Allahabad High Court Deprecates State's Failure To Pay Counsel's Fees, But Rejects ₹4.8 Crore Writ Claim As Not Maintainable
The Allahabad High Court has deprecated the State's failure to pay professional fees to counsel engaged to defend its cases, observing that such non-payment could constrain advocates to approach the courts.
However, while dismissing an advocate's four writ petitions seeking recovery of about ₹4.8 crore as not maintainable, the Court held that disputed claims for professional fees arising from a contractual engagement cannot ordinarily be adjudicated in writ jurisdiction.
It added that payment of professional fees ought to remain a private matter between an advocate and client, and that counsel too should exercise restraint before dragging a client to court over payment.
The bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary held,
“This Court at the very outset, deprecates this kind of attitude of the Respondent-State in not making payments to their Counsel for defending their cases, which would constrain any of the Counsels to approach this Court. According to this Court, payments of professional fees ought to be a very privileged and private affair between an Advocate and a Client and ought not to be a subject-matter of any Court proceedings. This Court cannot be oblivious to the fact that ordinarily dispute relating to payment of Counsel fees should not be brought in a court of law and resolved by mediation/conciliation between the parties, even if one party may be the State. Equally, the Counsel also should show some kind of restraint in dragging a client to a Court by him for payment of fees.”
It further held,
“According to this Court, in either of these cases, a party may win, but it is the trust and faith which always loses, which may not be the best of things in dispensation of justice. A litigation between a Counsel and his client would tantamount to defeating the very bedrock of trust and faith, which is the basic foundation for an Advocate and client relationship.”
Petitioner, an advocate of the High Court and a member of the Oudh Bar Association, filed four writ petitions in person seeking a mandamus directing the State to pay his outstanding fees with penal interest. He stated that he had been counsel for the State for about 16 years and that by a Government Order dated 23rd April 2009 he was authorized to receive notices and appear in the disposal of all special appeals for the Basic Education Department.
Relying on a Government Order dated 2nd March 2011 which proposed a fee of Rs. 15,000/- to Rs. 5,00,000/- per case for Special Counsel appointed by the Government, he claimed entitlement to the maximum figure. The four petitions covered 30, 41, 17 and 08 matters from Sitapur, Hardoi, Lucknow and Raebareli, claiming about Rs. 4,80,00,000/- in all. He pleaded that his bills had been accepted but not paid, and alleged violation of Articles 21 and 23(1) of the Constitution.
The State objected to maintainability arguing that recovery of fees under a contract of engagement lay within the jurisdiction of a civil court.
It was submitted that petitioner had been empanelled by the Basic Shiksha Parishad on 6th February 2008, that the order of 23rd April 2009 merely authorized him to receive notices, and that he was removed from the panel on 13th October 2011, the disputed bills relating to cases outside that period. It was added that the Government Order of 2nd March 2011 applied only to counsel outside the panel, and that no engagement order, sanction order or stipulation fixing remuneration of Rs. 5,00,000/- was on record.
The Court noted that in Improvement Trust, Ropar v S. Tejinder Singh Gujral the Supreme Court had held that no writ petition would lie by advocates for recovery of fee. In Vijay Kumar Shukla v. State of Uttar Pradesh, the Supreme Court had doubted maintainability under Article 32. It found no good ground to take a different view.
On petitioner's argument that the claim was for an admitted amount, the Court found nothing on record to show that the bills had been admitted, and observed that the bills themselves had not been annexed.
“It is one thing to say that the engagement of the petitioner as special Counsel is admitted by the respondents and it is another thing to say that the bills which were raised by the petitioner have been admitted by the respondents.”
It held,
“Thus, keeping in view that the engagement of the petitioner is essentially contractual in nature and the well settled proposition that disputed monetary claims arising out of contractual engagements, unless they involve an undisputed statutory liability or an admitted obligation, we hold that the present writ petition is not maintainable in the given facts and circumstances of the case.”
The Court further held that the petitions raised complicated questions of fact requiring evidence at a regular trial. It held that the Government Order dated 2nd March 2011 merely guided departments on the range within which a special counsel's fee was to be finalised, and did not fix the maximum figure for every case allotted to him, the fee having to be agreed case by case.
“Thus, a complex web of disputed facts is involved in the present case, which obviously cannot be adjudicated and decided by this Court exercising jurisdiction under Article 226 of the Constitution of India.”
The Court declined to decide whether the claim was time-barred, limitation being a mixed question of law and fact, and declined to comment on the fee entitlement of a special counsel removed from empanelment on 13th October 2011, as that would prejudice the parties in future litigation.
Accordingly, the writ petitions were dismissed, with liberty to petitioner to approach a competent civil court and the benefit of Section 14 of the Limitation Act available to him in accordance with law.
Case Title: Jyotinjay Verma v. State Of U.P. Thru. Secy. Basic Education Lko And 5 Others