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2019 DIGILAW 160 (ALL)

Rajendra Prasad Kanaujiya v. State Of U. P.

2019-01-21

PANKAJ BHATIA, PRADEEP KUMAR SINGH BAGHEL

body2019
JUDGMENT : 1. The petitioner has preferred this writ petition under Article 226 of the Constitution for the following relief: “PRAYER It is, therefore, Most respectfully prayed that this Hon'ble Court may graciously be pleased to-: (i) issue a writ order or direction in the nature of Mandamus by direct to the Respondents not to delete the fruit Juice Shop of the petitioner which is located at Town Hall Road Shahjahanpur on the land of Arya Samaz Mandir on Rent. (ii) issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (iii) To award the cost petition in favour of the petitioner." 2. We have carefully perused the pleadings and relief of the writ petition. 3. We experience that a large number of writ petitions are filed in this Court with some what similar pleadings and relief. With a view to hilight the falling standard of some of the members of the bar, the entire writ petition with its grounds and prayer is extracted below in verbatim: "1. That this is first writ petition on behalf of petitioner before this Hon'ble Court by seeking present relief. Petitioner never preferred any other earlier writ petition on his behalf before this Hon'ble Court by seeking present relief. 2. That the petitioner in land of Arya Samaz Mandir located at Town Hall Road Shahjahanpur have one fruit Juice Shop from the Year 2004 on Rent of Rs.300 and regularly paid the same and no dispute between the them till date and petitioner take electricity connection on 13.04.05. A Photo Copy of some rent receipts as well as electricity connection Receipt are collectively been filed herewith and marked as Marked as Annexure No. 1 to this writ Petition. 3. That it is most important to mentioned here that petitioner shop distance from the Road 15 Fit and entire road Track numbers of building are constructed and no any building has been disturbed by the Respondents. A Current Photo Graph of the petitioner Shop as well as located area are being filed herewith and Marked as Annexure No. 2 to this writ Petition. 4. That the petitioner's family livelihood depends up on this shop but Respondents illegally want to delete the shop of petitioner i.e. against the natural justice and eye of law. 5. A Current Photo Graph of the petitioner Shop as well as located area are being filed herewith and Marked as Annexure No. 2 to this writ Petition. 4. That the petitioner's family livelihood depends up on this shop but Respondents illegally want to delete the shop of petitioner i.e. against the natural justice and eye of law. 5. That the Respondents till date no any Notice has been given to the petitioner regarding the delete his Fruit Juice Shop but illegally want to delete the shop. 6. That the petitioner has no speedy remedy except approach this Hon'ble Court. 7. That the petitioner is very poor and law abiding person of the society. 8. That in view of aforesaid facts and circumstances of the case, it is expedient in the interest of justice that this Hon'ble Court may graciously be pleased to allow this writ petition and direct to the Respondents not to delete the fruit Juice Shop of the petitioner which is located at Town Hall Road Shahjahanpur on the land of Arya Samaz Mandir on Rent, in the interest of justice may be done and/or pass such other and further order as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, otherwise petitioner shall suffer irreparable loss and injury. 9. That there is no other alternative remedy except to approach this Hon'ble Court under Article 226 of the Constitution of India, inter alia amongst other following grounds:- GROUNDS A. Because, the petitioner in land of Arya Samaz Mandir located at Town Hall Road Shahjahanpur have one fruit Juice Shop from the Year 2004 on Rent of Rs.300 and regularly paid the same and no dispute between the them till date and petitioner take electricity connection on 13.04.05. B. Because, it is most important to mentioned here that petitioner shop distance from the Road 15 Fit and entire road Track numbers of building are constructed and no any building has been disturbed by the Respondents. C. Because, the petitioner's family livelihood depends up on this shop but Respondents illegally want to delete the shop of petitioner i.e. against the natural justice and eye of law. D. Because, the Respondents till date no any Notice has been given to the petitioner regarding the delete his Fruit Juice Shop but illegally want to delete the shop. C. Because, the petitioner's family livelihood depends up on this shop but Respondents illegally want to delete the shop of petitioner i.e. against the natural justice and eye of law. D. Because, the Respondents till date no any Notice has been given to the petitioner regarding the delete his Fruit Juice Shop but illegally want to delete the shop. E. Because, the petitioner has no speedy remedy except approach this Hon'ble Court. F. Because, the action of Respondents is against the eye of law.” 4. The then Hon'ble Chief Justice Dr.D.Y.Chandrachud (as His Lordship was then) had instituted a one Judge enquiry vide his order dated 12.03.2015. Amongst others one of the reference of the enquiry was as under: “It has become necessary for the High Court to make a comprehensive assessment of the situation, on the administrative side and to take appropriate remedial measures. Hence, it has been considered necessary to entrust the matter on the administrative side to a judge of the High Court, Hon'ble Mr. Justice P.K.S. Baghel who has been nominated in the matter will submit a report on all aspects including those having a bearing on the need to ensure safe and orderly conditions of work in and the proper discharge of judicial functions by the district courts of the State of Uttar Pradesh. The report would indicate appropriate remedial measures.” 5. The said enquiry was conducted by one of us (Justice P.K.S.Baghel). The Enquiry Judge has submitted its report to the Hon'ble Chief Justice and was approved by the Administrative Committee on 04.09.2015. 6. The Enquiry Judge has made a study on depth on the falling standard of the Bar across the State. The Chapter IV of the report deals with the said aspect. The material part of the report is extracted in extention: “.........The Law Commission in its Fourteenth Report had expressed its deep concern about falling standard of the Bar. The Commission had considered the situations prevailing in the 1950s. Its report was submitted in 1958. The report of the Law Commission could not get due attention by various stakeholders. It would be inappropriate for the Committee to make any comment on a statutory body, Bar Council of India, but now BCI itself has admitted that “situation is slipping out of hand” and “Sadly, this profession has fallen under a cloud.” 3. The report of the Law Commission could not get due attention by various stakeholders. It would be inappropriate for the Committee to make any comment on a statutory body, Bar Council of India, but now BCI itself has admitted that “situation is slipping out of hand” and “Sadly, this profession has fallen under a cloud.” 3. Observation of Bar Council of India: In the year 2014, the Bar Council of India itself has painted a very gloomy picture of legal profession in the statement of objects and reasons of recently framed statutory rule: “Bar Council of India Certificate of Practice and Renewal Rules, 2014”. The statement of objects and reasons for enacting the said rule was that it was felt by the Bar Council that a definite trend was visible that the situation is slipping out of the hands of the advocates who practice law. The Bar Council has also expressed its concern over the falling standard of legal profession and it felt urgent need for laying down some conditions for practicing law in different courts. *** *** *** Under these circumstances it appears that a definite trend is visible that the control of Bar Associations and of other elected bodies under the Advocates Act is slipping out of the hands of the advocates who practice law. It is also being experienced that after certificate of enrolment is issued to an advocate, practically no communicative and continuing contact survives between him and the Council. *** *** *** The Bar Council of India has also come to know that a number of fake (farzi) persons (without any Law Degree or enrolment certificate) are indulged in Legal practice and are cheating the Litigants, courts and other stakeholders; and neither the Bar Associations nor the concerned State Bar Councils have any control over such fake persons. Shockingly, it has come to the notice of the Council that at some places, the office-bearers of Bar Associations or some vote-seekers knowingly make such people members and voters of their Associations with a motive to get their votes in the elections of Bar Associations or Bar Councils. Similarly, many persons, after getting enrolled as Advocates in any State Bar Council, get involve in Property- Dealings, contract or switch over to some other business, profession or job and have no more concern with the Legal profession. Similarly, many persons, after getting enrolled as Advocates in any State Bar Council, get involve in Property- Dealings, contract or switch over to some other business, profession or job and have no more concern with the Legal profession. Such “non-practicing Advocates” are sometimes being used by some of the office-bearers/candidates for elections of Bar Associations or Bar Councils (only for their votes). But in fact, the Council has realized that such practice is degrading the standard of Legal profession, and this malpractice has to be stopped. *** *** *** 4. Suggestions of the First Law Commission: The Law Commission in its Fourteenth Report, while dealing with falling standard of the Bar, made several suggestions. It aptly observed as under: “1. A well–organized system of judicial administration postulates a properly equipped and efficient Bar. .… 2. The evidence given before us reveals a general consensus that there is a fall in efficiency and standards at the Bar. The recent recruit to the profession is said to be inferior in his legal equipment, less pains-taking and in a hurry to find work. *** *** *** 55. ...The overcrowding in the profession is undoubtedly one of the causes which has contributed to the growth of the evil. Persons entering the profession, whose economic conditions make it impossible for them to wait before they can start earning a living or who have waited without success, are driven to these practices in their struggle for existence. It not infrequently, happens, however, that lawyers who have been driven to these practices in the earlier stages of their career in their need to earn a living continue these practices even after they have gathered considerable practice at the Bar and some of them even after they have attained seniority in the profession...... *** *** *** 6. Declining standard of Bar - An example : While dealing with the falling standard of the Bar, I wish to venture about the standard of High Court's Bar. I am not oblivious of the fact that I am transgressing the terms of reference. But in the larger interest of the Institution, I wish to draw the attention to the present standard of young lawyers. I am not oblivious of the fact that I am transgressing the terms of reference. But in the larger interest of the Institution, I wish to draw the attention to the present standard of young lawyers. This Court in the case of Sandeep Patel and others v. State of U.P. and others, Writ-C No. 17720 of 2014, decided on 03 April 2014, has extracted the pleadings of a writ petition and quoted the same extensively in the judgment, as under: “2. Some of the paragraphs of the writ petition need to be quoted, which are as under; "3. That the matter is very urgent because the respondents taking the counseling on 15-03-2014 which petitioners are very loss if not stay the B.T.C. Counseling. 3A- That the all petitioners O.B.C. categories. The petitioners in the merit list in B.T.C. Counseling 2013, so that petitioner No. 1 namely Sandeep Patel counseling in Allahabad district and others counseling district Faizabad/ Ambedkar. 5. That the petitioner No. 1 selected the district Allahabad and 9 others district choice of alternative chances if district Allahabad paid the free seat and then other district select by the petitioner. And petitioners No. 2 to 5 select the district the Ambedkar and 9 others district alternative free paid of the aforesaid district. For kind perusal of this Hon'ble Court a photo copies of the choice of district is being filed herewith and marked as ANNEXURE NO. 2 to this writ petition. 6. That the petitioners after counseling informal final selected list and others districts option of the available aforesaid mentioned. For kind perusal of this Hon'ble Court a photo copies of the selection list is being filed herewith and marked as ANNEXURE NO. 3 to this writ petition. 7. That the petitioners are available chances of the free seat in others districts which 9 alternative districts aforesaid mentioned. 8. That the Respondents publicity in Daily News Paper (Dainik Jagran) 7 March, 2014 declare of the B.T.C. Counseling dated 15-03- 2014 and other alternative option full free paid of the B.T.C. Seat then will be fill up paid seat in aforesaid district. For kind perusal of this Hon'ble Court a photo copies of the Daily News Paper (Dainik Jagran) is being filed herewith and marked as ANNEXURE NO. 4 to this writ petition. 9. That the petitioners are belong poor family. For kind perusal of this Hon'ble Court a photo copies of the Daily News Paper (Dainik Jagran) is being filed herewith and marked as ANNEXURE NO. 4 to this writ petition. 9. That the petitioners are belong poor family. The petitioners selected the in merit list of B.T.C. 2013. 11. That the petitioner No. 6 is SC. candidate belong to poor family. The petitioner No. 6 is select candidate in B.T.C. Session 2013 which multiple marks 207.51 and select option of 10 district. For kind perusal of this Hon'ble Court A photo copy of the allotted district is being filed herewith and marked as ANNEXURE NO. 6 to this writ petition. 13. That the respondents not available to aforesaid district choice of the petitioner No. 6, so that respondents are act illegal." 3. When the matter was taken up, some Senior Advocates, namely, Sri P. N. Saxena, Sri Ashok Khare, Sri R.K. Ojha and Sri G.K. Singh were present in the Court. They also expressed their concern on the falling standard of the Bar. One of the learned Senior Advocates gave a suggestion that like Supreme Court this Court may also consider to hold some examination for Junior Advocates.” Most of the Judges of the High Court have also expressed their deep concern about such type of pleadings which has become a commonplace even in the civil side. Similar is the situation in the District Courts also. 7. Need to frame rules likewise Advocate-on-Record of the Supreme Court : The Supreme Court in the case of R.K. Anand (supra) has considered this issue and has issued directions to the High Courts to frame the Rules for holding examinations like the Advocate-on-Record for High Courts and courts subordinate thereto. Paragraph-243 of the judgment reads thus: “243. In order to avoid any such controversies in future all the High Courts that have so far not framed rules under Section 34 of the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped that all the High Courts shall frame the rules within four months from today. In order to avoid any such controversies in future all the High Courts that have so far not framed rules under Section 34 of the Advocates Act are directed to frame the rules without any further delay. It is earnestly hoped that all the High Courts shall frame the rules within four months from today. The High Courts may also consider framing rules for having Advocates-on- Record on the pattern of the Supreme Court of India.” (Emphasis supplied) It is significant to mention that there is a direction of this Court also in the case of Committee of Management, Sri Shankar Shiksha Prasar Samiti and another v. State of U.P. and others, 2009 (2) AWC 1871 All, wherein this Court has issued a direction on the judicial side to conduct an examination. The direction of the Court as contained in paragraph-29(3) of the judgment, which is relevant for the purposes, is quoted below: “3. Rules relating to Advocate on Record, as framed by the Supreme Court of India should also be framed by the High Court, by which, one advocate is made answerable and responsible for receiving affidavit, counter-affidavit, rejoinder-affidavit, notices, etc. and would also be made answerable to the Court and adjournment could only be sought by that counsel in the Court.” It is noteworthy that in compliance of the direction of the Supreme Court, the High Court of Judicature at Patna has framed the rules, called as “Registration of Advocates as Advocates-on-Record of the Patna High Court Rules” and added the said Rules as Sub-Part “D” in Chapter XXIV, Part V of the Patna High Court Rules, 1916. 8. Conclusion: Rules relating to Advocate-on-Record are, therefore, a crying need of our times but have remained a far cry. If we continue to blink over this issue further, an irreversible situation will arise. In future the operation of the rule can be extended phase-wise to cover District Courts also.” 7. In the State of U.P. the law colleges were run by Universities and in some of the affiliated/associated colleges. After the legal education has been made part of the Bar Council's function, in Uttar Pradesh in last decade more than 50 (fifty) colleges have been recognized by the Bar Council. These colleges are self financed and the standard of education imparted in these colleges are disappointing. After the legal education has been made part of the Bar Council's function, in Uttar Pradesh in last decade more than 50 (fifty) colleges have been recognized by the Bar Council. These colleges are self financed and the standard of education imparted in these colleges are disappointing. The law graduates from these self financed colleges are getting enrolled in the High Court as an advocate and without any experience of work in any court these untrained law graduates from self financed private institutions are the main cause for the concern regarding the standard of the Bar. These fresh graduates did not get training from the chamber of the senior lawyers and the district courts. Hence, in absence of any training or good educational background they cannot be expected to integrate to the high standard tradition, and professed proficiency which is required for practising in the High Court. Recently, the Madras High Court has also considered the same issue in WP (MD) No.7257 of 2019, A.Kannan v. High Court of Madras and others. In which the Court has issued certain directions for the improvement of the standard of the Bar. Some of the observations made therein are extracted hereunder: “....Now, a new trend has crept in the legal profession, namely, the Law Graduates after coming out the Law Colleges without any experience in the legal profession, start appearing before the court without even given the material details in the affidavit and arguing the matters. As a result, the Court is unable to effectively adjudicate the matters. There is no assistance from those Lawyers. It requires at least 3 to 5 years experience in Senior's office, so that, they will be able to know from the Seniors as to what are all the particulars to be collected from the parties, how a petition/plaint should be drafted and what are all the things to be omitted and how the case should be presented before the Court and how the queries raised by the Court could be answered by the Advocate. Though they have the fundamental knowledge, without the basic procedures followed by the Trial Courts, they venture into the legal profession, which makes very difficult for the Courts to render justice effectively. 3.....This Court faced a lot of problems because of inexperienced Advocates appearing before the Court, without knowing the basic procedures. The effort of Mr. Though they have the fundamental knowledge, without the basic procedures followed by the Trial Courts, they venture into the legal profession, which makes very difficult for the Courts to render justice effectively. 3.....This Court faced a lot of problems because of inexperienced Advocates appearing before the Court, without knowing the basic procedures. The effort of Mr. Kannan, Petitioner in person, has to be appreciated and his efforts are only to enhance the quality of advocacy and only persons who have got knowledge in law and procedure which could be tested by an examination, could be allowed to appear before the Court. 5. …..This court has got power under Article 225 and 226 of the Constitution of India, apart from Section 34 of the Advocates Act to frame such Rules, like, the Supreme Court Rules, 2013. Only those who are qualified in the examination to be conducted by the Court as per the proposed new Rules, the Supreme Court Rules, 2013, the Advocate with sound knowledge in law would be made as Advocate on Record. This exercise will enable the Court to get good assistance from the Advocates on Record and it is necessary to use the judicial time qualitatively. Prescribing such Rules is not to get away any individual Advocate or section of Advocates from the High Court. It is only to test the knowledge of the Advocates who would be in a better position to adjudicate the matters effectively. Any advocate who has got sound knowledge in law and in current position of law and the latest judgments could easily crack the said test.” 8. Some other High Courts have also framed the Rules in compliance of the judgment of the Supreme Court in R.K.Anand (supra) case. It is high time that this Court should also consider to frame the Rule in the line of the other High Courts to arrest the deterioration of standard of legal profession which also affect the entire justice delivery system. 9. As discussed above, the enquiry report of the Enquiry Judge was approved by the Hon'ble Administrative Committee on 04.09.2015 and a resolution was taken to authorize the Hon'ble Chief Justice to take appropriate remedial action. 10. 9. As discussed above, the enquiry report of the Enquiry Judge was approved by the Hon'ble Administrative Committee on 04.09.2015 and a resolution was taken to authorize the Hon'ble Chief Justice to take appropriate remedial action. 10. In view of the above, we request the Hon'ble Chief Justice to consider the remedial measure suggested in the enquiry report in the light of the facts recorded in this order and the directions of the Hon'ble Supreme Court in R.K.Anand (supra). 11. In the present case, having regard to the facts mentioned above, we do not find any ground to interfere in the matter. The writ petition is, accordingly, dismissed.