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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.

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. P: +91 98102 46585
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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,

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. P: +91 98102 46585

Encl: As above.
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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,

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. P: +91 98102 46585

Encl: As above.
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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

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. P: +91 98102 46585
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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 Rs. 50/-
India.
2. Exemption Application. Rs. 03/-
3. Stay Application. Rs. 03/-
4. Vakalatnama Rs. 03/-
Total Rs. 59/-
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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

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. P: +91 98102 46585
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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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10

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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11

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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12

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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13

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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14

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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15

(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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16

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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17

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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19

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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21

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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22

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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23

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
Bar & Bench (www.barandbench.com)

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
Bar & Bench (www.barandbench.com)

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


Bar & Bench (www.barandbench.com)

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;


Bar & Bench (www.barandbench.com)

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

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. 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

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. 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.

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. 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 33 – 52
09.02.2018, order dated 24.01.2018, and the undated
complaint of Mr. R. P. Luthra, Advocate, along with
typed copy.

8. ANNEXURE P-2 (Colly): A true copy of the Press 53 –74


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.

9. Application under S. 151 CPC for interim directions along 75 – 78


with supporting affidavit.
10. Application under S. 151 CPC for exemption along with 79 – 80
supporting affidavit.
11. Vakalatnama. 81

ADITYA GARG
Counsel for Petitioner.
226, Lawyers’ Chamber Block – 1,
Delhi High Court, New Delhi.
New Delhi. E: adv_garg@yahoo.com
Dated: 26.02.2018. P: +91 98102 46585

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