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W.P.No.22635/2017
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE D.B.:Hon'ble Shri P.K. Jaiswal Hon'ble Shri Virender Singh, JJ.
Writ Petition No.22635/2017(PIL) AMOL SHRIVASTAVA & ANOTHER
Versus BAR COUNCIL OF INDIA & OTHERS. ******** Shri B.L. Pavecha, learned Senior Advocate, Shri A.K. Sethi, learned Senior Advocate, Shri P. Mathur, learned Senior counsel and Shri Sunil Jain, learned Senior counsel for the petitioners. Shri Sandeep Mehta, learned counsel for the respondent No.1 – Bar Council of India. Shri N.S. Bhati, learned counsel for the respondent No.2 – M.P. State Bar Council. Shri P.K. Shukla, Advocate, Anil Ojha, Advocate and Shri Manish Yadav, learned counsel for respondent No.3 for High Court Bar Association, Indore. Shri Mohan Singh Thakur Chandel, Advocate Harpeet Singh, Advocate for the intervenor(s). ******** ORDER (Passed on 14th day of February, 2018) Per P.K. Jaiswal, J:-
Petitioners No.1 and 2 are registered with the State Bar Council of M.P. and are regular practitioner of M.P. High Court Bench at Indore. They are also registered member of respondent No.3 – High Court Bar Association, Indore. 2.
The respondents No.1 and 2 being statutory bodies
and body corporate established as per Section 3 and 4 of the Advocates Act, 1961, are discharging a statutory
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public functions. They exercise pervasive control over the functioning, recognition and especially in the matters of elections of the office bearers of the respondent No.3. 3.
The respondent No.3 – High Court Bar Association,
Indore was constituted as per Constitution of the High Court Bar Association in the year 1965, drafted by erstwhile Executive Committee, which at the relevant time comprised of great legal luminaries such Shri D.C. Barucha, Shri S.D. Sanghi, Shri G.L. Oza, Shri K.A. Chitale, Shri G.M. Chaphekar all of whom were highly respected Senior Advocates and many were elevated as Hon'ble Judges of the High Court and also the Apex Court. 4.
As per the Constitution, the Association amongst
other things was formed with an object to maintain a high standard of efficiency and integrity of the members, to protect and promote the professional interests of the members; and for these purpose to exercise such powers and discharge such functions as may be necessary. 5.
The petitioners are seeking the implementation of
the principle of “One Bar One Vote” (for short 'OBOV') in the General Body Election in the High Court Bar Association, Indore. The said principle is now an accepted principle through out the country and the entire legal fraternity. In simple words it just means that an Advocate though associated with many Bar Associations on account of his / her appearances in these different Courts would
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only be entitled to be counted as a voter in the electoral roll of only one of the Bar Associations of which he / she is a member. 6.
By this public interest litigation, the writ petitioners
are praying for the following relief :“(a) Issue a writ in the nature of mandamus or other to direct the respondent no.2 to act upon the representations of the petitioner and ensure that the elections in the High Court Bar Association, Indore are conducted strictly as per the principle of One Bar One Vote, as per the directions of the Hon'ble High Court and also in view of the Bar Council Rules of 2015. And; (b) Issue a writ of Mandamus or other, to direct the Respondent rolls for the upcoming General Body Elections of the High Court Bar Association, Indore on the basis of the OBOV principle as per the Verification Forms filled with the State Bar Council by obtaining a list from the respondent No.2. And; (c) Issue a writ of Mandamus or other, to direct the respondents to carry necessary amendments in Rules/Regulations or Bye Laws to permanently incorporate the OBOV principle to be applicable to all future elections whether of State Bar Councils or High Court Bar Association. And; (d) Call for the entire record pertaining to the proceedings. And; (e) To grant any other appropriate order/direction or relief which the Hon'ble Court deems fit in the interest of justice. And your petitioner, as in duty bound, shall ever pray.”
7.
The issue was first taken up and contested before
the Allahabad High Court. The Allahabad Court in the case of Shiv Kumar Akela, Advocate V/s. The Registrar,
Societies Firms, reported as 2007 (2) AWC 2011 had issued directions to the Bar Council and Bar Association to implement the OBOV system in the Rules of Bar Council/Association. Thereafter, in a first, the OBOV was
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implemented by the Supreme Court Bar Association by introducing an amendment to Rule 18 of the Supreme Court Bar Association Rules, whereby every member before casting his vote, is required, in the prescribed form, to give a declaration that he has not voted in any other election of any Advocates in the High Court / District Court Bar Association. The aforesaid amendment was challenged before the Apex Court in the case of Supreme Court Bar
Association & Ors. V/s. B.D. Kaushik reported as 2011 (13) SCC 774. The Hon'ble Supreme Court vide order dated 21.9.2011, upheld the said amendment and issued various directions to implement the 'One Bar One Vote' system in the 'Supreme Court Bar Association' (for short 'SCBA'). The Apex Court issued various guidelines
which
included
amongst
other
things
a
formation of a committee to prepare separate list to identify regular members and seek information from the other Bar Associations of their membership. It was further directed that after preparation of the final list of the regular practitioners, each member shall give a written intimation to the S.C.B.A. whether he is a member of another court annexed Bar. It shall be mandatory for a member, whose name is included in the said list, to give a permanent declaration that he would vote only in the SBCA and no other District or High Court Association. 8.
After the decision of the Hon'ble Supreme Court in
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the case of Supreme Court Bar Association & Ors.
V/s. B.D. Kaushik (supra), the respondent No.1 – Bar Council of India, finally granted legislative approval to the OBOV principle by enacting the Bar Council of India (Certificate of Practice and Verification) Rules, 2015. 9.
Rule 6, 7, 8 and 22 of the Bar Council of India, Rules,
2015, specifically address the issue of advocate verification and makes it mandatory for the advocate to obtain certificate of practice from the respondents No.1 and 2 in order to continue practice. It has also been provided that the advocate is to be member of the Bar Association whether he and she normally practices. The OBOV principle
has
been
implemented
by
introducing
a
mandatory column in the application and verification forms whereby the applicant while submitting the Form has to clearly specify and declare, the place and Bar Association where the applicant seeks to caste his / her vote. 10. That, certain concerned advocates such as the present petitioners had thereafter filed various petitions before the principal seat of High Court of M.P., Jabalpur, seeking similar directions from the High Court in W.P.No.574/2016
(PIL)
Democratic
Lawyers
Forum V/s. State Bar Council & Ors. and W.P.No.2827 of 2016 (Smt. Nirja V/s. Sumeet). In the said petition directions were issued from time to time to carry out
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verification process as per the Bar Council of India Rules of 2015. As per the interim orders passed by the main seat, there were undertakings given by the respondent No.2, a High Court of completing the advocate verification exercise to implement the OBOV principle. 11. That, vide order dated 29.2.2016, the principle seat took note of “action plan” submitted by the respondent No.2, and marked the same as Document 'X'. As per the action plan the respondent No.2 had clearly stated that they will implement the policy of “OBOV” in the forthcoming elections and also in order to facilitate the preparation of the final roll they will take assistance of M.P. Online for verification and declaration as per BAR Council Verification Rules, 2015. Thereafter, a huge number of advocates including the petitioners were required to file verification forms and also declaration forms citing the place of practice and the choice of Bar Association where the applicants wish to cast our vote. All the Advocates were subjected to go through this arduous exercise with a prospect and promise of streamlining and improving the conduct of elections and also in the hope of “weeding out the ineligible members/Advocates enrolled by the State Bar Council” as observed by the Division Bench in the order dated 29.2.2016 (Annexure P/2) :“02. Today, we were informed that the Office Bearers of the respective Bar Associations as well as the members of the Adhoc Committee appointed by the State Bar Council interacted with the Advocate General and, in
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turn, the State Bar Council has articulated its action plan to ensure that free and fair elections in the respective Bar Associations are held – in conformity with the extant By-Laws of the said Bar Associations and norms and regulations specified by the State Bar Council in that behalf. All parties have agreed that the action plan suggested by the State Bar Council be taken on record (marked as ’X’), as acceptable to them; and hearing of the matters be deferred with clear understanding that unless the State Bar Council undertakes the exercise of weeding out the ineligible members/Advocates enrolled by the State Bar Council, the election of Bar Associations should not be hastened. In other words, the elections to proceed only after the eligibility of concerned members is decided by the State Bar Council, which as assured, will be done within four weeks from today. 03. The State Bar Council has taken assistance of M.P. Online. M.P. Online, in turn, has assured that software for online registration of the members of the State Bar Council and for furnishing requisite information for deciding their eligibility will be prepared within 10 days from today and will be made operational by M.P. Online before 15.3.2016. The entire process for deciding eligibility of members of the State Bar Council will be completed online before 31.3.2016; and the list of members so prepared, will be generated and made over to the respective Bar Associations where the concerned member has enrolled himself as member. 04. We may take notice of the fact that as the term of Office of the outgoing Executive Committee of the High Court Bar Association, Jabalpur has already expired, State Bar Council has nominated Adhoc Committee consisting of seven members. That Committee has already taken over the charge of management of the High Court Bar Association, Jabalpur. During the hearing, however, we found that the By-Laws requires such Committee to consist of three senior designated Advocates and two other Advocates. That norm has not been fulfilled by the State Bar Council, while issuing notification dated 16.2.2016. In this backdrop, it was suggested that the said Adhoc Committee nominated by the State Bar Council deserves to be replaced by the Adhoc Committee to be appointed by the Court in terms of this order. The counsel appearing for the respective Bar Associations as well as the State Bar Council, on instructions, have accepted this suggestion.
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deem it appropriate to reconstitute the Adhoc Committee, who will take over charge of Office of the Executive Committee of the High Court Bar Association, Jabalpur with immediate effect. The Committee shall consist of : (i) Shri Satish Chandra Datt, Senior Advocate as Chairman; (ii) Shri P.R. Bhave, Senior Advocate as Member; (iii) Smt. Shobha Menon, Senior Advocate as Member; (iv) Smt. Chanchal Sharma, Advocate as Member; and (v) Shri Sanjay Verma, Advocate as Secretary of the Committee. 06. This Committee will take all measures as are necessary hereafter for the management of the concerned Bar Association and including to conduct free and fair elections by nominating Shri P.N. Dubey, Advocate as Chief Election Officer. The Committee must prepare time frame for verification and finalization of the voters list and the date of nomination. Notification in this behalf must be issued under the authority of the Adhoc Committee appointed by the Court within one week from today. The Committee must keep in mind that the initial preparatory steps to be taken by the State Bar Council will have to be set apart upto 31.3.2016. The relevant dates for verification of the claims, objections and finalization of voters list and also for date of filing nomination must be after 31.3.2016, but, to ensure that the election results are declared not later than first week of May, 2016. In case of any operational or logistical issues, the Committee can move a formal application before this Court for appropriate direction, being a Court appointed Committee. 07. Just before these petitions were filed, the election programme for High Court Bar Association, Jabalpur, was declared, pursuant to which nominations have been filed. The concerned candidates have deposited security amount with the Chief Election Commissioner. That amount will have to be reimbursed to the concerned candidate within one week from today. The expenses incurred by the Chief Election Commissioner till date with regard to election,which was notified by the outgoing Executive Committee, will be paid by the High Court Bar Association, Jabalpur. 08. The outgoing Executive Committee as also the Adhoc Committee appointed by the State Bar Council must give due authorization and handover the charge to the Court appointed Committed by tomorrow. 09. On the same lines, the outgoing Executive Committee of the District Bar Association has agreed to handover the charge to the Court appointed Committee after expiry of its term on 31.3.2016 in terms of this order. That Committee shall consist of: 05. As a result, we
(1) Shri Rajendra Tiwari, Senior Counsel as Chairman; (2) Shri R.S. Tiwari, Advocate as Secretary; (3) Shri Jagmal Choudhary, Advocate as Member; (4) Shri Abhay Jain, Advocate as Member, and (5) Shri Girish Shrivastava, Advocate as Member.
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10. Counsel appearing for the respective parties as well as the Advocates, who are present in Court in large number have agreed for this arrangement and have expressed satisfaction also about the names of members of both the Committees finalized in terms of this order. 11. As regards the District Court Bar Association, since the term is expiring on 31.3.2016 (as is stated across the Bar by the counsel for the said Bar Association), assurance is given that the charge of the Executive Committee will be handed over to the above mentioned Court appointed Committee (in paragraph 9) on 1.4.2016, to enable the said Committee to take steps to ensure conduct of free and fair elections of that Bar Association and notify the election programme within one week from taking over the charge while also ensuring that the elections are completed within forty-five days therefrom. 12. It is once again placed on record that this arrangement has been agreed by all the stakeholders and duty-holders including the State Bar Council, as one time arrangement, to resolve all the contentious issues and to avoid any further controversy or dispute during the conduct of election of the respective Bar Associations. 13. It is agreed between the parties that this arrangement will not be cited as precedent or to be followed for the future election to be conducted by the respective Bar Associations in conformity with the By-Laws of the concerned Association and the extant Rules and Regulations. 14. We profusely appreciate the positive and forward looking approach of the respective Bar Associations and its members and their anxiety to ensure that the elections are held in friendly environment and to be free and fair in all respects. We also appreciate the untiring efforts and leadership of the learned Advocate General for bringing about amicable resolution between different groups of Advocates in respect of all the contentious issues. 15. In view of this arrangement, needless to observe that the notification for conduct of election issued by the outgoing Executive Committee of the High Court Bar Association, Jabalpur; and all steps taken on that basis, will be treated as non-est and to be disregarded by all the concerned. Instead, the election will now be conducted strictly as per the arrangement evolved in terms of this order and agreed between the parties. 16. Court appointed High Court Bar Association's Adhoc Committee to submit the schedule and time frame to be followed by the said Committee from the stage of
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commencement of election till the conclusion thereof. For that purpose, we place this matter on 09.03.2016. 17. It is also agreed by all concerned that the members of the Court appointed Committee shall not participate in the proposed election of the concerned Bar Associations to be conducted under the supervision of that Committee either directly or indirectly including not to propose or second any candidature. However, if any member of the said Committee has already proposed or seconded any candidate for the election, which was to be held in terms of Notification issued by the outgoing Executive Committee/Chief Election Commissioner (now declared as non-est), that will not come in his way in terms of this order. It is also clarified that being member of the Court appointed Adhoc Committee, will be no disqualification to cast vote during the ensuing election. This position is accepted by all concerned.”
12. Thereafter, the respondent No.2 – M.P. State Bar Council has submitted the action plan (Annexure P/3). On 16.11.2016, the Division Bench, disposed of the writ petition numbered as W.P.No.574/2016 by issuing various directions to the Election Tribunal to decide the cases of elections conducted during the pendency of the said writ petition. Para 10 of final order dated 16.11.2016 passed in W.P.No.574/2016, reads as under :(10) Accordingly, keeping in view the totality of the facts and circumstances of the case and taking note of various aspects involved in the matter; we dispose of both these petitions with the following directions:(A) As far as Election to the District Bar Association is concerned, based on the election conducted and the results notified by Shri Rakesh Pandey- Returning Officer, if any person including the petitioners, respondents or any of the interveners herein, have any grievance, they may file a duly constituted Election Petition before the Election Tribunal constituted by the MP
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State Bar Council, and it would be for this Election Tribunal to deal with the petition and decide all issues involved in the matter in accordance with law. (B) As far as Election to the MP High Court Bar Association is concerned, with regard to this election also, if any person including any of the petitioners, respondents or the interveners, have any grievance, they may raise the same by way of an Election Petition before the Election Tribunal constituted by the MP State Bar Council, and the Election Tribunal shall proceed to decided the Election Petition in accordance with law. (C) Further, for both the Elections conducted for the District Bar Association and the MP High Court Bar Association, the applicability of the principle of "One Bar One Vote" the law laid down by the Supreme Court in the case of Supreme Court Bar Association and others Vs. BD Kaushik, (2011) 13 SCC 774, shall be taken note of by the Election Tribunal and after consider the Rules and Regulations applicable for conduct of these elections, as have been formulated and made applicable by the Bar Council of India or the MP State Bar Council, the Election Tribunal is free to decide the election dispute, after hearing all concerned. The Election Tribunal shall take note of the principle of law applicable for conduct of elections to the Bar Association in the State of MP and thereafter decided the Election Petition in accordance with law. (D) As far as compliance with or non compliance with the order passed on 14.10.2016, in Writ Petition No.2827/2016, while disposing of IA NO.13718/2016 is concerned, the issue is kept open and the effect of the 138 members voting or any issue indicated thereto is left open to be evaluated and considered by the Election Tribunal while hearing the Election Petition. That apart, the effect of the order dated 06.10.2016 issued by the appeal committee
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and the State Bar Council ar also to be considered by the Election Tribunal. (E) As far as the decision taken by the Appeal Committee after the election were held an the recommendations made by this Appeals Committee to this court, which was taken note of on 24.10.2016 the same shall be ignored and shall not be considered by the Election Tribunal. The issue which was considered by the Appeals Committee is left open to be considered by the Election Tribunal and the Election Tribunal shall proceed to decide the matte without being influenced by the recommendations and comments made by the Appeals Committee in this recommendation made to the High Court. (F) The Election Tribunal shall also take note of the proposal submitted by the State Bar Council vide document "X" which was taken on record on 22.09.2016, and will be free to decide the election petition keeping in view these proposals. With the aforesaid observations, both the writ petitions stands disposed of .
13. On perusal of the aforesaid, it is clear that as per the proposal given by the State Bar Council and also the order passed by the Division Bench, it was clear that the OBOV principle was to be followed by the respondent No.2 in the preparation of electoral rolls in the election of Bar Association. 14. Shri B.L. Pavecha, learned Senior counsel for the petitioners
has
submitted
that
after
order
dated
16.11.2016, the High Court Bar Association elections in Indore were held in the month of January 2017, after the aforesaid exercise was concluded by the respondents, but
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unfortunately, the large number of unknown voters from outside district and Courts willfully participated in the said elections. These persons never had any interest in functioning of the High Court Bar Association, Indore and were absolutely unknown faces. He submitted that how a few 100 regular practitioner turned out to be 1500 to 1600 votes on the day of the election. He submitted that at the time of election or preparation to the date of announcement of election of Bar Association a large number of persons who are unknown to the Bar are taking registration and/or paying their dues in order to vote for the elections. Many members from the outside districts have taken and renewed their registration with the sole intention to cast their vote in the upcoming elections. On 24.11.2017, a detailed representation has been submitted by the petitioner No.1 apprising them of the situation and requesting them to follow the law in relation to OBOV principle, but the said principle is not implemented by the respondent No.3 - High Court Bar Association, Indore. The non-implementation of the OBOV in the long term only lead to deterioration of the standard of legal practice and also the deterioration of justice system, which demands a fully functional and active Bar catering to the needs and aspirations of its practitioners, the litigants and the courts. He has also drawn our attention to the decision of the Delhi High court
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in the case of P.K. Dash, Advocate & Others V/s. Bar
Council Delhi & Others passed in W.P. (C) 8106 / 2010, decided on 18.10.2016. Para 27 to 30 and 52 are relevant which reads as under :“27. The respondent Associations argue that this Court should desist from issuing the directions sought in these writ petitions, as the important issue is in respect of interference of the court in the autonomous functioning of Bar Associations affecting their independence. It is submitted that interference by imposing any rule or principle on the assumption that it would achieve greater democracy or give voice to a section of the Bar who are "regular" practitioners, would set a wrong precedent. Here, it is argued that the right to practice before the High Court is assured by law to all members who enroll with the Bar Council. The Delhi Bar Council is a State level statutory entity. If all its members are equal as practitioners before this Court, it cannot discriminate in favour of those who "regularly" practice before it, and those who do not do so. The direction sought by the petitioner is nothing but one favoring those who "regularly" practice before particular courts. Stripping voting rights from "non- regularly" practicing lawyers would be both discriminatory and an interference without a legal framework. It is submitted that the use of WP(C) Nos.8106/2010, 6851/2012, 7549/2012 & 2689/2014 Page 22 parking sites, canteen and other public facilities are intrinsic to the Court as a public service provider; they cannot be denied to Advocates who appear before it. There is no such law that mandates the one man one vote rule; consequently a court-imposed rule would be untenable. 28. As regards the other issue i.e. strict implementation of the policy of providing "one chamber one advocate" to the lawyers practicing in various District Courts in Delhi to ensure that the other lawyers in the waiting list may not be deprived of their right to get
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chambers in the court complex, it is stated that the chamber allotments in various District courts have been made in terms of policies framed by this Court on the Administrative side. These policies are enforced by the respective Chamber Allotment Committees of all District Courts in Delhi and consequently, the allotment of chambers in various courts situated in different parts of Delhi so much so, the said principle was followed by this Court while deciding various writ petitions being filed by aggrieved advocates in respect of allotment of chamber. The said issue has also been dealt by this Court by orders dated 01.04.2011, 01.11.2011 and 12.12.2011 whereby directions were given to District Judges to place on their respective websites, the complete information with regard to chamber allotments with timely updating. Therefore, the said issue does not require any further adjudication. Analysis and conclusions: 29. The respondent Bar Association‟s opposition to a Court WP(C) Nos.8106/2010, 6851/2012, 7549/2012 & 2689/2014 Page 23 mandated „one advocate one vote‟ regime principally is rooted on the argument that it is not for courts, but members of each association to decide whether to adopt such a rule or not. The right to form an association, so goes the submission, fundamentally clothes the members and none else, with the right to decide upon matters touching its affairs. The petitioners, quite naturally, oppose this, by focusing on the Court‟s role as regulator of issues central to administration of justice; they also highlight that left untouched, the objective of permitting court-annexed Bar Associations to be bodies representing practitioners of a given court is defeated as rank "outsiders" having no practice or stake will occupy all positions of decision making, and bar genuine practitioners in those courts. Similar arguments are made with respect to the one-man one chamber issue - though the division of opinion is less sharp. 30. The two opposing arguments - i.e. votaries or proponents of the „one man one vote‟ rule,
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and those who resist it, thus focuses on the right to association (perhaps stemming from the right to form associations, under Article 19(1)(c) of the Constitution (hereafter called "the association right") the attending autonomy to conduct affairs of such institutions on the one hand, and the Court‟s compelling interest in regulating it, on the other hand. It is worthwhile noticing that in Kaushik-I as well as Kaushik-II the powers of the Court to deal with this question was not in issue. Furthermore, the Supreme Court exercised its powers under Article 142 of the Constitution of India. 52. In the light of the above findings and conclusions, the following directions are issued: (a) The following rule, incorporating the one-bar, one vote principle shall stand incorporated forthwith in relation to every Bar Association in Delhi (including the Delhi High Court Bar Association, the Delhi Bar Association, the New Delhi Bar Association, the Rohini, Shahdara, Saket and Dwarka Courts Bar Association and all other Court/Tribunals attached Bar Associations): "A member who exercises her or his right to vote in any year in the High Court or a District Court Advocate‟s/Bar Association election shall not be eligible to contest for any post - either as WP(C) Nos.8106/2010, 6851/2012, 7549/2012 & 2689/2014 Page 46 member of the executive or of an office Bearer of any other Association or to cast her or his vote at the election. Every member before casting his vote shall in the prescribed form furnish a „Declaration‟ that she/he has not voted and is not voting in any other election of the Supreme Court Bar Association, Delhi High Court Bar Associations, any other District Court Bar Association, and has not done so in the past one year. Provided, however, that if such a declaration is found to be false, it shall entail automatic suspension of the member giving such false declaration from membership of the Association for a period of three years. Based on the declaration of members, the Bar Association shall prepare, a list of voters. Only the members whose names are included as the final votersafter excluding those who had voted in elections of any other Bar Association in that year or the previous year, shall be entitled to vote, contest, propose and second any candidate in the Bar Association Election." Explanation (1) The term "any other Bar Association"
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means any Bar Association of which the voting or contesting member is a member of other than the one in which she or he is seeking to cast his or her vote, and/or contest for any elective post. Explanation (2) "office bearer" "member of executive committee" and "elective post" mean any position to which if the member is elected, would entail exercising decision making powers either in the capacity as holder of the post, (such as President, Secretary etc.) or as part of a collective body by whatever name called (such as executive committee, governing committee or council, etc.). Explanation (3) "Declaration" means a declaration in the following form:] I....(State name, and full description, i.e., parentage, age, particulars of Bar Council enrolment, and membership of the WP(C) Nos.8106/2010, 6851/2012, 7549/2012 & 2689/2014 Page 47 Bar Association of the Court complex where chamber allotment is sought) do hereby solemnly declare and affirm that I have not voted for and/or am not contesting for any elective post, in any other Bar Association of which I am also a member in the last one year and that I will not do so in any election during this year in such Bar Association. In case this declaration is detected to be false, my right to vote shall remain suspended for three years after such declaration is detected to be false." The above condition shall be deemed to be incorporated in the conditions of eligibility applicable for voting as well as candidature for the post of member of any executive body (by whatever name called) and every office bearer of each association (President, Vice President, General or Honorary Secretary, Assistant, Joint Secretary, Treasurer, Asst. Treasurer, or any other office bearer of each association by whatever other name called) immediately and shall be given effect to in every election to each Bar Association hereafter. This condition shall remain in force and bind all Bar Associations as condition for their recognition. (b) The following rule shall stand incorporated in the rules applicable for allotment of Chambers to Advocates in all Delhi Court complexes (whose courts are subject to the administrative control of the Delhi High Court): "No Advocate who has been allotted a chamber in any other Court complex, or has constructed or owns any chamber in the Tis Hazari or New Delhi Court complex, or has applied for any chamber in any of the said other court complex shall be eligible for allotment of a chamber. Each applicant shall also furnish a declaration that she or he has not applied for any, or
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has not WP(C) Nos.8106/2010, 6851/2012, 7549/2012 & 2689/2014 Page 48 been allotted any chamber in any other Court complex. Any false declaration shall entail cancellation of chamber allotment, or removal of the name from list of eligible applicants. All Advocates, whose names have been included in existing lists of otherwise eligible candidates/applicants and who await allotment, too, shall furnish a declaration within 60 days failing which their names shall not be considered for any allotment. In case the declaration furnished is false, their names shall be struck off the list of eligible applicants. Explanation: the expression "any other Court complex" shall mean that if the applicant/Advocate is allotted a chamber in one complex-e.g. the Saket Court complex, she or he shall be ineligible to apply for allotment of chamber in the Delhi High Court Lawyers chambers or any other District Court complexes (Karkardooma, Tis Hazari, New Delhi Courts, Rohini, Dwarka, etc and any other Court complex to be constructed with lawyers chambers, hereafter). Form of Declaration: I....(State name, and full description, i.e parentage, age, particulars of Bar Council enrolment, and membership of the Bar Association of the Court complex where chamber allotment is sought) do hereby solemnly declare and affirm that I am not allottee of any chamber in any Court complex other than the one in which I hereby seek; I also affirm and declare that I shall not apply for allotment of any chamber in any Court complex." The above conditions shall be deemed to have been incorporated with immediate effect. The concerned District Judge of each Court complex and the Registrar concerned of the Delhi High Court are hereby directed to ensure that the above conditions are suitably incorporated in the Chamber Allotment Rules, within two weeks. Till then, the WP(C) Nos.8106/2010, 6851/2012, 7549/2012 & 2689/2014 Page 49 above conditions are applicable and would govern all allotments of chambers.
15. Shri B.L. Pavecha, learned Senior counsel for the petitioners
has
also
submitted
that
the
governing
Executive Body have not taken any action to implement the principle of OBOV for holding its election accordingly.
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16. Inspite of number of opportunities granted to the respondent No.1 – Bar Council of India, no reply has been filed. He placed reliance on the documents filed on 22.1.2018. Annexure R/1/1 and Annexure R/1/2, are Minutes of Forth & Fifth meeting of the Central Verification Committee of the Bar Council of India held on 12.11.2017 and 29.11.2017 at Delhi. 17. He has further submitted that vide Annexure R/1/3, a circular has been issued on 12.4.2013, by the State Bar Council of M.P. to 2164 Advocates and till the fourth meeting not a single degree has been sent for the verification to the University concerned, in terms of the order passed by the Hon'ble Supreme Court. He also pointed out that in pursuance to the order passed by the Hon'ble Supreme Court, the Verification Committee of the Bar Council of India has been constituted presided by Hon'ble Mr. Justice Anil R. Dave, former judge of the Supreme Court as Chairman of Verification Committee Bar Council and has drawn our attention to the minutes of the meeting of 5th Meeting. He submits that in Indore the total members are around 2500–3000 and verification will take considerable time. 18. Shri N.S. Bhati, learned counsel, who is appearing for respondent No.2 – M.P. State Bar Council, has submitted that Hon'ble Supreme Court has passed certain interim directions from time to time in the matter of Transfer Case
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(Civil) No.126/2015 (Ajayinder Sangwan V/s. Bar
Council of Delhi). In the light of the directions issued by the Apex Court, the Bar Council of India and State Bar Council of M.P. has formed a State Verification Committee for the State of M.P. comprising Shri Pratap Mehta, Shri Rajesh Vyas, Shri Jai Prakash Mishra and Radehe Lal Gupta. The task of verifying law degree of the enrolled advocates is under the process and as directed, the law degrees of the enrolled advocates will be verified by their respective Universities. The said issue is not the subject matter of the present writ petition and, therefore, we cannot withhold the implementation of the principle of OBOV in the General Body Election of the High Court Bar Association, Indore. 19. Shri P.K. Shukla, Advocate, Shri Manish Yadav, Advocate and Shri Anil Ojha, Advocate, appearing for the respondent No.3, drawn our attention to Clause 45 of the bye-laws of High Court Bar Association and submitted that the Constitution of the Association may be amended, altered, added to or rescinded by a resolution passed at an Extra Ordinary General Meeting of the Association convened for the purpose. Clause 45 of the Constitution of the High Court bar Association, Indore (Annexure P/1) is relevant which reads as under :“Amendment of the Constitution. 45. The Constitution of the Association may be amended, altered, added to or rescinded by a resolution passed at an Extra Ordinary General Meeting of the
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Association convened for the purpose. Such resolution shall have to be voted for by ballot and shall be considered to be passed only if supported by not less than two-third of members on the roll.”
20. He has also drawn our attention to para 13 of the interim
order
dated
29.2.2016,
passed
in
W.P.No.574/2016, para 10 (b), (c) and (f) of final order dated
16.11.2016
and
minutes
of
meeting
dated
29.11.2017 of Bar Council of India and submitted that the process is on, the verification of the degree and implementation of OBOV in the lines of judgment of the Hon'ble Supreme Court in the case of Supreme Court
Bar Association and others. V/s. B.D. Kaushik (supra) and Bar Council of India Verification Rule, 2015 will take considerable time and in view of the law laid down by the Madurai Bench of Madras High Court and para 26, 29 and 39 to 41 of the Supreme Court Bar Association and
others. V/s. B.D. Kaushik (supra) as well as para 2 of the W.P. (C) 8106/2010 P.K. Dash, Advocate & Others
V/s. Bar Council Delhi & Others (supra), the present writ petition is not maintainable and prayed for dismissal of the writ petition. 21. Shri Chandel, Advocate and Shri Arpit Singh, Advocate for the intervenor/s
submits that number of
Advocates have paid Rs.5000 to Rs.10,000/- for becoming life members of the High Court Bar Association and, therefore, by judicial order their right to vote in High Court Bar Association as well as in other Bar Association cannot
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be curtailed, which is their fundamental right and prays for dismissal of the writ petition. 22. Learned counsel appearing for the respondent No.3 – High Court Bar Association, Indore has raised an objection on the ground that the High court will have no jurisdiction especially under Article 226 of the Constitution to deal with the internal matter of an Association and that the decision of the Apex Court in Supreme Court Bar
Association and others. V/s. B.D. Kaushik (supra) also arose out of civil proceeding and not out of writ proceedings. Therefore, he is opposing the maintainability of the writ petition. Their second objection is that no writ lies against the Association and the Court cannot poke its nose into the internal affairs of the Association of the Advocates and is not maintainable to writ jurisdiction of the High Court under Article 226 of the Constitution of India. He has drawn our attention to the decision of the Madras High Court, Bench at Madurai, vide Annexure A/3, wherein it was held that the Madurai Bench of the Madras High Court Bar Association was not a State or any other authority within
the meaning of the term 'State' has
defined under Article 12 of the Constitution and, therefore, the petitioner therein could not move the High Court to issue writ of mandamus against the association. It is also held that Bar Association is not performing public duty, so has to extend the jurisdiction of this Court under Article
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226 of the Constitution of India. 23. Per contra, Shri B.L. Pavecha, learned Senior counsel for the petitioners has drawn our attention to the decision of the Division Bench of Tamil Nadu High Court (Chennai) in the case of K. Elango & Ors. V/s. The Secretary,
Bar Council of Tamil Nadu & Ors. dated 14.10.2015, passed in W.P.Nos.24961 & 26025 of 2013 & W.P.No. 13389 of 2015 and submitted that the directions issued by the Hon'ble Supreme Court in Supreme Court Bar
Association and others. V/s. B.D. Kaushik (supra) has become law of land, every one is obliged to follow the same and that number of High Courts have already issued similar directions to the State Bar Council for ensuring that the Association of Advocates followed the prescribed content in the case of Supreme Court Bar Association
and others. V/s. B.D. Kaushik (supra). 24. In Benny Ltd & Anr. V/s. V. Sadashivan & Ors
with Mr. D.S. Veer Ranji V/s. CIDA Specialty Chemicals (I) Ltd. & Ors., reported as AIR 2005 SC 3202/SCC 2005 (6) 657), the Apex Court held that the writ would lie against a private party, if he discharges public functions. In the case of Board of Control For Cricket
in India V/s. Cricket Association Bihar reported as 2015 (3) SCC 251, the court held that a writ is maintainable even against private party, if it was discharging public functions. In the case of K.K. Saxena
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V/s. InterNational Commission of Irrigation and Drainage &Ors. reported as 2015 (4) SCC 670, the Apex Court reiterated that the power under Article 226 is not limited to Government or authority, which qualify to be a 'State' within the meaning of Article 12, but such powers extends to issue directions to any person or authority ?. This issue has been dealt with by the Hon'ble Supreme Court in the case of Supreme Court Bar Association
V/s. B.D. Kaushik (supra) as well as by the Delhi High court and Allahabad High Court. A question was raised as to how an association of Advocates can be said to be performed public duties or public functions. 25. In respect of maintainability of writ petition under Article 226 of the Constitution is concerned, the law is now almost settled that what is determinative is not merely the nature of organization, but the function it performs, that is the subject matter of controversy. This was summarized by the Constitution Bench of the Supreme Court in the
Zee Telefilms & Anr. V/s. Union of India & Ors. (Constitution Bench), reported as 2005 (4) SCC 649, the Apex Court held that even while rejecting the contention that the Board of Control For Cricket in India (BCCI) was not “State” within the meaning of expression under Article 12, that : “Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the
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Constitution, by way of a writ petition under Article 226.”
26. In the judgment reported as Federal Bank V/s.
Sagar Thomas reported as 2003 (10) SCC 733 it was held that: "From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Govt); (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; ( v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function."
27. Likewise, in Binny V/s. Sadashivan (supra) the Supreme Court held as follows: "Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced."
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28. The question, which this Court has to address, is whether, in the light of the above principles enunciated by the
Apex
Court,
can
the
present
proceedings
be
maintained validly against the respondent No.3 - Bar Association. They assert that such proceedings cannot be maintained, because they are purely private bodies, voluntarily formed with their own Constitutions. They also assert that in exercise of the power under Article 226, this Court cannot mandate them to include stipulations for introducing the one Bar one vote principle. 29. An Advocate engaged in law practice, before Courts in India, occupies a crucial and important position. She or he has the exclusive privilege, by law, to appear and represent others in cases and causes tried and decided by courts. This privilege is conditioned by provisions of the Advocates Act; it is also subject to continued good conduct- any lapse or actionable misconduct is liable to disciplinary action, the manner of whose proceedings and the nature of penalties that can be imposed, are again expressly stipulated by law- either under the Advocates Act, or under Regulations framed thereunder. Statutory appeals are provided against penalties imposed and the right to ultimately appeal to the Supreme Court is also assured. Every Advocate is duty bound to follow the code of conduct formulated by the Bar Council of India. These standards - especially Standards of Professional Conduct
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and Etiquette - framed under Rules and Section 49 (1) (c) of the Act read with the Proviso thereto of the Advocates Act formulated by the Bar Council of India. The professional activities of every Advocate - qualifications recognized, requirement of being enrolled, conditions for continuous enrolment, obligation to follow a prescribed code of conduct, comport herself with dignity and also assist the Court, duty to represent clients, accountability for action and lapses duties of statutory authorities, such as the Bar Council of India and State Bar Councils, maintenance of rolls, disciplinary proceedings and the manner of their conduct, are regulated by law. All this is to one end: provide a service to the client, in an orderly and regulated manner, professional assistance of an individual trained in the discipline of the law to secure the timely and efficient of resolution of a dispute before the Court. Owing a duty beyond her brief, to uphold the law and at all times act in fairness towards the Court, her colleagues and her client, without using sharp tactics or illegitimate means has been emphasized repeatedly in several decisions. 30. The Supreme Court in Lalit Mohan Das V/s.
Advocate General reported as AIR 1957 SC 250 explained that a member of the Bar is an officer of the Court and owes a duty to the Court in which, he is appearing. He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself
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into disrepute. Their conduct in respect of matters not regulated by law may appear, on the façade, beyond the pale of what may be described as "public functions". Yet, that is not the case. Bar Association like the respondent No.3, apart from the statutory bodies such as Bar Council, also occupy a pivotal role in Court administration and functioning. This can be gathered from the fact that Court procedure is framed after consultation with such Bar Associations, important policy and administrative decisions such as rules to allot chambers, use of common spaces, allotment of commercial spaces, their identification, earmarking of parking lots, policies and rules for designation of senior counsel under the Advocates Act, 1961, are taken, more often than not, with the consultation and inputs from these Bar Associations, in view of their representative nature. 31. Considering the role of Advocates and its importance in administration of justice privilege given by the High Court to them and their duty towards preservation of justice delivery system etc. Bar is an integral constituent of administration of justice, as such, it is required to function with the object to achieve proper method dispensation of the justice to the public and preserve judicial decorum etc. The High court Bar Association, Indore is one of the largest Association of the Advocates. They have been provided by the Registry of the High
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Court, a huge space both for locating their library and conducting meetings. It is only in recognition of the fact that they are discharging public duties that they have been allotted such a space. High Court Bar Association, Indore is a recognized by the Registry of this Court. They are amenable to the writ jurisdiction of this Court. Therefore, we hold that the writ petition is maintainable. The principle of 'OBOV' will be applicable to the members of the High Court Bar Association and that every Advocate, even if he/she is member of more than one Bar Association, he/she will be entitled to vote in the meetings of one Bar Association of his/her choice for electing officebearers and for that purpose, he/she will have to indicate his/her choice clearly and unequivocally. Each Advocate who are member of the High Court Bar Association, Indore or of more than one Bar Association, will have to file an affidavit/declaration in the proforma prescribed by the State Bar Council. The proforma along with affidavit will be filed by every Advocate within a period of four weeks from today in the High Court Bar Association, Indore. 32. In W.P.No.574/2016 and W.P.No.2872/2016, the respondent No.2 – State Bar Council, gave proposal / action plan vide Annexure P/3. 33. All parties to the proceedings in the aforesaid writ petition accepted the action plan suggested by the Bar
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Council and the same has been taken on record. 34. In view of the above discussion, we direct in the spirit of the directions issued by Hon'ble Supreme Court in
S.C. Bar Association & Ors. V/s. B.D. Kaushik (supra), the principle of 'OBOV' will be applicable for Advocates. It is made clear that we have neither adjudicated the matter with regard to the election nor we have passed any order, which may be adverse on any learned High Court Advocate or Bar Associations. This order only seeks to implementation of the direction of the Hon'ble Supreme Court in Supreme Court Bar Association & Ors. V/s.
B.D. Kaushik (supra). 35. The members of the High Court Bar Association, Indore / District Bar Association have to give an undertaking and specific declaration in respect of election of Bar Association in the High Court Bar Association that they will cast one vote only and no other Bar Association in the country. The aforesaid has to be verified as per Rule of 2015, for the principle of 'OBOV', same method should be adopted. The learned committee will adopt the same procedure as adopted in the case of
W.P.No.574/2016
(PIL) (Democratic Lawyers Forum V/s. State Bar Council &
Ors.) dated 29.2.2016. 36. As the term of the office of the executive committee of the respondent No.3 – High Court Bar Association,
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Indore has already been over, we deem it appropriate to constitute the High Court Bar Association's Ad hoc Committee who will take over the charge of the executive committee with immediate effect. 37. As
this
committee
would
also
supervise
the
finalization of the Voter List / electoral roll of High Court Bar Association, Indore. The principle of 'OBOV' is to be implemented in the forthcoming elections, in order to facilitate the preparation of final “Role of Advocate”. By allowing this petition, the following directions are issued :“(1) The term of the last elected executive committee is over, therefore, an Ad-hoc committee consist of (1) Shri C.L. Yadav learned Senior Advocate (Chairman), (2) Shri B.I. Mehta learned Senior Advocate, (3) Shri Pradeep M. Choudhary learned Senior Advocate, (4) Shri R.S. Chabbra Advocate, (5) Shri Sudhir V. Dandvate Advocate, (6) Smt. Ritu Bhargava Advocate, & (7) Ms. Mini Ravindran Advocate (Secretary). The Committee so constituted shall with immediate effect take over the charge of the High Court Bar Association, Indore. (2) The Chairman and Secretary of the Committee, so constituted, shall have all the necessary Administrative and financial powers for the smooth functioning of the affairs/business of the High Court Bar Association, Indore till new elected body takes over the charge.
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(3) The Committee constituted by this order will be the custodian of the funds of the High Court Bar Association, Indore and shall maintain up-to-date accounts of the High Court Bar Association Indore. (4) The Committee shall take all necessary steps to conduct election of the High Court Bar Association, Indore for the period 2018-19 by strictly following the principle of “OBOV”. For preparation of the Voter list of the High Court Bar Association, Indore, for the election of the 2018-19, the Committee will ask all the members of the High Court Bar Association, Indore to give an undertaking in the prescribed format. The members, who have already filled in the verification form as per the Rules of 2015, shall disclose in the undertaking the Association selected by them for casting their votes for the election of Bar Association. The members, who have not submitted the verification form shall be required to undertake in the prescribed format that he/she shall cast his/her vote only in the High Court Bar Association, Indore. (5) The Committee, on the basis of the undertaking submitted by it's members shall prepare a voter list of the voters of High Court Bar Association, Indore. (6) The Committee for this purpose publish notice on the Notice Board of the High Court Bar Association, all other Bar Associations falling within the jurisdiction of High Court of M.P. Bench at Indore, with a cut off date. The Committee shall
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also publish the notice in all leading news-papers in circulation within the High Court of M.P. Bench at Indore. (7) The exercise of preparation of the Voter list shall be completed within three weeks from today. (8) The Committee shall also declare the programme of election of the Executive Committee of High Court Bar Association, Indore. The process of the Election has to be completed within four weeks from today. The Committee shall also appoint Chief Election Officer for conduction of the election of the High Court Bar Association, Indore, for 2018-19. In turn the Chief Election officer will be free to appoint his team for conduction of the election of the High Court Bar Association, Indore for 2018-19. The Chief Election officer, so appointed, shall be responsible for conducting the election of the Executive Committee by strictly adhering to the principal of “OBOV”. (9) The Committee after completion of the election of the High Court Bar Association, Indore for 2018-19, handover the charge to the newly elected body of the High Court Bar Association and shall file a detailed compliance report before the Registry of this Court. (10) The new elected body of the High Court Bar Association, Indore, immediately after taking over the charge shall take appropriate steps for amendment in the Constitution of the High Court Bar Association, Indore and
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incorporate the Rules of “OBOV” with immediate effect.” 38. In the result, the petition is allowed and disposed of. No order as to costs. (P.K. JAISWAL) JUDGE
(VIRENDER SINGH) JUDGE
SS/Digitally signed by Shailesh Sukhdev Date: 2018.02.16 12:29:32 +05'30'
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HIGH COURT OF MADHYA PRADESH : INDORE BENCH D.B.:Hon'ble Shri P.K. Jaiswal Hon'ble Shri Virender Singh, JJ.
WRIT PETITION NO.22635/2017 (PIL) AMOL SHRIVASTAVA & ANR.
Versus BAR COUNCIL OF INDIA & ORS. *******
WWW.LIVELAW.IN ORDER FOR CONSIDERATION
(P.K. JAISWAL) JUDGE /2/2018
HON'BLE SHRI VIRENDER SINGH, J.
(VIRENDER SINGH) JUDGE /2/2018
Post for _
/2/2018
(P.K. JAISWAL) JUDGE /2/2018
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W.P. No.22635/2017 (PIL) Indore, Dated :-23.1.2018 Shri B.L. Pavecha, learned Senior Advocate, Shri A.K. Sethi, learned Senior Advocate, Shri P. Mathur, learned Senior counsel and Shri Sunil Jain, learned Senior counsel for the petitioners. Shri Sandeep Mehta, learned counsel for the respondent No.1 – Bar Council of India. Shri N.S. Bhati, learned counsel for the respondent No.2 – M.P. State Bar Council. Shri P.K. Shukla, Advocate, Anil Ojha, Advocate and Shri Manish Yadav, learned counsel for respondent No.3 for High Court Bar Association, Indore. Shri Mohan Singh Thakur Chandel, Advocate Harpeet Singh, Advocate for the intervenor(s). Heard. Reserved for orders.
(P.K. JAISWAL) JUDGE
(VIRENDER SINGH) JUDGE
.2.2018 Order passed separately signed and dated.
(P.K. JAISWAL) JUDGE SS/-
(VIRENDER SINGH) JUDGE
