SPA/70/2023
2023 Latest Caselaw 918 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

        THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                               AND
            THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


                  SPECIAL APPEAL NO. 70 OF 2023

                            5TH APRIL, 2023

Between:

Pachhuwadoon Bar Association,
Vikas Nagar, District Dehradun              ......         Appellant

and

Sandeep Kumar Bartwal & others              ......        Respondents

AND

SPECIAL APPEAL NO. 71 OF 2023

Between:

Pachhuwadoon Bar Association, Vikas Nagar, District Dehradun ...... Appellant

and

Amit Kumar Chauhan & others ...... Respondents

Counsel for the appellant : Mr. Neeraj Garg, learned counsel

Counsel for the respondent(s) : Mr. Vikas Bahuguna, learned counsel for respondent No. 1 in SPA No. 70 of 2023

: Mr. Siddhartha Sah, learned counsel for respondent No. 1 in SPA No. 71 of 2023

: Mr. Naitik Bhatt, proxy counsel on brief of Mr. Piyush Garg, learned

: Mr. B.S. Parihar, learned Standing Counsel for State of Uttarakhand /

The Court made the following:

JUDGMENT: (per Hon'ble The Chief Justice Sri Vipin Sanghi)

Issue notice.

           Counsel   for   the     respondents    appear      and

accept notice.


2)         The   present   special    appeals    are      directed

against the common order passed by the learned Single

Judge, in Writ Petition (M/S) No. 2507 of 2022, Writ

Petition (M/S) No. 2043 of 2022, and Writ Petition (M/S)

No. 284 of 2023. The two appeals before us have arisen

out of WPMS No. 2507 of 2022, and WPMS No. 284 of

2023.

3) The impugned order reads as follows :-

"Mr. Ravi Babulkar, Mr. Vikas Bahuguna, & Mr. Siddhartha Sah, Advocates for the petitioners.

          Mr. Piyush       Garg,     learned    counsel     for
     respondent no. 1.

Ms. Manisha Bhandari, learned counsel for respondent no. 2.

Mr. Narayan Dutt, learned Brief Holder for the State of Uttarakhand.

Since common questions of fact and law are involved in these petitions, therefore, these petitions are clubbed together and decided by this common

judgment. However, for the sake of brevity, facts of WPMS No. 2507 of 2022 are being considered.

By means of this writ petition, petitioner has sought the following relief:-

(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 01.09.2022 passed by respondent no. 1 (contained as Annexure no. 1 to this writ petition)

(ii) (ii) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated14.09.2022 passed by respondent no. 2 (contained as Annexure no. 3 to this writ petition)

(iii) (iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents not to take any coercive measure against the petitioner.

Petitioner held Office of President, Pachhuwadoon Bar Association for three years i.e. 20118-19, 2019-20 & 2020-21. He has challenged an order passed by Chairman, Uttarakhand Bar Council, on various grounds.

Learned counsel for the parties are unanimous that the dispute can be resolved if the matter is relegated to the Chairman, Uttarakhand Bar Council.

In such view of the matter, without going into the merits, writ petitions are disposed of by permitting petitioners to approach Chairman, Uttarakhand Bar Council by making application for revocation of impugned order(s), within three days from today. If such application is made within stipulated time, Chairman, Uttarakhand Bar Council is requested to reconsider the issue and pass appropriate order, as per law, within ten days from the date of filing such application(s).

Till decision in the matter by the Chairman, election process shall not be notified by the concerned Bar Association."

4) A perusal of the impugned order gives the

impression that the same is an order passed by consent.

However, on a little deeper scrutiny, what emerges is,

that the action of the three parties concerned before us,

namely, the appellant-Bar Association; the two

respondents - writ petitioners, who are the ex-President

Shri Sandeep Kumar Bartwal, and ex-Honorary

Secretary Shri Amit Kumar Chauhan of the appellant-Bar

Association; the Chairman, Bar Council of Uttarakhand,

and the Bar Council, itself, have completely misdirected

their respective actions leading to taking of decisions,

and passing of orders, which are either without

jurisdiction, or in violation of the principles of natural

justice. A complete hochpoch has been created due to

the actions of all the parties, and our endeavour is to

untangle the same.

5) It appears that the tenure of the Executive

Committee of the appellant-Bar Association came to an

end in the year 2022, and a resolution was passed by

the Bar Association on 12.04.2022 to extend the tenure

of the Executive Committee by one year. The two writ

petitioners are the ex-President and the ex-Honorary

Secretary of the same Bar Association. The ex-President

of the Bar Association being aggrieved by the delay in

conduct of the elections for constitution of the fresh

Executive Committee, approached the Uttarakhand Bar

Council, making a grievance with regard to the elections

not being conducted by the Executive Committee in

office.

6) First and foremost, in our view, this approach

of the ex-President, for seeking relief in that regard was

completely misplaced, as it is not for the Bar Council to

intermeddle into the affairs of the Bar Association. The

ex-President had a remedy available to him under the

civil law, or under the Societies Registration Act, 1860

(as amended by Uttarakhand Act No. 04 of 2019).

7) Upon the ex-President approaching the Bar

Council, the appellant-Bar Association responded by

making allegations of misappropriation of funds by the

ex-President and the ex-Secretary. In the light of the

said allegations, the Bar Council constituted two member

committee to look into the allegations made by the

appellant-Bar Association. The two member committee

gave its report after calling upon the ex-President to

furnish his explanation. The said report is dated

07.07.2022.

8) The conclusion drawn by the said committee

reads as under :-

fu"d"kZ

leLr nLrkostksa o c;kuksa dk voyksdu djus ds Ik'pkr izFke vkjksi ds lEcU/k esa tkWp lfefr us tkWp ds nkSjku ;g ik;k gS fd f'kdk;rdrkZ o iwoZ dk;Zdkfj.kh us 2020&21 es laLFkk ds [kpZ gsrq tks fcy&ckmpj orZeku dk;Zdkfj.kh dks lkSisa Fks okLro esa mues ls dqN fcy ckmpj ij laLFkk dk ;k foØsrk dk uke vafdr ugh gS vkSj u gh mu ij dksbZ /kujkf'k vafdr dh x;h gS] ftudk Hkqxrku Hkh uxn :Ik ls n'kkZ;k x;k gS] blds vfrfjDRk ekuuh; fo/kk;d Jh eqUuk flag pkSgku th dks tks 50][email protected]&:0 dk Hkqxrku laLFkk ds [kkrs ls fn;k x;k gS rFkk [kkrs ls eq0 3]00][email protected]&:0 vf/koDrk j.kohj okfy;k dks m/kkj ds rkSj ij mldh iRuh ds bykt gsrq fn;s x;s vkSj ftudh okilh dk iz;kl Hkh f'kdk;rdrkZ }kjk ugh fd;k x;kA tgkW rd ,d f}rh; vkjksi dk iz'u gS mlds lEcU/k esa tkWp lfefr us tkWp esa ik;k fd f'kdk;rdrkZ us 2020&21 ds okf"kZd pquko dk;Zdkfj.kh lfefr dh cSBd fnukafdr 30&03&2020 ds }kjk LFkfxr dj fn;s Fks vkSj tc f'kdk;rdrkZ ls mldk mRrj ekaxk x;k rks f'kdk;rdrkZ us dFku fd;k fd esjs dk;Zdky esa laLFkk dk 2020&21 dk okf"kZd pquko dksfoM&19 dk ykdMkmu gksus ds dkj.k ckj dkSflay vkQ mRrjk[k.M ds }kjk c<+k;k x;k Fkk] ftldk mYys[k f'kdk;rdrkZ us u rks dk;Zdkfj.kh dh cSBd fnukafdr 30&03&2020 esa ikfjr izLrko es fd;k vkSj u gh dksbZ izek.k f'kdk;rdrkZ us tkWp lfefr ds le{k gh izLrqr fd;k gS tcfd iNoknwu ckj ,lksf'k,lu ds lnL;ksa us vkelHkk fnukad 12&04&2022 esa izLrko ikfjr djds orZeku dk;Zdkfj.kh dk dk;Zdky o"kZ 2022&23 dks 1 o"kZ ds fy, c<+k fn;k Fkk ftldh iqf"V gsrq tkWp lfefr ds le{k foi{kh }kjk nkf[ky dh x;h lnu dh ohfM;ksxzkQh dk voyksdu fd;k x;k vksj ik;k fd lnu esa orZeku dk;Zdkfj.kh dk dk;Zdky c<+kus gsrq Jh vfuy 'kekZ ¼iwoZ v/;{k iNoknwu ckj ,lksf'k,lu fodkluxj½] Jh fot;iky pkS/kjh ¼iwoZ v/;{k iNoknwu ckj ,lksf'k,lu fodkluxj½] Jh lqjsUnz feRry ¼iwoZ v/;{k ckj dkSflay vkQ mRrjk[k.M½] Jh

xqjesy flag jkBkSj ofj"B vf/koDrk] Jh jkts'k oekZ iwoZ lg&lfpo rFkk dbZ vU; vf/koDrkvksa us orZeku dk;Zdkfj.kh dk dk;Zdky c<+kus dk leFkZu fd;k x;k gS] blds vfrfjDr tkWp lfefr us tkWp ds nkSjku ;g Hkh Ikk;k gS fd orZeku dk;Zdkfj.kh us 2021&22 dk okf"kZd ys[kk&tks[kk Hkh lnu ds le{k ugh j[kk gSA mDr lHkh fcUnqvks ij ckj dkSflay }kjk fu.kZ; fy;k tkuk U;k;laxr gksxkA

egksn; tkWp lfefr dh tkWp vk[;k lsok esa izsf"kr gSA"

9) We are informed - and there is no dispute in

this regard, that the ex-Secretary was not put to any

notice by the Bar Council, or the two member

committee, which examined the complaint made by the

appellant-Bar Association against the ex-President and

the ex-Secretary. After the two member committee

made the aforesaid report, the Chairman Bar Council

passed an order on 01.09.2022, on the basis of the

report prepared by the two member committee, and

issued the following directions :-

"iNoknwu ckj ,lksfl,'ku fodkluxj }kjk loZlEefr ls lnu dh cSBd fnukad

12-04-2022 esa fy, x, fu.kZ; dh iqf"V dh tkrh gS ftlds QyLo:Ik iNoknwu ckj ,lksfl,'ku fodkluxj dh orZeku dk;Zdkfj.kh dk dk;Zdky o"kZ 2022&23 ds fy, c<+k gqvk ekuk tk,xkA iwoZ dk;Zdkfj.kh }kjk dh x;h foRRrh; vfu;ferrkvksa ds lEcU/k esa orZeku dk;Zdkfj.kh vke lHkk cqyk dj /ku dh olwyh djus ds lEca/k esa Bksl dk;Zokgh djus dh vf/kdjh gS rFkk vfu;ferrkvksa ds lEca/k esa fpV~ Q.M lkslk;Vh nsgjknwu dks Hkh voxr djkuk lqfuf'pr djsA

bl fu.kZ; dh ,d&,d izfr f'kdk;rdrkZ o iNoknwu ckj ,lksfl,'ku fodkluxj ds v/;{k dks iznku dh tkos rFkk ,d izfr Jh jktsUnz jkor ,MoksdsV ftuds }kjk fnukad 02-08+-

2022 dks ,d izkFkZuk i= ckj dkmafly dks izsf"kr fd;k x;k Fkk] dks Hkh izsf"kr dh tkosA"

10) Once again, we find that the Chairman Bar

Council exceeded his jurisdiction, inasmuch as, he had

no authority to intermeddle into the affairs of the

appellant-Bar Association, and to declare that its term

has legally been extended by one year. Rather than

proceeding to take disciplinary action under Section 35

of the Advocates Act, 1961, the Chairman Bar Council

passed the aforesaid order.

11) Thereafter, the appellant-Bar Association

passed a resolution in its General House, expelling the

ex-President and the ex-Secretary from the membership

of the Society, unless they deposited the amounts of

Rs.38,91,000/- of the appellant Association.

12) It was the aforesaid actions of the Bar Council,

and the appellant-Bar Association, which drove the ex-

President and the ex-Secretary to file their respective

two writ petitions, wherein the impugned order has been

passed. Even before the learned Single Judge, the

parties proceeded to consent to the Chairman Bar

Council, passing appropriate orders on matters over

which he had no jurisdiction. The Chairman Bar Council

has now passed an order, which has been tendered in

Court. The operative part of which reads as follows :-

vkns'k

"ckj dkSflay }kjk ikfjr vkns'k fnukad 01-09-2022 rFkk ckj ,slksfl,'ku }kjk ikfjr

vkns'k fnukad 14-09-2022 fcuk fdlh iwoZ lquokbZ dk volj iznku fd, gq, ikfjr fd;k x;k gS rFkk uSlZfxd U;k; ds fl)kUr ds mYy?kau esa gS blfy, mijksDr nksuksa vkns'k fujLr fd;s tkrs gS rFkk iNoknwu ckj ,lksfl,s'ku dks funsZf'kr fd;k tkrk gS fd vkt ls 20 fnu ds vUnj ckj dkSafly dks iwoZ lwfpr dj] iNoknwu ckj ,slksfl,s'ku fodkl uxj fd ,d vke lHkk fu;ekuqlkj iwoZ lqpuk ds mijkUr cqyk;s rFkk ftl lEcU/k eas Jh crZoky rFkk Jh pkSgku dks ehfVax dk ,tsUMs ;Fkkle; O;fDrxr :Ik ls miyC/k djk;sA D;ksafd Jh crZoky ,oa Jh pkSgku dk ;g Hkh dFku gS fd Jh eukst dqekj 'kekZ muls O;fDrxr jaft'k j[krs gS rFkk orZeku esa v/;{k gksus ds ukrs ckj ,lksfl,s'ku fd vke lHkk izHkkfor djrs gS blfy;s bl lEcU/k esa fcuk dksbZ jk; O;Dr djrs gq, rFkk fcuk fdlh i{k ij nks"kkjksi.k djrs gq, U;k; fd n`f"V ls ;g Hkh funsZf'kr fd;k tkrk gS fd mijksDr ckj ,lksfl,s'ku fd gksus okyh vke lHkk esa ckj dkSafly vkWQ mRrjk[k.M ds nks lnL; Jh esgjeku flag dksjaxk lnL; lfpo ,oa Jh vuhy dqekj ifUMr lnL; ckj dkSafly vkWQ mRrjk[k.M crkSj izs{kd izfrHkkx djsaxsA ftuds ns[k&js[k esa gh mijksDr ckj ,slksfl,s'ku dh vke lHkk fd tk;sxhA vke lHkk fd ,d izksQsluy QksVksxzkQj ls foMh;ksa xzkQh djk;h tk;sxh rFkk vke lHkk ds feuV vkWQ ehfVax izs{kd fd ns[kjs[k esa gh fy[ks tk;saxs tks fd muds }kjk dkm.Vj lkbu fd;s tk;ssxsA ckj ,slksfl,s'ku ds vke lHkk dk izLrko tks Hkh ikfjr gksxk ckj dkSafly ds le{k ;Fkk'kh?kz izLrqr fd;k tk;sxh rFkk pS;jeSu ckj dkSafly ds vuqeksnu ds mijkUr gh ykxw ekuk tk;sxkA vkns'k fnukafdr 01-09-2022 rFkk 14-09-2022 fujLr dj fn;s x;s gS] blfy;s Jh crZoky rFkk Jh pkSgku vke lHkk ds lnL; ekus tk;ssxsa rFkk mUgs gksus okyh vke lHkk es aizfrHkkx djus dk iw.kZ vf/kdkj Hkh gksxkA ;fn mijksDr vke lHkk esa ckj ,lksfl,s'ku ds pquko lEcfU/kr dksbZ fu.kZ; fy;k tkrk gS rFkk Jh crZoky ,oa Jh pkSgku ds fo:) dksbZ vkns'k ikfjr ugh fd;k tkrk gS rks mu nksuksa dks 'kqYd tek djus gsrq vko';d le; Hkh iznku fd;k tk;sA vke lHkk ds izLrko ds pS;jeSu ckj dkSafly ds vuqeksnu ds mijkUr iNoknwu ckj ,lksfl,s'ku ds pquko ?kksf"kr fd;s tk;sA mijksDr vkns'k dh izfr i{kdkjx.k dks rFkk Jh esgjeku flag dksjaxk lnL; lfpo ,oa Jh vfuy ifUMr lnL;] ckj

dkSafly vkWQ mRrjk[k.M dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr dh tk;sA"

13) The reason why we are inclined to interfere in

these appeals is, that the Bar Council and its Chairman,

seem to be completely ignorant and oblivious of their

jurisdiction and authority vested by the Advocates Act,

1961, and they are acting and passing orders, as if they

have absolute and unbriddled authority to deal with

issues concerning the management of a Bar Association

in the State of Uttarakhand.

14) Section 6 of the Advocates Act lays down the

functions of the State Bar Council. The same reads as

follows:

"Functions of State Bar Councils.- (1) The functions of a State Bar Council shall be--

(a) to admit persons as advocates on its roll;

(b) to prepare and maintain such roll;

(c) to entertain and determine cases of misconduct against advocates on its roll;

(d) to safeguard the rights, privileges and interests of advocates on its roll;

(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub- section (2) of this section and clause (a) of sub- section (2) of section 7;

(e) to promote and support law reform;

(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;

(eee) to organise legal aid to the poor in the prescribed manner;

(f) to manage and invest the funds of the Bar Council;

(g) to provide for the election of its members;

(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub- section (1) of section 7;

(h) to perform all other functions conferred on it by or under this Act;

(i) to do all other things necessary for discharging the aforesaid functions.

(2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of -

(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;

(b) giving legal aid or advice in accordance with the rules made in this behalf;

(c) establishing law libraries.

(3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section."

15) The powers of the Chairman of the

Uttarakhand Bar Council have been set out in Chapter III

of the Bar Council of Uttarakhand Rules, which read as

follows :-

"Powers and Duties of Chairman and Vice- Chairman Rules Framed Under Section 15(2)(g)

Powers of the Chairman -

1. (a) Save as otherwise provided in these rules, the Chairman shall exercise general supervision and control over the affairs of the Bar Council.

(b) He shall preside over the meetings of the Bar Council and its Executive Committee.

(c) He shall have the authority to call the meetings of the Bar Council.

(d) He shall have the power to order that an emergent and extraordinary meeting of the Bar Council be convened for the consideration of a matter that he may deem urgent or for which a requisition has been received by him.

2. The Chairman while presiding over a meeting shall, decide all points of order raised in the meeting and shall be responsible for maintaining decorum and order in the meeting.

3. The Chairman shall have power to sanction expenditure up to Rs 5000/- outside the budgeted amount, in case of emergency. However, the same shall be reported to the Bar Council in its next meeting for approval.

4. The Chairman or Vice-Chairman shall sign the cheques along with Secretary.

5. The Chairman may assign in writing to the Vice- Chairman such of his duties and functions as he may deem fit and proper.

6. Whenever immediate action is necessary to safeguard the rights, privileges and interests of the advocates, the Chairman shall take immediate action in the matter.

7. The Chairman shall take suitable steps for implementation of the decisions of the Bar Council and shall apprise the Bar Council of the action taken by him at the next meeting."

16) It is pointed out before us that, when the

Chairman passed the order dated 01.09.2022, and when

he has passed the latest order dated 03.04.2023, the

Chairman Bar Council has acted on his own, and these

are not the resolutions of the Bar Council. So far as the

order dated 03.04.2023 is concerned, it is argued that

the same has been passed by the Chairman in

pursuance of the impugned order, and, therefore, the

Chairman Bar Council was authorized to pass the same.

17) The appellant-Bar Association is a society

registered under the Societies Registration Act (as

application to the state of Uttarakhand). Any dispute

inter se between the members of the said Society, or

between the Society and any of its members can validly

be raised before the Registrar constituted under the

Societies Registration Act, or any civil court. The

appellant-Bar Association passed the resolution expelling

the ex-President and the ex-Secretary on the basis of

the order passed by the Chairman Bar Council, which

itself was founded upon the report prepared by the two

member committee (which did not put the ex-Secretary

to any notice). The Bar Association did not issue any

show cause notice to the ex-President or the ex-

Secretary; did not call for the explanation and; did not

place the same before the General House for its

consideration before passing the resolution dated

14.09.2022. Therefore, in relation to the said resolution,

the ex-President and the ex-Secretary would have a

cause of action, and they may approach the Registrar, or

the civil court to seek appropriate remedy. If that

course of action were to be adopted, the same would

further entangle the appellant-Bar Association in legal

disputes, and that itself may have a bearing on the

constitution of the new Managing Committee, which is

due for reconstitution, since the extended tenure of the

current Managing Committee has already come to an

end.

18) In the aforesaid light, we declare that the Bar

Council of Uttarakhand, and the Chairman of the Bar

Council of Uttarakhand, have no jurisdiction to

intermeddle in the matters relating to the management

of the Bar Associations, in the State of Uttarakhand, and

it is for the Bar Associations and its members to have

their rights and obligations determined, either before the

Registrar under the Societies Registration Act (as

applicable to the State of Uttarakhand), or before a civil

court. At the same time, conduct of any Advocate

registered with the State Bar Council, which

tantamounts to misconduct, can be examined by the Bar

Council, and if after conducting a fair enquiry, after due

notice to the concerned member, the conduct of such

member is found to be objectionable and calls for

disciplinary action, the Bar Council should itself take the

disciplinary action under Section 35 of the Advocates

Act.

19) In the light of the aforesaid, with a view to

resolve the impasse, which is presently created, and

which is not in the interest of the members of the

appellant-Bar Association, as they are entitled to be

managed by a new Managing Committee, which is

democratically elected, the resolution dated 14.09.2022

passed by the appellant-Bar Association qua the ex-

President and the ex-Secretary is, hereby quashed, since

it is, ex facie, in violation of the principles of natural

justice. The appellant-Bar Association is free to take

action against the ex-President and the ex-Secretary

after complying with the principles of natural justice, and

giving adequate opportunity to respond to the show

cause notice that may be issued to them making specific

allegations. Once the responses are received, the

appellant-Bar Association shall take the matter to the

General Body before whom the fate of the ex-President

and the ex-Secretary may be determined. This process

should be completed by the appellant-Bar Association

within the next two months. The appellant-Bar

Association shall notify the elections after a decision is

taken with regard to the membership of the ex-President

and the ex-Secretary, soon thereafter.

20) The concerned District Judge / Additional

District Judge shall supervise the General Body meeting.

21) The appeals stand disposed of in the aforesaid

terms.

________________ VIPIN SANGHI, C.J.

_________________ ALOK KUMAR VERMA, J.

Dt: 5th APRIL, 2023 Negi