Showing posts with label Case Analysis. Show all posts
Showing posts with label Case Analysis. Show all posts

 IN THE SUPREME COURT OF INDIA

CIVIL APPEAL NO. 251 OF 1982

DECIDED ON- 18.03.1982

CITATION: 1993 AIR 1608, SCR (2) 488

 

APPELLANT- D.S. DALAL

V.

RESPONDENT- STATE BANK OF INDIA AND ORS.

 

HON’BLE JUDGE:

- KULDIP SINGH

- N.M. KASLIWAL, JJ

Professional Misconduct by Advocates in India: A Critical Analysis By:  Trishala Singh[1]

 HISTORY OF CASE:

1.      D.S. Dalal was a practicing Advocate in Delhi.

2.      The Bar Council of India by its order dated October 24, 1981, removed his name from the rolls of Advocates of the Bar council of Delhi & the sanad granted to him has been withdrawn.

3.      The Appeal under section 30 of the Advocates Act, against the order of the Bar Council of India.

4.      The State Bank of India lodged a complaint before the Bar Council of Delhi on September, 4, 1998.

5.      The complaint that the appellant along with two other advocates was practicing under the name & style of “Ms. Singh and company”[2]

6.      A firm of Advocates & Solicitors having their office at 2610 Subzi Mandi, Delhi.

7.      It was alleged that the advocates were duly engaged by the Asaf Ali Road Branch of the State Bank of India to file a recovery suit against M/S Delhi Flooring (pvt) Ltd. For the recovery of Rs. 6, 12, 16,410.[3]

8.      “SINGH &COMPANY” the firm at that time was represented by MR. D.S. Dalal, Ms. V. Singh & Mr. B. Singh, Advocates who were the partners of the said firm and ere conducting cases for & on behalf of the firm.[4]

9.      It is the case of the complaint that in the year, 1995. 

10.  The file relating to the case which was to be filed against Ms. Delhi Flooring (pvt) Ltd.

11.  The file relating to the case original & valuable documents was handed over to the firm by the compliant. The firm submitted the professional fees & other miscellaneous charges.

12.  An amount of Rs. 11,495 was paid to the firm on November 15.1995.

13.  Till December 19, 1995 the firm did not inform the bank as to whether the suit was filed and if so what was the stage of the proceedings.

14.  The bank wrote a letter on December 5 1995 to the firm asking it to send a copy of the paint before December, 8, 1995. For signature and verification filing which the bank would be compelled to withdraw the case from the firm.

15.  At that stage Mr. B. Singh, Advocate in his letter December, 15, 1995 informed the bank the suit had been filed on Dec, 15 in the high Court Of Delhi. Thereafter the bank appears to have received no communication from the said above despite repeated reminders.

16.  As there was no response from the Appellant, the bank engaged the services of Mr. R.P. ARORA, Advocate, in order to find out as to what happened to the suit filed by the appellant on behalf of the bank.

17.  Mr. Arora informed the bank that the suit which been filed on Dec, 15, 1995 was returned by the original branch, the registry of the High Court with objection & thereafter the suit has not re- filled in the registry of the High Court. [5]

 

FACTS:

1.      In 1995, the bank engaged the firm to rile on recovery suit for the amount of Rs. 6,12,16, 410 from M/S Delhi Flooring (pvt) Ltd & handed over the case- rile containing ordinal &valuable documents.

2.      The firm submitted a bill fir celling the recovery suit which included the professional fees & other miscellaneous charges.

3.      On 15.11.1995 the bank paid a sum of Rs. 11,475 which included 1/3rd of the professional fee and the miscellaneous charges.[6]

4.      It did not inform the bank whether the suit was filed or not.

5.      On 5.12.1995 the bank wrote a letter to the firm to send a copy of the plaint before 8.12.1995 or the bank would be compelled to withdrawn the case from the firm.

6.      On 15.12.1995, one of the partners of the firm informed the bank the suit was filed on 15.12.1995 in the High Court.

7.      The bank engaged the service of one Mr. Arora, Advocate, in order to find out as to what happened to the suit.

8.      On 2 March, 1999 at the bank was informed by Mr. Arora, Advocate that suit was filed on 15.12.1995 in the High Court and on 31.1.1996, it was returned by the original branch to the registry with objections. Mr. Arora, Advocate further informed the bank on 31.3.1997 that the entire suit paper book was returned to Mr. Singh, Advocate of the firm on 29.9.1996 for removing the objections & thereafter the suit was not refilled. [7]

9.      The respondent bank thereafter, claimed before the Bar Council of Delhi that appellant & his associates misappropriated the money paid to them for court fee, miscellaneous expenses & one-third of the professional fee.

10.  The complainant further stated that, even the documents & other papers handed over to the appellant & his associates for filing the suit were not returned the complainant was originally registered with the Bar Council of Delhi .

11.  On September 19. 1999 the Disciplinary Committee of the Bar Council of Delhi transferred the case to the Bar Council of India on the ground that the case had been pending for more than one year.

12.  The Bar Council of India issues notices returnable on 2.11.1980. the appellant & his associates were not present on that date. Therefore fresh notices were issued for 20.12.1980, the appellant did not present on 20.12.1980 & ex-parte proceedings were ordered.

13.  On 23.1.1981 the appellant moved on appreciation for setting aside the ex-parte order dated 20.12.1980 which was allowed & the case was adjourned to 29.2.1981.

14.  The case was adjourned from time to time & finally fixed for evidence on 22.8.1981 on 22.8.1981, the appellant application for adjournment was rejected the evidence was concluded, arguments were heard & the order was reserved.

15.  The Disciplinary Committee of the Bar Council of India held that the case against the appellant & his associates was proved beyond reasonable doubt. Their names were removed from the rolls of Advocates of the Bar Council of Delhi & the sanands granted to them were ordered to be withdrawn.

INITIAL OF CASE:

1.      Initially the case was before the Disciplinary Committee of the Bar Council of India.

2.      The Disciplinary Committee of the Bar Council of Delhi transferred the case of the Bar Council of India, as the case was pending for more than one year.

FINDING:

1.      Mr. R.P. Arora appeared as a witness before the Bar Council of India.

2.      Mr. R.P. Arora examined the records of Delhi High Court.

3.      Mr. R.P. Arora. Advocates, after examining the records of the Delhi High Court had send two reports to the State Bank of India.

4.      In this report dates March 2, 1999 he stated as under:-

i)                    “As desired by you, to know the where about of the above noted case, I contacted the concern clerk in the original Branch of High Court of Delhi at New Delhi & also inspected the register of the original suits.

ii)                  The above noted case was filed by M/S Singh & Company on 15.12.195 but there were certain objections by the original branch & on 31.1.1996 the said case file as returned to the registree by the original branch.

iii)                The register of the registree in respect of the period from 31.1.1996 is not available & I shall let you know the up to date information. When the said case was returned to M/S Singh & company within a short period.

5.       In this report dated March 31, 1999, Mr. R.P. Arora, Advocate gave the following information to the bank.

i)                    ‘I have enquired from the original section of High Court of Delhi at New Delhi, which the file of the above stated case was returned to Shri. B. Singh on 29.9.1996 as the said case was under objections. So far he has not again filed the said case in High Court.’

6.      Both the above quoted reports have been proved on the record of the Bar Council of India as evidence.

7.      The Bar Council of India on appreciation of the evidence before t came to the conclusion that the charge against the appellant & Mr. B. Singh was proved beyond doubt.

DECISION OF THE BAR COUNCIL OF INDIA

1.      After having gone through the evidence & the document produced in the case carefully. We have come to the conclusion that the complainant had entrusted to suit to be filed against M/S Delhi Flooring (pvt) Ltd.

2.      The necessary papers & Rs. 11,495 for expenses etc., to the respondent, Advocate.

3.      It is also established that the respondents have filed the suit on 15.12.1995 with some objections deliberately & when the papers were returned by the High Court.

4.      They had not refined the suit for a pretty long time is established tiff this day.

5.      So. We have no hesitation to conclude that the respondents have misappropriated that amount realized by them.

6.      The bank without filing the suit in a proper manner.

7.      The Disciplinary Committee of the Bar Council of India held that the case against the appellant & his associates was proved beyond reasonable doubt, their names were removed from the rolls of Advocates of the Bar Council of Delhi & the sanad granted to them were ordered to be withdrawn.

DECISION OF THE SUPREME COURT OF INDIA

1.      Supreme Court dismissed the appeal with no cost.

 

PRINCIPLE OF THE COURT

1.      Under section 30 of the Advocates Act, 1961.

2.      It was the professional misconduct.

3.      The suit has not been refilled in the Registry of the High Courts of Delhi.

       AUTHORED BY: ARUNDHATI SINGH


[1]https://www.google.com/search?q=DS+DALAL+V.+SBI&sxsrf=ALeKk02AGj-qXLCM3GIK3C1YoVEgxqSwNA:1626328485773&source=lnms&tbm=isch&sa=X&ved=2ahUKEwiYpbrdseTxAhXezTgGHRfEDRYQ_AUoA3oECAEQBQ&biw=1366&bih=657#imgrc=46L_grWFX2v3zM

[2]https://www.casemine.com/judgement/in/5609ac8fe4b014971140f269 (last seen: 16/05/21)

[3] https://www.casemine.com/judgement/in/5609ac8fe4b014971140f269  (last seen: 16/05/21)

[4] https://www.casemine.com/judgement/in/5609ac8fe4b014971140f269 (last seen: 16/05/21)

[5] https://www.casemine.com/judgement/in/5609ac8fe4b014971140f269 (last seen: 16/05/21)

[6] https://www.casemine.com/judgement/in/5609ac8fe4b014971140f269 (last seen: 16/05/21)

[7] https://www.casemine.com/judgement/in/5609ac8fe4b014971140f269 (last seen: 16/05/21)

 


Facts

  • In this case, the constitutionality of Sections 326-A to 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) and the Chennai City Municipal Corporation (Licensing of Hoardings and Collection of Advertisement Tax) Rules, 2003 (in short "Advertisement Rules") were challenged in the High Court via writ petitions. 

  • The writ petitions were dismissed by the High Court.

  • Unauthorized hoardings were ordered to be removed by the authorities responsible.

  • It was made clear that no licences would be issued or renewed for any hoarding that did not comply with the rules of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) and the Chennai City Municipal Corporation (Licensing of Hoardings and Collection of Advertisement Tax) Rules, 2003.

  • In the city of Chennai, a committee was formed to monitor the process of removing illegal and unauthorised hoardings.

  • The authorities were ordered to dismantle and demolish all hoardings placed on or in front of any historical or aesthetical landmarks, popular places of worship, educational institutions, and hospitals, as well as any other structures designated by the committee.

  • It was further ordered that no Civil Court should hear any action opposing the destruction or removal of the unlawful hoardings and that any writ petitions opposing the destruction be filed with the High Court's Chief Justice's Bench.

  • The current appeals and writ petitions challenged (attacked) the High Court's above-mentioned decision. 

  • The Advertisement Rules were said to be in violation of Article 19(1)(a) of the Constitution. It was also argued that the rules were in violation of Article 14 of the Constitution since private and public hoardings were handled similarly, thereby treating unequal as equals.

  • It was argued that the hoardings were nothing more than advertising material and that even if the requirements were accepted to be regulatory for the sake of argument, they had to be relevant to the boundaries of Article 19(2). As a result of the rules, the use of private land for advertising has been restricted.

  • It was argued that Article 19(1)(a) allowed for the display of information on hoardings, whether commercial, political, or social, and that no restrictions could be placed on the right to disseminate information on the pretext of preventing obstruction or hazard to traffic movement, which was not covered by Article 19(2) because public order was not affected.

  • It was pointed out that allowing hoardings of political groups that were more dangerous was an unsustainable discriminating policy. Authorities were allowed unguided power to adopt alternative rules and a separate yardstick was being used.

  • Furthermore, it was claimed that the Advertisement Rules utilised the term "obstruction" to refer to bodily obstruction. Rule 6 and Rule 10 of the Advertisement Rules were also challenged. The right to regulate being exercised in this instance was claimed to be restricted rather than regulatory.

  • The Supreme Court dismissed the writ petitions and appeals, held, Tthe permissible legislative abridgement of the right to free speech and expression has been set very narrow and stringently, owing to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, because without free political discussion, no public education, which is so important for the proper functioning of popular processes, would be possible.

  • In the present case, the relevant provisions appear to be not restrictive but are regulatory. There is no ban on advertisement hoardings but obstructive and destructive ones are to be prohibited. Advertisement is not regulated by the Chennai City Municipal Corporation Act, 1919 (4 of 1919) or the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003. They prohibit the erection of any hoarding that is deemed to be unpleasant, damaging, or disruptive. It is impossible to claim that freedom of speech has been violated. The statute's content, impact, and purpose all indicate that it was not meant to be that way.

  • Hoarding licences are required in both public and private venues under the Chennai City Municipal Corporation Act, 1919 (4 of 1919).

  • In terms of public spaces, the State has complete authority to control them since they are vested in the State as a trustee for the public. The state has the authority to impose such restrictions on users of public spaces as are required to safeguard the general public.

  • The District Collector is empowered under Section 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) to prohibit the erection of hazardous hoardings and hoardings that are hazardous and disrupt safe traffic movement thus adversely affect the free and safe flow of traffic. The power granted by Section 326-J is not capricious. Any action taken under Section 326-J must be based on natural justice principles and backed up by evidence. Under Section 326-H, a District Collector's order for action under Section 326-J can be appealed to the State Government. There can't be a presumption of power abuse just because a public entity has a choice over how it exercises its power. 

  • Rule 6 of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003 imposed restrictions on the size, height, spacing, and other limits on hoardings, as well as the requirement that they are erected on steel frames.

  • Rule 10 of the 2003 Rules prohibits hoardings from being placed in specific locations, including educational institutions, places of worship, hospitals, road corners, and in front of historical and aesthetic landmarks. As a result, the ability to licence is limited and directed by the factors mentioned above.

  • The refusal to award or renew licences can be appealed to the State Government under Rule 11 of the 2003 Rules.

  • In the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003, the term "obstruction" refers to any conduct that obstructs the free and safe passage of traffic, pedestrians, and automobiles. However, it has a wide range of meanings and isn't always limited to physical impediments. If the subject matter shown in such hoardings draws the attention of drivers of vehicles and, as a result, obstructs free and safe traffic movement, such a hoarding would plainly fall under the definition of "obstruction foreseen under Rule 3 of the Act."

  • Rule 3 of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003 does not limit or govern the extent of Section 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919), which works on a larger scale.

  • On failure to obtain a no-objection certificate in accordance with Rule 3(iii) would disqualify an applicant for a licence to erect a hoarding in and of itself, Section 326-J prohibits the erection of hazardous hoardings and directs the Commissioner (now District Collector) not to issue any licence under Section 326-C in respect of such hoardings. It also empowers the Commissioner to order the confiscation and removal of any hoardings built in violation of the mandate contained therein.

Issues 

  1. Whether the provisions of the Chennai City Municipal Corporation Act,1919, and the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003, alleging that they were in violation of Article 19(1)(a) and Article 14 because private and public hoardings were treated equally, effectively treating unequal as equals.

  2. Whether the legislation that restricted private land use and that display of information on hoardings, whether commercial, political, or social, was permissible under Article 19(1)(a). 

  3. Whether the right to transmit information could not be restricted on the pretext of preventing hindrance or hazard to traffic flow, and the law was not protected by Article 19(2) since public order was not harmed.

Important citations 

Sagir Ahmad v. State of U.P., AIR 1954 SC 728 1 SCR707

In this case, the Court concluded in this decision that the state has complete control over public areas because they are vested in the state as trustee for the public. The state has the authority to impose such restrictions on users of public spaces as are required to safeguard the general public.

P. Narayana Bhat v. State of T.N., (2001) 4 SCC 554 

In this case, the Court held that there can't be a presumption of power abuse just because a public authority has a choice over how it exercises or uses its power.

ITW Signode India Ltd. v. CCE

In this case, the Court concluded in this decision that in the event of a disagreement between a substantive Act and delegated legislation, the former will win since delegated legislation must be understood in the context of the primary/legislative Act and not vice versa.

Hinchliffe v. Sheldon (1955) 1 WLR 1203

In this case, the Court concluded in this decision that “obstructing” the police encompasses anything that makes it more difficult for the officers to carry out their responsibilities and is not limited to physical impediments.

Judgment 

Bench: Dr. Arijit Pasayat, S.H. Kapadia

The Supreme Court of India held:

  • that, while very narrow and stringent limits had been set for permissible legislative abridgment of the right to free speech and expression, the challenged provisions were regulatory rather than restrictive - there was no ban on advertisements or hoardings, but obstructive and destructive ones were to be prohibited;

  • that the State has complete authority to regulate public spaces because they vest in the State as trustees for the public, and the State can impose such restrictions on public place users as may be required to safeguard the public as a whole.

  • that hoardings placed on private property must be registered and controlled since they frequently abut and are visible on public roadways and public spaces.

  • that hoardings constructed on private buildings may restrict public highways, be unsafe to the building and the public, be hazardous and harmful to the smooth flow of traffic by distracting cars and include obscene or unpleasant content.

  • that the fact that the hoarding is on private property does not excuse the government from enforcing hoarding regulations.

  • As a result, the Supreme Court determined that it is incorrect to assert that hoardings on private property are not subject to licencing requirements.

Conclusion 

Hence, there is no logic in completely excluding private land, state government territory, or land owned by the federal government, such as the railways. The decision to give a licence or not is still up to the municipal corporation, and any breach of the limits set might still result in an application. It went on to say that such exclusion of lands amounted to prohibition and that such restrictions infringe on the basic rights of private landowners to enjoy their properties if a permit for hoardings could be given.

References 



The article is written by Sneha Mahawar, a  law student at Ramaiah Institute of Legal Studies. This article discusses the right to put hoardings as a constitutional right in accordance with the laws of municipal corporations. It further enhances the case law of Novva Ads vs. Secretary, Department of Municipal Administration and Water Supply, and Another.