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REPORTABLE

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5476 OF 2013 (Arising out of S.L.P.(C) No. 11381 of 2012)

Dr. Jagmittar Sain Bhagat                                  ...Appellant   

Versus

Dir. Health Services, Haryana & Ors.                            ...Respondent

O R D E R

1. Leave granted.

2. This appeal has been preferred against the judgment and order  

dated  26.11.2009  passed  by  the  National  Consumer  Disputes  

Redressal  Commission,  New  Delhi  (hereinafter  referred  to  as  the  

‘Commission’) constituted under the Consumer Protection Act, 1986  

(hereinafter referred to as the ‘Act’), in Revision Petition No. 1156 of  

2007, MA. No. 291 of 2008; and MA. No. 450 of 2008, by way of

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which, the Commission has dismissed the claim of the appellant as  

well as the review petition seeking certain reliefs.  

3. The facts and circumstances giving rise to this appeal are that:

A. The  appellant  joined  Health  Department,  of  the  respondent  

State, as Medical Officer on 5.6.1953 and took voluntary retirement  

on 28.10.1985.  During the period of service, he stood transferred to  

another district but he retained the government accommodation, i.e.  

Bungalow No.  B-8 from 11.5.1980 to 8.7.1981.  Appellant  claimed  

that he had not been paid all his retiral benefits, and penal rent for the  

said period had also been deducted from his dues of retiral benefits  

without giving any show cause notice to him.   

B. Appellant made various representations, however, he was not  

granted any relief by the State authorities.  

C. Aggrieved,  the  appellant  preferred  a  complaint  before  the  

District Consumer Disputes Redressal Forum, Faridabad (hereinafter  

referred to as the `District Forum’) on 5.1.1995 and the said Forum  

vide  order  dated  24.3.2000  dismissed  the  complaint  on  merits  

observing  that  his  outstanding  dues  i.e.  pension,  gratuity  and  

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provident  fund  etc.  had  correctly  been  calculated  and  paid  to  the  

appellant by the State authorities.   

D. The appellant approached the appellate authority, i.e., the State  

Commission. The State Commission dismissed the appeal vide order  

dated  31.1.2007  observing  that  though  the  complaint  was  not  

maintainable  as  the  District  Forum  did  not  have  jurisdiction  to  

entertain the complaint of the appellant as he was not a “consumer”  

and the dispute between the parties could not be redressed by the said  

Forum, but in view of the fact that the opposite party (State) neither  

raised the issue of jurisdiction before the District Forum nor preferred  

any appeal,  order  of  the  District  Forum on the  jurisdictional  issue  

attained finality. However, there was no merit in the appeal.  

 E. Aggrieved,  the appellant  filed Revision Petition No. 1156 of  

2007 before the Commission.  The said revision stood dismissed vide  

order dated 1.4.2008 and the review filed by the appellant has also  

been dismissed vide order dated 26.11.2009.  

Hence, this appeal.  

4. Shri Narendra Hooda, learned Senior AAG, Haryana, has raised  

preliminary issue of the jurisdiction submitting that the service matter  

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of a government servant cannot be dealt with by any of the Forum in  

any hierarchy under  the Act.   Therefore,  the matter  should not  be  

considered on merit at all.  More so, all the outstanding dues of the  

appellant had been paid, and none of the issues survive any more.   

5. Shri Prateesh Kapur, learned Amicus Curiae, has raised a large  

number of grievances, inter-alia,  that till today the appellant has not  

been paid all his retiral benefits as some of his outstanding dues have  

been withheld by the authorities,  thus,  he is entitled to recover the  

same with interest; whether the Forum was competent to entertain the  

complaint ought to have been decided by the District Forum first as a  

preliminary issue. It is difficult for a litigant to go back to any other  

appropriate  Forum after  such  a  long time.  In  the  instant  case,  the  

appellant approached the District Forum in 1995, the matter could not  

be finalised till date, and at such a belated stage, the appellant if asked  

to approach the other forum, a great hardship would be caused to him.  

6. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the records.  

7. Indisputably, it is a  settled legal proposition that conferment of  

jurisdiction is a legislative function and it  can neither be conferred  

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with the consent  of  the parties nor by a superior Court,  and if  the  

Court passes a decree having no jurisdiction over the matter, it would  

amount to nullity as the matter goes to the roots of the cause. Such an  

issue can be raised at any stage of the proceedings. The finding of a  

Court or Tribunal becomes irrelevant and unenforceable/ inexecutable  

once  the  forum  is  found  to  have  no  jurisdiction.  Similarly,  if  a  

Court/Tribunal  inherently  lacks  jurisdiction,  acquiescence  of  party  

equally should not be permitted to perpetuate and perpetrate, defeating  

the legislative animation. The Court cannot derive jurisdiction apart  

from the Statute. In such eventuality the doctrine of waiver also does  

not  apply.  (Vide:  United  Commercial  Bank  Ltd.  v.  Their  

Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan  

& Ors.,  AIR  1978  SC  22; Natraj  Studios  (P)  Ltd.  v.  Navrang  

Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v.  

Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).  

8. In  Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr.  

Lrs., (1990) 1 SCC 193, this Court,  after placing reliance on large  

number of its earlier judgments particularly in Premier Automobiles  

Ltd. v.  K.S.  Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v.  

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Chaman Paswan, AIR 1954 SC 340;  and Chandrika Misir & Anr.  

v.  Bhaiyalal,  AIR  1973  SC  2391 held,  that  a  decree  without  

jurisdiction  is  a  nullity.  It  is  a  coram non  judice;  when  a  special  

statute gives a right and also provides for a forum for adjudication of  

rights, remedy has to be sought only under the provisions of that Act  

and the Common Law Court has no jurisdiction; where an Act creates  

an  obligation  and  enforces  the  performance  in  specified  manner,  

“performance cannot be forced in any other manner.”  

9. Law  does  not  permit  any  court/tribunal/authority/forum  to  

usurp  jurisdiction on any ground whatsoever, in case, such a authority  

does not have jurisdiction on the subject matter.  For the reason that it  

is not an objection as to the place of suing;, “it is an objection going to  

the nullity of the order on the ground of want of  jurisdiction”. Thus,  

for assumption of jurisdiction by a court or a tribunal, existence of  

jurisdictional  fact  is  a  condition  precedent.  But  once  such  

jurisdictional fact is found to exist, the court or tribunal has power to  

decide on the adjudicatory facts or facts in issue.  (Vide: Setrucharlu  

Ramabhadra Raju Bahadur v. Maharaja of Jeypore, AIR 1919 PC  

150; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr.,  

AIR 1996 SC 2664; Harshad Chiman Lal Modi v. D.L.F. Universal  

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Ltd. & Anr., AIR 2005 SC 4446; and Carona Ltd. v. M/s. Parvathy  

Swaminathan & Sons, AIR 2008 SC 187).

10. The Act  was  enacted  to  provide  for  the  better  protection  of  

interest  of  consumers,  such  as  the  right  to  be  protected  against  

marketing of goods which are hazardous to life and property; the right  

to be informed about the quality, quantity, potency, purity, standard  

and  price  of  goods,  to  protect  the  consumer  against  unfair  trade  

practices;  and  right  to  seek  redressal  against  an  unscrupulous  

exploitation of consumers, and further to provide right to consumer  

education etc. as is evident from the statement of objects and reasons  

of the Act.   

11. Section 2 of the Act which is a definition clause defines the  

following as under:  

“2(b) ‘Complainant’ means-  

(i) a consumer; or (ii) any voluntary consumer association registered under  the Companies Act, 1956 (1 of 1956), or under any other  law for the time being in force; or (iii) the Central Government or any State Government; (iv) one or more consumers, where there are numerous  consumers having the same interest; (v)   in  case  of  death  of  a  consumer,  his  legal  heir  or  representative; who or which makes a complaint;

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2(c) ‘complaint’ means any allegation in writing made by  a complainant that- (i) an unfair trade practice or a restrictive trade practice  has been adopted by any trader or service provider; (ii) the goods bought by him or agreed to be bought by  him suffer from one or more defects; (iii) the services hired or availed of or agreed to be hired  or  availed  of  by  him  suffer  from  deficiency  in  any  respect;

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2(d) ‘consumer’  means any person who- (i) buys any goods for a consideration which has been  paid or promised or partly paid and partly promised, or  under any system of deferred payment and includes any  user of such goods other than the person who buys such  goods for consideration paid or promised or partly paid  or  partly  promised,  or  under  any  system  of  deferred  payment  when  such use  is  made  with  the  approval  of  such person, but does not include a person who obtains  such goods for resale or for any commercial purpose; or (ii) [hires or avails of] any services for a consideration  which has been paid or promised or partly paid and partly  promised, or under any system of deferred payment and  includes any beneficiary of such services other than the  person  who  [hires  or  avails  of]  the  services  for  consideration paid or promised, or partly paid and partly  promised,  or  under  any  system  of  deferred  payments,  when such services are availed of with the approval of  the first-mentioned person; [but does not include a person  who avails of such services for any commercial purpose;

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2(g)  ‘deficiency’  means  any  fault,  imperfection,  shortcoming  or  inadequacy  in  the  quality,  nature  and  manner  of  performance  which  is  required  to  be  maintained by or  under  any law for  the time being in  force or has been undertaken to be performed by a person  

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in pursuance of a contract or otherwise in relation to any  service;

2(o) ‘service’ means service of any description which is  made available to potential users and includes,  but  not  limited to, the provision of facilities in connection with  banking,  financing,  insurance,  transport,  processing,  supply of electrical or other energy, board or lodging or  both,  [housing construction],  entertainment,  amusement  or the purveying of news or other information, but does  not include the rendering of any service free of charge or  under a contract of personal service.”

Section 11 of the Act deals with the jurisdiction of the District  

Forum as:  

“(1)  Subject  to  the  other  provisions  of  this  Act,  the  District  Forum  shall  have  jurisdiction  to  entertain  complaints where the value of the goods or services and  the  compensation,  if  any,  claimed  [does  not  exceed  rupees twenty lakhs.”

The aforesaid statutory provisions make it crystal clear that the  

Act is made to deal with the rights of consumers wherein marketing of  

goods,  or “services” as defined under the Act have been provided.  

Therefore, the question does arise as to whether the Forum under the  

Act  can deal with the service matters of government servants.   

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12. In  Morgan Stanley Mutual Fund v. Kartick Das,  (1994) 4  

SCC 225, this Court examined the issue as to whether a prospective  

buyer can be “consumer” under the Act, and  held:  

“The  consumer  as  the  term  implies  is  one  who  consumes. As per the definition, consumer is the one who   purchases  goods  for  private  use  or  consumption.  The   meaning of the word ‘consumer’ is broadly stated in the   above definition so as to include anyone who consumes   goods or services at the end of the chain of production.   The  comprehensive  definition  aims  at  covering  every   man who pays money as the price or cost of goods and   services. The consumer deserves to get what he pays for   in  real  quantity  and  true  quality.  In  every  society,   consumer remains the centre of gravity of all  business   and  industrial  activity.  He  needs  protection  from  the   manufacturer,  producer,  supplier,  wholesaler  and   retailer.

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Therefore, it is after allotment, rights may arise as   per the contract (Article of Association of Company). But   certainly not before allotment. At that stage, he is only a   prospective investor (sic in) future goods……There is no   purchase of goods for a consideration nor again could   he be called the hirer of the services of the company for   a consideration.  In order  to satisfy the requirement  of   above definition of consumer, it is clear that there must   be a transaction of buying goods for consideration under   Section  2(1)(d)(i)  of  the  said  Act.  The  definition   contemplates  the  pre-existence  of  a  completed   transaction of a sale and purchase. If regard is had to   the definition of complaint under the Act, it will be clear   that no prospective investor could fall under the Act”.

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13.     In  Secretary, Board of Secondary Education, Orissa  v.  

Santosh  Kumar  Sahoo  &  Anr.,  AIR 2010  SC  3553,  this  Court  

resolved  the  issue  as  to  whether  the  Forum  under  the  Act  had  

jurisdiction to entertain and allow a complaint filed by a person for  

correction of his date of birth recorded in the matriculation certificate,  

observing that the impugned order was liable to be set aside because  

all the consumer forums failed to consider the issue of maintainability  

of the complaint in a correct perspective. Before the District Forum  

could go into the issue of correctness of the date of birth recorded in  

the  matriculation  certificate  of  Respondent  1,  it  ought  to  have  

considered  whether  the  so-called  failure  of  the  appellant  to  make  

correction in terms of the prayer made by Respondent 1 amounted to  

deficiency of service.

The court remitted the matter to the District Forum to decide  

the issue of maintainability of the complaint.  

14.    This Court in  Bihar School Examination Board v. Suresh  

Prasad  Sinha, AIR  2010  SC  93,  considered  the  question  as  to  

whether a candidate can file a complaint before the District Forum  

under  the  Act  raising  any  grievance  regarding  his  examinations  

conducted by the Bihar School Examinations Board constituted under  

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the Bihar School Examinations Board Act, 1952 and answered it in  

negative observing as under:

“The object of the Act is to cover in its  net,  services   offered  or  rendered  for  a  consideration.  Any  service   rendered  for  a  consideration  is  presumed  to  be  a   commercial  activity  in  its  broadest  sense  (including   professional  activity or quasi-commercial  activity).  But   the Act does not intend to cover discharge of a statutory   function of  examining whether  a candidate is fit  to be   declared as having successfully completed a course by   passing the examination. The fact that in the course of   conduct  of  the  examination,  or  evaluation  of  answer   scripts, or furnishing of marksheets or certificates, there   may be some negligence,  omission or  deficiency,  does   not  convert  the  Board  into  a  service  provider  for  a   consideration, nor convert the examinee into a consumer   who can make a complaint under the Act. We are clearly   of the view that the Board is not a ‘service provider’ and   a student who takes an examination is not a ‘consumer’   and consequently,  complaint  under the Act  will  not  be   maintainable against the Board.”

(See also: Maharshi Dayanand University v. Surjeet Kaur, (2010)  

11 SCC 159).  

15.      In Regional Provident Fund Commissioner v. Bhavani, AIR  

2008 SC 2957, this Court dealt with the issue as to whether Dr.  

Padia's submissions regarding the non-applicability of the Act to  

the  case  of  the  Regional  Provident  Fund  Commissioner  -  the  

person responsible for the working of a  Pension Scheme, could  be  

held to be a 'service giver' within the meaning of Section 2(1)(o) of  

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the Act, as it was neither a case of rendering of free service nor  

rendering of service under a contract of personal service so as to  

bring the relationship between the parties  within the concept  of  

'master and servant'. The court held:  

“In our view, the respondent comes squarely within the   definition  of  'consumer'  within the  meaning of  Section   2(1)(d)(ii), inasmuch as, by becoming a member of the   Employees'  Family  Pension  Scheme,  1971,  and   contributing to the same, she was availing of the services   rendered  by  the  appellant  for  implementation  of  the   Scheme.  The same is  the case in the other appeals  as   well.”

16. In  view  of  the  above,  it  is  evident  that  by  no  stretch  of  

imagination a government servant can raise any dispute regarding his  

service conditions or for payment of gratuity or GPF or any of his  

retiral  benefits  before  any  of  the  Forum  under  the  Act.    The  

government servant does not fall under the definition of a “consumer”  

as  defined  under  Section  2(1)(d)(ii)  of  the  Act.  Such  government  

servant is entitled to claim his retiral benefits strictly in accordance  

with his service conditions and regulations or statutory rules framed  

for  that  purpose.   The  appropriate  forum,  for  redressal  of  any  his  

grievance, may be the State Administrative Tribunal, if any, or Civil  

Court but certainly not a Forum under the Act.     

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 17. In  view of  the  above,  we  hold  that  the  government  servant  

cannot approach any of the Forum under the Act for any of the retiral  

benefits.   

18. Mr. Hooda  has made a statement that all the dues for which the  

appellant had been entitled to had already been paid and the penal rent  

has also been dispensed with and the State is not going to charge any  

penal rent. If the State has already charged the penal rent, it will be  

refunded to  the  appellant  within  a  period of  two months.  In  view  

thereof, we do not want to pass any further order.

In view of  the  above,  the  appeal  stands  disposed of.  Before  

parting with the case, we record our appreciation for the assistance  

rendered  by  Shri  Prateesh  Kapur,  learned  Amicus  Curiae.  He  is  

entitled for full fees as per the Rules.

……………………….........J.                                                             ( Dr. B.S. CHAUHAN )

                                                           ……………………….........J.                                                             ( S.A. BOBDE ) New Delhi, July 11, 2013

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