- (1.) Reply filed by way of affidavit on behalf of respondent No.1 is taken on record.
(2.) The writ petition is at the instance of the petitioner, who is a member of the petitioner-association at Gurgaon represented through the Secretary and cited as a second respondent. Admittedly, he had been a President of the Bar Association on three occasions in the past viz., for the years 1998-99, 2000-01, 2002-03. He sought to contest for the election of a President and since there was a fetter in the bye-law of the Bar Association against any elected member for any post to hold office more than three times in his lifetime, the petitioner has approached this court for a challenge to the provision in the bye-law that provides for such a impediment. For invoking the writ jurisdiction, the justification that the petitioner would bring would be to the rules of the Bar Council that no civil court would have jurisdiction to entertain a dispute among members of the Bar Association and that in the case of any dispute, the Bar Council would take effective steps to resolve the dispute but since on the request of the petitioner to annul the provision contained in the byelaw restricting the term to office only to three times, the Bar Council has not acted, he has no other remedy but to approach this court. It is an admitted fact that the Bar Association at Gurgaon has a bye-law that governs its activities. Bye-laws that set out rights and duties among different holders of office of the Bar Association shall be taken to be a multilateral contract amongst all the members.
(3.) The bye-laws must be taken again to be setting the boundaries within which they will conduct their affairs. There is nothing inherently wrong or unconstitutional about limiting the office of the Bar Association only to three times in lifetime and if they had introduced such a clause, the manner of getting rid of it for an aspirant, who wants to hold an office for a larger number of times than what is prescribed, shall be to apply for an amendment for the memorandum and carry it out in the manner prescribed under the bye-laws. There is indeed a provision for amendment of the memorandum set out in clause 16 as follows:- "16. Any amendment in the Memorandum society or Rules and Regulation of the society shall be carried out only a General Body meeting with a 2/3rd majority voting by the members." If the Rule 12(8) that sets out a bar to hold office of President more than 3 terms by itself, it cannot be taken to be untenable or unreasonable. If it is desired not to retain this restriction. It would require to be modified or removed in the manner provided under Clause 16. Any other method must conform to what it is permissible under any other rule. 4. As per the contention of the petitioner, such a power is vested with the Bar Council to render Clause 12(8) invalid by virtue of the fact that the Bar Council itself has framed its rules and the Bar Council rules do not set out any such limitation as Clause 12(8) provides and, the rules framed by the Bar Council at Punjab and Haryana should prevail. The Bar Council rules which have been filed before the court set out in the preamble that it was desirable that one common code existed for the proper check and balance of the proper functioning, registration and guidance of the Bar Associations. The Bar Association which the Rules control is a Bar Association recognized and registered with the Bar Council of Punjab and Haryana. The counsel for the petitioner states that the Bar Association at Gurgaon has not been registered with the Bar Council at Punjab and Haryana so far, although there is a specific provision that constitutes Registration Committee which will examine every application for registration of a Bar Association as per the rules. The rules of the Bar Council provides for qualification of office bearers of Bar Association in Clause 9. It reads as follows:- "9. Qualification of office bearers of Bar Association President: Any member who is having at least five years of regular and active practice in that court. Secretary: Any member who is having at least three years of regular and active practice in that court. Provided that if any Bar Association has its own rules prescribing the period of practice required for its office bearers to be more than the prescribed here-inabove, then the rule of the Bar Association shall prevail.";