Jaipur Vikas Pradhikaran vs Ashok Kumar Choudhary & Ors

JAIPUR VIKAS PRADHIKARAN ....Appellant

VERSUS

SRI ASHOK KUMAR CHOUDHARY & ORS. ....Respondent(s)

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. The present appeal, under section 38 of the Advocates Act, 1961,

(hereinafter referred to as "the Act") is filed against the final

judgment dated 24.03.2002 of the Disciplinary Committee of the

Bar Council of India [hereinafter referred to as Disciplinary

Committee] in BCI Transfer Case No. 74 of 1995, whereby the

Committee dismissed the complaint of the appellant herein holding

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that no case of any misconduct is made out.

2. The facts leading to the filing of the present case are that the

present complaint was filed under section 35 of the Act by Jaipur

Development Authority against the present respondents before the

State Bar Council of Rajasthan in the year 1994 which was

entrusted to the Disciplinary Committee of the State Bar Council of

Rajasthan. Since the proceedings could not be completed in the

stipulated period of one year, the complaint was transferred to the

Bar Council of India in the year 1995, registered as Transfer Case

No. 74 of 1995.

3. The allegations made in the complaint was that appellant engaged

the Respondent No.1 herein on retainer basis in order to defend its

cases pending in the different Courts at Jaipur, Rajasthan. In the

year 1990, Respondent No.1 was appointed to defend Jaipur

Development Authority in some Reference cases under section 18 of

the Rajasthan Land Acquisition Act. Also, on 05.10.1990,

Respondent No.1 was engaged to defend Jaipur Development

Authority in the Land Acquisition Reference No. 14 of 1982, Abdul

Samad & Ors Vs. Jaipur Development Authority in Civil Court at

Jaipur City. Even his retainership fee was enhanced by additional

amount of Rs. 600/- per month.

Page 2 of 18 4. The Land Acquisition Reference No. 14 of 1982 was fixed for filing of

the Written Statement in the Court on 07.12.1991. The Respondent

No. 1 neither appeared in the Court on 07.12.1991, nor filed Written

Statement on behalf of the appellant. Consequently, the Court

closed the opportunity for filing the Written Statement on behalf of

the appellant vide order dated 07.12.1991. The Respondent No.1 did

not inform the appellant about the said order dated 07.12.1991 of

the learned Court. The Claimant in the said Land Acquisition

Reference No. 14 of 1982 examined the witnesses in the Court, but

the respondent neither cross-examined those witnesses nor did he

inform the appellant about this. Also, in the said Reference, the date

was fixed as 10.11.1993 for producing of the entire evidence but no

intimation regarding the aforesaid date was given by the

Respondent to the appellant, as a result of which evidence of the

Appellant was ordered to be closed by the learned Court. The

Respondent also did not inform the appellant about the aforesaid

order dated 10.11.1993.

5. Ultimately, the Land Acquisition Reference No. 14 of 1982 was

decided on 02.12.1993 against the appellant and in that Judgment,

an award of Rs. 1.25 crore was announced by the Court. Even the

final order passed by the Court was not conveyed to the appellant.

The appellant came to know about the passing of the aforesaid

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order for the first time on 24.03.1994 when Mr. Manak Chand

Surana - Respondent No. 2 filed Execution Petition No. 20 of 1993

in the Executing Court and another Execution Petition was filed by

Mrs. Asha Gupta, wife of Respondent No. 3.

6. The appellant sought indulgence of the State Bar Council of

Rajasthan for taking appropriate action against the respondents as

envisaged under section 35 of the Act on the aforesaid grounds. It

was also contended that Respondent No. 2 work in the same

chamber in which the Respondent No.1 has been sitting and that

Respondent No. 3 is the brother-in-law of Respondent No.1. Hence,

in this manner, all the Respondents are closely related to each other

or friends and in connivance of Respondent No.1, the Respondent

No. 2 and wife of Respondent No. 3 purchased the rights in the said

property in order to earn profit out of the property in dispute which

amounted to professional misconduct. The Respondent No.1

intentionally acted against the interest of the appellant in defending

the said Reference.

7. The complaint was entrusted to the Disciplinary Committee of the

State Bar Council of Rajasthan, but since the proceedings in the

complaint could not be concluded by the Disciplinary Committee of

the State Bar Council of Rajasthan within the stipulated period of

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one year, the same was transferred to the Bar Council of India in

the year 1995.

8. The Bar Council of India vide final Judgment dated 24.03.2002,

dismissed the complaint. It is against this judgment of the Bar

Council of India dated 24.03.2002, that the Jaipur Vikas

Pradhikaran has preferred an appeal under section 38 of the Act,

upon which we heard the learned counsel appearing for the parties.

9. We heard the learned counsel appearing for the parties who had

taken us through the entire records. Counsel appearing for the

appellant submitted before us that the order passed by the

Disciplinary Committee of the Bar Council of India was illegal and,

therefore, is liable to be set aside. It was submitted by the counsel

that the findings of the Disciplinary Committee that the allegation

that the respondent no.1 did not conduct the case of the

complainant properly was not proved on file is incorrect and against

the records. He also assailed the findings of the Disciplinary

Committee to the effect that the respondent no. 1 was not at all

negligent in conducting the case of the complainant and submitted

that the said findings are contrary to the records on which he had

relied upon. Various instances of alleged misconducts,

misdemeanors and misdeeds of the respondent no.1, respondent no.

Page 5 of 18 2 and respondent no. 3 were brought out by analyzing and referring

to the contents of the complaint and also the evidence led by the

parties.

10.The counsel appearing for the appellant also analyzed the sequence

of events and placed before us a list of dates to support the

contention that the respondent no. 1 on and after accepting the

engagement from the appellant acted in violation of the professional

ethics and also abused the trust reposed on him. He has in that

context placed the following facts for our consideration.

11.He submitted that the complaint which was filed by the appellant

stated that the respondent no. 1 was retained by the appellant

institution in the year 1989 to conduct all such cases pending

before the Civil Court filed against the institution. That the

respondent no. 1 was also authorised in 1990 to appear and plead

in all the reference cases filed against the appellant herein and also

in all pending references and due to the aforesaid engagement, the

appellant granted a special enhancement of a sum of Rs.600/- per

month to the respondent no.1 in his monthly retainership. It is also

disclosed from the records that the reference case no. 14/1982

which is the basis and the subject matter of the complaint filed, was

a land acquisition matter under Section 18 of the Land Acquisition

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Act pending in the Civil Court, Jaipur City, Jaipur wherein the

respondent no. 1 was authorised to conduct the case on behalf of

the appellant as a counsel. The authorisation was on 5.10.1990

and he started conducting the said case from the said date. It is,

however, also disclosed from the records placed before us that the

aforesaid reference case no. 14/1982, the Collector passed an

award in favour of the land owners, namely, Sh. Abdul Samad,

Abdul Latif and Abdul Hamid determining the land compensation of

Rs.16,200/- only for the entire land.

12.One Mrs. Shanta Sharma, thereafter purchased the right to seek

compensation in the said land on 20.9.1980 and 5.2.1982. On

30.1.1990, Smt. Shanta Sharma executed an assignment deed in

favour of relatives of respondent no. 2, namely, Vimla Surana,

Rajendra Surana, Jitendra Surana and Manak Surana and Smt.

Asha Gupta, wife of respondent no.3, who also happens to be the

sister of respondent no.1. It is shown from the records that the

respondent no.2 and the respondent no.3 have been appearing for

the claimants claiming higher compensation before the Reference

Court after the relatives of the respondent no. 2 and the wife of

respondent no.3 got themselves substituted in place of original

owners. They were contesting parties in the Reference Court who

were represented by respondent no.2 and the respondent no.3.

Page 7 of 18 13.He also pointed out that on 19.1.1990, respondent no. 1 appeared

for the wife of the respondent no. 3 who was his sister, she having

been substituted as a claimant in the proceeding. Despite the said

fact, it appears that on 5.10.1990, the appellant engaged

respondent no.1 as its counsel, which engagement was accepted by

the respondent no. 1 without disclosing the fact that he had already

appeared in the case on behalf of respondent no.3. Be that as it

may, date was fixed in the said proceeding on 7.12.1991 when the

written statement was to be filed. It appears that the respondent

no.1 who was representing the appellant herein, did not appear in

the proceeding on that date nor had he prepared the written

statement. Since the written statement was not filed, and the

respondent no. 1 also did not appear on the date fixed, the defence

of the appellant was struck off, but the said fact was not brought to

the notice of the appellant by the respondent no.1. Thereafter in the

said reference proceedings, a date was fixed for leading evidence.

On the said date i.e. 10.11.1993, respondent no. 1 informed the

court that no evidence is to be produced on behalf of the appellant.

In view of the aforesaid statement made by the respondent no.1, an

order was passed closing the evidence and fixing the matter for final

hearing.

14.The reference was argued thereafter and it is the contention of the

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appellant that the respondent no. 1 did not argue the said reference

properly. Be that as it may, on 2.12.1993, an order came to be

passed enhancing the compensation for the acquired land from

Rs.16,200/- to Rs.1.25 crores. The allegation of the appellant is

that even the said order was not communicated and that the

appellant came to know about the aforesaid position and also of the

order increasing the value of compensation only from the execution

case filed. Further allegation was that when the defence was struck

out, the respondent no. 1 did not appear nor did he take any steps

for getting the said order recalled. He also did not even

communicate the order and even thereafter, there was no

communication when the final order was passed despite the fact

that he was required to inform the development of the case at each

step. So far the respondent no. 2 and 3 are concerned, the

allegation was that the said respondent no. 2 and 3 are also

Advocates who share the same chamber with respondent no. 1.

They also filed common and joint application for allotment of

chamber which indicate that they are working together and,

therefore, they are also parties to the aforesaid conspiracy of

obtaining practically an ex-parte order against the appellant so as to

derive illegal benefit.

15.Be it stated herein that later on the application filed by the

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appellant, the aforesaid judgment and order of the Reference Court

has since been set aside.

16.In view of the aforesaid alleged lapses and willful default on the

part of the respondent no.1, the aforesaid complaint was filed by the

appellant under Section 35 of the Advocates Act alleging misconduct

against the respondent no.1, as also the respondent no. 2 and 3 on

the ground that the respondent no.1 appeared for claimant prior to

his engagement as counsel for the appellant. It was also alleged

that since an assignment deed was made out in favour of the sister

of the respondent no.1 on 30.1.1990, the respondent no. 1 should

not have accepted the brief and the very fact that he accepted the

engagement without disclosing the material facts, proves and

establishes the allegation of misconduct.

17.The various contentions of the counsel appearing for the appellant

were, however, refuted by the counsel appearing for all the

respondents, namely, respondents no. 1, 2 and 3. They have relied

upon the replies filed by the said respondents to the complaint filed

and also on the findings recorded by the Disciplinary Committee

while exonerating all the respondents.

18.In the light of the aforesaid submissions, let us examine the facts of

the present case. From the facts disclosed hereinbefore, it is

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established that an award was passed by the Collector in respect of

the land in question on 4.3.1982 determining the value of the land

at Rs.16,200/- for the entire land. At that stage the claimants were

the three land owners. After the aforesaid award was passed, the

three land owners, namely, Abdul Samad and two others

transferred the right to receive compensation to Smt. Shanta

Sharma on 20.9.1980 and 5.2.1982. Smt. Shanta Sharma

thereafter executed the assignment deed in favour of relatives of

respondent no. 2 , namely, Vimla Surana, Rajendra Surana,

Jitendera Surana and Manak Surana in whose favour also the

aforesaid assignment deed was made out. The records available

also disclose that the aforesaid relatives of respondent no.2 and

Smt. Asha Gupta, wife of respondent no.3 also got themselves

substituted in the reference proceedings, which is Reference Case

No. 14/1982. These persons got themselves substituted only on the

basis of such assignment without which they had no right to get

themselves substituted in place of original owners. After

substitution, Smt. Asha Gupta, the wife of respondent no.3 and

sister of respondent no.1 and the aforesaid relatives of respondent

no.2 were parties in the reference proceedings as claimants.

Respondent no. 1 appeared in the said reference case on 19.1.1990

for his sister (wife of respondent no.3).

Page 11 of 18 19.Despite the aforesaid fact, the respondent no.1 accepted the

engagement given to him by the appellant as its counsel to contest

the claim of the aforesaid contesting claimants, one of which was

his own sister. We also find from the records that in fact the

respondent no.1 was the retaining counsel of the appellant from the

year 1989 and, therefore, he could not have entered appearance on

behalf of the wife of the respondent no. 3 on 19.1.1990. The

respondent no. 1 therefore not only appeared for the wife of the

respondent no. 3 in the same reference in which he also appeared

for the appellant, who were contesting the claims of the claimant

including his own sister. These activities of the respondent no. 1

were unbecoming of a professional lawyer and also clear cases of

misconduct.

20.The defence taken was that there was some confusion with regard

to the appearance slip on 19.1.1990 for the appearance slip which

was filed in the aforesaid reference case on 19.1.1990 was meant for

a different case. But the said appearance slip appears to have been

manipulated later on by making over-writing on the same. The

misdemeanor of the respondent no. 1 did not end only with the

aforesaid position. On 7.12.1991, the written statement was

required to be filed, but no such written statement was prepared

nor was it filed and even respondent no. 1 did not appear in the said

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proceedings on that date, for which the defence of the appellant was

struck off. Even the said fact was not brought to the notice of the

appellant by the respondent no.1. Even thereafter when the matter

was listed for recording of evidence on 10.11.1993, the respondent

no. 1 informed the court that no evidence was being produced on

behalf of the appellant. That statement appears to have been made

without any positive instructions of the appellant in that regard and

without even informing the appellant about the said fact.

Consequent upon the aforesaid representation made by the

respondent no. 1, the evidence of the appellant was closed on

10.11.1993 and the case was fixed for arguments. On 2.12.1993

the order was passed by the Reference Court enhancing the

compensation from Rs.16,200/- to Rs.1.25 crores. The said order

was also not communicated by the respondent no. 1 to the

appellant.

21.Counsel appearing for the respondent no. 1 however, during his

course of arguments, submitted that he was not required to apply

for any certified copy and send the same to the appellant in terms of

his engagement. But the said fact is belied from the fact that in

terms of his engagement and he being a retaining counsel, it is his

obligation to provide all information regarding the development of

the case and also to provide copies of the orders passed along with

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his opinion. It was necessary on his part and he was duty bound to

take steps for recalling the order of striking off the defence. At least

he should have sent such an advice. He had conducted the case at

one stage against the appellant despite being a paid retainer of the

appellant and also despite the fact that there was a conflict of

interest. In fact, the respondent no. 1 was under an obligation to

disclose his interest in the case and should have refused to accept

the brief when offered to him. Nothing of the nature was done and

rather he paved the way for getting enhancement of compensation

for his sister. It is therefore established that the respondent no. 1

stage managed the entire proceeding and set the course so that the

higher claim of the newly substituted claimants are accepted.

22.In the case of V.C. Rangadurai Vs. D. Gopalan and others reported

in (1979) 1 SCC 308, a three Judges Bench of this Court has stated

and outlined the duties and responsibilities of a counsel. In

paragraph 30 of the said judgment this Court has held that

counsel's paramount duty is to the client and accordingly where he

forms an opinion that a conflict of interest exists, his duty is to

advise the client that he should engage some other lawyer. It was

further held that it is unprofessional to represent conflicting

interests, except by express consent given by all concerned after a

full disclosure of the facts. The Court further went on to hold that

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the relation between a lawyer and his client is highly fiduciary in its

nature and of a very delicate, exacting, and confidential character

requiring a high degree of fidelity and good faith and that it is purely

a personal relationship, involving the highest personal trust and

confidence which cannot be delegated without consent. This Court

also held that when a lawyer is entrusted with a brief, he is

expected to follow the norms of professional ethics and try to protect

the interests of his clients, in relation to whom he occupies a

position of trust.

23.In the present case, it appears to us that the respondent no. 1 had

not only not disclosed the conflicting interests that he had in the

matter but had gone a step further by betraying the trust reposed

on him by the complainant. The facts which are analyzed clearly

prove the guilt of the respondent no. 1. He acted in a manner

unbecoming of a lawyer, who was bound by ethical conduct and

failed to protect the interest of his client.

24.Counsel appearing for the respondent no.1, however, submitted

that a case of this nature must be proved beyond all reasonable

doubts and not on preponderance of probabilities. There is no

dispute of the aforesaid position as it is also held in the aforesaid

case by this Court that findings in disciplinary proceedings must be

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sustained by high degree of proof than that is required in civil suits,

yet falling short of the proof required to sustain a conviction in a

criminal prosecution.

25.Counsel appearing for the respondent no.1 also drew our attention

to a two judges decision of this Court in Pawan Kumar Sharma Vs.

Gurdial Singh reported in (1998) 7 SCC 24 wherein this Court has

held that charge of professional misconduct is in the nature of

quasi criminal charge and due to the same, it is required to be

established not by preponderance of probabilities, but beyond a

reasonable doubt. Even keeping in view the aforesaid standard of

proof in mind, we find that by the sequence of events as mentioned

in the case and proved through evidence led that the respondent no.

1 did not adhere to the professional ethics by which he was bound

as stated hereinbefore.

26.The factual narration which has been given and the conduct of the

respondent no.1 in conducting the case clearly proves and

establishes his misdemeanor and misconduct and, therefore, we

find the respondent no.1 guilty of professional misconduct.

27.We, therefore, order and direct that respondent no.1 be suspended

as an Advocate from practice for a period of six months from today.

28.So far as the defence raised by the respondent nos. 2 and 3 is

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concerned, we have considered the same in the light of the records

also. So far the allegations against the respondent no. 2 are

concerned, he has appeared in the aforesaid reference case as a

lawyer and he was not a claimant himself. It is true that he is sitting

in the same chamber as that of respondent no.1, but from this mere

fact, it cannot be held that he is also guilty of the same or similar

misconduct as that of respondent no.1. Although his relatives have

purchased the right to claim compensation and have substituted

themselves as claimants, but he is only representing them in the

capacity of an Advocate and except for that no other fact has been

proved by the appellant which would lead to and prove his guilt or

could be said to be a misconduct. Similarly, so far as respondent

no. 3 is concerned, he was representing his wife only in the

reference case and was the chamber-mate of the respondent no.1.

Although his wife was a claimant herself, there could be an unholy

alliance between his wife and the respondent no.1, but there is not

enough evidence on record to prove and establish that the

respondent no. 3 has committed any misconduct.

29.Therefore, we uphold the order of the Disciplinary Committee

holding that the respondent no. 2 and 3 are not guilty of the

charges and allegations of misconduct made against them. So far as

respondent no. 1 is concerned, we modify the order passed by the

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Disciplinary Committee of the Bar Council of India and direct that

he shall be suspended as an Advocate from practice for a period of

six months from today.

30.The appeal is disposed of in terms of the aforesaid order. There will

be no order as to costs.

............................................J.

(DR. MUKUNDAKAM SHARMA)

...............

.............................J.

(ANIL R. DAVE)

NEW DELHI

SEPTEMBER 15, 2011.

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