1. The applicants are members of the Bar. In their applications they seek to have the election of the opposite parties, who are also members of the Bar, as members of the Bar Council, declared null and void.
2. The opposite parties were declared duly elected as members of the Bar Council on 11th August 1934. The applicants challenge their election on the ground that the Bar Council elections were held under rules which were not in force at the time the elections took place. The applicant, Mr. Baleshwari Prasad, challenges the election of the opposite parties on certain other subsidiary grounds. The opposite parties did not oppose the application and were not represented before the Tribunal.
3. By Section 6, Bar Councils Act, of 1926, provision is made for the framing of rules governing amongst other matters the manner in which elections of members of the Bar Council shall be held. Sub-section (2), Section 6 is in the following terms:
The first rules under this section shall be made by the High Court, but the Bar Council may thereafter, with the previous sanction of the High Court, add to, amend or rescind any rules so made
4. Under the powers conferred upon it by the Bar Councils Act the High Court of Judicature at Allahabad in the year 1926 framed rules for the holding of Bar Council elections. These rules came into force on 1st June 1928. A Bar Council election was held hi the months of June, July and August 1934. Prior to this election the Bar Council under the powers conferred upon it by Section 6(2), Bar Councils Act, framed new rules under which the election was to be held. These rules were approved of by the Bar Council and received the sanction of the High Court. They were published in the local Gazette on 14th July 1934. Prior to this date however on 21st April 1934, in the local Gazette, the Bar Council modified dates for the reception and secutiny of nomination papers, the issue and return of voting papers, the counting of votes and announcement of elections. Nomination papers were to be returned between 25th June and 7th July. The scrutiny of the nomination papers was to be held on 8th and 9th July. The return of the ballot papers which were issued for the purpose of election was to be before or on 7th August. Counting of votes was fixed for 8th, 9th and 10th August. The announcement of the result of the election was to be made on 11th August.
5. The election which the applicants now seeks to be declared invalid was conducted under the rules which were published on 14th Julyl934. The nomination, scrutiny, election, counting of votes and the announcement took place upon the dates notified in the local Gazette of 21st April 1934. The contention of the applicants is that inasmuch as the amended rules were not published in the Gazette in accordance with provisions of Section 18, Bar Councils Act, they were not in force on the dates when the nomination of candidates and, the scrutiny of nomination papers took place and that therefore the whole proceedings in connection with the elections are fundamentally vitiated. The main question for our decision is whether the rules which were published on 14th July 1934 under which admittedly the Bar Council elections were held, were in force between 25th June and 11th August 1934.
6. If the rules published on 14th July 1934, were not in force between these two dates we were inclined to the view that the election of the opposite parties is invalid. It is not necessary however for us to make any pronouncement on this matter. In the view we take of the main contention of the applicants, namely, that the rules under which the election was held were not in force during the period of the nomination and the scrutiny of the nomination papers, the question of the effect of the alleged non-compliance with the old rules does not arise.
7. The applicants contended that although the new rules may have been passed prior to 25th June, they did not come into force until they were published in the official gazette in accordance with Section 18, Bar Councils Act. Section 18 is in the following terms:
All rules made under this Act shall be published in the Local Official Gazette of the province, or of each Province, as the case may be, in which the High Court by which or with whose sanction the rules are made exercises jurisdiction,
8. The contention of the applicants is that since the provisions of Section 18 are mandatory no rules passed under Section 6' Bar Councils Act, can come into force, until they are published in the local official Gazette. In our view this contention is untenable. Had the legislature intended that rules framed under Section 6(2), Bar Councils Act, should not come into force until the publication of these rules in the local official Gazette it would have said so in specific terms. The applicants ask the Tribunal to read into Section 18, Bar Councils Act, a provision which is not there. They were unable to suggest, any sufficient reason for so extending the perfectly plain and simple provisions of the section. Learned Counsel for the Bar Council, who appeared before the Tribunal and was allowed to address the Tribunal in the capacity of amicus curie, contended that wherever the legislature intended that rules made under statutory enactments should be published before they come into force it has made special provision to that effect. In support of his argument he referred to Section 79, Sub-section (3), Provincial Insolvency Act. By this sub-section it is declared that all rules made under this section shall be published in the Gazette of India or in the local official Gazette, as the case may be, and shall on such publication have effect as if enacted in this Act. The intention of the legislature clearly was that publication should be a condition precedent to the rules coming into effect. Thus the words 'on such publication' are inserted in the sub-section. No such words however appear to Section 18, Bar Councils Act. Learned Counsel for the Bar Council referred further in this connection to the Guardians and Wards Act, Section 50. Sub-section (2). In this section it is enacted in specific terms that certain rules shall not have effect until they have been approved by the Local Government and published in the official Gazette. It seems to us that one of the grounds on which a statutory rule or a byelaw may be treated as ultra vires is that it has not been made, sanctioned and published in the manner prescribed by the statute which authorises the making of that rule (See Craies on Statute Law, p. 266). Section 18, Bar Councils Act, provides that all rules made under this Act shall be published in the local official Gazette of the province in which the High Court, by which or with whose sanction the rules are made, exercises jurisdiction. It provides only for the manner of the publication of the rules but in our opinion it does not make the publication of these rules in the local official Gazette a condition precedent to their coming into force.
9. We are satisfied that there is no force in the contention of the applicants that the rules under which the Bar Council elections were held and which were published on 14th July 1934 did not come into operation until that date.
10. Learned Counsel for the Bar Council was requested to file an affidavit to prove that the new rules had been framed and passed in accordance with the provisions of Section 6, Sub-section 2, Bar Councils Act. According to this affidavit the rules were passed by the Bar Council on 18th February 1934. The rules were submitted in accordance with the above sub-section to the High Court on 27th February 1934. The rules were approved by the High Court and approval was intimated by letters dated 29th March 1934. Learned Counsel for the applicants contended that the Bar Council in framing the new rules had not observed the provisions of Section 6, Sub-section (2) of the Act and therefore these rules were invalid and the election held under the rules was null and void. From the affidavit filed by Mr. Kamla Kant Varma it appears that the Bar Council appointed a subcommittee to frame the rules under Sub-section (2), Section 6, Bar Councils Act, The sub-committee reported in due course and the rules suggested by them were passed by the Bar Council. Thereafter these rules obtained the sanction of the High Court. The contention of learned Counsel for the applicants was that, inasmuch as the rules were not again passed by the Bar Council after they had received the sanction of the High Court, the provisions of Sub-section (2), Section 6 had not been strictly complied with. It is true that the Bar Council had approved of the rules before they received the sanction of the High Court. We are are satisfied however that there was substantial compliance with the provisions of the Act though the procedure enjoined in the section was not strictly followed as it should certainly have been. The omission on the part of the Bar Council, which is a statutory body strictly to follow the provisions of the law as laid down in Section 6(2) is no doubt to be regretted, but in in our opinion it does not amount to an illegality. It is no more than an irregularity and it has not been shown to us that that irregularity has in any manner prejudiced the applicants.
11. We hold therefore for reasons above given, that the rules under which the Bar Council elections were held were passed in accordance with the provisions of the statute and that they were in force at the time when the elections were held.
12. We now proceed to consider the other grounds upon which the validity of the election is challenged in the application of Mr. Baleshwari Prasad, lie has contended in the first place that the election is invalid in respect that Rule 2(1) framed by the Bar Council was not complied with, secondly, that Rule 4(1) framed by the Bar Council was not complied with. The chairman of the Bar Council, it is alleged, did not publish any notice in the local official Gazette calling for nomination by advocates; the only notice published in the Gazette was in the issue of 21st April 1934, fixing dates for nomination and election. Thirdly, it is alleged that many advocates who were on the rolls of the advocates of the High Court were practising in Oudh, Delhi, Ajmere and Native States and that no notice was sent to the District Judge or Bar Associations of these places as required by Rule 1. No nomination form or list was sent out to these places, although ballot papers were sent. Fourthly, it is objected that whilst according to Rule 4(1) of the Rules any advocate was entitled to nominate an advocate who was on the rolls on the date fixed for nomination, that is, 8th July 1934, he could in fact nominate under Rule 2(1) only those advocates who were enrolled two and a half months before the elections and whose names were entered in the list. Fifthly, The proceedings were irregular as certain nomination papers were not received by post and were not handed over personally and that they were therefore it was argued invalid and should have been rejected; the contention being that the words 'delivered by hand' meant 'delivered personally.' Sixthly, it was argued that, certain nomination papers were not received in envelopes bearing on the outside the words 'Bar Council nomination' and that these nomination papers, were invalid and should have been rejected. Seventhly, it was objected that the votes of advocates who were in Government 'State service should not have been counted, as during the period of their service they were technically outside the jurisdiction of the High Court and not entitled as of right to practice in the High Court. Eighthly, it was contended that certain directions printed in the ballot papers were misleading and contrary to the rules and this irregularity invalidated the election.
13. We consider it quite unnecessary to deal with all these objections to the validity of the Bar Council election individually. None were admitted by the Bar Council or supported with evidence by the applicant. It may well be that there were certain irregularities in the conduct of the Bar Council election. But before a Court will set aside an election because of any or all of these irregularities it must be satisfied that the election was not an election in substance conducted under existing election law according to the rules framed for the holding of the Selection. The law upon this matter has 'been clearly laid down in Woodward v. Sarsons (1875) 10 C.P. 733 and Islington (1901) 5 O'm & H. 125. Commenting upon the first case Rogers in Vol. 2 of his book on the law of elections states:
As a rule it way be said that to whatever extent the provisions of an Act of Parliament are violated even wilfully, if it does not enact that the consequences of those Acts void the election the election will not be invalidated.
14. In the Islington case Kennedy and Darling, JJ., stated:
Our opinion is that an leection ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinates in the conduct of an election where the Court is satisfied that the election was made in substance conducted under the existing law, and that the result of the election, that is, the success of the one candidate over the other, was not, and could not have been affected by those transgressions.
15. Now learned Counsel for Mr. Baleshwari Prasad has failed completely to show that any of the irregularities which are set forth in the application were committed with any corrupt motive or that they could possibly have affected the result of the election. To take as an example one of the alleged irregularities. Learned Counsel contended that certain advocates who were on the rolls as a result of the rules passed by the Bar Council and the fixing of the dates for nomination and election were not eligible for nomination, nor could they nominate or vote at the election. He referred to those advocates whose names were placed upon the rolls after the notice in regard to nomination and holding of the election. His complaint was that as a result of the rules passed by the Bar Council, advocates enrolled between 15th May 1934 and 7th August. 1934 could not vote, nor could any other advocate nominate or vote for them. It is inevitable in the very nature of things that a certain number of advocates who may be on the rolls at the time of the election cannot be nominated where the names are placed upon the rolls after the date fixed for final nomination. Be that as it may, it appears from the affidavit, filed by the Bar Council that only two gentlemen were enrolled as advocates during this period and we can hardly believe that a responsible body like that of a professional electorate would nominate or elect to the Bar Council advocates whose total period of professional life was not more than two months or so, or that the exclusion of these two advocates from the election could legitimately be treated by a professional electorate like that of the advocates as a grievances. It cannot be seriously contended that the fact that these two advocates could not be nominated or could not nominate or vote themselves, had any effect at all upon the result of the Bar Council election.
16. We are satisfied that none of the irregularities referred to in Mr. Baleshwari Prasad's application, assuming that there were these irregularities, had any effect, or could have any effect, upon the result of the Bar Council election. In the result we dismiss both applications.
17. We take this opportunity of directing the attention of the Bar Council to the necessity of reconsidering and refraining many of the rules which they have passed under Section 6, Bar Councils Act. We specially direct their attention, to the fact that there is no provision in these rules limiting the time within which an application for the setting aside of an election may be filed. This is in our opinion a grave omission which should be remedied before the next Bar Council election.
18. We would further direct the attention of the Bar Council to the misleading heading of the notification of the new rules published in the local Gazette of 14th July 1934. The notification is headed as follows : 'In accordance with Rule 3, Bar Councils Act, No. 38 of 1926, it is hereby notified' etc. There is no 'Rule 3' of the Bar Councils Act and we are at a loss to understand how the notification should have been so inaccurate.
19. In conclusion we must state that the Bar Councils themselves are responsible in no small measure for these proceedings in which it is sought to have the Bar Council election set aside. Quite clearly they have failed to comply strictly with the letter not only of the Bar Councils Act but of rules which they have framed in pursuance of the power conferred upon them by the Act. Had they complied strictly with the provisions of the Act and with their rules the election would never have been challenged as it has been by the applicants. We are clearly of the opinion that the new rules should have been published long before 14th July. We are further of the opinion that the notification in the Gazette of 21st April should have been framed with strict accuracy. We are frankly astonished that in the framing of their rules and in the conduct of the election the Bar Council should have been so slack and slipshod in their methods as to provide the applicants with the grounds for preferring these applications. In our opinion it is incumbent upon a statutory body to strictly follow the law to which it owes its creation and existence and the rules which are framed in accordance with the statute creating it and de fining its powers and duties. This is, in our opinion, all the more incumbent, in the case of a learned and professional body like the Bar Council, which must be presumed to know the law and its implications.
20. At the end of the arguments learned Counsel for the Bar Council asked for costs. We are not disposed to allow any costs in view of our observations in regard to the unsatisfactory character of the rules and the irregularities committed by the Bar Council some of which, though not fatal to the election which has been held, seems to us to be grave.