' MIAN SAQIB NISAR, J.---The petitioner is the member of the Lahore High Court Bar Association ("the Association") and has propounded through this constitutional petition a grievance of quo warranto, seeking the writ of the nature that respondents Nos.1 and 2 should be called upon to show under what authority of law they hold the office of the President and Vice-President of the Association.
' In order to appreciate the legal propositions involved in the matter, it is expedient to succinctly state the relevant facts of the matter:- ' The annual election of the Association for the year 2009-2010 were held on 28-2-2009 in which, Mr. Justice (R) Mahmood Akhtar Shahid Siddiqui (as he then was) was elected as the President, while respondent No,1 as the Vice-President; hardly having performed his functions to the said office for a period of about one and half month. Mr. Justice (R) Siddiqui was appointed as the Judge of the Honourable Supreme Court of Pakistan on 15-4-2009. By that time, the Executive Committee of the Association also could not be nominated by him. Anyhow, Mr. Siddiqui before taking the oath of his office as Judge of the apex Court wrote a letter to the members of the Association in which, he in clear and unequivocal terms expressed this desire that fresh election to the office must be conducted. It may be relevant to mention here that Respondent No,1, on account of the vacancy of the said office, assumed the office of the President and claimed that on account of the past practice of the Association, he is the President for the remaining tenure of the office. A senior and sizeable group of the Association disagreed with his claim and demanded for holding of the fresh election, but this was out rightly discarded by him and his supporters. It is painful to note that on account of the above discord, some untoward and sordid incidents took place in certain meetings of the Association called for the purposes of resolving the issue, which seriously reflected upon the dignity and prestige of the esteemed forum. Anyhow, I would not like to add anything more in this behalf.
2. The petitioner, as mentioned earlier, being the member of the Association, has invoked the quo warranto jurisdiction of this Court, primarily against respondent No,1, further seeking the direction to respondent No,3 for conducting/holding fresh elections to the office.
3. On 14-5-2009, a pre-admission notice in the matter was issued to the respondents, in response whereof, respondents Nos.1 and 2 are represented by Malik Saeed Hassan, a senior Advocate, while Mr. Muqtedir Akhtar Shabbir, Advocate/Secretary of the Association, represented respondent No,3, Mr. Ahmad Awais, Advocate has appeared to assist the petitioner, who also has made submissions in person.
4. The petitioner has referred to Rules 20 and 21 of the Rules of High Court Bar Association, Lahore (hereinafter referred to as "the Rules") and submits that whenever the President should be absent or the office of the President becomes vacant at any time, the Vice-President shall act as the President until the President returns or another election takes place, as the case may be. He has also pointed out that as against the above (except the office of the President), the casual vacancies occurring regarding other offices may be filled by the appointments made by the Executive Committee. This according to the petitioner and Mr.Ahmad Awais, Advocate is the mandatory rule and, therefore, on account of elevation of the elected President of the Association to the Honourable Supreme Court, the office has to be filled up by holding fresh elections and the assumption of office by respondent No,1 is without lawful authority; it is also their assertion that keeping in view the tenure of the office, which is only for one year, and that, which is left behind, such election should be directed to be held within a period of 15 days.
5. Malik Saeed Hassan, the learned counsel for respondents Nos. 1 and 2, however, states that it is the past practice of the Association that whenever the vacancy has occurred qua the office of the President, the Vice-President always takes over as the President; it is only once in 150 years' history of the Bar, where the Vice-President also resigned (i,e, the case of Mr. Manzoor Qadir) . That fresh elections were held; he, therefore, has argued that such practice is in the nature of a convention, a tradition and a custom of the Bar, that the said respondents are lawful holder of the office and such practice/convention etc. Shall take precedence over he noted Rules; the learned counsel has also raised serious objection about the maintainability of the petition.
' Before proceeding further, it may be mentioned that the petition was dismissed through a short order of even date, which should be read as an integral part of these reasons.
6. Despite the fact that, as noted down in the short order, Malik Saeed Hassan, the learned senior counsel has conceded to the interpretation of Rules 20 and 21, that thereunder a fresh election is envisaged, yet I feel expedient, that it being a question of law and a concession on such a point may not be sometime binding, to interpret the said Rules; besides, the foremost question to be examined in the matter is if the past practice of the Bar shall have overriding effect upon the Rules.
In order to dilate upon and resolve both the propositions, it seems relevant o reproduce the rules, which falls under Part II thereof, dealing with the subject of "Management".
' Rule 20 reads:-- "Should the President be absent or office of President becomes vacant at any time the Vice- President shall act as President and the Committee may thereupon elect one of their members to act as Vice-President until the President returns or another election takes place as the case may be. Should the office of the Vice-President become vacant the Committee may fill up the vacancy in the same manner."
' Rules 21 provides for filling up the casual vacancies and enunciates:-- "Casual vacancies occurring amongst other offices or members may be filled up by appointment made by the Committee. Every such appointment shall hold good until the next election shall be held."
7. From Rule 20, it is vividly simple and obvious that if the President is absent, to perform his functions, the Vice-President shall act as the President till the time the President returns and in case the office of the President becomes vacant for any reason, he again can act as the President but till the time another election is held. (the underline is mine for the emphasis). In this regard, the conspicuous and vital expression of Rule 20 "another election takes place as the case may be" is fundamental, foundational and conclusive and leaves no room for any other interpretation except that in the eventuality of the vacancy of the office of the President, the Vice-President shall only act as the President till such time another election for filling up the office is held; by no rule of construction it can be construed that the Vice-President shall ipso facto become the President for the remaining tenure of office; it must be emphatically held that he shall only act till the time another elections in the same year for filling the vacancy are conducted. This interpretation is fortified from the language of Rule 21, which envisages that in case of vacancies occurring regarding other offices such as the Vice-President, Secretary etc., the process of another election shall not be followed and adhered to, rather it is the Managing Committee, which finds mentioned in Rule 18, that shall make the appointments to the vacant offices and the appointee shall continue till the next election. The expression "next election" does not mean "another election" but the election for the subsequent year, whereas another election is the one, which should be in the same year. Therefore, it is held without any doubt or reservation that according to the correct and true interpretation of the noted Rules, when the vacancy, as in issue, shall occur, the election has to be necessarily and imperatively held for filling it up.
8. Despite the above, the learned counsel for the contesting respondents has argued that in 150 years of the Bar history, it has been the practice that whenever the vacancy in the office of the President has occurred, the Vice-President shall take over as the President for the remaining tenure and this practice, which is in the nature of a custom, tradition or a convention, shall take precedence over the Rules.
9. In order to appreciate this submission it is expedient to examine as to what is a custom, tradition, and a usage etc. According to the Black's Law Dictionary (Eighth Edition), "custom" means, "A practice that by its common adoption and long, unvarying habit has come to have the force of law." This in my view can be considered, as an interchangeable term for the words "tradition", "convention" and "usage", which has been translated in the same dictionary to mean "past customs and usages that influence or govern present acts or practices". The meaning of "usage" provides "A well-known, customary, and uniform practice, usu. In a specific profession or business".
"A 'usage' is merely a customary or habitual practice; a convention is a practice that is established by general tacit consent. `Usage' denotes something that people are accustomed to do; `convention' indicates that they are accustomed to do it because of a general agreement that it is the proper thing to do." Herbert W.
Horwill, The Usages of the American Constitution 22 (1925).
"Although rules of law are often founded on usage,- usage is not in itself a legal rule but merely habit or practice in fact. A particular usage may be more or less widespread. It may prevail throughout an area, and the area may be small or large -- a city, a state or a large region. A usage may prevail among all people in the area, or only in a special trade or other group. Usages change over time, and persons in close association often develop temporary usages peculiar to themselves." Restatement (Second) of Contracts 219 cmt. A (1979)."
' On the other hand, the "law" means and is defined in the same Dictionary as:-- "The regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society.
' The aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action; esp., the body of rules, standards, and principles that the courts of a particular jurisdiction apply in deciding controversies brought before them.
' The set of rules or principles dealing with a specific area of a legal system."
' The "Rules" has been defined as "an established and authoritative standard or principle; a general norm mandating or guiding conduct or action in a given type of situation."
10. From the above definitions, it is crystal clear that the convention, tradition, usage, shall only emerge and develop on account of a continuous, common and homogenous practice by a class of persons for a long period regarding a subject, before it attains some sanctity, recognition and backing of law; it shall only come in existence and being, if there is no law to govern a particular subject; but if a law is intact and in place to meet a given situation and an eventuality, then there shall be no concept or room for the emergence of a tradition, practice etc. No one can claim a right on the basis of a practice or a custom, if it is against the law; even the principles of equity shall give way and shall be subservient to the specific mandate of the law and cannot be resorted to for granting relief to a party if it shall be in infringement of the law/rules. The above are mutually inconsistent concepts and under the true interpretation of law, a right or duty founded on the law has to prevail, rather based on custom etc., which otherwise cannot emerge in violation of the law.
In the instant case, the rules of the Association have been approved by the Honourable Judges of the High Court of Judicature at Lahore vide Letter No,10124-R/XIII-F-2, dated 11th November, 1938.
The very purpose of framing the Rules, which provides for most of the eventualities related to, connected and concerned with the functions of the Bar Association, is that the affairs of the Bar should be conducted on the basis of the Rules and not on account of any tradition, custom or the practice. If the tradition etc. Are allowed to take precedence over the Rules, which as mentioned earlier, are (the rules) the actual law for the running/functioning of the Association, the said Rules shall be held nugatory and redundant, which is not permissible under the law. Even otherwise, the learned counsel for the respondents has failed to cite any law on account of which it can be held that when the mandate of the Rules clearly provides otherwise, any practice, which may have prevailed for any length of time, with the consent of the stakeholders (in this case the member of the Bar), cannot be considered to take precedence over the Rules. Such express or tacit consent is nothing more than allowing something to happen in a given situation, but would not mean that it has matured into a practice "custom" which shall override the Rules. The Rules are meant to be followed, obeyed and are made in order to avoid and eliminate the traditional or customary elements in the performance of an activity. If on account of any mutual understanding of the Bar, in the past, a Vice-President has been allowed to act as the President and none has raised any objection or demanded for another election, it does not mean that the relevant Rule, which is express and clear on the subject and a part of the Rules of the Association, stands annulled and extinguished and should not be followed.
11. As regards the question of maintainability is concerned, I am of the considered view that the office of the President of the Association is not a public office qua which, a writ for quo warranto can be maintained and issued. The case of the petitioner does not fall within the purview of the judgment reported as Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 and therefore, has been dismissed through the short order of even date.