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2002 DIGILAW 1507 (SC)

Bar Council of India v. Ram Chandra Prasad

2002-11-25

G.B.PATTANAIK, K.G.BALAKRISHNAN, S.B.SINHA

body2002
ORDER : G.B. Pattanaik, CJI., K.G. Balakrishnan, S.B. Sinha, JJ. Delay condoned. Leave granted. The Bar Council of India is in appeal against the impugned order and direction of a learned Single Judge of the Calcutta High Court dated 20-12-2000. 2. The respondent, an advocate, filed an application under Article 226 of the Constitution of India assailing the legality of the order of the Disciplinary Committee of the Bar Council of India. After serving a copy of the same on the Bar Council of India as well as other respondents intimating therein that the matter would be moved on a particular date; on the date the matter was posted, the learned Single Judge allowed the prayer of the respondent, even in the absence of the Bar Council of India, and set aside the order of the Bar Council of India with certain further directions. It is this order, which is the subject-matter of challenge in this appeal. 3. Mr Rao, the learned Senior Counsel appearing for the Bar Council of India contends that the impugned order being one without noticing the Bar Council of India, the same cannot be sustained. He further contends that in view of an alternative remedy available to the respondent a writ petition could not have been entertained. The respondent appearing in person vehemently contends that in view of the provisions contained in Rule 26 of the Rules of the High Court at Calcutta relating to application under Article 226 of the Constitution read with Rule 35 thereof, it was not necessary to issue any further notice to the Bar Council of India, once a copy of the application to be filed had been served. Therefore, there has been no illegality with the impugned order setting aside the order of the Bar Council of India at that stage. 4. On examining the aforesaid provisions of the rule, we are, however, unable to persuade ourselves to agree with the submissions made by the respondent-in-person. 5. The provision contained in Rule 26 is merely a provision for serving a copy of the application when the application is against the Central Government/Local Authority/Corporation or any of its officers is a party where those authorities have their Standing Counsel in the High Court. The Bar Council of India had no Standing Counsel in the High Court itself. 5. The provision contained in Rule 26 is merely a provision for serving a copy of the application when the application is against the Central Government/Local Authority/Corporation or any of its officers is a party where those authorities have their Standing Counsel in the High Court. The Bar Council of India had no Standing Counsel in the High Court itself. Even sub-rule (3) of Rule 35 indicates that if the Court at that stage decides to issue rule and entertain the matter for final adjudication, notice has to be served on the respondent. 6. We really fail to understand how mere service of an application on either the State Government or the Central Government or the local authority would tantamount to the fact that the Court has entertained the matter and the Court shall be entitled to dispose of the matter without any notice to the party concerned. It is the order of the Bar Council of India, which was the subject-matter of challenge before the High Court. In that view of the matter, the High Court was duty-bound having found, prima facie, a case in the writ petition filed by the respondent to issue notice to the Bar Council of India. This being the position, the impugned order cannot be sustained. 7. We, therefore, set aside the said order and remit the matter to be heard and disposed of by the learned Single Judge other than the Judge who has heard and disposed of the matter. The Bar Council of India undertakes to enter its appearance within two weeks from today in the Calcutta High Court, whereafter the matter can be heard and disposed of. 8. We are not examining the second contention of Mr Rao, as it would be for the High Court to hear and dispose of the matter. The respondent-in-person urged that the petition under Article 136 is not maintainable on the ground that correct dates have not been mentioned as well as on several other irregularities. We reject the submission. In a case like this where the impugned order of a learned Single Judge of the High Court must be held to be a nullity, the same has to be interfered with. The appeal is disposed of accordingly.