The Karnataka High Court on Monday (14.12.2020) comprising of a division bench of Justice G Narendar and Justice M I Arunhas held that a writ petition under Article 226 of the Constitution is maintainable against a Bar Association.( Shri Chandrakant v Karnataka State Bar Council)
The bench noted "Advocates are not mere arbiters but officers of the court who assist the court in the running of the justice delivery system and it is such officers of the court who constitute the 3rd respondent Society. That the constituents of the 3rd respondent Society, are answerable to the Court and to the 1st respondent with regard to their conduct in the discharge of their professional duties. Both the 1st respondent and the Court can by no stretch of imagination be described as private entities."
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The bench while deciding an appeal filed by Chandrakant Majagi, Advocate and Vice President of Belagavi Bar Association who challenged the appointment of Dinesh M Patil as President of the Bar Association , noted "It is held that the writ petition against the 3rd respondent Bar Association, a Society registered under the Societies Registration Act, is maintainable."
In the elections conducted to the various posts of the Managing Committee, appellant/petitioner came to be elected as the Vice President of the Managing Committee for the period 2019-2020 to 2020-21. A.G.Mulawadmath was elected to the post of President. He defeated the 4th respondent (Patil).
Mulawadmath passed away on 09.08.2020. In the light of the sudden demise of the President, the Managing Committee, in the meeting held on 11.08.2020 resolved to authorize the appellant/petitioner to operate the bank accounts and discharge other official work attached to the office of the President.
Certain members of the Managing Committee made a request to the Association which called a meeting on 25.09.2020 to fill the vacant post of President by co-option. Despite opposition and objections, a meeting was held on 03.10.2020 and resolution was passed co-opting the 4th respondent to the post of President.
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Following this, the petitioner Majagi moved the high court which by way of interim order restrained the 4th respondent. However, the Bar Association filed a statement of objections and raised a preliminary objection regarding the maintainability of the Writ Petition.
It was submitted that Association is a Society and a private entity and a writ petition is not maintainable. The association does not border on or contain a public law element and hence, a judicial review of the resolution in exercise of the powers vested in the High Court in Article 226 of the Constitution of India is impermissible. Moreover, the association is neither funded by the State Government or under the control and supervision of the State.
Based on this, on 11th November, the Single Judge dismissed the said writ petition on the ground of maintainability and did not go into the merits of the writ petition.
The petitioner aggrieved by this filed an appeal to set aside the order passed by the Single Judge in November.
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The Division Bench, after relying on a number of judgments passed by the Supreme Court and other High courts, and observed,
"The point of maintainability of the writ petition as against a Bar Association has specifically contended and the Courts have consistently held that the Bar Association is amenable to the writ jurisdiction and that a writ under Article 226 of the Constitution of India is maintainable against the Bar Association, more so when the issue involved is the sanctity of the elections. We are in complete agreement with the views expressed by the various High Courts."
Some of the obligations that the Bar Association has cast upon itself bear a public character, the Court added after referring to the provisions of the bye-laws and the objects of the Bar Association.
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The Court placed reliance on the Supreme Court's judgment in Supreme Court Bar Association v. B D Kaushik, in which it was held that bar associations discharge a public function.
The Court was prompt to note that the Bar Association was in receipt of grants and was situated within the precincts of the Court. Moreover, the Association was under the pervasive control of the Karnataka State Bar Council.
On the point of the order dated 17th of November, the Court opined that the same shocked its "conscience".
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"Single Judge has failed to consider the scope and ambit of Article 226 of the Constitution of India which clearly empowers the High Court to issue prerogative writs even to private entities. When and in which case such prerogative writs can be issued depends on the facts and circumstances of each case. The instant case involving co-option of a defeated candidate to an elected post of President of the Association is a circumstance which is not only flagrantly contrary to the bye laws and to democratic principles and is a situation that warrants consideration by the High Court. In our considered opinion, the action complained off shocks the judicial conscience of this Court."
On these grounds, the Bench went on to restrain Patil from co-opting the post of President of the Bar Association, and held that a petition under Article 226 is maintainable against the Bar Association.
"It is held that the writ petition against the 3rd respondent Bar Association (Belagavi Bar Association), a Society registered under the Societies Registration Act, is maintainable."
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In conclusion, the Bench observed,
"In our considered opinion, the action prima facie appears to be contrary to the very spirit of the preamble. Democracy has been recognized as one of the basic features of the constitution and the Act complained of by the petitioner prima facie appears to be going against the very grain of democracy. It would be a travesty of justice to permit the 4th respondent to continue in the post of the President pending consideration of the interim relief afresh."
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