The Advocates Association ... vs The State Of Karnataka
2021 Latest Caselaw 3430 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 30TH DAY OF SEPTEMBER 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

 THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR

               W.A. No.996 OF 2021 (GM-KSR)
                            IN
              W.P. No.16350 OF 2021 (GM-KSR)

BETWEEN:

THE ADVOCATES ASSOCIATION
BENGALURU (R)
REP. BY ITS PRESIDENT
SRI A P RANGANATH
HAVING ITS OFFICE AT
CITY CIVIL COURT COMPLEX
BENGALURU-560009.
                                              ... APPELLANT
(BY MR. D.R. RAVISHANKAR, ADV.,)

AND:

1.     THE STATE OF KARNATAKA
       REP. BY THE PRINCIPAL SECRETARY
       DEPARTMENT OF CO-OPERATION
       VIKASA SOUDHA, BENGALURU-560001.

2.     THE SPECIAL OFFICER AND
       GOVERNMENT NOMINATED JOINT SECRETARY
       DEPARTMENT OF CO-OPERATIVE
       BENGALURU-560001.

3.     THE DEPUTY COMMISSIONER
       ADMINISTRATOR
                               2



     BENGALURU URBAN DISTRICT
     BENGALURU-560001.

4.   THE DEPUTY SECRETARY-3
     DEPARTMENT OF CO-OPERATIVE
     M.S. BUILDING, BENGALURU-560001.

                                           ... RESPONDENTS
(BY MR.   JEEVAN J. NEERALAGI, AGA A/W
    MR.   ANANT MANDAGI, SR. COUNSEL
    MR.   VIVEK SUBBA REDDY, SR. COUNSEL
    MR.   H.C. SHIVARAMU, ADV.,
    MR.   M.P. AMRUTESH, ADV.,
    MR.   B.M. ARUN, ADV.,)
                              ---

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO, SET ASIDE THE ORDERS OF THE
ASSOCIATION IN TAKING DECISIONS HAVING FINANCIAL
IMPLICATIONS IN SO FAR AS IT RELATES TO THE HOLDING OF
THE FUNCTIONS AS PERMITTED BY THE SINGLE JUDGE IN ITS
ORDERS DATED 20.09.2021 AND ALSO TO SET ASIDE THE
OBSERVATIONS / DIRECTIONS VESTING THE POWERS FROM THE
STAGE OF FIXING THE DATE OF PAYMENT OF ARREARS UPTO THE
STATE OF PUBLICATION OF THE FINAL VOTERS LIST AS VESTED
WITH THE COMMITTEE.

     THIS W.A. COMING ON FOR ORDERS,             THIS   DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                        JUDGMENT

This intra court appeal takes an exception to

order dated 20.09.2021 passed by learned Single

Judge in a writ petition preferred by the appellant

insofar as it pertains to directions contained in para

14 and para 17(H) of the said order. In order to

appreciate the appellant's grievance, relevant facts

need mention, which are stated infra.

2. The appellant is a Society registered

under the provisions of the Societies Registration

Act and is the biggest Association of the Advocates

in South Eastern Asia having approximately 20,000

Advocates as its members. The governing council of

the appellant inter alia consists of the President, the

General Secretary and the Treasurer besides other

elected members. The appellant is governed by the

bye-laws of the Association, which are known as The

Advocates Association Bengaluru Bye-Laws

(hereinafter referred to as 'the Bye-Laws' for short).

Clause 24 of the aforesaid Bye-laws provides that

term of the governing council so elected at a general

election shall cease by the end of three years from

the date of election. The elections to the governing

council and the office bearers of the Association was

held on 23.01.2018. The term of the office bearers

expired on 22.01.2021.

3. However, in view of Standard Operating

Procedure (SOP) issued by this court, the Advocates

were not permitted to appear in person. The

Association, in its meeting held on 09.04.2021

decided to hold the elections on 05.09.2021.

However, it is the case of the appellant that State

Government by an order dated 19.06.2021

postponed the elections of registered Societies /

Associations for next six months from 26.04.2021,

therefore, the elections to the governing council of

the Society could not be held.

4. One Sri.S.P.Shashidhar, Advocate filed a

complaint on 22.06.2021 to the Special Officer and

Government nominated Joint Secretary, Department

of Cooperative. On the basis of the aforesaid

complaint, a show cause notice dated 21.04.2021

was issued and thereafter, a final notice was issued

on 24.06.2021. The appellant submitted a reply to

the same on 03.07.2021. However, by an order

dated 04.09.2021, an Administrator was appointed.

The aforesaid order was challenged by the appellant

in a writ petition viz., W.P.No.16350/2021.

5. Learned Single Judge after hearing both

sides as well as several counsels representing cross

sections of the Association who had filed impleading

applications and in view of broad consensual view to

the effect that elections to the governing council

should be held before long and by an order dated

06.09.2021 stayed the order of appointment of

Administrator and permitted Managing Committee to

continue in office by adhoc arrangement.

6. Thereafter, learned Single Judge on

20.09.2021 after hearing learned counsel for the

parties as well as impleading applicants and after

ascertaining opinions of cross sections of the

members of the bar by soliciting their views, inter

alia held that present managing committee shall

continue as an adhoc arrangement and High Power

Committee constituted by the court shall supervise

the work of holding elections to ensure free and fair

elections. In the aforesaid factual background, this

appeal has been filed.

7. Learned counsel for the appellant at the

outset has confined his challenge to the order dated

20.09.2021 passed by learned Single Judge with

regard to directions contained in para 14 as well as

para 17(H) of the order, on the following grounds:

(i) The appellant is permitted to function as a

limited Adhoc committee and has also been

permitted to organize welcome and farewell

functions of Judges of this Court, therefore, the

office bearers of the Association ought to have been

granted the liberty to take a decision with regard to

expenditure in holding such functions.

(ii) The high Power Committee constituted by

the learned Single Judge could not have been

assigned the duty of preparation of voter's list and

Returning Officers appointed by the Governing

Council should have been entrusted the work of

preparation of voter's list for conducting the

elections.

It is therefore, argued that direction to the

High Power Committee to prepare the voter's list is

contrary to the Bye-Laws of the appellant. It is also

pointed out that expenses for holding the functions

are normally made from the contributions made by

the members of the Association and the office

bearers of the Association will maintain an account

with regard to expenses incurred for holding

functions as permitted by learned Single Judge and

shall get the accounts audited. It is therefore, urged

that the order passed by learned Single Judge be

suitably modified.

8. On the other hand, learned Mr.Anant

Mandgi, learned Senior counsel appearing for

impleading applicants submitted that tenure of the

elected committee has already expired on

22.01.2021 and therefore, the elected committee is

a time expired committee and cannot be permitted

to handle the funds of the members of the

Association. It is also urged that in order to ensure

free and fair election, the process of election has to

be undertaken by the Committee. It is contended

that the office bearers of the committee whose term

has expired cannot insist on preparation and

publication of voter's list and in all fairness, should

have accepted the order passed by the learned

Single Judge. It is submitted that though the term

has expired in the month of January 2021, yet till

today, even draft voter's list was not published.

9. Mr.N.P.Amrutesh, learned counsel who is

one of the member's of the High Power Committee

submitted that the President of the Association has

no authority to file the appeal as he has not been

authorized by the Association to file the appeal. It is

also urged that till today, despite directions by the

learned Single Judge, the charge has not been

handed over to the High Power Committee by the

office bearers of the Association, whose term has

expired.

10. Mr.Vivek Subba Reddy, learned Senior

counsel submitted that there is a possibility of

tampering the Digital Data of the members of the

Association and in order to ensure free and fair

election, the High Power Committee should deal with

the process of election. It is urged that office

bearers of the Association have no right to continue

in office. Learned Senior counsel has also referred to

decision of the learned Single Judge in

'K.N.SUBBAREDDY VS. ADVOCATES

ASSOCIATION REPRESENTED BY SECRETARY

OF THE ASSOCIATION AND OTHERS', ILR 2009

KAR 1697 .

11. Mr.H.C.Shivaramu and Mr.B.M.Arun,

learned counsel for the impleading applicants have

supported the order passed by the learned Single

Judge and have submitted that since, the order

dated 20.09.2021 has been passed by the learned

Single Judge with the consent of the parties,

therefore, this appeal is not maintainable.

Mr.Shashikant, learned counsel has submitted that

he has filed another appeal against the order passed

by the learned Single Judge, which has not been

registered as yet. It is further submitted that the

office bearers of the Association has no right to

continue in the office as they have completed their

tenure.

12. We have considered the submissions

made by learned counsel for the parties and have

perused the record. Before proceeding further, we

may deal with the issue pertaining to maintainability

of the appeal. From perusal of para 14 of the order,

it is evident that the office bearers of the Association

had submitted that the work of preparation of

voter's list should be assigned to the Returning

Officers viz., Sri.K.N.Puttegowda, Senior Advocate,

Sri.A.G.Shivanna and Sri.K.Diwakar, Advocates were

appointed to conduct the elections of the Society in

the meeting of the governing council held on

08.09.2021. However, the aforesaid contention has

been rejected in para 14 of the order dated

20.09.2021. From perusal of para 16 of the order,

the appellant has been permitted to welcome new

Judges and for holding farewell to the outgoing

Judges and are also been allowed to conduct

workshops, lectures, training camps and vaccination

camps, however, the office bearers of the

Association have not been given any authority to

take a decision with regard to expenses in holding

such functions. It is evident that the aforesaid

directions are not based on the consent of the

parties, therefore, the appeal preferred by the

appellant is maintainable.

13. At this stage, it is relevant to take note of

the order dated 06.09.2020 and 20.09.2021,

relevant extract of the order, which read as under:

5. It needs to be stated that regardless of their views in variance with each other, both the sides conducted themselves very tall & reasonable and amiable to each other befitting the dignity of the Bar which is an integral part of Judiciary.

In the above circumstances and consistent with the observed consensus, I make the following interim order:

(i) The impugned order is kept in

abeyance, and if anything is done pursuant thereto, the same shall be retraced forthwith, providing for the present Committee of Management to function as indicated above and subject to the riders stipulated supra.

(ii) The present Managing Committee whose tenure has expired shall continue in the office by way of ad hoc arrangement; it shall not take up any act or project that has financial or policy implication; it shall not organize or associate with any public function/programme without the prior leave of this Court.

(iii) In terms of its submission, the petitioner shall organize the conduct of election at the earliest and in any circumstance within an outer limit of three months and that it shall accomplish all works preparatory to election, on a war footing and further that the plan of action in this regard shall be laid before this Court in writing after serving a copy thereof in advance on the other side and

on the aforementioned advocates who graciously participated in the proceedings of the day; this shall be done on the next date of hearing without fail.

(iv) The gracious submission of both the sides that nobody associated with the petitioner-society shall go for glare either through media or otherwise about its affairs, nor shall they highlight anything about the proceedings of the day and of the circumstances that led to issuance of the impugned order.

13. Views of both the sides on each other's Memo and the opinions of cross sections of the members of the Bar present were also ascertained by the Court by soliciting their views; since the matter touched the institution of judiciary of which the Bar is an inseparable part, wider audience was given; all they permitted this court to do a kind of little mediation, if at all it is; even here, the Bar stood almost in unanimity that a High Power Committee comprising of tall & experienced members

of the Association, be formed for conducting the election peaceably; accordingly, a High Power Committee for Conducting Elections (hereafter High Power Committee ) is agreed to be constituted with the following members as unanimously suggested at the Bar (one of the names i.e., Mr.K.Diwakar suggested by the petitioner's side, being objected to by the other, is left out):

(i) Sri.N.S.Satyanarayana Gupta.

(ii) Sri.G.Chandrashekar.

(iii) Sri.K.N.Puttegowda.

(iv) Sri.A.G.Shivanna.

(v) Sri.Shivareddy.

(vi) Sri.K.N.Phanindra

(vii) Sri.Prashanth Chandra.

This court is of a considered opinion that it is prudent to have one of the above members as the Chairman of the Committee; the absence of women lawyers and of SC/ST members of this Association in the above list being conspicuous, the Committee needs to be

authorized to co-opt one such member from these segments, each in all fairness.

14. At this stage, petitioner's learned counsel Mr.Ravishankar submitted that his client is aggreable to constitute the above members only as the Returning Officers, formation of the committee for accomplishing the task, being not desirable; however, this court does not find any merit in the said submission; how such a course would affect the free & fair election, is not forthcoming, as rightly submitted by Mr.B.M.Arun and Mr.Vivek Reddy; the Committee has to have power to appoint from amongst its members or others, as the Returning Officers, in its discretion; barring dissenting voice of the petitioner's side, there is a broad consensus evolved at the gathering of the learned members of the Bar, which supports this view; added, this matter would be kept pending and if need arises, the aggrieved may seek assistance of the

court for redressal of their grievance; it should be open to the High Power Committee too, to address the grievances, if any.

15. It may be mentioned here that Mr.A.R.Shashi Kumar, a life member of the petitioner-Association aired his concern as to avoidable paper work and disfigurement of public places/properties in the election campaign; Mr.AAG mentioned about the caution to be taken by all the concerned with the election process in view of COVID-19 pandemic and also about the requirement of compliance with the lockdown restrictions or the like, if any; this is a significant matter to be kept in view; the members of the Bar being learned & responsible, will advert to all this.

16. As mentioned above, this court has already permitted the present Managing Committee, though its tenure

has expired, to remain in office only by way of an ad hoc arrangement and nothing beyond that; there has been a long tradition of welcoming the new Judges to this Court and of holding farewell to the outgoing; therefore, consistent with this, the present Managing Committee needs to be permitted to organize such functions; similarly the said Committee has to be allowed to conduct workshop, lectures, training camps, vaccination camps & the like without giving any scope for allegations; petitioner's request for permission for organizing inaugural function of newly built auditorium and library at Vakeelara Bhavana , does not merit consideration at this stage.

       17.     Lastly,          this    court        needs      to
mention        that           Smt.Sheela           Deepak,       a
member             of     the     petitioner-association

passionately aired her grievance as to alleged threat to her life, limb & liberty;

lawyers are to a civil society what soldiers are to the frontiers of the country; threat to lawyers in any form & anywhere, is a threat to the institution of judiciary, cannot be disputed; since Bar is an integral part of the institution, as the sages of law have ever said, the jurisdictional officials have to look into such grievances; cases of the kind are proliferating, is judicially noticeable; this is a cause for concern; the same having been pointed out to learned AAG Mr.Subramanya, he assures of instructing the authorities concerned to be vigilant & responsive; however, the grievance of the lady advocate being personal in nature, does not have relevance to the debate in question; the observations herein made shall not be construed as casting aspersions on any members in whatever capacity associated with the petitioner- Association.

In the above circumstances, I make the following:

ORDER (A) The High Power Committee is hereby constituted comprising of aforementioned persons namely Mr.N.S.Satyanarayana Gupta and six others as its members; Sri.N.S.Satyanarayana Gupta shall be the Chairman of the Committee which shall co-opt one lady advocate and one SC/ST advocate as its members forthwith; the Committee shall as far as possible function with consensus; however, in the case of any difference, it shall abide by the majority view.

(B) The Committee shall at the earliest and in any circumstance on or before the 22nd of December, 2021 conduct the election freely & fairly and with transparency, for constituting a new Managing Committee of the Advocates Association, Bengaluru ; the Committee shall function as if it is "the State Election Commission" qua the petitioner-

Association, and it shall have powers co- extensive with the requirement of

accomplishing the ordained task.

(C) The High Power Committee shall immediately take into its exclusive custody all election related paraphernalia including Digital Data & Smart Card Software from the concerned quarters; the present Managing Committee shall provide to the High Power Committee full co-operation & assistance by deploying adequate staff and necessary funds as are required for the conduct of elections and other related works.

(D) The High Power Committee shall have all the powers for working out all the modalities as are required for conducting the elections on a war-footing and that such modalities shall include but are not limited to fixing the dates for:

(i) the payment of arrears of Membership Fee or the like; (ii) making arrangements for providing Biometric Cards only to the eligible members;

(iii) preparation, updation & publication of

provisional Voters List;

(iv) consideration of objections to provisional Voters List & publication of final Voters List;

(v) conducting of poll, counting of votes and declaration of election results.

(E) It is open to the High Power Committee to take all measures including the installation of CC Camera, mobile videography/photography, watch & ward and vigilance as are required for conducting a free & fair election.

(F) The respondent-State Govt. is directed to deploy police & other personnel on the requisition of High Power Committee for holding elections consistent with requirement and that the deployed personnel shall not be withdrawn or otherwise meddled with, sans the written consent of the Chairman of the Committee

or of his nominee.

(G) The present Managing Committee whose tenure has expired, shall with immediate effect in true spirit keep away from the functioning of the High Power Committee and the conduct of elections; all the staff and employees of the petitioner-Association shall be at the beck & call of the High Power Committee and they shall obey all its instructions as if they are on deputation to the Committee's service; the Committee may take any disciplinary action for disobedience; such action may amongst others, be dismissal from service, too.

(H) The present Managing Committee is permitted to function as a limited ad hoc Committee and it may organize the programmes herein above mentioned subject to the limitations prescribed in the order dated 06.09.2021.

(I) As far as possible, this court shall not

be called to monitor the conduct of elections and to supervise the performance of related activities inasmuch as it is an indoor affair of the Bar Association which enjoys a great reputation and that any judicial intervention during the election process, is eminently undesirable.

14. The learned Single Judge by order dated

06.09.2021 has kept the order of appointment of an

Administrator in abeyance and has permitted the

Managing Committee of the Society to continue in

office by way of Adhoc arrangement. However, it

has been directed that the Managing Committee

shall not take up any act or project that have

financial implication. The aforesaid direction has

been modified in para 16 of the order dated

20.09.2021, which is again reproduced below for the

facility of ready reference:

16. As mentioned above, this court has already permitted the present Managing Committee, though its tenure has expired, to remain in office only by way of an ad hoc arrangement and nothing beyond that; there has been a long tradition of welcoming the new Judges to this Court and of holding farewell to the outgoing; therefore, consistent with this, the present Managing Committee needs to be permitted to organize such functions; similarly the said Committee has to be allowed to conduct workshop, lectures, training camps, vaccination camps & the like without giving any scope for allegations; petitioner's request for permission for organizing inaugural function of newly built auditorium and library at Vakeelara Bhavana , does not merit consideration at this stage.

15. Bearing in mind the statement made on

behalf of learned counsel for the appellant that

expenses for welcome and farewell functions of

Judges are conducted mainly from the contributions

made by the members of the Association and the

fund of the Association is not utilized, we are

inclined to permit that the existing Managing

Committee shall have the liberty to receive

contribution from its members for holding such

functions and to incur expenditure. However, the

Committee shall keep the accounts in respect of

contributions received by it from the members and

the expenses incurred by the Committee for holding

such elections, which shall be audited. The

Committee in addition shall be at liberty to expend

any amount from the funds of the Association with

the concurrence of High Power Committee.

16. Admittedly, the term of the committee has

expired on 22.01.2021, however, on account of

prevalent pandemic, the elections of the managing

committee of the Association could not be held. The

order dated 26.04.2021 and 19.06.2021 issued by

the State Government pertains to postponement of

election of Societies registered under the Karnataka

Cooperative Societies Act, 1959. The office bearers

of the Managing committee of the appellant as well

as learned counsel for the impleading applicants

have agreed that the elections of the Managing

Committee has to be held at the earliest. The

Governing Council in its meeting held on 08.09.2021

has resolved to conduct the elections to the

Association either on 05.12.2021 or 19.12.2021 and

three Returning Officers were appointed to conduct

the elections headed by Sri.K.N.Puttegowda, Senior

Advocate, Sri.A.G.Shivanna and Sri.K.Diwakar,

Advocates. The learned Single Judge in the order

dated 20.09.2021 has recorded that a broad

consensus was evolved at the gathering of the

learned members of the bar which supports the

appointment of a High Power Committee except the

office bearers of the Managing committee of the

appellant. In view of the aforesaid broad consensus,

learned Single Judge has constituted the High Power

Committee, which comprises following Advocates:

(i) Sri.N.S.Satyanarayana Gupta.

(ii) Sri.G.Chandrashekar.

(iii) Sri.K.N.Puttegowda.

(iv) Sri.A.G.Shivanna.

(v) Sri.Shivareddy.

(vi) Sri.K.N.Phanindra, Senior Advocate

(vii) Sri.Prashanth Chandra.

17. It is pertinent to note that two of the

Returning Officers appointed by the Governing

Council of the Committee in its meeting held on

08.09.2021 viz., Mr.K.N.Puttegowda and

Mr.A.G.Shivanna Advocates are members of the

High Power Committee. The aforesaid committee

has been assigned the task of holding free and fair

elections to the Managing Committee of the

Association. The tenure of the office bearers of the

Managing committee of the Association has come to

an end on 22.01.2021. There is no provision in the

Bye-Laws to extend the term of the Managing

Committee of the appellant. Thus, the office bearers

of the Managing Committee of the Association do

not have a legally enforceable right to insist that

Returning Officers are appointed by the Governing

Council of the Association alone have the authority

to prepare the voter's list specially when the

decision to appoint Returning Officers was taken on

08.09.2021 after appointment of the Administrator.

The process of fresh elections could have been

commenced by the elected members of the

managing committee of the Association before

expiry of its term. In the absence of any legal right

and in view of candid submission made by learned

counsel for the appellant that the election should be

held at the earliest, we are not inclined to interfere

with the directions contained in para 17(H) of the

order passed by the learned Single Judge insofar as

it pertains to holding of elections by High Power

Committee. The said order has been passed by

taking into account the broad consensus referred to

by the learned Single Judge and with a view to

ensure free and fair election.

Before parting, this court places on record the

able assistance rendered by learned counsels

appearing in the matter and have conducted

themselves in the manner befitting the dignity of the

bar, which is an integral part of the Association.

To the aforesaid extent, the order passed by

learned Single Judge dated 20.09.2021 is modified.

In the result, the appeal is disposed of in the

manner indicated above.

Sd/-

JUDGE

Sd/-

JUDGE SS