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i.M. Lall Vs. Gopal Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ 495-D of 1962
Judge
Reported inAIR1963P& H378
ActsAdvocates Act, 1961 - Sections 57; All India Bar Council (First Constitution) Rules, 1961 - Rule 4; Constitution of India - Article 226
Appellanti.M. Lall
RespondentGopal Singh and anr.
Appellant Advocate R.L. Anand, Adv.
Respondent Advocate R.L. Narula and; R.S. Sandhu, Advs.
DispositionPetition dismissed
Cases ReferredReilly v. Cyril Cuthbert Gittens
Excerpt:
.....single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the..........petition has been made by shri har dev singh, advocate. the respondents in both the petitions are shri gopal singh, advocate, and the committee ot advocates comprising of messrs. b. sen, s. n. andley and j. b. dadachanjee, advocates, appointed by the attorney-genera! of india. the committee was appointed for deciding the dispute regarding the validity of the election of shri gopal singh, respondent, as a member of the all india bar council.2. in the petition under articles 226 and 227, brought by shri i. m. lall, issuance of a writ of certiorari is prayed directing the removal of the record of enquiry held by respondent no. 2, committee of advocates, into the election of respondent no. 1 to the bar council of india and quashing the order of respondent no. 2 to the effect that shri gopal.....
Judgment:
ORDER

Tek Chand, J.

1. These are two writ petitions which can be conveniently disposed of by one order. The petitioner in the first petition is Shri I. M. Lall, Advocate, and the second petition has been made by Shri Har Dev Singh, Advocate. The respondents in both the petitions are Shri Gopal Singh, Advocate, and the Committee ot Advocates comprising of Messrs. B. Sen, S. N. Andley and J. B. Dadachanjee, Advocates, appointed by the Attorney-Genera! of India. The Committee was appointed for deciding the dispute regarding the validity of the election of Shri Gopal Singh, respondent, as a member of the All India Bar Council.

2. In the petition under Articles 226 and 227, brought by Shri I. M. Lall, issuance of a writ of certiorari is prayed directing the removal of the record of enquiry held by respondent No. 2, Committee of Advocates, into the election of respondent No. 1 to the Bar Council of India and quashing the order of respondent No. 2 to the effect that Shri Gopal Singh had been validly elected as member of the All India Bar Council.

3. The relevant facts giving rise to the two petitions are that under the Advocates Act of 1961 it is required that there should be a Bar Council of India, consisting inter alia of one member elected by each State Bar Council from amongst its members. The Bar Council of Delhi had to elect one member to the Bar Council of India from amongst its members. This election had to take place under the All India Bar Council (First Constitution) Rules 1961 framed ty the Supreme Court under Section 57 of the Act. Rule 4 of these Rules, the construction of which figures in this case, is as under:

'4. Candidates how to be proposed. Every candidate for election as a member of the All India Bar Council shall be proposed by two members of the State Bar council by letter addressed to the Secretary of the State Bar council and signed by each such member and delivered to the said Secretary not less than ten and not more than twenty-one days before the date of the election and such letter shall contain an endorsement of the candidate proposed signifying his acceptance of the proposal made therein.'

4. A notice dated 6th of March 1962 was sent by Shri C. L. Mehra, Secretary, intimating that a meeting of the Bar Council of Delhi would be held in the Supreme court building on Wednesday the 11th April 1962, at 4.30 P.M. to elect a member of the Bar council to the All India Bar Council. There were four candidates. Shri I. M. Lali was proposed by Shri Gurbachan Singh and Shri Kirpa Ram Bajaj. Shri Gopal Singh was proposed by Shri I. M. Lall and also by Shri Gurbachan Singh. Shri Har Dev Singh was proposed by Shri Gaja Nand and Shri Tarachand Brijmohan Lal. There was also a fourth candidate, Shri Radhe Mohan Lal who was proposed by Shri Gurbachan Singh and by Shri Chatter Singh. The letter addressed to the Secretary proposing the name of Shri Gopal Singh was delivered to the Secretary on 1st of April 1962 in the afternoon at about 3.30 or 4 P. M. Letter proposing the name of Shri I. M. Lall was delivered on the same day at 1 P.M. The letter proposing the name of Shri Har Dev Singh was delivered on 30th of March and the one proposing the name of Shri Radhe Mohan Lal was delivered on 31st of March 1962. Election was held on 11th of April 1962 at 4.30 P.m. Shri Gopal Singh and Shri Har Dev Singh polled 7 votes each and Shri I. M. Lall polled 2 votes. Nobody voted for Shri Radhe Mohan Lal. As there was equality of votes between Shri Gopal Singh and Shri Har Dev Singh, lots were drawn and Shri Gopal Singh was declared to have been duly elected.

5. The validity of the election of Shri Gopal Singh was contested by Shri I. M. Lall, who had proposed him, and also by Shri Har Dev Singh, the petitioner in the other petition. The Attorney-General of India appointed a Committee of Advocates (Respondent No. 2) to go into the validity of the election of Shri Gopal Singh, the successful candidate. The committee gave the parties opportunity to make their statements and framed issues. According to the report of the Committee, Shri I. M. Lall had in support of his petition raised in substance three points, namely, (1) the nomination paper of Shri Gopal Singh was not delivered in time, (2) as Shri Gurbachan Singh had nominated Shri Radhe Mohan La! earlier, he could not nominate Shri Gopal Singh and that Shri Gopal Singh's nomination being later in point of time was not valid, and (3) the election is void because the ballot papers were not prescribed by any competent authority. Shri Har Dev Singh raised two other points. Shri Gopal Singh raised certain preliminary objections which at the stage of arguments were not pressed. It is not necessary to go into all these matters and I would confine myself only to those questions which have been pressed before me. The other points were given up. The committee found that Shri Gopal Singh's nomination paper, which bore the date of 31st of March, 1982, was, as stated by Shri Gopal Singh himself, actually prepared on 1st of April at about 1 P.M. and delivered to the Secretary between 3.30 and 4 P.M.

Lengthy arguments have been addressed on the question, that the provisions of Rule 4 had been contravened, in so far as, they require that the letter proposing a candidate's name is to be delivered to the Secretary 'not less than ten' and 'not more than twenty-one days before the date of the election.' According to the construction placed by the Committee, it was of the view that

'only the date of the election should be excluded and the date on which the nomination is filed should be included in computing the period of time.'

It was accordingly held that the nomination paper of Shri Gopal Singh was filed within time. The learned counsel for Shri I. M. Lall has confined his submissions to this point and has maintained that the interpretation placed upon tne rule by the Committee of Advocates was manifestly erroneous, and as this is an error of law on the face of the Committee's order, the petitioner is entitled to relief under Articles 226 and 227 of the Constitution. No other point canvassed before the Committee has been agitated before me.

6. The phrases 'not less than ten', 'not more than twenty-one days' and 'before the date of the election' occurring in Rule 4 require careful examination. Shri Gopal Singh's proposal was delivered to the Secretary on the afternoon of 1st of April and the election was held on the afternoon of 11th of April. If the terminal days, i.e. the 1st of April and the 11th of April are excluded, then Rule 4 has been contravened.

7. In certain statutes, the terminology is different and the terminus a quo is indicated by the word 'from' and the terminus adquem by the word 'to'. A certain emphasis in this case has been laid on the exact point of time when the proposal was delivered to the Secretary. It was said that it was at about 3.30 or 4 P.M. It was also said that the meeting, at which election was to be held, was fixed at 4 P. M. on 11th of April. I do not think it is correct to take into account in computing days, fraction of a lay. A day is a unit of time and has been treated as a standard of measurement. A day is not an aggregation of hours, minutes or seconds when it is construed as a unit of time. When law refers to days, it does not take into reckoning a further sub-division of day in hours or minutes. By a cay is understood a 'calendar day' or an 'entire day. A 'day' is a space of time between two successive midnights and in computing day as a period of time, law floes not take into consideration fractions of two days in order to make up one complete day.

I have not lost sight of the fact that for certain purposes a day may have other connotations. As for instance, it may signify the interval of light from sunrise to sunset in contradistinction to the period of darkness or night but this is not for purposes of computation of period of limitation. In certain statutes, the period to be reckoned is prefixed by the words 'from' and 'to'. This is not the case here. There it is usual to exclude the first and include the last terminal day. The next significant word is 'before'. When an act is required by law--as in this case--to be done within a number of days before an event, the day on which the particular event occurs, has to be excluded. According to this computation, 11th of April, which is the date of election, cannot be taken into computation and the ten days preceding the date of election are to be taken into account. The phrases 'not less than' and 'not more thin' occurring in Rule 4 are significant. These words refer to clear, complete or entire days, intervening the terminus a quo and the terminus ad quem. Both the terminal days in this case, the 1st and 11th of April have to be excluded.

The principle, which emerges, is, that a day is deemed as an indivisible unit and the law will not take cognizance of fraction of a day in this context, and the second principle is, that a thing is to be done within 'not less than' stated number of days, they must be complete flays from midnight to the next midnight. Applying this rule, an application delivered on 1st of April, proposing a candidate for election to be held on 11th of April, contravenes the previsions requiring that not less than ten days must elapse before the date of the election, in other words, the filing of the proposal must be without ten days' period and not within it. A similar matter was considered in an English case requiring the interpretation of Section 51 of the Companies Act 1862 which required the confirmation of a special resolution passed by a company at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less than 14 flays, nor more than one month, from the date of the meeting at which such resolution was first passed. Chitty J. said:

'The general rule of law in the computation of time is that fractions of a day are not reckoned', (vide in re Railway Sleepers Supply Co., (1885) 29 Ch. D. 204 at p. 205). At page 207 he said:

'An interval of not less than fourteen days is equivalent to saying that fourteen days must intervene or elapse between the two dates.'

He further explained it thus:

'Now supposing the statute had said at an interval or not less than one day: if the first meeting were held say on the 1st of January, the second meeting could not properly be held on the 2nd of January, for one day must intervene; therefore the 3rd of January would be the earliest day, and adding thirteen more days to make up the fourteen the second meeting could not be held before the 16th.'

A similar view was taken in another case calling for interpretation of the 51 section of the Companies Act, 1862, by Bacon, V. C. The meetings in this case were held on the 3rd and 17th of January, thus leaving an interval of thirteen days, which was not enough. The interval should have been fourteen clear days exclusive of the days of meeting, (vide In re, Miller's Dale and Ashood Dale Lime Co., (1885) 31 Ch D 211 at p. 214) I may also refer to another case in In re, North, Ex parte Hasluck, 1895-3 QB 264 where reliance was placed upon another principle. By the Bankruptcy Act, 1890, a debtor commits an act of bankruptcy if execution against him has been levied by seizure of his goods and the goods have been held by the Sheritt for 21 days. The 21 days were construed as whole days and the day on which the seizure was made was to be excluded. Lord Esher M. R. expressed the view that the authorities contained no binding rule to the effect that time must be computed according to a hard and fast rule. He said:

'it is clear to me that when the section says that a certain result is to follow if the sheriff holds the goods for twenty-one days, it means twenty-one days and not twenty days and a fraction; he must hold them for twenty-one whole days. A fair rule of construction seems to be that where the computation is to be for the benefit of the person affected as much time should be given as the language admits, of, and where it is to his detriment the language should be construed as strictly as possible.' (page 270).

In Me Queen v. Jackson, 1903-2 KB 163 Lord Alverstone C. J. observed:

'The section which we are called upon ta construe provides that '!n any prosecution under the Sale of Food and Drugs Acts the summons ......shall not be made returnable In less time than fourteen days from the day on which it is served'. In my opinion that points to the same period or time as would have been indicated if the wards used had been 'fourteen clear days.' I think it was intended that fourteen whole days should elapse between the day of I service of the summons and the day of the return. The summons was therefore, made returnable too soon. The appeal must be dismissed.'

In Rex V. Turner, 1910-1 KB 346, the expression 'not 'less than seven days notice' was considered. The question was whether it meant seven clear days though the words 'clear days' were not mentioned in the statute. Channell J. said:

'We, therefore, come to the conclusion that the provision that 'not less than seven days' notice has to be given' means 'seven clear days' notice, and we so answer the question', (page 360).

It was held in In re, Hector Whalling, Ltd. 1936 Ch. 208, that 'the period of not less than twenty-one days prescribed by Section 117, Sub-section 2, of the Companies Act, 1929, relating to notices of meetings in connection with the passing of special resolutions, means a period of not less than twenty-one clear days, exclusive of the day of service of the notice and exclusive o! the day of which the meeting is to be held.'

The authorities of High Courts in India are in harmony with the above view. In Nagappa Chettiar v. Madras Race Club, AIR 1951 Mad 831 (2), it was held that the expression 'not less than 21 days' in Section 81(2) of the Companies Act, 1913, means that there should be interval of 21 clear days and in computing this period the dale of the meeting and the date of service of notice should be excluded.

Anokhmal Bhurelal v. Chief Panchayat Officer Rajasthan, Jaipur, AIR 1957 Raj 388, was a case of Rajasthan Pancnayat Elections. The language of Rule 4 using the words 'at least seven days before the date of election' was held to mean that seven days' period must intervene between the date of the announcement of the notice and the date of election. I had an occasion to consider this question In a Full Bench decision in Northern India Caterers Private Ltd. v. Puniab State, Civil Writ No. 16 of 1960, DA 22-1-1963 : (AIR 1963 Punj 290).

8. Mr. Narula, learned counsel for the respondent, has drawn my attention to a number of decisions in support of the contrary view. In (In re, Court fees, (AIR 1924 Mad 257) a Special Bench of three Judges had to decide the meaning of the words appearing in a notification publishing fresh rules imposing increased institution fees on the suits on the Original side of the High Court. The words of notification were

'the amendments to come into force from the dateof publication in the Fort St. George Gazette'.

The above words were construed to have included the 1st day. It was held that where a statute delimits a period marked both by a terminus a quo and a terminus ad quem, the former is to be excluded and the latter is to be included in the reckoning. This decision is not of much help as the language of the notification is different, from the language of the rule in the instant case.

9. Reliance was also placed on Harinder Singh v. Karnail Singh, AIR 1957 SC 271, but that decision also is distinguishable on facts and a proposition laid down therein is not the same which arises in this case. While construing R. 119 of the Election Rules in conjunction with Section 81(1) of the Representation of the People Act, 1951, the Bench expressed the view that the words 'not later than fourteen days' must be held to mean the same thing as 'within a period of fourteen days'. It was field that the period of fourteen days provided in Rule 119 for presentation of an election petition was a period prescribed and if such period expires on a holiday Section 10 of the General Clauses Act applies to the petition.

10. In the case of Suraj Bhati v. Randhir Singh, AIR 1958 Punj 483, the Division Bench was called upon to consider the meaning of Section 55A(2) of the Representation of the People Act, which ran thus:-

'A contesting candidate may retire from the contest by a notice in the prescribed form which shall be delivered to the returning officer between the fours of eleven 0' clock in the forenoon and three 0' clock in the afternoon of any day not later than ten days prior to the date or the first of the dates fixed for the poll under Clause (d) of Section 30. ....... .'.

It was held that the section did not talk of ten days clear notice but merely said that retirement must be not later than 10 days prior to the date of the Poll, the retirement, which was on the tenth day, was considered to be within limit. This view was in regard to phraseology which is not similar to the language of the rule in this case. I do not think that the decisions relied upon by the learned counsel for the respondent are helpful for construction of the language employed in the rules In this case. My attention was also drawn to the Supreme Court Rules, Order 1, Rule 4, providing that where any particular number of days is prescribed by these Rules, the same shall be reckoned exclusively of the first day and inclusively of the last day, unless the last day shall happen to fall on a day on which the offices of the Court are closed, in which case the time shall be reckoned exclusively of that day also and of any succeeding day or days on which the offices of the Court continue to be closed. I cannot persuade myself to hold that the above language is of such a general applicability so as to cover the case arising out of R. 4 of All-India-Bar Council (First Constitution) Rules, 1961.

Mr. Narula also drew my attention to Rule 3(2) and contrasted it with Rule 4. In the former case a meeting of the State Bar Council for election of a member to the AII-lndia-Bar Council is to be summoned 'not less than thirty clear days before the date of the meeting. The word 'clear' does not appear in the succeeding Rule. Mr. Narula's contention is that the number of days specified in Rule 4 are not to be construed as 'clear days' Because if the framers of the Rule had such an intention the Supreme Court would have so indicated by inserting the word 'Clear' as was done in Rule 3. He relies upon the principle that the inclusion of one is the exclusion of the other. The maxim expressio unius est exclusio alterius is not of universal conclusive application and a great caution is necessary in applying it. Very often particular words are used by way of abundant caution. I am thus of the view that the proposal delivered to the secretary on 1st of April when election was to be held on 11th of April did not comply with Rule 4 as it had been given less than ten days before the day of the election.

11. The next argument of Mr. Narula is that even if it be considered that the interpretation placed upon Rule 4 by the Committee of Advocates is erroneous, the error is not obvious as the construction which was adopted was not impossible. In these circumstances, an interference 'by issuing a writ of certiorari is not called for The error, even if it be one, is not apparent. While dealing with the character and the scope of the writ of certiorari, a number of propositions were laid by the Supreme Court in the case of Hari Vishnu Kamath v. Ahmad Isnaque, (1955) 1 S.C.R. 1104 : ((S) AIR 1955 SC 233). One of the propositions was that an error in the decision or determination itself in order to be amenable to a writ of certiorari must be a manifest error apparent on the face of proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. An error winch can be corrected day certiorari must be patent and not a mere wrong decision. The argument of the learned counsel for the petitioners is that the Committee's error is manifest as the days for computation had to be clear lays. I do not think that the error on the part of the Committee can be termed to be patent, apparent, obvious or manifest.

12. On behalf of the petitioners a number of decisions were relied upon as illustrative of what an apparent error can be to justify interference by issuance of me writ of certiorari (vide inter alia R. v. Northumberland Compensation Appeal Tribunal, (1952) 1 All ER 122, Lee v. Showmen's Guild of Great Britain, (1952) 1 All ER 11/5; and Re, Gilmore's Application, (1957) 1 All ER 796). On the basis of analogy it will be extremely difficult to rest the decision of a case like the one before me. The expression 'error apparent on the face of the record' defies definition and the facts of each case are determinative. Where in order to arrive at a particular conclusion examination of lengthy arguments is required the error, when ultimately proved, does not become self-evident. If point at issue is dubious and requires an argument to demonstrate it, the error cannot be said to be self-evident. The conclusion of the Committee though erroneous cannot be stated as perverse. I do not think that any assistance can be taken by the petitioners from the facts involved in the case of Provincial Transport Services v. State industrial Court, Nagpur, AIR 1963 SC 114, cited before me.

13. Where two views are possible and though one of them turns out to be erroneous the error cannot be said to be such as to call for interference by Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution by means of a writ of certiorari. (vide Batuk K. Vyas V. Surat Borough Municipality, AIR 1953 Bom 133; Ebrahim Aboobakar v. Custodian General of tvacuee Property, New Delhi, AIR 1952 SC 319; Prem Singh v. Deputy Custodian General, Evacuee Property, (S) AIR 1957 SC 804; Nagendra Nath v. Commissioner of Hills Division, AIR 1958 SC 398; and Satyanarayan Laxminarayan v. Malik-Arjun Bhavanappa Tirumale, AIR 1960 SC 137). The Committee no doubt had jurisdiction and there was no violation of principles of natural justice. Alt that can be said is that it committed a mistake as to the applicability of the rule of computation of time. For such an error this Court will not be justified in issuing a writ of certiorari.

14. It was next urged that an error, even if patent, must further be shown to have led to manifest Injustice. In Veerappa v. Raman and Raman Ltd., AIR 1952 SC 192, Chandrasekhara Aiyar, J., delivering the judgment of the Court, said :

'Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice.'

In Dev Parkash v. Babu 'Ram 1961-63 Pun LR 485 : (AIR 1961 Punj 429) (FB), Dulat J., referring to Municipal election, expressed the view that in its nature an election was an expensive and time-consuming process, and, if it is to be disturbed after the whole process has been gone through, there must be shown to have existed some material circumstance touching the substance of the election and not merely a technical breach of a technical rule, in this case, the petitioner Shri I. M. Lall polled two votes and the other petitioner Shri Hardev Singh was bracketed with the respondent Shri Gopal Singh, both of them having polled seven votes each. It is contended by the Respondent's counsel that it cannot be postulated that Shri Hardev Singh would have polled more votes if the nomination paper of Shri Gopal Singh had been filed a day earlier. It is said that Shri I. M. Lall had proposed Shri Gopal Singh and his own proposal form suffered from the same error as that of Shri Gopal Singh. In these circumstances it was contended with some justification that Shri I. M. Lall could have no interest and had suffered from no manifest injustice. The argument regarding no Injustice having been shown to have been suffered by the petitioners in consequence of the error in computation of time is undoubtedly sustainable in regard to Shri I. M. Lall. ahri Hardev Singh too, beyond pointing out that 10 complete days did not elapse between the two terminal days, did not suggest that in consequence of this omission on the part of shri Gopal Singh he had suffered an injury and that the result of the election might otherwise have been favourable to him.

15. It was lastly urged by Mr. Narula that as the decision was of a domestic tribunal the matter was not amenable to this court's jurisdiction and cited Lennox Arthur Patrick O'Reilly v. Cyril Cuthbert Gittens, AIR 1949 PC 313, in support of his contention. I do not feel called upon to express my views on this contention as the matter can be disposed of on the other points raised. while maintaining that the time as provided in Rule 4 had been computed erroneously by the committee it is not otherwise a case in which the jurisdiction of this Court under Article 226 or 227 of the Constitution can be invoked inter alia for the reason that the rule for computing the time adopted by the Committee is not patently erroneous and has not resulted in any manifest injustice in consequence of its infringement. In the Northern India Caterers' case, AIR 1963 Punj 290 recently decided by the Full Bench, for similar reasons this Court declined to grant the relief under Article 226 though it was found that the notice given to the petitioner was short by one day.

16. For reasons stated above, both the petitionsCivil Writ No. 495-D of 1962 and Civil Writ No. 493-D of1962 fail and are dismissed, but there will be no orderas to costs.


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