- (1.) BY this appeal, under sec. 15 of the Consumer Protection Act, 1986 (No. LXVIII of 1986) (for short 'the Act' herein), the opposite-party-appellant no. 2 and the Educational Society of Sophia through the Principal, Sophia Girls Higher Secondary School, Vallabhnagar, Kota (appellant No. 1) question the legality and correctness of the order dated 1-8-89 passed in Complaint Case No. 360/89 by the District Forum, Kota. The complainant-respondent Shri Kailash Chandra Singhal is Additional Chief Judicial Magistrate Kota. He lodged a complaint before the District Forum, Kota on 5-7-89. It was stated by him that his daughter Sushri Juhi Singhal is a student reading in Class II of Sophia Girls Higher Secondary School, Vallabhnagar, Kota. It was stated that from her Rs. 80/- p. m. are charged as tuition fee and Rs. 20/- are realised for building fund. The averments relating to gratuity, library, games fee etc. were also made. It was prayed that the fees, which have been realised improperly from the students of the school should be ordered to be refunded and it may be directed not to recover improper fees. A direction was sought that the school should be bound to realise fees in accordance with the prescribed fees of the Government schools and the Schools managed by the Education Department. . .-
(2.) AN application was submitted on 5-7-89 that the documents mentioned in the application, which are in possession and power of the opposite party may be summoned. The complaint was registered on 6-7-89. Notice was ordered to be issued for the hearing of 18-7-89 to the opposite-party. It was recorded on 18-7-89 that father Lobo and Sister Mabel are present on behalf of the opposite-party. They wanted time to file reply. They were allowed seven days time. AN order was made on that day that tuition fee amounting to Rs. 80/- will be recovered from the students of Sophia Girls School and with respect to other items, orders will be passed later on and that the amount should be deposited in cash and receipts will be issued for the same. The next date fixed was 25. 7. 89. Shri Maloo, appearing on behalf of the opposite-party filed replies to the complaints and also to the. two applications filed on behalf of the complainant. There preliminary objections were raised on behalf of the opposite-party. Shri Maloo, the representative of the opposite-party, submitted an application for grant of permission to the opposite-party to present its case before the District Forum through a lawyer on the ground that the complainant is a person well-versed in law. The District Forum was of the opinion that from the reply filed by Shri Maloo, it appeared that he is competent to put the defence of the opposite-party properly and in future, if there is any necessity, the permission for availing the services of lawyer will be given. Amongst others, on that day, the following order was passed : ****** The District Forum also ordered that the opposite-party should produce the documents relating to uniform, and sale of books of the students on 27-7-89. On 27-7-89, the accounts relating to water and electricity were submitted by Shri Maloo. It was ordered that Shri Maloo should produce on the next day the details of the amounts deposited for water and electricity in the concerned departments by the school. The District Forum ordered on that day that they (Members) will go to the school next day to see the arrangements in connection with the water and electricity for the students. The inspection was done on 28-7-89 in connection with water and electricity and books. On that day, Shri Maloo submitted a statement relating to water and electricity charges and also the expenditure incurred in connection with the articles. Arguments were heard, the record was seen and the complaint was ordered to be listed for orders on 1-8-89. On 1-8-89, the order under appeal was passed. The material part of the order is as under : ******** It was mentioned in the order that this order is confined, to the amounts recovered from the students for water and electricity and in regard to other items, building fund, tuition fee, gratuity, purchase of books etc. , separate proceedings will be taken; This order was signed and pronounced by the President and Shri Ramesh Chandra Saxena, Member of the District Forum. Aggrieved, this appeal has been filed as aforesaid. Notice was ordered to be issued to the complainant-respondent. He filed reply to the memo of appeal and objections on 25. 8. 89. An application was submitted by Shri M. S. Bhargava, learned counsel for the complainant-respondent that Unity and Welfare Society may be allowed to intervene in the appeal as it is a common cause. Mr. Ashok Mehta, learned counsel for the appellants rightly did not oppose the request and so we permitted the Consumer Unity and Welfare Society to intervene in the appeal. It is represented by Shri M. S. Bhargava who is also counsel for the respondent. We have heard learned counsel for the parties and considered the record and order under appeal with requisite care. Learned counsel for the appellants has raised the following contentions : (1) that the order passed by the District Forum is without jurisdiction as it could not entertain, try and decide the complaint against an educational institutions as the educational institutions are not covered by the provisions of the Act and the complainant cannot be called a 'consumer' within the meaning of sec. 2 (l) (d) (ii) of the Act; (2) that appellant no. 1 Educational Society of Sophia, Gumanpura, Kota imparts education to the students and this cannot be equated with the hiring of the service, as envisaged by sec. 2 (l) (d) (ii) and also sec. 2 (o) of the Act. According to the learned counsel, there is neither any "consumer dispute" nor services rendered are such so that the complainant can invoke the provisions of the Act; (3) that the complainant has no locus standi to file complaint, for, he is not a student and he has not filed the complaint as Guardian of the minor as representative of the students in general; (4) that the District Forum assumed jurisdiction which it had none by interfering with the affairs of the Society in regard to the justification of the charges under the heads-water and electricity as if the Society was meant for rendering services of supplying water and electricity; (5) that the District Forum was unjustified in doing the site inspection of the school on 28-7-89 and making enquiries: (6) that the District Forum exceeded its jurisdiction when it enquired into the expenses being incurred by the Society and fees being charged from the students; (7) that the parents/guardians are called in the school to discuss about the affairs of the school concerning their children, but the complainant has never bothered to come to the school and discuss any of the issues raised by him during the past years for the reasons best known to him. May be that he is a Judicial Officer and so he does not want to come to school; (8) that the procedure adopted by the District Forum in passing the order on 1-8-89 itself shows that it was acting prejudicially against the opposite-party-appellants and no reasonable opportunity was given to the opposite-party. In this connection, attention was drawn to the proceedings dated 18-7-89, 25-7-89, 27-7-89 and 28-7-89; (9) that the District Forum committed illegality and material irregularity in not allowing opposite-party to be represented by an advocate/legal practitioner which has affected the decision of the case on merits. Cross-objections on behalf of the complainant-respondent were submitted regarding the order dated 1-8-89 praying that the order dated 1-8-89 passed by the District Forum, Kota, allowing the opposite-party to charge Rs. 10/- annually on account of electricity and water charges from each student including the daughter of the complainant may be set aside and that any other relief, which the Commission may deem fit, may be granted to the complainant-respondent. At the time of hearing, the cross-objections were not pressed. Written submissions were submitted on behalf of the complainant-respondent, strongly opposing the grounds taken in the memo of appeal. Some other objections were also taken in the additional pleas of the written submissions. Two preliminary objections raised (1) that the Educational Society of Sophia has no locus standi to file the appeal and (2) that the Consumer Protection Act is a beneficial legislation and has been enacted to achieve social justice for better protection of the interests of the consumers and so, the definition of 'consumer' should be interpreted as per the spirit of the Act. Learned counsel for the complainant-respondent vehemently opposed the contentions raised on behalf of the appellants.
(3.) IN view of the oral arguments, made by the learned counsel for the parties, the following material questions emerge for our consideration : (1) Whether the District Forum committed illegality and material irregularity in not allowing the opposite-party to be represented through an advocate/legal practitioner and that has affected the decision of the case on merits ? (2) Whether in the facts and circumstances of the case, the order passed by the District Forum is bad for it was passed without affording reasonable opportunity to the opposite-party ? (3) Whether the District Forum, Kota has no jurisdiction under the Act to pass the impugned order in regard to the water and electricity? We propose to examine the above questions ad-seriatim. Question No. 1 : The complainant in this case is an Additional Chief Judicial Magistrate. After the service of the notice of the complaint on the Principal, Sophia Girls Higher Secondary School, Vallabhnagar, Kota, a power was filed along with the application stating that Shri Arvind Bhardwaj, Advocate, has been authorised to conduct the proceedings on behalf of the opposite-party. On 25-7-89, an application was submitted on behalf of the Principal, Sophia Girls Higher Secondary School, stating, interalia, that the opposite-party may be permitted to engage an advocate/legal practitioner for conducting the case. It appears from the order dated 25. 7. 89, while dealing with the question of representation by an advocate/legal practitioner, on behalf of the opposite-party, that it is not necessary to pass any order on this application at that stage. It was observed : **** Until the passing of the impugned order, no specific permission was granted to the opposite-party to represent its case through a lawyer. No such permission was necessary as there is nothing in the Act to show that a party to the consumer dispute is not entitled to represent its case through an advocate/ legal practitioner. There are enactments like the National Security Act, 1980, COFEPOSA etc. where, there is a specific provision that nothing in the section dealing with the procedure of Advisory Board shall entitle any person against whom an order for detention has been made to appear by any legal practitioner in any manner connected with the reference to the Advisory Board. Under the Act and the Rules made thereunder there is no prohibition that the party will not be permitted to be represented by legal practitioner/advocate. There is no bar. 'agent' has been defined in rule 2 (b) of the Rules, 1987 to mean a person duly authorised by a party to present any complaint or appeal or reply on its behalf before the State Commission or the District Forum. This does not mean that a legal practitioner/advocate cannot represent a party before the District Forum or the State Commission. Aid can be taken from the provisions contained in O. III, r. 2, C. P. C. which deals with the recognised Agents, on the basis of the definition 'of the 'agent' as given in r. 2 (b) of the Rules, it cannot be inferred that there is prohibition of availing of the services of an advocate/legal practitioner before the District Forum or the State Commission, as the case may be. Sec. 29 of the Advocates Act, 1961 provides that Advocates to be the only recognised class of persons entitled to practise law. S. 30 deals with rights of Advocates to practice. This section does not confer on a litigant a right to be represented by an Advocate. It presupposes that a litigant is entitled to be represented by an Advocate and if a person is not otherwise free to appoint an agent this section will not authorise him to do so. Before the National Commission, New Delhi, Advocates do appear for the parties. As the main Act does not bar the engagement of a legal practitioner/advocate for representing a party before the District Forum or the State Commission, as the case may be, the District Forum was not right and justified in not permitting the opposite-party to avail of the services of the advocate or legal practitioner to represent the case on its behalf before the District Forum. The opposite-party had/has a right to be represented by an advocate. It is needless to emphasise that for failure to permit to be represented by an advocate/ legal practitioner, as desired by the opposite-party, it has been materially prejudiced in defending its case. The first question formulated by us is, therefore, answered in favour of the appellants and against the complainant-respondent. Question No. 2 ;