Wednesday, 30 April 2014

Whether proxy lawyers can be allowed to make submission before court?


The other grievance of Mr. Majithia is that the National
Commission in its Cause List specifically issued a notice that no

proxy counsel shall be allowed to make submissions. According
to him, such a direction is bad in law and is without any
jurisdiction. According to him, such direction is also arbitrary
and illegal as it prevents a qualified lawyer enrolled on the rolls
of a State Bar Council from presenting his case before the
National Commission. He further submitted that it is also in
violation of Article 19(1)(g) of the Constitution, being the
fundamental right to practice. He further stated that under
Section 30 of the Advocates Act, 1961, an Advocate, after
having been enrolled, has a right to appear before the courts or
any other authority and, therefore, it is curtailment of the right
of an Advocate. We find that under the Advocates Act, there is
no terminology which defines “proxy counsel”. We have found
in a very recent decision of this Court in S.L.P. (Criminal)
No.9967 of 2011 (Sanjay Kumar v. The State of Bihar & Anr.), a
three-Judge Bench of this Court in its order dated January 28,
2014 has held as follows :
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, as in the instant case. ....”
Therefore, we do not find any substance in the submission of
Mr. Majithia with regard to “proxy counsel”. We also do not find
that the decisions cited by Mr. Majithia before us can extend any
help in the facts and circumstances of this case.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4891 OF 2014
(Arising out of Special Leave Petition (Civil) No.14965 of 2013)
Surendra Mohan Arora
... Appellant
:Versus:
HDFC Bank Ltd. and Others
...Respondents
Dated;April 25, 2014.

Pinaki Chandra Ghose, J.
1.
Leave granted.
2. This appeal is directed against the judgment dated January 7,
2013 passed by the High Court of Delhi in Writ Petition No. 64
of 2013 dismissing the writ petition filed by the appellant,
questioning the vires of Regulation 15 of the Consumer
Protection Regulations, 2005 (hereinafter referred to as “the

Regulations”)
framed under the Consumer Protection Act,
1986 (hereinafter referred to as “the said Act”).
3. The facts of the case briefly are as follows :

The appellant filed a complaint before the District
Forum under the said Act. The foundation of the filing of such
complaint was an allegation made against respondent No. 1 –
HDFC Bank Ltd.
for indulging in unfair trade practice on the
ground of failure to provide professional services to the appellant
resulting in pre-payment of loan to respondent No.1 seeking to
levy a penalty for pre-payment.

By an order dated August 2, 2007, the District Forum held
in favour of the appellant. Respondent No.1 preferred an appeal
against the said order before the State Commission resulting in
dismissal by an order dated November 19, 2007. A revision
petition was filed before the National Consumer Disputes
Redressal Commission (hereinafter referred to as “the National
Commission”) which set aside the orders of the District Forum and
the State Commission vide an order dated August 14, 2012 on the
basis of the agreements inter se between the parties. Being

aggrieved, the
appellant filed a review application before the
National Commission resulting in dismissal by an order dated
September 24, 2012.
(3.3) Being aggrieved and dissatisfied with the said order, the
appellant filed a writ petition under Article 226 of the Constitution
of India before the High Court, inter alia, praying that Regulation
15 of the Regulations be struck down on the ground that the said
Regulation being ultra vires of the said Act, and further the review
application filed by the appellant should be re-heard by the
National Commission granting an opportunity to present the case
by making oral arguments.
4. Mr. Nikhil Majithia, learned counsel appearing on behalf of the
appellant, drew our attention to the Statement of Objects and
Reasons of the said Act which is to provide for better protection
of interest of consumers and it is towards that objective that
Section 22 of the said Act was amended by Act No.62 of 2002
with effect from March 15, 2003, conferring the power of
review on the National Commission, which was not available in
the original Act. According to him, Regulation 15 is ultra vires
Section 22 of the said Act. It is also his contention that by

introducing Regulation 15, the National Commission has
exceeded its jurisdiction and the power vested in it under
Section 30A of the said Act.
5. Section 22 of the said Act reads as follows :
“Section 22. Power of and procedure applicable
to the National Commission. — (1) The provisions of
sections
12,
13
and
14
and
the
rules
made thereunder for the disposal of complaints by the
District Forum shall, with such modifications as may be
considered necessary by the Commission, be applicable
to the disposal of disputes by the National Commission.
(2) Without prejudice to the provisions contained in
sub-section (1), the National Commission shall have the
power to review any order made by it, when there is an
error apparent on the face of record.”
It is necessary to quote Regulation 15 for our purpose which
is as under:
“Regulation 15. Review.-(1) It shall set out clearly
the grounds for review.
(2)
Unless
otherwise
ordered by the National
Commission, an application for review shall be disposed
of by circulation without oral arguments, as far as
practicable between the same members who had
delivered the order sought to be reviewed.”

6. It is needless to mention here that the said Regulations were
duly published in the Official Gazette dated May 31, 2005 and
were so made in pursuance of the power conferred under
Section 30A of the said Act conferring power on the National
Commission to make such regulations with the prior approval
of the Central Government. According to Mr. Majithia, the
Consumer Protection Act has been enacted to protect and
advance the cause of consumers. He further contended that
the Statement of Objects and Reasons of the Act in Clause 2
states that the Act seeks to promote and protect the rights of
consumers including the right to hear and further to assure
that
the
interest
of
the
consumers
will
receive
due
consideration at appropriate fora. He further submitted that all
these fora are quasi-judicial authorities, therefore, are bound to
observe the principles of natural justice.
7. He further pointed out that the amendment of Section 22 is
only to empower the National Commission to function more
explicitly and further to streamline the functioning of the
consumer fora. The main grievance of the appellant is that the
National Commission has provided for disposal of review

application by circulation without oral arguments. Mr. Majithia
submitted that the said Act has provided for promotion and
protection of the rights of the consumers which includes the
right to be heard. The said Act has also provided that the
principles of natural justice shall be adhered to by all quasi-
judicial fora which include the National Commission. He
submitted that the salient features of the Act are sought to be
rendered redundant by way of Regulation 15, by taking away
the right of being heard and there is no adherence to principles
of natural justice, thereby making it ultra vires to Section 22 of
the said Act. In these circumstances, he submitted that
Regulation 15 should be struck down.
8. To fortify his submission, he relied on the decisions of this
Court in State of Orissa vs. Dr. (Miss) Binapani Dei and Ors 1
followed in Maneka Gandhi vs. Union of India2 & Anr., Sahara
India (Firm), Lucknow vs. Commissioner of Income Tax,
Central-I
&
Anr.3
and
Automotive
Tyre
Manufacturers
Association vs. Designated Authority and Ors. 4, and it has been
1
2
3
4
(1967)
(1978)
(2008)
(2011)
2 SCR 625
1 SCC 248
14 SCC 151
2 SCC 258

contended by Mr. Majithia that the courts have emphasized on
the right of being heard time and again even when an order is
passed by an administrative authority and that written
arguments cannot be a substitute for oral hearing. It is also the
case of the appellant that the national Commission has
exercised its power beyond the scope of Section 30A of the Act
while enacting Regulation 15, which in its present form defeats
the objective of the amended Section 22 of the Act as the right
of making oral arguments is taken away from the consumer,
making the Regulation inconsistent with the objective of the
Act. It has also been submitted that the impression given by
Regulation 15(2) that oral arguments can be made when
allowed by the National Commission, is fallacious as it does not
consider the fact that the Act has given the prerogative to the
consumer and not to the National Commission. Moreover, this
would also lead to inequality as some consumers are given the
right of being heard in open court and some are deprived of the
same at the discretion of the National Commission. Another
submission of the learned counsel is that in the light of the
principle that justice must not only be done but also be seen to

have been done; Section 22 is rendered redundant on account
of Regulation 15 as the same is contrary to the principle of audi
alteram partem which is undisputedly followed by judicial and
quasi-judicial bodies alike.
9.
We have perused Section 22 of the said Act. Under Section
22(2), the National Commission has been empowered to review
an order made by it when there is an error apparent on the
face of the record. We have also noticed sub-section (1) of the
said Act. It is a fact that this provision streamlines the
functioning of the consumer Redressal forums and also reduces
the number of appeals to the Supreme Court from the orders of
the National Commission. The power of review did not exist
earlier. It is trite law that unless the power of review is
specifically conferred by the statute, there cannot be any
inherent power of review.
10. In the instant case, the power conferred by Section 22 of the
said Act on the National Commission is not an inherent power
and further the Commission has the power to review its order
when there is an error apparent on the face of the record. We
do not find any dispute that the Regulations have been framed

in accordance with the power conferred under Section 30A on
the
Commission,
thereby
effecting
its
right
to
frame
Regulations. Therefore, the Regulations have been framed in
accordance
with
law.
We
have
minutely
gone
through
Regulation 15(2) and found that power to deal with review
applications lies with the Commission. The procedure is to be
adopted by the National Commission, whether the review
petition would be decided after hearing the parties orally or can
be disposed of by way of circulation. Therefore, we do not find
that any mischief has been done by framing the said
Regulations. In our opinion, the said Regulations under Section
22 of the said Act, cannot be said to be ultra vires the said Act.
Accordingly, we do not find any substance in the arguments
put up before us by Mr. Majithia. There is no reason to believe
that the National Commission by enacting Regulation 15
exceeded its jurisdiction or the power vested in it under Section
30A of the said Act, as has been tried to be contended by Mr.
Majithia.
11. The other grievance of Mr. Majithia is that the National
Commission in its Cause List specifically issued a notice that no

proxy counsel shall be allowed to make submissions. According
to him, such a direction is bad in law and is without any
jurisdiction. According to him, such direction is also arbitrary
and illegal as it prevents a qualified lawyer enrolled on the rolls
of a State Bar Council from presenting his case before the
National Commission. He further submitted that it is also in
violation of Article 19(1)(g) of the Constitution, being the
fundamental right to practice. He further stated that under
Section 30 of the Advocates Act, 1961, an Advocate, after
having been enrolled, has a right to appear before the courts or
any other authority and, therefore, it is curtailment of the right
of an Advocate. We find that under the Advocates Act, there is
no terminology which defines “proxy counsel”. We have found
in a very recent decision of this Court in S.L.P. (Criminal)
No.9967 of 2011 (Sanjay Kumar v. The State of Bihar & Anr.), a
three-Judge Bench of this Court in its order dated January 28,
2014 has held as follows :
“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, as in the instant case. ....”
Therefore, we do not find any substance in the submission of
Mr. Majithia with regard to “proxy counsel”. We also do not find
that the decisions cited by Mr. Majithia before us can extend any
help in the facts and circumstances of this case.
12. The foundation, as it appears to us for filing this appeal by
the appellant, is only to curtail the rights of the National
Commission to adopt the procedure whether the review
petitions will be decided after granting an opportunity of being
heard to the petitioner. From the order of the High Court, we
find that no such request was made in the application before
the
National
Commission
for
such
hearing.
In
these
circumstances, the High Court correctly held that the writ
petition is misconceived and devoid of merit without even
laying the basic foundation for having sought an oral hearing of
the review application. We do not find any reason to interfere
with the order passed by the High Court. Accordingly, we
uphold and affirm the said order and dismiss this appeal.
Page 11
12
.................................J.
(Gyan Sudha Misra)
New Delhi;
April 25, 2014.
Ghose)
.........
.........................J.
(Pinaki Chandra


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