- (1.) R. R. K. Trivedi, J. The aforesaid three writ petitions have been filed challenging the actions/omissions of Bar council of Uttar Pradesh pertaining to the election held for constituting fresh Bar Council and thus, questions of law and fact involved in all the writ petitions are similar and they can be diposed of by a common judgment. The writ petition No. 36101 of 1999 shall be the leading case.
(2.) THE relief claimed in the writ petitions are not identical and so also the pleadings, however, the undisputed facts between the parties are that on the basis of the last election Bar Council of Uttar Pradesh, assumed office on 17-6-1994 and its term of five years was to expire on 16-6-1999. However, as the Bar Council failed to provide for the election of its members before expiry of the term of five years the Bar Council of India by an order extended the term for a period of six months in exercise of power conferred under the proviso to Section 8 of Advocates Act, 1961 (hereinafter referred to as the Act ). During this extended period of term Secretary of Bar Council by the notice dated 8-8-1999 declared the scheme of election. Under this scheme nominations were filed between 15th September, 1999 to 6th October, 1999, Scrutiny of the nomination papers took place between 8th to 10th October, 1999. THE last date for withdrawal of the nomination was 16th October, 1999. THEreafter, election took place between 11th November, 1999 to 19th November, 1999 in different places on different dates as provided in the notice dated 8-8-1999. After the election counting of the votes is in progress. It is to be noted that six months' period for which the term of Bar Council was extended also expired on 17-12- 1999. In the Election 143 Advocate candidates participated including Shri Amrendra Nath Singh (petitioner of writ petition 36101 of 1999), Shri T. P Singh and Shri V. C. Mishra (petitioner and respondent No. 4 respectively of writ petition No. 41905 of 1999 ). Writ Petition No. 36101 of 1999 was filed on 23rd August, 1999 claiming relief that the circular letter dated 11th July, 1999, Annexure IV to the Writ Petition, addressed to the District Judges of all the districts of State of Uttar Pradesh may be quashed, by this letter Secretary of Board Council requested the District Judges to display the list of Advocates sent along with the letter (Annexure IV) who have paid the subscription under Rule 40 of Bar Council of India Rules (hereinafter referred to as the rules) and also to notify that advocates whose names are not shown in the list, have not paid their subscriptions under the aforesaid rules. Letter further stated that Bar Council of Uttar Pradesh has taken decision that such advocates may pay their subscriptions along with late fee up to 31st July, 1999. If the subscription is not paid by 31st July, 1999 they shall be deemed to have been suspended from practice as the advocates. It has been further requested that only these advocates may be allowed to practice, who are legally entitled under the Act and the Rules framed thereunder. 4. Second relief claimed in the writ petition is for writ, order or direction in the nature of mandamus commanding the respective District Judges not to prohibit the advocates from practice whose names are mentioned in State roll, in pursuance of the impugned letter dated 11th July, 1999. Third relief claimed is for a writ, order or direction in the nature of mandamus commanding the respondents namely Bar Council of Uttar Pradesh and the Chairman of Electoral Committee to expedite the preparation of the electoral roll in accordance with Rule 4 of the Rules and other provisions of the Act. 5. Writ Petition No. 38756 of 1999 was filed on 8th September, 1999. The only relief claimed in this petition is to issue a writ, order or direction in the nature of mandamus directing the Secretary, Bar Council of Uttar Pradesh to add the word 'disqualified' against the name of Shri Vinay Chandra Mishra in the final electoral roll prepared, petitioner, Pramod Kumar claims himself to be a practising advocates and enrolled with the Bar Council of Uttar Pradesh. He has further claimed that petitioner and respondent No. 2, Shri V. C. Mishra both are former members of Bar Council of Uttar Pradesh. Both are the products of Lucknow University and their votes in most of the districts are common and if Shri V. C. Mishra is not declared disqualified to contest the election of Bar Council of Uttar Pradesh interest of the petitioner shall be jeopardised. It has been further stated that a notice declaring scheme of election has already been published as notification No. 2 of 1999 on 8-8-1999. It has further been stated that preliminary electoral roll was published on 4-8-1999. The last date for filing objection was 24th August, 1999 and after disposing of the objection final electoral roll was published on 26th August, 1999. However, against the name of Shri V. C. Mishra the word 'disqualified' is not mentioned. It has been further averred that as Shri V. C. Mishra was found guilty of committing criminal contempt of Court, and he was suspended from practice by Supreme Court, he has incurred disqualification on the basis of the judgment reported in AIR 1995 SC 2348 In Re. Vinay Chandra Mishra. It has also been stated that subsequent judgment of the Hon'ble Supreme Court in the case of Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895 does not in any way affect the earlier judgment passed against Shri V. C. Mishra in which he was punished for committing criminal contempt of Court and was also suspended from practice. It has been further stated that Bar Council of Uttar Pradesh has failed to take appropriate action against Shri V. C. Mishra under the provisions of the Act and the Rules framed thereunder for which it was under legal obligation, in view of the subsequent judgment in Supreme Court Bar Association v. Union of India (supra ). It has also been stated that for taking appropriate action against Shri V. C. Mishra resolution No. 49 of 1998 was passed by Bar Council of India on 15/16-5-1998 which was communicated by a letter dated 17th May, 1998 but no action has been taken though it was the part of the agenda for the Meeting of Bar Council held on 22nd August, 1999. 6. Writ petition No. 41905 of 1990 was filed on 29th September, 1999. Several reliefs have been claimed in this petition. They are being reproduced below:- (A) "to issue a writ, order or direction in the nature of mandamus commanding the respondents to notify and invited objection in preparation of Electoral Roll as contemplated under the Rule 4 of Chapter I of the Rules framed by Bar Council of India. (B) to issue a writ, order or direction in other nature of mandamus commanding the respondents to revise the Electoral Roll as per suggestion made by the Roll Committee adhering to the mandate of law contained in Rule 2 of Chapter I of the Rules framed by the Bar Council of India for the purpose. (C) to issue a writ, order or direction in the nature of mandamus commanding the respondents to revise the Electoral Roll as per suggestion made by the Roll committee adhering to the mandate of law contained in Rule 2 of Chapter I of the Rules framed by the Bar Council of India for the purpose. (CC) to issue a writ, order or direction in the nature of mandamus commanding the respondents to delete the name of disqualified Advocates from the Electoral Roll published by the Bar Council of Uttar Pradesh and Bar Council of India including that of Shri V. C. Misra, respondent No. 4. (D) to issue a writ, order or direction in the nature of mandamus commanding the respondents to reschedule the proposed election of the State Bar Council at an early date after adhering to the Rules prescribed by the Bar Council of India with respect to the preparation of Electoral Roll which has a statutory and mandatory force. (E) to issue any such other and further suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case. (F) and to award the cost of the petition in favour of the petitioner. (G) to issue a writ, order or direction to Respondent No. 1 and 3 to delete the name of respondent No. 4 from the list of contestants of Bar Council of Uttar Pradesh election and transfer 2nd and further preference votes polled in his ballot paper in favour of respective candidates. " 7. It has been stated in the writ petition that petitioner is enrolled as advocate in the Bar Council of Uttar Pradesh. He is member of Bar Council of Uttar Pradesh for the last several years and has also been its Chairman. He is representing State of U. P. in Bar Council of India since 30-4-1995. He was elected after Shri V. C. Mishra was ousted in pursuance of the judgment of Hon'ble Supreme Court. Petitioner has further mentioned about the details of the cases filed by or against Shri V. C. Mishra and the orders passed therein. Then it has been stated that on redemption of practice by Shri V. C. Mishra after the expiry of the period of suspension of three years, he claimed resumption of his membership in the State Bar Council and for this purpose he sent a letter to the Chairman, Bar Council of Uttar Pradesh. It has further been stated that in preparation of the electoral roll of Bar Council of Uttar Pradesh illegalities have been committed and if the election is held on the basis of such electoral roll it may result to huge finanical loss to the Bar Council and also to the candidates contesting election for being elected as member. It has further been stated that name of all the advocates including that of Shri V. C. Mishra, are liable to be excluded from the electoral roll. It has been stated that name of Shri V. C. Mishra has been shown at serial No. 135 of the electoral roll in complete disregard of the rules and he is likely to be a candidate in the election, which may ultimately vitiate. It has also been stated that electoral roll has been prepared in violation of Rule 4 as names of large number of advocates have been excluded and names of such advocates who are disqualified have been included. It has also been stated that collusive writ petitions have also been got filed before this Court so that in case objection is raised against him before the Election Officer the plea of matter being subjudice before the Court may remain available to Shri V. C. Mishra. 8. In all the above writ petitions counter and rejoinder affidavits have been exchanged between the parties learned counsel for the parties agreed that the petitions may be decided finally at this stage. We have heard Shri A. D. Giri, Shri L. P. Nathani, Shri Ravi Kiran Jain all Senior Advocates and Subodh Kumar for the petitioners and Shri V. B. Upadhyay, Senior Advocate for State Bar Council and its officers and Dr. R. G. Padia, Senior Advocate and Shri Sunil Ambwani for Shri V. C. Mishra. 9. Preliminary objections have been raised by Shri Sunil Ambwani against the maintainability of the writ petition Nos. 38756 of 1999 and 41905 of 1999, which are as under:- 1. It has been stated that election process started on 4-8-1999 when objections were invited against preliminary electoral roll. Thereafter election took place and conclude on 19th November, 1999 and counting has started from 26th November, 1999. The writ petition is premature and ought to have been filed after declaration of the result. 2. That petitioners have an alternative remedy of challenging the election by filing election petition before the tribunal under Rule 32 of Bar Council of U. P. Election Rules, 1968 and the writ petitions under Article 226 of the Constitution are not legally maintainable as petitioners have an alternative remedy. 3. It has been submitted that as the petitioners are substantially questioning the legality of the election all the contesting candidates ought to have been arrayed as respondents and the writ petition are liable to be dismissed for non-joinder of necessary parties. Lastly, it has been submitted that in the present writ petitions entire stress is to get Shri V. C. Mishra disqualified on the basis of the judgment of Hon'ble Supreme Court dated 10-3-1995, However, Shri V. C. Mishra has filed a review petition and a writ petition for removing the affect of the aforesaid judgment on which notices have been issued and the matter has been referred to constitution Bench, in the circumstances it will not be appropriate for this Court to adjudicate the dispute as the matter is already engaging the attention of the Apex Courts. 10. Shri Ravi Kiran Jain appearing for the petitioner, Shri T. P. Singh, on the other hand, submitted that writ petition was filed on 29-9-1999 and it cannot be termed infructuous merely on the ground that election has taken place. The writ petition has been suitably amended in view of the subsequent developments. Learned counsel has further submitted that the grievance of the petitioner is against the illegalities committed by the State Bar Council in preparing the electoral roll, no relief against the electoral roll already prepared can be granted by the election tribunal in view of the bar contained in sub-rule (8) of Rule 32 of the Election Rules of 1968 and the writ petitions are legally maintainable. Learned counsel also relied on Rule 11 of Bar Council of India Rules which provides that no election shall be called in question for any non-compliance of the provisions of the Act or of any rules made thereunder unless the result of the election in so far as it concerns a returned candidate or candidates have been materially effected. It is submitted that in view of the aforesaid two provisions powers of the election tribunal while hearing an election petition are limited to questions relating to errors in counting and corrupt practices adopted during election. Learned counsel has submitted that questions raised in present writ petitions are very substantial nature and got to the root of the matter which may be considered and adjudicated in the present writ petitions by this Court. For this submission learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in the case of Km. Venkata- chalam v. A. Swamicken, AIR 1999 Supreme Court 1723. Learned counsel has further submitted that merely because notice has been issued on the petitions filed by Shri V. C. Mishra effect of the judgment passed by Hon'ble Supreme Court on 10-3-1995 cannot be taken away as no interim order has been passed in favour of the respondent. Further Shri T. P. Singh, petitioner is not a party to any of the aforesaid cases. 11. We have carefully considered the submissions of the learned counsel for the parties for and against the maintainability of the writ petitions and in our considered opinion, in view of serious and important questions involved, the writ petitions cannot be thrown at this stage as not maintainable especially in view of the limited powers conferred on the election tribunal under sub-Rule (8) of Rule 32 of State Bar Council Rules, 1968 and Rule 11 of Bar Council of India Rules. The impact of the aforesaid two rules is that before the election tribunal the legality of the electoral roll prepared by the State Bar Council cannot be questioned and if illegality is committed in preparing the same a writ petition can be filed before this Court under Article 226 of the Constitution of India. 12. Another related question in this regard is whether it shall be legal and proper for this Court to consider and adjudicate the dispute raised regarding the preparation of electoral roll by the State Bar Council in the present writ petitions in view of the pendency of the review petition and writ petition filed by Shri V. C. Mishra before Hon'ble Court questioning the legality of the judgment dated 10-3-1995. It cannot be disputed that before Hon'ble Supreme Court the matter is pending with regard to Shri V. C. Mishra alone, whereas in present writ petitions inclusion and exclusion of large number of advocates in electoral roll prepared is being questioned. Further the dispute and the controversy between the parties before this Court is altogether different. The legality and correctness of the judgment dated 10-3-1995 of Hon'ble Supreme Court cannot be gone into by this Court in present writ petitions. This Court is only required to consider the impact of the judgment dated 10-3-1995 in the context of the disqualifications provided in Rule 2 of the Rules framed by the Bar Council of India. The legal positions is also well settled that the effect of the judgment passed by the competent Court cannot be taken away merely on filing a review application or on initiation of any other proceedings challenging the legality of the same. The judgment continues to be binding on the parties. It is admitted position that no interim order has been passed by Hon'ble Supreme Court. Thus, in the facts and circumstances of the case, in our opinion, pendency of the petitions filed by Shri V. C. Mishra before Hon'ble Supreme Court cannot be an impediment against this Court in hearing the present writ petitions either under any provision of law or on the ground of propriety. For the reasons hereinbefore stated the preliminary objections raised cannot be accepted and are rejected. 13. On the merits of the writ petitions we have heard learned counsel for the parties of length. On submissions made and on the pleadings contained in the writ petitions, in our opinion, the following questions are involved in the present writ petitions which require determination by this Court: 1. Whether the provisions contained in Rule 4 of the Rules made by Bar Council of India have not been followed by the Bar Council of Uttar Pradesh which has resulted in exclusion of large number of advocates from the electoral roll on the ground of non-payment of subscription under Rule 40 of the Rules and if so its effect on the election already held. 2. Whether Shri V. C. Mishra incurred disqualification under Rules 2 (b) and 2 (e) read with explanation appended thereto in view of the judgment of Hon'ble Supreme court dated 10-3-1995 and his name was wrongly included in the electoral roll. 3. Whether the names of several other adovcates who were suspended from practice by the Bar Council of India and the Bar Council of Uttar Pradesh have also been illegally included in the electoral roll though they were disqualified under the 2 (b) of the Rules. 4. Whether the Bar Council of Uttar Pradesh failed to discharge its legal obligation under the Act and the Rules in preparing the electoral roll.
(3.) WHETHER Bar Council of Uttar Pradesh also failed to carry out the direction of Bar Council of India contained in the resolution No. 49 of 1998 and communicated to it vide letter dated 17-5-1998. Whether the petitioners are not entitled for any relief in the present writ petitions for non- impleadment of necessary parties namely all the contesting candidates.;