Delhi High Court
Sandeep Sharma vs The Chairman & Ors on 23 July, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: July 23, 2018
+ W.P.(C) 5594/2018, CM No. 21804/2018
SANDEEP SHARMA ..... Petitioner
Through: Mr. Varun Goswami,
Mr. Shashi Mohan, Advs.
versus
THE CHAIRMAN & ORS ..... Respondents
Through: Mr. T. Singhdev, Ms. Manpreet Kaur,
Ms. Amandeep Kaur, Mr. Tarun
Verma, Ms. Puja Sarkar and
Mr. Abhijit, Advs. for R1
Mr. Chetan Sharma, Sr. Adv. with
Mr. Santosh Mishra, President NDBA,
Mr. Neeraj, Hony. Secretary of
NDBA, Mr. S.N. Verma, Adv.,
Mr. Vijay Joshi, Mr. Amit Gupta,
Mr. Sushil Kumar Pandey,
Mr. Ajay Digpaul, Mr. B. Singh,
Mr. Rajesh Kumar, Mr. Dilip Kumar,
Mr. Mayank Sharma and
Ms. Madhuri Dhingra, Advs. for
R4/NDBA
AND
+ W.P.(C) 7318/2018, CM No. 27920/2018
MANISH KUMAR
..... Petitioner
Through: Mr. Varun Goswami,
Mr. Shashi Mohan, Advs.
versus
THE CHAIRMAN, BAR COUNCIL OF DELHI & ORS
..... Respondents
Through: Mr. T. Singhdev, Ms. Manpreet Kaur,
Ms. Amandeep Kaur, Mr. Tarun
Verma, Ms. Puja Sarkar and
Mr. Abhijit, Advs. for R1
Mr. Chetan Sharma, Sr. Adv. with
Mr. Santosh Mishra, President NDBA,
Mr. Neeraj, Hony. Secretary of
NDBA, Mr. S.N. Verma, Adv.,
Mr. Vijay Joshi, Mr. Amit Gupta,
Mr. Sushil Kumar Pandey,
Mr. Ajay Digpaul, Mr. B. Singh,
Mr. Rajesh Kumar, Mr. Dilip Kumar,
Mr. Mayank Sharma and
Ms. Madhuri Dhingra, Advs.
for R4/NDBA
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J (ORAL)
1. By this order I shall decide the pleas of maintainability /
admissibility of the writ petitions as taken by Mr. Chetan Sharma,
learned Senior Counsel appearing for the Secretary, NDBA.
W.P.(C) 5594/2018
2. This is a petition which has been initially filed by the
petitioner with the following prayers:-
"It is, therefore, most respectfully prayed that this
Hon'ble Court may very graciously be please to:
a) direct the respondent No.1 i.e Bar Council of
Delhi to take charge of the affairs of respondent
No.4 and to carry out the elections process of
NDBA, 2018 under its supervision and control;
b) direct the respondent No.5 not to act in any
manner in the capacity of Returning officer of NDBA
election, 2018 and to hand over all the documents,
communications, papers etc to the respondent no.1;
c) direct the respondent No.1 to nominate its two
members who are or had been members of NDBA to
constitute a fresh election committee of NDBA under
the Chairmanship of respondent No.2;
d) direct the respondent No.2 and 3 not to
finalize the list of voters for NDBA elections, 2018
till constitution of fresh Election Committee as
prayed in prayer (c) hereinabove;
e) direct the fresh election committee to issue
necessary directions in terms of para 12 of judgment
dated 18.10.2016 in W.P.(C) 8106/2010;
f) pass such further order and / or direction
which this Hon'ble Court deems fit and proper in the
facts and circumstances of the case and in the
interest of justice."
3. Suffice to state, that on May 24, 2018 Mr. Varun
Goswami, learned counsel appearing for the petitioner has
confined the writ petition to prayer (b). The prayer (b), in
substance is a challenge to the appointment of respondent No.5 as
a Returning Officer of the NDBA Election, 2018.
W.P.(C) 7318/2018
4. This writ petition has been filed with the following
prayers:-
""It is, therefore, most respectfully prayed that this
Hon'ble Court may very graciously be please to:
a) direct the respondent No.1 i.e Bar Council of
Delhi to take charge of the affairs of respondent
No.4 and to carry out the elections process of
NDBA, 2018 under its supervision and control;
b) declare the minutes of the General Body
meeting of Members of NDBA dated 15.05.2018
reflecting respondents shown at serial no. 5 to 15
being appointed as Returning Officer / Additional
Returning Officer as void and illegal;
c) restrain the respondents mentioned at serial
no. 5 to 15 not to act in any manner in the capacity
of Returning officer / Additional Returning Officers
of NDBA election, 2018 and to hand over all the
documents, communications, papers etc to the
respondent no.1;
d) direct the respondent No.1 to nominate its two
members who are or had been members of NDBA to
constitute a fresh election committee of NDBA under
the Chairmanship of respondent No.3/4;
e) direct the respondent No.4 to finalize the list
of voters for NDBA elections, 2018 after re-
constitution of fresh election committee in terms of
prayer D above, after proper scrutiny of declaration
forms and publish the same with complete detail of
members such as address, mobile no., photographs,
email id etc. as has been done by Election
Committee constituted for other Bar Associations;
f) pass such further order and / or direction
which this Hon'ble Court deems fit and proper in the
facts and circumstances of the case and in the
interest of justice."
5. In substance, the challenge in this writ petition is to the
minutes of the General Body Meeting of Members of NDBA
dated May 15, 2018 wherein the respondent Nos.5 to 15 have
been shown to have been appointed as Returning Officer /
Additional Returning Officers; for re-constitution of the Election
Committee; for preparation of voter list after proper scrutiny of
declaration forms by giving complete details of Members such as
address, mobile number, photographs, email ID etc. This petition
has been filed by one Mr. Manish Kumar, Advocate. His
grievance, as noted from the writ petition is, that despite being
enrolled with Bar Council in the year 2004, and whose name
appeared in the tentative voter list has been declared ineligible to
vote. Firstly on the ground his name did not appear in the list of
voter of Bar Council of Delhi. Later, on the removal of this
defect on the ground that he had not filed the AIBE certificate,
which requirement came into existence for the Advocates
graduating in the academic year 2009-2010 and thereafter.
6. Mr. Varun Goswami, learned counsel appearing for the
petitioners has broadly made four submissions; (i) that the present
petitions are maintainable under Article 226 of the Constitution
of India, that too against, NDBA through its Secretary as it is a
settled law in terms of the judgment of this Court in P.K. Dash
(supra), the NDBA's activities have public character; (ii) that the
Election Committee constituted by this Court in P.K. Dash
(supra) could not have while preparing the voter list left to the
NDBA, the process of collecting the declaration forms from the
Members of the NDBA. It is the responsibility of the Election
Committee to the total exclusion of the Executive of NDBA; (iii)
the minutes showing the respondent no.5 as Returning Officer is
illegal as he was not appointed as RO and he could not be so
appointed as number of irregularities were committed during the
last election held in the year 2016 when he was also Returning
Officer; (iv) that the appointment of respondents 6 to 15 (in
W.P.(C) No. 7318/2018) as Additional Returning Officers is
illegal as no such appointment is contemplated in the Byelaws of
the NDBA.
7. Insofar as plea No.1 is concerned, the submission of
Mr. Goswami is that the Division Bench of this Court in P.K.
Dash (Supra) was concerned with the issue of "one bar one
vote" in the elections held for different Bar Associations in Delhi.
According to him, by referring to various paras of the judgment
including Para 36, this Court conclusively held that the activities
of a Bar Association including, in the Court functioning,
management, policy etc. have a predominantly public character
and is amenable to the jurisdiction of this Court under Article 226
of the Constitution of India. He has in his submissions also
referred to the order passed by the Division Bench on October 18,
2016 in CM No. 36262/2016 in the said writ petition, to contend,
in the said order the Division Bench has given directions to the
Bar Association to constitute an Election Committee of three
Members for the purpose of preparing a list of Members eligible
to vote. In other words, the NDBA being a Bar Association, is
also required to follow the directions given and the petitioners
having challenged, the process evolved by the Election
Committee in the preparation of voter list and the minutes of the
meeting of GBM of NDBA and the appointment of Returning
Officer / Additional Returning Officers, the writ petitions are
maintainable under Article 226 of the Constitution of India. He
also referred to the following judgments in W.P.(C) No.
22635/2017 Amol Shrivastava v. Bar Council of India; W.P.(C)
No. 55898/2004 Shiv Kumar Akela v. Registrar Societies Firm
and 144 (2007) DLT 286 Ramesh Dutt v. State Election
Commission in support of his submissions.
8. Insofar as submission No.2 is concerned, Mr. Goswami
submitted that the Election committee constituted in terms of the
orders passed by this Court in P.K. Dash (supra), has acted
contrary to the intent and directions of this Court in the said
judgment. He submitted that it was the respondent No.3 i.e the
District & Sessions Judge who asked the Secretary, NDBA to
give two names of the senior members of the Bar for constitution
of the Election Committee. However, the nomination of the
District & Sessions Judge as the Chairperson of the Election
Committee, the same was neither communicated by the Ld.
District and Sessions Judge nor by the respondent Secretary,
NDBA/Chairperson. The fact of appointment of the Chairperson
of the Election Committee came to the knowledge of the
Members of the Bar only after the Secretary, NDBA started
asking the Members to file the declaration forms for preparation
of voter list. He submitted that the judgment of this Court in P.K.
Dash (supra), the calling of declaration, from the Members,
scrutiny thereafter and preparation of voter list for election of
NBDA was the exclusive responsibility of the Election
Committee under the Chairmanship of a Judicial Officer to the
total exclusion of the current executive of the Secretary, NDBA.
However, the declaration forms were circulated and received by
the Secretary, NDBA and further the last date for filling up the
declaration form was extended at the whims and fancies of the
executive of the NDBA. In this respect, he stated that in the
circular dated March 09, 2018 issued at the behest of Secretary,
NDBA, the last date of submission of declaration form was
March 31, 2018, which was extended from time to time till April
23, 2018. He submitted that some of the forms were received by
the staff of respondent No.2 NDBA whereas certain Members
were directed to drop the declaration form in the drop box kept at
the office of the respondent No.2, which has resulted in arbitrary
destruction of some forms.
9. Mr. Goswami submitted that on May 18, 2018 the
Election Committee has come out with a tentative voter list for
removing defects, the same contained only name and Bar Council
enrolment number of the members making it difficult for the
members particularly contestants to identify the members detail.
Representations were made to the Election Committee for
providing complete details of the members in the voter list which
have not been answered to. According to him, in complete
disregard to the established norms and expectations of the
Members, the Election Committee, once again, came out with
final voter list containing only names and enrolment numbers
making the election vulnerable to bogus voting and rigging. In
substance, it was his submission that the Election Committee
completely dependent upon Secretary, NDBA for scrutinizing the
declaration forms resulting in many Members becoming disentitle
to vote. He stated it is precisely for this reason, a prayer is made
in the writ petition that the Chairperson, Election Committee to
finalize the list of voter of NDBA Elections, 2018 after
reconstitution of fresh Election Committee on the Bar Council of
Delhi nominating two of its Members.
10. His further submission on non-application of mind by the
Election Committee is by referring to minutes of the meeting of
the Election Committee dated February 26, 2018 wherein the
Committee has made a reference to the letter dated April 10,
2017 of the Honorary Secretary, New Delhi Bar Association in
which it was stated that the executive Committee will be
completing its tenure in the month of April, 2018, which
according to him was incorrect / false representation as the
Executive Committee having been elected in the year 2016 had
already completed its tenure in 2017. Unfortunately, the
Committee has taken as a gospel truth, the representation made
by the Secretary, NDBA of its completing the tenure in 2018.
This according to him also depicts the malafide of the Secretary,
NDBA.
11. Insofar as submission No.3 above is concerned, it was the
submission of Mr. Goswami that as per the constitution of
NDBA, the election of Executive Committee has to be conducted
by a Returning Officer, who continues to be the Returning
Officer for a year after his appointment by the General Body. The
tenure of Executive Committee can get extended only for six
months after expiry of one year in case, no election is conducted
during that period. He submitted that the last election of
Executive Committee of NDBA was conducted on May 6, 2016,
when the Respondent No.5 acted as Returning Officer to conduct
the Election of NDBA, 2016, when number of irregularities
including but not limited to bogus voting, rigging, surplus
printing of ballot papers, circulation of ballot papers openly
outside the polling booth, influencing the voter by distribution of
cash and lavish parties etc. took place. Despite being in the
knowledge of all the aforesaid, the respondent No.5 did nothing
to ensure fairness in the election and on the contrary, promoted
the same by his act of omission and commission. He referred to
number of representations made at that time, which according to
Mr. Goswami are self-explanatory. Since the respondent No.5
continued to be the Returning Officer for a period of one year
from the last election held on May 06, 2016, a representation was
made to him by one Vikas Sharma, Advocate to constitute the
Election Committee to conduct the election of NDBA for the
year, 2017 but respondent no.5 chose to remain evasive and
simply washed off his hands by forwarding the said
representation to the President, NDBA vide his letter dated
February 3, 2017. Thereafter, various representations were made
to Secretary, NDBA and learned District and Sessions Judge by
the members of NDBA to constitute election committee and to
call General Body Meeting for appointment of Returning Officer
for conducting election of NDBA, the tenure whereof had already
expired on May 6, 2017. However, they miserably failed and
deliberately violated the directions of this Court in the above
cited judgment for a period of one year even after expiry of
tenure of the executive committee. Moreover, none of the
representations were responded by them and without verifying
the facts from the constitution of NDBA and giving opportunity
to the members to clarify, the Secretary, NDBA and learned
District and Sessions Judge solely believed on false
representation of the Secretary, NDBA that the tenure of
Executive is expiring in April 2018. Finally, respondent no.4 was
nominated by the respondent no.3 as the Chairperson of Election
Committee on January 10, 2018 in terms of aforesaid judgment of
this Court.
12. According to Mr. Goswami, contrary to the intent and
directions of the aforesaid judgment, it was learned District and
Sessions Judge, who asked Secretary, NDBA to give names of
two senior members of the Bar for constitution of Election
Committee. It was further submitted the Secretary, NDBA took
more than a month time to nominate two senior members of the
Bar. The Secretary, NDBA vide his letter dated February 15,
2018 circulated to the members of the Bar that as requested by
respondent No.3, Ld. District and Sessions Judge, they have
nominated Shri Suresh Chandra Sharma and Shri Krishan
Nautiyal as members of the Bar for constitution of Election
Committee. However, as far as the nomination of Chairperson,
Election Committee by respondent No.3 is concerned, the same
was neither communicated by the Secretary, NDBA nor by the
learned District and Sessions Judge till that time. The fact of
appointment of respondent No.4 as the Chairperson of Election
Committee came to the knowledge of members of the Bar only
after the Secretary, NDBA started asking its members to file their
declaration forms for preparation of voter list.
13. It was the submission of the learned counsel for the
petitioner that once again, Secretary, NDBA continued to avoid
calling of General Body Meeting, (in short GBM) for
appointment of Returning Officer (in short RO) to conduct
election. After rigorous efforts of the members vide their
collective letter dated April 26, 2018 signed by about 219
members and addressed to the Acting Hon'ble Chief Justice of
this Court, finally, the Secretary, NDBA was forced to call GBM
on May 15, 2018. However, there was strong apprehension
amongst the members that, Secretary, NDBA will definitely try to
create chaos in the GBM and hence, one more representation
signed by 79 members was made on May 11, 2018 to maintain
harmony and prevent any untoward incident. Finally, the GBM
was called / convened on May 15, 2018 at about 4pm with
arrangement of videography as well, where more than 400
members participated. In the said meeting, it was unanimously
approved that Shri Bhupendra Singh, Advocate, Chamber
No.230, Patiala House Courts, New Delhi shall be the Returning
Officer for conducting election of NDBA, 2018. However,
Secretary, NDBA surrounded by some unscrupulous elements
who were not even the members of NDBA disrupted and stopped
the videography, created ruckus, chaos and manhandling with
members of the Bar and finally, the entire executive committee
left the GBM abruptly at about 4.30 pm. Within few minutes,
thereafter, the Secretary, NDBA came out with a letter
mentioning therein that agenda for amendment in constitution of
NDBA and restoration of members has been adjourned, and to
utter shock and surprise of members, it was informed that Shri S.
C. Chawla, the respondent No.5 herein, has been appointed as
returning officer with 10 others names being respondents no. 6 to
15 as Additional Returning Officers. It is noteworthy, that Mr.
Bhupendra Singh, Advocate, who was unanimously elected as
returning officer in the GBM of NDBA held on May 15, 2018
was shown as one of the Additional Returning Officers. He
further submitted that the constitution of NDBA does not make
any provision for appointment of additional returning officer and
that too by the Executive Committee. Moreover, there was no
discussion about the appointment of any Additional Returning
Officers in the General Body Meeting. It is further submitted,
respondent No.5 herein on the same date at 5.30 pm also issued a
SMS in collusion with Secretary, NDBA thanking all the
members of NDBA fraudulently claiming his appointment as
Returning Officer by GBM. Upon coming to know the aforesaid
arbitrary, highhanded and malafide acts on the part of Secretary,
NDBA, said Shri Bhupendra Singh, Advocate submitted letter to
the President, NDBA on May 16, 2018 thereby resigning from
the post of Additional Returning Officer. Even the members of
NDBA (signed by about 184) have also filed their objections
about the appointment of respondent No.5 as the Returning
Officer. The petitioner believes that the minutes of the meeting of
General Body Meeting dated May 15, 2018 have also been forged
by the Executive Committee of NDBA with malafide intent to
reflect the appointment of respondent nos. 5 to 15. The petitioner
has made many attempts to seek copy of the minutes of GBM
along with copy of unedited videograph from the Secretary,
NDBA. However, the Secretary, NDBA is neither entertaining
the request nor has supplied the same to the petitioner. Since the
minutes of GBM and Video graph is not in custody and
possession of the petitioner, the NDBA be directed to file the
same.
14. Insofar as submission No.4 above is concerned, it is his
submission that the appointment of respondents 6 to 15 is not
contemplated under the Byelaws of the NDBA. Any
appointment, which is not sanctioned by the Byelaws of the
NDBA, is illegal and arbitrary.
15. On the other hand, Mr. Chetan Sharma, learned Senior
Counsel appearing for the Secretary, NDBA submitted that the
present petitions filed by the petitioners are primarily against the
NDBA and as such are not maintainable. According to him, the
judgment of P.K. Dash (supra), on which reliance has been
placed by Mr. Goswami is not applicable in the given facts more
so in view of the relief sought by the petitioners. According to
him, in P.K. Dash (supra), the Division Bench of this Court was
concerned with one important issue of "one bar one vote"
concerning all the Bar Associations in Delhi, whereas in these
petitions, the reliefs are primarily sought against the NDBA.
According to him, the judgment in P.K. Dash (supra) concerns
the Advocates as a Class rather than a single Advocate as is the
case herein. Mr. Sharma has taken me through various
paragraphs of the judgment in support of his contention. He
seeks the dismissal of the writ petitions on this ground only.
16. That apart, it is his submission, insofar as W.P.(C) No.
7318/2018 is concerned, the cause of action for the petitioner to
file the petition is the exclusion of his name from the voter list.
He concedes to the fact that the exclusion of his name from the
voter list by the Election Committee was an inadvertent error,
which has since been rectified by the Election Committee.
According to him, as the very substratum for which the petitioner
has filed the petition goes, this petition needs to be dismissed as
infructuous. He also stated, the petitioner Manish Kumar has not
prayed for the relief of inclusion of his name in the list
purposefully knowing well such an action has been taken by the
Election Committee and has claimed reliefs which are more in
the nature of reliefs sought in a PIL. He also submitted, this
petition has been filed only to overcome the statement made by
the learned counsel for the petitioner in W.P.(C) No. 5594/2018
on May 24, 2018 giving up similar prayers and confining that
writ petition to prayer (b).
17. That apart, Mr. Sharma has drawn my attention to various
averments made in the writ petitions including those related to
the minutes of the General Body Meeting held on May 15, 2018
alleging that the same have been forged and also the allegation
that it was Bhupendra Singh, Advocate who was elected by the
GBM as Returning Officer and not the respondent No.5 S.C.
Chawla, to contend that they being disputed questions of fact
cannot be gone into in a writ petition. The petitioners must be
relegated to civil court. According to Mr. Sharma as against 187
Members, who submitted representations only, Sandeep Sharma /
Manish Kumar have approached this Court shows the petitions
are motivated, at the behest of few.
18. Mr. Sharma also submitted, the ill motive of the
petitioners to file these petitions is also clear from the serious
allegations made against the Chairperson of the Election
Committee, which shows lack of regard and propriety towards a
high judicial officer. Such averments borders contempt, which
shall disentitle the petitioners, the reliefs as sought for.
19. Insofar as the allegations against respondent No.5 are
concerned, Mr. Sharma denies the same. According to him,
respondent No. 5 is a Senior Member of the Bar with a long
standing and was the right person to be nominated as the
Returning Officer. He stated, except making bald allegations in
representations, persons aggrieved against the alleged conduct of
respondent No.5 have not cared to seek any remedy, by knocking
the doors of the Court challenging his action / inaction as a
Returning Officer in the elections held in 2016. Further he stated
the relief sought now challenging his appointment as Returning
Officer for ensuing election is premature as the respondent No.5
has not done anything till date, which necessitated allegations of
bias against him.
20. On the appointment of additional Returning Officers, it is
the submission of Mr. Sharma, by conceding that there is no
stipulation in the Byelaws of the NDBA contemplating such
appointments, such appointments were made in the past for
assisting the Returning Officer who alone cannot look after all
the logistics necessary for conducting the election. He stated that
Additional Returning Officers, now appointed shall only assist
the Returning Officer in conducting the election and shall not
take any decision which the Returning Officer is empowered
under the Bye-laws in relation to Election. He clarifies they shall
assist the Returning Officer in the smooth conduct of the
Election. He also justify their appointments as of persons of long
standing at the Bar.
21. He also stated that the preparation of the voter list by the
Election Committee is not in violation of the dicta of P.K. Dash
(supra). According to him, the direction of this Court is that the
Election Committee shall compile the names of the Members of
the Bar for voting purpose. On the aspect that the Secretary,
NDBA has intentionally delayed the holding of the elections by
exceeding its term beyond the period of one year, Mr. Sharma has
stated that in the past also the GBM has extended the tenure of
the Executive. He also stated, if it is the case of the petitioners
that the tenure had expired in May, 2017, why did the petitions
have been filed only in the month of July, 2018, which surely
suggest the same are as an afterthought. In the end, Mr. Sharma
seeks the dismissal of the writ petition.
22. Having heard the learned counsel for the parties, insofar
as the objection of maintainability of the petitions is concerned,
Mr. Goswami had relied upon the judgment of the Division
Bench of this Court in P.K.Dash (supra), which according to him
covers the issue in favour of the petitioners. The primary
submission of Mr. Chetan Sharma on the non applicability of the
judgment of this Court in P.K.Dash (supra) is that this Court in
the said case was dealing with an important issue of "one bar one
vote", which concerns all the Bar Associations in Delhi whereas
in the petitions in hand, which have been filed by two individual
members with reliefs primarily directed against the NDBA
challenging the minutes of the meeting of the General Body of
the NDBA dated May 15, 2018 wherein decision has been taken
for appointment of Returning Officer / Additional Returning
Officers on various grounds. In other words, it is his submission,
the issue raised is an internal issue of the Bar Association and as
such not amenable to the jurisdiction of the Court under Article
226 of the Constitution of India. Any interpretation in favour of
the petitioners would result in spate of petitions against the
Association under Article 226 of the Constitution of India. I am
afraid such submissions of Mr. Sharma are not sustainable in
view of clear pronouncement by this Court in P.K.Dash (supra).
No doubt, the issue with which the Court was concerned was
"one bar one vote" during election of all the Bar Associations in
Delhi but the Court, after noting the position of the Advocates in
the Courts in India and the importance of their role in judicial
decision making and the role discharged by them in Court
administration and functioning, which includes Court procedure
framed after consultation with the Bar Associations; important
policy and administrative decision with regard to allotment of
chambers; allotment of commercial spaces / common spaces
earmarked for parking lots; rules for designation of a Senior
Advocate, has clearly come to a conclusion that the activities of a
Bar Association have a predominantly public character. In this
regard, I reproduce para 36 of the judgment as under:-
"36. Given this position of Advocates in Courts in
India, and the importance of their role in judicial
decision making, 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
Associations- like the respondents, apart from the
statutory bodies such as Bar Councils, 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 (all meant for the use of the AIR
1957 SC 250 2000 (7) SCC 264 WP(C)
Nos.8106/2010, 6851/2012, 7549/2012 & 2689/2014
Page 29 litigant public and members of the Bar)
earmarking of parking lots, policies and rules for
designation of senior counsel under the Advocates
Act, are taken, more often than not, with the
consultation and inputs from these Bar Associations,
in view of their representative nature. Any dispute
within such association invariably has repercussions
in court functioning. Conflicts with members of the
public, interface with the local administration and
police authorities routinely - for security of court,
court precincts, chambers, etc. need active
participation by Bar Associations. Often, individual
grievances of members of the Bar in court premises
require intervention and deft handling on the part
these Associations, in the absence of which Court
proceedings would be disrupted. Above all, elections
of Bar Associations quite often lead to large-scale
requests for adjournments, and litigants have to pay
the price. Intervention through court policies
requiring discipline in canvassing for votes and
what is permissible in the form of leaflets and
pamphlets, use of speakers, etc, by the Bar
Associations, if left unregulated would also seriously
undermine court functioning. These show that Bar
Associations' activities have a pre- dominantly
public character, and can, in many instances, affect
court functioning. As a result, it is held that the
nature of relief sought in these proceedings is
intrinsically connected with public functioning of the
court and affect them. Consequently the present
proceedings are maintainable under Article 226 of
the Constitution of India."
23. The Court having held that the Bar Association's
activities have predominantly a public character, merely because
in the cases in hand, this Court is concerned with only one Bar
Association being NDBA and the decision taken in its GBM, it
cannot be said that the dicta of the Court in the said judgment is
not applicable. Once, the Court has determined the activities of a
Bar Association have public character, the reliefs, which have
been sought by the petitioners even though with regard to the
minutes of the meeting of the GBM relatable to the appointment
of Returning Officer / Additional Returning Officers, the said
reliefs shall also be maintainable in a petition under Article 226
of the Constitution of India. That apart, Mr. Goswami is right in
contending that the issue of maintainability of a petition can also
be put to rest in view of the order passed by the Division Bench
in CM No. 36262/2016 in P.K. Dash (supra), wherein the Court
had in fact given directions to the Bar Associations for
constituting Election Committee of three Members for preparing
the list of Members eligible to vote. Further the challenge in
W.P.(C) 7318/2018 is also with regard to the voter list prepared
by the Election Committee pursuant to the directions of this
Court in P.K. Dash (Supra). So, the objection of Mr. Chetan
Sharma on the maintainability of the writ petitions, needs to be
rejected.
24. Before I come to the second submission made by Mr.
Goswami, it is necessary to deal with the submission made by
Mr. Chetan Sharma that the writ petition being W.P.(C)
7318/2018 has become infructuous as the cause of action, for
which the petitioner has filed the petition that his name does not
find mention in the list of Members eligible to vote has been
granted, as it has been decided by the Election Committee to
allow Mr. Manish Kumar to vote. This submission of
Mr. Sharma is appealing on a first blush, but I find Mr. Manish
Kumar even though not sought any prayer with regard to
rectification of the error crept in, in the voter list but has made
other prayers. The prayers as sought for have already been
reproduced above. Mr. Sharma may be right in contending, the
present petition has been filed only to overcome the statement
made on May 24, 2018 in W.P.(C) No. 5594/2018 wherein the
petitioner had confined the said writ petition to prayer (b), which
relates to appointment of respondent No.5 as the Returning
Officer. That can't be a ground to reject the W.P.(C) 7318/2018
as the petitioner herein being a Member of the NDBA had
represented to the Chairperson, Election Committee vide his
representation dated May 29, 2018 with regard to the manner in
which the voter list has been prepared as the same is incomplete
without giving details of the Members such as address,
photograph, contact details, email ID etc. That apart, Sandeep
Sharma, the petitioner in W.P.(C) 5594/2018 is amongst the
members of Bar Association who had submitted representation
dated May 17, 2018, stating that Mr. Bhupender Singh was
elected as Returning Officer. So on both the counts, the cause of
action being existing, the petitioners are within their right to file
the petitions. Having said that, it is to be seen whether in the
facts such reliefs can be considered and granted. To answer the
same, it is necessary to reproduce the directions given by the
Court in P.K. Dash (supra) in CM No. 36262/2016 on October
18, 2016, as under:-
"13. The following directions shall be added by way
of modifications:
(a)(i) For every election the Bar Association shall
constitute an Election Committee of three members.
This Committee shall be formed three months before
the end of the tenure of the office bearer of the Bar
Association. The Committee shall comprise of two
advocates with not less than 20 years' standing, who
would not contest in the forthcoming elections,
chaired by a Judicial Officer not below the rank of
Additional District Judge of five years' standing
nominated by the concerned District Judge.
(a)(ii) Such Election Committee would be
responsible for the task of verifying the declarations
and preparing the list of members eligible to vote
having regard to the directions in para 52(a) above.
Such list shall be prepared and displayed for
objections after which the final list of voters shall be
prepared at least four weeks before the date of
voting.
(a) (iii) The Chairman of the Election Committee,
i.e the concerned judicial officer shall ensure the
preservation of the records relevant to verify the
declarations. Such records, including the
declarations given by the members, the final list of
voters and the final list of candidates with their
declarations shall be kept in the custody of the
concerned District Judge and available for scrutiny.
The District Judge shall in turn ensure that such
documents are digitized and kept in safe custody."
25. From the above, it is clear that a three Member Election
Committee constituted by the Bar Association would be
responsible for the task of verifying the declaration in preparing
the list of Members eligible to vote. The directions in 52(a) of the
judgment in P.K. Dash (supra) reads as under:-
"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 cast her or his vote and/or contest for any
post either as member of the executive or of an office
Bearer at the election of any other Bar Association.
Every member before casting his vote shall in the
prescribed form furnish a „Declaration ‟that she/he
has not voted in the immediately preceding election
to any other Bar Associations and is not voting in
any election of the Supreme Court Bar Association
or any other Bar Association. 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.
XXXXXX XXXXXX XXXXXX"
26. There is nothing in the orders to suggest that the
declaration need to be called in the manner suggested by the
petitioner in W.P.(C)7318/2018. The apprehension of the
petitioner that if the voter list is not prepared in the manner
suggested by them, then bogus voting, rigging and other
irregularities shall be committed, is without any basis and also
premature without the conduct of the Election. That further, I
have been informed that the declaration was sought in terms of
form approved by the Election Committee which requires a
member to give information with regard to his Bar Council
enrollment number, his NDBA membership number, e-mail,
Residential address, Chamber / Office address etc, in terms of the
following format.
NEW DELHI BAR ASSOCIATION ELECTIONS - 2018
DECLARATION FORM
1. Name
2. Father's name
3. Age (D.O.B)
4. Residential Address
5. Chamber / Office
Address
6. Bar Council D/ /
enrollment No.
7. NDBA Membership
No.
8. AIBE Details Passed/Pending/Result
awaited
(if applicable)
(for those members Passed
& Enrolled with BCD after
2009-2010)
Details of Dues Cheques
Deposited by the No...................dated.........
Cheques of self / .......drawn on.........Bank
Spouse/Blood Branch
Relations
11 E-mail
12 Are your Name is in BCD Voter's List
the Voter List of No............
BCD elections-2018
If not state the
reason........................
.................................
.................................
.................................
The apprehension of the petitioner is also unfounded on the
ground that this court in P.K. Dash (supra) has given directions
to the Chairperson of the Election Committee to ensure
preservation of the records, relevant to verification of the
declarations including the declarations given by the Members, the
final list of voters and final list of candidates with their
declaration by keeping it in the custody of the concerned learned
District Judge and available for scrutiny. In fact, a direction has
been given to digitize the documents and to keep it in safe
custody. When such safeguards have been directed, the plea /
apprehension of the petitioners is unfounded. Even the plea of
Mr. Goswami that taking declaration from members, scrutiny
thereof and preparation of voter list for election of NDBA was
the exclusive responsibility of the Election Committee is
concerned, the directions of the Court in P.K. Dash (Supra) are
clear. It appears, even the petitioners have not raised any
objection with regard to the NDBA seeking declarations from the
individual members. In fact, on a specific query, I am informed
that Manish Kumar had submitted the form by dropping it in the
drop Box. So having acquiesce himself in the situation / process
of framing the voter list, the plea is unsustainable. I also note
from the documents placed before the Court during submissions,
that, the Election Committee has, also in the process of
verification sought information from the Bar Council of Delhi
with regard to some Members. A point in reference is the letter
dated May 19, 2018, received by the Chairperson of the
Committee from the Bar Council of Delhi. Moreover, the voter
list cannot be interfered at the behest of one person.
27. At this stage, it is necessary to observe that serious
allegations have been made against the Chairperson of the
Election Committee. During the course of his submissions,
Mr. Goswami has stated that the petitioner does not doubt the
capability and integrity of the Chairperson and Members of the
Committee. If that be so, the allegations made in the petition
surely suggest that they have been made only for the purpose of
making it. Such a conduct is not called for when the petitioners
are Advocates. The Chairperson of the Election Committee and
the two Members have only discharged their responsibility as
mandated by this Court in P.K. Dash (supra) and bestowed on
them by the Ld. District and Sessions Judge and the Bar
Association.
28. Insofar as the submission of Mr. Goswami regarding the
appointment of respondent no.5 as the Returning Officer is
concerned, his submission centered around the manner in which
the elections were conducted in the year 2016 when also he was
the Returning Officer. He had referred to various representations
made after the election held in the year 2016. Suffice to state, the
said representations are dated May 08, 2016 and May 09, 2016,
that too by Advocates Mr. Virendra Singh Maan and Mr.
Narendra Kumar Sharma. No doubt, allegations have been made
with regard to the discrepancies noted in the conduct of the
election but the said allegations remained in the realm of
allegations without being substantiated in a Court of Law. Even
otherwise, the plea of Mr. Sharma that the respondent No.5 has
been appointed as a Returning Officer for the election which is
yet to take place and as such the allegations of bias are premature
is appealing. Further, this Court is of the view, after the
judgment of this Court propounding the concept of "one bar one
vote" and also directing preparation of the voter list by a
Committee headed by a Senior Judicial Officer in P.K. Dash
(supra), the situation has changed and is not akin to the one
existed in the year 2016 when the last election took place. The
preparation of voter list, surely would ensure, holding of elections
in a fair and proper manner. Any irregularity during the conduct
of elections, would give a cause of action to the petitioners to
agitate the same in accordance with law. So, the challenge
regarding appointment of respondent No.5, is without any merit
and the same is rejected.
29. Insofar as the challenge of the petitioner to the
appointment of Additional Returning Officers is concerned, there
is no dispute that there is no stipulation in the byelaws of the
NDBA for such appointments but the plea of Mr. Sharma that
even in the past, i.e in the years 2010, 2012, 2014, 2016
Additional Returning Officers have been appointed to assist the
Returning Officer is required to be taken note of. He also stated,
Additional Returning Officers are only to assist the Returning
Officer in the conduct of the election and that they shall not
discharge any of the functions, of a Returning Officer under the
byelaws including (i) to fix the dates of nomination withdrawal
and elections in consultation with the President; (ii) to reject the
nomination filed by a candidate if it not in order; (iii) to declare
the result of the elections. Taking the statement of Mr. Sharma on
record and making it clear that Additional Returning Officers
would only assist the Returning Officer by carrying out the duties
as assigned to them for the smooth conduct of the election, I am
not inclined to interfere with their appointment.
30. I do not see any merit in the petitions. The same are
dismissed. No costs.
CM No. 21804/2018 in W.P.(C) 5594/2018 (for interim relief)
CM No. 27920/2018 in W.P.(C) 7318/2018 (for stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
JULY 23, 2018/ak
