Trust and confidence are two very important factors for a good relationship between a client and their lawyer. However, in many cases, we find the client in a shaky state of mind even after handing over the case to an advocate. The reason behind this situation is they rely too much upon internet material which is easily accessible to everyone. At the touch of a screen, data with all information is served to them instantly. Such   ‘internet addicted clients’ are becoming a challenge to legal professionals. Their half-baked knowledge damages the relationship of trust and confidence between the professional and the client.

                                                                                                      Dr Prem Lata

The material available on the internet is not authentic all the time or tested through established parameters and standard. For example, some literature regarding legal or medical theory is put on the internet by a person expressing his view point which is yet in an experimental stage but the author strongly believes his views. Until and unless his views undergo some tests and becomes established norms in the particular field, it is yet a view only. Nonetheless, a person searching the internet for everything does not bother to choose original website for the subject and gets copied information through search engines which is not direct information. This literature if provided as an expert opinion in a medical or legal case, is not entertained by the courts but the clients press for the same before the advocate while giving his case to the professional.

 Some other challenges faced by legal professionals are:

1. Questions to test the advocate

The questions for information fall within the right of the client, which are bound to be answered in order to satisfy the client. At times, questions posed with half-baked knowledge acquired from internet searches irritate the advocate. The client, instead of explaining the facts and the relief required, focus more on testing the capabilities of the lawyer.

2. Irrelevant judgments to the case

During the consultation, client pulls out copies of the judgments of the Hon’ble Supreme Court brought by him from his file and requests the advocate to look into it and ask to deal his case from the angle of the judgments pointed out by him. Explaining the irrelevance and inapplicability of the judgments brought by a client is a big deal for advocates and it often happen that he does not take much interest in taking the brief from such clients.

3. Pleadings suggested to be present in their way

Clients wish the pleadings to be presented in the way they want it and without asking the consent of the advocate, virtually rewrite the entire pleadings. In other words, these are clients who want to use the services of advocates like a post office. Pleadings with unnecessary and scandalous attacks on the opposing parties apart from extracts of irrelevant judgments downloaded from the internet does not attract good results in the court for clients.

4. Comparison with other cases

Due to information provided by every court online, litigants make comparison with others cases. The tricky part of litigants is that they get information right from the stage of filing till the stage of disposal of not just their case, but every other case filed in a court. They take notice of any case filed after their case, getting disposed of earlier, they question the proficiency of their advocate. They can never understand the practical nitty-gritty of procedures and the functioning of courts and any explanation given to them is interpreted as a lame excuse. Such clients keep hopping from one advocate to another, and create problems by complaining about previous advocate, relying upon online information, totally unaware of its applicability and relevance to their case.

A bench comprising Justices K.M. Joseph and Hrishikesh Roy entertained an appeal assailing the order of the Madhya Pradesh High Court (Sushil Kumar Patel Etc. v. State of Madhya Pradesh And Ors. Etc.), which dismissed the petitioners’ plea on the ground that pursuing Master’s and Bachelor of Education (B.Ed.) simultaneously is not permissible as it would affect the validity of the degree and impact their appointment as teachers. The basic issue of the case was whether two degrees obtained simultaneously, during the same academic year, can be considered for employment purposes.

 Facts of the case

An advertisement was issued by the Professional Examination Board, Madhya Pradesh in September, 2018 for recruitment of teachers in High Schools. The original petitioner, in the main matter, had filled the application form for Biology. She completed her M.Sc (Zoology) through an Open Distance Learning Programme during September-October 2008 to September-October, 2010. She was enrolled as a regular student in B.Ed. Course in 2009 and appeared for examination in 2010. Qualification Required – As per the M.P. School Education Service (Teaching Cadre) Service Conditions and Recruitment Rules, 2018 (“2018 Rules”), the educational qualification required to be recruited as a teacher was Master’s Degree in relevant subjects and B.Ed. or its equivalent.

High Court order

An order was issued on 23.06.2020, that a candidate who possesses two degrees in one academic year, will be disqualified. The High Court held

• that for a degree to be valid it has to fulfil the terms, conditions and guidelines issued by the University Grants Commission (“UGC”), which is the regulatory Authority. The UGC videnotice dated 15.01.2016, had stated that they do not endorse the idea of allowing students to pursue two Degrees simultaneously. Therefore, the Court held that the two degrees so obtained by the petitioners cannot be said to be valid.

 Order challenged

This order was challenged by the petitioners on the following grounds –

1. The 2018 Rules does not provide any such disqualification. It was not notified in terms of Rule 9(4) of the 2018 Rules, disqualification was to be notified by the Government from time to time which is not done
2. The petitioner contended that the reasoning provided by the High Court that UGC does not recognise such degrees is not correct as the UGC had taken a decision to accept the recommendation of an Expert Committee which suggests otherwise. Moreover, he asserted that similarly situated candidates with similar degrees have already been given appointments.
3. The petitioners had undertaken one course as a regular degree and the other through an Open Distance Learning Programme.
4. It violates Article 16 and 19(1)(g) of the Constitution of India.
5. 2018 Rules cannot be bypassed by executive instructions.

Law under consideration are-

• Rules 2018
• UGC Notice 15.1.2016

 UGC Efforts –

• One meeting on 28th Dec 2012 ,proposed to make two degrees permissible simultaneously ,one regular another on line /correspondence
• No reply or comment on it from universities who were sent minutes for comments
• Order by UGC dated15^thJan 2016- to follow Regulations  2003
• Regulation 2003 talks of under admission and award head

 Various clarifications by Open Indira Gandhi University

By Dr Prem Lata Legal Head, VOICE

“The exclusion of one of the natural heirs from the bequest, cannot by itself be a ground to hold that there are suspicious circumstances – Cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. There is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will.”

Above was the observations made by the Hon’ble Supreme Court Of India in the case of Civil Appeal No.1565 of 2022 (Arising out of Special Leave Petition (C) No.13840 of 2019) Swarnalatha & Ors. Versus Kalavathy & Ors.Decided on March 30, 2022

A probate granted to the appellant by the District Court in respect of two last Wills and Testaments were set aside by High Court of Madras. SC held neither individually nor collectively creates a suspicion on looking into the facts and circumstances of both the cases hence allowed the appeal.

Case Ref: Swarnalatha & Ors. Versus Kalavathy & Ors. Special Leave Petition (C) No.13840 of 2019

Decided On March 30, 2022

It’s a common grievance of home buyers that builders fail to complete the construction work including amenities as per the plan and agreed terms. With the result, occupancy certificate is not issued by the concerned authorities. In some cases, home buyers take possession under compelling circumstances with incomplete work and occupancy certificate still remains a problem. An exceptional case decided by the Hon’ble Supreme Court on 11^th January 2022 has brought a breath of fresh air to the issue of fixing liability of developers when occupancy certificate is not provided to home buyers.  It is a twofold deficiency on the part of builder.

• One for delay in possession due to incomplete construction.
• Another for not obtaining completion certificate /occupancy certificate.

It creates further difficulties for the home buyers when they have to pay extra taxes to the corporation because residents are not permitted by the corporation to occupy premises unless it is fit to reside.  This case had come up before the Hon’ble Supreme Court with these facts in the matter of Samruddhi Co-operative Housing Society Ltd V/S Mumbai Mahalaxmi Construction Pvt. Ltd against the order from NCDRC and was decided on 11^th of Jan 2022 NCDRC had dismissed the complaint on 3^rd December 2018 on two grounds.

• That it was barred by limitation
• That it was not maintainable since it was in the nature of a recovery proceeding and not a consumer dispute

Particulars of the case

Mumbai Mahalaxmi Construction Pvt. Ltd constructed Wings ‘A’ and ‘B of their project. The members of the Samruddhi Co-operative Housing Society booked the flats in 1993 and got possession in 1997 without taking occupancy certificate from the municipal authorities. Flat owners were not eligible for electricity and water connections. Temporary water and electricity connections were granted by the authorities on request of the residents of the society. Subsequently, now they had to pay property tax at a rate 25% higher than the normal rate and water charges at a rate which was 50% higher than the normal charge. The society filed a consumer complaint on 8 July 1998 before the State Consumer Disputes Redressal Commission, Mumbai seeking a direction to the respondent to obtain the occupation certificate. The SCDRC directed the respondent VIDE order dated 20 August 2014, to obtain an occupancy certificate within four months. The SCDRC also directed the respondent to pay Rs. 1, 00,000/- towards reimbursement of extra water charges paid. The society filed an application for execution of the order of the SCDRC dated 20 August 2014. However, no occupancy certificate was obtained in spite of the State commission order. The Society now filed a complaint before the NCDRC seeking payment of Rs. 2,60,73,475/- as reimbursement of excess charges and tax paid by the members of the appellant due to the deficiency in service of the respondent and Rs. 20,00,000/- towards the mental agony and inconvenience caused to the members of the appellant. NCDRC dismissed the complaint as the above matter was a recovery suit. The society is not considered a consumer under the Consumer Protection Act.

Observations by the Supreme Court

That Complainant Society is entitled to file complaint on behalf of home buyers under Section 2(1) (d) of the Consumer Protection Act for availing services in case of any deficiency or shortcoming or inadequacy in the quality of service. There has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA (Maharashtra Ownership of Flats Act, 1963) and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation. Sections 3 and 6 of the MOFA indicates that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property. .The society is currently pursuing the execution of the order of the SCDRC arising from that complaint.  In the present case, the respondent was responsible for transferring the title of the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society were well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate. Section 24A of the Consumer Protection Act 1986 provides a two year period of limitation from the date of cause of action. The failure to obtain the occupancy certificate in spite of Order by SCDRC dated 20 August 2014 and even after filing execution petition, it is continuation of wrong which has resulted in the levy of higher taxes on the members of the society. The complainant Society adopted the correct course of litigation in demanding for indemnification of extra payments made due to the failure on the part of builder to obtain the occupancy certificate. Homebuyers continue to suffer the injury inflicted by the builder merely due to the delay in the execution of the order against them. The fact that the Society is currently pursuing the execution of the order of the SCDRC arising from that complaint, that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. Looking into the peculiar facts and circumstances, the Supreme Court allowed the appeal filed by the Society on behalf of home buyers and held that the complaint is justifiable. The SC directed the NCDRC to decide the case on and dispose the complaint within a period of three months from the date of this judgment.  

Let’s check what all are done in the Revisional provision in the Act.

• To call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
• To call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Particulars of the Case

Sunil Kr. Maity had a saving account number in a bank since January 2000. Later the account number was changed on 24.02.2010. The complainant went to deposit a sum of Rs.500 in the bank on 15.09.2012, when the bank staff informed him that the account number had again been changed and wrote a different account number on his passbook. Sunil Maity then deposited Rs. 500 in the account given. On 16.01.2013, the complainant deposited a cheque for Rs.3, 00,000 drawn on SBI but later on 11.12.2013 found balance of Rs. 59 only. On enquiry, the bank informed the complainant that there was another customer by the name of Sunil Maity whose account number was wrongly given to the complainant. The said Sunil Maity had withdrawn the sum of Rs. 1, 00,000 and Rs. 2, 00,000 respectively from that account number.

Verdicts by District Forum and the State Commission

The Consumer Forum made order in favour of complainant. The State Consumer Disputes Redressal Commission (SCDRC) in appeal upheld the order of the Consumer Forum except to the extent of fine imposed. A revision petition was filed before NCDRC by the Bank.

Judgment by NCDRC  

• NCDRC dismissed the complaint. It also suggested they approach the civil court, the case being a complicated question requiring evidence.
• The National Commission had called for a report on the whole matter from the SBI in the form of six more evidences.
• Reports were sought from the officers.

NCDRC grossly erred in observing that the complainant would be at liberty to seek remedy in the competent Civil Court and filing application under Section 5 of the Limitation Act, 1963. Disagreeing with this approach, the bench restored the order passed by the State Commission. 

Background of the Concept of Revision in Earlier Judgments

Various earlier judgments on the issue are relevant to understand the difference between the APPEAL and REVISION before choosing the remedy for redressal of grievance.

• Appeal gives the consumer to open his case before the higher court on all counts –facts of the case, law applied and evidence recorded. Everything is to be judged by the appellant court as to whether lower court has considered all the material placed on record and had applied the law laid down in correct manner. However, the complainant cannot obtain any new facts or evidence at this stage, can only emphasize the facts earlier said which could not be considered by the lower court. This is the general principal of law.
• Revision is mainly on the point of jurisdiction of the court /forum and higher court is not to look into the matter in detail about facts, evidence, etc. This remedy can be invoked even before any order passed by the lower court/forum if forum had no jurisdiction to deal with the case and while exercising the revisional jurisdiction, higher court may issue appropriate directions also to the lower court /forum
• The difference between appeal and revision has been clarified by the apex court on number of occasions. Supreme Court had defined the distinction as back as in 1995 while dealing in the matter of Lachhman Dass vs Santokh Singh, wherein it was held- “An appeal is a continuation of proceedings wherein the entire proceedings are again left open for consideration by the appellant authority. But in the case of revision, it has no power to reassess the evidence unless the statute expressly provides.”
• The same version is repeated by the Calcutta high court in the matter of Ajay Bhandra V State Consumer Dispute Redressed Commission, West Bengal and also by the Bombay High Court in the matter of R B Upadhyaya V State Commission for Consumer Dispute Mumbai.

It has made two things clear.

• First, a final order passed under this act is revisable under Section 17 and also appealable under Section 15 of the act.
• Second, there is a clear distinction between the revisional power and appellant power as already discussed above.

Supreme Court in the above referred case of Sunil Kumar Maity has confirmed its earlier stand explaining once again that Revisionary jurisdiction carves limitation of the commission to act within the provisions without going beyond it. This judgment is a milestone in the consumer jurisprudence keeping in view the same provision under the new act 2019 under section 58(1)9b as reproduced above.