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Sarjeet Singh Bhangul Vs. Bar and Council of Delhi ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 111 of 1979
Judge
Reported inILR1979Delhi263; 1979RLR324
ActsAdvocate Act, 1961 - Sections 3(4)
AppellantSarjeet Singh Bhangul
RespondentBar and Council of Delhi ors.
Advocates: Raj Panjwani,; V. Shankaran,; Vijay Panjwani,;
Cases ReferredShri Vashist Bhargava v. Income
Excerpt:
i. advocates' act (1961) - section 3(4)--bar council of india rules, rule 3 vis-a-vis rule 3(j) of the bar council of delhi rules--whether rule 3(j) ultra virus the advocates' act and in excess of the rule making power of the bar council of delhi.; the decision, in the present writ petition depended on the construction, of section 3(4) of the advocates' act, 1961.; facts:; the bar council of delhi was to hold election of members to the delhi bar council and in the election held on the 17th november, 1978, the number of advocates enrolled in the roll of the bar council of delhi were more than 5000.; under rule 3(j) of the bar council of delhi election rules, 1968, an advocate on the roll of the bar council of delhi was required to declare in a prescribed form that he was an advocate.....v.s. deshpande, c.j.(1) the decision of this writ petition turns on the construction of section 3(4) of the advocates act, 1961, which is as follows : 'anadvocate shall be disqualified from voting at an election under sub-section (2) or for being chosen as, and for being, a member of a state bar council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the bar council of india, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each state bar council.' (2) the exclusive power to make rules as to what qualifications must be possessed and what conditions must be satisfied by an advocate not to become disqualified from voting at an election of members of state bar.....
Judgment:

V.S. Deshpande, C.J.

(1) The decision of this writ petition turns on the construction of Section 3(4) of the Advocates Act, 1961, which is as follows :

'ANadvocate shall be disqualified from voting at an election under sub-section (2) or for being chosen as, and for being, a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.'

(2) The exclusive power to make rules as to what qualifications must be possessed and what conditions must be satisfied by an advocate not to become disqualified from voting at an election of members of State Bar Council given to the Bar Council of India is re-emphasised by Section 49(1)(a) of the Act which is as follows :

'49(1)The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe

(A)the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council.'

(3) The relevant rules framed by the Bar Council of India stating qualifications to be possessed by an advocate and the conditions to be satisfied by him before he can vote at an election of members of a State Bar Council are as follows :

'THEBAR Council Of India Rules 1975.

PART-III

'CERTAINmatters relating to State Councils.

CHAPTER-I

ELECtorALRoll, disqualification of membership and vacation of office.

(1)Every advocate whose name is on the Electoral Roll of the State Council shall be entitled to vote at an election.

(2)Subject to the provisions of Rule 3, the name of every advocate entered in the State Roll shall be entered in the electoral roll of the State Council.

(3)The name of an advocate appearing in the State Roll shall not be entered on the Electoral Roll. if on information obtained by the State Council :

(A)his name has at any time been removed ;

(B)he has been suspended from practice, provided that this disqualification shall operate only for a period of five years from the date of the expiry of the period of suspension ;

(C)he is an undischarged insolvent ;

(D)he has been found guilty of an election offence in regard to an election to the State Council by an Election Tribunal, provided however that such disqualification shall not operate beyond the election next following after such finding has been made ;

(C)he is convicted by a competent court for an offence involving moral turpitude, provided that this disqualification shall cease to have effect after a period of two years has elapsed since his release ;

(F)he is in full-time service or is in such part-time business or other vocation not permitted in the case of practicing advocates by the rules either of the State Council concerned or of the Council ;

(G)he has intimated voluntary suspension of practice and has not given intimation of resumption of practice.'

(4) The Bar Council of Delhi is to hold election of members of the Delhi Bar Council, this being one of its functions under Section 6(l)(g) of the Act. The Bar Council of Delhi is also empowered by Section 6(l)(i) to do all other things necessary for discharging the aforesaid functions. Section 15(1) of the Act empowers a Bar Council (which would mean either the Bar Council of India or a State Bar Council according to the content) to make rules to carry out the purposes of Chapter Ii which deals with the constitution of the State Bar Councils as also the Bar Council of India. The Bar Council of Delhi is also empowered to make rules under Section 15(2)(a) of the Act to provide for the election, of members of the Bar Council by secret including the conditions subject to which persons can exercise the right to vote by postal ballot and the preparation and revision of electoral roll. Under Section 15(2)(d) the Bar Council of Delhi may also provide for the authority by which doubts and disputes as to the validity of an election to the Bar Council may be decided.

(5) The Bar Council of Delhi purporting to act under Section 15(2)(a) and (d) has made the Bar Council of Delhi Election Rules, 1968, of which Rule 2 and Rule 3(j) are relevant and are as follows :

'2.These rules shall be subject to the rules made by the Bar Council of India under the powers vested in it by the Act.

'3(1)'Electoral Roll' means and includes the roll containing the names of the advocates prepared in accordance with the rules of the Bar Council of India in Part Iii, Chapter I :

PROVIDED that the Electoral Roll shall not include the name of such advocate who fails to file in the office of the Bar Council, on or before such date (not being earlier than 30 days of the date of notification) as may be notified by the Bar Council in such manner as may be considered proper by it from time to time, or within 45 days of the putting up of the preliminary Electoral Roll under Rule 4(1) of Chapter I of Part Iii of the Bar Council of India Rules, a declaration containing the name, address and number of the advocate on the State Roll and to the effect that:

(A)he is an advocate ordinarily practicing in the Union Territory of Delhi and that his principal place of practice is within the Union Territory of Delhi;

(B)he is not an undischarged insolvent ;

(C)he has never been convicted by any Court for an offence involving moral turpitude ; or a period of two years has clapsed since his release after being convicted of an offence involving moral turpitude ;

(INcase of conviction, particulars of such conviction should be given)

(D)he is not in full-time service or business or in any such part-time business or other vocation as is not permitted in the case of practicing advocates by the rules of the Bar Council; and

(E)he has not been suspended from practice; and on the failure to file the declaration or on filling of incomplete or incorrect declaration in any respect, it shall be presumed that the name of such advocate is not to be entered on the Electoral Roll in accordance with Rule 3 of Chapter I of Part Iii of the Bar Council of India Rules.'

(6) The election of members to the Bar Council of Delhi was held on the 17th of November, 1978. The number of advocates enrolled on the roll of the Bar Council of Delhi are more than 5,000. Under Rule 2 in Chapter I of Part Iii of the Bar Council of India Rules, the name of every advocate entered in the State Roll is to be entered in the Electoral Roll of the State Bar Council for the election of its members only subject to the provisions of Rule 3. The effect of Rule 3 is that 'if on information obtained by the State Council' an advocate is found to be subject to any of the disqualification listed in Rule 3, then his name is not to be entered on the Electoral Roll even though it may have been on the State Bar Council Roll. With a view to obtain information as to whether any of the advocates enrolled on the State Bar Council Roll had become subject to any of the disqualifications listed in Rule 3 of Chapter I of Part Iii of the Bar Council of India Rules, the Bar Council of Delhi framed Rule 3(j) and obtained the consent of the Bar Council of India thereto under Section 15(3). Nevertheless Rule 3(j) is subject to the rules made by the Bar Council of India as is made clear by Rule 2 of the Bar Council of Delhi Election Rules, 1968. To give effect to the procedure prescribed under Rule 3(j), the office of the Bar Council of Delhi supplied the advocates on the roll of the Bar Council of Delhi with forms of declaration in which every advocate had to declare that he was an advocate ordinarily practicing in Delhi and that he was not disqualified under Rule 3(j). Over 3500 advocates filed such declarations. Over 2000 advocates on the roll of the Bar Council of Delhi failed to file such declaration within the time prescribed by the proviso to Rule 3(j). The effect was that the names of these advocates were not brought on the Electoral Roll of the voters entitled to elect members to Bar Council of Delhi on the 17th of November, 1978.

(7) The petitioner contested the election but lost it. He has filed this writ petition challenging the validity of the election on several grounds. Since Rule 34 of the Bar Council of Delhi Election Rules, 1968, provides for the decision of all disputes regarding the validity of an election to the State Bar Council by an Election Tribunal, the primary jurisdiction to decide the validity of an, election to the State Bar Council vests in the said Election Tribunal. Such a Tribunal, however, is a creature of Rule 34. It would not be entitled to decide the virus of any of the rules contained in the Bar Council of Delhi Election Rules, 1968. The first question to be considered is the maintainability of the present writ petition. It is maintainable only in so far as it challenges the virus of the relevant rules contained in the Bar Council of Delhi Election Rules, 1968.

VALIDITYof Rule 3(j).

(8) The most important contention urged by the petitioner against the validity of the election held on the 17th of November, 1978, is that the said election was vitiated because over 2000 advocates enrolled on the roll of the Bar Council of Delhi were illegally disqualified from voting and from being brought on the Electoral Roll. This illegality resulted because the procedure prescribed by Rule 3(j) by which the name of an advocate was to be brought on the Electoral Roll was illegal. It is important to know the precise meaning of Section 3(4) as supplemented by Section 49(l)(a) of the Act as they provide the context in which the virus of Rule 3(j) has to be determined. The context is as follows:

SECTION 3(4) may be analysed as below. Firstly, it places the burden on an advocate who wishes to vote at an election to the State Bar Council to show that he possesses the prescribed qualifications and satisfies the prescribed conditions. The thrust of Section 3(4) is that unless and untill an advocate shows that he possesses the qualifications or satisfies the conditions, he becomes disqualified. It is, thereforee, for the advocate to show that he was qualified and that he satisfied the conditions before his name is brought on the Electoral Roll. Secondly, the exclusive power to prescribe by rules the said qualifications and conditions is given only to the Bar Council of India. It is not given to the Bar Council of Delhi. Thirdly, the Bar Council of Delhi is only to prepare the Electoral Roll and revise it from time to time subject to the rules that may be made in this behalf by the Bar Council of India. Fourthly, the rule-making power expressly given by Section 3(4) to the Bar Council of India is re-affirmed by Section 49(1)(a).

(9) The rules in Chapter I of Part Iii of the Bar Council of India Rules, 1975, have been made expressly under the power given by Section 3(4) and Section 49(1)(a). The Bar Council of India could have followed the drift of Section 3(4) and made rules similar to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968. Such a rule, if made by the Bar Council of India, could have been justified on the ground that it prescribed the qualifications to be possessed and the conditions to be satisfied by an advocate desiring his name to be brought on the Electoral Roll. But the Bar Council of India did not itself make any rule like Rule 3(j) of the Bar Council of Delhi Election Rules.

(10) On the contrary, Rule 3 of Chapter I, Part Iii of the Bar Council of India Rule's places the burden on the State Bar Council. This is to be contrasted with Rule 3(j) of the Bar Council of Delhi Election Rules which places the burden on the advocate. The distinction between these two rules would appear to be decisive for deciding the present writ petition. Under Rule 3 of Chapter I of Part Iii of the Bar Council of India Rules, 1975, the name of an advocate would not be entered on the Electoral Roll only if 'on information obtained by the State Council' he is found to have incurred any of the disqualifications listed in Rule 3. The crucial words are 'if on information obtained by the State Council'. These words mean that it is only if the State Bar Council obtains the information of the disqualification of the advocate that the advocate's name is not entered on the Electoral Roll. The practical difference between Rule 3 of the Bar Council of India Rules and Rule 3(j) of the Bar Council of Delhi Election Rules is this. An advocate is disqualified only if an information obtained by the State Bar Council he is found to have incurred a disqualification according to the Bar Council of India Rules. That is to say, unless and until a positive information is obtained by the State Bar Council regarding the existence of disqualification, an advocate is not disqualified. On the contrary, according to Rule 3(j) of the Delhi Bar Council Election Rules if an advocate does not file a declaration within time that he has not incurred any of the disqualifications mentioned therein, then the name of the advocate is not brought on the Electoral Roll. The result is that even though no positive information is obtained by the State Bar Council about an advocate having incurred a disqualification, the name of an advocate is not brought on the Electoral Roll merely because he has failed to make a declaration within the prescribed time stating that he has not incurred any of the disqualifications.

(11) The crucial question is whether the Bar Council of Delhi could have made a rule which in practical result works so differently from Rule 3 of the Bar Council of India Rules. The following reasons point to a negative answer. Firstly, Rule 3(j) purports to be made under Section 15(2)(a) and (d) of the Act, but none of these rules authorises the State Bar Council to make a rule prescribing the qualifications to be possessed and the conditions to be satisfied by an advocate before being brought on the Electoral Roll. Secondly, even if it is assumed that it is not Section 15(2)(a) and (d) but rather Section 15(1) which is the source of the power of making a rule, Section 15(1) is a general provisions which cannot prevail against the special provisions made in Section 3(4) and Section 49(1)(a). Since Section 3(4) and Section 49(1)(a) specifically and exclusively give power to make rules to prescribe qualifications to be possessed by and conditions to be satisfied by an advocate to come on the Electoral Roll, it cannot be read into Section 15(1) that the State Bar Council also has such a power. It was argued by Shri Ram Jethmalani for the Bar Council of India that the two Bar Councils have concurrent power to make rules on this subject. While Section 15(1) read in isolation may show that both these Bar Councils have concurrent power to make rules to carry out the purposes of Chapter Ii which includes the holding of elections, Section 15(1) has to be so construed as to avoid a conflict with Section 3(4) and Section 49(1)(a). So read, Section 15(1) has to be so construed as to leave cut the power which is specifically given by Section 3(4) and Section 49(1)(a) to the Bar Council of India alone. Fourthly, it was argued by Shri Jethmalani that Rule 3(j) has been approved by the Bar Council of India under Section 15(3) and that it has, thereforee, the same sanctity and validity as if the said rule had been made by the Bar Council of India. We are unable to agree that Section 15(3) leads to such a consequence. Section 15(3) says that no rules made under Section 15 by a State Bar Council shall have effect unless they have been approved by the Bar Council of India. Such an approval is necessary before any valid rules could be made by the State Bar Council at all. But Section 15(3) does not confer any additional powers on the State Bar Council other than those which are given by Section 15(1) and Section 15(2). Since neither Section 15(1) nor Section 15(2) confers any power on the State Bar Council to make a rule prescribing the qualifications to be possessed by and the conditions to be satisfied by an advocate before his name is brought on the Roll, such an invalid rule cannot be validated merely by the approval of the Bar Council of India under Section 15(3). It is only a rule which is otherwise within the competence of the State Bar Council under Section 15(1) and (2) which comes into effect after the approval of the Bar Council of India given under Section 15(3). Lastly, the irresistible conclusion, thereforee, is that so far as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on the Electoral Roll are concerned only the Bar Council of India has the competence to make the rules under Section 3(4) and Section 49(1)(a) and the State Bar Council has no power at all to make a rule on this subject.

(12) It only remains to be considered whether the action taken by the Bar Council of Delhi to disqualify over 2000 advocates merely because they did not file declarations within the time prescribed by the proviso to Rule 3(j) could be somehow justified under Rule 3, Chapter I of Part Iii of the Bar Council of India Rules. In our view such an action is not justified. For, the State Bar Council did not obtain information within the meaning of Rule 3 of the Bar Council of India Rules showing that these more than 2000 advocates had incurred any disqualification. Under Rule 3, thereforee, the Bar Council of Delhi was not entitled to refuse to bring their names on the Electoral Roll. The action of the Delhi Bar Council was taken only under Rule 3(j) of the Bar Council of Delhi Election Rules, 1968. It cannot be deemed to have been taken under Rule 3 of the Bar Council of India Rules.

(13) Rule 2 of the Bar Council of Delhi Election Rules, 1968, expressly states that the said rules shall be subject to the rules made by the Bar Council of India. Since the conflict between the two sets of rules on this subject is irreconciliable, the Bar Council of India's rule prevails over the Bar Council of Delhi's rule. This means that the Bar Council of Delhi's rule is made ineffective and is superseded by the Bar Council of India's rule. This alone, however, may not in theory make Rule 3(j) of the Delhi Bar Council Rules illegal and ultra vires.

(14) But Section 3(4) and Section 49(1)(a) show that such a rule as Rule 3(j) could have been made only by the Bar Council of India under these provisions. Section 15(3) does not enable the Bar Council of Delhi to make such a rule as it presupposes pre-existing competence in a State Bar Council to make rules under Section 15 to which the approval of the Bar Council of India is later obtained. Rule 3(j) is not such a rule. Since there is no provision in the Act authorising the State Bar Council to make such a rule as Rule 3(j) and since the competence to make any rule regarding the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on the Electoral Roll is only in the Bar Council of India and not a State Bar Council, Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, is ultra virus the Advocates Act, 1961.

(15) It was also argued for the respondents that the petitioner is not entitled to have the election set aside because he participated in the election hoping to get elected. It is only because he has not been elected that he now wants to challenge the result of the election. He cannot approbate and reapprobate at the same time. He is estopped by his conduct from challenging the validity of the election. In our view there can be no estoppel against a statute. The illegality of Rule 3(j) cannot be cured by the conduct of the petitioner. The illegality was not so apparent from the inception that the petitioner could be expected to challenge the validity of Rule 3(j) framed by the Delhi Bar Council before the election was held. It required a good deal of arguments on both sides for us to be able to arrive at the conclusion regarding the ultra virus nature of Rule 3(j). It is but human that the petitioner should have thought of challenging the result of the election after he failed to win it.

(16) We also considered whether we should refuse to exercise our discretion in favor of the petitioner even though in law the petitioner had succeeded in showing that Rule 3(j) was ultra virus the Act. The considerations which may persuade the Court to refuse the grant of relief under article 226 to a petitioner have been summarised in a previous decision of this Bench in Shri Vashist Bhargava v. Income-tax Officer, 2nd (1975) 1 Del 634. None of these considerations apply here. Rank injustice has been done to the petitioner because more than 2000 advocates were wrongfully disqualified from being brought on the Electoral Roll. This has materially affected the result of the election. The petitioner is, thereforee, entitled to the relief in the interest of justice as the election was vitiated materially.

(17) Rule 12 of the Bar Council of Delhi Election Rules, 1968, was also challenged on the ground that in the voters' list the names of the voters are published in accordance with their seniority i.e. dates of their enrolment as advocates. In our view, Rule 12 is in accordance with the scheme of the Advocates' Act, 1961. Firstly, Section 16(1) states that there shall be two classes of advocates, namely, senior advocates and other advocates. Secondly, under Section 17(2) each such roll of advocates shall consist of two parts, the first part containing the names of the senior advocates and the second part the names of the other advocates. Thirdly, Section 17(3) requires that entries in the roll of advocates shall be in the order of seniority determined in accordance with the date of enrolment of each advocate. Lastly, according to Rule 2 of Chapter I of Part Iii of the Bar Council of India Rules, every advocate entered in the State Roll shall be entitled to be entered in the Electoral Roll except when he incurs a disqualification listed in, Rule 3. This would mean that the Electoral Roll should be the same as the State Bar Council Roll and the advocates should be listed in the Electoral Roll in the same order as they are listed in the State Bar Council Roll, i.e. in order of seniority. This is why the proviso to Section 3(2) makes a reservation in favor of advocates having at least 10 years' standing so that about half the number of members of the State Bar Council come only from Advocates with 10 years' standing. Since the Act itself gives importance to seniority, Rule 12 is framed in the same spirit and is, thereforee, valid.

(18) The validity of Rule 14 was also challenged. The Union, Terrilory of Delhi is 'State' within the meaning of Article 12 of the Constitution. Rule 14 was challenged as being contrary to Article 14 inasmuch as in the form of the voting paper in addition to the names of the candidates being shown in order of seniority, asterisk marks were also given to the names of candidates having more than 10 years' standing and being thus contrary to Article 14. In our view, the proviso to Section 3(2) of the Act requires that howsoever the voters may vote, about one- half members of the State Bar Council have to be from those candidates who are advocates with 10 years or more standing. Since Rule 1 is to carry out the purpose of the Act, no fault can be candidate is having 10 years or more standing. Just as no fault can be found with the voting paper because the names of the candidates are arranged in accordance with the dates of their enrolment, no fault can be found if asterisks show the candidates having 10 years or more standing as advocates. It was argued for the petitioner that the dates of enrolment themselves would show which candidate had 10 years' standing. This is not always possible. The standing after the date of enrolment of an advocate may be affected by interruption of practice at the bar. Such interruption would not be known merely from the date of enrolment. It is only the State Bar Council who would know the net period of actual standing. Hence asterisks to show 10 years' standing were absolutely necessary. Further a voter has very little time to read and mark the voting paper. He should not be burdened with the task of calculating which candidate has 10 years or more standing. He is entitled to know which candidate has 10 years or more standing because he does not want any of the preferences to be given by him to be wasted. He is entitled to be helped by the rule to give his preference to such candidate as would be elected thereby. If he is not told which candidate has more than 10 years standing, he may give his preference to some candidates who do not have 10 years' standing and who may not be elected simply because about one-half members of the State Bar Council have to come out of advocates having 10 years' standing. For this reason' we are not persuaded to hold Rule 14 to be ultra virus the Act. It was then said that after the voting papers were classified according to the initial letters of voters' names and put into boxes which were marked with letters 'A', 'B', 'C' and 'D' etc. and that after counting the votes from box 'A' it would become known who had voted for whom. We do not wish to go into this. practice adopted by the Delhi Bar Council as it does not relate to the validity of any rule and can become the subject matter of a complaint to the Election Tribunal.

(19) Under Article 226 of the Constitution no alternative remedy such as Rule 34 of the Bar Council of Delhi Election Rules, 1968, is available to the petitioner for getting a declaration that Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, is ultra virus the Act. The writ petition is, thereforee, maintainable. For the reasons stated above, we hold that Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, is in excess of the rule-making power of the Bar Council of Delhi. Since the action taken by the Bar Council of Delhi to disqualify more than 2000 advocates because of their non-compliance with the proviso to Rule 3(j) has resulted in great prejudice to the petitioner who can justly claim that the bringing on the Electoral Roll of more than 2000 advocates would have made a considerable difference to his own election and to the election as a whole, we are constrained to set aside the election to the Bar Council of Delhi held on 17th November, 1978. The writ petition is allowed as above with no order as to costs.

Harish Chandra, J.

(20) I am in respectful agreement with the view that rule 3(j) of the Bar Council of Delhi Election Rules, 1968 is in excess of the rule-making power of the Bar Council of Delhi and as more than 2000 advocates have been disqualified from voting because of their non-compliance with the proviso to the said rule, a sufficiently material illegality has been occasioned to necessitate the setting aside of election of the Bar Council of Delhi held on 17th November, 1978. I however do not wish it to be inferred or understood from the reasoning behind our aforesaid conclusion that the proviso to rule 3(J) would have been valid if only the Bar Council of India had framed rule 3(j) instead of the Bar Council of Delhi.

EVENif the language of sub-section (4) of section 3 of the Advocates Act, 1961 casts the onus on an Advocate of showing that he possesses necessary qualifications or satisfies prescribed conditions for voting etc. at an election, the non-filing of a declaration, without more, cannot legitimately lead to the presumption that an advocate who is on the State Roll after a due process of showing that he possesses the qualifications for being on such a Roll, does net possess the qualifications or does not satisfy the conditions for being on the Electoral Roll.

ASrule 3(j) has been struck down it is unnecessary to discuss here the above view at length.


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