Allahabad High Court
Satish Chandra Pandey vs Registrar, Firms And Societies And Ors. on 2 May, 2008
Bench: Pradeep Kant, Narayan Shukla
JUDGMENT
Pradeep Kant and Narayan Shukla, JJ.
1. We have dismissed the aforesaid writ petition today, with the following order:
For the reasons to be recorded later, the writ petition is dismissed.
2. We herein setforth the reasons for passing the aforesaid order.
3. This writ petition has been filed by a practising advocate of this Court, who is also a member of Oudh Bar Association, High Court at Lucknow (hereinafter referred to as the Bar Association).
4. The Oudh Bar Association, High Court, Lucknow is a body registered under the Societies Registration Act, 1860 and was established on 19.5.1901 and registered on 24.11.1914. The petitioner, a member of the Bar Association, feels aggrieved by the notification of elections of Committee of Management of the Bar Association issued by the Elders Committee constituted under the provisions of the amended bye-laws of the Bar Association, known as Rules and Constitution of the Oudh Bar Association, High Court, Lucknow, hereinafter referred to as the 'Rules', initially fixing 21.4.08 as the date of elections and later on, by means of a revised election programme, fixing 6.5.08 as the date of elections.
5. Originally in the writ petition, amongst many reliefs, one of the reliefs claimed, was 'that by issuing a writ, order or direction in the nature of mandamus, the opposite party No. 1 be directed under the supervision and the assistance of some Judicial officer be appointed for the purpose by the Hon'ble Court to manage the affairs for ascertaining the correct number of the members of the Oudh Bar Association, holding of Annual General Meeting and the ensuing elections in a given time frame', but later on, by means of amendment, following relief was also claimed:
That by issuing a writ, or order or direction in the nature of mandamus, the opposite party No. 1 be directed to act under the scheme of the Act and it should be directed to decide the membership dispute and the applicability of amended model bye laws since they have not been passed under Rule/bye laws 44 of the Society registered with the Registrar.
6. The opposite party No. 1, in the array of opposite parties, is the Registrar, Firms and Societies, U.P., Lucknow.
7. The two reliefs aforesaid, apparently are irreconcilable, so far the prayer for getting the membership of the Oudh Bar Association determined is concerned, in as much as in the original relief, it has been prayed that the Registrar be directed under the supervision and the assistance of some Judicial officer appointed for the purpose by the High Court, to mange the affairs for ascertaining the correct number of the members of the Bar Association, whereas in the amended added relief, a direction has been prayed for opposite party No. 1, namely, the Registrar, to act under the scheme of the Act and he should be directed to decide the membership dispute, besides the other reliefs claimed in the said clause.
8. Thus, on the one hand, the petitioner claims that the membership dispute should be decided under the supervision of the Judicial officer, to be appointed by the High Court, and on the other hand, he says that the Registrar should do it himself.
9. The main thrust of the petitioner is on the following points:
1. The model bye laws as framed by the U.P. Bar Council could not have been adopted by the Association, otherwise than following the provisions of bye law 44 of the Society, namely, bye laws of the Association;
(i) The Committee of five, constituted under the orders of the Court in its judgement and order dated 19.9.06 passed in Writ Petition No. 4256 (MS) of 2006, could not have adopted the model bye laws.
2. The elections cannot be held without calling for Annual General Meeting of the Association;
3. The Returning Officer appointed by the Elders Committee could not have issued the revised election programme, wherein Annual General Meeting has been indicated to be held on 8.5.08, after counting and declaration of results of election.
4. There is a membership dispute with respect to various persons and even otherwise the legality of the issue of membership and that of the voting rights of the members should have been first decided by the Registrar, which has not been done; and
5. The vires of model bye laws framed by the U.P. Bar Council has been challenged on the ground that by prescription of the constitution of Elders Committee under Rule 7 with respect to High Court which says that 5 designated senior most advocates actively practicing in High Court by virtue of their seniority would constitute the Elders Committee, according to the petitioner, is an infringement on the independence of the Bar as there is neither justification or rationale in excluding the senior most members of the Bar, though they are not designated senior advocates and that by restricting the choice to senior designated advocates, only those advocates can become members of the Elders Committee, who, by virtue of their proximity and closeness to the Court, could be designated as such.
10. The Bar Council of U.P. prepared Model Constitution for the Bar Associations in the State of Uttar Pradesh and all Bar Associations were requested to adopt the Model Bye-laws with necessary modifications, after it had been approved by the Bar Council of India. The Bar Council of India, in its meeting dated 15/16th September 2006 had passed a resolution approving the Model Bye-laws of Uttar Pradesh Bar Council, hence all the Bar Associations in Uttar Pradesh were requested to hold their elections in accordance with the said Bye-laws.
11. The circumstances, under which the Committee of five members was constituted by the Court in Writ Petition No. 4256 (MS) of 2006: Bijay Kumar Singh Parmar and another v. State of U.P. and Ors. alongwith a connected writ petition, are relevant for embarking upon the questions raised in this regard, which are as follows:
12. In short, not similar but somewhat akin to the present dispute, a controversy had arisen in the year 2006, when the Committee of Management failed to get the election held within its period of tenure of one year and in the meantime, renewal of the Society had also expired, then at that stage, the Deputy Registrar, Firms, Societies and Chits, Lucknow Region, Lucknow passed an order dated 27.7.06, in purported exercise of power under Section 25(2) of the Societies Registration Act, 1860, ordering that since the term of Executive Committee had expired, therefore, elections are to be held under Section 25(2) of the Act. It may be noted that in pursuance of the notice dated 14.7.06, the Association held its Annual General Meeting and resolved to appoint Sri Jyotindra Misra as Election Officer for conducting the election for constituting the Executive Committee but before the election could be held, the Registrar intervened. In furtherance of the order dated 27.7.06, the Deputy Registrar also issued the election programme on 22.8.06, which included various stages of election, including issuance of provisional voter list etc. etc. and lastly holding of elections.
13. The action of the Deputy Registrar was challenged in the aforesaid writ petitions.
14. The issue before the learned Single Judge thus, was that whether the Registrar was competent to intervene and hold the election because the term of the earlier Committee of Management had expired in terms of Section 25(2) of the Act. Since the order of the Registrar was the subject matter of adjudication, the writ petition was entertained. The learned Single Judge found that the other Writ Petition bearing number 4302 (MS) of 2006 Subodh Kumar Verma v. Oudh Bar Association, Lucknow and Ors. was not maintainable as admittedly the Oudh Bar Association, being a Society registered under the Societies Registration Act, it was neither a State nor the instrumentality of the State, within the meaning of Article 12 of the Constitution of India and dismissed the same.
15. The learned Single Judge thus, considered the writ petition of Bijay Kumar Singh Parmar, where the action of the Deputy Registrar, Firms, Societies and Chits, was in question.
16. The learned Single Judge considered the effect and impact of the expiry of the term of the Committee of Management and of not holding the elections within the period prescribed and addressed himself on bye-law number 8 (Rule 8 of the aforesaid Rules), which says that members of the elected Executive Body shall continue till the new election is held. Interpreting the aforesaid rule, it was observed that the purpose of Rule is not to extend the tenure of the office bearers without holding an election after a period of one year as appears from its letter and spirit. It is to meet out the special circumstances and emergent situation when the general body could not have elected the new office bearers under some extraordinary situations or compelling circumstances. But it lacks the power to extend the tenure of the executive body.
17. The Court further observed as under:
Moreover, since admittedly, the election of the Committee of Management was held on 15th March, 2005 and if the general body wanted to take any decision, then it should have taken on or before 14th March, 2006 or 17th March, 2006 and not subsequent to a date after expiry of tenure of the Committee of Management. The general body had become functus-officio by not holding the election within the stipulated time. The only option open to the office bearers was to hold fresh election in accordance to Rules of the Society. Any decision by the general body or the office bearers of the society after lapse of period for which the office bearers are elected, shall be nullity in law. Rule 8 of the Rules is meant to meet out the emergent situation or to meet out the extraordinary situation for a reasonable period subject to condition that appropriate initiative should have been taken by the office bearers to hold the election. The power conferred by Rule 8 of the Rules cannot be utilized with ulterior motive or for continuance of office bearers without taking initiative to hold fresh election.
18. After recording the aforesaid findings and finding that the action of the Registrar was not justified or legal, the Court constituted a Committee of five senior members of the Bar Association to conduct the elections in accordance with the bye-laws of the Society. The Court, while taking such an initiative for constitution of Committee of Management of the Bar Association, made the following observations:
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 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 these twin freedom are maintained that the important commodity, Justice can be had by the litigant public in general. As such I am not inclined to relegate the present matter before the Prescribed Authority." (i.e. under Section 25(1) of the Act).
19. The Court, on the suggestion of the members of the Bar as well as counsel for the parties, constituted a Committee comprising S/Sri P.N. Mathur, Vinod Kumar Singh, designated Senior Advocates, Sri S.B. Mathur, Sri D.C. Mukherjee and Sri Shafiq Mirza, Advocates and senior members of the Bar as a Committee of five and also provided that the said Committee will exercise all the powers of the Executive Committee/General Body and will also scrutinize the list of members/voter list of Oudh Bar Association and thereafter will take necessary steps for constitution of the new Committee/Executive of Oudh Bar Association. The said Committee was also empowered to take any assistance from the Deputy Registrar or the Registrar, Firms, Societies and Chits, Lucknow Division, Lucknow for holding election of Oudh Bar Association, if they so desire.
20. In the light of the directions issued in the aforesaid petitions, which constituted the Committee of five, which Committee was made apparently on the same very principle, which was provided in the model bye-laws in bye-law No. 7 but for the fact that in the said Committee of five, there were only two senior designated advocates and three were actively practising advocates in the High Court and were senior members of the Bar Association. Under the supervision and control of the said Committee the elections were held and a new Committee of Management was elected. Till the time of formation of this Committee of five, the model bye-laws framed by the U.P. Bar Council were not adopted by the Association.
21. The plea that the model bye-laws have not been adopted in accordance with bye-law 44 of the Rules of the Bar Association and, therefore, there is no valid adoption of the model bye-laws, is thus, not open for the reason that model bye-laws were adopted by the Committee of five, constituted by the Court on the authority conferred upon it.
22. Rule 44 (bye-law) of the aforesaid Rules of the Bar Association, reads as under:
44. Alterations of rules and bye-laws.
23. The Rules herein contained and all Bye-Laws made under rule 41 shall not be altered or rescinded, nor shall any new rule be made, without the consent of a 2/3rd majority of the members present at an Ordinary or Special General Meeting convened for the purpose."
24. The argument is that unless the rules were amended/model bye-laws were adopted with the consent of a 2/3rd majority of the members present at an ordinary or special general meeting convened for the purpose, there could not be a valid adoption and that it was only General Body which could have adopted the model bye-laws.
25. The argument is not to detain us any further, as the Committee of five, constituted under the Court's order, with the suggestion of the members of the Bar themselves, and the parties' counsel, was given specific power by the Court to exercise all the powers of the Executive Committee/General Body and also to scrutinize the list of members/voter list of the Bar Association and thereafter to take necessary steps for constitution of the new Committee/Executive.
26. Once the General body did not take steps for adoption of model bye-laws and the term of the Committee of Management came to an end, during which period they also did not take any action for holding the elections, the Court conferred all the powers of the Executive Committee/General Body upon the Committee of five. That being so, and there also being a request of the Bar Council of Uttar Pradesh to hold the election as per the model bye-laws, it became imperative for the Committee of five to adopt the model bye-laws, which they did.
27. While amending/adopting the model bye-laws, the Committee of five made a mention that the Hon'ble High Court of Allahabad, Lucknow Bench, by its order dated 19.9.06 appointed a Committee of five members to run the affairs of the Oudh Bar Association, Lucknow and empowered it to exercise all the powers of the Executive Committee as well as that of the General Body. In exercise of the said powers, the Committee has adopted by resolution dated 19.10.06, the Model Bye-Laws and Constitution of the Oudh Bar Association.
28. The information about the rules being adopted and the amended Rules were sent to the Bar Council of Uttar Pradesh and also to the Registrar of Societies, Firms and Chits, Station Road, Vikas Deep Building, Lucknow vide letter dated November 6, 2006, enclosing the Bar Association's Constitution and the order of the High Court dated 19.9.06.
29. No objection was raised nor has been raised by the Registrar or for that matter any other member or even the Committee of Management, which took the charge as a sequel to the elections, conducted by the Committee of five, at any point of time to such an adoption and amendment of the Rules. Therefore, it cannot be said that model bye-laws have not been adopted or that adoption suffers from legal defects, so as to treat the amendment in Rules as invalid. If the Committee of five exercised its power under the authority given by the Court, their action cannot be faulted on any such ground, as has been urged by the petitioner.
30. In regard to the plea that the membership dispute ought to have been considered by the Registrar, again it would be relevant to mention that once the model bye-laws have been adopted and the amended rules of the Bar Association have come into force, the Elders Committee has to be constituted, which is responsible for getting the elections held and constituting the new Committee of Management and for that matter, only the Elders Committee was competent to look into the membership issue, namely, who are the members validly enrolled in the Association and are entitled to exercise their right to vote and who are the persons, who are not validly enrolled members, if any dispute arises with respect to their membership issue.
31. The Elders Committee appears to be a permanent feature as emerges from Rule 7, which says that there shall be an Elders Committee of the Association, consisting of five senior most members of the Association actively practising in that Court. Sub-clause (a) says that as far as the High Court is concerned, five designated senior most advocates actively practising in High Court by virtue of their seniority shall constitute the Elders Committee and Sub-clause (b) says senior most member of the Elders Committee will be the Chairman.
32. Rule 18 of the amended rules, as adopted by the Association, deals with the term of office and says that the office bearers of the Association and members of the Governing Council/Executive Committee shall hold the office till the completion of one year from the date of their election, however, in extraordinary circumstances they may continue for a further period of one month with the prior approval of Elders Committee for the reason to be recorded within which they will get the election completed failing which the administration of the Association will vest in the Elders Committee, who will hold the election at the earliest as per bye-laws preferably within another one month.
33. The aforesaid provisions clearly establish that the Executive Committee has to hold the office only for a period of one year from the date of their election, which in extraordinary circumstances may continue for a further period of one month but only with the prior approval of the Elders Committee for the reason to be recorded, within which period they will get the election conducted, failing which the administration of the Association will vest in the Elders Committee, which again is obliged to hold the election at the earliest as per the bye-laws and preferably within another one month. This means that the Elders Committee would intervene and take charge of the administration of the Association, if the elected Committee fails to get the election conducted within its tenure and though in extraordinary circumstances the Committee may continue even for a further period of one month, if permitted by the Elders Committee, for the reasons to be recorded in writing and with a view that the Association does not remain without an Executive Committee, it has been said that the elections be held at the earliest and preferably within one month but in case for any reason, elections are not held within one month or so, it would not mean that the Elders Committee would have no authority to manage the affairs of the Association after the expiry of one month. However, it is the obligation of the Elders Committee to get the election conducted without any delay, at the earliest, so that the Committee of Management may be constituted.
34. It is thus, only the Elders Committee, which shall also continue to administer the affairs of the Association and would be competent to conduct the elections, after the term of the elected Committee of Management has come to an end and they had failed to hold the elections, within their tenure in given circumstances, within one month thereafter.
35. So far the membership dispute is concerned, that has also to be decided by the Elders Committee, which is also evident by the fact that the Elders Committee has to get the elections conducted and, therefore, they also have the power to scrutinize the membership. The Registrar does not come in the way. Further the administration of the Association having vested in the Elders Committee in terms of Rule 18, all powers and authority which were exercisable by the Committee of Management can be and has to be exercised by the Elders Committee.
36. This Court would not enter into the controversy regarding the membership nor would issue a direction as to who are the valid members and who should be allowed to vote or not to vote, and whether in a dispute of membership, the decision of the Committee of Management or that of the Elders Committee is correct or not.
37. It cannot be lost sight of, that the Association is only a registered Society and no writ petition would lie, against its action including that of the Elders Committee, in regard to the membership determination or the right to vote of members. Other pleas raised by the petitioner or which may be raised for establishing that the elections have not been held in according with the bye-laws, or they suffer from any other defect, can also not be the subject matter of adjudication in writ jurisdiction.
38. Whether any substantial irregularity has been committed in holding the elections or during the elections, which has materially effected the result of the election or which vitiates the elections, are such questions, which normally would not be entertained in writ jurisdiction of this Court.
39. It may be kept in mind that the Bar Association of lawyers cannot be equated with the membership of club or society and intervention by the Registrar has to be minimum, if at all permissible under law and for that purpose, the Elders Committee has been constituted under the bye-laws, which has been vested with the responsibility of managing the affairs and holding the election after the term of the Committee of Management comes to an end. Had the intention of the bye-laws been that on the expiry of the term, the Registrar shall take over and hold the elections, there was no occasion for making such a bye-law, giving an alternative specifically defined Body (Elders Committee) for getting the election held, after the expiry of the term of the elected Committee of Management. Section 25(2) of the Act, which gives power to the Registrar to hold the elections of the Society or the Committee of Management, after the expiry of its term, shall have no applicability in the case of Bar Association, whose elections have to be conducted in accordance with the model bye-laws or under the amended Rules of Association.
40. In view of the findings recorded by the Court in the case of Bijay Kumar Singh Parmar (supra), the decision to call a general body was to be taken by the elected Committee of Management within their tenure and having failed to do so, the Elders Committee has rightly proceeded to hold the election.
41. The validity or invalidity of the elections could otherwise also not be gone into in writ jurisdiction and that too at the stage when the election process is on and scheduled polling is to take place on 6th May, 2008 as any intervention at this stage, would be obstructing the conduct of election, which cannot be permitted. Of course, if anybody feels aggrieved by the election, he has every right to challenge the same in the appropriate forum, may be civil court or any other forum, as may be provided in law, after the elections are over.
42. In regard to the challenge to the vires of model bye-laws, namely, Rule 7, on the ground that it qualifies only senior advocates for being appointed in the Elders Committee, which infringes upon the independence of the Bar, as senior advocates are designated by the Court, suffice it would be to mention that such a plea cannot be entertained even, what to say of being adjudicated upon. There is a procedure for designating an advocate as senior advocate and we are constraint to observe that the plea raised by the petitioner himself, who is a very senior advocate of this Court, appears to have been raised unmindful of the fact that motive cannot be attributed to any such selection/designation that too on such bald, vague and general terms, nor in any manner the conferring of designation of senior advocate to any lawyer means infringement upon the independence of the Bar, rather, the Bar not only enriches itself when one or few of its members are designated as senior advocates, but it also adds prestige to the Bar.
43. In any case, Rule 7 cannot be said to be ultra vires any of the provisions of the Act or rules, nor it can be said that in any way it effects the independence of the Bar, muchless on the ground urged by the petitioner. The petitioner since very categorically stated before us that he does not challenge the model bye-laws on any other ground, we find that the challenge to the vires of the aforesaid model bye-laws on the aforesaid ground is wholly untenable and cannot be entertained.
44. For the aforesaid reasons, we do not find any merit in the writ petition, which is hereby dismissed.