Bombay HC pulls up BMC lawyer for stating incorrect facts, asks Civic Body to replace its Junior Counsel

The Bombay High Court recently pulled up a lawyer for the Brihanmumbai Municipal Corporation (BMC) for stating incorrect facts in a case concerning demolition of illegal structures.

. The Court observed,

. “Every Court operates/functions on the basis of trust. Since it is impossible for the Court to go through each and every page of the Affidavit or the pleadings, the Court accepts the statements made by the Advocates before the Court, presuming that the Advocate making the statement before the Court understands his/her responsibilities as an officer of the court."

. The Bench proceeded to highlight,

. ...It is therefore incumbent on the part of the Advocate/s to ensure that no incorrect facts are put on Affidavit as well as before the Court, failing which the Court will be misled into passing incorrect orders as is done in the present matter. Bombay High Court . Taking critical note of the apparent disinterest among empanelled advocates of the BMC, the Court also suggested that the Civic Body to immediately replace its junior counsel with the fresh lot for the better functioning of its Legal Department.

. A Division Bench of Justices S J Kathawalla and B P Colabawalla was hearing a contempt petition filed by a city-based developer alleging that the BMC had not complied with the previous order of the High Court.

. The Civic Body had filed an affidavit in November, last year, stating that it is unable to demolish 6 out of 34 structures due to an order passed by the City Civil Court, Mumbai directing the Corporation to maintain status quo

. During the last hearing earlier this month, a Panel Counsel of the Corporation had submitted that the City Civil Court has been hearing the the matter and that it had kept the next hearing on January 15, 2020. Recording this submission, the High Court had adjourned the matter after directing the City Civil Court to pass necessary orders so that the High Court could decide on the writ petition before it.

. However, the petitioners later informed the Court that the submission made by the BMC Panel Counsel was incorrect, since the said Notice of Motion was already disposed of by the Civil Court in October, 2015 i.e. over four years back. Therefore, the directions given to the City Civil Court could not be implemented.

. The BMC counsel also admitted to the mistake. She informed the High Court that it is only on January 15 that she realised that she had made the error. The Court, however, expressed its disapproval over the counsel's failure to immediately rectify the error, once she had come to know of the same. The Bench pointed out,

. “If the Counsel made an incorrect statement before the Court on 8th January, 2020 and realised her mistake on 15th January, 2020, she ought to have informed this Court immediately and sought a recall of the order giving directions to the City Civil Court to hear the matter, since the said matter was disposed of four years ago.”

. The Court further observed that said Counsel had no answer to offer when asked about the delay in rectifying the mistake.

. Compounding the problem, the Bench found that the affidavit filed by the BMC by itself was prepared without any application of mind by the same counsel. The affidavit was also noted to have blindly signed by the Officer of the Corporation. In particular, the Bench found that some of the annexures containing court orders were actually an amalgamation of orders, including parts of an irrelevant court order.

. The peculiar turn of events prompted the Bench to observe that this is not the first time that the assistance given by panel advocates have been found to be unsatisfactory.

. "... we have repeatedly noted that the assistance given by some of the Panel Advocates to the Court is not at all satisfactory." Bombay High Court . In light of this, the Court ask the Chief Law Officer about procedure for selection of advocates on the Junior Panel and distribution of briefs amongst them.

. Inter alia, the Court was informed that given the urgency in some of the matters, the in-house lawyers are now distributing briefs amongst panel lawyers instead of the Senior Law Officer and/or the Deputy Law Officer, prompting the Bench to remark,

. “We do not understand what is the urgency in the matters when 99% of the matters taken up during the week are listed on the Weekly Board which is made available every weekend.”

. Further, the Court was also informed many of the empaneled Advocates are no longer interested in accepting the briefs from the Corporation.

. Taking cognisance of this state of affairs, the Court asked the Civic Body to immediately invite applications from lawyers interested in being part of the Junior Panel. The Bench also directed the Corporation to prepare a fresh list of Junior Panel Advocates after the said selection process. The Court added,

. “If this is not done immediately the problems arising from time to time in matters will continue and will compel us to summon the Commissioner of Municipal Corporation of Greater Mumbai and appraise him of the present state of affairs.” Bombay High Court . The High Court has posted matter for further hearing on February 10.

. Advocates Rohan Mahadik , Roshni Thakkar and Nilesh Lonkar instructed by the Juris Partners appeared for the petitioners in the matter . The BMC was represented by Advocates Jaymala Oaswal , Rupali Adhate and Yamuna Parekh .

. [Read Order dated January 24, 2020 here]

Bombay HC pulls up BMC lawyer for stating incorrect facts, asks Civic Body to replace its Junior Counsel

Omkar Gokhale

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