PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the respondent in Resolution No.286 of 2010 dated 17.7.2010, quash the same and consequently direct the respondent to recognise the petitioner association as per Section 13 of the Tamilnadu Advocates Welfare Fund Act, 1987.
ORDER
1. The petitioner is an association of advocates practising in Gobichettipalayam and they have come up with the above writ petition challenging a resolution dated 17.7.2010 passed by the respondent, refusing to recognise the petitioner association in terms of Section 13 of the Tamilnadu Advocates' Welfare Fund Act, 1987.
2. Heard Mr.A.K.Kumarasamy, learned counsel for the petitioner and Mr.S.Y.Masood, learned counsel appearing for the respondent.
3. As per the affidavit in support of the writ petition, the members of the petitioner association were originally the members Gobichettipalayam Bar Association, which is recognised by the Bar Council in terms of Section 13 of the Tamilnadu Advocates' Welfare Fund Act, 1987. It is the case of the petitioner that pursuant to a call given by the Federation of Advocates in Tamilnadu and Pondicherry, for the indefinite boycott of courts in connection with the issue of Srilankan Tamils, the Gobichettipalayam Bar Association started boycotting courts from 9.2.2009 onwards. Since the boycott continued for a long time, a section of the lawyers practising in Gobichettipalayam, who were members of the recognised Gobichettipalayam Bar Association, requested the association to convene a meeting for moving a resolution on 25.2.2009 for the resumption of work. But, the move is claimed to have been opposed by a majority of the members, resulting in the proposal being defeated.
4. Thereafter, 15 advocates, who were members of the recognised Bar Association, started attending courts in defiance of the resolution for continuation of boycott, passed by the Gobichettipalayam Bar Association. Therefore, the Bar Association met on 9.3.2009 and passed a resolution suspending all those 15 advocates, who were attending courts. Subsequently, show cause notices were issued to those 15 persons and they were ultimately removed from the primary membership of Gobichettipalayam Bar Association.
5. Upon their removal from the primary membership of the association, the members of the petitioner association lost their right to use Bar room, library and toilet facilities. Therefore, the expelled members formed an independent association by name Gobichettipalayam Advocates' Association and got it registered under the Tamilnadu Societies Registration Act on 4.8.2009. That association is the petitioner herein. After registration, the petitioner association made an application on 10.12.2009 to the respondent to recognise them in terms of Section 13 of the Tamilnadu Advocates' Welfare Fund Act, 1987. But, the said application was rejected by a resolution dated 17.7.2010 passed by the respondent. Aggrieved by the said resolution, the petitioner has come up with the above writ petition.
6. The respondent has not filed counter. But, the learned counsel for the respondent made his submissions on the basis of the Act and the Rules and the resolution passed. Therefore, the writ petition itself was taken up for disposal by consent.
7. The impugned resolution passed by the respondent reads as follows :
"On perusal of application and on perusal of our records, it is ascertained that there are only 16 members in that association and it is not permitted as per our Rules. Hence, we are of the opinion that the recognition to this association is not necessary and if recognition is given on mere asking, it may lead to all sorts of complications and there may be every likelihood of another 10 to 20 persons forming an association and seeking recognition in future also. Therefore, to avoid all these unnecessary happenings, this Council is of the opinion that the recognition for this association is not necessary and hence, it is resolved to reject the application for recognition filed by this association."
8. The main ground on which the petitioner has challenged the impugned resolution is that as on date, the members of the petitioner association are virtually prevented from exercising their right to practice, on account of their expulsion from a recognised association and on account of the refusal of the respondent to recognise the petitioner association.
9. Therefore, the short question that arises for consideration is as to whether the refusal of the respondent to recognise the petitioner association is justified or not.
10. The right of a person to practice as an advocate, is restricted by the Advocates Act, 1961. The word 'advocate' is defined in Section 2(1)(a) of the Act to mean an advocate entered in any roll under the provisions of this Act. As per Section 3(1)(cc) of the Advocates Act, 1961, there shall be a Bar Council for the State of Tamilnadu and the Union Territory of Pondicherry. Under Section 17(1), every State Bar Council should prepare and maintain a roll of advocates in which shall be entered the names and addresses of persons, who are admitted to be advocates on the rolls of the State Bar Council. Under Section 22(1) of the Act, the State Bar Council is obliged to issue certificate of enrolment in the prescribed format to every person whose name is entered in the roll of advocates. Section 24-A prescribes dis-qualifications for enrolment and Section 26-A empowers the State Bar Council to remove from the State roll, the name of any advocate who is either dead or from whom a request has been received to that effect.
11. The right of a person to practice as an advocate stems only out of his membership of the Bar Council. Under Section 29 of the Act, there is only one class of persons entitled to practice the profession of law, namely advocates. This is subject to the provisions of the Act and the Rules made thereunder. Section 30 of the Act confers a right upon the advocates to practice and this section has recently been notified. Section 33 of the Act makes it clear that except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed date, be entitled to practice in any court or before any authority or person unless he is enrolled as an advocate under this Act.
12. It is needless to emphasis that the right of a person to practice any profession is a fundamental right guaranteed by The Constitution. But, the right of a person to practice the profession of law is restricted by the provisions of the Advocates Act, 1961 and these restrictions fall within the category of reasonable restrictions.
13. In the year 1987, the State of Tamilnadu enacted the Tamilnadu Advocates' Welfare Fund Act, 1987, with a view to provide for the constitution of a welfare fund for the benefit of the advocates on cessation of practice and for matters connected therewith or incidental thereto in the State of Tamilnadu. The said Act underwent a couple of amendments; one in the year 1990; and another in the year 1992. Section 2(a) of the said Act defined an 'advocate'. This definition of the word 'advocate' in the Tamilnadu Act, went a little further than the definition of the word 'advocate' in the Advocates Act, 1961. While the word 'advocate' in the Advocates Act, 1961 is defined only to mean an advocate entered in any roll under the provisions of the 1961 Central Enactment, the same expression was defined under Section 2(a) of the Tamilnadu Act, 1987 to mean a person whose name is not only entered in the roll of advocates as per the Advocates Act, 1961, but also a person, who is a member of a Bar Association or an Advocate Association.
14. In other words, the Tamilnadu Act imposed one more restriction upon the right of a person to practice as an advocate. While the restriction under the 1961 Act was only to the enrolment of a person in the State Bar Council, the Tamilnadu Act made it incumbent upon an advocate to be a member of a recognised Bar Association or Advocate Association also in addition to being a member of the State Bar Council.
15. The expression 'advocates association' is defined in Section 2(b) of the Tamilnadu Act to mean an association of advocates recognised and registered by the Bar Council under Section 13. A similar definition is given to the expression 'bar association' under Section 2(c).
16. Section 13 of the Tamilnadu Act empowers the Bar Council to recognise and register any association of advocates. The said provision reads as follows :
"Recognition and registration by Bar Council of any association of advocates :
(1)(a) Any Association of advocates, known by any name, functioning in any part of the State, may, before a date to be notified, or before such extended date as may be notified, by the Bar Council in this behalf, apply for recognition and registration to the Bar Council, in such form as may be prescribed.
(b) Any association of advocates constituted after the date of publicationof the Tamilnadu Advocates Welfare Fund (Amendment) Act, 1990, in the Tamilnadu Government Gazette, may, apply for recognition and registration to the Bar Council in such form as my be prescribed.
(2) Every application for recognition and registration shall be accompanied by the rules or bye-laws of the association, names and addresses of the office bearers of the association and an upto date list of the members of the association showing the name, address, age, date of enrolment and the ordinary place of practice to each member.
(3) The Bar Council may, after such enquiry, as it deems necessary, recognise the association and issue a certificate of registration in such form as may be prescribed.
(4) The decision of the Bar Council under sub-section (3) shall be final."
17. Section 15 of the Tamilnadu Act enables a person to apply for admission as a member of the welfare fund, only if he is an advocate practising in any court in the State and he is also a member of a Bar Association. Sub-Section (4) of Section 15 requires every member of the fund to pay an annual subscription.
18. Section 23(1) of the Act requires every vakalatnama filed before any court or tribunal or other authority to have one stamp in addition to the court fee stamps affixed thereon. The value of such stamp is treated neither as costs in a case nor be collected in any event from the client, by virtue of Sub-Section (2) of Section 23. Though Sub-Section (3) of Section 23 merely enables the Trustee Committee to take appropriate action against any member for contravention of the provisions of Sub-Section (1) or (2), the vakalatnama filed by such an advocate cannot be accepted in any court of law.
19. The difficulty for advocates, who are not members of any recognised Bar Association or Advocates Association arises only on account of Section 22. Under Section 22(1), the Bar Council is obliged to cause to be printed and distributed the welfare fund stamps of the value of Rs.5/-. Under Sub-Section (3), the custody of such stamps should be with the Bar Council. Under Sub-Section (4), the Bar Council is entitled to control the distribution and sale of stamps through the recognised Bar Associations and Advocates Associations. The Bar Associations and Advocates Associations are obliged to keep proper accounts of the stamps, in terms of Sub-Section (5). The Bar Associations and Advocates Associations can purchase stamps from the Bar Council after paying the value thereof less 10% of such value towards incidental expenses.
20. In exercise of the powers conferred under Section 27 of the Tamilnadu Act, the State of Tamilnadu has also issued a set of rules known as the Tamilnadu Advocates Welfare Fund Rules, 1989. The Rules have no relevance for the purpose of our present discussion and hence, I am not making a reference to the Rules.
21. A combined reading of the provisions of the 1961 Central Enactment and the 1987 State Enactment would show two things, namely (a) that it is no more sufficient for a person to be enrolled in any State Bar Council, but he should also be a member of a recognised Bar Association or Advocates Association; and (b) that unless a person is a member of an Advocates Association or a Bar Association, his very right to practice law would get curtailed, in the sense that he will not have access to the welfare fund stamps, without which, vakalatnamas could not be filed by him.
22. In other words, the State Enactment has imposed an additional restriction upon the right of a person to practice law. It is no doubt true that the 1961 Advocates Act itself imposes certain restrictions. But, the Bar Council being a statutory body, any decision taken by them would become amenable to the jurisdiction of this Court. But, that may not be the case in respect of an Advocate Association or Bar Association, which are only associations registered under the Societies Registration Act (Central or State). The result is that a person, who does not want to be a member of any recognised Bar Association or Advocates Association or a person, who is removed or expelled from the membership of any recognised Advocate Association or Bar Association, today cannot file a vakalatnama in court, as his right to receive the welfare fund stamps depends upon his membership of the Bar Association or Advocates Association. It is this fact, which has actually led to the break away group comprising of expelled members, to form a new association. This aspect has not been taken into account by the respondent, while passing the impugned resolution.
23. It is seen from the impugned resolution, which I have extracted above that the Bar Council has merely gone by the total number of membership of the petitioner association. The Bar Council has just taken into account the fact that the petitioner has a membership of only 16 persons. Therefore, the Bar Council thought fit to say that granting recognition for the mere asking to splinter groups would lead to lot of complications.
24. It may be true that such actions may result in complications for the Bar Council. But, these complications are mere administrative complications. On the other hand, the complication created for persons, who are expelled from the membership of any association is a greater complication in the sense that they cannot practice law unless the Bar Council has any other provision, by which, they make available the welfare fund stamps even to such persons. To say that an association formed by a splinter group could not be recognised and at the same breathe not taking into account, the hardship caused due to the non availability of the welfare fund stamps, would infringe upon the Fundamental Rights of such members to practice law. Therefore, so long as the members of the petitioner association have virtually been prevented from practising law, the Bar Council is obliged to go to their rescue.
25. The Courts cannot lose sight of the fact that in the recent past, the functioning of courts has been disrupted to a great extent due to boycott of courts by lawyers. Despite knowing that such boycotts have been declared illegal by the Apex Court, the associations recognised by the Bar Council continue to indulge in such boycotts with impunity. The Bar Council, which is vested with the obligation to regulate the profession and enforce discipline, does not take any action against the recognised associations, which issue such boycott calls.
26. Section 14A of the Tamilnadu Welfare Fund Act empowers the Bar Council to cancel the recognition and registration of any Bar Association/Advocates Association. This can be done if the Advocates/Bar Association fails to discharge any of the duties imposed upon them under Section 14 or fails to carry out the directions given under Section 9A.
27. While Section 9A empowers the Bar Council to give such directions to Bar/Advocates Association as are necessary for carrying out the purposes of this Act, Section 14(3) obliges every Advocates Association to carry out the directions given by the Bar Council. But, there is not a single instance where the Bar Council issued any direction to any Advocates/Bar Association not to resort to illegal boycotts. There is not a single instance where the Bar Council cancelled the recognition of any Advocates/Bar Association under Section 14A. Therefore, right thinking individual members of all recognised associations have very little choice, namely either to resign from the membership of the recognised Bar/ Advocates Association or to defy any resolution for boycott passed by the association. Once these members defy any unlawful resolution passed by any Bar Association, these members are expelled from such recognised associations. The expulsion spells doom for these members, as their right to receive welfare fund stamps from the recognised associations and their right to use the library and toilet facilities in the rooms allotted to the associations get curtailed.
28. The consequence is that a member of the Bar should always be at the mercy of the recognised associations, so as to be able to continue to practice of law (?). If these right thinking individuals do not toe the line of a few, who control the recognised associations, their very survival gets threatened.
29. The Bar Council should take note of the above reality. Even if they do not invoke Section 14A to cancel the registration of the recognised Bar Associations, who violate the law, the Bar Council should at least go to the rescue of right thinking individuals, who want to break away and form their own association. If an encouragement is shown by the Bar Council to these persons, the persons, who suffer in silence may have an incentive to take positive action.
30. Therefore, the writ petition is allowed, the impugned resolution is set aside and the matter is remitted back to the Bar Council. The Bar Council shall take note of the fact that persons, who are expelled from any recognised association should not be left without any remedy. Unless their access to the welfare fund stamps and their access to the Bar library and toilet facility is ensured, their right to form associations, which again is another Fundamental Right, cannot be restricted. The respondent shall direct the inspection committee to make an inspection, conduct an enquiry, take into account all the above observations and pass an order within a total period of eight weeks from the date of receipt of a copy of this order.