N.S. Varadachari vs The Bar Council of Tamil Nadu and Others

S. Nagamuthu, J.—The Petitioner, an octogenarian and a member of the legal fraternity, has come up with this writ petition seeking to quash

the disciplinary proceedings under The Advocates Act, 1961 pending against him with the Disciplinary Committee of the Bar Council of Tamil

Nadu and Puducherry.

The facts leading to the case are as follows:

One Mr. V.G. Jayaraman, who claims to have title and possession in respect of the property bearing D. No. 54-57, at Vembuli Subedar Street,

Alandur, Chennai, approached the Petitioner professionally seeking his legal opinion regarding the title claimed by him. Based on the deeds of

settlement dated 07.04.1976 and 20.04.1976, the Judgments and decrees of the civil courts in C.S. No. 216 of 1978 dated 17.08.1983 and

O.S.A. No. 20 of 1985 dated 23.06.1992, the Petitioner gave a report to his client - Mr. V.G. Jayaraman thereby opining that Mr. V.G.

Jayaraman had a clear and marketable title to the property in question. Thereafter, the 3rd Respondent , who is carrying on business under the

name and style of Sankara Builders appears to have entered into a sale agreement with Mr. V.G. Jayaraman for developing the said property. It

also appears that Mr. V.G. Jayaraman had appointed him as his power of attorney and based on the same, the 3rd Respondent had built six flats

over the property and sold away four flats to the Respondents 4 to 7. Thereafter, the 3rd Respondent appears to have entered into another

agreement with Mr. V.G. Jayaraman regarding rest of the areas to have yet another project. But, he was advised by somebody that the title

claimed by Mr. V.G. Jayaraman was defective. Therefore, the 3rd Respondent is stated to have stopped further construction activities.

According to the Respondents 3 to 7, they entered into the above transactions based on the legal opinion offered by the Petitioner to Mr. V.G.

Jayaraman. Now, according to them, they could not go ahead with the above transaction and thus, they have suffered huge loss. With these

allegations, the Respondents 3 to 7 have made a complaint to the 1st Respondent / the Bar Council of Tamil Nadu & Puducherry. The Bar

Council in turn called upon the comments of the Petitioner which the Petitioner promptly did. Thereafter, the Bar Council passed the following

order:

After careful consideration of the Complaint and the comments , the Bar Council of Tamil Nadu has reason to believe that the Respondent is guilty

of professional or other misconduct and it has therefore referred the complaint to the Disciplinary Committee for disposal.

In pursuance of the said order, the 2nd Respondent /Disciplinary Committee has issued a notice to the Petitioner for his appearance and for

enquiry by its proceedings in D.C.C. No. 25 of 1999. Challenging these proceedings, the Petitioner is now before this Court with this writ petition.

I have heard the learned senior counsel appearing for the Petitioner and the learned Counsel appearing for the Respondents 1 and 2 and also

perused the records carefully. Despite service of notice and their names have been printed in the cause list, the Respondents 3 to 5 and 7 have not

chosen to appear either in person or through a counsel.

The profession of an Advocate is a dignified profession. Undoubtedly, it is noble. Their role in the justice delivery cannot be underestimated.

Their participation in the nation building cannot go unnoticed. They play a vital role in the preservation of the independence of the judiciary which is

one of the basic structures of the constitution. The Advocates are expected to conduct themselves in a dignified manner without losing even a very

small amount of reputation and the confidence which the public, more particularly, their clients repose in them. Their conduct, be it professional or

otherwise, should be above board. Whenever there is a complaint regarding the conduct of an Advocate alleging that such conduct is a

misconduct, either professional or otherwise, the Bar Council of Tamil Nadu has to act upon the said complaint u/s 35 of The Advocates Act,

1961 [hereinafter referred to as ""the Act""]. Sub-section (1) of Section 35 of the Act reads as follows:

Punishment of advocates for misconduct.- (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any

advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.

A close reading of the above provision would make it clear, without any doubt, that there are to be two essential ingredients available on record

which form the basis for the reasons to believe that such Advocate is guilty of professional or other misconduct. The term ""reasons to believe"" in

the given context is stronger than the term ""mere satisfaction"". In order to find out whether there are reasons to have such belief , the Bar Council is

required to apply its mind. The requirement of ''reasons to believe'' cannot be converted into a formalised procedural road block, it being

essentially a barrier against frivolous inquiries [Vide Bar Council of Maharashtra Vs. M.V. Dabholkar and Others, . There should be some rational

and intelligible nexus between the reasons and belief. The belief entertained by the Bar Council should not be either arbitrary or irrational. But, it

must be reasonable and in other words it must be based on reasons which are based on relevant materials [Vide Nandlal Khodidas Barot Vs. Bar

Council of Gujarat and Others, .

Then, what is misconduct either professional or otherwise needs to be understood. The term ""misconduct"" has not been defined anywhere in the

Act. However, it came up for consideration before a Full Bench of this Court in U. Dakshinamoorthy v. The Commission of Inquiry 1980 (I) MLJ

121 wherein the Full Bench of this Court has held as follows:

As misconduct has not been defined, we have to be guided by the meaning which is obtainable for the expression in ordinary and common

parlance. ''Misconduct'', as explained in the dictionary, is improper conduct. The propriety of the conduct of the Advocate is to be inquired into by

the Commission. Whether it is professional misconduct or misconduct otherwise has to be judged by the Bar Council which has to be satisfied

about the commission of such misconduct, as technically understood under the Advocates Act. Every misconduct may not be professional

misconduct or other misconduct contemplated by Section 35.

When a similar question arose before the Hon''ble Supreme Court in Ratnam v. Kanikaram AIR 1965 S.C. 244 wherein the Hon''ble Supreme

Court has held as follows:

From the resume of the understanding of the term ""professional or other misconduct"", as it appeared in the Bar Councils Act, or, as it is found in

the Advocates Act, it appears that the term ''misconduct'' appearing in the respective sections has to be examined, with the lens of propriety,

decency and worthy living and the fitness of the person to be on the rolls as an Advocate. It therefore appears that an accent is laid at every stage

by the highest Court of our land on the fitness of the person to continue on the rolls, which has to be decided with reference to his conduct in

general or with reference to his conduct touching upon a particular incident.

I do not wish to refer to the other Judgments cited at the bar on this aspect because the same would only add to the length of this order. From

the above Judgments, it is crystal clear that it is not every conduct of an advocate which shall be the subject matter of disciplinary proceedings

against him u/s 35 of the Act. But, it is a conduct, either professional or otherwise, which will render him unfit to be a part of the dignified fraternity

of legal profession shall alone be the subject matter of disciplinary proceedings.

In this case, the allegation is that the opinion offered by the Petitioner to Mr. V.G. Jayaraman regarding the so-called title claimed by Mr. V.G.

Jayaraman was wrong. Now, the question is as to whether this will amount to misconduct or conduct unbecoming of an Advocate. In this regard I

may refer to a judgment of the Hon''ble Supreme Court in Noratanmal Chouraria Vs. M.R. Murli and Another, wherein, after having analysed

various Judgments on this aspect right from the year 1957, the Hon''ble Supreme Court in para 12 has held as follows:

Section 35 of the Advocates Act, however, refers to imposition of punishment for professional or other misconduct. A member of legal

profession which is a noble one is expected to maintain a standard in dignified and determined manner. The standard required to be maintained by

the member of the legal profession must be commensurate with nobility thereof. A Lawyer is obligated to observe those norms which make him

worthy of the confidence of the community in him as an officer of the court. .....

In Pandurang Dattatraya Khandekar Vs. Bar Council of Maharashtra, Bombay and Others, , the Hon''ble Supreme Court in para 9 has held

as follows:

Nothing should be done by any member of the legal fraternity which might tend to lessen in any degree the confidence of the public in the fidelity,

honesty and integrity of the profession. For an advocate to act towards his client otherwise than with utmost good faith is unprofessional. It is

against professional etiquette for a lawyer to give out that an advocate should accept employment with such motive, or so long as his client has

such understanding of his purpose. It is professionally improper for a member of the bar to prepare false documents or to draw pleadings

knowingly that the allegations made are untrue to his knowledge. Thus the giving of improper legal advice may amount to professional misconduct.

That however may not be so by the giving of wrong legal advice.

In the above Judgment, the Hon''ble Supreme Court has referred to a Full Bench of this Court in In the Matter of Mr. B. Minuswami Naidu Vs.

A., B.L., High Court Vakil, wherein the FB has held as follows:

Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no

suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests

upon Mr. M.

In the case on hand, first of all, the Petitioner did not offer any opinion to the Respondents 3 to 7, and in no way, he is connected with them as

they had not engaged him for professional opinion. Instead , legal opinion was given only to Mr. V.G. Jayaraman. That opinion is also based on

Judgments of the civil courts and certain other deeds. The said opinion cannot be stated to be baseless. Further, when the said opinion was offered

only to Mr. V.G. Jayaraman and he has got no grievance over the said opinion, the Respondents 3 to 7, who are utter strangers to the Petitioner

cannot make any allegation that the opinion amounts to professional misconduct. Further , it is not known as to how the said opinion offered by the

Petitioner is stated to be wrong. Assuming that it is a wrong opinion, as held by the Full Bench of this Court in the judgment cited supra and the

Hon''ble Supreme Court that will not amount to professional misconduct warranting proceedings u/s 35 of the Act. But, the 1st Respondent has

not applied its mind at all into the allegations made against the Petitioner to find out whether there was any professional misconduct or other

misconduct or not. From the materials available on record, I have got no hesitation to hold that there is total non application of mind on the part of

the Bar Council. When there are no materials available on record to form the basis for reasons to believe that the Petitioner had committed

anything unbecoming of an Advocate amounting to a misconduct either professional or otherwise, the 1st Respondent ought not to have referred

the matter to the 2nd Respondent - Disciplinary Committee for enquiry. Thus, the impugned disciplinary proceedings is unwarranted and the same

is liable to be quashed.

In the result, the writ petition is allowed and impugned disciplinary proceedings is quashed. No costs.