The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 4650 of 2023 ---- Commercial Taxes Bar Association, an association of lawyers, having its Office at Sales Tax Building, Sakchi, Jamshedpur – 831 001, PO PS Sakchi, District Singhbhum (East), Jharkhand through its President Mr. Basudeb Chatterjee son of Mr. S.C. Chatterjee, resident of C 2/2 River Base Colony, Kadma, PO PS Kadma, Town Jamshedpur, District Singhbhum (East). … Petitioner -versus- 1. The Jharkhand State Bar Council, a statutory body constituted under the Advocates Act, 1961, through its Secretary having Office at Bunglow No.8, Near Kendriya Vidyalaya, North Office Para, PO PS Doranda, District Ranchi 834002. 2. Bar Council of India, a statutory body formed under Advocates Act, 1961, through its Secretary, having Office at 21, Rouse Avenuue Institutional Area, Near Bal Bhawan, PO Indraprastha, HO & PS Connaught Place, New Delhi 110 002. … Respondents ---- CORAM : SRI ANANDA SEN, J. ---- For the Petitioner : Mr. M.S. Mittal, Sr. Advocate Mr. Salona Mittal, Advocate For the Respondents: Mr. Manoj Tandon, Advocate ---- 9/ 26.02.2024 Heard learned counsel for the petitioner and learned counsel for the respondent-Jharkhand State Bar Council. 2. This case is being decided and disposed of as the parties agree for such disposal at this stage. 3. This case has a chequered history. Petitioner, which is a registered Association of Lawyers, has sought renewal of its affiliation in terms of Clause 2(a) of the “Affiliation Rules” framed by the Jharkhand State Bar Council and duly approved by the Bar Council of India.
Legal Reasoning
In the first round of litigation seeking the same relief was W.P.(C) 4. No.675 of 2017 was filed. The said writ petition was disposed of on 14th October, 2019, whereby the learned Single Judge had quashed the part of the stipulation in the impugned order wherein it was held that no Advocate’s name -: 2 :- be listed on the list of more than one Association, thereby holding that an Advocate can be a member of any number of Associations. Thereafter the matter was remitted to the Jharkhand State Bar Council to take a decision. Thereafter a Contempt Application was filed being Contempt (Civil) Case No.54 of 2020 for non-compliance of final order passed in W.P.(C) No. 675 of 2017. During pendency of the contempt proceeding, an order was passed, which also became the subject matter of another writ petition being W.P.(C) No.759 of 2021. The said writ petition was also allowed on 18.07.2022, directing the Jharkhand State Bar Council to take a decision in respect of affiliation of the Petitioner Association in terms of Rule 2(a) of the Affiliation Rules. As no decision was taken, another contempt application was filed by the petitioner being Contempt (Civil) Case No.75 of 2023. During pendency of the aforesaid contempt application, an order dated 11.07.2023 was passed, rejecting the prayer of the petitioner, which is the subject matter of the present writ petition. 5. The Petitioner Association in the name and style of “Commercial Taxes Bar Association” at Jamshedpur was admittedly affiliated with the Bihar State Bar Council before bifurcation of the State of Bihar and before the formation of Jharkhand State Bar Council. A certificate of registration was also issued by the Bar Council of Bihar at Patna vide registration No. CBA/JSR/79/88 (Annexure 1), duly signed by the Chairman and Secretary of the Bihar State Bar Council on 17th day of March, 1988. The petitioner’s area of operation is within the State of Jharkhand, at Jamshedpur. After formation of the Jharkhand State Bar Council, though after a much delay, the petitioner applied for regularizing their affiliation, in terms of Rule 2(a) of the Advocates / Bar Associations Affiliation Rules, 2006 framed by the Jharkhand State Bar Council. The same was rejected time and again by the Jharkhand State Bar Council on the ground that some of the members of the Petitioner Association are not Advocates, hence their affiliation cannot be validated as per Rule 1(d) read with proviso to Rule 2(b) of the Affiliation Rules and also on the ground that there cannot be two affiliated Associations in one unit. The next ground taken by the respondent-Bar Council is delay in applying for regularization of affiliation. A further ground has been taken by the respondent-Bar Council that members of the Petitioner Association are also member of District Bar Association, Jamshedpur, thus, there is no necessity of giving affiliation to the Petitioner Association. The last plea has been negated in the first round of -: 3 :- litigation by the learned Single Judge, wherein in W.P.(C) No. 675 of 2017, it has been held that there is no bar if an Advocate becomes member in multiple associations. The aforesaid finding has attained finality. 6.
Legal Reasoning
While arguing this writ petition, learned Senior Counsel, Mr. M.S. Mittal, submits that admittedly, the Petitioner Association was already affiliated by the Bihar State Bar Council. After the formation of Jharkhand State Bar Council, in terms of Rule 2(a), this affiliation was to be regularized for which the Petitioner Association had filed applications, but the same was rejected time and again, which resulted in filing of several round of litigations. He refers to the final order passed in W.P.(C) No.759 of 2021 and argues that the entire issue and objections raised by the Jharkhand State Bar Council have been taken note of and after considering those objections, final order was passed. He further submits that once the issue, which has been raised by the Jharkhand State Bar Council was considered and there was a direction to consider the case in terms of Rule 2(a) of the Affiliation Rules by this Court, the respondents could not have deviated nor could have reopened the old issues, which have already been set at rest by the learned Single Judge in the earlier writ petitions. Whether the petitioner is a unit or not, could not have been decided afresh by the Bar Council when the Coordinate Bench of this Court has already decided the issue. He argues that the points, which were formulated in the impugned order by the Bar Council were not available to it. He submits that since the case is of regularisation and it has been directed by the learned Single Judge, the respondent Bar Council should have passed an appropriate order, strictly, in terms of Rule 2(a) only, but they had misdirected themselves and deviated from the issue, and from the direction of the learned Single Judge, which was not necessary at all. Lastly he submits that the final judgment passed in W.P.(C) No.759 of 2021 was not appealed against by the respondents, thus, the Council is bound by the findings arrived therein. Mr. Mittal, learned Senior Counsel, lastly submits that the Petitioner Association has filed an affidavit, stating that all the Members of the Petitioner Association are Advocates and they are enrolled with the Jharkhand State Bar Council and they also submit that in future also only lawyers duly enrolled with the Bar Council will be admitted as a member. 7. Mr. Manoj Tandon, learned counsel for the respondent-Jharkhand State Bar Council submits that to decide as to whether an Association needs to be affiliated or not, one has to decide whether the members are Advocates -: 4 :- or not. In the earlier round of litigation, it was found that some of the members are not even Advocates, thus, it was decided not to give affiliation to the Petitioner Association. He further submits that the question, which were formulated for deciding the issue was relevant for the purpose and after considering all those points raised and also taking into consideration the judgment passed by this Court, it was decided by this Court that Petitioner Association cannot be affiliated with the Jharkhand State Bar Council. He further submits that the Affiliation Rules clearly defines a unit. A unit means Jharkhand High Court Bar Association, District Bar Association, Sub Divisions and Tribunals where the lawyers practice. In this case since the members of Petitioner Association are already a member of District Bar Association, Jamshedpur, it is not necessary to give affiliation to this association as the same will contravene the proviso to Rule 2(b) of the Affiliation Rules, which prohibits from giving affiliation to two associations in one unit. He further submits that Bye-Laws of the Petitioner Association clearly suggests that every qualified person qualified to practice Income Tax and Sales Tax can become member of the Association. He argues that it is not necessary to be an Advocate to practice in Sales Tax, thus, there is high probability that the Petitioner Association will induct persons who are not Advocates and/or who are not registered with the Jharkhand State Bar Council as Advocate. On this ground, Mr. Tandon submits that the impugned order needs no interference. 8. Background of this litigation has already been mentioned in the aforesaid paragraphs. The admitted fact is that this Association was affiliated with Bihar State Bar Council. In this context, it is necessary to quote few of the Rules of affiliation as framed by the Jharkhand State Bar Council, duly approved by the Bar Council of India. Annexure 2 to this writ petition is the Rules. Rule 1(a) defines “Association”, which reads as follows:- “1. Definition: - In these Rules:- (a). “Association” means a body of Advocates having at least 50 Members if the Association is functioning at the District Head Quarter and in any other case having at least 25 members provided that the Bar Council may for good and sufficient reason, relax the conditions relating to number of Members in respect of the Associations.” Rule 1(c) defines “Advocate”, which means the legal practitioner whose names appear on the State roll of Advocates maintained by the State Bar Council. Rule 1(d) defines “Unit”. It is necessary to quote Rule 1(d) for better appreciation. Rule 1(d) reads as under: - -: 5 :- (d) “Unit” will means Advocate/Bar Jharkhand High Court, District, Sub Division, Income-Tax, Sales-Tax and Labour Tribunal at Ranchi, District or Sub-Divisional Head Quarter. Rule 2 deals with ‘affiliation’. Rule 2 is divided in two parts, i.e., (a) and (b). Rule 2(a) relates to regularization of affiliation of the Associations, which were already affiliated with Bihar State Bar Council, Patna till 22nd Nov. 2000 whereas Rule 2(b) deals with such types of Association, who seek fresh affiliation. It is necessary to quote Rule 2(a) and 2(b) for better appreciation, which read as under: - 2. Affiliation:- (a) All associations which were affiliated to Bihar State Bar Council, Patna till 22nd Nov. 2000 may apply for regularization of their affiliation by making application on prescribed form on payment of Rs.2100/- consolidated amount forthwith. Provided, the sub-Divisional Bar Association with the State of Jharkhand may apply for regularization of affiliation on prescribed form with consolidated amount of Rs.1400/- forthwith. Break in affiliation of the association may effect their members of respective association in calculating claim under Jharkhand State Advocate Welfare Trustee Committee. (b) Every Association desirous of affiliation may apply for its affiliation on the prescribed form (Sch.I) alongwith an affiliation fee of Rs.500/- for District Bar Association and Rs.300/- for Sub-Divisional Bar Association. A renewal fee of Rs.300/- for District Bar Association and Rs.200/- for Sub-Divisional Bar Association annually shall be payable 30th April, each year to the Bar Council for continuing the affiliation. If no renewal application is made by 30th May every year, the associations making application for renewal after the grace period shall be liable to pay fine @ Rs.20/- per months alongwith the application for renewal. Provided to one that affiliation will be accorded Association in one Unit, which has largest number of members on the date of affiliation. 9. Thus, from the provisions of Rule 2(a) and 2(b), it is clear that both these provisions operate independently and on different situations. Rule 2(a) is applicable for cases where Associations were already affiliated with Bihar State Bar Council and they applying for regularization of their affiliation whereas Rule 2(b) is for Associations who are desirous of being freshly affiliated meaning thereby for newly formed associations. The Association, which was already affiliated with the Bihar State Bar Council has the only option of being regularized. They need not invoke Rule 2(b) as Rule 2(a) is specific for that purpose. The term regularization used in Rule 2(a) will also suggest that the same is only for the purpose of regularization and is not for fresh affiliation. Admittedly, the Petitioner Association herein was affiliated with the Bihar State Bar Council till 22nd November 2000. This petitioner had -: 6 :- the option for getting their affiliation regularized by making an application in prescribed form on payment of Rs.2100/- consolidated amount. Admittedly, the petitioner immediately did not apply for regularization, rather they had filed an application on 08.06.2016, i.e., after 16 ½ years. 10. Now what would be the effect of break in this affiliation. The answer also lies in Rule 2(a) of the Affiliation Rules, which provides that break in affiliation of the Association may affect their members of respective association in calculating claim under Jharkhand State Advocate Welfare Trustee Committee. This is the only embargo imposed if there is break in affiliation. Conjoint reading of the provisions including Rule 2(a) of the Affiliation Rules leads to the only conclusion that regularization is the Rule and rejection is the exception. As held earlier, the only negative impact of this period will be upon the Members of the Association in relation to the Advocate Welfare Trustee Committee. 11. Now, since admittedly the petitioner had applied for regularization of their affiliation; after several rounds of litigations, order was passed by the Coordinate Bench in W.P.(C) No.759 of 2021. The said judgment has also been brought on record. After going through the said judgment, which has not been challenged by the respondent-Jharkhand State Bar Council, I find that the entire facts and the plea of all the parties have been taken note of by the learned Single Judge. In the aforesaid judgment I find that while arguing, respondent had taken all the points, which they are reiterating now. Learned Single Judge, after appreciating the argument of the parties, at paragraphs 14 and 15 has held as follows: - 14. Thus, in the cases where two provisions appear to be in conflict with each other, the Court must adopt harmonious interpretation of both the provisions. In any conflicting situation of two provisions, the court should enquire as to which of the two provisions is specific in nature that must be operative. The general provision operates, save and except in situations covered by the specific provision. Where there appears a conflict between two provisions, a subject-specific provision governs those situations in exclusion to the operation of the general provision. 15. This Court is of the considered view that since Clause (a) of Rule 2 of Rules 2006 provides for regularization of affiliation after payment of requisite fee and Clause (b) of the said rule 2 provides for affiliation to a new Bar Association, the proviso to clause (b) of the rule 2 will not be applicable in the petitioner’s case. The respondent has made wrong interpretation of rule 2 of Rules, 2006 while making observation the decision dated 09.12.2020 that the proviso to Clause (b) of rule 2 would be applicable to the petitioner’s case, rather the same in -: 7 :- comes under clause (a) of rule 2. The respondent has overlooked that clause (a) of rule 2 is a special provision and if the proviso to clause (b) is mixed up with clause (a), then the purpose of incorporating the provision for regularization of affiliation under clause (a) will be incorporating special redundant. The purpose of provision for those associations which were affiliated with the Bihar State Bar Council till 22nd November, 2000 is to protect the right of already affiliated associations and as such the respondent is in error while denying affiliation to the petitioner by citing applicability of proviso to Clause (b) of rule 2 of the Rules, 2006. 12. Learned Single Judge, thereafter, quashed the decision of the Jharkhand State Bar Council, directing the Jharkhand State Bar Council to take a fresh decision regarding affiliation of the petitioner in terms of Rule 2(a) of Affiliation Rules. 13. The learned Single Judge has clearly rejected the plea of the respondents that the case of the petitioner falls within the ambit of Rule 2(a) of the Rules. Once learned Single Judge directed the respondents to consider the case of the petitioner in terms of Rule 2(a), it was the duty of the Jharkhand State Bar Council to comply it and decide the application of the petitioner strictly in terms of Rule 2(a) and not under any other provision. 14. Respondent, thereafter passed the impugned order dated 11.07.2023 (Annexure 14), which is the subject matter of this writ petition. 15. While deciding the case of the petitioner, on remand, respondents have framed few questions. It is necessary to quote the questions framed by the respondents, which read as under 1. What is a Bar Association? Whether CTBA qualifies to be called a Bar Association? 2. If not, whether the State Bar Council has the authority to affiliate any Association which does not qualify as Bar Association? If yes, under what provision? 3. Whether any application for regularize of affiliation after such delay of several years may be accepted even when no ground for delay has been shown? 4. If an association may be entitled to regularize, can the regularize be ordered even when and then essential rule is negated totally? 5. Whether any Advocate who is a member of CTBA would be unable to receive any benefit or exercise any right to which an Advocate is otherwise entitled if affiliation is denied to CTBA? 16. After going through these questions, I find that question No.1, 2, 4 and 5, in view of the judgment passed by the learned Single Judge in the earlier round of litigation, should not have been framed. Admittedly, this association was already affiliated with the Bihar State Bar Council. When this Association was already registered and was affiliated with the Bihar State Bar Council, and learned Single Judge also did not arrive at any finding to the -: 8 :- effect that the petitioner do not qualify to be called a Bar Association, respondent had no jurisdiction to frame Question No.1. 17. So far as point No.2 is concerned, as held earlier, the case of the petitioner is not for fresh affiliation, it is only for regularization of their affiliation. Learned Coordinate Bench has already issued a mandamus to respondents to consider the application of the petitioner in terms of Rule 2(a). That being so, second part of the question framed in Question No.2 should not have been framed by the respondents. When the learned Single Judge had directed the respondents to apply Rule 2(a), the respondents had no authority to frame this question as to under what provision the petitioner’s case be considered. 18. The question No.4 has already been argued in the earlier round of litigation and has been taken note of. The respondents are harping that if affiliation is renewed to the Petitioner Association, then there will be two associations in one unit, which will be against the Affiliation Rules. I find that this interpretation of the respondents is not correct. Admittedly, the Rule provides that there cannot be two Associations in one unit, but the unit has already been defined in Rule 1(d), though quoted earlier, is again being quoted here under:- (d) “Unit” will means Advocate/Bar Jharkhand High Court, District, Sub Division, Income-Tax, Sales-Tax and Labour Tribunal at Ranchi, District or Sub-Divisional Head Quarter. 19. I find that a unit has got nothing to do with the geographical location. For example High Court of Jharkhand is taken to be a unit, Jamshedpur Civil Court is taken to be a unit, Sub Division Court of Ghatshila is one unit. Proviso to Rule 2(b) provides that there cannot be two associations in one unit, meaning thereby there cannot be two affiliated associations in the High Court of Jharkhand or Civil Court or Sub Divisional Courts or any other Court. This is not the case here. Petitioner is an association consisting of advocates and who practice, especially in Commercial Taxes and appears before the Commercial Taxes Courts or Authorities. There is no embargo upon a lawyer that he cannot practice in more than one field or before more than one Court. Advocates can practice anywhere. They are free to appear before the Commercial Tax Courts or before the Civil Courts or any other Courts or before any Authority in the country. Similarly any advocate appearing before Quasi Judicial Courts can also practice before this High Court also. Thus, regularizing affiliation of Petitioner Association will not be an infringement of the proviso to Rule 2(b) of the Affiliation Rules. -: 9 :- 20. Another fear, which respondents have raised is that as it is not necessary to become an advocate to practice in the Commercial Taxes, there will be high probability that in future, petitioner will induct non-advocates as their member, which will be against the Affiliation Rules. I also do not find any merit in the aforesaid apprehension and the same is misconceived. 21. In the instant case, I find that the respondents have filed an affidavit stating that all their members are advocates and they do not admit any members, who is not an advocate. In this context, it is necessary to go through the Bye-Laws of the Petitioner Association. Bye-Laws of the Petitioner Association are at Annexure 3. It is necessary to quote Clause 4 of the aforesaid Bye-Laws. Clause 4 defines Members. Clause 4(a) provides that every qualified person, who is regularly practicing commercial taxes or income taxes is competent to become member of the association. 04. Members a) Every Qualified persons Regularly Practicing Commercial Taxes or become a member of the Association. in Income Tax is competent to If this provision is read independently, it gives an impression that every qualified person regularly practicing in Commercial Taxes or Income Tax is eligible to become a member of the Association, thereby a non-advocate can also be a member as it is not necessary to be an advocate to practice commercial tax cases. But this Clause 4(a) cannot be read in isolation, it has to be read harmoniously with Clause 4(b). Clause 4(b) provides for admission of eligible persons. It is necessary to quote Clause 4(b) which reads as under:- b) Admission Every eligible person as per clause 4(a) Subscribing to the aims and objects of the Association may make an application for membership which shall accompany Advocates Enrolment Certificate the Bar Council/High Court, copy of identity card, if any, and two recent passport size photographs. … from From the aforesaid provision, it is clear that to become a member and to get entry in the petitioner association, one has to make an application for membership and the application shall contain advocate enrolment certificate from the Bar Council. This word “shall” makes it mandatory for an eligible member to first become an advocate to be a member of the petitioner association. Thus, on conjoint and harmonious reading of Clause 4(a) and Clause 4(b), it is clear that a person, who is not an advocate enrolled with the Bar Council, cannot be a member of the petitioner Association. Thus, all the fears raised by the respondent-Bar Council are unfounded. -: 10 :- 22. Now, the question is delay in seeking regularization of the affiliation. As mentioned hereinbefore, the effect of the delay which amounts to break in affiliation is provided for in Rule 2(a) of the Affiliation Rules framed by the Jharkhand State Bar Council. The negative impact of break in affiliation is upon the individual members of the Association, vis-à-vis the benefit, which they can claim, which is extended by the Advocate Welfare Trustee Committee. Except the aforesaid curtailment in benefits, there is no embargo in the Affiliation Rules, which debars the Petitioner Association from getting regularization of their affiliation. Admittedly, the petitioner was already affiliated with the Bihar State Bar Council. Learned Single Judge in the earlier W.P.(C) No.759 of 2021 had directed the respondents to consider the case of the petitioner in terms of Rule 2(a), from which the respondents deviated themselves by framing questions, which are not germane for purposes of deciding their case. 23. Considering Rule 2(a) coupled with the fact that all the Members of the Petitioner Association are Advocates, and the fact that the petitioner was already affiliated with the Bihar State Bar Council, regularizing the affiliation by no means will breach the proviso of Rule 2(b) and will not amount to giving affiliation to two Associations in the same “unit” as the Petitioner Association is not operating in any other “Unit”. Therefore, the impugned order is quashed. Mandamus is issued upon the respondents to regularize the affiliation of the Petitioner Association and issue necessary certificate to that effect within a period of six weeks from the date of receipt and/or production of a copy of this order. This Court also cautions the Petitioner Association that they will not induct any person in future as member, who is not enrolled with any Bar Council. 24. This writ petition stands allowed. Pending interlocutory
Decision
applications, if any, stand disposed of. Kumar/Cp-02 (Ananda Sen, J.)