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Ravi Kiran JaIn and ors. Vs. Bar Council of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 2860 of 1974
Judge
Reported inAIR1975All190
ActsAdvocates Act, 1961 - Sections 15; Evidence Act, 1872 - Sections 115; Advocates Rules - Rules 4, 20 to 31, 32 and 32(5); Constitution of India - Article 226
AppellantRavi Kiran JaIn and ors.
RespondentBar Council of U.P. and ors.
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateB.N. Verma, ;V.K. Khanna, ;A.K. Yog, ;R.C. Verma, Advs., ;V.C. Mishra in person, ;G.C. Dwivedi, ;Chand Kishore, ;M.A. Ansari and ;V.S. Saran, Advs.
DispositionPetition dismissed
Excerpt:
civil - electoral roll - section 15(2) and rules 4(a), 32(5) of advocates act, 1961 - rule 4(a) lays down preliminary electoral prepared after the expiry of 120 days is valid - advocate given his name after date of election is postponed - eligible to contest the election because rule 4 lays down names should be enrolled before 75 days of the date of election - all ballot boxes can not called invalid when the tampering of voting paper has been found against one candidate and the candidate has been removed. (ii) writ - article 226 of constitution of india - statutory remedy is available under the advocate act and the rules - court does not interfere with election dispute under article 226 - statutory tribunal is the proper forum. - - 81. the bar council of uttar pradesh, the.....k.n. singh, j. 1. ravi kiran jain, an advocate of this court, and sixteen other advocates have filed the present petition under article 226 of the constitution challenging validity of the election of respondents nos. 6 to 30 as members of the bar council of uttar pradesh. the petitioners have claimed relief for the issue of a writ, order or direction in the nature of certiorari quashing the election of respondents nos. 6 to 30 and the resolution of the bar council dated 31st march, 1974 constituting election tribunal, and for the issue of a writ, order or direction to the bar council of india to take recourse to sub-section (2) of section 48b of the advocates act, 1961, and to hold fresh elections under its auspices according to law. 2. the bar council of uttar pradesh, the bar council of.....
Judgment:

K.N. Singh, J.

1. Ravi Kiran Jain, an Advocate of this Court, and sixteen other Advocates have filed the present petition under Article 226 of the Constitution challenging validity of the election of respondents Nos. 6 to 30 as members of the Bar Council of Uttar Pradesh. The petitioners have claimed relief for the issue of a writ, order or direction in the nature of certiorari quashing the election of respondents Nos. 6 to 30 and the resolution of the Bar Council dated 31st March, 1974 constituting Election Tribunal, and for the issue of a writ, order or direction to the Bar Council of India to take recourse to Sub-section (2) of Section 48B of the Advocates Act, 1961, and to hold fresh elections under its auspices according to law.

2. The Bar Council of Uttar Pradesh, the Bar Council of India and the Returning Officer Sri R.K. Kaul, who conducted the election, and the Advocate-General of Uttar Pradesh have been arrayed as respondents In addition to that, respondents Nos. 6 to 30 who have been declared elected to the Bar Council of Uttar Pradesh have been arrayed as respondents. Further the other candidates who contested the election and also the members of the erstwhile Bar Council whose term expired have also been arrayed as respondents. The Superintendent, Government Printing and Stationery, U. P. Allahabad, has also been arrayed as respondent No. 81. The Bar Council of Uttar Pradesh, the Bar Council of India as well ,as the newly elected members of the U. P. Bar Council, respondents Nos. 6 to 30 have filed counter-affidavits and contested the petition.

3. Briefly, the facts giving rise to the present petition are that the term of the members of the Bar Council of Uttar Pradesh expired on 4th April, 1973. According to the provisions of the Advocates Act and the Rules framed thereunder the preparation of electoral roll should have been done within 120 days before the expiry of the term of members of the Bar Council but this was not done. The electoral roll was, however, published on 29th August, 1973, and a notification was issued fixing the election programme according to which polling was to take place for election of members on 5th and 6th November, 1973. Subsequently, the Bar Council postponed the election and fixed 7th and 8th January, .1974, but on 4th November, 1973 the Bar Council postponed the election sine die. Thereafter Ravi Kiran Jain petitioner filed Writ Petn. No. 7113 of 1973 = (reported in AIR 1974 All 211) challenging the action of the Bar Council in postponing the election and for the quashing of the resolution of the Bar Council dated 4th November, 1973. During the pendency of the writ petition the Bar Council of Uttar Pradesh, vide its resolution dated 25th December, 1973, fixed 15th and 16th April, 1974, for holding of election. On behalf of the Bar Council of Uttar Pradesh an undertaking was given to this Court in that Writ Petition that there would be no further postponment of the election; the writ petition was thereupon dismissed. The contention of Ravi Kiran Jain that the Bar Council had no jurisdiction to change the dates fixed for holding the election was rejected The judgment is reported in AIR 1974 All 211. Thereafter the elections were held on 15th and 16th April, 1974. The seventeen petitioners including Ravi Kiran Jain and respondents Nos. 6 to 30 along with others contested the election. After the polling counting commenced on 25th April, 1974, and continued up to 7th May, 1974. The results of the election of all the members of the Bar Council, respondents Nos. 6 to 30, were declared by 8th May, 1974. All the 1.7 petitioners were eliminated. Instead respondents Nos. 6 to 30 were declared elected as they had obtained majority of valid votes. But before the results of the election could be notified in the Official Gazette the present petition was filed by the seventeen unsuccessful candidates challenging the validity of the election as aforesaid.

4. Sri Bashir Ahmad, learned counsel for the petitioners, urged that the entire election was null and void because the electoral roll was not prepared within 120 days of the expiry of the term of the elected members of the Bar Council of Uttar Pradesh as required by Rule 4 (a) and (b) of the Bar Council of India Rules framed in exercise of the powers contained in Section 15(2) of the Advocates Act. He further urged that those Advocates who were enrolled after 29th August, 1973, were not entitled to be included as voters in the electoral roll. Since the electoral roll which is the essence of the election was vitiated the entire election was rendered void. In that context the learned counsel further urged that once the date for holding election had been fixed by the Bar Council and 7th and 8th January, 1974 for polling, the Bar Council was divested of its power to alter dates of election or to fix the election programme afresh. These very questions had been raised by Ravi Kiran Jain in Writ Petn. No. 7113 of 1973 = (reported in AIR 1974 All 211), but these contentions were repelled and it was held that the Bar Council did not exceed its jurisdiction in changing dates of election and that it acted within its jurisdiction in postponing the date and fixing dates for polling. The contention that the electoral roll had been prepared in violation of Rules 4 (a) and 4 (b) was also repelled. A Special Appeal had been filed against that judgment by Ravi Kiran Jain but he did not press the same and got that appeal dismissed by making a statement that since the election was being held the Special Appeal had been rendered infructuous, although the contention with regard to invalidity of the election on the ground of electoral roll was very much alive even at that stage. We are in agreement with the reasons recorded in the judgment in AIR 1974 All 211. We find no good reason to take a different view.

5. The Bar Council of India has framed rules under Section 15 of the Advocates Act, 1961 (hereinafter referred to as 'the Act') for preparation of electoral roll and prescribing disqualifications for membership. Rules 4 (a) and 4 (b) are contained in Chapter I of Part III of the Rules framed by the Bar Council of India relating to the preparation of electoral roll.

Rule 4 (a) and (b) read-

'4 (a) A preliminary electoral roll containing the names of all Advocates whose names are required to be included under these rules shall be put up on the notice board of the State Council within 120 clear days before the expiry of the term of the members of the said State Council necessitating the election and relevant portions thereof shall be sent to such Bar Associations as the Secretary considers fit.

(b) The final electoral roll shall be prepared after incorporating such changes as may be necessary including the addition of the names of Advocates enrolled after the preparation of the preliminary roll and put up on the notice board of the State Council not more than 75 clear days and not less than 60 clear days before the date of election. Intimation of such publication shall be given within a week after the publication to the Bar Associations aforesaid.'

The above rules contemplate preparation of a preliminary electoral roll containing names of all Advocates, which should be prepared within 120 clear days before the expiry of the term of the members of the State Bar Council. The preliminary electoral roll is required to be sent to the Bar Associations of the State, so that objections, if any, may be filed and the mistakes if any could be corrected. The preliminary electoral roll prepared under Rule 4 (a) is finalised under Rule 4 (b) which lays down that the final electoral roll should be prepared after incorporating such changes as may be necessary including addition of names of Advocates enrolled after the preparation of the preliminary electoral roll. Once the final electoral roll is prepared it is required to be published on the notice board of the State Bar Council between 60 to 75 days from the date of election, intimation of the publication of the final electoral roll is required to be given to the State Bar Council within a week of the date of publication. Admittedly, in the present case, the preliminary electoral roll was not prepared within 120 clear days before the expiry of the term of the members of the State Bar Council. On the other hand, the preliminary electoral roll was prepared later on. In our opinion, however, that does not affect the validity of the electoral roll. The preliminary electoral roll is aways a tentative one which is prepared to give opportunity to those who may be interested in getting the entries in the electoral roll corrected. The requirement of Rule 4 (a) for preparation of preliminary electoral roll within 120 days before the date of expiry of the term of members of the State Bar Council is directory and not mandatory. The rules do not indicate that the roll if prepared beyond 120 days from the expiry of the term of the members would be invalid.

6. As already noted Rule 4 (b) requires that the final electoral roll must contain the names of Advocates enrolled after the preparation of the preliminary electoral roll and the same should be put up on the notice board of the State Bar Council not more than 75 days and not less than 60 clear days before the date of election. On a careful analysis of Rules 4 (a) and 4 (b) it is clear that the final electoral roll must contain the names of those Advocates who may be enrolled after the preparation of the preliminary electoral roll and the electoral roll must contain the names of those Advocates who may be enrolled prior to 75 days or 60 days as the case may be before the date of election. Rule 4 (b) itself contemplates that the final electoral roll must contain the names of all the Advocates who may be enrolled after the preparation of the preliminary electoral roll. In the instant case the election was held on 15th and 16th April, 1974, and the final electoral roll was published in August, 1973. Originally, the election was fixed for 5th and 6th November, 1973, but as already noted earlier the State Bar Council postponed the election and fixed 7th and 8th January, 1974. But the election could not take place and it was again postponed and finally the election could be held on 15th and 16th April, 19,74. Meanwhile, the names of all those Advocates who had been enrolled after the preparation of the preliminary electoral roll were included in the final electoral roll in accordance with the requirements of Rule 4 (b). We find no illegality in the procedure followed by the State Bar Council in preparation of electoral roll.

7. It was then urged that the State Bar Council had no jurisdiction to alter the dates fixed for election and to fix 15th and 16th April, 1974. In pur opinion the argument is wholly misconceived. Similar argument was raised by petitioner No. 1 in Writ Petn. No. 7113 of 1973 = (reported in AIR 1974 All 211) which was repelled by this Court and a Special Appeal had been filed against that judgment but Ravi Kiran Jain made a statement and got the appeal dismissed. We are in agreement with the reasons recorded in the judgment in Writ Petn. No 7113 of 1973 = (reported in AIR 1974 All 211).

8. Moreover, as already discussed even if Rule 4 (b) was not strictly con -plied with the election was not vitiated. The State Bar Council had jurisdiction to fix dates of election and it could postpone the dates or refix the same. Neither the statute nor the rules framed thereunder place any restriction on the exercise of the power of the State Bar Council. In the absence of any such restriction, we do not find any justification to accept the interpretation as suggested by the petitioners which would divest the Bar Council of its jurisdiction to fix or alter dates for election. The petitioners relied on the observations made in Mohd. Yunus Salim v. Sheo Kumar (AIR 1974 SC 1218). In that case the Supreme Court held that the Election Commission had power to alter the dates of poll and in coming to that conclusion the Supreme Court referred to Section 30 of the Representation of the People Act and Section 20 of the General Clauses Act. The case of Mohd. Yunus Salim does not assist the petitioner, rather it supports the respondents' contention and the view taken in Writ Petn. No. 7113 of 1973 = (reported in AIR 1974 All 211).

9. Sri Bashir Ahmad then placed reliance on Baidyanath Panjira v. Sita Ram Mahto (AIR 1970 SC 314) and Governor of Himachal Pradesh v. Avinash Sharma (AIR 1970 SC 1576) in support of his contention that once notification was issued .and the Bar Council fixed dates of election, the names of Advocates who were enrolled thereafter could not be included in the 'elctoral roll and the Bar Council had no jurisdiction to alter the dates originally fixed for election. In Baidyanath Panjira's case the Supreme Court no doubt held that Electoral Registration Officers or the Chief Electoral Officer had no jurisdiction to correct any entries in the electoral roll or to include new names in the electoral roll after the last date for nomination in that constituency and before the completion of that election. In coming to that conclusion the Supreme Court referred to Section 23 of the Representation of the People Act, 1950, which expressly curtailed the powers of the Electoral Registration Officers by laying down that no amendment, transposition or deletion of any entry shall be made and no direction for the inclusion of a name in the electoral roll after the last date for filing nomination paper in that constituency and before the completion of that election shall be made. There is no provision like Section 23(3) of the Representation of the People Act, 1950, either in the Advocates Act or in the Rules framed thereunder. On the other hand Rule 4 (b) contemplates inclusion of the names of Advocates in the electoral roll before 75 days of the date of election.

In Governor of Himachal Pradesh v. Avinash Sharma (AIR 1970 SC 1576) the Supreme Court held that once possession was taken by the Governor in pursuance of proceedings under the Land Acquisition Act, the land vested in the Government. In that situation the land could not revert back to the original owner by mere cancellation of the notification issued under the Land Acquisition Act acquiring that land. In that connection the Supreme Court observed that the provisions of Section 21 of the General Clauses Act could not be invoked to cancel the notification so as to revert the land to the original owner by mere cancellation of the notification because there was no provision in the Land Acquisition Act that the land statutorily vested in the. Government could revert back to the owner by mere cancellation of the notification. In the instant case the election had not been completed and as such the law laid down by the Supreme Court in the case of Governor of Himachal Pradesh is not applicable to the facts of the present case.

10. Sri Bashir Ahmad then urged that all those candidates who had filed nomination prior to 5th and 6th November, 1973, had a vested right to contest the election. That right could not be taken away by fixing fresh dates later on. We do not find any substance in this contention. There is no material before us that any of the petitioners except Ravi Kiran Jain had filed nomination paper by 31st October, 1973, and as such no vested right could accrue to any of them. Originally, the Bar Council by its notification dated 29th August, 1973, required that nomination papers were to be filed between 17th and 30th September, 1973, and polling was fixed for 5th and 6th November, 1973. There is no averment in the petition that the petitioners had filed nomination paper prior to 30th September. 1973. If the petitioners' contention is accepted only those candidates who had filed their nomination paper between 17tb and 30 September, 1973, could validly contest the election because by filing nomination paper a vested right had accrued to them. But before the expiry of the period fixed for filing nomination paper the Bar Council altered dates thereafter nomination papers could be filed upto 31st October, 1973, as the date of polling was fixed for 7th and 8th January, 1974. It was at that stage that Ravi Kiran Jain filed his nomination paper for contesting the election. In the circumstances, even if the petitioners' contention is accepted to be correct, none of the petitioners had any vested right to contest the election as none of them had filed nomination paper within the time fixed for filing of the nomination papers at the initial stage. If the Bar Council had no jurisdiction to alter dates only those persons who had filed their nomination paper between 17th to 30th September. 1973 had vested right to contest the election and in that situation none of the petitioners could have any vested right because none of them had filed nomination paper between 17th to 30th September 1973. In that situation the petitioners cannot raise any grievance against the violation of any of their vested rights. Moreover the petitioners themselves filed their nomination paper later on and contested the election held on 15th and 16th April. 1974. After contest when they were unsuccessful they cannot turn round and contend that those who filed nomination papers after 30th September, 1973, had no right to contest the election.

11. Sri Bashir Ahmad, learned counsel for the petitioners, then urged that a number of illegalities and irregularities were committed during the counting of votes. Some of the employees of the Bar Council were in collusion with the contesting candidates and they resorted to tampering and various other illegalities. He referred to the allegations contained in various paragraphs of the writ petition making allegations against Sri H.K. Agarwal, Deputy Secretary of the Bar Council. It was alleged that Sri H.K. Agarwal is related to Raja Ram Agarwal, who is the outgoing Chairman of the Bar Council and he is his henchman. He was openly working for the candidature of R.R. Agarwal and H.K. Agarwal put the seal of R.R. Agarwal on the ballot papers and he acted in various other ways to support the candidature of R.R. Agarwal. R.R. Agarwal, respondent No. 6, has filed his own affidavit denying the allegations. H.K. Agarwal has also filed his own affidavit refuting the allegations made against him. Since the allegations have been denied and no positive material has been placed before us, we do not consider it desirable to record a positive finding on this question as in our opinion the question can be raised before the Election Tribunal if and when an election petition is filed by the aggrieved party. Suffice it to say that on the material on record we are not in a position to record any finding against R.R. Agarwal or against H.K. Agarwal.

12. Sri Bashir Ahmad then referred to the allegations contained in paragraphs 24 to 31. These paragraphs contained allegations against the Returning Officer and other members of the staff of the Bar Council. These allegations have been denied by the Returning Officer Sri R.K. Kaul. The petitioners then placed strong reliance on the allegations that on 6th May, 1974, when the counting was going on Sri S.P. Singh a stenographer of the Bar Council, was caught red-handed while tampering with the ballot papers. It is alleged that Sri S.P. Singh was tampering the ballot papers and recording preference in favour of S.N. Misra, respondent No. 34, who was a candidate at the election and was losing and in that process he was caught red-handed by the agents of Kamta Nath and M.P. Singh. An application was made to the Returning Officer who recovered 31 ballot papers and declared those ballot papers invalid and removed S.P. Singh from the place of counting. These allegations have been admitted by R.K. Kaul, the Returning Officer. He has stated that on 6th May, 1971, at about 5.30 or 6 p.m. a complaint was received against S.P. Singh that he was tampering ballot oapers by marking preference in favour of S.N. Misra; since it was fag end of the day he stopped the counting and spared the services of S.P. Singh from the counting work. On 7th May 1974, the candidates and their representatives pointed out some ballot papers, approximately 30 in number, which contained over-writings made in favour of S.N. Misra. He examined those ballot papers and he came to the conclusion that those ballot papers had been tampered with; thereupon he declared those ballot papers invalid. The votes recorded in those ballot papers were not counted for S.N. Misra. But the preferences recorded in favour of other candidates in those ballot papers were taken into account because there was no addition or alteration or tampering in those preferences. S.N. Misra, respondent No. 34, has vehemently denied the allegations made by the petitioners and the Returning Officer. He asserted that on 6th May, 1974, he was not present at Allahabad and that S.P. Singh had no connection with him and if S.P. Sineh was caught tampering his ballot papers it was the result of well-laid conspiracy at the instance of those who were in power in the Bar Council with a view to malign and defame him.

13. We have considered the respective versions carefully and examined the affidavits and the alleged tampered ballot papers. In our opinion the petitioners' contention that some tampering of ballot papers was done on 6th May, 1974, is correct. There is, however, no sufficient material before us to hold that S.P. Singh had been set up by the adversaries of S.N. Misra to implicate him in this matter or that S.P. Singh had been tampering the ballot papers with a view to further the candidature of S.N. Misra with his consent or knowledge. The determination of this question would require recording of evidence, examination and cross-examination of witnesses. In our opinion enquiry into this matter can appropriately be done by the Election Tribunal trying the election petition.

14. Sri Bashir Ahmad urged that since the election was held by single transfer voting system the entire election was vitiated as admittedly some of the ballot papers were tampered. According to the learned counsel tampered ballot papers which were rejected by the Returning Officer on 7th May, 1974, affected the entire election, therefore this Court should quash the entire election and forthat reason it was not necessary to file any election petition. He placed reliance on Shankar v. Sakhararn (AIR 1965 SC 1424), R.M. Seshadri v. G. Vasantha Pai (AIR 1969 SC 692) and Jagannath Rao v. Raj Kishore (AIR 1972 SC 447). We have considered these cases but in our opinion none of these cases are applicable to the facts of the present case.

15. The Bar Council of Uttar Pradesh has framed rules in exercise of the powers under Section 15(2) of the Advocates Act. These Rules have been approved by the Bar Council of India. These rules contemplate that the election to the Bar Council shall be held by single transferable vote. Rule 20 lays down the method of voting. Clause (3) of Rule 20 lays down that the voting paper shall not be signed by any voter. Voting paper containing any erasures, alterations, over-writings or signatures of the voters purporting to have given vote shall not be counted for the purpose of election. According to this rule any vote recorded on a voting paper containing erasures, alterations, or signatures of a voter shall not be taken into account. Rules 26, 27 and 28 lay down the procedure for counting and for purpose of exclusion of unsuccessful candidates. Rules 30 and 31 lay down procedure for determining the result. The rules thus contemplate the counting and examination of ballot papers several times with a view to determine the result. It was admitted by the learned counsel for the parties that 63 rounds of counting were done before final result could be determined. In the sixty-third counting S.N. Misra was eliminated and the final result was determined. The tampering of the voting papers was made on 6-5-1974 during the 59th round of counting, before that no tampering was discovered or even alleged. It has been asserted by the respondents that the ballot papers which were tampered on 6th May, 1974, had earlier been scrutinised by the Returning Officer, the candidates and their agents were present at the counting but no tampering had been found in those ballot papers prior to 6th May, 1974. No complaint had been made to the Returning Officer prior to 6th May, 1974.

16. Since there was no tampering in the preferences recorded in favour of other candidates in the disputed ballot papers, the Returning Officer had counted the preferences in favour of those candidates. It was for the first time that grievance about tampering was made before the Returning Officer on 6-5-1974 at the 59th counting. We have ourselves examined the disputed ballot papers. On a close scrutiny we found that there was no alteration, overwriting, erasure or tampering in respect of preferences recorded for other candidates on those ballot papers. On the other hand, the alterations and overwritings were only in the preferences recorded in the column of S.N. Misra. It is thus clear that the votes recorded in favour of other candidates were not tampered. Therefore the election of those who had already been declared elected could not be vitiated on account of the tampering of ballot papers done on 6-5-1974.

17. Moreover, the entire ballot papers could not be declared invalid in a situation where the voter himself did not make any alteration or erasure or signature, instead some outside agency made overwriting at a subsequent stage. It is a cardinal rule of election law that the intention of the voter must be given effect to, therefore, if an elector gives preference to various candidates of his choice those preferences must be given effect to. In a case where doubt may arise on account of the erasure or alteration made in a particular preference the same may not be taken into account but the mere fact that some outside agency had; made alteration in one of the preferences cannot be sufficient to render the entire ballot papers vitiated. Learned counsel for the parties have jointly filed a chart showing the various counting and the elimination of the defected candidates. A perusal of the same shows that Sri S.N. Misra was eliminated in the 63rd counting on 7th May, 1974. and the alleged tampering was made on 6th May, 1974 during the 59th round of counting. In the circumstances it is clear that the election of all those candidates who had been declared elected prior to 6th May, 1974, could not be vitiated by the tampering which is alleged to have taken place on 6th May, 1974. In the circumstances we are of the opinion that the entire election was not vitiated. No doubt tampering in some of the ballot papers was done but to what extent it affected the result of election can only be decided by the Election Tribunal.

18. Section 15(2)(d) of the Election Rules, 1968, (sic) lays down that a dispute relating to election shall be decided in the manner prescribed in the rules. Rule 32 makes provision for raising election disputes and its adjudication by an Election Tribunal constituted under Clause (4). The election tribunal is invested with powers to dismiss the petition, to order recount, to declare any candidate to have been duly elected on a recount and to set aside the election of candidates. The Tribunal is further invested with power to declare a vacancy. The procedure required to be followed by the Tribunal has also been laid down. The Act and the Rules therefore require that any dispute relating to election should be decided in the manner prescribed by the rules. A statutory Tribunal has been created by the Act and the Rules conferring special jurisdiction on that Tribunal to decide election disputes. The law has created a special forum for the redress of any grievance arising out of the election; the aggrieved party, therefore, must follow that remedy before that forum. It is well established principle that if a statutory remedy is available under the Act and the Rules normally this Court does not interfere with election disputes under Article 226 of the Constitution and the aggrieved party should pursue his remedy before the statutory tribunal. In the instant case the petitioners can raise the various grievances which they have raised in this petition relating to the illegality and irregularity committed at the election, e.g. the irregularities committed at the counting or tampering of ballot papers or wrong determination of the result of the counting. All these questions can be raised before the Tribunal under Rule 32 and the tribunal has ample power to investigate the allegations and if it considers necessary it may order recount and scrutiny of the ballot papers. It was urged on behalf of the petitioners that the rules do not specify grounds for setting aside the election of a member and as such the power of the Tribunal was restricted. There is no substance in the contention. In our opinion, Clause (6) of Rule 32 confers wide powers on the Tribunal to direct scrutiny of ballot papers, to recount ballot papers and to set aside the election of a candidate or declare casual vacancy. Absence of specified grounds for setting aside election does not restrict the power of the Tribunal. On the other hand the absence of specified grounds widens the scope of power of the Tribunal (See Sheo Baran Singh v. Civil Judge, Fatehpur, 1964 All LJ 180). The petitioners may, therefore, pursue their remedy before the Tribunal.

19. It was then urged on behalf of the petitioners that Sub-rule (5) of Rule 32 required the Bar Council to constitute election tribunal before the date on which the time of the election was fixed under Rule 4. In the instant case since election tribunal was not constituted before the date on which the time of the election was fixed, the Election Tribunal has not legally been constituted, therefore the tribunal has no jurisdiction to hear or decide any election petition. The Election Tribunal was constituted on 31-3-1974 although the date of election was notified on 31-1-1974. The Election Tribunal was thus constituted after the date of election was fixed. In our opinion even if the Election Tribunal was not constituted on or before the date on which the time of election was fixed as required by Sub-rule (5) of Rule 32, but that did not render the constitution of the Election Tribunal invalid. It is true that the rule required the Bar Council to constitute the Election Tribunal before the date of election was fixed, but if the Bar Council could not constitute the Tribunal prior to that date, its power to constitute the Tribunal was not taken away or exhausted. The Bar Council's failure to constitute the Tribunal prior to the fixing of the date of election did not adversely affect the right of any person. The requirement of time fixed under that rule for the performance of a public duty by the Bar Council is not mandatory, instead it is directory. It is a well established principle that where the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of that duty would work serious general inconvenience or injustice to persons who had no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, such provisions should be construed as being directory only and not imperative (See Vithaldas Kedar Nath v. Income-tax Officer, AIR 1969 All 390). Rule 32 (5) confers a public duty on the Bar Council to constitute Election Tribunal for adjudicating election disputes. This public duty is required to be performed in the interest of the general members of the Bar so that disputes arising out of election should be adjudicated judicially by the Tribunal. If the petitioners contention is accepted the non-performance of that public duty by the Bar Council would create a situation where no Election Tribunal would be available for adjudication of election disputes. In that situation the aggrieved persons would be left with no remedy, even though the aggrieved persons had no control over the Bar Council for the constitution of the Tribunal within time and had not committed any default. Keeping all these aspects and circumstances in mind we are of the opinion that the requirement of time for the constitution of Election Tribunal is only directory and not mandatory. The delay in constituting the Tribunal did not take away the power of the Bar Council to perform its public duty and the constitution of the Election Tribunal is not rendered invalid or illegal. 20. Lastly, it was urged that two members of the Election Tribunal viz., Jalil Ahmad and A. P. Tewari took active part in the election and as such they were biased and disqualified to be members of the Election Tribunal or to adjudicate the election disputes. Reliance was placed on the allegations contained in paragraphs 22, 33 and 38 of the writ petition. Jalil Ahmad and A.P. Tewari, two members of the Election Tribunal have filed counter-affidavits and they have denied the allegations. They have asserted that they were not interested in the election of respondent No. 6, Raja Ram Agarwal, or in the election of any other candidate. They did not take part in the election. They were, however present at the office of the Bar Council to attend the meeting of the Bar Council at the time when counting was going on. Raja Ram Agarwal has also denied the allegation that members of the Tribunal took part in the election. The allegations made by the petitioners in paragraphs 22 and 38 of the petition are vague and general. No specific act has been assigned either to Jalil Ahmad or to A.P. Tewari. The petitioners have made vague allegations which have been denied by the respective members of the Election Tribunal. We are of the opinion that the petitioners have failed to establish that the members of the Election Tribunal are biased or that they took any active part in the election. In these circumstances the petitioners' contention that the members of the Election Tribunal are disqualified to adjudicate the election disputes must fail.

21. In the result the petitioners are not entitled to any relief in the present proceedings under Article 226 of the Constitution. The petition fails and is accordingly dismissed with costs.


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