C. Venkatachalam Vs. Ajitkumar
C. Shah and others
Bar Council of India
Vs. Sanjay R Kothari and Ors.
J U D G M E N T
Dalveer Bhandari, J.
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.
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.
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
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."
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
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..
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.
Division Bench also observed that the right of an advocate to practise 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
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 practise 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.
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.
appeals have been preferred before this court against the impugned judgment.
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 thereunder. 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 Vs. Vijay Dutt
& 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
the Chief Justice of India has referred these appeals before a three judge
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 –
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.
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
e. the right to seek
redressal against unfair trade practices or unscrupulous exploitation of
f. right to consumer
objects are sought to be promoted and protected by the Consumer Protection
Council to be established at the Central and State level.
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."
Santosh Paul, learned counsel appearing for the appellants argued these appeals
and also submitted the written submissions. He submitted that ordinarily right to
practise 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
to be the only recognized class of persons entitled to practice law - Subject to
the provisions of this Act and any rules made thereunder, there shall, as from
the appointed day, be only one class of persons entitled to practise the profession
of law, namely, advocates."
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."
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 force, no person shall, on or after the appointed day,
be entitled to practise in any court or before any authority or person unless he
is enrolled as an advocate under this Act."
to Mr. Paul, analysis of these provisions lead to clear conclusion that only
advocates can act, plead and argue before the Consumer Forums.
placed reliance on the following judgments of this court :-
O.N. Mohindroo v. The Bar Council of Delhi and Others 1968 (2) SCR 709, the
court held as under:-
"The object of the
Act is thus to constitute one common Bar for the whole country and to provide machinery
for its regulated functioning. Since the Act sets up one Bar, autonomous in its
character, the Bar Councils set up thereunder have been entrusted with the
power to regulate the working of the profession and to prescribe rules of
professional conduct and etiquette, and the power to punish those who commit
breach of such rules. The power of punishment is entrusted to the disciplinary committees
ensuring a trial of an advocate by his peers. Sections 35, 36 and 37 lay down the
procedure for trying complaints, punishment and an appeal to the Bar Council of
India from the orders passed by the State Bar Councils.
As an additional remedy
section 38 provides a further appeal to the Supreme Court. Though the Act relates
to the legal practitioners, in its pith and substance it is an enactment which concerns
itself with the qualifications, enrollment, right to practise and discipline of
the advocates. As provided by the Act once a person is enrolled by any one of
the State Bar Councils, he becomes entitled to practise in all courts including
the Supreme Court. As aforesaid, the Act creates one common Bar, all its members
being of one class, namely, advocates. Since all those who have been enrolled have
a right to practise in the Supreme Court and the High Courts, the Act is a piece
of legislation which deals with persons entitled to practise before the Supreme
Court and the High Courts.
Therefore the Act
must be held to fall within entries 77 and 78 of List I. As the power of
legislation relating to those entitled to practise in the Supreme Court and the
High Courts is carved out from the general power to legislate in relation to
legal and other professions in entry 26 of List III, it is an error to say, as
the High Court did, that the Act is a composite legislation partly falling under
entries 77 and 78 of List I and partly under entry 26 of List III."
Harishankar Rastogi v. Girdhari Sharma and Another (1978) 2 SCC 165, the court
held as under:- "Advocates are entitled as of right to practise in this Court
(Section 30(i) of the Advocates Act, 1961). But, this privilege cannot be claimed
as of right by any one else. While it is true that Article 19 of the Constitution
guarantees the freedom to practise any profession, it is open to the State to make
a law imposing, in the interest of the general public, reasonable restrictions on
the exercise of the right. The Advocates Act, by Section 29, provides for such a
reasonable restriction, namely, that the only class of persons entitled to
practise the profession of law shall be advocates. Even so, is it not open to a
party who is unable for some reason or other to present his case adequately to seek
the help of another person in this behalf? To negative such a plea may be to deny
justice altogether in certain cases, especially in a land of illiteracy and indigence
and judicial processes of a sophisticated nature. That is precisely why legislative
policy has taken care to provide for such contingencies. Sections 302, 303 and 304
of the Criminal Procedure Code are indicative of the policy of the legislature.
I do not think that in this Court we should totally shut out representation by any
person other than the party himself in situations where an advocate is not appearing
for the party...."
Paul appearing for the appellants also gave reference to international law and conventions
to strengthen his submissions that only advocates enrolled with the respective
Bar Councils alone can practise in the Consumer Forums and the agents cannot appear.
He submitted that practice under the Consumer Protection Act, 1986 requires extensive
legal skills which only a trained legal practitioner possesses and he alone can
discharge those functions. He submitted that the agents have no legal training to
handle complicated legal matters pertaining to consumers and hence the agents
cannot be permitted to practise law before the Consumer Forums.Historical
perspective of the consumer movement
consumer movement had primarily started in the West. We can trace history of the
consumer movement from the judgment of the leading case Carlill v. Carbolic Smoke
Ball Company 1893 (1) Q.B. 256. In this case first time Manufacturers' liability
for minimum quality standard for product was established.
the first time in 1856 a select committee recommended that a cheap and easy remedy,
by a summary charge before a magistrate, should be afforded to consumers who received
adulterated or falsely described food. This suggestion was taken up in the
Merchandise Marks Act, 1887. Section 17 of the Act provides as follows : "That
a person applying a trade description to a product was deemed to warrant that
it was true, so that a false trade description constituted breach of both
criminal and civil law."
a leading English case Donoghue v. Stevenson (1932) A.C. 562, where the
consumer claimed to have suffered injury as well as result of drinking from a bottle
of ginger-beer containing a decomposed snail. Over a strong dissent the
majority held that the manufacturer would be liable. The case did not herald
strict liability but it facilitated more claims than were provided under the nineteenth
century approach. Lord Atkin enunciated the manufacturer's duty of care in the
following words: "..........the preparation or putting up of the products will
result in an injury to the consumer's life or property, owes a duty to the
consumer to take that reasonable care."
theory of strict liability already exists under the Consumer Protection Act,
organized English consumer movement started after the Second World War. The Labour
Party for the first time gave slogan of "battle for the consumers" in
Parliament. In the decade of 1960, number of legislations were introduced in
Britain for the protection of the consumers. The Consumer Safety Act, 1978 was
enacted. United States of America
consumer movement in the United States of America developed in the beginning of
the 19th century when in Donald C. MacPherson v. Buick Motor Company 217 N.Y.
382, 111 N.E. 1050 the New York Court of Appeal observed that a car
manufacturer had to compensate a consumer who had been injured when one of the car
wheels collapsed because of defect. The court held that the manufacturer had been
negligent because the defect could have been discovered by reasonable inspection.
In 1972, the Consumer Product Safety Act was enacted.
S. Boyer, a distinguished author, in his article on "Consumer Movement",
published by The Oxford Companion to United States History, 2001, has mentioned
about the modern consumer movement. The relevant following extract is
instructive and is reproduced as under. "The modern consumer movement arose
in the Progressive Era, as citizens concerned about unsafe products and
environmental hazards used lobbying, voting, and journalistic exposis to press for
government protection. In the same vein, the Consumers Union (1936), publisher of
Consumer Reports, tests products for safety, economy, and reliability, to give consumers
an objective basis for choice. .......Such socially engaged consumerism actually
had long historical antecedents, including Revolutionary Era patriots who had boycotted
English tea and textiles and abolitionists who had refused to purchase goods made
of slaveproduced cotton. Consumer activism revived in the late 1960s, flourished
in the 1970s, and, despite a conservative backlash against government
regulation, survived in diminished form in the 1990s.
A byproduct of 1960s
social activism, consumer advocates insisted on citizens' rights to safe and reasonably
priced goods and services and to the full disclosure of product information.
The lawyer Ralph Nader gained fame for Unsafe at Any Speed (1965), which
detailed safety hazards plaguing General Motors' (GM) Corvair automobile. Using
$425,000 won in an invasionofprivacy suit against GM in 1970, Nader founded numerous
consumer groups, nicknamed "Nader's Raiders," that pursued legal challenges
to unsafe products and demanded greater government protection for consumers. The
formation of the Consumer Federation of America (1968), the Occupational Safety
and Health Administration (1970), and the Consumer Product Safety Commission (1972)
attested to the movement's success but also to its regulatory and legalistic bent.
Focused on consumers' rights, the modern movement downplayed the power of consumers
to effect social change."
Nader played an extremely important role in consumer movement in the United
States of America. A note appears in "America in Ferment : The Tumultuous 1960s
- Ralph Nader and the Consumer Movement.' An extract is reproduced.
It reads :-
"Ralph Nader has
been called the nation's nag. He denounced soft drinks for containing excessive
amounts of sugar (more than nine teaspoons a can). He warned Americans about the
health hazards of red dyes used as food colorings and of nitrates used as preservatives
in hot dogs. He even denounced high heels: "It is part of the whole tyranny
of fashion, where women will inflict pain on themselves ... for what, to please
men." Since the mid-1960s, Ralph Nader has been the nation's leading
Nader is an extraordinary example of total devotion to the cause. It is men like
him who leave an imprint and make history. Consumer movements all over the world
have taken great inspiration from Ralph Nader.
year 15th March is observed as the World Consumer Rights Day. On that day in
1962 President John F. Kennedy of the United States called upon the United States
Congress to accord its approval to the Consumer Bill of Rights. They are (i)
right to choice; (ii) right to information; (iii) right to safety; and (iv) right
to be heard. President Gerald R. Ford added one more right i.e. right to consumer
education. Further other rights such as right to healthy environment and right to
basic needs (food, clothing and shelter) were added. Unfortunately, in most of the
countries these rights are still not available to the consumers. In India 24th December
every year celebrated as National Consumer Rights Day.
General Assembly of the United Nations adopted a set of general guidelines for consumer
protection and the Secretary General of the United Nations was authorized to
persuade member countries to adopt these guidelines through policy changes or law.
These guidelines constitute a comprehensive policy framework outlining what governments
need to do to promote consumer protection in following seven areas:
and Promotion of the consumer economic interest;
for the safety and quality of consumer goods and services;
facilities for consumer goods and services;
enabling consumers to obtain redress;
relating to specific areas (food, water and pharmaceuticals); and
education and information programme.
not legally binding, the guidelines provide an internationally recognized set of
basic objectives particularly for governments of developing and newly independent
countries for structuring and strengthening their consumer protection policies and
legislations. These guidelines were adopted recognizing that consumers often face
imbalances in economic terms, educational levels and bargaining power and
bearing in mind that consumers should have the right of access to non hazardous
products as well as the importance of promoting just, equitable and sustainable
economic and social development.
was in this background that the Indian Parliament had enacted the Consumer Protection
Act, 1986. The declared objective of the statute was "to provide for
better protection of the interests of consumers." It seeks to provide a
speedy and inexpensive remedy to the consumer.
Consumer Protection Act, 1986 is one of the benevolent social legislations intended
to protect the large body of consumers from exploitation. The Act has come as a
panacea for consumers all over the country and is considered as one of the most
important legislations enacted for the benefit of the consumers. The Consumer
Protection Act, 1986 provides inexpensive and prompt remedy.
Consumer Protection Act, 1986 is dedicated, as its preamble shows, to provide
for effective protection of the rights of the consumers. According to the
Statement of Objects and Reasons, it seeks to provide speedy and simple redressal
to consumer disputes. The object of the Act is to render simple, inexpensive and
speedy remedy to the consumers with complaints against defective goods and deficient
services and for that a quasi-judicial machinery has been sought to be set up at
the District, State and Central levels. The Consumer Protection Act has come to
meet the long-felt necessity of protecting common man from wrongs for which the
remedy under the ordinary law for various reasons has become illusory.
Consumer Protection Act, 1986 was amended in the years 1991, 1993 and in 2002 to
make it more effective and purposeful.
effectuate this objective, a provision has been made in Chapter II of the Act for
the constitution of `the Central Consumer Protection Council' and `the State Consumer
Protection Councils." The purpose as indicted in section 6 is to "promote
and protect the rights of consumers" against the "marketing of goods and
services which are hazardous to life and property; the right to be informed about
the quality, quantity, potency, purity, standard and price of goods or
services, as the case may be, so as to protect the consumer against unfair trade
practices; the right to be assured, wherever possible, access to a variety of
goods and services at competitive prices; the right to be heard and to be assured
that consumer's interests will receive due consideration at appropriate Forums;
the right to seek redressal against unfair trade practices or restrictive trade
practices or unscrupulous exploitation of consumers and the right to consumer
perusal of Chapter II clearly shows that the statute seeks to protect the
`consumer' of goods and services in every possible way. It aims at providing a speedy
and inexpensive remedy. Any interpretation of the provisions of the 1986 Act
and the rules framed thereunder must promote this objective of the enactment.
furtherance of the declared objective of protecting the consumer against exploitation
as well as providing an inexpensive and speedy remedy, the competent authority has
framed Rules which enable the party to appear either personally or through an
issue is - Do the Rules permit a party to have an `Agent' for merely presenting
the papers on its behalf or can the Agent even act and argue? Maharashtra
Consumer Protection Rules, 1987
7 Rule 2(b) defines an
Agent to mean "a person duly authorized by a party to present any complaint,
appeal or reply on its behalf before the State Commission or the District
7 Under Rule 4(7), the
parties are obliged to either appear personally or through "authorized
agent." If "the complainant or his authorized agent fails to appear before
the District Forum" it may "in its discretion either dismiss the complaint
for default or decide it on merit." Similarly, "where the opposite
party (defendant) or its authorized agent fails to appear on the day of hearing,
the District Forum may decide the complaint ex parte."
7 A perusal of the
provisions show that while the advocates have not been debarred from pleading
and appearing, the parties have been given an option to either appear personally
or be represented by "duly authorized" agents. Every advocate appointed
by a party is an agent. However, the agent as contemplated under the rules need
not necessarily be an advocate.
7 The provision in
the Rules promotes the object of the statute. It is meant to help the consumer to
vindicate his right without being burdened with intricate procedures and heavy professional
7 In the very nature of
things, the disputes under the 1986 Act can involve claims for small amounts of
money by way of compensation. Engagement of advocates in all such matters may not
be economically viable. It is equally possible that the claim may involve professional
expertise. To illustrate: A person may sue a hospital for medical negligence. Or
an Architect for a faulty design. Or a building contractor for defective work. In
such cases, a professional like a doctor, architect or an engineer may be more
suitable than an advocate. Thus, both the parties have been given an option to choose
from an advocate or any other person who may even be a professional expert in
the particular field.
an interpretation is not only literally correct but also promotes the declared objective
of the statute. It helps the claimant and the defendant equally. It does not violate
any provision of the Advocates Act.
Consumer Protection Act, 1986 was amended in the year 2002, in pursuance to the
United Nations resolution passed in April, 1985 indicating certain guidelines under
which the Government could make law for better protection of the interest of the
consumers. Such laws were necessary, particularly in the developing countries to
protect the consumers from hazards to their health and safety and to provide
them available speedier and cheaper redressal of their grievances.
amended Act 62 of 2002 reads as under: "Amendment Act 62 of 2002. - The
enactment of the Consumer Protection Act, 1986 was an important milestone in
the history of the consumer movement in the country. The Act was made to provide
for the better protection and promotion of consumer rights through the establishment
Consumer Councils and quasi-judicial machinery. Under the Act, consumer disputes
redressal agencies have been set up throughout the country with the District Forum
at the district level, State Commission at the State level and National Commission
at the National level to provide simple, inexpensive and speedy justice to the consumers
with complaints against defective goods, deficient services and unfair and restrictive
trade practices. The Act was also amended in the years 1991 and 1993 to make it
more effective and purposeful."
the developed countries the consumer movement has been going on for several
decades in which the trader and the consumer find each other as adversaries.
Consumer Protection Act, 1986 was enacted with the object and intention of
speedy disposal of consumer disputes at a reasonable cost, which is otherwise not
possible in ordinary judicial/court system.
the book on Administrative law, its distinguished author M.P. Jain has brought about
the distinction between the Court and the Tribunal. According to him Courts are
bound by prescribed rules of procedures and evidence and their proceedings are conducted
in public. The lawyers are entitled to appear before them and the judge in the
open Court hears the case and decides it by giving reasons for a judgment. The courts
are totally independent of the executive will, whereas, the Tribunals are not ordinarily
governed by the provisions of Code of Civil Procedure and the Evidence Act,
except to the extent it is indicative in the Act itself. There is also a significant
difference between the Court and the Tribunal with regard to the appointment of
Members. The object of the constitution of a Tribunal is to provide speedy
justice in a simple manner and the Tribunal be should easily accessible to all.
to the celebrated book on `Administrative Law' by Wade, the other object of constituting
a Tribunal is to create specialist Forum which would include specialists in the
field to adjudicate efficiently and speedily the matters requiring adjudication
in that field and that commands the confidence of all concerned in the quality
and reliability of the result of such adjudication.
Consumer Protection Rules, 1987 also defines the expression `agent' in the same
appellants submitted before the High Court that the complainant may appear through
its authorized agent, but, that doesn't mean that authorized agent is empowered
to act, appear or plead on behalf of the party before the State Commission or
the District Forum as a lawyer. According to the appellants (Bar Council of
India and advocate), the agent appointed by the complainant is empowered only to
present any complaint, appeal or rely on behalf of the party to the complaint before
the Consumer Forum by physically remaining present on the date/dates of hearing.
This contention was rejected by the Division Bench of the High Court.
to the judgment of this Court in Harishankar Rastogi (supra), a non-advocate can
appear with the permission of the Court. The Court may, in an appropriate case,
even after grant of permission withdraw it if the representative proves himself
reprehensible. It is only a privilege granted by the Court and it depends entirely
on the discretion of the court.
learned counsel for the respondent has drawn our attention to Rule 9 of the Maharashtra
Consumer Protection Rules, 2000 which provides for procedure for hearing
appeals. He also referred to sub-rules 1 and 6 of Rule 9 which reads as under: "9.
Procedure for hearing appeal - (1) Memorandum shall be presented by the appellant
or his authorized agent to the State Commission in person or sent by registered
post addressed to the Commission. (6) On the date of hearing or any other day to
which hearing may be adjourned, it shall be obligatory for the parties or their
authorized agents to appear before the State Commission. If appellant or his
authorized agent fails to appear on such date, the State Commission may, in its
discretion, either dismiss the appeal or decide it on the merit of the case. If
respondent or his authorized agents fails to appear on such date, the State Commission
shall proceed ex-parte and shall decide the appeal ex- parte on merits of the
clear interpretation of the Rules is that the authorised agent appointed by the
(consumer) complainant may appear before the Consumer Fora. The Consumer Fora may,
in its discretion, either dismiss the appeal or decide it on the merit of the case.
In this view of the matter, it is abundantly clear that the authorized agent of
the complainant can act and plead before the State Tribunal otherwise the
complaint is liable to the dismissed.
learned counsel for the respondents submitted that non-advocates are permitted to
appear in various Forums including Income Tax Tribunal, Sales Tax Tribunal and
Monopolies and Restrictive Trade Practises Tribunal, therefore, wherever the legislature
has accorded the permission to the persons other than advocates, who appear before
these Tribunals can act and appear according to the object of the Act and
deem it appropriate to briefly deal with the importance of gathering
legislative intention while interpreting provisions of law.
Blackstone's Commentaries on the Laws of England, Volume I, published in the year
2001 (Edited by Wayne Morrison), it has been observed as under:- "The
fairest and most rational method to interpret the will of the legislator is by exploring
his intentions at the time when the law was made, by signs the most natural and
probable. And these signs are the words, the context, the subject matter, the effects
and consequence, of the spirit and reason of the law."
Constitution Bench of this Court in R.M.D. Chamarbaugwalla and Another v. Union
of India and Another AIR 1957 SC 628 has laid down that in interpreting the
statute the legislative intent is paramount and the duty of the Court is to act
upon the true intention of the legislature.
Anandji Haridas & Company Private Limited v. Engineering Mazdoor Sangh and Another
(1975) 3 SCC 862, this Court laid down that as a general principle of
interpretation where the words of a statute are plain, precise and unambiguous,
the intention of the Legislature is to be gathered from the language of the statute
itself and no external evidence such as parliamentary debates, reports of the
Committees of the Legislature or even the statement made by the minister on the
introduction of a measure or by the framers of the Act is admissible to
construe those words. 30
another Constitution Bench judgment in Kartar Singh v. State of Punjab (1994) 3
SCC 569, this Court has observed that though normally the plain ordinary
grammatical meaning of an enactment affords the best guide and the object of interpreting
a statute is to ascertain the intention of the legislature enacting it, other methods
of extracting extracting the meaning can be resorted to if the language is
contradictory, ambiguous or leads really to absurd results so as to keep at the
real sense and meaning.
District Mining Officer and Others v. Tata Iron and Steel Company and Another
(2001) 7 SCC 358, a three Judge Bench of this Court has observed: "A statute
is an edict of the legislature and in construing a statute, it is necessary to seek
the intention of its maker. A statute has to be construed according to the intent
of them that make it and the duty of the court is to act upon the true
intention of the legislature. If a statutory provision is open to more than one
interpretation, the court has to choose that interpretation which represents
the true intention of the legislature."
Bhatia International v. Bulk Trading S.A. and Another (2002) 4 SCC 105, a three
Judge Bench of this Court has held as under:-
way of interpreting a statute is to seek the intention of its makers. If a statutory
provision is open to more than one interpretation then the Court has to choose that
interpretation which represents the true intention of the legislature."
is the bounden duty of the courts to discern legislative intention and interpret
the statutes accordingly. The instant case Act and Rules have made specific
provisions by which the agents have been permitted to plead and appear on
behalf of the parties before the Consumer Forums. Therefore, to interpret it differently
would be contrary to legislative intention.
have heard the learned counsel for the parties and the learned amicus curiae.
the written submissions, Shri Jawahar Lal Gupta, learned amicus curiae,
submitted that the advocates in these appeals can have no cause for any apprehension.
In case, a party chooses an incompetent person as its agent before the Consumer
Forum or the State Commission, he can pose no competition or threat to any
profession. Such a person will get automatically eliminated with the passage of
time. However, in case the parties choose competent persons to act an agents
and they perform well, it will not only promote the object of the 1986 Act and the
Rules framed thereunder but also provide healthy competition to the advocates. It
violates no provision of the Advocates Act, 1961 or any other law. It can
provide no cause for complaint.
further submitted that there is another aspect of the matter. Every person has the
right to lead a life of dignity. Every person has a right to work and make an
honest living. Every individual has the right and freedom to do anything so
long as he does not violate any law. Thus, a retired or even an unemployed doctor,
engineer, scientist, teacher or any other person has the right to offer his/her
services as an `agent'. In other words, an individual has the right to choose `acting
as agent' as his profession. Article 19(1)(g) guarantees that freedom. The
mandate of Article 21 is fulfilled. In doing so, he does not practise the profession
of law or violate the provisions of the Advocates Act, 1961. He only invokes the
freedom guaranteed under the Constitution and exercises the right conferred by
the Rules. He merely helps the party before the Consumer Forum or the Commission.
It also enables him to earn some money and lead a dignified existence. He has
the freedom and the right to do so. The action is in conformity with the Constitution.
It even promotes the objective as contained in Article 39A.
Gupta further submitted that the provision permitting the parties to be
represented by agents as made in the Rules has not been challenged. In fact,
the provision is in strict conformity with the constitution. It violates no law.
Actually, there are various statutes which permit the parties to be represented
by persons who may not be advocates. By way of instance, reference may be made to
the provisions of the Industrial Disputes Act; the Income Tax Act and the Sales
Tax Act or the Monopolies and Restrictive Trade Practices Act. Such instances
can be multiplied.
Gupta also dealt with the disciplinary aspect of the matter. He submitted that in
the appeal filed by the Bar Council, considerable emphasis on discipline and ethics
was expressed by the learned counsel for the Council. During the course of
hearing, a reference was made to the Regulations as framed by the National Consumer
Disputes Redressal Commission (For short, `National Commission') under the Act
with the approval of the Central Government in 2005. The Regulations actually appear
at page 52 of the Bar Act (Professional's - 2010 Edition).
perusal thereof shows that the Regulations appear to have been framed by the National
Commission in exercise of the power conferred by section 30A with the previous
approval of the Central Government. The footnote indicates that these were
published in the Gazette of India dated May 31, 2005.
Regulation 16 inter alia makes provision to ensure that the agents do not indulge
in any malpractice or commit misconduct. The relevant part provides as under:-
"(6) A Consumer
Forum has to guard itself from touts and busybodies in the garb of power of attorney
holders or authorised agents in the proceedings before it.
(7) While a Consumer Forum
may permit an authorised agent to appear before it, but authorised agent shall not
be one who has used this as a profession: Provided that this sub-regulation shall
not apply in case of advocates.
(8) An authorised agent
may be debarred from appearing before a Consumer Forum if he is found guilty of
misconduct or any other malpractice at any time." 35
Bharat Sangal, learned counsel appearing for the respondents submitted that Maharashtra
Consumer Protection Rules, 2000 defines `agents'. The authorized agents can
appear on behalf of complainant in consumer fora.
Sangal also submitted that when the legislature permits the authorized agents
to appear, then they cannot be restrained from appearing before the consumer
Sangal also submitted that the authorized agents can't be said to practise law.
He further submitted that there are many Forums and Tribunals where non-advocates
are permitted to appear, therefore, there is no merit in restraining the agents
from appearing before the Consumer Fora.
was placed on the judgment in the case of Lucknow Development Authority v. M.K.
Gupta (1994) SCC 243. This court observed that the provisions of the Act have
to be construed in favour of the consumer to achieve the purpose of enactment as
it is a social benefit oriented legislation. The primary duty of the court
while construing the provisions of such an Act is to adopt a constructive
approach subject to that it should not do any violence to the language of the
provisions and is not contrary to the attempted objective of the enactment. In other
words, according to the purpose of enactment the interest of the consumer is
Laxmi Engineering Works v. P.S.G. Industrial Institute (1995) 3 SCC 583 this
Court observed thus: "10. A review of the provisions of the Act discloses that
the quasi-judicial bodies/authorities/agencies created by the Act known as
District Forums, State Commissions and the National Commission are not courts
though invested with some of the powers of a civil court. They are
quasi-judicial tribunals brought into existence to render inexpensive and speedy
remedies to consumers. It is equally clear that these forums/commissions were not
supposed to supplant but supplement the existing judicial system. The idea was
to provide an additional forum providing inexpensive and speedy resolution of disputes
arising between consumers and suppliers of goods and services. The forum so created
is uninhibited by the requirement of court fee or the formal procedures of a
court. Any consumer can go and file a complaint. Complaint need not necessarily
be filed by the complainant himself; any recognized consumers' association can espouse
his cause. Where a large number of consumers have a similar complaint, one or
more can file a complaint on behalf of all. Even the Central Government and State
Governments can act on his/their behalf. The idea was to help the consumers get
justice and fair treatment in the matter of goods and services purchased and availed
by them in a market dominated by large trading and manufacturing bodies. Indeed,
the entire Act revolves round the consumer and is designed to protect his interest.
The Act provides for "business-to-consumer" disputes and not for "business-to-business"
disputes. This scheme of the Act, in our opinion, is relevant to and helps in
interpreting the words that fall for consideration in this appeal."
Indian Photographic Company Limited v. H.D. Shourie (1999) 6 SCC 428 the court
has held that a rational approach and not a technical approach is the mandate
Dr. J.J. Merchant and Others v. Shrinath Chaturvedi (2002) 6 SCC 635 it is
observed as under:- "7. ...One of the main objects of the Act is to provide
speedy and simple redressal to consumer disputes and for that a quasi-judicial machinery
is sought to be set up at the district, State and Central level. These quasi-judicial
bodies are required to 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 with the orders given by the quasi-judicial
bodies have also been provided. The object and purpose of enacting the Act is to
render simple, inexpensive and speedy remedy to the consumers with complaints against
defective goods and deficient services and the benevolent piece of legislation intended
to protect a large body of consumers from exploitation would be defeated. Prior
to the Act, consumers were required to approach the civil court for securing
justice for the wrong done to them and it is a known fact that decision in a
suit takes years. 12. ...It should be kept in mind that legislature has provided
alternative efficacious, simple, inexpensive and speedy remedy to the consumers
and that should not be curtailed on the ground that complicated questions of
facts cannot be decided in summary proceedings. It would also be totally wrong assumption
that because summary trial is provided, justice cannot be done when some questions
of facts required to be dealt with or decided. The Act provides sufficient
Common Cause, A Registered Society v. Union of India and others (1997) 10 SCC 729,
the Supreme Court held thus: "The object of the legislation, as the Preamble
of the Act proclaims, is "for better protection of the interests of consumers".
During the last few years preceding the enactment there was in this country a marked
awareness among the consumers of goods that they were not getting their money's
worth and were being exploited by both traders and manufacturers of consumer goods.
The need for consumer redressal fora was, therefore, increasingly felt. Understandably,
therefore, legislation was introduced and enacted with considerable enthusiasm and
fanfare as a path-breaking benevolent legislation intended to protect the consumer
from exploitation by unscrupulous manufacturers and traders of consumer goods. A
three-tier fora comprising the District Forum, the State Commission and the National
Commission came to be envisaged under the Act for redressal of grievances of
agent has been defined both in the Consumer Protection Rules, 1987 and under
the Maharashtra Consumer Protection Rules, 2000. The agents have been permitted
to appear before the Consumer Forums. The appearance of authorized agents is not
inconsistent with section 33 of the Advocates Act, 1961.
legislature in its wisdom has granted permission to the authorized agents because
most of the cases before the Consumer Forums are small cases of relatively poor
people where legal intricacies are not involved and great legal skills are not required,
which may be handled by the authorized agents.
other reason is that a large number of litigants may not be able to afford heavy
professional fees of trained advocates, therefore, authorized agents have been
is the bounden duty and obligation of the Court to carefully discern the legislative
intention and articulate the same. In the instant case we are not really called
upon to discern legislative intention because there is specific rule defining
the agents and the provisions of permitting them to appear before the Consumer Forums.
The agents have been permitted to appear to accomplish the main object of the
act of disposal of consumers' complaints expeditiously with no costs or small
our considered view the High Court was fully justified in observing that the authorised
agents do not practise law when they are permitted to appear before the
District Forums and the State Commissions.
the impugned judgment the High Court aptly observed that many statutes, such as,
Sales Tax, Income Tax and Competition Act also permit non-advocates to represent
the parties before the authorities and those non-advocates cannot be said to practise
law. On the same analogy those non-advocates who appear before Consumer fora also
cannot be said to practise law. We approve the view taken by the High Court in
the impugned judgment.
legislature has given an option to the parties before the Consumer Forums to either
personally appear or be represented by an `authorized agent' or by an advocate,
then the court would not be justified in taking away that option or
interpreting the statute differently.
functioning, conduct and behaviour of authorized agents can always be regulated
by the Consumer Forums. Advocates are entitled as of right to practise before
Consumer Fora but this privilege cannot be claimed as a matter of right by
the legislature has permitted authorized agents to appear on behalf of the complainant,
then the courts can't compel the consumer to engage the services of an
at this stage we hasten to add that the National Commission being aware of a
possibility of misuse of the right by an agent had framed Regulation 30-A of the
Consumer Protection Act, 1986, wherein certain restrictions on the right of audience
and also certain precautions to rule out any misuse of liberty granted has been
taken by way of framing Regulation 16. Reference is made to Clauses 6 and 7
thereof. We may extract the aforesaid provisions for ready reference:
of Voluntary Consumer Organization:
(6) A Consumer Forum
has to guard itself from touts and busybodies in the garb of power of attorney holders
or authorized agents in the proceedings before it.
(7) While a Consumer
Forum may permit an authorized agent to appear before it, but authorised agent shall
not be one who has used this as a profession: Provided that this sub-regulation
shall not apply in case of advocates."
provisions are enacted for providing proper guidelines and safeguards for regulating
appearance and audience of the agents. The aforesaid regulation in our
considered opinion is a reasonable restriction on the right to appear by an
agent. Such reasonable restrictions as provided for are to be strictly adhered to
and complied with by the Consumer Forum hearing cases under the Consumer
Protection Act so as to rule out any misuse of the privilege granted. In terms
of the said regulation and other regulations as provided and framed by the National
Commission and as approved by the Parliament of India, the Consumer Forum has
the right to prevent an authorized agent to appear in case it is found and believed
that he is using the said right as a profession. The Consumer Forums being empowered
with such Regulations would be in a position to judge whether the agent appearing
before it is in any manner exercising such privileges granted for any ulterior
the foregoing paragraph, it has been indicated that many statutes and Acts in India
permit non-advocates to represent the parties before the authorities and
other jurisdictions also, non-advocates are permitted to appear before
quasi-judicial for a or subordinate courts. In most of these jurisdictions,
specific rules have been framed for the regulation of qualifications, conduct
and ethical behaviour of the non-advocates appearing in these for a.
most jurisdictions, the statutes or court rules impose some form of restrictions
on appearances of non-advocate representatives in quasi-judicial for a or subordinate
courts. Restrictions on non-advocates agents vary significantly in terms of
their specificity, but most forums have rules granting them some discretion in
admitting or refusing the appearance of a non-advocate representative. Brief summary
of Rules pertaining to Non-Advocates in different jurisdictions United States
legislation neither grants nor denies the right to have a non-attorney representative
in quasi- judicial proceedings.
7 The individual for
a (administrative law courts) are allowed to create their own rules for non-attorney
7 Several administrative
law courts/for a allow non- attorney representatives to appear if they meet
certain qualifications. Social Security Administration
addition to administering Social Security Retirement and Disability payments, the
Social Security Administration (SSA) handles disputes arising from Social
Security Payments or the lack thereof. If a current or former recipient of social
security believes that he has been wrongfully denied some or all of his benefit
amount, he may first apply for reconsideration.
to SSA Rules, any attorney in good standing is allowed to represent a claimant before
the ALJ and Appeals Council. A non-attorney is allowed to represent a claimant if
the non-attorney :
generally known to have a good character and reputation;
capable of giving valuable help to you in connection with your claim;
not disqualified or suspended from acting as a representative in dealings with
not prohibited by any law from acting as a representative.
rules also restrict the amount that any representative of claimant (attorney or
non-attorney) may receive for the services rendered by him. Tax Court
US Tax Court adjudicates disputes over federal income tax. Taxpayers are
permitted to litigate in many legal forums (such as a district federal court),
but many choose the Tax Court because they may litigate their case without first
paying the disputes tax amount in full.Non-Attorney Representation
Court Rules state that all representatives must be admitted to practice before
the Tax Court in order to appear in proceedings on behalf of a taxpayer. To be admitted,
a non-attorney must pass a special written examination and obtain sponsorship from
two persons who are already admitted to practice before the Court.
before the Court are instructed to act "in accordance with the letter and spirit
of the Model Rules of Professional Conduct of the American Bar Association."
Representatives may be disciplined for inappropriate conduct and may be suspended
or banned from appearing in the Court.Court of Appeals for Veterans' Claims
Court of Appeals for Veteran's Claims reviews decision of the Board of
Veterans' Appeals, which adjudicates disputes pertaining to Veteran's benefits.
non-attorney may represent claimants if (1) he is under direct supervision of an
attorney or (2) he is employed by an organization that the Secretary of
Veteran's Affairs has deemed is competent to handle veterans' claims. However, if
the Court deems it appropriate it may admit non-attorney representatives to
represent the claimants. South Africa The Equality Court
Equality Court hears complaints pertaining to unfair discrimination, harassment
and hate speech. The court rules allow parties in this court to be represented by
lawyers and non-lawyers. However, the rules also require the judge of the court
inform a party accordingly if he is of the opinion that a particular non-attorney
representative "is not a suitable person to represent the party."
are two kinds of courts in England that are similar in structure and function to
the consumer courts in India: Magistrate Courts and Tribunals. Magistrates'
Courts are lowest level of court in England and Wales and deals with minor civil
and criminal offences. There are also specialist courts within the Magistrates'
Courts system, such as the Family Proceedings Court and the Youth Court. Under statute,
a party may only be represented in a Magistrates' Court by a "legal representative".
A "legal representative" is a person who has been authorized by a
government-approved regulator to perform "reserved legal
and Wales also have a fairly complex system of tribunals that hear special complaints.
These tribunals are similar to US administrative courts in that they are
allowed to create their own procedural rules that regulate representation. For instance,
the Asylum and Immigration Tribunal permits non-attorney representatives to appear
if they meet certain requirements elaborated in Section 84 of the Immigration
and Asylum Act, 199. Other tribunals may follow different procedures.
Small Claims Court
is no bar for small claims court. A non-attorney may appear as a representative
without prior authorization from the court. He may, however, be dismissed at
the judge's discretion.
advocates do not appear to be bound by any code of conduct. But they may be
dismissed by a judge if they judge disapproves of their conduct.
2. The judge may disqualify
a non-attorney from appearing in court if the judge "has reason to believe"
the non-attorney "has intentionally misled the court, or otherwise demonstrated
that he is unsuitable to exercise [the right to be a representative]. The statute
specifically mentions that the judge may disqualify a representative for conduct
done in previous judicial appearances.
3. The court rules and relevant
legislation do not appear to prescribe a limit to the number of appearances a non-lawyer
can make before the small claims court. However, the statute allows a judge to
discipline a non-attorney representative for conduct in previous judicial proceedings.
This suggests that if a judge believes a non-attorney is making frequent
appearances before a small claims court and charging in appropriate fees, the judge
may disqualify the non-attorney from appearing in a particular case.
Governments in Australia have their own court systems and also specialized courts
to deal with certain subject matter. In the State of Victoria, statutory law states
that only lawyers may appear in court as representatives with a few exceptions.
A non-attorney may represent a party in a cause of action for a debt or liquidated
demand if the non-attorney is in the exclusive employment of the aggrieved
party. Also, the statute mentions that a non-attorney representative may appear
if empowered by some other piece of legislation. New Zealand
Zealand has a large number of tribunals that are similar to India's consumer courts
and seek to provide quick and easy dispute resolution. There appears to be a strong
preference in tribunals for the parties to represent themselves; professional lawyers
are rarely allowed to appear as representatives. Two tribunals are discussed
below, but New Zealand's other tribunals should function similarly. Disputes
Disputes Tribunal hears civil complaints that concern amounts less than $15,000.
Parties subject to proceedings are generally required to represent themselves.
However, the Tribunal may permit a representative to appear on a party's behalf
under certain special circumstances. Representatives may only appear with specific
authorization from the Tribunal and cannot be lawyers.Directions
order to ensure smooth, consistent, uniform and unvarying functioning of the National
Commission, the State Commissions and the District Forums, we deem it
appropriate to direct the National Commission to frame comprehensive rules regarding
appearances of the agents, representatives, registered organizations and/or non-advocates
appearing before the National Commission, the State Commissions and the District
Forums governing their qualifications, conduct and ethical behaviour of agents/non-advocates/representatives,
registered organizations and/or agents appearing before the consumer forums. The
National Commission may consider following suggestions while framing rules
Commission may consider non-advocates appearing without accreditation - A party
may appoint a non-advocate as its representative provided that the
appearing on an individual case basis
a pre-existing relationship with the complainant (e.g., as a relative, neighbour,
business associate or personal friend)
not receiving any form of direct or indirect remuneration for appearing before
the Forum and files a written declaration to that effect
to the presiding officer of the Forum that he or she is competent to represent
the party. Accreditation Process
a. The National Commission
may consider creating a process through which non-advocates may be accredited to
practice as representatives before a Forum.
b. Non-advocates who are
accredited through this process shall be allowed to appear before a Forum on a regular
c. The accreditation
process may consist of –
1. an written examination
that tests an applicant's knowledge of relevant law and ability to make legal presentations
2. an inspection of the applicant's
educational and professional background
3. an inspection of the
applicant's criminal record
d. the National Commission
may prescribe additional requirements for accreditation at its discretion provided
that the additional requirements are not arbitrary and do not violate existing
law or the Constitution. Fees
representative who wishes to receive a fee must file a written request before
presiding officer will decide the amount of the fee, if any, a representative
may charge or receive
evaluating a representative's request for a fee, the presiding officer may
consider the following factors :
extent and type of services the representative performed
complexity of the case
level of skill and competence required of the representative in giving the
amount of time the representative spent on the case; and
ability of the party to pay the fee
a party is seeking monetary damages, its representative may not seek more a fee
of more than 20% of the damages Code of Conduct for representatives- The
National Commission to create a code of conduct which would apply to non-advocates,
registered organizations and agents appearing before a Forum. Disciplinary
Powers of a Forum
a. The presiding officer
of a Forum may be given specific power to discipline non-advocates, agents, authorized
organizations and representatives for violating the code of conduct or other
behaviour that is unfitting in a Forum
b. In exercising its disciplinary
authority, the presiding officer may –
a representative's privilege to appear before the instant case
a representative's privilege to appear before the Forum
a representative from appearing before the forum
a monetary fine on the representative
direct the National Commission to frame comprehensive Rules as expeditiously as
possible, in any event, within three months from the date of communication of
this order. The copy of this judgment be sent to the National Commission.
consideration of totality of the facts and circumstances, the view taken by the
Division Bench of the Bombay High Court in the impugned judgment cannot be said
to be erroneous and unsustainable in law. Consequently, these appeals being devoid
of any merit are accordingly dismissed.
the facts and circumstances of the case, we direct the parties to bear their
we part, we would like to observe that we had requested Shri Jawahar Lal Gupta,
a distinguished Senior Advocate to assist the court as amicus curiae. He
graciously agreed and provided excellent assistance to this court. Shri Gupta also
submitted written submissions. We record our deep appreciation for his valuable
assistance provided by him to this court.
(Dr. Mukundakam Sharma)
(Anil R. Dave)