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2012 Supreme(Ori) 303
HIGH COURT OF ORISSA
V. GOPALA GOWDA, C.J. AND B. K. MISRA, JJ.
Brundaban Pradhan and others : Petitioners
Versus
Orissa State Bar Council and others : Opp. Parties
Writ Petition (Civil) No. 16417 of 2012
Decided On : 8th October, 2012.
For Petitioner: M/s. Samir Ku. Mishra, J. Pradhan, P. Prusty, S.K. Roul, D.K. Pradhan and B.K. Nayak
For Opp. Parties : M/s. U.C. Mishra, A. Mishra, D.R. Sandha and A. Bal (for O.P. 3 to 8)
Headnote:1. CONSTITUTION OF INDIA, 1950 - Arts. 226 and 227 - Advocates Act, 1961 - Sec. 6 - Instructions of O.P. No. 1 Orissa State Bar Council in convening general body meeting and conducting election of 'B' Bar Association challenged in writ - Discussing the facts, contention and evidences held, serious infirmities in the so called election of the office bearers, anomalies in the election process - Election of office bearers of 'B' Bar Association for the year 2011-12 is shrouded with suspicious circumstances - Held, nothing wrong in the approach of the O.P. No. 1 as the apex body.
On receipt of allegations about such malpractices the opposite party No. 1 in order to safeguard the rights and privileges of the advocates on its roll within the meaning of Section 6 of the Advocates Act, 1961 after holding the enquiry into the allegations, issued instructions under Annexures-3 and 5 for holding election on the date fixed after convening a general body meeting of the association. (Paras - 3 to 5)
2. ELECTION - Right to vote is indispensable - Right to free and fair elections underlines the importance of the exercise of the right to vote and the requirement that every election should be fair - The concomitant of the right to vote which is the basic postulate of democracy is thus two fold : first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the pooling booth. (Para - 4)
JUDGMENT
B. K. MISRA, J.
The petitioner No.1, who is an Advocate and President of the Banpur Bar Association, along with four others, in this writ petition have questioned the propriety of the instructions issued, by opposite party No. 1, Orissa State Bar Council under Annexures-3 and 5, to follow the Rules and Regulations of Banpur Bar Association in convening general body meeting on or before 5th September, 2012 and for conducting election on or before 13th September, 2012 when some members of the Banpur Bar had complained to opposite party No. 1 regarding the illegalities committed with regard to the election of office bearers of Banpur Bar Association under Annexure-2 series.
2. The grievance of the petitioners is that the direction of the opposite party No.1 to convene the general body meeting on or before 5.9.2012 as well as for conducting election on or before 30.9.2012 amounts to interference in the functioning of the association and is without jurisdiction as the opposite party No.1 has no authority to interfere with the internal affairs of the association because of the simple reason that under the old bye-law, the office bearers are to be selected and not elected.
3. We have heard learned counsel for the petitioners as well as counsel appearing for opposite parties 3 to 8. Perused the resolution book of Banpur Bar Association along with connected materials, which were produced pursuant to our direction in connection with election of office bearers of Banpur Bar Association. It is an admitted fact that Banpur Bar Association is a registered association since 1987 and it has its own bye-law since the 'date of its registration. Article 6 of the bye-law of Banpur Bar Association candidly discloses that the Executive Committee of the Association, namely, President, Vice-President, Secretary, Treasurer, Assistant Secretary and two annually elected members are to be included in the Executive Body of the Association and they shall be elected at the Annual General Body meeting of the Association and shall continue to hold office until the next Annual General Body meeting. This bye-law, which according to the learned counsel for the petitioners, is the old bye-law, never speaks that the Executive Committee of Banpur Bar Association "including the President are to be selected, but not elected. This bye-law has been produced before us by the petitioners, among whom, petitioner No. 1 is claiming to be the President of the Banpur Bar Association. This bye-law still holds full force as the proposed amendments to the bye-law have riot yet been submitted to the competent authority under the Society Registration Act. The resolution book, which has also been produced before us shows that as per the general body meeting, which was held on 6th September, 2000, certain amendments to the bye-law was felt necessary and accordingly, the Association in its resolution No. 10 dated 21.9.2000 proposed the amendments. Under Article No.6 it is again reiterated that the Executive Members shall be elected in the election of the association. Hence, the contention of the learned counsel for the petitioners and the case of the petitioners that under the old bye-law, the President and other office bearers of the Association are selected, but not elected is without any substance and basis and that is enough for this Court not to entertain this writ petition as it tantamount that the petitioners have not approached this Court with clean hands. Besides that we also found serious infirmities in the so-called election of the office bearers, which took place on 30.11.2011 pursuant to the notice issued by petitioner No.1 on 23.11.2011. This notice has been issued for holding election is not supported by any resolution adopted by Banpur Bar Association as the resolution book shows that after 5.10.2002 there is no further entry. We are not interested to deal with that aspect of the matter in this writ petition as we are not called upon to decide that fact. But suf
