before the
commencement of the 2019 Act would continue before the fora
corresponding to those under the 1986 Act and not be transferred
in terms of the pecuniary jurisdiction set for the fora established
under the 2019 Act- Something specific in terms of statutory
language either express words or words indicative of a necessary
intendment would have been required for mandating the transfer of
pending cases - Impugned order and the review order set aside -
National Commission to continue hearing the case instituted by the
appellants - General Clauses Act, 1897 - s.6 - Interpretation of
Statutes - Harmonious construction.
Consumer Protection Act, 2019 - s.107 -Object and purpose
of the 2019 Act - Repeal of the Consumer Protection Act, 1986 -
Proceedings pending thereunder, if to be transferred - Intention of
legislature - Held: The legislature cannot be attributed to be remiss
in not explicitly providing for transfer of pending cases according
to the new pecuniary limits set up for the fora established by the
new law, were that to be its intention-It would be difficult to attribute
to Parliament, whose purpose in enacting the Act of 2019 was to
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protect and support consumers with an intent that would lead to
financial hardship, uncertainty and expense in the conduct of
consumer litigation - General Clauses Act, 1897 - s.6.
Interpretation of Statutes - Procedural Law - Change of forum
- Operation of, if retrospective - Held: A change in forum lies in
the realm of procedure - Amendments on matters of procedure are
retrospective, unless a contrary intention emerges from the statute -
Repeals or amendments that effect changes in forum would
ordinarily affect pending proceedings, unless a contrary intention
appears from the repealing or amending statute - Position of law
on change of forum, precedents analysed - Position of law clarified.
General Clauses Act - s.6 (c), (e) - Consumer Protection Act,
1986 - Held: Plain consequence of clause (c) and clause (e), when
read together is two-fold: first, the right which has accrued on the
date of the institution of the consumer complaint under the Act of
1986 is preserved; and second, the enforcement of the right through
the instrument of a legal proceeding or remedy will not be affected
by the repeal.
Words & Phrases - "entertain" - Consumer Protection Act,
2019 - Consumer Protection Act, 1986 - Held: Mere use of the
word "entertain" in defining jurisdiction is not sufficient to
counteract the overwhelming legislative intention to ensure
consumer welfare and deliberately not provide for a provision for
transfer of pending proceedings in the Act of 2019 or u/s.106 of
the Act of 2019 which is a power to remove difficulties for a period
of two years after the commencement of the Act of 2019.
Allowing the appeals, the Court
HELD: 1.1 A change in forum lies in the realm of procedure.
Accordingly, in compliance with the tenets of statutory
interpretation applicable to procedural law, amendments on
matters of procedure are retrospective, unless a contrary
intention emerges from the statute. However, there was a
deviation by a two judge bench decision of this Court in Dhadi
Sahu, which overlooked the decision of a larger three judge bench
in New India Assurance and of a co-ordinate two judge bench in
Mar

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SUPREME COURT REPORTS
[2021] 15 S.C.R.
[2021] 15 S.C.R. 96
96
NEENA ANEJA & ANR.
v.
JAI PRAKASH ASSOCIATES LTD.
(Civil Appeal Nos. 3766-3767 of 2020)
MARCH 16, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Consumer Protection Act, 2019 - s.107 -Consumer Protection
Act, 1986 - Repeal of 1986 Act -Proceedings instituted thereunder,
if can be continued under the same forum- Enhancement of
pecuniary jurisdiction - Pending proceedings, if to be transferred
-Consumer case was instituted by appellants before the NCDRC on
18.06.20 under the provisions of the 1986 Act-2019 Act came into
force 20.07.20 - Case dismissed by NCDRC on the ground that
after the enforcement of the 2019 Act, its pecuniary jurisdiction
has been enhanced from rupees one crore to rupees ten crores and
the claim of appellants, of Rs. 2.19 crores is below its enhanced
pecuniary jurisdiction-Held: Proceedings instituted before the
commencement of the 2019 Act would continue before the fora
corresponding to those under the 1986 Act and not be transferred
in terms of the pecuniary jurisdiction set for the fora established
under the 2019 Act- Something specific in terms of statutory
language either express words or words indicative of a necessary
intendment would have been required for mandating the transfer of
pending cases - Impugned order and the review order set aside -
National Commission to continue hearing the case instituted by the
appellants - General Clauses Act, 1897 - s.6 - Interpretation of
Statutes - Harmonious construction.
Consumer Protection Act, 2019 - s.107 -Object and purpose
of the 2019 Act - Repeal of the Consumer Protection Act, 1986 -
Proceedings pending thereunder, if to be transferred - Intention of
legislature - Held: The legislature cannot be attributed to be remiss
in not explicitly providing for transfer of pending cases according
to the new pecuniary limits set up for the fora established by the
new law, were that to be its intention-It would be difficult to attribute
to Parliament, whose purpose in enacting the Act of 2019 was to
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protect and support consumers with an intent that would lead to
financial hardship, uncertainty and expense in the conduct of
consumer litigation - General Clauses Act, 1897 - s.6.
Interpretation of Statutes - Procedural Law - Change of forum
- Operation of, if retrospective - Held: A change in forum lies in
the realm of procedure - Amendments on matters of procedure are
retrospective, unless a contrary intention emerges from the statute -
Repeals or amendments that effect changes in forum would
ordinarily affect pending proceedings, unless a contrary intention
appears from the repealing or amending statute - Position of law
on change of forum, precedents analysed - Position of law clarified.
General Clauses Act - s.6 (c), (e) - Consumer Protection Act,
1986 - Held: Plain consequence of clause (c) and clause (e), when
read together is two-fold: first, the right which has accrued on the
date of the institution of the consumer complaint under the Act of
1986 is preserved; and second, the enforcement of the right through
the instrument of a legal proceeding or remedy will not be affected
by the repeal.
Words & Phrases - "entertain" - Consumer Protection Act,
2019 - Consumer Protection Act, 1986 - Held: Mere use of the
word "entertain" in defining jurisdiction is not sufficient to
counteract the overwhelming legislative intention to ensure
consumer welfare and deliberately not provide for a provision for
transfer of pending proceedings in the Act of 2019 or u/s.106 of
the Act of 2019 which is a power to remove difficulties for a period
of two years after the commencement of the Act of 2019.
Allowing the appeals, the Court
HELD: 1.1 A change in forum lies in the realm of procedure.
Accordingly, in compliance with the tenets of statutory
interpretation applicable to procedural law, amendments on
matters of procedure are retrospective, unless a contrary
intention emerges from the statute. However, there was a
deviation by a two judge bench decision of this Court in Dhadi
Sahu, which overlooked the decision of a larger three judge bench
in New India Assurance and of a co-ordinate two judge bench in
Maria Cristina. The decision in Dhadi Sahu propounded a position
that "no litigant has any vested right in the matter of procedural
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law but where the question is of change of forum it ceases to be a
question of procedure only. The forum of appeal or proceedings is
a vested right as opposed to pure procedure to be followed before a
particular forum. The right becomes vested when the proceedings
are initiated in the tribunal."In taking this view, the two judge
bench did not consider binding decisions. Dhadi Sahu failed to
consider that the saving of pending proceedings in Mohd. Idris
and Manujendra Dutt was a saving of vested rights of the litigants
that were being impacted by the repealing acts therein, and not
because a right to forum is accrued once proceedings have been
initiated. Thereafter, a line of decisions followed Dhadi Sahu, to
hold that a litigant has a crystallized right to a forum once
proceedings have been initiated. A litigant's vested right
(including the right to an appeal) prior to the amendment or repeal
are undoubtedly saved, in addition to substantive rights envisaged
under Section 6 of the General Clauses Act. This protection does
not extend to pure matters of procedure. Repeals or amendments
that effect changes in forum would ordinarily affect pending
proceedings, unless a contrary intention appears from the
repealing or amending statute. [Para 53][158-H; 159-A-F]
Commissioner of Income Tax, Orissa v. Dhadi Sahu
1994 Suppl. (1) SCC 257 : [1992] 3 Suppl. SCR 168held per incuriam.
Mohd. Idris v. Sat Narain AIR 1966 SC 1499 : [1966]
SCR 15; Manujendra Dutt v. Purnedu Prosad Roy
Chowdhury [1967] 1 SCR 475 - referred to.
1.2 Section 107(1) of the Act of 2019 repeals the Act of
1986. Section 107 (2) has saved "the previous operation" of any
repealed enactment or "anything duly done or suffered thereunder
to the extent that it is not inconsistent with the provisions of the
new legislation". Finally, Section 107(3) indicates that the mention
of particular matters in sub-Section (2) will not prejudice or affect
the general application of Section 6 of the General Clauses Act.
Section 6 of the General Clauses Act provides governing
principles with regard to the impact of the repeal of a central
statute or regulation. These governing principles are to apply,
"unless a different intention appears". Clause (c) of Section 6
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inter alia stipulates that a repeal would not affect "any right,
privilege, obligation or liability acquired, accrued or incurred
under any enactment so repealed". The right to pursue a validly
instituted consumer complaint under the Act of 1986 is a right
which has accrued under the law which was repealed. Clause (e)
of Section 6 stipulates that the repeal will not affect, inter alia,
any "legal proceeding or remedy" in respect of any such right...as
aforesaid". Any such legal proceedings may be continued as if
the repealing legislation had not been passed. Clause (c) of Section
6 has the effect of preserving the right which has accrued. Clause
(e) ensures that a legal proceeding which has been initiated to
protect or enforce "such right" will not be affected and that it can
be continued as if the repealing legislation has not been enacted.
The expression such a right in clause (e) evidently means the
right which has been adverted to in clause (c). The plain
consequence of clause (c) and clause (e), when read together is
two-fold: first, the right which has accrued on the date of the
institution of the consumer complaint under the Act of 1986 (the
repealing law) is preserved; and second, the enforcement of the
right through the instrument of a legal proceeding or remedy will
not be affected by the repeal. This position needs to be harmonized
with the principle that the right to a forum is not an accrued right.
While Section 6(e) of the General Clauses Act protects the pending
legal proceedings for the enforcement of an accrued right from
the effect of a repeal, this does not mean that the legal proceedings
at a particular forum are saved from the effects from the repeal.
The question whether the pending legal proceedings are required
to be transferred to the newly created forum by virtue of the
repeal would still persist. This Court in New India Assurance and
Maria Christina has held that forum is a matter pertaining to
procedural law and therefore the litigant has to pursue the legal
proceedings at the forum created by the repealing act, unless a
contrary intention appears. This principle would also apply to
pending proceedings, asobserved in Ramesh Kumar Soni,
Hitendra Kumar Thakur and Sudhir G Angur. In this backdrop,
what is relevant to ascertain is whether a contrary intent to the
general rule of retrospectivity has been expressed under the Act
of 2019 to continue the proceedings at the older forum. [Paras
62-64][161-F, G-H; 162-A-H, 163-A-B]
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Hitendra Vishnu Thakur v. State of Maharashtra (1994)
4 SCC 602 : [1994] 1 Suppl. SCR 360; Sudhir G Angur
v. M Sanjeev (2006) 1 SCC 141 : [2005] 4 Suppl. SCR
851; Ramesh Kumar Soni v. State of Maharashtra
(2013) 14 SCC 696 : [2013] 1 SCR 1129 - relied on.
1.3 In considering the expression of intent in the repealing
enactment in the present case, it is apparent that there is no
express language indicating that all pending cases would stand
transferred to the fora created by the Act of 2019 by applying its
newly prescribed pecuniary limits. In deducing whether there is
a contrary intent, the legislative scheme and procedural history
may provide a relevant insight into the intention of the
legislature.The Act of 2019, as indicated by its long title, is enacted
to provide "for protection of the interests of consumers". The
Statement of Objects and Reasons took note of the tardy disposal
of cases under the erstwhile legislation. Thus, the necessity of
inducing speed in disposal was to protect the rights and interests
of consumers. The Act of 2019 has taken note of the evolution of
consumer markets by the proliferation of products and services
in light of global supply chains, e-commerce and international
trade. New markets have provided a wider range of access to
consumers. But at the same time, consumers are vulnerable to
exploitation through unfair and unethical business practices. The
Act has sought to address "the myriad and constantly emerging
vulnerabilities of the consumers". The recurring theme in the
new legislation is the protection of consumers which is sought to
be strengthened by procedural interventions such as
strengthening class actions and introducing mediation as an
alternate forum of dispute resolution. [Paras 65, 66][163-B-F]
1.4 Something specific in terms of statutory language - either
express words or words indicative of a necessary intendment
would have been required for mandating the transfer of pending
cases. One can imagine the serious hardship that would be caused
to the consumers, if cases which have been already instituted
before the NCDRC were required to be transferred to the
SCDRCs as a result of the alteration of pecuniary limits by the
Act of 2019. A consumer who has engaged legal counsel at the
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headquarters of the NCDRC would have to undertake a fresh
round of legal representation before the SCDRC incurring
expense and engendering uncertainty in obtaining access to
justice. Likewise, where complaints have been instituted before
the SCDRC, a transfer of proceedings would require consumers
to obtain legal representation before the District Commission if
cases were to be transferred. Such a course of action would have
a detrimental impact on the rights of consumers. Many consumers
may not have the wherewithal or the resources to undertake a
fresh burden of finding legal counsel to represent them in the
new forum to which their cases would stand transferred. It would
be difficult to attribute to Parliament, whose purpose in enacting
the Act of 2019 was to protect and support consumers with an
intent that would lead to financial hardship, uncertainty and
expense in the conduct of consumer litigation. Ironically, the
objection which has been raised in the present case to the
continued exercise of jurisdiction by the NCDRC in regard to
the consumer complaint filed by the appellant is by the developer
who is the respondent herein. It is a developer who opposed the
continuation of the proceedings before the NCDRC on the ground
that under the new consumer legislation the pecuniary limits of
the jurisdiction exercisable by the NCDRC have been enhanced
and the complaint filed by the appellant which was validly instituted
under the erstwhile law should be transferred to the SCDRC.
Such a course of action will result in thousands of cases being
transferred across the country, from the NCDRC to the SCDRCs
and from the SCDRCs to the District Commission. [Paras 67,
68][163-G-H; 164-A-E]
1.5 The data indicates that as on 31 October 2019, 21,216
cases were pending before the NCDRC and 1,25,156 cases were
pending before the SCDRC. Many of these cases would have to
be transferred if the view which the developer propounds is
upheld. This will seriously dislocate the interests of consumers
in a manner which defeats the object of the legislation, which is
to protect and promote their welfare. Clear words indicative of
either an express intent or an intent by necessary implication
would be necessary to achieve this result. The Act of 2019 contains
no such indication. The transitional provisions contained in
Sections 31, 45 and 56 expressly indicate that the adjudicatory
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personnel who were functioning as Members of the District
Commission, SCDRC and NCDRC under the erstwhile
legislation shall continue to hold office under the new legislation.
Such provisions are necessary because persons appointed to the
consumer fora under the Act of 1986 would have otherwise
demitted office on the repeal of the legislation. The legislature
cannot be attributed to be remiss in not explicitly providing for
transfer of pending cases according to the new pecuniary limits
set up for the fora established by the new law, were that to be its
intention. The omission, when contextualized against the statutory
scheme, portends a contrary intention to protect pending
proceedings through Section 107(2) of the Act of 2019. This
intention appears likely, particularly in light of previous decisions
of the NCDRC which had interpreted amendments that enhanced
pecuniary jurisdiction, with prospective effect. [Para 69][166-CG]
Southfield Paints and Chemicals Pvt. Ltd. v. New India
Assurance Co. Ltd. Consumer Case No.286 of 2000
(NCDRC); Premier Automobiles Ltd. v. Dr. Manoj Ram
achandran, Revision Petitions Nos. 400 to 402 of 1993
(NCDRC) - approved.
1.6 It is accepted, that in defining the jurisdiction of the
District Commission, Section 34 of the Act of 2019 entrusts the
jurisdiction to "entertain" complaints. A similar provision is
contained in Section 47 and Section 58 in regard to the SCDRC
and NCDRC. Sections 34, 47 and 58 similarly indicate that the
respective consumer fora can entertain complaints within the
pecuniary limits of their jurisdiction. These provisions will
undoubtedly apply to complaints which were instituted after the
Act of 2019 came into force. However, the mere use of the word
"entertain" in defining jurisdiction is not sufficient to counteract
the overwhelming legislative intention to ensure consumer welfare
and deliberately not provide for a provision for transfer of pending
proceedings in the Act of 2019 or under Section 106 of the Act of
2019 which is a power to remove difficulties for a period of two
years after the commencement of the Act of 2019. [Para 70][167C, F-G]
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1.7 Proceedings instituted before the commencement of
the Act of 2019 on 20 July 2020 would continue before the fora
corresponding to those under the Act of 1986 (the National
Commission, State Commissions and District Commissions) and
not be transferred in terms of the pecuniary jurisdiction set for
the fora established under the Act of 2019. Directions-
(i) The impugned judgment and order of the NCDRC dated
30 July 2020 and the review order dated 5 October 2020,
directing a previously instituted consumer case under the Act of
1986 to be filed before the appropriate forum in terms of the
pecuniary limits set under the Act of 2019, shall stand set aside;
(ii) The National Commission shall continue hearing the
consumer case instituted by the appellants;
(iii) All proceedings instituted before 20 July 2020 under
the Act of 1986 shall continue to be heard by the fora
corresponding to those designated under the Act of 1986 as
explained above and not be transferred in terms of the new
pecuniary limits established under the Act of 2019. [Para 71][168A-E]
New India Assurance Company Limited v. Smt Shanti
Mishra (1975) 2 SCC 840 : [1976] 2 SCR 266; Maria
Cristina De Souza v. Amria Zurana Pereira Pinto (1979)
1 SCC 92; Manish Kumar v. Union of India 2021 (1 )
 SCALE 646 - relied on.
Garikapati Veeraya v. N Subbiah Choudhry [1957] SCR
488; Nusli Neville Wadia v. Ivory Properties (2020) 6
SCC 557; Venugopala Reddiar v. Krishnaswami Reddiar,
alias Raja Chidambara Reddiar AIR 1943 FC 24;
Colonial Sugar Refining Company Ltd. v. Irving (1905)
AC 369; Kiran Singh v. Chaman Paswan AIR 1954 SC
340 : [1955] SCR 117; V Dhanapal Chettiar v. Yesodai
Ammal (1979) 4 SCC 214 : [1980] 1 SCR 334; Shiv
Bhagwan Moti Ram Saroji v. Onkarmal Ishar Das
(1952) 54 Bom LR 330; Ranbir Yadav v. State of Bihar
(1995) 4 SCC 392 : [1995] 2 SCR 826; Kamlesh Kumar v.
State of Jharkhand (2013) 15 SCC 460 : [2013] 14
SCR 263; Ambalal Sarabhai Enterprises Ltd. v. Amrit
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Lal & Co. (2001) 8 SCC 397 : [2001] 2 Suppl. SCR
195; Himachal Pradesh State Electricity Regulatory
Commission v Himachal Pradesh State Electricity Board
(2014) 5 SCC 219 : [2013]11 SCR 915; Videocon
International Limited v. Securities and Exchange Board
of India (2015) 4 SCC 33 : [2015] 3 SCR 1; Securities
and Exchange of Board of India v. Classic Credit Limited
(2018) 13 SCC 1 : [2017] 13 SCR 559; Swapna
Mohanty v. State of Odisha (2018) 17 SCC 621; Om
Prakash Agarwal v. Vishan Dayal Rajpoot (2019) 14
SCC 526 : [2018] 13 SCR 47; Delhi High Court Bar
Association v. Court of Delhi ILR (1994) 1 Del 271;
Mahendra Panmal Duggad Jain v. Bhararilal Panmal
Duggad Jain (2008) 4 Mah LJ 803; Vallabhaneni
Lakshmana Swamy v. Valluru Basavaiah (2004) 5 ALD
807; Gobardhan Lal Soneja v. Binod Kumar Sinha
(1991) 2 PLJR 783; Y.B. Ramesh v. Varalakshmi (2010)
6 Kant LJ 43; Hindusthan Commercial Bank Ltd. v.
Punnu Sahu (Dead) Through Legal Representatives
(1971) 3 SCC 124; State of Rajasthan v. Mangilal
Pindwal (1996) 5 SCC 60 : [1996] 3 Suppl. SCR 98referred to.
Case Law Reference
[1957] SCR 488
referred to
Para 12
(2020) 6 SCC 557
referred to
Para 13(iii)
[1955] SCR 117
referred to
Para 16
[1966] SCR 15
referred to
Para 19
[1967] 1 SCR 475
referred to
Para 21
[1980] 1 SCR 334
referred to
Para 22
[1976] 2 SCR 266
relied on
Para 23
(1979) 1 SCC 92
relied on
Para 24
[1994] 1 Suppl. SCR 360
relied on
Para 26
[2005] 4 Suppl. SCR 851
relied on
Para 26
[2013] 1 SCR 1129
relied on
Para 28
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[1992] 3 Suppl. SCR 168
held per incuriam
Para 29
[1995] 2 SCR 826
referred to
Para 30
[2013] 14 SCR 263
referred to
Para 30
[2001] 2 Suppl. SCR 195
referred to
Para 31
[2013] 11 SCR 915
referred to
Para 34
[2015] 3 SCR 1
referred to
Para 36
[2017] 13 SCR 559
referred to
Para 39
(2018) 17 SCC 621
referred to
Para 45
[2018] 13 SCR 47
referred to
Para 46
[1996] 3 Suppl. SCR 98
referred to
Para 62
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 37663767 of 2020.
From the Order dated 30.07.2020 and 05.10.2020 of the National
Consumer Disputes Redressal Commission at New Delhi in Consumer
Complaint No.566 of 2020 and in Review Application No.124 of 2020
respectively.
P. Vinay Kumar, Adv. for the Appellants.
Krishnan Venugopal, Sr. Adv., Vishal Gupta, Sumeet Sharma,
Divyanshu Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
Index
A.
Background
B.
Submissions
B.1.
Submissions of the appellants
B.2.
Submissions of the respondent
C.
Position of law on change of forum: An analysis of precedent
C.1.
Venugopala Reddiar (1943- Federal Court 3 judges)
C.2.
Kiran Singh v. Chaman Paswan (1954- Supreme
Court 4 judges)
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C.3.
Garikapati (1957- Supreme Court Constitution
Bench)
C.4.
Mohd. Idris (1965- Supreme Court Constitution
Bench)
C.5.
Manujendra Dutt (1966- Supreme Court 2 judges)
C.6.
New India Assurance (1975- Supreme Court 3
judges)
C.7.
Maria Cristina (1978- Supreme Court 2 judges)
C.8.
Hitendra Vishnu Thakur (1994- Supreme Court 2
judges)
C.9.
Sudhir G Angur (2005- Supreme Court 3 judges)
C.10. Ramesh Kumar Soni (2013- Supreme Court 2 judges)
C.11. Dhadi Sahu (1992- Supreme Court 2 judges)
C.12. Ambalal Sarabhai (2001- Supreme Court 2 judges)
C.13. HP State Electricity (2013- Supreme Court 2 judges)
C.14. Videocon International (2015- Supreme Court 2
judges)
C.15. SEBI v. Classic Credit (2018- Supreme Court 2
judges)
C.16. Swapna Mohanty (2018- Supreme Court 2 judges)
C.17. Om Prakash Agarwal (2018- Supreme Court 2
judges)
C.18. Delhi High Court Bar Association (1993- Delhi HCDB)
C.19. Mahendra Jain (2008- Bombay HC-DB)
C.20. Vallabhaneni (2004- Andhra Pradesh HC- 5 judges)
C.21. Gobardhan Lal Soneja (1991-Patna HC-FB)
C.22. Y.B. Ramesh (2010-Karnataka HC-SJ)
C.23. Conclusion on the position of law
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107
D.
Legislative Scheme of the jurisdictional provisions
E.
Legislative intendment underlying Section 107 of the Act
of 2019
F.
Summation
A Background
1. On being enacted by Parliament, the Consumer Protection Act
20191 was published in the Gazette of India on 9 August 20192. By S.O.
2351(E) dated 15 July 2020, the material provisions of the Act of 2019
were notified to come into force on 20 July 2020. By S.O. 2421(E)
dated 23 July 2020 several other provisions were brought into force,
with effect from 24 July 2020. The appellants instituted a consumer
case3 before the National Consumer Disputes Redressal Commission4
on 18 June 2020. The consumer case was instituted under the provisions
of the erstwhile legislation, the Consumer Protection Act 19865. The
NCDRC by its order dated 30 July 2020 dismissed the consumer case
on the ground that after the enforcement of the Act of 2019, its pecuniary
jurisdiction has been enhanced from rupees one crore to rupees ten
crores. The appellants' review petition was also dismissed by the NCDRC
on 5 October 2020. In the present case, the claim of Rs. 2.19 crores is
below the enhanced pecuniary jurisdiction of the NCDRC.
2. The complainants in the consumer case are in appeal.
3. The issue which arises in the appeals is whether a complaint
which was filed and registered under the Act of 1986, before the new
Act of 2019 came into force, has to be entertained under the provisions
of the erstwhile legislation. In anticipation of the enforcement of the Act
of 2019, an administrative notice was issued by the NCDRC on 17 July
2020 to allow the functioning of its registry for fresh filings on 18 July
2020, since the new law was to come into force on 20 July 2020. The
appellants are also aggrieved by the fact that contrary to the position
taken in its case, other Benches of the NCDRC have admitted complaints
instituted before 20 July 2020. This grievance apart, the issue which
1 "Act of 2019"
2 The Act was published in the Gazette of India Extraordinary, Part II, Section 1, No. 54
dated 9 August 2019
3 Consumer Case no.566 of 2020 (NCDRC)
4 "NCDRC"
5 "Act of 1986"
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arises in the appeals would turn upon a construction of Section 107 of
the Act of 2019, among other provisions of the new legislation, and its
interplay with Section 6 of the General Clauses Act 18976. The analysis
of the Court, despite the new legislation, will not proceed on a clean
slate for there is precedent which holds the field. That both sides rely
upon the line of precedent in the unfolding of their cases makes the
interpretational task intricate. Our task will be to bring a solution that has
a sense of cohesion, while harmonizing precedential learning with justice.
4. A brief narration of the facts would assist with context. Upon
the payment of an advance of Rs.3.50 lacs on 25 November 2011 by the
appellants, the respondent provisionally allotted a residential unit in a
real-estate project described as KRESCENT Homes admeasuring a
super built area of 114.27 square metres which was being developed by
the respondent at Jaypee Greens, Noida. The total consideration was
fixed at Rs.56.45 lacs and possession was intended to be conveyed within
a period of 42 months from the execution of the agreement of the
provisional allotment letter. The appellants have stated that between
December 2011 till date, they have paid an amount of Rs. 53.84 lacs out
of the total consideration of Rs.56.45 lacs.
5. On 13 June 2017 and 27 April 2020, the appellant sought a
refund of the consideration together with interest at 18 per cent. On 18
June 2020, the appellants instituted a consumer complaint before the
NCDRC for refund with interest. The consumer complaint has been
dismissed by an order dated 30 July 2020 for want of pecuniary
jurisdiction. A single member Bench of the NCDRC held that following
the enforcement of the Act of 2019 on 20 July 2020, the limits of its
pecuniary jurisdiction stands enhanced from rupees one crore to rupees
ten crores and the complaint instituted by the appellants is consequently
not maintainable. The appellants instituted a petition seeking a review of
the order. The review petition was dismissed on 5 October 2020 leading
to the institution of the appeal before this Court.
6. Section 21 of the Act of 1986 provided for the jurisdiction of
the NCDRC:
"Jurisdiction of the National Commission. - Subject to the
other provisions of this Act, the National Commission shall have
jurisdiction6 "General Clauses Act"
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(a)
to entertain-
(i)
complaints where the value of the goods or services and
compensation, if any, claimed exceeds rupees one crore;
and
(ii)
appeals against the orders of any State Commission; and
(b)
to call for the records and pass appropriate orders in any
consumer dispute which is pending before or has been
decided by any State Commission where it appears to the
National Commission that such State Commission has
exercised a jurisdiction not vested in it by law, or has failed
to exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material
irregularity." (emphasis supplied)
7. Under the Act of 1986, the enhancement of the pecuniary limits
of the jurisdiction of the NCDRC to rupees one crore came in substitution
of rupees twenty lacs with effect from 15 March 2003 as a result of Act
62 of 2002. Earlier the limit of rupees twenty lacs was substituted by
Act 50 of 1993 for rupees ten lacs with effect from 18 June 1993.
8. Under Section 11, the jurisdiction of the District Commission to
entertain original complaints was rupees twenty lacs7. Under Section
17, the State Consumer Disputes Redressal Commission8 had jurisdiction
to entertain complaints where the value of the goods and services or
compensation if any claimed exceeds rupees twenty lacs but does not
exceed rupees one crore9.
9. The Act of 2019 was enacted by Parliament taking into account
the experience which was gained in the administration of the earlier
legislation and to meet new developments in the market place for products
and services. The Statement of Objects and Reasons accompanying the
introduction of the Bill in Parliament elucidates the rationale for the new
law:
7 The pecuniary limits were enhanced from rupees one lac to rupees five lacs by Act 50
of 1983 with effect from 18 June 1993. The limits were enhanced from rupees five lacs
to rupees twenty lacs by Act 62 of 2002 with effect from 15 March 2003.
8 "SCDRC"
9 By Act 62 of 2002, these limits had been enhanced from the previous limits of rupees
five lacs - rupees 20 lacs
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"Statement of Objects and Reasons
The Consumer Protection Act, 1986 (68 of 1986) was enacted to
provide for better protection of the interests of consumers and for
the purpose of making provision for establishment of consumer
protection councils and other authorities for the settlement of
consumer disputes, etc. Although, the working of the consumer
dispute redressal agencies has served the purpose to a considerable
extent under the said Act, the disposal of cases has been fast due to
various constraints. Several shortcomings have been noticed while
administering the various provisions of the said Act.
2. Consumer markets for goods and services have undergone
drastic transformation since the enactment of the Consumer
Protection Act in 1986. The modern market place contains a
plethora of products and services. The emergence of global supply
chains, rise in international trade and the rapid development of ecommerce have led to new delivery systems for goods and services
and have provided new options and opportunities for consumers.
Equally, this has rendered the consumer vulnerable to new forms
of unfair trade and unethical business practices. Misleading
advertisements, tele-marketing, multi-level marketing, direct selling
and e-commerce pose new challenges to consumer protection
and will require appropriate and swift executive interventions to
prevent consumer detriment. Therefore, it has become inevitable
to amend the Act to address the myriad and constantly emerging
vulnerabilities of the consumers. In view of this, it is proposed to
repeal and re-enact the Act.
3. Accordingly, a Bill, namely, the Consumer Protection Bill, 2018,
was introduced in Lok Sabha on the 5th January, 2018 and was
passed by that House on the 20th December, 2018. While the Bill
was pending consideration in Rajya Sabha, the Sixteenth Lok Sabha
was dissolved and the Bill got lapsed. Hence, the present Bill,
namely, the Consumer Protection Bill, 2019.
4. The proposed Bill provides for the establishment of an executive
agency to be known as the Central Consumer Protection Authority
(CCPA) to promote, protect and enforce the rights of consumers;
make interventions when necessary to prevent consumer detriment
arising from unfair trade practices and to initiate class action
including enforcing recall, refund and return of products, etc. This
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fills an institutional void in the regulatory regime extant. Currently,
the task of prevention of or acting against unfair trade practices is
not vested in any authority. This has been provided in a manner
that the role envisaged for the CCPA complements that of the
sector regulators and duplication, overlap or potential conflict is
avoided.
5. The Bill envisages provisions for product liability action on
account of harm caused to consumers due to a defective product
or by deficiency in services. Further, provision of "Mediation" as
an Alternate Dispute Resolution Mechanism has also been
provided.
6. The Bill provides for several provision aimed at simplifying the
consumer dispute adjudication process of the Consumer Disputes
Redressal Agencies, inter alia relating to enhancing the pecuniary
jurisdiction of the Consumer Disputes Redressal Agencies;
increasing minimum number of Members in the State Consumer
Disputes Redressal Commissions and provisions for consumers
to file complaints electronically, etc.
7. The Bill seeks to achieve the above objectives."
10. Section 28(1) provides for the establishment of a District
Consumer Disputes Redressal Commission10 in every district, subject to
its establishment by a notification of the State Government11. The
jurisdiction of the District Commission in terms of Section 34 is to
entertain complaints where the value of goods and services paid as
consideration does not exceed one crore rupees. Section 42 provides
for the establishment of a SCDRC in each State. The pecuniary limits
of the original jurisdiction of the SCDRC under Section 47(1)(a) is to
entertain original complaints where the value of goods and services
paid as consideration exceeds rupees one crore but does not exceed
10 "District Commission"
11 28. (1) The State Government shall, by notification, establish a District Consumer
Disputes Redressal Commission, to be known as the District Commission, in each
district of the State: Provided that the State Government may, if it deems fit, establish
more than one District Commission in a district.
(2) Each District Commission shall consist of-
(a) a President; and
(b) not less than two and not more than such number of members as may be prescribed,
in consultation with the Central Government.
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rupees ten crores. Section 53 provides for the establishment of the
NCDRC. Section 58(1)(a) contains the pecuniary limits of the
jurisdiction of the NCDRC, which in the case of original complaints is
where the value of goods and services paid as consideration exceeds
rupees ten crores.
11. Section 107 contains the repeal and savings provision, which
is in the following terms:
"107. Repeal and savings-
(1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken
or purported to have been done or taken under the Act hereby
repealed shall, in so far as it is not inconsistent with the provisions
of this Act, be deemed to have been done or taken under the
corresponding provisions of this Act.
(3) The mention of particular matters in sub-section (2) shall not
be held to prejudice or affect the general application of section 6
of the General Clauses Act, 1897 with regard to the effect of
repeal."
In terms of sub-section (1) of Section 107, the Act of 1986 stands
repealed. Sub- section (2) is prefaced with a non obstante provision.
Under sub-section (2) anything done or any action taken or purported
to have been done or taken under the repealed legislation is deemed to
have been done or taken under the corresponding provision of the new
legislation, insofar as it is not inconsistent with the latter provisions.
Sub-section (3) of Section 107 stipulates that the specification of the
matters contained in sub-section (2) does not prejudice or affect the
general application of Section 6 of the General Clauses Act (with regard
to the effect of repeal). Having repealed, the Act of 1986, the new
legislation has also made transitional provisions in Section 3112, Section
4513 and
12 31. Transitional provision: Any person appointed as President or, as the case may
be, a member of the District Commission immediately before the commencement of
this Act shall hold office as such as President or, as the case may be, as member till the
completion of his term for which he has been appointed.
13 45. Transitional provision: Any person appointed as President or, as the case may
be, a member of the State Commission immediately before the commencement of this
Act shall hold office as such, as President or member, as the case may be, till the
completion of his term.
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Section 5614 for the continuance of persons appointed as members
of the District Commission, the SCDRC and the NCDRC under the
erstwhile legislation.
B Submissions
B.1 Submissions of the appellants
12. Mr P Vinay Kumar, learned Counsel appearing on behalf of
the appellants urged the following submissions in support of the appeal:
(i)
Section 107(3) of the Act of 2019 gives full effect to the
provisions of Section 6 of the General Clauses Act, which
means that nothing in the repeal of the earlier legislation
will affect pending proceedings which may continue as if
the new legislation has not been enacted. Under the Act of
2019, the jurisdiction has been conferred on the SCDRC to
hear complaints under the new Act. In order to vest the
SCDRC with jurisdiction to hear complaints which were
instituted before the NCDRC under the old Act, a specific
provision for transferring the proceedings was requiredwhich has not been provided. This is not the case where a
statute has been amended by enhancement of pecuniary
jurisdiction but involves the repeal of an old statute in which
event a provision for transferring the cases to the new forum
is essential;
(ii)
The new Act of 2019 affects substantive and vested rights
and must necessarily be prospective; and
(iii)
The new legislation does not contain any provision for its
retrospective operation.
A. Elaborating on the first limb of submissions, learned counsel
urged that in several decisions of this Court, Section 6 of the
General Clauses Act was applied by the Court in order to
save existing proceedings. In the present case, the law makers
have specifically incorporated the applicability of Section 6 of
the General Clauses Act, by making a provision in Section
14 56. Transitional provision: The President and every other member appointed
immediately before the commencement of section 177 of the Finance Act, 2017 shall
continue to be governed by the provisions of the Consumer Protection Act, 1986 and
the rules made thereunder as if this Act had not come into force.
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107(3) of the Act of 2019. The question of examining the
existence of vested rights arises only where there is a doubt
over a savings provision or when Section 6 has not been made
specifically applicable. In such cases, the Court has to
scrutinize whether a vested right had arisen under the repealed
statute, in which event the pending proceedings would be
saved. However, where Section 6 is applicable, it covers a
wider field so as to save not only vested rights but all rights
covered by clauses (a) to (e) of Section 6.
B. The next limb of the submissions is that substantial changes
have been made in the provisions for appeal contained in the
Act of 2019. For instance, the second proviso to Section 19 of
the Act of 1986 required an aggrieved person to either deposit
50 per cent of the amount awarded by the SCDRC or Rs
25,000, whichever is less. However, in the Act of 2019, the
second proviso to Section 51(1) stipulates that an appeal shall
not be entertained by the NCDRC unless the appellant has
deposited 50 per cent of the amount required under the order
of the SCDRC. This provision substantially affects the vested
right of a litigant and is not merely procedural in nature. In
Garikapati Veeraya v. N Subbiah Choudhry15, the
Constitution Bench of this Court has held that a right of appeal
is not a mere matter of procedure but is a substantive right
and that the institution of a suit carries with it the implication
that all rights of appeal then in force are preserved.