Hon'ble Mahesh Chandra Tripathi,J.
Zafar M. Naiyer, a designated Senior Advocate of this Court, is before this Court, assailing the validity of the proceedings, so undertaken by the U.P. State Bar Council, in reference of complaint dated 7.12.2012 filed by one Sunil Nangia, opposite party no. 2.
Brief background of the case, as is emanating from the record in question, is that in reference of Nazool Plot No. 31situated at Thornhill Road having an area of 8082.53 square meter, a small chunk of the said area measuring 229.09 square meter bearing plot no. 31-A and B was sold by Narayan Das Pahuja to Smt. Kanchan Khare on 1.12.2000. In reference of the same large area of the land in question by another sale-deed dated 4/5.10.2001 Narayan Das Pahuja sold 40.205 square meter of land of plot no. 31-A and B part, Thornhill Road, Allahabad and internal page 9 of the said sale deed in question following boundaries have been mentioned:
Sale deed dated 4/5.10.2001 in favour of Kanchan Khare for 40.205 square meter East- One wide passage on which purchaser shall have independent uninterrupted facility of passage for use by purchaser.
West- Plot of Kanchan Khare North- Plot of Kanchan Khare South- Plot No. 31-A Part on which 20 feet wide road which connects Thornhill Road.
In reference of the same large area of the land in question by third sale-deed dated 4.6.2002 Dinesh Pahuja s/o Narayan Das Pahuja sold an area of 10.776 square meter of land to Smt. Kanchan Khare. In the body of the writ petition the respective boundaries as given in the sale deed in question as far as petitioner is concerned he has purchased the aforesaid land from Smt. Kanchan Khare vide registered sale deed dated 24.7.2010 and therein following mention has been made;
Sale deed dated 24.7.2010 East- A wide passage where purchaser shall have independent uninterrupted exclusive right of user.
West- Part of plot no. 31-A North- Part of plot no. 31-A South- 2 ½ feet road widening and thereafter 25 feet road.
By an instrument of sale deed dated 17.2.2001 Narayan Das Pahuja sold bungalow no. 3 of Site No. 31-A Civil Station Road Allahabad (area 513-67 square meters) having a covered area 211.8 square meter and open area of the land measuring 301.876 square meter the boundaries are of the sale deed are given below;
Sale deed dated 17.2.2001 N.D. Pahuja Vs. P.N. Nangia Boundaries of the sale deed dated 17.2.2001 executed by Narayan Das Pahuja in favour of P.N. Nangia and Sunil Nangia in respect of bungalow no. 3 situated at site no. 31-A Civil Station Road, Thornhill Road, Allahabad for an area of 513.676 square meter in which covered area 211.8 square meter and an open land of 301.876 square meters.
East- Bunglow of Sri S. Gupta West- Road size 20 feet wide upto length enclosed in map.
North- Open land of seller.
South- Open land of first party.
Vide sale deed dated 18.3.2005 Chitra Pahuja widow of Narayan Das Pahuja sold 444.77 square meter of land of plot no. 23 to Sudarshan Promoters and Builders through its partner Sri Shrawan Das Hotwani. Boundaries of the said sale deed are enumerated as follows;
Sale deed dated 18.3.2005 Boundaries of the sale deed dated 18.3.2005 executed by Smt. Chitra Pahuja widow of Narayan Das Pahuja in favour of Sudarshan Promoters & Developers through his partner Shrawan Das Hotwani relating to plot no. 31 A (part) area of 444.77 square meter at page 13 of the sale deed.
East- Houses of others West- Part of 31-A and plot of Kanchan Khare North- 24 feet wide public road for entry, exit and free hold premises no. 31-A plot number 23, Civil Station, Thornhill Road.
South- Bungalow no. 3 and 9 feet wide passage on which 3rd party shall have uninterrupted independent right of passage as shown in the map.
Petitioner claims that after the purchase of the house in question as is envisaged under U.P. Urban Planning and Development Act, 1973 plan in question was sanctioned by the Allahabad Development Authority and therein private passage has been shown. Petitioner submits that with the said private passage in question Sunil Nangia has got no concern but unnecessarily claim was being set-up by him in reference to the said property in question and, accordingly, he has proceeded to make a complaint in reference of the said passage in question. Petitioner submits that this passage has been bone of the contention inter-se parties and this much is also reflected that execution proceedings were ongoing as Sunil Nangia has come up with the specific case that in a suit, that has been so filed, the sale deed executed in favour of Smt. Kanchan Khare has been declared to be null and void and, accordingly, petitioner has got no right over the passage in question.
Petitioner, on the other hand, has been claiming his right over the passage in question and this much fact has also come forward that in execution proceedings petitioner has entered appearance and has objected to the same on 16.11.2012. The claim of Sunil Nangia has been that in spite of the fact that petitioner has got no concern with the property in question, even then on account of his profound influence and in active collusion of other advocates a gate in question has been installed and in this regard complaint has been made and on the said complaint the Allahabad Development Authority has proceeded to pass order in his favour and, in view of this, as petitioner has proceeded to misuse his privilege as a lawyer, accordingly, complaint to the State Bar Council has been made. This much is reflected from the record in question that the State Bar Council, in its turn, has proceeded to entertain the said complaint in question and, accordingly, vide resolution dated 2142 of 2012 has passed the following resolution:
"Read the complaint of Sri Sunil Nangia against Sri Zafar M. Naiyer, Advocate.
The Bar Council of U.P. has perused the contents of the complaint and has reason to belief that the Advocate concerned is prima facie guilty of professional misconduct/other misconduct. Accordingly it is resolved that the complaint, is therefore, referred to the Disciplinary Committee for disposal, according to law."
Accordingly, State Bar Council has referred the matter to the Disciplinary Committee and, thereafter, petitioner has appeared before the Disciplinary Committee and, thereafter, petitioner is before this Court with the grievance that the entire proceedings are nullity for the reason that private disputes cannot be subject matter of enquiry by the U.P. State Bar Council.
On the presentation of the writ petition in question this Court proceeded to entertain the writ petition in question and passed the following order;
"The petitioner is Senior Advocate. His grievance is that on a complaint lodged by the respondent no. 2 with the respondent no. 1 (Uttar Pradesh Bar Council), action has been initiated against the petitioner. The submission of the learned counsel for the petitioner is that the complaint is with regard to the civil dispute and has nothing to do with any professional conduct of the petitioner and as such, the complaint with the Bar Council and the action taken on such complaint is wholly unjustified.
In our view, the matter requires consideration.
Issue notice to the respondents fixing a date immediately after six weeks.
All the respondents may file counter affidavit by the next date.
Considering the facts and circumstances of this case and keeping in view the aforesaid submissions of the learned counsel for the petitioner, it is directed that the proceedings of Disciplinary Case No. 365 of 2012 pending before the respondent no. 1 shall remain stayed."
Against the order passed by this Court, this much is reflected that U.P. State Bar Council has proceeded to file special leave to appeal No. 27547 of 2013 and Apex Court in its turn refused to entertain the said special leave to appeal and as pleadings before this Court was complete, following order was passed;
" It has been submitted by the learned counsel that the pleadings are over in the High Court. In view of the said fact, we desire that the High Court should decide the writ petition pending before it, preferably within two months from today.
The Special Leave Petition is, accordingly, disposed of."
Counter and rejoinder affidavits have been filed both on behalf of U.P. State Bar Council as well the private incumbent, who has proceeded to make complaint and rebuttal has also been filed to the same and, thereafter, present matter has been taken up for final hearing and disposal.
Sri Umesh Narayan Sharma, Senior Advocate, has submitted before this Court that private dispute in question pertaining to the property cannot be settled and specially when matters are pending/engaging the attention of Court of competent jurisdiction, in view of this, the complaint, that has been made before the U.P. State Bar Council ought not to have been entertained in mechanical manner, as it has been done in the present case and, as such,this Court should intervene in the facts of the case as a Senior Advocate of this Court should not be left to suffer harassment and victimization though by a statutory body, who is proceeding to exercise statutory powers, and in the present case entire exercise would be an exercise in futility and, accordingly, writ petition deserves to be allowed.
Sri Rakesh Pande, Advocate, has submitted that on its face value there is a typical dispute pertaining to the property in question and here additionally in the present case conduct of an Advocate of this Court is also involved in reference to the said property dispute and, accordingly, U.P. State Bar Council is right at the point of time when it has proceeded to take cognizance of the matter and has referred the matter before the Disciplinary Committee and whatever issues are being raised by the petitioner can be very well raised before the Disciplinary Committee and, as the Advocate Act is a self contained act there are various forums provided for against the final action, so taken, in view of this, at this interlocutory stage of proceedings when merely petitioner has been asked to show cause, no interference be made by this Court.
Sri V.C. Srivastava, Advocate, appearing with Smt. Sunita Sharma, Advocate, submitted before this Court that a deliberate, wilful and designed attempt has been made by the petitioner to grab the property in question without any authority of law and the conduct that has been shown by a practising advocate, is not befitting to a member of noble profession, required to be maintained by the petitioner, in view of this, U.P. State Bar Council has rightly proceeded to take cognizance in the matter and till date no final decision has been taken, as such, once the proceedings are in mid way no interference be made by this Court, as has been so requested by the petitioner.
After respective arguments have been advanced the factual situation that is so emerging in the present case is that both the petitioner Zafar M. Naiyer as well as Sunil Nangia have proceeded to purchase the property in question out of big chunk of land situated at Thornhill Road having an area of 8082.53 square meters which was leased out in favour of G.R. Garden on 21.12.1912 and the Garden has further transferred the rights to Sri Prithvi Nath and on his death his wife Jagat Rani and daughters Kamla Kaul and Vimla Raina became the lessees. Kamla Kaul died in 1980 leaving behind sons Ravi Kaul, Vikram Kaul and a daughter Rajni Saxena. Likewise Smt. Kamla Kaul died living G.S. Raina as son and Mala Tankha as daughter and on account of partition in the year 1984 pursuant to the decree in suit no. 1975 the property in question devolved upon the aforesaid heirs and they nominated Narayan Das Pahuja, who has secured free hold rights after making payment as per the government policy and it is Narayan Das Pahuja who has proceeded to carve out various plots and sold them in different parcels to different individuals. Based on the same transaction has been made in favour of Kanchan Khare and in favour of Sunil Nangia. This much is also reflected from the record in question that in reference of Kanchan Khare suit in question has been filed and the said suit in question has been decreed on 23.3.2016 wherein sale deed dated 4.10.2001 has been declared to be invalid.
Counsel representing Sunil Nangia was asked by us to give full details of pending proceedings in Courts qua the property in question. Details furnished are that against the order dated 23.3.2006 passed by Judge, Small Causes in O.S. No. 655 of 2005 (P.N. Nangia Vs. Smt. Kanchan Khare), appeal has been filed by Smt. Kanchan Khare and same has been informed to be pending. Petitioner in his turn has moved an application under Order IX Rule 13 of CPC for setting aside order dated 23.3.2016 and same is also pending and engaging attention of the concerned Court. Not only this against the order dated 16.9.2013 passed by the Allahabad Development Authority for removal of encroachment over passage, petitioner has preferred writ petition No. 55017 of 2013, Zafar M. Naiyar Vs. State of U.P. & others. It has been informed by parties that there is an interim order.
Record in question reflects that execution proceedings have been undertaken and in the said execution proceedings the complainant Sunil Nangia has proceeded to make a complaint as to in what way and manner the decree in question has been flouted and breached and this much is reflected from the record that Judge, Small Causes, Allahabad, on 7.12.2013 has proceeded to pass an order mentioning therein that decree holder has concealed the true facts in the Court and impleaded those who were not the party in the original suit and they cannot be proceeded with in execution proceedings. Thus all these facts clearly go to show and substantiate that the parties to the dispute are litigating over the property in question, that has been shown as passage in the sale deed in question.
The entire dispute is with reference to the passage in question qua which in the sale deed mention has been made that purchaser shall have independent uninterrupted facility of passage for use by purchaser. It is in reference of this portion that the entire dispute is on and the issue is before the competent civil court. The issue is once the matter is pending and engaging the attention of civil court as well as in reference of construction in question the matter is pending before this Court, was U.P. State Bar Council in its turn right in proceeding to entertain the matter and refer the matter, as has been done in the present case, to the Disciplinary Committee.
Before we proceed further, the relevant statutory provisions are being looked into. The Advocates Act, 1961 was introduced to amend and consolidate the law relating to legal practitioners and to provide for constitution of Bar Council of India and State Bar Council.
Chapter V of the Act relates to the Conduct of Advocates. Chapter V contains sections 35 to 44. Sub-section (1) of Section 35 on the interpretation of which in the light of the facts on record, hinges the fate of this writ petition, may be noted.
"35. Punishment of advocates for misconduct-
(1) Where on receipt of a complaint or otherwise, a State Bar Council has reason to believe that any advocate on its roll, has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee."
Section 35 states that where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct that inquiry to be made by another disciplinary committee of the State Bar Council. The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case and shall cause a notice to be given to the advocate concerned and to the Advocate- General of the State. The disciplinary committee of the State Bar Council may make any of the following orders namely, (a) dismiss the complaint, or where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed, (b) reprimand the advocate, (c) suspend the advocate for such period as it may deem fit, (d) remove the name of the advocate from the state roll of advocates.
Section 36 speaks of disciplinary powers of the Bar Council of India and provides that where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee. The disciplinary committee of the Bar Council of India may either of its own motion or on a report by any State Bar Council or on an application made to it by any person interested, withdraw for inquiry before itself any proceeding for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
Section 37 speaks of appeal to the Bar Council of India. This section states that any person aggrieved by an order of the disciplinary committee of a State Bar Council or the Advocate-General of the state may, within sixty days of the date of communication of the order, prefer an appeal to the Bar Council of India.
Section 38 provides for appeal to the Supreme Court. Section 38 states that any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37 or the Attorney-General of India or the Advocate-General of the State, as the case may be, may prefer an appeal to the Supreme Court.
Section 49 of the Act provides that the Bar Council of India may make rules for discharging its functions under the Act and in particular such rules may prescribe inter alia the standards of professional conduct and etiquette to be observed by advocates. The Bar Council of India in exercise of the rule making power under section 49(c) of the Act on 10 and l l July, 1954, approved the rules of standards of professional conduct and etiquette. The standards of professional conduct and etiquette are described in five sections. The first section deals with duty of advocates to the Court. The second section speaks of duty of advocates to the clients. The third section consists of rules regarding duty of advocates to opponent. The fourth section prescribes duties of advocates to colleagues. The fifth section lays down restrictions on advocates on other employments.
Said statutory provision has been subject matter of consideration/interpretation by the Courts time and again. Seven Judges Constitution Bench of the Apex Court in the case of Bar Council of Maharashtra Vs. M.V. Dabholkar & Ors., (1975) 2 SCC 702, after analysis of Chapter V of the Advocates Act relating to conduct of the advocates, has observed in paragraph 24 of the report as under.
"24. The scheme and the provisions of the Act indicate that the constitution of State Bar Councils and Bar Council of India is for one of the principal purposes to see that the standards of professional conduct and etiquette laid down by the Bar Council of India are observed and preserved. The Bar Councils therefore entertain cases of misconduct against advocates. The Bar Councils are to safeguard the rights, privilege and interests of advocates. The Bar Council is a body corporate. The disciplinary committees are constituted by the Bar Council. The Bar Council is not the same body as its disciplinary committee. One of the principal functions of the Bar Council in regard to standards of professional conduct and etiquette of advocates is to receive complaints against advocates and if the Bar Council has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. The Bar Council of a State may also of its own motion if it has reason to believe that any advocate has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee. It is apparent that a State Bar Council not only receives a complaint but is required to apply its mind to find out whether there is any reason to believe that any advocate has been guilty of professional or other misconduct. The Bar Council of a State acts on that reasoned belief. The Bar Council has a very important part to play, first, in the reception of complaints, second, in forming reasonable belief of guilt of professional or other misconduct and finally in making reference of the case to its disciplinary committee. The initiation of the proceeding before the disciplinary committee is by the Bar Council of a State. A most significant feature is that no litigant an no member of the public can straightaway commence disciplinary proceedings against an advocate. It is the Bar Council of a State which initiates the disciplinary proceedings."
Again in paragraph 31 of the report, it has been held as under.
"31. .................. The Bar Council acts as the protector of the purity and dignity of the profession. Third, the function of the Bar Council in entertaining complaints against advocates is when the Bar Council has reasonable belief that there is a prima facie case of misconduct that a disciplinary committee is entrusted with such inquiry. ............... "
In the above noted case before the Apex Court, the issue was with respect to maintainability of an appeal by the Bar Council as an aggrieved person under the Act. Another Bench of Apex Court while deciding the merits of the said case reported in (1976) 2 SCC 291, Bar Council of Maharashtra Vs. M.V. Dabholkar, the question as to what would amount to satisfaction of the requirement of reason to believe, answered the issue as under.
"........... The requirement of 'reason to believe' cannot be converted into a formalised procedural roadblock, it being essentially a barrier against frivolous enquiries. It is implicit in the resolution of the Bar Council, when it says that it has considered the complaint and decided to refer the matter to the disciplinary committee, that it had reason to believe, as prescribed by the statute."
In view of the aforesaid exposition of law by the Apex Court, the least required is that there should be a resolution that Bar Council had considered the complaint and finding that there was a prima facie case, the matter is being referred to a disciplinary committee.
Once again matter came up before the Apex Court in the case of Nandlal Khodidas Barot Vs. Bar Council of Gujarat & Ors., 1980 (Supp.) SCC 318. In the said case, the Bar Council of Gujarat passed a resolution referring several complaints against different advocates to the disciplinary committee of the Bar Council. The resolution which was under consideration before the Apex Court, reads as under.
"Resolved that the following complaints be and are hereby referred to the Disciplinary Committee of the Bar Council."
Apex Court in the said case taking into account the resolution mentioned that resolution does not even say that State Bar Council had considered the complaint and found that there was prima facie case. It was held that the reference by the State Bar Council was incompetent and that being so the proceedings before the Disciplinary Committee of Bar Council of Gujarat and transfer to Bar Council of India were invalid.
Apex Court in the case of Noratanmal Chouraria Vs. M.R. Murli and another, 2004 (5) SCC 689, has construed the word 'misconduct' and has also proceeded to construe the word 'misconduct' in the context of Section 35 of the Advocates Act. The relevant paragraphs 7 to 13 are as follows;
"7. Misconduct has not been defined in the Advocates Act, 1961. Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, "improper behaviour intentional wrong doing or deliberate violation of a rule of standard or behaviour":
8. Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law.
9. In Delhi Cloth & General Mills Co. Ltd. vs. Its Workmen reported in (1969) 2 LLJ 755, Shah, J. stated that misconduct spreads over a wide and hazy spectrum of industrial activity; the most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical default covered thereby.
10. This Court in State of Punjab and Others vs. Ram Singh Ex. Constable, reported in 1992 (4) SCC 54, noticed:-
"5. Misconduct has been defined in Black's Law Dictionary, sixth Edition at Page 999 thus:-
"A Transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, it synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness".
Misconduct in offence has been defined as :-
"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly and failure to act in the face of an affirmative duty to act".
P.Ramanath Aiyar's Law Lexicon, Reprint Edition 1987 at Page 821 defines 'misconduct thus:-
"The term misconduct implies a wrongful intention, and not a mere error of judgment, Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public official, by which the right of party have been affected."
Thus it could be seen that the word 'misconduct' though not capable of precise of definition, on reflection receives its conotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-manner and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
[See also Probodh Kumar Bhowmick Vs. University of Calcutta (1994 (2) Calcutta Law Journal 456 and B.C. Chaturvedi Vs. Union of India [1995 (6) SCC 749 ].
11. Section 35 of the Advocates Act, however, refers to imposition of punishment for professional or other misconduct. A member of legal profession which is a noble one is expected to maintain a standard in dignified and determined manner. The standard required to be maintained by the member of the legal profession must be commensurate with the nobility thereof. A Lawyer is obligated to observe those norms which make him worthy of the confidence of the community in him as an officer of the court. This Court in Bar Council, Maharashtra V. M.V.Dabholkar [ AIR 1976 SCC 242 ] observed:-
"The high moral tone and the considerable public service the bar is associated with and its key role in the developmental and dispute-processing activities and, above all, in the building up of a just society and constitutional order has earned for it a monopoly to practise law and an autonomy to regulate its own internal discipline."
12. Although the power of the Bar Council is not limited, the thrust of charge must be such which would necessitate initiation of disciplinary proceedings. A professional or other misconduct committed by a member of the profession should ordinarily be judged qua profession. To determine the quantum of punishment which may be imposed on an advocate, the test of proportionality shall be applied which would also depend upon the nature of the acts complained of. No universal rule thus can be laid down as regard initiation of a proceeding for misconduct of a member of the profession.
13. In 'M' an Advocate (supra), however, this court emphasized the requirement of maintaining a high standard stating:-
"As has been laid down by this Court in the matter of 'G', a Senior Advocate of the Supreme Court (A) (supra) the Court, in dealing with cases of professional misconduct is "not concerned with ordinary legal rights, but with the special and rigid rules of professional conduct expected of and applied to a specially privileged class of persons who, because of their privileged status, are subject to certain disabilities which do not attach to their men and which do not attach even to them in a non-professional character ...he ( a legal practitioner) is bound to conduct himself in a manner befitting the high and honourable professional to whose privileges he has so long been admitted; and if he departs from the high standards which that professional has set for itself and demands of him in professional matters, he is liable to disciplinary action."
In the said case before the Apex Court in the case of Noratanmal Chouraria (supra) Disciplinary Committee has considered the conduct of applicant therein in order to judge as to whether the acts on the part of the respondents amount to misconduct in following terms;
"14. The disciplinary committee of the Bar Council of India is a statutory body. At the first instance the duty to arrive at a finding of facts in respect of complaint made against a member of the legal profession is upon it. This court although enjoys extensive and wide jurisdiction under Section 38 of the Act, the opinion of the Bar Council shall carry great weight. The appellant herein had lodged complaint with the State Bar Council on 5.3.1995 in relation to the 3 incidents allegedly occurred on 8.10.1993, 26.10.1993 and 1.3.1995.
15. The Disciplinary Committee had considered the conduct of the appellant herein in order to judge as to whether the acts on the part of the respondents amount to misconduct.
16. There was absolutely no reason as to why the appellant did not make any complaint to the State Bar Council immediately of the incidents which took place on 8.10.1993 and 26.10.1993. If his contention to the effect that in relation to the incident dated 26.10.1993 he had lodged a first information report there was absolutely no reason as to why he did not pursue the same seriously. It is, as has been noticed by the Bar Council of India, accepted that the police filed final forms but despite the same the appellant did not file any protest petition or initiate any other proceeding before criminal court. In relation to the incident dated 1.3.1995 which allegedly took place inside the court room it was expected of the appellant or his advocate, who is said to be a retired district judge, to bring the same to the notice of the court. Even in relation to the incidents allegedly occurred on 8.10.1993 and 26.10.1993 no complaint was made before the presiding officer of the court. No proceeding was initiated in relation to the purported incident on 1.3.1995.
17. Can in the aforementioned fact situation, the findings of the Bar Council, be said to be so irrational meriting interference by this court is the question? We are of the opinion that it is not. We may further place on record that on a querry made by us to Mr. Upadhyay as to whether any other incident had taken place after 1.3.1995, the learned counsel categorically stated that no such incident had thereafter taken place. We are, therefore, of the opinion that the matter need not be pursued further. "
Apex Court, thereafter, has considered the case law in the case of 'M' an Advocate, Hikamat Ali Khan Vs. Ishwar Prasad Arya as well as N.G. Dastane Vs. Shrikant S. Shivde and, thereafter, has concluded that no case has been made out for interfering with the impugned order.
On the parameters of the provisions, quoted above, and the judgements of the Apex Court, this much is clear that as far as petitioner is concerned he is a member of legal profession which is a noble one and is expected to maintain a standard in dignified and determined manner. The standard required to be maintained by the member of the legal profession has to be commensurate with the nobility thereof. A Lawyer is obligated to observe those norms which make him worthy of the confidence of the community in him as an officer of the court and further the thrust of charge must be such which would necessitate initiation of disciplinary proceedings. A professional or other misconduct committed by a member of the profession should ordinarily be judged qua profession.
The parameters of the Court's power of judicial review has also been subject matter of consideration.
The famous "Wednesbury Case" Associated Provincial Picture Houses Ltd. Us. Wednesbury Corp., (1947) 2 All ER 680 (CA) is considered to be landmark in so far as the basic principles relating to judicial review of administrative or statutory direction are concerned. We quote a passage from the judgement of Lord Greene which is as follows:-
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority............... In another, it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."
The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in Council of Civil Service Unions Vs. Minister for the Civil Services, 1984 (3) All ER. 935, (commonly known as CCSU case) as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in this case:-
"..........Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community."
Lord Diplock explained "irrationality" as follows:-
"By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
In Union of India & Anr. Vs. G. Ganayutham, (1997) 7 SCC 463, the Apex Court after referring to the aforesaid two cases namely Wednesbury case and CCSU case held as follows:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the Courts and tribunals in our country can only go into the matter, as a secondary reviewing Court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority;the court/tribunal cannot substitute its view as to what is reasonable."
Justice is an act of rendering what is right and equitable towards one who has suffered a wrong. Therefore, while tempering the justice with mercy, the Court has to be very conscious that it has to do justice in exact conformity to some obligatory law for the reason that human actions are found to be just or unjust as they are in conformity with or in opposition to the law. In Delhi Administration Vs. Gurdip Singh Uban & Ors., (2000) 7 SCC 296, the Apex Court observed as under:-
"The words 'justice' and 'injustice', in our view, are sometimes loosely used and have different meanings to different persons, particularly to those arrayed on opposite sides.............Justice Cardozo said, "The web is tangled and obscure, shot through with a multitude of shades and colours, the skeins irregular and broken. Many hues that seem to be simple, are found, when analysed, to be a complex and uncertain blend. Justice itself, which we are wont to appeal to as a test as well as an ideal, may mean different things to different minds and at different times. Attempts to objectify its standards or even to describe them, have never wholly succeeded." (Selected Writings of Cardozo, PP 223-24; Fallon Publications, 1947)"
Therefore, justice has to be done to both the parties and the case cannot be considered only taking into consideration the interest of one party.
On the parameters, that has been settled by the Apex Court, it may be true that whatever defence is being sought to be raised by the petitioner before this Court, the same can be very well raised before the Disciplinary Committee who can always consider the same, in the facts of the case, as to whether the proceedings, that are being undertaken against the petitioner are correct or not and in consonance with the provisions as are contained under the Advocates Act but here what we find from the record in question is that on complaint being made U.P. State Bar Council has proceeded to take cognizance of the same and has proceeded to refer the matter to the Disciplinary Committee. In normal course of business the Disciplinary Committee has the authority to take the decision followed by right to appeal but here once the entire material is on record should we permit the proceedings to continue or should we proceed to quash the proceedings in question, in the peculiar facts of the case, that has so emerged. What we find that accepted position is that the decree that has been so passed ex-parte in the execution proceedings, that has been so undertaken, request has been made for demolition of construction and site be restored and blockade of road be removed. In the said proceedings objections have been put in by the petitioner and, thereafter, the Executing Court has found favour with the version of petitioner and objection of petitioner against execution of decree has been accepted by the Executing Court. Appeal has already been filed by Smt. Kanchan Khare against the ex-parte decree passed. Petitioner's application for setting aside ex-parte decree under Order IX Rule 13 of CPC is pending and engaging the attention of Civil Court. Coupled with this in reference to the gate being illegally constructed, complaint has been made and Allahabad Development Authority has proceeded to pass order and same has been subjected to challenge before this Court and therein interim order has been passed.
Once such is the factual situation before us that entire matter pertaining to the property in question, as to whether petitioner has got any right or not to use the said passage and to place the gate therein is engaging the attention of Civil Court and as to whether the gate has rightly been constructed or not is engaging the attention of this Court and U.P. State Bar Council as in the complaint it has been mentioned that at the point of time when gate in question has been constructed 15 to 20 advocates had assembled in favour of petitioner, who also appear to be practising advocates and, accordingly, petitioner has committed misconduct of grabbing the passage by erecting gate at one end of passage and erecting wall on the other end.
Accepted position is that petitioner has not committed any professional misconduct and the allegation, that is coming forward, is that he has not at all acted in consonance with the higher standard and has grabbed the passage in question. The question is once there is a dispute in reference of property in question and there are allegation and counter allegation coming forward, then all these issues should be decided by the competent Civil Court and once the said Court proceeds to decide the issues and therein it is found on the basis of evidence that an incumbent has misused its privilege as an Advocate, then, thereafter, in case, any action is required to be undertaken, same can be undertaken, in accordance with law, but till the said issues are not answered by competent court and there is no misconduct on professional front and petitioner has been agitating for his rights, then initiation of proceedings by U.P. State Bar Council cannot be subscribed by us, in the peculiar facts and circumstances of the case at this stage. We would have appreciated the stand of U.P. State Bar Council, if after acquiring knowledge of the fact of the background of the litigation that it was primarily dispute for right of passage and property, that U.P. State Bar Council would defer the matter till verdict comes from the competent court, but here most surprisingly U.P. State Bar Council has not taken such a stand and has been insisting upon to proceed with the matter as incidentally issue of other misconduct was also involved. In view of this, in our considered opinion ongoing proceedings would be abuse of the process for the simple reason that U.P. State Bar Council certainly will not take upon itself to decide the property dispute i.e. the main dispute and the incidental matter that has been referred to U.P. State Bar Council is purely dependent on the main issue as to whether petitioner has exclusive right to the passage and erect the gate, accordingly, the proceedings in question are quashed, at this stage. However, we make it clear that quashing of these proceedings will not at all come in the way of parties to pursue their rights before the appropriate forum and after final adjudication is done by Courts, then in case any misconduct is reflected, the same can be perused as per law.
Writ petition is allowed, accordingly.