Harjot Singh Harikay v. Bar Council of Punjab and Haryana
2015-08-04
HARINDER SINGH SIDHU, SATISH KUMAR MITTAL
body2015
DigiLaw.ai
JUDGMENT : Harinder Singh Sidhu, J. This order shall dispose of above-mentioned four writ petitions and one intra-Court appeal filed under Clause X of the Letters Patent as the common questions of law involved therein. 2. In CWP No. 6047 of 2015 challenge is to the letter dated 21.3.2015 addressed by the Bar Council of Punjab and Haryana to all the Bar Associations in the States of Punjab and Haryana directing that the elections of Bar Associations for the year 2015-16 be held in the first week of December 2015 as per the Bar Associations (Constitution and Registration) Rules 2015. As per the letter, it has been stated that in the meantime, the already elected office bearers are allowed to continue and implement the Rules till the elections are conducted in accordance therewith in December 2015. 3. In CWP No. 5232 of 2015 challenge is to the Bar Association (Constitution and Registration) Rules 2015 and the letter dated 5.3.2015 issued by the Bar Council of Punjab and Haryana directing the holding of elections of the Bar Associations on 4th December, 2015 in accordance with the 2015 Rules. 4. In CWP No. 11251 of 2015, challenge is to the election of respondents No. 6 to 9 as office bearers of the District Bar Association Karnal in the election held on 19.5.2015 for being in contravention of the Bar Associations (Constitution and Registration) Rules, 2015 and also in violation of the interim order dated 11.5.2015 passed in SLP (C) CC 8337-38/15, vide which the operation of the impugned judgment dated 22nd April, 2015 passed by this Court in CWP No. 5232 of 2015 directing that elections of the office bearers of the District Bar Associations whose terms have expired be held within one month, was stayed. It is also prayed that an ad-hoc committee be appointed to manage the affairs of the District Bar Association till fresh elections are held in accordance with the 2015 Rules. 5. In CWP No. 11212 of 2015, challenge is to the election of the office bearers of Kurukshetra Bar Association held on 21.5.2015 on similar grounds as in CWP No. No. 11251 of 2015. 6.
5. In CWP No. 11212 of 2015, challenge is to the election of the office bearers of Kurukshetra Bar Association held on 21.5.2015 on similar grounds as in CWP No. No. 11251 of 2015. 6. In LPA No. 527 of 2015 the orders of learned Single Judge dated 3.12.2014, whereby, CWP No. 14449 of 2014 filed by respondent No. 1 challenging the action of the appellant-Bar Council of Punjab and Haryana in setting aside the election of respondent No. 1, was allowed by holding that the Bar Council did not have the jurisdiction to set aside the election. 7. In sum, in all these cases, the central question is the validity of the Bar Associations (Constitution and Registration) Rules 2015 ( hereinafter referred as the `2015 Rules') framed by the Bar Council of Punjab and Haryana. 8. At the outset, a few background facts may be noted. 9. The question of validity of clause 12(8) of the Bye-laws of the Gurgaon Bar Association which restricted any person from holding the office of President of the Bar Association for more than three times in his life time, was raised in CWP No. 5952 of 2014. The writ petition was disposed of with the observation that the said bye-laws could be amended by the Bar Association, which was a Society registered under the Societies Registration Act, 1860 by resorting to the procedure for amendment as per its memorandum of Association. 10. The matter was carried in appeal in LPA No. 1427 of 2014. In the course of the proceedings in the LPA, the Court had the benefit of assistance and interaction with the Chairman of the Bar Council of Punjab and Haryana along with some elected members/Office-bearers thereof. The need and necessity to enact appropriate Rules which could be applied uniformly to all the Sub Divisional or District level Bar Associations was noticed and it was assured that in their formulation the Office-bearers of District Bar Associations would be consulted. 11. The LPA was disposed of on 1.9.2014 with the following order:- "(4) While ironing out the above noticed anomalous situation prevailing due to conflicting bye-laws framed by various Bar Associations, the Bar Council shall also take notice of other anomalies which are affecting the purity, fairness, transparency and democratic values in the annual elections of Bar Associations.
11. The LPA was disposed of on 1.9.2014 with the following order:- "(4) While ironing out the above noticed anomalous situation prevailing due to conflicting bye-laws framed by various Bar Associations, the Bar Council shall also take notice of other anomalies which are affecting the purity, fairness, transparency and democratic values in the annual elections of Bar Associations. The Bar Council must ensure that comprehensive policy decision with appropriate statutory back-up, to be formulated henceforth by it, is given effect by all the Bar Associations without any exception, failing which the Bar Council should invoke its other statutory powers under the Act. (5) We thus dispose of this appeal, on the assurance given on behalf of the Bar Council of Punjab & Haryana, that the issue(s) raked up in this appeal or that keep on arising otherwise, shall be adequately addressed by them and necessary steps shall be taken to introduce a uniform pattern of eligibility conditions for contesting, voting and/or the tenure of Executive Members/office-bearers of Bar Associations at district or sub division levels." The Bar Council of Punjab and Haryana thereafter invited The Presidents, Secretaries, Office Bearers of all the Bar Associations including the Office Bearers of the Punjab and Haryana High Court Bar Association to give their proposals on formulation of the Rules. Majority of the Bar Associations participated and their suggestions and proposals, as well as their existing bye-laws/rules/regulations/constitutions were taken on record and considered. It also came to light that some of the Bar Associations were not having their own rules/constitution. After due deliberation the Bar Council framed the 2015 Rules. 12. These Rules were approved by the General House of the Bar Council of India in its meeting held on 2.5.2015. 13. A letter dated 21.3.2015 on the subject of holding of forthcoming elections of Bar Associations for the year 2015-16 was addressed by the Bar Council of Punjab and Haryana to all the Presidents/Secretaries of the Bar Associations throughout the States of Punjab, Haryana and Chandigarh. With reference to the Bar Council of India Certificate and Place of Practice (Verification) Rules 2014, the letter stated that as per these Rules, it is mandatory for the advocates to get their licences renewed. As per clause 5 of the Rules, an advocate shall not be permitted to practice law unless he holds a valid and verified certificate of practice.
As per clause 5 of the Rules, an advocate shall not be permitted to practice law unless he holds a valid and verified certificate of practice. It was stated that in terms of the Rules, the Bar Council is required to prepare the list of defaulting Advocates. It was pointed out that it would take about six months to finalise the electoral list of practicing advocates. Thus, it was not possible to conduct the elections of the Bar Associations immediately. Hence, directions were issued to hold elections in the first week of December 2015 as per these 2015 Rules. It was stated that if any Association or any Member of the Association violates the Rules, the Bar Council would have no option except to take strict disciplinary action against such Advocate or such Bar Association in accordance with the provisions of the Advocates Act, 1961. It was directed that in the meantime, the already elected office bearers are allowed to continue to stay in office and implement the Rules and ensure compliance with the statutory rules as prescribed. It was stated that after the verification of licences the elections will be conducted in the month of December, 2015 after preparing final electoral roll, renewal of licences etc. 14. CWP No. 6407 of 2015 has been filed seeking quashing of letter dated 21.3.2015 and further praying for issuance of directions to the Bar Council of Punjab and Haryana not to interfere in the election process of the District Bar Association Ludhiana and further that they be permitted to hold election as per their Constitution. In CWP No. 5232 of 2015 quashing of the Bar Association (Constitution and Registration) Rules, 2015 has been prayed for. 15. When these writ petitions came up for hearing on 22.4.2015 the following order was passed:- "We have heard learned counsel for the parties on the interim prayer made by the petitioner(s). After going through the facts and circumstances of the case, we deem it appropriate to order that the election of office bearers of the District Bar Associations of the States of Haryana and Punjab, including the election of Jhajjar Bar Association, whose terms have already expired be held within a period of one month from today.
After going through the facts and circumstances of the case, we deem it appropriate to order that the election of office bearers of the District Bar Associations of the States of Haryana and Punjab, including the election of Jhajjar Bar Association, whose terms have already expired be held within a period of one month from today. The said election shall be for a term of one year or a lesser period, in case Bar Council of Punjab and Haryana uniformly fix a date for next election of office bearers of all the District Bar Associations. Adjourned to 25.05.2015 for arguments. In the meanwhile, reply/written statement be filed, if the same has not been filed by any of the respondents with an advance copy to counsel opposite. A photocopy of this order be placed on the file of connected case." 16. It was directed that the elections of the office bearers of the District Bar Associations of the States of Haryana and Punjab, whose terms had already expired be held within a period of one month from the date of the order. 17. SLP (C) No. 8337-8338 of 2015 was filed against this order dated 22.04.2015, and the Hon'ble Supreme Court vide dated 11.05.2015 stayed the operation of the above order dated 22.4.2015. This SLP and and another connected SLP (C) No. 15918 of 2015 arising out of dated 22.04.2015 were disposed of vide order dated 08.07.2015 which reads as under : "After hearing learned counsels for the parties, we request the High Court of Punjab and Haryana to hear and decide CWP No. 5232 of 2015 and CWP No. 6047 of 2015 and such other connected matters as may be, as expeditiously as possible, in any case, within a period of 30 days from today. The elections to the Bar Association of the States of Punjab and Haryana shall follow only after the decision of the High Court is rendered in the writ petitions. Both the Special Leave Petitions are disposed of in the above terms." Accordingly, these matters have been taken up for hearing. 18. As the issue concerns the elections of the Bar Associations, it would be proper to note a decision of the Hon'ble Supreme Court in Supreme Court Bar Assn.
Both the Special Leave Petitions are disposed of in the above terms." Accordingly, these matters have been taken up for hearing. 18. As the issue concerns the elections of the Bar Associations, it would be proper to note a decision of the Hon'ble Supreme Court in Supreme Court Bar Assn. v. B.D. Kaushik, (2011) 13 SCC 774 , wherein, the importance and significance of the court annexed Bar Associations has been highlighted, both as being a part of the machinery for administration of justice and also being in aid to the Advocates Act. The observations of the Hon'ble Supreme Court are as under : "27. The Supreme Court Bar Association, as the name suggests, is a society primarily meant to promote the welfare of the advocates generally practising in the Supreme Court. The name i.e. the Supreme Court Bar Association was formally registered under the Societies Registration Act, 1860 only on 25-8-1999. One of the prime objectives of SCBA is to establish and maintain adequate library for the use of the members and to provide other facilities and convenience of the members. Thus, the formation of SCBA is in the nature of aid to the Advocates Act, 1961 and other relevant statutes including Article 145 of the Constitution. 28. There is no manner of doubt that court-annexed Bar Associations constitute a separate class different from other lawyers' associations such as Lawyers' Forum, All India Advocates' Association, etc. as they are always recognised by the court concerned. Court-annexed Bar Associations function as part of the machinery for administration of justice. As is said often, the Bench and the Bar are like two wheels of a chariot and one cannot function without the other. The court-annexed Bar Associations start with the name of the court as part of the name of the Bar Association concerned. That is why we have the Supreme Court Bar Association, Tis Hazari District Court Bar Association, etc. The very nature of such a Bar Association necessarily means and implies that it is an association representing members regularly practising in the court and responsible for proper conduct of its members in the court and for ensuring proper assistance to the court. In consideration thereof, the court provides space for office of the association, library and all necessary facilities like chambers at concessional rates for members regularly practising in the court, parking place and canteen besides several other amenities.
In consideration thereof, the court provides space for office of the association, library and all necessary facilities like chambers at concessional rates for members regularly practising in the court, parking place and canteen besides several other amenities. In the functions organised by the court-annexed Bar Associations the Judges participate and exchange views and ascertain the problems, if any, to solve them and vice versa. There is thus regular interaction between the members of the Bar Association and the Judges. The regular practitioners are treated as officers of the court and are shown due consideration." 19. We may now refer to the salient provisions of the 2015 Rules. The stated object of these Rules is to bring about uniformity and transparency in relation to elections of office bearers of the Bar Associations within the jurisdiction of the Bar Council of Punjab and Haryana. Rule 3 deals with the registration of Bar Associations. It requires that there shall be one Bar Association at the High Court, Central Administrative Tribunal, State Administrative Tribunal or any other Tribunal created under the statute and at every District, Sub Division, Tehsil, Labour Court, Taxation Bar or any other Court or Authority. Every Bar Association shall apply for registration to the Bar Council of Punjab and Haryana and attach a list of members along with their Enrollment number, complete address phone number. It is required to update the list on or before 31st March every year. Rule 5 requires the Executive Committee of the Bar Association to prepare and maintain a register of the members of the Bar Association. Rule 6 deals with admission of members and election of the Bar Associations. As per this any person enrolled as a an Advocate with the Punjab and Haryana Bar Council and wishing to become a member of the Bar Association would be required to furnish an affidavit to the Bar Association with a copy to the Bar Council to the effect that he will remain in active practice and would not do any other business/service or profession prohibited under the Advocates Act/Rules of the Bar Council of India. It is provided that election of the office bearers of every Bar Association shall be held by secret ballot every year on 1st Friday of the month of December. In case the 1st Friday falls on a holiday, the election will be held on next working day except Saturday.
It is provided that election of the office bearers of every Bar Association shall be held by secret ballot every year on 1st Friday of the month of December. In case the 1st Friday falls on a holiday, the election will be held on next working day except Saturday. Every advocate can become member of one or more Bar Associations, but he will have a right to cast his vote only at one Bar Association. Regarding this he shall file an affidavit before 31st August of each year indicating the Bar Association in which he intends to cast his vote. A duty has been cast on the Bar Association to get the annual subscription cleared before finalizing the list of voters on or before 31st August of every year. In case, a particular Bar Association fails to make compliance within the time, the Bar Council will appoint a committee which will take over the entire control of the Bar Association and get the election conducted under its supervision. It is also provided that in case there is a request in writing by the Returning Officer or Candidate, an observer may be sent by the Chairman of the State Bar Council to supervise the election. Rule 8 deals with the qualification of the officer bearers of the Bar Association. For election of the President at least 10 years of regular and active practice from the date of enrolment with the Bar Council is required. For election as Vice President and Secretary, the requirement is at least 5 years or regular and active practice. The term of office of the office bearers has been fixed at one year from the date of the election, with provision for extension by one month in extraordinary circumstances with prior approval of the Bar Council. The relevant provisions are extracted hereunder:- "Aims And Objects : (I) To bring the uniformity, transparency relating to the elections of the office Bearers of the All Bar Association comes within the jurisdiction of the Bar Council of Punjab and Haryana. (II) To avoid the complicity bye laws framed by various Bar Associations which are effecting Purity, Fairness and democratic value in the annual elections of the Bar Associations. 3.
(II) To avoid the complicity bye laws framed by various Bar Associations which are effecting Purity, Fairness and democratic value in the annual elections of the Bar Associations. 3. Registration Of Bar Associations (a) These shall be one Bar Association at High Court, any Bench of High Court, Central Administrative Tribunal, State Administrative Tribunal, State Consumer Commissioner, any other Tribunal created under any statute working within the territorial jurisdiction of Punjab, Haryana, and U.T. Chandigarh, every District, Sub Division, Tehsil, Labour Court, Consumer Courts, Taxation Bars, Revenue Authority or any other court or authority existing within the States of Punjab and Haryana and UT. Chandigarh as recognized by the Bar Council. (b) Every Bar Association so created under sub Rule (a) shall apply for registration of Bar Council of Punjab and Haryana and shall attach a list of members along with their enrollment number, complete address, phone number and shall keep on supplying the up to date list of members on or before 31st March of every year. (c) Registration Fee. Every form of registration shall be accompanied by a fee of Rs. 5,000/- (Rupees Five Thousand) for every Bar Association having strength of members up to 500 and Rs. 10,000/- (Rupees Ten Thousand) for Bar Associations having above 500 Members. xxx xxx xxx xxx xxx 8. Qualification Of Office Bearers Of Bar Association President: Any member who is having at least Ten years of regular and active practice from the date of Enrollment with the Bar Council. Vice President : Any member. who is having at least Five years of regular and active practice from the date of Enrollment with the Bar Council. Secretary : Any member who is having at least Five years of regular and active practice from the date of Enrollment with the Bar Council. Joint secretary/Cashier/Library Incharge/Treasurer : Any member who is having at least Three years of regular and active practice from the date of Enrollment with the Bar Council. 9. Terms Of Office The office bearers of the Bar Association and Members of the Executive Committee shall hold the office till the completion of one year from the date of their election. However in extraordinary circumstances they may continue for a further period of one month with the prior approval of Bar Council, for reasons to be recorded.
9. Terms Of Office The office bearers of the Bar Association and Members of the Executive Committee shall hold the office till the completion of one year from the date of their election. However in extraordinary circumstances they may continue for a further period of one month with the prior approval of Bar Council, for reasons to be recorded. The office bearers of the Bar Association shall have to get the election completed within the extended time, failing which the administration of the Association will vest in a Adhoc Committee duly nominated by Bar Council, who will hold the elections at the earliest preferably within 1 month. 10. Duties Of Office-Bearers Of The Bar Association The office bearers of the Bar Association shall maintain proper list of Membership, voter list and Accounts of the Bar Association. 11. Role of the Bar Council a. In case of any dispute in connection with the Voter list in elections of the office bearers the matter will be taken up by the Bar Council suo-moto or on the basis of complaint filed by any effected member and the decision of the Bar Council will be final. b. That in order to resolve the above said dispute or to decide any dispute the Chairman of the Bar Council will constitute a committee of three members of the Bar Council whose decision will be final. c. In case any dispute arises after the declaration of the result the aggrieved party shall approach the Bar Council by way of Election Petition within 15 days of the declaration of the result accompanied by a fee of Rs. 5,000/-. d. After the receipt of the Election Petition the Chairman of the Bar Council shall constitute an Election Tribunal consisting of Three Elected Members of the Bar Council and the said Election Petition will be decided expeditiously preferably within 2 months. And the decision of the Tribunal shall be final. e. No Civil Court would have jurisdiction to entertain any dispute with the regard to the Election of the Bar Association. f. The Bar Council shall have the power to cancel the certificate of registration and recognition granted to any Bar Association under these Rules after providing an opportunity of being heard to the concerned parties. 12. Repeal and Savings The earlier rules called as The Bar Associations (Constitution and Registrations) Rules, 2009 stands superceded by these rules. 20.
f. The Bar Council shall have the power to cancel the certificate of registration and recognition granted to any Bar Association under these Rules after providing an opportunity of being heard to the concerned parties. 12. Repeal and Savings The earlier rules called as The Bar Associations (Constitution and Registrations) Rules, 2009 stands superceded by these rules. 20. These Rules have been framed after inviting suggestions and proposals from all the Bar Associations in the States of Punjab and Haryana. A majority of the Bar Associations responded. The suggestions and proposals sent by them and their existing bye-laws/Rules/regulations were duly considered. The 2015 Rules thus represent the consensus of the elected representatives of the Advocates. They seek to address the lacunae in the existing procedures/regulations and aim to ensure that uniformity and transparency is maintained in the elections of the Bar Associations. 21. Though, in two petitions there was a specific challenge to the Rules, but during the course of hearing when these Rules were examined and discussed in detail and the purpose and objective of their formulation was highlighted, the challenge to the Rules was given up. A consensus was arrived at between the counsel for the parties and accordingly the case is being disposed of in terms of the following agreed order: (i) The 2015 Rules be enforced . (ii) Clause (e) of Rule 11 which ousts the jurisdiction of the Civil Court to entertain any dispute with regard to election of the Bar Association, would be deleted by the Bar Council. In Clause (c) of Rule 3 the Registration Fee for every Bar Association having strength of members upto 500 would be reduced from Rs. 5,000/- to Rs. 1000/- and for Bar Associations having more than 500 members the registration fee would be reduced from Rs. 10,000/- to Rs. 2,000/-. Sh. Rakesh Gupta, Chairman Bar Council, who is present in Court, assures to take appropriate action in this regard. (iii) Where ever election to the Bar Association has been held before 11.05.2015, the elected office bearers would hold office till fresh elections are held as per the 2015 Rules.
10,000/- to Rs. 2,000/-. Sh. Rakesh Gupta, Chairman Bar Council, who is present in Court, assures to take appropriate action in this regard. (iii) Where ever election to the Bar Association has been held before 11.05.2015, the elected office bearers would hold office till fresh elections are held as per the 2015 Rules. (iv) Where elections were not held and the elected body has completed its term or where elections were held after 11.05.2015 on which date the interim order was passed by the Hon'ble Supreme Court, staying the operation of the order dated 22.4.2015 of this court, such elected bodies will cease to function and in their place an ad hoc body will be elected by the Bar Association under the supervision of the Bar Council. This ad hoc body will function till fresh elections are held in terms of the 2015 Rules. Such ad hoc body/Committee would be constituted within six weeks. The existing bodies shall continue to function till the ad hoc bodies are constituted.