TaxTMI 
TaxTMI 
2011 (8) TMI 1073
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....t the authorized agent had no right to act and plead before the Consumer Forum as he was not enrolled as an advocate. 3. 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. 4. 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." 5. The High Court in the impu....
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....he 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. 11. These appeals have been preferred before this court against the impugned judgment. 12. 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 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....
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....ished at the Central and State level. 4. 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." 15. Mr. 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 under: "29. Advocates 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." ....
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....f 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." 21. In 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 t....
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....ndise 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." 25. In 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." 26. This theory of strict liability already exists under the Consumer Protection Act, 1961. 27. The 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....
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....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." 30. Ralph 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 consumer advocate." 31. Ralph Nader is an extraordinary e....
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....ndian 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. 36. The 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. 37. The 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 ....
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...." 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." * 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. * 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 fees. * 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 faul....
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....ccording 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. 49. According 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. 50. The Consumer Protection Rules, 198....
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....mplainant can act and plead before the State Tribunal otherwise the complaint is liable to the dismissed. 55. The 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 legislative intention. Legislative intention 56. We deem it appropriate to briefly deal with the importance of gathering legislative intention while interpreting provisions of law. 57. In 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 either the words, the context, the subject matter, the effects and consequence, of the spirit and reason of the law." 58. A Const....
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.... 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. 64. We have heard the learned counsel for the parties and the learned amicus curiae. 65. In 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. 66. He further submitted t....
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....us approval of the Central Government. The footnote indicates that these were published in the Gazette of India dated May 31, 2005. 70. Specifically, 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." 71. Mr. 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. 72. Mr. Sangal also submitted that when the legislature permits the authorized agents to appear, then they cannot be restra....
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....ge 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." 76. In 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 of law. 77. In 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 t....
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....ely poor people where legal intricacies are not involved and great legal skills are not required, which may be handled by the authorized agents. 81. The 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 permitted. 82. It 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 costs. 83. In 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. 84. In 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 rep....
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.... 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 purpose. 90. In 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 forums. 91. In other jurisdictions also, non-advocates are permitted to appear before quasi-judicial fora 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 fora. 92. In most jurisdictions, the statutes or court rules impose some form of restrictions on appearances of non-advocate representatives in quasi-judicial fora or subordinate courts. Restrictions on non-advocates agents vary signific....
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....tructed 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 99. The 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 representation 100. A 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 101. The 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 represen....
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....s court and charging in appropriate fees, the judge may disqualify the non-attorney from appearing in a particular case. Australia 106. State 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 nonattorney 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 107. New 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 Tribunal 108. The Disputes Tribunal hears civil complaints that concern amounts less than $15,....
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....he Constitution. Fees a) A representative who wishes to receive a fee must file a written request before the Forum b) The presiding officer will decide the amount of the fee, if any, a representative may charge or receive c) When evaluating a representative's request for a fee, the presiding officer may consider the following factors : 1) the extent and type of services the representative performed 2) the complexity of the case 3) the level of skill and competence required of the representative in giving the services 4) the amount of time the representative spent on the case; and 5) the ability of the party to pay the fee d) If 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 ....