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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4360-4361     OF 2015 (Arising out of S.L.P.(C) Nos. 9302-9303 of 2013)

HIMALAYAN COOPERATIVE GROUP  HOUSING SOCIETY   ...APPELLANT  

   VERSUS

BALWAN SINGH ...RESPONDENT WITH

CIVIL APPEAL NOS.  4363-4364    OF 2015 (Arising out of S.L.P.(C) Nos.9305-9306 of 2013)

CIVIL APPEAL NOS. 4347-4348   OF 2015  (Arising out of S.L.P.(C) Nos.9308-9309 of 2013)

CIVIL APPEAL NOS. 4365-4366  OF 2015  (Arising out of S.L.P.(C) Nos.9310-9311 of 2013)

CIVIL APPEAL NOS. 4353-4354     OF 2015  (Arising out of S.L.P.(C) Nos.9314-9315 of 2013)

CIVIL APPEAL NOS.  4351-4352   OF 2015  (Arising out of S.L.P.(C) Nos.9316-9317 of 2013)

AND WITH CIVIL APPEAL NOS. 4355-4356  OF 2015

(Arising out of S.L.P.(C) Nos.9318-9319 of 2013)

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O R D E R

1. Leave granted.

2. These  appeals  are  directed  against  the judgment and order passed by the High Court in Writ Petition  No.7546  of  2005  and  connected  matters, dated 25.11.2010 and in Review Petition No.138 of 2010 and connected matters, dated 12.10.2012. By the impugned judgment and order in the Writ Petition, the High Court has affirmed the orders passed by the Courts/authorities  below  and,  on  the  basis  of  a concession made by the counsel appearing on behalf of the appellant, issued certain directions to the appellant.

3. For convenience, we would only notice the facts  in  Civil  Appeals  arising  out  of  S.L.P.(C) Nos.9302-9303 of 2013.  

4. The appellant is a co-operative society registered  under  the  provisions  of  the  Delhi

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Cooperative  Societies  Act,  1972  (for  short,  “the Act”).  The  appellant-Society  comprised  of  150 members, including the respondents, who had enrolled themselves with the said Society for allotment of residential  quarters/  apartments.  The appellant-Society  raised  a  demand  for  payment towards  allotment  of  residential  quarters/ apartments on 28.05.1998. The respondents failed to comply  with  the  demand.    They  continued  to  be defaulters in spite of continuous demand notices. In view of the default in payment of initial deposit amount,  the  appellant-Society  after  following  the due procedure had passed a resolution expelling the respondents from the membership of the Society.

5. The resolution requires confirmation of the Registrar of Co-Operative Societies (respondent No.2-herein) under Rule 36 of the Delhi Co-Operative Societies Rules, 1973 (for short, “the Rules”) and therefore, was placed before the Registrar for his consideration and approval. The Registrar, after due

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verification of the records of the appellant-Society and in compliance with the procedure as contemplated under the provisions of the Act and the Rules, by an order dated 29.01.2004, has approved the resolution passed  by  the  appellant-Society.  However,  in  the interest of  justice the  Registrar has  provided a last opportunity  to the  respondents to  pay their outstanding  dues  to  the  appellant-Society  within four weeks, failing which their expulsion from the appellant-Society  would  come  into  effect.  The respondents not having complied with the aforesaid order, the said resolution stood confirmed and the respondents ceased to be members of the appellant- Society.

6. The aforesaid order of the Registrar was carried  in  appeal  by  the  respondents  before  the Presiding Officer, Delhi Co-operative Tribunal under Section 86(4) of the Delhi Co-operative Societies Act, 2003. However, on a later date, the respondents withdrew  the  said  appeal  and  preferred  Revision

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Petition  before  the  Financial  Commissioner, Government of NCT of Delhi under Section 80 of the Act.  The  Revisional  Authority  has  carefully considered  the  documents  on  record  and  the submissions made by parties to the lis and concluded that  the  Registrar  has  rightly  confirmed  the expulsion of members of the Society. The Revisional Authority, while dismissing the revision petitions, by  its  order  dated  24.02.2005  has  noticed  that despite  ample  opportunity  provided  to  the respondents, they have failed to pay the outstanding amount and therefore, their expulsion is proper and justified.

7. The  respondents,  aggrieved  by  the aforesaid orders  passed by  the Registrar  and the Revisional Authority, had approached the Writ Court. In the Writ Petition filed, their main prayer was to set aside the orders passed by the Registrar and the revisional  authority  by  exercising  supervisory jurisdiction of the Court.

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8. The  Writ  Court,  after  duly  considering the contentions raised in the Writ Petition has come to  the  conclusion  that  the  Registrar  and  the revisional authority have not committed any error in arriving at their respective conclusions and have rightly  confirmed  the  resolution  expelling  the respondents  from  the  membership  of appellant-Society. The Writ Court has observed that the  respondents  have  not  made  out  a  case  for interference  with  the  orders  of  the  authorities below. However, on a request made by the respondents seeking  issuance  of  direction  to  the appellant-Society for consideration of their request to  construct  and  allot  the  additional  quarters/ apartments to them, the same being agreeable to by the  learned  counsel  appearing  for  the  appellant- Society, the Court has issued certain directions to the appellant-Society for construction of additional quarters/  apartments  and  their  allotment  to  the respondents, by judgment and order dated 25.11.2010.

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9. Being  of  the  firm  view,  that,  the appellant-Society  had  not  authorized  the  learned counsel who had appeared for them before the Writ Court  to  make  any  concession  in  favour  of  the respondents had preferred Review Petitions against the aforesaid common judgment and order of the Writ Court. The said Review Petitions were confined to the  limited  question  of  feasibility  of implementation of the directions issued by the Writ Court in the impugned judgment and order. The High Court after  considering the  merits of  the Review Petitions has dismissed the same by its order dated 12.10.2012.   

10. Aggrieved by the aforesaid judgment and order passed by the High Court in the Writ Petitions as  well  as  in  the  Review  Petitions,  the appellant-Society is before us in these appeals.

11. We have heard learned counsel appearing for the parties to the lis.

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12. Shri  Jayant  Bhushan,  learned  counsel appearing for the appellant-Society contends that in the Writ Petitions filed under Article 226 read with Article 227 of the Constitution of India, the Writ Court was not justified in passing the incidental and ancillary directions in respect of construction and allotment of the additional flats/apartments to the respondents. In support of his contention, Shri Bhushan would rely upon the concurrent finding of the  Registrar,  Revisional  Authority  and  the  Writ Court and submit, that, the respondents are indeed the  defaulters  and,  therefore,  they  were  not entitled to continue as members of the appellant- Society.  Further,  Shri  Bhushan  would  submit  that appellant-Society at no point of time had authorized the  learned  counsel  for  the  appellant-Society  to make any concession before the Writ Court and such being the case, the Writ Court ought not have issued any  further  direction  to  the  appellant-Society solely on the basis of a concession made by the

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lawyer appearing on its behalf without any express consent by the appellant-Society.  

13. Learned  counsel,  Shri  N.  Prabhakar, appearing for  one set  of the  respondents submits that the Writ Court had only issued the impugned directions in light of the concession made by the learned  counsel  for  the  appellant-Society.  Shri Prabhakar  would  state  that  the  appellant-Society having  made  a  concession  before  the  Writ  Court, cannot now dispute the authority of the lawyer to settle and compromise a claim before this Court and therefore, submits that the Writ Court was justified in issuing  the said  directions to  the appellant- Society. 14. Shri  Huzefa  Ahmadi,  learned  counsel appearing for some of the respondents contends that the jurisdiction exercised by the Writ Court was not under Article 227 of the Constitution but only under Article  226  of  the  Constitution  of  India  and

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therefore, such directions could be issued and have been rightly issued by the Writ Court.  Shri Ahmadi, would submit that since, the appellant-Society in the affidavit  filed before  this Court  has stated that certain apartments are still lying vacant, the same  may  be  allotted  to  the  respondents  in  the interest  of  justice.  Further,  Shri  Ahmadi  would support the directions issued by the Writ Court and submit that the counsel who had appeared for the appellant-Society had not only given his consent for the same before the Writ Court but also not disputed the same in the Review Petition preferred by the appellant-Society  and  therefore,  the  appellant- Society now cannot resile from the concession made by its counsel before the Writ Court.  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

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Constitution 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/ authorisation  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?

16. The first issue need not detain us for long. It is the stand of the learned counsel for the respondents, that, since the Writ Petition that was filed was both under Articles 226 and 227 of the Constitution  of  India,  the  Court  apart  from examining the merits of the Writ Petition could also issue  incidental  and  ancillary  directions  to  do

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complete justice between parties litigating before it.  We do not agree.  The issue in our view is no more debatable in view of the decision of this Court in  the  case  of  Jaisingh  and  Ors.  vs. Municipal Corporation of Delhi and Anr. (2010) 9 SCC 385.  The Court has stated:  

“15.  …we  may  notice  certain  well recognised  principles  governing  the exercise  of  jurisdiction  by  the  High Court  under  Article  227  of  the Constitution  of  India.  Undoubtedly  the High Court, under this article, has the jurisdiction  to  ensure  that  all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that  they  act  in  accordance  with  the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even  in  matters  where  no  revision  or appeal  lies  to  the  High  Court.  The

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jurisdiction  under  this  article  is,  in some  ways,  wider  than  the  power  and jurisdiction  under  Article  226  of  the Constitution  of  India. It  is,  however, well  to  remember  the  well-known  adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and  circumspection.  The  exercise  of jurisdiction  must  be  within  the  well- recognised constraints…”

(emphasis supplied)

17. The scope and extent of power of the Writ Court in a petition filed under Article 226 and 227 of the Constitution came up for consideration before three Judge Bench of this Court in the recent case of Radhey Shyam and Anr v. Chhabi Nath & Ors., Civil Appeal No.2548 of 2009. This Court observed that the Writ of Certiorari under Article 226 though directed against  the  orders  of  a  inferior  court  would  be distinct and separate from the challenge to an order

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of  an  inferior  court  under  Article  227  of  the Constitution.  The  supervisory  jurisdiction  comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall  in  purview  of  the  scope  of  supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked.

18. In the present case, what was challenged by the members of the Society was an order passed by the Registrar and the Revisional Authority under the provisions  of  the  Act  and  the  Rules  framed thereunder. The prayer was to set aside the orders passed by the authorities below. Even if the said petitions(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only,  could  be  treated  as  petitions  filed  under Article 227 of the Constitution only.

19. Having said so, we will now consider the

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issues that falls for our consideration and decision in the present appeals.

20. In the present case, the subject matter of  the  petitions  was  the  orders  passed  by  the Registrar  and  the  Revisional  Authority  under  the provisions  of  the  Act  and  the  Rules  framed thereunder.  The  Registrar  and  the  Revisional Authority  in  their  order  have  considered  the validity of the expulsion of the respondents from the membership of the appellant-Society for having defaulted  in  paying  the  principal  amount  to  the appellant-Society. The Registrar and the Revisional Authority have recorded a concurrent finding that despite notice and repeated opportunities to deposit the required amounts to the appellant-Society, the respondents  have  continued  to  be  in  default  and hence,  the  said  authorities  have  confirmed  the resolution passed by the appellant-Society expelling the  respondents  from  the  membership  of  the appellant-Society. The Writ Court, in the impugned

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judgment and order, has also reached the conclusion that since the respondents had defaulted in paying the principal amount to the appellant-Society, the appellant-Society  was  justified  in  expelling  them from  the  membership  of  the  appellant-Society  and hence,  confirmed  the  orders  passed  by  the authorities below.

21. The  Writ  Court  after  considering  the merits of the case has come to the conclusion that the  expulsion  of  respondents  from  the  appellant- Society was justified.  Having said so, in our view, the  Court  ought  not  to  have  issued  the  impugned directions merely because a request was made by the learned  counsel  appearing  for  the respondents-herein. The same would hold true even if a  concession  was  made  by  the  counsel  for  the appellant-Society.  The Court, while, exercising its powers  under  Article  227  of  the  Constitution  of India, ought to have confined itself to the subject matter and the issues raised by parties in the Writ

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Petition.  The  digression  of  or  expansion  of  the supervisory jurisdiction under Article 227 of the Constitution  of  India,  would  open  precarious floodgates of litigation should the limitation on the  supervisory  jurisdiction  not  be  observed mindfully.  

22. If  for  any  reason,  the  Writ  Court perceived the oral request made by the respondents to have justified the ends of 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

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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

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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 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.   

24. The Bar Council of India Rules, 1975 (for short,  “the  BCI  Rules”),  in  Part  VI,  Chapter  II provide for the ‘Standards of Professional Conduct and Etiquette’ to be observed by all the advocates

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under the Advocates Act, 1972 (for short, “the Act, 1972”). In the preamble to Chapter II, the BCI Rules provide as follows:

“An  advocate  shall,  at  all  times, comport himself in a manner befitting his status  as  an  officer  of  the  Court,  a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of  the  Bar  in  his  non-professional capacity  may  still  be  improper  for  an advocate.  Without  prejudice  to  the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests  of  his  client  and  in  his conduct conform to the rules hereinafter mentioned  both  in  letter  and  in spirit. The  rules  hereinafter  mentioned contain canons of conduct and etiquette adopted  as  general  guides;  yet  the specific  mention  thereof  shall  not  be construed as a denial of the existence of others  equally  imperative  though  not

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specifically mentioned.” (emphasis supplied)

25. The Preamble makes it imperative that an advocate has to conduct himself and his duties in an extremely responsible manner. They must bear in mind that what may be appropriate and lawful for a person who is not a member of the Bar, or for a member of the Bar  in his  non-professional capacity,  may be improper  for  an  advocate  in  his  professional capacity.  26. Section  II  of  the  said  Chapter  II provides  for  duties  of  an  advocate  towards  his client.   Rules  15  and  19  of  the  BCI  Rules,  has relevance to the subject matter and therefore, they are extracted below:  

“15. It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without  regard  to  any  unpleasant consequences to himself or any other. He shall defend a person accused of a crime

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regardless of his personal opinion as to the guilt of the accused, bearing in mind that his  loyalty  is  to  the  law  which requires that no man should be convicted without adequate evidence. *** *** *** 19.  An  advocate  shall  not  act  on  the instructions of any person other than his client or his authorised agent.”

27. While Rule 15 mandates that the advocate must uphold the interest of his clients by fair and honourable means  without  regard  to  any  unpleasant consequences  to himself  or  any  other.  Rule  19 prescribes that an advocate shall only act on the instructions of his client or his authorized agent. Further, The BCI Rules in Chapter I of the said Section II provide that the Senior advocates in the matter of their practice of the profession of law mentioned in Section 30 of the Act, 1972 would be

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subject  to  certain  restrictions.  One  of  such restrictions  contained  in  clause  (cc)  reads  as under:

“(cc) A Senior Advocate shall, however, be  free  to  make  concessions  or  give undertaking in the course of arguments on behalf  of  his  clients  on  instructions from the junior advocate.”

28. Further, the ‘Code of Ethics’ prescribed by the Bar Council of India, in recognition of the evolution  in  professional  and  ethical  standards within  the  legal  community,  provides  for  certain rules which contain canons of conduct and etiquette which  ought  to  serve  as  general  guide  to  the practice and profession. Chapter of the said Code provides for  an ‘Advocate’s  duty to  the Client’. Rule 26 thereunder mandates that an “advocate shall not make any compromise or concession without the

proper and specific instructions of his/her client.”

It is pertinent to notice that an advocate under the

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Code expressly includes a group of advocates and a law firm whose partner or associate acts for the client.

29. Therefore,  the  BCI  Rules  make  it necessary that despite the specific legal stream of practice, seniority at the Bar or designation of an advocate as a Senior advocate, the ethical duty and the  professional  standards  in  so  far  as  making concessions before the Court remain the same. It is expected  of  the  lawyers  to  obtain  necessary instructions  from  the  clients  or  the  authorized agent before making any concession/ statement before the Court for and on behalf of the client.

30. While the BCI Rules and the Act, does not draw any exception to the necessity of an advocate obtaining instructions before making any concession on behalf of the client before the Court, this Court in  Periyar  &  Pareekanni  Rubber  Ltd.  v.  State  of Kerala, (1991) 4 SCC 195 has noticed the sui generis

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status and the position of responsibility enjoyed by the Advocate General in regards to the statements made by him before the Courts. The said observation is as under:   

“19.  …Any  concession  made  by  the government  pleader  in  the  trial  court cannot  bind  the  government  as  it  is obviously, always, unsafe to rely on the wrong or erroneous or wanton concession made  by  the  counsel  appearing  for  the State  unless  it  is  in  writing  on instructions  from  the  responsible officer. Otherwise it would place undue and needless heavy burden on the public exchequer. But the same yardstick cannot be applied when the Advocate General has made a statement across the bar since the Advocate General makes the statement with all responsibility.”

(See:  Joginder  Singh  Wasu  v.  State  Of Punjab, 1994 SCC (1) 184).

31. The  Privy  Council  in  the  case  of Sourendra Nath Mitra v. Tarubala Dasi, AIR 1930 PC

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158 has made the following two observations which hold relevance to the present discussion:

"Two  observations  may  be  added.  First, the implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of barrister or advocate at law. It is implied in the interests  of  the  client,  to  give  the fullest  beneficial  effect  to  his employment of the advocate. Secondly, the implied  authority  can  always  be countermanded by the express directions of  the  client.  No  advocate  has  actual authority to settle a case against the express instructions of his client. If he considers  such  express  instructions contrary to the interests of his client, his remedy is to return his brief."

(See: Jamilabai Abdul Kadar v. Shankarlal Gulabchand,  (1975)  2  SCC  609,  Svenska Handelsbanken  vs  Indian  Charge  Chrome Ltd, 1994 SCC (2) 155)

32. Therefore, it is the solemn duty of an advocate not to transgress the authority conferred

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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, admissions 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  authorised  by  his principal to make such admissions.  Furthermore, a client  is  not  bound  by  a  statement  or  admission

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which he or his lawyer was not authorised 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

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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.”

34. In  view  of  the  above,  while  allowing these appeals, we set aside the directions issued by the Writ Court to the appellant-Society as also the judgment  and  order  passed  by  the  High  Court  in Review Petition.

Ordered accordingly.    

                        ............CJI.                     [H.L. DATTU]

                           ..............J.                      [S.A. BOBDE]

                         ..............J.                                [ARUN MISHRA]

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NEW DELHI, APRIL 29, 2015.