SURESHCHANDRA MANUBHAI DESAI vs CHETANBHAI B.JOSHI

THESE applications have been submitted by the common applicant Sureshchandra Manubhai Desai, Partner of S.M. Desai and Company of Valsad, for transfer of Complaint Nos. 48/98 to 76/98 as well as Complaint Nos. 81 /98,89/98,90/98,91 / 98 and 100/98 from District Forum, Valsad to any other District Forum. The opponents in these transfer applications are different. There are 34 flat owners who have filed 34 complaints against the common applicant Sureshchandra Manubhai Desai, who is the builder of the flats. The common ground made out in all the applications is that, after the tenure of Mr. N.K. Desai, President of the District Forum, came to an end, one Vibhaben Dipakbhai Desai, has been acting as a Member of the Forum. The present 34 opponents filed a complaint in District Forum, Valsad, against the applicant S.M. Desai and engaged the Advocate Mr. Dipakbhai B. Desai who is the husband of Vibhaben Desai. Certain allegations have been made in paras 3, 4 and 5 against the District Forum, Valsad, presided over by Smt. Vibhaben Desai. So, when the transfer applications were submitted to us for staying further proceedings, this Commission passed an order on 13.2.1999 to stay further proceedings in the 34 pending matters and requested the District Forum, Valsad, to submit its'' confidential report in a sealed cover. As no report was submitted by 5.3.1999, this Commission had to pass a further order particularly requesting Smt. Vibhaben D. Desai who is a Member of the District Forum, Valsad, to submit a confidential report to this Commission before March 24, 1999.

HOWEVER, for disposing of the present 34 applications, it is not necessary to wait for the report that may be forwarded by Vibhaben Desai, for an obvious reason that a clear allegation is made in each of the transfer applications that Vibhaben D. Desai is a Member of District Forum, Valsad, in which Depakbhai B. Desai has appeared as Advocate for the opponents. After the tenure of Mr. N.K. Desai came to an end, no eligible person has taken over as President of the District Forum, Valsad. We do not want to enter into the other allegations made in paras 3,4 and 5 of the transfer applications, but each of the 34 opponents sent a reply to the transfer applications, which were received by this Commission on 4.2.1999, and in para 5 of each reply it is stated, "Mr. Dipakbhai Desai has been relieved as our Advocate in the disputed cases before the District Forum, Valsad and now he is no longer there to represent us".

There is, therefore, no dispute that Mr. Dipakbhai B. Desai appeared as an Advocate for the opponents before the District Forum, in which his wife Vibhaben Desai was a Member. This was shocking and scandalous. That is why in the order dated 23.2.1999 this Commission had observed that the allegations made in para 4 of the applications for transfer are serious. We want to make it clear that we are not expressing any opinion regarding the allegations made in the transfer applications, but we will decide the applications on the simple ground that when a person, whose nearest relative is appearing as Advocate before him or her, cannot sit as a quasi-judicial authority to decide the disputes.

These applications are, therefore, adjourned to for passing final orders. Dt.

ON 5.3.1999, a direction had been issued to Smt. Vibhaben Dipakbhai Desai to submit her confidential report in respect of the allegations made in the transfer application Nos. 1/99 to 34/ 99 and the application submitted by Sureschandra Manubhai Desai before the District Forum on 11.2.1999, for transfer of the proceedings. A copy of the transfer application No. 1 /99 was also sent alongwith this direction. Till today, no report has been received from Smt. Vibhaben D. Desai.

MR. Kaushik Acharya, Advocate from Ahmedabad has appeared with MR. Devang Acharya, Advocate from Valsad, to represent the applicants in these 34 matters. An allegation was made in the several replies filed by the opponents individually that according to them MR. Devang Acharya was a nephew of MR. A.T. Acharya, Registrar of the State Commission, and he was in a position to procure orders according to his desire from this Commission. When this allegation was brought to his notice, MR. Devang Acharya stated that he was in no way related to MR. A.T. Acharya and the allegation made in these replies completely baseless. MR. Kaushik Acharya also states that he is not related to the Registrar of this Commission in any manner. As observed on 8.3.1999, the fact of Mr. Dipakbhai Desai, Advocate, appearing since 23.4.1998 before the Bench in which his wife Vibhaben Desai was also a Member remains undisputed. The President of Surat District Forum has disclosed this fact in his confidential report to this Commission. The opponents also indirectly admitted in their replies that the Advocate Dipakbhai Desai had appeared before his wife Vibhaben Desai before filing of the transfer applications, and that he retired from the 34 cases. We have already observed earlier that this fact is obviously shocking to judicial conscience. Perhaps, that is the reason why Vibhaben Desai might not have sent her confidential reply. As we confine ourselves to the issue regarding transfer of 34 cases, we do not give a clean chit to the opponents also who are admittedly engaged in the business of building construction. In order to find out whether the 34 matters may be heard by a Bench without the presence of Smt. Vibhaben Desai, we enquired from Sureshchandra Manubhai Desai, one of the applicants, as well as from Mr. Devang Acharya, Advocate for the applicants, regarding the occupation of the other Member, Mr. Dhaneshbhai Shah, and we came to learn that the other Member, Mr. Dhaneshbhai Shah was engaged in the business of building construction at Vapi as well as at Bombay. The original complaint is, obviously, against a builder. We, therefore, are of the view that these 34 applications cannot be heard by any Bench in which Smt. Vibhaben Desai or Mr. Dhaneshbhai Shah is a Member. The only alternative for us is to transfer the proceeding to District Forum at Surat. Neither in Valsad nor at Surat, there is a full-time District Forum to take care of consumer cases. We have learnt that Mr. J.P. Brahmbhatt is to take charge as President of Surat District Forum. These 34 cases are, therefore, transferred to the District Forum presided over by Mr. J.P. Brahmbhatt, who may hold his sittings either at Surat or Valsad for the convenience of the consumers, as the case may be.

WHEN the aforesaid unpleasant facts have come to our notice, we will be failing in our duty, if we do not bring the same to the notice of the concerned authorities. We are discharging this duty with a heavy heart and much to our dislike.

COPIES of this order, may therefore be forwarded to (i) Minister for Consumer Affairs, State of Gujarat, (ii) Additional Chief Secretary to Government (Consumer Affairs), and (ii) the Bar Council of Gujarat for any action, that may be thought suitable. We again make it clear that we are not expressing any opinion whatsoever, regarding the conduct of Smt. Vibhaben Desai or Dipakbhai Desai, except that it unnecessarily created an atmosphere of suspicion in the minds of the litigants, which must therefore result in the transfer of these cases to another Forum. The transfer applications are accordingly allowed. [P.S. After the above order was passed at 12.30 today, Ms. Zankhna Vinodbhai Desai, daughter of Mr. Dipakbhai Desai''s sister, brought a letter addressed by Smt. Vibhaben Desai to the President of this Commission at 1 p.m. We have gone through the said letter and we find nothing in it which can induce us to take a different view. The letter be taken on record.] Transfer Application allowed.