Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : The Court Must Allow The Electoral Process To Go First And Then, If Proper, Upset The Elections, If Good Grounds Can Be Given.
JUDGEMENT TITLE : Chandra Narayan Tripathi Alias Chandoo Vs. The Registrar, Socieities, Firms And Chits And Others. On 27/02/2006 By Allahabad High Court
CASE NO : WRIT - C NO. 11393 OF 2006
CORAM : Hon'ble Ajoy Nath Ray,J. , Hon'ble Ajay Kumar Yog,J. , Hon'ble Yatindra Singh,J. , Hon'ble Sushil Harkauli,J. And Hon'ble Tarun Agarwala,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court

Writ Petition No. 11393 Of 2006
Chandra Narayan Tripathi @ Chandoo Tripahti
Vs
The Registrar, Societies, Firms And Chits And Others.



HON'BLE AJOY NATH RAY, CJ
HON'BLE A.K. YOG, J
HON'BLE YATINDRA SINGH, J
HON'BLE SUSHIL HARKAULI, J.
HON'BLE TARUN AGARWALA, J.

This Is A Writ Petition By Mr. Chandra Narayan Tripathi Who Proposes To Contest For The Post Of Secretary In The Impending Elections Of The Bar Association, High Court Allahabad, Due To Be Held On 2.3.2006.
This Matter Was Referred To The Full Bench On Account Of The Importance Of The Issues Involved, Both For The Judiciary And For The Bar. Arguments Have Been Made On This Occasion By Several Learned Advocates, Some Of Whom We Shall Mention Hereafter.
The Last Elections Of The Bar Association Were Held As Far Back As In The Month Of December, 2003 And Thereafter The Elections Have Long Been Overdue. Instead Of The Usual Prescribed Period Of One Year, Nearly Two And A Half Years Have Gone By.
For The Purpose Of These Elections, The General Council Of The Bar Association Met On Or About 30th September, 2005 And They Fixed The 15th Of November Of That Year As The Last Date For Deposit Of Arrears Of Fees By The Members Who Intended To Cast Their Votes In The Election. The Last Date Was Extended From Time To Time; The Last Such Formal Extension Being Decided In The Said General Council On The 22nd Of December, 2005 And The Last Extended Date Was The 6th Of February This Year.
Even Thereafter A Short Informal Extension Was Granted, Because Several Persons Wished To Clear Their Dues And They Had Not Kept To The Deadline Of The 6th Of February. A Last Extension Was Granted Up To The 10th Of February, There Being The Mohammadan Moharram On The 9th.
By A General Body Meeting Of The Bar Association Held On The 14th Of February 2006, The Returning Officers Were Fixed Upon And The Voters' List Was Prepared.
The 20th, 21st And 22nd Of February Were Fixed For Filing Of Nomination Papers And The 23rd Was The Last Date Fixed For Withdrawal Therefrom.
As Such, Some Reasonable Attempts Have Been Made And Some Reasonable Notices Have At Least Been Given For Notification Of The Due Date.
Principally Four Grievances Were Raised Before Us. The First One Of The Problems Raised Was That Under Rule 4 Of The Rules Of The Bar Association Now In Existence, Honorary Members, Non-resident Members And Ordinary Members Are There, And Amongst The Ordinary Members Only Those Advocates Would Be Eligible To Vote Who Are Practising In The High Court.
It Was Said That In The List Of Some 3700 Advocates Drawn Up, At Present, There Are Several Advocates Who Are Not Practising In The High Court, And Therefore, That List Needs To Be Recast; Otherwise The Elections Would Be No Election. We Put A Query, That If There Is A Dispute Whether A Duly Qualified Advocate, Enrolled On The Rolls Of The U.P. Bar Council Is An Advocate Practising In The High Court Or Not, Who Would Decide That Dispute? The Answer Really Is, That Nobody Yet Knows; That There Has Been No Authoritative Pronouncement Yet.
Our Second Query Was, Who Is An Advocate Practising In The High Court Within The Meaning Of The Said Rule 4 Of The Bar Association? There Is No Pronouncement In That Regard Yet Either.
It Is Well Known That Words And Sentences In Rules And Statutes Do Not Always Exactly Mean The Same Thing In Every Place. Thus There Is Need For An Authoritative Pronouncement In This Regard Also.
These Are Important Issues For The Bar Association. If The Voters' List Is To Be Drawn Up In A Relaxed Way, Then And In That Event, The Problem Of Numerous Membership Of The Bar Association Arises. This Puts Great Pressure On The Limited Resources Available. On The Other Hand, If A Strict Construction Is Put, And Some Advocates, Who Perhaps Do Not Have Many Briefs Or Any Briefs Yet, Want To Come To The High Court, To Go On Trying Their Luck Here, Year After Year, They Might Say, That Their Rights Are Being Unfairly Affected By Keeping Them Out Of The Voters' List Simply Because They Do Not Have Clients, Or A Sufficient Number Of Clients.
We Raise These Queries But We Do Not Answer These Questions.
The Second Point Was Raised By Mrs. Sadhana Upadhaya, Who Is A Prospective Presidential Candidate. She Did Not Say That She Was Supporting The Petition Of Mr. Tripathi. Her Point Was That The Association Rules Contain A Specific Mandate That A Learned Advocate Slipping Up On Payment Of His Dues (of Only Rs. 26/- Per Month) For Three Months, Should Have All Facilities Withdrawn From Him Including The Voting Facility. She Submitted That The Rule Has Not Been Followed, And There Are Numerous Members On The Voters' List, Who Should Not Have Been There At All, Because They Have Not Paid Their Dues In Proper Time And Perhaps They Have Not Paid Up Their Dues Even Now. This Raises An Issue Of Going Into The Facts And Details, And We Purposely Do Not Enter Into These Facts Now At This Last Hour. But The Point Is Important And It Has To Be Mentioned.
The Third Issue Is Raised By Mr. V.C. Misra, Who Has Himself Been A High Office Bearer In The Bar Association For Many Times. He Submitted To Us That During His Presidentship Several "unauthorized" Members Came, In But He Could Do Nothing To Prevent Their Entry.
We Neither Hold Him Permanently To His Submission Made Before Us, Nor Can We Do Anything About That Just Now. He Said, However, That It Was A Long Practice At The Bar, That Just Before Elections, A List Of Defaulters Would Be Put Up. This Was Intended To Allow Time For Payment To All Genuine Members Of The High Court Bar Association. The Dues Would Usually Not Be Much And Very Much Within The Means Of Circulating Members, Who Are Practising At The High Court, To Be Cleared There And Then. But This Practice, According To Him, Was Not Followed This Time.
He Also Said That The Rules Are Of 1957 And The Rules Might Have Been Appropriate At That Time, But Those Need To Be Changed Now. If Those Need Any Change Now, The Bar Association And Its Members Are Encouraged To Have That Change In The Manner They Think Best. But On This Petition, At This Late Hour, We Can Make No Pronouncement In This Regard.
Mr. Misra Who Made The Principal Submission For Mr. Tripathi Submitted That Although The List Of Members Now Published Might Have A Strength Of 3000 Plus, Yet 5500 Members, According To Him, Have Been Left Out And They Should Have Been Allowed To Pay Their Due Fees And Come On To The Electoral Rolls. He Said That The Bar Address Directory Contains 8300 Names. We Did Not Check. We Asked Him As To Whether They Or Any Of Them Are Complaining Before Us. Some List Of 30 Or So Members Were Shown To Us By Mr. Misra But Those 30 Members Were Not Individually Before Us. Only One Mr. S.S. Rathore Came Forward In Remarkable Circumstances. We Raised A Query That Mr. Misra, Being A Senior Advocate, How Could He Appear Alone, Or Be Assisted Only By Mr. Tripathi, Who Happened To Be His Client Also, Thereby Filling The Doubtful Dual Capacity Of Junior Advocate Cum Client. To Solve This Problem, If Problem It Was, Mr. S.S. Rathore Gallantly Came Forward And Commenced Assisting Mr. Misra. But His Purpose Being Over, He Thereafter Left This Court. During His Presence He Said That He Would Like To Pay All His Arrears And He Has Not Yet Paid Those Arrears Yet.
So The Point Is, That Out Of The Alleged 5,500 Prospective Payers, We Have Only One Identified Advocate Before Us. In This Case, The Court Has Been Attended From The Morning By About 500 Or 600 Learned Advocates. Nobody Has Brought Himself Forward, Except Mr. S.S. Rathore, In This Regard.
When We Had Finished Dictating Judgment, Mr. Misra Said That There Are Other Advocates Also, Like Mr. Rathore, Who Want To Pay Now. Then, Quite Surprisingly, He Raised His Own Hand, And Some 10/20 Advocates Raised Their Hands In The Courtroom Too. This Is A Poor Way To Support A Last Minute Election Thwarting Petition.
Mr. Singh, Who Is A Member Of Uttar Pradesh Bar Council, Submitted Before Us That The Council Has Framed Certain Model Bye-laws Or Model Code. This Was Framed In February, 2005 And Sent To The Bar Councils All Over The State In September That Year, Requiring, If Necessary, Amendment Of The Bar Association Rules, So As To Bring Those All Over The State Of UP In Conformity With The Bar Council Model Code, Within One Month.
That Fixed Time Of One Month Has Long Gone By. However, By A Later Resolution No. 2727 Dated The 15th Of January, 2006, The Bar Council Has Permitted A Further Period Of Three Months For Compliance. Whether They Are Likely To Extend The Time Even More In Future Or Not, We Do Not Know. Mr. Singh, However, Submitted Before Us That The Bar Council Has Resolved That An Association Which Does Not Bring Its Rules In Conformity With The Model Code Will Lose Its Affiliation To The Uttar Pradesh Bar Council; Such Loss Of Affiliation Will Mean Loss Of Affiliation Benefits. Amongst Those Benefits, He Mentioned Only One, Which Is The Decision Of The Bar Council To Make Available To Practitioners Who Have Put In More Than 25 Years A Sum Of Rs. 1,25,000/- Per Year. Whether That Is A Practicable Resolution Or Not Is Not For Us To Enquire Into. It Is For The Bar To Decide Upon It And Enforce It.
Mr. Singh Said That They Are Facing Problems About The Payment Out, In View Of The Large Number Of Claims Made. It Is Said That A Ten-rupee Stamp Is Called For To Be Affixed By Learned Advocates On Vakalatnamas For The Purpose Of Creating A Fund For This Payment.
More Importantly, In A Division Bench Judgment Of The Lucknow Bench Of This Court Presided Over By The Senior Judge, Hon'ble Jagdish Bhalla, This Court Has Referred To The U.P. Bar Council Model Code. The Order Is An Important One, Although It Is An Interim Order. It Mentions That In Case The Bar Council's Codes Are Not Followed, Not Only Would The Concerned Bar Association Lose Affiliation, But That Each Individual Member Of That Bar Association Participating In The Association's Process In A Manner Contrary To The Model Code Will Render Himself Liable To Action For Misconduct Vis-a-vis The Bar Council, Even Though The Individual Member's Conduct Might Be In Strict Conformity With The Unamended Old Rules Of The Particular Bar Association In Question.
This Sets Up A Situation Of Confrontation; The Enforcement Of The Model Code, At Best, Is Still At A Very Very Rudimentary And Nascent Stage. We Were Told That Some Bar Associations Have Amended Their Rules To Fit In With The Uttar Pradesh Bar Council Model Code. Whether It Will Be Generally Accepted In Future Or Not, Or Whether The Non Acceptance Will Produce The Drastic Result Prescribed By The UP Bar Council, We Do Not Know. It Is Not Possible To Predict. It Is Only Possible Today To Raise Questions But It Is Not Possible To Answer Those Just Now.
Another Point Of The Utmost Importance Remains; It Is Whether The Courts Ought To Deal With The Internal Affairs Of The Bar Association. This Is A Serious Issue And It Should Not Be Confused With The Narrower Issue Of Whether The Bar Association Disputes, In General, Should Be Resolved In Suit Courts, Like Some Disputes Of Clubs And Societies, Or Whether They Are So Public A Body, As To Cause An Invocation Of The Writ Jurisdiction A Proper One. It Is Not An Issue Of Procedure Alone. It Is An Issue Of Maintenance Of Freedom Of The Bar From The Bench, Just As There Must Be Maintenance Of Freedom Of The Bench From The Bar. It Is Only If These Twin Freedoms Are Maintained, That The Important Commodity, Justice, Can Be Had By The Litigant Public In General.
We Are Aware That We Have Raised Numerous Questions And We Have Been Unable To Give Any Solutions Now. Our Attempt To Give Any Solutions Now Would Defeat The Very Object For Which We Have Assembled Today. The Object Was To Decide Whether, On Mr. Tripahi's Petition, Calling For A Recasting Of The Voters' List, We Should Postpone The Impending Elections Of The Second Of March. It Was Said That If The Elections Are Postponed For Some Time, The Heavens Will Not Fall. When Such A Phrase Was Used Once Earlier, Mr. Sankar Das Banerjee, A Very Senior And Now Deceased Learned Advocate Of The Calcutta High Court Had Told The Bench, I Do Not Know, Because I Have Never Been To The Heavens. Our Answer Is That The Heavens Might Not Fall, But To Disturb A Well Fixed Election Date For The Purpose Of Recasting An Electoral Roll Is Almost Unknown, If Known At All, In The Election Laws. The Law Is That Once The Electoral Process Starts, It Is Allowed To Roll On To The End. The Reason Is Simple And Well Known. In Every Election There Will Be People Who Want To Postpone The Elections For This Reason Or The Other. The Court Must Allow The Electoral Process To Go On First And Then, If Proper, Upset The Elections, If Good Grounds Can Be Given. Usually The Results And The Majorities And The Differences Stop A Lot Of Problems Being Raised After The Elections Which Might Appear To Be Very Material And Relevant Questions Before The Elections And Before Counting.
We Make It Clear That Our Order And Observations Are Without Prejudice To Any Of The Rights And Contentions Of The Parties. A Petition Of This Type Either Produces An Interim Order Or It Loses All Survival Value. This Type Of Last Moment Petition Is Not A Proper Course To Adopt For Actual Finalization And Determination Of Questions, Doubts And Rights. If A Petition For These Purposes Is To Be Filed, Then It Must Be Filed As Soon As The Elections Are Over, And Not At The Last Moment When The Elections Are Due.
Mr. C.L. Pandey, Who Is The Present President Of The Bar Association Informed The Court That In Or About The Third Or Fourth Week Of February, 2006, A Communication Was Received From The Bar Council Of U.P. About The Model Code And The Rules Of The Bar Association Having To Be Amended In Accordance Therewith; The Resolution Taken By The Present Governing Council Has Been That The Matter Would Be Put Up For Consideration Before The New Governing Council Once The Elections Are Over. As Such This Writ Petition Is Disposed Of Without Any Orders And Without Any Final Decisions. Allegations In The Petition Cannot Be Taken To Be Admitted By Anybody, Since We Have Not Given Any Opportunity Of Filing Affidavits.

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