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IN THE HIGH COURT OF BOMBAY
R.M. Lodha D.B. Bhosale, JJ.
Sanjay R. Kothari others .... Petitioners.
Versus
South Mumbai Consumer Disputes Redressal
Forum through its Registrar others.... Respondents.
Writ Petition Nos. 1147 1425 of 2002, decided on 4-9-2002.
Advocates appeared :
Ms. Rajni Iyer with C.U. Singh, i/b., Thakore Jariwala Associates, in W.P. No. 1147/2002, for petitioners.
K.K. Singhvi, Sr.C. with S.B. Prabhavalkar, in W.P. Nos. 1147 1425/2002, for Bar Council of Maharashtra Goa.
Anil Bagde, in W.P. No. 1147/2002, for respondent No. 1.
Nitin Jamdar, in W.P. Nos. 1147, 1425/2002, for Bar Council of India.
Hutoxi Tavadia, in W.P. No. 1425/2002, for petitioners.
C. Venkatchala in W.P. No. 1425/2002, for respondent No. 2.
Milind More in W.P. No. 1425/2002, for respondent Nos. 3 4.
Consumer Protection Act, 1986 - Section 30(2) - Consumer Protection Rules, 2000, Rules 4(7) and 8(7) - Advocates Act, 1961, Sections 32 and 33 - Making appearance before consumer forums - An agent without having profession of law cannot be said as having legal profession if he represents his consumer friend or relative. - In light of Rule 4(7) and 8(7) of Rule of 2000 the objects, nature of proceedings and scheme of Act of 1986 and the purpose of appearance on date of hearing, the agent appearing for the parties to the proceedings before District Forum/State Commission cannot be said to carry on the profession of law. It goes without saying that if authorised agent appearing for the party to the proceedings misbehaves or does not behave in so far fashion or exhibits violent behaviour or does not maintain the decency and decorum of District Forum or State Commission or interferes with smooth progress of the case or like reason, it is always open to such District Forum or State Commission to pass an appropriate order refusing such authorised agent the audience in a given case.
Consumer Protection Act, 1986 - Section 30(2) - Consumer Protection Rules, 2000, Rules 2(b), 4(7), 8(7), 9(1) and 9(6) - Binding effect of bye-laws and rules - Rules framed under statutes, shall have effect of binding - As these are based on statutes - These can be not effective only if declared as ultra vires or the statute on which there are based on declared ultra vires - Rule of 2000 are currently binding. - Sub-rule (7) of Rules 4 and 8 are identical which provide that on the date/dates of hearing of the parties fixed by the District Forum/State Commission it is obligatory on the complainant and opposite party or its authorised agent "to appear" before the District Forum/State Commission. If the opposite party or its authorised agent fails to appear on the date/dates of hearing, the District Forum may decide the complaint ex parte.
Consumer Protection Act, 1986 - Section 30(2) - Consumer Protection Rules, 2000, Rules 2(b), 4(7), 8(7), 9(1) and 9(6) - Advocates Act, 1961, Section 32 - Filing of complaint before consumer forum by consumer himself - No legal necessity that consumer should file complaint - Aggrieved person who is consumer under the Act can file complaint by this agent who is duly authorised but not by a lawyer - Right to appear is inclusive of right to address, the Court, examination of witnesses and oral submissions etc. - Where large number of consumers have a common complaint, one or more can file a complaint on behalf of all. Even the Central Government or State Government can act on his/their behalf. Mere physical presence is not contemplated under sub-rule (7) of Rules 4 and 8 and such restrictive meaning shall not be consistent with the objective of the Act of 1986. Wider meaning must be given to the expression "to appear" in reference to the language of sub-rule (7) of Rule 4 and 8. The right to appear therefore includes right of addressing the Court, examining, cross-examining witnesses, oral submissions etc.
D.B. BHOSALE, J.:---These two writ petitions involve common issue as to whether parties before the Consumer Disputes Redressal Forum (for short "Consumer Forum") and Consumer Disputes Redressal Commission (for short, "State Commission") are entitled to be represented by authorised agents who are not enrolled under the Advocates Act, 1961 and such Authorised Agents have the right of audience. The Counsel appearing for the parties confined their arguments only on the aforesaid issue and hence we have not gone into the facts and merits of the complaints filed before the Consumer Disputes Redressal Forum (For short, "Consumer Forum") by the petitioners.
2. The petitioners in the first writ petition (Writ Petition No. 1147 of 2002), who are Advocates by profession, filed complaint bearing No. 428 of 2000 against respondent Nos. 2 and 3 tour operators before respondent No. 1 Consumer Forum complaining deficiency in their service. It is the case of the petitioners that after numerous adjournments and at the stage of filing affidavit of evidence, respondent Nos. 2 and 3 filed an application dated 22nd September, 2001 objecting the appearance of Shri Jahangir Gai who was appearing as authorised agent of the petitioners. The petitioners filed their reply to the said application. The said application was heard by respondent No. 1 and by order dated 5th April, 2002 held that Shri Jahangir Gai, the authorised agent of the petitioners, had no right to plead before the Consumer Forum since he is not enrolled as an Advocate under the Advocates Act, 1961 (for short, "Advocates Act"). The said application was disposed of by common order dated 5th April, 2002, in Complaint Nos. 428 of 2000 and 304 of 2000, which is impugned in the said writ petition.
3. The second writ petition (Writ Petition No. 1425 of 2002) has been filed by original complainant being petitioner No. 1 and his "authorised agent" being petitioner No. 2. It is the case of petitioner No. 1 that he has filed Complaint No. 167 of 1997 on 17th June, 1997 before the Consumer Forum seeking reliefs against respondent No. 1 for the deficiency in their service. Petitioner No. 2 was appearing for petitioner No. 1 as his authorised agent in the said complaint. Respondent No. 1 was being represented by respondent No. 2 Advocate before Consumer Forum. Respondent No. 2 filed an application objecting appearance of petitioner No. 2 for petitioner No. 1 as his agent contending that addressing the Consumer Forum amounts to pleading and only an Advocate enrolled under the Advocates Act is vested with that right. The said application was heard by the Consumer Forum consisting of three members. Two members passed an order on 25th September, 2001 by which they rejected the application of respondent No. 1 while third member of the Consumer Forum, who was incidently the Chairman, passed dissenting order dated 26th November, 2001. The majority judgment was carried in Revision Application No. 150 of 2001 by respondent No. 1 before the State Consumer Disputes Redressal Commission, Maharashtra State (for short, State Commission). Along with the revision filed by respondent No. 1, several other revisions where similar issue was involved, the State Commission stayed the hearing of matters in which the authorised agents were appearing and refused to grant stay where authorised agents were injuncted from appearing before the Forum. The petitioners have stated that resultantly hundreds of matters before Consumer Forum where the authorised agents were appearing, have come to standstill. Feeling aggrieved by the interim order dated 21st December, 2001 passed by the State Commission, the petitioners have impugned the said order in second writ petition.
4. Though in the aforesaid writ petitions, the issue involved is common, the difference is that in first writ petition "the consumer" is before the Court contending that he has a right to engage an "agent" to act, appear and plead before the Consumer Forum, whi
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