Bar Council Of Maharashtra vs Manubhai Paragji Vashi & Ors

Manubhai Paragji Vashi & Ors. ... Respondents

WITH

SPECIAL LEAVE PETITION NOs.18388-18389 OF 2007

Patil Rajiv Laxmna ... Petitioner

Versus

Manubhai Paragji Vashi & Ors. ... Respondents

O R D E R

A. K. PATNAIK, J.

These two Special Leave Petitions under Article 136 of

the Constitution are against the common judgments dated

13.12.2006, 04.06.2007 and 21.06.2007 of the

Bombay High Court in Writ Petition Nos. 903 of

2004 and 1781 of 2004 (for short `the impugned

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judgment') and relate to elections to the Bar Council of

Maharashtra and Goa.

2. The facts very briefly are that for elections to the Bar

Council of Maharashtra and Goa (for short `the State Bar

Council'), Electoral Roll was prepared in which the names of

the Advocates on the roll of the State Bar Council who had

not paid the subscription as per Rule 40, Chapter -II, Part

VI of the Rules were deleted from the Electoral Roll. The

names of these Advocates had to be deleted from the

Electoral Roll because Rule 6(h) of the Bar Council of

Maharashtra and Goa Rules (for short `the State Bar

Council Rules') provided that the name of an Advocate

appearing in the State Bar Council Roll shall not be on the

Electoral Roll if he has not paid the subscription under Rule

40, Chapter - II, Part VI of the Rules and obtained receipt

from the State Bar Council. Respondent No.1, who was

earlier a member of the State Bar Council, filed Writ Petition

No. 903 of 2004 before the High Court on 31.12.2003

praying that all the Advocates on the Roll of the State Bar

Council be allowed to cast their votes and contest the

elections without being disqualified for non-payment of the

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amounts as per Rule 40, Chapter - II, Part VI of the Rules.

While the Writ Petition was pending, elections to the State

Bar Council were held and the result of the elections was

declared on 04.03.2004. Respondent Nos. 1 and 7 to 30

were declared elected to the State Bar Council and the State

Bar Council was constituted for a fresh term of five years.

Respondent No.1 amended the Writ Petition No. 903 of 2004

and prayed for striking down Rule 6(h) of the State Bar

Council Rules as ultra vires the powers of the State Bar

Council. Under Rule 31 of the State Bar Council Rules, it

was provided that a voter shall be entitled to mark his

preferences to all the candidates appearing in the voting

paper and Rule 32 (g) of the State Bar Council Rules

provided that a voting paper shall be invalid in which

preferences to less than ten candidates are communicated.

Respondent No.1 also challenged these provisions in Rules

31 and 32 and prayed for the deletion of the provision for

communicating a minimum of ten preferences in the voting

paper. On 07.06.2004, some other Advocates filed Writ

Petition No. 1781 of 2004 seeking similar reliefs. In both

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the Writ Petitions a prayer was made for setting aside the

election to the State Bar Council held on 04.03.2004.

3. After the replies were filed by the State Bar Council as

well as the Bar Council of India, the Division Bench of the

High Court heard the matter and the learned Judges

delivered two separate judgments on 13.12.2006. While one

learned Judge, Anoop V. Mohta, J. held Rules 6(h) and 32(g)

of the State Bar Council Rules valid, the other learned

Judge, F.I. Rebello, J. held Rules 6(h) and 32(g) as ultra

vires the powers of the State Bar Council. The matter was

referred to a third learned Judge, D.K. Deshmukh, J., who

on 04.06.2007 agreed with F.I. Rebello, J. and held that

Rules 6(h) and 32(g) are ultra vires the powers of the State

Bar Council. Rebello and Deshmukh, JJ., have held that

under Section 49(1)(a) of the Advocates Act, 1961, (for short

`the Act') it is the Bar Council of India which has the power

to make Rules prescribing the conditions subject to which

an Advocate may be entitled to vote at an election to the

State Bar Council, including qualification or disqualification

of voters, and under Section 15 of the Act a State Bar

Council has only the power to make rules for election of the

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members of the State Bar Council and for preparation and

revision of Electoral Rolls and that Rules 6(h) and 32(g) of

the State Bar Council Rules are not rules relating to the

preparation and revision of Electoral Rules, but rules laying

down the conditions subject to which an Advocate would be

entitled to vote at an election of the State Bar Council,

including the qualification and disqualification of voters,

and therefore the State Bar Council had by making Rules

6(h) and 32(g) of the State Bar Council Rules exceeded its

powers and encroached on the power of the Bar Council of

India. By the impugned common order dated 21.06.2007,

the High Court allowed the Writ Petitions in terms of the

judgment of Rebello, J. declaring Rules 6(h) and 32(g) of the

State Bar Council Rules as ultra vires Section 49(1)(a) of the

Act and directed the State Bar Council to have counted the

votes which were declared invalid counted on the ground

that voters had not cast ten preference votes.

4. Mr. U.U. Lalit, learned senior counsel for the

petitioner, submitted that Rule 6(1)(h) of the State Bar

Council Rules provides that the name of an Advocate in the

State Bar Council Roll shall not be on the Electoral Roll if he

6

has not paid the subscription under Rule 40, Chapter - II,

Part VI of the Rules and obtained receipt from the State Bar

Council, is really a rule made by the State Bar Council in

relation to election of the members of the State Bar Council

and relating to preparation of Electoral Roll and was

therefore within the powers of the State Bar Council under

Section 15(1) of the Act. He further submitted that Rule

32(g) of the State Bar Council Rules which provided that a

voting paper shall be invalid in which the preferences to less

than ten candidates are communicated, is a rule relating to

the validity of a ballot paper and was also within the powers

of the State Bar Council under Section 15(1) of the Act to

make rules in relation to election of its members. He

submitted that the High Court therefore was not right in

coming to the conclusion that Rules 6(1)(h) and 32(g) of the

State Bar Council Rules are beyond the powers of the State

Bar Council and were within the powers of the Bar Council

of India. He further submitted that in any case the State

Bar Council Rules made by the State Bar Council including

Rules 6 and 32 were approved by the Bar Council of India

under Section 15(3) of the Act. He cited the judgments of

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this Court in Km. Shradha Devi v. Krishna Chandra Pant

and Others [(1982) 3 SCC 389 (II)] and Ananga Uday Singh

Deo v. Ranga Nath Mishra and Others [(2002) 1 SCC 499] in

which the system of proportional representation by single

transferable vote has been discussed and explained.

5. In reply, Mr. Colin Gonsalves, learned senior counsel

appearing for the respondents, submitted that in exercise of

powers under Section 49(1)(a) of the Act the Bar Council of

India has in Rule 1, Chapter - I, Part III of the Bar Council

of India Rules, 1975, provided that every Advocate whose

name is on the Electoral Roll of the State Bar Council shall

be entitled to vote at an election. He submitted that this

valuable right given to an advocate whose name is on the

Electoral Roll of the State Bar Council to vote at an election

of the State Bar Council cannot be taken away by the State

Bar Council by providing that the vote cast by an Advocate

will not be counted and will be held invalid if the Advocate

has not communicated at least ten preferences in the ballot

paper. He submitted that Rule 32(g) of the State Bar

Council Rules made by the State Bar Council is therefore in

direct conflict with Rule I, Chapter I, Part III of the Bar

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Council of India Rules, 1975, made by the Bar Council of

India in exercise of its powers under Section 49((1)(a) of the

Act. He submitted that this Court has taken a view in the

case of Lily Thomas v. Speaker, Lok Sabha [(1993) 4 SCC

234] that voting means formal expression of will or opinion

by the person entitled to exercise the right and this right

will not only include the right in favour or against the

motion or resolution, but also the right to remain neutral.

He submitted that when an Advocate votes for even one

candidate and does not communicate his preferences for

any other candidate on the ground that according to his

opinion none other candidate was suitable for being elected

as a member of the State Bar Council, his vote cannot be

discarded. He relied on the decision of this Court in

Shradha Devi v. Krishna Chandra Pant and Others (supra) in

support of his submission that every elector has one vote

and indicating other preferences is optional for the elector

and if he has not communicated other preferences his ballot

paper cannot be rejected as invalid. He submitted that in

Bar Council of Delhi and Others v. Surjeet Singh and Others

[(1980) 4 SCC 211] this Court has held that mere approval

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of the Bar Council of India could neither validate or

otherwise ultra vires a rule, nor have the effect of making up

a rule made by the Bar Council of India itself. He submitted

that the approval of the Bar Council of India to Rule 32(g) of

the State Bar Council Rules will therefore not make the rule

valid.

6. The relevant provisions of Section 15 and Section 49 of

the Act are extracted hereinbelow:

15. Power to make rules.--

(1) ......

(2) In particular, and without prejudice to the

generality of the foregoing power, such rules may

provide for--

(a) the election of members of the Bar Council by

secret ballot including the conditions subject to

which persons can

exercise the right to vote by postal ballot, the

preparation and revision of electoral rolls and the

manner in which the result of election shall be

published;

.........................................................................

(3) No rules made under this section by a State

Bar Council shall have effect unless they have

been approved by the Bar Council of India.

49. General power of the Bar Council of India

to make rules.--

10 (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;

Rules 6(h), 31 and 32 of the State Bar Council Rules

are extracted hereinbelow:

"6. The name of an Advocate appearing in

the Bar Council Roll shall not be on the Electoral

Roll, if on information received or otherwise

obtained by the Bar Council that :-

(a) .....

(b) .....

(c) .....

(d) .....

(e) .....

(f) ......

(g) .....

(h) If he has not paid the subscription under

Rule 40, Chapter - II, Part VI of the Rules and

obtained receipt from the State Bar Council.

31. Method of Voting : - (1) Voter shall be

entitled to mark his preferences to all the

candidates appearing in the voting paper in the

form mentioned hereinbelow and such

preferences shall not be less than to ten

candidates.

32. Voting papers when invalid:- A voting

paper shall be invalid in which:-

11 (a) .....

(b) .....

(c) .....

(d) .....

(e) .....

(f) ......

(g) Preference to less than ten candidates are

communicated."

7. It will be clear from the language of Section 49(1)(a) of

the Act that the Bar Council of India has the power to make

rules prescribing the conditions subject to which an

Advocate may be entitled to vote at an election to the State

Bar Council, including the qualification or disqualification of

voters, and the manner in which the Electoral Roll of voters

may be prepared and revised by the State Bar Council. In

exercise of its power the Bar Council of India has made

rules in Part III, Chapter - I of the Bar Council of India

Rules, 1975. Rule (1) and 2(h) of these rules are quoted

hereinbelow:

"1. Every advocate whose name is on the

electoral roll of the State Council shall be

entitled to vote at an election.

2. The name of an advocate appearing in the

state roll shall not be on the electoral roll, if on

information received or obtained by the State

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Bar Council concerned on the basis of which it

is satisfied that-

x x x x x x x x x x x x x x

(h) if he has not paid the subscription under

Rule 40 Chapter-II, Part VI of the Rules and

obtained receipt from the State Bar Council;"

8. The language of Rule (1) is clear that every Advocate

whose name is on the Electoral Roll of the State Council

shall be entitled to vote at an election. Rule 2(h), however,

states that the name of an Advocate appearing in the State

Roll shall not be on the Electoral Roll if he has not paid the

subscription under Rule 40, Chapter - II, Part VI of the

Rules and obtained receipt from the State bar Council. The

language of Rule 2(h) is therefore verbatim the same as Rule

6(h) of the State Bar Council Rules made by the State Bar

Council and lays down a condition subject to which an

Advocate will be entitled to vote inasmuch as it provides

that he will be entitled to vote provided he has paid his

subscription. The State Bar Council could not have made

such a provision in Rule 6(h) of the State Bar Council Rules

in exercise of its powers under Section 15 of the Act and

such a provision could only be made by Bar Council of India

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under Section 49(1)(a) of the Act. The High Court was,

therefore, right in holding that Rule 6(h) of the State Bar

Council Rules was ultra vires Section 49(1)(a) of the Act.

However, as Rule 2(h) of the Bar Council of India Rules

makes exactly the same provision, names of the Advocates

who had not paid the subscription had to be deleted from

the Electoral Roll.

9. Regarding Rule 32(g) of the State Bar Council Rules

made by the State Bar Council, it is clear from Rule 32(g)

that by the said rule a vote cast by an Advocate is rendered

invalid if he has indicated in the ballot paper less than ten

preferences. The effect of this rule is that an Advocate

whose name is on the Electoral Roll of the State Bar Council

and is entitled to vote at an election under Rule 1, Chapter -

I, Part III of the Bar Council of India Rules, 1975, will not be

able to cast his vote in favour of even a single candidate to

whom he may have communicated his first preference vote.

In other words, Rule 32(g) has the effect of taking away the

right conferred on an Advocate whose name is on the

Electoral Roll of the State Bar Council to vote at an election

under Rule 1, Chapter - I, Part III of the Bar Council of

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India Rules, 1975, made under Section 49((1)(a) of the Act.

To say, as is said in Rule 32(g), that the vote of an Advocate

whose name is on the Electoral Roll will not be accepted is

to lay down that he can vote provided he indicates a

minimum of ten preferences in the ballot paper. Rule 32(g),

therefore, is not a rule relating to validity of ballot paper but

a rule relating to a condition subject to which an Advocate

can vote and was beyond the powers of the State Bar

Council under Section 15(2)(a) of the Act. In Shradha Devi

v. Krishna Chandra Pant and Others (supra), this Court

held:

"12.....It, therefore, necessarily follows that

when voting is in accordance with the

proportional representation by means of the

single transferable vote it is obligatory to cast

the first preference vote for ensuring the

validity of the ballot-paper and the first

preference vote must be so cast as not to

leave any one in doubt about it. The

remaining preferences are optional with the

elector. He may or may not exercise his

franchise for the remaining preferences. If he

chooses not to exercise remaining preferences

the ballot-paper cannot be rejected as invalid

for failure to exercise the remaining

preferences......."

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10. Once we hold that Rules 6(h) and 32(g) of the State Bar

Council Rules are ultra vires the Act, the fact that Bar

Council of India has approved the two provisions made by

the State Bar Council under Section 15(3) of the Act will not

validate Rules 6(h) and 32(g) of the State Bar Council Rules.

In Bar Council of Delhi and Others v. Surjeet Singh and

Others (supra), this Court has observed:

"8-A........But the approval of the Bar Council

of India can make the rule made by the State

Bar Council valid and effective only if the rule

made is within the competence of the State

Bar Council, otherwise not. Mere approval by

the Bar Council of India to a rule ultra vires

the State Bar Council cannot make the rule

valid. Nor has it the effect of a rule made by

the Bar Council of India. Making a rule by

the Bar Council of India and giving approval

to a rule made by the State Bar Council are

two distinct and different things. One cannot

take the place of the other."

11. For the aforesaid reasons, we are not inclined to

entertain these Special Leave Petitions and we accordingly

dismiss the same. There shall be no order as to costs.

.............................J.

(R. V. Raveendran)

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.............................J.

(A. K. Patnaik)

New Delhi,

October 13, 2011.