IN THE HIGH COURT OF DELHI AT NEW DELHIimages.assettype.com/barandbench/import/2018/02/... · S/o...
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IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
URGENT APPLICATION
To, The Deputy Registrar, Delhi High Court, New Delhi. Sir, Kindly treat the accompanying petition as an urgent one in accordance with the
High Court Rules and Orders.
The grounds of urgency are:
Urgent Orders and Directions are prayed for.
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Bar & Bench (www.barandbench.com)
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IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
NOTICE OF MOTION
Standing Counsel, Bar Council of India, Delhi High Court, New Delhi Sir, Please find enclosed herewith a copy of Writ Petition (Civil) No. ______/ 2018,
being filed on behalf of the petitioner.The same is likely to be listed before
Hon'ble Court on 27.02.2018 or any date soon thereafter.
Please take notice accordingly.
Yours faithfully,
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Encl: As above.
Bar & Bench (www.barandbench.com)
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IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
NOTICE OF MOTION
Bar Council of Gujarat,
3rd Floor, Satyamev Complex, Sola Ahmedabad – 380060 Gujarat Sir, Please find enclosed herewith a copy of Writ Petition (Civil) No. ______/ 2018,
being filed on behalf of the petitioner. The same is likely to be listed before
Hon'ble Court on 27.02.2018 or any date soon thereafter.
Please take notice accordingly.
Yours faithfully,
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Encl: As above.
Bar & Bench (www.barandbench.com)
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IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
MEMO OF PARTIES
1. DUSHYANT ANIRUDDHA DAVE
S/o Sh. Aniruddha Dave R/o 134, Sunder Nagar New Delhi – 110011 …Petitioner
VERSUS 1. BAR COUNCIL OF INDIA
Through The Secretary, Bar Council Of India, 21 Rouse Avenue, Institutional Area, New Delhi – 110002
PROFORMA RESPONDENT.
2. THE BAR COUNCIL OF GUJARAT Through The Secretary, 3rd Floor, Satyamev Complex, Sola Ahmedabad – 380060 Gujarat …Respondents
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Bar & Bench (www.barandbench.com)
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IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
COURT FEES
S. No. Particulars Amount
1. Writ Petition Under Article 226 of the Constitution of India.
Rs. 50/-
2. Exemption Application. Rs. 03/-
3. Stay Application. Rs. 03/-
4. Vakalatnama Rs. 03/-
Total Rs. 59/-
Bar & Bench (www.barandbench.com)
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IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
SYNOPSIS AND LIST OF DATES
That by the present writ petition, the petitioner begs to impugn the order
dated 24.01.2018, passed by Respondent no. 1, i.e. Bar Council of India
and all consequent actions pursuant thereto. The impugned order dated
24.01.2018 is liable to be quashed / set aside being wholly without
jurisdiction and/or without any authority of law and therefore being
completely void ab initio. Further, the said order has been accentuated by
legal malice, issued in colourable exercise of assumption of power and to
achieve a collateral purpose to harm the reputation and goodwill
established and achieved by the Petitioner during his practice spread over
four decades. The said order is contrary to the provisions of the Advocates
Act, 1961 and is also violative of Articles 14, 19(1)(g) and 21 of the
Constitution of India.
One Sh. R. P. Gupta, Advocate appears to have made
an undated complaint to the Secretary of the
Respondent no. 1 against Mr. Prashant Bhushan,
Advocate, Supreme Court of India and prayed for
suspension of his Certificate of Practice on the basis of
allegations contained in the letter. The aforesaid
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complaint, inter – alia, makes reference about
Petitioner in respect of certain Petitions filed before
the Hon’ble Supreme Court of India.
It appears, that acting on the aforesaid complaint,
Respondent No. 1 constituted a sub-committee,
comprising of its Chairman, Vice Chairman and
Chairman of Executive Committee for “consideration
and needful”.
24.01.2018 The said Sub – Committee of the respondent no. 1
passed the impugned order in colourable exercise of
assumption of power, without jurisdiction or any
authority of law, adopting a manner which is contrary
to provisions of the Advocates Act and violative of
Articles 14, 19 (1) (g) and 21 of the Constitution of
India.
09.02.2018 Impugned order dated 24.01.2018, along with a copy
of the complaint of Mr. R. P. Luthra is forwarded to the
petitioner under letter dated 09.02.2018.
16.02.2018 Communication dated 09.02.2018 is received by the
Petitioner.
HENCE THE PRESENT PETITION
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Bar & Bench (www.barandbench.com)
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IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, READ WITH SECTION 151 CPC, SEEKING ISSUANCE OF A WRIT OF MANDAMUS, CERTIORARI OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION QUASHING AND SETTING ASIDE THE ORDER OF THE RESPONDENT NO. 1, DATED 24.01.2018, COMMUNICATED UNDER LETTER OF 09.02.2018,AND ALL CONSEQUENT ACTIONS PURSUANT THERETO, INCLUDING, BY THE RESPONDENT No.2
To
The Hon’ble The Acting Chief Justice, and her companion justices of, The Hon’ble High Court of Delhi, New Delhi.
The humble petitioner above named most respectfully showeth:
1. Thatthe Petitioner is an Advocateand duly designated as a Senior
Advocate and regularly practices before various Hon’ble Courts. The
Petitioner was enrolled as an Advocate on the roll of the Bar
Council of Gujarat under the provisions of Section 17 of the
Advocates Act 1961 on 7th July, 1978 and has been regularly
practising since then. The Enrolment Number of the Petitioner is
G/293/1978.
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2. That Respondent No. 1is the Bar Council of India constituted under
Section 4 of the Advocates Act, 1961 (hereinafter referred to as the
“Act”). Respondent no. 2 is the State Bar Council of Gujarat
constituted under S. 3 (1) (a) of the Advocates Act, 1961.The
Respondents are amenable to the extra-ordinary original writ
jurisdiction of this Hon’ble Court under Article 226 of the
Constitution.
3. The Petitioner is constrained to approach this Hon’ble Court being
aggrieved by the order dated 24.01.2018 passed by a Sub-
Committee of the Respondent No. 1 and stated to have been
ratified by its General Council on 04.02.2018. The said order was
forwarded under the letter of the Secretary of the Respondent No.1
dated 09.02.2018and was received by Petitioner on 16.02.2018. A
true copy of the said letter dated 9.2.2018 and order dated
24.01.2018, along with the annexures thereto, are annexed hereto
and marked as ANNEXURE P-1 (Colly). By the aforesaid order, it
has been ordered, inter-alia as under:
“This Council has received complaints from Mr. R P Luthra an
Advocate of Supreme Court of India and some of the Bar
Associations and Advocates of different parts of the country
in this regard. In our opinion, it would be proper to request
and direct the Bar Council of Gujarat (Special Committee) to
look into and decide the complaint within a period of two
weeks from the date of receipt of this order. The State Bar
Council of Gujarat shall hear the matter at the earliest and
decide it by 28th February, 2018. Mr. Dushyant Dave may file
his reply, if any, on the date fixed by the Bar Council of
Gujarat.
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The Special Committee shall constitute a Sub-Committee
consisting of one Hon’ble Judge of High Court, a Senior
Advocate of Gujarat High Court and one Senior Advocate of
other High Court. The Sub-Committee shall also include either
the Chairman or a Member of Special Committee. Since the
misconduct appears to be a continuing one, therefore, such
directions are being issued to conclude the proceedings
expeditiously.
Let a copy of this order along with complaint of Mr. R P
Luthra be sent to Mr. Dushyant Dave for the needful. The
office is to communicate this order to Bar Council of Gujarat
along with complaints at the earliest. The State Bar Council
will also examine the statements and media reporting before
passing any order in the matter.”
The Petitioner having been enrolled with Respondent No. 2 is
subject to its jurisdiction. Respondent No. 1 has exercised a
jurisdiction not vested in it by law in issuing various directions to
the Respondent No.2; to initiate disciplinary proceedings against
the Petitioner; the constitution of a Sub-Committee of the
Respondent No. 2 and the timeline for conclusion thereof. The
Petitioner has not received anycommunication so far from
Respondent No. 2.
4. That the Petitioner begs to impugn the order passed by Respondent
No. 1 as being wholly without jurisdiction and/or without the
authority of law and therefore being completely void ab initio. The
Petitioner also seeks to impugnthe aforesaid order on the ground
that it has been accentuated by legal malice, issued in colourable
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exercise of assumption of power and to achieve a collateral
purpose to harm the reputation and goodwill established and
achieved by the Petitioner during his practice spread over four
decades. The Petitioner seeks to impugnthe said order on the
ground that it is not only contrary to provisions of the Act but
violative ofArticles 14, 19(1) (g) and 21 of Constitution of India and
is therefore liable to be quashed and set aside.
5. That the brief facts of the case leading to the present Writ Petition
are as under:
A. That one Shri. R. P.Luthra, Advocate, appears to have madean
undated complaint to the Secretary of the Respondent No. 1
againstMr.PrashantBhushan, Advocate, Supreme Courtand
prayed for suspension of his Certificate of Practice on the basis
of allegations contained in the letter. The aforesaid complaint,
inter-alia, makes reference about Petitioner in respect of certain
Petitions filed before the Hon’ble Supreme Court of India. The
present Petitioner is neither concerned with the said complaint
nor was forwarded the same.
B. It appears, that acting on the aforesaid complaint, the
Respondent No. 1 constituted a Sub-Committee comprising of
its Chairman, Vice Chairman and Chairman, Executive
Committee for “consideration and needful”, and thereupon
proceeded to pass the impugned order onJanuary 24, 2018.
C. It is respectfully submitted that while jurisdiction was
purportedly assumed by Respondent No. 1 and its Sub
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Committee on the basis of the Complaint of Shri. R. P.Luthra, the
said order reflects that the basis for passing the same appears to
be based on surmises and conjectures and vague
allegations,which are general in nature. The allegations also
relate to certain matters pending before the Hon’bleSupreme
Court of India in which the Petitioner has been briefed as a
Senior Advocate on behalf of the parties before it and has been
accordingly arguing cases in view of the facts and legal position
involved therein.
D. The said order was forwarded to the Petitioner under letter
dated 09.02.2018. A copy of the said letter and order along with
the order dated 24.01.2018 has been annexed supra. A true
copy of the complaint of Shri. R. P. Luthraenclosed therewith
isalso annexed supra.
E. The said letter along with copy of the order and the complaint of
Shri. R. P. Luthrawas received by Petitioner on 16.02.2018.
F. The Petitioner has, however, not heard so far from Respondent
No. 2 as no letter has been communicated by it to the
Petitioner.
6. That the Petitioner submits that there is grave urgency in the
present matter because the impugned orders have serious
implications / ramifications on the fundamental rights of the
Petitioner and on the reputation and goodwill of the Petitioner and
has the propensity toinflict irreparabledamage to the same.
Respondents are apparently using the said order to tarnish the
image of the Petitioner. Further Respondent No. 1 has directed
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Respondent No. 2 to act with unduehaste to constitute a Sub-
Committee and to pass appropriate ordersagainstthe Petitioner in
accord with the timelines as indicated by the Respondent No.1. The
Petitioner is not likely to get justice from the Respondents in view
of legal malice on their part. The Petitioner is, therefore,
constrained to approachthis Hon’ble Court since the letter was
received only on 16.02.2108 and Respondent No. 2 is directed to
conclude the proceedings by 28.02.2018. Clearly Respondents are
acting post haste to damage the reputation of Petitioner and his
rightto practice and right to life. Therefore, It is in the interest of
justice that this matter be heard at the earliest by this Hon’ble
Court.
7. The Petitioner therefore begs to file the present Writ Petition under
Article 226 of the Constitution to challenge the aforesaidorder
dated 24.01.2019 andcommunicated under letter dated09.02.2018
on the following amongst other grounds which are without
prejudice to one another, and those that may arise during the
course of hearing:
GROUNDS
A. BECAUSE the impugned order of 24.01.2018 is wholly without
jurisdiction and/or authority of law and is therefore liable to be
quashed and set aside.
B. BECAUSE under the provisions of the Act, the exclusive power to
initiate and pass appropriate order for alleged misconduct on
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the part of an Advocate rests exclusively with the State Bar
Council (SCB) by virtue of Section 35 of the Act. Sub section (1)
thereof for ready reference, reads as under:
“Where on receipt of a complaint or otherwise a State Bar
Council has reason to believe that any advocate on its roll has
been guilty of professional or other misconduct, it shall refer
the case for disposal to its disciplinary committee.”
Sub-section (3) of Section 35 empowers a Disciplinary
Committee of the SCB to pass appropriate order after
complying with principles of natural justice. Thus, Respondent
No. 1 had no power whatsoever in law to pass the order that it
did on 24.01.2018 and therefore the said order is ex facie liable
to be quashed and set aside.
C. BECAUSE in the Bar Council of India Rules (hereinafter referred
to as the “Rules”), Part VII deals with “Disciplinary Proceedings
and Review” and provides in Rule 1 as under:
“(1) A complaint against an advocate shall be in the form of a
petition duly signed and verified as required under the Code
of Civil Procedure. The complaint could be filed in English or in
Hindi or in regional language where the language has been
declared to be a State language and in case the complaint is
in Hindi or in any other regional language, the State Bar
Council shall translate the complaint in English whenever a
disciplinary matter is sent to the Bar Council of India under
the Advocates Act. Every complaint shall be accompanied by
the fees as prescribed in the rules framed under Section 49 (h)
of the Act.
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(2) The Secretary of the Bar Council may require the
complainant to pay the prescribed fees if not paid, to remove
any defects and call for such particulars or copies of the
complaint or other documents as may be considered
necessary.
(3) On a complaint being found to be in order, it shall be
registered and placed before the Bar Council for such order as
it may deem fit to pass.
(4) No matter taken up by the State Bar Council suo-motu or
arising on a complaint made under Section 35 of the Act shall
be dropped solely by reason of its having been withdrawn,
settled or otherwise compromised, or that the complainant
does not want to proceed with the enquiry.”
In the facts of the case, no such complaint in prescribed form
and accompanied by prescribed fee was filed with Respondent
No. 2. The Complaint purportedly filed with Respondent No. 1
also was not in prescribed form and was not accompanied by
the prescribed fees.
D. BECAUSE Rule 2 of Part VII is material and reads as under:
“Before referring a complaint under Section 35 (1) of the Act
to one of its Disciplinary Committees to be specified by it, the
Bar Council may require a complainant to furnish within a
time to be fixed by it, further and better particulars and may
also call for the comments from the advocate complained
against.”
In the facts of the case Respondent No. 1 did not call for any
comment from the Petitioner before passing the impugned
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order and thus the impugned order clearly violates the said
statutory rule and is liable to set aside.
E. BECAUSE Section 36 of the Act does give “Disciplinary Powers”
to the Respondent No. 1but the said powers are require the
fulfilment of conditions precedent and in any case are extremely
limited in nature. Sub-section 1 and sub section 2 thereof are
relevant and read as under:
“(1) Where on receipt of a complaint or otherwise the Bar
Council of India has reason to believe that any advocate
whose name is not entered on any State roll has been guilty
of professional or other misconduct, it shall refer the case for
disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter, the
disciplinary committee of the Bar Council of India may, [either
of its own motion or on a report by a State Bar Council or on
an application made to it by any person interested], withdraw
for inquiry before itself any proceedings for disciplinary action
against any advocate pending before the disciplinary
committee of any State Bar Council and dispose of the same.”
Undisputedly, in the present case neither sub section (1) nor
sub section (2) are applicable in that, the Petitioner is indeed
entered on the roll of Respondent No. 2 and on the other there
was no pending enquiry against the Petitioner with Respondent
No. 2. It is therefore submitted that Section 36 had no
application. What Respondent No. 1 has purported to do is to
turn power under Sub section (2) of section 36 upside down and
upon purportedly receiving a complaint and that too against
someone else, has proceeded to act and direct Respondent No.
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2 to constitute a fresh enquiry qua the Petitioner. This is clearly
impermissible and therefore Respondent No. 1 has clearly
proceeded to exercise power where noneexists.
F. BECAUSE Rule 18 of the Bar Council Rules provides as under:
“(1) Where a State Bar Council makes a report referred to in
Section 36 (2) of the Act, the Secretary of the State Bar
Council shall send to the Secretary of the Bar Council of India
all the records of the proceedings along with the report.
(2) An application by a person interested in the withdrawal of
a proceeding referred to in Section 36 (2) of the Act shall be
signed by him and it shall set out the necessary facts
supported by an affidavit and accompanied by the fee
prescribed.”
Undisputedly the procedure prescribedunder the aforesaid sub
rules have also not been invoked much less followed. Therefore
Section 36 (2) was clearly inapplicable in the facts of the case.
G. BECAUSESection 7 of the Act which lays down functions of the
Bar Council of India, does not include any function of the kind
that it has purported to discharge while passing the impugned
order. In any case it is submitted that when power has been
expressly conferred by the statute to be exercised in a particular
manner such power, it is well settled by judicial decisions, must
be exercised in the manner prescribed by the statute and in no
other manner. It is equally well settled that when specific
provision is made, no reference can be made to a general
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provision to assume any jurisdiction,which is otherwise
conferred on a specific authority.
H. BECAUSE although the State Bar Council, Respondent No. 2
herein may be subject to jurisdiction and control of Respondent
No. 1 in certain areas. The Respondent No.1 exercises no power
of superintendence over the Respondent No.2.The Respondent
No.1 has no jurisdiction / authority to either arrogate to its self
the jurisdiction of the Respondent No.2 nor to direct the
Respondent No.2 to exercise its powers in a particular manner.
It is settled principle of law that power conferred upon a
subordinate authority cannot be exercisedby a superior
authority. In S. Kannan v. Secy., Karnataka State Road Transport
Authority, (1984) 1 SCC 375, the Hon’ble Supreme Court held as
under:
“It is equally not possible to accept the submission that when
a power is conferred on a lower authority that power can
always be enjoyed by the authority higher in the hierarchy in
relation to the lower authority. There is no express provision
in the statute which provides that the State Transport
Authority can always and without any fetter enjoy the power
of the Regional Transport Authority and in the absence of
such provision it is difficult to read merely on the basis of
vertical hierarchy wherever the lower authority is mentioned
in the statute, the higher authority be included therein.”
I. BECAUSE Respondent No. 1 ought not tohave passed the
impugned order because by virtue of Section 37, appeal lies to
Respondent No. 1against an order of the Disciplinary Committee
of the State Bar Council. By purporting to exercise the power in
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the absence of any justification either in facts or in law,
Respondent No. 1 has clearly taken away Petitioner’s right of
appeal conferred by the statute. Respondent No. 1’s action is
therefore clearly contrary to law even on this count and
deserves to be quashed and set aside.
J. BECAUSE the Constitution Bench of Hon’ble Supreme Court of
India in Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2
SCC 702interpreted the scheme and ambit of the provisions of
the Act of 1961 and held, inter-alia, as under:
“15. Chapter v. of the Act relates to the Conduct of
Advocates. Chapter v. contains Sections 35 to 44. Section 35
states that where on receipt of a complaint or otherwise a
State Bar Council has reason to believe that any advocate on
its roll has been guilty of professional or other misconduct, it
shall refer the case for disposal to its Disciplinary Committee.
The State Bar Council may, either of its own motion or on
application made to it by any person interested, withdraw a
proceeding pending before its Disciplinary Committee and
direct that inquiry to be made by another Disciplinary
Committee of the State Bar Council. The Disciplinary
Committee of a State Bar Council shall fix a date for the
hearing of the case and shall cause a notice to be given to the
advocate concerned and to the Advocate-General of the
State. The Disciplinary Committee of the State Bar Council
may make any of the following orders namely, (a) dismiss the
complaint, or where the proceedings were initiated at the
instance of the State Bar Council, direct that the proceedings
be filed, (b) reprimand the advocate, (c) suspend the
advocate for such period as it may deem fit, (d) remove the
name of the advocate from the State roll of advocates.
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16. Section 36 speaks of disciplinary powers of the Bar Council
of India and provides that where on receipt of a complaint or
otherwise the Bar Council of India has reason to believe that
any advocate whose name is not entered on any State roll
has been guilty of professional or other misconduct, it shall
refer the case for disposal to its Disciplinary Committee. The
Disciplinary Committee of the Bar Council of India may either
of its own motion or on a report by any State Bar Council or
on an application made to it by any person interested,
withdraw for inquiry before itself any proceeding for
disciplinary action against any advocate pending before the
Disciplinary Committee of any State Bar Council and dispose
of the same.”
It was furtherheld by the Hon’ble Supreme Court that:
“24. The scheme and the provisions of the Act indicate that
the constitution of State Bar Councils and Bar Council of India
is for one of the principal purposes to see that the standards
of professional conduct and etiquette laid down by the Bar
Council of India are observed and preserved. The Bar Councils
therefore entertain cases of misconduct against advocates.
The Bar Councils are to safeguard the rights, privilege and
interests of advocates. The Bar Council is a body corporate.
The Disciplinary Committees are constituted by the Bar
Council. The Bar Council is not the same body as its
Disciplinary Committee. One of the principal functions of the
Bar Council in regard to standards of professional conduct
and etiquette of advocates is to receive complaints against
advocates and if the Bar Council has reason to believe that
any advocate has been guilty of professional or other
misconduct it shall refer the case for disposal to its
Disciplinary Committee. The Bar Council of a State may also
of its own motion if it has reason to believe that any advocate
has been guilty of professional or other misconduct it shall
refer the case for disposal to its Disciplinary Committee. It is
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apparent that a State Bar Council not only receives a
complaint but is required to apply its mind to find out
whether there is any reason to believe that any advocate has
been guilty of professional or other misconduct. The Bar
Council of a State acts on that reasoned belief. The Bar
Council has a very important part to play, first, in the
reception of complaints, second, in forming reasonable belief
of guilt of professional or other misconduct and finally in
making reference of the case to its Disciplinary Committee.
The initiation of the proceeding before the Disciplinary
Committee is by the Bar Council of a State. A most significant
feature is that no litigant and no member of the public can
straightaway commence disciplinary proceedings against an
advocate. It is the Bar Council of a State which initiates the
disciplinary proceedings.”
The law so declared by the Hon’ble Supreme Court is the law of
the land by virtue of Article 141 and Respondent No. 1 is bound
to act in aid of Hon’ble Supreme Court by virtue of Article 144 of
Constitution of Indiaand therefore ought to have followed the
law so declared. Its order impugned herein is completely in
contravention of the law so declared by the Hon’ble Supreme
Court and deserves to be quashed and set aside.
K. BECAUSE the Hon’ble Supreme Court in Supreme Court Bar
Assn. v. Union of India, (1998) 4 SCC 409categorically held as
under:
“77. … Since there was no cause pending before the Bar
Council, this Court could not exercise its appellate jurisdiction
in respect of a matter which was never under consideration of
the Bar Council.
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78. Thus, to conclude we are of the opinion that this Court
cannot in exercise of its jurisdiction under Article 142 read
with Article 129 of the Constitution, while punishing a
contemnor for committing contempt of court, also impose a
punishment of suspending his licence to practice, where the
contemnor happens to be an advocate. Such a punishment
cannot even be imposed by taking recourse to the appellate
powers under Section 38 of the Act while dealing with a case
of contempt of court (and not an appeal relating to
professional misconduct as such). To that extent, the law laid
down in Vinay Chandra Mishra, Re is not good law and we
overrule it.”
The Hon’ble Supreme Court thus went to the extent of holding
that even under article 142 it could not override the provisions
of the Act in so far as they dealt with disciplinary action against
advocatesand reviewed and recalled its earlier judgment in
Vinay Chandra Mishra, Re [(1995) 2 SCC 584] by which the
Hon’ble Supreme Court had inter-alia directed as under:
“The facts and circumstances of the present case justify our
invoking the power under Article 129 read with Article 142 of
the Constitution to award to the contemnor a suspended
sentence of imprisonment together with suspension of his
practice as an advocate in the manner directed herein. We
accordingly sentence the contemnor for his conviction for the
offence of criminal contempt as under:
…
(b) The contemnor shall stand suspended from practising as
an advocate for a period of three years from today with the
consequence that all elective and nominated offices/posts at
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present held by him in his capacity as an advocate, shall
stand vacated by him forthwith.”
L. BECAUSE actions of the Respondent No. 1 have clearly been
accentuated by legal malice in passing the impugned order. It is
well settled that “malice in its legal sense means malice such as
may be assumed from the doing of a wrongful act intentionally
but without just cause or excuse or for want of reasonable or
probable cause”. The Hon’ble Supreme Court in S.R.
Venkataraman v. Union of India, (1979) 2 SCC 491 held as
under:
“8. We are in agreement with this view. It is equally true that
there will be an error of fact when a public body is prompted
by a mistaken belief in the existence of a non-existing fact or
circumstance. This is so clearly unreasonable that what is
done under such a mistaken belief might almost be said to
have been done in bad faith; and in actual experience, and as
things go these may well be said to run into one another.
9.The influence of extraneous matters will be undoubted
where the authority making the order has admitted their
influence. It will therefore be a gross abuse of legal power to
punish a person or destroy her service career in a manner not
warranted by law by putting a rule which makes a useful
provision for the premature retirement of government
servants only in the “public interest”, to a purpose wholly
unwarranted by it, and to arrive at quite a contradictory
result. An administrative order which is based on reasons of
fact which do not exist must therefore be held to be infected
with an abuse of power.”
Bar & Bench (www.barandbench.com)
24
M. BECAUSE Respondent No. 1 had clearly by its conduct shown
strong bias and prejudice against the Petitioner and has now
proved the same by passing the impugned order. On
28.09.2017, Respondent No. 1 had issued through its Joint
Secretary the following press release:
“The Bar Council of India has taken serious notice of the
statement of Mr. Dushyant Dave, former President, Supreme
Court Bar Association for his derogatory comments and
reckless remarks against the Chief Justice of India and the
Collegium. The Council has decided to issue Show Cause
Notice to Mr. Dave for such gross misconduct and has asked
him to file his reply within four weeks. The Council will take
further action after receipt of his reply to the notice.
The Chairman of Bar Council of India has clarified that the
Council may not agree with the decision of collegium with
regard to Justice Jayant Patel and it may join hands with
Gujarat High Courts Association in the legal proceedings, but
the baseless comments and statements of Mr. Dave on T. V
yesterday is an attempt to malign the image of judiciary and
the Institution. The personal attack smacks of some personal
vendetta against the Chief Justice of India which smacks of
gross misconduct.”
It is however respectfully submitted that no notice was served
on the Petitioner following the said press statement. The press
statement was however widely circulated. The press statement
was clearly without any basis in facts justifying any such press
released by Respondent No. 1, a statutory body. Clearly
Respondent No. 1 and its office bearers are bent on harming
the goodwill and reputation enjoyed by the Petitioner and his
Bar & Bench (www.barandbench.com)
25
standing at the Bar by issuing such press releases.A copy of the
said statement published in various media, electronic and print
is annexed hereto as ANNEXURE P-2 (Colly).
N. BECAUSE subsequently on 04.10.2017 the Chairman of
Respondent No. 1 had issued a public appeal to legal fraternity
referring to the Petitioner and the interview given by the
Petitioner in connection with the transfer of Hon’ble Mr. Justice
Jayant Patel, Judge of Karnataka High Court and his ultimate
resignation from the Hon’ble Bench. The appeal was clearly
targeted against the Petitioner and was accentuated by malice
in law.
These facts clearly establish that the order passed on 24.01.2018
is accentuated for collateral and ulterior motives and is a
colourable exercise of assumption of power therefore liable to
be set aside because the order has been passed de hors facts
and in absence of any power to do so.
O. BECAUSE the Respondent No. 1 lacks any power to pass the
order of the nature it has done but it had no further power to
direct the constitution of a particular type of Disciplinary
Committee and entrust the same with the enquiry. Under the
statute Disciplinary Committees are constituted and therefore
such an order is clearly perverse and unjust. Equally,
Respondent No. 1’s desire and therefore direction to
Respondent No. 2 to conclude by proceedings by 28.02.2018
reflects its strong bias and prejudice against the Petitioner. The
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26
Petitioner will not get any justice whatsoever from the
Respondent authorities and therefore will suffer irreparably. The
Respondent No. 2 has not protested to the Respondent No.1
regarding usurpation of its jurisdiction authority and power.
The said order is therefore liable to be set aside.
P. BECAUSE the Respondent No. 1 has clearly misdirected itself in
as much asit is amongst its functions to safeguard rights,
privileges an interests of advocates besides laying
downStandardsof Professional Conduct and etiquette. The Rules
in Chapter II provide for Standards of Professional Conduct and
Etiquette and provide in Preamble as under:
“An advocate shall, at all times, comport himself in a manner
befitting his status as an officer of the Court, a privileged
member of the community, and a gentleman, bearing in mind
that what may be lawful and moral for a person who is not a
member of the Bar, or for a member of the Bar in his non-
professional capacity may still be improper for an advocate.
Without prejudice to the generality of the foregoing
obligation, an advocate shall fearlessly uphold the interests of
his client and in his conduct conform to the rules hereinafter
mentioned both in letter and in spirit. The rules hereinafter
mentioned contain canons of conduct and etiquette adopted
as general guides; yet the specific mention thereof shall not
be construed as a denial of the existence of others equally
imperative though not specifically mentioned.”
Rule 1 clearly requires an advocate to “conduct himself with
dignity and self respect” during the presentation of his case and
while otherwise acting before a court but also require that “…he
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27
shall not be servile…” and “…permit every advocate
that…whenever there is proper ground for serious complaints
against a judicial officer, it shall be his “…right and duty to
submit his grievance to proper authorities…” Respondent No. 1
has singularly failed to adhere to the aforesaid laudable
objectives and far from safeguarding Petitioners rights,
privilegesand interestshave purported to act to destroy the
same and that too without any support in facts or in law.
Q. BECAUSE the impugned ordersareclearlyarbitrary and
unreasonableand is therefore violative of Article 14 and
deserves to be set asideon this ground as well.
R. BECAUSE the impugned order violates Petitioner’s right to carry
on his profession as a lawyer guaranteed under Article 19 (1)(g)
and also violates Petitioner’sRight to Life guaranteed under
Article21 of the Constitution of India. The impugned order is
therefore unconstitutional and liable to be set aside.
S. BECAUSE the impugned order is also liable to be set aside as it
purports to base its case againstthe Petitioner on certain
arguments attributed to the Petitioner which are allegedly made
by him in the course of hearing of matter before the Hon’ble
Supreme Court or outside to media. The Petitioner categorically
denies that such statements were in any mannerdisrespectful to
the Judiciary as a whole or to any of its member much less
disparaging or contemptuous. Submissions made by the
Petitioner before Court in open hearings are in any case wholly
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28
protected and cannot be made the basis of the inquiry. The
Petitioner states that the allegations in this regard in the
impugned order are general and not specific and are really
nothing but surmises and conjectures on the part of theSub
Committee of Respondent No. 1. The Petitioner denies the said
allegations hereby and states that Respondent No. 1 has sought
to justify its order on completelyerroneous and incorrect basis.
In any case it is submitted that Petitioners right of advocacy and
to argue cases before the Hon’ble Supreme Court in some of
those cases cannot be sought to be whittled down by passing
the impugned order. Clearly the purpose of the impugned order
appears to be to bringpressure on the Petitioner so as to force
him not to appear in certain matters. It is respectfully submitted
that such an attempt on the part of Respondent No. 1 is to say
the least unfortunate and clearly impairsthe rights and duties of
Petitioner as an Advocate and also substantially interferes with
the administration of justice. It is submitted that Respondent
No. 1being a statutory body could not have and ought not to
have made such incorrect allegations as the basis for its order.
The order therefore is wholly unjustified and deserves to be set
aside.
That the Petitionerseeks liberty to add to, amend, and/ or delete
the aforesaid grounds and reserves their rights accordingly.
Bar & Bench (www.barandbench.com)
29
8. That petitioner submits that it has not filed any other writ petition
seeking identical relief before the Hon’ble Supreme Court, this
Hon'ble Court or any other Court of competent jurisdiction.
9. That the entire cause of action leading to the filing of the present
Petition has arisen in Delhi. The impugned order was issued in Delhi
and the Registered Office of Respondent No 1 is within the
jurisdiction of this Hon’ble Court and thus this Hon’ble Court
possess sufficient territorial jurisdiction to hear the present
petition.
10. That the Petitionerhas no other remedy much less alternate
efficacious remedy against the impugned acts / actions of the
Respondents except the present Extra Ordinary Writ remedy.
11. That the relief is being sought against the both the Respondents.
12. That the annexures filed along with the present petition are true
copies of their originals.
Bar & Bench (www.barandbench.com)
30
13. That the Petitioner has paid the requisitecourt fees for the instant
writ petition. However, the Petitioner undertakes to pay additional
court fees, if any, as and when determined and directed by this
Hon'ble Court
PRAYER
In the facts and circumstances of the case and the submissions
made herein, it is most respectfully prayed that this Hon'ble Court
may graciously be pleased to:
a. Issue a writ of mandamus or a writ in the nature of mandamus
or a writ of Certiorari or a writ in the nature of Certiorari or any
other appropriate writ quashing and setting aside order dated
24.01.2018, communicated under letter of
09.02.2018(Annexure P-1 Colly) to the Petitioner by
Respondent No. 1, the Bar Council of India;
b. Hold and declare that Respondent No. 1had no power, authority
or jurisdiction to pass the order dated 24.01.2018 as
communicated under its letter under 09.02.2018 (Annexure P-1
colly);
c. Issue a writ of prohibition or a writ in the nature of prohibition
restraining and prohibiting Respondents from proceeding in
furtherance of the order dated 24.01.2018 as communicated
under its letter under 09.02.2018 (Annexure P-1 colly)and from
taking any action or further action whatsoever on the same
against the Petitioner;
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31
d. Any other relief which this Hon’ble Court may deem fit and
proper in the facts and circumstances of the case to which the
Petitioner may be found entitled, may kindly be granted in
favour of the Petitioner and against the Respondents.
Petitioner.
Through
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Bar & Bench (www.barandbench.com)
32
IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018.
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
AFFIDAVIT OF SH. DUSHYANT ANIRUDDHA DAVE, S/O SH. ANIRUDDHA DAVE, (AGED ABOUT 63 YEARS), R/O 134, SUNDAR NAGAR, NEW DELHI. I, the above-named Deponent do hereby solemnly affirm and declare as under:
1. I am the petitioner in the above case and am conversant with the facts of
the case. I am competent to depose this affidavit.
2. That the accompanying Writ Petition under Article 226 of the
Constitution of India has been drafted by my Counsel under my
instructions and nothing material has been concealed therefrom. The
contents thereof are true and correct.
3. The Petitioner has not filed a similar petition in any other Court of Law.
The annexures filed with the petition are true copies of their originals.
DEPONENT
VERIFICATION
I the above named deponent do hereby verify that the contents of the above
affidavit are true and correct to my knowledge and no part of the same is false.
Verified at New Delhi on this ____ day of February, 2018.
DEPONENT
Bar & Bench (www.barandbench.com)
33
IN THE HIGH COURT OF DELHI AT NEW DELHI CM Appl No. _____ of 2018
IN Writ Petition (Civil) No. _________ of 2018
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
APPLICATION UNDER SECTION 151 OF CODE OF CIVIL PROCEDURE FOR
INTERIM DIRECTIONS.
Most Respectfully Showeth:
1. That the Petitioner has filed the accompanying writ petition and the
same is pending disposal. The facts and circumstances giving rise to
the filing of the present application have been stated in detail in the
writ petition and the same are not being repeated herein for the
sake of brevity. The Petitioner prays that the same may be read as
an integral part and parcel of the present application.
2. That upon the issue of the letter dated 09.02.2018 the next
consequential step would be, as a next step, to initiate proceedings
against Petitioner by conducting Enquiry, which would not only be
an arbitrary exercise of power but also an abuse of statutory
powers on part of the Respondents. In any event, the Petitioner
would be put to extreme prejudice and hardship, if such step is
initiated by the Respondents.
3. It is further most humbly submitted that the Petitioner verily
believes that since the Respondent has already initiated the Enquiry
there is an imminent threat of coercive steps being taken against
Bar & Bench (www.barandbench.com)
34
the Petitioner which would affect the standing and reputation
enjoyed by the Petitioner and cause irreparable damage to his
goodwill in the profession.
4. That the Petitioner has a prima facie good case in his favour and
against the Respondent and there is every likelihood of his success
in the Writ Petition. The actions of the Respondent No. 1 are the
consequence of an exercise of a jurisdiction not vested in the said
Respondent by law. The balance of convenience lies in favour of the
Petitioner and against the respondent.
5. That the Petitioner will suffer irreparable loss and injury which
cannot be compensated in terms of money, if any coercive action is
taken by the respondent in furtherance of the impugned order,
which is under challenge before this Hon'ble Court.
6. That this application is filed bona fide and in the interest of justice.
PRAYER
In view of the submissions made hereinabove, it is most humbly and
respectfully prayed that pending disposal of the present writ petition this
Hon’ble Court may be pleased to:
a. Stay the operation and implementation of order dated 24.01.2018
and restrain the Respondents from acting further in pursuance
thereof and taking any further or other action whatsoever;
b. Pass ex-parte and ad-interim orders in terms of prayer (a) above
and confirm the same after notice to the Respondents.
Bar & Bench (www.barandbench.com)
35
c. Any other relief which this Hon’ble Court may deem fit and proper
in the facts and circumstances of the case may kindly be granted in
favour of the applicants/petitioners and against the respondents.
Petitioner.
Through
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Bar & Bench (www.barandbench.com)
36
IN THE HIGH COURT OF DELHI AT NEW DELHI CM Appl No. _____ of 2018
IN Writ Petition (Civil) No. _________ of 2018
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
AFFIDAVIT OF SH. DUSHYANT ANIRUDDHA DAVE, S/O SH. ANIRUDDHA DAVE, (AGED ABOUT 63 YEARS), R/O 134, SUNDAR NAGAR, NEW DELHI. I, the above-named Deponent do hereby solemnly affirm and declare as under:
1. I am the petitioner in the above case and am conversant with the facts of
the case. I am competent to depose this affidavit.
2. That the accompanying application under Section 151 of Code of Civil
Procedure, for interim directions, has been drafted by my Counsel under
my instructions and nothing material has been concealed therefrom. The
contents thereof are true and correct.
DEPONENT
VERIFICATION
I the above named deponent do hereby verify that the contents of the above
affidavit are true and correct to my knowledge and no part of the same is false.
Verified at New Delhi on this ____ day of February, 2018.
DEPONENT
Bar & Bench (www.barandbench.com)
37
IN THE HIGH COURT OF DELHI AT NEW DELHI CM Appl No. _____ of 2018
IN Writ Petition (Civil) No. _________ of 2018
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
APPLICATION UNDER SECTION 151 OF CPC, 1908 FOR EXEMPTION FROM FILING ORIGINAL AND/OR CERTIFIED COPIES OF THE ORIGINALS.
Most Respectfully Showeth:
1. That the petitioner above named has filed the present writ petition,
before this Hon'ble Court.
2. That the petitioner has filed photocopies of some documents the
certified copies of which are not in his possession. The Petitioner
undertakes to produce for inspection/file at the appropriate time the
certified copies or the originals of documents relied upon.
PRAYER
Under circumstances it is prayed that an exemption may kindly be
granted to the Petitioner at this time from filing such documents.
Any other relief which this Hon'ble Court may deem fit and proper in the
facts and circumstances of the case, may kindly be granted in favour of
the Petitioner.
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Bar & Bench (www.barandbench.com)
38
IN THE HIGH COURT OF DELHI AT NEW DELHI CM Appl No. _____ of 2018
IN Writ Petition (Civil) No. _________ of 2018
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
AFFIDAVIT OF SH. DUSHYANT ANIRUDDHA DAVE, S/O SH. ANIRUDDHA DAVE, (AGED ABOUT 63 YEARS), R/O 134, SUNDAR NAGAR, NEW DELHI. I, the above-named Deponent do hereby solemnly affirm and declare as under:
1. I am the petitioner in the above case and am conversant with the facts of
the case. I am competent to depose this affidavit.
2. That the accompanying exemption application under Section 151 of Code
of Civil Procedure has been drafted by my Counsel under my instructions
and nothing material has been concealed therefrom. The annexures are
true copies of their respective originals.
DEPONENT
VERIFICATION
I the above named deponent do hereby verify that the contents of the above
affidavit are true and correct to my knowledge and no part of the same is false.
Verified at New Delhi on this ____ day of February, 2018.
DEPONENT
Bar & Bench (www.barandbench.com)
39
IN THE HIGH COURT OF DELHI AT NEW DELHI Writ Petition (Civil) No. _________ of 2018
In the matter of:
Dushyant Aniruddha Dave …Petitioner
VERSUS
Bar Council Of India & Anr. …Respondents
INDEX
S. No. Particulars Pgs.
1. Urgent Application 1
2. Notice of Motion 2
3. Memo of Parties 3
4. Court Fees 4 – 5
5. Synopsis &List of Dates 6 – 7
6. Writ Petition along with supporting affidavit. 8 – 32
7. ANNEXURE P-1(Colly): A true copy of the letter dated 09.02.2018, order dated 24.01.2018, and the undated complaint of Mr. R. P. Luthra, Advocate, along with typed copy.
33 – 52
8. ANNEXURE P-2 (Colly): A true copy of the Press Statement dated 28.09.2017 issued by Respondent no. 1, along with typed copy thereof and true copies of news clippings published in various media, electronic and print.
53 –74
9. Application under S. 151 CPC for interim directions along
with supporting affidavit.
75 – 78
10. Application under S. 151 CPC for exemption along with
supporting affidavit.
79 – 80
11. Vakalatnama. 81
New Delhi. Dated: 26.02.2018.
ADITYA GARG Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1, Delhi High Court, New Delhi.
E: [email protected] P: +91 98102 46585
Bar & Bench (www.barandbench.com)