In the High Court of Judicature at Madras

Transcription

1 In the High Court of Judicature at Madras (Special Original Jurisdiction) W.P. No. of 2017 H. Navas Basha 24/21, Bharathidasan Street Nehru Nagar Velachery Chennai vs 1. The Bar Council of India 21, Rouse Avenue Institutional Area New Delhi The Bar Council of Tamil Nadu & Puducherry High Court Campus Chennai Petitioner... Respondents AFFIDAVIT I, H. Navas Basha, Son of Hayath Basha, aged about 36 years, residing at 24/21, Bharathidasan Street, Nehru Nagar, Velachery, Chennai , do hereby on solemn affirmation state as under: 1.. I am the petitioner herein. I am conversant with the facts of the case. I am competent to file this affidavit. 2.. I state that I am an advocate practising in the Hon ble Court. I got enrolled as an advocate on My Enrolment number is Ms.2255/2010. I have a standing of more than seven years at the Bar. 3.. I state that I was shocked to receive on a show cause notice bearing R.O.C.No.6500 of 2017 dated issued by respondent no.2. The show cause notice inter alia reads as follows: Whereas the Special Committee at its meeting held on had passed the Resolution No.184 of 2017 for removal of advocates,

2 who got enrolled themselves on the rolls of the Bar Council of Tamil Nadu and Puducherry as an advocate without the basic educational qualification warranted under Rule 5 of the Legal Education Rules, 2008 framed by the Bar Council of India in view of the above quoted order passed by the Honourable High Court. The show cause notice indicates that appropriate action will be taken against me under section 26(1) under the Advocates Act, 1961 in the event of my failure to show cause within 15 days from the date of receipt of the said show cause notice as to why I should not be removed from the rolls of respondent no.2. Since the said show cause notice dated issued under Section 26(1) of the Advocates Act, 1961 by respondent no.2, is without jurisdiction, this Writ Petition is preferred on the following amongst other grounds: GROUNDS (a) It is submitted that the petitioner passed his B.A through Open University System in May 2006 and obtained his degree from the University of Madras, which is recognized by respondent no.1. On the basis of his degree of B.A, the petitioner had in 2006 joined the Government Law College, Chengalpet in I B.L. after having become successful in a competitive entrance test conducted by the Tamil Nadu Dr. Ambedkar Law University, Chennai. The petitioner had in May 2010 obtained his degree in Law from the Tamil Nadu Dr.Ambedkar Law University, Chennai, which is recognized by respondent no.1. He was fully eligible to be enrolled as an advocate. The petitioner was enrolled as an advocate on the basis of his degree in Law on After his enrollment as an advocate, the petitioner appeared for the All India Bar Examination and passed the same in January The petitioner was issued a Certificate of Practice dated by respondent no.1 to the effect that the petitioner is entitled to practice the profession of law in India in accordance with the Advocates Act, 1961 and the Rules governing such practice framed by the Bar Council of India. The said Certificate of Practice dated issued by respondent no.1 to the petitioner has not yet been cancelled by respondent no.1. In the absence of cancellation of the said Certificate of Practice by respondent no.1 in accordance with law, the order bearing R.O.C.No.6500 of 2017 dated prohibiting the petitioner from

3 practicing as an advocate in any court of law would be without jurisdiction, null and void. (b) It is submitted that the impugned show cause notice dated has been issued by respondent no.2 under Section 26(1) of the Advocates Act, Section 26 of the Advocates Act, 1961 speaks about the disposal of applications for admission as an advocate. No application of the petitioner for admission as an advocate is pending before respondent no.2. Therefore, respondent no.2 could not have invoked Section 26 of the Advocates Act, 1961 and could not have issued a show cause notice to the petitioner. Therefore, the impugned show cause notice dated is without jurisdiction. (c) It is submitted that even assuming without conceding that Section 26 of the Advocates Act, 1961 would apply to the case of the petitioner, respondent no.2 could have only referred the issue of the petitioner to respondent no.1 as per the proviso to Section 26(1) of the Advocates Act, Respondent no.2 could not have issued the show cause notice in question as per the said proviso. Therefore, the impugned show cause notice dated is without jurisdiction. (d) It is submitted that even assuming without conceding that the impugned show cause notice has been validly issued under Section 26(1) of the Advocates Act, 1961, there should be a specific allegation against the petitioner to the effect that the petitioner has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence. In the absence of such an allegation against the petitioner, the impugned show cause notice is without jurisdiction. (e) It is submitted that the impugned show cause notice says that the petitioner had become ineligible to enroll himself as an advocate on the roll of any State Bar Council after the enactment of the Rules of Legal Education, The Rules of Legal Education, 2008 came into force on Rule 5 of the Rules of Legal Education, 2008 speaks about the eligibility for admission to the three year Law Degree Course and Integrated Degree Program. Rule 5 provides that an applicant who has

4 graduated in any discipline of knowledge from a University may apply for a three years Degree Program in Law leading to conferment of LL.B. degree on successful completion of the regular program conducted by a University whose degree in Law is recognized by the Bar Council of India for the purpose of enrolment. The Explanation to Rule 5 of the Rules of Legal Education, 2008 provides that the applicants who have obtained 10+2 or graduation/post graduation through open Universities system directly without having basic qualification for prosecuting such studies are not eligible for admission in the law courses. Since the Rules of Legal Education 2008 came into force after the commencement of the academic year , the Rules were implemented by respondent no.1 with effect from the academic year As per the Rules of Legal Education, 2008, the applicants for admission to law courses falling within the realm of the Explanation to Rule 5 of the Rules of Legal Education, 2008 would become ineligible to join the law courses in or thereafter. Only those applicants for admission to law courses falling within the realm of the Explanation to Rule 5 of the Rules of Legal Education, 2008 who had joined the law courses in or thereafter and who had obtained a degree in Law would not be eligible to be enrolled as advocates. Those persons falling within the realm of Explanation to Rule 5 of the Rules of Legal Education, 2008 who had joined a Law College affiliated to a University recognized by respondent no.1 in the academic year or earlier would be eligible to be enrolled as advocates. The petitioner who had joined the Law College affiliated to a University recognized by respondent no.1 as early as in the academic year , when the Rules of Legal Education, 2008 were not at all in existence, and obtained his degree in Law from the Tamil Nadu Dr.Ambedkar Law University, Chennai in May 2010 was rightly enrolled as an advocate on Rule 5 of the Rules of Legal Education, 2008 would not at all be applicable to the petitioner. Therefore, the impugned show cause notice dated is without jurisdiction. (f) It is submitted that a Division Bench of the Hon ble Court has in K.Sakthi Rani v Bar Council of Tamil Nadu and others: 2010 (2) L.W. 746 held that those graduates in Law who had obtained their degrees in Law prior to the coming into the force of the

5 Rules of Legal Education, 2008 would be eligible to be enrolled as advocates. The Hon ble Court had no occasion to consider the question whether the persons who had joined the Law College in the academic year or earlier would be eligible to be enrolled as advocates. Respondent no.2 has misconstrued the decision of the Hon ble Court in K.Sakthi Rani s case (supra) and stated in the impugned show cause notice that no person can be allowed to enroll himself on the rolls of the State Bar Council unless he has satisfied the mandatory provisions of Rules of Legal Education, 2008 in respect of the educational qualification for enrolment. Since respondent no.2 has misconstrued the decision of the Hon ble Court in K.Sakthi Rani s case (supra) and has issued the impugned show cause notice, the impugned show cause notice is without jurisdiction. (g) It is submitted that respondent no.2 has referred to an order of the Hon ble Court dated in W.P.Nos.25215, 26085, and of 2017 in the impugned show cause notice. The said order of the Hon ble Court speaks only about the persons who obtained degrees of M.A. through Open University System and got enrolled as advocates between 2009 and The Hon ble Court never speaks about those advocates who had passed B.A. through Open University System and got enrolled as advocates between 2009 and The respondents are aware that the degree of B.A. obtained through Open University System is valid in law and that the degree of M.A. obtained through Open University System is invalid in law as per Regulation 2 of the University Grants Commission (the minimum standards of instructions for the grant of the first degree through nonformal/ Distance Education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences) Regulations, 1985 (for short, the UGC Regulations).. Despite the fact that the petitioner possessed a valid degree of B.A. as per the UGC Regulations and that he had joined the law college on the basis of the said valid degree much before the coming into the force of the Rules of Legal Education, 2008, he was issued the impugned show cause notice contrary to the UGC Regulations and contrary to the said order of the Hon ble Court dated

6 The impugned show cause notice therefore suffers from the vice of malice in law and would consequently be violative of Article 14 of the Constitution of India. (h) It is submitted that the impugned show cause notice prohibits the petitioner from practicing as an advocate. Such prohibitory order forming part of the impugned show cause notice would be violative of the principles of natural justice, unfair, unreasonable and would also be in breach of Articles 14, 19(1)(g) and 21 of the Constitution of India. 4. I state that I have no equally efficacious alternative remedy but to approach the Hon ble Court by way of this Writ Petition under Article 226 of the Constitution of India. 5. I state that I have not filed any other petition regarding the subject matter of this Writ Petition in the Hon ble Court or in any other Court. Solemnly affirmed at Chennai this the 20th day of November 2017 and signed his name in my presence. Before me

7 MEMORANDUM OF WRIT PETITION Under Article 226 of the Constitution In the High Court of Judicature at Madras (Special Original Jurisdiction) W.P. No. of 2017 H. Navas Basha 24/21, Bharathidasan Street Nehru Nagar Velachery Chennai Petitioner vs 1. The Bar Council of India 21, Rouse Avenue Institutional Area New Delhi The Bar Council of Tamil Nadu & Puducherry High Court Campus Chennai Respondents WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION 1.. The address for service of the petitioner is that of his counsel M.Radhakrishnan, Advocate, 134, Thambu Chetty Street, Chennai The address for service on the respondent is as stated above. For the reasons stated in the accompanying affidavit, it is prayed that the Hon ble Court be pleased to issue a WRIT OF CERTIORARI calling for the records in the order bearing R.O.C.No of 2017 dated passed by respondent no.2 and quashing the same, and thus render justice. Dated at Chennai, this the 20 th day of November 2017 Counsel for the petitioner

8 MEMORANDUM OF WRIT MISCELLANEOUS PETITION (Under Article 226 of the Constitution) In the High Court of Judicature at Madras (Special Original Jurisdiction) W.M.P. No. of 2017 in W.P. No. of 2017 H. Navas Basha 24/21, Bharathidasan Street Nehru Nagar Velachery Chennai Petitioner/Petitioner vs 1. The Bar Council of India 21, Rouse Avenue Institutional Area New Delhi The Bar Council of Tamil Nadu & Puducherry High Court Campus Chennai Respondent/Respondent PETITION FOR INTERIM STAY For the reasons stated in the affidavit filed in support of the writ petition, it is prayed that the Hon'ble Court be pleased to grant an interim stay of the order bearing R.O.C.No of 2017 dated passed by respondent no.2, pending disposal of the writ petition, and thus render justice. Dated at Chennai this the 20 th day of November 2017 COUNSEL FOR THE PETITIONER