Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record.
2. The petitioners have preferred this writ petition for the following reliefs.
1. "Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.7.2015 passed by the Chairman, Bar Council of U.P. suspending the entire election programme of the Bar Association ;
2. Issue a writ, order or direction in the nature of mandamus commanding respondent nos. 2 and 3 not to interfere in election process of Bar Association and direct the elder committee and office bearers of the Bar Association to initiate and conclude the election of the Bar Association rescheduling its election programme afresh within a very reasonable time to be specified by this Court ;
3. Issue any other writ, order or direction, which this Court may deem fit and proper in the facts and circumstances of the case ; and
4. Award cost of the petition to the petitioners."
3. Brief facts of the case are that petitioner no.1,Janpad Diwani Evam Faujdari Bar Association, Gautam Budh Nagar, U.P. through its Secretary (hereinafter referred to as "the Bar Association") is a registered society under the Societies Registration Act, 1960 (hereinafter referred to as "the Act"), whereas petitioner no.2, Manoj Kumar Bhati is a practicing lawyer in the district Court of Gautam Budh Nagar and a prospective candidate for the office of Secretary in the ensuing election of the Bar Association for the year 2015-16. Bar Council of U.P. constituted under Section 3 of the Advocates Act 1961 (hereinafter referred to as "Advocates Act", has framed model bye laws providing unified provision with regard to procedure of election, specifically stipulating the provisions for forming an Elder Committee of five senior most lawyers, at the relevant time who are actually in regular practice in that Court in every Bar Association of the State for holding of elections where term of the office bearers has expired and appointment of Returning Officer for the purpose of holding elections which are to be held annually.
4. In this backdrop an annual meeting of the Bar Association was held in the month of June,2015, resolving to hold annual elections for the year 2015-16. Consequently, the Elder Committee i.e. respondent no.4 and petitioner no.1 notified the election programme thus:-
|1||Nomination||25.7.2015 and 27.7.2015|
|2||Scrutiny of Nomination||28.7.2015|
|3||Withdrawal of Nomination||29.7.2015|
|4||Voting, Counting and Results||01/08/15|
5. It appears that on the aforesaid complaint of respondent no.5 dated 20.6.2014, the Chairman, Bar Council nominated Sri Arun Kumar Tripathi for making inquiry into the voter list, who passed an order dated 30.6.2015 thus:-
This order was modified by the Chairman of the Bar Council vide order dated 4.7.2015. The operative portion of the modification is reproduced below for ready reference.
Pursuant to the aforesaid orders, Chairman of Bar Council was intimated vide letter dated 15.7.2015 that voter list was in process of finalization.
6. It is averred in para 12 of the writ petition that on 21.7.2012 at about 3:30 p.m., when preparation of voter list was in progress, about seven advocates including respondent no.5 forcibly entered in the Bar Association and tore up the voter list, damaged the computer, other equipments, office materials and took away the Laptop etc. on which election work was being done. As this act of vandalism jeopardized the finalization of voter list, hence the Secretary of the Bar Association lodged FIR of the incident under Sections 392, 147, 427, 504, 506, 432/15 at P.S. Surajpur. A meeting was then held on 22.7.2015 for finalizing the election programme again in which 01.8.2015 was fixed as date for elections. An exparte order dated 24.7.2015 impugned in the writ petition appears to have been passed by respondent no.2 suspending the entire election programme.
In the matter of Janpad Deewani Evam Faujdari, Bar Association Gautam Budh Nagar
Today a complaint has been received in the office of State Bar Council of Uttar Pradesh, in which it is alleged that on the complaint of bungling of voter list one man committee of Shri Arun Kumar Tripathi, Member and Former Chairman of Bar Council of Uttar Pradesh was already constituted by the then Chairman of Bar Council of Uttar Pradesh Sri Abdul Razzaque Khan.
The aforesaid committee given certain direction to the President/ Secretary of Janpad Deewani Evam Faujdari Bar Association Gautam Budh Nagar mainly that after preparing the voter list, the same shall be sent to Bar Council of Uttar Pradesh and after approval the plan of election shall be chalked out. It is also mentioned in the complaint that one Sant Ram Bharti has been nominated as Chairman of Elder Committee, who has already given an affidavit in the form of apology that he will never be the part of Elder Committee in further. It is further alleged in the complaint that bogus list of voters has been prepared in which those advocates, who are practicing at Ghaziabad and Bulandshahar and adjoining Tehsils have also been included.
In such circumstances no option has been left before me except to suspend the programme of election , which has already been chalked out by the office Bearers of the Association as well as by the Elder Committee.
The President/ Secretary as well as Chairman of Elder Committee Shri Sant Ram Bharti, Advocate are directed to postpone the schedule of election as already published and pasted on the notice board. They are further directed to appear before the Bar Council in person on 2nd August 2015, with the voter list, failing which stern action shall be drawn against them under Section 35 of the Advocates Act, 1961. They are also directed to explain as to why they had not complied the directions issued by one man committee of Shri Arun Kumar Tripathi, Member and Former Chairman of Bar Council of Uttar Pradesh.
By virtue of this order a committee of Shri I.M. Khan and Shri Arun Kumar Tripathi, Members and Former Chairman of Bar Council of Uttar Pradesh is hereby constituted to resolve the matter. They are requested to look after and take necessary action against those, who are not complying the orders and directions and get the election of Janpad Deewani Evam Faujdari Bar Association, Gautam Budh Nagar 2015-16 conducted.
The President/ Secretary as well as Chairman of the Elder Committee are hereby further directed to brought each and every step of the election in the knowledge of the committee as constituted above.
Secretary Bar Council of Uttar Pradesh is hereby directed to send the copy of this order to the President/ Secretary as well as to the Chairman Elder Committee of Janpad Deewani Evam Faujdari Bar Association Gautam Budh Nagar through Fax of District and Sessions Judge and District Magistrate, Gautam Budh Nagar for compliance.
Secretary Bar Council of Uttar Pradesh is also directed to submit the report before me about the compliance of order on 3rd August 2015 and if found that the order has not been complied then prepare a paper book and place the same before the House for taking action against the persons concerned under Section 35 of Advocates Act, 1961. Secretary Bar Council of Uttar Pradesh is also directed to send a copy of this order to both the Hon'ble members i.e. Sri I.M. Khan and Sri Arun Kumar Tripathi, Members and Former Chairman, Bar Council of Uttar Pradesh within 24 hours.
(Paresh Mishra) Chairman"
7. Learned counsel for the petitioners in the aforesaid chain of events, submits, that Bar Council of U.P. has no power or authority either to suspend election programme or to interfere in the election of Bar Association, supervise, regulate or monitor, preparation and finalization of voter list and conducting of election under the Advocates Act,1961, or the Bar Council of India Rules and the Bar Council of U.P. Rules. According to him, the Model Bye-laws framed by the Bar Council of U.P. as approved by the Bar Council of India, also do not confer any power or authority upon Bar Council to interfere in the election matter of Bar Associations and if this power is derived from any provision of the model bye-laws even then it cannot curtail the rights of the Advocates to form Bar Association which includes their right to elect its officer bearers. It is argued that Bar Council is supposed to regulate the enrollment, discipline and conducts of the Advocates and to ensure their welfares by implementing welfare schemes to assist any aggrieved member(s) of the association or office bearer(s) to statutory remedy available before the Registrar of Society, Prescribed Authority or also in Civil Courts, for redressal of their grievances, but the Bar Council cannot in any circumstance assume or arrogate upon itself the powers of Registrar or Prescribed Authority under the Act or the competent court before whom validity of voter list and election disputes may be for their determination.
8. He also submits that no opportunity of hearing was afforded to the officer bearers of the Bar Association before passing of the impugned order and the order impugned not only is without jurisdiction but also suffers from errors apparent on face of record and being illegal and arbitrary, is liable to be quashed.
9. Sri Ashutosh Dwivedi,counsel for respondent nos.1 and 2 submits that there is a dispute relating to voter list of Janpad Diwani Evam Faujdari Bar Association, Gautam Budh Nagar. It is alleged that some Advocates in the Bar Association are neither on State Roll of Advocates nor are even law graduates but even then they are practicing in the District Court and have become member of the Bar Association. It is stated that State Bar Council maintains a Roll of Advocates under Section 17 of the Advocates Act 1961, therefore, whether a person listed as voter in Bar Association is its valid member or not,can be decided by the State Bar Council and if there is any dispute relating to Seniority of advocates in Elder Committee then it can be decided by the State Bar Council under Section 21 of the Advocates Act 1961.
10. It is contended that the Bar Council of U.P. has framed model bye laws for Bar Associations of U.P. approved by the Bar Council of India for conducting of free and fair election of District Bar Associations. SCHEDULE II note VI of the Model Bye-Laws provides for participation of member of Bar Associations in its meeting and for holding that the Election Officer, President and Secretary of that Association would be liable to be "tried for any other misconduct" under Section 35 of the Advocates Act 1961 if Election is in violation of its various provisions .
11. It is urged that in the last few months there have been several complaints from different district courts regarding confrontation between different groups or powers centres of advocates, some of whom disturbed the smooth functioning of courts creating a rift between the Bar and Bench. It is stated that all this normally starts with process of Bar Association Election. Bad elements with fake voter list get themselves elected as Office Bearer and that in the present case the Bar Council is not interfering in the election process of any Bar Association. According to letter dated 27.7.2015 State Bar Council intends to facilitate the holding of free and fair election of concerned District Bar Association as its duties and that since functions and activities of the Bar Council are interwoven into the fabric which binds the institution of dispensing justice and for this reason the the Bar Council of U.P. had always tried to harmonize healthy relations between Bench and Bar as it has a vital role to discharge in the administration of justice. It is argued that for the purposes of smooth running of courts, this Court may allow the Bar Council to check the list of voters so that bogus voters who are not in actual practice may be excluded and may not be allowed to create any hindrance in the working of courts.
12. Sri Anoop Trivedi, learned counsel appearing on behalf of respondent no.5 has raised a preliminary objection that it is settled law that a single member of a registered society cannot prefer writ petition in the matter of elections of office bearers of Committee of Management, hence Sri Manoj Kumar Bhati, petitioner no.2, cannot represent petitioner no.1 in his personal capacity as such the present writ petition is not maintainable and is liable to be dismissed. It is then stated that there is neither any averment in the writ petition with regard to any resolution having been passed by "Janpad Diwani Evam Faujdari Bar Association, Gautam Budh Nagar" in favour of Sri Manoj Kumar Bharti to file this writ petition on its behalf nor the Secretary/President competent under the Bye-laws of the Bar Association have filed the writ petition. Sri Manoj Kumar Bhati is neither an office bearer of the Committee of Management of the Janpad Diwani Evam Faujdari Bar Association, Gautam Budh Nagar, nor its primary, hence petition filed by him is not maintainable inasmuch as he happens to be the President of another Bar Association registered in the name of Faujdari Adhivakta Kalyan Sangh, District Court, Surajpur, Gautam Budh Nagar.
13. It is submitted that the impugned order dated 24.7.2015 has already been acted upon and thus has lost its efficacy. It is stated that in compliance of the order dated 24.7.2015 a Committee constituted by the Bar Council of U.P. made preliminary verification of the Voter List conducted by way of tallying the voter list from the enrollment list of Advocates of Gautam Budh Nagar maintained by the Bar Council of Uttar Pradesh. In the said preliminary verification, it was found by two member committee that as many as 200 names had wrongly been included in the voter list. It was also found that against the enrollment of 88 Advocates the names of other persons were recorded in the voter list whereas 112 persons shown in the Voter List were not even found to be enrolled with the Bar Council. On this basis, learned counsel for respondent no.5 contends that order dated 24.7.2015 is, in effect, eradicated, as such the stay order ought not to be interfered with which in fact would revive an illegality. The elections of the Bar Association in question have already been postponed in pursuance of the aforesaid order and now fresh election process need to be initiated.
14. He further submits that for the aforesaid reasons, the petition has become infructuous, in so far as the prayer no.1 is concerned. As regards, prayer no.2 is concerned, though petitioner no.1 through its elected office bearers viz. the President and Secretary have already participated in the proceedings before the Bar Council by submitting a letter dated 15.7.2015 before the Bar Council of Uttar Pradesh, this Court has already directed both the parties vide order dated 30.07.2015 to submit the names of 10 senior most actually practicing members of the Bar Association concerned for the purposes of constituting "Elders Committee'.
15. He has placed reliance upon following case laws.
1. Maharaja Chintamani Saran Nath Shahdeo versus State of Bihar and others, (1999) 8 SCC 16;
2. State of Uttranchal versus Ajit Singh Bhola and another (2004) 6 SCC 800;
3. Phulgen and others versus Vinay Kumar Tiwari, (2013(7) ADJ 78;
4. Gadde Venkateshwara Rao versus Government of Andhra Pradesh and others, AIR,1966,Supreme Court- 828; and ;
5. Judgment of Seven Judges Bench of this Court in Public Interest Litigation (PIL) No. 15895 of 2015 in the case of Zila Adhivakta Sangh, Allahabad.
16. As regards the observations made by the Seven Judges Bench in order dated 8.5.2015 in PIL No. 15895 of 2015, Zila Adhivakta Sangh, Allahabad is concerned, it has been observed thus:
"Purity of the electoral process for the High Court Bar Association must be maintained not only to facilitate the membership of the Bar Association in casting of the votes in annual elections but also for conducting of fair and transparent elections. The High Court Bar Association is a Court annexed Bar Association. Its ordinary and life members are the persons who are on its rolls as Advocates regularly practicing before the High Court"
17. The Court further goes to observe that the High Court Bar Association is not a mere private association of lawyers. The Association and its members, who have a duty to facilitate the administration of justice and have a vital role to discharge in the administration of justice. Membership carries with it a solemn obligation to promote access to justice and an unconditional duty to desist from any act which would impede access to justice to all litigants; that the Court also observed that the close functional relationship of the Bar in the dispensation of justice and the position of the High Court Bar Association as representing the collective strength of Bar make it a body distinct from a mere collection of private persons.
18. After making observations the Seven Judges Bench then categorically held that Elections of Court annexed Bar Association must be free from pollutants and taints; that purity of electoral process in the conduct of election to the Bar Association has a vital element of public interest since it is liable to effect the stability of the institution, administration of justice and were intended to facilitate the holdings of free and fair elections.
19. Lastly it is submitted that the "Janpad Diwani Evam Faujdari Bar Association, Gautam Budh Nagar" is also a Court annexed Bar Association as the Allahabad High Court Bar Association, hence the same analogy as in the judgment rendered by Seven Judges (supra) is to be drawn in respect of the election of such Bar Association in the matter of Allahabad High Court Bar Association. In the instant case, it has been found by the Bar Council that there were a large number of persons in the Voter List who were not even enrolled with the Bar Council and as such the Bar Council of Uttar Pradesh has rightly taken the recourse to the provisions contemplated under model bye laws of the Bar Association which authorizes the Bar Council of Uttar Pradesh to take an action against the office bearers of the Bar association under Section 35 of the Advocates Act, in case it finds violation and malpractices in the election process; that order passed by the Bar Council of State of Uttar Pradesh has been passed under the Statutory Provisions and strictly in consonance with the direction issued in the order dated 08.05.2015 by the Seven Judges Bench of this Court. In the circumstances, the writ petition is misconceived and devoid of any merit, hence the same is liable to be dismissed by this Court with cost throughout.
20. Upon hearing learned counsel for the parties, it would be appropriate at this stage to refer the relevant Sections of the Advocates Act, 1961 and the Bar Council of India Rules. Section 16 of the Advocates Acts referred and relied upon by the counsel for the parties.
21. Section 9 of the Bar Council of India Rules provides for constitution of Disciplinary Committee. Section 15 of the Advocates Act, 1961 provides to make rules for election of members of the Bar Council and Section 35 of the Act provides punishment of advocates for misconduct. The advocates are not on the roll of State Bar Council, hence it has no power or authority over them under this rule. Section 16 of the Advocates Welfare Fund Act provides power to recognize an Advocate Association. Section 6 of the Act provides functions of State Bar Councils and to admit persons as advocates on its roll and hold election of its members. Section 25 relates to the dispute regarding election of office bearers, which reads thus:-
"25. Dispute regarding election of office-bearers.--
(1) 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-bearers of such society, and may pass such orders in respect thereof 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 vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the Society.
Explanation.--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, international 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 to give or 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 authorized 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 election 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 authorized in this behalf by the State Government by notification published in the Official Gazette."
22. The moot point for consideration before this Court is, as to whether the U.P. Bar Council has any power, authority or jurisdiction to interfere in the elections of the society of the Bar Council registered under the Societies Registration Act in the election process. We would like to discuss the case laws cited before us in this regard.
23. The Apex Court in the case of Maharaja Chintamani Saran Nath Shahdeo reported in (1999) 8 SCC 16 has categorically held that any order even if lacking jurisdiction is passed may still be allowed to hold field because setting aside such an order would result in reviving an illegality. In that case, the High Court had declined to interfere in the order alleged to have passed without jurisdiction. The Apex Court has upheld the judgment of the High Court and propounded that order lacking jurisdiction need not be set aside if the result would be the revival of an illegal order.
24. The same principles have again been propounded by the Supreme Court in the case of State of Uttranchal (2004) 6 SCC 800. In that case too, the Apex Court had refused to exercise its discretion to quash an order which though appeared to be illegal, however had effect to revive another illegal order.
25. This principle has also been followed by this Court in the case of Phulgen and Others reported in (2013) (7) ADJ 78 wherein the Court observed that while exercising its jurisdiction it is not provided to undo an illegal order which might had an effect of reviving another illegality.
26. Further, the petitioners, in particular, petitioner no.2, does not have any locus standi to maintain a writ petition, in as much as, he has neither claimed violation of any fundamental right nor enforcement of any legal right.
27. In the case of Gadde Venkateswara Rao (supra) it was held by the Apex Court in paragraph 8 of the judgment that-
"Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental right can also approach the Court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply there under; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right..................................The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified"
28. Recently, Seven Judges Bench of this Court in Public Interest Litigation (PIL) No. 15895 of 2015 has observed that the purity of electoral process of the High Court Bar Association must be maintained and allow entitlement to voters whose subscriptions have not been paid till the month in which the meeting of Annual General Body is fixed, would defeat the salutary purpose underlying the statutory provisions which would encourage an unhealthy practice.
29. In this regard, considering the provisions referred by the learned counsel for the petitioner and learned counsel for respondent no.5 we find that Section 15 of the Act defines members who have been admitted as per Rules and Regulations therefore, the authorities concerned under the Act, are supposed to consider and decide the dispute with regard to membership of Association or its election whereas Section 25 of the Act, disputes regarding the Election of office bearer, if any is also required to be considered and decided by the Prescribed authority on reference made by the Registrar directly, if one fourth of the members of the society, approach for the said purpose. The Bar Council of U.P. is constituted under Section 3 of the Advocates Act 1961. Under Section 6 of the said Act, functions of the State Bar Council have been provided but no where the Bar Council has been conferred of any power or authority to interfere in the Elections of the District Bar Association.
30. The Advocate Welfare Fund Act, 2001 also does not confer any power or authority on Bar Council to consider and decide the Election disputes or interfere in any manner, in the process of Election. Section 16 of the Welfare Fund Act only provides that the Bar Council may recognize/ affiliate any Bar Association.
31. The Bar Association will every year get the list of their members on its roll verified with the roll of Bar Council of India to ensure that a dead person or a person who is not on its roll, may not get his vote. They shall accordingly, send their names to the Registrar appointed under the Societies Registration Act as provided under Section 3 of the Act at least before 3 months from the date of election.
32. At this stage, we would also like to bring on record that after arguments were advanced, learned counsel for respondent no.5 prayed that list of 10 senior most advocates who are actually practicing in the Bar Association, may be sent for the purpose of consideration of 'Elder Committee' for holding of elections, if the High Court so directs.
33. In the aforesaid backdrop, all the facts and circumstances, the case laws as well as the provisions of law cited before us and referred to in the judgment, we are of the considered opinion that the U.P. Bar Council has no role to play in the holding of elections of the Bar Association, a society which is registered under the Societies Registration Act,1860 can hold the elections of the society of the Bar Council and any election disputes with regard to the elections of any Bar Association of whatsoever named it is called, is independent of the control of State Bar Council or Bar Council of India. Model Bye-laws or Model Guidelines will not take away the power of the Registrar or the Prescribed Authority appointed under the Societies Registration Act with regard to conduct of elections and settlement of election disputes. State Bar Council or Bar Council of India cannot step into the shoes of the Prescribed Authority in the colourable exercise of powers under the Advocates Act, 1961 or State Bar Council or the Bar Council of India Rules claiming jurisdiction, power or authority for holding of transparent and fair elections. Holding of annual transparent and fair elections is the duty of office-bearers of the Bar Association, who are required to hold elections within a period of one year and in case of their failure to do so, the same has to be held under the direction of the Registrar appointed under the Societies Registration Act, who may in his wisdom constitute an Elder Committee for this purpose.
34. We, therefore, hold that the impugned order dated 24.7.2015 passed by respondent no.2, the Chairman, Bar Council of U.P. is without jurisdiction, nullity and without authority of law, hence the same is liable to be quashed.
35. The writ petition is accordingly, allowed and the impugned order dated 24.7.2015 is quashed. No order as to costs.