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2019 DIGILAW 877 (MP)

ARVIND VAIDHYA v. BAR COUNCIL OF INDIA

2019-12-18

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

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ORDER/JUDGMENT – Shri Anil Kumar Mishra, learned counsel with Shri Rajiv Budholiya, learned counsel for the petitioner. Shri Rajiv Sharma, learned counsel for respondent No. 2. Shri Amit Rawat, learned counsel for respondents No. 3 and 4. Shri D. P. Singh, learned counsel for the intervenor. 2. I.A. No. 6004/2019, an application for intervention filed on behalf of practicing Advocate Neeraj Shrivastava, is taken up considered and allowed and the said intervenor is heard through his counsel Shri D. P. Singh. 3. The Registry is directed to take the following documents on record which have been supplied by the respective parties during the course of arguments. (i) Bar Council of India Certificate and Place of Practice (Verification) Rules 2015. (iii) Model Bye-Laws. 4. The instant petition under Article 226 of the Constitution of India is filed by a practicing lawyer seeking following reliefs : – “(I) That, the respondent authorities may kindly be directed for adding the name of the petitioner in the Voter List of 2019 of State Bar Council of Madhya Pradesh in the interest of justice. Any other relief which this Hon’ble Court deems fit in the facts and circumstances of the case same may kindly be granted to the petitioner.” 5. The grievance of the petitioner as projected by learned counsel for the petitioner is that despite being eligible under the relevant rules and regulations and despite having discharged of his duties and completing all the pre-requisites in law, the name of the petitioner has not been included in the voter list of 2019 of M.P. State Bar Council and so also the name is not mentioned in the final voter list prepared by the District Bar Association Datia for election to be held to elect the office bearers of the said Association, in regard to which election program was declared on 4-11-2019 publishing the following information. 1. Publication of final voter list – 4-11-2019. 2. Date for filling up nomination form 11-11-2019 to 15-11-2019 (Time - 11 a.m. to 3 p.m.). 3. Scrutiny of nomination form received and publication of list of names of valid candidates - 16-11-2019 4. Withdrawal of nomination form - 18-11-2019 to 20-11-2019 (Time - 11 a.m. to 3 p.m.) 5. Publication of final list of names of candidates – 21-11-2019 (12 p.m.) 6. Polling 8-12-2019 (Time - 9 a.m. to 3 p.m) 7. 3. Scrutiny of nomination form received and publication of list of names of valid candidates - 16-11-2019 4. Withdrawal of nomination form - 18-11-2019 to 20-11-2019 (Time - 11 a.m. to 3 p.m.) 5. Publication of final list of names of candidates – 21-11-2019 (12 p.m.) 6. Polling 8-12-2019 (Time - 9 a.m. to 3 p.m) 7. Polling place – District Court premises, Datia (M.P.) 8. Counting date 8-12-2019 till 5 p.m. 6. Pertinently, the polling scheduled for 8-12-2019 has been deferred sine-die by the Chief Election Officer conducting the election to the District Bar Association Datia, awaiting the final decision in the present writ petition. 7. Respondent No. 2 - State Bar Council in its reply has relied upon the State Bar Council of Madhya Pradesh, Election Rules 1968 and submits that since the ‘Adhivakta Kalyan Nidhi’ fee of Rs. 3100/- was deposited by the petitioner as late as on 2-11-2019 in favour of the State Bar Council which was much after publication of final voter list on 15-9-2019, the name of the petitioner was rightly not included in the final voter list prepared for the ensuing Bar Council election. The counsel for the State Bar Council has brought on record the election programme for election to State Bar Council of Madhya Pradesh. 8. Pertinently, the process of Bar Council Election in the State of M.P. was deferred due to restraint order passed by the Apex Court which it is informed has now been vacated by the Apex Court permitting holding of election to the M.P. State Bar Council. 9. As regards the reasons assigned by the State Bar Council for not including the name of petitioner in it’s final voter list prepared for election to the State Bar Council, the learned counsel for petitioner has merely relied upon the registration certificate of practice issued by State Bar Council of Madhya Pradesh in favour of the petitioner vide Annexure P-4 dated 1-6-2016 which declares the petitioner to be entitled to caste his vote in election to Bar Council of Madhya Pradesh at Datia and in the election to Bar Association Datia. The said certificate, it is submitted by learned for the petitioner, is valid for a period of five years; therefore, it is urged that petitioner is entitled not only to be included in the final voter list prepared for election to the M.P. State Bar Council but also of the final voter list prepared for election to District Bar Association Datia. 10. On close scrutiny of the aforesaid certificate Annexure P-4, the same has been issued to the petitioner under Rule 13 of B.C.I. Certificate and Place of Practice (Verification) Rules 2015 (for brevity, the “2015 Rules”) framed by the Bar Council of India in exercise of powers conferred to it u/s 49(1) (ag), 49(ah) and 49(i) of the Advocates Act, 1961 and in the light of the Apex Court decision in the case of Supreme Court Bar Association and others vs. B. D. Kaushik, reported in (2011) 13 SCC 774 . Rule 4(d) of 2015 Rules defines Certificate of Practice. This certificate Annexure P-4 has been issued by the State Bar Council after indulging in a screening to weed out such registered advocates who are non-practitioner/fake persons. Further, Rule 6 of 2015 Rules makes it incumbent upon every Advocate to be a member of the Bar Association where she/he normally practices law. 11. The certificate of practice issued under Rule 4(d) of 2015 Rules renders the advocate eligible to practice in any court of law subject to complying with the other prerequisites including the ‘Adhivakta Kalyan Nidhi’ fee in favour of the Bar Council and the subscription in favour of the concerned Bar Association. Once the said prerequisites in respect of Bar Council and as well as the Bar Association are complied with, the Advocate concerned can very well enjoy the privileges admissible to an advocate including the privilege of casting his vote at the election to the Bar Council/Bar Association, as the case may be. 12. The M. P. State Bar Council to regulate the process of various Bar Associations within its territorial jurisdiction, “framed Model Bye-laws for Bar Associations”. These model bye-laws were required to be adopted by all the Bar Associations in the State of M.P within 90 days vide letter dated 19-1-2016 of the M.P. State Bar Council, failing which the recognition of the defaulting Bar Association could be cancelled. 13. These model bye-laws were required to be adopted by all the Bar Associations in the State of M.P within 90 days vide letter dated 19-1-2016 of the M.P. State Bar Council, failing which the recognition of the defaulting Bar Association could be cancelled. 13. The said model Bye-Laws were adopted by the District Bar Association of Datia by resolution dated 20-5-2017, and therefore, are binding not only on the Bar Association, Datia but also on all its members. The relevant clause 4 of said Bye-Laws is reproduced infra : 4. ADMISSION FEE MONTHLY OR LIFE’S SUBSCRIPTION; (1) The Executive Body of the Bar Association, from time to time may in its meetings decide the admission fee or the monthly or life subscription. (2) Every Member of the Bar Association shall pay in advance. His subscription for the month during the first fortnight till he ceases to be a Member of the : Bar Association or is otherwise suspended/removed from the State Roll of the Advocates. (3) A Member, who is in arrears of the monthly subscription or any other dues: for a period of 3 months. shall not be entitled to use the Bar premises and the Library or to vote and if after a month’s written notice from the Secretary does not make good the dues his name may be struck off from the Membership of the Bar Association by the order of the Executive Body subject to approval of the State Bar Council of M. P. 14. A bare perusal of clause 4(3) reveals that a member of the Bar Association who is in arrears of monthly subscription or any other dues, for a period of three months, she/he shall become ineligible to vote in the election to the concerned District Bar Association. 15. In the instant case, petitioner has filed a receipt Annexure P-5 dated 25-9-2019 revealing that amount of Rs. 120 was deposited clearing the arrears of subscription due to the District Bar Association, Datia for the period from 1-4-2017 to 31-3-2019. 16. It is not disputed by any of the parties in this case that petitioner has not paid subscription to the District Bar Association Datia for the period from April, 2019 till the publication of final voter list of District Bar Association Datia on 4-11-2019. 17. 16. It is not disputed by any of the parties in this case that petitioner has not paid subscription to the District Bar Association Datia for the period from April, 2019 till the publication of final voter list of District Bar Association Datia on 4-11-2019. 17. Testing the aforesaid default suffered by the petitioner on the anvil of clause 4(3) of the Model Bye-Laws adopted by the District Bar Association Datia it is clear as day light that on the day of preparation and publication of final voter list (4-11-2019) for election to the District Bar Association Datia, the petitioner was in arrears of monthly subscription for a period more than 3 months (from April, 2019 to October, 2019), and therefore, was ineligible to vote in the election of the District Bar Association Datia in terms of election programme published on 4-11-2019. 18. In view of above discussion, there is no manner of doubt that petitioner, owing to his default of non-payment of arrears of Adhivakta Kalyan Nidhi till the final publication of voter list by the M.P. State Bar Council, has been rightly not included in the final voter list for election to the M.P. State Bar Council. Further, the aforesaid factual matrix also reveals that for having suffered default of not clearing the arrears of membership subscription to the District Bar Association Datia for a period more than three months on date of publication of final voter list i.e. 4-11-2019, the petitioner has rightly not been included in the final voter list of election to District Bar Association Datia. 19. In view of above, present petition being merit-less is dismissed as such.