Mohinder Singh Chauhan vs Bar Council of Punjab and Haryana and Others

K. Kannan, J.—Reply filed by way of affidavit on behalf of respondent No. 1 is taken on record. The writ petition is at the instance of the petitioner, who is a member of the petitioner-association at Gurgaon represented through the Secretary and cited as a second respondent. Admittedly, he had been a President of the Bar Association on three occasions in the past viz., for the years 1998-99, 2000-01, 2002-03. He sought to contest for the election of a President and since there was a fetter in the bye-law of the Bar Association against any elected member for any post to hold office more than three times in his lifetime, the petitioner has approached this court for a challenge to the provision in the bye-law that provides for such a impediment. For invoking the writ jurisdiction, the justification that the petitioner would bring would be to the rules of the Bar Council that no civil court would have jurisdiction to entertain a dispute among members of the Bar Association and that in the case of any dispute, the Bar Council would take effective steps to resolve the dispute but since on the request of the petitioner to annul the provision contained in the byelaw restricting the term to office only to three times, the Bar Council has not acted, he has no other remedy but to approach this court.

It is an admitted fact that the Bar Association at Gurgaon has a bye-law that governs its activities. Bye-laws that set out rights and duties among different holders of office of the Bar Association shall be taken to be a multilateral contract amongst all the members. The bye-laws must be taken again to be setting the boundaries within which they will conduct their affairs. There is nothing inherently wrong or unconstitutional about limiting the office of the Bar Association only to three times in lifetime and if they had introduced such a clause, the manner of getting rid of it for an aspirant, who wants to hold an office for a larger number of times than what is prescribed, shall be to apply for an amendment for the memorandum and carry it out in the manner prescribed under the bye-laws. There is indeed a provision for amendment of the memorandum set out in clause 16 as follows:-

"16. Any amendment in the Memorandum society or Rules and Regulation of the society shall be carried out only a General Body meeting with a 2/3rd majority voting by the members."

If the Rule 12(8) that sets out a bar to hold office of President more than 3 terms by itself, it cannot be taken to be untenable or unreasonable. If it is desired not to retain this restriction. It would require to be modified or removed in the manner provided under Clause 16. Any other method must conform to what it is permissible under any other rule.

As per the contention of the petitioner, such a power is vested with the Bar Council to render Clause 12(8) invalid by virtue of the fact that the Bar Council itself has framed its rules and the Bar Council rules do not set out any such limitation as Clause 12(8) provides and, the rules framed by the Bar Council at Punjab and Haryana should prevail. The Bar Council rules which have been filed before the court set out in the preamble that it was desirable that one common code existed for the proper check and balance of the proper functioning, registration and guidance of the Bar Associations. The Bar Association which the Rules control is a Bar Association recognized and registered with the Bar Council of Punjab and Haryana. The counsel for the petitioner states that the Bar Association at Gurgaon has not been registered with the Bar Council at Punjab and Haryana so far, although there is a specific provision that constitutes Registration Committee which will examine every application for registration of a Bar Association as per the rules. The rules of the Bar Council provides for qualification of office bearers of Bar Association in Clause 9. It reads as follows:-

"9. Qualification of office bearers of Bar Association-President:

Any member who is having at least five years of regular and active practice in that court.

Secretary: Any member who is having at least three years of regular and active practice in that court.

Provided that if any Bar Association has its own rules prescribing the period of practice required for its office bearers to be more than the prescribed here-in-above, then the rule of the Bar Association shall prevail."

The counsel would point out to the above provision to state that if only a Bar Association has a rule that prescribed for a period to practice differently from how the Bar Council rules provides, the said rule of the Bar Association would prevail. As a corollary, if the Bar Council Rule itself does not make any limitation in the manner that Clause 12(8) of the Bar Association makes, then the Bar Council rules will prevail over such a delimitation. I would reject this argument for two reasons: (i) it is an admitted case that the Bar Association is not registered with the Bar Council; (ii) the provision under Rule 9 of the State Bar Council Rules does not state anywhere that any other rules which are not in conformity with the rule provided therein will have to be read down or would be invalid. The provision in the bye-laws of a Bar Association cannot be whittled down by implication. There has to be a specific rule in the Bar Council Rules themselves, if they were to operate that any bye-law prescribing for qualification by any Bar Association will be invalid for inconsistency with the Bar Council rules. There is no such rule in the Bar Council Rules of Punjab to eclipse the effect of Clause 12(8). I will not, therefore, accept even an argument that the petitioner shall have the benefit of the Bar Council Rules for his application.

The Bar Council Rules state that in respect of any dispute, it will take effective steps to resolve the same. It is a lofty objective, no doubt, but to read into these provision that it is the only mode of resolving a dispute is surrendering the autonomy of the Bar Association to a Bar Council, which it need not. On the other hand, the role of the Bar Council itself has set down under Rule 12 that the autonomy of the Bar Association shall be respected and maintained. There is therefore no need to infer that a dispute cannot be settled amongst the members of the Bar Association otherwise than by a resort to the Bar Council. This is another way of saying that if the Bar Association has placed their problems to the Bar Council through representation and it has not been resolved, there is no way that a member could fee constrained by a situation of impasse and be barred to take resort to the provision for amendment contained in the bye-laws themselves. The civil court jurisdiction which the Bar Council Rules bar must again be taken as an expression of self-belief that there could be no dispute which is not resolvable and hence a civil court will not interfere. It must be remembered that Section 9 CPC will take care of every situation that determines the civil rights of parties, unless barred by law. I am not prepared to pronounce whether the copy of the constitution and the rules framed of the Bar Council could be termed as "law" in order that Section 9 of the CPC does not operate.

All that would lead us to examine whether even the petitioner could have resorted to a writ petition to secure the relief. The writ jurisdiction is exercised only for activities of State or its instrumentalities. The Bar Association is neither a State nor an instrumentality. It is not again to state that the private dispute in some way which has a public law element cannot come through the court''s intervention under Article 226 of the Constitution of India. The power exists in every situation but as much as the power exists so shall be the circumspection that it is not used to its whims. I will not find this to be a situation where the court should assist the petitioner to secure the relief which he has sought for in the writ petition. The declaration that any provision of the bye-laws must be annulled shall not be granted otherwise than through the mode already set forth. The petitioner states that pursuant to the interim order passed on 09.04.2014, the election was held and the petitioner has been declared to be the President. The election in so far as it has appointed him as a President runs contrary to the bye-laws and cannot give to him any right to hold on to an office. His election must be taken as invalid. It shall be open to the Secretary or any person who is authorized by the bye-laws to notify an election for the office of the President and elect a candidate of their choice in a democratic process that the bye-laws expounds.

It is made clear that the petitioner himself or any other person will not be fettered in any way by resorting to appropriate procedure under the bye-laws to make for a change that could even extend as far as to completely abrogate clause 12(8). The writ petition is disposed of as above.