Jammu & Kashmir High Court
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All pending proceedings from erstwhile J&K State Consumer Commission will continue to be heard by High Court: Jammu and Kashmir HC

The Court, however, clarified that all fresh proceedings concerning consumer complaints and appeals will be dealt with as per the Consumer Protection Act, as provided in the J&K Reorganization Act, 2019.

Shruti Mahajan

The Jammu and Kashmir High Court on Monday said that all pending appeals and proceedings arising out of orders passed by the erstwhile State Consumer Dispute Redressal Commission of J&K will continue to be heard by the High Court, despite the Jammu and Kashmir Consumer Protection Act, 1987 have been repealed after the State's reorganization into two Union Territories (Sajad Ahmad Malik vs National Insurance Company).

The Bench of Justices Ali Mohammad Magrey and Vinod Chatterji Koul was hearing a batch of appeals arising out of an order passed by the former State Consumer Commission when the question of jurisdiction was raised before the Court.

The Court's attention was brought to the fact that after the J&K Reorganization Act got the President's assent on August 9 and the erstwhile State of J&K stood bifurcated into two Union Territories, the Central laws also became applicable in these UTs.

The Reorganization Act came into effect from October 31, 2019, as declared by the Government of India.

With the Central laws becoming applicable in the UT, the Special State Laws, and by extension the Jammu and Kashmir Consumer Protection Act of 1987 stood repealed.

Therefore, the jurisdiction of the High Court to hear appeals arising out of the orders passed by the erstwhile State Commission was questioned by one Respondent in the case, the Oriental Insurance Company.

The High Court did not have the jurisdiction to hear appeals filed under Section 17 of the Act that now stands repealed, it was contended before the Court by Advocate NH Khuroo for the Oriental Insurance Company.

It was argued by Khuroo that appeals from State Commission's orders are now required to be transferred before the National Consumer Disputes Redressal Commission for their disposal in the same manner as all the Service matters stood transferred to the Central Administrative Tribunal.

On the other hand, Advocate JA Kawoosa, representing the National Insurance Company Ltd. argued that the Reorganization (Removal of Difficulties) Order, 2019 in Section 13(d) has saved the pending proceedings by providing that the Acts that stand repealed will not affect any "investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid."

As such, the pending appeals filed under Section 17 of the repealed Act will have to be heard by the Jammu and Kashmir High Court, it was contended by Kawoosa. The Counsel for the complainants, in the case, Advocate Hakim Suhail Ishtiaq, also supported this stand and added that the pending appeals get saved under Section 6 of the General Clauses Act, 1897 as well.

The Court, after hearing these arguments on maintainability, concluded that the pending appeals will continue to be heard by the High Court as if the repealed Act were still in force.

"...all the pending proceedings/ appeals arising out of the orders or awards passed by the erstwhile Jammu and Kashmir State Consumer Disputes Redressal Commission are to continue to be heard and decided by this Court as if the unamended provision/ Act is still in force."
Jammu & Kashmir High Court

The Court however, clarified that all fresh proceedings concerning consumer complaints and appeals will be dealt with as per the provisions under the Consumer Protection Act, 2019, as provided in the Jammu and Kashmir Reorganization Act, 2019.

The Court noted that the appeals before the Court all arose from a common order of the State Commission and have remained pending for more than seven years. It was during the pendency of these appeals that in August 2019, the special status of Jammu & Kashmir was revoked, Article 370 of Indian Constitution abrogated, and the ertwhile State bifurcated into Union Territories.

The High Court noted that while the Consumer Protection Act of 1986 was made applicable to the newly formed UTs of J&K and Ladakh with the Reorganization Act of 2019, the 1986 Act itself was repealed thereafter. Instead, the Parliament brought in the Consumer Protection Act of 2019 in its place, the High Court pointed out.

All the same, the High Court agreed with the arguments made by Kawoosa and said that the Reorganization Act of 2019 saves all pending legal proceedings that arose under the State Acts that were repealed. All the authorities under the repealed Acts continued to have authority as regards pending proceedings as though the Reorganization Act had not been passed, Section 13 of the Act says. The Court said,

"...the Central Government has already passed the Jammu and Kashmir Reorganization (Removal of Difficulties) Order, 2019, Clause (d) to Section 13 whereof clearly saves the pending legal proceedings. A bare perusal of this Clause, as is reproduced in paragraph No. 04 of this judgment, makes it explicitly axiomatic that the competent authority has already saved those investigations or legal proceedings or remedies..."

Further, the Court said that the general principle prescribed is that when an Act passed by the legislature brings about a change to the scheme of law or forum, it does not affect the actions or proceedings that are already pending "unless the intention to the contrary was clearly shown in the Act of the Legislature itself."

The Court also rejected Khuroo's argument which drew a parallel with the status as regards pending Service matters.

The Court pointed out that an executive order was passed earlier this year which expressly conferred the jurisdiction for service matters on the Central Administrative Tribunal in Chandigarh. A declaration of this nature is absent when it comes to Consumer disputes, the Court observed.

The Court thus concluded that the High Court would continue to have the jurisdiction to hear pending appeals as regards Consumer disputes. While holding the appeals before it to be, therefore, maintainable, the Court went on to decide the same on their merit.

Read Order:

Sajad Ahmad Malik vs National Insurance Company - J&K HC - 22.06.2020.pdf
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