Supreme Court of India

Lucknow Development Authority vs M.K. Gupta on 5 November, 1993

Equivalent citations: 1994 AIR 787, 1994 SCC (1) 243

Author: R Sahai

Bench: Sahai, R.M. (J)

PETITIONER:
LUCKNOW DEVELOPMENT AUTHORITY

Vs.

RESPONDENT:
M.K. GUPTA

DATE OF JUDGMENT05/11/1993

BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
KULDIP SINGH (J)

CITATION:
1994 AIR 787 1994 SCC (1) 243
JT 1993 (6) 307 1993 SCALE (4)370

ACT:

HEADNOTE:

JUDGMENT:
The Judgment of the Court was delivered by R.M. SAHAI, J.- The question of law that arises for
consideration in these appeals, directed against orders passed by the National Consumer Disputes
Redressal Commission (referred hereinafter as National Commission), New Delhi is if the statutory
authorities such as Lucknow Development Authority or Delhi Development Authority or Bangalore
Development Authority constituted under State Acts to carry on planned development of the cities in the
State are amenable to Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') for any act or
omission relating to housing activity such as delay in delivery of possession of the houses to the allottees,
non-completion of the flat within the stipulated time, or defective and faulty construction etc. Another
aspect of this issue is if the housing activity carried on by the statutory authority or private builder or
contractor came within the purview of the Act only after its amendment by the Ordinance No. 24 in 1993
or the Commission could entertain a complaint for such violations even before.
2. How the dispute arose in different appeals is not of any consequence except for two appeals which shall
be adverted to later, for determining right and power of the Commission to award exemplary damages and
accountability of the statutory authorities. We therefore come straight away to the legal issue involved in
these appeals. But before doing so and examining the question of jurisdiction of the District Forum or State
or National Commission to entertain a complaint under the Act, it appears appropriate to ascertain the
purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote as
it shall facilitate in comprehending the issue involved and assist in construing various provisions of the Act
effectively. To begin with the preamble of the Act, which can afford useful assistance to ascertain the
legislative intention, it was enacted, 'to provide for the protection of the interest of consumers'. Use of the
word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions
which elaborately attempt to achieve this objective have to be construed in this light without departing
from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the
law meets long felt necessity of protecting the common man from such wrongs for which the remedy under
ordinary law for various reasons has become illusory. Various legislations and regulations permitting the
State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the
enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which
are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by
enabling the consumer to participate directly in the market economy. It attempts to remove the
helplessness of a consumer which he faces against powerful business, described as, 'a network of rackets'
or a society in which, 'producers have secured power' to 'rob the rest' and the might of public bodies which
are degenerating into storehouses of inaction where papers do not move from one desk to another as a
matter of duty and responsibility but for extraneous consideration leaving the common man helpless,
bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead
of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these
unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in
checking the rot. A scrutiny of various definitions such as 'consumer', 'service', 'trader', 'unfair trade
practice' indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are
in two parts, one, explanatory and the other expandatory. The explanatory or the main part itself uses
expressions of wide amplitude indicating clearly its wide sweep, then its ambit is widened to such things
which otherwise would have been beyond its natural import. Manner of construing an inclusive clause and
its widening effect has been explained in Dilworth v. Commissioner of Stamps' as under:
" 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or
phrases occurring in the body of the statute, and when it is so used these words or phrases must be
construed as comprehending, not only such things as they signify according to their natural, import, but
also those things which the definition clause declares that they shall include."

It has been approved by this Court in Regional Director, Employees' State Insurance Corpn. v. High Land
Coffee Works of P. F.X. Saldanha and Sons2; CIT v. Taj Mahal Hotel,Secunderabad3 and State of
Bombay v. Hospital Mazdoor Sabha4. The provisions of the Act thus have to be construed in favour of the
consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary
duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject
to that it should not do violence to the language of the provisions and is not contrary to the attempted
objective of the enactment.
3. Although the legislation is a milestone in the history of socioeconomic legislation and is directed
towards achieving public benefit we shall first examine if on a plain reading of the provisions unaided by
any external aid of interpretation it applies to building or construction activity carried on by the statutory
authority or private builder or contractor and extends even to such bodies whose ancillary function is to
allot a plot or construct a flat. In other words could the authorities constituted under the Act entertain a
complaint by a consumer for any defect or deficiency in relation to construction activity against a private
builder or statutory authority. That shall depend on ascertaining the jurisdiction of the Commission. How
extensive it is? A National or a State Commission under Sections 21 and 16 and a Consumer Forum
under Section 11 of the Act is entitled to entertain a complaint depending on valuation of goods or services
and compensation claimed. The nature of 'complaint' which can be filed, according to clause (c) of Section
2 of the Act is for unfair trade practice or 1 1899 AC 99: 15 TLR 61 2 (1991) 3 SCC 617 3 (1971) 3 SCC
550 4 AIR 1960 SC 610: (1960) 2 SCR 866: (1960) 1 LLJ 251 restrictive trade practice adopted by any
trader or for the defects suffered for the goods bought or agreed to be bought and for deficiency in the
service hired or availed of or agreed to be hired or availed of, by a 'complainant' who under clause (b) of
the definition clause means a consumer or any voluntary consumer association registered under
the Companies Act, 1956 or under any law for the time being in force or the Central Government or any
State Government or where there are one or more consumers having the same interest, then a complaint by
such consumers. The right thus to approach the Commission or the Forum vests in consumer for unfair
trade practice or defect in supply of goods or deficiency in service. The word 'consumer' is a
comprehensive expression. It extends from a person who buys any commodity to consume either as eatable
or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public
services. In Oxford Dictionary a consumer is defined as, "a purchaser of goods or services". In Black's
Law Dictionary it is explained to mean, "one who consumes. Individuals who purchase, use, maintain, and
dispose of products and services. A member of that broad class of people who are affected by pricing
policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade
practices for which state and federal consumer protection laws are enacted." The Actopts for no less wider
definition. It reads as under:
consumer' means any person who,-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other than the
person who buys such goods for consideration paid or promised or partly paid or partly promised, or
under any system of deferred payment when such use is made with the approval of such person, but
does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment and includes any beneficiary of such services
other than the person who hires or avails of the services for consideration paid or promised, or partly
paid and partly promised, or under any system of deferred payment, when such services are availed of
with the approval of the first mentioned person;

[Explanation.- For the purposes of sub-clause (i), 'commercial purpose' does not include use by a consumer
of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-
employment;]" It is in two parts. The first deals with goods and the other with services. Both arts first
declare the meaning of goods and services by use of wide expressions. Their ambit is further enlarged by
use of inclusive clause. For stance, it is not only purchaser of goods or hirer of services but even those who
use the goods or who are beneficiaries of services with approval of the person who purchased the goods or
who hired services are included in it. The legislature has taken precaution not only to define 'complaint',
complainant', 'consumer' but even to mention in detail what would amount to unfair trade practice by
giving an elaborate definition in clause (r) and even to define 'defect' and 'deficiency' by clauses (f) and (g)
for which a consumer can approach the Commission. The Actthus aims to protect the economic interest of
a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of
services. The common characteristics of goods and services are that they are supplied at a price to cover
the costs and generate profit or income for the seller of goods or provider of services. But the defect in one
and deficiency in other may have to be removed and compensated differently. The former is, normally,
capable of being replaced and repaired whereas the other may be required to be compensated by award of
the just equivalent of the value or damages for loss. 'Goods' have been defined by clause (i) and have been
assigned the same meaning as in Sale of Goods Act, 1930 which reads as under:
" goods' means every kind of movable property other than actionable claims and money; and includes
stock and shares, growing crops, grass and things attached to or forming part of the land which are
agreed to be severed before sale or under the contract of sale;"

It was therefore urged that the applicability of the Act having been confined to moveable goods only a
complaint filed for any defect in relation to immoveable goods such as a house or building or allotment of
site could not have been entertained by the Commission. The submission does not appear to be well
founded. The respondents were aggrieved either by delay in delivery of possession of house or use of
substandard material etc. and therefore they claimed deficiency in service rendered by the appellants.
Whether they were justified in their complaint and if such act or omission could be held to be denial of
service in the Act shall be examined presently but the jurisdiction of the Commission could not be ousted
(sic merely) because even though it was service it related to immoveable property.
4. What is the meaning of the word 'service'? Does it extend to deficiency in the building of a house or
flat? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for
any deficiency in respect of such property. The answer to all this shall depend on understanding of the
word 'service". The term has variety of meanings. It may mean any benefit or any act resulting in
promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc.
The concept of service thus is very wide. How it should be understood and what it means depends on the
context in which it has been used in an enactment. Clause
(o) of the definition section defines it as under:
" service' means service of any description which is made available to potential users and includes the
provision of facilities in connection with banking, financing, insurance, transport, processing, supply
of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement
or the purveying of news or other information, but does not include the rendering of any service free of
charge or under a contract of personal service;"

It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The
main clause itself is very wide. It applies to any service made available to potential users. The words 'any'
and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionarily means 'one or some
or all'. In Black's Law Dictionary it is explained thus, "word ,any' has a diversity of meaning and may be
employed to indicate 'all' or ,every' as well as 'some' or 'one' and its meaning in a given statute depends
upon the context and the subject- matter of the statute". The use of the word 1 any' in the context it has
been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other
word 'potential' is again very wide. In Oxford Dictionary it is defined as 'capable of coming into being,
possibility'. In Black's Law Dictionary it is defined as "existing in possibility but not in act. Naturally and
probably expected to come into existence at some future time, though not now existing; for example, the
future product of grain or trees already planted, or the successive future installments or payments on a
contract or engagement already made." In other words service which is not only extended to actual users
but those who are capable of using it are covered in the definition. The clause is thus very wide and
extends to any or all actual or potential users. But the legislature did not stop there. It expanded the
meaning of the word further in modem sense by extending it to even such facilities as are available to a
consumer in connection with banking, financing etc. Each of these are wide-ranging activities in day to
day life. They are discharged both by statutory and private bodies. In absence of any indication, express or
implied there is no reason to hold that authorities created by the statute are beyond purview of the Act.
When banks advance loan or accept deposit or provide facility of locker they undoubtedly render service.
A State Bank or nationalised bank renders as much service as private bank. No distinction can be drawn in
private and public transport or insurance companies. Even the supply of electricity or gas which
throughout the country is being made, mainly, by statutory authorities is included in it. The legislative
intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test,
therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of
the duty and function performed by it is service or even facility.
5. This takes us to the larger issue if the public authorities under different enactments are amenable to
jurisdiction under the Act. It was vehemently argued that the local authorities or government bodies
develop land and construct houses in discharge of their statutory function, therefore, they could not be
subjected to the provisions of the Act. The learned counsel urged that if the ambit of the Act would be
widened to include even such authorities it would vitally affect the functioning of official bodies.
The learned counsel submitted that the entire objective of the Act is to protect a consumer against
malpractices in business. The argument proceeded on complete misapprehension of the purpose of Act and
even its explicit language. In fact the Act requires provider of service to be more objective and caretaking.
It is still more so in public services. When private undertakings are taken over by the Government or
corporations are created to discharge what is otherwise State's function, one of the inherent objectives of
such social welfare measures is to provide better, efficient and cheaper services to the people. Any attempt,
therefore, to exclude services offered by statutory or official bodies to the common man would be against
the provisions of the Act and the spirit behind it. It is indeed unfortunate that since enforcement of the Act
there is a demand and even political pressure is built up to exclude one or the other class from operation of
the Act. How ironical it is that official or semi-official bodies which insist on numerous benefits, which are
otherwise available in private sector, succeed in bargaining for it on threat of strike mainly because of
larger income accruing due to rise in number of consumers and not due to better and efficient functioning
claim exclusion when it comes to accountability from operation of the Act. The spirit of consumerism is so
feeble and dormant that no association, public or private spirited, raises any finger on regular hike in prices
not because it is necessary but either because it has not been done for sometime or because the operational
cost has gone up irrespective of the efficiency without any regard to its impact on the common man. In our
opinion, the entire argument found on being statutory bodies does not appear to have any substance. A
government or semi-government body or a local authority is as much amenable to the Act as any other
private body rendering similar service. Truly speaking it would be a service to the society if such bodies
instead of claiming exclusion subject themselves to the Act and let their acts and omissions be scrutinised
as public accountability is necessary for healthy growth of society.
6. What remains to be examined is if housing construction or building activity carried on by a private or
statutory body was service within the meaning of clause (o) of Section 2 of the Act as it stood prior to
inclusion of the expression 'housing construction' in the definition of "service" by Ordinance No. 24 of
1993. As pointed out earlier the entire purpose of widening the definition is to include in it not only day to
day buying and selling activity undertaken by a common man but even such activities which are otherwise
not commercial in nature yet they partake of a character in which some benefit is conferred on the
consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may
do it himself or hire services of a builder or contractor. The latter being for consideration is service as
defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house
for the benefit of common man it is as much service as by a builder or contractor. The one is contractual
service and other statutory service. If the service is defective or it is not what was represented then it would
be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of
comfort and service to a consumer. When possession of property is not delivered within stipulated period
the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property
as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies
or omissions are defined in sub-clause (ii) of clause (r) ofSection 2 as unfair trade practice. If a builder of a
house uses substandard material in construction of a building or makes false or misleading representation
about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to
claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is
inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall
or substandard floor is denial of service. Similarly when a statutory authority undertakes to develop land
and frame housing scheme, it, while performing statutory duty renders service to the society in general and
individual in particular. The entire approach of the learned counsel for the development authority in
emphasising that power exercised under a statute could not be stretched to mean service proceeded on
misconception. It is incorrect understanding of the statutory functions under a social legislation. A
development authority while developing the land or framing a scheme for housing discharges statutory
duty the purpose and objective of which is service to the citizens. As pointed out earlier the entire purpose
of widening the definitions is to include in it not only day to day buying of goods by a common man but
even such activities which are otherwise not commercial but professional or service-oriented in nature. The
provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore
Development Act clearly provide for preparing plan, development of land, and framing of scheme etc.
Therefore if such authority undertakes to construct building or allot houses or building sites to citizens of
the State either as amenity or as benefit then it amounts to rendering of service and will be covered in the
expression 'service made available to potential users'. A person who applies for allotment of a building site
or for a flat constructed by the development authority or enters into an agreement with a builder or a
contractor is a potential user and nature of transaction is covered in the expression 'service of any
description'. It further indicates that the definition is not exhaustive. The inclusive clause succeeded in
widening its scope but not exhausting the services which could be covered in earlier part. So any service
except when it is free of charge or under a constraint of personal service is included in it. Since housing
activity is a service it was covered in the clause as it stood before 1993.
7. In Civil Appeal No. 2954 filed by a builder it was urged that inclusion of 'housing construction' in clause
(o) and 'avail' in clause (d) in 1993 would indicate that the Act as it stood prior to the amendment did not
apply to hiring of services in respect of housing construction. Learned counsel submitted that in absence of
any expression making the amendment retrospective it should be held to be prospective as it is settled that
any law including amendments which materially affect the vested rights or duties or obligations in respect
of past transactions should remain untouched. Reliance was placed on Jose Da Costa v. Bascora Sadasiva
Sinai Narcornim5; State of M.P. v. Rameshwar Rathod6 and Pulborough School Board Election case, Re7.
It was also argued that when definition of 'service' in Monopolies and Restrictive Trade Practices Act was
amended in 1991 it was made retrospective. Therefore, in absence of use of similar expression in this Act
it should be deemed to be prospective. True, the ordinance does not make the definition retrospective in
operation. But it was not necessary. In fact it appears to have been added by way of abundant caution as
housing construction being service was included even earlier. Apart from that what was the vested right of
the contractor under the agreement to construct the defective house or to render deficient service? A
legislation which is enacted to protect public interest from undesirable activities cannot be construed in
such narrow manner as to frustrate its objective. Nor is there any merit in the submission that in absence of
the word 'avail of' in the definition of consumer' such activity could not be included in service. A perusal of
the definition of 'service' as it stood prior to 1993 would indicate that the word 'facility' was already there.
Therefore the legislature while amending the law in 1993 added the word in clause (d) to dispel any doubt
that consumer in the Act would mean a person who not only hires but avails of any facility for
consideration. It in fact indicates that these words were added more to clarify than to add something new.
8. Having examined the wide reach of the Act and jurisdiction of the Commission to entertain a complaint
not only against business or trading activity but even against service rendered by statutory and public
authorities the stage is now set for determining if the Commission in exercise of its jurisdiction under the
Act could award compensation and if such compensation could be for harassment and agony to a
consumer. Both these aspects specially the latter are of vital significance in the present day context. Still
more important issue is the liability of payment. That is, should the society or the tax payer be burdened
for oppressive and capricious act of the public officers or it be paid by those responsible for it. The
administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has
taken many strides. It is now accepted both by this Court and English Courts that the State is liable to
compensate for loss or in' jury suffered by a citizen due to arbitrary actions of its employees. In State of
Gujarat v. Memon Mahomed Haji Hasam8 the order of the High Court directing payment of compensation
for disposal of seized vehicles without waiting for the outcome of decision in appeal was upheld both on
principle of bailee's 'legal obligation to preserve the property intact and also the obligation to take
reasonable care of it ... to return it in the same condition in 5 (1976) 2 SCC 917 6 (1990) 4 SCC 21 : 1990
SCC (Cri) 522: AIR 1990 SC 1849 7 Pulborough School Board Election v. Nutt, (1891-94) All ER 8 AIR
1967 SC 1885 : (1967) 3 SCR 938which it was seized' and also because the Government was, 'bound to
return the said property by reason of its statutory obligation or to pay its value if it had disabled itself from
returning it either by its own act or by act of its agents and servants'. It was extended further even to bona
fide action of the authorities if it was contrary to law in Lala Bishambar Nath v. Agra Nagar Mahapalika,
Agra9. It was held that where the authorities could not have taken any action against the dealer and their
order was invalid, 'it is immaterial that the respondents had acted bona fide and in the interest of
preservation of public health. Their motive may be good but their orders are illegal. They would
accordingly be liable for any loss caused to the appellants by their action.' The theoretical concept that
King can do no wrong has been abandoned in England itself and the State is now held responsible for
tortuous act of its servants. The First Law Commission constituted after coming into force of the
Constitution on liability of the State in tort, observed that the old distinction between sovereign and non-
sovereign functions should no longer be invoked to determine liability of the State. Friedmann observed:
"It is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a
feudal conception of the Crown, and to substitute for it the principle of legal liability where the State,
either directly or through incorporated public authorities, engages in activities of a commercial, industrial
or managerial character. The proper test is not an impracticable distinction between governmental and
nongovernmental function, but the nature and form of the activity in question."

Even Kasturi Lal Ralia Ram Jain v. State of U.P.10 did not provide any immunity for tortuous acts of
public servants committed in discharge of statutory function if it was not referable to sovereign power.
Since house construction or for that matter any service hired by a consumer or facility availed by him is
not a sovereign function of the State the ratio of Kasturi Lal10 could not stand in way of the Commission
awarding compensation. We respectfully agree with Mathew, J. in Shyam Sunder v. State of
Rajasthan11 that it is not necessary, 'to consider whether there is any rational dividing line between the so-
called sovereign and proprietary or commercial functions for determining the liability of the State' (SCC p.
695, para 20). In any case the law has always maintained that the public authorities who are entrusted with
statutory function cannot act negligently. As far back as 1878 the law was succinctly explained in Geddis
v. Proprietors of Bann Reservoir12 thus:
"I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing
that which the Legislature has authorised, if it be done without negligence, although it does 9 (1973) 1
SCC 788 : AIR 1973 SC 1289 10 AIR 1965 SC 1039: (1965) 1 SCR 375 :(1966) 2 LLJ 583 11 (1974) 1 SCC 690
12 (1878) 3 AC 430 occasion damage to anyone; but an action does lie for doing what the Legislature has
authorised, if it be done negligently."

Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is
obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to
the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory
provisions oppressively are accountable for their behaviour before authorities created under the statute like
the commission or the courts entrusted with responsibility of maintaining the rule of law. Each hierarchy in
the Act is empowered to entertain a complaint by the consumer for value of the goods or services and
compensation. The word compensation' is again of very wide connotation. It has not been defined in the
Act. According to dictionary it means, 'compensating or being compensated; thing given as recompense;'.
In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even
emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with the
jurisdiction to award value of goods or services and compensation it has to be construed widely enabling
the Commission to determine compensation for any loss or damage suffered by a consumer which in law is
otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to
claim and empowers the Commission to redress any injustice done to him. Any other construction would
defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not
only value of the goods or services but also to compensate a consumer for injustice suffered by him.
9. Facts in Civil Appeal No. 6237 of 1990 may now be adverted to as it is the only appeal in which the
National Commission while exercising its appellate power under the Act not only affirmed the finding of
State Commission directing the appellant to pay the value of deficiency in service but even directed to pay
compensation for harassment and agony to the respondent. The Lucknow Development Authority with a
view to ease the acute housing problem in the city of Lucknow undertook development of land and formed
plots of different categories/sizes and constructed dwelling units for people belonging to different income
groups. After the construction was complete the authority invited applications from persons desirous of
purchasing plots or dwelling houses. The respondent applied on the prescribed form for registration for
allotment of a flat in the category of Middle Income Group (MIG) in Gomti Nagar Scheme in Lucknow on
cash down basis. Since the number of applicants was more, the authority decided to draw lots in which flat
No. 11/75 in Vinay Khand-II was allotted to the respondent on April 26, 1988. He deposited a sum of Rs
6132 on July 2, 1988 and a sum of Rs 1,09,975 on July 29, 1988. Since the entire payment was made in
July 1988 the flat was registered on August 18, 1988. Thereafter the appellant by a letter dated August 23,
1988 directed its Executive Engineer-VII to hand over the possession of the flat to the respondent. This
information was given to him on November 30, 1988, yet the flat was not delivered as the construction
work was not complete. The respondent approached the authority but no steps were taken nor possession
was handed over. Consequently he filed a complaint before the District Forum that even after payment of
entire amount in respect of cash down scheme the appellant was not handing over possession nor they were
completing the formalities and the work was still incomplete. The State Commission by its order dated
February 15, 1990 directed the appellant to pay 12% annual simple interest upon the deposit made by the
respondent for the period January 1, 1989 to February 15, 1990. The appellant was further directed to hand
over possession of the flat without delay after completing construction work up to June 1990. The
Commission further directed that if it was not possible for the appellant to complete the construction then it
should hand over possession of the flat to the respondent by April 5, 1990 after determining the
deficiencies and the estimated cost of such deficient construction shall be refunded to the respondent latest
by April 20, 1990. The appellant instead of complying with the order approached the National Commission
and raised the question of jurisdiction. It was overruled. And the appeal was dismissed. But the cross-
appeal of the respondent was allowed and it was directed that since the architect of the appellant had
estimated in October 1989 the cost of completing construction at Rs 44,615 the appellant shall pay the
same to the respondent. The Commission further held that the action of the appellant amounted to
harassment, mental torture and agony of the respondent, therefore, it directed the appellant to pay a sum of
Rs 10,000 as compensation.
10. Who should pay the amount determined by the Commission for harassment and agony, the statutory
authority or should it be realised from those who were responsible for it? Compensation as explained
includes both the just equivalent for loss of goods or services and also for sufferance of injustice. For
instance in Civil Appeal No. ... of 1993 arising out of SLP (Civil) No. 659 of 1991 the Commission
directed the Bangalore Development Authority to pay Rs 2446 to the consumer for the expenses incurred
by him in getting the lease-cum-sale agreement registered as it was additional expenditure for alternative
site allotted to him. No misfeasance was found. The moment the authority came to know of the mistake
committed by it, it took immediate action by alloting alternative site to the respondent. It was
compensation for exact loss suffered by the respondent. It arose in due discharge of duties. For such acts or
omissions the loss suffered has to be made good by the authority itself. But when the sufferance is due to
mala fide or oppressive or capricious acts etc. of a public servant, then the nature of liability changes. The
Commission under the Act could determine such amount if in its opinion the consumer suffered injury due
to what is called misfeasance of the officers by the English Courts. Even in England where award of
exemplary or aggravated damages for insult etc. to a person has now been held to be punitive, exception
has been carved out if the injury is due to, 'oppressive, arbitrary or unconstitutional action by servants of
the Government' (Salmond and Heuston on the Law of Torts). Misfeasance in public office is explained by
Wade in his book on Administrative Law thus:
"Even where there is no ministerial duty as above, and even where no recognised tort such as trespass,
nuisance, or negligence is committed, public authorities or officers may be liable in damages for
malicious, deliberate or injurious wrong-doing. There is thus a tort which has been called misfeasance in
public office, and which includes malicious abuse of power, deliberate maladministration, and perhaps
also other unlawful acts causing injury." (p. 777) The jurisdiction and power of the courts to indemnify a
citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord
Hailsham in Cassell & Co. Ltd. v. Broome13 on the principle that, an award of exemplary damages can
serve a useful purpose in vindicating the strength of law'. An ordinary citizen or a common man is hardly
equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It
acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard14 it was observed by
Lord Devlin, 'the servants of the government are also the servants of the people and the use of their
power must always be subordinate to their duty of service'. A public functionary if he acts maliciously or
oppressively and the exercise of power results in harassment and agony then it is not an exercise of
power but its abuse. No law provides protection against it. He who is responsible for it must suffer it.
Compensation or damage as explained earlier may arise even when the officer discharges his duty
honestly and bona fide. But when it arises due to arbitrary or capricious behaviour then it loses its
individual character and assumes social significance. Harassment of a common man by public authorities
is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far
more grievous. Crime and corruption thrive and prosper in the society due to lack of public resistance.

Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and
fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.
Therefore the award of compensation for harassment by public authorities not only compensates the
individual, satisfies him personally but helps in curing social evil. It may result in improving the work
culture and help in changing the outlook. Wade in his book Administrative Law has observed that it is to
the credit of public authorities that there are simply few reported English decisions on this form of
malpractice, namely, misfeasance in public offices which includes malicious use of power, deliberate
maladministration and perhaps also other unlawful acts causing injury. One of the reasons for this appears
to be development of law which, apart, from other factors succeeded in keeping a salutary check on the
functioning in the government 13 1972 AC 1027 (1972) 1 All ER 801 14 1964 AC 11 29 (1964) 1 All ER
367, 410 or semi-govemment offices by holding the officers personally responsible for their capricious or
even ultra vires action resulting in injury or loss to a citizen by awarding damages against them. Various
decisions rendered from time to time have been referred to by Wade on Misfeasance by Public Authorities.
We shall refer to some of them to demonstrate how necessary it is for our society. In Ashby v. White15 the
House of Lords invoked the principle of ubi jus ibi remedium in favour of an elector who was wrongfully
prevented from voting and decreed the claim of damages. The ratio of this decision has been applied and
extended by English Courts in various situations. In Roncarelli v. Duplessis16 the Supreme Court of
Canada awarded damages against the Prime Minister of Quebec personally for directing the cancellation of
a restaurant-owner's liquor licence solely because the licensee provided bail on many occasions for fellow
members of the sect of Jehovah's Witnesses, which was then unpopular with the authorities. It was
observed that, 'what could be more malicious than to punish this licensee for having done what he had an
absolute right to do in a matter utterly irrelevant to the Alcoholic Liquor Act? Malice in the proper sense is
simply acting for a reason and purpose knowingly foreign to the administration, to which was added here
the element of intentional punishment by what was virtually vocation outlawry.' In Smith v. East Elloe
Rural District Council17 the House of Lords held that an action for damages might proceed against the
clerk of a local authority personally on the ground that he had procured the compulsory purchase of the
plaintiff's property wrongfully and in bad faith. In Farrington v. Thomson18 the Supreme Court of Victoria
awarded damages for exercising a power the authorities knew they did not possess. A licensing inspector
and a police officer ordered the plaintiff to close his hotel and cease supplying liquor. He obeyed and filed
a suit for the resultant loss. The Court observed:
"Now I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or
commission, and the consequence of that is an injury to an individual, an action may be maintained
against such public officer."

In Wood v. Blair 19 a dairy farmer's manageress contracted typhoid fever and the local authority served
notices forbidding him to sell milk, except under certain conditions. These notices were void, and the
farmer was awarded damages on the ground that the notices were invalid and that the plaintiff was entitled
to damages for misfeasance. This was done even though the finding was that the officers had acted from
the best motives.
11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept
of authority and power exercised by 15 (1703) 2 Ld Raym 938 16 (1959) 16 DLR 2d 689 17 1956 AC 736:
(1956) 1 All ER 855 18 1959 UR 286 19 The Times, July 3, 4, 5, 1957 (Hallet J and Court of
Appeal) public functionaries has many dimensions. It has undergone tremendous change with passage of
time and change in socioeconomic outlook. The authority empowered to function under a statute while
exercising power discharges public duty. It has to act to subserve general welfare and common good. In
discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim
compensation which may in circumstances be payable. But where the duty is performed capriciously or the
exercise of power results in harassment and agony then the responsibility to pay the loss determined should
be whose? In a modem society no authority can arrogate to itself the power to act in a manner which is
arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the
street is made to run from one end to other with no result. The culture of window clearance appears to be
totally dead. Even in ordinary matters a common man who has neither the political backing nor the
financial strength to match the inaction in public oriented departments gets frustrated and it erodes the
credibility in the system. Public administration, no doubt involves a vast amount of administrative
discretion which shields the action of administrative authority. But where it is found that exercise of
discretion was mala fide and the complainant is entitled to compensation for mental and physical
harassment then the officer can no more claim to be under protective cover. When a citizen seeks to
recover compensation from a public authority in respect of injuries suffered by him for capricious exercise
of power and the National Commission finds it duly proved then it has a statutory obligation to award the
same. It was never more necessary than today when even social obligations are regulated by grant of
statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the
exercise of power that it should be for the sake of society. When the court directs payment of damages or
compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which
is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with
law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to
compensation for harassment or mental agony or oppression, which finding of course should be recorded
carefully on material and convincing circumstances and not lightly, then it should further direct the
department concerned to pay the amount to the complainant from the public fund immediately but to
recover the same from those who are found responsible for such unpardonable behaviour by dividing it
proportionately where there are more than one functionaries.
12. For these reasons all the appeals are dismissed. In Appeal No. 6237 of 1990 it is further directed that
the Lucknow Development Authority shall fix the responsibility of the officers who were responsible for
causing harassment and agony to the respondent within a period of six months from the date a copy of this
order is produced or served on it. The amount of compensation of Rs 10,000 awarded by the Commission
for mental harassment shall be recovered from such officers proportionately from their salary. Compliance
of this order shall be reported to this Court within one month after expiry of the period granted for
determining the responsibility. The Registrar General is directed to send a copy of this order to the
Secretary, Lucknow Development Authority immediately.
13. In Civil Appeal Nos. 6237 of 1990, 5257 of 1990, 3963 of 1989 and 2954-59 of 1992 the appellant shall
pay costs to the contesting respondents which are assessed at Rs 5,000 in each case. Since the
respondents have not put in appearance in other appeals there shall be no order as to costs.
Virender Kumar Gupta vs Anil Kumar Jain on 20 May, 2011

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO.1342 OF 2007

(From the order dated

14.3.07 in Appeal No.785/03 of the State Commission, Haryana)

Virender Kumar Gupta Petitioner

Versus

Anil Kumar Jain Respondent

BEFORE:

HONBLE
MR.JUSTICE ASHOK BHAN, PRESIDENT

HONBLE
MRS.VINEETA RAI, MEMBER

For
Petitioner : Mr.Mukesh M.Goel, Advocate

For
Respondent : In-person.

Pronounced on 20th May,

2011

ORDER
PER VINEETA RAI, MEMBER Mr.Virender Kumar Gupta, Petitioner in this case has come in revision
being aggrieved by the order of the State Consumer Disputes Redressal Commission, Haryana (hereinafter
referred to as the State Commission) in favour of Anil Kumar Jain, Advocate (hereinafter referred to as the
Respondent).
The facts of the case according to the Petitioner are that he had engaged the Respondent as his counsel who
had assured the Petitioner for appearing in the court on various dates to defend Petitioners case which he
failed to do on a number of occasions. Specifically, on 28.03.1998, Respondent in connivance with the
other party, deliberately and intentionally did not appear in the Execution Proceedings in favour of the
Petitioner which was therefore dismissed in default.
Respondent also did not inform the Petitioner about this for about a year and thereafter on 15.02.1999 to
cover up his tracks, he filed an application for restoration of the Execution mentioning the word pending
sine die implying thereby that he was not aware that execution proceedings had been dismissed in default.
According to the Petitioner, the Respondent was fully aware that there is no provision as per law for
restoration of execution proceedings and he therefore, acted illegally and with malafide intention to harm
the interests of the Petitioner and thus misused his position as an Advocate. As a result of this, Petitioner
had to suffer irreparable loss because the Execution got dismissed in default and the litigation which was in
his favour was of no use. Petitioner further stated that he suffered a heart attack because of this incident
and was admitted to Escorts Hospital where he had to pay Rs.1 lakh for his treatment. Petitioner, therefore,
filed a complaint before the District Forum seeking compensation of Rs.1,80,000/- from the Respondent.
Respondent has denied that there was any contract of service between him and the Petitioner and stated
that it was only on 15.02.1999 that the Petitioner approached the Respondent through telephone and
requested him to file an application for restoration of Execution Proceedings which he was informed were
adjourned sine die after the appeal filed by one Kuldeep Bakshi was dismissed by Additional Sessions
Judge, Rohtak. Respondent further stated that the Petitioner despite promising to pay him Rs.10,500/- as
fees, did not pay him a single paisa even after repeated reminders and filed a complaint before the District
Forum to avoid payment of fees. Respondent reiterated that he never appeared on behalf of the Petitioner
in any case including execution proceedings, apart from the case mentioned on 15.02.1999, and he was
thus not aware of any litigation in which the Petitioner was involved.
The District Forum after hearing both parties dismissed the complaint by observing that the Vakalatnama
purported to have been executed in this case was not placed on the file and the Petitioners contention that
the Respondent deliberately did not produce the same before the concerned court with ulterior motive lacks
credibility because Petitioner failed to produce any evidence in support of this contention. Nor was he able
to produce witnesses in whose presence the Vakalatnama was executed. Further, there is no receipt of any
fees which the Petitioner stated that he had paid to the Respondent. The District Forum further observed
that the fact that the Respondent filed an application for restoration of execution application pending sine
die proves that he did not know that the execution had been dismissed in default earlier. The District
Forum also observed that the Petitioner could have easily called his counsel who might have been busy in
another court to make sure that his case was not dismissed in default during execution. Had he been
vigilant, he could have assured filing of a fresh Execution Application immediately after the said dismissal.
The District Forum concluded that due to non-execution of Vakalatnama, Respondent is not covered by the
definition of consumer as laid down in the Consumer Protection Act, 1986.
Aggrieved by this order, Petitioner filed an appeal before the State Commission. The State Commission
observed that while it is a fact that the Respondents presence had been recorded on certain dates during the
course of the proceedings, it was not enough to establish his engagement as an Advocate to represent the
Petitioner since no Vakalatnama had been executed between the parties. Under the circumstances, the
District Forum was fully justified in coming to the conclusion that the Petitioner had failed to prove the
execution of Vakalatnama by him in favour of the Respondent in order to represent the Petitioner in his
case/execution proceedings. There is also no proof that the Petitioner paid the Respondent, Rs.10,500/- as
fees. The State Commission, therefore, upheld the order of the District Forum and dismissed the appeal.
Hence, the present revision petition.
Counsel for the Petitioner and Respondent were present in person and made oral submissions.
Counsel for Petitioner contended that the learned fora below erred in concluding that a lawyer is not
covered under the Consumer Protection Act, 1986 and cited a ruling of the National Commission in
R.P.No.1392 of 2006 - D.K. Gandhi Vs. M.Mathias (decided on 06.08.2007) wherein this Commission
ruled that the services rendered by lawyers are covered under the Consumer Protection Act, 1986. Counsel
for Petitioner further stated that it is on record that the Respondent attended the court hearings in respect of
Petitioners case on 09.05.1997, 19.07.1997, 20.09.1997, 15.11.1997 and 17.01.1998. Further, Respondent
intentionally did not appear on 28.03.1998 which resulted in Execution being dismissed in default. It is
also incorrect that there was no contract entered into between the parties. In fact, the Vakalatnama was
signed by the Petitioner in the residence-cum-office of the Respondent and given to the Respondent for
filing in the court but Respondent intentionally did not file the same. Therefore, the burden of producing
Vakalatnama was wrongly placed by the fora below on the Petitioner. Further, it is a general practice
according to the Petitioner not to issue a receipt in acknowledgement of fees paid to the Respondent which
was done in a good faith. Therefore, the appeal was wrongly dismissed.
Respondent who appeared in-person stated that there is no evidence at all that he had been engaged as a
counsel by the Respondent prior to 15.02.1999 when the Petitioner had requested for his help in filing a
restoration petition in respect of his execution case which had been adjourned sine die. Respondent
contended that being a lawyer, had he known that the execution petition had been dismissed in default, he
would not have filed a restoration for the same presuming it to be adjourned sine dine since there is no
legal provision for doing so. Petitioners Execution Petition was dismissed in default due to his own
carelessness and mistake and Respondent cannot be burdened with this. He further contended that he had
never attended any court proceedings as counsel and it was perhaps some other Anil Kumar Jain who
represented Petitioner and therefore, there was no Vakalatnama.
We have considered the oral submissions made by both parties.
The issue whether the services of a lawyer come within the purview of the Consumer Protection Act, 1986
is squarely covered by the judgment of this Commission in D.K.Gandhi (supra) wherein it has been
confirmed that the services rendered by a lawyer are covered under the Consumer Protection Act, 1986. In
fact, in all fairness, the District Forum in its order had also not given a categorical finding to the contrary;
it had only stated that in the absence of a Vakalatnama, the case is not maintainable under the Consumer
Protection Act. Respondent has contended before us as also the Fora below that prior to 15.02.1999, he had
never represented the Petitioner in any court proceedings and this is further confirmed by the absence of
his Vakalatnama. While it is a fact that there is no Vakalatnama filed in evidence in this case, there is clear
documentary evidence that Anil Kumar Jain had represented the Petitioner before the Civil Court not once
but on a number of occasions prior to 15.02.1999. This is clearly stated in the court proceedings as well as
in the orders of Civil Judge, Rohtak dated 09.08.1996. Various jiminy orders passed between 09.08.1996
to 28.03.1998, copies of which have been placed on record, are reproduced to show that the respondent had
appeared before the Civil Judge, Rohtak on various dates.
Present: A. K. Jain, Advocate for respondent, File not received.
Be awaited for 5.11.96.
Sd/-
C.J.
(S.D.) 9.8.96 Present : Counsel for the parties.
File not received. Be awaited for 18.1.97.

Sd/-
A.C.J.
5.11.96 Present : As above.
File not received. Be awaited for 15.3.97.
Sd/-
C.J.
(S.D.) 18.1.97 Present : As above.
File not received. Be awaited for 10.5.97 Present : Shri A. k. Jain, Advocate for the D.H.
Shri K. L. Malhotra, Advocate for J.D.

It is submitted by Ld. Counsel for the D.H. that the copy of application and judgment dated . Was not
received by him. Copies supplied today. Now for filing of reply, the case is adjourned to 19.7.97. Not
possible to fix up the case earlier, due to heavy pending files and in order to adjust more order cases.
Sd/-
C.J. (SD) Rohtak 9.5.97 Present : Sh. A. K. Jain, Advocate for D.H.
Sh. K. L. Malhotra, Advocate for J.Ds.
on the request the case stands adjourned to 20.9.94 for filing reply to petition dated 15.3.97.
Sd/-
C.J.
(S.D.) 19.7.97 Present : Counsel for the parties.
Adjournment is sought. Now to come up on 15.11.97 for reply.

Sd/-
C.J.
(S.D.) 2.9.97 Present : Counsel for the parties.
On the request, the case is adjourned to 17.1.98 for reply.
Sd/-
15.11.97 Present : Counsel for the parties.

Reply not filed. Adjournment is requested for reply to come up on 25.3.98.

Sd/-
C.J.
(S.D.) 17.1.98 Present : None Case called several times But none is present on behalf of the D.H.
As such the execution petition is hereby dismissed in default. File be consigned to Record room.

Sd/-
C.J.
(S.D.) 28/3/98 This clearly shows that Anil Kumar Jain was representing the petitioner on various dates.
Respondents plea before us that it was some other Anil Kumar Jain who may have represented Petitioner
lacks credibility, we note that this plea was never taken by him earlier. Respondent who is appearing in
person admitted before us that he had filed the application for restoration which was signed by him as A.
K. Jain which also go to show that the respondent was representing the petitioner. As the execution
application was dismissed for non-prosecution, he filed the application for restoration. It also defies logic
and reason that being the Petitioners counsel, Respondent was not aware of the execution proceedings and
his not being present on this crucial and critical date gives force to the contention of the Petitioner that
Respondent had deliberately stayed away with malafide intentions. Professionals like doctors and lawyers
as per the traditions of their profession are expected to serve their clients interest to the best of their
professional competence and ability. Failure to do so is clearly a deficiency in service. In the instant case,
we regret that Respondent did not serve the interest of his client and in fact acted against his interest
because of which the long drawn out court proceedings could not be executed in his favour. Learned fora
below erred in not correctly appreciating the clear evidence on record that the Respondent was the
Petitioners counsel. We, therefore, have no option but to set aside their orders and accept the revision
petition. We are of the view that in the interest of justice, Petitioner should be awarded Rs.1 lakh as
compensation for mental agony and harassment caused by deficiency in service on the part of the
Respondent. The Respondent is, therefore, directed to pay the Petitioner Rs.1 lakh within six weeks from
the date of receipt of this order failing which it would carry interest @ 6% p.a. from the date of filing of
the complaint till date of payment.
The revision petition is disposed of accordingly.

Sd/-
....
(ASHOK BHAN J.) PRESIDENT Sd/-
National Consumer Disputes Redressal
D.K. Gandhi vs M. Mathias on 6 August, 200

NCDRC

NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION
NEW DELHI

REVISION
PETITION NO.
1392 OF 2006

(From the order dated 10.3.2006 in Appeal

No.1815/2000 of
the State Commission, Delhi)

D.K. Gandhi

PS, National Institute of

Communicable
Diseases,

22, Sham Nath Marg,

Delhi-110 054. Petitioner

Vs
M. Mathias,

20, DhPetitione
Nirankari Colony,
Delhi-110 009 Respondent

BEFORE :

HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT

MRS. RAJYALAKSHMI RAO, MEMBER

For the Petitioner

In
Person

Member

For the Respondent In

Person

Dated the 6th August , 2007

O R D E R

M.B.SHAH, J. PRESIDENT.

The State Commission, Delhi, by its order dated 10.3.2006 in Appeal No.1815 of 2000 held that the
services rendered by the Lawyer would not come within the ambit of Section 2(1)(o) of the Consumer
Protection Act, 1986, as the client executes the power of attorney authorizing the Counsel to do certain acts
on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do any such
act. The State Commission further observed that it is a unilateral contract executed by the client giving
authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or
undertaking.
Against that order the Complainant has preferred this Revision Petition.

Findigns:
In our view, the reasoning given by the State Commission is totally erroneous. The ambit and scope
of Section 2(1)(o) of the Consumer Protection Act which defines service is very wide and by this time well
established. It covers all services except rendering of services free of charge or a contract of personal
service. Undisputedly, lawyers are rendering service. They are charging fees. It is not a contract of
personal service. Therefore, there is no reason to hold that they are not covered by the provisions of
the Consumer Protection Act,1986. The State Commission approached the question totally in an erroneous
manner by holding that by executing power of attorney the client authorizes the Lawyer to do certain acts
on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do such act.
It is to be stated that a Lawyer may not be responsible for the favourable outcome of a case as the
result/out come does not depend upon only on lawyers work. But, if there is deficiency in rendering
services promised, for which consideration in the form of fee is received by him, then the lawyers can be
proceeded against under the Consumer Protection Act. Further, it is totally erroneous to hold that it is a
unilateral contract executed by the client by giving authority to the lawyer to appear and represent the
matter. Apparently, it is a bilateral contract between the client and the lawyer, and, that too, on receipt of
fees, lawyer would appear and represent the matter on behalf of his client. To hold that contract is
unilateral is to ignore the fact that even after discussion the client may not engage the Advocate or the
Advocate may refuse to accept the brief. Hence, such a contract can never be said to be unilateral.

Further, it is not necessary to refer to judgments on this well settled law, still, we would refer to the case
of Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 , at pages 254-255, wherein the
Apex Court observed as under:
The concept of service thus is very wide. How it (the concept of service) should be understood and what it
means, depends on the context in which it has been used in any enactment. Clause ( o ) of the definition
section defines it as under:
service means service of any description which is made available to potential users and includes the
provision of facilities in connection with banking, financing, insurance, transport, processing, supply of
electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the
purveying of news or other information, but does not include the rendering of any service free of charge or
under a contract of personal service;
It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The
main clause itself is very wide. It applies to any service made available to potential users. The words any
and potential are significant. Both are of wide amplitude. The word any dictionarily means one or some or
all. In Blacks Law Dictionary it is explained thus, word any has a diversity of meaning and may be
employed to indicate all or every as well as some or one and its meaning in a given statute depends upon
the context and the subject-matter of the statute. The use of the word any in the context it has been used in
clause ( o ) indicates that it has been used in wider sense extending from one to all.

The Court held that the importance of the Act lies in promoting welfare of the society inasmuch as it
attempts to remove the helplessness of a consumer as he faces against powerful business; producers have
secured power to rob the rest. The might of public bodies which are degenerating into storehouses of
inaction where papers do not move from one desk to another as a matter of duty and responsibility but for
extraneous consideration leaving the common man helpless and shocked.

To what extent the aforesaid observations apply to various professions in the country is to be imagined and
it is a matter of guess work.

Thereafter in the case of Indian Medical Association v. V.P. Shantha and Others - 1995 (6) SCC 651 the
Apex Court discussed whether medical practitioner would be covered by the said definition. For this
purpose, it was observed that in the matter of professional liability, professions differ from other
occupations for the reason that professions operate in spheres where success cannot be achieved in every
case and very often success or failure depends upon factors beyond the professional mans control. In
devising a rational approach to professional liability which must provide proper protection to the consumer
while allowing for the factors mentioned above, the approach of the courts is to require that professional
men should possess a certain minimum degree of competence and that they should exercise reasonable
care in the discharge of their duties. If there is negligence on the part of medical practitioner, the right of
affected person to seek redress would be covered by the Act. Medical practitioners would not be outside
the purview of the provisions of the Act.
The same principle would apply in case of service to be rendered by a lawyer.

Lastly, in Kishore Lal Vs. Chairman, Employees State Insurance Corpn. (2007) 4 SCC 579 the Apex
observed:

It has been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be construed
liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial legislation,
it should receive a liberal construction.

Finally in the case of Jacob Mathew vs. State of Punjab (2005) 6 SCC 1 (para 18) the Apex Court has held
that in law of negligence, professionals such as lawyers, doctors, architects and others are included in the
category of persons professing some special skill or skilled persons generally and a professional may be
held liable for negligence on one of the two findings: either he was not possessed of the requisite skill
which he professed to have possessed, or, he did not exercise, with reasonable competence in the given
case, the skill which he did possess.

Further, this Commission has taken a consistent view that if there is deficiency in service rendered by the
Lawyers, complaint under the Consumer Protection Act, 1986 is maintainable.

For the reasons stated above, the impugned order passed by the State Commission is set aside and the
matter is remitted to the State Commission for deciding the same on merits in accordance with law. The
Appeal stands allowed accordingly. There shall be no order as to costs.
Duties of an Advocate towards his/her Client:

An advocate is bound to accept briefs from a client and should levy fee at par as compared to the
fee

demanded by his fellow advocates practicing at the same Bar and the nature of the case. The

advocate may justify the reason behind the refusal of a particular brief.

It is the duty of an advocate to serve the client once he/she has agreed to serve them. He shall give
a

valid reason to withdraw from the case and sufficient notice to the client. He shall refund a part of
the

fee not accrued to the client.

It is the duty of an advocate to not accept a case or a brief where he will be appearing as a witness.

Similarly, if the advocate has knowledge of appearing as a witness during the course of events, then

he should not continue further in the case.

It is important that the advocate shall make full and frank disclosures to the client in relation to the

parties and an interest in the controversy.

To give the best legal advice according to the best of his ability.

To maintain the clause of confidentiality and not disclose personal details of the client.

To keep an account of the client’s money entrusted to him and provide a copy of the same
whenever it

is required.

To intimate the client upon any changes or keep him updated about the matter.

To be diligent in handling the matter of a client.

To not take up the matter of opposite party in the same case after withdrawing from the client’s
end.
Section 35 in THE ADVOCATES ACT, 1961

35. Punishment of advocates for misconduct.—

(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any
advocate

on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to
its

disciplinary committee. 1[(1A) The State Bar Council may, either of its own motion or on application
made to

it by any person interested, withdraw a proceeding pending before its disciplinary committee and
direct the

inquiry to be made by any other disciplinary committee of that State Bar Council.]

(2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of the
case and

shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of
the State.

(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the
Advocate-

General an opportunity of being heard, may make any of the following orders, namely:—

(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar
Council,

direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice for such period as it may deem fit;

(d) remove the name of the advocate from the State roll of advocates.

(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall,
during the

period of suspension, be debarred from practising in any court or before any authority or person in
India.

(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General
may

appear before the disciplinary committee of the State Bar Council either in person or through any
advocate

appearing on his behalf. 3[Explanation.—In this section, 4[section 37 and section 38], the
expressions

“Advocate-General” and Advocate-General of the State” shall, in relation to the Union territory of
Delhi,
mean the Additional Solicitor General of India.]
National Consumer Disputes Redressal

D.K. Gandhi vs M. Mathias on 6 August, 200

NCDRC

NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION

NEW DELHI

REVISION

PETITION NO.

1392 OF 2006

(From the order dated 10.3.2006 in Appeal

No.1815/2000 of

the State Commission, Delhi)

D.K. Gandhi

PS, National Institute of

Communicable

Diseases,

22, Sham Nath Marg,

Delhi-110 054. Petitioner

Vs

M. Mathias,

20, DhPetitione

Nirankari Colony,

Delhi-110 009 Respondent

BEFORE :

HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT

MRS. RAJYALAKSHMI RAO, MEMBER

For the Petitioner

In

Person

Member

For the Respondent In

Person

Dated the 6th August , 2007

ORDER

M.B.SHAH, J. PRESIDENT.

The State Commission, Delhi, by its order dated 10.3.2006 in Appeal No.1815 of 2000 held that the
services

rendered by the Lawyer would not come within the ambit of Section 2(1)(o) of the Consumer
Protection Act,

1986, as the client executes the power of attorney authorizing the Counsel to do certain acts on his
behalf and

there is no term of contract as to the liability of the lawyer in case he fails to do any such act. The
State

Commission further observed that it is a unilateral contract executed by the client giving authority to
the

lawyer to appear and represent the matter on his behalf without any specific assurance or
undertaking.

Against that order the Complainant has preferred this Revision Petition.
Findigns:

In our view, the reasoning given by the State Commission is totally erroneous. The ambit and scope
of Section

2(1)(o) of the Consumer Protection Act which defines service is very wide and by this time well
established. It

covers all services except rendering of services free of charge or a contract of personal service.
Undisputedly,

lawyers are rendering service. They are charging fees. It is not a contract of personal service.
Therefore, there

is no reason to hold that they are not covered by the provisions of the Consumer Protection
Act,1986. The

State Commission approached the question totally in an erroneous manner by holding that by
executing power

of attorney the client authorizes the Lawyer to do certain acts on his behalf and there is no term of
contract as

to the liability of the lawyer in case he fails to do such act. It is to be stated that a Lawyer may not be

responsible for the favourable outcome of a case as the result/out come does not depend upon only
on lawyers

work. But, if there is deficiency in rendering services promised, for which consideration in the form
of fee is

received by him, then the lawyers can be proceeded against under the Consumer Protection Act.
Further, it is

totally erroneous to hold that it is a unilateral contract executed by the client by giving authority to
the lawyer

to appear and represent the matter. Apparently, it is a bilateral contract between the client and the
lawyer, and,

that too, on receipt of fees, lawyer would appear and represent the matter on behalf of his client. To
hold that

contract is unilateral is to ignore the fact that even after discussion the client may not engage the
Advocate or

the Advocate may refuse to accept the brief. Hence, such a contract can never be said to be
unilateral.

Further, it is not necessary to refer to judgments on this well settled law, still, we would refer to the
case

of Lucknow Development Authority v. M.K. Gupta , (1994) 1 SCC 243 , at pages 254-255, wherein
the Apex
Court observed as under:

The concept of service thus is very wide. How it (the concept of service) should be understood and
what it

means, depends on the context in which it has been used in any enactment. Clause ( o ) of the
definition section

defines it as under:

service means service of any description which is made available to potential users and includes the
provision

of facilities in connection with banking, financing, insurance, transport, processing, supply of

electrical or

other energy, board or lodging or both, housing construction, entertainment, amusement or the
purveying of

news or other information, but does not include the rendering of any service free of charge or under
a contract

of personal service;

It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The
main

clause itself is very wide. It applies to any service made available to potential users. The words any
and

potential are significant. Both are of wide amplitude. The word any dictionarily means one or some
or all. In

Blacks Law Dictionary it is explained thus, word any has a diversity of meaning and may be employed
to

indicate all or every as well as some or one and its meaning in a given statute depends upon the
context and the

subject-matter of the statute. The use of the word any in the context it has been used in clause ( o )
indicates

that it has been used in wider sense extending from one to all.

The Court held that the importance of the Act lies in promoting welfare of the society inasmuch as it
attempts

to remove the helplessness of a consumer as he faces against powerful business; producers have
secured power

to rob the rest. The might of public bodies which are degenerating into storehouses of inaction
where papers do

not move from one desk to another as a matter of duty and responsibility but for extraneous
consideration
leaving the common man helpless and shocked.

To what extent the aforesaid observations apply to various professions in the country is to be
imagined and it is

a matter of guess work.

Thereafter in the case of Indian Medical Association v. V.P. Shantha and Others - 1995 (6) SCC 651
the Apex

Court discussed whether medical practitioner would be covered by the said definition. For this
purpose, it was

observed that in the matter of professional liability, professions differ from other occupations for
the reason

that professions operate in spheres where success cannot be achieved in every case and very often
success or

failure depends upon factors beyond the professional mans control. In devising a rational approach
to

professional liability which must provide proper protection to the consumer while allowing for the
factors

mentioned above, the approach of the courts is to require that professional men should possess a
certain

minimum degree of competence and that they should exercise reasonable care in the discharge of
their duties.

If there is negligence on the part of medical practitioner, the right of affected person to seek redress
would be

covered by the Act. Medical practitioners would not be outside the purview of the provisions of the
Act.

The same principle would apply in case of service to be rendered by a lawyer.

Lastly, in Kishore Lal Vs. Chairman, Employees State Insurance Corpn. (2007) 4 SCC 579 the Apex
observed:

It has been held in numerous cases of this Court that jurisdiction of the Consumer Fora has to be
construed

liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial
legislation, it
should receive a liberal construction.

Finally in the case of Jacob Mathew vs. State of Punjab (2005) 6 SCC 1 (para 18) the Apex Court has
held that

in law of negligence, professionals such as lawyers, doctors, architects and others are included in the
category

of persons professing some special skill or skilled persons generally and a professional may be held
liable for

negligence on one of the two findings: either he was not possessed of the requisite skill which he
professed to

have possessed, or, he did not exercise, with reasonable competence in the given case, the skill
which he did

possess.

Further, this Commission has taken a consistent view that if there is deficiency in service rendered
by the

Lawyers, complaint under the Consumer Protection Act, 1986 is maintainable.

For the reasons stated above, the impugned order passed by the State Commission is set aside and
the matter is

remitted to the State Commission for deciding the same on merits in accordance with law. The
Appeal stands

allowed accordingly. There shall be no order as to costs.

Supreme Court of India
Ramon Services Pvt. Ltd vs Subhash Kapoor And Others on 14 November, 2000

Bench: S.P.Sethi

CASE NO.:
Appeal (civil) 6385 2000

PETITIONER:
RAMON SERVICES PVT. LTD.

Vs.

RESPONDENT:
SUBHASH KAPOOR AND OTHERS

DATE OF JUDGMENT: 14/11/2000

BENCH:
S.P.Sethi

JUDGMENT:
L.....I.........T.......T.......T.......T.......T.......T..J J U D G M E N T SETHI,J.
I agree both with the reasonings and the conclusions arrived at by Thomas, J. in his lucid judgment.
However, the matter being important having far reaching effects on the institution of the judiciary, and for
my views with respect to the role of the Courts during strikes by Advocates, I have opted to pen down my
own observations in addition. Persons belonging to the legal profession are concededly the elite of the
society. They have always been in the vanguard of progress and development of not only law but the Polity
as a whole. Citizenary looks at them with hope and expectations for traversing on the new paths and virgin
fields to be marched on by the society. The profession by and large, till date has undoubtedly performed its
duties and obligations and has never hesitated to shoulder its responsibilities in larger interests of the
mankind. The lawyers, who have been acknowledged being sober, task oriented, professionally responsible
stratum of the population, are further obliged to utilise their skills for socio-political modernization of the
country. The lawyers are a force for the preservance and strengthening of constitutional government as
they are guardians of the modern legal system. After independence the concept of social justice has
become a part of our legal system. This concept gives meaning and significance to the democratic ways of
life and of making the life dynamic. The concept of welfare state would remain in oblivion unless social
justice is dispensed with. Dispensation of social justice and achieving the goals set forth in the constitution
are not possible without the active, concerted and dynamic efforts made by the person concerned with the
justice dispensation system. The prevailing ailing socio- economic-political system in the country needs
treatment which can immediately be provided by judicial incision. Such a surgery is impossible to be
performed unless the Bench and the Bar make concerted effort. The role of the members of the Bar has
thus assumed great importance in the post independent era in the country. Generally strikes are antithesis
of the progress, prosperity and development. Strikes by the professionals including the Advocates cannot
be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions.
The services rendered by the advocates to their clients are regulated by a contract between the two besides
statutory limitations, restrictions and guidelines incorporated in the Advocates Act, the Rules made
thereunder and Rules of procedure adopted by the Supreme Court and the High Courts. Abstaining from
the courts by the Advocates, by and large, does not only affect the persons belonging to the legal
profession but also hampers the process of justice sometimes urgently needed by the consumers of justice,
the litigants. Legal profession is essentially a service oriented profession. The relationship between the
lawyer and his client is one of trust and confidence. With the strike by the lawyers, the process of court
intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act.
Law is no trade and briefs of the litigants not merchandise. This Court in The Bar Council of Maharashtra
v. M.V. Dabholkar & Ors. [1976 (2) SCC 291] placed on record its expectations from the Bar and
observed: "We wish to put beyond cavil the new call to the lawyer in the economic order. In the days
ahead, legal aid to the poor and the weak, public interest litigation and other rule-of-law responsibilities
will demand a whole new range of responses from the Bar or organised social groups with lawyer
members. Indeed, the hope of democracy is the dynamism of the new frontiersmen of the law in this
developing area and what we have observed against solicitation and alleged profit-making vices are distant
from such free service to the community in the jural sector as part of the profession's tryst with the People
of India."
In Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra Bombay & Others[1984 (2) SCC 556]
it was observed that, "An advocate stands in a loco parentis towards the litigants. Therefore, he is expected
to follow norms of professional ethics and try to protect the interests of his client in relation to whom he
occupies a position of trust. Counsel's paramount duty is to the client. The client is entitled to receive
disinterested, sincere and honest treatment". It would be against professional etiquette of a lawyer to
deprive his client of his services in the court on account of strike. No advocate can take it for granted that
he will appear in the court according to his whim or convenience. It would be against professional ethics
for a lawyer to abstain from the court when the cause of his client is called for hearing or further
proceedings. This Court in Tahil Ram Issardas Sadarangani & Ors. v. Ramchand Issardas Sadarangani &
Anr. [1993 Supp. (3) SCC 256] while deprecating the decreasing trend of service element and increasing
trend of commercialisation of legal profession, pointed out that it was for the members of the Bar to act
and take positive steps to remove such an impression before it is too late. By striking work, the lawyers fail
in their contractual and professional duty to conduct the cases for which they are engaged and paid. In
Common Cause, A Regd. Society v. Union of India & Ors. [1994 (5) SCC 557 it was observed, "Since
litigants have a fundamental right to speedy justice as observed in Hussainara Khatoon v. Home Secy.,
State of Bihar [1980 (1) SCC 81] it is essential that cases must proceed when they appear on board and
should not ordinarily be adjourned on account of the absence of the lawyers unless there are cogent reasons
to do so. If cases get adjourned time and again due to cessation of work by lawyers it will in the end result
in erosion of faith in the justice delivery system which will harm the image and dignity of the Court as
well". Noting casual and indifferent attitude of some of the lawyers and expecting improvement in quality
of service this Court in In Re: Sanjiv Datta, Deputy Secretary, Ministry of Information & BroadCasting,
New Delhi, etc. [1995 (3) SCC 619 held: "Of late, we have been coming across several instances which
can only be described as unfortunate both for the legal profession and the administration of justice. It
becomes, therefore, our duty to bring it to the notice of the members of the profession that it is in their
hands to improve the quality of the service they render both to the litigant-public and to the courts, and to
brighten their image in the society. Some members of the profession have been adopting perceptibly casual
approach to the practice of the profession as is evident from their absence when the matters are called out,
the filing of incomplete and inaccurate pleadings - many time even illegible and without personal check
and verification, the non-payment of court fees and process fees, the failure to remove office objections,
the failure to take steps to serve the parties, et al. They do not realise the seriousness of these acts and
omissions. They not only amount to the contempt of the court but do positive disservice to the litigants and
create embarrassing situation in the court leading to avoidable unpleasantness and delay in the disposal of
matters. This augurs ill for the health of our judicial system.
The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it
are its honourable members. Although the entry to the profession can be had by acquiring merely the
qualification of technical competence, the honour as a professional has to be maintained by its members by
their exemplary conduct both in and outside the court. The legal profession is different from other
professions in that what the lawyers do, affects not only an individual but the administration of justice
which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the
society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his
professional and in his private and public life. The society has a right to expect of him such ideal
behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its
members have played an enviable role in public life. The regard for the legal and judicial systems in this
country is in no small measure due to the tireless role played by the stalwarts in the profession to
strengthen them. They took their profession seriously and practised it with dignity, deference and devotion.
If the profession is to survive, the judicial system has to be vitalised. No service will be too small in
making the system efficient, effective and credible. The casualness and indifference with which some
members practise the profession are certainly not calculated to achieve that purpose or to enhance the
prestige either of the profession or of the institution they are serving. If people lose confidence in the
profession on account of the deviant ways of some of its members, it is not only the profession which will
suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to
a stage when the system will be found wrecked from within before it is wrecked from outside. It is for the
members of the profession to introspect and take the corrective steps in time and also spare the courts the
unpleasant duty. We say no more."
In Brahma Prakash Sharma v. State of U.P. [1953 SCR 1169] a Constitution Bench of this Court held that
a resolution passed by the Bar Association expressing want of confidence in the judicial officers amounted
to scandalising the court to undermine its authority which amounted to contempt of court. In Tarini Mohan
Barari, Re: [AIR 1923 Cal. 212] the Full Bench of the High Court held that pleaders deliberately
abstaining from attending the court and taking part in a concerted movement to boycott the court, was a
course of conduct held not justified. The pleaders had duties and obligations to their clients in respect of
matters entrusted to them which were pending in the courts. They had duty and obligation to cooperate
with the court in the orderly administration of justice. Boycotting the court was held to be high handed and
unjustified. In Pleader, Re: [AIR 1924 Rang 320] a Division Bench of the High Court held that a pleader
abstaining from appearing in the court without obtaining his client's consent and leaving him undefended,
amounted to unprofessional conduct. In U.P. Sales Tax Service Association v. Taxation Bar Association,
Agra & others [1995 (5) SCC 716] this Court observed: "It has been a frequent spectacle in the recent past
to witness that advocates strike work and boycott the courts at the slightest provocation overlooking the
harm caused to the judicial system in general and the litigant public in particular and to themselves in the
estimate of the general public. An advocate is an officer of the court and enjoys a special status in the
society. The workers in furtherance of collective bargaining organise strike as per the provisions of
the Industrial Disputes Act as a last resort to compel the management to concede their legitimate demands.
It is not necessary to go into the question whether the advocates, like workmen, have any right at all to go
on strike or boycott court. In Federal Trade Commission v. Superior Court Trial Lawyers' Assn. 493 US
411the attorneys who regularly accepted court appointments to represent indigent defendants in minor
felony and misdemenaour cases before the District of Columbia Superior Court sought an increase in the
statutorily fixed fees they were paid for the work they had done. When their lobbying efforts to get
increase in the fees failed, all the attorneys, as a group, agreed among themselves that they would not
accept any new cases after a certain date, if the District of Columbia had not passed legislation providing
for an increase in their fees. The Trial Lawyers' Association to which the attorneys belonged supported and
publicised their agreement. When they are not accepting the briefs which affected the District's criminal
justice system, the Federal Trade Commission (FTC) filed a complaint against the Trial Lawyers'
Association complaining that they had entered into a conspiracy to fix prices and go in for a boycott which
was an unfair method of competition violating Section 5 of the Federal Trade Commission Act (15 USCS
45). The administrative law judge rejected various defences of the Association and recommended that the
complaint to browbeat the boycott be dismissed. The Court of Appeals for the District of Columbia
reserved the FTC order holding that the attorneys are protected by Federal Constitution's First Amendment
etc. On certiorari, majority of USA Supreme Court speaking through Stevens, J. held that the lawyers had
no protection of the First Amendment (free speech) and the action of the group of attorneys to boycott the
courts constituted restraint of trade within the meaning of Section 1 of Shreman Act against unfair method
of competition. Though the object was enactment of a favourable legislation, the boycott was the means by
which the attorneys sought to obtain favourable legislation. The Federal Constitution's First Amendment
does not protect them."
In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. [1999 (1) SCC 37] to which one of us (Thomas, J.)
was a party observed: "Judicial function cannot and should not be permitted to be stonewalled by
browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its
even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member
thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being
demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear.
But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a
judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open court."
It was further held: "If any counsel does not want to appear in a particular court, that too for justifiable
reasons, professional decorum and etiquett require him to give up his engagement in that court so that the
party can engage another counsel. But retaining the brief of his client and at the same time abstaining from
appearing in that court, that too not on any particular day on account of some personal inconvenience of
the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate.
No court is obliged to adjourn a cause because of the strike call given by any association of advocates or a
decision to boycott the courts either in general or any particular court. It is the solemn duty of every court
to proceed with the judicial business during court hours. No court should yield to pressure tactics or
boycott calls or any kind of browbeating.
A three-Judge Bench of this Court has reminded members of the legal profession in Lt.Col. S.J. Chaudhary
v. State (Delhi Admn.) (1984) 1 SCC 722 that it is the duty of every advocate who accepts a brief to attend
the trial and such duty cannot be overstressed. It was further reminded that 'having accepted the brief, he
will be committing a breach of his professional duty, if he so fails to attend'.
"A lawyer is under obligation to do nothing that shall detract from the dignity of the court, of which he is
himself a sworn officer and assistant. He should at all times pay differential respect to the Judge, and
scrupulously observe the decorum of the courtroom."
(Warvelle's Legal Ethics, at p.182) Of course, it is not a unilateral affair. There is a reciprocal duty for the
court also to be courteous to the members of the Bar and to make every endeavour for maintaining and
protecting the respect which members of the Bar are entitled to have from their clients as well as from the
litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum and
therefore the aforesaid mutual respect is the sine qua non for the efficient functioning of the solemn work
carried on in courts of law. But that does not mean that any advocate or a group of them can boycott the
courts or any particular court and ask the court to desist from discharging judicial functions. At any rate,
no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court."
In the light of the consistent views of the judiciary regarding the strike by the advocates, no leniency can
be shown to the defaulting party and if the circumstances warrant to put such party back in the position as
it existed before the strike. In that event, the adversary is entitled to be paid exemplary costs. The litigant
suffering costs has a right to be compensated by his defaulting counsel for the costs paid. In appropriate
cases the court itself can pass effective orders, for dispensation of justice with the object of inspiring
confidence of the common man in the effectiveness of judicial system. In the instant case respondent has to
be held entitled to the payment of costs, consequent upon the setting aside of the ex-parte order passed in
his favour. Though a matter of regret, yet it is a fact, that the courts in the country have been contributory
to the continuance of the strikes on account of their action of sympathising with the Bar and failing to
discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking
advocates. I find myself in agreement with the submission of Sh.M.N. Krishnamani, Senior Advocate that
the courts were sympathising with the Bar by not agreeing to dismiss the cases for default of appearance of
the striking advocates. I have my reservations with the observations of Thomas, J. that the courts had not
been sympathising with the Bar during the strikes or boycotts. Some courts might have conducted the cases
even during the strike or boycott periods or adjourned due to helplessness for not being in a position to
decide the lis in the absence of the counsel but majority of the courts in the country have been impliedly
sympathisers by not rising to the occasion by taking positive stand for the preservation of the high
traditions of law and for continued restoration of the confidence of the common man in the institution of
judiciary. It is not too late even now for the courts in the country to rise from the slumber and perform their
duties without fear or favour particularly after the judgment of this Court in Mahabir Singh's case(supra).
Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting
courts may also be contributory to the contempt of this Court.
Issue 2 – whether the award passed by the NCDRC
is in violation of the fundamental right to practice of
any profession,or to carry on any occupation as
contemplated under article 19 (1) (g) of the
Constitution of India ?

lawyers must avoid situations involving a conflict of

interest between the lawyer’s personal interest and his
duty to the client, and refrain from using the fiduciary
relationship as a conduit for personal gain
And in case if a personal interest arise ,the case should
be handled over to any juniors or other advocates to
represent his client

There are no restriction imposed on the petitioner which

restrains them from practicing their profession
It's basically a compensation imposed for their
deficiency

If compensation is regarded as a restrain on ,profession

there can be no justice seeked on matters that needs
to be compensated

In Tiffin Hldg Ltd. v.Millican,16 Riley J. stated the

obligations of a lawyer as follows:

a) To be skillful and careful.

b) To advise his client on all matters relevant to his
retainer, so far as may be reasonably necessary.
c) To protect the interest of his client.
d) To carry out the instructions of his client by all proper
means.
e) To consult with his client on all questions of doubt
which do not fall within the express or implied discretion
left to him.
f) To keep his client informed to such an extent as may
be reasonably necessary,

The conduct of petitioners are not even close to any

code of conduct mentioned here

lawyers must act at all times uberimaefidei, with utmost

good faith to the client (court, other lawyer and to the
member of the public).

Issue 3
Whether the award passed by the NCDRC is correct
and lawful ?

It is maintainable because the deficiency of Advocates

come under the ambit of CPA
And hence the award passed by NCDRC is
maintainable

arguments put forwarded by the petitioners was that

they were governed by the provisions of the Indian
Advocates Act, 1961 and that they shall not be made to
answer the claims under Consumer Protection Act. It
may be appropriate to mention here that an exactly
similar plea was taken by the medical professionals
before the Supreme Court in Indian Medical Association
v.V.P.Shantha.35 However, while rejecting their plea,
the Apex Court had categorically observed, “The fact
that medical practitioners belong to the medical
profession and are subject to the disciplinary control of
the Medical Council of India and/or State Medical
Councils constituted under the provisions of the Indian
Medical Council Act, would not exclude the services
rendered by them from the ambit of the Act.

The petitioners finally argued that a client, who engaged

an advocate for professional services, was not a
‘consumer’ under the section 2 (1)(d) of CPA. This
contention was also rejected by the High Court. The
Court held that the language of the said section was
very wide and that it used the expression ‘avails of any
service for a consideration’. Thus according to the Court
“that will not certainly exclude the services rendered by
an advocate.”The High Court referred to the definition of
the term service as given in section 2 (1)(d) of CPA. A
reference was also made to a land mark decision of the
Supreme Court that is the case of Lucknow
Development Authority v.M.K.Gupta.In the said case for
instance, the Supreme Court while referring to the word
‘service’ had made the following observations:

“The term has a variety of meanings. It may mean any

benefit or any act resulting in promoting interest or
happiness. It may be contractual, professional, public,
domestic, legal, statutory etc. the concept of service is
very wide.”

Thus the Madras High Court rejected all arguments of

the petitioners and dismissed all the writ petitions.
According to the Court, the Consumer Disputes
Redressal Forums had the necessary jurisdiction to deal
with the claims against advocates. Referring to the
definition of the term ‘service’ in CPA, the Court
observed that, the first part of the section makes it clear
that services of any description will fall within the scope
of the section and “this will undoubtedly include the
service of a lawyer to his client”

The lawyers render service and charge a fee for it, the
basic requirement of service under CPA, 1986. A lawyer
may not be responsible for the favourable outcome of a
case, but he should be liable if there is a deficiency in
rendering the promised services.
In S. Mahendranv. ChirayinkilC. P. Badra Kumar,59
where advocate failed to file a suit; it amounted a
deficiency in service on the part of the advocate. The
complainant was held entitled to costs fixed by the
NCDRC and was directed to be paid by the opposite
party to the complainant within one month.

The professional accountability of an advocate may be

fixed independent of Consumer Protection Act also. In a
judgment of far reaching consequences, the Supreme
Court in Ramon Services Pvt. Ltd. v.Subhash Kapoor,62
has observed:

“the litigant who suffers entirely on account of his

advocates non-appearance in court had also the remedy
to sue the advocate for damages… If advocate claims
that his right to strike must be without any loss to him
but the loss must only be for his innocent client, such a
claim is repugnant to any principle of fair play and
canons of ethics. So when he opts to strike work or
boycott the court, he must as well be prepared to bear at
least the pecuniary loss suffered by the litigant client
who entrusted the brief to that advocate with all
confidence that his case would be safe in the hands of
that advocate.”
The Consumer Forums are empowered to give
appropriate relief according to section 1465 of CPA and
also other relief like, a client can recover the fee paid to
the lawyer for any deficiency in service. If it is yet to be
paid, the lawyer forfeits his right to recover the fee. In
C.S. Sarmav. P.V. Venkatswamy,66 the complainant
had paid fee for filing the suit but the lawyer did not file
the suit. The lawyer was directed to pay fee with
interest. Likewise, in Virender Kumar Gupta v. Anil
Kumar Jain,67 where in an execution proceeding, while
representing the petitioner, the respondent (advocate)
did not appear and the same was dismissed for default
the petitioner was awarded Rs.1 lakh as compensation
for mental agony and harassment caused by deficiency
in service on the part of the respondent.