This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking quashment of the resolution dated 23rd September passed by the Punjab Bar Council and a direction to respondent No.1 to hold elections to the Punjab Bar Council keeping in view the provisions of section 7 , of the Legal Practitioners and Bar Councils Act, 1973 be issued.
2. The petitioner, Mr Akbar Cheema, is an Advocate of this Court, whose grievance in this petition is that though respondents Nos.4 to 63 were elected as members of the Punjab Bar Council for a period of five years commencing from 1st January, 1989 but they have through a resolution passed in the meeting of the Punjab Bar Council on 23rd September, 1993 extended the life of the Bar Council by another year illegally and are continuing to hold the offices as members of the Punjab Bar Council without any lawful authority.
3. After admission of this Constitutional petition to regular hearing, notices were issued to the respondents, many of whom conceded the position taken up by the petitioner, while some of them (members) have even resigned their offices. This petition has, however, been defended by respondents Nos. 2, 5, 6, 8, 9, 21, 29, 40, 46, 49, 52, 55 and 60 who have filed their written statement.
4. Mr. A.G. Chaudhry, learned counsel appearing for the said respondents has raised three preliminary objections as to the maintainability of this petition; firstly that as an adequate remedy was available to the petitioner in the form of an appeal under section 13(3) of the Legal Practitioners and Bar Councils Act, 1973 before the Pakistan Bar Council which has not been availed of, this Court has no jurisdiction to entertain this petition; secondly that the petitioner is not an aggrieved person within the meaning of Article 199 of the Constitution; and thirdly that the prayer made in this petition that the respondents be directed to hold fresh elections on or before 30th November, 1993 has become infructuous by afflux of time.
5. None of these contentions has any force. As regards the first p objection, suffice it to say that as will be presently seen, the impugned resolution is totally without jurisdiction and a nullity in the eyes of law. There is no dearth of case-law that the availability of an alternative remedy is not a ground for refusing relief in such a case. I am not in agreement with the learned counsel for the respondents that the availability of some other remedy bars the jurisdiction of this Court but as held by the Supreme Court in various cases including The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279), the rule is relatable to the exercise of discretion by Court but it certainly does not take away. The jurisdiction of High Court to entertain a Constitutional petition. Besides, in the present case, it is highly doubtful' whether an appeal would lie against the resolution passed. By the Bar Council which is not an order or decision within the meaning of section 13(2) of the Act NO. XXXV of 1973.
6. So far as the question of locus standi of the petitioner is concerned, it hardly needs any detailed discussion, for admittedly the petitioner is a legal practitioner and therefore a member of electoral college who is entitled not only to vote but also to contest the elections to the Punjab Bar Council as and when held. He has made a positive assertion in para. 35 of this petition that he was a candidate for elections to the Punjab Bar Council which were to be held in November, 1993 when suddenly life of the Punjab Bar Council was extended and elections postponed.
7. Learned counsel for the said respondents has, on the other hand, pointed out that in para. 42 of the petition, petitioner has stated that this petition is being filed pro bono public and in the interest of public. That statement appears to be more in the nature of an alternative plea but the fact remains that in view of averment in para. 35 of the petition, the petitioner does have the locus standi to file this petition.
8. Taking up the third objection, it is to be noticed that the learned counsel for the respondents had to concede that at least the first part of prayer viz. The declaration that resolution dated 23rd September, 1993 is without lawful authority has not become infructuous. Consequently, this objection also cannot prevail.
9. Coming now to merit, under section 4 of the Legal Practitioners and liar Councils Act, 1973, the term of a Bar Council is five years, commencing from 1st of January of the year following the holding of elections. It is axiomatic that the term having been axed by the Statute cannot be extended by any other authority much-less by the Bar Council itself which is a creature of drat statute. The;, c cannot, therefore, be two opinions if the impugned resolution purports to extend the life of the Punjab Council as it did, it was totally .Without even a ambiance of lawful authority. Such a naked usurpation of power emanating from members of legal fraternity can hardly be appreciated. The resolution has the effect of effacing the command of legislature in last sentence of section 4 which emphatically ordains that "at the end of each term the members of the Bar Council shall cease to hold offices". The members could not have arrogated to themselves the power to extend the term of their own offices.
10. Mr. A.G. Chaudhry, learned counsel for the contesting respondents did not dispute this position.
He, however, contended that the resolution in question was not of binding nature and did not operate to extend the life of Bar Councils but on the other hand the object of passing the resolution was to point out to the authorities concerned that it would not be possible to hold elections to the Bar Council as them Was no Advocate-General, Punjab holding office. However, para.5 of the resolution is destructive of this stand taken by respondents.
11. It follows from the above discussion that resolution dated 23rd September, 1993 is cleanly without lawful authority and even according to the learned counsel for the contesting respondent, does not operate to extend the term of Punjab Bar council. It would, therefore, be appropriate to declare the resolution dated 23rd September, 1993 to be, illegal and without lawful authority to the extent that it operates to extend the life of Bar Council beyond the period of 31st December, 1993 As a consequence of this finding, it is now for the Advocate-General, Punjab who under the law is charged with the function of holding the elections to the Punjab Bar Council to proceed to hold the elections to the Punjab Bar Council to hold fresh elections in accordance with law and with due promptitude. He is hereby directed to do so.
13. There is, however, merit in the contention of the learned counsel for the respondents under proviso to section 4 of tire Act, 1973, the Punjab Bar Council is entitled to function till the new Bar Council is elected.
The petition stands disposed of in the above terms.
No order as to costs.