Tripura High Court
Sri Prashanta Kumar Pal vs B.D. Koushik on 19 July, 2022
Page 1 of 25
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
WP(C) No. 485 of 2022
1. Sri Prashanta Kumar Pal, S/O Late Pijush Kanti Pal, R/O Joynagar,
Agartala, West Tripura, Pin- 799001.
2. Sri Jayanta Majumdar, S/O Sri M. K. Majumdar, R/O. Opposite
West Gate near Colonel Chowmuhani, Agartala, West Tripura, Pin-
799001.
3. Ms. Rajashree Purkayastha, D/O Smti Rina Bhattacharjee and Sri
Biprajit Purkayastha, R/O- Ramnagar Road No.4, West Tripura.
..........Petitioner(s)
Versus
[***as per order of the Hon'ble Court dated 05.07.2022, respondents No.5, 6, 7, 8, 9,
10 (a to g) and 12 are deleted as the respondents.]
1. Bar Council of India, Represented through its Secretary, having
office at 21, Rouse Avenue International Area, Near Bal Bhawan,
New Delhi- 110002.
2. Bar Council of Tripura, Represented through its Secretary, having
office at Tripura High Court Complex, Lichubagan, Agartala, West
Tripura, Pin- 799006.
3. Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh and
Sikkim, Represented through its Secretary, having office at Gauhati
High Court Building, 2nd Floor, (Old Guwahati), Assam- 781001.
4. Tripura High court Bar Association, Represented through its
Secretary, having office at Tripura High Court Complex,
Lichubagan, Agartala, West Tripura, Pin- 799006.
11. Sri Siddhartha Shankar Dey, Ld. Senior Advocate, Notices to
Respondent Nos. 5 to 11 by served through Tripura High Court Bar
Association, having office at Tripura High Court Complex,
Lichubagan, Agartala, West Tripura, Pin- 799006.
..........Respondent(s)
B_E_F_O_R_E
HON'BLE MR. JUSTICE T. AMARNATH GOUD
For Petitioner(s) : Mr. Somik Deb, Sr. Advocate.
Mr. S. Bhattacharjee, Advocate.
For Respondent(s) : S. M. Chakraborty, Sr. Advocate.
Mr. D. Bhattacharjee, G.A.
Mr. S. Lodh, Advocate.
Mr. P. Saha, Advocate.
Mrs. P. Chakraborty, Advocate
Date of hearing : 12.07.2022
Date of delivery of
judgment and order : 19.07.2022
Whether fit for reporting : YES
JUDGMENT & ORDER
Heard Mr. Somik Deb, learned senior counsel assisted by Mr.
S. Bhattacharjee, learned counsel appearing for the petitioner. Also heard
Mr. S. M. Chakraborty, learned senior counsel assisted by Mrs. P.
Chakraborty and Mr. D. Bhattacharjee, learned G.A. & Mr. S. Lodh,
learned counsel appearing for the respondents.
[2] This present writ petition has been filed under Article-226 of
the Constitution of India for directing the respondents to transmit the
record, relevant to the subject matter of the writ petition for quashing the
resolution dated 20.05.2022 passed by the respondent No.4 also quashing
the decision of the respondent No.4 to finalize the voter list keeping the
name of the respondent No.11 and thereupon forwarding of the same to the
respondent No.2 for approval. The petitioner also prayed to delete the
name of the respondent No.11 from the resolved voter list and refraining
the respondents No. 2 and 4 from acting in any manner in furtherance of
the resolution dated 20.05.2022, forwarding the approved voter list by the
respondent No.4 to the respondent No.2 for publication of the final voter
list.
[3] The brief facts of the present are that on 10.03.2022, the
respondent No.2 i.e. the Bar Council of Tripura had sent one
supplementary draft of voter list to the Bar Association i.e. the respondent
No.4 incorporating the name of the respondent No.11 at Sl. No.1 along
with another name. Therefore, accordingly the respondent No.4 had
published the draft voter list. From bare perusal of the draft voter list, it
becomes apparent that the name of the respondent No.11 is not enrolled
with the Bar Council of Tripura, which is a prima facie condition for being
a "Member" of the Bar Association with voting right. Faced with such
situation, on 04.04.2022, the petitioners had raised a written objection
before the respondent No.4 against such inclusion of name. pursuant to
such objection being raised, the Bar Association has hold its meeting, the
Executive Body of the Tripura High Court Bar Association by resolution
dated 20.05.2022 had resolved to keep the name of the respondent No.11
in the final voter list and has also sent the same to the respondent No.2 on
30.05.2022 for approval and publication of final voter list. Hence, this
petition.
[4] Mr. Somik Deb, learned senior counsel assisted by Mr. S.
Bhattacharjee, learned counsel appearing for the petitioners has submitted
that the cause of action of this petition has arisen from the publication of
the draft voter list of the Tripura High Court Bar Association for the year
2022 by the respondent No.4. In the month of February, 2022 the
respondent No.4 had sought the draft voter list from the Bar Council of
Tripura for the purpose of conducting election of the Bar Association for
the year 2022. On 10.03.2022, the respondent No.2 i.e. the Bar Council of
Tripura had sent one supplementary draft voter list to the Bar Association
i.e. the respondent No.4 incorporating the name of the respondent No.11 at
Sl. No.1 along with another name and subsequently, published the draft
voter list.
[5] He has contended that the respondent No.11 is not enrolled
with the Bar Council of Tripura, which is a prima facie condition for being
a "Member" of the Bar Association with voting right. Thereafter, on
04.04.2022 the petitioners had raised a written objection before the
respondent No.4 against such illegalities. Later on, on 28.04.2022, the
respondent No.2 resolved the dispute and confirmed the respondent No.4
that the respondent No.11 is not enrolled with the Bar Council of Tripura.
[6] He has further submitted that subsequently, the Executive
Body of the Tripura High Court Bar Association by resolution dated
20.05.2022, had resolved to keep the name of the respondent No.11 in the
final voter list and sent the same to the respondent No.2 on 30.05.2022 for
approval and publication of the final voter list. Pursuant to this, some of
the lawyers had submitted one application for requesting views of
respondent No.11 in connection with the said objection, but, such prayer
had been turned down by the Executive Body by resolution dated
20.05.2022.
[7] Learned senior counsel appearing for the petitioner has
averred that Clause-II (i) of the Constitution of the Bar Association under
the Chapter „Membership‟ clearly mandates "Every Advocate who has
been enrolled as an advocate under the Bar Council to which the State of
Tripura falls and practicing at Agartala shall be entitled and eligible to be a
member of this Association on payment of admission fee subject to the
condition as provided hereunder.
"Clause-II (i) says "every advocate who does not practice in the High
Court but intends to become a member of this Association may be enrolled
as a non-resident member of this Association on payment of prescribed
fee."
[8] In view of the above Clauses, Mr. Deb, learned senior counsel
has contended that the clauses clearly stipulates that the prima facie
condition for getting the status of „Member‟ of this Association is to be
enrolled under the concerned State Bar Council which is, as on date, the
Bar Council of Tripura. The membership chapter is followed by the
chapter „Rights of the Member‟ where in Clause-3 lays down that every
member except those who are non-resident Members shall have the right to
participate and address in the general meeting of the Association and also
to exercise his voting right and contest in the election for any post; this
inter alia means that three rights i) right of active participation in the
general meeting ii) right to vote in the bar election and iii) right to contest
in the bar election, has been reserved for only Members, thereby excluding
non resident members.
[9] Even the proviso to Clause-3 gives a limited right of giving
advice to non-resident members by way of writing to the President for the
welfare of the Association and its members. He has drawn attention of this
Court in Membership Chapter and Rights of the Member Chapters and a
harmonious construction of both these two chapters clearly makes out that
to qualify for the status of voting Member of this Association, an advocate
has to be enrolled with the Bar Council of Tripura as a pre-condition; in
absence of which he/she cannot be treated as a member of this association
with voting rights. From the enrollment of the respondent No.11 it is
apparent that neither he is enrolled with the Bar Council of Tripura nor he
has transferred his enrollment to the Bar Council of Tripura from the Bar
Council of Assam.
[10] He has further pointed out that prior to establishment of
independent High Court in the State of Tripura i.e. the Tripura High Court
in the year 2013, all the advocates who were the members of this Bar
Association having voting rights, had been enrolled with the Bar Council
of Assam, Nagaland, Meghalaya, Manipur, Arunachal Pradesh, Mizoram
and Tripura and after constitution of the High Court of Tripura, the
enrollment of all the members of the Bar Association had been transferred
to the Bar Council of Tirpura and any advocates, who has been the then
existing member of the Bar Association with voting right at the time of
Constitution of Bar Council of Tripura, could not even exercise his/her
voting right till his/her enrolment has been transferred to the Bar Council
of Tripura.
[11] Mr. Deb, learned senior counsel has further argued that the
reply given by the Bar Council of Tripura, it is astonishing to note that
though the respondent No.11 is not a member of the Bar Council of
Tripura, yet he had expressed his option, before the Bar Council of
Tripura, to exercise his vote in the Bar Association. As has been laid down
by the Bar Council of India, any member of any Bar Association shall
communicate this option of vote before the concerned Bar Council through
the concerned Bar Association of which he/she is the member and the
same rule has been followed in case of all advocates enrolled with the Bar
Council of Tripura.
[12] The respondent No.11 is not enrolled with the Bar Council of
Tripura and as such, he is not a member of the Bar Council of Tripura. The
respondent No.11 by virtue of his post of Advocate General i.e. the post of
Advocate General ex-officio is member of the Bar Council of Tripura.
These two capacities ex-officio capacity of any post and individual
capacity are completely different in the eye of law having altogether
different legal bearing and implications. Accordingly, the respondent
No.11 cannot be a member of this Association and his name cannot be
included in the final voter list.
[13] He has placed his reliance upon the Acts and Rules, which
show that there are also legal obligations in incorporating the name of the
respondent No.11 as voting member of the Bar Association. The
respondents have infringed upon the legal, constitutional and fundamental
right of the petitioners and as such violated Articles-14, 19 and 21 of the
Constitution of India.
[14] Mr. Deb, learned senior counsel appearing for the petitioner
has argued on the point of membership and submitted that according to the
Constitution of the High Court Bar Association "Every advocate who has
been enrolled as an advocate under the Bar Council to which the State of
Tripura falls and practicing at Agartala shall be entitled and eligible to be a
member of this Association on payment of admission fee subject however,
to the conditions as provided hereunder. Every advocate who does not
practice in the High Court but intends to become a Member of this
Association may be enrolled as a non-resident member of this Association
on payment of prescribed fees. Thus, the respondent No.11 cannot be
treated as the member of the Bar Council of Tripura. High Court Bar
Association gave him membership but he is not a member of High Court
Bar Association.
[15] Mr. Deb, learned senior counsel has further argued on the
point of right to vote and has submitted that the conditions subject to
which an advocate may be entitled to vote at an election to the State Bar
Council including the qualifications or disqualifications of voters, and the
manner in which Section-49 of the Advocates Act, 1961 speaks may be
quoted as under:
"49. General power of the Bar Council of India to make rules. The Bar
Council of India may make rules for discharging its functions under this
Act, and, in particular, such rules may prescribe--
(a) the conditions subject to which an advocate may be entitled to vote at
an election to the State Bar Council including the qualifications or
disqualifications of voters, and the manner in which an electoral roll of
voters may be prepared and revised by a State Bar Council;
(ab) qualifications for membership of a Bar Council and the
disqualifications for such membership;
(ac) the time within which and the manner in which effect may be given to
the proviso to sub-section (2) of section (3);
(ad) the manner in which the name of any advocate may be prevented
from being entered in more than one State roll;
(ae) the manner in which the seniority among advocates may be
determined; 3[(af) the minimum qualifications required for admission to a
course of degree in law in any recognized University;]
(ag) the class or category of persons entitled to be enrolled as advocates;
(ah) the conditions subject to which an advocate shall have the right to
practise and the circumstances under which a person shall be deemed to
practise as an advocate in a court;"
35. Punishment of advocates for misconduct.--
(1) Where on receipt of a complaint or otherwise a State Bar Council has
reason to believe that any advocate on its roll has been guilty of
professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee.
CHAPTER-III
(Conditions for right to practice)
(Rules under Section 49 (1) (ah) of the Act)
1. Every advocate shall be under an obligation to see that his name
appears on the roll of the State Council within whose jurisdiction he
ordinarily practices.
PROVIDED that if an advocate does not apply for transfer of his
name to the roll of the State Bar Council within whose jurisdiction he is
ordinarily practising within six months of the start of such practice,
it shall be deemed that he is guilty of professional misconduct within
the meaning of Section 35 of the Advocates Act."
[16] Learned counsel appearing for the respondent No.2 in their
counter has submitted that the resolution dated 20.05.2022 passed in
Executive Committee meeting of the Tripura High Court Bar Association,
the respondent No.4 along with prayers against the said respondent No.4
not act upon the said resolution dated 20.05.2022. Admittedly, the matter
relates to domestic private rights and liabilities arising within the said
respondent No.4 which is governed by its own constitution. According to
them, the respondent No.4 is not legal person as has already been Tripura
High Court Bar Association since 30.01.2012 is governed by the tenants of
the Constitution of the High Court Bar Association.
[17] He has further submitted that as per Bar Council of Tripura, it
has been ascertained that the respondent No.11 was enrolled as an
advocate under the Bar Council of Assam, Nagaland and Meghalaya,
Manipur, Tripura, Mizoram & Arunachal Pradesh vide enrollment No.147
of 1985 on 16.08.1985. For all intent and purposes, the said Bar Council at
that relevant point of time the Bar Council to which the State of Tripura
falls, as is required under the Membership requirements stipulated under
the Membership eligibility of the High Court Bar Association Constitution.
[18] The membership conferred upon the respondent No.11 by the
respondent No.4 is that of full membership vide serial No.441 dated
30.01.2012, as per records of the respondent No.4 itself. The respondent
No.11 being not a "non-resident member", as per the Constitution of High
Court Bar Association, the resolution adopted by the Executive Committee
of the Tripura High Court Bar Association cannot be faulted with at any
date. He has further submitted that this petition is also not an authority or
instrumentality covered with the meaning of Article-12 of Constitution of
India. No writ under Article-226 lies against the said Tripura High Court
Bar Association.
[19] Regarding maintainability of the present petition he has
contended that neither any of the Constitutional or any other legal rights
guaranteed to the petitioner as may be enforceable under law has been
shown to have been violated giving rise to any cause of action with the
ambit of Article-226 of Constitution of India. Hence, the writ petition
being absolutely frivolous and abuse of the equitable remedy Forum of this
Court and liable to be dismissed.
[20] Learned counsel appearing for the respondent No.4 has
submitted that the respondent No.11 has been admitted as a member of
respondent No.4 sometime on or about 12.08.2012. Gauhati High Court
was established under the North East Areas re-organization Act, 1971
having its jurisdiction over all the States of Assam, Nagaland, Meghalaya,
Manipur and Tripura having its principal seat at Guwahati known as
Gauhati High Court. Subsequently, the jurisdiction of GHC stood extended
to the States of Mizoram and Arunachal Pradesh. With the establishment
of the High Court of Tripura and consequently with the constitution of
respondent No.2, the jurisdiction of respondent No.2 extends to the State
of Tripura and all the advocates practicing within the jurisdiction of High
Court of Tripura are enrolled as member of respondent No.2.
[21] The respondent No.2 had been practicing not within the
jurisdiction of the High Court of Tripura at the time when he was enrolled
as a member of respondent No.4 and earlier than the constitution of the
respondent No.2, the respondent No.4 was within the jurisdiction of
Gauhati Bar Council. However, any person who was not practicing within
the jurisdiction of the High Court of Tripura could however get his name
transferred to become a member under the respondent No.2 in accordance
with the rules of the respondent No.1.
[22] The respondent No.2 held its election in 2019 and final
voters‟ list of the members enrolled as a voter under the respondent No.2
was published on 15.01.2018. The name of the respondent No.11 does not
find place in the said Final Voters‟ list as forwarded by the respondent
No.2. The said voters list published on 15.01.2018 has two segments one
final voters‟ list of senior advocates and the other as voters‟ list of
advocates.
[23] In support of his contention, the counsel for the respondent
No.4 has drawn attention of this Court to a communication made by the
respondent No.1 to all the Secretaries of all State Bar Councils under its
notification No. BCI:D4399/2015 (council/writ) dated 21.09.2015 to the
following facts:
BAR COUNCIL OF INDIA
(Statutory Body Constituted under the Advocates Act, 1961)
21, Rouse Avenue Institutional Area, New Delhi-110002
BCI:D4399/2015 21.09.2015
To,
The Secretaries
All the States Bar Council
Sub: Forwarding of resolution No.169/2015 of BCI in regard to One Bar
one Vote.
Sri,
Bar Council of India at its meeting held on 25.07.2015, under its item
No.256/2015 discussed and deliberated on the issue of one bar one vote
and resolved and approved vide resolution No.196/205 on the rule of one
bar one vote as it will be good for institution and associations in terms of
C.A. No. 3401/2003 Supreme Court Bar Association vs. B.D. Kaushik,
passed by Hon'ble Supreme Court resolution No.169/2015 is given below-
Resolution No.169/2015
"The council has discussed and deliberated on the issue of one bar one
vote once again. The matter is sub-judiced before the Hon'ble Delhhi
High Court on the basis of law laid down by Hon'ble Apex Court in the
case of SCBA Vs. B.D. Kaushik, the Bar Council of India also approves
the rule of one bar one vote as it will be good for the health of the
institution and the association. Let a copy of this resolution be issued by
issued to all the Bar Associations of the country without delay."
I am also sending herewith a copy of the judgment of the C.A. No.
3401/2003 Supreme Court Bar Association Vs. B.D. Kaushik, passed by
Hon'ble Supreme Court for necessary compliance. Therefore, you are
requested to place forwarded to all the associations for its compliance and
do the needful.
Thanking you.
Sd/ Yours sincerely.
Nalin Raj Chturvedi Sd/
Assistant Secretary (Ashok Kumar Pandey)
Enclo: As above Joint Secretary.
Typed by :NLV"
[24] In compliance with the communication dated 21.09.2015,
Final Voters‟ list 2018 of Tripura High Court Bar Association, Agartala
was published on 03.05.2018 which also included the names of all the
senior advocates as well as advocates. The name of the respondent No.11
also does not find place in the said final voters‟ list 2018 published by
respondent No.2 neither did the respondent No.11 lay any claim to
exercise his vote right in the said election held in 2019.
[25] He has further submitted that the respondent No.2 under its
notification dated 08.03.2022 addressed to the respondent No.4 sent a draft
voters list 2022 of Tripura High Court Bar Association for necessary
correction/corrections, if any for publishing the final voters‟ list by the
respondent No.2 for the ensuing election of the respondent No.4.
Thereafter, another supplementary voters‟ list of the respondent No.4
which for the first time included the name of the respondent No.11.
[26] The said supplementary voters‟ list dated 10.03.2022 is
followed by another supplementary draft voters‟ list under notification
dated 08.04.2022 enclosing some more names for correction if any for
publishing the final voters‟ list by the respondent No.2 for the ensuing
election of the High Court Bar Association and receipt of the
communication dated 08.04.2022, the respondent No.4 took a resolution
on 27.04.2022.
[27] The respondents No.2 published the final voters‟ list of
Tripura High Court Bar Association both the senior advocates and
advocates under notification dated 02.06.2022 wherein the name of the
respondent No.11 appears at Sl. No.15 of the list of senior advocates was
engaged as voter of the respondent No.4. He has further averred that earlier
than the communication dated 16.03.2022, none of the voters‟ list either
draft or final either the respondent No.2 and/or the respondent No.4, the
name of the respondent No.11 does not find place. It is apposite to mention
therein that each of the final voters‟ list published by the respondent No.4
was preceded by publication of draft voters‟ list inviting the objections for
inclusion of name in the voter‟s list to which at no stage, the respondent
No.11 either laid any objection and/or claim for inclusion.
[28] The respondent No.11 in his affidavit-in-opposition has raised
a preliminary specific question of maintainability of the present petition.
He has stated that the writ petition does not demonstrate violation of any
enforceable legal right of the petitioners so as to give rise to any cause of
action for invoking writ jurisdiction of this Court.
[29] The crux of the dispute is that regarding the validity of the
voters‟ list of respondent No.4 vis a vis the inclusion of the respondent
No.11 as a voter therein. Neither the respondent No.4 nor any of its
authority including its executive members etc., are creature of any statue or
instrumentality of the State discharging any statutory function so as to be
amenable to writ jurisdiction of this Court. Furthermore, the respondent
No.4 against whom main relief has been sought for is not even a de jure
person.
[30] It has been further submitted that writ Court cannot be the
forum of adjudication of the dispute between members and the office
bearers in connection with internal election. It is submitted that Bar
Association is nothing but a club or society for getting an appropriate
accommodation to sit together, to exchange their view to maintain
solidarity, to read, to learn from the seniors etc. Neither the Advocates Act,
nor any rule made by the Bar Council for any purpose far less to speak
about the internal election. It is further submitted that Bar Association is
not discharging any of the public duties, and/or no financial assistance is
given by the State. As such, no writ can be issued against the respondent
No.4.
[31] He has been further contended that the membership of the
respondent No.4 Association and voters‟ right of such members are
regulated by the provisions of the Constitution of the Bar Association. The
respondent has been conferred full membership of the respondent No.4
Association as is apparent on the face of the record. Admittedly, the
respondent was conferred with the membership on 30.01.2012 and his
name appears against Sl. No.441 in the membership register. As an
advocate as per the Bar Council regulations under the Bar Council of
Assam, Nagaland, Meghalaya, Arnuchal Pradesh, Mizoram & Tripura vide
enrollment No.147 of 1985 on 16.08.1985. Hence, his enrollment shallbe
reckoned from 16.08.1985.
[32] The said Bar Council for all intent and purposes was the Bar
Council for the State of Tripura at that particular period of time. In
addition to this, since his appointment as the Advocate General; Tripura,
the charge which assumed on and from 04.01.2021 and has been practicing
continuously at Agartala and more specifically in the High Court of
Tripura. He is not a voter of any other Bar Association either within or
outside the State of Tripura. Hence, they inclusion of the name of the
respondent No.11 by the Executive Committee meeting held on
20.05.2022 is a valid piece of resolution conferring due right of voting as a
member of the Tripura High Court Bar Association.
[33] He has submitted that the petitioners have failed to
demonstrate how their rights, guaranteed under Articles-14, 19 & 21 of the
Constitution of India, have been infringed, and hence, the petitioners have
no locus standi to present this petition. The respondents No.1, 2, 3 and 12
is no way connected with grievance of the petitioners and no relief was
sought for against them and hence, they cannot be impleaded as
respondents. The respondent No.4 cannot be come under the purview of
writ jurisdiction.
[34] The petitioners have misconstrued the provisions of
Constitution of High Court Bar Association. First in the Bar Council of
Assam, Nagaland, Mnipur, Meghalaya, Arunachal Pradesh, Mizoram &
Tripura vide enrollment No.147 and thereafter, practiced in the Gauhati
High Court, Principal Seat as well as its order Benches including Agartala
Bench of Gauhati High Court and appeared frequently in Agartala Bench
of Gauhati High Court. On 30.01.2012 membership was taken from the
respondent No.4 and since then membership subscription has regularly
been paid and at present the subscriptions are being cleared upto
December, 2022.
[35] It has further been contended that on 31.01.2012, Bar Council
of Tripura was not constituted and Tripura was under the Bar Council of
Assam, Nagaland, Manipur, Meghalaya, Arunachal Pradesh, Mizoram &
Tripura and hence, the membership is/was a valid one. There is no
provision in the Constitution of High Court Bar Association to the effect
that if new Bar Council is established, members should have transferred
his/her enrollment and/or there is no provision that for establishing of new
Bar Council, his/her membership would be ceased or cancelled or he/she
would become a non-residential member.
[36] After establishment of Bar Council of Tripura, neither the
respondent No.4 nor respondent No.2 took any resolution to the effect that
if any member of Bar Association has not transferred his Enrollment to Bar
Association of Tripura, his membership would be ceased or he cannot cast
vote. Admittedly, the respondent No.11 is a member of the Association
and he has not been terminated. Since, the enrolment as an advocate used
to practice in High Court regularly and at present holding the post of
Advocate General of Tripura. for the aforesaid reason, respondent No.11
is a valid member of respondent No.4 and he has right to participate in the
general meeting and cast vote and to contest in the election of Executive
Committee of respondent No.4 and thus, the objection raised by the
petitioners has no legal impediment.
[37] The petitioners have not placed any such
Circular/notification/memorandum whereby Bar Council of India
promulgated that if any advocate is not enrolled in the State Bar Council,
he cannot give option or cast vote in any Bar Association within the
jurisdiction of that State Bar Council. After the judgment of the Hon‟ble
Apex Court in Supreme Court Bar Association v. B. D. Kaushik with
regard to the „one bar on vote‟, the Bar Council of India vide its resolution
dated 25.07.2015 took the following resolution:
"The Council has discussed and deliberated on the issue of one bar one
vote once again. The matter is sub-judiced before the Hob'ble Apex Court
in the case of SCBA V. B.D. Koushik, the Bar Council of India also
approves the rule of one Bar one Vote as it will be good for the health of
the institution and the associations. Let a copy of this resolution be issued
to all the Bar Associations of the country without delay."
[38] The Bar Council of Tripura after the judgment of the Apex
Court in its meeting dated 02.10.2016 with regard to One Bar One Vote
took the following resolution:
Agenda No.4:
It is resolved that Bar Council of Tripura has published a draft voter list.
Now in terms of the Hon'ble Supreme Court decision dated 26.09.2011 in
case No.3401 of 2003, all the Bar Associations of Tripura is implement
the One Bar One Vote. All individual members as regards One Bar One
Vote. The exercise may be completed by 30th November, 2016."
[39] One perusal of the above noted two resolutions in connection
with One Bar One Vote, it is found that neither Bar Council of India nor
Bar Council of Tripura took any decision to the effect that for casting vote
or for giving option to cast vote he/she ought to have enrolled in the State
Bar Council, i.e. Bar Council of Tripura. Thus, the petitioners with an
oblique motive made a wrong statement.
[40] Even though the name of the respondent No.11 has been
enrolled in Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh
& Sikkim, but his name is not figured in any voter list of any Bar
Association except Tripura High Court Bar Association including Gauhati
High Court Bar Association. After joining as Advocate General of Tripura,
he has submitted option before the Bar Council of Tripura to cast vote in
the Tripura High Court Bar Association.
[41] Regarding the maintainability of the writ petition, this Court
had gone to the issue of maintainability of the writ petition against the
High Court Bar Association when a special circumstance compelled the
Court to look into the matter in a writ petition. I find that everywhere the
role of the Advocates was taken into consideration by the Division Bench
as if the Bar Association is the only controlling body of the Advocates like
Bar Council. In other words, the measures of the Bar Council in toto have
been discussed taking the name of the Bar Association giving complete go-
by to the Advocates Act, 1961. Therefore, when the subject matter of
dispute in Shiv Kumar Akela (supra) was between a petitioner and the
Registrar, Societies, Firms and Chits and others and when the question of
maintainability of the writ petition against the Bar Association arose
incidentally and when on concession on a special circumstance the order
was passed but not on contest, this Court is of the view that the ratio of the
judgment is treated to be obiter dicta but not ratio decidendi to hold the
High Court Bar Association as a statutory body to attract the writ
jurisdiction of this Court under Article-226 of the Constitution.
[42] For the purpose of reference, it may safely be said, as
discussed in the case of Udit Chandra v. State of Uttar Pradesh and
Others, reported in 2012 STPL, 5066 Allahabad, wherein the Court has
held thus:
"The submission of the petitioner is totally misconceived in view of the
recent Constitution Bench judgment of the Supreme Court reported in
2010 (7) SCC 202 [K. Krishna Murthy (Dr.) and others Vs. Union of India
and another], whereunder it has been held that right to vote has been held
to be a statutory right and not a fundamental right and the same position
has been consistently upheld in several decisions. It was further held that
while the exercise of electoral franchise is an essential component of a
liberal democracy, it is a well-settled principle in Indian Law, that the
right to vote and contest elections does not have the status of fundamental
rights. Instead, they are in the nature of legal rights which can be
controlled through legislative means. It was further held that right to vote
is not an inherent right and it cannot be claimed in an abstract sense.
Furthermore, the Representation of the People Act, 1951 gives effect to
the constitutional guidance on the eligibility of persons to contest
elections. This includes grounds that render persons ineligible from
contesting elections such as that of a person not being a citizen of India, a
person being of unsound mind, insolvency and the holding of an "office
of profit" under the executive among others. It will suffice to say that
there is no inherent right to contest elections since there are explicit
legislative controls over the same. In 1992 (4) SCC 80 (Mohan Lal
Tripathi Vs. District Magistrate, Rai Bareilly and others) the Supreme
Court has held that democracy is a concept, a political philosophy, an
ideal practiced by many nations culturally advanced and politically
mature by resorting to governance by representatives of the people elected
directly or indirectly. But electing representatives to govern is neither a
''fundamental right' nor a ''common law right' but a special right created
by the statutes, or a ''political right' or ''privilege' and not a ''natural',
''absolute' or ''vested right'. ''Concepts familiar to common law and
equity must remain strangers to election law unless statutorily embodied.'
Right to remove an elected representative, too, must stem out of the statute
as ''in the absence of a constitutional restriction it is within the power of a
legislature to enact a law for the recall of officers'. Its existence or validity
can be decided on the provision of the Act and not, as a matter of policy."
From the plain reading of the aforesaid judgment, it is crystal clear that
the right of the petitioner to cast vote or contest election of the Bar
Association is neither a fundamental right nor a constitutional right like
the representation of the People Act, 1951 having constitutional guidance.
The right of the petitioner to cast vote or contest election is based on Rules
of the Bar Association. For the purpose of reference, High Court Bar
Association Election Rules, 2014 may be quoted hereinunder:
"*****
xiii. Voter list means the list of the members of the HBA eligible for
casting the vote in the election of the association.
3. Preparation of voter list: The Executive committee of HBA shall
complete the preparation of voter list at least 30 clear days prior to
election and display it in the notice board inviting objection, if any, within
7 (seven) days from such display in the notice board and prepare the final
voter list within 5(five) days thereafter.
*******"
[43] Moreover, the writ Court cannot be the forum for adjudication
of the dispute between members and office bearers in connection with
internal election. A Bar Association cannot be equated with the Bar
Council, which is a statutory body under the Advocates Act, 1961. Such
statutory body itself is both i.e. the licensing authority and the disciplinary
authority in connection with the Advocates, who are discharging their
duties towards the Court of law. In case of necessity the Court can call
upon the Bar Council to take action against an errant Advocate for not
properly discharging his functions towards the Court of law. Bar
Association is nothing but a club or society for getting an appropriate
accommodation to sit together, to exchange their views, to maintain
solidarity, to read, to learn from the seniors, etc., and on the basis of the
request made by that association, the Courts are providing
accommodation/s to them for their convenience. Neither the Advocates
Act, 1961 nor any rule made by the Bar Council gives any statutory power
to the Bar Association for any purpose far to say about internal election. It
can only be resolved before the authority or authorities under the relevant
Co-operative Act and/or Rules.
[44] According to this Court, the judgments, from their plain
reading, cannot be considered as binding precedent of a coordinate Bench.
Without going into the controversy, whether by agreement jurisdiction of
the Court can be conferred or not, I am of the view that when the judgment
and order is based on concession not on contest on the issue of
maintainability, it cannot have any binding effect on the other Benches in
passing the order taking an independent view based on contest. In Shiv
Kumar Akela and others Vs. Registrar, Societies Firms and Chits and
others, the Court has observed as under:
"2. It is conspicuous to note that none of the other Respondents (viz. the
Registrar, Societies Firms and Chits under Societies Registration Act,
1860, Allahabad/ Respondent No. 1, Uttar Pradesh Bar Council/
Respondent No. 5, Bar Council of India through its Chairman, New
Delhi/ Respondent No. 6, Advocate General, State of Uttar Pradesh,
Lucknow/Respondent No. 7, High Court of Judicature at Allahabad
through its Registrar General/ Respondent No. 8 and the Advocate
Association, 4th floor, New Building (High Court, Allahabad)/
Respondent No. 9) have joined the respondent Nos. 2, 3 and 4 on the
above ''Preliminary Objection' regarding maintainability of the writ
petition, rather directly or indirectly they support the petitioners and seek
court intervention to ensure proper functioning of High Court Bar
Association.
19. Second objection regarding maintainability of the writ petition on this
ground that High Court Bar Association being registered under Societies
Registration Act is not amenable to writ jurisdiction under Article 226,
Constitution of India, it will suffice to mention that at this stage writ
petition does lie and is maintainable against respondent Nos. 1, 5, 6, 7, 8,
and 9. Curiously, none of the respondents except respondent Nos. 2, 3 and
4 have raised objection regarding maintainability of the writ petition."
[45] According to this Court, Bar Council of India or the State Bar
Councils are the statutory bodies to control the Advocates in their roll. A
Bar Association cannot be equated with the Bar Council. If one has
certificate of roll of Advocate issued by the Bar Council of India, he is
entitled to act and plead anywhere in the country. Similarly, if certificate of
roll of Advocate is given by any Bar Council of the State, he is entitled to
practice anywhere in the State. However, for the better understanding a
person, who normally practices in the High Court or a District Court, gets
his name registered with the local Bar Association for their better
identification by the litigants for the sake of his/her professional interest.
Similarly, the Court can also identify such Advocates in discharging its
onerous duty.
[46] For purpose of more clarity, the rules as framed in the
Constitution of the High Court Bar Association may be discussed
hereinbelow:
"*****
d) Every member who shall stand defaulter in the matter of payment of
the monthly subscription for three successive months in the manner as
aforesaid shall cease to be a member of this Association.
e) Every member shall also be liable to pay such other or further
subscription or subscriptions as may be decided by the body of the
members of the Association in a duly convened general or executive
committee meeting and on failure to pay such subscription to the
membership of the defaulting member shall cease.
f) The member whose membership has been ceased on the ground of
nonpayment of monthly subscription fees and other fees may be re-
enrolled as a member of this Association on payment of his arrear of
monthly subscription or other subscriptions alongwith re-admission of
RS.200/- within the calendar year.
********"
Rights of the members:
1. Every member shall be eligible to practice as a member of this
Association and shall be entitled to enjoy all benefits as are available to
the Association to its members.
2. Every member shall have the right to advice in writing or suggest
such measure or measures for the benefits of the Association and its
member alike and the Executive Committee of the Association on proper
consideration of such advice or suggestion may take such decision as it
will deem fit and proper or place before the general meeting of the
Associations for decision.
3. Every member except those who are non-resident members shall
have the right to participate and address in the General Meeting of the
Association and also to exercise his voting right and contest in the
election for any post.
********"
[47] The petitioners have misconstrued the provisions of
Constitution of High Court Bar Association. The respondent No.11 first in
the Bar Council of Assam, Nagaland, Mnipur, Meghalaya, Arunachal
Pradesh, Mizoram & Tripura vide enrollment No.147 and thereafter,
practiced in the Gauhati High Court, Principal Seat as well as its order
Benches including Agartala Bench of Gauhati High Court and appeared
frequently in Agartala Bench of Gauhati High Court. On 30.01.2012
membership was taken from the respondent No.4 and since then
membership subscription has regularly been paid and at present the
subscriptions are being cleared up to December, 2022.
[48] Everywhere the role of the Advocates was taken into
consideration by the Division Bench as if the Bar Association is the only
controlling body of the Advocates like Bar Council. For the purpose of
reference the High Court in Udit Chandra (supra), has held as under:
"According to us, the Division Bench of this Court in Shiv Kumar Akela
(supra) came to the conclusion to hold the High Court Bar Association as
a ''State' basically on the following grounds that Advocate General is ex-
officio member of the Governing Body of the High Court Bar Association
and ex-officio member of the U.P. Bar Council, secondly the Assistant
Registrar of the Societies at Allahabad appeared in person and conceded
ignorance over functioning of the High Court Bar Association, a society
registered under the Societies Registration Act, and thirdly, function of
the Bar Association is of public duty. At least two issues, which have been
decided by the Division Bench of this Court to hold the Bar Association as
''State' or ''other authority under the State', are not in conformity with the
tests laid down by the seven Judges' Bench of the Supreme Court in
Pradeep Kumar Biswas (supra). Mere presence of the Advocate General
as ex-officio member of the Governing Body of the Bar Association and
ex-officio member of the U.P. Bar Council is totally fallacious
consideration when seven Judges' Bench of the Supreme Court says that
mere presence of the Prime Minister of India as ex-officio President of the
Society is functionally as a President and not as the Prime Minister and,
therefore, such society cannot be construed as a ''State'. Secondly,
according to us, whether the respondent is ''State' or ''other authority
under the State' is to be determined on the basis of the positive assertions
but not on the negative face value i.e. lack of knowledge of an Assistant
Registrar. Thirdly, so far as question of public duty, if any, is concerned, it
has been held that no private body is debarred from discharging public
duty, if not prohibited by law, but by such action the body would not be
made an instrumentality of the State. Bar Council frames its own rules,
regulations and guidelines and instead of supplying it to the individual
Advocates, it supplies the same to the respective Bar Associations to make
similar rules, regulations, guidelines, etc. to maintain uniformity, which
are being followed by the respective Bar Associations. Writ petition in
Shiv Kumar Akela (supra) was otherwise maintainable since the question
of improper action on the part of the Registrar, Societies, Firms and Chits
was before it. The Court had gone to the issue of maintainability of the
writ petition against the High Court Bar Association when a special
circumstance compelled the Court to look into the matter in a writ
petition. We find that everywhere the role of the Advocates was taken into
consideration by the Division Bench as if the Bar Association is the only
controlling body of the Advocates like Bar Council. In other words, the
measures of the Bar Council in toto have been discussed taking the name
of the Bar Association giving complete go-by to the Advocates Act, 1961.
Therefore, when the subject matter of dispute in Shiv Kumar Akela
(supra) was between a petitioner and the Registrar, Societies, Firms and
Chits and others and when the question of maintainability of the writ
petition against the Bar Association arose incidentally and when on
concession on a special circumstance the order was passed but not on
contest, we are of the view that the ratio of the judgment is treated to be
obiter dicta but not ratio decidendi to hold the High Court Bar
Association as a statutory body to attract the writ jurisdiction of this Court
under Article -226 of the Constitution."
[49] According to the Constitution of India under Article-326, the
definition of voter has been discussed as under:
"326. Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage The elections to
the House of the People and to the Legislative Assembly of every State
shall be on the basis of adult suffrage; but is to say, every person who is a
citizen of India and who is not less than twenty one years of age on such
date as may be fixed in that behalf by or under any law made by the
appropriate legislature and is not otherwise disqualified under this
constitution or any law made by the appropriate Legislature on the
ground of non residence, unsoundness of mind, crime or corrupt or illegal
practice, shall be entitled to be registered as a voter at any such election."
[50] When the actions of the Bar Association to be read herein are
not actions as an authorised representative of the State, it cannot be said
that the Bar Association is discharging State functions. In the absence of
any authorisation if a private body chooses to discharge any functions or
duties which amount to public duties or State functions which is not
prohibited by law then it would be incorrect to hold that such action of the
body would make it an instrumentality of the State. Unfortunately, the
Division Bench in deciding the case of Shiv Kumar Akela considered the
minority view of judgement of the Supreme Court in Zee Telefilms Ltd.,
instead of taking into account the majority view. In a latest judgement of
the Supreme Court reported in 2011 (6) SCC 617 (A.C. Muthiah Vs. Board
of Control for Cricket in India and another) though there is a conflict of
opinion in connection with the merit of the case between the Judges of the
Bench but so far as the question of meaning of ''State' or ''other authorities
under the State' is concerned, the Bench has uniformly decided that the
associations, societies and clubs being bodies discharging public functions
cannot be treated to be ''State' following the ratio of Zee Telefilms Ltd.
[51] There is nothing special about such a provision in
memorandum of association of CSIR as such a provision is a general one
applicable to all societies under Section-14 of the Societies Registration
Act, 1860. True, that there is some element of control of the Government,
but not a deep and pervasive control. To some extent, it may be said that
the Government's presence or participation is felt in the Society but such
presence cannot be called a brooding presence or the over lordship of the
Government. This Court is satisfied that the tests in Ajay Hasia case are
not substantially or on essential aspects even satisfied to call CSIR an
instrumentality or agency of the State. A mere governmental patronage,
encouragement, push or recognition would not make an entity the State.
[52] In the above context, it cannot be said that the respondent
No.11, since he is not disqualified and continuous to be a member, he
cannot be deprived of his legitimate right for exercising his franchisee. Mr.
Deb, learned senior counsel has referred some rules and acts relating to the
present case, but the same are not relevant to the facts and circumstances
of the case. It is not for this Court to appreciate the arguments advanced by
Mr. Deb, learned senior counsel in the light of the disqualification of a
member and taking punitive action by the Bar Council, as long as the
respondent No.11 continuou s to be a member of the association and
enjoys all privileges as a member, unless his membership is terminated. In
the present context, it is not for this Court to decide the said issues; it is for
consideration of the appropriate authorities but, not under Article-226 of
the Constitution of India.
[53] Thus, in totality, the ultimate opinion of this Court is that on
both the counts the writ petition cannot be sustained and thus, dismissed.
JUDGE
A.Ghosh
