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Allahabad High Court · body

2009 DIGILAW 1880 (ALL)

RAJEN MAWAR v. DISTRICT BAR ASSOCIATION

2009-04-30

SUNIL AMBWANI, VIRENDRA SINGH

body2009
VIRENDRA SINGH, J. Heard Shri Ravi Kant, Senior Advocate assisted by Shri Pramod Kumar Gupta for the petitioner. Shri Pankaj Naqvi has entered appearance on behalf of the Bar Council of U. P. through its Secretary. 2. Issue notice to respondent Nos. 1 to 4. Steps within a week. 3. The impleadment application to implead Shri Vimal Kumar Verma nominated as Election Officer of District Bar Association, Fatehgarh, Distt. Farrukhabad, as respondent No. 6, is allowed. Notices shall be issued to him. The petitioner will take steps to serve him within a week. 4. The supplementary affidavit is taken on record. The amendment application for bringing on record events subsequent to the filing of the writ petition is allowed. Let the amendment be carried out within a week. 5. All the respondents are granted four weeks time to file counter affidavit. The petitioner will have one week, thereafter, to file rejoinder affidavit. List on 2nd July, 2009. 6. The petitioner has prayed for writ of quo-warranto calling respondent Nos. 2 to 4 to explain the authority, rule of law under which they are functioning as office bearer of Distt. Bar Association, Fatehgarh, Distt. Farrukhabad and the entire proceedings of election of the office bearers held on 28. 4. 2009. They have also prayed for a direction in the nature of mandamus to furnish complete statement of account regarding sale of vakalatnama and Parcha Advocate being sold by respondent No. 1 before this Court and to issue writ of mandamus to the Bar Council of U. P. to supervise the affairs of respondent No. 1 by nominating a member of the Bar Council of U. P. The petitioner has also prayed for following relief:- " (4) Kindly to issue an Order, Direction, Rule or Writ in the nature of prohibition, stopping the Sale of Vakalatnama and Parcha Advocate by the respondent No. 1. " 7. " 7. Shri Ravi Kant, learned counsel for the petitioner submits that the registration of respondent No.-1 Association under the Societies Registration Act has not been renewed and that it has neither sought nor is affiliated to the Bar Council of U. P. He would submit that under Section 6 (1) (d) and (dd) of the Advocates Act, 1961, the Bar Council of the State has to carry out various statutory functions and for that purpose, the affiliation of every Bar Association to the Bar Council of the State is necessary. The Bar Council of U. P. , Advocates Association Affiliation Rules, 2005 provides for affiliation of all the associations of Advocates, which are registered under the Societies Registration Act in the categories mentioned under Rule-2. He would submit that the Bar Council of the State, in order to carry out its statutory welfare activities has to deal with the Bar Associations. The Bar Council of U. P. has also prepared model bylaws for Bar Association in U. P. providing for a Elders Committee to be constituted to take over after the terms of the Office Bearers of the Bar Association expires for holding elections, amongst other thing. It is necessary for Bar Associations having affiliation with the U. P. Bar Council to adopt these Model Bylaws. The respondent No. 1 has not adopted modal bylaws, and thus the elections held by it after the term of office bearers of the respondent No. 1 has expired are illegal and inoperative. 8. Shri Pankaj Naqvi, learned counsel appearing for Bar Council states that the District Bar Association, Fatehgarh Distt. Farrukhabad is not affiliated to Bar Council of U. P. and that there is no other association of Advocates at Fatehgarh Distt. Farrukhabad affiliated to the Bar Council of U. P. 9. The respondent No. 1 to 4 and newly impleaded respondent No. 6 are called upon to show the authority, under which they have held elections of the office bearers without seeking affiliation and adopting modal bylaws of Bar Council of U. P. 10. So far as issuing writ of mandamus to stop the sale of Vakalatnama and Parcha Advocate by the Distt. Bar Association, Fatehgarh Distt. Farrukhabad, Shri Ravi Kant would submit that no Bar Association can have monopoly in selling vakalatnamas. So far as issuing writ of mandamus to stop the sale of Vakalatnama and Parcha Advocate by the Distt. Bar Association, Fatehgarh Distt. Farrukhabad, Shri Ravi Kant would submit that no Bar Association can have monopoly in selling vakalatnamas. The proforma of vakalatnama is prescribed in Form No. 19 in Appendix h of the Code of Civil Procedure (CPC), prescribed by the High Court of Judicature at Allahabad under Section 122 of the CPC, with previous approval of the Government of U. P. The proforma was inserted in First Schedule of the CPC vide Notification dated 21st March, 1981. The Court fees on the vakalatnama is prescribed under the Court Fees Act, 1870 as amended in State of U. P. The Distt. Bar Association, Fatehgarh, Distt. Farrukhabad is illegally and without any authority of law collecting an amount of Rs. 150/- on the compulsory sale of vakalatnamas and Parcha Advocate to the litigants and Advocates. The proforma of vakalatnamas printed by Distt. Bar Association, Fatehgarh, Farrukhabad is annexed as Annexure No. 1a. The Bar Association is collecting Rs. 150/- on the vakalatnamas and Parcha Advocate (printed with serial numbers) by issuing receipts in duplicate, which is part of the vakalatnama and the copies are torn of, after the amount is paid. The officers in the judgeship are not accepting any other form of vakalatnama except the form, which has been sold by the Distt. Bar Association after payment of Rs. 150/- as donation (Anudan ). 11. Shri Ravi Kant would submit that Art. 265 of the Constitution of India provides that no tax, which includes fee or any form of compulsory exaction of money, can be levied or collected except by authority of law. The Distt. Bar Association as a Society for which renewal has not been obtained nor has the affiliation with Bar Council of U. P. has no authority to charge any amount, either by way of tax, fees or in the name of donation or contribution as precondition of sale of vakalatnama. There is no law, authorising such imposition and collection from the litigants. 12. He would submit that this Court may restrain the illegal and compulsory collection of Rs. 150/- on every vakalatnama in the name of a charge by way of donation to the Bar Association, from the litigants. 13. There is no law, authorising such imposition and collection from the litigants. 12. He would submit that this Court may restrain the illegal and compulsory collection of Rs. 150/- on every vakalatnama in the name of a charge by way of donation to the Bar Association, from the litigants. 13. Shri Pankaj Naqvi states that Bar Council of U. P. has not prescribed any fees, charge, donation or contribution to be paid to the Bar Associations nor authorised the printing and sale of Vakalatnamas and Parcha Advocates. 14. After ascertaining the facts from the Bar Council U. P. we are of the opinion that sale of vakalatnama by the Distt. Bar Association, Fatehgarh and collection of Rs. 150/- or any amount by way of contribution to the Bar Association on such sale of vakalatnama and further the acceptance of only such vakalatnamas, which are being sold by the Distt. Bar Association Fatehgarh in the judgeship at Fatehgarh is primafacie illegal and unconstitutional, being violative of Art. 265 of the Constitution of India. 15. We, therefore, issue an interim mandamus directing the Distt. Judge, Fatehgarh Distt. Farrukhabad not to insist upon the filing of those Vakalatnamas and Parcha Advocates, which are sold only by the Distt. Bar Association, Fatehgarh Distt. Farrukhabad. He will also ensure that no amount other than Court fees prescribed under the Court Fees Act, 1870 as amended in the State of U. P. is charged or paid for obtaining and filing the vakalatnama. The litigants can obtain vakalatnamas on prescribed proforma in Form No. 19 of Appendix h of the First Schedule of the CPC, from any source, and file it along with their pleadings or applications or for other purposes, after affixing fees prescribed under the Court Fees Act, 1870. 16. We also refer this matter to the Bar Council of U. P. to consider in its next meeting, whether the sale of vakalatnama by the Bar Association and charge of contribution/donation as method of collecting any amount for any purpose other than the amount, received or distributed through the Bar Council of U. P. is valid and whether such practice should be stopped. 17. 17. We are informed that similar practice is prevailing in many other districts in State of U. P. Since the matter concerns the right of litigants to approach the Court and is intricately connected with access to justice, recognised as a fundamental rights guaranteed to all persons, by the Constitution of India, we issue similar directions, as in the case of Distt. Bar Association, Fatehgarh Distt. Farrukhabad for all the Bar Associations whether affiliated to Bar Council of U. P. or not, existing in any districts in the State of U. P. 18. A copy of the order be given to the Bar Council of U. P. and the Registrar General, High Court, Allahabad for compliance by Tuesday. .