Hasmukhbhai Kantilal Bhatt vs Bar Council Of Gujarat
2021 Latest Caselaw 16806 Guj

      C/SCA/16247/2021                           ORDER DATED: 26/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16247 of 2021

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                         HASMUKHBHAI KANTILAL BHATT
                                   Versus
                           BAR COUNCIL OF GUJARAT
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Appearance:
MR YATIN OZA WITH MR ASIM PANDYA, SENIOR ADVOCATE WITH
MR.MANAN BHATT(6535) for the Petitioner(s) No. 1
MR PRAKASH JANI, SENIOR ADVOCATE WITH MR SAURABH MEHTA for
the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                  Date : 26/10/2021
                   ORAL ORDER

Mr. Yatin N. Oza, learned advocate with Mr. Asim Pandya, learned Senior Advocate for Mr. Manan Bhatt, learned advocate appearing for the petitioner has submitted that the communication dated 15.9.2021, was issued by the Bar Council of Gujarat, Ahmedabad (hereinafter referred to as 'the Council') on the basis of an application by one Mr. Harshad M. Parmar to stay the general body meeting of the Baroda Bar Association (hereinafter referred to as 'the Association'), scheduled to be held on 16.9.2021.

1.1 It is submitted that the Council has no such power, requiring the Association to stay the conduct of the meeting inasmuch as, the Association is an autonomous body. It is submitted that the Association has submitted its reply on 15.9.2021, bringing it to the notice of the Council that Rule 49(g) of the Bar Association of Gujarat Rules, 2015 (hereinafter referred to as 'the Rules of 2015'), does not confer any power to the Council, empowering it to restrain any Association from holding a general body meeting or extra- ordinary general meeting. It merely provides that whenever there is a dispute relating to election of bar association, the decision of

C/SCA/16247/2021 ORDER DATED: 26/10/2021

Committee appointed by the Chairman of the Council shall be final.

1.2 It is further submitted that disregarding the reply filed by the Association, the Council, has straightaway passed the order dated 20.10.2021, appointing Mr. Kaushik Mahashankar Bhatt as Administrator for carrying out the day to day activities till the completion of forthcoming election of the Association and also directed to handover the charge as an acting President of the Association.

1.3 It is submitted that the order dated 15.9.2021, has been issued in exercise of the powers under Rule 49(g) of the Rules of 2015 which, has been enacted by virtue of provisions of Section 6 (dd) of the Advocates Act, 1961 (hereinafter referred to as 'the Act of 1961'). It is submitted that Section 6(dd) of the Act of 1961 provides for promoting the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of Section 6 and clause

(a) of sub-section (2) of Section 7. It is submitted that clause (a) of sub-section (2) is with respect to giving financial assistance to organize welfare schemes for the indigent, disabled or other advocates. Therefore, limited powers are available with the Council to frame rules, that is, only when the issue is as regards the grant of financial assistance to organize welfare schemes for the indigent, disabled or other advocates. It is submitted that what would fall within the domain of Councils would be, namely, (i) enrollment of the advocates, (ii) discipline of the advocates, and (iii) entrance test and providing for curriculum and it has no such powers to govern and supervise the day to day functioning of the Association. Therefore, the order dated 20.10.2021, could not have been passed by the Council, removing the petitioner as a President of the Association.

        C/SCA/16247/2021                               ORDER DATED: 26/10/2021




1.4      It is submitted that neither are there any powers with the

Council to remove the President of any Bar Association from his/her post nor power to appoint Administrator. The order dated 20.10.2021, passed by the Council, is illegal and without jurisdiction. It is also submitted that the Council, has no authority under any law, empowering it to supervise or control the affairs of any Bar Association, it being an autonomous body and that it would be impermissible for the Council to interject the day to day affairs of the Association. It is submitted that by passing the order dated 20.10.2021, it has completely sabotaged and destroyed the autonomy of the Association.

1.5 In support of such contention, reliance is placed on the 266 th Report of the Law Commission of India. It is submitted that the Commission, has observed in its report that there is total absence of powers in the State Bar Councils over the Bar Associations. It also suggested the changes which would empower the Bar Councils to have some supervisory power to control the Bar Associations.

1.6 While referring to the decision dated 16.9.2021 taken by the Committee, it is submitted that it is not that the decision is of the petitioner in an individual capacity, but was the decision of the Committee taken way back in the month of March, 2020 and thereafter, it was put to vote. While adverting to the aspect of the election, it is submitted that the power of the Council, comes into picture only when the elections are not held. In the present case, the elections are scheduled to take place in the month of December, 2021. Therefore, the resolution could not have been passed by the Council, appointing Mr. Kaushik Mahashankar Bhatt in place of the petitioner.

1.7      Reliance is placed on the judgment decided on 9.1.2018 of the





       C/SCA/16247/2021                                        ORDER DATED: 26/10/2021

High Court of Madhya Pradesh (Jabalpur Bench) in the case of Bar Association Lahar, Dist. Bhind vs. State Bar Council of M.P. rendered in W.P. Nos.750/2017 and 14586/2016. It is submitted that the issue before the Hon'ble Madhya Pradesh High Court was as to 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 whether the State Bar Council has any authority to interfere with the affairs of Bar Associations regarding action taken against their Members for suspension of membership? It has been held that a bare reading of the provisions of the Act, makes it is clear that there is no provision either under the Act or under the Advocates Welfare Fund Act, 1982 to interfere with the elections conducted by the Bar Associations. It is submitted that the contention of the petitioner, is also strengthened by the observations to the effect that the Act of 1982 requires recognition of Bar Association for the purpose of admitting the members of the Bar Association for grant of welfare fund to them. In no uncertain terms, it has been held that there is no power conferred to the Bar Council to have control or to supervise the affairs of a Bar Association.

1.8 Mr. Asim Pandya, learned Senior Advocate appearing for the petitioner, while supplementing the submissions made by Mr. Oza, learned advocate appearing for the petitioner has submitted that the order dated 20.10.2021, has been passed by the Council without giving any opportunity of hearing to the petitioner, attaching stigma. It is submitted that the 21 members Constitution Drafting Committee, comprising of senior advocates, was appointed by the Association which, after necessary deliberation has submitted the draft to the Committee and the said exercise was carried out as per the provisions of the Constitution of the Association. It is submitted that on 7.3.2021, the Executive Committee had passed a resolution,

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resolving to place the amended Constitution before the General Body for its approval, however, owing to the COVID-19 situation, the same could not take place. It is thereafter, that on 17.8.2020, the Executive Committee passed another resolution whereby, the Committee of the Association, has approved the amended Constitution. It is therefore, submitted that the decision has already been taken way back in the month of March, 2020 followed by August, 2020. It is also submitted that after the situation, has returned to normalcy, the Executive Committee has resolved that the general body meeting shall approve the amended Constitution in the meeting which was scheduled to take on 16.9.2021. It is therefore submitted that nothing new has been introduced by the Association and what was already therein, has been taken for the purpose of final decision. It is submitted that, if not the petitioner, let there be a Court Commissioner appointed by this Court for the purpose of putting the resolution through vote.

2. On the other hand, Mr. P.K. Jani, learned Senior Advocate appearing with Mr. Saurabh Mehta, learned advocate for the respondent submitted that the term of the Committee, got expired in the month of December, 2020, however, owing to the pandemic- induced pause and the SOPs, the elections of the Association were not conducted. It is thereafter, that the Council has issued a communication dated 28.12.2020 whereby, the term which got expired, has been extended till March, 2021, however, with a rider that all the members will be acting as incharge members, however, they will not be taking any policy decision. It is therefore, submitted that it was clarified, while extending the term, on 28.12.2020 that the Committee, will not be taking any policy decision till the elections are held. It is submitted that in defiance of communication dated 28.12.2020, the Committee, has scheduled the meeting on 16.9.2021 whereby, the issue is excluding the members, who have

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been appointed in the Council as members. It is submitted that such a major policy decision could not have been taken by the incharge Committee.

2.1 It is submitted that Rule 15 of the Rules of 2015, provides that the office bearers of the Association and Members of the Executive Committee, shall hold the office till the completion of one year/maximum two years from the date of the election, and upon expiry, the administration of the Association will vest in the Committee, which will be constituted amongst the senior members of the Bar Association by Bar, who will hold the election within a stipulated period. It is submitted that the Council, is well within its powers to issue a communication, so also withdraw or amend the same in view of the provisions of Section 21 of the General Clauses Act. It is also submitted that so far as the Rules of 2015 are concerned, there are enough powers available with the Council to issue directions for the purpose of holding of the elections. Hence, no error has been committed by the Council while issuing the communication dated 20.10.2021. It is submitted that as regards the validity of the Rules, the contention does not deserve to be accepted, inasmuch as, there is no challenge to the Rules of 2015.

2.2 It is submitted that apropos the application of Mr. Harshad M. Parmar, the Council has addressed a communication dated 15.9.2021. Disregarding such communication, the petitioner, in highhanded manner, has conducted the meeting on 16.9.2021 and has passed the resolution amending the constitution, which would be strictly impermissible, it being a incharge Committee.

3. Having regard to the submissions made by the learned counsel appearing for the respective parties, issue notice, returnable on 16.11.2021. Mr. Saurabh Mehta, learned advocate

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waives service of notice on behalf of the respondent.

4. Pertinently, the Council, has passed the order dated 15.9.2021 whereby, it has stayed the general body meeting of the Association which was scheduled to take place on 16.9.2021. It further required the incharge Managing Committee to file its explanation as regards the meeting. As is discernible from the order, it appears that the centre to the issue is the meeting which was scheduled to take place on 16.9.2021 and the Council, was of the opinion that it would be impermissible for the incharge Managing Committee to take any policy decision during the extended period inasmuch as, the term of the Managing Committee had already expired on 31.12.2020.

5. Apropos the communication dated 15.9.2021, the Association has filed its reply dated 15.9.2021, inter alia, raising objection as regards the authority of the Council to issue such an order while exercising the powers under Rule 49(g). It has also been pointed out that Rule 49(g), in no way confers any powers upon the Council inasmuch as, it provides that any dispute relating to the election of any of the members of the office bearers of the Association shall be decided by the Committee which may be constituted by the Chairman of the Council. After the reply dated 15.9.2021, the Council, has straightaway passed the order dated 20.10.2021, taking a strong exception to the contents of the letter dated 15.9.2021. The explanation tendered by the Association was not satisfactory and therefore, the Council required the Association to submit its reply within 7 days from the date of the letter. However, while doing so, the Council, has passed an order, discontinuing the petitioner from carrying out any proceedings on the said post till further orders from the Council and appointed Mr. Kaushik Mahashankar Bhatt as Administrator for carrying out the day to day activities till the completion of forthcoming election of the

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Association.

6. Such communication dated 20.10.2021, prima facie, suggest that no opportunity of hearing was extended to the petitioner before discontinuing him. In view of the above, this Court, is of the opinion that the order dated 20.10.2021, is in violation of the principles of natural justice and therefore, it deserves to be stayed and is accordingly stayed insofar as it removes the petitioner from the post. Further, the term of the Committee had undisputedly come to an end in December, 2020 which came to be extended by the Council in its meeting dated 8.11.2020 and 19.12.2020 and communicated vide letter dated 28.12.2020 with a clarification that the Association/Committee will function as incharge Committee and not take any policy decision. Besides, it is nobody's case that such communication was not within the knowledge of the Association. Hence, the petitioner and/or the Committee being an incharge Committee, shall not take any policy decision and more particularly, in furtherance of the resolutions dated 31.8.2021 and 16.9.2021.

7. Direct service is permitted.

(SANGEETA K. VISHEN,J) BINOY B PILLAI