Madhya Pradesh High Court
High Court Advocates Bar Association vs Bar Council Of India New Delhi on 16 February, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WP No.7551 of 2016
(HIGH COURT ADVOCATES BAR ASSOCIATION Vs BAR COUNCIL OF INDIA
NEW DELHI AND OTHERS)
WP No.5193 of /2016
(AMIT PATEL Vs HIGH COURT OF MADHYA PRADESH & OTHERS)
Jabalpur Dated 16.2.2024
Shri Anil Khare - Senior Advocate, Shri Manoj Sharma - Senior
Advocate, Shri Sanjay Agrawal - Senior Advocate assisted by Shri
K.N.Fakhruddin - Advocate, Shri Rajmani Mishra - Advocate, Shri
Abhishek Gulatee - Advocate & Shri Manoj Kumar Rajak - Advocate for
Petitioner/Madhya Pradesh High Court Advocates Bar Association,
Jabalpur in WP No.7551 of 2016.
Shri Udayan Tiwari - Advocate for Respondent No.1/Bar Council of
India in WP No.7551 of 2016.
Shri Vipin Yadav - Advocate for Respondent No.2/State Bar Council
in WP No.7551 of 2016.
Shri Sanjay Verma - Advocate for Respondent No.3/Madhya Pradesh
High Court Bar Association in WP No.7551 of 2016.
Shri Ravindra Gupta - Advocate for Respondent No.4/Democratic
Lawyers Forum in WP No.7551 of 2016.
Shri Satish Verma - Advocate for Petitioner/Amit Patel in WP
No.5193 of 2016.
Shri B.N.Mishra - Advocate for Respondent No.1/High Court of
Madhya Pradesh Through Registrar General, Jabalpur in WP No.5193 of
2016.
Shri Ramakant Awasthi - Advocate for Respondent No.2/Madhya
Pradesh State Bar Council, Jabalpur in WP No.5193 of 2016.
Shri Anil Khare - Senior Advocate, Shri Manoj Sharma - Senior
Advocate, Shri Sanjay Agrawal - Senior Advocate assisted by Shri
K.N.Fakhruddin - Advocate, Shri Rajmani Mishra - Advocate, Shri
Abhishek Gulatee - Advocate & Shri Manoj Kumar Rajak - Advocate for
Respondent No.3/Madhya Pradesh High Court Advocates Bar Association,
Jabalpur in WP No.5193 of 2016.
Shri Sanjay Verma - Advocate for Respondent No.4/Madhya Pradesh
High Court Bar Association, Jabalpur in WP No.5193 of 2016.
____________________________________________________________
1. Shri B.N.Mishra, learned counsel for the Respondent No.1/High
Court of Madhya Pradesh, Through Registrar General, Jabalpur while
continuing his arguments submits that the petitioner has no locus to file this
writ petition as Public Interest Litigation. He submits that besides the locus,
this writ petition is also not maintainable as the Public Interest Litigation as
it suffers from delay and latches.
2. Reliance is placed on the judgment of the Apex Court in S.P.Gupta
versus Union of India & Another 1981 (Supp) SCC 87 wherein reading
Paragraph No.25, it is submitted by Shri B.N.Mishra that "before we part
with this general discussion in regard to the locus standi, there is one point,
we would like to emphasise and it is, that cases may arise where there is
undoubtedly public injury by the act or omission of the State or a public
authority but such act or omission also causes a specific legal injury to an
individual or to a specific class or group of individuals. In such cases, a
member of the public having sufficient interest can certainly maintain an
action challenging the legality of such act or omission, but if the person or
specific class or group of persons, who are primarily injured as a result of
such act or omission, do not wish to claim any relief and accept such act or
omission willingly and without protest, the member of the public, who
complains of a secondary public injury cannot maintain the action, for the
effect of entertaining the action at the instance of such member of the
public would be to foist a relief on the person or specific class or group of
persons primarily injured, which they do not want.
3. Placing reliance on the aforesaid judgment of the Apex Court in
S.P.Gupta versus Union of India & Another (supra), it is pointed out by
Shri B.N.Mishra that the Madhya Pradesh High Court Bar Association has
not opposed formation of the Madhya Pradesh High Court Advocates Bar
Association or the allotment of space to them by Hon'ble the Chief Justice
and, therefore, the petitioner has no locus in the matter.
4. Reliance is placed on the judgment of the Apex court in Rajeev Suri
versus Delhi Development Authority & Others (2022) 11 SCC 1
wherefrom Shri B.N.Mishra has read Paragraph No.550, which reads as
under:-
"550.We may usefully advert to the exposition in Narmada Bachao
Andolan v. Union of India. In paragraph Nos. 230 to 235 of the reported
decision, the Court noted thus:-
"230. Public interest litigation (PIL) was an innovation essentially to
safeguard and protect the human rights of those people who were unable to
protect themselves. With the passage of time PIL jurisdiction has been
ballooning so as to encompass within its ambit subjects such as probity in
public life, granting of largesse in the form of licences, protecting
environment and the like. But the balloon should not be inflated so much
that it bursts. Public interest litigation should not be allowed to degenerate
to becoming publicity interest litigation or private inquisitiveness litigation.
231. While exercising jurisdiction in PIL cases the court has not forsaken
its duty and role as a court of law dispensing justice in accordance with
law. It is only where there has been a failure on the part of any authority in
acting according to law or in non-action or acting in violation of the law
that the court has stepped in. No directions are issued which are in conflict
with any legal provisions. Directions have, in appropriate cases, been given
where the law is silent and inaction would result in violation of the
fundamental rights or other legal provisions.
232. While protecting the rights of the people from being violated in any
manner utmost care has to be taken that the court does not transgress its
jurisdiction. There is, in our constitutional framework a fairly clear
demarcation of powers. The court has come down heavily whenever the
executive has sought to impinge upon the court's jurisdiction.
233. At the same time, in exercise of its enormous power the court should
not be called upon to or undertake governmental duties or functions. The
courts cannot run the Government nor can the administration indulge in
abuse or non-use of power and get away with it. The essence of judicial
review is a constitutional fundamental. The role of the higher judiciary
under the Constitution casts on it a great obligation as the sentinel to defend
the values of the Constitution and the rights of Indians. The courts must,
therefore, act within their judicially permissible limitations to uphold the
rule of law and harness their power in public interest. It is precisely for this
reason that it has been consistently held by this Court that in matters of
policy the court will not interfere. When there is a valid law requiring the
Government to act in a particular manner the court ought not to, without
striking down the law, give any direction which is not in accordance with
law. In other words the court itself is not above the law.
234. In respect of public projects and policies which are initiated by the
Government the courts should not become an approval authority. Normally
such decisions are taken by the Government after due care and
consideration. In a democracy welfare of the people at large, and not
merely of a small section of the society, has to be the concern of a
responsible Government. If a considered policy decision has been taken,
which is not in conflict with any law or is not malafide, it will not be in
public interest to require the court to go into and investigate those areas
which are the function of the executive. For any project which is approved
after due deliberation the court should refrain from being asked to review
the decision just because a petitioner in filing a PIL alleges that such a
decision should not have been taken because an opposite view against the
undertaking of the project, which view may have been considered by the
Government, is possible. When two or more options or views are possible
and after considering them the Government takes a policy 402 decision it is
then not the function of the court to go into the matter afresh and, in a way,
sit in appeal over such a policy decision.
235. What the petitioner wants the Court to do in this case is precisely that.
The facts enumerated hereinabove clearly indicate that the Central
Government had taken a decision to construct the dam as that was the only
solution available to it for providing water to the water-scarce areas. It was
known at that time that people will be displaced and will have to be
rehabilitated. There is no material to enable this Court to come to the
conclusion that the decision was malafide. A hard decision need not
necessarily be a bad decision." (emphasis supplied).
5. Reliance is placed on the judgment of the Apex Court in Kushum
Lata versus Union of India & Others (2006) 6 SCC 180 and reading
Paragraph Nos.6 to 15, it is pointed out by Shri B.N.Mishra that under what
facts and circumstances, a Public Interest Litigation will be maintainable
and at whose instance, a Public Interest Litigation can be said to be
maintainable. Reading Paragraph No.13, he points out that the Public
Interest Litigation is a weapon, which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that
behind the beautiful veil of public interest an ugly private malice, vested
interest and/or publicity seeking is not lurking.
6. Reliance is placed on the judgment of the Apex Court in Union of
India & Another versus G.Ganayutham (1997) 7 SCC 463 to contend
the limits of judicial review on the administrative action. Reading
Paragraph No.12, Shri B.N.Mishra points out that while examining the
reasonableness, the Court has to find out that if the administrator has left
out relevant factors or taken into account irrelevant factors then the
decision of the administrator must have been within the four corners of the
law and not one, which no sensible person could have reasonably arrived
at, having regard to the above principles, and must have been a bonafide
one. The decision could be one of many choices open to the authority but it
was for that authority to decide upon the choice and not for the Court to
substitute its view.
7. Reliance is placed by Shri B.N.Mishra on the judgment of the Apex
Court in Ranjit Thakur versus Union of India (1987) 4 SCC 611
referring to Paragraph No.15 of Union of India & Another versus
G.Ganayutham (supra), where the Apex Court in Paragraph No.25 has
discussed the issue of question of choice and held as under:-
"25. The question of the choice and quantum of punishment is within the
jurisdiction and discretion of the court martial. But the sentence has to suit
the offence and the offender. It should not be vindictive or unduly harsh. It
should not be so disproportionate to the offence as to shock the conscience
and amount in itself to conclusive evidence of bias. The doctrine of
proportionality, as part of the concept of judicial review, would ensure that
even on an aspect which is, otherwise, within the exclusive province of the
court martial, if the decision of the court even as to sentence is an
outrageous defiance of logic then the sentence would not be immune from
correction. Irrationality and perversity are recognised grounds of judicial
review."
8. Shri B.N.Mishra submits that the High Court of Madhya Pradesh has
filed an additional return vide I.A.No.1711/2024 duly supported with an
affidavit of the Registrar General of the High Court of Madhya Pradesh,
Jabalpur wherein it is mentioned in respect to the query raised by this Court
on 24.1.2024 that no such policies, rules or regulations determining the
extent of exercise of authority by Hon'ble the Chief Justice in the matter of
allotment of spaces in the High Court have been framed. Hon'ble the Chief
Justice being the head of the Institution possesses inherent powers to allot
available vacant spaces/premises under his jurisdiction and control for
necessary use in order to save and facilitate smooth and efficient working
of the Justice Delivery System. The scope of judicial review is limited and
reliance is placed on the judgment of the Apex Court in State of NCT of
Delhi & Another versus Sanjeev (2005) 5 SCC 181 wherein in Paragraph
No.15, the Apex Court has observed as under:-
"15. One of the points that falls for determination is the scope for judicial
interference in matters of administrative decisions. Administrative action is
stated to be referable to broad area of Governmental activities in which the
repositories of power may exercise every class of statutory function of
executive, quasi-legislative and quasi-judicial nature. It is trite law that
exercise of power, whether legislative or administrative, will be set aside if
there is manifest error in the exercise of such power or the exercise of the
power is manifestly arbitrary (See State of U.P. and Ors. v. Renusagar
Power Co. and Ors). At one time, the traditional view in England was that
the executive was not answerable where its action was attributable to the
exercise of prerogative power. Professor De Smith in his classical work
"Judicial Review of Administrative Action" 4th Edition at Pages 285-287
states the legal position in his own terse language that the relevant
principles formulated by the Courts may be broadly summarized as
follows. The authority in which discretion is vested can be compelled to
exercise that discretion, but not to exercise it in any particular manner. In
general, discretion must be exercised only by the authority to which it is
committed. That authority must genuinely address itself to the matter
before it; it must not act under the dictates of another body or disable itself
from exercising discretion in each individual case. In the purported exercise
of its discretion, it must not do what it has been forbidden to do, nor must it
do what it has not been authorized to do. It must act in good faith, must
have regard to all relevant considerations and must not be influenced by
irrelevant considerations, must not seek to promote purposes alien to the
letter or to the spirit of the legislation that gives it power to act, and must
not act arbitrarily or capriciously. These several principles can conveniently
be grouped in two main categories: (i) failure to exercise a discretion, and
(ii) excess or abuse of discretionary power. The two classes are not,
however, mutually exclusive. Thus, discretion may be improperly fettered
because irrelevant considerations have been taken into account, and where
an authority hands over its discretion to another body it acts ultra vires.''
9. Reliance is placed on the scope of administrative authority vested in
Hon'ble the Chief Justice of High Court and Hon'ble the Chief Justice of
India vis a vis the Supreme Court as discussed in Shanti Bhushan versus
Supreme Court of India Through Its Registrar & Another (2018) 8
SCC 396 wherein referring to the judgment of the Apex Court in
Campaign For Judicial Accountability & Reforms versus Union of
India & Another (2018) 1 SCC 196, the Apex Court in Paragraph No.25
has observed thus:-
"25. The second stereotype is that being the 'Chief Justice' and senior most
Judge of the Court, he is empowered to exercise 'leadership' on the Court.
In this role, the 'Chief Justice' is expected to be the spokesperson and
representative of the judiciary in its dealings with the Executive,
Government and the Community. For this purpose, the 'Chief Justice' has a
general responsibility to ensure that the Court promotes change and reform
as appropriate. The judicial reforms, which is a continuing process in order
to ensure that there is real access to justice, also becomes the moral
responsibility of the 'Chief Justice'. Such reforms in the administration of
justice are not limited to the judicial aspects (i.e. how the cases need to be
decided, case management and court management, speedy disposal etc.)
but also include reforms on the administrative side of the legal system as
well. Procedural reforms and implementation thereof is an integral part of
the judicial reform. The ultimate purpose is to dispense justice, which is the
highest and noblest virtue. Again, in this role, the 'Chief Justice' gets the
authority and responsibility for the administration of the Court, which gives
him the ultimate authority for determining the distribution of judicial work
load. In Indian context, this power was given statutory recognition by
Section 214(3) of the Government of India Act, 1935 which reads as
under:-
"214 (2) Rules made under this section may fix the minimum number of
judges who are to sit for any purpose, so however that no case shall be
decided by less than three judges:
Provided that, if the Federal Legislature makes such provision as is
mentioned in this chapter for enlarging the appellate jurisdiction of the
court, the rules shall provide for the constitution of a special division of the
court for the purpose of deciding all cases which would have been within
the jurisdiction of the court even if its jurisdiction had not been so enlarged.
(3) Subject to the provisions of any rules of court, the Chief Justice of India
shall determine what judges are to constitute any division of the court and
what judges are to sit for any purpose."
10. Thus, placing reliance on the aforesaid judgments of the Apex Court,
it is submitted by Shri B.N.Mishra, learned counsel for the respondent
No.1/High Court of Madhya Pradesh, through Registrar General, Jabalpur
that this Court cannot sit in a judicial review over the executive decision of
Hon'ble the Chief Justice and, therefore, this writ petition should be
dismissed.
11. Shri Anil Khare, learned Senior Counsel for respondent
No.3/Madhya Pradesh High Court Advocates Bar Association submits that
the averments made in Paragraph No.3.6 of the writ petition are vague. In
Paragraph No.3.7, reference to the judgment of the Apex Court in Supreme
Court Bar Association versus B.D.Kaushik (2011) 13 SCC 74 is also
misplaced inasmuch that judgment deals with 'One Bar One Vote' and does
not deal with the recognition of a Bar Association or allotment of spaces to
a Bar. The issue of recognition is different because recognition authorises a
Bar Association to cater to the welfare measures for its members as may
come out of various schemes of the Bar Council but having an Association
is a different thing and that does not violate any of the rights of the
petitioner.
12. Reliance is place on Division Bench Decision of this Hon'ble High
Court in Sachin Gupta versus Municipal Corporation, Gwalior &
Others 2016 (3) M.P.L.J 622 wherein referring to Paragraph Nos.2 & 12,
Shri Anil Khare points out that in a Public Interest Litigation, the petitioner,
who claims himself to be a public spirited individual interalia seeks a
direction to the respondent No.1 to invite bids for the Ropeway Project
with the lease rent payable at the prevailing rates and also seeks a direction
to the Respondent No.1 not to proceed in furtherance of the agreement, has
no locus inasmuch as in the matter of a contract, which was awarded in
favour of the respondent No.4 after inviting tenders in which he is found to
be highest bidder. Thus, when the contract was awarded in the transparent
manner after following procedure prescribed in law then such agreement,
which was executed on 5.6.2008 could not have been challenged after an
inordinate delay of seven years for which no explanation has been offered.
The principle of delay and latches is applicable in the case of Public
Interest Litigation as well. Reference is made to the judgment of the Apex
Court in Bombay Dyeing & Manufacturing Company Limited versus
Bombay Environmental Action Group (2006) 3 SCC 434.
13. Reliance is placed on Division Bench Judgment of this Hon'ble High
Court in Rajendra Kumar Gupta versus Shiv Raj Singh Chouhan,
Chief Minister of M.P. & Others 2016 (3) M.P.L.J 61 and reading
Paragraph No.12, Shri Anil Khare points out that the Division Bench of this
Hon'ble High Court has held that "it is well settled law that there must be
real and genuine public interest involved in the litigation and not merely an
adventure of knight errant borne out of wishful thinking. It cannot also be
invoked by a person or a body of person to further his or their personal
causes or satisfy his or their personal grudge and enmity. The Courts of
justice should not be allowed to be polluted by unscrupulous litigants by
resorting to the extraordinary jurisdiction".
14. Reliance is placed on the judgment of the Apex Court in
Aleemuddin versus State of Uttar Pradesh & Others (2020) 18 SCC
419 wherein referring to Paragraph No.10, Shri Anil Khare submits that in
the matter of administrative discretion as to where a Tehsil Building should
be constructed, is not a matter for the High Court to determine in the
exercise of its writ jurisdiction under Article 226 of the Constitution of
India. These are essentially administrative matters and a decision has to be
taken by the executive. This is hence an illustration of how a Public Interest
Litigation has been utilised to subserve a personal interest. The High Courts
must remain vigilant to the attempts to misuse PILs to subserve extraneous
and motivated purposes. Such efforts must be dealt with firmly. The high
prerogative writs cannot be utilised for such ends.
15. Relying on the aforesaid judgments, Shri Anil Khare, learned Senior
Counsel for respondent No.3/Madhya Pradesh High Court Advocates Bar
Association submits that the petitioner never applied for membership of the
respondent/Madhya Pradesh High Court Advocates Bar Association and,
therefore, has no locus to question the existence of the said Association or
the spaces allotted to the said Association.
16. Shri Satish Verma, learned counsel for the petitioner submits that
while recording the order sheet dated 24.1.2024, two factual inaccuracies
have crept in, namely, the Relief Clause No.7, which was amended vide
of the said order sheet in the middle in place of Supreme Court Bar
Association versus B.D.Kaushik (supra), the judgment of P.K.Das
Advocates & Others Writ Petition (C) No.8106/2010 C.M.Application
No.2237/2013 & Other Connected Matters Decided on 31.5.2016 should
have been referred to.
17. The aforesaid factual mistakes are rectified with the consent of other
side besides 6 clauses of prayer, which have been noted in the order sheet
dated 24.1.2024. The 7th relief, namely, prayer to quash the impugned
allotment order dated 18.1.2007 and 24.9.2008 be incorporated and instead
of amending the order, is added in this order sheet.
18. Shri Satish Verma, learned counsel for the petitioner submits that the
petitioner is a life member of the Madhya Pradesh High Court Bar
Association. He is a public spirited person. The premises, which is allotted
by Hon'ble the Chief Justice, is a public property and, therefore, it could
not have been allotted without having regard to the principles to be adopted
while allotting a public premises.
19. Reliance is placed on the judgment of the Apex Court in Institute of
Law, Chandigarh & Others versus Neeraj Sharma & Others (2015) 1
SCC 720 and reading Paragraph Nos.15, 16, 17, 18, 19, 20, 21, Shri Satish
Verma, learned counsel for the petitioner submits that in the matter of
public premises, there has to be an objective criteria for allotment and
without following that criteria, the petitioner cannot be said to be not
having any locus to maintain his Public Interest Litigation. He also submits
that as far as the delay is concerned, a petition was filed before the High
Court with regard to 'One Bar One Vote' and when that case was pending
before the High Court, the petitioner came to know about existence of the
Madhya Pradesh High Court Advocates Bar Association and then he filed
the present writ petition. He further submits that the delay will not come in
way of the petitioner because if there is any encroachment on the public
property then it is a continuing wrong and it can be raised at any point of
time. The Madhya Pradesh High Court Advocates Bar Association cannot
raise the plea of delay inasmuch it has reasonably filed its reply and that
too is not a parawise reply but a general reply.
20. Shri Satish Verma, learned counsel for the petitioner supplies two
notes to this Court with regard to the inherent powers of Hon'ble the Chief
Justice and relying on Paragraph No.11 of the judgment of the Apex Court
in H.C.Puttaswamy & Others versus The Hon'ble Chief Justice of
Karnataka High Court, Bangalore & Others 1991 Supp (2) SCC 421,
he submits that Hon'ble the Chief Justice or any other Hon'ble
Administrative Judge is not an absolute Ruler. Nor he is a freewheeler. He
must operate in the clean world of law, not in the neighbourhood of sordid
atmosphere. He has a duty to ensure that in carrying out the administrative
functions, he is actuated by same principles and values as those of the
Court he is serving. He cannot depart from and indeed must remain
committed to the constitutional ethos and traditions of his calling. We need
hardly say that those, who are expected to oversee the conduct of others,
must necessarily maintain a higher standard of ethical and intellectual
rectitude. The public expectations do not seem to be less exacting.
21. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in Mahesh Chandra versus Regional Manager, U.P. Financial
Corporation (1993) 2 SCC 279 to contend that every wide power, the
exercise of which has far-reaching repercussion, has inherent limitation on
it. It should be exercised to effectuate the purpose of the Act. In legislation
enacted for general benefit and common good, the responsibility is far
graver. It demands purposeful approach. The exercise of discretion should
be objective. Test of reasonableness is stricter. The public functionaries
should be duty conscious rather than power charged. Its actions and
decisions, which touch the common man, have to be tested on the
touchstone of fairness and justice.
22. Reliance is placed on the judgment of the Apex Court in High Court
of Judicature for Rajasthan versus Ramesh Chand Paliwal 1998 (3)
SCC 72 wherein referring to Paragraph Nos.38 & 40, Shri Satish Verma
points out that "the judges have been described as "hermits". They have to
live and behave like "hermits" who have no desire or aspiration, having
shed it through penance. Their mission is to supply light and not heat. This
is necessary so that their latent desire to run the High Court Administration
may not sprout before time, at least, in some cases".
23. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in Renu & Others versus District & Sessions Judge, Tis Hazari &
Another (2014) 14 SCC 50 to contend that "it is axiomatic that no
authority is above law and no man is above law. Article 13(2) of the
Constitution provides that no law can be enacted which runs contrary to the
fundamental rights guaranteed under Part III of the Constitution".
24. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in Som Raj & Others versus State of Haryana & Others AIR
1990 SC 1176 to contend that if the discretion is exercised without any
principle or without any rule, it is a situation amounting to the antithesis of
Rule of Law. Discretion means sound discretion guided by law or governed
by known principles of rules, not by whim or fancy or caprice of the
authority.
25. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in State of West Bengal & Others versus Debasish Mukherjee &
Others AIR 2011 SC 3667 wherein it is held that this Court has again dealt
with the provisions of Article 229 of the Constitution and held that the
Chief Justice cannot grant any relief to the employee of the High Court in
an irrational or arbitrary manner unless the Rules provide for such
exceptional relief.
26. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in Lok Prahari versus State of Uttar Pradesh (2018) 6 SCC 1
wherein it is held that the preamble to the Constitution of India embodies,
interalia, the principles of equality and fraternity and it is on the basis of
these principles of equality and fraternity that the Constitution recognizes
only one single class of citizens with one singular voice (vote) in the
democratic process subject to provisions made for backward classes,
women, children, SC/ST, minorities etc. A special class of citizens, subject
to the exception noted above, is abhorrent to the constitutional ethos.
27. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in Vineet Narain & Others versus Union of India (1998) 1 SCC
226 wherein in Paragraph Nos.54 & 55, seven cardinal rules, which are to
be followed, in public life have been highlighted.
28. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in Akhil Bhartiya Upbhokta Congress versus State of Madhya
Pradesh (2011) 5 SCC 29 wherein it is held that the State and/or its
agencies/instrumentalities cannot give largesse to any person according to
the sweet will and whims of the political entities and/or officers of the
State. Every action/decision of the State and/or its
agencies/instrumentalities to give largesse or confer benefit must be
founded on a sound, transparent, discernible and well defined policy, which
shall be made known to the public by publication in the Official Gazette
and other recognised modes of publicity and such policy must be
implemented/executed by adopting a non-discriminatory and non-arbitrary
method irrespective of the class or category of persons proposed to be
benefited by the policy. The distribution of largesse like allotment of land,
grant of quota, permit licence, etc by the State and its
agencies/instrumentalities should always be done in a fair and equitable
manner and the element of favouritism or nepotism shall not influence the
exercise of discretion, if any, conferred upon the particular functionary or
officer of the State.
29. Reliance is placed by Shri Satish Verma on the judgment of the Apex
Court in Sachidanand Pandey & Another versus State of West Bengal
(1987) 2 SCC 295 wherein it is held that the State owned or public owned
property is not to be dealt with at the absolute discretion of the executive.
Certain precepts and principles have to be observed. Public interest is the
paramount consideration. One of the methods of securing the public
interest, when it is considered necessary to dispose of a property, is to sell
the property by public auction or by inviting tenders. Though that is the
ordinary rule, it is not an invariable rule. There may be situations where
there are compelling reasons necessitating departure from the rule but then
the reasons for the departure must be rational and should not be suggestive
of discrimination. Appearance of public justice is as important as doing
justice. Nothing should be done which gives an appearance of bias, jobbery
or nepotism.
30. Reliance is placed by Shri Satish Verma on the judgments of the
Apex Court in Shayara Bano versus Union of India (2017) 9 SCC 1,
S.Seshachalam versus Bar Council of Tamil Nadu (2014) 16 SCC 72,
City Industrial Development Corporation Through Its Managing
Director versus Platinum Entertainment & Others (2015) 1 SCC 558,
Raman Dayaram Shetty versus International Airport Authority &
Others (1979) 3 SCC 489 and Kasturi Lal Lakshmi Reddy versus Sttae
of Jammu & Kashmir (1980) 4 SCC 1.
31. Placing reliance on the aforesaid judgments, it is submitted by Shri
Satish Verma, learned counsel for the petitioner that there cannot be any
discrimination between two classes of Advocates and, therefore, creation of
a class is arbitrary and cannot be given a seal of approval. Hence, prayer is
made to allow the present writ petition by granting the reliefs as prayed for.
32. Shri Satish Verma, learned counsel for the petitioner, at this stage,
places reliance on some photographs which he is directed to be brought on
record to show that the premises is only open to the Members and not to
anybody else but that photographs until & unless brought on record, cannot
be taken note of.
33. Shri Satish Verma, learned counsel for the petitioner continuing from
his yesterdays' arguments submits that the judgment of the Apex Court in
Supreme Court Bar Association versus B.D.Kaushik (supra) says all the
Lawyers should be under one Umbrella. Referring to Paragraph No.18 of
the High Court Office Memorandum dated 19.12.2016 signed by the then
Registrar General of the High Court of Madhya Pradesh, Shri Manohar
Mamtani, he submits that the principle is One Person, One Chamber, One
Court Complex. The OBC Advocates Welfare Association had also applied
for a space before Hon'ble the Chief Justice and if fragmentation of Bar is
allowed to be carried out then several fragments will stand up to claim
spaces, which may cause a problem for the High Court in future.
34. Shri B.N.Mishra, learned counsel for respondent No.1 submits that
the respondent No.3/Madhya Pradesh High Court Advocates Bar
Association is a licencee but as there are no rules for allotment of the
licenced premises, therefore, Hon'ble the Chief Justice in his discretion can
allot places according to his discretion and wisdom.
35. Reliance is placed by Shri B.N.Mishra on the judgment of the Apex
Court in Dattaraj Nathuji Thaware versus State of Maharashtra &
Others (2005) 1 SCC 590 to contend that the petitioner has no right to file
a Public Interest Litigation. Placing reliance on Paragraph No.20 of the said
judgment, he points out that the Apex Court was magnanimous enough not
to impose further cost on the petitioner as it was already imposed by the
High Court while dismissing the writ petition. He also submits that the
aforesaid judgment is on the point that when a Member of the Legal
Fraternity files a writ petition for an oblique motive then that person has no
locus.
36. Shri Anil Khare, learned Senior Counsel submits that allotment is not
malafide and places reliance on Paragraph Nos.49 & 80 of the judgment of
the Apex Court in Supreme Court Bar Association versus B.D.Kaushik
(supra).
37. Shri Sanjay Agrawal, learned Senior Counsel to supplement the
submissions made by Shri Anil Khare, learned Senior Counsel contends
that the Petitioner/Bar Association was registered under the Madhya
Pradesh Society Registrikaran Adhiniyam, 1973. Its Bar Room was
inaugurated on 26.9.2008 by Hon'ble the then Chief Justice. Its Library
was inaugurated on 14.11.2009 by the then Chief Justice of India in
presence of other Supreme Court and High Court Judges. Its Conference
Room was inaugurated on 8.4.2011 by the then Administrative Judge. Its E-
Library was inaugurated on 30.4.2016 by the then Chief Justice. Additional
adjoining space was allotted to the Bar Association by Hon'ble Shri Justice
Hemant Gupta vide order dated 19.7.2017.
38. In support of the aforesaid contention, Shri Sanjay Agrawal, learned
Senior Counsel supplies copy of order dated 19.7.2017, which is taken on
record. The order dated 19.7.2017 says "Hon'ble the Chief Justice is
pleased to allot the Room in the First Floor of the Old Administrative
Block, presently occupied by the Supreme Court Section of the High court
Advocates Bar Association, Jabalpur. He points out that on 11.12.2017, a
new Bar Room was inaugurated by the then Chief Minister of the State of
Madhya Pradesh and the then Chief Justice of the High Court of Madhya
Pradesh in presence of the other Hon'ble Judges and an exhaustive list of
facilities, which are available in the space allotted to the Bar Association,
has been detailed out and lakhs and lakhs of rupees have been spent on
creation of those facilitates and the respondent/Association cannot be
uprooted overnight as they are in existence since 2006.
39. Shri Sanjay Agrawal, learned Senior Counsel submits that there is no
need for sanction of State Bar Council and the Madhya Pradesh High Court
Advocates Bar Association can exist as an Association without recognition
from the State Bar Council. There is no need to subject decisions of
Hon'ble the Chief Justice to the judicial review and, therefore, the decision
of Hon'ble the Chief Justice to allot space cannot be a subject of judicial
review.
40. A list of lectures, which have been organised by the Association from
14.11.2009 to 2.12.2017, has been detailed out by Shri Sanjay Agrawal,
learned Senior Counsel and thereafter it is pointed out by him that the
petitioner/Bar Association is officially invited in all the official functions
recognised by the High Court. They are part of the High Court Rule
Making Committee wherein name of the President of the Madhya Pradesh
High Court Advocates Bar Association, Jabalpur is mentioned at Serial
No.9. Similarly, name of the President of the Madhya Pradesh High Court
Advocates Bar Association, Jabalpur is mentioned in Committee No.33 i.e.
the Apex Committee for Redressal of Grievances of Litigants & Members
of Bar Association as per Scheme notified vide High Court Order No.
A/3278 / II-15-24/77 (Part-II) dated 12-09-2014.
41. Reliance is placed by Shri Sanjay Agrawal, learned Senior Counsel
on Paragraph Nos.28, 49 & 80 of the judgment of the Apex Court in
Supreme Court Bar Association versus B.D.Kaushik (supra). Reliance
is placed on the judgment of the High Court of Madras in Writ Petition
No.4418/2011 (The Gobichettipalayam Association Represented By Its
President K.R.Venkatachalam versus The Bar Council of Tamil Nadu
Represented By Its Secretary, Bar Council Building, High Court
Campus, Chennai-104) Dated 12.6.2012 and the Judgment of the High
Court of Judicature at Madras in Writ Petition No.9752/2015 (Madras
High Court Advocates Association High Court Building Chennai
600104 Represented By Its General Secretary, Arivazahgan versus The
Secretary, Bar Council of Tamil Nadu) Dated 19.6.2015. Reliance is
placed on the judgment of the Apex Court in Supreme Court Bar
Association versus Ministry of Urban Development & Others 2023
LiveLaw (SC) 236 to contend that the matters of allotment of spaces to the
Bar Association should be left best to the administrative decision on
administrative side rather than being dealt under Article 32 of the
Constitution of India. Shri Sanjay Agrawal, learned Senior Counsel
submits that Petitioner Shri Amit Patel had put in only 11 appearances in 8
years from 2016 to 2024 and, therefore, he cannot be said to be a pubic
spirited person entitled to file a Public Interest Litigation.
42. In Writ Petition No.7551/2016 (High Court Advocates Bar
Association, Jabalpur versus Bar Council of India & Others) referring
to Section 22 of the Madhya Pradesh Society Ragistrikaran Adhiniyam,
1973, attention is drawn to Page Nos.10, 11 & 12 of the Rejoinder filed
vide I.A.No.1363/2024 to point out that the writ petition has been filed by a
duly authorised person. The Division Bench Judgment of this Hon'ble High
Court in Writ Appeal No.91/2022 (Swakshtagrahi Sangh versus Union
of India & Others) decided on 15.3.2022 relied upon by the State Bar
Council has no application to the facts and circumstances of the present
case. Section 2(a) of the Adhivakta Kalyan Nidhi Adhiniyam, 1982 deals
with definition of Advocate and the petitioner is entitled to be Advocates
Bar Association without any recognition from the Bar Council of Madhya
Pradesh. Vide Annexure P/12, an amendment application filed in the year
2023, the order of the Bar Council dated 5.2.2018 was challenged and
thereafter the Bar Council has not filed any reply to the amended petition.
The provisions as contained in Rules 4(g), 6.1 & 6.3 of the Bar Council of
India Certificate and Place of Practice (Verification) Rules, 2015 have been
exhaustively read over.
43. Shri Vipin Yadav, learned counsel for the Madhya Pradesh State Bar
Council fairly submits that he does not wish to file reply to the amended
writ petition. Annexure P/12 was added by way of amendment belatedly.
Petitioner has neither assailed nor challenged the reasoning given by the
Bar Council in Annexure P/12, therefore, there is no need to file any reply.
He also submits that the judgment of Gobichettipalayam Association
Represented By Its President K.R.Venkatachalam versus The Bar
Council of Tamil Nadu (supra) cited by the Madhya Pradesh High Court
Advocates Bar Association has no application to the facts and
circumstances of the present case inasmuch as in that case, certain
Members were expelled from the Parent Body and they were not taken
back, which forced them to form another Association while infact that is
not the case here. The Members of the Madhya Pradesh High Court
Advocates Bar Association are either the Members of the Madhya Pradesh
High Court Bar Association or of the District Bar Association, therefore, in
terms of the Bar Council of India Certificate and Place of Practice
(Verification) Rules, 2015, there is no hindrance in casting their vote from
getting the benefit of the Welfare Scheme handedover by the Bar
Association or under the auspices of the Bar Council of Madhya Pradesh.
44. Shri Sanjay Verma, learned counsel/President of the Madhya Pradesh
High Court Bar Association, Jabalpur submits that this writ petition is filed
for taking the benefits of beneficial legislation like Adhivakta Kalyan Nidhi
Adhiniyam, 1982 etc but from the interim relief, it is evident that the writ
petition was filed not for this purpose but in the garb of the provisions,
which were brought into effect by the Bar Council of India Certificate and
Place of Practice (Verification) Rules, 2015 as the Members of the Madhya
Pradesh High Court Advocates Bar Association are getting benefits from
the State Bar Council, either through representation as Member of the High
Court Bar Association or the District Bar Association, thus, aforesaid
ground is not available to claim separate recognition.
45. Fragmentation of Bar is to weaken the Bar Association and the
Successive Chief Justices can play this aspect so as to weaken the unity of
the Bar as has been mentioned in Annexure R/3/3 filed by the Madhya
Pradesh High Court Bar Association alongwith their Reply vide
I.A.No.277/2024. Reading specifically from the representation made by the
then President of the High Court Bar Association, Late Shri Adarsh Muni
Trivedi, Shri Sanjay Verma emphasises on Paragraph No.2, which reads as
under:-
2- ekuuh; mPp U;k;ky; dk ;g er gS fd ,d gh LFkku ij ,d ls vf/kd ckj
,lksfl,'kUl gksus ij dkuwu esa dksbZ jksd ugha gS] ij ;fn ,d LFkku ij ,d ls vf/kd
ckj&,lksfl,'kUl dks ekU;rk nh xbZ rks ^ckj* dh ,drk fo[kf.Mr gks tk;saxh vkSj vf/kd ckj
,lksfl,'kUl U;k; ikfydk dks ckj dh ,drk vkSj ,d:irk dks fo[kf.Mr djus dk volj
nsxhA
46. Reading the aforesaid representation, Shri Sanjay Verma submits that
though there is no bar in creating a parallel Bar Association but for the
same purpose, creation of a parallel Bar Association will be fraught with
several consequences, which cannot be appreciated without having vision
for a better tomorrow.
47. Arguments heard.
48. Reserved for Order.
(Vivek Agarwal) (Avanindra Kumar Singh)
Judge Judge
amit
AMIT
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PRADESH, ou=HIGH COURT OF MADHYA
PRADESH,
2.5.4.20=fb7acc8fa9459a372c91f97c42dcd1f410
fc14ca1f709973d88cd85760a0e0c7,
JAIN
postalCode=482001, st=Madhya Pradesh,
serialNumber=3EBC4D14FC9CDC94F7007F3EC
434B08F461F95C568403DF614DCAF5AD1CC70
99, cn=AMIT JAIN
Date: 2024.02.27 18:16:28 +05'30'
