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1990 DIGILAW 321 (BOM)

Manubhai Paragji Vashi v. Bar Council of India and others

1990-08-13

A.V.SAVANT, S.C.PRATAP

body1990
JUDGMENT - S.C. PRATAP, J.:---This appeal by a practising advocate of this Court is against the order of a learned Single Judge rejecting Writ Petition No. 2004 of 1990 filed against the Bar Council of India, the Bar Council of Maharashtra, Members of the Enrolment Committee of the Bar Council of Maharashtra and respondent No. 6 whose name was transferred by the Enrolment Committee from the list non-practising advocates to the list of practising advocates. 2. The appellant Mr. Vashi appearing in person raised the following contentions: (a) The Enrolment Committee had no jurisdiction to consider the 6th respondent's application for transfer of his name from the list of non-practising advocates to that of practising advocates. (b) The decision of the Enrolment Committee is invalid also because it suffers from legal bias because one member thereof had earlier expressed his view qua applications for transfer of names from the list of non-practising advocates to that of practising advocates. (c) The Enrolment Committee acted in haste and hurry. (d) By virtue of Article 220 of the Constitution it is not open to the 6th respondent to have even chamber practice, And (e) The Enrolment Committee committed contempt by not following a ruling of a learned Single Judge of this Court in (Kranti Mohan Guruprasad Mehra and another v. Fatechand Vasuram Behal)1, A.I.R. 1982 Bom. 263. 3. On the first contention relating to the Enrolment Committee's jurisdiction, section 49 of the Advocates Act (hereafter, the Act) empowers the Bar Council of India to make rules for discharging its functions under the Act and under clause (ah) of sub-section (1) of section 49, rules can be framed prescribing the conditions subject to which an advocate shall have the right to practice in a circumstances under which a person is deemed to practice in a Court. Rules have accordingly been framed and in the context of the question raised it is best to reproduced the relevant Rule 5 : "5.(1) An advocate who voluntarily suspends his practice for any reason, whatsoever, shall intimate by registered post to the State Bar Council on the rolls of which his name is entered, of such suspension together with his certificate of enrolment in original. (2) Whenever any such advocate who has suspended his practice desires to resume his practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, alongwith an affidavit setting whether he has incurred any of the disqualifications under section 24-A, Chapter III of the Act during the period of suspension. (3) The Enrolment Committee of the State Bar Council may order the resumption of his practice and return the certificate to him with necessary endorsement. If the Enrolment Committee is of the view that the advocate has incurred any of the disqualifications, the Committee shall refer the matter under proviso to section 26(1) of the Act. (4) On suspension and resumption of practice the Secretary shall act in terms of Rule 24 of Part IX." There is no dispute that on being appointed Judge, the 6th respondent suspended his practice nor any dispute that his name was thereupon transferred from the list of practising advocates to that of non-practising advocates. After resigning as Judge of this High Court, the 6th respondent applied to the Secretary, Bar Council of Maharashtra, requesting to take him on the roll of practising advocates. This was on 11th June 1990. The Secretary informed the 6th respondent that his affidavit was necessary in terms of section 24-A of the Act. The 6th respondent made and tendered his affidavit accordingly. The Enrolment Committee thereafter considered the application. And by its order dated 3rd July, 1990 granted the same. 4. We find nothing in the Act or the Rules in support of the contention that the Enrolment Committee had no jurisdiction in the matter. We search in vain for any such bar. Under rule 5(3) of the Rules supra it is the Enrolment Committee alone which has this jurisdiction. What is more, though it is in the discretion of this Committee to grant the application in question, it had no discretion to reject the same. In the latter contingency, it must refer the matter to the Bar Council of India vide section 26(1) of the Act. What is more, though it is in the discretion of this Committee to grant the application in question, it had no discretion to reject the same. In the latter contingency, it must refer the matter to the Bar Council of India vide section 26(1) of the Act. Again, when the Enrolment Committee had been vested with the basic power and jurisdiction to consider an application for the very initial admission or enrolment as an advocate, we see no merit in the contention that though that is so, far less power or jurisdiction to only transfer an already enrolled advocate's name from one list to another does not belong to the said Committee. The first contention thus fails and is rejected. 5. Coming next to the contention on legal bias, true though it is that an opinion was expressed by one of the members of the Enrolment Committee, that an application such as the one here is generally granted, that, however, will not necessarily result in an inference of bias. Indeed, there was no dispute before us that, by and large and all over the years till now, such and similar applications have been granted. Not a single instance of such application having ben deferred by any Enrolment Committee and in turn referred to the Bar Council of India was cited. Such then being the long standing practice all over the years, we fair to see how the fact that a member of the Enrolment Committee gives vent thereto can result in bias. We may also mention that the Enrolment Committee consists of three members with a quorum of two. Consequently, even if the third member is executed, the decision of the other two would prevail. The contention on bias also, thereof, fails. 6. On the submission that the Enrolment Committee acted in haste and hurry, we need only say that the legality and validity of its decision is to be tested no on the touchstone of its speed, fast or slow, but on its own merits. If once a decision is found to be legal and valid, the fact that it is expenditious or after prolonged delay, is of no relevance. If once a decision is found to be legal and valid, the fact that it is expenditious or after prolonged delay, is of no relevance. Moreover, on facts here, though the 6th respondent's application was made on 11th June, 1990 with a simple request to transfer his name from one list to the other, the Enrolment Committee took more than three weeks to decide the same. The contention on speed also thus fails. 7. The next contention, which according to Mr. Vashi, is the most important, is based on Article 220 of the Constitution. He submitted that this article prohibits even chamber work. Now, on a plain reading of this provision, no person who has held office as a permanent Judge of a High Court shall plead or act in any Court of before any authority in India except the Supreme Court and the other High Courts. There is no bar even implied on chamber work of practice and/or giving options and/or being consulted in legal matters and/or arbitration work. The Full Bench ruling on which reliance was placed by Mr. Vashi of the Andhra Pradesh High Court in (Nadella Satvanarayana v. Yamanoori Venkata Subhiah)2, A.I.R. 1957 Andhra Pradesh 172, on the meaning of the word "acting" in the context of Order 3 of the Code of Civil Procedure, has no application or relevance to the interpretation of Article 220 of the Constitution. This article is clear and unambiguous and does not even remotely warrant the extreme construction put thereon by the appellant Mr. Vashi. 8. The last contention that by not following the ruling of a learned Single Judge of this Court in (Kranti Mohan Guruprasad mehra and another v. Fatehchand Vasuram Behal), A.I.R. 1982 Bom. 263, the Enrolment Committee was in contempt has also no merit therein. This ruling was the altogether different context of the lower Courts not granting reasonable time to an aggrieved litigant to challenge its judicial orders in higher courts and obtain stay. We fail to see its relevance here. The Enrolment Committee of the Bar Council was not discharging any judicial function. It is also extremely doubtful whether it was performing even a quasi judicial function. Besides, it was also not considering any application for any initial enrolment or admittance of one as advocate. We fail to see its relevance here. The Enrolment Committee of the Bar Council was not discharging any judicial function. It is also extremely doubtful whether it was performing even a quasi judicial function. Besides, it was also not considering any application for any initial enrolment or admittance of one as advocate. All that it was considering was a simple request by one who was already enrolled as an advocate to have his name transferred from the list of non-practising advocates to that of practising advocates. The last contention also thus fails and is rejected. 9. Before concluding, we cannot but help observe that these proceedings have generated more heat than light. Though there is no bar in initiating such proceedings, caution and restraint should be the hallmark while doing so. De hors the merits/demerits of a particular case, one cannot overlook the repercussions, may be unintended, such proceedings could have on public trust and confidence (so vital and essential) in the judicial profession as a whole which includes both the Bar and the Bench. The question, after all, was of a simple application of an erstwhile practising advocate requesting the Bar Council to have his already enrolled name merely transferred from one list to another. And on this question, the elected members from the legal profession constituting the Enrolment Committee of the Bar Council (of which Council the appellant himself has been a member) were there to discharge their duty with full sense of responsibility. And that it has been so discharged stands fully reflected in their detail three separate but concurrent and unanimous opinions. Be that as it may, we fervently hope that this appeal and the decision thereon would be accepted as the final curtain on the unfortunate controversy. With these last words, the appeal stands dismissed. 10. Notwithstanding the fervent hope aforesaid, Mr. Vashi requests for leave to appeal to the Supreme Court submitting that substantial questions of law arise in this case. We are unable to agree. We find no substantial question of law arising for determination. Leave to appeal is therefore, rejected. Appeal dismissed. ----