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Bar Council of West Bengal and ors. Vs. Miss Ajanta Aughstin - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1781 of 1977
Judge
Reported inAIR1979Cal35,83CWN35
ActsAdvocates Act, 1961 - Section 15; ;West Bengal Bar Council Rules - Rules 34, 34(1) and 36; ;Code of Civil Procedure (CPC) , 1908 - Section 9
AppellantBar Council of West Bengal and ors.
RespondentMiss Ajanta Aughstin
Appellant AdvocateR. Ghosh and ;Roma Bhattacherji, Advs.
Respondent AdvocateS.S. Hazra and ;Durga Dutta, Advs.
Cases ReferredFirm Seth Radha Kishan v. Administrator
Excerpt:
- .....by the plaintiff.2. the plaintiff is a practising advocate and her name has been entered in the state roll maintained by the bar council of west bengal, under the provisions of the advocates act, 1961 and the rules framed thereunder. the defendants nos. 1, 2 and 3 held an election of the members of the bar council of west bengal on aug. 11 and 12, 1975. it is the case of the plaintiff that she came to know about the said election from her advocate friends, and on aug. 12, 1975 the plaintiff went to cast her vote in the said election, but she was refused to cast vote by the polling agent, who was conducting the election at the election booth situate in the city civil court building, calcutta. it is alleged by her that her name was not in the electoral roll on the basis of which the.....
Judgment:
ORDER

Murari Mohan Dutt, JJ.

1. This Rule is at the instance of the defendants, the Bar Council of West Bengal and two others, and it is directed against order No. 12, dated April 5, 1977, of the learned Judge, Second Bench, City Civil Court, Calcutta. By the said order the learned Judge decided issue No. 2 in favour of the plaintiff. That issue relates to the jurisdiction of the City Civil Court to entertain and try the suit instituted by the plaintiff.

2. The plaintiff is a practising advocate and her name has been entered in the State Roll maintained by the Bar Council of West Bengal, under the provisions of the Advocates Act, 1961 and the rules framed thereunder. The defendants Nos. 1, 2 and 3 held an election of the members of the Bar Council of West Bengal on Aug. 11 and 12, 1975. It is the case of the plaintiff that she came to know about the said election from her advocate friends, and on Aug. 12, 1975 the plaintiff went to cast her vote in the said election, but she was refused to cast vote by the Polling Agent, who was conducting the election at the election booth situate in the City Civil Court building, Calcutta. It is alleged by her that her name was not in the electoral roll on the basis of which the said election was held. It is alleged that the electoral roll was not published by the defendants. It is also the plaintiff's case that she came to know that the names of 9,000 advocates have not been included in the electoral roll of the State Bar Council. The result of the said election held on Aug. 11 and 12, 1975 has not yet been declared. The contention of the plaintiff is that the defendants by their conduct debarred her from exercising her right of franchise. It is also the case of the plaintiff that the electoral roll has been prepared illegally by eliminating the name of the plaintiff and the names of 9,000 advocates and, accordingly, the election which has been held on the basis of such illegal electoral roll is void and liable to be set aside. The plaintiff has prayed for a declaration in that regard. She has also prayed for a permanent injunction restraining the defendants from publishing the result of the said election.

3. The defendants, including the Bar Council of West Bengal, have been contesting the suit by filing a written statement. One of the defences of the defendants is that the Civil Court has no jurisdiction to entertain and try the suit inasmuch as under Clause (4) of Rule 34 of the West Bengal Bar Council Rules, there is an Election Tribunal to decide all disputes relating to election. Upon the pleadings of the parties, the learned Judge framed certain issues of which issue No. 2 is as follows :--

'Has this Court jurisdiction to entertain and try this suit in view of Rule 34, Clause (4) of the Bar Council Rules'.

4. It has been held by the learned Judge that the Civil Court has jurisdiction to entertain and try the suit in spite of the provision of Clause (4) of Rule 34. Hence this Rule. Under Clause (a) of Section 49(1) of the Advocates Act, 1961, the Bar Council of India may make rules for discharging its functions under the 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.

5. The Bar Council of India framed its rule including the rules for the election of members to the State Council. Rule 1 provides thatevery advocate whose name is on the electoral roll of the State Council shall be entitled to vote at an election. Rule 2 provides that subject to the provision of Rule 3, the name of every advocate entered in the said roll shall be entered in the electoral roll of the State Council. Rule 3 lays down certain disqualifications and if an advocate has any such disqualifications his name shall not be entered on the electoral roll. Clauses (a) and (b) of Rule 4 provide as follows :--

'4 (a). A preliminary electoral roll consisting of 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 Association aforesaid'.

6. By virtue of Clauses (a) and (d) of Section 15 of the Advocates Act, 1961, the Bar Council of West Bengal framed the election rules. Rule 13 provides as follows :--

'13. Preparation of list of voters:

(1) The Electoral Roll containing the list of voters shall be prepared by the State Bar Council in accordance with the rules of the Bar Council of India in Part III, Chap. 1 of the Bar Council of India Rules.

(2) In preparing the final electoral roll a Notice in the prescribed form shall be issued by the Secretary of the State Bar Council to all Advocates whose names are in the State Roll for the time being, asking them to intimate the Council within the time specified in the said Notice as to whether he has incurred any disqualification mentioned in Rule 3 of Chapter 1. Part III of the Bar Council of India Rules. By the said Notice the Secretary shall also inform the Advocate concerned that unless the information required by the Notice in question is received by the State Bar Council within the specified time or such extended time as may be granted by the Council on an application made on that behalf, his name shall not be included in the electoral roll.

(3) The Bar Council will publish for information of all Advocates concerned the purport of the Rule 13 (2) by a notice, in three daily newspapers, viz., (i) Statesman, (ii) Amrita Bazar and (iii) Ananda Bazar Patrika and also in the Official Gazette of the State'.

7. Rule 34 of the West Bengal Bar Council Rules provides as follows :--

'(1) Any voter may contest the validity of the election of a candidate declared to have been elected to the Bar Council by a petition signed by him and supported by an affidavit and delivered to the Secretary personally or sent by registered post so as to reach him within 15 days from the date of publication of the results of the election.

(2) The petition shall be accompanied by a fee of Rs. 250/- which shall be paid in cash or sent by Money Order-In case it is sent by M. O., the M. O. receipt shall also be attached to the petition. The fee shall not be refundable.

(3) Such petition shall include as respondents all the contesting candidates, and the petition shall be accompanied by as many copies as there are respondents.

(4) All disputes arising under the above sub-rules shall be decided by a tribunal to be known as an Election Tribunal comprising 3 Advocates whose names are on the State Roll and who are not less than of 10 years' standing.

(5) The Election Tribunal shall be appointed by the Bar Council on or before the date on which the time of the Election is fixed under Rule 4.

(6) The Election Tribunal shall have all or any of the following powers :--

(i) To dismiss a petition;

(ii) To order recount;

(iii) To declare any candidate to have been duly elected on a recount;

(iv) To set aside the election of the candidate who either by himself or through any other person acting with his consent is guilty of corrupt practices.

8. It thus appears that the plaintiff being an advocate and her name being on the State Roll and she not having any disqualifications, her name should have been included in the electoral roll of the Bar Council of West Bengal. It is the case of the plaintiff that the names of 9,000 Advocates have not been included in the electoral roll. The plaintiff has challenged the legality of the election held on Aug. 11 and 12, 1975 on the basis of the electoral roll which, according to the plaintiff, does not include the name of the plaintiff as also the names of 9,000 Advocates. Under Sub-rule (1) of Rule 34, only a voter is entitled to challenge the validity of the election of the candidate declared to have been elected to the Bar Council. The grounds of such challenge have not been specifically mentioned in Rule 34, but there is an indication in that regard under Sub-rule (6). Under Clause (ii) of Sub-rule (R) an Election Tribunal can order recount of the votes cast. Presumably such recount may be ordered by the Election Tribunal in case it is complained and proved that there has not been a proper counting. Clause (iv) of Sub-rule (6) indicates that the election of a candidate can be challenged on the ground of corrupt practices. These are, therefore, two grounds for challenging the election of a candidate declared to be elected to the Bar Council. But an election can be challenged only at the instance of a voter, that is, an advocate whose name has been included in the electoral roll. In this connection, we may refer to Sub-rule (2) of Rule 36 which provides that no petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character. Sub-rule (2) of Rule 36, therefore, debars a voter from challenging the election of a candidate on the ground of wrong inclusion or non-inclusion of a voter. The plaintiff is not a voter as her name has not been included in the electoral roll. Even if she had been a voter she could not challenge the election on the ground of non-inclusion of the names of 9,000 Advocates in the electoral roll, nor will any of such 9,000 Advocates be entitled to challenge the election. It is clear from the powers of the Election Tribunal as enumerated in Sub-rule (6) of Rule 34 that the Tribunal cannot set aside the election of members to the Bar Council on the ground that the names of 9,000 Advocates have not been included in the electoral roll. It has been already noticed that it follows from the powers of the Election Tribunal that such Tribunal can set aside the election of a candidate upon recounting of votes where there has not been a proper counting, and on the ground of corrupt practices of a candidate declared to be elected.

9. The question, therefore, is whether by the setting up of an Election Tribunal the jurisdiction of the Civil Court has been impliedly barred. It is settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must either he explicitly expressed or clearly implied (See Secretary of State v. Mask and Co., 67 Ind App 222 : AIR 1940 PC 105)). This principle has been relied on by the Supreme Court in Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai, : [1969]1SCR785 . The West Bengal Bar Council Rules do not contain any provision expressly excluding the jurisdiction of Civil Courts. Rule 34 also does not provide for such exclusion either expressly or by necessary implication, except that it may be said, that the Civil Court is by necessary implication, debarred from challenging the election of a candidate at the instance of a voter on the two grounds on which he may challenge such election before an Election Tribunal, and beyond that I do not find any implied exclusion of the jurisdiction of Civil Court to adjudicate the validity of an election to the West Bengal Bar Council.

10. Much reliance has been placed on behalf of the petitioners on the observation of Willes J. in Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 CB (NS) 336 at p. 356, as referred to by the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal, : [1952]1SCR218 . It has been inter alia observed by Willes J. that where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it, the remedy provided by the statute must be followed, and it is not competent to the party to pursue the common law remedy. It is contended by Mr. Ranjit Ghose, learned Advocate appearing on behalf of the petitioners that the names of the plaintiff and other advocates have not been included in the electoral roll as they did not furnish the information required by the State Bar Council under Sub-rule (2) of Rule 13 of the West Bengal Bar Council Rules which has been quoted above. Under Sub-rule (2) of Rule 13, if the information required by the notice is not received from the advocate concerned by the State Bar Council within the specified time or such extended time as may be granted by the Bar Council on an application made in that behalf, his name shall not be included in the electoral roll. A liability has, therefore, been created by Rule 13 (2). But no remedy has been provided for in the West Bengal Bar Council Rules in case an advocate feels aggrieved by the action of the Bar Council. In order to apply the principles of law laid down by Willes J. in Wolverhampton's case referred to above, the statute concerned which creates the liability must also provide remedy for the party aggrieved in the enforcement of the liability. As there is no provision in the West Bengal Bar Council Rules for any remedy which may be taken resort to by an advocate if he feels aggrieved by the non-inclusion of his name in the electoval roll, the said principles do not apply. In this connection, we may refer to the decision of the Supreme Court in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, : [1964]2SCR273 , where the same principle has been laid down. In these circumstances, I do not think that the jurisdiction of the Civil Court to try the instant suit has been barred by Rule 34 or any other rule, either expressly or by necessary implication, to entertain and hear the instant suit.

11. For the reasons stated above, the order of the learned Judge is affirmed. This Rule is discharged. There will, however, be no order for costs. Let the records be sent down at once and the learned Judge is directed to dispose of the suit as expeditiously as possible.


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