In the matter of:

Authorised Representative of the Parties

Before: Hon'ble Mr. Justice D.P.Wadhwa, President, Hon'ble Mr. Justice J.K.Mehra, Member, Mrs. Rajyalakshmi Rao, Member, Mr. B.K.Taimni, Member

Justice D.P.Wadhwa, J. (President)

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     We have heard arguments in considerable detail addressed by various counsel and voluntary consumer organisations. Principal arguments have been addressed no doubt by Mr. Gupal Subramaniam. He referred to the preamble of the Consumer Protection Act, 1986 ('Act' for short) and other provisions in this Act and various other laws which find mention in the impugned order. During the course of arguments we have been referred to various decisions of the Madras High Court in the case of Thayarammal vs. Kuppuswamy Naidu AIR 1937 Madras, 937, Bombay High Court in the case of Madura Coats vs. S.L.Mehendle 1998 1 CLR 199 and of the Supreme Court in the case of T.C.Mathai vs. District and Sessions Judge (1999) 3 SCC 614, on order III of the Code of Civil Procedure and to the speech of the Minister of Parliamentary Affairs, Food and Civil Supplies while introducing the Consumer Protection Bill, 1986 to the Parliament and the United Nations General Assembly - Resolution 39/248. 

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     Mr. Subramaniam submitted that if we consider various pronouncements of the Supreme Court and of the High Courts on Order - III of Code of Civil Procedure it could be that under the general prevailing law no authorised agent could claim to possess a right of audience in the Court of Law unless specific permission of the Court was obtained and that the word 'appear' in Order - III does not include right of audience before a Court. But then the objects of the Act and various pronouncements of the Supreme Court rather go to show that authorised representative can certainly have a right of audience and his right is not merely confined to appearance before a Consumer Forum. Mr. Subramaniam referred the Division Bench judgment of the Bombay High Court in the case of Sanjay R. Kothari & Anr. vs. The South Mumbai Consumer Disputes Redressal Forum and he said that it laid a correct law. He quoted the concluding para of the judgment which is as under: 

     "We thus conclude that a party to the proceeding before the District Forum/State Commission has right to authorise a person of his choice to represent him and appearance of such agent authorised by the party on the date of hearing before District Forum/State Commission is not restricted to physical appearance but include in terms of Rule 4(7) 4(8) or 9(6) of Rules of 2000 to examine and cross examine the witness, address the court and take part in the proceedings as the case may be. Any other view may defeat the very objectives for which Act of 1986 was enacted."

     The judgment of the Bombay High Court was also quoted in extenso to show that the impugned order of the Tamil Nadu State Commission was not correct. The impugned judgement of the learned State Commission was also noticed in the judgment of the Bombay High Court. Some of the observations in the judgment of the Bombay High Court we quote:

     "The right to appear, therefore includes right of addressing the Court, examining, cross-examining witnesses, oral submissions etc.

     If we accept the submission of Mr. Singhvi that 'to 'appear' mean only physical presence before the Consumer Forum for the purposes of filing complaint, appeal, or reply on behalf of the party, it would create a very stange situation before the Consumer Forum/State Commission. If an authorised agent alone appears on the date/dates of hearing, neither the hearing will proceed further not the consumer forum will be able to either dismiss the complaint for default or decide it on merit or decide it exparte. Consider situation like this: Section 12 of the Act of 1986 permits the aggrieved consumer to file complaint through recognised consumer association. In the complaint, consumer association appears through its office bearer as its recognised agent. Does the law i.e. Act of 1986 and Rules of 2000 compel such complainant-association who is espousing the cause of consumer, engagement of legal practitioner to address the Consumer Forum. Answer is simple no. Once the complaint is filed by aggrieved consumer through recognised consumer association, the authorised agent appearing for such recognised consumer association is expected to take the complaint to logical conclusion by full participation in the complaint proceedings which may include addressing the Forum, examining and cross-examining the witnesses, etc. Observation of principles of natural justice alone is sufficient in rendering justice to consumers.

     In view of this, we have no hesitation in giving wider and comprehensive meaning to the expression 'to appear' appearing in Rule 4(7) and 8(7) of the Rules of 2000 to include addressing the Court, examining and cross-examining witnesses etc. We are of the considered view in the light of statutory provisions like section 2(1)(b)(ii) and section 12 of the Act of 1986 and Rule 4(7) and 8(7) of Rules of 2000 the right of audience inheres in favour of authorised agents of the parties to the proceedings before the District Consumer Forum and State Commission and such right is not inconsistent or in conflict with provisions of Advocates Act.

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25. It is now well settled position of law that the right conferred on advocates under the provisions of the Advocates Act is a statutory right and not a fundamental right guranteed under the Constitution. A person who is not an advocate cannot practise law. Any person other than party to the proceedings or advocate cannot claim right of audience before the Court, tribunal or authority until it is provided by law or such person is specifically permitted by such court, tribunal or authority. This is in sum and substance is the scheme of Sections 29, 32 and 33 of the Advocates Act, 1961 and Section 14 of Bar Councils Act, 1926 which is still operating as Chapter IV of Advocates Act, 1961 has not fully come in opertion and Section 14 of Bar Council's Act, 1986 cannot be said to have been repealed.

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     In our view Bombay High Court has taken correct view of the law on the subject. Bombay High Court was considering the definition of the word 'agent' as given in Rules 4(7), 8(7) and 9(6) of the Maharashtra Consumer Protection Rules, 2000 and same is the definition of 'agent' in the Tamil Nadu Consumer Protection Rules, 1998 as given in Rules 4(8) and 9(6).

     It may also be noticed that the 'agent' as defined in the Central Consumer Protection Rules, 1987 means a person duly authorised by a party to present any complaint, appeal or reply on its behalf before the National Commission and this definition of 'agent' is same as in the Rules of Tamilnadu and Maharshtra. It may also be noticed that when definitions are given in any Act/Rules these always start with the words 'unless the context otherwise requires'.

     When the Act specifically refers to certain provisions of the Code of Civil Procedure as applicable to proceedings before a Consumer Forum, it is not the requirement of law to refer to other provisions of the Code. Some of the provisions of the Code may be made use of on the ground of justice, fair play, equity and good conscience. Even then those provisions can be modified to suit the procedure for deciding a consumer dispute before a Consumer Forum. In this view of the matter it was not at all necessary for the State Commission to refer to Order III of the Code which contains provisions for recognised agents and pleaders for their appearance before a court of law. There cannot be any distinction before a Consumer Forum for an authorised agent for appearing or acting before a Consumer Forum. Authorised agent and voluntary consumer organisation as defined in the Act have certainly right of audience before the Consumer Forum and that right cannot be taken away by referring to the provisions of the Code which have no application. Act itself is a departure from the ordinary procedure prescribed in the Code. We have to break the shackles of a procedure which is too technical in civil jurisprudence.

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     On the argument as to the rights of advocates under the Advocates Act vis-a-vis right of consumer organisation Mr.Subramaniam submitted that this was an argument which was stated to be rejected. He said first of all Section 30 of the Advocates Act had not been notified and that apart Supreme Court has upheld the legislation depriving the right of lawyers from appearing in courts, for example, the Labour Court. In such circumstances, when lawyers can themselves appear before the Consumer Forum it cannot be said that there is any deprivation of their rights. It is settled principle of law that when there are special two enactments, the latter enactment would prevail and in this case, the latter enactment is the Consumer Protection Act, 1986.

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     Mr. Subramaniam concluded his argument with the following submission:

     "Keeping in mind that the composition of consumer courts is such that it includes not only judicial members but also non-judicial members from the field of administration and social work this envisages a new approach, which is to be shorn of the shackles of procedural law so that access to justice is easy and simple. In this context, to say, that a consumer association cannot plead the case of the consumer or an association cannot appear before a consumer court will be to defeat the purposes of the Act itself. Therefore recognised consumer associations should have the right of audience before the fora under the Act". 

     After superb exposition of the law on the subject we do not think we can add anything to what Mr. Subramanium said in his submissions and with which we agree.

      To the extent aforesaid impugned order of the Tamil Nadu State Consumer Disputes Redressal Commission is modified.