Bar Association Tilhar vs Bar Council Of Uttar Pradesh At ...
2023 Latest Caselaw 14766 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:101550-DB
 
Court No. - 3
 

 
Case :- WRIT - C No. - 10778 of 2023
 

 
Petitioner :- Bar Association Tilhar
 
Respondent :- Bar Council Of Uttar Pradesh At Allahabad And 3 Others
 
Counsel for Petitioner :- Shaheen Bano,Abhishek Kumar Saroj,Shaheen Bano,Shahnawaz Khan
 
Counsel for Respondent :- CSC,Ashok Kumar Tiwari
 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Anish Kumar Gupta,J.

1. Heard Shri B.K. Upadhyay holding brief of Shri Abhishek Kumar Saroj, learned counsel for the petitioner, learned Standing Counsel for the respondent no.2 and Shri Ashok Kumar Tiwari, learned counsel for the respondent nos.1 and 3.

2. This writ petition has been filed praying for the following relief:

"I. Issue a writ order or direction in the nature of certiorari to quash the impugned order dated 15.03.2023 passed by the Chairman, Bar Council of Uttar Pradesh at Allahabad/Respondent No.1 (Annexure No. 14 to the writ petition).

II. Issue a writ order or direction in the nature of mandamus commanding/directing to the Respondent No.1 and 2 to conduct the Oath Ceremony of the Petitioner as President of Bar Association, Tilhar, Shajhanpur in compliance to the order dated 06.02.2023 passed by the Chairman, Bar Council of Uttar Pradesh at Allahabad/Respondent No.1."

3. According to the petitioner, an election of "Bar Association Tilhar (Shahjahanpur)" was conducted and the office bearers were elected. Thereafter, a complaint was filed by some members of the Bar Association before the respondent no. 1 i.e., Bar Council of Uttar Pradesh at Allahabad. Upon the said complaint the then Chairman of the Bar Council of Uttar Pradesh at Allahabad, passed an order dated 19.12.2022 which was followed by another order dated 14.01.2023 constituting a Five Members Elders Committee to inquire and submit report. Thereafter, the new chairman passed an order dated 06.02.2023 recognizing the election held on 17.12.2022. It appears that the petitioner had filed a Writ C No. 3512 of 2023 (Bar Association Tilhar through its President v. Bar Council of Uttar Pradesh at Allahabad through its Chairman and two Ors.), praying to quash the order dated 14.01.2023 constituting five Members Elders Committee.

4. It appears that since the Chairman subsequently passed the above referred order dated 06.02.2023, therefore, the aforesaid Writ C No. 3512 of 2023 was dismissed as infructuous by order dated 16.02.2023 passed by this Court in presence of Sri Ashok Kumar Tiwari, learned counsel for the respondent no. 1.

5. Despite the aforenoted facts, the respondent no. 1 passed an order dated 15.03.2023 constituting a Five Member Elders Committee and directing for election of the aforesaid Bar Association (Tilhar). Aggrieved, the petitioner has filed the present writ petition praying to quash the impugned order dated 15.03.2023.

6. Learned counsel for the petitioner has placed reliance upon the Division Bench Judgment of this Court in the case of Elders Committee i.e., Central Bar Association, Azamgarh vs. State of U.P. and Ors. [2013 (6) ADJ 90 (DB)].

7. Learned counsel for the respondent no. 1 does not dispute the law laid down by this Court in the case of Elders Committee Central Bar Association Azamgarh (Supra).

8. We have considered the submissions of learned counsel for the parties.

9. We find that the controversy involved in the present writ petition is concluded by the law down by this Court in the case of Elders Committee Central Bar Association, Azamgarh (Supra) in Paragraph Nos. 25, 26, 29, 30 and 31 as under:

"25. We do not find any provision in the Advocate Act, includingSection 6, Section 17 (1), (3), (a), (b), and (c); Section 16 of the The Advocates Welfare Fund Act, 2001, or even in the Bar Council of U.P. Election Rules, 1992 made under Section 15 (2) of the Advocates Act, 1961 to supervise, monitor, regulate, or to intervene in the elections of any particular affiliated or non-affiliated Bar Associations on the ground that the Bye-Laws or the Model-Bye Laws framed by the Bar Council of Uttar Pradesh have been violated by any Bar Association. The Model-Bye Laws prepared by the Bar Council of U.P. have received approval of the High Court in Shiv Kumar Akela's case. The adoption of Model-Bye Laws by all Bar Associations is to avoid the entry of non-practicing and non-resident Advocates in the Bar Association and having prescribed a procedure in which the elections should be held regularly and in case the term of the office bearers expires, the Elders Committee to take over and run the Bar Association upto the time and for holding the elections, the Bar Council of Uttar Pradesh does not have any power or authority under any Statute, Rules, Regulations, Bye-laws, or any authority given by Court or judicial pronouncement to supervise and interfere in the elections of its office bearers or executive Committee. The Bar Council of Uttar Pradesh is a statutory body. It can exercise only those powers, which are vested in it by the Advocates Act or any other Acts and the Rules and Regulations framed thereunder. There is absolutely no power whatsoever, in the Bar Council of Uttar Pradesh or any of its office bearers or Secretary to direct any Bar Association to hold or not to hold elections or for that matter the appointment of Elders Committee; for fixing or finalising the electoral list; fixing the dates of elections or in issuing directions for holding elections. The Bar Council of Uttar Pradesh or its members and officers do not have any authority whatsoever to issue directions to any Bar Association either directly or to be communicated through the District Magistrate or District Judge to act in any manner in the conduct of elections of its office bearers or executive Committees. The Bar Council of Uttar Pradesh cannot make inroads into and curtail the rights of the Advocates to form an association which includes their rights to elect the members to its executive Committees. The Bar Council of Uttar Pradesh being a statutory body to regulate the enrollment, discipline and conduct of its members, to ensure the welfare of its members and for implementation of various welfare schemes, do not get any authority to supervise the elections and affairs of the Bar Associations, which are independent societies registered under the Societies Registration Act.

26. The members of the Bar Associations registered as societies under the Societies Registration Act have statutory remedies available to them before the Registrar of Societies, Prescribed Authority and finally in the civil court for redressal of their grievances.

27. In the present case the dispute centers around the eligibility of members of the Elders Committee, who were appointed to look after and manage the Bar Association, until the elections and to supervise the elections. On the complaint of Shri Pyare Mohan Srivastava, a candidate for contesting the elections for the post of President, whose nomination was found to be valid and who has subsequently withdrawn from the contest, Shri R.P. Maurya, the then Vice Chairman of the Bar Council of Uttar Pradesh took notice of the complaint and issued the impugned order restraining the Elders Committee, Central Bar Association, Azamgarh to take any further steps in the matter of holding elections. He assumed powers purportedly on the ground that the Elders Committee has not been constituted in accordance with the Model Bye Law and further that some members of the Elders Committee are not eligible to be appointed to the Committee. He purportedly assumed powers on a complaint on the eligibility of the members of the Elders Committee, and interfere in the elections for which he has no power at all.

28. In Pratap Chandra Mehta vs. State Bar Council Of Madhya Pradesh and others (2011) 9 SCC 573, the Supreme Court considering the provisions of Advocates Act 1961, observed in para's 14 and 15 as follows:

"14. The Parliament of India enacted the Advocates Act on 19th May, 1961 to amend and consolidate the laws relating to legal practitioners and to provide for the constitution of State Bar Councils and an All India Bar Council. The object of the Advocates Act is to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Though the Advocates Act relates to legal practitioners in its pith and substance, it is an enactment dealing with the qualifications, enrolment, right to practise and discipline of advocates. It is not only implicit but clear from the provisions of the Advocates Act that once an advocate is enrolled by any State Bar Council, he becomes entitled to practise in all courts including the Supreme Court. Therefore, this is a legislation which deals with persons entitled to practise before the Supreme Court.

15. In the case of O.N. Mohindroo vs. Bar Council of Delhi of Delhi & others, AIR 1968 SC 888, this Court held that:

10. The object of the Act is thus to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Since the Act sets up one Bar, autonomous in its character, the Bar Councils set up thereunder have been entrusted with the power to regulate the working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules. The power of punishment is entrusted to the disciplinary committees ensuring a trial of an advocate by his peers. Section 35, 36 and 37 lay down the procedure for trying complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils. As an additional remedy S.38 provides a further appeal to the Supreme Court. Though the Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrollment, right to practise and discipline of the advocates. As provided by the Act once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practise in all courts including the Supreme Court. As aforesaid, the Act creates one common Bar, all its members being of one class, namely, advocates. Since all those who have been enrolled have a right to practise in the Supreme Court and the High Courts, the Act is a piece of legislation which deals with persons entitled to practise before the Supreme Court and the High Courts. Therefore the Act must be held to fall within entries 77 and 78 of List I. As the power of legislation relating to those entitled to practise in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other professions in entry 26 of List III, it is an error to say, as the High Court did, that the Act is a composite legislation partly falling under entries 77 and 78 of List I and partly under entry 26 of List III."

29. We may observe here that the Bar Council has powers under Section 21 of the Advocates Act to decide the question of seniority amongst the Advocates, who are enrolled with the Bar Council. If any representation is made on any dispute on the issue to determine the seniority, it is open to the Bar Council to decide it in accordance with the law. The Bar Council, however, does not have any authority on such a complaint to interfere in the elections of Bar Association and to stop the Elders Committee from taking steps for holding the elections.

30. We also take judicial notice of the fact that the Bar Council of Uttar Pradesh has been issuing several notices, press notes and has been giving calls in directing members of Bar Association for abstaining from work on various issues purportedly to protect the interest of its enrolled Advocates; and rising incidents of crime against enrolled Advocates. We take this opportunity to declare that Bar Council of India or Bar Council of Uttar Pradesh or for matter of any Bar Council, as statutory bodies under the Advocates Act for enrolling advocates, maintaining discipline and for regulating the conduct including punitive action relating to enrollment of an advocate; and in ensuring welfare of the advocates through various schemes, for affiliation of the Law Colleges and ensuring the standards of legal education in the Law Colleges do not have any power or authority to give any call to the Advocates to abstain from work or to resort to strike work which obstructs the administration of justice, except in rarest of rare situation in which as opined by Hon'ble Supreme Court as a mark of protest where the independent of judiciary is at stake the Bar Council may, after giving reasonable notice to the head of judiciary, call for a peaceful protest without disturbing the work and functioning of Courts and Tribunals. In Pandurang Duttatraya Khandekar vs. Bar Council of Maharashtra (1984) 2 SCC 556; Tahil Ram Issardas Sadarangam vs. Ramchand Issardas Sadaranganj 1993 (3) SCC 256; Common Cause A Registered Society vs. Union of India (1995) 3 SCC 19; Sanjeev Dutta vs. Ministry of Information & Broadcasting (1995) 3 SCC 619; Indian Council of Legal Aid & Advice vs. Bar Council of India 1995 (1) SCC 732; K. John Koshi v. Dr. Tarakeshwar Prasad Shah (1998) 8 SCC 624; Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. 1999 (1) SCC 37; Ex. Captain Harish Uppal vs. Union of India (2003) 2 SCC 45; Common Cause-a Registered Society vs. Union of India and others (2006) 9 SCC 304 and Common Cause Registered Society vs. Union of India and others (2006) 9 SCC 295, these principles have been firmly established. The Advocates are not obliged to attend and respond to any such illegal call. In fact the Bar Council of India or State Bar Councils must take notice of such calls given by Bar Associations and take action against the Advocates for misconduct, who take part in such protests either in abstaining from work or causing strikes disturbing the functioning of Courts. It is axiomatic that a disciplinary body itself gives a call for abstaining from work on issues which do not touch or are remotely connected with the independence of judiciary. In such cases the High Court had issued several directions and circulars to the Judicial Officers to ignore such illegal calls of abstaining from work or strike and have directed the Judicial Officers to perform their duties in accordance with the law.

31. The writ petition is allowed. It is declared that Bar Council of Uttar Pradesh has no power or authority to interfere in the elections of the Bar Associations in any manner whatsoever. The order of Shri R.P. Maurya, Vice Chairman, Bar Council of Uttar Pradesh dated 14.10.2011 is set aside. The elections of the Bar Association may be held and concluded in accordance with law."

10. Since, as per the law laid down by this Court in the case of Elders Committee Central Bar Association, Azamgarh (Supra), as aforequoted the respondent no. 1 has no power or authority to interfere in the election of the Bar Association in any manner whatsoever, therefore, the impugned order is totally without authority of law.

11. For all the reasons aforestated, the impugned order dated 15.03.2023 is hereby quashed. The writ petition is allowed to the extent indicated above. 

Order Date :- 11.5.2023

Ankit.