HARI RAM DUBEY, ADVOCATE vs District Magistrate

THESE two appeals arise out of the judgment and order dated 10.3.1999 passed by District Consumer Forum, Sultanpur in Complaint Case No. 320/ 1996. Since the subject-matter contained in the complaint case is the same in respect of the two appeals, these have been taken up together for adjudication.

APPEAL No. 908/99 has been filed by the complainant Hari Ram Dubey, Advocate, against the judgment and order dated 10.3.1999 passed by the District Consumer Forum in Complaint Case No. 320/96. The facts of the case as stated in the complaint are as follows. Sri. Hari Ram Dubey, Advocate, was appointed by the District Magistrate, Sultanpur as a Panel Lawyer to conduct the Gaon Sabha cases in Consolidation Courts. The complainant has been working as such since the year 1987. In the District of Sultanpur large number of cases were also pending for disposal in the Civil Court. Therefore, the complainant was appointed on 25.3.1992 to conduct the cases pending in the Civil Court also on behalf of the Gaon Sabha. Fee for conducting the cases of Gaon Sabha in Civil Court as well as in Consolidation Courts was to be paid out of the fund of Gaon Sabha. The complainant after attending the cases in Civil Court as per orders of the District Magistrate, represented to the District Magistrate that Counsel''s fee in regard to the cases conducted in the Civil Court should be as per the rates being given to the Counsel of the rank of Assistant District Government Counsel (A.D.G.C.). The District Magistrate instead of sanctioning the fee as applicable to the A.D.G.C. referred the matter to the Government and later on ordered that the fee payable to the complainant will be as per provision laid down under the Rules made under U.P. Zamindari Abolition and Land Reforms Act. The said fee was only Rs. 10/- per case. The Government also directed the District Magistrate to stop this adhoc arrangement and take appropriate action for appointing a regular A.D.G.C. The complainant thereupon represented several times to the District Magistrate that he be given the fee of the cases conducted by him at par with A.D.G.C. The fee fixed for A.D.G.C. was as per Para 585 of the General Rules (Civil) but later on by a Government Order in 1990 a provision for payment of fee to the Counsel working as Panel Lawyer and also conducting cases in the Civil Court was made and fee was to be paid as admissible to A.D.G.C. The complainant was, therefore, entitled to the fee which was payable to the Civil Court''s Government Counsel. It was also stated that one Sukhdev Prasad Pandey, Advocate had also been given the same facility who was also appointed as a Panel Lawyer for the Gaon Sabha but in his case discrimination has been made and the principle of equal pay for equal work has been ignored. The District Government Counsel had recommended a fee of Rs. 125/- per day to be paid to the complainant but in spite of that no payment has been made. A complaint was, therefore, lodged with the District Consumer Forum for claim of Rs. 1,37,350/- being the fee for 737 working days along with interest @ 18% p.a. In addition an amount of Rs. 50,000/- was also claimed for mental harassment and physical torture. Professional loss of Rs. 1,000/- per month from 1992 was also claimed along with cost of proceedings.

The opposite party''s stand before the District Forum as per their written version was that the complainant was appointed as additional Panal Lawyer in the Court of Consolidation Officer w.e.f. 21.11.1987 as per the provisions of Rule 114 of the Rules made under the provisions of U.P. Zamindari Abolition and Land Reforms Act. The cases in the Civil Court increased in due course of time in which Gaon Sabha and U.P. State were impleaded as parties and the D.G.C. proposed more posts to be created. Since the work load in the Consolidation Court was reduced, pending arrangement from Government the complainant was appointed to represent the Gaon Sabha cases in the Civil Court. On the recommendation of D.G.C. the fee for said Counsel was determined as per Rule 114 of the Rules made under U.P. Zamindari Abolition and Land Reforms Act and payment is made through the Gaon Sabha funds. It was further stated that in Civil Court the Govt. Counsel and Panel Lawyer are appointed by the Governor of Uttar Pradesh and their fee are paid as per orders of the Govt. in the Law Department and budgetary provision to that effect is made by the Law Department of the State. The complainant was in full knowledge of the fact that he could not have been entitled to the fee fixed by the Law Department which is given to the Counsels appointed by the Government in Civil Courts. It was admitted that the complainant made several representations to the opposite party and his matter was referred to the State Government but the State Government directed payment of fee as per provisions of the Rules under the U.P. Z.A. and L.R. Act. The Government also directed the District Magistrate to dispense with the adhoc arrangement. The District Magistrate was not entitled to grant the fee which is payable to a State appointed Counsel and in this case the complainant has not been appointed as a Counsel by the State Government. The Government, in the Revenue Department had issued clear order that the Counsel working in the Civil Courts when representing the Gaon Sabha cases shall be paid the same fee as is being paid to the Counsel for the Revenue Courts. The terms and conditions for appointment of a Panel Lawyer in consolidation Court and that of Asstt. Government Counsel are different and the Complainant was not an Assistant Government Counsel. In view of this position the matter was referred to the Government, and the Apposite party was not bound by the recommendations of the D.G.C. that payment @ Rs. 125/- per day be made to the complainant. The complainant was not entitled to receive fee as per provisions of Para 565 of the General Rules (Civil). It was also stated that the complainant has not given the details of the cases for which fee has been claimed.

THE District Consumer Forum after considering the evidence of the two parties came to the conclusion that the complainant was a consumer and there was deficiency of service on the part of the opposite party and partly decreed the claim of the complainant for an amount of Rs. 97,375/- along with 10% interest from the date of institution of the complaint. A cost of Rs. 1,000/- was also awarded to the complainant. Aggrieved of this order the complainant has come in Appeal No. 908/99. In the memo of appeal the complainant has stated that the Forum has not granted any compensation to him for the mental and physical torture he had been undergoing. The interest should have been awarded @ 18% p.a. and the amount awarded should have been Rs. 1,37,850/- for 779 days of work. An amount of Rs. 15,400/- was claimed for preparing objections had also not been awarded by the District Forum.

APPEAL No. 1761 of 1999 has been filed by the District Magistrate, Sultanpur against the same order dated 10.3.1999 passed by the District Consumer Forum, Sultanpur in Complaint Case No. 320/96. In the memo of appeal it has been stated that the order of the Consumer Forum is against the facts of the matter and the District Consumer Forum erred in holding the complainant as a consumer of the opposite party as the matter involved in the complaint was not a consumer dispute instead the complainant provided services to the opposite party rather than being a consumer. There was no deficiency on the part of the opposite party as it was always ready to pay the fee as per the orders of the Govt. and as per the entitlement of the complainant. The District Consumer Forum erred in holding that the fee payable to the complainant was payable at the rate which is admissible to Addl. District Government Counsel (Civil). The complainant was also not entitled to Rs. 125/- per day for conducting cases. We have heard Hari Ram Dubey, the complainant who was present in person. The arguments of the opposite party were not heard on the dates fixed as the opposite party''s Counsel did not turn up on that date in spite of notice. However, written arguments of the opposite party were filed on 24.10.2000 and the same has also been gone through.

AT the outset the complainant had argued that the appeal of the opposite party is time-barred as the same was filed on 9.7.1999 whereas the judgment and order of District Consumer Forum were delivered on 10.3.1999. The complainant has placed reliance on the following case laws in support of his plea. (1) CPR 1994 (1) State Commission GOA (2) CPR III 1994 (1) State Commission Chandigarh (3) CPR 1994 (1) State Commission Chandigarh (4) 1993 Allahabad LJ 772 to 778, Vinod Vihar Singh v. Union of India (SC).

WE have gone through the above case law and we find that wherever explanation for lapses has not been provided and there have been departmental delay, the appeals have been held to be time-barred. A perusal of the application for condonation of delay indicates that the appellant District Magistrate came to know about the judgment of the District Forum on 22.3.1999 and the same was forwarded to the Government on 1.4.1999 for seeking permission to file appeal. The matter was persued in the Law Department of the State Government on 6.4.1999, 3.5.1999 and 29.5.1999 and even a fax was sent on 29.5.1999 to the State Government for seeking permission to file appeal. Again a letter was sent on 11.6.1999 and also on 30.6.1999 seeking permission to file appeal. Permission was received on 5.7.1999 for filing appeal. D.G.C. (Civil) was contacted on 6.7.1999. The appeal was prepared on 7.7.1999 and filed on 10.7.1999. WE, therefore, find that the opposite party has been making constant efforts to seek permission to file appeal and in the process there has been delay of about 100 days. In view of this the delay in filing the appeal has been cogently explained and the cause shown is sufficient, the delay is, therefore, condoned. In the memo of appeal and also in the written argument on behalf of appellant, the opposite party has contended that payment of fee in conducting the cases does not constitute a consumer dispute and, therefore, the, opposite party cannot be held guilty of deficiency of service. It was also contended that the complainant has failed to give the details of 82 written statements and 82 objections prepared by him and in absence of detail of cases persued by the complainant, fee could not have been paid. The complainant is only entitled to fee payable under the U.P. Zamindari Abolition and Land Reforms Act.

On the other hand the contention of the complainant is that he was appointed as Government Counsel for conducting the cases of the Gaon Sabha and the State Government. In the Civil Court the rates of fee which were applicable to such Counsels, the same should have been allowed to him and he was denied the legitimate claim.

IN our view before we decide this controversy we must find out as to how the District Consumer Forum has come to the conclusion that the complainant is a consumer. Section 2(1)(d) defines consumer as follows : " ''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."

In this case no consideration has been paid or promised or partly paid or partly promised to the complainant. Secondly it is the District Magistrate and the Collector who appears to have hired the services of the complainant. It is not the complainant who in any case hired the services of the opposite party. A perusal of the evidence placed on the record of the two appeals files goes to show that the complainant was appointed till further orders to conduct the Civil Court cases relating to Gaon Sabha and the payment was to be made by the Gaon Sabha from its fund (Paper No. 4 of the list of documents in Appeal No. 908/99). Paper No. 16 is copy of the letter sent to the Government by the District Magistrate seeking clarification as to the rate of payment to be made to the complainant. Paper No. 21 is copy of G.O, which clearly indicates that the Counsel appointed by the Government shall be entitled to certain fee but in this case the complainant was not appointed by the Government and was appointed by the District Magistrate for an adhoc period to look after the Gaon Sabha cases in Civil Court and the Government in reply had instructed the District Magistrate to dispense with the arrangement and make payment to the complainant for the work done by him as per provisions of Rules made under U.P. Z.A. & L.R. Act (Paper No. 25).

A further perusal of the papers on record goes to show that the D.G.C. has recommended a payment @ Rs. 125/- per day. All these documents are clear indicators of the fact that it is a matter relating to settlement and determination of the fee payable to a Counsel appointed by the Collector. It is not understood as to how the matter will attract the provisions of Consumer Protection Act. In our opinion the District Consumer Forum has wrongly interpreted the case law on the subject. Case reported on page 692 CPR, Jaya Krushna Samal v. State of Orissa, deals with the negligence on the part of the State Government employees in rendering necessary services to the complainant. In that case it was held that the State Government was aware of the deficiency in service and had given clearance for payment and non-payment, therefore, was deficiency. In this case no clearance was given by the State Government and not even by the District Magistrate who in any case is not Appointing Authority of the Government Counsel (Civil). Similarly the case law reported on page 1988 ALR 642, C(SC), deals with the provisions of equal pay for equal work. The argument of the complainant that some other Lawyer appointed in similar circumstances was given the rates admissible to a Government Counsel does not strengthen the fact that he is a consumer. The case of the opposite party is that only the persons appointed by the Govt are paid the fee prescribed by the Government. The complainant in this case was not appointed by the Government and would, therefore, not have been entitled to the rates of payment fixed by the Government. The complainant has placed reliance on case law reported in III (1997) CPJ page 36 (NC). A study of this case reveals that the question decided is whether education is the service under the Consumer Protection Act. But as already stated in the earlier para of the judgment it is not the complainant who has been provided any service through opposite party. Our attention has also been drawn by the complainant towards the case of Lucknow Development Authority v. M.K. Gupta, 1994 ACJ page 524 (SC). We do not find that the case of the complainant is attracted with this finding. The case law propounded clearly speaks of promotion of welfare of the society by enabling the consumer to participate directly in the market economy. In this case while defining the consumer the Hon''ble Apex Court has held that not only the purchaser of goods or hirer of the services but even those who used the goods or were beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it. In the instant case the dispute is that of the rate of the payment of fee and the same could not have been raised before the District Consumer Forum. The remedy does not lie under the Consumer Protection Act and it was for the complainant to have gone to the State Government or to a proper Civil Court for settlement of the dispute in regard to the fee payable. The District Consumer Forum, therefore, wrongly interpreted the case law and thereby erred in holding the complainant to be a consumer. The complainant while arguing his case has cited judgment and order of the Andhra Pradesh State Commission (supra) in III (1994) CPJ page 431. In this case opposite party had agreed to pay the fee to the Advocate but failed to comply with the order of Forum. In the instant case no such agreement in regard to payment of fee had ever been entered into as would be clear from the documents on records. Therefore, the ruling cited is of no avail to the complainant.

IN view of the above discussion we find that the complainant is not a consumer and the matter in dispute relates to determination and settlement of Counsel''s fee where provisions of Consumer Protection Act are not attracted. IN the circumstances the judgment and order of the District Consumer Forum are liable to be set aside and the appeal for enhancement of claim filed by the complainant is liable to be dismissed. Accordingly Appeal No. 1761/99 is liable to be allowed. ORDER

APPEAL No. 908/99 is dismissed. However, the complainant will be at liberty to agitate his claim before the proper Civil Court. Appeal No. 1761/99 is allowed and the judgment and order passed by learned District Consumer Forum, Sultanpur are set aside. The complaint is dismissed.

This judgment shall be kept in the file of ac shall be placed on the record of Appeal No. 1761/99 which shall also be governed by this judgment. Let copy as per rules be made available to the parties. Appeal No. 908/99 dismissed & Appeal No. 1761/99 allowed.