Whether Municipal Corporation can collect license fees for erection of the advertisement hoardings?

The petitioner has also sought declaration that after the introduction of the Goods and Service Tax (for short "the GST") with effect from 1st July 2017 in light of the 101st Amendment of the Constitution, the respondent Corporation cannot collect any tax on advertisement hoardings in the private properties and consequently cannot collect any license fees in garb of tax for the advertisement hoardings in the private properties. {Para 4}

5. The petitioner has also challenged the constitutional validity of the Section 386(2) of the Gujarat Provincial Municipal Corporation Act, 1949 (for short "the GPMC Act") and sought declaration that the said provision is ultra vires to the Article 243X of the Constitution of India.

37. In view of the above dictum of law, provisions of Sub-section-2 of Section 386 of the GPMC Act is constitutionally valid as per Etnry-5 read with Entry-66 of list-II of the VIIth Schedule and deletion of Entry-55 of list-2 cannot be said to have any effect on the power to levy fees as provided by Section 386(2) of the GPMC Act.

 Whereas in the facts of the present case, section 386(2) of the GPMC Act provides for levy of license fees for license to place advertising hoardings in private properties for license to be issued as per provisions of the GPMC Act and hence the same can never be considered as tax because the person who is granted license will have privilege to place advertising hoarding in private property and for granting such privilege fees is levied.

45. As we are of the opinion that the license fee levied for granting license for placing advertising hoardings in private property is "fee" and not "tax". 

Gujarat High Court

Selvel Media Services Private limited vs The Municipal Corporation Of The city of Ahmedabad... on 20 October, 2020

Bench: J.B.Pardiwala, Bhargav D. Karia

   C/SCA/4538/2019      

Read full Judgment here: Click here

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Whether Advocate representing party before Arbitrator can enter in to contingent contract with party for his fees?

In his deposition at Exhibit-25 the said partner had admitted that before the arbitrator he had appeared as a counsel for the defendant. It is in the light of this piece of evidence that the defendant has sought to rely upon dictionary meaning of the word “counsel”.As per dictionary meaning of said word it means advise or assistance/one or more lawyer who represents a client. It is on this basis that it is urged that the said partner being a qualified Advocate, he was precluded from seeking remuneration on the basis of the outcome of the proceedings in which he represented the defendant.

12. In Re K.L Gauba (supra) the provisions of Section 23 of the Act of 1872 were considered in the light of a contingent contract entered into by an Advocate with his client. It is in that context and after finding that Mr. Gauba had represented his client as an Advocate, it was held that the contingent contract entered into between the said parties which created a financial interest in the subject matter of the cause on a successful determination of the suit was unworthy of the legal profession. On that basis it was held that the said agreement was opposed to public policy and the conduct of the said Advocate amounted to professional misconduct. The aforesaid decision of the Division Bench has been affirmed by the Honourable Supreme Court. In the matter of Re Mr. Gauba (supra) in paragraph 11 thereof it has been observed that the rigid English rules of champerty and maintenance do not apply in India but if such agreement had been entered into between third parties it would have been legally enforceable and good. It was observed that there was nothing morally wrong, nothing to shock the conscience, nothing against public policy and public morals in such a transaction “per se” when a legal practitioner was not concerned. The Honourable Supreme Court however observed that it was not the question it had to actually consider.

13. The aforesaid observations though in the passing are in the nature of obiter dicta and hence binding on this Court. The aforesaid observations are clear that with regard to such an agreement in which a legal practitioner is not involved, the same would be legally enforceable. It is thus clear that an agreement of the aforesaid nature if entered into by an Advocate would be against public policy and the same may not be so when third parties are involved.

14. There is no evidence on record to indicate that the partner of the plaintiff-firm acted as an Advocate so as to represent the defendant in the arbitration proceedings. The learned counsel for the plaintiff has rightly relied upon the provisions of Order III Rules 1 and 2 of the Code along with Section 2(15) of the Code. Section 2(15) of the Code defines the expression “pleader” to mean any person entitled to appear and plead for another in Court and includes an advocate, a vakil and an attorney of a High Court. Order III Rules 1 and 2 presumes appearance before the Court as well as recognises agent. A ‘pleader’ has been defined in the Black's Law Dictionary as a person who pleads in Court on behalf of the another.

15. From the aforesaid it becomes clear that the partner of the plaintiff-firm had represented the defendant in the arbitration proceedings as a counsel. That representation before the arbitrator could not be said to be a representation before the Court. There is however no material on record to indicate that the said partner conducted the proceedings before the arbitrator as an Advocate. Mere fact that the said partner happened to be a law graduate by itself would not be sufficient to conclude that the agreement entered into by him for being entitled to remuneration based on the outcome of the arbitration proceedings would render that agreement contrary and opposed to public policy and hence void under Section 23 of the Act of 1872. The law as laid down in B. Sunitha (supra) therefore would not apply to the facts of the present case and there is no basis whatsoever to hold that the agreement dated 14/08/2007 under which the plaintiff was entitled to receive fees based on the outcome and valuation of the award was contrary to Section 23 of the Act of 1872. Point No.(i) is accordingly answered by holding that the agreement dated 14/08/2007 at Exhibit-31 was not hit by the provisions of Section 28 of the Act of 1872.

In the High Court of Bombay

(Before A.S Chandurkar, J.)

Jayaswal Ashoka Infrastructures Pvt. Ltd. v. Pansare Lawad Sallagar 

First Appeal No. 106 of 2015

Decided on March 7, 2019

Citation:2019 SCC OnLine Bom 578, 2019(5) MHLJ 689

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Whether Advocate can prosecute litigant for cheating if they fail to pay his fees?

Conspectus to facts/case needs revaluation. The accused-applicants, already harassed couple, with trust deficit, difference of opinion in matrimonial life, though well educated, approached the complainant for legal advise. This contact was with a hope of proper advise. Naturally, to a person professing a noble profession. The complainant, as Advocate, after hearing the parties handed draft petition for mutual divorce. There is no controversy to this aspect. The fact remains, if the couple has thereafter decided not to prosecute their controversies or discord and to have a happy married life, can it be said to be dishonest intention to approach the complainant for his legal advise. The answer is, there could not be of dishonest intention at initial stage. It is absurd to think, for a couple, to hatch a conspiracy, will approach an advocate making a show of difference in their marital life and ensure the Advocate to part with his valuable knowledge which is his property to deliver by way of a divorce petition. Basic requirement for invoking criminal prosecution is, such intention must be shown to exist at the time of making of inducement. Mere failure to keep promise subsequently, will not lead to cheating. There is no element by the accused-applicant to induce the complainant by any representation to draft petition and thereafter back out.

11. Even if as the complainant says, his case squarely comes within the parameters of Section 415 of I.P.C. the above referred factual situation illustrates the scenario, wishfully was developed by the complainant to achieve his agenda for recovering his professional fees. He knew, being well versed in the field, how to squeeze a litigant, not familiar to court system. Resultantly, gullible litigant has faced the brunt. Reading of the complaint petition as a whole, the basic ingredients for infraction of Section 420 or 415 or 120B of I.P.C. are miserably lacking. Not acting on legal advice and not paying fees could be stretched to a civil wrong, without clamour of criminality. Both the courts were expected to look into the legal position, peculiar facts relating to recovery of fees and then to have adverted for appropriate order in legal frame. There should not be poverty of thoughts. I quite see this litigation has proved a windfall for the couple to unite and contest. However, that will not primarily mean that the couple prognosticate conspiracy. It may be their personal mutual satisfaction, which made the couple not to further prosecute and accelerate the divorce proceeding. It will not amount to an deception, a withdrawal from solemn undertaking or disowning rights. There was no inherent propensity to commit offence. Criminal writ petition is allowed. 

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 685 of 2013

Decided On: 26.07.2013

 Dnyananda Sameer Nilekar Vs. State of Maharashtra 

Hon'ble Judges/Coram:

K.U. Chandiwal, J.

Citation;2013 ALL M R (Cri)3522

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Whether Advocate can claim fees on Percentage On Permanent Alimony Given To His Client?

It prima facie appears that the petitioner has

completely betrayed the trust reposed in him by the victim. He

has even gone to the extent of claiming percentage on the

permanent alimony given to the victim which is illegal. The

Bombay High Court in Re: K.L. Gauba reported in A.I.R. 1954

Bombay 478 held that fees conditional on the success of a case

and which gives the lawyer an interest in the subject matter 

tends to undermine the status of the profession. The same has

always been condemned as unworthy of the legal profession. If

an advocate has interest in success of litigation, he may tend to

depart from ethics. In the case of Mr. ‘G’., A Senior Advocate

of the Supreme Court reported in (1955) 1 Supreme Court

Reporter 490, the Hon’ble Supreme Court held that the claim of

an advocate based on a share in the subject matter is a

professional misconduct. In case of B. Sunitha -Vrs.- The

State of Telengana and Ors. reported in (2018) 69 Orissa

Criminal Reports (SC) 400, it is held that claim based on

percentage of subject matter in litigation cannot be the basis of a

complaint under section 138 of the N.I. Act.

 IN THE HIGH COURT OF ORISSA: CUTTACK

ABLAPL No. 5399 of 2017

An application under section 438 of the Code of Criminal

Procedure in connection with C.T. case No. 2702 of 2016 pending

in the Court of S.D.J.M., Bhubaneswar.

Sanjaya Narayan Sahoo  Vs  State of Odisha 

P R E S E N T:

 MR. JUSTICE S.K. SAHOO

 Date of Order: 01.05.2018

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Whether Advocate can file complaint U/S 138 of NI Act for his fees based on percentage of decretal amount?

In the case on

hand, the complainant being a practising advocate,

has not proved the debt amount payable towards

him by the accused, who has engaged him as his

lawyer to conduct the case. The finding of the trial

Court that there is no debt or legally enforceable

liability' does not suffer from any infirmity

warranting interference.”

14. The Bombay High Court in Re: KL Gauba AIR 1954 Bom 4789 held that fees conditional on the success of a case and which gives the lawyer an interest in the subject matter tends to undermine the status of

the profession. The same has always been condemned as

unworthy of the legal profession. If an advocate has interest in

success of litigation, he may tend to depart from ethics.

15. In in the matter of Mr. G.: A Senior Advocate of the

Supreme Court  (1955) 1 SCR 490

, this Court held that the claim of an advocate

based on a share in the subject matter is a professional

misconduct.

16. In VC Rangadurai versus D. Gopalan  (1979) 1 SCC 308, para 3110

, it was observed that

relation between a lawyer and his client is highly fiduciary in

nature. The advocate is in the position of trust.

17. Rule 20 of Part VI, Chapter II, Section II of the Standard of

Professional Conduct and Etiquette reads as follows :

“An advocate shall not stipulate for a fee

contingent on the results of litigation or agree to

share the proceeds thereof.”

18. Thus, mere issuance of cheque by the client may not debar

him from contesting the liability. If liability is disputed, the

advocate has to independently prove the contract. Claim based on percentage of subject matter in litigation cannot be

 the basis of a complaint under Section 138 of the Act.

19. In view of the above, the claim of the respondent advocate

being against public policy and being an act of professional

misconduct, proceedings in the complaint filed by him have to be

held to be abuse of the process of law and have to be quashed.

20. We may note that after the hearing was concluded, learned

counsel for Respondent No.2 mentioned the matter to the effect

that Respondent No.2 wanted to withdraw the complaint. An

e-mail to this effect was also handed over to Court. The same has

been kept on the record. However, we did not permit this prayer.

Having committed a serious professional misconduct, the

respondent No.2 could not be allowed to avoid the adverse

consequences which he may suffer for his professional misconduct.

The issue of professional misconduct may be dealt with at

appropriate forum.

21. Thus, while proceedings against the appellant will stand

quashed, the issue of professional misconduct is left to be dealt

with at the appropriate forum. 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2068 OF 2017

B. SUNITHA  Vs THE STATE OF TELENGANA & ANR. 

Dated:5TH DECEMBER, 2017.

ADARSH KUMAR GOEL, J.

Citation: 2018(4) MHLJ 27

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When contention of doctor that he was called only for medical opinion can not be relied on?

Defendant No. 1 claims that he was only called, but once, by Defendant No. 2 to give a second opinion for a patient of Defendant No. 2, the original Plaintiff No. 2. Consequently, he attended upon her only on 17th December 1987. He, therefore, claims that the case papers of the earlier dates do not bear any reference to him. The decision to take his opinion was recorded on 11th December 1987 and he attended on 17th December 1987. The endorsement in the case papers Exhibit-H of 17th December 1987 in the handwriting of Defendant No. 2 shows "seen the case and advised exploration". Another endorsement of the same date in the same handwriting shows "patient is for exploration next week". Defendant No. 1 claims that he was only called for his opinion. He gave his opinion advising exploration. He was the senior most honorary Surgeon of Oncology unit at that time. He is not shown to have been paid his fees for his opinion at all in the original bill for the charges of Plaintiff No. 1 for the hospitalization as also the surgery marked Exhibit-N in evidence. It would be inconceivable for Defendant No. 1 not to charge for his opinion, if he had given one. If he was only called for an opinion he would charge only for the opinion. In that case the surgery which he claims was required to be performed by Defendant No. 2 would show charges incurred for the surgery done by Defendant No. 2 as per the schedule of fees of BH. The original bill Exhibit-N instead shows the charges for surgery specifically in the name of Defendant No. 1 at the rate then applicable and charged by Defendant No. 1 and allowed to by BH; it does not show any charge for any opinion of any Consultant Surgeon. It must be appreciated that the charge for opinion, if any, to perform exploration would be included in the surgery charge itself if surgery was to be performed.

49. The schedule of fees fixed by BH at the relevant time for senior honorary Surgeons was Rs. 5000/-. The assistant Surgeon was entitled to charge 1/3rd of that fee. Pertinently the charge of Defendant No. 2 for the surgery specifically against the name of Defendant No. 2 is Rs. 1667/- which is a 1/3rd of a fees of the honorary Doctor, Defendant No. 1. Similarly the schedule of fees showing charges of the Anesthetist is 1/3rd of combined fees of honorary Doctor and the assistant Surgeon. The fees of Dr. R. Kotak, the Anesthetist against her name is shown to be Rs. 2222/- precisely 3rd of Rs. 5000/- plus Rs. 1667/- being 1/3rd of Rs. 6667/- i.e. Rs. 2222/-. This is the largest single circumstantial evidence of the fact of Defendant No. 1 was the honorary Surgeon for the surgery of the original Plaintiff No. 2 as contained in the original bill of BH marked Exhibit-N in evidence. His fees of the surgery coupled with the total absence of his fees for his opinion makes it conclusively clear that he was the honorary Surgeon for the original Plaintiff No. 2. The original Plaintiff No. 2 was admitted under him. The contract between the two parties - Defendant No. 1 being the honorary Doctor of the original Plaintiff No. 2 is, therefore, made out.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

Padam Chandra Singhi and Ors.
Vs.
 Dr. P.B. Desai and Ors.

Hon'ble Judges/Coram:
R.S. Dalvi, J.

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Supreme court;Educational institution can charge prescribed fee for one semester/year and not for entire course.

The contention of the complainant/respondent is that the OP recovered from him a sum of Rs.1,85,957/- for two years course. The Fee Plan, however, shows that the fees was to be recovered in eight installments. The conduct of the OP/appellant in collecting the fee in advance amounts to unfair trade practice. In the case Islamic Academy of Education and another Vs. State of Karnataka and others, 2003 (6) SCC 697, the Honble Supreme Court held that an educational institution could only charge the prescribed fee for one semester/year and not for the entire course. On its basis, the Honble National Commission in the case Brilliant Tutorials Pvt. Ltd. Vs. Ashwani Verma (Supra) held as follows: -

The principles laid down by the Apex Court would apply with equal force to the training institutes who collect fees in advance, though not due, in order to prepare the students for various examinations. Charging fees in advance beyond the current semester/year would certainly amount to unfair trade practice and the same cannot be countenanced In the case Atam Parkash Khattar Vs. Commissioner & Secretary to Govt. of Haryana, Civil Writ Petition No.13308 of 2009 decided on 21.7.2010 by the Honble High Court of Punjab and Haryana, it was observed that educational institutions cannot be permitted to behave like a business establishment who work with profit motive.

State Consumer Disputes Redressal Commission

Manmeet vs Fiitjee on 24 March, 2011

PER JAGROOP SINGH MAHAL, MEMBER.

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