Bombay High Court
The Executive Engineer, ... vs Dnyaneshwar S/O Haribhau Barai ... on 8 August, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 652 OF 2016.
The Executive Engineer,
Maharashtra Jeevan Pradhikaran
Construction Division No.2,
Amravati. ... APPELLANT
VERSUS
1. Dnyaneshwar s/o Haribhau Barai,
aged about 55 years, Occupation
Business and Agriculturist.
2. Arun s/o Sitaramji Doijad,
aged about 38 years, Occupation
Business and Agriculturist.
Both r/o Shendurjanaghat, Taluka
Warud, District Amravati.
3. The State of Maharashtra, through
the Collector, Amravati.
4. The Special Land Acquisition
Officer, Zilla Parishad Works,
Amravati. ... RESPONDENTS
....
Shri B.D. Pandit, Advocate for the appellant.
Shri S.S. Shingane, Advocate for the respondent Nos.1 and 2.
Shri M.M. Ekre, Assistant Government Pleader for respondent Nos.3 and 4.
....
CORAM : PRASANNA B.VARALE, J.
DATED : 08TH AUGUST, 2016.
ORAL JUDGMENT :
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Admit. Heard finally by consent of the learned Counsel
appearing on behalf of the respective parties.
2. By way of present appeal, the appellant/Maharashtra Jeevan
Pradhikaran Construction Division No.2 (hereinafter referred as
"Pradhikaran" for the sake of brevity) is challenging the judgment and
order passed by the learned Civil Judge, Senior Division, Amravati dated
02nd May, 2004 thereby allowing the reference partly.
3. The respondent Nos.1 and 2 were the claimants whose land
was acquired under award dated 19.11.2004. A reference petition was filed
at the instance of these claimants for seeking enhancement of
compensation which is partly allowed.
4. Shri Pandit, the learned Counsel appearing on behalf of the
appellant submits that the appellant/Pradhikaran was referred to as
respondent No.3 in the Land Acquisition Reference No. 152 of 2008.
Though the Pradhikaran was party respondent No.3 in the reference, the
factum of the judgment and award passed by the reference Court came to
the knowledge of the appellant/Pradhikaran only when a show cause
notice was received in Regular Darkhast No. 51 of 2014 from the learned
Civil Judge, Senior Division, Amravati dated 13.10.2014. Till receipt of the
said notice, the Pradhikaran was not at all aware about the Land
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Acquisition Case Proceedings No. 152 of 2008. Shri Pandit, the learned
Counsel further submits that the said land was acquired for Water
Purification Unit at the instance of the Special Land Acquisition Officer.
He also submits that though no formal authorization was issued, the
learned District Government Pleader appeared on behalf of respondent
Nos.1 to 3 in the reference proceedings. The learned Counsel submits that
the written statement on behalf of respondent Nos.1 to 3 was also filed in
the reference proceedings and the learned District Government Pleader
filed a pursis to the effect that the respondent Nos.1 to 3 are not willing to
adduce any evidence. The submission of Shri Pandit, the learned Counsel
for the appellant is that as the appellant/Pradhikaran was completely
unaware of the proceedings and the learned District Government Pleader
filed a pursis to the effect of not adducing any evidence, the reference
claim proceeded practically without contest for and on behalf of the
appellant/ Pradhikaran. It is the submission of Shri Pandit that it was only
a formal participation in the proceedings for and on behalf of the
appellant/ Pradhikaran through the learned District Government Pleader;
whereas, in fact, neither any authorization nor any instructions were given
to the learned District Government Pleader on behalf of the appellant/
Pradhikaran. Shri Pandit, the learned Counsel for the appellant submits
that had opportunity been granted to the appellant/Pradhikaran, the
appellant/Pradhikaran would have been in a position to submit before the
reference Court that the rate was properly determined by the Land
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Acquisition Officer and the compensation awarded was just and adequate
and no interference was warranted. Shri Pandit, the learned Counsel
submits that even the appellant/Pradhikaran could have tendered
evidence in support of the claim of the appellant/Pradhikaran and as no
such opportunity was granted to the appellant/Pradhikaran, the reference
Court, on an erroneous assumption and presumption, relied on the
material presented by the claimants and arrived at an erroneous
conclusion. Shri Pandit, the learned Counsel for the appellant submits
that a statement or undertaking submitted before the Court through a
Counsel without there being a prior consent of the party is of no
consequence and such an undertaking ought not to have been considered
by the reference Court.
5. Shri Pandit, the learned Counsel for the appellant/Pradhikaran
in support of his submission places reliance on the unreported judgment
of the Apex Court in the case of Himalayan Cooperative Group Housing
Society .v. Balwan Singh (2015 (42) SCD 712) and the judgment of the
Apex Court in the case of Abdul Rasak .v. Kerala Water Authority
(reported in 2002 Law Suit (SC), 121). On these submissions, Shri Pandit,
the learned Counsel for the appellant prays for setting aside the judgment
and order passed by the reference Court and remand of the matter to the
reference Court for a decision afresh by affording an opportunity to the
appellant by participating in the claim reference.
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6. Shri Shingane, the learned Counsel appearing on behalf of
respondent Nos.1 and 2, per contra, submits that the appeal filed by the
appellant/Pradhikaran is unsustainable on the ground that no opportunity
was granted to the appellant/Pradhikaran. He submits that in the present
matter, it is not the case of no opportunity granted to the
appellant/Pradhikaran but the case is that though the opportunity was
granted to the appellant/Pradhikaran, the appellant/Pradhikaran chose
not to participate in the proceedings. Shri Shingane, the learned Counsel
further submits that the record of the reference Court clearly shows that a
notice was issued to the appellant/Pradhikaran i.e. respondent No.3 before
the reference Court. He also submits that the record of the reference Court
shows that a notice was duly served and it was failure on the part of the
appellant/Pradhikaran to not to appear or engage a Counsel on behalf of
the appellant/Pradhikaran to contest the claim of the claimants in the
reference. The learned Counsel further submits that for the fault of the
appellant/Pradhikaran, the claimants may not be subjected to a prejudice.
Shri Shingane, the learned Counsel submits that for the untenable ground,
if the matter is remanded back to the reference Court, the claimants/
respondent Nos.1 and 2 will have to wait for further indefinite period for
their rightful claim of just and proper compensation for the acquisition of
their lands.
7. As the appeal revolves around the above referred limited
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controversy, it would be necessary to refer to certain factual aspects.
Perusal of the judgment and order passed by the reference Court shows
that the appellant/Pradhikaran was respondent No.3 before the reference
Court. The appellant/Pradhikaran was represented through the learned
District Government Pleader. The respondent Nos.1 and 2 were the
owners of agricultural land admeasuring 01 acre and 40 R of village
Malkapur, Taluka Warud, District Amravati. Out of the said land, 72 R
land was acquired for the purpose of construction of Water Purification
Plant and Water Tank for Shendurjanaghat. Notification under Section 4
was published on 15.11.2001. The Special Land Acquisition Officer
declared the award on 19.11.2004 and awarded the compensation of
Rs.1,50,000/- per hectare. The respondent Nos.1 and 2 being dissatisfied
with the compensation, preferred the reference application seeking
enhancement of the compensation. The notice of the reference claim was
served on respondent No.3 i.e. appellant/Pradhikaran. The report of the
proposal was placed on record. The written statement was also filed on
behalf of respondent Nos.1 to 3 resisting the claim of the petitioners. A
pursis to the effect that the respondent Nos.1 to 3 were not willing to
adduce any evidence was filed. The respondent Nos.1 to 3 were
represented through the learned District Government Pleader. It is the
specific submission of Shri Pandit, the learned Counsel for the appellant
that even though the notice was received by respondent No.3/appellant/
Pradhikaran and before any steps were taken to engage the Counsel on
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behalf of respondent No.3, the learned District Government Pleader
voluntarily caused his presence for and on behalf of respondent No.3 i.e.
the appellant/Pradhikaran. The written statement was also filed on behalf
of respondent No.3 for not adducing any evidence. Thus, the submission
is that even though the notice was issued to respondent No.3 i.e.
appellant/Pradhikaran, there was no willful and positive participation of
the appellant/Pradhikaran before the reference Court.
8.
It is the submission of Shri Pandit, the learned Counsel for the
appellant that on the backdrop of this fact the participation in the
proceedings would have been only effective if a proper opportunity was
granted to the appellant/Pradhikaran to contest the claim on merits by
leading evidence. As such, effective participation was not provided to the
appellant/Pradhikaran. Merely issuance of notice would be a futile
exercise and a statement i.e. pursis filed on behalf of the
appellant/Pradhikaran through the District Government Pleader for not
adducing the evidence would be an undertaking to the Court of the
Counsel without there being any consent of the client. A reliance was
placed on the judgment of the apex Court in the matter of Himalayan
Cooperative Group Housing Society .v. Balwan Singh (cited supra). In the
said matter, the learned Counsel appearing for the society gave consent
before the Court for allotment of certain flats. The concession of the
learned Counsel appearing for the society was without any express consent
8 fa652.16
by the appellant/Society. In a review petition filed by the society before
the High Court, a ground was raised that the appellant/Society cannot
resile from the concession made by his Counsel before the writ Court. On
the backdrop of the said controversy, the apex Court framed the issues for
consideration, namely -
"15. The issues that would arise for consideration and
decision are :
(a)
What is the jurisdiction of the Court while
dealing with a petition filed under Articles 226
and 227 of the Constituting of India ?
(b) Whether the counsel appearing for an appellant-
Society could make concession for or on behalf
of the appellant-Society without any express
instructions/authorization in that regard by the
Society ?
(c) Whether such a concession would bind the
appellant-Society and its members ?
(d) Since the subject matter of the concession made
by the counsel was not the issue before the Writ
Court, whether the same would bind the
appellant-Society and its members ?"
The issue Nos. (b) and (c) would be relevant for our purposes.
While dealing with these issues, the apex Court observed thus -
"22. If for any reason, the Writ Court perceived the oral
request made by the respondents to have justified the ends of
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justice and desired to accept the concession so made by the
counsel for appellant-Society, the said request not being the
subject matter of the Writ Petition required the Court to query
whether the counsel for the appellant-Society has been
authorized to make such a statement by the appellant-Society
or whether any such resolution has been passed by the
appellant-Society giving concession in matters of this nature.
Since the required caution was not exercised by the learned
Judges of the Writ Court, the directions issued by the Writ
Court suffer from infirmity and hence require to be set aside.
23.
Apart from the above, in our view lawyers are
perceived to be their client's agents. The law of agency may
not strictly apply to the client - lawyer's relationship as
lawyers or agents, lawyers have certain authority and certain
duties. Because lawyers are also fiduciaries, their duties will
sometimes more demanding than those imposed on other
agents. The authority-agency status affords the lawyers to act
for the client on the subject matter of the retainer. One of the
most basic principles of the lawyer-client relationships is that
lawyers owe fiduciary duties to their clients. As part of those
duties, lawyers assume all the traditional duties that agents
owe their principals and, thus, have to respect the client's
autonomy to make decisions at a minimum, as to the
objectives of the representation. Thus, according to generally
accepted notions of professional responsibility, lawyers should
follow the client's instructions rather than substitute their
judgment for that of the client. The law is now well settled
that a lawyer must be specifically authorised to settle and
compromise a claim, that merely on the basis of his
employment he has no implied or ostensible authority to bind
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his client to a compromise/settlement. To put it alternatively
that a lawyer by virtue of retention, has the authority to choose
the means for achieving the client's legal goal, while the client
has the right to decide on what the goal will be. If the decision
in question falls within those that clearly belong to the client,
the lawyers conduct in failing to consult the client or in
making the decision for the client, is more likely to constitute
ineffective assistance of counsel."
The apex Court then referred to the Bar Council of India Rules
and the Advocates Act and the certain other judgments of the apex Court
and further observed thus -
"32. Therefore, it is the solemn duty of an advocate not
to transgress the authority conferred him by the client. It is
always better to seek appropriate instructions from the client
or his authorized agent before making any concession which
may, directly or remotely, affect the rightful legal right of the
client. The advocate represents the client before the Court
and conducts proceedings on behalf of the client. He is the
only link between the Court and the client. Therefore, his
responsibility is onerous. He is expected to follow the
instructions of his client rather than substitute his judgment.
33. Generally, admission of fact made by a counsel is
binding upon their principals as long as they are unequivocal;
where, however, doubt exists as to a purported admission, the
Court should be wary to accept such admissions until and
unless the counsel or the advocate is authorized by his
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principal to make such admissions. Furthermore, a client is
not bound by a statement or admission which he or his lawyer
was not authorized to make. Lawyer generally has no implied
or apparent authority to make an admission or statement
which would directly surrender or conclude the substantial
legal rights of the client unless such an admission or
statement is clearly a proper step in accomplishing the
purpose for which the lawyer was employed. We hasten to
add neither the client nor the Court is bound by the lawyer's
statements or admissions as to matters of law or legal
conclusions. Thus, according to generally accepted notions
of professional responsibility, lawyers should follow the
client's instructions rather than substitute their judgment for
that of the client. We may add that in some cases, lawyers can
make decisions without consulting client. While in others,
the decision is reserved for the client. It is often said that the
lawyer can make decisions as to tactics without consulting the
client, while the client has a right to make decisions that can
affect his rights. We do not intend to prolong this discussion.
We may conclude by noticing a famous statement of lord
Brougham:
"an advocate, in the discharge of his duty knows but one person
in the world and that person is his client."
9. Thus, in view of the above referred observations of the apex
Court, I find a considerable merit in the submission of Shri Pandit, the
learned Counsel for the appellant/Pradhikaran. There is also merit in the
submission of Shri Pandit, the learned Counsel that in the present matter
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though the notice was issued to the appellant/Pradhikaran, there was no
effective participation of the appellant/Pradhikaran in the reference claim
before the reference Court. There is also merit in the submission of the
learned Counsel that the pursis which was filed on behalf of respondent
Nos.1 to 3 for not adducing any evidence was under the own authorization
of the learned District Government Pleader and no such authorization or
consent was accorded by the appellant/Pradhikaran and as such the act of
the appellant/Pradhikaran by the learned District Government Pleader
was on his own volition. Shri Pandit, the learned Counsel for the appellant
is justified in relying on the judgment of the apex Court in the matter of
Abdul Rasak .v. Kerala Water Authority (cited supra). The apex Court
granted an opportunity to the acquiring body as it was not party to the
reference proceedings and the apex Court by referring to the Agra
Development Authority case observed that simply because the local
authority was aware of the proceedings and had participated in the
meeting where the matter of compensation was discussed, was not a
sufficient compliance with Section 50 of the Land Acquisition Act. In the
present matter also, though the notice was issued to the
appellant/Pradhikaran, there was no opportunity of participation in the
proceedings granted to the appellant/Pradhikaran in its real sense.
Considering this very aspect of the matter, in my opinion, the appellant
must have an opportunity of participation to contest the claim before the
reference Court.
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10. In the result, the judgment and the order of the reference Court
is set aside. The appellant/Pradhikaran is permitted to participate in the
proceedings. The appellant/Pradhikaran be permitted to lead the
evidence if such request is made to the reference Court. The learned
reference Court shall also consider the fact that the reference was filed in
the year 2008 and now the matter is remanded back to the reference Court
for a decision afresh, as such, the reference Court shall endeavour to
decide the reference as early as possible by giving an equal opportunity to
the parties and preferably within six months from the date of receipt of this
order. The reference Court may consider the prayer of depositing the
amount, if such prayer is made at the instance of the appellant.
JUDGE
*rrg.
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C E R T I F I C A T E
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