Oral Order: (R. Lakshminarasimha Rao, Incharge President)
1. The opposite parties are the revision petitioners in both the Revision Petitions. The revisions are challenge to the order of the District Forum passed in I.A.No.123 and 124 of 2013 which were filed questioning maintainability of the complaint on the premise that general secretary of Human Rights and Consumer Protection Cell has no locus standi to file the complaint. R.P.No.89 of 2013 is taken as lead case.
2. The petitioners had filed I.A.No.123 of 2013 contending that the Human Rights and Consumer Protection Cell is not a society registered for advancing the cause of consumer and the membership of the society is limited to BHEL MIG residents only and the respondent/complainant is not a resident of BHEL-MIG and as such her cause cannot be espoused by BHEL MIG Residents Welfare Society and Thaku Rajkumar Singh. The appellants submitted that the Byelaws of the society do not permit establishment of Human Rights and Consumer Cell and the society is not registered under the provisions of Societies Registration Act or Companies Act.
3. The petitioners submitted that Thakur Rajkumar Singh has been appearing in many cases by virtue of special power of attorney which is made a device to enable him to appear as attorney though he is not enrolled with the Bar Council of Andhra Pradesh. A special power of attorney is meant for a special purpose and does not serve all purposes. The respondent executed is nothing but disguise of general power of attorney and the recitals of power of attorney reveal that the respondent has grievance pending in District Forum ,State Commission, Human Rights Commission, Central Vigilacne Commission, Information Commission and Vigilence Commission etc., in respect of not handing over documents, not revealing accounts and narrow car parking place etc.,
4. Further, the petitioners submitted that the cause title of the complaint is misleading and in the cause title Dr.Mahalxmi Rajput is shown as complainant and in the body of the complaint Consumer Protection Cell is stated to be the complainant.
5. The respondent resisted the petition contending that he is the authorized representative of the complainant and that the primary aim of the society is to help the victims and the respondent executed special power of attorney in his favour satisfying the requirement of Regulation 16(2) of the Consumer Protection Regulations,2005. The respondent contended that in view of decisions of the National Commission in R.P.No.2697 of 2008 reported in 2001(1) CPR 390 (NC) and R.P.No 2721 of 2007 decided on 13.12.2007 and the decision of this Commission in F.A.No.1156 of 2009 decided on 10.11.2010, the objection raised by the petitioners is not sustainable.
6. The District Forum dismissed the petition on the premise that the petitioners had not submitted complete text of the decision in œG.L.D.L. Investors Consumers Association vs Golden Land Development India Ltd., II (2004) CPJ 456 (Raj) and the respondent signed the complaint and as such no illegality can be found in entertaining the complaint.
7. Aggrieved by the order of the District Forum, the petitioners had filed the revision contending that the District Forum erred in not appreciating the difference between a Residents Welfare Association (RWA) and a Voluntary Consumer Association that the complaint has been filed under the authorization of Mr.Thakur Rajkumar Singh who is said to be running a voluntary consumer organization and that the unregistered consumer associations cannot step into the shoes of a complainant.
8. The learned counsel for the respondent has filed written arguments.
9. The point for consideration is whether the order of the District Forum is vitiated by misappreciation of facts or law?
10. Dr.Mahalakshmi Rajput filed the complaint through Takhur Rajkumar Singh , general secretary of Human Rights and Consumer Protection Cell-BMRW(regd), BHEL, MIG 982, Hyderabad. The first paragraph of the complaint begins with the introduction of Consumer Protection Cell stated to be specialized wing of BMRWS which a recognized voluntary welfare society and registered under the provisions of A.P. Societies Registration Act.
11. Copy of Byelaws filed along with revision petition would show that the BHEL MIG Residents Welfare Society was registered with the office of Sub-Registrar, Prashanthinagar, Kukatpally, Ranga Reddy with the following aims and objectives:
œa) To look after the welfare of all the residents members socially, morally and educationally.
b) To solve the problems of the residents in all aspects on social, economical and legal grounds.
c) To conduct sports, games and cultural activities.
d) To organize social services.
e) To work for national integrity for the sake of the nation.
f) To maintain and offer counseling services for the sake of unity and help maintain good/cordial relations among the residents and within the families.
g) To offer any kind of help for the sake of better social living to the senior citizens, youth, women and children taking necessary support and seeking coordination from various Governmental, NGOs medical and legal, consumer, H.R.Orgnisations and agencies.
h) To such other things as may be necessary to the attainment, of all or any of the above objectives of the society ?.
12. A perusal of the aforementioned Byelaws would show that the BHEL MIG Residents Welfare Society has limited its activity to look after socially, morally and educationally the welfare of its members who are the residents of BHEL MIG, Hyderabad. In the complaint it is nowhere stated that the complainant is the resident of BHEL or member of BHEL MIG Residents Welfare Society. The society has not filed the complaint. The general secretary of Human Rights and Consumer Protection Cell has filed the complaint and it is not known as to the relationship between the Consumer Protection Cell and BHEL MIG Residents Welfare Society.
13. The District Forum held that in view of Section 12((1)(b) of the Consumer Protection Act which provides for filing of complaint through any recognized consumer association though the consumer is not its member. The Consumer Protection Cell or BHEL MIG Residents Welfare Society is not either recognized consumer association. The special power of attorney executed by the respondent in favour of Thakur Rajkumar Singh provides for empowering him to file fresh appeals, suits, applications, Crl. Cases either in original or appellant courts or commissions or departments (State and Central Govt.), in respect of dispute/grievance/complaint etc., in the matter pending before the District Forum/State Commission, Human Rights Commission, pending filing Right to Information Applications/appeals etc.
14. The learned counsel for the petitioner has submitted that the special power of attorney would be executed to serve particular purpose and not all the purposes. The learned counsel has contended that there is no Consumer Protection Cell registered under the provisions of any law in force and the complaint in the present form is not maintainable. Special Power of Attorney executed by the respondent would show that she empowered the general secretary to do multifarious acts which is not permissible in law.
15. The learned counsel for the respondent has contended that the complaint is maintainable in view of the provisions of the Consumer Protection Regulations, 2005 and in the light of decisions of the National Commission in R.P.No.2697 of 2008 decided on 17.02.2011 and the decision of this Commission in F.A.No.1156 of 2009 decided on 10.11.2010. She has submitted that she filed vakalat in the R.P. and in the CC on the same day i.e., 24.12.2013 and as such the objection as to the maintainability of the complaint is not sustainable.
16. Provisions of Consumer Protection Regulations, 2005 provide for appearance of voluntary consumer organizations by way of special power of attorney executed on non-judicial paper or plain paper attested by a gazette officer.
17. The Consumer Protection Cell is not a voluntary organization nor registered under provision of any law and the special power of attorney executed by the respondent in favour of the general secretary of Consumer Protection Cell is not attested by any gazette officer. The special power of attorney is not executed for filing and prosecuting the particular complaint before the District Forum, Medak. It is omnibus document to authorize the general secretary of the Consume Protection Cell and Human Rights to represent the respondent before the District Forum, this Commission, State Information Commission, Human Rights Commission, Central Vigilance Commission, Police etc. The power of attorney, as such does not carry any validity with it.
18. In Wazid Khans case(supra), Byelaws of BHEL MIG Residents Welfare Society was not placed before this Commission and any finding returned not based on evidence would not have binding effect on the present case.
19. In R.P.No. 2721 of 2007 which was decided on 13.12.2007 it was held:
Unfortunately, in the present case, an over-technical view has been taken by the State Commission and the District Forum in dismissing the complaint by holding that father/mother of an aggrieved person or his Power of Attorney is not entitled to file complaint under the Consumer Protection Act, 1986 (hereinafter referred to as the Act).
This is erroneous. It is to be reiterated that under the Act, technicalities are not to be encouraged because the only procedure, which is prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties.
Repeatedly it has been observed that complaint alleging defects in goods or deficiency in service can be entertained on receipt of a letter stating sufficient facts and the cause of action. If required, it can be entertained after recording statement of the Complainant and if grounds are made out, notice is required to be issued to Opposite Party.
This is forgotten and we still erroneously try to adhere to the procedure prescribed under the C.P.C. or elsewhere.
20. In R.P.No. 2697 of 2008 the National Commission considered the effect of power of attorney in filing the complaint and it was held:
So far as the issue of filing the complaint by a power of attorney holder is concerned, there is no provision in the Act debarring the power of attorney holder to file the complaint. In general law, the power of attorney can file the suit if he is authorised to do. Therefore, we are of the view that the complaint could be presented by the holder of power of attorney in the instant case.
21. It is not a case one person authorized executing power of attorney specifically providing for filing the complaint. The Human Rights and Consumer Cell which has not been registered under the provisions of any law for the time being in force has filed the complaint claiming it to be registered under the provisions of Societies Registration Act. The learned counsel for the petitioner has placed reliance on the decision of the Bihar State Commission and Rajasthan State Commission in Punjab National Bank v. Ramakant Yadava reported in I (1997) CPJ 44 and GLDL Investors Consumers Association v. Golden Land Development India Limited reported in II (2004) CPJ 456 respectively.
22. In Ramakant Yadava(supra), son of the savings bank account holder filed complaint and the State Commission opined that the account holder instead of his power of account holder could have filed the complaint. The State Commission held that it was not going to dismiss the complaint on the ground of maintainability alone and it dismissed the complaint on other counts. The decision is not of much assistance to the case of the petitioners.
23. GLDL investors consumer association(supra) is a case where the State Commission held that complaint filed by consumer association not registered under Company Act or any other law is not maintainable. It was held:
At the very outset we enquired about the learned counsel of the appellant as to whether the appellant Association is registered under the Companies Act, 1956 or under any other law for the time being in force as required by the definition of the term complainant given in Section 2(b)(ii) of the C.P. Act (the Act). The learned counsel for the appellants in both these appeals was fair enough to state at Bar that the said Association was not so registered either under the Companies Act or under any other law for the time being in force. Once that is the position the appellant association could not have maintained the complaint filed by it, may be it might have been authorized by a resolution to file compliance for and on behalf fo the aggrieved members. Viewed thus the impugned order in both the appeals does not call for any interference. The appeals are accordingly dismissed with liberty to the members of the appellant association to file their individual or joint complaints, as the case may be on the same cause of action before the D.F. If they do so they would be entitled to benefit of Section 14 of the Limited Act in regard to the limitation for filing the complaint.
24. Section 12of the Consumer Protection Act provides for the manner in which complaint can be filed before the District Forum. It reads as under:
12. Manner in which complaint shall be made.”(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by “
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed.
(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected:
Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant:
Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received.
(4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act:
Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force.
Explanation. - For the purpose of this section œrecognised consumer association? means any voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force?.
25. The Consumer Protection Cell is not a voluntary consumer organization nor is it registered under the provisions of the A.P. Societies Registration Act, 2001 and its area of activity is limited to the residents of BHEL and its members. The special power of attorney executed by the respondent is not attested by gazette officer as required under the provisions of Consumer Protection Regulations and is not intended to serve specific purpose and as such it is not a valid document. It reads as under:
œAs such I hereby appoint Human Rights and Consumer Protection Cell “ A Legal Help Wing of BHEL MIG Residents Welfare Society (Regd.No.2351/2004) “ Registered Under A.P. Societies, Registration Act, 2001 Represented By its General Secretary Thakur Rajkumar Singh, R/o BHEL MIG 982, Hyderabad -502 032, A.P. as my true and lawful attorney do the following acts, deeds and things:
1. To represent me, appeal in-person and if necessary appoint counsel to file complaints, written statements, plaints, petitions, counters. To file affidavits, give evidence, and to give instructions for prosecuting the cases.
2. To file fresh appeals, suits, applications, Crl.Cases either in original or appellant courts or commissions or departments (State and Central Govt.) in respect of dispute/grievance/complaint. To compromise and to make settlement with the parties and to withdraw the suits, complaints, appeals, etc.
I hereby agree that I will not myself inconsistently do or act or execute any document or thing as enunciated above during the subsistence of this Power of Attorney?.26. It is settled law that power of attorney holder cannot depose the facts with in the knowledge of the consumer. The counsel for the respondent filing her vakalat by the authority of General Secretary of Consumer Protection Cell in the CC and RP does not cure the irregularity as she was appointed by the general secretary of Consumer Protection Cell and not by the respondent. The complaint, viewed from any angle is not maintainable in the present form. As such the order of the District Forum is liable to be set aside.
27. In the result, the revision petitions are allowed setting aside the order of the District Forum. The complaints are dismissed giving liberty to the respondents to file fresh complaints and the time spent for prosecuting the present complaint shall be considered for the purpose of reckoning or computation of period of limitation.