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Allahbad High Court
K.N.SINGH
Ravi Kiran Jain - Appellant
Versus
Bar Council of U.P. - Respondent
Decided On : 01/30/1974
ELECTION - BAR COUNCIL - POSTPONEMENT - POWER OF BAR COUNCIL - ELECTORAL ROLL - REVISION - MALA FIDE - WRIT - QUASHING OF RESOLUTION - MANDAMUS - ISSUE OF DIRECTION - ADVOCATES ACT, 1961 - SECTION 8, 49-A(A), (B) - BAR COUNCIL OF INDIA RULES, RULE 1, 2, 3, 4(A), (B) - BAR COUNCIL OF UTTAR PRADESH ELECTION RULES, 1968 - RULE 4, 5, 6, 7, 31, 32, 33 - GENERAL CLAUSES ACT, 1897 - SECTION 21 - CONSTITUTION OF INDIA, ARTICLE 226.
Fact of the Case:
Petitioner, an advocate, challenged the resolution of the Bar Council of Uttar Pradesh postponing the election of its members and sought a writ of certiorari to quash the resolution and a writ of mandamus to hold the election on the scheduled dates and to refrain from making any amendments to the electoral roll. The Bar Council contended that it had the power to postpone the election and that the electoral roll could be revised to include newly enrolled advocates.
Finding of the Court:
1. The Bar Council had the power to postpone the election and to fix fresh dates for holding the election. 2. The electoral roll could be revised to include newly enrolled advocates. 3. The allegations of mala fide against the members of the Bar Council were not proved.
Issues: 1. Whether the Bar Council had the power to postpone the election and to fix fresh dates for holding the election. 2. Whether the electoral roll could be revised to include newly enrolled advocates. 3. Whether the allegations of mala fide against the members of the Bar Council were proved.
Ratio Decidendi: 1. The power to fix the election programme and necessary dates for filing nomination papers, scrutiny, polling and counting is exclusively vested in the Bar Council under Rule 4 of the Election Rules 1968. 2. Rule 4(b) of the Bar Council of India Rules requires that the final electoral roll be prepared and finalised and placed on the notice board of the State Bar Council not more than 75 and not less than 60 clear days before the date of election. This rule ensures that all those Advocates whose names may have been brought on the State roll of the State Bar Council should be included in the electoral list. 3. The allegations of mala fide are easy to make although very difficult to prove. In the instant case, the petitioner therefore must establish the charge of bad faith, abuse or misuse of power by the members of the Bar Council. The motive or purpose of bad faith or personal ill-will of members of the Bar Council is difficult to be established by direct evidence, i.e. that it must be discernible from the conduct of the respondents.
Final Decision: The petition was dismissed, but there was no order as to costs. The Bar Council gave an undertaking that the elections would be held in April as scheduled.
ORDER :- This is a petition under Article 226 of the Constitution claiming relief for the issue of a writ of certiorari quashing the resolution of the Bar Council of Uttar Pradesh dated 4th November, 1973, and for the issue of a writ of mandamus to the Bar Council of Uttar Pradesh to hold the election of its members on 7th and 8th January, 1974 and to issue direction to the respondents not to make any amendment in the final electoral roll prepared and finalised for the election of the Bar Council of Uttar Pradesh.
2. The term of the elected members of the State Bar Council of Uttar Pradesh expired on 5th April, 1973, but no fresh election was held with the result respondents Nos. 2 to 23 who are its members are continuing in the office. The matter relating to the ejection of members of the Bar Council came up for consideration before the meeting of the Bar Council of Uttar Pradesh cm 22nd of April, 1973. The Bar Council adopted a resolution fixing the election programme. According to the resolution of the Bar Council, electoral roll, was to be finalised by 29th of August, 1973, the nomination papers were to be filed between 17th to 30th September and polling was fixed for the 5th and 6th November, 1973. The election programme was published under the notification dated 29th of August, 1973. Some nomination papers were filed but the election could not be held as on 16th September, 1973, another meeting of the Bar Council was held wherein it decided to postpone the election for a short period and extended the date for filing the nomination papers up to 31st of October, 1973, and date for polling was changed from 5th and 6th November to 7th and 8th January, 1974. The petitioner and 92 other persons filed their nomination papers for contesting the election to the membership of the Bar Council On 4th November, 1973, that is, after the expiry of the last date fixed for filing nomination papers, the Bar Council adopted another resolution postponing the election scheduled for 7th and 8th January, 1974. It was further stated that the next date for election would be fixed later on. On 5th November, 1973, the petitioner filed the instant petition under Article 226 of the Constitution for quashing the resolution of the Bar Council dated 4th November, 1973, and for issue of a direction to the respondents to hold the election on 7th and 8th January, 1973, as scheduled. Subsequently, the, petitioner got the petition amended claiming relief for the issue of a writ of mandamus directing the respondents not to make any amendment in the final electoral roll which had already been published prior to the filing of the nomination papers and to hold the elections within 31st day of the decision of the writ petition in case the petition was not decided before 7th of December, 1973.
3. Initially the petitioner impleaded the Bar Council of Uttar Pradesh through its Secretary and its members as respondents Nos. 1 to 22. Notices of the writ petition were issued to all the respondents as the petitioner had made allegations of mala fide against the members of the Bar Council. He alleged that the term of the elected members of the Bar Council expired on 5th April, 1973, but they were not holding elections deliberately, instead they have been postponing the elections on some pretext or the other, so that they could continue in office. Members of the Bar Council were alleged to have acted mala fide in postponing the elections on extraneous reasons for their own ulterior purpose. Notices were issued to all the members. Appearance was, however, put in by respondent No. 2, Sri Raja Ram Agarwal, the Chairman of the Bar Council, Sri S.K. Misra, Sri Harvind Dayal Srivastava, Sri A.P.S. Chauhan, Sri V.C. Misra, Sri G.C. Dwivedi and N.C. Rajvanshi, respondents Nos. 3, 6, 13, 20, 21 and 22. Sri S.N. Kakkar respondent No. 4, Advocate-General of Uttar Pradesh who is an ex-officio member of the Bar Council appeared before me during the course of the hearing of the
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