HIGH COURT OF MADHYA PRADESH : JABALPUR. W.P. No.750/2017. Bar Association Lahar, Dist. Bhind -Versus- State Bar Council of M.

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1 HIGH COURT OF MADHYA PRADESH : JABALPUR W.P. No.750/2017 Bar Association Lahar, Dist. Bhind -Versus- State Bar Council of M.P and another Shri Sameer Seth, Advocate for the petitioner. Shri R.K. Sahu, Advocate for the respondents. W.P. No.14586/2016 Bar Association Chadhoda, Dist. Guna -Versus- State Bar Council of M.P and another Shri Parag S. Chaturvedi, Advocate for the petitioner. Shri R.K. Sahu, Advocate for the respondents CORAM : Hon'ble Shri Justice Hemant Gupta, Chief Justice. Hon ble Shri Justice Vijay Kumar Shukla, Judge Whether approved for reporting? Law laid down Yes. Significant paragraph Nos. 12. The State Bar Council has no authority, power or jurisdiction to interfere with the election process or election of Bar Associations. Per : Vijay Kumar Shukla, J.- O R D E R ( Jabalpur, dt ) Both the writ petitions have been transferred for hearing from the Bench at Gwalior to the Principal Seat Jabalpur. In the

2 2 instant petitions a common pivotal questions are raised for consideration: (i) Whether the State Bar Council or its Appellate Committee has any authority to interfere with the process of election or to annul the elections conducted by the Bar Associations? and (ii) Whether State Bar Council has any authority to interfere with the affairs of Bar Associations regarding action taken against their Members for suspension of membership? Before adverting to the legal questions raised for consideration, it is condign to refer the facts, in brief, of both the writ petitions. 2. In W.P. No.750/2017 filed by the Bar Association, Lahar, District Bhind, the result of the election of the Bar Association was declared on 29 th March 2016 and the elected committee took over the charge. The Appellate Committee of the State Bar Council passed a suo motu proceeding and set aside the election of the petitioner. The petitioner Bar Association preferred W.P. No.2464/2016 assailing the order passed by the Appellate Committee and the entire suo motu proceedings. This Court by

3 3 order dated has stayed the effect and operation of the order dated The said petition was finally decided by order dated granting liberty to the Bar Association to file an election petition before the appropriate committee notified by the State Bar Council. The decision taken by the Appellate Committee was directed not to be given effect to. 3. By the impugned order dated vide Annexure-P/1, the State Bar Council again initiated suo motu proceedings in respect of the election of the petitioner Association. The said decision is challenged in the present petition being an arbitrary and discriminatory action. It has been contended that the Appellate Committee of the State Bar Council has no authority and jurisdiction to interfere with the election process of the Bar Association. It is also asserted that as per Clause 26 of the M.P. Model Bye-Laws for Bar Association (for short `Model Bye-Laws ) the election of any Bar Association may be subject to an election petition, which may be preferred within 10 days from the date of declaration of the results to the Appellate Committee. 4. In another writ petition filed by the Bar Association, Chachoda, District Guna, assail is to the order dated 27 th March 2016 passed by the Appellate Committee of the State Bar Council,

4 4 directing the petitioner Association to submit the records as regards suspension of the membership of an advocate, Shri Mohit Shrimal and also to furnish the income and expenses details and documents pertaining to the election held by the Bar Association. By order dated the petitioner Bar Association has been dissolved and the Officiating Secretary of the respondent No.1 has been directed to appoint an adhoc committee. The same issue has been raised that the State Bar Council has no authority to interfere with the affairs of the Bar Association regarding action taken against its members for suspension from membership. 5. On behalf of the State Bar Council it has been submitted that that the State Bar Council is a statutory body having legal obligations to take necessary action in order to maintain uniformity and fair elections as well as welfare of the advocates. It is submitted that Section 2(1)(a) of the Advocates Act, 1961 [hereinafter referred to as `the Act ] envisages `advocate - which means an advocate entered in any roll under the provisions of this Act. Section 2(1)(n) of the Act envisages State roll - means a roll of advocates prepared and maintained by a State Bar Council under Section 17. Section 6 provides functions of the State Bar Council. Section 28 of the Act empowers the State Bar Council to make Rules and the Bar Associations in the State are also recognized under Section 16 of the

5 5 Act M.P. Advocates Welfare Fund Act, 1982 [for short the `Act 1982 ]. Thus, they are under the direct disciplinary control of the State Bar Council in order to bring parity with respect to terms and conditions governing the affairs of the Bar Associations recognized by it. It has framed Model Bye-Laws and directed that all the recognized Bar Associations should adopt the same in stricto sensu. It is further contended that as per Clause 27 of the Model Bye-Laws since the Bar Association has not functioned properly and without assigning reason and in absence of an information to the State Bar Council, the Association has no power to suspend membership of any of the advocate. He further contended that in the light of the judgment passed by the apex Court in Supreme Court Bar Association and others vs. B.D. Kaushik, (2011) 13 SCC 774 while applying the principle of `one bar one vote, the State Bar Council has been conferred the power to supervise the elections of the Bar Associations. The impugned order is legal and valid, as it has been issued in exercise of powers envisaged under sections 15 and 28 of the Act and Clause 27 of the Model Bye-Laws. In the case of B.D. Kaushik (supra) while enforcing the principle of `one bar one vote the Bar Council has been conferred the power to supervise the elections of the Bar Associations.

6 6 6. We do not find any force in the said argument as in B.D. Kaushik (supra) was a matter of membership of the Supreme Court Bar Association arising out of the proceedings of the civil suit. The Apex Court emphasized on the principle of `one bar one vote, but the apex Court has not held that the Bar Council shall have the power to interfere with the elections of the Bar Associations. Besides, no provision of statute or any Rule has been brought to the notice of this Court by the counsel appearing on behalf of the State Bar Council conferring power to the State Bar Council to interfere with the election process and internal affairs of the Bar Associations. 7. Before adverting to the other legal issue involved in these cases, it is apposite to refer to relevant sections of the Act: 2. (1) (a) - Advocate means an advocate entered in any roll under the provisions of this Act; xx xx (d) Bar Council means a Bar Council constituted under this Act; (e) Bar Council of India means the Bar Council constituted under Section 4 for the territories to which this Act extends; xx xx (i) Legal Practitioner means an advocate or vakil or any High Court, a pleader, mukhtar or revenue agent;

7 7 xx xx (m) `State Bar Council means a Bar Council constituted under Section 3; (n) `State roll means a roll of advocates prepared and maintained by a State Bar Council under section Chapter II of the Act deals with Bar Councils. Section 3 stipulates that there shall be a Bar Council in the State as mentioned in the Section. Under sub-sections constitution of State Bar Councils is prescribed. Section 4 of the Act makes a provision for constitution of the Bar Council of India. Thus, it is manifest that every Bar Council shall be a body corporate by virtue of Section 5 of the Act. Section 6 of the Act provides functions of the State Bar Council, the same being relevant for the present purpose, is extracted hereunder: 6.Functions of State Bar Councils- (1) The functions of a State Bar Council shall be- (a) to admit persons as advocates on its roll. (b) to prepare and maintain such roll (c) to entertain and determine cases of misconduct against advocates on its roll (d) to safeguard the rights, privileges and interest of advocates on its roll (dd) (Note:- Ins. by Act 70 of 1993, sec.2 (i) (a)) to promote the growth of Bar Associations for the purpose of effective implementations of the welfare schemes referred to in clause (a) of sub section (2) of

8 8 this section and clause (a) of sub section (2) of section (e) to promote and support law reform (ee) (Note:- Ins. by Act 60 of 1973, sec.6) to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest. (eee) to organize legal aid to the poor in the prescribed manner (f) to manage and invest the funds of the Bar Council (g) to provide for the election of its members. (gg) (Note:- Ins. by Act 70 of 1993, sec.2 (I) (b)) to visit and inspect Universities in accordance with the directions given under clause (I) of sub-section (1) of section7; (h) to perform all other functions conferred on it by or under this Act; (i) to do all other things necessary for discharging the aforesaid functions (2) [(Note:- Sub-sections (2) and (3) subs. by Act 60 of 1973, sec.6, for sub-section (2).) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of]. a. Giving financial assistance to organize welfare scheme for the indigent, disabled or other advocates. b. Giving legal aid or advice in accordance with the rules made in this behalf c. [(Note:- Ins. by Act 70 of 1993, sec.2 (ii).) Establishing law libraries]. (3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section.

9 9 9. The term of office of the Members of the State Bar Council is prescribed in Section 8 of the Act. Section 8A makes a provision for constitution of Special Committee in the absence of election of the State Bar Council. Section 10 provides for constitution of various committees other than disciplinary committees. Section 15 confers power on the Bar Council to make rules for the manner of election of the Chairman and the Vice- Chairman of the Bar Council etc. Thus, in Chapater II of the Act there is no provision conferring power to the State Bar Council to make any rule in respect of election of the Bar Associations. 10. Chapter III of the Act provides admission and enrolment of advocates with the State Bar Council. Section 17 of the Act says that it shall be the duties of the State Bar Council to maintain roll of advocates. The eligibility to be enrolled as an advocate of state roll is prescribed under Section 24. Disqualification for enrolment is provided under Section 24-A of the Act. 11. From a bare reading of the various provisions of the Act it is graphically clear that there is no provision either under the Act or under the Advocates Welfare Fund Act, 1982 [hereinafter referred to as `the Act 1982 ] to interfere with the elections conducted by the Bar Associations. The said Act 1982 requires recognition of Bar

10 10 Association for the purpose of admitting the Members of the Bar Association for grant of welfare fund to them. The provision of the Act 1982 empowers the Bar Council to give such directions, as are necessary for carrying out the purpose of Act. Object of the said Act is to constitute a welfare fund for benefit of the advocates, cessation of practice, and for matters connected therewith or incidental thereto. The only purpose of the said Act is to provide succour to advocates who cease to practice or advocates who suffer from any disability or who die. The said Act no where confers the power to the State Bar Council to have control or to supervise the election affairs of a Bar Association. 12. A similar issue has been considered by a Co-ordinate Bench of this Court in R.N. Tiwari vs. State Bar Council of M.P. and others, AIR 1995 MP 137 wherein it is held that the Bar Council has no authority or power or jurisdiction to stay the election process or to interfere with the election affairs of a Bar Association. In the case of Vinifred Bose vs. The Bar Council of Tamil Nadu and Puducherry, (W.P. No.5010 of 2015, decided on ), after considering various provisions of the Advocates Act, 1961 it was held that if the Bar Council takes upon itself the role of supervision and overseeing the elections to each of the Associations,

11 11 the Bar Council may lose focus on the functions statutorily entrusted to them. 13. In view of consideration of the statutory provisions of the Act and the Advocates Welfare Fund Act, we do not find any provision conferring the power on the State Bar Council to interfere with the election process or with the election of a Bar Association. 14. In view of the aforesaid enunciation of law and appreciating the anatomy of the provisions of the Act and the Advocates Welfare Fund Act enacted therefrom, the writ petitions are allowed. The impugned orders passed by the respondents are hereby quashed. However, in the facts and circumstances of the case, there shall be no order as to costs. (Hemant Gupta) Chief Justice (Vijay Kumar Shukla) Judge ac.

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