State Consumer Disputes Redressal Commission
Thakker Vasudev Kanaiyalal vs Shree Manoj Sashidhar on 27 December, 2021
Details DD MM YY
Date of Judgment 27 12 2021
Date of filing 18 01 2019
Duration 09 11 02
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Revision Petition No. 21 of 2019
Court No. 1
Thakkar Vasudev Kanaiyalal
Keval Farm, Karodiya Road,
Po. Bajwa, Ta. Vadodara. ...Petitioner
Vs
1.Manoj Shashidhar, Police Commissioner, Vadodara City, Police Bhavan, Jail Road, Vadodara.
2. Jaimin Pravinchandra Desai, 501, "C" Tower, Time Square Complex, Nr. Fatehganj Petrol Pump Fatehganj, Vadodara.
3. J. N. Brahmbhatt,
4. Nilamben Bhavsar,
5. Manjulaben Nirmal, Res. 3 to 5 having their address at:
First Floor, Grahak Bhavan, Nr. Amit Nagar Cross Road, Karelibaug, Vadodara.
6. Chief Secretary, Gujarat Government, 3rd Floor, Block-1, New Sachivalaya, Gandhinagar. ....Respondents Mr. Vasudev Thakkar, petitioner, party in person. Mr. Bipin Kakadiya, ld. advocate for the State Government.
Coram : Hon'ble Mr. Justice V. P. Patel, President Smt. U. P. Jani, Member, Order by Hon'ble Justice Mr. V. P. Patel, President M. B. Desai RP-19-21 Page 1 of 11
1. The petitioner has preferred present Revision Petition under section 17 of the Consumer Protection Act, 1986, being aggrieved and dissatisfied with the interim order dated 22.6.2018 passed in complaint No. 1149/2017 by the Vadodara (Addl.) District Consumer Disputes Redressal Commission (for short District Commission).
2. Heard Mr. V. K. Thakkar, petitioner himself and ld. advocate Mr. B. P. Kapadiya, for the State Government.
3. Facts of the case: That the petitioner has filed consumer complaint No. 1149/2017 wherein, he has claimed following relief.
"૧. ઉય અભે દળશાલેર ફશફતો ન્મશયમક અને અભશયશ સંયલધશયનક તેભજ ગ્રશહક તયીકેનશ અભશયશ અયધકશયોનશ યક્ષણ ફશફતની હોઇ , ઇરેક્ળન કયભળન ઓપ ઇન્ન્િમશ દ્વશયશ તશયીખ ૧૩ . નશ યોજ એક આદે ળ નં૧૯૯૬-૩-૪૬૪ ૯૬/L&O/PLN- 1, જાહેય કયલશભશં આલેર છે તે આદે ળની કરભ ૧ ની ેટશ કરભ ૩-,૨,૩ ભશં દળશાવ્મશ મુજફનશ અભે વ્મક્ક્ત નહી હોઇ , તે આદે ળ યલરૂધ્ધ અભશરુ ળસ્ત્ર જફયન જભશ કયશલલશ ભશટે લિોદયશ ોરીસ કયભશ્નયશ્રી ભનોજ ળયળધયનશ આદે ળથી અભશયશ યલસ્તશય જલશહયનગયનશ ોરીસ ઇન્સ્ેકટય દ્વશયશ અભને આલશભશં આલેર યલયલધ ત્રો નોટીસોનો અભર યોકલશનો સત્લયે આદે ળ કયળોજી/, અને અભશયી પયીઆદની સુનલણીકમશા ફશદ તે ત્રો નોટીસો યદ કયલશનો મોગ /્્મ કશમભી હુકભ કયળોજી.
ય. ઇરેકળન કયભળન ઓપ ઇન્ન્િમશ દ્વશયશ તશયીખ ૧૩ નશ યોજ એક૧૯૯૬-૩- . આદે ળ નં૪૬૪ ૯૬/L&O/PLN-1, જાહેય કયલશભશં આલેર છે તે આદે ળની કરભ - ૧ ની ેટશ કરભ ૩,૨,૩ ભશં દળશાવ્મશ મુજફનશ વ્મક્ક્તઓનશ ક્રિયભનર િેટશ ચેક કયી, તે આદે ળભશં દળશાલેર કશમાલશહી પ્રભશણેની જ કશમાલશહી લિોદયશ ોરીસ કયભશ્નયશ્રીભનોજ ળયળધય કયે તેલશ મોગ્મ આદે ળ આળોજી .
૩. ઇરેકળન કયભળન ઓપ ઇન્ન્િમશ દ્વશયશ તશ નશ યોજ એક૧૯૯૬-૩-૧૩ . . આદે ળ નં૪૬૪ ૯૬/L&O/PLN-1, જાહેય કયલશભશં આલેર છે તે આદે ળભશં એલી કોઇ જોગલશઇ નથી કે ોરીસ કયભશ્નય અમુક વ્મક્ક્તઓને ઇરેકળન દયમ્મશન ળસ્ત્ર જભશ કયશલલશભશંથી મ ૂક્ક્ત આી ળકે તેથી , લિોદયશ ોરીસ કયભશ્નયશ્રી ભનોજ M. B. Desai RP-19-21 Page 2 of 11 ળયળધય દ્વશયશ , અન્મ વ્મક્ક્તઓને ળસ્ત્ર જભશ કયશલલશભશંથી આલશભશં આલેર મુક્ક્તનશ આદે ળને સત્લયે સ્થગગત કયલશનો આદે ળ આ આળોજી .
૪. ોરીસ કયભશ્નયશ્રી ભનોજ ળયળધય દ્વશયશ સી ની ક.સી.ી.આય.રભ ૧૪૪ મુજફનું કોઇ જાહેયનશમુ નોટીપશઇ કયશમેર નહી હોઇ , તે ફશફત ભશટે સયકશયનશ / ઇરેકળન કયભળનનશ આદે ળનશ ઉલ્રંઘન ઓપીસયને તથશ ખશતશકીમ ગરશ રેલશ ભશટે ગુજયશત યશજમનશ િશમયે કટય જનયર ઓપ ોરીસને રેખીત જાણ કયે ર હોઇ, અભશયશ ળસ્ત્રનશ રશમસન્સનશ આગશભી યીન્યુઅર નહી કયી આલશની આિકતયી ભૌગખક ધભકી અભને ભે ર હોઇ , અભશયશ ળસ્ત્ર ધયશલલશનું રશમસન્સ નંફય ફીસીટી યીન્યુ કયશલલશ અભે ોરીસ કયભશ્નયશ્રી ભનોજ ૨૦૦૩/૧૦૩૧૩/૫૧/ ળયળધયની રશમસન્સ કચેયીભશં આેર અયજ તથશ પી મુજફ અભને અભશરુ ળસ્ત્ર રશમસન્સ યીન્યુ કયલશની ભનશઇ નહી કયીને તે અભશરુ ળસ્ત્ર રશમસન્સ સત્લયે તથશ લખતોલખત અભને યીન્યુ કયી આે તેલશ આદે ળ આ આળોજી .
. ઇરેકળન કયભળનઓપ ઇન્ન્િમશ દ્વશયશ તશયીખ૧૩ નશ યોજ એક૧૯૯૬-૩- .આદે ળ નં૪૬૪ ૯૬/L&O/PLN-1, જાહેય કયલશભશં આલેરછે તે આદે ળભશં જણશલેર જોગલશઇઓ મુજફ તથશ તે ઉયશંત સયકશયે કયે ર અન્મ આદે ળોની ભમશાદશભશં યહી તે મુજફની કશમાલશહી તેભનશ દ્વશયશ કયલશભશં આલે તેલો આદે ળ , અભશયી સદય પયીઆદની સંપ ૂણા ન્મશયમક કશમાલશહી કયી , આ તે ફશફતનો અંયતભ આદે ળ ણ ોરીસ કયભશ્નયશ્રી ભનોજ ળયળધયને આળોજી .
3.1 The notice was duly served to the opponent No. 1, Police Commissioner, Vadodara. He has appeared through ld. advocate Mr. Jaimin Desai by filing Vakalatnama. The petitioner has filed an interim application dated 21.5.18 stating that the opponent no. 1 has no authority to defend his case through the private advocate and raised objection by filing interim application wherein, it is claimed in para 5 as under:
''. સશહેફશ્રી, આ લિોદયશનશ એિી નશ૧૭-૧૨-૧ . કન્ઝયુભય પોયભભશં તશ. યોજ અભે જે રેખીત પયીઆદ યજુ કયે ર, તે અભશયી પયીઆદ નંફય ૧૧૪૯ ઓપ ૨૦૧૭ ની મુદત તશયીખ ૨૦ નશ યોજ લિોદયશ ળહેય ોરીસ કયભશ્નયશ્રી૧૭-૧૨- ભનોજ ળયળધયનીસહીથી એક લકીર ત્ર યજુ કયલશભશં આલેર અને તે ખશનગી લકીરશ્રી જૈભીબશઇ ી.દે સશઇની યનયુક્ક્ત કશમદશ યલરુધ્ધની હોઇ , તે ખશનગી લકીરશ્રીની યનયુક્ક્ત ફશફતે અભે ગુજયશત સયકશયશ્રીને રેખીત પયીમશદ આેર હોઇ, તે ફશફતે ગુજયશત સયકશયશ્રી દ્વશયશ કોઇ યનણામ થઇને આલે નહીં ત્મશં સુધી M. B. Desai RP-19-21 Page 3 of 11 લિોદયશ ળહેય ોરીસ કયભશ્નયશ્રી ભનોજ ળયળધયની સહીથી જે લકીર ત્ર આ સભક્ષ યજુ કયલશભશં આલેર અને તે ખશનગી લકીરશ્રી જૈભીબશઇ ી દે સશઇને . કેસની ેયલીભશં બશગ નહીં રેલશ દે લશ ભશટે અભશયી નમ્ર અયજ/ સદય પયીઆદ .છે '' 3.2 The said application was rejected by the learned District Commission and hence, present revision petition is filed against the rejection order dated 22.6.2018 of the said application.
Merits of the case:
4. The complainant has filed this revision petition wherein, he has claimed relief in terms of para 43-48 which can be summarized as under:
43. Be pleased to direct the State Government that Secretary, Legal Department of Gujarat Government shall cancel an appointment of private advocate filed on behalf of Police Commissioner in CC No. 1149/2017.
44. Be pleased to quash and set aside the order dated 22.6.2018 in CC NO. 1149/2017 as the President and Members of Vadodara District Commission is influenced by Police Commissioner and they had allow to file Vakalatnama of private advocate without taking any opinion from Legal department of Gujarat Government and dismissed our application by order dated 22.6.2018 which is against the law and principal of natural justice.
45. Be pleased to inform Bar Council of Gujarat to take action for misconduct against Mr. Jaimin Desai as he violated the ethics made by the Bar Council for advocates.
46. Be pleased to direct the Police Commissioner, Vadodara to cancel the appointment of privat4e advocate Shri Jaiminbhai Desai and engage government pleader for defend his case in Consumer Case No. 1149/2017.
47. Be pleased to direct the Government of Gujarat to reconsider the propriety of appointment of President and Members, Vadodara District Commission as they have not appreciated the provision of The Law officer (appointment and terms of service) and rules governing the legal work of M. B. Desai RP-19-21 Page 4 of 11 the government 2009 which seems to have ignored the law or under some pressure.
48. Be pleased to stay the proceedings of CC No. 1149/2017 till the final disposed of the present revision petition.
5. At the outset it is required to be mentioned that the relief claimed in para 43, 45, 46 and 47 are not the subject matter of his application dated 21.5.2018, nor such relief claimed before the District Commission. Therefore, such reliefs are not required to be dealt with. In spite of that we have proceed to comment on such relief claimed.
6. As per the para 43 of the revision petition, petitioner has stated that the opponent No. 1 has appointed private advocate Shri Jaimin Desai in CC No. 1149/2017 before the District Commission, Vadodara is against the provision of the State Government, Law officer (appointment and terms of service) and rules governing the legal work of the government 2009. He requested to direct the State Government that law secretary shall cancel the appointment of Mr. Jaimin Desai. So far as the direction is to be given to the government for cancellation of appointment of Jaimin Desai is not within the purview of the Consumer Protection Act, therefore, such type of relief cannot be granted.
6.1 So far as relief claimed in para 45 of this Revision Petition, the petitioner has requested to this Commission to inform the Bar Council to take action of misconduct against the advocate Mr. Jaimin Desai. The Bar Council has power to take action against the advocate of his misconduct, if any. The petitioner may approach directly, if he is so advised. Therefore, this relief cannot be granted.
6.2 As far as the relief claimed in para 46 of the petition, the, petitioner has requested to direct the opponent no. 1 to engage M. B. Desai RP-19-21 Page 5 of 11 the Government pleader to defend his case no. 1149/2017.
The petitioner has produced a letter dated 27.9.2019 addressing to the District Government pleader to defend the case on behalf of Police Commissioner in CC No. 1149/2017. Therefore, this Commission has nothing to do for such relief.
6.3 As far as the relief claimed in para 47 of the petition, petitioner has requested this Commission to direct the State Commission to reconsider the propriety of appointment take necessary action against President, Mr. J. N. Brahmbhatt, Neelam Bhavsar, Member and Manjula Nirmal, Member of the Vadodara District Commission. At present, above President and members are retired and not working therefore, the question does not arise about reconsideration of propriety of appointment or cancellation of such appointment.
6.4 He has further requested in para 48 to stay the proceedings in CC No. 1149/2017 pending before the District Commission, Vadodara. At the initial stage, the then President of this Commission has issued only notice to the opponent No. 1, 2 and 6 only. No stay is granted. Therefore, nothing is required to be done at this stage.
7. The complainant has claimed relief in para 44 is to quash and set aside the impugned order dated 22.6.2018. The learned District Commission has given reasons for rejecting the objection application dated 21.5.2016 in para 7 of the order dated 22.6.208, which reads as under:
"7. I have given my thoughtful consideration to the rival contention. I have perused the papers. I have no hesitation to believe that a complaint has been lodged against Mr. Manoj Shashidhar who also has Police Commissioner. The process is served upon him in his personal capacity. Therefore, certainly Rule 42 should govern the circumstances if the opponent desires that he should be defended for his action in his official capacity, he has to M. B. Desai RP-19-21 Page 6 of 11 follow the procedure as prescribed in Law Officers Rules, 2009. In other words, I would like to note Rule 42 makes it clear that if the officer who has been served in personal capacity, does not desire to be defended at the government expenses, shall not be liable to follow the Rules of 2009 as well as the Circular which is produced by the opponent. I have no hesitation to note that if such officer does not desire to be defended at the State expenses, opportunity of fair trial shall not be denied to him. He is entitled to be defended by engaging the Lawyer of his choice at his own expenses. My view has been fortified by a reference of Rule 101 of the Rules, 2009. The Rule speaks that the assistance which Government may grant to its officers, who have to institute or defend civil or criminal proceedings in respect of acts done by or purported to have been done by them in discharge of their duties may consist of engagement of Law Officer proceedings to appear in such on behalf of the officer concerned. The provision further states that the reimbursement to the Officer concerned of all the expenses towards fees incurred by him in such proceedings to the extent of fees payable in such proceedings to Law Officer under the Rules. It is, therefore, very clear that the only restriction imposed by this Rule is regarding the limit of expenses towards the fees. In directly, it is abundantly clear that the officer can engage a Lawyer instead of assistance of District Government Pleader and also he can reimburse expenses to the extent of fees payable to the Law Officer, and not beyond that. Therefore, the opponent has a right to engage a lawyer of his choice."
8. It will be beneficial to refer here some of the provisions of Advocates Act, 1961 as regards to rights of advocates to practice law.
"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 practice the profession of law, namely, advocates.
30. Right of advocates to practice.―Subject to the provisions of this Act, every advocate whose name is entered M. B. Desai RP-19-21 Page 7 of 11 in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends,―
(i) in all courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
32. Power of court to permit appearances in particular cases.―Notwithstanding anything contained in this Chapter, any court, authority, or person may permit any person, not enrolled as an advocate under this Act, to appear before it or him in any particular case."
8.1 As per Section 29 of the Advocates Act, 1961, only one class of person i.e. advocate is entitled to practice the provision of law.
8.2 As per Section 30 of the Advocates Act 1961, the advocates have right to practice before all courts, any tribunal or personal legally authorize to take ordinance and before any authority.
8.3 As per Section 32 of the Advocates Act 1961, any court, authority or person may permit any person to appear before it or him in any particular case.
8.4 In view of the above provisions the District Commission cannot prohibit the particular advocate to appear before it.
9. It will be useful to take note of some of the provisions of law which prohibit/restrain/preclude the advocates from entitlement of practice in law.
"Section 13 in The Family Courts Act, 1984: Right to legal representation: Notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as of right, to be represented by a legal practitioner:
PROVIDED that if the Family Court considers it necessary in the interest of justice, it may seek the assistance of a legal expert as amicus curiae."M. B. Desai RP-19-21 Page 8 of 11
Section 36 (4) Industrial Dispute Act, 1947: In any proceeding {before a Labour Court, Tribunal or National Tribunal], a party to a dispute may be represented by a legal practitioner with the consent of the other parties to the proceeding and [with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be. 9.3 As stated in Section 13 of the Family Court Act, 1947 and Section 36 (4) of Industrial Dispute Act, 1947, the advocate cannot appear before the concerned Court or tribunal as a right. By provision of law the right to professional practice as an advocate is restrain or preclude by such provision.
No such provision is incorporated in Consumer Protection Act, 1986 and 2019. Therefore, the party can engage an advocate of his choice for his case before the Consumer Forum/Commission.
10. Ld. advocate for the State has relied upon the Rule 101 of the Law officers (appointment and conditions of services) and conduct of legal affairs of the Government Rules, 2009 which runs as follows.
101. Rules for the grant of legal assistance to Government Servants:
(1) The assistance which government may grant to its officers, who have to institute or defend civil or criminal proceedings in respect of acts done by or purported to have been done by them in discharge of their duties, may consist of-
(a) Engagement of Law Officer to appear in such proceeding on behalf of the Officer concerned; or
(b) Reimbursement to the Officer concerned of all the expenses towards fees incurred by him in such proceedings to the extent of fees payable in such proceedings to law Officer under these Rules. (2) The Government servant who intends to institute or defend such proceedings and is desirous to obtain assistance from the Government must immediately refer the matter to his official superior who in turn through M. B. Desai RP-19-21 Page 9 of 11 proper channel shall refer the matter to the Government in Legal Department.
(3) In cases in which Government itself prosecutes the Government servant for offenses alleged to have been committed by him in his official capacity and in which such Government servant is acquitted, it will be desirable to reimburse to him the expenses towards fee incurred by him to the extent mentioned in sub-rule 1(b) defending himself instead of engagement of Law Officer.
10.1 On perusing this rule it appears that there is no prohibition of engagement of private advocate by the officers of the Government. The limitation is only about reimbursement of fees paid by him. The expenses towards fees incurred by him as fee will be payable to the extent of fees payable to law officer under the Law Officers Rules, 2009.
11. We have considered the grounds stated in the petition, reasons stated in the impugned order of the ld. District Commission, documentary evidence on record, argument advanced by the petitioner himself, arguments advanced by the advocate for the State, facts and circumstances of the case and above referred provisions of law. We are of the opinion that the learned District Commission has come to the right conclusion by its reason order. The impugned order is correct, legal and valid in eye of law. Therefore, no interference is required. In view of the above discussion, the revision petition is required to be dismissed. Therefore, in the interest of justice following order is passed.
ORDER I) The Revision Petition No. 21 of 2019 is hereby dismissed.
II) The order dated 22.6.2018 passed by the ld. District Commission Vadodara (Addl.) in CC No. 1149/2017 is hereby confirmed. III) No order as to costs.
M. B. Desai RP-19-21 Page 10 of 11IV) Registry is directed to send a copy of this Judgment to the District Commission Vadodara (Addl.) through E-mail in PDF format for taking necessary action. Registry is directed to send certified copy of this judgment to the parties of this proceeding.
Pronounced in the open Court today on 27th December, 2021.
[Smt. U. P. Jani] [Mr. V. P. Patel]
Member President
M. B. Desai RP-19-21 Page 11 of 11