R.R.K. Trivedi, J.
1. 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 son the basis of the last election Bar Council of Uttar Pradesh, assumed office on 17-6-1994 and its term offive 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).
3. 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 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 theearlier 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 relief's 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 dateafter 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. l 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 financial 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 excludedand 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.
4. 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 maybe 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. Venkatachalam 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 ofthe 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 reasonshereinbefore 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 nonpayment 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) & 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 advocates 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.
5. 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.
6. 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.
7. To what relief, if any, are petitioners entitled to in the writ petitions.
14. Before entering into the consideration of question No. 1 regarding non-compliance of Rule 4 of the Rules it appears necessary to consider as to whether the grievance raised in writ petition No, 36101 of 1999 has become non-existent and petitioner is not entitled for any relief. As already mentioned above the grievance in this petition was against the letter dated 11th July, 1999, Annexure IV to the writ petition. In para 4 of the counter-affidavit filed by Shri P. N. Tyagi, Secretary, Bar Council of Uttar Pradesh it has been stated that the impugned circular dated llth July, 1999 has been suspended vide telegram dated 1-8-1999 addressed to all the District Judges in the State of U. P., Copy of the telegram has also been filed as Annexure 7-A to the counter-affidavit. The telegram reads as under :--
'District Judge
So many advocates have deposited their money under Rule 40 In the office up to 31st July. The list of those advocates are not possible to said immediately. Kindly stay the implementation of letter dated 11th July sent by this office.
Secretary
Bar Council of Uttar Pradesh
Allahabad.'
15. Along with the supplementary counter-affidavit filed in writ petition No. 41.905 of 1999, resolution No. 511 of 1999 of Bar Council of Uttar Pradesh dated 8-8-1999 has been filed as Annexure III which reads as under :--
^^ckj dkSafly vkQ mRrj izns'k ds vkxkeh fuokZpuds ifjizs{; esa vf[ky Hkkjrh; ckj dkSafly }kjk fufeZr fu;e pSIVj&1 ikVZ AAAds lEcU/k esa jksy lfefr dh xbZ laLrqfr fn- 1&8&1999 dk voyksdu ,oafopkjA fu;eksa ds vUrxZr mu lHkh u;s vf/koDrkvksa ds uke Hkh ernkrk lwph esalfEefyr fd;s tk; ftudk iathdj.k fuokZpu frfFk ls 75 fnu iwoZ fd;k x;k gksA blizdkj ls fnukad 26&8&1999 rd tks vf/koDrk ds :i esa iathr gksaxs mudkuke Hkh ernkrk lwph esa lfEefyr fd;k tk;sxkA
blds vfrfjDr ;g Hkh fu'p; fd;k tkrk gS fd tksvf/koDrk fu;e&40 ds vUrxZr fnukad 26 vxLr 1999 rd vius va'knku dk Hkqxrku djnsrs gSa] os lHkh vf/koDrk ernkrk lwph esa lfEefyr fd;s tk;A**
16. In view of the aforesaid two documents there appears no immediate threat to any of the advocates practising in the district Courts that they will be prohibited from practice. Shri L. P. Naithani, learned counsel for the petitioner, however, vehemently submitted that the impugned order dated 11th July, 1999 was addressed to the District Judges without complying with the provisions contained in Rule 42 contained in Section IV-A of Chapter 2 of the Rules made by Bar Council of India. It has been submitted that no individual notice was served on any of the advocates who failed to deposit the amount contemplated under Rule 40 of the Rules. No committee was constituted to consider the case of defaulting advocates and no order was passed suspending the rights of advocates to practice.
17. Shri V. B. Upadhyay, learned counsel appearing for the State Bar Council, on the other hand, submitted that individual notices were sent to the advocates who failed to deposit the amount in compliance of the provisions of Rule 40, a copy of the letter has been filed as Annexure VIII to the counter-affidavit. In para 8 of the counter-affidavit it has been averred that provisions of Rule 42 of the Bar Council of India Rules have been fully complied with inasmuch as personal notices to the advocates enrolled with Bar Council of Uttar Pradesh have been sent to all the advocates. In para 11 of the counter-affidavit it has been stated that no case has been made out for issuance of writ of mandamus to Bar Council of Uttar Pradesh. In the same paragraph it has also been stated that circular dated 11th July, 1999 has already been withdrawn as stated earlier. However, no where in the counter-affidavit it has been stated that a committee of three members constituted by the State Bar Council considered the cases of defaulting advocates and passed the orders suspending the right to practice. The relevant Rule 42 is being reproduced below :--
'Rule 42.-- If any advocate fails to pay the aforesaid sum within the prescribed time as provided under Rule 40, the Secretary of the State Bar Council shall issue to him a notice to show cause within a month why his right to practice be not suspended. In case the advocate pays the amount together with late fee of Rs. 5/- per month, or a part of a month subject to a maximum of Rs. 30/- within the period specified in notice, the proceedingsshall be dropped. If the advocate does not pay the amount or fails to show sufficient cause, a Committee of three members constituted by the State Bar Council in this behalf may pass an order suspending the right of the advocate to practice.
Provided that the order of suspension shall cease to be in force when the advocate concerned pass the amount along with a late fee of Rs. 50/- and obtain a certificate in this behalf from the State Bar Council.'
18. From perusal of the provisions contained in Rule 42 mentioned above it is apparent that before an advocate is deprived of his right to practice he is entitled to show cause within a month against the action proposed to suspend his right to practice. In case the amount due together with the late fee is paid by him within the period specified in the notice proceedings are to be dropped. However, even if the advocate does not pay the amount or fails to show sufficient cause an order suspending the right if such advocate to practice is required to be passed by a committee of three members constituted by the State Bar Council. In our opinion, as the suspension of right to practice is very serious action and entails civil consequences the requirements contained in Rule 42 are to be strictly complied with before an advocate is deprived of his right to practice. As already mentioned above in the counter-affidavit filed on behalf of Bar Council there is no averment that any such committee contemplated in Rule 42 was constituted by State Bar Council at any stage and it passed orders against the advocates suspending their right to practice. In the circumstances the impugned letter dated 11th July, 1990 could not have been issued. However, as the order has already been stayed/withdrawn as stated in the counter-affidavit, in our opinion, no order is required to be passed at this stage. The interest of the advocates can be protected only by requiring the State Bar Council to strictly comply with the requirements of Rule 42 before depriving any advocate of his right to practice.
19. Default in payment of amount under Rule 40 also entails disqualification under Rule 2(h) of Chapter I of Part III of the Rules, which has been inserted w.e.f. February, 1997. Rule 2 provides that the name of an advocate appearing in the State roll shall not be included in the electoral roll if he has incurred any of the disqualifications provided in Clauses (a) to (i) of Rule 2. As disqualification mentioned In Rule 2 shall be subject of discussion in respect of other questions also for convenient perusal of Rule 2 is being reproduced hereunder :--
Rule 2. The name of an advocate appearing in the State Roll shall not be on the Electoral Roll, on information received or obtained by the State Bar Council concerned on the basis of which it is satisfied that--
(a) his name has at any time been removed;
(b) he has been suspended from practice, provided that his disqualification shall (sic) only for a period of five years from advocate of the period of suspension;
(c) he is an undischarged insolvent;
(d) he has been found guilty of an election offence in regard to an election to the State Counsel by an election tribunal, provided however, that such disqualification shall not operate beyond the election next following after such finding has been made;
(e) he is convicted by a competent Court for an offence involving moral turpitude, provided that his disqualification shall cease to have effect after a period of two years has elapsed since his release;
(f) he is in full-time service or is in such part-time business or other vocation not permitted in the case of practising advocates by the rules either of the State Council concerned or the Council;
(g) he has intimated voluntary suspension of practice and has not given intimation of resumption of practice;
(h) if he has not paid the subscription under Rule 40 Chapter-II, Part VI of the Rules and obtained receipt from the State Bar Council;
(i) he has incurred any disqualification mentioned in the Act or the Rules made thereunder. (This Rule will not apply to the elections for which the processes have already begun and will apply only to future elections to the State Bar Council).
Explanation :
If an advocate who has incurred any disqualification as referred to in Rule 2 and does not furnish details about in as required in the notice under Rule 4 of these Rules within the time specified shall be deemed to have committed an act of other misconduct as referred to in Section 35(1) of the Act.'
2O. Rule 1 of Chapter I provides that every advocate whose name is on the electoral roll of State Council shall be entitled to vote at an election. Rule 3 provides that subject to the provisions of Rule 2 quoted above the name of every advocate entered in the State Roll shall be entered in the electoral roll of State Council. From perusal of Rules 1 and 3, thus, it is clear that every advocate to whose name is mentioned in the State Roll is entitled to be included in the electoral roll prepared by the State Council and is also entitled to vote in election of the State Bar Council, however, this right is subject to the provisions of Rule 2 namely, that he does not suffer from any disqualification mentioned thereunder. Rules 4 to 7 contain provisions regarding preparation of electoral roll of State Bar Council. Rules 4 and 5 are very material hence they are being reproduced below:--
'4(1) In preparing the Electoral Roll, unless the State Bar Council concerned is already maintaining a list of advocates who are entitled to be voters in terms of Rule 2 of these Rules, at least 150 days before the date of election, shall publish notice issued by the Secretary of the State Bar Council concerned in prescribed form in the official Gazette and in two or more local newspapers one English and the other in a local language, as may be decided by the State Bar Council, asking each of the advocates on the Roll of the concerned State Bar Council to intimate the State Bar Council within the time to be specified in the said notice or within such extended time as may be given/ allowed by the State Bar Council for reasons to be recorded, as to whether he has incurred any disqualification mentioned in Rule 2 of these Rules and quote Rule 2 of these Rules in the said Notice.
(2) has been deleted w.e.f. 20th February, 1992.
(3) Before final publication, of the electoral Roll, a State Bar Council may, if satisfied, on an application made by any particular advocate giving sufficient reasons, allow his name to be included in the Electoral Roll in question, and on such inclusion the advocate concerned shall be entitled to take part in the election.
5. The final electoral roll shall be prepared after incorporating such changes as may be necessary including the addition of the names of Advocates enrolled after thepreparation of the preliminary roll and put up on the notice board of the State Council not more than 75 clear days and at less than 60 clear days before the date of election. (Intimation of such publication shall be given within a week after the publication to the Bar Associations aforesaid).'
21. In para 3 of supplementary counter-affidavit filed in writ petition No. 41905 of 1999 by Shri P.N. Tyagi, Secretary, Bar Council of Uttar Pradesh figures in detail have been mentioned in respect of the electoral roll of the years 1993 and 1999. As the subject matter of dispute in the present writ petition is only with regard to electoral roll of 1999 the figures relating to same are being reproduced below:--
'Numberof Advocates enrolled from 26-7-1993 to 26-8-1999
44,366
Less :Dead cases
1.303
Certificatessurrendered
485
Transferredto other States
76
Total
(-) 1.864
Totalnumber of existing Advocates
onelectoral roll as on 26-8-1999.
Totalnumber of Advocates on electoral roll up to 25-7-1993
1,13,734
TotalAdvocate found entitled to be Included in Electoral roll during the period 26-7-1993 to 26-8-1999.
42,502
Total
1.56.236
Numberof Advocates not given voting right in view of nonpayment of subscriptionunder Rule 49
(-) 43,636
Totalnumber of Advocates left in the final Electoral Roll
1,12.600'
22. From the aforesaid figure it is clear that 43,636 advocates of the State of Uttar Pradesh have been deprived of voting right in election Bar Council on account of nonpayment of subscription contemplated under Rule 40. This exclusion of large number of advocates from the electoral roll by the State Bar Council has been seriously challenged before us on behalf of the petitioners. The main submission in this connection on behalf of the petitioners have been made by Shri L. P. Nathani. Learned counsel has submitted that State Bar Council is a public body dealing with public rights and if it failed to comply with the provisions of Rule 4(1) of the Rules contained in Chapter 1 of Part III the entire electoral roll is rendered invalid and the election held on the basis of such electoral roll cannot be sustained. It has been further submitted that Clause (h) of Rule 2 could not be enforced without giving notice as required under Rule 4( 1) of the Rules. Learned counsel has submitted that dates for holding election were already declared by the notice published on 8-8-1999. Whereas Rule 4(1) requires publication of notice in the official gazette and in two or more local newspapers, one English and other in local language at least 150 days before the date of election. Relying on the minutes of Roll Committee dated 31st July, 1999 (Annexure III to the writ petition No. 36101 of 1999) learned counsel has submitted that Roll committee noticed that the last date fixed for deposit of subscription under Rule 40 is 31st July, 1999. After noticing the mandatory provisions of Rule 4(1) committee felt that compliance of the provision of Rule 4(1) may affect the election schedule hence it is necessary to call an emergent meeting of Bar Council of Uttar Pradesh to consider its effect. The Secretary was directed to convene the emergent meeting of Bar Council on 8-8-1999. !t is submitted that nothing towards the compliance of Rule 4(2) was done. Referring to the minutes of Roll Committee dated 12-9-1990 (Part of Annexure IV to writ petition No. 41906 of 1999) it has been submitted that from perusal of resolution it is apparent that the provisions of Rule 4(1) were completely ignored and the electoral roll was illegally prepared excluding large number of advocates. Learned counsel has submitted thaton account of exclusion of large number of advocates mentioned above the election held is bound to be affected materially and it is liable to be set aside. It has been submitted that breach of rules goes to the root of the matter. The violation in the present case is by the public body affecting the right of large number of advocates and in such a situation it is immaterial whether prejudice to individual has been caused or not, as compliance of Rule was obligatory. Learned counsel has placed reliance on the following judgments :--
* Bar Council of Delhi v. Surjeet Singh, AIR 1980 SC 1612
* State Bank of Patiala v. S. K. Sharma, AIR 1996 SC 1669.
* Babu Verghese v. Bar Council of Kerala, AIR 1999 Supreme Court 1281.
23. Learned counsel has submitted that the Court should see that the democratic institution functions in accordance with law. Learned counsel has submitted that the conditions provided in Rule 11 of the Rules for questioning an election cannot be applicable against exercise of powers under Article 226 of the Constitution by this Court. The fact that heavy amount has been incurred in holding' the election and the Bar Council shall suffer financial loss is also not relevant consideration if election has been held on the basis of farce electoral roll prepared in violation of mandatory rules. Learned counsel has submitted that as clause (h) was inserted in Rule 2 in February, 1997 preparation of fresh electoral roll became necessary which could be done only after compliance of the provisions contained in Rule 4(1). The Bar Council could not ignore the strict compliance of Rule 4(1) on the ground that there was already an electoral roll in-existence on which basis election of Bar Council was held in 1994. Learned counsel has submitted that Rule 2 requires an objective determination of disqualification after application of mind. The Bar Council is required to satisfy itself fairly and reasonably before excluding the name of an advocate from electoral roll. It is accountable to advocates. The satisfaction ought to have been arrived at on record in accordance with law before disqualifying this large number of advocates from right to vote. It is submitted that if Rule 2 is read with Rule 4 hearing is required and specific order has to be passed. It has also been submitted thatRule 4(1) ought to have been followed for enforcing explanation to Rule 2 or Rule 42. It is submitted that if decision making process is violative of Rules and principles of natural justice then decision is void and arbitrary and if it affects the public right it is obligatory on Court to protect the public interest. For the aforesaid submissions reliance has been placed on the following cases:--
* Dastane v. Dastane, AIR 1975 SC 1534;
*Shrilekha Vidyarthi v. State of U.P. AIR 1991 SC 537;
* Tata Cellular v. Union of India, (1994) 4 JT 532; and
* S. R. Bommai v. Union of India, AIR 1994 SC 1918.
24. Shri V.B. Upadhyay learned counsel appearing for the State Bar Council, on the other hand, submitted that the language used in Rule 4(1) clearly shows that the provisions contained therein may be applicable only when preparation of the electoral roll is undertaken for the first time. The detailed procedure provided therein is not required to be followed when a list of advocates who are entitled to be voters in terms of Rule 2 of the Rules is already being maintained by the concerned Bar Council. It has been submitted that as Bar Council of Uttar Pradesh is already maintaining a list of advocates who are entitled to be voters. Rule 4(1) could not be applicable in respect of revision of electoral roll from time to time for the purpose of including the names of advocates enrolled after the electoral roll was last finalised or for excluding the names of such advocates who incurred disqualification under Rule 2 of the Rules. It is submitted the such exercise cannot be termed as preparation of the electoral roll for which purpose the detailed procedure has been provided under Rule 4(1). Learned counsel has submitted that the submissions made on behalf of the petitioners are based on misconception of Rule 4(1). It has been further submitted that two distinct and separate procedures have been provided in the rules for initiating action against an advocate who has committed default in the payment of subscription under Rule 40. It is submitted that if such an advocate who has committed default in payment of subscription under Rule 40 is to be deprived of right to practice which is more serious action, procedure provided in Rule 42 has to be followed and ashow cause notice is required to be personally served. Thereafter, an order is required to be passed by a committee of three members. However, default in payment subscription is also a disqualification under Rule 2(h) and name of such advocate can be excluded from the electoral roll, but for this action no notice is required to be served personally. An advocate is a law knowing person and it can be presumed that he is aware of his obligation to pay subscription under Rule 40. Learned counsel has submitted that though no notice is required for the second action mentioned above, notices were given through the President and Secretary of concerned Bar Association of every district and learned advocates were required to pay there subscription, copies of the letters addressed to the President and Secretary have been filed as Annexures V & VI. Notice was also published in newspaper Dainik Jagran and Amar Ujala on 30-3-1999. It has been submitted that aforesaid newspapers have wide circulation and are published at least from eight cities. It has been submitted that besides aforesaid notices through the Bar Association and through publication in the newspapers, individual notice was also sent, a copy of which has been filed as Annexure VII, Learned counsel has submitted that all possible efforts, this were made by the Bar Council to apprise the defaulting advocates, of their obligation to pay subscription under Rule 40 of the Rules and they were given sufficient opportunity also. Learned counsel has submitted that the electoral roll already maintained by the Bar Council was revised in accordance with law and the names of defaulting advocates were excluded strictly in accordance with law and hence is not violation of any provision of the Act or the Rules. Learned counsel has submitted that the members of Roll Committee under misconception thought it necessary the provisions of Rule 4(1) are to be complied with and they suggested to convene an emergent meeting of State Bar Council, A meeting of State Bar Council was convened on 8-8-1999. In this meeting the view expressed by the Roll Committee was considered and the Bar Council did not agree with the same. The general body after the deliberations resolved that the names of such advocates who have not complied with Rule 40 by 26-8-1999 shall not be included in the electoral roll of 1999. Learned counsel has placed reliance on para 9 of the supplementary counter-affidavit filed in writ petition No. 41905 of 1999 and Annexure III filed along with the same. Learned counsel has submitted that Rule 11 of the Rules provides that no election shall be called in question for non-compliance of the provision of the Act or of any Rules made thereunder unless the results of the election in so far as it concerns a returned candidates or candidates have been materially affected Learned counsel has submitted that exercise at this stage shall be only academic as the fact whether the election has been materially affected or not can be ascertained only after the result is declared. Learned counsel has also submitted that under the garb of challenging the preparation of electoral roll the petitioners are, in fact, questioning election. It is submitted that writ petitions are premature. Learned counsel has also submitted that none of the advocates who has been excluded from the electoral roll has come forward to challenge the action of the State Bar Council and the petitioners cannot be permitted to challenge the action of State Bar Council affecting individual rights of its members who have committed default in payment of subscription under Rule 40 even after full knowledge of their position under the Rules: Learned counsel has submitted that petitioners are not entitled for any relief against the State Bar Council or its officers.
25. We have thoroughly considered the rival submissions of the learned counsel for the parties and have also gone through the cases relied on. It is very sad to see that almost 1/4 of the total number of advocates enrolled (i.e. 32,636 advocates) by the State Bar Council have been excluded from the electoral roll for non-payment of their subscription as required under Rule 40 of the Rules. Non-participation of large number of advocates in election process, it can be assumed, must have materially affected the election, Hon'ble Supreme Court in the case of Bar Council of Delhi v. Surjeet Singh, (AIR 1980 SC 1612) (supra) did not approve the exclusion of 2000 advocates from voting right on the basis of the Rule framed by the State Bar Council for which it had no authority, Court also observed that in such a case it is not necessary to relegate the petitioner to alternative remedy and the question can be gone into in the writ petition. Here the number is much more than involved in the above case. However, the exclusion of large number of advocates from electoral roll by itself cannot be a basis for interference by this Court under Article 226, unless it is established that the exclusion was in violation of any rule made by the Bar Council of India, Rules relating to preparation and revision of electoral roll from time to time are contained in Chapter I of Part III of the Rules. These rules have been made under Sections 3(4), 10-D, 15(2)(a) and 49(1)(a) and (ab) of the Act. Sections 3(4) and 49(1)(a) of the Act are relevant for present discussion. They are being reproduced below :--
'3(1) xxxxxxxxxxxxxxxx
(2) and (3) xxxxxxxxxxx
(4) An advocate shall be disqualified from voting at an election under Sub-section (2) or for being chosen as, and for being, a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.'
'49. (1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particulars, such rules may prescribe--
(a) the conditions subject to which an advocate may be entitled to vote an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by the State Bar Council; xxxxxxxxx'
26. From perusal of both the aforesaid provisions it is clear that preparation of electoral roll and its revision from time to time have been separately contemplated under the Act. Rules 4(1) which has already been quoted above opens with the words 'in preparing the electoral roll', which clearly shows that the provisions contained therein provide procedure relating to preparation of the electoral roll for the first occasion and for this reason it has been further stated that 'unless the State Bar Council concerned is already maintaining a list of advocates who are entitled to be voters in terms of Rule 2 of these Rules'. From a careful reading of Rule 4(1) it is apparent that the procedure provided therein is for preparation of the electoral roll for the first time and that procedure will not be required to be followed at subsequent stages of revision of the electoral rollfor incorporating the changes which occur from time to time by, inclusion and exclusion, of the names of advocate. The submission made on behalf of the petitioners was that Rule 4(1) ought to have been applied after Clause (h) was included in' 1997 in Rule 2 by amendment. However, from a plain reading of the provisions contained in the Act and the language used in Rule 4(1) we do not find any justification to accept this submission merely because Clause (h) providing disqualification under Rule 2 was added by amendment. It was not necessary for the State Bar Counil to resort to preparation of the fresh electoral roll after following the procedure provided in Rule 4(1). Following an amendment in Rules such exercise on the part of State Bar Council has not been provided either expressly nor is it possible on perusal of Rules 2 and 4 that such an exercise was implied. Rule 40 of the Rules requires that every advocate borne on the Roll of the State Bar Council shall pay to the State Bar Council a sum of Rule 90 every three years commencing from 1st April, 1993 along with the statement of particulars as given in the form set out at the end of these Rules. The first payment was to be made on or before 1st April, 1993 or within such extended time as notified by the Bar Council of India or the concerned State Bar Council, Thus, it was mandatory for every advocate to deposit the amount contemplated under Rule 40 within the time provided. If the amount is not paid they are bound to suffer the penalty provided under the Rules. Rule no where requires that for this default, before their names are excluded from the electoral roll, they should be given a notice. The advocates are law knowing persons and they cannot plead ignorance of the Rules which govern their profession. Learned counsel for the Bar Council placed before us three notices (filed as Annexures 5, 6 & 7 to the counter-affidavit in writ petition No. 36101 of 1999) which are dated 24th September, 1998, 12th October, 1998 and 30th March, 1999. Though these notices were given through respective Bar Associations and were in context of Rule 42 but nonetheless advocates were reminded of their obligation to pay subscription under Rule 40. Similarly notice was given by publication in the newspapers and also by personal service. On 4-8-1999 a letter was addressed to the President/Secretary of every Bar Assocation together with a copy of the electoral roll of thatDistrict. By this letter it was required that the list of advocates shall be displayed on the notice board of the association and if the name of any advocate has been wrongly excluded or if he suffers from any disqualification he should immediately intimate to the State Bar Council by 24th August, 1999, a copy of the letter has been filed as Annexure IV. In our opinion, the aforesaid material is sufficient to indicate that advocates who had committed default in depositing the subscription under Rule 40 were given sufficient notice and if they failed to avail of the opportunity the State Bar Council was left with no option but to exclude their names from the electoral roll.
27. Much has been argued that under Rule 2 satisfaction ought to have been recorded by the State Bar Council before excluding the name of an advocate from the electoral roll. It is undisputed that State Bar Council under Section 10(3) of the Act constituted a committee of seven members by resolution dated 2-2-1999 to look after the revision of the electoral roll which was known as 'Roll Committee'. This committee held several meetings and ultimately finalised the electoral roll. We can assume that the record must have been examined to ascertain who of the advocates mentioned in the State Roll have failed to pay their subscription under Rule 40 and when it felt satisfied the names of defaulting advocates were excluded. We do not find any defect in the process adopted in revising the electoral roll for the election of 1999. Learned counsel for State Bar Council produced before us Vol. 3 of Electoral Roll, 1993 (which was in thirteen volumes), and Volume 7 of Electoral Roll, 1999 (mentioned as advocates voter list 1999 amended up to 26-8-1999). Electoral Roll of 1999 is in seven volumes. From perusal of both the aforesaid electoral rolls it is clear that State Bar Council was already maintaining a list of voters.
28. At this stage it would also be relevant to mention that on behalf of the petitioners no material has been filed to establish that advocates voter list of 1999 has been incorrectly prepared. The challenge was solely based on non-compliance of Rule 4(1) of the Rules. From the discussion made above it is clear that Rule 4(1) was not required to be applied in finalising the voter list of 1999 which was nothing but the revision of list of voters already in existence. We have also perused the judgments relied o by the learned counsel for the petitioners, There can be no dispute about the principles laid down in the judgments. However, as, petitioners failed to establish any illegality in finalising the voter list we do not find any legal ground calling for our interference under Art. 226 of the Constitution of India. On the basis of the discussion made above our conclusion is that the electoral roll of 1999 has been rightly prepared and it does not suffer from any legal infirmity.
29. The next challenge against the electoral roll of 1999 is that the names of several advocates who were suspended from practice by the Bar Council of India and the State Bar Council have been illegally included in the electoral roll though they were disqualified under Rule 2(b) of the Rules. Learned counsel for the petitioners has placed before us the letter of Bar Council of India dated 10-9-1999 addressed to Shri T.P. Singh, petitioner as member Bar Council of India. Along with this letter a statement showing the names of advocates from the roll of Bar Council of Uttar Pradesh, suspended under Section 35(3) of the Act from 1994 till date was also sent. In the statement names of 21 advocates have been mentioned. It was also submitted that the advocates mentioned in the list have been illegally included in the list. Counter-affidavit has been filed on behalf of the State Bar Council in which it has been categorically stated that all the advocates who were punished and suspended from practice either by the State Bar Council or by the Bar Council of India have been excluded and their names do not find place in the electoral roll. The petitioners have not filed any material before us that the names of advocates mentioned in the statement furnished by the Bar Council of India have been included in the electoral roll. It would not have been difficult for the petitioners to file the extract of the electoral roll to establish the fact that the names of such advocates have been illegally included. In the facts and circumstances of the case we have no reason to discard the averment made in the counter-affidavit filed on behalf of the State Bar Council, Question No. 3 is answered accordingly.
30. Question Nos. 2, 4 and 5 relate to inclusion of name of respondent Shri V.C. Mishra in Electoral Roll on action of Bar Council of Uttar Pradesh, in doing so whichcan be considered together. On behalf of the petitioners it has been submitted 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 incurred disqualification on the basis of the judgment dated 10-3-1995 (reported in AIR 1995 SC 2348 In Re : Vinay Chandra Mishra). It is submitted that in view of his suspension from practice for a period of three years by the judgment dated 10-3-1995 he became disqualified for a period of five years from the date of expiry of the period of suspension and his name could not included in the electoral roll. It is submitted that as period of three years of suspension ended on 9-3-1998, the period of five years of disqualification shall continue up to 9-3-2003 and the name of Shri V.C. Mishra could not be included in the electoral roll.
31. Second submission is that as Shri V.C. Mishra was found guilty of the offence of criminal contempt of Court and was sentenced to undergo simple imprisonment of six weeks, he also became disqualified under Clause (e) of Rule 2 as offence of criminal contempt of Court involves moral turpitude. It is submitted that as Hon'ble Supreme Court suspended the sentence of six weeks for a period of four years and it could be activated in case Shri V.C. Mishra was convicted for any other offence of contempt of Court within the said period, the period of two years of disqualification provided under Clause (e) of Rule 2 shall start operating after the period of expiry of the period of four years during which the sentence could be activated . It is submitted that the period of four years expired on 9-3-1999 and period of two years disqualification shall continue up to 10-3-2001 and on account of this disqualification also his name could not be included in the electoral roll.
32. It has also been submitted that as respondent-Shri V.C. Mishra had incurred disqualification mentioned above and he failed to furnish defails about it he shall be deemed to have committed a misconduct under Section 35(1) of the Act and for this reason also his name should not have been included in the electoral roll. In this connection it has also been submitted that subsequent judgment of Hon'ble Supreme Court delivered on 17-4- 1998(reported in AIR 1998 SC 1895) has not affected the earlier judgment of Hon'ble Supreme Court passedagainst Shri V.C. Mishra and he continues to be disqualified and his name could not be included in the electoral roll. It has also been submitted that State Bar Council has illegally failed to give effect to the judgment dated 10-3-1995 passed by Hon'ble Supreme Court and has also failed to carry out the specific direction given by the Bar Council of India in its letter dated 17-5-1998. On behalf of the petitioners leading submissions have been made by Shri Ravi Kiran Jain and Shri A. D. Giri.
33. Shri Sunil Ambwani, learned counsel appearing for Shri V.C. Mishra has submitted that electoral roll was finalised on 26-8-1999 and no objection was raised before the State Bar Council. The scheme of election was notified by the Secretary on 8-8-1999 under which the nominations were scrutinised between 8-10-1999 to 10-10-1999 i.e. for three days but no objection was raised before the Returning Officer under Rule 8 of the Rule. Learned counsel has submitted that the elections have already been held and counting is in progress. It has been submitted that Rule 11 prohibits questioning of election for any non-compliance of the provisions of the Act or of any Rules made thereunder unless the result of the election has been materially affected. It has been submitted that petition is premature and deserves to be rejected. Coming to disqualification it has been submitted that Rule 2(b) has to be read in the context of the provisions contained in the Act. An advocate can be suspended from practice under Clause (c) of Sub-section (3) of Section 35 of the Act, in disciplinary proceedings initiated before State Bar Council. The word 'suspension' used in Clause (b) of Rule 2 is in the context of Clause (c) mentioned above. Thus, the disqualification can be only on the basis of suspension in pursuance of an order passed under Section 35 of the Act. No such order has been passed against Shri V.C. Mishra. Though Hon'ble Supreme Court suspended Shri V.C. Mishra from practising for a period of three years by the order dated 10-3-1995, the legal basis under which the order of suspension from practice was passed has been reversed by a Constitution Bench of Hon'ble Supreme Court on 17-4-1998. 'It has been specifically held that while punishing an advocate in contempt proceedings, he cannot be suspended from practice. In view of this subsequent judgment there is no question of any disqualification of Shri V.C. Mishra.
34. Regarding disqualification under Clause (e) of Rule 2 learned counsel has submitted that though Shri V.C. Mishra was sentenced for a period of six weeks the sentence was suspended for a period of four years with the condition that it may be activated if he is found guilty of committing contempt of this Court during this period. Learned counsel has submitted that thus, Shri V.C. Mishra was released same day i.e. 10-3-1995 and the period of two years disqualification ended on 9-3-1997.
35. In this connection it has also been submitted that if it is taken that order of sentence of six weeks against Shri V.C. Mishra was passed by Hon'ble Supreme Court under the provisions of the Act then also as he was released for maintaining good conduct during the period of four years and was put under surveillance the provision of Section 24-A of the Act shall apply and it cannot be said that he suffers from any disqualification in view of the provisions contained in Section 12 of the Probation of Offenders Act. 1958. Learned counsel has also submitted that offence for which Shri V.C. Mishra was sentenced does not involve moral turpitude. The punishment awarded was in exercise of special and extraordinary power of the Court of record to punish for contempt of Court which cannot be equated with the offence committed under the general law of land and punished for the same under the provisions of Indian Penal Code, Criminal Procedure Code and other statute. It was a matter between the Court and an officer of the Court and society in general could not be affected in any manner. Object was to maintain peaceful proceedings, dignity and decorum of the Court.
36. Lastly, it has been submitted that explanation appended to Rule 2 could not be attracted in any manner as there could be no legal and valid basis for Shri V.C. Mishra to, assume himself disqualified under Clauses (a) and (e) of Rule 2. The State Bar Council has not passed any order after being satisfied that Shri V.C. Mishra was disqualified and his name could not be included in the electoral roll. The explanation thus, has no application at all.
37. Learned counsel of both sides have relied on several authorities of this Court and Hon'ble Supreme Court which shall be referred at the relevant places, if necessary.
38. We have carefully considered the submissions of the learned counsel for the parties. In our opinion, it shall be convenient to discuss each of the disqualifications under Rule 2 of the Rules separately.
(a) Disqualification under Rule 2(b) of the Rules.-- Genesis of this disqualification against Shri V.C. Mishra is from the judgment dated 10-3-1995 passed by Hon'ble Supreme Court under which Shri V.C. Mishra (AIR 1995 SC 2348) was punished for committing criminal contempt of Court. Paragraph 21 of the judgment which provided the punishment in sub-paragraphs (a) and (b) is being reproduced below :--
'21. The facts and circumstances of the present once justify our invoking the power under Article 129 read with Article 142 of the Constitution to award to the contemner a suspended sentence of imprisonment together with suspension of his practice as an advocate in the manner directed herein. We accordingly sentence the contemner for his conviction for the offence of criminal contempt as under :--
(a) The contemner Vinay Chandra Mishra is hereby sentenced to undergo simple imprisonment for period of six weeks. However, in the circumstances of the case, the sentence will remain suspended for a period of four years and may be activated in case the contemner is convicted for any other offence of contempt of Court within the said period; and.
(b) The contemner shall stand suspended from practising as an advocate for a period of three years from today with the consequence that all elective and nominated offices/posts at present held by him in his capacity as an advocate, shall stand vacated by him forthwith.
The contempt petition disposed of in the, above terms.'
39. The submission is that as respondent was suspended from practice as an advocate for a period of three years he incurred disqualification provided under Rule 2(b) and the disqualification shall commence from the date of expiry of the period of suspension and shall be for a period of five years. On the other hand, it is submitted that a Constitution Bench of Hon'ble Supreme Court in subsequent judgment dated 17-4-1998 held that Supreme Court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemner for committing contempt of Court, also impose a punishment of suspending his licence to practice, where the contemner happens to be an advocate. It has also been held that such a punishment cannot be even imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with the case of contempt of Court, The Supreme Court further held that to that extent the law laid down in re. Vinay Chandra Mishra's case is not a good law and has been overruled. It is submitted that in view Of this 'subsequent view expressed by Hon'ble Supreme Court the very basis of the earlier judgment of Hon'ble Supreme Court by which Shri V.C. Mishra was suspended from practice as an advocate has been taken away and he cannot be held to be disqualified under Rule 2(b) of the Rules. In view of the submissions made above the intricate question to be determined by this Court is as to whether Shri V.C. Mishra can be held to be disqualified under Rule 2(b) on the basis of the earlier judgment dated 10-3-1995 by which he was suspended from practice for three years. It is undisputed fact that on the basis of the judgment dated 10-3-1995 Shri V.C. Mishra (AIR 1995 SC 2348) remained suspended from practice for three years i.e. up to 9-3-1998. Hon'ble Supreme Court suspended him from practice as an advocate taking the view that, Court could punish him for professional misconduct with the help of Article 142 of the Constitution together with the punishment for committing offence of criminal contempt of Court under Article 129. This view has been overruled by the Constitution Bench and it has been held that the punishment for professional misconduct could not be awarded with the help of Article 142. When the Court interprets a legal or constitutional provision it is declaratory in nature and explains the legal position of that provision from the day it stands on the statute book or the constitution. Rule 2 requires that the name of an Advocate appearing in the State roll shall not been the electoral roll if on information received or obtained by the State Bar Council concerned on the basis of which it is satisfied that he suffers from any of the disqualification mentioned in Clauses (a) to (i) of Rule 2. It is clear from the above Rule that question of disqualification shall be determined at the time of preparation or revision of the electoral roll. In the present case revision of the learned roll commenced longafter the judgment of Hon'ble Supreme Court dated 17-4-1998, thus, the satisfaction regarding disqualification under Rule 2 could be arrived at by the State Bar Council on the basis of the facts and legal position prevailing at that time. The State Bar Council is expected to satisfy itself on the basis of the information received or obtained by it. The element of discretion cannot be ruled out while arriving at the satisfaction in set of facts of a given case. The allegation against State Bar Council is that it failed to discharge its obligation under Rule 2 and illegally included the name of Shri V.C. Mishra in the electoral roll. It appears that the State Bar Council did not think it proper to exclude the name of Shri V.C. Mishra from the electoral roll after the subsequent judgment of Hon'ble Supreme Court. The submissions of the learned counsel for the petitioners were as if under Rule 2(b) the judgment of Hon'ble Supreme Court dated 10-3-1995 was to be implemented as of execution. With great respect and with all humility at our command we are of the opinion that the earlier judgment of Hon'ble Supreme Court could not be read in isolation as it is subject to the subsequent judgment dated 17-4-1998 so far as the legal position is concerned. It is true that Shri V.C. Mishra was suspended from practice but in view of the judgment dated 17-4-1998 it is difficult to accept that after 17-4-1998 the suspension from practice was to be deemed covered under Section 35 of the Act. For this purpose para 77 of the subsequent judgment is very relevant which is reproduced below :--
'77. An Advocate who is found guilty of contempt of Court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of the each case. The learned Solicitor General informed us that there have been cases where the Bar Council of India taking note of the contumacious and objectionable conduct of an Advocate, had initiated disciplinary proceedings against him and even punished him for 'professional misconduct,' on the basis of his having been found guilty of committing contempt of Court. We do not entertain any doubt that the Bar Council of the State or Bar Council of India, as the case may be,when appraised of the established contumacious conduct of an Advocate by the High Court or by this Court, would rise to the occasion, and take appropriate action against such an Advocate. Under Article 144 of the Constitution 'all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.' The Bar Council which performs a public duty and is charged with the obligation to protect the dignity of the profession and maintain professional standards and etiquette is also obliged to act 'in aid of the Supreme Court.' it must, whenever, facts warrant rise to the occasion and discharge its duties uninfluenced by the position of the contemner Advocate. It must act in accordance with the prescribed procedure, whenever its attention is drawn by this Court to the contumacious and unbecoming conduct of an Advocate which has the tendency to interfere with due administration of justice. It is possible for the High Courts also to draw the attention of the Bar Council of the State to a case of professional misconduct of a contemner Advocate to enable the State Bar Council to proceed in the manner prescribed by the Act and the Rules framed thereunder. There is no justification to assume that the Bar Councils would not rise to the occasion, as they are equally responsible to uphold the dignity of the Courts and the majesty of law and prevent any interference in the administration of justice. Learned counsel for the parties present before do not dispute and rightly so that whenever Court of record, records its findings about the conduct of an Advocate while finding him guilty of committing contempt of Court and desires or refers the matter to be considered by the concerned Bar Council, appropriate action should be initiated by the concerned Bar Council in accordance with law with a view to maintain the dignity of the Courts and to uphold the majesty of law and professional standards and etiquette.
40. Thus, the legal position which emerges from the aforesaid observation of Hon'ble Supreme Court is that after punishing an advocate for the offence of committing contempt of Court, if it also involved professional misconduct matter should be referred to the State Bar Council or the Bar Council of India for initiating proceedings under Section 35 of the Act. Undisputedly, this has not been done in the case and the Bar Council of India or the State Bar Council did not initiate any proceedings against Shri V. G. Mishraunder Section 35 of the Act. Thus, in our humble opinion, earlier judgment of Hon'ble Supreme Court dated 10-3-1999 can be taken to be final so far as it has already taken effect. But while determining the rights of liabilities under the Act or the Rules, which are different proceedings they must be determined on the basis of the law of land as it stands today (interpreted by Hon'ble Supreme Court in subsequent judgment dated 17-4-1998). It is not possible to hold now that Shri V. C, Mishra shall suffer from , disqualification for a period of five years under Rule 2(b) in view of suspension from practice on the basis of earlier judgment.
41. In A.R. Antulay v. R.S. Nayak, AIR 1988 SC 153, in paragraph 83 it was held as under :--
'83. We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. This Court, in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February, 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16th February, 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these factors are brought to the notice of this court, even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that 'Actus Curiae Neminem Gravabit' an act of the Court shall prejudice no man. This maxim is founded on justice and good sense and affords a safe and certain guide for the administration of the law.'
42. If the facts and circumstances of the present case are judged in the light of the aforesaid observation of Hon'ble Supreme Court in A.R. Antulay's case (AIR 1988 SC1531), in our opinion, the order of suspension from practice passed by Hon'ble Supreme Court against Shri V.C. Mishra cannot be made basis for holding him disqualified under Clause (b) of Rule 2 after declaration of law by a Constitution Bench of the same Court. The question of disqualification under Rule 2(b) has to be considered in the facts and circumstances as they stand today. For the reasons stated above, in our opinion, the name of Shri V.C. Mishra could not be excluded from the electoral roll on the basis of disqualification contemplated under Rule 2(b) of the Rules.
(b) Disqualification under Rule 2(e)-- Disqualification of Shri V.C. Mishra under Rule 2(e) has been claimed by the petitioners on the ground that he was sentenced by Hon'ble Supreme Court to undergo simple imprisonment for a period of six weeks by the judgment dated 10-3-1995. The submission in this regard is that as the sentence was suspended for a period of four years which may come in operation during that period, his release from this sentence of six weeks should be taken after the expiry of the period four years and two years disqualification should be counted from that date which has not yet expired and his name could not be included in the electoral roll. The contention of the respondents, on the other hand. Is that after the sentence of six weeks of simple imprisonment Shri V.C. Mishra was released same day under the condition that he will maintain good conduct and shall not commit contempt of Court. Thus, the period of disqualification of two years under Clause (e) commenced from the date 10-3-1995 and Clause (e) is not now operative. In the alternative it has also been submitted that conviction for committing criminal contempt of Court does not involve moral turpitude and Shri V.C. Mishra could not be taken to be disqualified under Clause (e). Lastly, it has been submitted that as Shri V.C. Mishra was not sent to jail to suffer the sentence awarded but the sentence was suspended for a period of four years with the condition that it may be activated in case he is convicted for any other offence of contempt of Court within the period of four years, he was in fact put under condition to maintain good behaviour for a period of four years. It is submitted that in fact Shri V.C. Mishra was released on probation in view of the provision contained in Sub-section (2) of Section 24-A of the Act and he cannot be termed disqualified.
43. We have considered the submissions of the learned counsel for the parties. Rule 2(e) has already been quoted in this judgment earlier, from perusal of which it is clear that once an advocate is convicted by a competent Court for an offence involving moral turpitude he shall be disqualified and his name shall not be included in the electoral roll. However, this disqualification has been curtailed, which otherwise would have been for whole life, to a period of two years from the date of his release after serving the sentence. In the present case it cannot be disputed that Shri V.C. Mishra has been convicted by a competent Court for an offence but Hon'ble Court instead of sending him to jail to serve out the sentence suspended the sentence and put him under the condition that the sentence awarded may be activated in case he is convicted for any other offence of contempt of Court within the specified period. In other words he was required to maintain good conduct in Courts for a period of four years.
44. In these facts and circumstances no question of imprisonment and release from the same is involved. The later part of Clause (e) of Rule 2 shall not be applicable, as the necessary condition of release is not satisfied. The question is whether Shri V.C. Mishra can be held disqualified on the basis of the conviction alone, awarded by Hon'ble Supreme Court on 10-3-1995. He cannot be held disqualified on the basis of the aforesaid conviction for whole life, as it does not appear to the intention of the law and the Court both. It is settled position of law that when a statute prescribes disqualification the provision should be strictly construed. In our opinion, if the later part of Rule 2(e) cannot be applicable the first part can also not be given effect to as, it shall be contrary to the legislative intent. In our opinion, for giving effect to Clause (e) the conviction must follow the imprisonment of an advocate in Jail and his release after serving sentence. Mere conviction for an offence cannot be made ground of this disqualification. For the view we have taken above we find support from the judgment of Hon'ble Supreme Court in the case of Nisar Ahmad Ibrahim Khan v. Deolabi Cantonment Board, 1987 (Supp) SCC 562. In this case Hon'ble Supreme Court held that mere knowledge of fact that a returned candidate was to pay any arrearsdue to the Cantonment Board will not entail disqualification unless he has failed to pay arrears within 30 days after the notice in this behalf has been served upon him by the Board. In the case before Hon'ble Supreme Court though arrears and knowledge both were proved but the service of 30 days notice was not proved. The Hon'ble Supreme Court in para 13 held as under :--
'13. It hardly requires any argument to demonstrate the fallacy implicit in and underlying this, process of ratiocination which runs in the teeth of the specific statutory mandate. It is no doubt true that the rule of disqualification is based on a statutory principle that a person who has financial obligations to the 'Board' may not be able to discharge his public office objectively and in public interest. But the disqualification itself must be determined in strict compliance with the statute.'
45. There is yet another reason for whichwe feel that the disqualification providedunder Rule 2(e) of the Rules may not be applicable in the present case. Section 24-A of theAct provides for disqualification for enrolment. Under Clause (a) of Section 24(1) no person canbe admitted as an advocate on State roll if he is convicted of an offence involving moralturpitude. Proviso to Section 24-A(1) provides that disqualification for enrolment as aforesaid shall cease to have affect after theperiod of two years has elapsed since hisrelease or dismissal or, as the case may be,removal. Similar conditions have been provided in Rule 2(e) of the Rules. Sub-section (2)of Section 24-A provides that nothing contained inSub-section (1) shall apply to a person whohaving been found guilty is dealt with underthe provisions of the Probation of OffendersAct, 1958.
46. In the present case though Shri V.C. Mishra was found guilty for committing criminal contempt of Court and he was also sentenced for six weeks simple imprisonment but it was not given effect to and he was required to maintain good conduct for a period of four years and in case of breach the suspended sentence of six weeks could be activated. In the circumstances Shri V.C. Mishra in substance was left on probation. For all purposes he may be treated to have been dealt with under the provision of Probation of Offenders Act, 1968 read with Section 24-A(2) and there could not be any disqualification, under Rule 2(e) which is nothingbut reproduction of Section 24-A(1)(a) of the Act.
47. Much has been argued from both side on the question as to whether the conviction for the offence of criminal contempt of Court involves moral turpitude or not. However, we are not required to detain ourselves for long in dealing this question as a Division Bench of this Court in the case of Captain Dushayant Somal v. Governor, Reserve Bank of India, Bombay (2000 (1) ESC 45 (All)) has already held that conviction for contempt of Court involves moral turpitude with which we are in respectful agreement. Relevant paragraph 11 of the judgment of Division Bench is being reproduced below :--
'11. It is true that the litigation between the petitioner and his wife was a matter personal between them. It is true that between the father and the mother, there was a Us to seek the custody of children. It is not for this Court to interpret the situation. If a Court of competent jurisdiction is vested with an authority to adjudicate; and deliver orders, then, it expects that those who are subject to the order or judgment will render themselves subservient to it. The order of the Reserve Bank of India considering the petitioner as a person who has no respect for the law is consequential to the proceedings in Court which judged the petitioner. The Regulations do provide for situation not to suffer staff officers who have render themselves to a conduct against the rule of law. A circumstance which reflects on moral turpitude or a conduct unbecoming a gentleman.'
48. Further, allegations against Shri V.C. Mishra contained in the judgment of Hon'ble Supreme Court dated 10-3-1993 which have been reiterated in the subsequent judgment dated 17-4-1998 do not leave any doubt that the offence for which he was convicted did involve moral turpitude. We art not required to go into afresh in all the facts and circumstances, which ultimately ended in his conviction for the offence of the criminal contempt of Court.
49. The last question in this connection is about effect of explanation appended to Rule 2 of the Rules. In our opinion, the explanation by itself does not provide for any disqualification as enumerated in Rule 2 of the Rules. However, if an advocate who has incurred any disqualification under Rule 2 and does not furnish details about it as required in the notice under Rule 4 of the Rules, he shall be deemed to have committed an act of othermisconduct under Section 35(1) of the Act. Under this explanation for the deemed misconduct at the most proceedings under Section 35 of the Act may be initiated. Thus, the explanation has no relevance so far as disqualification contemplated under Rule 2 is concerned.
50. Coming to Question No. 6, in our opinion, as the contentions of the petitioners questioning election have not been accepted and there is no occasion to set aside the election the non-impleadment of the contesting candidates are not of any consequences and the writ petition do not suffer from any legal defect on this Court and no order is thus, required, Question No. 6 is answered accordingly.
51. For the discussions made above and the reasons recorded we dispose of Civil Misc. Writ Petition No. 36101 of 1999 with the direction that the State Bar Council before depriving any advocate of his right to practice shall strictly comply with the requirements of Rule 42 of the Rules. The impugned letter dated 11th July, 1999 shall not be given effect to and shall be treated as withdrawn as stated in the counter-affidavit.
52. Petitioners of Writ Petition Nos. 38756 of 1999 and 41905 of 1999 are not found entitled for any relief. The writ petitions are accordingly dismissed.
53. There will, however, be no order as to costs.