# V.C. Mishra, President High Court Bar Asso. & anr v. Bar Council of U.P. & anr - **Citation:** (2009) 3 ILRA 844 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2009-10-09 - **Case number:** Civil Misc. Writ Petition No. 50096 of 2009 - **Bench:** Amitava Lala, Ashok Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-c-mishra-president-high-court-bar-asso-anr-v-bar-council-of-u-p-anr-41536 - **Pages:** 3 ## Headnote Advocate Act 1961, Section-35-Shaw Cause Notice-debarring the petitioner from practice for 10 years-without decision taken by the disciplinary authority-No material produced before the Court-regarding decision of 20.09.09-held-without decision of disciplinary authority-erring officer who issued show cause Notice-Bar Council to take legal action against such person. Held: Para 6 In any event we are of the view that the proceeding which wanted to be initiated or initiated was not in a proper manner. The Bar Council of Uttar Pradesh being a statutory body should be law abiding but not to act on the basis of personal animosity with any member of the Bar or for helping any office bearer of the Bar Association. Against this background we are of the view that it is open for the Bar Council to take any decision in accordance with law under Section 35 of the Advocates Act, 1961 if at all the Bar Council of Uttar Pradesh is not satisfied 3 All] V.C. Mishra, President High Court Bar Asso. & anr. V. Bar Council of U.P. & anr. 845 with any conduct of the petitioner but not to act in the manner as it has been done. It is further significant to note that if there is no recording available with regard to decision of 20.9.2009, then the authority of the Bar Council of Uttar Pradesh is also authorised to take legal action against such person who has committed such mistake. We are of the view that no body is above law and should not take law in his own hands to subserve any purpose. ## Text 844 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 learned Judge, after having entertained the writ petition, directed the parties to file counter and rejoinder affidavits and that having already been done, at such a distance of time, ought not to have dismissed the writ petition on the ground of alternative remedy. 15. We hasten to add that after exchange of pleadings, the Court may not be in a position to decide the disputed question of fact, for the reason that for deciding the same, evidence may be required to be laid, and in such circumstance the writ petition cannot be dismissed on the ground of alternative remedy but on the ground that the issue of fact cannot be decided in a writ petition. 16. When we test the order of the learned Judge from the aforesaid angle, we are of the opinion that the order cannot be be sustained in the eyes of law. 17. Accordingly, the appeal succeeds and is allowed. The order dated 24.07.2009 passed in Civil Misc. Writ Petition No. 39776 of 2001 is set aside and the matter is remitted back to the learned Judge for reconsideration on merits in accordance with law. 18. In the facts and circumstances of the case, there shall be no order as to costs. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 09.10.2009 BEFORE THE HON'BLE AMITAVA LALA, J. THE HON'BLE ASHOK SRIVASTAVA, J. Civil Misc. Writ Petition No. 50096 of 2009 V.C. Mishra, Senior Advocate President, High Court Bar Association, Allahabad and another ...Petitioners Versus The Bar Council of U.P. and another ...Respondents Counsel for the Petitioners: Sri T.P. Singh Sri V.C. Mishra (In Person) Sri Uma Shanker Mishra Counsel for the Respondents: Advocate Act 1961, Section-35-Shaw Cause Notice-debarring the petitioner from practice for 10 years-without decision taken by the disciplinary authority-No material produced before the Court-regarding decision of 20.09.09-held-without decision of disciplinary authority-erring officer who issued show cause Notice-Bar Council to take legal action against such person. Held: Para 6 In any event we are of the view that the proceeding which wanted to be initiated or initiated was not in a proper manner. The Bar Council of Uttar Pradesh being a statutory body should be law abiding but not to act on the basis of personal animosity with any member of the Bar or for helping any office bearer of the Bar Association. Against this background we are of the view that it is open for the Bar Council to take any decision in accordance with law under Section 35 of the Advocates Act, 1961 if at all the Bar Council of Uttar Pradesh is not satisfied 3 All] V.C. Mishra, President High Court Bar Asso. & anr. V. Bar Council of U.P. & anr. 845 with any conduct of the petitioner but not to act in the manner as it has been done. It is further significant to note that if there is no recording available with regard to decision of 20.9.2009, then the authority of the Bar Council of Uttar Pradesh is also authorised to take legal action against such person who has committed such mistake. We are of the view that no body is above law and should not take law in his own hands to subserve any purpose. (Delivered by Hon'ble Amitava Lala, J.) 1. This writ petition has been made by the President, High Court Bar Association, Allahabad by appearing in person. 2. By this writ petition he wants quashing of the show-cause notice dated 30.8.2009 issued by the Vice Chairman of the Bar Council of Uttar Pradesh. As per the notice the petitioner was called upon to give reply to show cause as to why a disciplinary proceeding should not be proceeded against him under Section 35 of the Advocates Act, 1961. 3. The contention of the petitioner is that the notice is unsustainable in nature since any decision has not been taken by the Bar Council of Uttar Pradesh to issue the notice but the same is an individual action on the part of the Vice Chairman of the Bar Council of Uttar Pradesh. 4. Normally the court does not interfere with the issuance of notice to show cause but when such show cause notice seems to be barred under any law, there is no embargo on the writ jurisdiction of this court with regard to interference of the notice. The petitioner has called upon to substantiate such facts on which, being prima satisfied, we have called upon Sri Pankaj Naqvi, learned counsel appearing for the Bar Council of Uttar Pradesh to take appropriate instruction and make submission before this court to which Mr. Naqvi has come forward with a communication of the Chairman of the Bar Council of Uttar Pradesh dated 29.9.2009 addressed to he Secretary of Bar Council of Uttar Pradesh from which it transpires that there was a proceeding on 20.9,.2009 debarring the petitioner from acting as an advocate for 10 years but the same has been kept in abeyance. However, Mr. Pankaj Naqvi is not in a position to submit any resolution of such nature or meeting or communication excepting the communication dated 29.9.2009 and the earlier show cause dated 30.8.2009. Against this background we are surprised to the conduct of the Bar Council of Uttar Pradesh in proceeding with the matter. 5. According to the petitioner non communication of the order, if any, and keeping it in the file cannot be deemed to be an order at all. Moreover, the order is to be passed by the disciplinary authority under Section 35 of the Act not individually? and before passing such order an opportunity should be given for placing the case. However, Mr. Naqvi has contended before this court that since by the letter dated 29.9.2009, the Chairman kept the proceeding in abeyance, therefore, non communication will not come in the way. 6. In any event we are of the view that the proceeding which wanted to be initiated or initiated was not in a proper manner. The Bar Council of Uttar Pradesh being a statutory body should be law abiding but not to act on the basis of personal animosity with any member of 846 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 the Bar or for helping any office bearer of the Bar Association. Against this background we are of the view that it is open for the Bar Council to take any decision in accordance with law under Section 35 of the Advocates Act, 1961 if at all the Bar Council of Uttar Pradesh is not satisfied with any conduct of the petitioner but not to act in the manner as it has been done. It is further significant to note that if there is no recording available with regard to decision of 20.9.2009, then the authority of the Bar Council of Uttar Pradesh is also authorised to take legal action against such person who has committed such mistake. We are of the view that no body is above law and should not take law in his own hands to subserve any purpose. 7. With the above observation, we dispose of the writ petition by quashing the notice dated 30.8.2009. 8. No order is passed as to cost. However, it is open to the Bar Council of Uttar Pradesh to proceed in accordance with law. So far as prayer no. ii and iii ( iii has been written as ii twice) are concerned, they are not pressed by the petitioner. However, it is open for the petitioner to proceed in accordance with law for such prayer in some other proceeding. Copy of communication dated 29.9.2009 supplied by Sri Pankaj Naqvi, learned counsel appearing on behalf of Bar Council of Uttar Pradesh is kept on record. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.10.2009 BEFORE THE HON'BLE A.P. SAHI, J. Civil Misc. Writ Petition No. 50894 of 2009 Ramesh Chandra Mishra ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri P.C. Sharma Counsel for the Respondents: S.C. Constitution of India Article-226Petitioner being senior most lecturer surrender his right of officiating Principal-by letter dated 4.5.07-can not be allowed to put claim again being senior most teacher-recital being full and complete-No ambiguity-order impugned denying to work as officiating principal- held proper. Held: Para 6 Having heard learned counsel for the parties, I have carefully perused the letter dated 4.5.2007 which clearly demonstrates that the petitioner surrendered and resigned from the duties as officiating Principal coupled with a recital to the effect that he should be continued and allowed to function as Assistant Teacher in the institution. The recital being full and complete, there is no ambiguity in the same and as such the contention advanced by the learned counsel for the petitioner cannot be accepted. (Delivered by Hon'ble A.P. Sahi, J.) 1. Heard learned counsel for the petitioner and learned Standing Counsel.