CM-4639-40-2015 IN/AND

CWP-5162-2015 (O&M)
-1RANJAN LAKHANPAL
VS
BAR COUNCIL OF INDIA AND ORS

*****
Present:

Mr. Ranjan Lakhanpal, Advocate

petitioner in person.
Mr. Rakesh Gupta, Advocate
for respondent No.1.
Mr. C.M. Munjal, Advocate
for respondent No.2.
Mr. Mansur Ali, Advocate and
Mr. H.S. Deol, Advocate
for respondent No.3.
Mr. Vivek Singla, Advocate
for the applicants in CM-4639-40-2015.
****
The matter was taken up prior to the lunch break when the

petitioner, in pursuance to the statement made on 07.04.2015 which finds

recorded in the order passed by this Court of the said date, filed an affidavit
alongwith the list of persons whose subscription stands waived either in full
or in part, copy of the said affidavit alongwith annexures were handed over
to Mr. Mansur Ali, learned counsel for Punjab & Haryana High Court Bar
Association-respondent No.3 and the matter was kept after the lunch break
for him to seek instructions with regard to the verification and authenticity
of the averments made in the affidavit and the documents appended
therewith.
Mr. Mansur Ali, learned counsel for respondent No.3, on
instructions, very fairly states that the documents as appended with the

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affidavit cannot be denied as they are supplied by the Punjab & Haryana
High Court Bar Association, Chandigarh, itself.
It is conceded by the counsel for the parties that at least, there
are members between two hundred and fifty to three hundred or even more
in whose cases, powers of waiver of subscription have been exercised and
about the waiver/exemption in entrance fee to the Bar Association, nothing
can be said as of now although there are claims and denials on that .
Mr. Mansur Ali, counsel for respondent No.3, has produced the
Rules and Regulations of Punjab & Haryana High Court Bar Association,
Chandigarh and has tried to justify the exercise of the said powers of waiver
by the Executive Committee by bringing it within the ambit of Rule 3 Aims
and Objections of the Bar Association and sub-Rule 'a' Clauses (ii) and (iii).
The said two provisions read as follows:a. The aims and objects of the Bar Association shall
be:(i) XXX XXX XXX
(ii) To act for the welfare of the members of the
Association.
(iii) To under take all such activities as are in the
interest of the members of the association.
A perusal of the above would show that these Rules do no
envisage nor can it be construed that waiver of subscription or entrance fee
can be treated to be an act of welfare of the members of the Association or
such activities which are in the interest of the members of the Association.
This Court fails to understand how waiver of subscription or entrance fee
would enhance the aims or objects. Further, as per Rule 4 which deals with

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the terms of admission of members and sub-rule (c) with entrance fee and
subscription does not provide for or remotely indicate towards any waiver
of such subscription or entrance fee. Rule 5 deals with the consequence of
non-payment of subscription fee which reads as follows:5. CONSEQUENCES OF NON PAYMENT OF
SUBSCRIPTION FEE:-

Arrears in payment of Subscription:It shall be the responsibility of every member to clear the
subscription.

Any member who is in arrears of

subscription for more than six months shall be deemed to

be in arrears of subscription.
Notice:- A notice in the Daily Cause List shall be given
to the members in arrears of subscription for the
clearance of the same within seven days from the
publication of the notice in Daily Cause List.
Second Notice- A seven days second notice shall be
given to the members who fail to clear their arrears to
subscription after issuance of first notice, in the manner
prescribed above.
Final Notice:- A seven days final notice shall be given to
the members who failed to clear their arrears of
subscription after the issuance of first and second notice,
in the manner prescribed above.
Publication of Names of the Defaulters in the Daily
Cause List- The names of the members who fail to clear
their subscription after the expiry of the period of the
third and final notice, shall be published in the Daily
Cause List and they will be given additional period of
seven days to clear their dues.
Rule 6 deals with the fine and forfeitures to be imposed on any
member, according to which, a person who is defaulter in clearing his

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arrears of subscription can be put under suspension, however, with a power

to the Executive Committee for revocation of the suspension subject to
clearance of all the dues and arrears of subscription together with a penalty
of `500/-, but the penalty can be waived by passing a speaking order. This
further shows that the subscription amount can, under no circumstance, be
waived. For ready reference Rule 6 is reproduced below:6. FINE AND FORFEITURES TO BE IMPOSED ON
ANY MEMBER:a. Suspension of Defaulters:- Any member who fails to
clear his arrears of subscription even after publication
of his name in the Daily Cause List he shall be deemed to
have been suspended from the membership of the
Association after the expiry of seven days period from
the publication of his name in the Daily Cause List. The
suspended member shall lose his entitlement for all the
rights and amenities of a member of the Association and
his name shall not be published in the Directory of the
Association.
b. Revocation of Suspension by the Executive
Committee:- On the application of the suspended
member, the Executive Committee may on sufficient
grounds may revoke his suspension subject to clearance
of all the dues and arrears of subscription together with
a penalty of Rs.500/-. However the Executive Committee
may waive the penalty by a speaking order.
As regards the eligibility of a member to contest elections or
hold office as an Executive Member is concerned it is governed by Rule 12.
Mode of election of the Governing Body is under Rule 13 and as per subrule 'b' thereof, only eligible voters can be the Office-bearers of the
Committee and the Officer of the Association.
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Election Committee

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overlooks the process of election and the Constitution thereof has been
provided under Rule 13 (b) (ii). Eligibility for members to contest and vote
at elections is contained in Rule 13 (b) and (c) which read as follows:(b) No member shall be eligible to cast his/her vote at
the election unless:
i. He/she is in possession of Identity Card at the time of
casting his/her vote and show it on demand, if so
required.
ii. Any member who is in arrears of his/her subscription
or any dues to the Bar Association as per Rule 12 (c)
(iii) of these Rules shall not be eligible to vote or
propose or second the candidature of any member to any
of the post. Such member shall not be eligible to contest
the election.
iii. Out Station Members shall not be entitled to contest
the election.
(c) A person who becomes a member of the Association
after 31st January in a Calendar year or any other date
so fixed by the Executive Committee shall not be entitled
to take part in election held in that Calendar year in any
manner or to vote thereto or to stand for election or
propose or second any member of the Committee or any
other office of the Association thereto.
Rule 12 (c) (iii) which stands referred to in the above Rule 13
(b) (ii) reads as under:iii. He/she has paid his/her arrears of subscription by
31st March of the year or any other date fixed by the
General House if so required and is not in arrears on
any account.
The tentative list of eligible voters shall be
published by the Election Committee and thereafter voter
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list shall be displayed after getting objections if any.

A perusal of the above would show that any member who has
any arrears of his/her subscription or any dues to the Bar Association as per
Rule 12 (c) (iii) of these Rules shall not be eligible to vote or propose or
second the candidature of any member to any of the post and would not be
eligible to contest the elections. It is specifically mentioned that out station
members shall not be entitled to contest the elections. The cut off date has
also been mentioned for a person to be eligible for casting the vote i.e. 31st
January in a calendar year, however, the Executive Committee can fix any
other date as well. In the present case, for this calendar year, it has been
decided that candidate must be a member on or before 10.03.2015.
Reference in this regard is made by the counsel for respondent No.3 to
Annexure R-3/1 which is the decision of the General House dated
10.03.2015.
A perusal of the above provisions and rules would show that
there is no power of waiver either with the Executive Committee or the
Office-bearers as far as the subscription is concerned. Wherever power of
waiver has been provided, the same has been specifically mentioned as in
the case of members where they have been put under suspension because of
default of arrears (Rule 6 reproduced above) his suspension can be revoked
by the Executive Committee on application of the suspended member
showing sufficient grounds for revocation of suspension subject to
clearance of all the dues and arrears of subscription together with a penalty
of `500/- which can be waived. The power of waiver is only to penalty and
not to subscription or the arrears. This makes it amply clear that there is no
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power with the Executive Committee or the Office-bearers to waive the

subscription.
The position with regard to the entrance fee is very clear, here
there is no question of any penalty as it is the mandatory requirement to
seek admission to the Bar Association (Rule 4 (c)) where also there is no
powers for waiver as already observed wherever power of waiver has been
provided for the same, has been specifically so provided under the Rules.
Counsel for respondent No.3 has very fairly states that there is no specific
power of waiver of monthly subscription or admission fee provided under
the Rules and Regulations.
In the present case, it is not in dispute that there are large
number of such members in whose cases waiver in monthly subscription,
admittedly, has been granted which being without any jurisdiction or
authority under the Rules would itself put a question mark with regard to
their eligibility to include their names in the voter list. The number of such
members is not disputed to be more than 250 by the counsel for respondent
No.3 although asserted otherwise by the petitioner who says it to be more
than 300 such members. Taking the number to be at least 250 members as
admitted by counsel for respondents No.3-Association, the same will have a
direct effect and bearing on the ultimate voting and materially effecting the
result of the election. This Court cannot be a silent spectator to such blatant
violation of the Rules and Regulations under its nose and shut its eyes to it.
If that is allowed to continue, that would virtually be meaning that this
Court, when the matter has been brought to its notice and is in the know of
it, is permitting the election to continue where the Rules and Regulations of
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the Punjab & Haryana High Court Bar Association, Chandigarh, had been
violated, is supporting such illegality which cannot be.
At this stage, an argument has been raised by the counsel for
respondent No.3 that since the election process has already been initiated
and the time for filling the nominations has lapsed which was upto 3 PM
today, the process of election may not be stayed and in support of this
contention, he has placed reliance upon the judgment of Hon'ble Supreme
Court Lakshmi Charan Sen & others Vs. A.K.M. Hassan Uzzaman &
others, AIR 1985 Supreme Court 1233. He contends that in the light of
the principle as has been laid down by the Hon'ble Supreme Court in the
said judgment, the election process having been initiated should not be
stopped by this Court in exercise of jurisdiction under Article 226 of the
Constitution of India.
This contention of the counsel for respondent No.3 cannot be
accepted in the present case as in the said case, the Hon'ble Supreme Court
was dealing with a situation where there was a specific statutory remedy
available to a voter/candidate to avail of the remedy under the statute. That
apart, the grounds which were pressed into service by the persons who had
approached the Court were specifically provided under the statute as
grounds for challenging the elections and setting aside the same.
In the present case as has been admitted by the counsel for the
respondents that there is no appeal or remedy available under the Rules and
Regulations of the Punjab & Haryana High Court Bar Association,
Chandigarh, in case the election is held and the result declared, however, he
has pointed out that a member would have the remedy of filing the civil suit
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for such contingency, in case he is aggrieved of the situation which may be

envisaged to be violative of the provisions of Rules and Regulations of this
Association.
Taking cue from the arguments raised by the counsel for
respondent No.3, if a civil suit is maintainable, how is remedy under Article
226 barred especially when there is no statutory remedy available to a
aggrieved person. Further, there is no disputed question of fact involved in
this case, when this case is based on admitted documents and interpretation
of the Rules and Regulations of the Association. That apart, it may be
pointed out that the petitioner has approached this Court prior to issuance of
tentative voter list as has been admitted by the counsel for the respondents
that the tentative voter list was circulated on 03.04.2015 and this case had
came up for hearing on 20.03.2015 for the first time.
As per the election schedule as has been formulated by the
Election Committee in its meeting dated 17.03.2015, the tentative voter list
was to be displayed on 03.04.2015 in the main Bar Room, Ladies Bar
Room, Accounts Office and in the Library. The tentative voter list was
mandated to be displayed on the official website of the Punjab & Haryana
High Court Bar Association, Chandigarh and in the Daily Cause List on the
same day. Admittedly, the tentative voter list was not displayed in the Daily
Cause List and in fact, has not been displayed till date on the Daily Cause
List. The final voter list has only been made available to the members of
the Bar at about 10 AM on 08.04.2015 and has not been displayed on the
Daily Cause List. This is contrary to the decision of the Election Committee
taken in the meeting dated 17.03.2015 which required final voter list to be
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displayed on 07.04.2015 by 5 PM. It has been stated that the said final
voter list was sent to the Punjab & Haryana Bar Council after 5 PM on
07.04.2015. Further, as admitted in Court, neither the tentative voter list
nor the final voter list contains the signatures of the Election Committee.
All this indicates that even the Election Committee decision and schedule as
fixed has not been adhered to.
This is one aspect, there are other issues which have been
raised in the present writ petition basically relying upon the judgment of the
Hon'ble Supreme Court in the case of Supreme Court Bar Association &
others Vs. B.D. Kaushik, 2011 (13) SCC 774 in para 6 of the writ petition
which reads as follows:6. It is further stated that PHHCBA is not the only bar
facing such problems.

The Supreme Court Bar

Association has also faced similar issues and in order to

ensure proper redressing and curbing of such practices
Supreme Court of India intervened and gave directions
in Supreme Court Bar Association and others Vs. B.D.
Kaushik. Relevant extracts of the judgment are
reproduced below for referenceI. 13. Enrolment of advocates not practicing regularly
in the court is inconsistent with the main aim and object
of the Association. No court can provide chambers or
other facilities for such outside advocates, who are not
regular practitioners. Neither the Association nor the 25
court can deal with them effectively if they commit any
wrong.
II. As noticed earlier, no person can be enrolled as an
advocate on the roll of more than one State Bar Council.
A citizen of India is entitled to cast his vote at an election
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of Legislative Assembly or an election of M.P. only in the

constituency where his name appears as a voter in the
voting list and he cannot claim right to vote at another
place where he may be residing because of his
occupation, service, etc. Thus one person one vote is
recognized statutorily since long.
III. According to the learned counsel, the main vice
that crept into the system, for the last decade or so was
that

aspiring

office

bearers

started

buying

the

application forms for membership, in bulk, and paying

the membership fee for lawyers from the various places
like Meerut, Rohtak, Saharanpur, Ghaziabad and even
as far away a place as Chandigarh. The learned counsel
Shri Venugopal claimed as Chairman of the Interim
Board of Management that one came across as many as
100 subscription forms, paid with consecutive bank draft
numbers, as disclosed by the bank statements obtained
by the Interim Board of Management, which showed that
a single sponsor had paid vast sums of money for each of
these forms and memberships, the membership fee being
Rs.5,150/- for advocates with ten years standing and
Rs.3,650/- for advocates with less than ten years
standing. It was emphasized by the learned counsel that
practices like these have resulted in the present strength
of the SCBA being around 10,000 and it is a well known
fact among the members of the Bar regularly practicing
in the Supreme Court of India that persons inducted into
the SCBA through such means, numbering about 8,000,
are seen in the Supreme Court premises only on the day
of SCBA elections for casting their votes, otherwise,
these persons have no interest whatsoever either in the
functioning of the SCBA or the well being of its members
or the functioning of the Supreme Court of India, as a
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Court.
IV. Having given thoughtful consideration to the
suggestions made by the learned counsel appearing in
the matter, this Court is of the opinion that to identify
regular practitioners the criteria adopted by this Court
for allotment of chambers, as explained in Vinay
Balchandra Joshi Vs. Registrar General of Supreme
Court of India (1998) 7 SCC 461 at pages 465-467 para
7, should be directed to be adopted by SCBA from time
to time. Shri K.K. Venugopal, the learned senior counsel
has annexed a copy of Allotment of Lawyers Chambers
Rules, as amended up to November 30, 2007, with his
written submissions, wherein detailed procedure for
allotment of chambers and conditions precedent to be
satisfied before a chamber is allotted, are laid down.
Under the circumstances this Court directs under Article
136 of the Constitution read with Article 142 of the
Constitution that criteria adopted by this Court for
allotment of chambers, as mentioned in Allotment of
Lawyers Chambers Rules, and as explained in Vinay
Balchandra Joshi (supra) shall be adopted by the SCBA
and its office bearers to identify regular practitioners in
this Court. To identify regular practitioners in this
Court, it would be open to the office bearers of SCBA or
a small committee, which may be appointed by the SCBA
consisting of three senior advocates, to collect
information about those members who had contested
election in any of the Court annexed Bar Association,
viz., High Court Bar Association, District Court Bar
Association, Taluka Bar Association, Tribunal Bar
Association and Quasi-judicial Bar Associations like
BIFR, AIFR, CAT, etc. from 2005 to 2010. If such an
information is sought by the office bearers of SCBA or
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the Committee appointed by it, the same shall be

supplied invariably and without fail by the Court
annexed Bar Associations mentioned earlier. The
committee of SCBA to be appointed is hereby directed to
prepare a list of regular members practicing in this
Court and another separate list of members not
regularly practicing in this Court and third list of
temporary members of the SCBA. These lists are directed
to be put up on the SCBA website and also on the SCBA
notice board. A letter is directed to be sent by the SCBA
to each member of SCBA informing him about his status
of membership on or before February 28, 2012. The
aggrieved member would be entitled to make a
representation within 15 days from the date of receipt of
letter from the S.C.B.A. to the Committee, which is to be
appointed by the SCBA to identify regular practitioners
stating in writing, whether personal hearing before the
Committee is required or not. If such a request is made
the concerned member shall be heard by the Committee.
The representation/s shall be considered and the
decision would be rendered thereon by the aforesaid
Committee on or before April 30, 2012. The decision of
that Committee shall be communicated to the member
concerned but the decision shall be final, conclusive and
binding on the member of the SCBA. Thereafter, final list
of regular practitioners of this Court shall be displayed
by S.C.B.A.
V. 1. SENIOR ADVOCATES :
(a) Senior Advocates who are mainly and regularly
practising in the Supreme Court and are members of the
Supreme Court (Bar) Association.
(b) they must have filed the minimum number of fifty
appearances (Admission and regular hearing matter
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excluding CMPs and Cr.MPs) per year during the

preceding two calendar years prior to the date of
application.
(c) Subject to the above requirements being complied
with, the allotment shall be made based on priority of the
date of their being designated as Senior Advocate. A
panel will be prepared accordingly.
2. ADVOCATES-ON-RECORD
(a) An Advocate-on-Record of three years standing only
will be eligible for allotment of a chamber.
(b) The Advocate-on-Record must have filed (or entered
appearance on behalf of respondents) on an average 20
cases

(i.e.

admission/regular

matters

and

not

CMPs/Cr.M.Ps.) per annum, in the course of preceding

two years (batch of cases shall be treated as a single
case).
(c) Subject to the above two requirements being
complied with, two requirements being complied with,
the allotment shall be made according to the date of
seniority i.e. the date of registration as Advocate-onRecord. The names of the eligible persons shal be added
at the bottom of the existing approved panel.
(d) Those persons who have been allotted a chamber in
Delhi High Court Compound may not be considered for
allotment of a chamber in the Supreme Court.
(e) The filing of advocates for Government filling shall
be excluded.
3. JUNIOR ADVOCATES (NON-ADVOCATES-ONRECORD):
(a) All Junior Advocates (Non-Advocates-on-Record)
who are mainly and regularly practising in the Supreme
Court and are the members of the Supreme Court Bar
Association.

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(b) they must put in not less than fifty appearances

(Admission and Regular Hearing matters excluding
C.M.Ps. And Cr.M.Ps.) each year during the preceding
tow years prior to the date of inviting applications in the
Supreme Court of India.
(c) Subject to the above two requirements being
complied with, the seniority of such persons shall be
based on the date of their present admission to the active
membership of the Supreme Court Bar Association.
Pursuance to the above, applications are invited for the
abovesaid purpose. The period of two years for which
the number of filing/appearances have to be furnished
will be from 1.1.1993 to 31.12.1993 and from 1.1.1994
to 31.12.1994.
In the present case, these issues are being looked into by this
Court, although, it is not disputed by any of the counsel for the parties that
these are relevant and important issues which have to be gone into at a
subsequent stage as has been stated by the counsel for respondent No.3 but
is not opposed to the basic principles as have been laid down in the
judgment by the Supreme Court.
The basic question at this stage, which is being dealt with is
with regard to the power of the Executive Committee or the Office-bearers
to waive the subscription fee what to say of admission fee. There being no
provision under the Rules for such a waiver, this Court is of the tentative
view that the voter list itself may be required to be modified/changed/recast
in consonance with the provisions contained under the Rules and
Regulations of the Association. However, to give another opportunity to the
respondent-Bar Association to place the true factual position and
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specifically give the lists of members with regard to whom the Executive
Committee or the Office-bearers of the Association have exercised the
power of waiver in payment of admission fee and monthly subscription for
the period between 1st April, 2014 to 31.03.2015 as also to put forth any
defence showing the power/jurisdiction, if any, with the Executive
Committee/Office-bearers of the Association to do so, an affidavit be filed
in this regard in Court within a period of 10 days with an advance copy to
the petitioner.
In view of the above, since the nominations have already been
filed and no one has any grievance on this score, no direction in this regard
is given, however, the further process of the elections be not continued
without the specific permission of this Court.
List for further consideration on 22.04.2015.
Copy of this order be given dasti to the counsel for the parties
under the signatures of the Special Secretary of this Court.

April 09, 2015

Harish

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( AUGUSTINE GEORGE MASIH )

JUDGE