Non-lawyers Can Appear In Consumer Courts

In an important recent decision (III (2011) CPJ 33 (SC)), the Supreme Court has upheld the right of non-lawyers to appear before consumer courts.

Bar Council of India, which was one of the parties had contended that according to Sec. 33 of the the Advocates Act (which reads: Advocates alone entitled to practise.-Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act.), only advocates can plead and argue before the consumer courts. Therefore, it prayed for barring non-advocates from representing parties before consumer courts.

But the Supreme Court did not agree with this argument. It said that Consumer Protection Rules made under the Act speak of "the complainant or his authorized agent" and therefore give the complainant has the option of appearing personally before the consumer court or have his authorized agent appear for him. The same thing holds for the defendant also. The Court pointed out that engagement of advocates, especially when the claim is for a small amount may not be economically viable. Also, if the claim involves deficiency in service, a professional like a doctor, architect or an engineer may be more suitable to present the case than an advocate. Such an interpretation of the law is not only literally correct, but also promotes the declared objectives of the law. It helps the claimant and the defendant equally and it does not violate any provision of the Advocates Act, the Court noted.

The Court also noted that non-advocates are permitted to appear in various forums such as the Income Tax Tribunal, Sales Tax Tribunal and the Monopolies and Restrictive Trade Practices Commission. It is the legislative intention that non-advocates appear before many judicial and quasi-judicial bodies, it said.

For these reasons, the Supreme Court ruled that authorized agents who are not professional advocates can appear for the parties before consumer courts. To prevent non-advocates making a profession out of appearing as authorized agents, the Supreme Court directed the National Consumer Commission to frame detailed rules regarding appearance of agents. It suggested creating an accreditation process for agents who wish to collect fee and a bar on collecting fees by non-accredited agents.

G.L.Nagaraj Urs, Mysore Grahakara Parishat

MCC Clarifies On SAS Property Tax

Mysore City Corporation has again clarified about SAS property tax. Since the circular issued to its staff is self-explanatory, its translation is reproduced below in full. 

No.HAPR/78/2011-12 

Dated 6-9-2011 

Reminder 

Sub: SAS property tax declaration 

Ref: Reminder sent from this office with the same number and dated 26-7-2011

The returns and the tax submitted by the property tax payers under the Self Assessed Property Tax scheme to zonal offices have to be inspected and received by the concerned officials and the self assessed tax of the property owners should not be rejected. You were directed by the reference letter that if there are differences in the self assessed tax declaration, the revenue inspectors must give a notice and obtain the difference according to the rules.

But, a complaint has been lodged by Mysore Grahakara Parishat that harassment of the tax payers by the revenue inspectors has again started in the zonal offices, the instructions of the reference letter are not being followed, and saying that they have instructions from the MCC Commissioner to accept only taxes which follow their calculations, SAS taxes are not being accepted in some zonal offices.

Therefore, we are once again informing you that as indicated in the reference letter, if the public calculate their tax, fill out the SAS form and come to pay the tax, such tax returns should be accepted and the payment should be received. Afterwards, if on inspection, it is found that there is a difference, steps should be taken to obtain the difference.

Assistant Commissioners/Assistant Revenue Officers and revenue inspectors are instructed to follow the above directions. Such complaints should not come again. If such complaints are received again, you are warned that suitable action will be taken on the concerned officials.

Sd/-
Revenue Officer
Mysore City Corporation

It is welcome that MCC Commissioner and Revenue Officer have given such a clarification to prevent harassment of the tax payers. They are to be congratulated. Below are the scanned copies of the above letter and the reference quoted in it. The public can make use of them.

(Click on the images for better clarity)

Dr.T.N.Manjunath, Mysore Grahakara Parishat

Check Computer Generated Receipts

Sir, Recently I went to a supermarket in Mysore and purchased a few things. After coming home, I took a look at the receipt and saw the word "Jaggery" on it. Since I had not purchased any jaggery, I started wondering how it got printed on the receipt. I checked all the things listed on the receipt with the things I had actually bought and I found out that a packet of dried peas which I had bought was not listed on the receipt. On closer scrutiny, I found that the number printed under the bar code on the pea packet was 9031223 while the number against the entry "Jaggery" on the receipt was 9031233 (one digit difference). The price of the pea packet was Rs. 18 while I had been charged Rs. 46 for the jaggery I had not bought.

When I went to the store to get the refund of Rs. 28, I was told that even if the bar code on the packet is slightly damaged, the bar code scanner can not read it. This happens quite often. Then, the person at the counter has to punch in the number (beneath the bar code) manually for the computer which generates the receipt. Naturally, mistakes happen in the punching and the item bought does not get billed. Instead the customer is billed for an item he did not purchase.

Many people are under the impression that since the receipt is generated by a computer, it is always correct. But this impression is wrong. Consumers should check the receipt to make sure that they are not wrongly billed.

B.Vaikunth Shenoy, Mysore Grahakara Parishat

Electricity Rate Hike: Objections, CESC Replies & Rebuttals

Chamundeshwari Electric Supply Corporation (CESC) has proposed a rate hike for 2012 before the Karnataka Electricity Regulatory Commission. It has submitted its reply to MGP's objections to the rate hike. KERC is holding a public hearing at 11 AM on 14-9-11 at the DC's Office in Mysore about the CESC application. MGP will be submitting its rebuttal of CESC replies at the hearing. MGP's objections, CESC replies and MGP's rebuttal of these replies are given below.

Objection No.1: KERC approved the present tariff as a multi-year tariff for the years 2011-13. Sec. 61(f) of the Electricity Act, 2003 (EA) mandates multi-year tariffs. There are two reasons for fixing multi-year tariff rather than annual tariff, i) to encourage efficiency of supply companies and ii) to reduce regulatory uncertainty. Fixing the tariff once again when there are two years left on the original period of the multi-year tariff defeats the whole purpose of multi-year tariff and violates the EA. It should not be done. 

CESC Reply: The present application is supplemental to the MYT order for 2011-13. TheMYT process is continuous and not one time application. There are certain deferred claims on the above MYT order which has to be claimed in the subsequent APR applications. So the present application is in order and there is no violation of the EA.

Rebuttal: The MYT process is not meant to be continuous. The ESCOMs are supposed to make accurate projections and come before the KERC only once in every 3-4 years. If they can not make accurate projections, hence suffer a loss and ask for tariff revisions every year, there is no point to the MYT system. The lawmakers realized that the ESCOMs should be made efficient and accountable and that is why they have legislated MYT. Unfortunately, the spirit of the law is being violated in Karnataka, since we have filed objections to electricity rate increases before KERC almost every year from 2006 (on 31-7-06, 21-7-07, 9-9-09, 25-11-10 and 25-8-11). This is a travesty of the concept of multi-year tariffs.

Objection 2: Sec.61(g) of EA intends that the tariff should reflect the actual cost of power. Since all the power supply companies in Karnataka have filed for identical tariff increases, it is obvious that the tariff proposed by them in general, and CESC in particular, does not reflect the actual cost of power. The present rates and the proposed rates are identical for all the ESCOMs. The actual cost of supply of power for all these companies can not be the same to the last decimal place when one takes into account, the different locations, different distances to power sources, different demographics and different costs of living. It is clear that the ESCOMs have not determined the cost of power supply in any scientific manner, but are presenting fictitious numbers. 

CESC Reply: CESC is filing the present application based on actual accounts. 

Rebuttal: Not only should the application be based on actual accounts, the tariff asked should also be based on the actual accounts. The different ESCOMs must have different Operations and Maintenance costs and different income-expenditure gaps. How then can they all ask for the same tariff hike? The fact that all ESCOMs have always asked for the same tariffs shows that they are acting as a cartel and are trying to illegally fix the price of electricity in Karnataka. 

Objection 3: Sec.5.9.4 of the National Electricity Policy states that a more regulatory approach of setting standards for energy conservation would be followed. The most obvious regulation to promote energy conservation is to have higher tariffs for higher consumption. Increasing the tariff by the same amount irrespective of consumption goes in the opposite direction. 

Rebuttal: Higher tariff for higher consumption is true in the current proposal, but the tariffs for high and low consumption have come closer because of the common increase. If the tariff continues to be increased by the same amount for all consumers, the gap between the rate paid by energy savers and the rate paid by energy guzzlers will become even less. To see this clearly, let us look at the present rates. The highest rate of Rs. 5 per unit is 238% of the lowest rate of Rs. 2.10 per unit. If the cost per unit is increased by 10 Rs. for all consumers, the lowest tariff would then be 12.10 per unit while the highest would be only Rs. 15.00. So the highest rate will be just 124% higher than the lowest rate. When the gap between the two tariffs keeps going down, there will not be enough incentive to economize and there will not be enough deterrent to wasteful spending. This is a violation of Sec. 5.9.4 of the National Electricity Policy. To be consistent with the NEP, the rate at which the higher slab tariff increases should be much higher than the rate at which the lower slab tariff increases. In the table above, if the lowest rate Rs. 2.10 is increased to Rs. 2.98, the highest rate Rs. 5 should be increased to at least Rs. 7.10. 

Objection 4: Rural areas are suffering heavy power cuts in contrast to urban areas. This discrimination by CESC is against both equity and Sec. 5.1 of the National Electricity Policy. Electricity Regulatory Commissions of other states have acted to stop such discrimination. Karnataka Human Rights Commission has written to the state government on this issue. The Commission is urged to order an end to such discrimination. 

CESC Reply: CESC is arranging 12 hours of single phase supply to rural areas. The power supply schedule is subject to variation depending on availability. CESC is not discriminating among consumers in arranging power supply. 

Rebuttal: CESC may be arranging for 12 hour supply in rural areas. Is it not giving much longer continuous supply to cities? Is this not discrimination?

V.Mahesha, Mysore Grahakara Parishat 

Restriction Removed On Right To Information Queries

In a recent and significant decision, the Central Information Commission has said that Right to Information queries need not be on a single subject.

In earlier judgments, Chief Information Commissioners Wajahat Habibullah and A.N.Tiwari had ruled that an RTI application should be limited to a single subject matter. If the applicant seeks information on more than one subject matter, he has to file a applications and pay Rs. 10 for each subject matter.

But in the latest order (given by Information Commissioner Shailesh Gandhi on 28-8-11), the CIC has reversed itself. Referring to the earlier decisions, it observes 

"What constitutes a 'single subject matter' has neither been defined in the RTI Act, the rules and regulations framed thereunder and not even by the then Chief Information Commissioners... No parameters have been laid down...by which an applicant and the Public Information Officer can determine whether the information sought pertains to one subject matter. In the absence of any means to determine what tantamounts to 'one subject matter', the PIO can, at his discretion, furnish part information claiming that the remaining information sought in the RTI application pertains to a different subject matter for which a separate RTI application is required to be filed...The exercise of such discretion by the PIO is likely to be subjective resulting in arbitrary curtailment of the fundamental right to information of citizens and unnecessary expenditure of money. In the absence of any clear definition of what 'one category of request' means it would only lead to arbitrary refusals of information under the RTI Act, leading to clogging of the appellate mechanisms." 

Sec. 14 of the Karnataka Right to Information Rules made under the RTI Act says that a request should relate to one subject matter. If an applicant seeks information on more than one subject matter, he should make separate applications. So the limit to one subject matter has been made a part of the law itself in Karnataka (The legality of making such a rule is itself questionable. The function of rules is to support and implement the law under which they are made. But rules can not impose conditions which are absent in the law. So the above Karnataka rule could be itself illegal). 

Despite the fact that the limit to one subject matter has been made a part of the law in Karnataka, the logic of the latest CIC judgment is still applicable. KRI Rules also do not define what constitutes a single subject matter nor do they lay down parameters by which an applicant and the PIO can determine whether the information sought pertains to one subject matter or more than one. So Sec. 14 of the KRI Rules which limits RTI requests to one subject matter can not be enforced according to the latest CIC decision. 

But there are no clear rules of precedence in the Right to Information framework. So the State Information Commission need not follow the judgments of the Central Information Commission and an Information Commission is not even bound by its own earlier decisions. As a result, the next time an Information Commission faces the single subject problem, it can rule in any way.

Maj.Gen. (Rtd.) S.G. Vombatkere, Mysore Grahakara Parishat 

Dangerous Road Hump On KRS Road

KRS Road which was closed for more than a year has been finally reopened for traffic after major upgradation. An unwelcome feature of the upgraded road is the road hump between the Railway Museum and the LIC building.

This has already caused several accidents especially at night, since there are no street lights.

The Indian Roads Congress (IRC), a consultative body consisting of the top experts on the subject has published the definitive guidelines (IRC: 99-1988) on the construction of road humps. These guidelines say that road humps are meant mainly for residential areas and minor roads. Their use on major roads is not considered good engineering practice and IRC explicitly discourages it. So one probably should not have a road hump on KRS Road. 

According to the guidelines, a driver should not lose directional control when crossing the hump. But auto drivers tell us that several two-wheeler drivers are losing control over this hump. The reason seems clear. The guidelines suggest a design with a height of 4 inches and a width of 12 feet for controlling the speed of two-wheelers and cars to 25 kmph. This can be used on roads on which heavy traffic is very rare. If there are many busses/lorries plying such roads, they will feel a fairly severe jolt at 25 kmph and so the vehicles will cross the hump at lower speeds forcing the following traffic to speeds much less than the safe speed. For roads on which lorries and busses are the dominant traffic, the width of the hump must be increased to 16 feet to limit the speed of such traffic to 25 kmph. 

It is seen from the photo that the hump on KRS road is about 6 inches high and only 5 feet wide. It is no wonder two-wheeler drivers lose control over the vehicles when crossing it. Busses and lorries almost come to a stop while crossing it, causing more accidents. 

It is not clear who is in charge of laying road humps in Mysore, the Corporation or the police. Whoever it is, it is clear that the IRC Guidelines are not being followed. It is doubtful if any of the road humps in Mysore meet the above specifications. Badly designed road humps instead of reducing accidents, worsen the problem. 

D.V. Dayanand Sagar, Mysore Grahakara Parishat