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Try out our Premium Member services -- Free for one month.\n\nState Consumer Disputes Redressal Commission\nV K Thakkar vs N B Upadhyay on 11 May, 2023\n                                                Details                 DD      MM     YY\n                                                Date of Judgment         11      05    2023\n                                                Date of filing           28      11    2022\n                                                Duration                 13      05       -\n\n            IN THE CONSUMER DISPUTES REDRESSAL COMMISSION\n                      GUJARAT STATE, AHMEDABAD.\n\n                          First Appeal No.831/2022\n                                 Court No. 1\n\n  Thakkar Vasudev Kanaiyalal\n  Keval Farm, Karodiya Road,\n  Post Bajva, Vadodara.                                            ...Appellant\n\n                  Vs\n1. Shri N.B.Upadhyay\n   Municipal Commissioner\n   Vadodara Mahanagar Seva Sadan, Khanderao Market,\n   Rajmahal Road,\n   Vadodara.\n\n2. Ms. Shalini Agarwal I/C Municipal Commissioner\n   Vadodara Mahanagar Seva Sadan, Khanderao Market,\n   Rajmahal Road,\n   Vadodara.\n\n3. Jitesh Trivedi, Officer\n   Vadodara Mahanagar Seva Sadan, Khanderao Market,\n   Rajmahal Road,\n   Vadodara.\n\n4. Ms. Dipti Verma, Officershri\n   Vadodara Mahanagar Seva Sadan, Khanderao Market,\n   Rajmahal Road,\n   Vadodara.\n\n5. Shri J. N. Singh\n   Chief Secretary Government of Gujarat,\n   3rd Floor Block 1,\n   New Sachivalay,\n   Gandhinagar.\n\n6. Shree Nakhat Pravin Saiyed Madam sir,\n   President, C.D.R.F Main\n   Consumer Court, Nr. Amitnagar,\n   Karelibaug, Vadodara.\n\n7. Shree Jalphaben Saumilkumar Dhebar Madam Sir,\n   Member, C.D.R.F. Main,\n   Consumer Court, Nr.Amitnagar,\n   Karelibaug, Vadodara.                                     ...Respondents\n\nCORAM : Hon'ble Mr. Justice V. P. Patel, President\n        Hon'ble Ms. A.C.Raval, Member\n\nd.i.dabhi                          A-831-2022                                 Page 1 of 7\n APPERANCE : Self for the appellant\n           Learned Advocate Mr.Bharat T. Majmundar for the respondent\n           no.1,3 & 4\n\n\n\n                  Order by Mr. Justice V.P.Patel, President.\n\n1. The appellant has filed this appeal under section 41 of the\n     Consumer Protection Act, 2019 (for short the CP Act), being\n     aggrieved by and feeling dissatisfied with the judgment and order\n     dt.05.09.2022 passed by the Ld. Consumer Dispute Redressal\n     Commission, Vadodara (Main) (for short CDRC Vadodara) in the\n     Consumer Complaint No.725/2019.\n\n2. Heard Mr. Vasudev Thakkar for appellant himself and Learned\n     Advocate Mr.Bharat T. Majmundar for the respondent no.1, 3 & 4.\n     Though the notice is duly served to respondent no.1,3 & 4, no one\n     has appeared on behalf of respondent no.2 & 5. Considering facts\n     and circumstances of the case, no notices were issued to\n     respondent no. 6 & 7.\n\n     Order under Challenge:\n    3. The complaint is dismissed with no order as to cost.\n\n      Arguments of the appellant:\n    4. Appellant Mr. Vasudev Thakkar has argued that the impugned\n        order was passed by including one of the member Jalpaben S.\n        Dhebar. She had earlier vide order dt. 14/02/2022 declared that\n        she will not entertain this matter, in spite of this the impugned\n        order was passed against him. It is further argued that he has\n        filed the special CA no. 21924 Of 2019 before Hon'ble High Court\n        aginst Jalpaben S. Dhebar, Member CDRC. It is further\n        submitted that order passed by the Ld. CDRC with bias and\n        prejudice, which resulted in miscarriage of justice. He requested\n        to set aside and remand the case.\n\nd.i.dabhi                          A-831-2022                           Page 2 of 7\n          Merits of the case:\n    5.         The appellant has taken one of the ground in this appeal,\n         which reads as under.\n               " ૧૧. લડોદયા ની ભેઇન પોયભ ના ભેમ્ફય શ્રી જલ્઩ાફેન સૌભીરકુભાય ઢેફય તથા\n               અન્મો સાભે અને નાભદાય ગુજયાત હાઇ કોર્ટ સભક્ષ સ્઩ેશળમર સીલીર એપ્રીકેળન\n               નંફય ૨૧૯૨૪ ઓક્ ૨૦૧૯ દાખર કયે ર છે , જે હાર શનણટમાશધન ઩ેનન્ડિંગ હોલાનુ\n               કાયણ દળાટલીને લડોદયા ની ભેઇન પોયભ ના ભેમ્ફય જલ્઩ાફેન સૌશભરકુભાય ઢેફય\n               દ્વાયા તાયીખ ૧૪.૨.૨૦૨૨ ના યોજ એક રેખીત હુકભ કયી અભને જણાલલાભાં\n               આલેર કે, અભે તેભની સાભે હાઇકોર્ટ ભાં ઩ીર્ીળન દાખર કયે ર હોઇ , તેઓ અભાયી\n               ઩ેનન્ડિંગ એક ઩ણ પયીમાદ ના હીમયીંગ ભાં બાગ રઇ ળકે નહીં. તેભના તે આદે ળ\n               ને તેઓ ઩ો તે યીવ્યુ કયી ળકે નહી , તેભ છતાં , તેભના જ તે આદે ળ ને અલગણી\n               લડોદયા ની ભેઇન પોયભ ના ભેમ્ફય શ્રી જલ્઩ાફેન સૌભીરકુભાય ઢેફય ઘ્લાયા\n               અભાયી તભાભ કુર આઠ પરયમાદીઓના હીમયીંગ ભાં બાગ રેલાભાં આલેર છે, અને\n               ભેમ્ફય શ્રી જલ્઩ાફેન સીભીરકુભાય ઢેફય ઘ્લાયા અભાયી ઉ઩ય ધ્લેળબાલ યાખી        ,\n               ભેરાપાઇડ ઇન્ર્ેન્ળન સાથે , અભને આશથિક તથા ભાનશળક નુકળન ઩હોંચાડલા ના\n               ભરીન આળમ થી તે આઠ પયીઆદો ઩ૈરક છ પયીઆદો ને ડીસભીસ કયલા ના અમુક\n               જજભેન્ર્ ભાં સહી ઩ણ કયે ર છે . આ઩ તેભણે ઩ણ બાયત દે ળ ના સંશલધાન ની\n               ભમાટદા ભાં ફનેર કામદાઓ નો બંગ કયી દે ળ ના સંશલધાન નો શતયસ્કાય કયે ર છે .\n\n               ૧૩. નાભદાય ગુજયાત હાઇ કોર્ટ ઩ાંસે અભે અન્મ સંરગ્ન કેળ ભાં ભાંગેર\n               ડામયે કળન ની દાદ અન્લમે નાભદાય ગુજયાત હાઇ કોર્ટ ધ્લાયા તે ડામયે કળન ના\n               હચયીંગ ભાર્ે ઇસ્યુ કયામેર તાયીખ ૩/૮/૨૨ ની નોર્ીળ લડોદયા ની ભેઇન પોયભ\n               ના પ્રમુખ ને તાયીખ ૫/૮/૨૨ ના યોજ ભ઱ી ગમા છતાં, તે પ્રસ્થાશ઩ત સીધ્ધાંત ને\n               અનુસયલાના ફદરે હાઇ કોર્ટ ના ડામયે કળન ઇસ્યુ થામ તે ઩હેરાજ લડોદયા ની\n               ભેઇન પોયભ ના પ્રમુખ ધ્લાયા પયીઆદ નંફય ૭૨૯      ઓપ ૨૦૧૬ ને જ્યુયીડીકળન\n               નુ કાયણ ફતાલી ને ભેયીર્ ભાં ગમા લગય તાયીખ ૦૫/૦૯/૨૨ ના યોજ પયીઆદ\n               યદ્દ કયી દે લાભાં આલેર છે . (એનેક્ષય-3)"\n\n         6.   The appellant has produced copy of order dt. 25/03/2021\n         passed by the president CDRC Vadodara and member (Ms.\n         Jalpaben S. Dhebar) in CC No. 299/2017. On perusing the same\n         it is stated in order as under.\n               "The present matter along with the other seven matters filed by the\n               Com plainant are transferred from the file of Consumer Dispute\n               Redressal Commission (Additional), Vadodara to the file of\n               Consumer Dispute Redressal Commission (Main), Vadodara as per\n               order passed by the Hon'ble State Commission in T.A. Nos. 6/2021\n               to 13/2021 and the same is conveyed to this 'Commission vide\n               Hon'ble State Commission letter No. CDRC/Judi/3123/2021, dated\n               17/12/2021. Before starting the online hearing on merits on\n               7/02/2022, it has come to the notice of the President of this\n\nd.i.dabhi                                    A-831-2022                              Page 3 of 7\n               Commission that the complainant has filed one Spl.C.A. No.\n              40356/2019 before the Hon'ble Gujarat High Court for reviewing\n              Judicial appointment of my predecessor President and two members\n              of this Commission, and therefore, it was suggested to produce the\n              status report and copy of the said Writ Petition and the complainant\n              had agreed to produce the same, if it is ordered by this Commission.\n              We see no need to compel the complainant for the same. The said\n              fact of Writ Petition is declared by the complainant in writing on\n              30/01/2020 wherein he himself has prayed not to proceed in the\n              mater due to filing of Writ Petition by him. It should be noted that out\n              of above two members, one member is still working with this Main\n              Commission at Vadodara and post of one member is vacant here\n              and so such only one Member against whom the writ is pending\n              cannot take part in the hearing of the above application and so we\n              have two options either to recommend to transfer the matters of\n              complainant to any other Commission or to keep the matter sine die\n              till the new member is appointed in the Main Commission of\n              Vadodara. Hence, the matter is adjourned."\n\n       7.     The impugned order is passed by the president and 2\n       members, out of the same Member Ms. Jalpa S. Dhebar has\n       signed the impugned order.\n\n       8.     The appellant has produced the copy of the title sheet of\n       special CA No. 21924/2019, wherein Jalpa S. Dhebar is shown\n       as respondent no.3.\n\n       9.       We have consider the ratio laid down by the Hon'ble\n       Supreme Court in below mentioned cases:\n\n 9.1     P.K. Ghosh, I.A.S. And Ant vs J.G. Rajput on 10 November, 1995,\n              1987 AIR 513, 1995 SCC (6)744.:\n\n              A basic postulate of the rule of law is that 'justice should not only be\n              done but it must also be seen to be done. If there be a basis which\n              cannot be treated as unreasonable for a litigant to expect that his\n              matter should not be heard by a particular judge and there is no\n              compelling necessity, such as the absence of an alternative, it is\n              appropriate that the learned judge should recuse himself from the\n              Bench hearing that mater. This step is required to be taken by the\n              learned judge not because he is likely to be influenced in any\n              manner in dong justice in the cause, but because his hearing the\n              matter is likely to give rise to a reasonable apprehension in the mind\n              of the litigant that the mind of the learned judge, may be\n              subconsciously, has been influenced by some extraneous factor in\n              making the decision, particularly if it happens to be in favour of the\n              opposite party. Credibility in the functioning of the justice delivery\n              system and the reasonable Perception of the affected parties are\n              relevant considerations to ensure the continuance of public\n              confidence in the credibility and impartiality of the judiciary. This is\n              necessary not only for doing justice but also for ensuring that justice\n              is seen to be done.\n\n 9.2   Ranjit Thakur vs Union of India and Ors on 15 October,1987\nd.i.dabhi                              A-831-2022                                 Page 4 of 7\n               1987 AIR 2386, 1988 SCR (1)512:\n\n              It is the essence of a judgment that it is made after due observance\n              of the judicial process; that the E Court or Tribunal passing it\n              observes, at least the minimal requirements of natural justice, is\n              composed of impartial persons acting fairly and without bias and in\n              good faith. A judgment which is the result of bias or want of\n              impartiality is a nullity and the trial "coram non-judice". (See\n              Vassiliadas v. Vassiliades-AIR 1945 PC 38).\n\n              7. As to the tests of the likelihood of bias what is relevant is the\n              reasonableness of the apprehension in that regard in the mind of the\n              party. The proper approach for the judge is not to look at his own\n              mind and ask himself, however, honestly. "Am I biased? "but to look\n              at the mind of the party before him.\n\n              Lord Esher in Allinson v. General Council of Medical Education and\n              Registration, I 1894] 1 Q.B. 750 at 758 said:\n\n              "The question is not, whether in fact he was or was not biased. The\n              Court cannot inquire into that ........... In the administration of justice,\n              whether by a recognised legal court or by persons who, although not\n              a legal public court, are acting in a similar capacity, public policy\n              requires that, in order that there should be no doubt about the purity\n              of the administration any person who is to A take part in it should\n              not be in such a position that he might be suspected of being\n              biased."\n\n    10. Considering the contents para 11 and 13 of the appeal memo,\n    the     allegations are made against the President and Member Ms.\n    Jalpaben S. Dhebar by the appellant. At present the president\n    (respondent no.3) and Member (respondent no.4) are joined as party\n    in this appeal and they are working in the Consumer Disputes\n    Redressal Commission Vadodara (Main). If case is conducted after\n    remand the prejudice will cause to the complainant. Therefore, the\n    consumer complaint no. 725/2019 is required to be transfer in\n    another Consumer Disputes Redressal commission. For that\n    necessary order will be passed in the final order.\n\n    11. We have considered the said ground stated in memo of appeal;\n    reasons stated in impugned judgment, the documentary evidence\n    produced on record, ratio laid down by the Hon'ble supreme Court in\n    above referred cases, arguments of the appellant, facts and\n    circumstances of the case.\n            We are of the opinion that record shows that the prejudice\n    cause to the appellant/ original complainant. The basic principle of\n    rule of law is justice should not only be done but it should also be\nd.i.dabhi                                 A-831-2022                                  Page 5 of 7\n     seen to be done. This principle is applicable in this case. Therefore,\n    the order passed by the Ld. District Commission is required to be set\n    aside and the case is required to be remanded back. In the interest\n    of justice following order is passed.\n\n                                      ORDER\n      1. The Appeal No. 831 of 2022 is hereby partly allowed.\n\n      2. The judgment and order dt. 05.09.2022 passed by the Ld.\n            District Commission, Vadodara (Main) (for short Ld. District\n            Commission) in the Consumer Complaint No. 725/2019 is\n            hereby quash and set aside.\n\n      3.    The matter is remanded back for taking fresh decision. The\n            Ld. District Commission is directed and ordered to re-admit\n            the Consumer Complaint No. 725/2019 under its original\n            number and status in the register of Consumer Complaint.\n\n      4. Thereafter, the consumer complaint no. 725/2019 is transfer\n            to the Ld. Consumer Dispute Redressal Commission Vadodara\n            (Additional). The Ld. Consumer Dispute Redressal Commission\n            Vadodara (Additional) is directed and ordered to proceed to\n            determine the complaint; and the evidence (if any) recorded\n            during the original trial shall, subject to all just expectations,\n            be evidence during the trial of Consumer Complaint after\n            remand.\n\n      5. It is made clear that we have not expressed any opinion on\n            merits of the case, the CDRC Vadodara (Additional) shall\n            decide the complaint according to law within 2 months from\n            the date of transfer of consumer complaint.\n\n      6. No order as to cost.\n\n      7. Registry is directed to send certified copy of this judgment to\n            the parties free of cost. Registry is further directed to send\n            copy of this judgment to the District Commission Vadodara\n\n\nd.i.dabhi                              A-831-2022                          Page 6 of 7\n             (main) and to the District Commission Vadodara (Additional)\n            through E-mail in PDF format for taking necessary action.\n\n                Pronounced in open court today on 11/05/2023.\n\n                [Ms. A.C. Raval]                   [Justice Mr. V.P.Patel]\n                    Member                                President\n\n\n\n\nd.i.dabhi                             A-831-2022                             Page 7 of 7