These writ proceedings have been instituted by the Agra Advocates Association and its General Secretary for challenging an order passed on 12 August 2014 by the Vice-Chairperson of the Bar Council of Uttar Pradesh in his capacity as officiating Chairperson by which the affiliation which was granted to the first petitioner on 1 June 2014 has been recalled.
Among the functions of the State Bar Council in Section 6(1)(dd) of the Advocates Act, 19611 is 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 Section 7 of the Act. Section 6(2) empowers the State Bar Council to constitute one or more funds for the purpose of giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates and for establishing law libraries. A large number of welfare schemes have been initiated by the Bar Council of India. Similarly, Advocates' Welfare Funds have been created under the Uttar Pradesh Advocates' Welfare Fund Act, 1974. These welfare schemes have given rise to a number of Associations of Advocates at the district level. The State Bar Council framed the Bar Association Affiliation Rules, 19792 and later the Bar Council Uttar Pradesh Adhivakta Sangh Sambadhan Niyamawali, 20053 (Bar Council Uttar Pradesh Advocates Association Affiliation Rules, 2005).
The case of the petitioner is that the strength of practicing advocates at the Civil Court in Agra is more than 4000 and the membership of the first petitioner is proximately 381 advocates. The Agra Bar Association, Civil Court, Agra, which is an established Association, has restricted its membership to 500 advocates as a result of which, according to the petitioner, a large number of advocates have been deprived of the membership of a Bar Association. In this background, the first petitioner was registered under the Societies Registration Act, 1860 by a registration certificate dated 28 May 2014. Immediately, after obtaining the registration of the first petitioner as a Society, an application was made to the State Bar Council for affiliation. The Office Superintendent made a report on 31 May 2014 to the effect that all formalities have been complied with except for a list of members. The case of the petitioner is that the then Chairperson of the Bar Council accepted the report and permitted the petitioner to file a list of members which was thereafter filed. An order of affiliation was passed on 1 June 2014 by Sri Vinay Chandra Mishra, the then Chairperson of the Bar Council.
An order has been passed by the officiating Chairperson withdrawing the affiliation. In the order recalling the affiliation, it has been noted that in Agra there is a Bar Association in the Civil Court premises, namely the Agra Bar Association which is affiliated to the State Bar Council. It has been stated that the first petitioner for whom affiliation was sought was allowed to be affiliated on 1 June 2014 in a "most arbitrary and illegal manner" by the then Chairperson as it was incumbent upon the State Bar Council to issue a notice providing an opportunity to the office bearers and members of the Agra Bar Association which was already affiliated to the State Bar Council. Since no notice was given to the existing Association, the order of affiliation has been quashed and set aside.
During the course of hearing, the principal issue which has emerged before the Court is whether the officiating Chairperson of the State Bar Council, or for that matter the Chairperson, has the power under the affiliation Rules to cancel an affiliation which has been granted to a Bar Association. In this regard, it would be appropriate to refer to the earlier Rules of 1979 and thereafter to the present Rules of 2005 which hold the field.
Rules of 1979 Clause 1(a) of the Rules of 1979 defines the expression 'Association' to mean a body of advocates registered under the Societies Registration Act, 1860 with at least 50 members, if the Association is functioning at the District Head Quarters and 25 members in any other case. The Bar Council has been conferred with the power to relax the condition relating to the number of members for good and sufficient reasons. The expression 'Council' is defined in Clause 1(b) to mean the Bar Council of Uttar Pradesh, while Clause 1(c) defines the expression 'Advocates' to mean such legal practitioners whose names appear on the Roll of Advocates maintained by the Bar Council. Clause 2(a) requires every Association desirous of obtaining affiliation to apply for affiliation in the prescribed form. A renewal fee is thereafter payable each year to the Bar Council for continuing affiliation. Clause 2(b) requires that an Association shall forward to the Council the names of the members and office bearers every year along with the application for renewal. Clause 3(a) specifies the obligations of an affiliated Association to keep, inter alia, a vigil over the professional activities of its members and to inform the Council of a breach of professional standards and etiquette or of any other misconduct by an advocate. The Explanation to Clause 3 requires the Council to keep the affiliated Association informed of every important decision taken or resolution passed by it or by the Bar Council of India. The Council has to assist financially or otherwise an affiliated Bar Association to improve the libraries and building. The affiliated Associations are required to carry out the directions and instructions issued by the Council. Clause 4 provides for disaffiliation of an Association by the Council, inter alia, if it fails to pay the renewal fee within a stipulated period; if the Association deliberately defies or disobeys the directions and instructions of the Council; if its membership falls below the prescribed limit; if the annual election is not held in accordance with the Rules and Constitution inspite of the request of the Council; and for any other reasons to be prescribed by the Bar Council from time to time.
Rules of 2005 The Rules of 2005 do not specifically provide that they are in supersession of the earlier Rules of 1979 but, it would clear from the Rules that a comprehensive procedure has been spelt out therein for affiliation, disaffiliation and other referred matters. For the purpose of these proceedings, it is not necessary to express any final opinion on whether the Rules of 2005 have superseded the Rules of 1979 since the issue which falls for consideration is whether the Chairperson acting individually has the power to disaffiliate a Bar Association to which an affiliation has been granted earlier.
Clause 4(7) of the Rules of 2005 specifies that a Bar Association seeking affiliation to the State Bar Council must have, at the District Headquarters, a minimum strength of 300 advocates and in other cases, of 50 advocates. However, the proviso empowers the Bar Council to relax the condition in certain specific eventualities and provides that the State Bar Council will affiliate that Association which has the largest strength amongst the Bar Associations. Clause 5 stipulates that every Bar Association, which has the minimum strength as prescribed and which is desirous of being affiliated to the State Bar Council, may apply on payment of a specified fee for affiliation. Clause 7(1) stipulates that not more than two Bar Associations would be affiliated in any one class defined in Clause 4(2). Clause 4(2) contemplates affiliation being granted to Bar Associations in various classes such as :
(i) Bar Associations for District and Sessions Courts;
(ii) Bar Associations for Revenue Courts;
(iii) Bar Associations for Income Tax;
(iv) Bar Associations for Commissionerate and for Tehsil Courts;
(v) Bar Associations for Service Tribunals both State and Central; and
(vi) Bar Associations at the level of High Courts both at Allahabad and at Lucknow.
Clause 10 of the Rules of 2005 provides for circumstances in which an affiliation can be cancelled. The circumstances which are spelt out therein are:
(i) failure of a Bar Association, within a period of three months of its renewal, to comply with all the requirements for renewal;
(ii) a breach by the Bar Association of the directions of the State Bar Council;
(iii) failure to hold annual elections; and
(iv) where the information or documentary material which is provided to the State Bar Council is found to be untrue or suffering from any misrepresentation.
The Rules of 2005 do not contain any provision for delegating the power of the State Bar Council to disaffiliate a Bar Association to the Chairperson of the State Bar Council. During the course of these proceedings, a counter affidavit has been filed on behalf of the State Bar Council by its Secretary specifically stating that there is no delegation of the power of the Bar Council to the Chairperson either with respect to the exercise of the power of affiliation or disaffiliation. We will deal with that aspect of the matter later, but at this stage it would suffice to note that there is no specific provision in the Rules of 2005 enabling the Chairperson to exercise the power of disaffiliation. On the contrary, the provisions contained in Clause 10 of the Rules of 2005 would indicate that the power to cancel an affiliation is for breach, inter alia, of the conditions of the Bar Council required to be fulfilled by the Bar Association in the matter of renewal; or where there is a breach in complying with the directions of the Bar Council or where it is found that the information which has been furnished to the Bar Council has been found to be a misrepresentation or untrue. Before the Chairperson can assume the powers to disaffiliate a Bar Association, there has to be a specific delegation under the Rules, which is absent in the present case. Consequently, the officiating Chairperson of the State Bar Council had no jurisdiction or authority to pass the impugned order dated 12 August 2014. The said order is liable to be set aside. We order accordingly.
During the course of hearing, it has been pointed out by the learned Senior Counsel appearing on behalf of the petitioners that insofar as the affiliating power is concerned, the consistent course of practice over the last thirty years is that affiliations have been routinely granted by the Chairperson of the State Bar Council and this power has never been construed as a breach by the Bar Council itself. An apprehension has been expressed that in the event that this Court were to hold that the power to disaffiliate a Bar Association is not vested in the Chairperson acting individually, a similar view in regard to the power to grant affiliation would apply which may unsettle the affiliations already granted and cause a great deal of uncertainty. On this aspect of the matter, we may clarify that the limited issue before the Court which is being addressed in these proceedings is that the Chairperson of the State Bar Council has no jurisdiction to exercise the power to disaffiliate a Bar Association acting individually and the exercise of the power of disaffiliation must necessarily be made by the Bar Counsel as a collective body, particularly in the absence of any delegation of power or a provision for delegation in the Rules.
We have not expressed any opinion in regard to the original affiliation granted to the Bar Associations concerned. However, we may observe at this stage that it will be open to the Bar Council, when it considers the matter in regard to the withdrawal of affiliation, to have due regard to the settled practice, if any, upon which reliance has been placed by the petitioners and to determine as to whether a robust decision should be taken so as to ensure that affiliations which have been granted in the past and which have continued to exist till date should be saved. We express no opinion on that issue and leave the entire matter for consideration by the State Bar Council in the right perspective.
We, accordingly, allow the petition and set aside the impugned order dated 12 August 2014 clarifying, that the State Bar Council would be at liberty to consider the issue afresh in accordance with law having regard to the observations which are contained in this judgment.
Date: 19.09.2014 SK (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.)