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SHIV KUMAR AKELA, SRI S.S. RATHORE AND SMT. SADHNA UPADHYAYA Vs. THE REGISTRAR, SOCIETIES FIRMS AND CHITS AND OTHERS

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ALLAHABAD HIGH COURT

DIVISION BENCH

( Before : Tarun Agarwala, J; A.K. Yog, J )

CMWP NO 55895 OF 2004

SHIV KUMAR AKELA, SRI S.S. RATHORE AND SMT. SADHNA UPADHYAYA — Appellant

Vs.

THE REGISTRAR, SOCIETIES FIRMS AND CHITS AND OTHERS — Respondent

Decided on : 28-02-2007

Advocates Act, 1961 – Section 15, Section 30, Section 34, Section 36, Section 37, Section 38, Section 48A, Section 49, Section 6, Section 7
Constitution of India, 1950 – Article 12, Article 145, Article 19, Article 226, Article 32
Cases Referred

Advocate General of Madras Vs. Amanullakhan, Advocate, Salem 1, AIR 1967 Mad 162 : (1967) CriLJ 551
M.C. Mehta Vs. Kamal Nath and Others, (1999) 4 CompLJ 44 : (1996) 11 JT 467 : (1997) 2 SCALE 7 : (1997) 1 SCALE 9 : (1996) 9 SCALE 141 : (1997) 1 SCC 388 : (1996) 10 SCR 12 Supp
Prem Surana Vs. Additional Munsif and Judicial Magistrate and Another, AIR 2002 SC 2956 : (2002) CriLJ 4092 : (2002) 3 Crimes 193 : (2002) 6 JT 194 : (2002) 6 SCALE 16 : (2002) 6 SCC 722 : (2002) 1 SCR 524 Supp : (2002) 2 UJ 1259 : (2002) AIRSCW 3456 : (2002) 5 Supreme 419
Janata Dal Vs. H.S. Chowdhary and Others, AIR 1993 SC 892 : AIR 1992 SC 892 : (1993) CriLJ 600 : (1992) 3 Crimes 199 : (1992) 5 JT 213 : (1992) 2 SCALE 338 : (1992) 4 SCC 305 : (1992) 1 SCR 226 Supp
Ashok Kumar Pandey Vs. The State of West Bengal and Others, AIR 2004 SC 280 : (2003) 9 JT 140 : (2003) 9 SCALE 741 : (2004) 3 SCC 349 : (2011) 1 SCC(Cri) 865 : (2003) 5 SCR 716 Supp
S.P. Anand Vs. H.D. Deve Gowda and others, (1996) 8 AD 459 : AIR 1997 SC 272 : (1996) 10 JT 274 : (1996) 8 SCALE 191 : (1996) 6 SCC 734 : (1996) 8 SCR 486 Supp : (1997) AIRSCW 18 : (1996) 8 Supreme 1
Dr. B. Singh Vs. Union of India (UOI) and Others, AIR 2004 SC 1923 : (2004) 101 FLR 575 : (2004) 3 JT 127 : (2004) 3 SCALE 224 : (2004) 3 SCC 363 : (2004) 2 SCR 1061 : (2004) AIRSCW 1494 : (2004) 2 Supreme 387
Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others, (2002) 4 JT 146 : (2002) 3 SCALE 638 : (2002) 5 SCC 111 : (2002) 3 SCR 100
Barauni Refinery Pragatisheel Shramik Parishad Vs. Indian Oil Corporation Ltd., AIR 1990 SC 1801 : (1991) 61 FLR 203 : (1990) 3 JT 123 : (1991) 1 SCC 4 : (1990) 3 SCR 282 : (1990) 2 UJ 485
Rajendra Sail Vs. Madhya Pradesh High Court Bar Association and Others, AIR 2005 SC 2473 : (2005) 100 CLT 407 : (2005) CriLJ 2585 : (2005) 4 JT 548 : (2005) 140 PLR 829 : (2005) 6 SCC 109 : (2005) 3 SCR 816
T.C. Mathai and Another Vs. The District and Sessions Judge, Thiruvananthapuram, Kerala, AIR 1999 SC 1385 : (1999) CriLJ 2092 : (1999) 1 CTC 720 : (1999) 2 JT 494 : (1999) 2 SCALE 359 : (1999) 3 SCC 614 : (1999) 2 SCR 305 : (1999) AIRSCW 1062 : (1999) 3 Supreme 308
In Re: Arundhati Roy, AIR 2002 SC 1375 : (2002) CriLJ 1792 : (2002) 2 JT 508 : (2002) 2 SCALE 538 : (2001) 8 SCALE 316(1) : (2002) 3 SCC 343 : (2002) 2 SCR 213 : (2002) 1 UJ 491 : (2002) AIRSCW 1210 : (2002) 2 Supreme 337
People’s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, AIR 1982 SC 1473 : (1982) 2 LLJ 454 : (1982) 1 SCALE 818 : (1982) 1 SCALE 817 : (1982) 3 SCC 235 : (1983) 1 SCR 456 : (1982) 14 UJ 657
U.P. Sales Tax Services Association Vs. Taxation Bar Association, Agra and others, AIR 1996 SC 98 : AIR 1996 SC 90 : AIR 1995 SC 98 : (1995) 71 FLR 836 : (1995) 5 SCALE 102 : (1995) 5 SCC 716 : (1995) 3 SCR 228 Supp : (1996) 100 STC 108
Lalit Mohan Das Vs. Advocate-General, Orissa, AIR 1957 SC 250 : (1957) 1 SCR 167
Corporation of the City of Bangalore Vs. Fuel Lorry Owner and Merchants Association and others, AIR 1994 SC 487
Indian Council of Legal Aid and Advice, etc. etc. Vs. Bar Council of India and another, AIR 1995 SC 691 : (1995) 1 JT 423 : (1995) 1 SCALE 181 : (1995) 1 SCC 732 : (1995) 1 SCR 304 : (1995) 1 UJ 344
A. Umarani Vs. Registrar, Cooperative Societies and Others, (2004) 6 JT 110 : (2004) 3 LLJ 780 : (2004) 6 SCALE 350 : (2004) 7 SCC 112 : (2004) SCC(L&S) 918 : (2004) AIRSCW 4462 : (2004) 6 Supreme 143
In Re: Sanjiv Datta and Others, (1995) CriLJ 2910 : (1995) 3 JT 538 : (1995) 2 SCALE 704 : (1995) 3 SCC 619 : (1995) 3 SCR 450 : (1995) 2 UJ 786
General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. Vs. Satrughan Nishad and Others, AIR 2003 SC 4531 : (2003) 8 JT 235 : (2003) 3 LLJ 1108 : (2003) 8 SCALE 343 : (2003) 8 SCC 639 : (2003) 4 SCR 349 Supp : (2004) 1 SLJ 145 : (2004) 1 UJ 227 : (2003) AIRSCW 5291 : (2003) 7 Supreme 250
Abhay Prakash Sahay Lalan Vs. High Court of Judicature at Patna, AIR 1998 Patna 75 : (1998) 46 BLJR 182 : (1997) 2 PLJR 976

JUDGMENT

A.K. Yog, J.—In the writ-petition before us, we are called upon, to deal with an issue which is both disturbing as well as vital to the ‘Administration of Justice’.

2. Petitioners are ‘regular legal practioners’ in High Court, Allahabad. One of them, Ms. Sadhna Upadhyaya, is the former Secretary of HCBA (HIGH COURT BAR ASSOCIATION ALLAHABAD), which is a Society registered under Societies Registration Act, 1860 (as amended in the State of U.P.). They are undisputedly members of Allahabad High Court ‘BAR’. These ‘Advocates’-on their behalf and on behalf of other ‘Advocates’, ordinarily practicing in High Court, Allahabad are aggrieved and complain of being asprived of their ‘rights’ and ‘privileges’ by none else but ‘Advocates’-who are not ordinarily practicing in High Court, Allahabad and/or not in legal profession at all, for convenience-collectively referred to as ‘NRA’ (Non Resident Advocates). They have approached this Court aspiring for protection and expect the Court to save them from being exploited by ‘NRA’ and to enable them to enjoy their privileges and rights in law and enable ‘bonafide’ and ‘genuine’ legal practioners of Allahabad High Court (particularly members of HCBA) to manage the ‘BAR’ in its pursuit to secure ‘Aims & Objects’ enshrined under ‘Bye Laws’ of HCBA, titled HIGH COURT BAR ASSOCIATION RULES (hereinafter called-HCBA Rules). It is a strange and paradoxial situation in the ‘BAR’.

3. Advocates, legal practitioners of Allahabad High Court, supposed to protect legal rights of others and stand for the cause of ‘justice’, are themselves clamouring for being ‘protected’ under law and saved from exploitation at the hands of NRA. It is an ‘irony’ of the prevailing circumstances.

CASE OF THE PETITIONERS:

4. According to the petitioners, there is an influx of Non-Resident Members (NRA-with no right to vote), under guise of Advocates ordinarily practicing in the High Court at Allahabad as ordinary member of HCBA (with right to vote in the meetings of HCBA)-as contemplated under HCBA Rules. NRA are inducted as Ordinary Members clandestinely in HCBA by the ‘prospective-candidate/s’ for future election of Governing Body of HCBA taking recourse to unethical means/practice/s i.e. allurements-including ‘financial-funding’ to sponsor ‘membership’ and raise number of votes in their favour-though they are not practicing in High Court, Allahabad or at all anywhere and/or clear arrears of existing members of HCBA as ‘bribe’ to cast ‘Votes’ in their favour in coming Elections of HCBA. It is contended that ‘NRAs’, camouflaged as ‘Advocates’ practicing in High Court (called ‘Ordinary-members in HCBA Rules) are smuggled in HCBA for election purpose only. Success in BAR Election is mustered on the strength of NRA and depends solely upon ‘manipulative-majority’. Mandate in election is ILLUSORY’ opposed to genuine wish of bonafide-legal practioners of High Court, Allahabad. The entire process of ‘Election’ is a hoax. High Court BAR is in turmoil, and put to ransom by NRA-precipitating crisis in the administration of Justice in the State. Votes are secured, not on the basis of their ‘merit’ or ‘popularity’, but extracted through ‘Money’, ‘Muscle’, and ‘Manipulation’. ‘Candidates’ elected do not represent wish of majority of ‘legal practitioners of High Court, Allahabad. The three ‘M’ (‘Money’, ‘Muscle’ and ‘Manipulations’) are the secret of success in HCBA elections. Key offices (viz. President/Secretary) in the Governing Body of HCBA are being grabbed surreptitiously by ‘tricks’. Such elected ‘office-bearers’ or NRAs are hardly concerned with the standards of ‘Legal Profession’ or working of the High Court as such.

5. The petitioners lament over prevailing status of the BAR wherein ‘regular-legal practitioners’ are, like outsiders forced to sit on fence as ‘moot spectators’ in the affairs of HCBA. Such a ‘Governing Body’ of HCBA has no concern with the ‘Aims and Objects’ set out in HCBA Rules. Facilities/privileges extended by the High Court to the Advocates practicing in Allahabad High Court are misappropriated with impunity.

6. Advocates ‘Ordinarily’ or ‘Regularly’ practicing in High Court have been side-tracked from ‘main stream’ of the Court working. It is pointed out that office bearers of HCBA (elected on the support of NRA) often resort to strike under pressure of NRA ignoring interest of ‘litigants’ apart from being suicidal to the cause of ‘Legal Profession’ itself.

7. The Petitioners argue that under HCBA Rules, only Advocates practicing in Allahabad High Court, are eligible to be enrolled as ‘Ordinary members’ and they alone are eligible to cast ‘vote’ in the meeting/s including Annual General Meeting/election meeting/s of ‘HCBA1. List/s of ‘Ordinary-Members’ and ‘Non-resident’ members, required under HCBA Rule, are not maintained. No effort is made to distinguish the two- before or after enrolling its ‘members’, particularly at the time of meetings HCBA particularly election meetings.

8. Petitioners, in support of their contention, refer to Rule 4, 6, 28 and 29 of HCBA Rules and endeavoured to demonstrate that ‘HCBA’ elections are sheer ‘farce’. According to them, over-all picture of BAR is pathetic.

9. It is pointed out that (i) Respondent No. 2, 3 & 4 have failed to produce list/s of ‘Ordinary’ and Non-Resident members of HCBA inspite of their assurance to the Court on several occasion to produce the same. and (ii) ‘Application-Form’-prescribed for seeking membership of H.C.B.A (brought on record by Respondent Nos. 3 and 4′), has no column/s requiring information or ‘declaration’ that such Advocate shall ordinarily practice in High Court, Allahabad.

10. In support of their contention Petitioners referred to HCBA Rules (Annexure-SCA-1 to the supplementary affidavit dated 23-12-2004), for convenience relevant ‘Rules’ for our purpose are extracted below:

RULE OF THE HIGH COURT BAR ASSOCIATION. ALLAHABAD

1. (1) These Rules shall be called the Rules of the High Court Bar Association Allahabad.

(2) They shall come into force from the first day of December 1, 1957.

2. (1) The High Court Bar Association, hereinafter called ‘The Association’ shall be a society registered under the Societies Registration Act (XXI of 1860), and shall consist of all those persons who have signed the memorandum of Association by or under these Rules and continue to be members.

(2) The Association shall have perpetual succession and shall sue and be sued by its name, through its Secretary or through such other person as may be authorised by these Rules.

Objects

3. The objects of the Association are:

(a) to promote the development of legal science and studies and to watch legislation for the purpose of assisting in the progress of sound legislation;

(b) to safeguard and promote the interest of the legal profession and its members in general and of the members of the Association in particular.

(c) to promote a high professional tone, standard and conduct amongst the members of the legal profession and to check unprofessional practices;

(d) to maintain a library of legal literature and of other subjects likely to be useful to the members of the Association;

(e) to provide a meeting place for the members of the Association particularly for study and discussion of law;

(f) to bring to the notice of the Bar Council, the High Count the Supreme Court or the Central or State Governments matters affecting the legal profession in general of the members of the Association in particular;

(g) to prepare and implement schemes for giving assistance to members of their families in distress circumstances;

(h) to establish and maintain a printing press for the printing and publication of the Cause list and the promotion of other objects of the association, and

(i) to do all such acts or take such steps as might be necessary for the well being of the Association, or for the fulfilment of these objects.

4. The Association shall have the following classes of members;

(a) Honorary members: being or having been a member of the legal profession who, because of distinguished achievement or service to the cause of law or the legal profession, has been admitted, by the Association as an Honorary Member.

(b) Non resident-member: being an advocate on the rolls of the Advocates of the High Court of Judicature at Allahabad, but not ordinarily practising in the High Court at Allahabad, who has been admitted by the Governing Council under Rule 8 as a non-resident member, or is such a member under these Rules.

(c) Ordinary member: being an Advocate on the Rolls of the Advocates of the High Court of Judicature at Allahabad and practising in the High Court and who has been admitted by the Governing Council under Rule 8 as an ordinary members, or is such a member under these Rules. The Advocate-General, U.P., if he is not already a member, shall be admitted as an ordinary member.

5. …

REGISTER OF MEMBERS

6. The Governing Council shall cause to be prepared and maintained a Register of members of the Association and shall for the purposes of Rule 4 classify all those who have become members under Rule 5.

7. …Admission of Members.

ORDER ON THE APPLICATION

8. The Secretary of the Association shall place the application on the Notice Board for one week for ballot, and except in a case where 30 or more members of the Association vote against the admission of such applicant, the Governing Council shall admit the person applying as member and the applicant shall become an ordinary or non-resident member of the Association as the case may be.

Provided that when an ordinary members wishes to become a non resident member or vice versa, it shall not be necessary for his application to be proposed or seconded or for its being placed on the Notice Board.

9. …Application for Ordinary Membership

12. … Subscription by resident membership

13. …Subscription by non-resident membership

16. …Office Bearers

The Association shall have the following office bearers who shall be elected every year in the Annual General Meeting:

A President;

Five Vice-President;

A Secretary;

Three Joint Secretaries one of whom shall be in charge of Administration, a second in charge of the Library and a third in charge of the Press;

Provided it shall be open to the Secretary to re-allocate the duties of the Joint Secretaries and a Treasurer.

Governing Council

17. The affairs of the Association shall be managed and its entire business including the investment of the funds shall be conducted by and under the control of Governing Council consisting of:

(i) office bearers elected under Rule 16;

(ii) 12 other members to be elected from amongst the members of the Association in the Annual General Meeting of the Association;

(iii) The Advocate General, U.P., Ex-officio.

(iv) The Ex-Presidents of the Association, Ex-officio.

Term of Office.

18. The office bearers of the Association and the 12 other members of the Governing Council shall hold office till the election of their successor at the next annual general meeting of the Association….

Annual General Meeting

28. The annual General Meetings of the ordinary members of the Association shall be held every year on a date fixed by the Governing Council and as soon after the opening of the High Court after the summer Vacations as may be convenient.

Business at the Annual General Meetings

29. The Annual General Meetings of the Association shall:

(a) elect office bearers of the Association and other members of the Governing Council from amongst its ordinary members;

NOTICE OF MEETINGS

32. ‘Notice of meetings of the Association shall be given, in manner provided by Rule 33, at least 7 clear clays before the date fixed for the meeting. In case of emergency a meeting other than Annual General Meeting may be called, in like manner but at such shorter notice as may be considered sufficiently by the Secretary.

MANNER OF NOTICE

33. Notice of a meeting shall be given by fixing up a notice along with the agenda on the notice boards of the Association and by circulating it in the High Court on a working day to such members as are present or can be found, and after such fixation and circulation no meeting shall be cancelled in question on the ground of improper service or non-service of notice by any member or the insufficiency or impropriety of the time allowed or fixed by the notice.

11. Petitioners point out that last HCBA Elections 2003-04 took place on 15-12-2003. One year-normal term of ‘Governing Body’ (under HCBA Rule 18 & 28) has came to an end on 15/20-12-2004. Annual General Meeting should have been convened in July, 2004-for holding elections to constitute Governing Bod-for 2004-05.

12. According to petitioners, Respondent Nos. 3 and 4 have manipulated ‘extension’ of the term of their ‘office’ beyond normal tenure by procrastinating ‘Elections’ on one pretext or the other taking advantage of ‘residuary’ Rule 18 of HCBA Rules. It is in breach of Rule 28 & 29 of HCBA Rules.

13. Taking clue from ‘Supreme Court Bar Association’ Resolution No. 18-III, dated 18.02.03 introducing rule of ‘One Bar-One Vote’ (vide letter dated 31.XII-2003-incorporated in the letter written by Hony. Secretary, Supreme Court Bar Association (Annexure-1 to the Writ Petition-pp 14 and 15), the Petitioners urge to get similar provisions introduced in the HCBA Rules. Relevant extract of the said letter reads:

SUPREME COURT BAR ASSOCIATION (Regd.)

NOTE:

1. All Cheques/Demand Drafts towards membership subscription to be drawn in favour of SUPREME COURT BAR ASSOCIATION Payment is acceptable only in Cheque/Demand Draft.

Instructions to be followed by the member as per direction/guideline framed by Implementation Committee.

Resolution No. 18-III

A member who exercise his right to vote in any year in any High Court or District Court Advocates’/Bar Association election shall not be eligible to contest for any post of the Association or to cast his vote at the election. Every member before casting his vote shall in the prescribed form give a declaration that he is not voting in any other election of any High Court/District Court Bar Association, provided, however, that if such a declaration is found to be false, it shall entail automatic suspension of the member giving such false declaration from the membership of this Association for a period of three years.

INSTRUCTIONS:

a. The member will fill the declaration form in his own handwriting with date, his/her name, full address and his/her signature.

c. The declaration should be attested by one member of the SCBA as a witness. Declaration is only valid subject to realization of cheque/draft and on scrutiny by the Implementation Committee.

e. It is further made clear to all members that the declaration is valid only subject to scrutiny and encashment of cheque/draft. In case any cheque/draft of a member is dishonoured, the name of such member will be deleted from the voters’ list without any intimation to such member.

f. To avoid any delay, the outstation members are requested to send their payment and declaration by courier/registered post and preferably by Demand Draft payable at Delhi.

DECLARATION

For

SUPREME COURT BAR ASSOCIATION ELECTION-2004

C No. —– Dated: 2004
Supreme Court Bar Association
Tilak Marg,
New Delhi- 110 001.
Sir,
I…hereby solemnly declare that I am also a member of the following High Court or District Court Advocates/Bar Association

1. …

2. …

3. …

4. …

I solemnly declare that I have neither voted nor shall I vote this year (Calendar Year-2004) at any other High Court or District Court Advocates/Bar Association.

Attested by Witness

Signature________ Signature________
Name_____________ Full Name________
Address__________ Address__________
_________________ _________________
(CAPITAL LETTERS) (CAPITAL LETTERS)
(To be attested by one member of Supreme Court Bar Association as witness)

PS: Please read the following General Body Resolution No. 18-III approved on 18-02-03 and the instructions before sending this declaration.

(underlined to lay emphasis)

14. Emboldened by above Supreme Court Bar Association Resolution, the petitioners, through this Writ -petition call upon HCBA to incorporate rule of “ONE BAR-ONE VOTE’ in HCBA Rules. In support they have filed a ‘Memorandum’ dated 14-12-2004 signed by more than 200 members of HCBA endorsing principle of ‘ONE BAR-ONE VOTE’.

BACK-DROP of ‘HCBA Elections in previous Years:

15. To have a brief account of the grim situation, during previous HCBA election one may refer to the following reports in the past in Daily Newspaper reports (on record).

(1)”Hindustan Times (published before last election)

One can draw parallels between the Indian Poll system and the holy Sangam, both victims of pollution….

However, the older generation rues that this institution has suffered a decline over the last few years. The most plausible reason for this decline appears to be the increasing number of law graduates who unscrupulously use the High Court to further their career;….

(2) “Hindustan Times. November 10, 2003

It is a big farce, a travesty of democratic elections for which lawyers from outside are smuggled in at a heavy cost,” said… senior lawyer (who) has refused to act as one the three returning officers for the annual High Court Bar Association poll, scheduled for November 24.

He has a point. Over the years, the HCBA poll has turned into a game money, power and deceit. “On a rough estimate something around Rs. 1 crore is spent into it,” said a former HCBA president, who did not want to be named.

A good part of it is spent by those, who have their sights set on the post of president and secretary. They enrol as many lawyers as possible as new members and don’t mind coughing up the initial members fee of Rs 500.

Already about 2,000 lawyers who practise at far-off rural tehsil courts of the district, have been inducted as High Court Bar Association members. The number of voters has gone up to 5,000 from 2700 last year.

Clearly, as many as 2,300 new lawyers, mostly outsiders, have been enrolled by the contestants as new members of the HCBA.

It is not an election where true representatives of the High Court Bar are elected. A large number outside lawyers come to the HCBA for a day, just to cast their vote and go back. It’s a farcical exercise…. The Association has been hijacked by the moneybags among the advocates….

(3) Hindustan Times dated 17.11.2003

…”We feel isolated”, said former U. P. Advocate General,…who joined the Bar in 1957. “The questionable manner in which elections are conducted today has left the seniors with no other option than to close their eyes,” he added.

Meanwhile, senior advocate…summed up the Bar elections in three words, “It is disgusting.

Not being able to keep pace with the changing trends, several senior members keep away from the general house meetings.

Why are so many stakes attached to the president’s office of the High Court Bar Association?

And why is money, running into several lakhs of rupees spent on it?

…the president’s office now adds to one’s status from, which they draw political mileage. This also helps the elected representative to influence the court’s proceedings.

(4) Hindustan Times dated 2.12.2003

The Acronym, NRIs has acquired a new meaning during the High Court Bar Association election campaign this, year. This acronym proved handy for lawyers to discuss the dubious but decisive role, which non-practising lawyers might play in electing the Association’s president.

NRIs, an euphemism for fake’ members of the Association, refers to over 1,000 law graduates staying in an around the city and whom candidates have enrolled to increase their vote-bank….

Interestingly, black coats and bands will be at the top of the “management list” of candidates who depend on votes of outsiders for securing victory. Those not practicing in court often do not possess the mandatory black coats and band worn by lawyers. Ever since the returning officers have made black coats mandatory for voters, candidates have decided to keep a stock of black coats ready for such emergencies.

“We have a team of at least two dozen lawyers at the High Court among our young supporters, who will take care of this challenge,” said a candidate.

These lawyers will be lending their coats to those coming to cast their vote, he said.

(5) Hindustan Times dated 1.12.2003

…Whether one likes it or not, the election process has caused a deep dent not only in the image of the biggest Bar Association of India but that of the biggest High Court of India as well. “High Court mein bhi kya aisa ho sakta ha, judge log kya kar rahen hain,” (Can this happen in the High Court also, what are the judges doing?), remarked a rickshaw- puller outside the Association premises on December 2, when voting was cancelled midway after lawyers went on a rampage curing the polls.

The poor rickshaw puller did not know that judges had no role to play in the functioning of the Bar Association. But like the rickshaw-puller, several people, too, were not aware of it, and when shameful things like this happen in the Association, they get the impression that all is not well at the High Court.

Lawyers’ conduct reflects the highest judiciary in poor light….

(6) Hindustan Times dated 17.12.2003

Meanwhile, a large number of lawyers are of the opinion that votes tilted in favour of those candidates who worked hard and spent large sums to enroll district lawyers as High Court Bar Association members. This, in fact helped in making the voters’ list shoot up to 5000 from 2500 this year.

It was something like voters of Pratapgrah and other districts storming into Allahabad to decided the fate of Assembly elections here.” remarked a young woman lawyer….

Case of Registrar Societies/Respondent No. 1.

16. Assistant Registrar-Societies at Allahabad appeared in person. He conceded ignorance over functioning of HCBA a society registered under Societies Registration Act. He admits he has no knowledge of failure of HCBA to conduct its affairs as per HCBA Rules. He appeared completely apathetic to the complaints of the petitioners and malfunctioning of HCBA. It is evident from the Court Order dated 31-1-2005 (on the order sheet) which reads:

31-1-2005 Hon’ble A.K. Yog, J.
Hon’ble Tarun Agarwala, J.
In para 7 of the counter affidavit filed today, Respondent No. 1 states “…it is submitted that the deponent for the first time came to know about the above allegations through the writ petition and proposes to issue notice u/s 22 of the Societies Registration Act, 1860 for holding inquiry as contemplated u/s 23 and 24 of the societies Registration Act and after holding inquiry/investigation, further necessary action be taken if so required looking into the result of inquiry/investigation.

Respondent No. 1, while submitting report, shall also suggest remedial measure to be taken by the society in question to root out the cause of mal-administration, if any, i.e. how to eliminate those who are neither regular legal practitioner of the Court or not in the Legal Profession at all.

(underlined to lay emphasis)

17. Respondent No. 1 fails to point out ‘remedial measures’ and the steps to be taken to eliminate ‘NRA’ members inspite of admitting that no distinction is maintained between ‘Ordinary members’ and ‘Non-resident’ Members of HCBA on record or in practice.

18. His report (audit-report) on record, based on inspection dated 4-03-2005 enclosed with his letter dated 11-03-2005 addressed to Registrar General, Allahabad High Court (under order of Court) conspicuously avoids to refer to main issues i.e. (i) whether adequate provision made to distinguish Ordinary- members & Non-residents is maintained? (ii) whether separate List of different categories of Members is available in HCBA? (iii) whether Non-Resident Members are excluded from exercising right to vote in elections vide Rule 29 of HCBA Rules? and (iv) whether Notice/Agenda of HCBA meeting given as required vide Rule 32 & 33 HCBA Rules, i.e. both by fixation on ‘Notice Board and also by Circulation.

19. Ignorance/apathy on the part of Respondent No. 1 cannot be missed. Respondent No. 1 represented by Assistant Registrar of Societies, U.P., has failed to discharge ‘statutory obligation’ to ensure that HCBA maintains necessary records/registers under the Act and that HCBA conducts its affairs (particularly elections) as per its registered Bye-Laws. This is a various lapse on the part of statutory functionary, namely Respondent No. 1 and appropriate WRIT, can be issued directing him to perform his statutory duties under Societies Registration Act.

Case of Bar Council, U.P./Respondent No. 5.

20. Bar Council, U.P. in its counter affidavit admits (i) Enrolment of ‘Advocate’, by unscrupulous means and playing fraud upon U.P. Bar Council on the basis of forged certificates (ii) absence of procedure/’modus operandi’ under ‘Advocates Act’ to ascertain and revoke ‘Enrolment’ of non-practicing/non-professional Advocates (iii) absence of provision to test knowledge, competence and suitability of one to be ‘Enrolled’ as ‘Advocate’, and (iv) inadequacy of Rules and infrastructure, carry out periodical scrutiny to update Roll of Advocates in profession.

21. U.P. Bar Council desires that ‘Bar Associations’ (at all levels)-should act as ‘watch dog’ of ‘Advocates’ practicing in Courts/Tribunals, etc. It aspires to have a mechanism to eliminate ‘Non-professional’ Advocates from sneaking into ‘BAR’ under disguise and pollute it. Such Non-practicing Advocate must be weeded out and eliminate from sharing privilege/s conferred under various ‘welfare schemes’ initiated by U.P. Bar Council exclusively for Advocates in legal profession.

22. U.P. Bar Council informs that it has framed Model Bye-Laws’ and made it compulsory for granting affiliation/recognition any ‘Bar-Association’ in the State, copy of which is Annexure 3 to the counter affidavit of U.P. Bar Council.

23. Certificate dated 24-1-2005, on record issued by U.P. Bar Council shows that HCBA is duly affiliated to U.P. Bar Council and hence under obligation to conduct its affairs as per ‘Model Bye-Laws’. This certificate reads:

Bar Council of Uttar Pradesh
P.N. Tyagi,
Secretary Date: 24-1-2005

This is to certify that High Court Bar Association, Allahabad has been affiliated with the Bar Council of U.P. vide Affiliation No. 13 of 1989 and its affiliation has been renewed on 16-2-2004 and its renewal is still continued.

P.N. Tyagi
Secretary

24. Learned Counsel representing U.P. Bar Council, submits that the High Court move to identify ‘Non-practising’/’Non-resident’ Advocates shall be welcomed by U.P. Bar Council and it is within the High Court power to control/regulate its day today working. Sh. T. P. Singh, expressed concern over surreptitious-entry of ‘NRA’ in the Bar/Court in the garb of ‘Regular Legal Practitioners’ and called upon the Court to check entry on non-professionals in the BAR/COURT.

25. U.P. Bar Council endeavour in this direction is to be appreciated but one finds its inadquate and ineffective ‘Model-Bye-Laws’ proposed by U.P. Bar Council do not provide for ‘membership fee’ to be paid and accepted by ‘cheque’ or ‘Demand Draft’ only (as in the case of Supreme Court Bar Association) or enrolled Advocate to submit before BAR Council after certain period-periodically a certificate of Court/Tribunal/Head of Department-with proof of being in ‘profession’ and declaration of not taking up other vocation/trade/business- and get its enrolment-reviewed.

Case of Advocate General/Respondent No. 7.

26. Advocate General (ex-officio member of Governing Body of HCBA and ex-officio member of U.P. Bar Council) through Chief Standing Counsel before the Court, submitted that (1) Enrolment of ‘Advocates’ by Uttar Pradesh Bar Council and entry of Advocates in Courts should be strictly screened, checked and regulated by U.P. ‘Bar Council’, (2) the Courts must ensure to prevent entry in Court premises of ‘undesirable and unscrupulous elements’ (3) U.P. Bar Council must take effective measures to ensure that privileges extended under various ‘Welfare Schemes’ floated by U.P. Bar Council under ‘Advocate Act’ are available to genuine ‘regular legal practitioners’ or Advocates in legal profession only, and (4) privileges extended by Court (viz. ‘Chamber’, ‘Lunch Room’, ‘Library’, appointment of Advocate as ‘Oath Commissioner’, demand of ‘reference’ in Courts, supply of official Court Calendar (in thousands)-etc, are not misappropriated/consumed by Advocates who are not in profession or those who are not regularly practicing in High Court/lower Courts.

Case of High Court of Judicature at Allahabad/Respondent No. 8

27. High Court expressed concern over increasing number of ‘Advocates’ in the High Court BAR and consequential ever increasing demand for more facilities like chamber, car parking, Toilet, Canteen, etc. irrespective of an ‘Advocate’ being ‘legal practitioners in High Court’ or not. It is pointed out that time has come when High Court must regulate ‘entry’ into its premises and ensure that only bonafide, genuine Advocates-enter the Court premises and such Advocate including regular legal practitioners-alone are extended privilege or facilities by the Court. It is submitted that High Court is not only anxious but keen to check ‘entry’ in Court premises to maintain ‘order’, ‘discipline’ and above all ‘security’-but for which Court cannot function smoothly. It is suggested that to identify ‘legal practitioners’ of High Court. ‘Roll of Advocate’ should be maintained as prescribed under Chapter XXIV, Rule 3-A of High Court Rules (infra).

28. It is not out of context to refer to relevant extract of self-explanatory report dated 7-11-2005 (submitted by the Registrar General, High Court, Allahabad, under Court Orders) which reads:

May like to peruse the Hon’ble Court’s orders dated 31-01-2005 and 23-09-2005 passed in Writ Petition No. 55898/2004 Shiv Kumar Akela, Advocate and Ors. v. the Registrar, Societies, Firms and Chits under the Societies Registration Act 1860, Allahabad and others, directing the Assistant Registrar, Societies, Firms and Chits, Allahabad, Sri R.S. Sachan to call for the relevant documents/records in presence of a Judicial Officer attached with the Registry and to enquire and report in pursuance of the directions contained in the aforesaid orders.

In compliance with the aforesaid directions the then Registrar General vide his order dated 24-09-2005 nominated the undersigned for the aforesaid purpose.

So far as facilities’ claimed by the aforesaid Association and High Court Bar Association are concerned, the Joint Registrar (P) has enumerated the following facilitates in his aforesaid letter.

1. Provision of rental accommodation.

2. Electricity on payment-free ceiling fan in each chamber.

3. Free white washing.

4. Free civil work regarding buildings’ rooms so allotted.

5. Free water supply and toilets.

6. Accommodation for Library and Meeting Hall.

7. Lockers on rent.

8. Coolers, A. C. and furniture after condemnation.

After repeated requests, a few relevant records were provided by the President and officials of the concerned Association, which were perused by the Assistant Registrar and his officials. On the basis of the aforesaid records the Assistant Registrar and is audit team made an enquiry/audit of the office of the Association, as per rules contemplated under the Societies, Registration Act.

After holding the enquiry/audit in this regard the Assistant registrar has submitted his report dated 05.11.2005, which is placed below as annexure “B”.

It is evident from the report (Annexure “B”) that the Assistant Registrar had tried his level best to collect the relevant documents/records pertaining to five consecutive Executive Bodies including the present one and the lists of “Honorary members”, “Non-resident members” & “Ordinary members” of the same, as directed by the Hon’ble Court. But unfortunately as per oral information given to the Assistant Registrar by the Association, apart from the present lists of Non-resident members & Ordinary members along with lists of office bearers and Governing Council members of five consecutive Executive Bodies of the High Court Bar Association, the remaining lists for the former were not available in the office of the High Court Bar Association. It has also been reported that till date there is no Honorary member admitted in the Association.

The bye laws/Rules of the High Court Bar Association provide only one distinction between non-resident and ordinary member through the definitions contained in Rule 4(b) & ( c ) apart from the difference in their monthly subscription. The member who is being an Advocate on the rolls of the Advocates of the High Court of Judicature at Allahabad and ordinarily practising in the High Court, can only be considered in the aforesaid Rules of its bye laws. But except for the membership form of the Association, which is placed below as annexure “C”, we find that the Association has not taken any measure for making distinction between the aforesaid two categories of members, after an Advocate is enrolled as a member of the High Court Bar Association, as required under its bye laws. As such there is no appropriate safeguard/procedure to check the non-resident members from being smuggled as ordinary/resident members and the difference between the two be maintained, keeping in view the spirit of the bye laws.

The Assistant Registrar in his report (Annexure “B”) has suggested a few measures, which are as follows.

1. Every member of the Association shall submit a declaration, in a prescribed proforma every year in the month of July before finalization of the membership lists by the governing council of the Association, to the effect that the member is ordinarily practising in the High Court and is being enrolled as an Advocate in the rolls of Advocates at Allahabad, prepared by the Registry of the High Court, Allahabad. Further, he shall also affirm that if the declaration be found incorrect his membership may be cancelled and appropriate disciplinary action may be taken against him by the Association.

2. The list of actual ordinary/resident members and non-resident members shall be updated every year after due verification from the rolls of Advocates at Allahabad, prepared by the Registry at Allahabad, under newly incorporated Rule 3A of Chapter 24 of the Rules of the Court 1952, after due approval by the General Body of the High Court Bar Association.

In our opinion the declaration as suggested by the Assistant Registrar shall also contain photograph of the member duly attested by the Secretary, U.P. Bar Council, Allahabad, list of cases in which the member has filed his Vakalatnama in the relevant year along with the photocopy of Income Tax Return, if any. The payment of admission fee and monthly subscription for membership shall also be made through cheques drawn from his own account and the details of such payment and cheque numbers, also be furnished in the aforesaid declaration submitted by the members of the Association. The verification of the aforesaid particulars should also be made through the Registry of the High Court. In case any member fails to submit the aforesaid declaration his membership shall automatically stand terminated.

Submitted for kind perusal and onward submission before the Hon’ble Court.

(Pancham Lal) (A.K. Mukherjee)
Asstt. Registrar O.S.D. (Classification)

(underlined by us to lay emphasis)

Case of Advocates Association/Respondent No. 9.

29. ‘Advocates Association’ also could not deny ‘infiltration’ of Non resident/Non practicing Advocates in the ‘BAR’ and its consequential ‘evils’.

30. It is to be recalled that certain members of HCBA, on being frustrated over working of ‘HCBA’, as ‘splinter group’ approached the then Chief Justice of this Court to accord them recognition, allot separate place/accommodation and protect them from the office-bearers of so called ‘HCBA’. In response, High Court provided ‘separate accommodation’ and security to the members of Advocates Association.

31. Record in Registry- which comprises of correspondence between Joint Registrar (P) and Project Manager, U.P. Rajkiyaya Nirman Nigam shows that High Court had spent a few ‘Tens’ of lacs of Rupees to provide separate building and to accommodate Advocate Association; provided CRPF security to it at one stage to foil alleged attempt of ‘HCBA’ to take over forcible possession of the accommodation allotted to it.

32. Advocate, representing Advocate Association argued-

1. High Court is ‘State’ within the meaning of Article 12, Constitution of India and it has ‘Legislative competence’ to frame ‘Rules’- independent of Section 34 Advocates Act and Article 145 of Constitution of India.

2. Advocates not in ‘legal-profession’ as well as Advocates not practiciing regularly in High Court have to be weeded out and their entry into the BAR must be strictly restricted.

33. Ravi Kiran Jain (said to be President of ‘Advocate Association’) as usual exhibited ‘frustration’ over prevailing situation in BAR and expressed his ‘helplessness’ to met the challenge. Apathy on his part is writ large. They all look forward to the ‘Court’ to find solution, to intervene in the matter and save the situation.

Case of Respondent Nos. 2. 3& 4.

34. Initially Respondent Nos. 2, 3 & 4 were represented by Sri V.B. Upadhyaya, Sr. Advocate, Ex-Advocate General. But later he refrained to represent the said respondents. We do not desire to search for the reason/s but it was apparent that Sri V.B. Upadhyay was unable to support the functioning of HCBA and the manner in which Respondent No. 3-& 4 wanted to conduct the case. One P.M.N. Singh, a relatively much Junior Counsel-declared Senior Advocate by Uttranchal High Court engaged to represent Respondent Nos. 2, 3 & 4, who also admitted that ‘there is a mess in BAR’ and that HCBA shall constitute Committee to weed out non-professional Advocates. He conceded that Court can and it should prescribe Rules and regulatory measures u/s 34 of the Act. He further added that recognition of the Bar Association of the Court can be subject to the condition that its members shall be regular legal practitioners of the Court.

Other Aspects

35. Bar is supposed to be comprised of duly enrolled Advocates engaged in the profession of ‘Law’. There is unchecked ‘infiltration’ of NRA in the ‘BAR’ which is largely responsible for the decline in the standards of legal profession’ and it is admitted to both the Petitioners and the Respondents.

36. Respondent Nos. 3 & 4 have avoided and failed to place the original record of HCBA meeting/s in question though they assured time and again (also before the Assistant Registrar). Respondent Nos. 3 & 4 made no attempt to establish that General Body Meetings of the HCBA are convened after giving ‘notice’ as laid down under Rule 32 & 33 of HCBA Rules and that Resolutions are not manipulated. Respondent No. 3 & 4 did not show desired promptness in filing their Counter Affidavit which reflected that their intention was to procrastinate hearing of the case on one pretext or the other giving an impression that they intended to extend their term. Adverse inference, in any case, is to be drawn against Respondent No. 3 & 4.

37. ‘BAR’, at District level and below, is still worst and deplorable. It is evident from the judgement and order dated 25.7. 2006 passed by a learned Single Judge in Civil Misc. Writ petition No. 12458 of 2006 (Purshottam Giri v. Deputy Director Consolidation and Ors.) which is reproduced-

While being seized of writ petition aforestated, my attention alighted on the fact that Vakalatnama filed by the learned Counsel for the petitioner was lacking requisite details and consequently, certain guidelines were formulated to be followed and observed in compliance. The guidelines are excerpted below.

Similar disquieting situation prevails in the subordinate courts where according to the Bar Council Resolution dated 10.12.1989, unscrupulous elements can be seen to be playing tricks with the Courts bringing disrepute to the judiciary as well as to the dignity of the lawyers community. In my considered view there is compelling need to amend the statutory Rules pertaining to subordinate Courts as well on similar lines. Till such amendments are effected in the statutory rules, it would be in the fitness of things. to circulate a copy of this judgement to all the District Judges/all the Chairman of the Tribunals/Chief Secretary, U.P. Shasan Lucknow for strict compliance with the resolution of the Bar Council of the State of U.P. It may be suggested that the District Judges and all authorities concerned in State of U.P. shall maintain a register docketing complete details about the lawyers practising, which may be duly prepared upon verification of original enrolment certificates of an Advocate and whenever any Vakalatnama is filed and in case of any suspicion about the authenticity of registration/enrolment number, the same may be verified from such register and only then the matter may be processed for being presented before the Courts/Tribunals etc. It may be quipped here for edification that so far as High Court is concerned Rules of the Court have already been amended and in pursuance thereof list of Advocates is being processed.

The case aforesaid was directed to be listed on 7.7.2006. Today, the case being on board was taken up in order to rake stock of the progress made pursuant to the above direction.

Learned Standing Counsel as also Sri Pankaj Naqvi, appearing for U.P. Bar Council drew attention of the Court to some difficulty giving it the completion of veritable difficulty being experienced by the various authorities in maintaining register so directed to be prepared and maintained pursuant to the aforesaid order. As a matter of fact, register was required by means of aforesaid order to be maintained by all concerned including the authorities of Board of Revenue, all the Tribunals, all consolidation authorities and all the revenue authorities where appearance of a lawyer is indispensable. The learned Standing Counsel suggested modification in the earlier order adding that a common register should be direct to be maintained at one place in a district to streamline the process of identification which may serve as a nodal/model register to serve the requirements in a district and ultimately, it was suggested that the earlier order of the Court may be modified accordingly.

In the light of the above suggestion, the following directions are issued with a view to streamlining the details about lawyers practising in a district and in case of any suspicion about the veracity of details about a lawyer, the details docketed in such register shall be treated as authenticated details to serve as guidance to all concerned.

1. The register about details of lawyers practising in District courts shall be maintained at the end of the District Judge and the same shall be prepared under the supervision and control of the District Judge or any Additional District Judge so authorized by the District Judge.

2. Each and every practising Advocate shall furnish requisite details about himself by means of an application duly signed by him and such details would include residential address, police station, postal address and telephone number etc. besides the authenticated copy of enrolment and the undertaking that he has not made any application anywhere else for enlisting his name in the register aforestated except the district in which he has been practising.

3. The District Judge shall maintain complete record on the basis of such record submitted by the Advocates as postulated in the amendment made in the relevant Rules.

4. A similar register shall be prepared and maintained in the High Court containing all requisite details as stated supra.

5. That the register so prepared shall be transmitted to the Bar council as also to the High Court for being verified and authenticated.

6. The other authorities including all the tribunals situated in a district such as Trade Tax Tribunal, Income Tax Tribunals etc may seek authenticated details about the lawyers from the register so maintained at the end of the District Judge.

The modification afore stated shall form part of the original order of this Court dated 3.3.2006.

The matter may be listed after two months. The progress made pursuant to the directions aforesaid will be monitored on the next dated. The learned Standing Counsel shall collate and collect information in the matter for being produced before the Court on the next date fixed in the case.

Registrar General of this Court be also apprised of this order for being communicated to all the District Judge for appropriate action. In so far as this Court is concerned, the Registrar General shall take expeditious steps for enlisting of Advocates practising in this Court in the register along with all the requisite details in terms of directions contained in the body of this order.

Preliminary Objections raised by Respondent No 3 &4 only.

38. Respondent Nos. 3 & 4 alone have raised ‘Preliminary Objection’ regarding maintainability of the writ petition, on two counts:

(i) HCBA (High Court Bar Association, Allahabad), a Society registered under Societies Registration Act, is not amenable to writ jurisdiction of High Court under Article 226 Constitution of India.

(ii)Writ Petition is not maintainable as ‘Pubic Interest Litigation (PIL).

39. We take up the first objection, first.

40. None of the other Respondents, namely, Respondent No. 1, 5, 6, 7, 8, 9, have joined Respondent No. 3 & 4 on the issue of maintainability of Writ Petition. On the other hand, they have joined the petitioners for deciding the case on merit.

41. Preliminary issue, pertaining to maintainability of Writ Petition, as prayed by Respondent No. 3 & 4, was decided by separate judgement and order dated 26-7-2005-reported in 2005 (6)) ALR 727 Shiv Kumar Akela and Ors. v. Registrar Societies Firms & chits and Ors..

42. Relevant extract, for convenience, reproduced below:

It is conspicuous to note that none of the other Respondents (viz. The Registrar, Societies Finns and Chits-under Societies Registration Act, 1860, Allahabad/Respondent No. 1, Uttar Pradesh Bar Council/Respondent No. 5, Bar Council of India through its Chairman, New Delhi/Respondent No. 6, Advocate General, State of Uttar Pradesh, Lucknow/Respondent No. 7, High Court of Judicature at Allahabad through its Registrar General/Respondent No. 8 and The Advocate Association, 4th floor, New Building (High Court Allahabad)/Respondent 9) have joined the Respondent Nos. 2, 3, & 4 on the above ‘Preliminary Objection’ regarding maintainability of the Writ Petition, rather directly or indirectly they support the petitioners and seek court intervention to ensure proper functioning of High Court Bar Association.

To appreciate ‘Preliminary Objection’, we may refer to the reliefs claimed in the Writ Petition which read-

(i) issue, a writ order or direction in the nature of mandamus for constituting a committee of Former Presidents HCBA presently practising in the High Court for weeding out non-practising advocates and to prepare final list of genuine voters who are regular practitioners in this Hon’ble Court and to hold elections of the General Body of the HCBA for the term 2004-2005 immediately thereafter.

(ii) issue, a writ, order or direction in the nature of mandamus ceasing the financial powers of the respondent number 3 & 4 other than disbursement of salary to HCBA staff until holding of the HCBA General Body elections 2004-2005.

(iii) issue, a writ order or direction in the nature of ad-interim mandamus ceasing the financial powers of the respondent number 3 & 4 other than disbursement of salary to HCBA staff until holding of the HCBA General Body Elections-2004-2005, and/or during the pendency of the present writ petition before this Hon’ble Court, besides constituting a committee of Former Presidents HCBA presently practising in the High Court for weeding out non-practising advocates and to prepare final list of genuine voters who are regular practitioners in this Hon’ble Court and to hold elections of the General Body of the HCBA for the term 2004-2005 immediately thereafter, so as to secure the ends of justice, or else the petitioner as well as the ‘institution’ shall suffer irreparable harm and injury,

(iv) issue, any such other or further orders as this Hon’ble Court deems fit and proper in the present facts and circumstances of the case so as to secure the ends of justice.

Undisputedly, Petitioners before the Court are Advocates who belong to legal profession. They are-members of the High Court Bar Association (HCBA), practising regularly as Advocate in High Court, Allahabad. They are ordinary members with right to vote to elect Governing Council of High Court Bar Association under relevant Bye- laws/Rules of the High Court Bar Association. Smt. Sadhana Upadhyay, Petitioner No. 3, is an ‘ex-office bearer’ of High Court Bar Association.

Issues raised by the petitioners in the present Writ Petition concerns, in general, functioning of the justice delivery system’ and, in particular, functioning of the ‘High Court’ (which is an essential component of the said system and vital organ of administration of justice in the State). Quality of dispensation of justice is directly dependant upon professional standards of ethics and discipline amongst the members of legal profession. One cannot expect the system to function smoothly and deliver desired fruits unless all its wings (Bar is one of it) is healthy and maintains dignity of the noble profession.

Inclusion of Advocate-General, U.P. ( Ex. Officio) shows that it is not ordinary registered society and its existence is with an object to ensure proper functioning of Courts and to provide legal expertise to public at large so that justice is dispensed in real sense. It is prima facie, a function having all the flavours of public utility service and basically a public function.

High Court Bar Association is also affiliated and recognised by U.P. Bar Council, Allahabad. It is, thus under supervision and control of ‘Bar Council of U.P.’ a ‘statutory body’ under Advocates Act. This is clear from ‘Certificate of Affiliation’ brought on record by U.P. Bar Council.

Very object of providing ‘Bar Association’ at all level of the Courts/with affiliation/recognition extended by State Bar Council, regulating members of legal profession under Advocates’ Act, 1961 and Rules framed thereunder, initiation of various statutory Welfare Schemes under control of U.P. Bar Council and State of U.P., to arrange for ‘library’ …its members,…to promote high professional tone, standard and conduct amongst members of legal profession, to promote and develop legal science, to watch legislation for the purpose of assisting in the progress of sound legislation and to print ‘Cause List’, leave one in no doubt that it has to perform a very onerous duty to ensure healthy functioning of the ‘Apparatus’ meant for ‘justice delivery-system’, namely the Courts. Court has provided accommodation to the High Court Bar Association and Advocate Association. Court provides various other facilities- with no charges. Court holds ‘References’ on the request of High Court Bar Association- which are Court proceedings. All this ultimately concerns the welfare of the ‘Public’ and ‘BAR is nothing but a ‘Public’ ‘functionary’. It also shows that concept of ‘Bar’ Association itself has emerged from the solemn object to ensure proper and smooth functioning of the Courts so that ‘justice’ may be dispensed with to the public at large, which is possible only when ‘BAR’ maintains a minimum desired standard both from the point of view of professional ethics and professional proficiency. ‘BAR’ in England in its formative period consisted of ‘Clergy’ which was supposed to do public service. Our ‘Gown’ owes its origin to the ‘Gown’ of a clergymen.

Apex Court in the case of Rajendra Sail Vs. Madhya Pradesh High Court Bar Association and Others, has noted:

32. …The confidence of people in the institution of judiciary is necessary to be preserved at any cost. That is its main asset. Loss of confidence in institution of judiciary would be end of Rule of law. Therefore, any act which has such tendency deserves to be firmly curbed. For rule of law and orderly society, a free responsible press and independent judiciary are both indispensable. Both have to be, therefore, protected.

In that back ground, concern shown by the petitioners cannot be said to be without foundation or that of a stranger or Bye-passers.

It may be noted that Bar Council of U.P. has joined the petitioners on the issues raise in the Writ-Petition and disapproves present functioning of the Bar Association, particularly enrolment of non practising Advocates and those who are not regularly practising in the High Court (i.e. those who are enrolled solely for the purpose of elections to create pseudo majority’ of a particular candidate).

Advocate General, U.P. has also joined the issue raised in the Writ Petition when he made a statement that Court should intervene in order to remedy the malady/malaise to save the judicial institution.

Petitioners, thus, have vital interest in the result of the Writ Petition and undisputely got locus standi to approach the Court by maintaining ‘Public Interest Litigation’. Their endeavour shows their genuine and bonafide concern in the functioning of Courts. Endeavour of the petitioners, is to protect the genuine legal practitioner in the High Court and ensure disciple in the High Court premises. By no stretch it can be said that petitioners have raised frivolous issues for personal gain only.

Petitioners, in absence of any material to the contrary on record, successfully proved heir bonafide in prosecuting the writ petition.

We are satisfied that petitioners have approached this Court with clean hands and clear hearts for the relief which does not concern only High Court Bar Association or its members alone but also concerns the management and functioning of the Court and ‘justice delivery system’ in the State of U.P.

In support of our conclusion, reference may be made to the cases-The Janata Dal Vs. H.S. Chowdhary and Others, and Kazi Lhendup Dorji v. Central Bureau of Investigation 1994 Supp (2) SCC 115.

Second objection regarding maintainability of the Writ Petition on this ground that High Court Bar Association being registered under Societies Registration Act is not amenable to writ jurisdiction under Article 226, Constitution of India, it will suffice to mention that at this stage writ petition does lie and is maintainable against respondent Nos. 1, 5, 6, 7, 8 & 9. Curiously, none of the respondents except respondent No. 2, 3, & 4 have raised objection regarding maintainability of the writ Petition.

Moreover, the Writ Petition is maintainable against respondent No. 2 in view of the judgement dated February 2, 2005 in the case of Zee Telefilms Ltd. and Anr. v. Union Of India and Ors. 2605 (4) SCC 649.

Vide para 31 of the aforesaid reported majority judgement (Hon. N. Santosh Hegde, J, Hon. B.P. Singh, J and Hon. H.K. Sema, J.) it is held-

Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or right of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of aright of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.

This Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Javanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. 1982 2 SCC 691 has held:

Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writ can be issued to “any person or authority”. The term “authority” used ‘in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32, Article 226 confers powers on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “any person or authority” used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party, no matter by what means the duty is imposed. If-a positive obligation exists mandamus cannot be denied.

Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. Therefore, merely because a non-governmental body exercises some public duty that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case (supra) hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable.

In the minority judgement, Hon’ble Judges of the Apex Court (Hon. S.N. Variava, J. and Hon S. B. Sinha, J.) have noted-.

Para 171. …What is, therefore, relevant and material is the nature of the function.

Para 172. In our view, the complex problem has to be resolved keeping in view the following further tests:

(i) When the body acts as a public authority and has a public duty to perform’

(ii) When it is bound to protect human rights.

(iii) When it regulates a profession or vocation of a citizen which is otherwise a fundamental right under a statute or its or its own rule.

(iv) When it regulates the right of a citizen contained in Article 19(1)(a) of the Constitution of India available to the general public and viewers of the game of cricket in particular.

(v) When it exercises a de facto or a de jure monopoly’

(vi) When the State out-sources its legislative power in its favour;

(vii) When it has a positive obligation of public nature. These tests as such had not been considered independently in any other decision of this Court.

Para 173. The traditional tests of a body controlled financially and administratively by the Government as laid down in Pradeep Kumar Biswas (supra) would have application only when a body is created by the State itself for different purposes but incorporated under the Indian Companies Act or Societies Registration Act….

An Authority necessarily need not be a creature of the statute….

Applying the tests laid down hereinbefore to the facts of the present case, the Board, in our considered opinion, fits the said description. It discharges a public function. It has its duties towards the public. The public at large will look forward to the Board for selection of the best team to represent the country. It must manage its housekeeping in such a manner so as to fulfil the hopes and aspirations of millions. It has, thus, a duty to act fairly. It cannot act arbitrarily, whimsically or. capriciously. Public interest is, thus, involved in the activities of the Board. It is, thus, a State actor. We, therefore, are of the opinion that law requires to be expanded in this field and it must be held that the Board answers the description of “Other Authorities” as contained in Article 12 of the Constitution of India and satisfied the requisite legal tests, as noticed hereinbefore. It would therefore, be a ‘State’.

In U.P. Sales Tax Services Association Vs. Taxation Bar Association, Agra and others, Apex Court has held-

11. It is fundamental that if rule of law is to have any meaning and content, the authority of the Court or a statutory authority of the Court and the confidence of the public in them should not be allowed to be shaken, diluted or undermined. The Courts of justice and all tribunals exercising judicial functions from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that Court or tribunal, which should be maintained so that the court/tribunal perform all their functions on a higher level of rectitude without fear or favour affection or ill-will….The protection to the judges/judicial officer/authority is not personal but accorded to protect the institution of the judiciary from undermining the public confidence in the efficacy of judicial process. The protection, therefore, is for fearless curial process….

In Indian Council of Legal Aid and Advice, etc. etc. Vs. Bar Council of India and another, Supreme Court observed:

… the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct….

Again in In Re: Sanjiv Datta and Others,

20… The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life…if the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.

The question, as to what extent this Court can issue ‘Writ’ against Respondent Nos. 2, 3 & 4, shall be seen while hearing and deciding the case finally on merit.

Objections, regarding maintainability of the Writ Petition are not tenable at this stage.

These objections shall, however, be dealt finally in detail while deciding the Writ Petition on merit.

Prima facie Writ Petition is maintainable.

43. None of the parties, at least we are not informed, challenged aforesaid judgement in higher Court. Respondent No. 2, 3 & 4 have thus succumbed to the findings contained in the above order.

44. We intend to further add as follows.

45. Petitions as ‘PIL’ are to protect and preserve ‘public faith in the governance of Justice delivery system in larger interest and ‘welfare of ‘general public’ at large. See-

1. M.C. Mehta Vs. Kamal Nath and Others,

2. People’s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others,

3. Corporation of the City of Bangalore Vs. Fuel Lorry Owner and Merchants Association and others,

4. S.P. Anand Vs. H.D. Deve Gowda and others,

5. Dr. B. Singh Vs. Union of India (UOI) and Others, and

6. T.C. Mathai and Another Vs. The District and Sessions Judge, Thiruvananthapuram, Kerala,

46. In the case of Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. 2005 (58) ALR 309, (Pr 5, 9 & 13), the Apex Court observed-

5. …

In Stroud’s Judicial Dictionary, Volume 4 (IV Edition), ‘public interest’ is defined thus:

Public interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.

In Black’s Law Dictionary (Sixth Edition), “public interest” is defined as follows:

Public interest something in which the public, or some interest by which their legal rights or liabilities are affected. It does not mean anything particular localities, which may be affected by the matters in question. Interest shared by National Government….

In Janta Dal case (supra), this Court considered the scope of public interest litigation. In para 52 of the said judgement, after considering what is public interest, has laid down as follows:

The expression “litigation” means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy. Therefore, lexically the expression “PIL” means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.

9. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interest; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise or redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature, The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men, They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.

13. It is disturbing feature which needs immediate remedial measure by the Bar Councils and the Bar Association to see that the process of, law is not abused and polluted by its member, ….No one should be permitted to bring disgrace to the noble profession….

(underlined to lay emphasis)

47. Maharshi Dayanand, in Chapter IV dealing with The Duties of Royalty’ in his celebrated book ‘Satyarth Prakash’ points out vital role of administration of justice in governance of a country and serious consequences of poor administration of justice:

nq”;s;q% loZo.kkZ’p fHk|sjUloZlsro%A
loZyksdizdksi’p Hkosn~n.mL; foHkzekr~AA

[When law is enforced with proper consideration, it delights all the people, but when it is executed without consideration it ruins the king from all sides].

;= ‘;keks yksfgrk{kks n.M’pjfr ikigkA
iztkLr= u eqg~;fUr usrk psRlk/kq i’;frAA

[Absence of justice spoils all the classes of people and breaks up all institutions, The abortion of justice, provokes the resentment of the people].

48. In Barauni Refinery Pragatisheel Shramik Parishad Vs. Indian Oil Corporation Ltd., -Supreme Court remarked ‘Place of Justice is a hallow place and therefore not only the bench but the foot-place and precincts and purpose therefore, ought to be preserved without scandal and corruption’.

49. In the case of In Re: Arundhati Roy, Apex Court observed:

The confidence in the Courts of justice, which the people possess cannot, in any way, be allowed to be tarnished, diminished or wiped out by contumacious behaviour of any person….

50. As noted above, a sick or polluted ‘BAR’ is bound to effect sound and smooth functioning of Court which is otherwise essential in Administration of Justice.

51. This Court in the case of Vijay Bihari Srivastava v. U.P. Postal Primary Co-operative Bank Ltd. and Anr. (2003)1 UPLBBC 1 (Para 36 & 37) Full Bench- after noticing various decisions held that a Writ Petition in the nature of certiorari can be issued against a ‘cooperative society’ if its function is of ‘public-importance’ and ‘close to ‘governmental function’. The Court held;

36. It is made clear that there is no straight jacket formula to point out as to when a Co-operative Society is an ‘authority’ but it has to be considered in the light of various factors enumerated in the decisions of the Supreme Court.

37. It is also not necessary that all tests enumerated above, by existing to determine that a Society is an ‘authority’ within the, meaning of Article 226 of the Constitution, It is also clarified that mere regulatory provision in the Co-operative Society by the Registrar or other authority, shall not make the Managing, Body/Committee as an authority as observed in Paragraph 40 of the Report in Pradeep Kumar Biswas’s case ( supra). The Court may, however, decline to entertain the writ petition if it finds that the petitioner has alternative remedy to ventilate his grievance.

52. Similar view expressed by the Apex Court in the case of A. Umarani Vs. Registrar, Cooperative Societies and Others,

53. In Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others, Supreme Court, while explaining meaning of expressions ‘State instrumentalities’/’State Agency’, held that writ can be maintained in law against a body/person-involved in performance of ‘public duty’ or acts as ‘public functionary’ or its activities tire of ‘public’ nature. Again similar view expressed by Apex Court in General Manager, Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. Vs. Satrughan Nishad and Others,

54. It is now well settled that ‘Writ’ can be issued against a ‘private college’ which deals with ‘Education’ concerning ‘public’ at large. Reference may be made to AIR 1998 SC 295, K. Krishnamacharyulu and Ors. v. Sri Venkateshwara Hindu College of Engineering and Anr. 1997 (1) ESC 571, Triloki Nath v. State of U.P.1996 (3) ESC 635.

55. ‘Role’ of an Advocate at the ‘Bar’ is at par with that of Presiding Officer/Judge in Court. See Prem Surana Vs. Additional Munsif and Judicial Magistrate and Another, Ashok Kumar Pandey Vs. The State of West Bengal and Others, Dr. B. Singh Vs. Union of India (UOI) and Others,

56. It is, therefore, crystal clear that (i) ‘BAR’ is an integral constituent of Administration of Justice’ in our legal system, (ii) both under moral and statutory obligation, it acts as co-partrid Sin. achieving the ‘Object’ of proper, smooth dispensation of Justice to the public through functioning of Court.

57. The second objection- i.e. whether present Writ-Petition is maintainable as ‘P1L’?, is devoid of merit. It has no force and liable to be rejected forthwith.

58. Present Writ Petition, unquestionably raises issues of vital significance concerning public at large, Petitioners proclaim to achieve ‘Aims’ & ‘Objects’ of HCBA Rules-to ensure that ‘Justice Delivery Apparatus’ is not rendered defunct or irrelevant. Petitioners are regular legal practitioners, a fact not in dispute. They cannot be said to be ‘strangers’ or raising dispute concerning ‘individual/s’ or a ‘particular group’ only. ‘BAR’ of a Court, cannot claim its existence exclusively for its members, Its sustenance is because it acts as co-partner in dispensation of Justice through Court of Law.

Advocate and his ‘Role’ In Administration of Justice

59. Trinity of ‘administration of Justice’ has three WINGS-BENCH, BAR and BAR-council. This system has three components COURT (Judges & Registry), COUNSEL (Advocates & and their Staff/clerks) and CLIENT (public). No ‘mechanism’ to deliver goods, if any of its components gets erratic. Each component has to ‘work’ well, in harmony with each other, if it has to deliver goods for which it is created.

60. Soli J. Slorabjee, as Attorney General of India, while speaking at R.C. Ghiyu Memorial Lecture AIR 2002 Journal 4, expressed:

At present the public image of lawyers is far from flattering. “They are seen as fortune seekers rather than seeking to serve, a selfish class, who on account of their special knowledge and expertise….A lawyer has a duly to his client and to the court….

61. Moment a person is enrolled as Advocate, he is treated a representative of ‘Legal Profession’. Me impliedly undertakes to discharge duties on set standards of legal profession which is essential to ensure healthy functioning of ‘Judicial Institution’ and a part of Administration of Justice in the Country.

62. Court/s extend many privileges to the members of a ‘Bar’ e.g. Accommodation for Advocates-including ‘Chambers’, ‘Library’, Toilets, ‘Canteen’ maintenance of Bar-Building, supply of water, Electricity generally inside court premises, supply of cause list and Court Calendars, names of office bearers included in Official-Court-. Diary, traditionally ‘References’ made by the Bench on request of Bar-which are part of Court-Judicial record, inclusion of ‘Advocates’ in several Committees-formed by Hon’ble the Chief Justice under Rules of Court for day to day functioning of Court, elevation from BAR to BENCH, appointment of Addl. District Judges (State Higher Judicial Service), Advocate General, Standing Counsel, Government Advocates from BAR, DGCs (District Government Counsel) at District and Tahsil level, Oath Commissioners, Survey Commissioners, etc., etc. An ‘Advocate’ is an “Officer of Court”. ‘BAR’ is an essential constituent of system of Administration of Justice.

63. Advocates discharge duly of ‘Public’ nature.’ Lawyers and judges have no obvious identity of function in the administration of justice said Justice P.V. Rajamandar, the then Chief Justice of Madras High Court, in his speech at Coimbatour in State Lawyers Conference AIR 1950 SC 44.

64. In Advocate General of Madras Vs. Amanullakhan, Advocate, Salem 1, Division Bench of Madras High Court observed that –

8. Finally, before taking leave of the case, we desire to add… leagl practitioners are not merely agent of parties pleading a particular case, but are officers of Court expected to assist in the administration of justice, and to sustain unimpaired dignity of Couts by all means in their power.

(underlined to lay emphasis)

65. In Lalit Mohan Das Vs. Advocate-General, Orissa, Apex Court observed-

11. …A member of the Bar undoubtedly owes a duly to his client and must place before the Court all that can fairly and reasonably be submitted on behalf of his client…. At the same time, a member of the Bar is an officer of the Court and owes a duty to the Court in which he is appearing, He must uphold the dignity and decorum of the Court and must not do anything to bring the Court itself into disrepute….

(underlined to lay emphasis)

66. In the case of Ex- Capt, Harish Uppal v. Union of India and Anr. AIR 2003 SC 739 (para 31, 32, 33, 34 & 36) Supreme Court observed-

31. It must also be remembered that an Advocate is an officer of the Court and enjoys special status in society, Advocates have obligations and duties to ensure smooth functioning of the Court….The principles is that those who have duties to discharge in a Court of justice arc protected by the law and are shielded by the law to discharge those duties, the advocates in return have duty to protect the Courts….

32. it was expected that having known the well-settled law and having been that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected administration of justice, there would be self regulation. The above mentioned interim order was passed in the hope that with self restraint and self regulation the lawyers would retrieve their profession from lost social respect. The hope has not fructified….The judicial system is being held to ransom, Administration of law and justice is threatened. The rule of law is undermined,

33. It is held that submission made on behalf of Bar Councils of U.P, merely need to be stated to be rejected….Bar Council of India is enjoined with the duty of laying down standards of professional conduct and etiquette for advocates. This would mean that the Bar Council of India ensures that Advocates do not behave in unprofessional and unbecoming manner. Section 48A gives a right to Bar Council of India to give directions to State Bar Councils. The liar Associations may be separate bodies but all Advocates who arc members of such Association are under 4 disciplinary jurisdiction of the Bar Councils and thus the Bar Councils can always control their conduct….

34. In the case of Abhay Prakash Sahay Lalan V, High Court of Judicature at Abhay Prakash Sahay Lalan Vs. High Court of Judicature at Patna, , it has been held that Section 34(1) of the Advocates Act empowers High Courts to frame rules laying down conditions subject to which an Advocate shall be permitted to practice in the High Court and Courts subordinate thereto, It has been held that the power u/s 34 of the Advocates Act is similar to the power under Article 145 of the Constitution of India. It is held that other Sections of the Advocates Act cannot be read in a manner which would render Section 34 ineffective.

36. It must be noted that Courts are not powerless or helpless. Section 38 of the Advocates Act provides that even in disciplinary matters the final Appellate Authority is the Supreme Court. Thus even if the Bar Councils do not rise to the occasion and perform their duties by taking disciplinary action on a complaint from a client against an advocate for non-appearance by reason of a call for strike or boycott, on an Appeal the Supreme Court can and will, apart from this, as set out in Romans ”Services’- case, every Court now should and must mulct. Advocates who hold Vakalats but still refrain from attending Courts in pursuance of a strike call with costs,. Such costs would be in addition to the damages which the Advocate may have to pay for the loss suffered by his client by reason of his non-appearance.

67. Respondent No. 2 and Respondent Nos. 3 & 4 cannot claim immunity (being a Registered Society and its office bearers) in view of the ‘Aims & Object’ of this Society which is supposed to and formed to assist Courts/Tribunals under ‘public-duty’ to ensure proper functioning of Judicial system and to achieve excellence in dispensation of Justice which is essentially required for sustaining ‘Public Faith’ in the Judiciary of the Country-the most important among the three pillars of ‘Democracy’ conceived under Constitution of India.

68. For survival of ”Democracy’ in the country and to maintain relevancy of Courts’ in times to come, public-faith must be sustained. It must be protected and preserved at any cost. It cannot be allowed to be perished if ‘Democracy’ in the country has to survive.

69. ‘Credibility’ and ‘confidence’ are already at stake and shall be soon eroded completely if it appears to people that members of this ‘institution’ are no more worthy of credence and of its respect. People belonging to this ‘Profession’ must have commitment to ‘Rule of Law’, which should and ought to be the first virtue of Judicial ‘Institution’. Legal Profession, like any other profession is basically ‘service oriented’ but it has now turned into trade/loss of ‘spirit of service” is the sole source of all evils in the profession. Individual interest have taken precedence over Institutional interests. Public respect, however, can be commanded by ‘commitment’ selfless-service and respect of law.

70. ‘BAR’ and ‘BENCH’ are the inevitable two shores of one ‘river’ wherein flows ‘stream of Justice’. No ‘stream’ can exist with one shore, It is beyond comprehension, Similarly, in the present system of ‘Administration of Justice’, just and proper existence of both (i.e. BAR & BENCH) is essential.

71. Above noted ‘features’ of HCBA (a registered Society), comprising of. Advocates-in legal profession, places it in a distinct category as compared to other ‘Societies’ like Housing, Co-operative Society registered under Societies Registration Act, etc. Members of other Societies (registered under Societies Registration Act) do not enjoy special status nor accorded privilege of being ‘part & parcel’ of ‘State Functionary’ as such. In that respect HCBA stands on higher pedestal as compared to other registered Society which has no role in the functioning of ‘State’ organs.

72. Preliminary Objection of Respondent No. 3 & 4 has no merit and rejected.

73. Writ Petition under Article 226, Constitution of India, against Respondent No. 2, 3 & 4 is also maintainable. We hold accordingly.

Discussion:

74. In ‘justice delivery system’ of our country, members of Bar are as much involved and party to the Court proceedings as the Judges. Both have to work in close harmony based on mutual trust and respect. ‘Bar’ and ‘Bench’ are two sides of a coin. In other words they are ‘co-partners’, Circumstances in which BAR Election are held are unwarranted and unfortunate. Members of the Bar bear responsibility not only toward their clients but also to the court as well. Prem Surana Vs. Additional Munsif and Judicial Magistrate and Another,

75. In view of what we have already noted above, it is incumbent, upon Court to eliminate ‘ornamentally-enrolled Advocates (NRA) and check them from sneaking into ‘HCBA’ proclaiming as ‘regular legal practitioners’ of the High Court. Undisputedly, and in view of the stand taken by the parties before us, ‘Right of Entry in Court premises and right to ‘appear’ in Courts are subject to the control of Courts and within its exclusive ‘domain’.

76. The moot question is ‘Whether a person, enrolled as Advocate, by ‘BAR COUNCIL’-but not in legal profession or not a regular legal practitioner of a Court-can force his ‘entry’ in Court Premises merely because he/she is enrolled as ‘Advocate’ and claim ‘immunity’ from ‘regulatory measures’ prescribed by Court to ensure its proper functioning.

77. Every, public organisation/institution has inherent power to regulate ‘Entry’ and ‘working’ within its premises subject to such Statutory Rules/Orders as are not against any law or Arbitrary.

78. Relevant statutory provisions, in respect of above are reproduced-

Advocates Act: Sections 30 34 & 49:

30. Right of advocates to practise- Subject to provisions of this Act, every advocate whose name is entered in the {State roll} shall be entitled as of right to practise throughout the territories to which this Act extends,-

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the lime being in force entitled to practise.

COMMENTS

34. Power of High Courts to make rules-(1) The High Court may wake rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the Courts subordinate thereto.

(1-A) …

(2) …

38. Appeal to Supreme Court- Any person aggrieved by an order made by the disciplinary committee of the bar Council of India u/s 36 or Section 37 for the Attorney-General of India or the Advocate-General of the State concerned, as the case may be, may, within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order [(including an order varying the punishment awarded by the disciplinary committee of the bar Council of India)] thereon as it deems fit:

[Provided….

49. General power of the Bar Council India to make rules- [(1)] The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-

[(a)] the conditions subject to which an advocate may be entitled to vote at an election to the State bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters maybe prepared and revised by a State bar Council;

(ab) qualifications for membership of a Bar Council and the disqualifications for such membership’

(ac) the time within which and the manner in which effect may be given to the proviso to Sub-section (2) of section (3);

Constitution of India, Article 145

145. Rules of Court, etc.- (1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including-

(a) rules as to the persons practising before the Court;

(b) …

79. Supreme Court under Article 145 of the Constitution and High Court; under/Section 34 of the Advocates Act, have been empowered to frame Rules and prescribe conditions subject to which an advocate can be permitted to practise before such Courts. Supreme Court is the final appellate authority in respect of disciplinary matters by virtue of Section 38 of Advocates Act- see case of Harish Uppal (Ex.- Capt.), supra.

80. It is a trite to say that right of an Advocate to practise in terms of Section 30, is inextricably linked with the power of High Court to make Rules laying down the conditions subject to which an advocate shall have the right to practise before that High Court and its subordinate Courts. It is to be clearly understood that right of an advocate, to. practise before High Court is subject to exclusive procedural control as may be prescribed by Rules framed u/s 34 of Advocate Act and in its absence, Rules as may be in force or as per orders of Court issued from time to time.

81. ‘Right to Practise’ as ‘Advocate’ conferred upon a person u/s 30 of the Act, and powers of High Court to regulate its working u/s 34 of the Act are complimentary to each other. Section 30 of the Act, as on date exists ornamentally since the legislature in its wisdom has not enforced it as yet. Even if Section 30 were to be brought into force, control of proceedings in court will always remain with the court. There is thus no conflict with Section 30 of the Advocate Act and Section 34 of the Advocates Act or Article 145 of the Constitution of India. Overall Control of Court to conduct its business cannot be questioned even if Section 30 were to be brought into force.

82. Court can frame ‘RULE’ to prevent an ‘advocate/s’ from appearing before it, if he disturbs ‘discipline of Court’ or ‘obstructs Court proceedings’ or for other good reason/s,-namely- suffering from contumacious disease, psyzopheramia/mental disorder, acts against dignity of Court, for otherwise tends to shake ‘faith’ of public in the judicial system’, etc. It is, therefore, necessary now for Court to satisfy itself of the credentials of an ‘Advocate’, particularly one who intends to be a ‘legal practitioner’ of that ‘Court’. Such power of superintendence is curative/remedial. Contempt jurisdiction, vested in law upon Court, is punitive-prohibitive in nature. There is thus no conflict.

83. We may further illustrate the point. ‘License’ to drive a Motor-vehicle is issued by Regional Transport Officer under Motor Vehicles Act. It signifies ability of a person to drive a particular ‘Motor Vehicle’. Such person when engaged to ‘drive’ such ‘vehicle’ cannot claim to drive it in any manner ignoring directions of owner of the Vehicle. Driver, though he has license, cannot superimpose his ‘WILL’ to drive or violate Masters’ instructions bot to exceed certain speed limit, or to drive it even when it is not safe, etc. Similarly enrolment as Advocate (under Advocates Act) is nothing but certification of eligibility to discharge duties as Advocate. It gives no license nor confers enforceable right to force entry or thrust his appearance in Courts.

84. It is also a matter of common knowledge and experience that large number of persons, once having managed ‘Degree of Law’ get enrolled as ‘Advocate’ without possessing requisite potential or patience required for ‘profession of Law’. They have no aptitude or spirit of ‘service’ required in ‘Legal Profession’. They exploit status of ‘Advocate’ and thrive at the cost of ‘profession’/’Judicial Institution’. For them it is a ‘Trade’. Judicial notice can be taken of the fact that sometime ‘President’, ‘Secretary’ or other officc-Bearer/s of ‘Bar’ arc ‘briefless’ and enjoy no recognition as a ‘Professional Advocate’. Such is the position in the case of ‘BAR COUNCIL’ also.

85. Above phenomenon explains ‘lack’ of ‘initiative’ and ‘WILL’ to take action in this direction. It has introduced no amendment in Advocate Act and/or other relevant place that ‘Advocate’ not in profession-for more than 6 months must surrender his license or in breach face criminal action.

86. HCBA Rules, particularly Rule 4 and 6, require maintenance of separate list/register for different categories of members-i.e. Honorary Members, Non-resident Members and Ordinary Members; Rule 9 and 12 show that ‘ordinary members’ are also referred as ‘resident members’. Rule 28, 29, 30, 34 and 52 contemplate that ‘Ordinary members’ (legal practitioners in High Court) alone are entitled to participate and exercise right to vote in the meetings of HCBA, No one can deny that ‘funding’ of voters amounts to ‘Bribery’ and exerting corrupt practice.

87. Apex Court in the case of (2003) 10 ILI 383Indian Handicrafts Emporium v. Union of India and Ors. observed-“Loop holes if any, can be and should be plugged in”.

88. Recent amendment, Vide U.P. Gazette (Part II) dated 1 1.6.2005 introducing Rules 3-A in chapter XXIV of Rules of Court of High Court, Allahabad, is one such step. It reads-

Rule 3-A “(i) Unless the Court grants leave, an Advocate who is not on the Roll of Advocates in the High Court at Allahabad or Luc know shall not be allowed to appear, act or plead in the High Court at Allahabad or Lucknow as the case might be unless he files appointment along with an Advocate who is on such roll for Allahabad cases at Allahabad and for Lucknow cases at Luckuow.

(ii) The High Court shall prepare a Roll of advocates in Parts ‘A’ and ‘B’ of those who ordinarily practice in the High Court, Part ‘A’ for Allahabad and Part B for Lucknow.

(iii) The Roll of Advocates shall bear in regard to each advocate entered, his full name, father’s name, passport size coloured photograph, eurolment number, date of enrolment, complete postal address both of residence and office which shall be in the municipal limits of the city of Allahabad or Lucknow as the case might be.

(iv) The Rolls shall be prepared and revised periodically in the manner and under the authority as may be prescribed by ;’ the Chief Justice.

(v) This Rule 3-A shall come into force after notification by the Chief Justice that both the Rolls for Allahabad and Lucknow in Parts ‘A’ and ‘B’ are compete

89. High Court, Allahabad, in present context, obliged to ensure identity and watch conduct of an advocate’ who enters its premises, are genuinely and duly enrolled as ‘Advocate’ by Bar Council and are bonafide ‘regular’ “legal practitioner of Allahabad, High Court. There is no bar or impediment in law on this Court. Supreme Court has already done so.

90. Rule 3 (c), Bar Council of Uttar Pradesh-Election Rules, 1992 (framed u/s 15(2) of the Advocates Act) reads:

3(c) “Bar Association” means a Bar Association registered under the Indian Societies Act, 1860 and also affiliated by the State Bar Council in accordance with the rules framed by State Bar Council for the purposes of these rules.

91. It shall not be out of context to refer to relevant rules of-“Bar Council of India Rules -Standards of Professional Conduct and Etiquette,” (passed by liar Council of India), which are extracted below:

Preamble

An advocate shall, at all times, compost 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. Section I- Duty to the courts. An advocate, shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty : to submit his grievance to proper authorities.

2. An advocate shall maintain towards the courts a respectful attitude, bearing in mind that the dignity of the judicial office is essential for the survival of a free community.

3. An advocate shall not influence the decision of a court by any illegal or improper means, Private communications with a judge relating to a pending case are forbidden.

4. An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the court, opposing counsel or parties which the advocates himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgement in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in court.

Section IV-Duty to colleagues

36. An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His signboard or name-place should be of a reasonable size. The signboard or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of association or that he has been associated with any person or organisation or with any particular cause, or matter or that he specialises in any particular type of work or that he has been a Judge or an advocate General.

FORM UNDER RULE 40

Bar Council of….

Dear Sirs,

(1) I am enclosing herewith a Postal Order/Bank Draft/Cash for,…for being the payment under Rule 40. Chapter II, Part VI of the Rules of the Bar Council of India.

(2) I am enrolled as an Advocate on the Rolls of your State Bar Council.

(3) I am ordinarly practising at…in the territory/State of….

(4) I am a member of the….Bar Association/not a member of any Bar Association.

(5) My present address is….

Dated SIGNATURE
Place NAME IN BLOCK LETTERS
ENROLMENT No. ….
Part-IX

General principles to be followed by State Bar Councils and Bar council of India, rules for Supervision and Control by the Bar Council of India.

Supervisions and control

17…

18…

19…

20…

21…

22…

23…

24(a) When the name of an advocate is removed from the rolls or an advocate is suspended from practice or otherwise punished, under an order of any Disciplinary Committee or an order of the Supreme, Court u/s 38 or when an intimation of voluntary suspension from practice is received from the advocate, the State Council in respect of a person in its roll and the Council in respect of a person whose name is not in any State Roll, shall furnish information thereof giving the name of the advocate, his roll number and date of enrolment, his address, nature of the punishment inflicted.

Rule 5(iii) of Supreme Court Rules 1966 lays down that no advocate shall be qualified to he registered as an advocate on record unless he has an office in Delhi within a radius of 16 Kms. from the court house and Rule 11 of the said Rules further lays down that every advocate, on record, shall notify to the Registry the address of his office in Delhi and every change of such address. Rule 10 and 11 of Supreme Court Rules, 1966 are also relevant which reads:

10. No advocate other than an advocate-on-record shall appear and plead ‘ in any matter unless he is instructed by an advocate-on-record.

11. Every advocate-on- record shall notify to the Registrar the address of his office in Delhi and every change of such address, and any, notice, writ summons, or other document served on him or his clerk at the address so notified by him shall be deemed to have been properly served.

Bar Council of India has framed model schemes for welfare of Advocates. Grant of financial assistance to indigent practising advocates means Advocate who is actually in legal practice entitled for seeking benefits under said scheme.

Bar Council of India Rules prescribe scheme for library development. Rule 3(b) defines ‘Bar Association’ which reads:

3(b) “Bar Association” means the Bar Association registered under the Societies Registration Act or so affiliated with the State Bar Council within whose jurisdiction the Bar Association is situated.

The application form for Bar Council Welfare Scheme, 1998 contains following certificate:

Certification by the Bar Association
where the applicant is a member

It is hereby certified that Shri/Ms./Mrs…son of/daughter of/wife of…is a member, of this Bar Association and his/her membership Number of the Bar Association at present is….

(underlined by us to lay emphasis)

92. None of the respondents deny existence of the ‘vice’ in ‘BAR’ and its elections. Same time, we cannot afford to miss that both the Petitioners and Respondent No. 3 & 4 are ‘shy’ to accept intervention of Court on the misconceived perception of absolute immunity from being controlled by any ‘authority’ other than U.P. Bar Council and misplaced apprehension of breach of ‘autonomy’ of the ‘BAR’. We find no just and valid basis for it, To respect and abide by law or to honour ‘in built’ proceedings regulating functioning of an institution cannot be equated with subjugation or breach of ones autbnomy ‘rights’ and ‘duties’ are complementaries and not contradictories.

93. The relief claimed in the Writ Petition are-

[i] issue, a writ order or direction in the nature of mandamus for constituting a committee of Former Presidents HCBA presently practising in the High Court for weeding out nonpractising advocates and to prepare final list of genuine voters who are regular practitioners in this Hon’ble Court and to hold elections of the General Body of the HCBA for the term 2004-2005 immediately thereafter.

[ii] issue, a writ order or direction in the nature of mandamus ceasing the financial powers of the respondent number 3 & 4 other than disbursement of salary to HCBA staff until holding of the HCBA General Body Elections 2004-2005.

[iii] issue, a writ order or direction in the nature of ad-interim mandamus ceasing the financial powers of the respondent number 3 & 4 other than disbursement of salary to HCBA staff until holding of the HCBA General Body Elections 2004-2005, and/or during the pendency of the present Writ Petition before this Hon’ble Court, besides constituting a committee of Former Presidents HCBA presently practising in the High Court for weeding out nonpractising advocates and to prepared final list of genuine voters who are regular practitioners in this Hon’ble Court and to hold elections of the General Body of the HCBA for the term 2004-2005 immediately thereafter, so as to secure the ends of justice, or else the petitioner as well as the “institution” shall suffer irreparable harm and injury.

[iv] issue, any such other or further orders as this Hon’ble Court deems fit and proper in the present facts and circumstances of the case so as to secure the ends of justice.

94. Respondent No. 1 is vested with statutory powers. It has to perform statutory duties under Societies Registration Act (as amended in U.P.). The relevant provisions of this Act are:

12-D. Registrar’s power to cancel registration in certain circumstance.-(1) Notwithstanding anything contained in this Act, the Registrar may, by or in order writing cancel the registration of any society on any of the following grounds:

(a) that the registration of the. society or of its name or change of name [is] contrary to the provisions of this Act or of any other law for the time being in force;

(b) that its activities or proposed activities have been or are or will be subversive of the objects of the society or opposed to public policy;

Provided that no order of cancellation of registration of any society shall be passed until the society has been given a reasonable opportunity of altering its name or object or of showing cause against the action opposed to be taken in regard to it.

[(c)] That the registration or the certificate of renewal has been obtained by misrepresentation or fraud].

[(2)] An appeal against an order made under Sub-section (I) may be preferred to the Commissioner of the Division in whose jurisdiction the Head quarter of the Society lies, within one month from the date of communication of such order.

(3) The decision of the Commissioner under Sub-section (2) shall be final and shall not be called in question in any Court.]

[13-A. Power of Registrar to apply for dissolution.- (1) Where in the opinion of Registrar, there are reasonable ground to, believe in respect of a society registered under this Act that any o the grounds mentioned in Clauses (a) to (e) of Sub-section (I) of Section 13B exists he shall send to the society a notice calling upon it to show cause within such time as may be specified in the notice why the society be not dissolved.

(2) If on or before the dale specified in the notice or within such extended period as the Registrar may allow, the society fails to show any cause or if the cause shown is considered by the Registrar to be unsatisfactory, the Registrar may move the Court referred to in Section 13 for making an order for the dissolution of the Society.

13-B. Dissolution by court.- On the application of the Registrar u/s 13-A or u/s 24 or on an application made by not less than one tench of the members of a society registered under this Act, the Court referred to in Section 13 may make an order for the dissolution of the society on any of the following grounds, namely,-

(a) that the society has contravened any provision of this Act or of any other law for the time being in force and it is just and equitable that the society should be dissolved;

(b) that the number of the members of the society is reduced below seven;

(c) that the society has ceased to function for more than three years preceding the dale of such application;

(d) that the society is finable to pay its debts or meet its liabilities, or

(e) that the registration of the society has been cancelled u/s 12-D on the ground that its activities have been or are or will be opposed to public policy.

(2) Without prejudice to the provisions of Sub-section (I) or of : Section 12-D, the Court may, on an application of the District Magistrate in this behalf, make an order for the dissolution of a society on the ground that the activities of the society constitute a public nuisance or are otherwise opposed to public policy.

When an order for the dissolution of a society is made under Sub-section (I) or Sub-section (2), all necessary steps for the disposal and the settlement of the property of the society, its claims and liabilities and any other adjustment of its affairs shall take place in manner as the Court may direct.

15(2). Every society shall maintain a register of members giving such particulars as may be prescribed.

22. Power of Registrar to call for information.-(1) The Registrar may, by written order, require any society to furnish in writing such information or document within such time, being ordinarily not less than two weeks from the date of receipt of the order by the society, at he may specify in the order in connection with the affairs of the society or any documents filed by the society under this Act.

(2) On receipt by the society of an order under Sub-section (]), it shall be the duty of the President, Secretary or any other person authorised in this, behalf to furnish such information or documents.

24. Investigation of affairs of a society.- (I) Where on information received u/s 22 or otherwise, or in circumstances referred to in Sub-section (3) of Section 23, the Registrar is of opinion that there is a apprehension that the affairs of a society registered under this Act are being so conducted as, to defeat the objects of the society or that the society or its governing body by whatever name called, or any officer thereof in actual effective control of the society is guilty of mismanaging its affairs, or of any breach of fiduciary or other like obligations, the Registrar may, either himself or by any person appointed by him in that behalf inspect or investigate into the affairs of the society or inspect any institution managed by the society.

(2) It shall be the duty of every officer of the society when, so required, by the Registrar or other person appointed under Sub-section (I) to produce any books of account and other records of or relating to the society which are in his custody and to give him all assistance in connection with such inspection or investigation.

(3) The Registrar or other person appointed under Sub-section (I) may call upon and examine on oath any officer, member or employee of the society in relation to the affairs of the society and it shall be the duty of every officer, member or employee, when called upon, to appear before him for such examination.

[(3A) The Registrar or other person appointed under sub-section(1), may, if in his opinion it is necessary for the purpose of inspection or investigation, seize any or all the records including account books of the society:

Provided that any person from whose custody such records arc seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of the person having the custody of such, records]

(4) On the conclusion of the inspection or investigation, as the case may be, the person, if any appointed by the Registrar to inspect or investigate shall make a report to the Registrar on the result of his inspection or investigation.

(5) The Registrar may after such inspection or investigation, give such directions to the society or to its governing body or any officer thereof as he may think fit, for the removal of any defects or irregularities with such time as may be specified and in the event of default in taking action according to such directions, the Registrar may proceed to take action u/s 12-D or Section 13-B, s the case may be.

25. Disputes regarding election of office-bearers,- (I) The prescribed authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect there of as it deems fit:

Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied-

(a) that any corrupt practice has been committed by such office -bearer; or

(b) that the nomination of any candidate has been improperly rejected; or

(c) that the result of the election in so far as it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vole or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society.

Explanation I.- A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-

(i) induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at the election;

(ii) With a view to inducing any elector give or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;

(iii) abets (within the meaning of the Indian Penal Code) the doing of any of the acts specified in Clauses (i) and (ii);

(iv) induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;

(v) canvasses on grounds of caste, community, sect or religion;

(vi) commits such other practice as the State Government may prescribe to be a corrupt practice.

Explanation II- A ‘promise of individual advantage or profit to a person’ includes a promise for the benefit of the person himself, or of any one in whom he is interested.

Explanation III- The State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the Society]

(2) Where by an order made under Sub-section (1), an election is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office bearers of a society has not been held within the time specified in the rules of that society, he may call a meeting of the general body of such society for electing such office-bearer or office bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorised by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and elections with necessary modifications.

(3) Where a meeting is called by the Registrar under Sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the society.

Explanation- for the purposes of this section, the expression ‘prescribed authority’ means an officer or court authorised in this behalf by the State Government by notification published in the official Gazette.

95. Section 6 of Advocates Act, 1961 lays down functions of State Bar Council.

96. Section 6(1)(dd) of said Act reads-

6(1)(dd)- to promote the growth of Bar Association or the purposes of effective implementation of the welfare schemes referred to in Clause (a) of Sub-section (2) of this section and Clause (a) of Sub-section (2) of Section 7.

16(4). No person shall be enrolled as an advocate on the roll of more than one State Bar Council.

97. Again relevant clause of Model Bye Laws of U.P. Bar Council read-

ELDERS COMMITTEE

7. There shall be an Elders Committee of each association considering of 5 senior most members of the Association actively practising in that Court:

(a) As far as the High Court is concerned 5 designated Senior Most Advocates actively practising in High court by virtue of their seniority.

(b) so far as the District Court is concerned the seniority of the members of the Elders Committee will be determined taking into account the date of enrolment as an Advocate by the Bar Council and having atleast rendered 10 years regular practice in that court and continuing as regular practitioners of that Court.

(c) Senior most member of the Elders Committee will be the Chairman.

APPLICATION FOR ORDINARY MEMBERSHIP

9. Any person, who has been admitted as ordinary member by the Executive Committee shall from the date of admission be entitled to all the privileges of membership, but he shall have no right of vote at meetings of the Associations until he has paid admission fee in full and has further continued as such for 2 years.

REMISSION OF SUBSCRIPTION DURING ABSENCE FROM DISTRICT.

14. An ordinary member who intends to be absent from practice in the court concerned for a continues period of not less than six calendar months shall on giving an advance notice in writing to the Secretary, be permitted during the period of such continuous absence, to pay the monthly subscription prescribed for a non-resident member. However such privilege will be available to an ordinary member only once in five years.

98. Since HCBA erection-2004-05 has already taken place, relief contained in Clause (ii) and (iii) in the prayer Clause in the Writ Petition, cannot be granted as such and rejected. Reliefs claimed vide Clause (i) is granted by moulding the reliefs to the extent indicated below.

ORDER

A. A WRIT of MANDAMUS is issued directing Respondent No. 1/Registrar, Societies Firms and Chits to require HCBA to provide in the Membership-Form to include adequate column/s to maintain distinction between ‘Ordinary Members’ and ‘Non Resident Members’, to maintain separate List/Register of three categories of the members defined under Clause 4 of HCBA Rules; to exclude ‘NRAs’ from exercising right to ‘Vote’ in HCBA meetings-including election meeting/s, and to take such steps, which may be necessary, to enable HCBA to achieve ‘AIMS & Objects’ enshrined in HCBA Rules.

And for this purpose, Respondent No. 1 shall require HCBA to prescribe in the ‘Application Form’ for seeking membership of HCBA-

(i) a column to give full and complete address of office and Residence (both permanent and local at Allahabad) viz.-House No, name of street, Mohalla/Colony, City & State, postal-PIN number, Telephone/Mobile number/s, FAX number, E-Mail Address, Income Tax PAN, if any, and space for recent coloured Passport size photograph of the Applicant.

(ii) a column to disclose information whether such person has been subjected to in the past and/or facing in the present, criminal proceedings/trial or other similar information, if any, with full details of the proceedings and relevant particulars to identify and locate the proceedings and annex document/s/papers relating to such proceedings.

(iii) a column to disclose date of application informing the Registry for inclusion of name on the ‘ROLL OF COURT’ under Ch. XXIV, Rule 3-A, High Court Rules (as amended up to date), to disclose serial Number/’Code-number’ of High Court ROLL, if any. So long as Roll of Court is not prepared, written intimation shall be addressed and given to the Registrar General, High Court, Allahabad by filing an Application as required under Chapter XXIV Rule 3-A of Rules of High Court to be maintained as record of Court and require HCBA not to enrol-‘ordinary-member’ if ‘intimation’ of his being legal practitioner of High Court, Allahabad-or Code Number of High Court Roll under Ch. XXIV Rule 3-A is not disclosed,

(iv) a column requiring an applicant to sign undertaking that-

(a) arrears/dues of Membership for more than one month, shall be paid to HCBA through Account Payee cheque/Bank Draft or ‘Bankers’ Cheque only.

(b) the applicant undertakes to abide by Advocates Act & Rules framed thereunder; HCBA Rules, Rules of Court (of Allahabad High Court)-, orders and other directions as may be issued by High Court from time to time to check and regulate entry in Court;

(c) a column requiring Applicant to disclose all Academic qualifications with particulars of school/College University/Institution attended and enclose certificate/documents, including High School (or equivalent), Graduation, Law Course/Graduation, Enrolment Certificate issued by Bar Council in question, etc. duly attested by competent authority/authorities and counter signed by the Applicant certified to be correct as per originals. A check list of such documents to be incorporated;

(d) a declaration that he has and shall maintain his ‘office’ as Advocate within the ‘municipal limits’ of city of Allahabad (as required by Supreme Court in the case of Advocate-on-record).

(v) to declare (with verification at the bottom of the Membership Form)-

(a) that the facts stated in the application are correct as per record/personal knowledge;

(b) that the documents enclosed by the Applicant are true/correct and not fabricated or forged;

(c) that the Applicant-Advocate is a ‘legal practitioner’ ordinarily practicing in High Court, at Allahabad;

(d) that he has not sought membership of any other ‘BAR’ as an Advocate ordinarily pacticing in any other Court/tribunal;

(e) that he undertakes to inform U.P. Bar Council, High Court, Allahabad through Registrar General and HCBA, through Secretary and immediately without delay in case he ceases to be ‘legal practitioner in said High Court’ and/or intends to abandon-‘legal profession’;

(f) Two members of HCBA to counter-sign and verify authenticity/correctness of the information disclosed in the Application;

(g) require a copy of the said Application Form- under seal and signature of the President & Secretary HCBA along with all its enclosures to be submitted to the Court through Registrar General for information, and Court record.

(vi) To ensure compliance of provisions of Model Bye-Laws.

The above directions are-illustrative and not exhaustive. Respondent No. 1, at its discretion, require such other information or provide for such other measures as may be necessary and warranted by law.

2. A WRIT of MANDAMUS is issued to Respondent No. 5/U.P. Bar Council U.P. (at Allahabad) to consider –

(i) to incorporate in ‘Model-Bye-Laws’ that all money transactions shall be only through Bank i.e. Account Payee cheque/Account Payee Demand Draft and/or Banker’s Cheque;

(ii) to make it a statutory obligation/duty for already ‘Enrolled Advocate’ and for a person seeking ‘Enrolment as Advocate’ in future, to give an undertaking/declaration that he/she shall not use the word ‘ADVOCATE’ against/alongwith his/her name anywhere and that ‘Enrolment Certificate’ shall be surrendered in case he/she ceases to be ‘a legal practitioner’ or takes up any other Vocation. Further the breach of such declaration/condition shall constitute an offence of ‘fraud’/’cheating’ under I.P.C.;

(iii) U.P. Bar Council to ensure that HCBA ‘terms and conditions’ of ‘Affiliation’ are scrupulously followed.

3. A writ of Mandamus is issued directing Respondent No. 8./Registrar General, High Court, Allahabad to place within one week from today, a copy of this judgement (alongwith relevant record of the case) before Hon’ble The Chief Justice for consideration to modulate/formulate Rules-prescribing procedure and to give effect to Rule 3-A of Chapter XXIV of Rules of Court of Allahabad High Court.

99. ‘Format’ of Application to be given by concerned Advocate for including his/her name on the ‘ROLL OF THE COURT’ under aforesaid Rule 3-A, apart from other things, if deemed appropriate should require an Applicant to fix his Passport size coloured photograph apart from disclosing his name, Father’s name, complete address of office and residence at Allahabad, Permanent address with State, Name of Bar Council where enrolled, Enrolment No., disclose whether Enrolment refused in the past by any Bar Council, require declaration that applicant shall ordinarily practice as Advocate in Allahabad High Court; that he has read ‘Rules of Court’ (Allahabad High Court Rules) and the STANDARDS OF PROFESSIONAL CONDUCT AND ETIQUETTE Rules u/s 49(1)(c) of the Advocates Act shall maintain ‘regular office’ within Municipal limits of Allahabad; maintain such records of professional dealings as required under law; change of any of above information to be reported to the High Court for incorporating it in ‘High Court Roll’; details of other ‘BAR’ Association/s- of which he is Member; whether he has applied for or allotted a chamber/seat by such Court, Tribunal etc. (other than Allahabad High Court); declare that he has not claimed benefit/privilege of being Ordinary or Regular-Legal practitioner of any other Court/Tribunal or BAR; enclose attested testimonials of Academic Qualifications including Enrolment-Certificate of BAR Council; to produce originals for being checked by the Registrar General (or the officer authorised by Hon’ble the Chief Justice); to deposit such fee, as may be prescribed by Court as cost of application form and maintenance of ‘ROLL’ ; to give declaration that applicant-Advocate seeking inclusion of his name on the Roll of this Court ‘shall not take up any other trade, business, vocation or activity (other than permissible under advocates Act) and that he shall inform U.P. Bar Council, High Court, Allahabad and HCBA before he abandons the profession.

100. The above are not exhaustive and given for consideration of the Court while preparing ‘ROLL OF ADVOCATES’ under Rule 3-A of Chapter XXIV of Rules of Court.

101. In the last, we also request the learned Advocate General to place a copy of this judgement before State Government to take stock of the situation and initiate such measures as may be warranted in the light of above observations. For this purpose, we direct Registrar General, High Court, Allahabad also to send a copy of this judgement and order to Respondent No. 1, 5, 6 & 7 for information and such action as may be deemed appropriate at their end.

102. Writ Petition stands partly allowed by moulding the relief to the extent indicated above.

103. No costs.


(2007) 2 AllWC 2011, 2007(2) AWC 2011.

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