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2015 DIGILAW 328 (JK)

Altaf Haqani v. State of J&K

2015-07-07

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. Petitioner is a practising Advocate of High Court of Jammu and Kashmir. He, aggrieved with Notice dated 24th March 2003, received from Assistant Registrar, Disciplinary Committee, Bar Council of India requiring him to appear in person before the Committee, has come up with writ petition on hand. Petitioner seeks quashment of notice on the grounds set out in the petition. Respondents have not filed reply to the writ petition. However, learned counsel for Respondent No. 2 has placed on record copy of the Communication addressed by Registrar General, High Court of Jammu and Kashmir on 9th August 1999, to the Secretary, Bar Council of India, whereby as many as six complaints with connected record including the complaint against the petitioner were forwarded in original to the Secretary, Bar Council of India in terms of Section 336(b) of Advocate Act 1961, for disposal under law. Copy of the order of the Disciplinary Committee, High Court of Jammu and Kashmir dated 6th July 1999, pursuant to which communication dated 9th August 1999, was addressed to the Secretary, Bar Council of India is also placed on record. 2. Petitioner questions the jurisdiction of High Court of Jammu and Kashmir to transfer the disciplinary proceedings against the petitioner to Bar Council of India and also the jurisdiction of Bar Council of India and its Disciplinary Committee, on the grounds that in absence of a duly constituted State Bar Council, the Advocate Act, 1961 and mechanism provided therein to deal with disciplinary matter would not be attracted in case of a complaint lodged against the petitioner. It is pleaded that in terms of Section 58 of the Advocate Act 1961, role of High Court is restricted to enrollment of an advocate and disciplinary proceedings against an advocate are to be conducted in terms of Section 13 of the Jammu and Kashmir Legal Practitioner Act, 1977. The High Court under the Act read with Rules framed under the Act, according to petitioner, has exclusive power to conduct the disciplinary proceedings and suspend or cancel the license if so, warranted, in light of the outcome of such proceedings. 3. Petitioner insists that he was enrolled much before the Advocate Act, 1961, was made applicable to the State of Jammu and Kashmir with effect from 1st August 1986 vide Notification dated 15th July 1986. 3. Petitioner insists that he was enrolled much before the Advocate Act, 1961, was made applicable to the State of Jammu and Kashmir with effect from 1st August 1986 vide Notification dated 15th July 1986. The disciplinary proceedings if any, it is pleaded, are to be conducted by the High Court of Jammu and Kashmir. It is contended that as the petitioner has not elected to be brought on the State roll in terms of Section 58-AF(1) of the Act for the purpose of disciplinary jurisdiction, he would be governed by provision of the Jammu and Kashmir Legal Practitioner Act, 1977 and rules framed there under. The High court, it is stated did not have jurisdiction to transfer the disciplinary proceedings to Bar Council of India nor is Bar Council of India or its Disciplinary Committee competent to proceed against the petitioner. 4. Heard and considered. 5. The Advocates Act 1961, as already stated was extended to the State of Jammu and Kashmir vide Notification dated 15th July 1986, with effect from 1st August 1986. Prior to the extension of Advocates Act, to the State, Jammu and Kashmir Legal Practitioner Act, 1977 occupied the field. Section 6 of the Act empowered High Court to admit any person satisfying the qualification prescribed under rules, as Pleader. The person admitted as pleader is to be brought on the roll of High Court. The High Court in terms of Section 12 and 13 of the Act is conferred power to suspend or dismiss any Pleader, for the reasons detailed therein and in accordance with the rules prescribed under the Act. 6. The Advocates Act 1961, operates through Bar Council of India constituted in terms of Section 4 of the Act and the State Bar Councils provided under Section 3 of the Act. The Bar Council as laid down in Section 5 of the Act is to be a body corporate. Section 6 of the Act delineates the functions of the State Bar Council. The functions include admission of person on its rolls, preparation and maintenance of such rolls, safeguard the rights, privileges and interests of the advocates on its rolls etc. The functions of the Bar Council of India are mapped out in section 7 of the Act. Section 6 of the Act delineates the functions of the State Bar Council. The functions include admission of person on its rolls, preparation and maintenance of such rolls, safeguard the rights, privileges and interests of the advocates on its rolls etc. The functions of the Bar Council of India are mapped out in section 7 of the Act. The Bar Council of India has to lay down the standards of professional conduct and etiquette for advocates, lay down procedures to be followed by its Disciplinary Committee and Disciplinary Committee of each State Bar Council. The Bar Council of India and the State Bar Councils constitute different Committees to carry out the mandate of the Act. Chapter III of the Act provides for admission and enrollment of the advocates and Chapter V provides for conduct of advocates. The disciplinary proceedings against the advocates on the rolls of State Bar Council are to be conducted by Disciplinary Committee of the Council in accordance with the procedure laid down in Section 35 of the Act. Section 36 deals with the disciplinary powers of the Bar Council of India. The Bar Council of India as well as State Bar Councils are empowered under the Act to make rules to carry out the functions provided under the Act. 7. In State of Jammu and Kashmir, State Bar Council-an important arm of the Act, is yet to be constituted. The State Bar Council, as noticed in the preceding para is to perform all important functions like enrollment of advocates, protection of their rights and interest, disciplinary proceedings against the Advocates, alleged to have indulged in misconduct and penalty on proof of misconduct. 8. With the State Bar Council not in place, an anomalous situation arises as regards discharge of duties and functions under the Act. The law makers visualizing that the State Bar Council may not be constituted immediately after the Act is extended to a State, has made special provisions for the transitional period i.e. from the date the Act is made applicable till the State Bar Council is constituted. Section 58 of the Act needs to be noticed: S.58. The law makers visualizing that the State Bar Council may not be constituted immediately after the Act is extended to a State, has made special provisions for the transitional period i.e. from the date the Act is made applicable till the State Bar Council is constituted. Section 58 of the Act needs to be noticed: S.58. Special provisions during the transitional period: 1) Where a State Bar Council has not been constituted under this Act or where a State Bar Council so constituted is unable to perform its functions by reason of any order of a court or otherwise, the functions of the Bar Council or any Committee thereof, insofar as they relate to the admission and enrolment of advocates, shall be performed by the High Court in accordance with the provisions of this Act. 2. Until Chapter IV comes into force, a State Bar Council or a High Court performing the functions of a State Bar Council may enroll any person to be an advocate on a State roll, if he is qualified to be so enrolled under this Act, notwithstanding that no rules have been made under Section 28 or that the rules so made have not been approved by the Bar Council of India, and every person so enrolled shall, until that Chapter comes into force, be entitled to all the rights of practice conferred on an advocate under Section 14 of the Indian Bar Councils Act, 1926 (38 of 1926). 3. Notwithstanding anything contained in this Act, every person who, immediately before the 1st day of December, 1961, was an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), or who has been enrolled as an advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practice in the Supreme Court, subject to the rules made by the Supreme Court in this behalf. 4. 4. Notwithstanding the repeal by sub-section (2) of Section 50 of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or of the Bombay Pleaders Act, 1920 (Bombay, Act 17 of 1920), [or of any other law relating to the admission and enrolment of legal practitioners, the provisions of the Act, and law aforesaid] and any rules made there under insofar as they relate to [the renewal or the issue by way of renewal] of a certificate to a legal practitioner (who is not enrolled as an advocate under this Act) which is or purports to be issued or renewed under the provisions of either of the aforesaid Acts [or of the other law] during the period beginning with the 1st day of December, 1961 and ending with the date on which Chapter IV comes into force, shall be deemed to have been validly issued or renewed.] A bare look at the above provision would reveal that where the State Bar Council is not constituted or is not in a position to perform its functions for any reason whatsoever, the functions of the State Bar Council are to be carried out by the High Court in so far as such functions relate to "admission and enrollment of advocates". It follows that High Court of Jammu and Kashmir is to perform the functions of the State Bar Council in so far as such functions relate to "admission and enrollment of the advocate". In other words, High Court is competent to admit a person fulfilling the qualification laid down under the act as advocate. It follows that High Court of Jammu and Kashmir is to perform the functions of the State Bar Council in so far as such functions relate to "admission and enrollment of the advocate". In other words, High Court is competent to admit a person fulfilling the qualification laid down under the act as advocate. Section 58-AF goes a step further, it reads: Special provisions in relation to Jammu and Kashmir.- (1) Notwithstanding anything contained in this Act, all advocates who, immediately before the date on which the provisions of Chapter III are brought into force in the State of Jammu and Kashmir were entitled to practice in the High Court of that State, or who would have been so entitled had they not been in public service on the said date, shall, for the purpose of the clause (a) of sub-section (1) of Section 17, be deemed to be persons who were entered as advocates on the roll of a High Courts under the Indian Bar Councils Act, 1926 (38 of 1926), and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of India, be admitted as an advocate on the state roll maintained in respect of the said State. (2) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provision of Chapter III are brought into force in the State of Jammu and Kashmir, was entitled otherwise than as an advocate to practice the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law in force in the said State, or who would have been so entitled had not been in public service on the said date, may be admitted as an advocate on the State roll maintained in respect of the said State, if he- i) makes an application for such enrolment in accordance with the provisions of this Act; and ii) fulfills the conditions specified in clause (a), (b), (e) and (f) of sub-section (1) of Section 24. (3) Notwithstanding anything contained in this Act, every person who, immediately before he date on which the provisions of Chapter IV are brought into force in the State of Jammu and Kashmir, was practicing the profession of law (whether by way of pleading or acting or both or in any other way) by virtue of the provisions of any law in force therein, or who does not elect to be or is not qualified to be enrolled as an advocate under sub-section (1) or sub-section (2), shall, notwithstanding the repeal by this Act of the relevant provisions of such law, continue to enjoy the same rights as respects practice in any court of revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to such persons as if they had not been repealed. (4) On the date on which this Act or any part thereof comes into force in the State of Jammu and Kashmir, the law in force in that State which corresponds to this Act or such part thereof which does not stand repealed by virtue of the provisions of Section 50 of this Act, shall also stand repealed. 9. From perusal of Section(s) 17, 58 and 58AF, it transpires that all advocates who immediately before the Act came into force in the State of Jammu and Kashmir, were entitled to practice in the High Court of Jammu and Kashmir or would have been so entitled had they not been in public service on such date, shall continue to be on the rolls of High Court unless they are admitted as advocates on the State roll maintained in respect of State of Jammu and Kashmir. Such of the advocates who immediately before the date on which the Act came into force were entitled to practice in the High Court of Jammu and Kashmir and do not opt for their admission on the State rolls as provided in Section 58AF(2), shall notwithstanding the repeal of Jammu and Kashmir Legal Practitioner Act 1977, continue to enjoy the same rights and be subject to same disciplinary jurisdiction, to which they were entitled or subject to immediately before the Act came into force. The relevant provision of the repealed Act therefore shall continue to have force in relation to such advocates i.e. advocates who do not opt for their admission to State rolls. 10. The advocates presently entitled to practice in the High Court or the courts subordinate to it or revenue courts and other quasi judicial authorities, tribunals etc. may, having regard to the mandate and spirit of Advocates Act, be divided into three groups: i) The advocates who immediately before the date on which the Act came into force were entitled to practice in the High Court and after the Act came into force opted in terms of Section 58AF(2) of the Act to be admitted on the State rolls. ii) The advocates who immediately before the date on which the Act came into force, did not opt to be admitted to the State rolls and therefore continue to be on the High Court roll. iii) The advocates who are admitted by the High Court in terms of Section 58 of the Act, in exercise of power to perform functions of the State Bar Council during the transitory period. 11. As in the present case, we are only concerned about the authority competent to initiate disciplinary proceedings against the advocate for alleged misconduct, an effort is to be made to locate such power against the backdrop of Section 58AF of the Act. Section 58, it may be recalled is a transitory provision and provides for admission of advocates during the transitory period i.e. the date when the Act came into force till State Bar Council is constituted - a function otherwise to be performed by the State Bar Council. The expression "admission and enrollment of advocates" under Section 58 of the Act would bring within sweep disciplinary powers. 12. The expression "admission and enrollment of advocates" under Section 58 of the Act would bring within sweep disciplinary powers. 12. The High Court of Jammu and Kashmir in term of Section 58 having been asked to perform functions of the State Bar Council as it relates to "admission and enrollment of the advocate" is to necessarily perform the functions of the State Bar Council delineated in Chapter V of the Act. Any other interpretation would lead to irrational conclusions. The authority given power to enroll the advocate is necessarily to have power to suspend and remove such advocate from the State rolls, once he/she is found guilty of professional or other misconduct. In case, the High Court performing functions during the transitory period to the extent delineated in Section 58 of the Act, is taken not to have power to initiate disciplinary proceedings and award penalty, there would be no Forum or authority available to deal with a complaint of professional or other misconduct received against an advocate. 13. Viewed thus, the advocates who were in practice prior to 1st August 1986, opted for admission to the State rolls and were so admitted and the Advocates admitted by the High Court after the Act came into force in terms of Section 58 of the Act would be subject to disciplinary jurisdiction of the High Court of Jammu and Kashmir as provided in Chapter V of the Act. 14. The Advocates who immediately before 1st August 1986, were entitled to practice in the High Court, but did not opt for admission to the State rolls and continue to be on the High Court rolls in terms of law in vogue before the Act came into force, however stand on different footing. Such Advocates are not on the State rolls and in terms of Section 58AF(3) would continue to be subject to disciplinary jurisdiction of the High Court in terms of Sections 12 and 13 of Jammu and Kashmir Legal Practitioner Act 1977, and rules framed therein. The Act though repealed, in terms of Section 50 read with Section 58AF(4) of the Act, would continue to remain in force and be acted upon as regards the Advocates entitled to practice before High Court prior to 1-8-1986 but who do not elect to be admitted to State rolls. 15. The Act though repealed, in terms of Section 50 read with Section 58AF(4) of the Act, would continue to remain in force and be acted upon as regards the Advocates entitled to practice before High Court prior to 1-8-1986 but who do not elect to be admitted to State rolls. 15. Petitioner immediately before the Act came into force in the State of Jammu and Kashmir was entitled to practice in the High Court. He as an advocate was on the rolls of High Court till the Act came into force. He has not elected to be admitted to the State rolls. Petitioner therefore in term of Section 58AF would continue on the rolls of High Court and to enjoy same rights and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or, as the case may be to which he was subject immediately after the Act came into force. Petitioner on the relevant date obviously was subject to disciplinary jurisdiction of High Court under Jammu and Kashmir Legal Practitioner Act 1977. The complaint entertained against the petitioner under Chapter V of the Act, the order made by the Disciplinary Committee under the Act, and the Communication addressed by Registrar General, High Court of Jammu and Kashmir on 9th August 1999, to the Secretary, Bar Council of India as also the Notice dated 24th March 2003, received from Assistant Registrar, Disciplinary Committee, Bar Council of India are therefore without any jurisdiction and liable to be set aside. For the reasons discussed writ petition is allowed and complaint entertained against the petitioner under Chapter V of the Act, the order made by the disciplinary committee under the, Act and the Communication addressed by Registrar General, High Court of Jammu and Kashmir on 9th August 1999, to the Secretary, Bar Council of India as also the Notice dated 24th March 2003, received from Assistant Registrar, Disciplinary Committee, Bar Council of India are quashed.