CHALLENGE TO THE AUTHORITY OF NATIONAL COMMISSION FOR FRAMING REGULATION

It was as back as in the year 1998 when validity of the Consumer Protection Act was challenged before the high court of Karnataka by a big business man when he was ordered to be sent to jail due to non -compliance of the consumer court order. Apex court of the country then came to rescue the consumer courts and held in its landmark judgement in the matter of Vishvabharti co-operative housing societies V/S State of Karnataka in the year 2002 and held Consumer Protection Act a valid legislature .The argument by the petitioner that parliament does not have the power to make such law was rejected holding that parliament can pass any such legislature by which any tribunal, forum or quasi judicial authority can be constituted. The issue was then set right by this judgement; consumer courts got more teeth thereafter.

Once again the similar question is raised by one Surinder Mohan Arora challenging the authority of the National commission and the regulation framed under section 30A of the Act.

The facts in brief in the case are that a complaint was filed before the District Forum by Surrender Mohan with an allegation against HDFC Bank Ltd. for indulging into unfair trade practice for asking to pay a penalty for pre-payment of loan .Consumer Court ordered in his favor on August 2, 2007.Bank approached State commission with appeal against this order and the appeal was dismissed on November 19, 2007 confirming consumer court order. Matter then came up before the National commission in revision .National commission reverted back the order of consumer court on August 14, 2012 on the ground that parties have signed an agreement wherein penalty for pre-payment of loan had been agreed by the complainant. Being aggrieved, the complainant now filed a review application before the National Commission. National commission reviewed its own order and finding no error, dismissed the review petition also on 24 September 2012.

 Complainant Surinder Mohan Arora now challenges the authority of National commission before the Hon’ble High court of Delhi under Article 226 of the constitution .The contention of the applicant is that National commission has not given him the opportunity to be heard while disposing of the review petition and it has been disposed of by circulating it among the judges who had passed the order, This is against the principal of natural justice. He challenges regulation 15 of the regulation 2005 which had empowered the National Commission to dispose of review application in this manner.

Now coming to the legal position of the case, section 22 of the act empowers the National Commission to review its own order if some error is apparent on face of it. Under section 30A of the act, National Commission is further given power to frame rules and accordingly National Commission issued set of regulations 2005. Regulation 15 explains how to dispose of review petition filed before the National Commission .Regulation 15(2) explains the procedure for handling the review petition and permits the commission to dispose of application by circulation without oral argument.

In the present case National commission had circulated the review application among reviewing members and without hearing the petitioner in person in the open court as per regulation 15(2) of the Regulations 2005.

In view of the above proposition of law, High court dismissed the writ petition on the ground of misconceived facts as no such application was ever filed before he commission for oral argument in the absence of which National commission has followed the correct procedure which is not ultra virus of the provisions .Supreme Court confirms the order by High court of Delhi and held regulation 15(2) of regulation 2005 valid.  

Further, advocate Mr. Majithia while arguing in this case before the hon’ble Supreme Court in the matter of Surender Mohan Arora V/S H DFC Bank and others also challenged the notice issued by the National commission with the cause list. National Commission in their cause list specifically issued a notice; no proxy counsel shall be allowed to make submission.  It is argued that the said notice or direction is bad in law and is without jurisdiction. This prevents a qualified lawyer enrolled on the rolls of state bar council from presenting his case before the National Commission. It is further stated that under section 30 of the advocates Act 1961, an advocate after having been enrolled under the act has a right to appear before the courts or any other authority and therefore its curtailment of the right of an advocate.

Further it is alleged that this notice is also in violation of article 19(1) (g) of the constitution being the fundamental right to practice.

It was observed by the hon’le Supreme court on this issue that there is no terminology in the advocate act which defines Proxy Counsel .It is further referred to a recent judgement by the honble Supreme court in the matter of Sanjay Kumar vs State Of Bihar & Anr decided on 28 January, 2014 wherein three –judge bench comprising Bench: B.S. Chauhan, J. Chelameswar, M.Y. Eqbal in Special Leave Petition (Crl.) No.9967 Of 2011 ordered as hereunder;

 

“In the instant case the counsel appearing in the court for the petitioner designated himself merely has a proxy counsel. The Advocate- on-record (for short AOR) had no courtesy to send, at least, a slip mentioning the name of the counsel who has to appear in the court. Thus, in such a fact-situation, we had no advantage even to know the name of the counsel who was appearing in the court.”

“In such a chaotic situation, any Arzi, Farzi,, half- baked lawyer under the label of proxy counsel a phrase not traceable under the Advocates Act, 1961 or under the Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the court under a false impression that he has a right to waste public time without any authority to appear in the court, either from the litigant or from the AOR,(advocate on record) as in the instant case.’

 In the line of the above observation made by three judge bench of apex court, this court held the notice by National Commission to keep away proxy counsel from appearing as a valid order .

This order pronounced by the Apex court can prove a boon for the consumer forums and needs to be publicized and popularized among the forums. It is not out of place to mention that the proceedings at consumer forums are hampered badly by the proxy counsels’ who are directed by the advocates to appear before the forum only for the purpose of obtaining/seeking adjournment. Such so called proxy counsels are neither aware of the facts of the case nor are having file with them .This proxy practice is a big cause for delaying the matters and converting the consumer courts into civil court defeating the purpose of law.

Dr Prem Lata

www.consumerawakening.com

 

 

 

 

 

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