# Shiv Kumar Akela and others v. Registrar, Societies Firms & Chits and others

- **Citation:** (2005) 4 ILRA 1225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-26
- **Case number:** Civil Misc. Writ Petition No.55898 of 2004
- **Bench:** A.K. Yog, Tarun Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-kumar-akela-and-others-v-registrar-societies-firms-chits-and-others-40779
- **Pages:** 10

## Headnote

Sri S.M.A.Kazmi, CSC
Sri Ranvijay Singh, SC
Sri S.Prakash,
Sri T.P.Singh,
Sri Sidharth Singh
Sri Amit Sthalekar,
Sri V.B. Upadhaya

Constitution
of
India,
Art.
226maintainability-writ
petition-against
High Court Bar Association Allahabadbeing
registered
under
Societies
Registration Act-member of the society
are the Advocates-an officer of Court-an
indispensable
constituent
of
'justice
delivery
system'-enjoys
privileged
position-references/ condolences-which
are Court proceeding at the request of
Bar Association-bar to ensure proper and
smooth functioning of Courts hence a
public functionary-Writ Petition heldmaintainable.

Held: Para 10,19,23 & 27

Court has provided accommodation to
the High Court Bar Association and
Advocate Association. Court provides
1226 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
various other facilities- with no charges.
Court holds 'References' on the request
of High Court Bar Association- which are
Court proceedings. All this ultimately
concerns the welfare of the 'Public' and
'BAR
is
nothing
but
a
'Public'
'functionary'. It also shows that concept
of 'Bar' Association itself has emerged
from the solemn object to ensure proper
and smooth functioning of the Courts so
that 'justice' may be dispensed with to
the public at large, which is possible only
when
'BAR'
maintains
a
minimum
desired standard both from the point of
view
of
professional
ethics
and
professional proficiency.

Second
objection
regarding
maintainability of the Writ Petition on
this
ground
that
High
Court
Bar
Association
being
registered
under
Societies
Registration
Act
is
not
amenable to writ jurisdiction under
Article 226, Constitution of India, it will
suffice to mention that at this stage writ
petition does lie and is maintainable
against respondent nos.1, 5, 6, 7, 8 & 9.
Curiously,
none
of
the
respondents
except respondent no.2, 3, & 4 have
raised
objection
regarding
maintainability of the writ Petition.

In view of the view (both majority and
minority)
Writ
Petition
against
a
registered
Society
consisting
of
Advocates (members of the High Court
Bar) is maintainable.

Advocate is an officer of the Court. He is
an indispensable constituent of the
'justice
delivery
system'. He enjoys
special status by virtue of his being
enrolled
as
Advocate.
He
enjoys
privileged position in Court (as well as in
public). In High Court he is provided
place to sit in Court premises. High Court
has given large accommodation in the
High Court Building to High Court Bar
Association for chambers, canteen etc.
High
Court
holds
references/
condolences on the request made by the
High Court Bar Association, and these
proceedings are Court proceedings.
Case law discussed:
AIR 2005 SC-2473
1992 (4) SCC-305
1994 Supp. SCC(2) 115
2005 (4) SCC-649
1995 (5) SCC-716
AIR 1996 SC-98
1995 (1) SCC-732
1995 AIR SCW-473
1995 (3) SCC-619
1995 AIR SCW 2203
1995 Crl.L.J. 2910
AIR 2003 SCC 739

## Text

4 All] Shiv Kumar Akela and others V. Registrar, Societies Firms & Chits and others
1225
administrative and financial powers of the
Pradhan under Section 95 (1)(g) proviso
of the Act of 1947 were ceased. Fresh
elections of the Gram Pradhan are to be
held in near future.

8. In such circumstances, this Court
is prima facie of the opinion that the
respondent-authorities have failed to act
in
conformity
with
the
statutory
provisions, by not getting a final enquiry
conducted
against
the
Pradhan
(petitioner), by a nominated officer within
reasonable time. Therefore, they not be
permitted to continue with the ceasation
of financial and administrative powers of
the Pradhan.

9. The petitioner has made out a
prima facie case for grant of interim
order.

10. Till the next date of listing the
operation of the order dated 2nd June,
2005 passed by the District Magistrate,
Sonbhadra shall remain stayed and
respondents shall not interfere with the
administrative and financial powers of the
Pradhan (petitioner).

11. A copy of this order shall be
supplied to the learned counsel for the
petitioner on payment of usual charges by
27th July, 2005.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2005

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE TARUN AGARWAL, J.

Civil Misc. Writ Petition No.55898 of 2004

Shiv Kumar Akela, Advocate and others
 ...Petitioners
Versus
The Registrar, Societies Firms and Chits,
Under the Societies Registration Act, 1860,
Allahabad and others
 ...Respondents

Counsel for the Petitioners:
Smt. Sadhna Upadhya
Sri S.S.Rathore (in person)

Counsel for the Respondents:
Sri S.M.A.Kazmi, CSC
Sri Ranvijay Singh, SC
Sri S.Prakash,
Sri T.P.Singh,
Sri Sidharth Singh
Sri Amit Sthalekar,
Sri V.B. Upadhaya

Constitution
of
India,
Art.
226maintainability-writ
petition-against
High Court Bar Association Allahabadbeing
registered
under
Societies
Registration Act-member of the society
are the Advocates-an officer of Court-an
indispensable
constituent
of
'justice
delivery
system'-enjoys
privileged
position-references/ condolences-which
are Court proceeding at the request of
Bar Association-bar to ensure proper and
smooth functioning of Courts hence a
public functionary-Writ Petition heldmaintainable.

Held: Para 10,19,23 & 27

Court has provided accommodation to
the High Court Bar Association and
Advocate Association. Court provides
1226 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
various other facilities- with no charges.
Court holds 'References' on the request
of High Court Bar Association- which are
Court proceedings. All this ultimately
concerns the welfare of the 'Public' and
'BAR
is
nothing
but
a
'Public'
'functionary'. It also shows that concept
of 'Bar' Association itself has emerged
from the solemn object to ensure proper
and smooth functioning of the Courts so
that 'justice' may be dispensed with to
the public at large, which is possible only
when
'BAR'
maintains
a
minimum
desired standard both from the point of
view
of
professional
ethics
and
professional proficiency.

Second
objection
regarding
maintainability of the Writ Petition on
this
ground
that
High
Court
Bar
Association
being
registered
under
Societies
Registration
Act
is
not
amenable to writ jurisdiction under
Article 226, Constitution of India, it will
suffice to mention that at this stage writ
petition does lie and is maintainable
against respondent nos.1, 5, 6, 7, 8 & 9.
Curiously,
none
of
the
respondents
except respondent no.2, 3, & 4 have
raised
objection
regarding
maintainability of the writ Petition.

In view of the view (both majority and
minority)
Writ
Petition
against
a
registered
Society
consisting
of
Advocates (members of the High Court
Bar) is maintainable.

Advocate is an officer of the Court. He is
an indispensable constituent of the
'justice
delivery
system'. He enjoys
special status by virtue of his being
enrolled
as
Advocate.
He
enjoys
privileged position in Court (as well as in
public). In High Court he is provided
place to sit in Court premises. High Court
has given large accommodation in the
High Court Building to High Court Bar
Association for chambers, canteen etc.
High
Court
holds
references/
condolences on the request made by the
High Court Bar Association, and these
proceedings are Court proceedings.
Case law discussed:
AIR 2005 SC-2473
1992 (4) SCC-305
1994 Supp. SCC(2) 115
2005 (4) SCC-649
1995 (5) SCC-716
AIR 1996 SC-98
1995 (1) SCC-732
1995 AIR SCW-473
1995 (3) SCC-619
1995 AIR SCW 2203
1995 Crl.L.J. 2910
AIR 2003 SCC 739

(Delivered by Hon'ble A.K. Yog, ,J.)

ORDER

1. Respondent nos. 3 & 4, impleaded
as President and Secretary of High Court
Bar Association, for short 'HCBA'.
Respondent no.2 at the outset of the
hearing of the case raised, 'Preliminary
Objection' regarding maintainability of
the present Writ Petition under Article
226, Constitution of India, on two counts,
namely;-

(i)
present Writ Petition can not be
entrtained
as
'Public
Interest
Litigation' (PIL), and ,
(ii) 'High
Court
Bar
Association,
Allahabad' (HCBA), is a 'Society'
registered
under
Societies
Registration Act, (whose 'Byelaws'/Rules
have
no
statutory
force), and hence not amenable to
High
Court
jurisdiction
under
Article 226, Constitution of India.

2. It is conspicuous to note that none
of the other Respondents (viz. The
Registrar, Societies Firms and Chitsunder Societies Registration Act, 1860,
Allahabad/Respondent
No.1,
Uttar
Pradesh Bar Council /Respondent No.5,
Bar
Council
of
India
through
its
4 All] Shiv Kumar Akela and others V. Registrar, Societies Firms & Chits and others
1227
Chairman, New Delhi/ Respondent no. 6,
Advocate General, State of Uttar Pradesh,
Lucknow/Respondent no.7, High Court of
Judicature at Allahabad through its
Registrar General/Respondent no. 8 and
The Advocate Association, 4th floor, New
Building
(High
Court
Allahabad)/Respondent 9) have joined the
Respondent Nos. 2, 3, & 4 on the above
'Preliminary
Objection'
regarding
maintainability of the Writ Petition, rather
directly or indirectly they support the
petitioners and seek court intervention to
ensure proper functioning of High Court
Bar Association.

3.

To
appreciate
'Preliminary
Objection', we may refer to the reliefs
claimed in the Writ Petition which read-

"(i) issue, a writ order or direction in the
nature of mandamus for constituting a
committee of Former Presidents HCBA
presently practising in the High Court for
weeding out non-practising advocates and
to prepare final list of genuine voters who
are regular practitioners in this Hon'ble
Court and to hold elections of the General
Body of the HCBA for the term 2004-2005
immediately thereafter.

(ii) issue, a writ, order or direction in the
nature of mandamus ceasing the financial
powers of the respondent number 3 & 4
other than disbursement of salary to
HCBA staff until holding of the HCBA
General Body elections 2004-2005.

(iii) issue, a writ order or direction in the
nature of ad-interim mandamus ceasing
the financial powers of the respondent
number 3 & 4other than disbursement of
salary to HCBA staff until holding of the
HCBA General Body Elections 20042005, and/or during the pendency of the
present writ petition before this Hon'ble
Court, besides constituting a committee of
Former
Presidents
HCBA
presently
practising in the High Court for weeding
out non-practising advocates and to
prepare final list of genuine voters who
are regular practitioners in this Hon'ble
Court and to hold elections of the General
Body of the HCBA for the term 2004-2005
immediately thereafter, so as to secure the
ends of justice, or else the petitioner as
well as the 'institution' shall suffer
irreparable harm and injury.

(iv) issue, any such other or further
orders as this Hon'ble Court deems fit
and proper in the present facts and
circumstances of the case so as to secure
the ends of justice."

4. We shall now examine the status
of the petitioners in the wake of the reliefs
(quoted above) claimed in the WritPetition.

5. Undisputedly, Petitioners before
the Court are Advocates who belong to
legal profession. They are-members of the
High Court Bar Association (HCBA),
practising regularly as Advocate in High
Court, Allahabad. They are ordinary
members with right to vote to elect
Governing Council of High Court Bar
Association
under
relevant
Bye-
laws/Rules of the High Court Bar
Association. Smt. Sadhana Upadhyay,
Petitioner No.3, is an 'ex-office bearer' of
High Court Bar Association.

6. Issues raised by the petitioners in
the present Writ Petition concerns, in
general,
functioning
of
the
'justice
delivery
system'
and,
in
particular,
functioning of the 'High Court' (which is
an essential component of the said system
1228 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
and vital organ of administration of
justice
in
the
State).
Quality
of
dispensation
of
justice
is
directly
dependant upon professional standards of
ethics
and
discipline
amongst
the
members of legal profession. One cannot
expect the system to function smoothly
and deliver desired fruits unless all its
wings (Bar is one of it) is healthy and
maintains dignity of the noble profession.

7. Bye-law/Rule No.3 & 17
containing objects and composition of
'Governing Body' of High Court Bar
Association read-

"Objects

3. The objects of the Association are:
(a) to promote the development of legal
science and studies and to watch
legislation for the purpose of assisting in
the progress of sound legislation;
(b) to safeguard and promote the interest
of the legal profession and its members in
general and of the members of the
Association in particular.
(c) to promote a high professional tone,
standard
and
conduct
amongst the
members of the legal profession and to
check unprofessional practices;
(d) to maintain a library of legal
literature and of other subjects likely to
be useful to the members of the
Association;
(e) to provide a meeting place for the
members of the Association particularly
for study and discussion of law;
(f) to bring to the notice of the Bar
Council, the High Court, the Supreme
Court
or
the
Central
or
State
Governments matters affecting the legal
profession in general of the members of
the Association in particular;
(g) to prepare and implement schemes for
giving assistance to members of their
families in distress circumstances;
(h) to establish and maintain a printing
press for the printing and publication of
the Cause list and the promotion of other
objects of the association, and
(i) to do all such acts or take such steps as
might be necessary for the well being of
the Association, or for the fulfilment of
these objects.

Governing Council

17. The affairs of the Association shall
be managed and its entire business
including the investment of the funds shall
lbe conducted by and under the control of
Governing Council consisting of:

(i) office bearers elected under Rule 16;
(ii) 12 other members to be elected from
amongst the members of the Association
in the Annual General Meeting of the
Association;
(iii) The Advocate General, U.P., Exofficio.
(iv) The Ex-Presidents of the Association
are Ex-officio."

8. Inclusion of Advocate-General,
U.P. (Ex. Officio) shows that it is not
ordinary
registered
society
and
its
existence is with an object to ensure
proper functioning of Courts and to
provide legal expertise to public at large
so that justice is dispensed in real sense. It
is prima facie, a function having all the
flavours of public utility service and
basically a public function.

9. High Court Bar Association is
also affiliated and recognised by U.P. Bar
Council, Allahabad. It is, thus under
supervision and control of 'Bar Council
4 All] Shiv Kumar Akela and others V. Registrar, Societies Firms & Chits and others
1229
of
U.P.'
a
'statutory
body'
under
Advocates Act. This is clear from
'Certificate of Affiliation' brought on
record by U.P. Bar Council.

10. Very object of providing 'Bar
Association' at all level of the Courts/with
affiliation/recognition extended by State
Bar Council, regulating members of legal
profession under Advocates' Act, 1961
and Rules framed thereunder, initiation of
various statutory Welfare Schemes under
control of U.P. Bar Council and State of
U.P., to arrange for 'library' for the use by
its members to save and promote intend
of legal profession and its members, to
promote high professional tone, standard
and conduct amongst members of legal
profession, to promote and develop legal
science, to watch legislation for the
purpose of assisting in the progress of
sound legislation and to print 'Cause List',
leave one in no doubt that it has to
perform a very onerous duty to ensure
healthy functioning of the 'Apparatus'
meant
for
'justice
delivery-system',
namely the Courts. Court has provided
accommodation to the High Court Bar
Association and Advocate Association.
Court provides various other facilities-
with no charges. Court holds 'References'
on the request of High Court Bar
Association-which are Court proceedings.
All this ultimately concerns the welfare of
the 'Public' and 'BAR is nothing but a
'Public' 'functionary'. It also shows that
concept of 'Bar' Association itself has
emerged from the solemn object to ensure
proper and smooth functioning of the
Courts so that 'justice' may be dispensed
with to the public at large, which is
possible only when 'BAR' maintains a
minimum desired standard both from the
point of view of professional ethics and
professional
proficiency.
'BAR'
in
England
in
its
formative
period
considered
of
'Clergy'
which
was
supposed to do public service. Our 'Gown'
owes its origin to the 'Gown' of a
clergymen.

11. Apex Court in the case of
Rajendra Sail Verus Madhya Pradesh
High Court Bar Association and others,
AIR 2005 Supreme Court 2473 (Para 32)
has noted-

"32. .............The confidence of people in
the institutive of judiciary is necessary to
be preserved at any cost. That is its main
asset. Loss of confidence in institution of
judiciary would be end of Rule of law.
Therefore, any act which has such
tendency deserves to be firmly curbed.
For rule of law and orderly society, a free
responsible
press
and
independent
judiciary are both indispensable. Both
have to be, therefore, protected."

12. In that back ground, concern
shown by the petitioners cannot be said to
be without foundation or that of a stranger
of Bye-passers.

13. It may be noted that Bar Council
of U.P. has joined the petitioners on the
issues raised in the Writ-Petition and
disapproves present functioning of the
Bar Association, particularly enrolment of
non practising Advocates and those who
are not regularly practising in the High
Court (i.e. those who are enrolled solely
for the purpose of elections to create
pseudo majority of a particular candidate).

14. Advocate General, U.P. has also
joined the issue raised in the Writ Petition
when he made a statement that Court
should intervene in order to remedy the
1230 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
malady/malaise to save the judicial
institution.

15. Petitioners, thus, have vital
interest in the result of the Writ Petition
and undisputely got locus standi to
approach the Court by maintaining 'Public
Interest
Litigation'.
Their
endeavour
shows their genuine and bonafide concern
in the functioning of Courts. Endeavour
of the petitioners, is to protect the genuine
legal practitioner in the High Court and
ensure disciple in the High Court
premises. By no stretch it can be said that
petitioners have raised frivolous issues for
personal gain only.

16. Petitioners, in absence of any
material to the contrary on record,
successfully proved their bonafide in
prosecuting the writ petition.

17. We are satisfied that petitioners
have approached this Court with clean
hands and clear hearts for the relief which
does not concern only High Court Bar
Association or its members alone but also
concerns the management and functioning
of the Court and 'justice delivery system'
in the State of U.P.

18. In support of our conclusion,
reference may be made to the cases-The
Janta Dal Versus H.S. Chowdhary 1992
(4) SCC 305 and Kazi Lhendup Dorji
Versus Central Bureau of Investigation
1994 Supp (2) SCC 115.

19. Second objection regarding
maintainability of the Writ Petition on this
ground that High Court Bar Association
being
registered
under
Societies
Registration Act is not amenable to writ
jurisdiction
under
Article
226,
Constitution of India, it will suffice to
mention that at this stage writ petition
does lie and is maintainable against
respondent nos.1, 5, 6, 7, 8 & 9.
Curiously, none of the respondents except
respondent no.2, 3, & 4 have raised
objection regarding maintainability of the
writ Petition.

20. Moreover, the Writ Petition is
maintainable against respondent no.2 in
view of the judgement dated February 2,
2005 in the case of M/S Zee Telefilms
Ltd. & Another Versus Union Of India
and others, 2005 (4) SCC 649.

21. Vide para 31 of the aforesaid
reported majority judgement (Hon. N.
Santosh Hegde, J, Hon. B.P. Singh, J and
Hon. H.K. Sema, J.) it is held-

"Be that as it may, it cannot be
denied that the Board does discharge
some duties like the selection of an Indian
cricket team, controlling the activities of
the players and others involved in the
game of cricket. These activities can be
said to be akin to public duties or State
functions and if there is any violation of
any constitutional or statutory obligation
or right of other citizens, the aggrieved
party may not have a relief by way of a
petition under Article 32. But that does
not mean that the violator of such right
would go scot-free merely because it or
he is not a State. Under the Indian
jurisprudence there is always a just
remedy for violation of aright of a citizen.
Though the remedy under Article 32 is not
available, an aggrieved party can always
seek a remedy under the ordinary course
of law or by way of a writ petition under
Article 226 of the Constitution which is
much wider than Article 32.
4 All] Shiv Kumar Akela and others V. Registrar, Societies Firms & Chits and others
1231
This Court in the case of Andi Mukta
Sadguru Shree Muktajee Vandas Swami
Suvarna Jayanti Mahotsav Smarak Trust
& Ors. Vs. V.R. Rudani & Ors. (1982 2
SCC 691) has held:

"Article 226 confers wide powers on
the High Courts to issue writs in the
nature of prerogative writs. This is a
striking departure from the English law.
Under Article 226, writ can be issued to "
any person or authority". The term "
authority" used in the context, must
receive a liberal meaning unlike the term
in Article 12 which is relevant only for the
purpose of enforcement of fundamental
rights under Article 32, Article 226
confers powers on the High Courts to
issue writs for enforcement of the
fundamental rights as well as nonfundamental rights. The words " any
person or authority " used in Article 226
are, therefore, not to be confined only to
statutory authorities and instrumentalities
of the State. They may cover any other
person or body performing public duty.
The form of the body concerned is not
very much relevant. What is relevant is
the nature of the duty imposed on the
body. The duty must be judged in the light
of positive obligation owned by the person
or authority to the affected party, no
matter by what means the duty is imposed.
If a positive obligation exists mandamus
cannot be denied."
Thus, it is clear that when a private body
exercises its public functions even if it is
not a State, the aggrieved person has a
remedy not only under the ordinary law
but also under the Constitution, by way of
a writ petition under Article 226.
Therefore,
merely
because
a
nongovernmental body exercises some public
duty that by itself would not suffice to
make such body a State for the purpose of
Article 12. In the instant case the
activities of the Board do not come under
the guidelines laid down by this Court in
Pradeep Kumar Biswas case (supra)
hence there is force in the contention of
Mr. Venugopal that this petition under
Article 32 of the Constitution is not
maintainable."

22. In the minority judgement,
Hon'ble Judges of the Apex Court (Hon.
S.N. Variava, J. and Hon S. B. Sinha, J.)
have noted-.

"Para 171.............What is, therefore,
relevant and material is the nature of the
function.

Para 172. In our view, the complex
problem has to be resolved keeping in
view the following further tests:

(i) When the body acts as a public
authority and has a public duty to
perform'
(ii) When it is bound to protect human
rights.
(iii) When it regulates a profession or
vocation of a citizen which is otherwise a
fundamental right under a statute or its or
its own rule.
(iv) When it regulates the right of a citizen
contained in Article 19(1)(a) of the
Constitution of India available to the
general public and viewers of the game of
cricket in particular.
(v) When it exercises a de facto or a de
jure monopoly'
(vi) When the State out-sources its
legislative power in its favour;
(vii) When it has a positive obligation of
public nature.
These tests as such had not been
considered independently in any other
decision of this Court.
1232 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
..................
Para 173. The traditional tests of a body
controlled
financially
and
administratively by the Government as
laid down in Pradeep Kumar Biswas
(supra) would have application only when
a body is created by the State itself for
different purposes but incorporated under
the Indian Companies Act or Societies
Registration Act................
An Authority necessarily need not be
a creature of the statute............
Applying
the
tests
laid
down
hereinbefore to the facts of the present
case, the Board, in our considered
opinion, fits the said description. It
discharges a public function. It has its
duties towards the public. The public at
large will look forward to the Board for
selection of the best team to represent the
country. It must manage its housekeeping
in such a manner so as to fulfil the hopes
and aspirations of millions. It has, thus, a
duty to act fairly. It cannot act arbitrarily,
whimsically
or
capriciously.
Public
interest is, thus, involved in the activities
of the Board. It is, thus, a State actor.
We, therefore, are of the opinion that law
requires to be expanded in this field and it
must be held that the Board answers the
description of " Other Authorities" as
contained in Article 12 of the Constitution
of India and satisfied the requisite legal
tests, as noticed hereinbefore. It would
therefore, be a 'State'."

23. In view of the view (both
majority and minority) Writ Petition
against a registered Society consisting of
Advocates (members of the High Court
Bar) is maintainable.

Section 34 (1) of the Advocates Act
reads-

" 34(1) The High Court may make
rules laying down the conditions subject
to which an advocate shall be permitted
to practise in the High court and the
courts subordinate thereto."

The above provision also supports
our view taken above.

24. In (1995) 5 SCC 716: AIR 1996
SC
98,
U.P.
Sales
Tax
Service
Association
Versus
Taxation
Bar
Association, Agra and others Apex
Court has held-
" .................
11. It is fundamental that if rule of law is
to have any meaning and content, the
authority of the Court or a statutory
authority of the Court and the confidence
of the public in them should not be
allowed
to
be
shaken,
diluted
or
undermined. The Courts of justice and all
tribunals exercising judicial functions
from the highest to the lowest are by their
constitution
entrusted
with
functions
directly connected with the administration
of justice. It is that expectation and
confidence of all those, who have or are
likely to have business in that Court or
tribunal, which should be maintained so
that the court/tribunal perform all their
functions on a higher level of rectitude
without fear or favour affection or ill-will.
.............The
protection
to
the
judges/judicial officer/authority is not
personal but accorded to protect the
institution
of
the
judiciary
from
undermining the public confidence in the
efficacy
of
judicial
process.
The
protection, therefore, is for fearless curial
process..........".

25. In Indian Council of Legal Aid
and Advice Versus Bar Council of
India reported in (1995) 1 SCC 732:
4 All] Shiv Kumar Akela and others V. Registrar, Societies Firms & Chits and others
1233
(AIR 1995 SC 691): (1995 AIR SCW
473, Supreme Court observed-

" ........... the duty of a lawyer is to
assist the Court in the administration of
justice, the practice of law has a public
utility flavour and, therefore, he must
strictly and scrupulously abide by the
Code of Conduct. .........."

Again in Sanjeev Datta reported in
(1995) 3 SCC 619 : ( 1995 AIR SCW
2203); 1995 Cri LJ 2910, Supreme Court
observed-

"20............... The legal profession is
different from other professions in that
what the lawyers do, affects not only an
individual but the administration of
justice which is the foundation of the
civilised society. Both as a leading
member of the intelligentsia of the society
and as a responsible citizen, the lawyer
has to conduct himself as a model for
others both in his professional and in his
private and public life. .............If the
profession is to survive, the judicial
system has to be vitalised. No service will
be too small in making the system
efficient, effective and credible."

26. The Apex Court while dealing
with the case of Ex- Capt. Harish Uppal
versus Union of India and another, AIR
2003 Supreme Court 739 while referred
to the above decision, in para 31,32,33, 34
and 36 observed-

"31. It must also be remembered that an
Advocate is an officer of the Court and
enjoys special status in society. Advocates
have obligations and duties to ensure
smooth
functioning
of
the
Court.
...........The principles is that those who
have duties to discharge in a Court of
justice are protected by the law and are
shielded by the law to discharge those
duties, the advocates in return have duty
to protect the Courts. .............

32. It was expected that having known the
well-settled law and having been that
repeated strikes and boycotts have shaken
the confidence of the public in the legal
profession and affected administration of
justice, there would be self regulation.
The above mentioned interim order was
passed in the hope that with self restraint
and self regulation the lawyers would
retrieve their profession from lost social
respect. The hope has not fructified.
Unfortunately strikes and boycott calls
are
becoming
a
frequent
spectacle..........The judicial system is
being held to ransom. Administration of
law and justice is threatened. The rule of
law is undermined.

33. It is held that submission made on
behalf of Bar Councils of U.P. merely
need to be stated to be rejected.
.............Bar Council of India is enjoined
with the duty of laying down standards of
professional conduct and etiquette for
advocates. This would mean that the Bar
Council of India ensures that Advocates
do not behave in unprofessional and
unbecoming manner. Section 48 A gives a
right to Bar Council of India to give
directions to State Bar Councils. The Bar
Associations may be separate bodies but
all Advocates who are members of such
Association
are
under4
disciplinary
jurisdiction of the Bar Councils and thus
the Bar Councils can always control their
conduct. .........

34. In the case of Abhay Prakash Sahay
Lalan V. High Court of Judicature at
Patna reported in AIR 1998 Patna 75, it
1234 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
has been held that Section 34(1) of the
Advocates Act empowers High Courts to
frame rules laying down conditions
subject to which an Advocate shall be
permitted to practice in the High Court
and Courts subordinate thereto. It has
been held that the power under Section 34
of the Advocates Act is similar to the
power
under
Article
145
of
the
Constitution of India. It is held that other
Sections of the Advocates Act cannot be
read in a manner which would render
Section 34 ineffective."

36. It must be noted that Courts are not
powerless or helpless. Section 38 of the
Advocates Act provides that even in
disciplinary matters the final Appellate
Authority is the Supreme Court. Thus
even if the Bar Councils do not rise to the
occasion and perform their duties by
taking disciplinary action on a complaint
from a client against an advocate for nonappearance by reason of a call for strike
or boycott, on an Appeal the Supreme
Court can and will,. apart from this, as
set out in Romans Services' case, every
Court now should and must mulct.
Advocates who hold Vakalats but still
refrain
from
attending
Courts
in
pursuance of a strike call with costs,.
Such costs would be in addition to the
damages which the Advocate may have to
pay for the loss suffered by his client by
reason of his non-appearance.

27. Advocate is an officer of the
Court. He is an indispensable constituent
of the 'justice delivery system'. He enjoys
special status by virtue of his being
enrolled
as
Advocate.
He
enjoys
privileged position in Court (as well as in
public). In High Court he is provided
place to sit in Court premises. High Court
has given large accommodation in the
High Court Building to High Court Bar
Association for chambers, canteen etc.
High Court holds references/ condolences
on the request made by the High Court
Bar Association, and these proceedings
are Court proceedings.

28. There is no dispute or doubt that
Writ Petition lies against Respondent
No.1/Registrar,
Societies
Registration
who is responsible for proper functioning
of a 'Society' (registered under Societies
Registration Act) including High Court
Bar Association. Similarly, Writ Petition
lie against Respondent nos. 5,6,7, 8 & 9.

29. The question, as to what extent
this court can issue 'Writ' against
Respondent Nos. 2, 3 & 4, shall be seen
while hearing and deciding the case
finally on merit.

30.

Objections,
regarding
maintainability of the Writ Petition are
not tenable at this stage.

31. These objections shall, however,
be dealt finally in detail while deciding
the Writ Petition on merit.

Prima
facie
Writ
Petition
is
maintainable.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.11.2005

BEFORE
THE HON'BLE SHIV SHANKER, J.

Criminal Revision No. 4394 of 2005

Mrs. Salma Aijaz ...Applicant/Revisionist
Versus
The State of U.P. and others

 ...Opposite Parties