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2022 DIGILAW 873 (JHR)

Commercial Taxes Bar Association, Jamshedpur v. Jharkhand State Bar Council, Doranda, Ranchi

2022-07-18

RAJESH SHANKAR

body2022
JUDGMENT : 1. The present writ petition has been filed for quashing the resolution of emergent meeting of Jharkhand State Bar Council held on 09.12.2020 pursuant to the order dated 14.10.2019 passed by a Bench of this Court in W.P.(C) No.675 of 2017, whereby affiliation of the petitioner with the Council has been denied. Further prayer has been made for issuance of direction upon the respondent-Jharkhand State Bar Council to register/affiliate the petitioner-association under the Bihar State Advocates’ Welfare Fund Act, 1983 (hereinafter to be referred as ‘the Act, 1983’) and/or the Advocates/Bar Associations Affiliation Rules, 2006 (hereinafter to be referred as ‘the Rules, 2006’) or under other relevant Act or Rules or Regulations. 2. The factual background of the case, as stated in the writ petition, is that the petitioner is an association of lawyers, which was formed in the year 1965. It has its office at Sales Tax Building, Sakchi, Jamshedpur and presently there are about 127 members in the petitioner- association. The members of the petitioner- association were facing difficulties by the act/conduct of the District Bar Association and as such they felt it necessary to get the petitioner affiliated with the respondent and as such applied for its affiliation on 13.06.2016 along with a demand draft of Rs.2100/-, however the respondent rejected its request for affiliation vide letter dated 18.12.2016. Subsequently, the respondent vide letters dated 20.05.2019 and 16.08.2019 informed the petitioner inter alia that it had been granted provisional affiliation subject to approval of the general body meeting of the respondent. Further, the petitioner was also asked to provide signatures of its members showing voluntarily acceptance to delete their names from the list of District Bar Association, Jamshedpur. Aggrieved with the said letters, the petitioner filed writ petition being W.P.(C) No.675 of 2017, which was disposed of by a Bench of this Court vide order dated 14.10.2019, remitting the matter to the respondent to get approval of the provisional affiliation granted to the petitioner making it final affiliation subject to fulfilment of other conditions stipulated under Rule 58 to the Model Rule and other conditions which are necessary to be followed within four weeks from the date of receipt of the copy of the order. Since the respondent did not comply the aforesaid order, the petitioner filed Contempt Case (Civil) No.54 of 2020 and only thereafter the respondent took a decision in its emergent meeting held on 09.12.2020 whereby it again denied affiliation to the petitioner on the ground that as per the definition of “Unit” provided under rule 1(d) read with rule 2(b) along with its proviso of the Rules, 2006, affiliation could only be granted to one association in one unit, which had the largest number of members on the date of affiliation. It was further observed in the decision dated 09.12.2020 that largest number of advocates was already in the District Bar Association, Jamshedpur which was affiliated with the Council and the petitioner could not be granted affiliation as it had much less number of members than the District Bar Association, Jamshedpur. The said decision was communicated to the petitioner vide letter dated 06.01.2021. Accordingly, the Cont. (Civil) No.54 of 2020 filed by it was dismissed. Hence, the present writ petition. 3. Learned senior counsel for the petitioner submits that rejection of the petitioner’s affiliation is in violation of the provisions of the Act, 1961 wherein the duty has been cast upon the respondent to promote the growth of Bar Association for the purpose of effective implementation of welfare Scheme. It is further submitted that the decision of the respondent rejecting the petitioner’s application for grant of its affiliation is violative of the provisions of section 14 of the Act, 1983, which provides that all associations of Advocates known by any name functioning in any Court, Tribunal or Authorities etc. may apply to the Bar Council for recognition and registration. It is submitted that there is no provision in Section 14 or otherwise in the Act, 1983 which disentitles the petitioner-Association from being registered on the ground that another Bar Association registered in the District Court of that city has already been registered. The decision of the respondent to reject the petitioner’s request for affiliation is in violation of rule 3(1) of the Bihar Advocates’ Welfare Fund Rules, 1984, which provides that any Association of Advocates functioning in any Court centre may apply to the Bar Council for recognition and registration. The decision of the respondent to reject the petitioner’s request for affiliation is in violation of rule 3(1) of the Bihar Advocates’ Welfare Fund Rules, 1984, which provides that any Association of Advocates functioning in any Court centre may apply to the Bar Council for recognition and registration. Rule 3(4) of the said Rules categorically provides that Bar Council may recognize and register more than one Bar Association at a Court centre for very exceptional and special reasons and thus there is no absolute prohibition on having more than one registered Bar Association for a particular Court centre or Forum. 4. Learned senior counsel for the petitioner further submits that the petitioner-association as well as the District Bar Association, Jamshedpur are functioning at different courts, tribunal or authorities and thus the decision of the respondent to deny affiliation to the petitioner is illegal and contrary to law. It is also submitted that the decision of the respondent rejecting the request of petitioner’s affiliation is also in violation of the Rules, 2006 framed by the respondent itself as rule 2(a) of the said Rules explicitly provides that all associations, which were affiliated to Bihar State Bar Council, Patna till 22nd November, 2000, may apply for regularization of their affiliation by making application on payment of Rs.2100/- consolidated amount forthwith. Moreover, the term “Unit” means Advocate/Bar Association at Jharkhand High Court, District, Sub-Division, Income Tax, Sales Tax and Labour Tribunal at Ranchi, District or Sub-Divisional Head Quarter. It would be apparent from the said definition that Income Tax, Sales Tax and District Court have been considered as separate units which means Sales Tax is one unit and District Court is another unit. Therefore, as per the proviso of Rule 2(b) there can be one association for Sales Tax at Jamshedpur and similarly one association for District Court at Jamshedpur. Since the petitioner-association is functioning in the field of Sales Tax/Income Tax and there is no other similar tax practitioners’ bar association in Jamshedpur, the proviso to rule 2(b) is not applicable in the petitioner’s case and thus it can be granted affiliation. The impugned decision of the respondent to deny affiliation to the petitioner is based on an incorrect understanding of law by misconstruing the term “Unit”. The impugned decision of the respondent to deny affiliation to the petitioner is based on an incorrect understanding of law by misconstruing the term “Unit”. The respondent has failed to appreciate that the term “Unit” as defined in respondent’s own Affiliation Rules treat the District Court to be a separate “Unit” as compared to the Sales Tax/Income Tax Authorities/Tribunals. It is further submitted that the District Bar Association, Jamshedpur which is functioning in District Court, Jamshedpur is a different unit from Sales Tax/Income Tax/Tribunals/Authorities which cannot be said to be an Association working in the unit of Sales Tax, Income Tax Tribunals and vice-versa. 5. Per contra, learned counsel for the respondent submits that proviso to rule 2(b) of Rules, 2006 provides that there will be only one association in one unit and the term “Unit” has categorically been defined in Section 1(d) of the Rules, 2006 which includes the Advocate/Bar Association of Jharkhand High Court, District, Sub-division as well as the tribunals of Income Tax, Sales Tax and Labour Tribunal at Ranchi or at district or Sub-Divisional headquarter. If an unit is taken into consideration, then for Jharkhand High Court there will be one association and at present there is only one affiliated association in Jharkhand High Court. Any other association can be in the District or in a Sub-Division and if a district has Sub-Division, then there can be associations in the district and sub-division separately provided that the court/quasi-judicial authority is available at sub-divisional level. Therefore, one association at Jamshedpur has been affiliated which is known as ‘District Bar Association, Jamshedpur (East Singhbhum)’ having largest number of advocates and another association is at Ghatshila, which is a sub-division in the district of East Singhbhum. In one District, there cannot be two associations unless there is any Sub-Division in the said district, which has a separate Bar Association. Accordingly, the claim of the petitioner to grant it affiliation at Jamshedpur cannot be allowed since in the said district, the maximum number of lawyers exist in the District Bar Association, Jamshedpur (East Singhbhum). 6. It is also submitted that the Commercial Taxes Bar Association at Jamshedpur in the district of East Singhbhum cannot be separately granted affiliation, as there cannot be two affiliated associations in a district other than Sub-Division. 6. It is also submitted that the Commercial Taxes Bar Association at Jamshedpur in the district of East Singhbhum cannot be separately granted affiliation, as there cannot be two affiliated associations in a district other than Sub-Division. The largest association in the District other than Sub-Division can only be granted affiliation and in the present case, the District Bar Association, Jamshedpur being the largest advocate association having the number of advocates much more than that of the petitioner, has been granted affiliation. Thus, the petitioner cannot be considered for grant of affiliation as it will amount to grant of affiliation to two associations in one district other than sub-divisional court. Even if the petitioner-association was granted affiliation in the year 1988, the same was never regularized by the Jharkhand State Bar Council and, therefore, on the basis of the said affiliation, the petitioner cannot claim to get itself affiliated with the respondent which is otherwise not permissible under the Rules, 2006. 7. Heard the learned counsel for the parties and perused the materials available on record. The petitioner association is aggrieved with the decision of the Jharkhand State Bar Council, denying affiliation to it on the ground that one association i.e. District Bar Association, Jamshedpur has already been affiliated/registered and more than one Bar Association in a district cannot be registered. 8. The thrust of the argument of the learned senior counsel for the petitioner is that in the present case, rule 2(a) of the Rules, 2006 will be applicable inasmuch as undisputedly the petitioner was already affiliated to the Bihar State Bar Council. It has been contended that rule 2(b) and its proviso will not be applicable at all since those speak of applications to be made by fresh associations which were not registered with the Bihar State Bar Council till 22nd November, 2000 and thus the interpretation of the term “Unit” and the proviso to rule 2(b) does not come into play at all. It has further been contended that under the Advocates/Bar Association Affiliation Rules, 1985 as was applicable in the erstwhile State of Bihar vide Bihar Gazette notification dated 24.03.1993, the definition of the term “Unit” was the same as has been defined in the Rules, 2006, applicable in the State of Jharkhand. It has further been contended that under the Advocates/Bar Association Affiliation Rules, 1985 as was applicable in the erstwhile State of Bihar vide Bihar Gazette notification dated 24.03.1993, the definition of the term “Unit” was the same as has been defined in the Rules, 2006, applicable in the State of Jharkhand. The Bihar State Bar Council had granted Certificate of Registration to the petitioner on 17.03.1988 under Section 14 of the Bihar State Advocates’ Welfare Fund Act, 1983 as well as Rule 3(3) of the Bihar Advocates’ Welfare Fund Rules, 1984. Hence, the petitioner is entitled for affiliation under the Rules, 2006. 9. To appreciate the said contention of the learned senior counsel for the petitioner, it would be relevant to refer rule 2 of the Rules, 2006 which reads as under:- “2. Affiliation:- (a) all associations which were affiliated to Bihar State Bar Council, Patna till 22nd Nov. 2000 may apply for regularization of their affiliation by making application on prescribed form on payment of Rs. 2100/- consolidated amount forthwith. Provided, the Sub-Divisional Bar Association with the State of Jharkhand may apply for regularization of affiliation on prescribed form with consolidated amount of Rs. 1400/- forthwith. Break in affiliation of the association may effect their members of respective association in calculating claim under Jharkhand State Advocate Welfare Trustee Committee. (b) Every Association desirous of affiliation may apply for its affiliation on the prescribed form (Sch.1) alongwith an affiliation fee of Rs.500/- for District Bar Association and Rs.300/- for Sub-Division Bar Association. A renewal fee of Rs.300/- for District Bar Association and Rs.200/- for Sub-Divisional Bar Association annually shall be payable 30th April, each year to the Bar Council for continuing the affiliation. If no renewal application is made by 30th May every year, the associations making application for renewal after the grace period shall be liable to pay fine @ Rs.20/- per month alongwith the application for renewal. Provided that affiliation will be accorded to one Association in one Unit, which has largest number of members on the date of affiliation. ------“ 10. Clause (a) of rule 2 provides for regularization of affiliation for those associations which were affiliated to Bihar State Bar Council, Patna till 22nd November, 2000. It provides that for regularization of affiliation, the applicant has to apply in the prescribed form alongwith payment of consolidated fee of Rs.2100/- for normal Bar Association and Rs. ------“ 10. Clause (a) of rule 2 provides for regularization of affiliation for those associations which were affiliated to Bihar State Bar Council, Patna till 22nd November, 2000. It provides that for regularization of affiliation, the applicant has to apply in the prescribed form alongwith payment of consolidated fee of Rs.2100/- for normal Bar Association and Rs. 1400/- for Sub-Divisional Bar Association. However, Clause (b) of rule 2 provides for the affiliation of any Bar Association for which the application has to be made in the prescribed Form alongwith requisite fee which is Rs.500 for District Bar Association and Rs.300/- for Sub-Division Bar Association. Proviso to clause (b) speaks that the affiliation will be accorded to one Association in one Unit, which has largest number of members on the date of affiliation. 11. The specific argument of the learned counsel for the respondent is that since one Bar Association is already affiliated/registered with the respondent, no further affiliation can be granted to the petitioner in view of the proviso to clause (b) of rule 2 of the Rules, 2006. 12. The question before this court is as to whether the stipulation made in proviso to clause (b) of rule 2 will also be applicable for those who seek regularization of their affiliation under rule 2(a) of the Rules, 2006, as they were already affiliated with the Bihar State Bar Council before reorganisation of the erstwhile State of Bihar. 13. Before coming to the said question, it would be proper to refer a judgment of the Hon’ble Supreme Court rendered in the case of Chhattisgarh State Coop. Bank Maryadit Vs. Zila Sahkari Kendriya Bank Maryadit & Others, reported in (2020) 6 SCC 411 , wherein it has been held as under:- “33. It is a settled principle of law that where two provisions of an enactment appear to conflict, courts must adopt an interpretation which harmonises, to the best extent possible, both provisions. Justice G.P. Singh in his seminal work Principles of Statutory Interpretation states: “To harmonise is not to destroy. It is a settled principle of law that where two provisions of an enactment appear to conflict, courts must adopt an interpretation which harmonises, to the best extent possible, both provisions. Justice G.P. Singh in his seminal work Principles of Statutory Interpretation states: “To harmonise is not to destroy. A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more general and which is more specific and to construe the more general one as to exclude the more specific… The principle is expressed in the maxims generalia specialibus non derogant and generalibus specialia.” Similarly, Craies in Statute Law states: “The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.” Where two provisions conflict, courts may enquire which of the two provisions is specific in nature and whether it was intended that the specific provision is carved out from the application of the general provision. The general provision operates, save and except in situations covered by the specific provision. The rationale behind this principle of statutory construction is that were there appears a conflict between two provisions, it must be presumed that the legislature did not intend a conflict and a subject-specific provision governs those situations in exclusion to the operation of the general provision.” 14. Thus, in the cases where two provisions appear to be in conflict with each other, the Court must adopt harmonious interpretation of both the provisions. In any conflicting situation of two provisions, the court should enquire as to which of the two provisions is specific in nature that must be operative. The general provision operates, save and except in situations covered by the specific provision. Where there appears a conflict between two provisions, a subject-specific provision governs those situations in exclusion to the operation of the general provision. 15. The general provision operates, save and except in situations covered by the specific provision. Where there appears a conflict between two provisions, a subject-specific provision governs those situations in exclusion to the operation of the general provision. 15. This Court is of the considered view that since Clause (a) of rule 2 of Rules 2006 provides for regularization of affiliation after payment of requisite fee and Clause (b) of the said rule 2 provides for affiliation to a new Bar Association, the proviso to clause (b) of the rule 2 will not be applicable in the petitioner’s case. The respondent has made wrong interpretation of rule 2 of Rules, 2006 while making observation in the decision dated 09.12.2020 that the proviso to Clause (b) of rule 2 would be applicable to the petitioner’s case, rather the same comes under clause (a) of rule 2. The respondent has overlooked that clause (a) of rule 2 is a special provision and if the proviso to clause (b) is mixed up with clause (a), then the purpose of incorporating the provision for regularization of affiliation under clause (a) will be redundant. The purpose of incorporating special provision for those associations which were affiliated with the Bihar State Bar Council till 22nd November, 2000 is to protect the right of already affiliated associations and as such the respondent is in error while denying affiliation to the petitioner by citing applicability of proviso to Clause (b) of rule 2 of the Rules, 2006. 16. In view of the aforesaid discussion, the resolution of the emergent meeting of Jharkhand State Bar Council held on 09.12.2020 whereby affiliation of the petitioner has been denied is hereby quashed. The respondent-Jharkhand State Bar Council is directed to take fresh decision to grant affiliation to the petitioner in terms with rule 2(a) of the Rules, 2006 within one month from the date of receipt/production of a copy of this order. 17. The writ petition is, accordingly, allowed.