(Reserved) v. Sri S.Pundir, Sri M.M. Lamba, Sri M.C. Pant, Sri Gopal Narain

the payment of any fee, be removed from the roll of the first mentioned State Bar Council and entered in the roll of the other State Bar Council and the State Bar Councils concerned shall comply with such direction: [Provide that where any such application for transfer is made by a person against whom any disciplinary proceeding is pending or where for any other reason it appears to the Bar Council of India that the application for transfer has not been made bona fide and that the transfer should not be made, the Bar Council of India may, after giving the person making the application an opportunity of making a representation in this behalf, reject the application.] (2) For the removal of doubts it is hereby declared that where on an application made by an advocate under sub-section (1), his name is transferred from the roll of one State Bar Council to that of another, he shall retain the same seniority in the latter roll to which he was entitled in the former roll.

Petitioner, has been transferred to the State of Uttaranchal and his name having been entered in the voter list of 2004 for the purpose of the election of the members of the Bar Council of Uttaranchal. In view of the aforesaid fact, we find no merit in the arguments of the counsel of the respondents that the petitioner has no locus standi and the petition is not maintainable. Petitioner has submitted that the resolution of the respondents dated 23.10.2004 for the formation of head quarter at Dehradun in wholly without jurisdiction. The resolution dated 23.10.2004 reads as under:- Ckkj dkSafly ds gSM DokVZj ij fopkj%& ckj dkSafly ds gSM DokVZj ds fy;s foLr`r ppkZ gqbZ mifLFkr 15 lnL;ksa esa ls 12 lnL;ksa us dgk fd gSM DokVZj nsgjknwu esa gks Jh xksiky flag esagjk us dgk fd gSM DokVZj uSuhrky esa gh gksuk pkfg;s Jh lqHkk’k R;kxh us dgk fd gfj}kj esa gksuk pkfg,A vUr esa cgqer ls gSM DokVZj nsgjknwu cukus dk izLrko ikl fd;k x;k bl leCU/k esa dk; kZy; ds fy, LFkku gsrq lfpo iz; kl djsaxsA f"kfoj dk; kZy; uSuhrky esa j[ks tkus dk izLrko ikfjr fd;k x;kA tc rd nsgjknwu esa dk; kZ;y dh O;oLFkk ugha gksrh gS rc rd d;kZy; iwoZ dh rjg uSuhrky esa gh pyrk jgsxkA bl lanHkZ esa izLrko dh ,d izfr ckj dkSafly vkQ bf.M;k dks lwpukFkZ Hksth tk; sxhA Before passing the aforesaid resolution dated 23rd October, 2004, the respondents have passed a resolution on 18th September, 2004 where the Bar Council of Uttaranchal has taken a decision that the matter with regard to the head quarter shall be referred to the Bar Council of India by the Chairman.

The resolution dated 18th September, 2004 is quoted below:- ckj dkmfUly ds gSM DokBZj ds fcUnq ij fopkj%& bl fcUnq ij fopkj djus ls iwoZ v/;{k egksn; }kjk gSM DokVZj ds LFkku ds fy, gkml ds fu.kZ; ds vk/kkj ij gh fu/kkZfjr gksus dk er O;Dr djrs gq, v/;{k egksn; dh vksj ls ckj dkmafly vkWQ bf.M;k dks fy[ks i= ,oa ckj dkmafly vkWQ bf.M;k ls izkIr i= dks gkml esa i<k x;k vkSj rnqijkar loZ lEefr ls fu.kZ; fy;k x;k gS fd gSM DokVZj ds lEcU/k esa fopkj vxyh cSBd esa fd;k tk; sxkA Petitioner has pointed out the letter received from the Bar Council of India on 14th September, 2004 where the Secretary Bar Council of India on a letter sent by the respondents has replied to the Secretary Bar Council of Uttar Pradesh as well as to the Bar Council of Uttaranchal that the head quarter of the Bar Council of Uttaranchal shall be at Nainital which is the seat of the High Court. The reply letter 14-9-2004 is quoted below:- S. RADHAKRISHAN Secretary BC1 :D:3539:2004 Shri Dharamveer Sharma, Advocate, Chairman, Bar Council of Uttaranchal, Nainital Shri D.K. Sharma, Advocate, Member, Bar Council of India Deena Lodge, Mallital Nainital, Uttaranchal Sir, The Bar Council of India at its meeting held on 4th/5th September 2004 considered letter dated 3-9-204 received from Shri Dharamveer Sharma, Chairman, Bar Council of Uttaranchal relating to the seat of the Bar Council of Uttaranchal and also about the funds to meet the expenses of day today affairs of Bar Council of Uttaranchal.

After in depth discussion/consideration, the Bar Council of India resolved as follows:- RESOLUTION On bifurcation of the State Bar Council of Uttar Pradesh and on Constitution of the State Bar Council of Uttaranchal. Bar Council of Uttaranchal has requested for share of its assets and funds to meet the expenses of day today affairs of the Bar Council of Uttaranchal. It is resolved to request the State Bar Council of Uttar Pradesh to immediately release an amount of Rs. 15 lakh at the initial stage to the State Bar Council of Uttaranchal to carry on its statutory functions and further resolved that the sharing of assets, capital and liability be completed as early as possible. Council considered the letter dated 3rd September 2004 received from the Chairman, Bar Council of Uttaranchal and it is decided to inform him that the Headquarter of the Bar Council of Uttaranchal shall be at Nainital which is the seat of the High Court.

This is for your information Yours faithfully, (S. RADHAKRISHNAN) SECRETARY Copy to : The Secretary, Bar Council of Uttar Pradesh, 19, Maharashi Dayanand Mard, Allahabad With a request to take necessary steps in terms of the above Resolution reg:release of funds. As will appear from the aforesaid, that there was a letter dated 3rd September, 2004 sent by the Chairman Bar Council of Uttaranchal where it was specifically indicated that the headquarter of the Bar Council of Uttaranchal shall be at Nainital which is the seat of the High Court. In view of the aforesaid communication, there was no need to pass a fresh resolution for changing the headquarter from Nainital to Dehradun. Both the resolutions dated 18th September, 2004 (Resolution no. 6 for considering the change of the headquarter as well as resolution dated 23rd October, 2004) (resolution no. 6 for formation of the headquarter at Dehradun) are completely without jurisdiction.

A judicial notice can be taken that the headquarters of the Bar Council remains at the place where the seat of the High Court exists. For example U.P. is having the office of the Bar Councial at Allahabad, Madras at Chennai etc. Uttar Pradesh Reoganisation act, 2000 provides formation of the High Court of Uttaranchal sub-clause 2 provides that the principal seat of the High Court of Uttaranchal shall be at such place as the President may be notify order appoint. Section 26 of the Uttar Pradesh Reorganisation Act is quoted below:- High Court of Uttaranchal. – (1) As from the appointed day, there shall be a separate High Court for the State of Uttaranchal (hereinafter referred to as “the High Court of Uttaranchal”) and the High Court of Judicature at Allahabad shall become the High Court for the State of Uttar Pradesh (hereinafter referred to as the High Court at Allahabad). (2) The Principal seat of the High Court of Uttaranchal shall be at such place as the President may, by notified order, appoint.

(3) Notwithstanding anything contained in sub-section (2), the Judges and division courts of the High Court of Uttaranchal may sit at such other place or places in the State of Uttaranchal other than its principal seat as the Chief Justice may, with the approval of the Governor or Uttaranchal, appoint. Section 7 of the Advocates Act provides that Bar Council of India has full control over the State Bar Councils. The word ‘control’ has been defined under the Law Lexicon page 410 as under:- Control. As a noun, power to check or restrain; superintendence; management. As a verb, to restrain; to check; regulate; to govern; to keep under check; to hold in restraint; to dominate; to rule and direct; to counteract; to exercise a directing, restraining or governing influence over; to govern with reference thereto; to subject to authority; to have under command, and authority over, to have authority over the particular matter.

As will appear from the aforesaid definition the term ‘control’ is of a very wide connotation and amplitude and includes a large authority of powers which are incidental or consequential to achieve the powers vested in the authority concerned. Petitioner has referred Article 235 of the Constitution of India where the world ‘control’ concerning subordinate courts has been defined. It reads as under:- Art. 235. The control over district courts and courts subordinate thereto including the posting and promotion of, and State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

In view of the above proposition of law, the resolution passed by the State Bar Council from time to time for changing the headquarter either on 18th September, 2004 or 23rd October, 2004 have been passed inspite of the fact there has already been a concurrence of the Bar Council of India for the headquarter of the Bar Council of the State t Nainital which is the seat of the High Court. Further once there was a resolution of the State Bar Council that the matter shall be referred to the Bar Council of India by the Chairman, there was no occasion to pass a separate resolution. We find that the resolution was contradictory to their own statement dated 3rd September, 2004. The resolution of the respondents dated 18th September, 2004 as well as 23rd October, 2004 are wholly without jurisdiction and these being no legal semblance, the same deserve to be quashed. In view of the observation made above, we find merit in the writ petition and the same is allowed.