All Odisha Lawyers Association v. Odisha State Bar Council
2020-05-14
C.R.DASH, MOHAMMAD RAFIQ
body2020
DigiLaw.ai
JUDGMENT Mohammad Rafiq, C.J. - This writ petition has been filed by All Odisha Lawyers Association-petitioner (for short "the Association"), which claims to be an association of a group of advocates, inter alia with the prayer that the letter dated 14.04.2020 (Annexure-4) issued by the Bar Council of India-opposite party no.2 (for short "the BCI") and the consequential guidelines dated 04.05.2020 issued by the Odisha State Bar Councilopposite party no.1 (for short "the OSBC") as well as its subsequent clarification vide letter dated 06.05.2020 under Annexures-6 and 7 respectively, may be quashed and set aside. 2. Dispute pertains to annual election of the various Bar Associations in the State of Odisha. 3. The case set up by the petitioner-Association in the present writ petition is that the OSBC vide Notification dated 10.02.2020 notified 28.03.2020 as the date for election to all the Bar Associations in the State of Odisha. All the affiliated Bar Associations of Odisha notified the programme to hold election in their respective Associations following the principle of 'One Bar, One Vote, One Day'. All such Associations appointed their Election Officers and sold nomination papers. Different candidates purchased the nomination papers by depositing the non-refundable security amounts and filed the nomination papers. After scrutiny of the nomination papers, withdrawal process was also completed. Thereafter, final list of contesting members for different posts was published by the Election Officers. Due to outbreak of the pandemic Coronavirus (COVID-19) and the lockdown imposed throughout the country, the OSBC intimated to all the Election Officers of the State to postpone the date of election from 28.03.2020 to 25.04.2020. 4.
Thereafter, final list of contesting members for different posts was published by the Election Officers. Due to outbreak of the pandemic Coronavirus (COVID-19) and the lockdown imposed throughout the country, the OSBC intimated to all the Election Officers of the State to postpone the date of election from 28.03.2020 to 25.04.2020. 4. Considering that since entire nation is grappling with the pandemic Coronavirus (COVID-19), holding of election may not be possible as all have been mandated to maintain social and physical distance, the BCI vide its letter dated 14.04.2020, addressed to the Presidents and Secretaries of all the Bar Associations of the country stayed the election process in all such Bar Associations and directed for constitution of an Interim Committee where the term of the elected body has expired by adopting following methodology:- "Thus, it is hereby resolved, that as an interim measure, till further directions are issued, all such Bar Associations where elections are due, and/or where the term/tenure of the present office bearers have expired and which has less than 500 valid voters shall unanimously or by way of majority, if required, through teleconference, whatsapp groups, social media, nominate a Committee of 3 senior members with experience of managing affairs of the Bar to oversee and look into the affairs of the Bar in the intervening period till next elections are possible. Similarly, all those Bar Associations which have more than 500 valid voters shall unanimously/or by way of majority nominate a Committee of 5 senior members with experience in the affairs of the Bar for the same purpose. This can be done by the members of the respective Bar Associations. It may be kindly noted that, in both the Committees, the senior most member, amongst the members who have been nominated, by each such Bar Association, shall be the Chairman of each such Committee of the Bar Association/s respectively." 5. Acting on the communication received from the BCI, the OSBC vide letter dated 15.04.2020 (Annexure-5), addressed to the Election Officers of all the Bar Associations, directed postponement of the election until further orders. The OSBC issued further Guidelines vide its letter dated 04.05.2020 to the Election Officers of all the Bar Associations in the State along with the proceedings of extra ordinary meeting of the Special Committee held on that date.
The OSBC issued further Guidelines vide its letter dated 04.05.2020 to the Election Officers of all the Bar Associations in the State along with the proceedings of extra ordinary meeting of the Special Committee held on that date. In this letter, the OSBC required the Bar Associations to constitute the Interim Committees but suggested a slightly different methodology than the one envisaged in the above referred communication of the BCI and gave justification why it was doing so, as would be seen from the following excerpts thereof:- "As most of the districts of the state are preventing free movement of the people, it is not possible to hold General Body meeting of the different bar associations as the general public including the advocates are required to maintain the social distancing and sanitization as a preventing measure, if the meeting of General Body of the Bar Associations are held there would be gathering of huge number of advocates & such congregation may spread Covid-19 virus and due to such eventuality the people of the state would be in danger. Considering the huge number of voters of different Bar Associations, it is not possible to obtain views of all the voters General Body Meeting held through video conferencing or whats app as well as the member voters may not have such facility. Therefore, the nomination of members of the Interim Committee is not possible through meeting of the General Body of the affiliated Bar Associations. We have also received a communication in this respect from Bar Council of India." 6. That the OSBC in the said Guidelines, required all the Bar Associations to form an Interim Committee, which shall take over the entire administration and management of the Associations from the elected body whose term has expired. Such Interim Committees are required to be constituted latest by 20.05.2020 failing which, the OSBC shall constitute such committees. Direction was also issued for refund of the nomination fees. 7. Mr. Gautam Mukherji, learned Senior Counsel for the petitioner, while referring to Sections 6 and 7 of the Advocates Act, 1961, argued that neither the BCI nor the OSBC has any legal competence to issue the impugned directions. It is submitted that despite prevailing circumstances due to lockdown following spread of pandemic Coronavirus (COVID-19), several other activities have been gradually permitted.
Gautam Mukherji, learned Senior Counsel for the petitioner, while referring to Sections 6 and 7 of the Advocates Act, 1961, argued that neither the BCI nor the OSBC has any legal competence to issue the impugned directions. It is submitted that despite prevailing circumstances due to lockdown following spread of pandemic Coronavirus (COVID-19), several other activities have been gradually permitted. Therefore, elections to different Bar Associations in the State can also be held by maintaining social and physical distance on the basis of valid voter list. It is argued that all the Bar Associations of the State are affiliated to the OSBC only for a limited purpose. Functioning of the Bar Associations in the State is governed by their own bye-laws. Neither the OSBC nor the BCI has any right to supersede the byelaws of the Associations, which have been registered under the Societies Registration Act, 1860. The direction of the BCI and OSBC to form Interim Committees has no statutory backing; particularly when the term of the elected body of the BCI itself has come to an end. This tantamount to interference in the autonomy of the Bar Associations. 8. Mr. A.P. Bose, learned counsel appearing for the BCI submits that the present writ petition has been filed by a group of advocates who claim to have formed an Association. The petitionerAssociation has no locus standi to file this writ petition as it is not recognized either by the BCI or the OSBC. No recognized Bar Association of the State has questioned the postponement of the elections. Therefore, the petitioner association has no right to question the constitution/ formation of the Interim Committees. It is submitted that this decision has been taken under compelling circumstances because regular elections cannot be held without violating the mandatory guidelines/directions with regard to maintenance of social distancing issued by the Government of India and Government of Odisha as a precautionary measure to contain the spread of pandemic Coronavirus. 9. We have given our anxious consideration to rival submissions and perused the material on record. 10.
9. We have given our anxious consideration to rival submissions and perused the material on record. 10. The object of the impugned direction issued by the BCI is best summarized in the subject heading of the guidelines dated 14.04.2020, which reads thus:- "Sub.: Direction to all Bar Associations of Country, where elections are due, and/or where terms/tenure of present office bearers have expired, to stay all/any election or election process, campaigning or to resort to any means which leads to violation of norms of social distancing and leads to a gathering, in order to be able to assist each other and the entire Nation to overcome the pandemic of Corona Virus (Covid-19) and to emerge safely out of the same by resorting to social and physical distancing and by taking adequate safety precautions, and further directions on forming Interim Committees of Senior/experienced members of the Bar in such Bar Associations where elections are due, till further directions." 11. In order to combat the global pandemic Coronavirus (COVID-19), the Union Government by invoking the provisions of the National Disaster Management Act imposed the nationwide lockdown; in the first phase from 25.03.2020 to 14.04.2020 and in second phase from 15.04.2020 to 03.05.2020. We are presently passing through the third phase of lockdown. The State Government of Odisha vide notification date 13th March, 2020 invoked the Epidemic Diseases Act, 1897 and the Code of Criminal Procedure to declare Coronavirus (COVID-19) a disaster. It also imposed restrictions on all kind of congregations so as to ensure "social distancing" for containing the spread of COVID-19. In fact, the Government of Odisha vide notification dated 8th April, 2020 issued Ordinance No.1 of 2020 for incorporating state amendments in the Epidemic Diseases Act, 1897 to make contravention or disobedience of any order or regulation made thereunder an offence punishable with imprisonment for a term which may extend to two years or with fine which may extend up to ten thousand rupees or with both. 12. Holding of such elections of the Bar Association located at different divisional, district, sub-division and Tehsil head quarters of the State of Odisha, would not be possible, without risking the breach of the instructions issued by the Government of India and Government of the State. This is bound to violate the condition of staying inside home, especially in area where members of such Associations are residing in Red Zones and Containment Zones.
This is bound to violate the condition of staying inside home, especially in area where members of such Associations are residing in Red Zones and Containment Zones. Furthermore, this will violate the requirement of maintaining social and physical distance as it might attract congregation of large number of advocates at different places throughout the State. Reference in particular may be made the Order No.40-3/2020-DMI(A) of Government of India, Ministry of Home Affairs, New Delhi dated 1st May, 2020 containing consolidated guidelines on the measures to be taken by Ministries/Departments of Government of India, State/Union Territory Governments and State/Union Territory Authorities for containment of COVID-19 epidemic in the country. Enforcement of measures enumerated in those guidelines are intended to put in place a slew of bans, curbs and restrictions so as to minimize the societal effect of the pandemic Coronavirus. Accordingly to these guidelines, all the Government offices will function with officers of the level of Deputy Secretary and above to the extent of 100% strength and the remaining staff only upto 33%. The private offices are to remain closed barring few exceptions specifically incorporated therein, which too have been permitted with minimum number of employees and others have to work from home. While the medical establishment, hospital and other medicals are allowed to function, all commercial and private establishment have been closed barring few exception. Similarly, all industrial establishment except those specified under the guidelines have been ordained to remain closed. All transportation services other than the hospitality shall also been closed. According to these guidelines, all schools, colleges, education/training/coaching institutions, will remain closed and all religious places/places of worship will also be closed for public and no religious congregations will be permitted without any exception. The activities prohibited under sub-clause ix of Clause 4 of the guidelines read as under:- "ix. All social/political/sports/entertainment/academic/ cultural/religious functions and other gatherings." Infraction of any of the above measures introduced for containing Coronavirus, especially about maintaining social distancing, as advised by the Health Department provided for penal provisions in Clause 16, which reads as under: "16. Penal provisions. Any person violating these lockdown measures and the National Directives for COVID-19 Management will be liable to be proceeded against as per the provisions of section 51 to 60 of the Disaster Management Act, 2005, besides legal action under Sec.188 of the IPC, and other legal provisions as applicable ." 13.
Penal provisions. Any person violating these lockdown measures and the National Directives for COVID-19 Management will be liable to be proceeded against as per the provisions of section 51 to 60 of the Disaster Management Act, 2005, besides legal action under Sec.188 of the IPC, and other legal provisions as applicable ." 13. In view of above, the only way-out in the present circumstances could have been to postpone the elections. But at the same time, considering that the tenure of elected bodies of most of the Bar Associations has come to an end, the BCI required for constitution of the Interim Committees with varying numbers, depending on the voter strength of the Bar Associations, in our view, rightly. No doubt, the BCI in their communication dated 14.04.2020 required the various Bar Associations to form the Interim Committees unanimously or by way of majority, if required, through teleconference, whatsapp groups, social media, nominate a Committee of 3 senior members with experience of managing the affairs of the Bar. But the OSBC has suggested a different system to form such Interim Committees, however, by more or less adhering to the spirit of the decision of the BCI. Given the fact that the petitioner is questioning the competence of both the BCI and the OSBC, in the prevailing circumstances, the methodology devised by the OSBC appears to be more conducive to the requirement of maintaining social and physical distancing and preventing congregation of the group of advocates at different places throughout the width and length of the State of Odisha. 14. The Special Committee of the OSBC, headed by the Advocate General of the State, in their extra-ordinary meeting held on 04.05.2020, resolved thus:- "Keeping in view the aforesaid aspects and considering the spirit of the letter of Bar Council of India dtd. 14.04.2020, issued to all State Bar Councils this committee unanimously resolved as follows:- 1. The Executive Body of the Bar Association elected for the year 2019-2020 shall nominate members of the Interim Committee from amongst the voter of their respective Bar Association latest by 20th May, 2020 (20.05.2020), failing which the State Bar Council shall constitute the Interim Committee adhering broadly to the said guidelines in the best interest of the respective bar associations within a period of seven days. 2.
2. The Bar Associations having voter strength up to one hundred shall have the Interim Committee consisting of three (3) members having experience in the management of Bar Association. Out of the three, one must be ex-president and two ex-secretaries. 3. The Bar Associations having voter strength of 101 to 500 shall have Interim Committee consisting of 5 (five) members including 2 (two) ex-presidents and 3 (three) ex-secretaries. 4. The Bar Associations having voter strength of 501 to 1000 shall have Interim Committee consisting of 7 members including 3 (three) ex-presidents and 4 (four) ex-secretaries. 5. The Bar Associations having voter strength of 1001 to 3000 shall have Interim Committee consisting of 9 (nine) members including 4 (four) ex-presidents and 5 (five) ex-secretaries. 6. The Bar Associations having voter strength of 3001 and above shall have Interim Committee consisting of 11 (eleven) members including 5 (five) ex-presidents and 6 (six) ex-secretaries. It is made clear that no member voter who is not in regular active practice and thereby is not in a position to actively participate in the functioning and management of affairs of the Bar Association shall be nominated as a member of the Interim Committee of the Bar Association. 7. The members of the Interim Committee shall be nominated by the continuing Executive Body unanimously or by majority, in present of the Election Officer who is appointed by the General Body of the Bar Association to conduct the election of the Office Bearer for the year 2020-2021. 8. In case of any Bar Association whose any of the required numbers of ex-presidents and ex-secretaries are not available in such cases senior voter members of the Bar shall be nominated to fill up such membership of the Interim Committee. 9. The senior most ex-president nominated as member of the Interim Committee shall be the chairman of the committee & he/she shall be vested with powers & functions of the president of the Bar Association as provided in its Bye-Law. 10. The Interim Committee in its 1st Meeting shall nominate one of its members as secretary of the committee unanimously or by majority. The secretary shall be vested with the powers and functions of the secretary of the Bar Association as provided in its Bye-Law. 11.
10. The Interim Committee in its 1st Meeting shall nominate one of its members as secretary of the committee unanimously or by majority. The secretary shall be vested with the powers and functions of the secretary of the Bar Association as provided in its Bye-Law. 11. If there is any provision in the Bye-law of the Bar Association for operation of the bank account by any other office bearer like treasurer the Interim Committee shall nominate one of its member as such office bearer unanimously or by majority. 12. The Election Officer shall intimate the name, address and mobile number of the chairman and members of the Interim Committee to the Secretary Odisha State Bar Council immediately after the constitution of the Interim Committee. 13. The Chairman immediately after the 1st meeting of the Interim Committee shall intimate the name of the secretary and other office bearers to the Secretary, Odisha State Bar Council as soon as possible." 15. This writ petition has been filed seeking issuance an unusual kind of writ of Mandamus. We have to however consider whether despite the argument of the petitioner with regard to the lack of competence of BCI and OSBC, should this Court necessarily issue the writ prayed for in the circumstances that are prevailing in the country? This Court is cognizant of the view taken by two High Courts, namely Madhya Pradesh High Court in R.N. Tiwari v. State Bar Council of M.P. and others,1995 AIR M.P. 137 and in Bar Association Chachoda, Dist v. State Bar Council of M.P., passed in W.P.No.750 of 2017 on 09.01.2018 and Allahabad High Court in Janpad Diwani Evam Faujdari Bar.. v. Bar Council of U.P. and others, in Writ Case No.42417 of 2015 dated 27.11.2015, holding that the State Bar Council does not have any legal competence to interfere with the election of the Bar Associations. But priority at this point of time is not the holding of election of the Bar Associations but to ensure containment of the deadly Coronavirus. Elections can take place only when normalcy is restored and till that happens, an interim arrangement to run the affairs of the Bar Associations has to be in place. Therefore, whatever methodology has been evolved by the OSBC has to be allowed to stand, regardless of whether it is competent to do so.
Elections can take place only when normalcy is restored and till that happens, an interim arrangement to run the affairs of the Bar Associations has to be in place. Therefore, whatever methodology has been evolved by the OSBC has to be allowed to stand, regardless of whether it is competent to do so. In any case, the petitioner has failed to suggest a better system to provide for an interim arrangement for such interregnum. In this kind of extra ordinary situation, contention of the learned counsel for the petitioner for directing election of the different Bar Associations of the State, by maintaining social and physical distance, can hardly be countenanced. This Court in view of prevailing pandemic Coronavirus all over, does not deem it appropriate to either direct or permit the Bar Associations, to hold their elections during the period of Lock-down. 16. It is trite that remedy provided under Article 226 of the Constitution of India is a discretionary remedy. The High Court has always the discretion to refuse to grant such remedy even though a legal provision might have been infringed, the only exception being the enforcement of any fundamental right. Here it may be pertinent to note that the High Court has been conferred with wider discretion in the writ jurisdiction that it exercises under Article 226 of the Constitution of India vis-a-vis the Supreme Court under Article 32. While the right to move the High Court under Article 226 is a constitutional right but unlike Article 32, there is no constitutional guarantee attached to it. The High Court may therefore in its discretion refuse to issue a writ even if there is infraction of any law. Since the High Court has been conferred with discretion, it is not expected to use discretion without any justification. The High Court has to be always conscious of the responsibility attached to such high discretion confided in it by the Constitution which has to be used in a most judicial manner. 17. Law is that writ is a discretionary remedy and there are certain sound reasons behind this rule.
The High Court has to be always conscious of the responsibility attached to such high discretion confided in it by the Constitution which has to be used in a most judicial manner. 17. Law is that writ is a discretionary remedy and there are certain sound reasons behind this rule. In the case of an appeal against the decision of inferior Court, where such decision can be substituted by the appellate authority, the High Court while exercising the power of judicial review in writ jurisdiction under Article 226 of the Constitution of India is mainly concerned with the question whether action or order under attack should be allowed to stand or not. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter, which is authorized by law to decide, a conclusion which is correct in the eyes of the law, as held by the Hon'ble Supreme Court in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and others v. M/s. Gopi Nath and Sons and others,1992 2 SCC 312,Supp. in para 8 of the report thus:- "8. xxx.Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which is authorized by law to decide, a conclusion which is correct in the eyes of the Court ." 18. The High Court under Article 226 of the Constitution of India need not grant relief merely because the petitioner approaches it and makes out a legal point. We may in this connection refer to the law propounded by the Supreme Court speaking through Vivian Bose J. in one of the earliest judgments on this subject, in a leading case of Sangram Singh v. Election Tribunal and another,1955 AIR (SC) 425 . Therein the Supreme Court delineated the scope of interference by the High Courts in its power under Article 226 of the Constitution of India in the following terms:- "14.
Therein the Supreme Court delineated the scope of interference by the High Courts in its power under Article 226 of the Constitution of India in the following terms:- "14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act as courts of appeal under Article 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for, though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case." 19. The Supreme Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh and others, (1966) AIR SC 828 , held that the High Court rightly refused to exercise its extraordinary discretionary power despite the fact that the Government had no power under Section 72 of the Andhra Pradesh Panchayat Samitis and Zilla Parishads Act (for short, 'the Act') to review an order made under Section 62 of the said Act and also because it did not give notice to the representatives of Dharmajigudem village. The Supreme Court held that had the High Court quashed the order of Government, it would have restored an another illegal order and therefore upheld the decision of High Court in not exercising its extraordinary discretionary jurisdiction. 20. The Supreme Court in Ramniklal N. Bhutta and another v. State of Maharashtra and others, (1997) 1 SCC 134 , while holding that the exercise of power under Article 226 of the Constitution of India by the High Court is a discretionary held that: "10. xxx The power under Article 226 is discretionary.
20. The Supreme Court in Ramniklal N. Bhutta and another v. State of Maharashtra and others, (1997) 1 SCC 134 , while holding that the exercise of power under Article 226 of the Constitution of India by the High Court is a discretionary held that: "10. xxx The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point." The Supreme Court in that case further held that "the courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226-indeed any of their discretionary powers." 21. In this context, it is appropriate to reproduce paragraphs-15 and 17 of decisions of the Supreme Court in M.C. Mehta v. Union of India & ors., (1999) 6 SCC 237 . "15. It is true that whenever there is a clear violation of the principles of natural justice, the courts can be approached for a declaration that the order is void or for setting aside the same. Here the parties have approached this Court because the orders of the Department were consequential to the orders of this Court. The question however is whether the Court in exercise of its discretion under Article 32 or Article 226 can refuse to exercise discretion on facts or on the ground that no de facto prejudice is established. On the facts of this case, can this Court not take into consideration the fact that any such declaration regarding the 10-3-1999 order will restore an earlier order dated 30- 7-1997 in favour of Bharat Petroleum Corporation which has also been passed without notice to HPCL and that if the order dated 10-3-1999 is set aside as being in breach of natural justice, Bharat Petroleum will be getting two plots rather than one for which it has no right after the passing of the latter order of this Court dated 7-4-1998? ************ 17 The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice.
************ 17 The above case is a clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of the principles of natural justice or is otherwise not in accordance with law." 22. It is trite that this Court does not issue writ in exercise of its jurisdiction under Article 226 of the Constitution of India, as a matter of course. This being the Court of equity, it will not issue any such writ, which may give rise to inequitable results. In other words, the relief to be granted in exercise of such power should be an equitable one. Writ of Mandamus is a high discretionary remedy as the aggrieved person has to not only establish the infraction of a statutory provision of law but is also required to further establish that such infraction has resulted in invasion of a judicially enforceable right. Mere infraction of a statutory provision would not automatically give rise to a cause for issuing a writ of Mandamus. What flaws from this discussion of law, is that a writ court can even decline to grant the relief in the given facts of the case even if legal flaw in the impugned decision is made out if the writ prayed for is likely to result in another illegality and if the substantial justice has otherwise been done. 23. The Supreme Court in State of Maharashtra and others v. Prabhu, (1994) 2 SCC 481 while considering the scope of equity jurisdiction of the High Court under Article 226 of the Constitution of India held thus:- "5. ..... It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good." 24.
..... It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good." 24. The Supreme Court, relying on the above judgment in State of Maharashtra (supra) observed hereunder in Ritesh Tewari and another v. State of Uttar Pradesh and others, (2010) 10 SCC 677 :- "26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in the writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned." 25. Relying on the judgment in Sangram Singh (supra), the Supreme Court in Eastern Coalfields Limited and others v. Bajrangi Rabidas, (2014) 13 SCC 681 , observed thus:- "It is well settled in law that jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power of the High Court is required to be exercised "to reach injustice wherever it is found". In Sangram Singh v. Election Tribunal, (1955) AIR SC 425 : (1955) 2 SCR 1 ] , it has been observed that jurisdiction under Article 226 of the Constitution is not to be exercised whenever there is an error of law.
The power of the High Court is required to be exercised "to reach injustice wherever it is found". In Sangram Singh v. Election Tribunal, (1955) AIR SC 425 : (1955) 2 SCR 1 ] , it has been observed that jurisdiction under Article 226 of the Constitution is not to be exercised whenever there is an error of law. The powers are purely discretionary and though no limits can be placed upon that discretion, it must be exercised along recognised lines and not arbitrarily and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in such class of cases unless substantial injustice has ensued or is likely to ensue. That apart, the High Court while exercising the jurisdiction under Article 226 of the Constitution can always take cognizance of the entire facts and circumstances and pass appropriate directions to balance the justice. The jurisdiction being extraordinary it is required to be exercised keeping in mind the principles of equity. It is a well-known principle that one of the ends of equity is to promote honesty and fair play. If a person has taken an undue advantage the court in its extraordinary jurisdiction would be within its domain to deny the discretionary relief." 26. As would be seen from the afore-extracted part of the resolution of the OSBC, the Bar Associations having strength upto 100 members, have been required to constitute an Interim Committee with 3 members, with 1 ex-President and 2 ex-Secretaries. The Bar Associations having strength of 101 to 500 members, have been required to constitute an Interim Committee with 5 members, with 2 ex-Presidents and 3 ex-Secretaries. The Bar Associations having strength of 501 to 1000 members, have been required to constitute an Interim Committee with 7 members, with 3 ex-Presidents and 4 ex-Secretaries. The Bar Associations having strength of 1001 to 3000 members, have been required to constitute an Interim Committee with 9 members, with 4 ex-Presidents and 5 ex-Secretaries. The Bar Associations having strength of more than 3000 members, have been required to constitute an Interim Committee with 11 members, with 5 ex-Presidents and 6 ex-Secretaries. It has been further required that the Interim Committee shall be nominated by the existing Executive Body unanimously or by majority. The senior most ex-President nominated as member of the Interim Committee shall be the Chairman of the Committee.
It has been further required that the Interim Committee shall be nominated by the existing Executive Body unanimously or by majority. The senior most ex-President nominated as member of the Interim Committee shall be the Chairman of the Committee. The Interim Committee in its first meeting shall unanimously or by majority, nominate one of its members as its Secretary. Aforementioned criterion laid down by the OSBC appears to be quite reasonable. It goes without saying that all the ex-Presidents and ex-Secretaries of the Bar Associations at one point of time were elected office bearers of such Associations by popular vote. Therefore, having Interim Committee comprising of such exPresidents and ex-Secretaries would in the prevailing circumstances be the best way to ensure representative character of such interim body. 27. What therefore can be culled out from the treasure trove of the above referred to precedents is that besides being discretionary, the remedy of writ jurisdiction under Article 226 of the Constitution of India is an equitable remedy, for the writ court exercises equity jurisdiction. Although it is true that scope of power of writ court to undertake judicial review of administrative actions is very wide, but the exercises of such jurisdiction by the Court is always subject to self-imposed restrains. It is the bounden duty of writ court to ensure justice and equity but it is also duty bound to see that extraordinary jurisdiction under Article 226 of the Constitution of India is exercised with great caution and only in furtherance of public interest or to set right grave illegality. In a case like the present one, the writ court may refuse to grant relief even when there is breach of statutory prescription. 28. In view of above discussion, we do not find any reason to interfere with the present interim arrangement made by the OSBC as per the decision taken by the BCI. The writ petition is therefore dismissed. As Lock-down period is continuing for COVID-19, learned counsel for the petitioner may utilize the soft copy of this judgment available in the High Court's website or print out thereof at par with certified copies in the manner prescribed, vide Court's Notice No.4587, dated 25.03.2020.