Civil Appeal Nos. 868, 869-870 of 2003. Case: 1. C. Venkatachalam, 2. Bar Council of India Vs 1. Ajitkumar C. Shah and Ors., 2. Sanjay R. Kothari and Ors.. Supreme Court
|Case Number:||Civil Appeal Nos. 868, 869-870 of 2003|
|Party Name:||1. C. Venkatachalam, 2. Bar Council of India Vs 1. Ajitkumar C. Shah and Ors., 2. Sanjay R. Kothari and Ors.|
|Counsel:||For Appellant: J.L. Gupta, Sr. Adv., Santosh Paul, Arvind Gupta, K.K. Bhat, Meera Mathew, Advs. for M.J. Paul, Adv., Sanjeev Sachdeva, Preet Pal Singh and Vibhu Verma, Advs. and For Respondents: Bharat Sangal, Vernica Tomar and Alka Singh, Advs.|
|Judges:||Dalveer Bhandari, Mukundakam Sharma and Anil R. Dave, JJ.|
|Issue:||Consumer Protection Act, 1986 - Sections 6 and 17; Advocates Act, 1961 - Sections 29, 30, 31, 30A, 32, 33, 35, 36, 37 and 38; Income Tax Act; Sales Tax Act; Monopolies and Restrictive Trade Practices Act; Merchandise Marks Act, 1887; Consumer Safety Act, 1978; Evidence Act; Industrial Disputes Act; Bar Act; Competition Act; Immigration and ...|
|Citation:||JT 2011 (10) SC 207, (2011) 6 MLJ 555 (SC), 2011 (9) SCALE 479, 2011 (5) UJ 3165 (SC), 2011 (6) AWC 6488 (SC), 2012 (4) BomCR 776, 2011 (III) CPJ 33 (SC), JT 2011 (10) SC 207, 2012 (1) MahLJ 564 (SC), 2011 (4) RCR 234 (Civil), 2011 (12) SCC 497|
|Judgement Date:||August 29, 2011|
Dalveer Bhandari, J.
These appeals emanate from the judgment dated 4.9.2002 delivered by the Division Bench of the Bombay High Court in Writ Petition Nos. 1147 and 1425 of 2002. We propose to dispose of these appeals by a common judgment because same questions of law are involved in these appeals.
A complaint bearing No. 428 of 2000 of alleged deficiency in service was filed before the South Mumbai District Consumer Disputes Redressal Forum, Mumbai (for short, Consumer Forum) against the two tour operators. During the pendency of the complaint, applications were filed by the opposite parties contending that the authorized agent should not be granted permission to appear on behalf of the complainants as he was not enrolled as an Advocate. The Consumer Forum considered the applications and held that the authorized agent had no right to act and plead before the Consumer Forum as he was not enrolled as an advocate.
In complaint bearing No. 167 of 1997 filed before the Consumer Forum, the majority expressed the view that the authorized agents have a right to file, act, appear, argue the complaint to its logical conclusion before the Consumer Agencies. The issue was taken to the State Consumer Disputes Redressal Commission (for short, State Commission) which stayed the hearing of the matters in which authorized agents were appearing and refused to grant stay where authorized agents were injuncted from appearing before the Consumer Forum. As a result, the proceedings in a large number of cases where the authorized agents were appearing had come to standstill.
The interim order passed by the State Commission was challenged in two writ petitions before the Bombay High Court. The petitions were allowed by the Division Bench. The High Court held that the Consumer Fora constituted under the Consumer Protection Act, 1986 have "trappings of a civil court" but "are not civil courts within the meaning of the provisions of the Code of Civil Procedure."
The High Court in the impugned judgment held that a party before the District Consumer Forum/State Commission cannot be compelled to engage services of an advocate.
The High Court further held that the Act of 1986 is a special piece of legislation for the better protection of the interests of consumers. The Act has been enacted to give succour and relief to the affected or aggrieved consumers quickly with nil or small expense. The Consumer Forum created under the Act of 1986 is uninhibited by the requirement of court fee or the formal procedures of court - civil or criminal....any recognized consumers Association can espouse his cause....Even the Central Government or State Governments can act on his/their behalf....restrictive meaning shall not be consistent with the objectives of the Act of 1986.... The right to appear, therefore, includes right to address the Court, examining, cross-examining witnesses, oral submissions etc..
The Division Bench also held that the right of audience inheres in favour of authorized agents of the parties in the proceedings before the District Consumer Forum and the State Commission and such right is not inconsistent or in conflict with the provisions of the Advocates Act, 1961.
The Division Bench also observed that the right of an advocate to practice is not an absolute right but is subject to other provisions of the Act. According to the Division Bench, permitting the authorized agents to represent parties to the proceedings before the District Forum/State Commission cannot be said to practice law.
The Division Bench also held that there are various statutes like Income Tax Act, Sales Tax Act and the Monopolies and Restrictive Trade Practices Act which permit non-advocates to represent the parties before the authorities under those Acts and those non-advocates appearing before those Forums for the parties cannot be said to practice law. The Rules of 2000 framed under Act of 1986 permit authorized agents to appear for the parties and such appearance of authorized agents cannot be said to be inconsistent with Section 33 of Advocates Act.
The Division Bench also dealt with the disciplinary aspect of the matter and held that if authorized agent appearing for the party to the proceedings misbehaves or exhibits violent behaviour or does not maintain the decency and decorum of the District Forum or State Commission or interferes with the smooth progress of the case then it is always open to such District Forum or State Commission to pass an appropriate order refusing such authorized agent the audience in a given case.
These appeals have been preferred before this Court against the impugned judgment.
A two-judge Bench of this Court on 21.2.2007 referred these matters to a larger Bench in view of the importance of the matter. The order dated 21.2.2007 reads as under:
The basic issue involved in these appeals is whether a person under the purported cover of being an "agent" can represent large number of persons before the forums created under the Consumer Protection Act, 1986 (In short the 'Act') and the Rules made there under. According to the Appellant Rule relating to agents cannot be used to by passing stipulations under the provisions of the Advocates Act, 1961 (in short the 'Advocates Act'), more particularly under Sections 29, 31 and 32. Rule 2(b) of the Consumer Protection Rules, 1987 (in short the 'The Rules') defines an 'agent' as under:
agent means a person duly authorized by a party to present any complaint, appeal or reply on its behalf before the National Commission.
Similarly, Rule 14(1) and 14(3) also deal with the acts which an agent can undertake.
Learned Counsel for the Respondents has submitted that in Civil Appeal No. 2531 of 2006 (R.D. Nagpal v. Vijay Dutt and Anr.) this Court has accepted the stand that even a Doctor is authorised by a party can cross examine the complainant.
So far as individual cases are concerned, it may not present difficulty. But the question is whether somebody who is not a legal practitioner, can represent large number of parties before their forums thereby frustrating objects embodied in the Advocates Act.
It is submitted by the learned Counsel for the Appellants that a large number of persons who are otherwise not entitled to appear before the forums are doing so under the garb of being agents.
As the matter is of great importance, we refer the same to a larger Bench.
Papers may be placed before Hon'ble the Chief Justice of India so that necessary orders can be passed for placing these matters before the appropriate Bench.
Hon'ble the Chief Justice of India has referred these appeals before a three judge Bench.
It is imperative to properly comprehend the objects and reasons of the Consumer Protection Act, 1986 in order to deal with the controversy involved in the case.
Statement of Objects and Reasons - The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for the purpose, to make provisions for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and for matters connected therewith.
It seeks, inter alia, to promote and protect the rights of consumers such as-
(a) the right to be protected against marketing of goods which are hazardous to life and property;
(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(c) the right to be assured, wherever possible, access to an array of goods at competitive prices;
(d) the right to be heard and to be assured that consumer interests will receive due consideration at appropriate forums;
(e) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and
(f) right to consumer education.
These objects are sought to be promoted and protected by the Consumer Protection Council to be established at the Central and State level.
To provide speedy and simple redressal to consumer disputes, a quasi-judicial machinery is sought to be set-up at the district, State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided.
Mr. Santosh Paul, learned Counsel appearing for the Appellants argued these appeals and also submitted the written submissions. He submitted that ordinarily right to practice has been given only to advocates who are enrolled with the Bar Council of a State. Section 29 of the Advocates Act, 1961 recognised advocates as class of persons entitled to practise the profession of law. Section 29 reads as under:
Advocates to be the only recognized class of persons entitled to practice law - Subject to the provisions of this Act and any rules made there under, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
Section 32 of the Advocates Act, 1961 deals with the power of court to permit appearances in particular cases where court can permit any person not enrolled as an advocate. Section 32 reads as under:
Power of Court to permit appearances in particular cases - Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case.
Section 33 of the Advocates Act, 1961 says that no person shall, on or after the appointed day, be entitled to practise in any court or before any authority unless he is enrolled as an advocate. Section 33 reads as under:
Advocates alone entitled to practise - Except as otherwise provided in this Act or in any other law for the time being in...
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