The Consumer Protection Act, 2019 (“New Act”) received the President’s assent on August 9, 2019 and has replaced the Consumer Protection Act, 1986 (“Old Act”). Most of the important sections have been notified with effect from July 20, 2020 marking the beginning of the New Act and making it largely operative and applicable throughout India. Amongst other changes notified, the New Act enhances the pecuniary jurisdiction of the respective Consumer Fora and extends to the Consumer the option to initiate proceedings at his or her place of residence or work. The Old Act has been repealed in entirety.
These changes to the pecuniary and territorial jurisdiction of the respective Consumer Fora can be broadly categorized as a ‘change of forum’. Whether these changes are retrospective or not will depend a great deal on whether the changes are ‘substantive’ or ‘procedural’ in nature. In this backdrop, we propose to examine the effect of the ‘change of forum’ on:
- Fresh cases filed on or after July 20, 2020 i.e. the date of notification of the New Act.
- Cases filed before July 20, 2020 and pending before the respective Consumer Fora across the country.
Effect on fresh cases filed on or after July 20, 2020
So far as fresh cases are concerned; the change of forum is purely procedural and should accordingly be deemed retrospective. A person’s right of either prosecution or defence is conditioned by the manner prescribed for the time being by the law and if by the Act of Parliament, the mode of proceeding is altered, then no one has any other right than to proceed under the alternate mode. The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.
In practice, the courts have almost always applied procedural changes, such as change in pecuniary or territorial jurisdictions, with effect from the date of notification of such changes/amendments/repeal provisions and the cases filed on or after such date have been held to be governed by the amended/new provisions. Some such instances can be found in relation to the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and the Delhi High Court (Amendment) Act, 2015 amongst others.
Similarly, fresh consumer cases on or after July 20, 2020 will have to be filed in accordance with the provisions of the New Act, before the respective Consumer Fora exercising jurisdiction in terms of the New Act, notwithstanding whether the cause of action for filing such cases has arisen prior to, or after, the repeal of the Old Act.
Effect on cases filed before July 20, 2020 and pending before the respective Consumer Fora across the country
to ascertain the impact of the New Act on this crystallized substantive right, we need to examine the ‘Repeal and Savings’ provision of the New Act.
Section 107 of the New Act is as under:
S. 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.”
Section 6 of the General Clauses Act, 1987 (“GC Act”) is as under:
S.6 Effect of repeal —Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”
In light of the above discussion, we can safely conclude that the change of forum effected under the New Act will apply to fresh cases filed on or after July 20, 2020, i.e. the date of notification of the New Act, whereas the cases already filed and pending under the Old Act will continue unabated and unaffected, without the need for any transfer to the Fora competent under the New Act.
A concern could be raised by consumers who, under the Old Act, have filed cases in jurisdictions other than their place of residence or work, and would like to avail the benefit of the New Act which allows filing of cases at their place of residence of work. It seems the legislature has provided a remedy in the New Act, whereby the State Commission may transfer cases from one District Forum to another and the National Commission may transfer cases from one State Commission to another, either upon an application of the Complainant or on its own motion. Thus, this concern has been addressed in the New Act.
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