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Petitioner: Mrs. NASIRA IQBAL VS Respondent: APPEAL COMMITTEE (PUNJAB NOM), PAKISTAN BAR JUDGMENT
Court Name: Lahore High Court Judge(s): Sh. Azmat Saeed Title:Mrs. NASIRA IQBAL vs APPEAL COMMITTEE (PUNJAB NOM), PAKISTAN BAR
JUDGMENT
Reported As: PLD 2010 Lahore 175 Result: Petition disposed of Judgment JUDGMENT ' SH. AZMAT SAEED, J.---The lis at hand pertains to a dispute relating to the office of the President of Lahore High Court Bar Association (hereinafter to be referred as LHCBA). The elections for the offices of Lahore High Court Bar Association were held on 28-2-2009, as a consequence whereof, Mr. Justice (Rtd.) M.A. Shahid Siddiqui (as he then was) was elected as President of the Lahore High Court Bar Association while respondent No,3 was elected as the Vice-President. On 13-4-2009, the elected President was elevated to the Honourable Supreme Court of Pakistan with the result that office of the President of Lahore High Court Bar Association fell vacant. The facts as disclosed in this Constitutional Petition and the response filed by contesting respondent No,3 reveals that apparently there was a difference of opinion between Members of the Bar as to how the said vacant office of the President of Lahore High Court Bar Association should be filled. One opinion that surfaced was that fresh bye-elections be held while the other appeared to be that respondent No,3 should assume the office of the President being the duly elected Vice-President. Apparently various resolutions canvassing the divergence of opinion were allegedly filed with the Secretary Lahore High Court Bar Association and a meeting of the General House of the Lahore High Court Bar Association was convened on 24-4-2009 to consider the aforesaid Resolution. What happened on 29-4-2009 is hotly disputed between the parties. 2. It is the case of the petitioners that in fact despite efforts to the contrary, a meeting was convened presided over by Kh. Mehmud Ahmed Advocate former President of the Lahore High Court Bar Association wherein it was unanimously resolved that purportedly under Order 20 of the Lahore High Court Bar Association Rules, a bye-election be held. It was allegedly resolved that
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former Presidents of the Lahore High Court Bar Association would settle the modalities of the bye- election including the constitution of the Election Board, date of the filing of the nomination papers and the date for election. It is reiterated on behalf of the petitioner that nine former Presidents of the Lahore High Court Bar Association met pursuant to the aforesaid and made the requisite decisions, and it was decided that said decisions would be formally announced on 7-5-2009 in a press conference. However, said press conference was postponed by the Secretary of the Lahore High Court Bar Association, and it was allegedly decided that further meeting of the former President should be convened for 11-5-2009. Unfortunately, the meeting was not convened. In the meanwhile, it appears that both sides of the aisle decided to throw caution and self-restraint to the winds with their antics adorning the front pages of the newspapers. Apparently, the resolution to dismember respondent No,3 was also moved but never presented in the General House. 3. In the above perspective, a Member of the Bar filed a petition under Article 199 of the Constitution in the form of quo warranto challenging the alleged assumption of the office of the President of the Lahore High Court Bar Association by respondent No,3 which was contested by respondent No,3, and the same was eventually disposed of by learned Single Judge of this Court vide order dated 25-5-2009 holding that said petition as not competent. However, in the said judgment Rules of the Lahore High Court Bar Association were dilated upon. 4. Thereafter allegedly a meeting of the General House of the Lahore High Court Bar Association was convened on 28-5-2009 which was stated to have been presided over by Mr. Ahmed Saeed Kirmani, former President of the Lahore High Court Bar Association, wherein, as per the case of the petitioner it was unanimously resolved that bye-election for the office of the President of Lahore High Court Bar Association be held on 6-6-2009, and for the purpose of the aforesaid election, the Election Board was also constituted. A General Meeting of the House for purposes of election and nomination of the candidates is alleged to have convened for 5-6-2009 which apparently descended into chaos and the same was adjourned for 6-6-2009. 5. Allegedly on 6-6-2009 meeting of the General House was in fact convened under the Chairmanship of Mr. Ahmed Saeed Kirmani in which the Members formally nominated the petitioner and Mr. Nisar Kausar as candidates for the office of the President of the Lahore High Court Bar Association. It is alleged that in fact the election thereafter took place in which petitioner secured 715 votes while her opposing candidate polled 97 votes, as a consequence whereof allegedly the petitioner stood elected as the President of Lahore High Court Bar Association. 6. On 6-6-2009 respondent No, 3 filed a petition before the Punjab Bar Council challenging the said elections and praying that respondent No,3 be considered as the President of Lahore High Court Bar Association, and his opposite party be restrained from interfering in his functions/affairs. Said petition was contested by the present petitioner who did not acknowledge the jurisdiction of the Punjab Bar Council to interfere in the matter. Anyhow the Punjab Bar Council vide its order dated 24-6-2009 directed that fresh elections be held for the office of the President of Lahore High Court Bar Association on 11-7-2009 under the supervision of the Executive Committee of the Punjab Bar Council. It is the case of the petitioner that said order was passed with the consent, which was accepted by the petitioner for resolution of the dispute. However, this is controverted by respondent No,3 by vehemently denying that he ever consented to or agreed to the decision for the said order. 7. Thereafter, respondent No,3 filed an appeal against the order dated 24-6-2009 before the Pakistan Bar Council on 8-7-2009, in which, notices were issued, whereafter, the captioned petition was filed on 9-7-2009 challenging the jurisdiction of Pakistan Bar Council to adjudicate upon the matter which was accompanied inter alia by a civil miscellaneous application 1 of 2009 seeking interim relief restraining the Pakistan Bar Council from passing any interim order staying the election. After due notice the matter heard by this Court on 10-7-2009 when this petition was
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admitted for regular hearing. However, the interim relief as prayed for by the petitioner was not granted. And the Pakistan Bar Council while hearing the appeal did not pass any interim order restraining holding of the elections. Consequently election to the office of the President Lahore High Court Bar Association are stated to .Have been held on 11-7-2009, in which, the petitioner and other candidates participated, and the petitioner admittedly polled the highest number of votes, and as such was declared the elected President. Whereafter, Pakistan Bar Council issued a press release that appeal of respondent No,3 had been accepted with the consequence that election of the petitioner declared as null and void, whereupon, civil miscellaneous application 5 of 2009 was filed wherein this Court vide order dated 8-10-2009 suspended the operation of the order of the Pakistan Bar Council. A copy of the said order of the Pakistan Bar Council has since been placed on record. 8. In the above perspective, learned counsel for the petitioner contends that Pakistan Bar Council had no jurisdiction to sit in appeal against the order dated 24-6-2009 of the Punjab Bar Council passed with consent of the parties. It was next canvassed that even otherwise the election has been held and the electorate has spoken in favour of the petitioner, therefore, will of the Members of the Bar should not be subverted and be permitted to prevail. Mr. Ahmed Awais, learned counsel for the petitioner next argued that during the pendency of the Constitutional Petition, Pakistan Bar Council passed an order in a mala tide manner and in direct defiance of the order of this Court dated 25-5-2009 supra, and in view of the changed scenario this Court should take judicial notice of the aforesaid illegal order, and the same should be set aside upholding the election of the petitioner. In support of his contentions, learned counsel placed reliance on Muhammad Aslam v. Member Board of Revenue PLD 1980 SC 45; Federation of Pakistan v. Haji Muhammad Saif Ullah PLD 1989 SC 166; Manzoor v. Rehabilitation Authority PLD 1957 Lahore 228 and Dad Muhammad v. Bassa PLD 1965 Lahore 77. 9. Learned counsel for respondent No,3 controverted the contentions being raised by the learned counsel on behalf of the petitioner. At the very outset it was asserted that this Court had no jurisdiction to sit in appeal over any order of the Appeal Committee of the Pakistan Bar Council in view of section 52 of the Legal Practitioners and Bar Councils Act 1973. Adds that in view of the availability of the alternate remedy, writ petition is not maintainable before this Court. It was next contended that Lahore High Court Bar Association is neither recognized, nor registered nor incorporated by any statutory rule. 10. While referring to the historical perspective of the Lahore High Court Bar Association, learned counsel for respondent No,3 contended that the Lahore High Court Bar Association Rules relied upon by the learned counsel for the petitioner were never approved by the Judges of this Court and in fact the Lahore High Court Bar Association Rules for affiliation of the District Bar Associations of the Punjab with the Lahore High Court Bar Association were approved by the Judges of this Court on 11-11-1938, and the said Rules are not relevant for adjudication of the lis at hand. It is next maintained that the Punjab Bar Council has the jurisdiction in the matter pertaining to dispute qua the elections. In this behalf it is contended that in exercise of powers conferred on Punjab Bar Council by virtue of section 55 of the Legal Practitioners and Bar Councils Act 1973, Punjab Rules of Business of Bar Association Memorandum of Association were framed on 7-12-1981. Originally the said Memorandum of Association governed the business of the Bar Associations except the High Court Bar Association. However, through a subsequent amendment in 1991 said Memorandum of Association was made applicable to the High Court Bar Association including the Lahore High Court Bar Association, therefore, the rights and interests of the parties must be determined and decided thereunder. And in terms thereof, respondent No,3 has assumed the office of the President of the Lahore High Court Bar Association, and in this behalf, it is further contended that Punjab Bar Council therefore was vested with the jurisdiction to adjudicate upon the dispute inter se the
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parties, and any order passed by the Executive Committee of the Punjab Bar Association was therefore appealable before the Pakistan Bar Council. It was vehemently argued that the order dated 24-6-2009 was not a consent order, therefore, the same was appealable before the Pakistan Bar Council. In the alternate, it was contended that even if Rules 20 and 21 of the Lahore High Court Bar Association Rules were applicable, the vacancy of the office of the President, the Vice-President automatically assumed the said office and no bye-election could be held. Adds that the observations of another Bench of this Court in its order dated 25-5-2009 are mere obiter dicta which are not binding upon this Court, especially when the Constitutional Petition filed against respondent No,3 was in fact dismissed. It was also asserted that it was the practice of the Bar from the time immemorial that the vacant office of President used to be assumed by the Vice-President, which should not be deviated from as it is a time honored convention and it represents the will of the Members of the Bar. In support of his assertions learned counsel relies on PLD 1996 SC 326 Aljehad Trust v. Federation of Pakistan and others, PLD 1998 SC 161 Malik Asad Ali v. Federation of Pakistan, 2006 YLR 2537 Zehar Ahmed Choudhry v. City District Government Karachi, 2004 CLC 1967 (Karachi) Yousaf Haroon v. Custodian of the Karachi Hotel Project, 2004 CLC 1967 (Karachi) Bahadur Yar Jang Foundation Pvt v. Government of Sindh, PLD 2009 SC 393. 11. Whereas the learned counsel for the petitioner in rebuttal submits that Memorandum of Association being relied upon by the learned counsel for respondent No,3 has never been acted upon or followed during the course of the elections of the Lahore High Court Bar Association. It is contended that in terms of Memorandum of Association, the elections of the Bar Association are required to be held by 15th of January every year. List of voters is to be displayed by 15th of December and yet consistently election of the Lahore High Court Bar Association including the election of respondent No,3 to the office of the Vice-President was as usual held on the last Saturday of February. Learned counsel has contended that if the Memorandum of Association is applicable, then the elected office-bearer of the Association would be President, Vice-President, Secretary, Joint Secretary and Secretary Library, Auditor and Members Executive Committee which are not the office-bearers who are elected by the Lahore High Court Bar Association. In fact, no Joint Secretary or Secretary Library, Auditors and Members Executive Committee have ever been elected. It is further contended that in terms of said Memorandum of Association, the Executive Committee includes five or more Members elected by the General House. No Members of the Executive Committee other than (office-bearer) have ever been elected by the Lahore High Court Bar Association. Learned counsel for the petitioner has also drawn this Court's attention to the definition of the word 'Member' in the said Memorandum of Association which means a member of district/subdivisional bar association. It has also been pointed out that under the Memorandum of Association, there is a post of Auditor, and no such post has ever been created or filled with reference to Lahore High Court Bar Association. He has also drawn this Court's attention to the question of eligibility to Membership of the Bar Association which includes an Advocate on the Rolls of the Punjab Bar Council, thus it is contended, would include Advocates who are not the Advocates of the High Court, and therefore, the persons who are not the Advocates of the High Court could become Members of the Lahore High Court Bar Association and also vote in the Election. 12. Referring to the aforesaid contradictions learned counsel for the petitioner has contended that if the arguments of the opposite side are accepted, it would result in an absurdity and all elections held since 1992 including that of respondent No,3 as Vice-President would become invalid. In the above perspective, learned counsel has asserted that in fact said Memorandum of Association can have no application to the Lahore High Court Bar Association, therefore, no dispute qua its election can be raised before the Punjab Bar Association under the Memorandum of Association as done by respondent No,3 in the instant case.
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13. Heard. Record perused. 14. At the very outset, it may be observed that during the hearing of this petition, this Court exercised all possible restraints in the hope that Honourable Members of the Bar would resolve this issue in a manner acceptable to all parties concerned rather than to seek adjudication thereof by this Court. But unfortunately, the matter remained unresolved, though this Court is confident that efforts must have been made in that regard. 15. Perusal of the contentions of the learned counsel for the parties examined in closer details raise more questions than present answers. The order of the Punjab Bar Council and that of Pakistan Bar Council unfortunately also did not supply the requisite answers to the obvious questions, which have floated on the surface during the course of the proceedings of the lis at hand. It is not necessary that each and every one of such questions must necessarily be answered by this Court. Said issues which are absolutely essential for adjudication and disposal of the lis at hand must necessarily be confronted. The murky waters must be navigated carefully. 16. The main thrust of the contentions of the learned counsel for the petitioner are that Punjab Bar Council has no jurisdiction in respect of the Lahore High Court Bar Association and its elections as the provisions of section 9 of the Legal Practioners and Bar Councils Act 1973 pertaining the recognition and functioning of the Bar Associations do not pertain to the Lahore High Court Bar Association, and in this behalf, it is contended that the Rules framed by the Punjab Bar Council have never been complied with or followed by the Lahore High Court Bar Association. 17. Incidentally, respondent No,3 had also raised the plea that Lahore High Court Bar Association is not recognized Bar Association. In paragraph 10 of the preliminary objections in the parawise comments by respondent No,3 it is specifically stated "Lahore High Court Bar Association is neither recognized, nor registered nor has been incorporated or recognized by way of any statutory rules". 18. If the contentions of both the counsel to the effect that Lahore High Court Bar Association is not a recognized Bar Association is accepted, then we would find ourselves in the blind alley confronted by provisions of the Punjab Legal Practitioners and Bar Councils Rules 1974, more particularly Chapter VII thereof which deals with the Bar Associations. Rule 7.1 reads as under:-- ' CHAPTER VII ' BAR ASSOCIATION . 7.1 Every association of Advocates ordinarily practicing at a particular place shall apply to the Bar Council for the recognition of the Bar Association. The application shall be filed by the President or Secretary of the Bar Association: Provided that no application shall be entertained in respect of a place where there is already existing a recognized Bar Association." ' Provided further, except as aforesaid, a body or association of Advocates using the words "Association", "Bar", "Council", "Pakistan" or "Punjab" in its name shall be illegal. Any Advocate who is or claims to be member or office-bearer of such association shall be guilty of professional misconduct." 19. Perusal of the afore quoted Rule makes it clear and obvious that no body or association of Advocates can in law exist or use the word A Association without the said body of Advocates being recognized as such by the Punjab Bar Council. 20. If the contentions of the learned counsel are accepted, then the very existence of the Lahore High Court Bar Association would become illegal and all Members. And the office-bearers thereof would become guilty of professional misconduct. For obvious reasons not only the contentions of the learned counsel in this behalf cannot be accepted, but also the provisions of the Legal Practitioners and Bar Councils Act 1973, and the rules framed thereunder must necessarily be interpreted so as to avoid destroying the Association, the Presidentship whereof is so hotly being contested inter se the parties.
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21. Legal Practitioners and Bar Councils Act 1973 does not define the term Bar Association. Functions of the Provincial Bar Council are set forth in section 9 and subsection (1) clause (h) deals with recognition and functions of Bar Association. For the sake of convenience, relevant portion of the said provision is reproduced as under:-- 9. Functions of a Provincial Bar Council.-- (1) subject to the provisions of this Act and the rules made thereunder, the functions of the Provincial bar Council shall be... (h) to prescribe conditions for the recognition and functioning of, and to recognize and de- recognize Bar Associations; 22. Perusal of the aforesaid provisions reveals that the Provincial Bar Council may prescribe conditions for the Recognition and Functioning of a Bar Association. Section 56 of the Legal Petitioners and Bar Councils Act 1973 confers a rule making authority on the Provincial Bar Council and section 56 subsection (n) which reads as under:-- (n) the recognition de-recognition and functioning of Bar Associations' 23. The accumulative reading of section 9(1)(h) and section 56(n) reveals that Punjab Bar Council is authorized to provide conditions for B the Recognition and Functioning of the Bar Associations. Pursuant to Legal Practitioners and Bar Councils Act 1973, the Punjab Legal Practitioners and Bar Councils Rules 1974 were promulgated on 7-7-1974, Rule 7.1 whereof reproduced hereinabove commands that all Bar Associations must apply for recognition by the Punjab Bar Council and no such Association can exist or function unless so recognized. However, there is a proviso to cater for pre-existing Bar Associations, and it is stated that no fresh application would be entertained in respect of a place where there is already a Bar Association. Rule 7.5 is also of some significance and is reproduced as under:- "Where there is an existing recognized Bar Association on the date of coming into force of these Rules, no further application from such place for recognition shall be entertained, but this shall not prevent the recognition of a High Court Bar Association at a place where there is a functioning Bench of the High Court." 24. The afore quoted provision also perceives of a pre-existing Bar Association and specifically deals with the recognition of a High Court Bar Association. 25. In view of above, it is clear and obvious that reference to the Bar Association in the Legal Practitioners and Bar Councils Act 1973 and the Punjab Bar Council Legal Practitioners and Bar Councils Rules, 1974 includes a High Court Bar Association. Learned counsel have been unable to point out any provisions of law which can be interpreted to exclude operation of the aforesaid Act and rules upon the High Court Bar Association, or for that matter to the Lahore High Court Bar Association. Needless to say as has been stated above, if Lahore High Court Bar Association were to be excluded from the ambit of Act of 1973 and the Rules of 1974, the result would put into serious question the very legality and validity of the, Lahore High Court Bar Association. 26. On 7-12-1991 Punjab Bar Council formulated Rules called `Memorandum of Association' which pertained to the functions of a Bar Association. Said Memorandum of Association as originally framed by virtue of section 1 thereof clearly provides that the same come to effect on 18th of November, 1981 and would apply to all Bar Associations of Punjab except High Court Bar Association. The result of the aforesaid promulgation of the Memorandum of Association was that after 1981 functioning of the District and Sub-Divisional Bar Associations were governed and conducted under the said Memorandum of Association, which provide in great detail the number and designation of the office-bearers, dates for the display of lists and eligible members for purposes of voting, date and mode of conducting the elections and for the resolution of disputes pertaining thereto. In the said period by and large the District Bar Association and the Sub- Divisional Bar Association adhered to the said Memorandum of Association and the elections
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dispute were decided by the Punjab Bar Council in terms of the powers conferred upon it by and in accordance with the Memorandum of Association. 27. It is common ground between the parties and is also an admitted fact that Lahore High Court Bar Association has been in existence for more than a century and after passing through various stages, its internal affairs pertaining to member and designation of its office_ bearers, eligibility of member to vote its mode and date of election were governed by Rules of Lahore High Court Bar Association which were framed in 1930s, and by and large elections to the Lahore High Court Bar Association were conducted in accordance therewith. Even after the promulgation of the Legal Practioners and Bar Councils Act 1973 and the subsequent enactment of the Memorandum of Association in 1981, Lahore High Court Bar Association continued to adhere to the High Court Bar Association Rules and not the said Memorandum. It appears that in 1982 amendment was effected in section 1 of the Memorandum of Association so section 1 subsection (c) which reads as under:-- "it shall apply to all Bar Associations of Punjab including the High Court Bar Association" 28. Despite the aforesaid it is common ground between the parties that even after 1992, when the aforesaid Amendment was effected, Lahore…
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