Pratap Chandra Mehta vs State Bar Council Of M.P.& Ors

Pratap Chandra Mehta ... Appellant

Versus

State Bar Council of M.P. & Ors. ... Respondents

With

CIVIL APPEAL NO.6483 OF 2011

(Arising out of SLP (CIVIL) No. 16088 of 2011)

Rameshwar Neekhra ... Appellant

Versus

State Bar Council of M.P. & Ors. ... Respondents

J U D G M E N T

Swatanter Kumar J.

1. Leave granted.

2. From the very simple facts of these cases, the following

substantial questions of law and public importance arise for

1

consideration of this Court:

(1) Whether the provisions of Rules 121 and 122-A of the State

Bar Council of Madhya Pradesh Rules (for short, the `M.P.

Rules') are ultra vires Section 15 of the Advocates Act, 1961

(for short, `the Advocates Act'), inter alia for the reason that

there is no nexus between the rule making power of the

State Bar Councils and the powers provided under Section

15(1) or 15(2)(c) of the Advocates Act? Was the delegation

of legislative power under Section 15 of the Advocates Act

excessive, inasmuch as it does not provide any guidelines

for removal of office-bearers of the State Bar Councils?

(2) Whether despite the absence of the enabling provisions in

the principal statute, namely, the Advocates Act,

empowering subordinate State Bar Councils to enact

provisions for removal of the office bearers of the State Bar

Councils by `no confidence motions', such power could be

read into the general clause of Section 15(1) of the

Advocates Act?

(3) Whether Rules 121 and 122-A of the M.P. Rules are invalid

for want of prior approval from the Bar Council of India?

2

3. The necessary facts are that the Parliament enacted the

Advocates Act on 19th May, 1961. Section 15 of the Advocates

Act empowers the State Bar Councils to frame Rules to carry out

the powers conferred upon the State Bar Councils under

Sections 15(1), 15(2), 28(1) and 28(2) read with Chapter II and

other provisions of the Advocates Act. The State Bar Council of

Madhya Pradesh (for short `the State Bar Council'), with the

approval of the Bar Council of India, made and published the

M.P. Rules in 1962. These M.P. Rules came to be amended on

27th April, 1975.

4. Section 15 of the Advocates Act provides that the State

Bar Councils can frame/amend the Rules with prior approval of

the Bar Council of India. Section 15(2)(a) of the Advocates Act

read with Part III and IX of the Bar Council of India Rules (for

short, `the Rules') contemplates that election to the State Bar

Council shall be held. In furtherance to this legislative mandate,

the election to the State Bar Council were held in the year 2008

and Mr. Rameshwar Neekhra was elected as Member and then

Chairman of the State Bar Council by its members on 31st

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August, 2008. After the expiry of 2= years, fresh elections were

held on 12th February, 2011 and the said Mr. Neekhra was again

elected as member, and then the Chairman of the State Bar

Council by its members. He is stated to have secured 21 votes,

out of a total 25 votes of the Members of the State Bar Council.

Mr. Adarsh Muni Trivedi was elected as Vice-Chairman of the

State Bar Council.

5. At the very threshold of the 15th Meeting of the General

Body of the State Bar Council held on 27th March, 2011 at

Jabalpur, a number of Members submitted two requisitions: one

stated that due to lack of confidence in the Chairman and Vice-

Chairman, a `no confidence motion' should be issued; and the

second requisition stated that, since the election of the

Committees for the second term was not as per the constitution,

re-election for the Committees may be conducted. They

requested the State Bar Council to call a special meeting to

consider these requisitions. It is also recorded in these Minutes

that the Chairman and Vice-Chairman had offered their

resignation, subject to withdrawal of the requisition of `no

confidence motion'. There was a long discussion, whereafter it

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was resolved that the agenda of the special meeting was to be

circulated on the same day i.e. 27th March, 2011 by registered

post. Copy of the resolution passed and the requisition motion

of `no confidence', would be circulated to all Hon'ble Members of

the State Bar Council i.e. who were present and those who were

not present. These Minutes, annexed as `P-10' (colly) to the

petition, read as under:

"Before the start of the meeting Hon'ble

Members S/s Vinod Kumar Bhardwaj,

Kuldeep Bhargava, Ghanshyam Singh,

Prem Singh Bhadouria, Shivendra

Upadhyay, Champa Lal Yadav, Dinesh

Narayan Pathak, Khalid Noor Fakhruddin,

Mrigendra Singh Baghel, Jai Prakash

Mishra, Prabal Pratap Singh Solanki, Ku.

Rashmi Ritu Jain and B.K. Upadhyay

submitted two requisition motion of no

confidence. In one of the requisition motion

of no confidence they have stated that they

have no confidence in Chairman, Vice-

Chairman and Treasurer therefore, they are

moving no confidence motion against them.

In the second requisition motion they have

requested that since the election of the

Committees for the second term were not as

per the constitution therefore and even

otherwise they want re-election for the

Committees. For both the requisition

motion they have requested to call a special

meeting and consider their vote of no

confidence against Chairman, Vice-

Chairman and Treasurer. For another

5

requisition motion they have requested to

call a special meeting and consider their

proposal. When the meeting was started

both the requisition motion were placed

before the Hon'ble Chairman. Shri Ganga

Prasad Tiwari, Hon'ble Treasurer, Shri

Rameshwar Neekhra, Hon'ble Chairman

and Shri A.M. Trivedi, Hon'ble Vice-

Chairman stated that they offer their

resignation subject to withdrawal of

requisition of no confidence motion. There

had been long discussion and members S/s

Vinod Kumar Bhardwaj, Prem Singh

Badhouria, Champa Lal Yadav, Pratap

Mehta, Vijay Kumar Choudhary,

Ghanshyam Singh, Z.A. Khan, Kuldeep

Bhargava, Khalid Noor Fakhruddin, Rajesh

Pandey Mrigendra Singh Bhagel, Prabal

Pratap Singh Solanki expressed their views.

There had been divergent views in respect

of withdrawal of no confidence motion as

well as conditional resignation offered by

Hon'ble Chairman, Vice-Chairman and

Treasurer. As such it is resolved to hold a

special meeting on 16th April, 2011 at

Jabalpur from 12.30P.M. onwards in term

of Rule 122(A) & (B) of State Bar Council of

Madhya Pradesh Rules. It is resolved that

agenda of the meeting be circulated today

itself by registered post and copy of the

resolution passed along with requisition

motion of no confidence be circulated to all

Hon'ble Members of the Council who are

present and to them also who are not

present today."

6. It appears from the record that in terms of the above

minutes of the 15th Meeting of the General Body of the State Bar

6

Council held on 27th March, 2011, the notices of the 16th Meeting

were also issued and circulated. The 16th Meeting of the General

Body of the State Bar Council was decided to be held on 16th

April, 2011 in the Meeting dated 27th March, 2011 itself.

7. After issuing the notice in accordance with the M.P.

Rules, a meeting of the State Bar Council was held on 16th April,

2011. At this meeting, the `no confidence motion' was moved by

13 members of the State Bar Council, in terms of Rule 122-A of

the M.P. Rules, against both the Chairman and the Vice-

Chairman. The parties to the present appeals are at some

variance as to the manner, knowledge and the decision with

which the meeting was closed. The respondents herein have

contended that in this meeting, there was actual discussion of

the `no confidence motion' moved by some of the members of the

State Bar Council, which was a part of the formal agenda notice

issued by the Secretary of the State Bar Council. In the Minutes

placed on record as Annexure R-16/6, it has been stated that

item No.2 of the agenda, which was to consider the

requisitioning of `no confidence motion', was actually considered

and the question arose as to whether Shri Rameshwar Neekhra,

7

the Chairman could still preside over the meeting. There was

some discussion on that issue, whereafter the Chairman along

with the Secretary is stated to have left the meeting on 16th April

2011. The Advocate General had then presided over the meeting,

and the `no confidence motion' is stated to have been passed by

majority of the members. It will be useful to refer to the Minutes

of the Meeting, held on 16th April, 2011 on this issue, which are

as follows:

"Twelve of the Members have quit away the

meeting on the ground that by virtue of

Rule 15 of Chapter V no matter can be

decided and reconsidered for a period of

three months unless the Council by 2/3 of

majority of the Members present shall

permit. The affect of this rule is also

required to be considered by the Hon'ble

High Court and all these issues are open

before the Hon'ble High Court.

So far as the presiding over of the

meeting is concerned, Rule 14 of Chapter V

says that in the absence of any provision

the matter is to be decided by the majority.

That being so the majority of the Members

present have decided to consider the No

Confidence Motion hence this meeting is

now being presided over by Advocate

General to whom the majority has decide to

preside.

Before the start of the Meeting

Hon'ble Member Shri Prabal Pratap Singh

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Solanki has asked Shri Rameshwar

Neekhra, Chairman to kindly decide that

the Members are ready to participate in the

No Confidence Motion but at that time

Hon'ble Chairman quit the Meeting Hall

along with his followers and also took away

the Secretary saying that we are not going

to participate in the No Confidence Motion.

At this Juncture Shri Vinod Kumar

Bhardwaj, Hon'ble Member State Bar

Council of Madhya Pradesh requested Shri

R.D. Jain, Hon'ble Advocate General and Ex

Official Member who remained present from

the very beginning of the meeting and has

watched all the proceedings & discussions

which took place by the Hon'ble Members

Shri Bhardwaj requested the Hon'ble

Advocate General Shri R.D. Jain to preside

over the meeting which was seconded by all

the members present as following:

1. S/Shri Vinod Kumar Bhardwaj, (2)

Kuldeep Bhargava (3) Jai Prakash

Mishra (4) Shivendra Upadhyay (5)

Ms. Rashmi Ritu Jain (6) Dinesh

Narayan Pathak (7) Prem Singh

Bhadouria (8) Champa Lal Yadav (9)

Ghanshyam Singh (10) Mrigendra

Singh Baghel (11) Prabal Pratap Singh

Solanki (12) Khalid Noor Fakhruddin

(13) Shri Ghanshyam Singh, Hon'ble

Members.

Shri R.D. Jain, Hon'ble Adovate

General and Ex Officio Member stated that

the meeting need not be adjourned and the

Hon'ble Advocate General also read out the

part of the order of Hon'ble High Court in

WP No. 6372/11.

9

Item No. 2 Resolution No. 258/GB/2011

The Item No. 2 of the agenda was read over.

The members are asked to give their vote

for or against by raising their hands.

Since the majority of the Members of the

Council have supported the motion by

raising hands it stands passed under Rule

122(A).

The following Members are present in the

house as per below:

S/Shri (1) Vinod Kumar Bhardwaj (2) Jai

Prakash Mishra (3) Shivendra Upadhyay (4)

Ms. Rashmi Ritu Jain (5) Kuldeep Bhargava

(6) Dinesh Narayan Pathak (7) Prem Singh

Bhadouria (8) Champa Lal Yadav (9)

Ghanshyam Singh (10) Mrigendra Singh

Baghel (11) Khalid Noor Fakhruddin (12)

Prabal Pratap Singh Solanki (13) Bal

Krishna Upadhyay have supported the

motion and hence the motion stands

passed by a majority of all the members

present and the voting under Rule 122-A."

8. We may notice that two sets of minutes recorded

differently for the same meeting have also been placed on record

as Annexure P-10 (colly) and R-16/4 respectively. It needs to be

noticed that one set of minutes is only signed by the Secretary of

the State Bar Council while the other is signed by the Secretary

as well as by other members who passed the Resolution.

9. In the Minutes of the meeting dated 16th April, 2011, it

10

had been specifically recorded that the Resolution is not to be

given effect to in view of the orders passed by the Madhya

Pradesh High Court on 15th April, 2011 in Writ Petition No. 6372

of 2011. However, the copy of the proceeding was to be

communicated to the Registrar General of the High Court of

Madhya Pradesh. This Resolution had been signed by the

members present.

10. One Pratap Chandra Mehta had filed this above-

mentioned Writ Petition No. 6372 of 2011, challenging the vires

of Rules 121 and 122-A of the M.P. Rules. These Rules related

to the term of, and procedure for passing a `no confidence

motion' against the Chairman, Vice-Chairman and the Treasurer

etc. As already noticed, the Court had directed that the meeting

of the State Bar Council could be held on 16th April, 2011, but

the Resolution, if passed, would not be given effect to, till further

orders. The matter was ordered to be listed for hearing on 25th

April, 2011. In the meanwhile, another writ petition was also

filed being Writ Petition No. 6628 of 2011 and the High Court in

its final judgment observed that, in both the petitions same

relief, on virtually the same grounds, had been claimed. The

11

High Court had framed two basic points for decision:

Whether Rule 122-A, as framed under Section 15 of the

1.

Advocates Act was, ultra vires; and

Whether the second Resolution, dated 16th April, 2011 was

2.

invalid?

11. Vide its detailed judgment dated 20th May, 2011, the

High Court decided both the issues against the petitioners and

dismissed the writ petitions while vacating the interim order.

The High Court held as under:

"22. On point (E) of para 16 above, it was

urged from the petitioner's side that if

Section 15(1) of the Act is taken to be the

source of power for framing Rules

prescribing the tenure for an elected

chairman, and prescribing curtailment

such tenure through a no-confidence

motion, then such delegation to

subordinate legislation must be struck

down as it confers wholly unguided and

thus unfettered powers upon the delegate

subordinate legislative Authority. In reply

it could not be shown that there is any

express guidance or that any policy

guidance can be deciphered from all or any

of the provisions of the Act or from the

scheme of the Act, regarding what tenure, if

any, should be permitted, and if so under

what circumstances and by what process,

subject to what restrictions.

12

23. A totally misplaced reliance was

placed upon the case of V. Sudheer

v. Bar Council of India [(1993) 3

SCC 176] which merely says that

the State Bar Council under Section

24(1)(e) of the Act could have

prescribed pre-enrolment training,

but the Bar Council of India could

not do so under Section 49 of the

Act. `Hukam Chand v. Union of

India [(1972) 2 SCC 601] was also

unnecessarily cited. It deals with

power to frame a rule with

retrospective effect and has no

relevance here. Two decision of the

Supreme Court in the case of

`Vasanlal Maganbhai vs. State of

Bombay [AIR 1961 4(para) and in

the case of `Agricultural Market

Committee vs. Shalimar Chemical

Works' reported in [(1997) 5 SCC

516 (para 26) were cited from the

petitioners side, both laying down

the same principle, which needs to

be discussed. The relevant part of

the latter (1997) decision reads "The

principle which therefore emerges

out is that the essential legislative

function consists of the

determination of the legislative

policy and the legislature cannot

abdicate essential legislative

function in favour of another.

Power to make subsidiary

legislation may be entrusted by the

legislature to another body of its

choice but the legislature should

before delegating, enunciate either

expressly or by implication, the

policy and the principles for the

13

guidance of the delegates".

However, the words of the Supreme

Court immediately following the

above quoted words bring out the

implication. They read "The effect

of these principles is that the

delegate.........cannot widen or

constrict the scope of the Act or the

policy laid down thereunder. It

cannot, in the garb of making rules,

legislate on the field covered by the

Act......". We do not find the rule in

question to be widening or

constricting the scope of either the

Act or any policy laid down under

the Act. Nor is the Rule in question

legislating upon any field covered

by the Act. To the same effect is

cited the case of `Addl. District

Magistrate Vs. Sir Ra,' (2005) 5 SCC

451 (para 16).

27. This brings us to the last point raised

by the petitioners. The decisions of

the Delhi and Kerala High Court

reported respectively in AIR 1975 Del

200 `Bar Council of Delhi Vs. Bar

Council of Kerala Vs.....' were read out

before us. It was pointed out that in

the Delhi case common law was used

to justify an implied power of removal

of the elected Chairman on the ground

that the statute had not changed the

common law. The correctness of the

law laid down in that decision was

assailed by placing reliance on AIR

1954 SC 210 `Jagan Nath Vs. Jaswant

Singh', (1982) 1 SCC 691 `Jyoti Basu

Vs. Debi Ghoshal', (1984)1SCC 91

`Arun Kumar Bose Vs. Mohd. Furkan

14

Ansari ` and (1992) 4 SCC 80 `Mohan

Lal Tripathi Vs. District Magistrate'.

And it was argued that concepts

familiar to common law and equity

must remain strangers to Election Law

unless statutorily embodied. In

respect of the Kerala High Court

decision it was argued that the Court

fell in error in reading the power of

removal as `incidental'. It is not

necessary to go into these arguments

because as stated above the Rule

regarding removal is not justified

under Section 15(2) but under Section

15(1) of the Act, which is of wide

amplitude and there is no reason to

restrict the scope of Rule making

power under Section 15(1) so as to

exclude (i) prescription of tenure, or (ii)

removal on a vote of no-confidence

from the ambit of the Rule making

power conferred by that provision.

28. Before moving on to the next issue, we

may refer to a decision cited by the

Respondent no.6 (of W.P. No. 6628).

In this interesting decision by a Full

Bench of Gujarat High Court in the

case of `N.B. Posia Vs. Director'

reported in AIR 2002 Guj 348 (PB)

(relevant paragraphs are 46 and 66 of

that law report) it has been held that

though there was no provision in the

Act or statutory Rules for removal of

an elected Chairman of the

Committee, yet (i) the words "ceasing

to hold office for any reason" include

the removal by a no-confidence motion

and (ii) if a holder of an office if elected

by a simple majority, he can be

15

removed (through no-confidence

motion) by a simple majority (even in

absence of a statutory provision for

such removal). With utmost respect to

the said decision, we find ourselves

totally unable to subscribe to either of

the two propositions therein."

12. It is the legality and correctness of the above reasoning

that has been questioned before us in the present appeals. We

have already noticed that the questions which arise for

consideration in the present cases are of some public importance

and are matters which are likely to arise repeatedly in the

conduct of affairs of the State Bar Councils. Before we proceed

to discuss the legal aspects of the propositions involved in the

present cases, it will be more appropriate for the Court to notice

the scheme of the Advocates Act and the relevant provisions of

the laws and rules.

13. The Parliament of India enacted the Advocates Act on

19th May, 1961 to amend and consolidate the laws relating to

legal practitioners and to provide for the constitution of State

Bar Councils and an All India Bar Council. The object of the

Advocates Act is to constitute one common Bar for the whole

16

country and to provide machinery for its regulated functioning.

Though the Advocates Act relates to legal practitioners in its pith

and substance, it is an enactment dealing with the

qualifications, enrolment, right to practise and discipline of

advocates. It is not only implicit but clear from the provisions of

the Advocates Act that once an advocate is enrolled by any State

Bar Council, he becomes entitled to practise in all courts

including the Supreme Court. Therefore, this is a legislation

which deals with persons entitled to practise before the Supreme

Court. In the case of O.N. Mohindroo vs. Bar Council of Delhi &

Ors. [AIR 1968 SC 888] this Court held that:

"(10) The object of the Act is thus to

constitute one common Bar for the whole

country and to provide machinery for its

regulated functioning. Since the Act sets up

one Bar, autonomous in its character, the

Bar Councils set up thereunder have been

entrusted with the power to regulate the

working of the profession and to prescribe

rules of professional conduct and etiquette,

and the power to punish those who commit

breach of such rules. The power of

punishment is entrusted to the disciplinary

committees ensuring a trial of an advocate

by his peers. Section 35, 36 and 37 lay

down the procedure for trying complaints,

punishment and an appeal to the Bar

Council of India from the orders passed by

the State Bar Councils. As an additional

17

remedy S. 38 provides a further appeal to

the Supreme Court. Though the Act relates

to the legal practitioners, in its pith and

substance it is an enactment which

concerns itself with the qualifications,

enrollment, right to practise and discipline

of the advocates. As provided by the Act

once a person is enrolled by any one of the

State Bar Councils, he becomes entitled to

practise in all courts including the Supreme

Court. As aforesaid, the Act creates one

common Bar, all its members being of one

class, namely, advocates. Since all those

who have been enrolled have a right to

practise in the Supreme Court and the High

Courts, the Act is a piece of legislation

which deals with persons entitled to

practise before the Supreme Court and the

High Courts. Therefore the Act must be

held to fall within entries 77 and 78 of List

I. As the power of legislation relating to

those entitled to practise in the Supreme

Court and the High Courts is carved out

from the general power to legislate in

relation to legal and other professions in

entry 26 of List III, it is an error to say, as

the High Court did, that the Act is a

composite legislation partly falling under

entries 77 and 78 of List I and partly under

entry 26 of List III."

14. If one looks into the statement of objects and reasons for

enacting the Advocates Act, it becomes clear that the Act seeks

to implement the recommendations of the All India Bar

Committee, made in the year 1953, after taking into account the

18

recommendations of the Law Commission on the subject of

Reform of Judicial Administration, and particularly, the

recommendations relating to the Bar and to legal education. It

was, therefore, conceptualized to legislate a law which will

govern the State Councils and the All India Bar Councils in

different specified fields. The main features of the Advocates Act

were, the integration of the Bar into a single class of legal

practitioners known as advocates; the establishment of a

common roll of advocates, having a right to practise in any part

of the country and in any court, including the Supreme Court;

the prescription of uniform qualifications for the admission of

persons to become advocates; the division of advocates into

senior advocates and other advocates based on merit; and the

creation of autonomous Bar Councils, one for the whole of

India, i.e, the establishment of an All India Bar Council and one

for each State. We may examine some of the relevant provisions

of the Advocates Act.

15. Section 2(a) of the Advocates Act defines an `advocate' to

mean an advocate entered in any roll under the provisions of the

Advocates Act.

19

`Bar Council' means a Bar Council constituted under the

Advocates Act.

On the other hand, the `Bar Council of India' means the

Bar Council constituted under Section 4 for the territories to

which the Advocates Act extends.

The `State Bar Council' means a Bar Council constituted

under Section 3 of the Advocates Act.

The expression `prescribed for the purposes of this Act'

means prescribed by the rules made under the Advocates Act.

16. The constitution of State Bar Council is provided under

Section 3 of the Advocates Act and as would be evident, this

Section has been subjected to numerous amendments made

from time to time. The constitution of the State Bar Council has

been spelt out in Section 3(2); and Section 3(3) of the Advocates

Act which provides that there shall be a Chairman and a Vice-

Chairman of each State Bar Council, elected by the members, in

such manner as may be prescribed. The Advocates Act, inter

20

alia, imposes certain restrictions and the deeming provisions in

terms of Sub-sections (3) and (3A) of Section 3 of the Advocates

Act, that every person holding office as Chairman or as Vice-

Chairman of any State Bar Council immediately before the

commencement of the Advocates (Amendment) Act, 1977, shall,

on such commencement, cease to hold office as the Chairman or

Vice-Chairman, as the case may be, but, would continue to

carry on the duties of his office until the persons elected as

Chairman or Vice-Chairman, as the case may be, in accordance

with the provisions of the Advocates Act, assume charge.

17. Section 3(4) of the Advocates Act requires that an

advocate shall be disqualified from voting at an election under

sub-section (2) or for being chosen as a member of the State Bar

Council, unless he possesses such qualifications or satisfies

such conditions as are prescribed in this behalf.

18. All elections to the State Bar Council are to be held in

accordance with the provisions of the Act. Similarly, under

Section 4 of the Advocates Act, Bar Council of India shall consist

of the persons stated under the Advocates Act. The provisions of

21

the Advocates Act dealing with State Bar Councils under Section

3, are substantially similar to the provisions with respect to the

Bar Council of India, under Section 4 of the Advocates Act. Every

Bar Council shall be a body corporate having perpetual

succession and a common seal, with power to acquire and hold

property and to sue and be sued in its own name.

19. The functions of the State Bar Council and the Bar

Council of India are prescribed under Sections 6 and 7 of the

Advocates Act. Besides admitting persons as advocates on its

rolls [Section 6(a)] and maintaining such rolls [Section 6(b)], it is

for the State Bar Councils to provide for the elections of its

members [Sections 6(g)] and to perform all other functions

conferred on it by or under this Act [Section 6(h)]. Section 6(i) of

the Advocates Act allows the State Bar Councils to do all other

things necessary for discharging their functions.

20. Functions of the Bar Council of India are of a wider

spectrum than that of the State Bar Council. Bar Council of

India has to lay down standards of professional conduct and

etiquette for the advocates, the procedure to be followed in

22

Disciplinary Committees and to safeguard the rights, privileges

and interest of advocates.

21. The Bar Council of India may, under Section 7(k) of the

Advocates Act, provide for the election of its members. This

provision is identical to Section 6(g) of the Advocates Act.

Similarly, Sections 6(h) and 6(i) are equivalent to Sections 7(l)

and 7(m) of the Advocates Act.

22. The election to the Bar Councils is for a specified tenure,

which is stated under Section 8 of the Advocates Act. The term

of the office of an elected member of a State Bar Council, other

than an elected member thereof referred to in Section 54, shall

be for five years from the date of publication of the results. The

Bar Council of India has been vested with the power of extending

this period, for reasons to be recorded, and only in the event of

the State Bar Council failing to provide for the election of its

members before the expiry of its terms. This power is also

regulated by an upper limitation of 6 months in such grant of

extension.

23. Section 14 of the Advocates Act mandates that no

23

election of a member to a Bar Council shall be called in question

on the ground merely that due notice thereof has not been given

to any person entitled to vote at the elections, if notice of the

date has, not less than thirty days before that date, been

published in the Official Gazette.

24. Section 15 of the Advocates Act is one of the most

relevant provisions, which needs to be examined by this Court,

as according to the contention raised by the appellants, Rule

122-A is ultra vires Section 15 of the Advocates Act. Section 15

of the Advocates Act gives power to the Bar Council to make

rules to carry out the purposes of `this Chapter'. `This Chapter'

means Chapter II of the Advocates Act. Inter alia, this Chapter

deals with constitution, election and functions of the Bar

Councils. It will be useful to refer to the relevant parts of the

provisions of Section 15 of Chapter II of the Advocates Act,

which are as under:

"15. Power to make rules,- (1) A Bar

Council may make rules to carry out the

purposes of this chapter.

(2) In particular, and without prejudice to

the generality of the foregoing power, such

rules may provide for--

24

a. (Note:- Subs. by Act 60 of 1973, sec.12)

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 results of

elections shall be published];

b. xxx xxx

c. (Note:- Clause (c) ins. by Act 38 of 1977,

sec. 5) the manner of election of the

Chairman and the Vice-Chairman of the

Bar council];

d. xxx xxx

e. xxx xxx

f. the filling of casual vacancies in the Bar

Council ;

g. the power and duties of the Chairman

and the Vice- Chairman of the bar Council ;

(ga) . xxx xxx

(gb) . xxx xxx

h. xxx xxx

i. the constitution and functions of any

committee of the Bar council and the term

of office of members of any such committee;

(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."

25. Chapter III of the Advocates Act deals with `Admission

and Enrolment of Advocates'.

Section 28 of the Advocates Act empowers the State Bar

Councils to make rules to carry out the purposes of this

25

Chapter, i.e., Chapter III.

26. Section 49 of the Advocates Act appears under Chapter

VI, i.e., `Miscellaneous' and empowers the Bar Council of India to

make rules for discharging its functions under this Act and

besides providing for specific powers, the Bar Council of India

may prescribe rules under the residuary provisions of Section

49(1)(j) of the Advocates Act, whereby the Council is empowered

to make rules in regard to any other matter which may be

prescribed. However, the rules framed would not come into force

or take effect unless they have been approved by the Chief

Justice of India and if the rules relate to Section 49(1)(e) of the

Advocates Act they will not take effect unless they have been

approved by the Central Government. Under Section 49A of the

Advocates Act, the Central Government is vested with the

general power of making rules and these rules could be framed

for the whole of India or for all or any of the Bar councils. In the

event of conflicts between the rules framed by the Central

Government and the Bar Councils, the rules framed by the

Central Government shall have precedence in terms of Section

49A(4) of the Advocates Act. We need not elaborate upon other

26

provisions of the Advocates Act at this stage.

27. Now let us notice the relevant provisions in the Bar

Council of India Rules (in short, the `Rules') which were enacted

in exercise of its rule making powers under the Advocates Act.

This power of the Bar Council of India originates from clauses

(c), (d), (e), (f) and (g) of Sub-section (2) of Section 15 read with

Sections 4 and 10B of the Advocates Act.

28. Chapter I of Part II of the Rules deals with the matters

relating to the Bar Council of India and particularly to the

election of members of the Council. The election of the members

of the Bar Council of India has to be conducted in terms of Rules

1 to 10 of the Rules. Rule 11 of the Rules makes it mandatory

that a member of the Bar Council of India, who is elected as

Chairman or Vice-Chairman or member of any Committee of the

Council, shall cease to hold office as such Chairman or Vice-

Chairman or member of Committee, on the expiry of his term as

a member of the Bar Council of India. A restriction is further

sought to be placed upon the right of the person to resign. A

member can resign from the membership of the Bar Council of

27

India only on the grounds which are genuine and not for the

purposes of sharing of terms fixed by the statute. Under Rule

12(2) of the Rules, the Chairman or the Vice-Chairman shall

hold the office for a period of two years or until his term of office

as member of the Bar Council of India ceases whichever is

earlier. The election for the post of Chairman and Vice-Chairman

has to be held at the meeting of the Bar Council of India and in

accordance with the procedure prescribed under Rule 12 of the

Rules. The Chairman and the Vice-Chairman perform the

functions of exercising general control and supervision over the

affairs of the Bar Council of India, save as otherwise provided in

these Rules and subject to the resolutions of the Bar Council of

India. Rule 22 of the Rules has significant bearing on the

discussion in the present cases. This Rule relates to `no

confidence motion' against the Chairman, the Vice-Chairman, or

any other office bearer, and its consequences. The Rule 22

reads as under:

"On a motion of "No confidence" being

passed by Bar Council of India by a

Resolution passed by majority of not less

than 3/4th of the Members present and

voting and such majority passing "No

Confidence Motion" is more than 2/3rd of

28

the total number of Members constituting

the Bar Council for the time being, the

Chairman or Vice-Chairman or any other

office bearer against whom the motion is

passed shall cease to hold office forthwith.

Notwithstanding anything

contained in the Act or the Rules made

thereon, the Chairman or Vice-Chairman

shall not preside over the meeting in which

motion of "No Confidence" is discussed

against him and such meeting shall be

convened on a notice of at least one month.

The Chairman or the Vice-Chairman shall

have the right to vote, speak or take part in

the proceeding of the meeting."

29. The Committees excluding the Disciplinary Committees

are to be constituted by the Bar Council of India under Chapter

II. The framers of the Rules have taken a precaution that the

decisions of the Bar Council of India should not be changed

without reason and in violation of the relevant provisions. Rule

9 of Chapter II of the Rules provides that the decision on any

matter shall be by majority and, in the case of equality of votes,

the Chairman of the meeting shall have a second or a casting

vote. Rule 10 of the Rules puts a restriction on change of

decisions. According to this Rule, no matter once decided, shall

be re-considered for a period of 3 months unless the Bar Council

29

of India by a two-third majority of the members present so

permits. Under Rule 12 of the same Chapter, in the absence of

the Chairman or the Vice-Chairman member at any meeting, a

member chosen by the members of the Council shall preside at

the meeting.

30. We have noticed these Rules to make a comparative

study of the relevant M.P. Rules, to examine their impact in

correct perspective. In exercise of the powers conferred by

Sections 15(1), 15(2), 28(1) and 28(2), read with Chapter II and

other provisions of the Advocates Act, the State Bar Council,

with the approval of the Bar Council of India as required under

Sections 15(3) and 28(3) of the Advocates Act, has framed the

M.P. Rules. The M.P. Rules deal with different facets of

functioning of the State Bar Council. It is not necessary for us

to deal with all the aspects of the rules governing the functioning

of the State Bar Council. The State Bar Council shall elect the

members of each Committee in its Meeting as per Rule 1 of

Chapter VI. In terms of Rule 3 of the same Chapter, the election

to the Committee shall be conducted by the Chairman of the

State Bar Council and in case the Chairman of the State Bar

30

Council is a candidate for being elected as a member of any

Committee, the State Bar Council, before proceeding with the

elections to such Committee, shall appoint any one of its

members who is not a candidate for election to such committee,

to conduct the election to the said Committee and to declare the

results under his signature.

31. Under Chapter XVI, Rule 110 of the M.P. Rules, it is

obligatory on the part of the Chairman of the State Bar Council

to call a meeting, which he shall preside over, when he receives a

requisition for doing so, signed by not less than 3 members of

the State Bar Council. The Chairman has to exercise general

control and supervision over all the matters of the State Bar

Council.

32. The State Bar Council consists of 26 elected members

and the Advocate General of the State. Rule 118 is the first rule

that falls under Chapter XVIII and it requires that a State Bar

Council shall elect a Chairman and a Vice-Chairman from

amongst its members for two years. Rule 118 of the M.P. Rules

came to be amended and, as per the amended Rule, the State

31

Bar Council has to elect a Chairman and a Vice-Chairman from

amongst its members for 2= years vide Resolution No. 631 of

1998.

33. Rule 122-A of the M.P. Rules was amended by the State

Bar Council sometime in the year 1975 and vide its Resolution

dated 27th April, 1975, the amendments and newly added rules

were sent for approval of the Bar Council of India. Again in its

Resolution dated 9th March, 1980, the State Bar Council had

recorded that to these amendments/newly added Rules,

approval of the Bar Council of India had been obtained. It needs

to be noticed that all the members of the State Bar Council had

attended the meeting and were signatory to this Resolution.

However, Rule 121, which was amended vide Resolution No. 631

of 1998 dated 24th January, 1998 is also stated to have received

approval from the Bar Council of India. However, no notification

in that regard is stated to have been issued as yet. There is

some controversy whether Rule 121 under the same Chapter

was amended and whether it attained the approval of the Bar

Council of India. This question is not very material for us to

examine inasmuch as under both Rules 118 and 121, the period

32

of term of the elected Chairman and the Vice-Chairman is stated

to be two years or till they cease to be members whichever is

earlier. Besides the above facts, Section 15(3) of the Advocates

Act requires that the rules framed by the State Bar Council

should be approved by the Bar Council of India. It nowhere

requires issuance of any notification which, in some cases, can

be a part of legislative provisions. In view of the above factual

matrix, it has to be held that this controversy does not require

any further consideration by the Court.

34. The provisions with which we are primarily concerned in

the present case are contained in Chapter XVIII of the M.P.

Rules. They read as under:

"118. The Bar Council shall elect a

Chairman and a Vice-Chairman from

amongst its members for two years.

119. Any candidate for the office of

Chairman or Vice-Chairman shall be

proposed by one member and seconded by

another member.

120. The election of Chairman or Vice-

Chairman unless unanimously agreed upon

by all the members present at the meeting,

shall be by show of the hands. In case of

the tie, the election shall be decided by

drawing of lots.

33

121. The Chairman, the Vice-Chairman

and the Treasurer of the Council, shall hold

office for a period of two years or till they

cease to be members whichever is earlier.

122-A The Chairman, Vice-Chairman or the

Treasurer of the Council could be removed

by a vote of no confidence passed by

majority of the members, present and

voting in a meeting of the Council especially

called for the purpose, provided that at

least 7 members of the Council have signed

the requisition for holding such a special

meeting, and such meeting shall be called

within a period of 21 days from the date of

receipt of the requisition by the secretary.

122-B That the Bar Council by a resolution

may reconstitute any of its committee

elected earlier by it, provided that the

requisition for the purpose signed by at

least 7 members of the Council is received

by the Secretary, and such a special

meeting shall be called within 21 days from

the date of receipt of the requisition by the

Secretary."

35. Rule 122-A of the above Rules deals with the removal of

the Chairman, Vice-Chairman or the Treasurer of the State Bar

Council by moving a `no confidence motion'. Existence of such a

provision is not exceptional, but is a common provision in any

electoral system. Our parliamentary system is the most

significant example of a democratic process, where the `no

34

confidence motion' under Article 75(3) of the Constitution is an

integral part of the process of election. Similarly, under Rule 22

of the Rules, a provision has been made for moving a `no

confidence motion' and where such motion is passed by a

majority of not less than three-fourth of the members, present

and voting, and such majority passing the `no confidence motion'

is more than two-third of the total number of members

constituting the State Bar Council for the time being, it results

in the removal of the Chairman, Vice-Chairman or any other

office bearer. Upon passing of such a resolution, the person

shall cease to hold the office forthwith. Every democratic

process is based upon the freedom to elect and freedom to

remove, in accordance with law. Rule 122-A of the M.P. Rules

contemplates moving of a `no confidence motion' and upon such

motion being passed by majority of the members, present and

voting, the office bearer against whom such a motion is moved

shall be liable to be removed from such office. For successful

application of Rule 122-A, the law requires the following minimal

conditions to be satisfied:

1. At least 7 members have signed the requisition calling for a

35

meeting of the Council;

2. Such meeting shall be called within 21 days from the date

of receipt of requisition by the Secretary.

3. Such `no confidence motion' has to be passed by a majority

of the members present and voting, in the meeting of the

Council, especially called for this purpose.

36. Once the above conditions are satisfied `no confidence

motion' can be passed and upon passing of such motion, the

person is liable to be removed from the office which he held in

the State Bar Council prior to the holding of such meeting. The

spirit behind this provision is that where a person is elected by

following a process of election to the post of an office in the State

Bar Council, he could be removed by following the prescribed

procedure in accordance with the Rules.

37. This Court in the case of Mohan Lal Tripathi v. District

Magistrate [(1992) 4 SCC 80], examined the validity of a `no

confidence motion' passed by the Board on 28th March, 1990

under Section 87-A of the U.P. Municipalities Act against the

President who was directly elected by the electorate under

Section 43(2) of the Act. The basic argument raised was that he

36

was sought to be removed or recalled by the other elected

members, which was a smaller and different body than the one

that had elected him and, thus, was violative of the democratic

mandate. While rejecting this argument, the Court held as

under:

"2. Democracy is a concept, a political

philosophy, an ideal practised by many

nations culturally advanced and politically

mature by resorting to governance by

representatives of the people elected

directly or indirectly. But electing

representatives to govern is neither a

`fundamental right' nor a `common law

right' but a special right created by the

statutes, or a `political right' or `privilege'

and not a `natural', `absolute' or `vested

right'. `Concepts familiar to common law

and equity must remain strangers to

Election Law unless statutorily embodied.'

Right to remove an elected representative,

too, must stem out of the statute as `in the

absence of a constitutional restriction it is

within the power of a legislature to enact a

law for the recall of officers'. Its existence or

validity can be decided on the provision of

the Act and not, as a matter of policy. In

the American Political Dictionary the right of

recall is defined as, `a provision enabling

voters to remove an elected official from

office before his or her term expired'.

American Jurisprudence explains it thus,

`Recall is a procedure by which an elected

officer may be removed at any time during

his term or after a specified time by vote of

the people at an election called for such

37

purpose by a specified number of citizens'.

It was urged that `recall gives dissatisfied

electors the right to propose between

elections that their representatives be

removed and replaced by another more in

accordance with popular will' therefore the

appellant could have been recalled by the

same body, namely, the people who elected

him. Urged Shri Sunil Gupta, learned

counsel, that since, `A referendum involves

a decision by the electorate without the

intermediary of representatives and,

therefore, exhibits form of direct democracy'

the removal of the appellant by a vote of no-

confidence by the Board which did not elect

him was subversive of basic concept of

democracy. Academically the submission

appeared attractive but applied as a matter

of law it appears to have little merit. None

of the political theorists, on whom reliance

was placed, have gone to suggest that an

elected representative can be recalled, only,

by the persons or body that elected him.

Recall expresses the idea that a "public

officer is indeed a `servant of the people'

and can therefore be dismissed by them".

In modern political set up direct popular

check by recall of elected representative has

been universally acknowledged in any

civilised system. Efficacy of such a device

can hardly admit of any doubt. But how it

should be initiated, what should be the

procedure, who should exercise it within

ambit of constitutionally permissible limits

falls in the domain of legislative power.

`Under a constitutional provision

authorizing municipalities of a certain

population to frame a charter for their own

government consistent with and subject to

the Constitution and laws of the State, and

38

a statutory provision that in certain

municipalities the Mayor and members of

the municipal council shall be elected at

the time, in the manner, and for the term

prescribed in the charter, a municipal

corporation has authority to enact a recall

provision'. Therefore, the validity or

otherwise of a no-confidence motion for

removal of a President, would have to be

examined on applicability of statutory

provision and not on political philosophy.

The Municipality Act provides in detail the

provisions for election of President, his

qualification, resignation, removal etc.

Constitutional validity of these provisions

was not challenged, and rightly, as they do

not militate, either, against the concept of

democracy or the method of electing or

removing the representatives. The recall of

an elected representative therefore, so long

it is in accordance with law cannot be

assailed on abstract notions of democracy.

7. Value of `historical evolution' of a

provision or `reference to what preceded the

enactment' as an external aid to

understand and appreciate the meaning of

a provision, its ambit or expanse has been

judicially recognised and textually

recommended. But this aid to construe any

provision which is `extremely hazardous'

should be resorted to, only, if any doubt

arises about the scope of the section or it is

found to be `sufficiently difficult and

ambiguous to justify the construction of its

evaluation in the statute book as a proper

and logical course and secondly the object

of the instant enquiry' should be `to

ascertain the true meaning of that part of

the section which remains as it was and

39

which there is no ground for thinking the

substitution of a new proviso was intended

to alter'. But `considerations stemming from

legislative history must not, however,

override the plain words of a statute'.

Neither Section 47-A nor 87-A on plain

reading suffer from such defect as may

necessitate ascertaining their intent and

purpose from the earlier sections as they

stood. That shall be clear when relevant

part of the sections are extracted. But even

otherwise there appears no merit in the

submission and for that purpose it appears

appropriate to narrate, in brief, the history

of these sections. When Act 2 of 1916 was

enacted it provided for election of Chairman

of the Board by a special resolution passed

by the members under Section 43(1) of the

Act. Sub-section (2) provided for ex-officio

nomination by the Government of the

Chairman in some municipalities. Section

48 empowered the Government to remove a

Chairman after hearing and giving reasons.

It did not contain any provision for removal

of a Chairman by a vote of no-confidence.

Ten years later Act 2 of 1926 brought about

a very significant change in the Act by

introducing Section 47-A and conferring

power of removal of Chairman, other than

ex-officio, by the members of the Board by

expressing a vote of no-confidence against

him. Section 48, too, was amended and a

Chairman who failed to resign after a vote

of no-confidence was liable to be removed,

by the State Government. Thus it was as far

back as 1926 that removal of the Chairman

by elected representative found its way in

the Act. In 1933 by Act No. 9 another

important Section 87-A was added

providing for tabling of no-confidence

40

motion against the Chairman. In 1942

Section 47-A was omitted as the provision

for resigning by the Chairman was provided

for in Section 87-A itself. And hearing of the

Chairman by State Government under

Section 48 before removal in consequence

of vote of no-confidence was deleted. Act 7

of 1949 introduced major changes in

Sections 43 and 47-A, of the Act. Section

43 was substituted altogether and, it for the

first time, provided for election of the

Chairman simultaneously with members of

the Board by the electorate directly. Section

47-A which had been omitted by Act 13 of

1942 was reintroduced and a Chairman

against whom a vote of no-confidence was

passed was required to resign. In the

alternative he was permitted to recommend

to State Government that the Board itself

may be dissolved. And if the State

Government agreed with the President then

it was the Board which was to go. The

intention apparently was to keep a check

on the power of Board, too, while taking

action against the Chairman as if it was

found that exercise of power by the Board

was arbitrary and President was being

removed for extraneous reasons then the

Government could interfere and direct

dissolution of the Board itself. Both the

sections were amended once again in 1955

and by Act 1 the election of Chairman,

known now as President, by the members

of the Board was reintroduced, as, `The

experience of the working of the Boards

since their constitution at the last general

elections has generally been one of

continuing conflict between Presidents

elected by the popular vote on the one hand

and the members on the other. This has

41

greatly prejudiced the normal working of

the Boards'. Section 47-A of the Act was

substituted completely and it is in this

shape that the section stands today.

Section 43(1) was amended, once again, by

Act 47 of 1976 and election of President by

electorate was revived. In 1982 another

change was made in this section by Act 17

and election of President by the members of

Board was confined to municipalities other

than a city declared as such under Section

3 having a population of less than one lakh

inhabitants. Sub-section (2) provided for

election of President of Board of such a City

Municipality by the electorate directly.

From 1982 onwards, therefore, the direct

election of President by the electorate is

confined to smaller Municipalities.

10. Even the strained construction of the

proviso does not result in coming to the

conclusion that there was a legislative

omission of not providing for removal, by

vote of no-confidence of a President elected

by the electors. Merely because the proviso

to Section 47-A prevents a Board from

holding election of the President in those

cases where he had made representation to

the Government to supersede the Board, it

cannot be stretched to mean that sub-

section (a) of Section 47-A cannot apply to a

President elected under Section 43(2). The

proviso is intended as check to prevent the

Board from taking any step which may

render the representation made by the

President infructuous as if the Government

accepts the representation then it is the

Board under sub-section (3) which stands

dissolved and not the President. That

situation may not arise in election of a

42

President under Section 43(2) as election of

President by electors cannot take place

immediately, therefore, there is no danger

involved, of putting at naught the

representation made by the President to

State Government, as is in the case of

Section 43(1). The proviso cannot be so

construed as to nullify the operation of

Section 47 2DA to a President elected by

electorate. A proviso or an exception is

incapable of controlling the operation of

principal clause. Result of such

construction would lead to absurdity as if

Section 47-A is held not to apply to

President elected under Section 43(2) he

will not be liable to resign even though a

vote of no-confidence has been passed

against him under Section 87-A and it has

been communicated to him. Merely because

the proviso cannot apply to one of the

situations that may arise cannot be reason

to hold that Section 47-A(1)(a) did not apply

to President elected by the electorate. `If the

language of the enacted part of the statute

does not contain provision which are said

to occur on it, you cannot derive those

provisions by implication from a proviso'.

Proviso could be used for adopting a

construction as suggested either when

there was some doubt about the scope of

the section or there would have been at

least some reasonable doubt about

accepting one or the other construction as

became necessary in Jennings v. Kelly on

which reliance was placed by the learned

counsel for appellant.

38. `Election' is an expression of wide connotation which

embraces the whole procedure of election and is not confined to

43

final result thereof. Rejection or acceptance of nomination paper

is included in this term. This Court, in the case of N.P.

Ponnuswami v. returning Officer, Namakkal Constituency [AIR

(39) 1952 SC 64] held that the word `election' has been used in

Part XV of the Constitution in a broad sense, that is to say, to

connote the entire procedure to be followed to return a candidate

to the legislature and even the expression `conduct of elections'

in Article 324 specifically points to this wide meaning and the

meaning which can be read consistently into other provisions

occurring in the Constitution. In this case, the election process

as contemplated under the relevant laws is that the members of

a State Bar Council are elected by the electorate of advocates on

the rolls of the State Bar Council from amongst the electorate

itself. The elected members then elect a Chairman, a Vice-

Chairman and the Treasurer of the State Bar Council as well as

constitute various committees for carrying out different purposes

under the provisions of the Advocates Act.

39. In other words, the body which elects the Chairman or

Vice-Chairman of a State Bar Council always consists of

members elected to that Council. The democratic principles

44

would require that a person who attains the position of a

Chairman or Vice-Chairman, as the case may be, could be

removed by the same electorate or smaller body which elected

them to that position by taking recourse to a `no confidence

motion' and in accordance with the Rules. The body that elects

a person to such a position would and ought to have the right to

oust him/her from that post, in the event the majority members

of the body do not support the said person at that time. Even if,

for the sake of argument, it is taken that this may not be

generally true, the provisions of Rule 122-A of the M.P. Rules

make it clear, beyond doubt, that a `no confidence motion' can

be brought against the elected Chairman provided the conditions

stated in the said Rules are satisfied. As already noticed, the

thrust of the challenge to the vires of Rule 122-A is primarily

that Section 15 of the Advocates Act does not contemplate the

framing of such a Rule by the State Bar Councils. Rule 122-A is

stated to be ultra vires Section 15 of the Advocates Act and, it is

argued, that the introduction of such provision suffers from the

vice of excessive delegation. Section 15 of the Advocates Act

empowers the State Bar Councils to frame Rules to carry out the

45

purposes of this Chapter. `This Chapter' obviously means

Chapter II of the Act. Let us examine what Chapter II contains.

Section 3 requires the constitution of the State Bar Councils.

Section 3(3) contemplates that there shall be a Chairman and a

Vice-Chairman of each State Bar Council elected by the State

Bar Council in such manner as may be prescribed. As already

noticed above, another important provision is Section 6 of the

Act, which details the functions to be performed by the State Bar

Councils. Inter alia, the functions to be performed by the State

Bar Councils include, under Sections 6(1)(d), to safeguard the

rights, privileges and interests of the advocates on its roll.

Under Section 6(1)(g), the function of the Bar Council is to

provide for the election of its members and under Sections

6(1)(h) and 6(1)(i), the State Bar Council has to perform all other

functions conferred on it by or under this Act and to do all other

things necessary for discharging the aforesaid functions. In our

view, Sections 6(1)(h) and 6(1)(i) have to be read and interpreted

conjointly. We see no reason why the expression `manner of

election of its members' in Section 6(1)(g) should be given a

restricted meaning, particularly in light of Sections 6(1)(h) and

46 6(1)(i). The responsibility of the State Bar Councils to perform

functions as per the legislative mandate contained in Section 6

of the Act is of a very wide connotation and scope. No purpose

would be achieved by giving it a restricted meaning or by a strict

interpretation. The State Bar Council has to be given wide

jurisdiction to frame rules so as to perform its functions

diligently and perfectly and to do all things necessary for

discharging its functions under the Act. The term of office of the

members of the State Bar Council is also prescribed under

Chapter II, which shall be five years from the date of publication

of the result of the election. On failure to provide for election,

the Bar Council of India has to constitute a special committee to

do so instead. Section 15(2) then provides that without

prejudice to the generality of the foregoing powers, rules may be

framed to provide for the preparation of electoral rolls and the

manner in which the result shall be published. In terms of

Section 15(2)(c), the manner of the election of the Chairman and

the Vice-Chairman of the Bar Council and appointment of

authorities which would decide any electoral disputes is

provided. The expression `manner of election of the Chairman'

47

again is an expression which needs to be construed in its wide

connotation. The rules so framed by the State Bar Council shall

become effective only when approved by the Bar Council of India

in terms of Section 15(3) of the Advocates Act.

40. The power of the State Bar Council to frame rules under

Section 15 of the Advocates Act as a delegate of the Bar Council

of India has to be construed along with the other provisions of

the Advocates Act, keeping in mind the object sought to be

achieved by this Act. In this regard, greater emphasis is to be

attached to the statutory provisions and to the other purposes

stated by the legislature under the provisions of Chapter II of the

Advocates Act. This is an Act which has been enacted with the

object of preparing a common roll of advocates, integrating the

profession into one single class of legal practitioners, providing

uniformity in classification and creating autonomous Bar

Councils in each State and one for the whole of India. The

functioning of the State Bar Council is to be carried out by an

elected body of members and by the office-bearers who have, in

turn, been elected by these elected members of the said Council.

The legislative intent derived with the above stated objects of the

48

Act should be achieved and there should be complete and free

democratic functioning in the State and All India Bar Councils.

The power to frame rules has to be given a wider scope, rather

than a restrictive approach so as to render the legislative object

achievable. The functions to be performed by the Bar Councils

and the manner in which these functions are to be performed

suggest that democratic standards both in the election process

and in performance of all its functions and standards of

professional conduct which need to be adhered to. In other

words, the interpretation furthering the object and purposes of

the Act has to be preferred in comparison to an interpretation

which would frustrate the same and endanger the democratic

principles guiding the governance and conduct of the State Bar

Councils. The provisions of the Advocates Act are a source of

power for the State Bar Council to frame rules and it will not be

in consonance with the principles of law to give that power a

strict interpretation, unless restricted in scope by specific

language. This is particularly so when the provisions delegating

such power are of generic nature, such as Section 15(1) of the

Act, which requires the Bar Councils to frame rules to `carry out

49

the purposes of this Chapter' and Section 15(2), which further

uses generic terms and expressly states that the Bar Council is

empowered to frame rules `in particular and without prejudice to

the generality of the foregoing powers'. If one reads the

provisions of clauses (a), (c), (g), (h) and (i) of Sub-section (2) of

Section 15 of the Act, then, it is clear that framing of rules

thereunder would guide and control the conduct or business of

the State Bar Councils and ensure maintenance of the standards

of democratic governance in the said Councils. Since the office

bearers like the Chairman and the Vice-Chairman are elected by

a representative body i.e. by the advocates who are the elected

members of the Council, on the basis of the confidence bestowed

by the advocates/electorate in the elected members, there seems

to be no reason why that very elected body cannot move a `no

confidence motion' against such office bearers, particularly,

when the rules so permit.

41. The Bar Council of India, as already noticed, has also

framed rules and permitted moving of `no confidence motion'

against its Chairman/Vice-Chairman subject to compliance of

the conditions stated therein. Similarly, Rule 122-A of the M.P.

50

Rules contemplates the removal of a Chairman/Vice-Chairman

by a motion of no confidence, passed by a specific majority of the

members and subject to satisfaction of the conditions stated

therein. This provision, thus, can neither be termed as vesting

arbitrary powers in the elected body, nor can it be said to be

suffering from the vice of excessive delegation. The power

delegated to the elected body is within the framework of the

principal Act, i.e., Section 15, read with the other provisions, of

the Advocates Act. In terms of Rule 120 of the M.P. Rules, a

person can be elected as Chairman/Vice-Chairman only by

majority and in case there is a tie, the election shall be decided

by drawing of lots. Under Rule 118 of the M.P. Rules a

Chairman/Vice-Chairman has to be elected from amongst its

members for two years. In other words, the term of office of the

Chairman/Vice-Chairman is controlled by the fact that he has to

be elected to that particular office. The removal contemplated

under Rule 122-A is not founded on a disciplinary action but is

merely a `no confidence motion'. It is only the loss of confidence

simpliciter i.e. the majority of the members considering, in their

wisdom, that the elected Chairman/Vice-Chairman should not

51

be permitted to continue to hold that office, which is the very

basis for such removal. One must remember that Rules 118 to

122-B all come within Chapter XVIII of the M.P. Rules and, as

such, have to be examined collectively. But for this Chapter, it

cannot be even anticipated as to who and how the office of the

Chairman/Vice-Chairman of the State Bar Council shall be

appointed.

42. Now, let us examine some judgments to substantiate

what we have aforestated. In the case of General Officer

Commanding-in-Chief v. Subhash Chandra Yadav [(1988) 2 SCC

351], this Court stated the principle that the rules framed under

the provisions of a statute form part of the statute, i.e., the rules

have statutory force. But a rule can have the effect of a

statutory provision provided it satisfies two conditions: (1) it

must conform to the provisions of the statute under which it is

framed; and (2) it must also come within the scope and purview

of the rule making power of the statutory authority framing the

rule.

43. In the case of Kunj Behari Lal Butail v. State of H.P. 52

[(2000) 3 SCC 40], this Court noticed that it is very common for

the legislature to provide general rule making power to carry out

the purposes of the Act. When such a power is given, it may be

permissible to find out the object of the enactment and then see

if the rules framed thereunder satisfy this test of functionality.

This test will determine if the rule falls foul of such general

power conferred on the delegatee. If the rule making power is

expressed in usual general form, then it has to be seen if the

rules made are protected by the limits prescribed by the parent

Act. Still in the case of Global Energy Ltd. v. Central Electricity

Regulatory Commission [(2009) 15 SCC 570], this Court was

concerned with the validity of clauses (b) and (f) of Regulation 6-

A of the Central Electricity Regulatory Commission (Procedure,

Terms and Conditions for Grant of Trading Licence and other

Related Matters) Regulations, 2004 and dealing with this aspect,

the Court expressed the view that in some cases guidelines could

be assumed, by necessary implication, as already laid down and,

while relying upon the case of Kunj Behari Lal Butail (supra), the

Court held as under:

"26. We may, in this connection refer to a

decision of this Court in Kunj Behari Lal

53

Butail v. State of H.P.1 wherein a three-

Judge Bench of this Court held as under:

(SCC p. 47, para 14)

"14. We are also of the opinion that

a delegated power to legislate by making

rules `for carrying out the purposes of the

Act' is a general delegation without laying

down any guidelines; it cannot be so

exercised as to bring into existence

substantive rights or obligations or

disabilities not contemplated by the

provisions of the Act itself."

27. The power of the regulation-making

authority, thus, must be interpreted

keeping in view the provisions of the Act.

The Act is silent as regards conditions for

grant of licence. It does not lay down any

pre-qualifications therefor. Provisions for

imposition of general conditions of licence

or conditions laying down the pre-

qualifications therefor and/or the

conditions/qualifications for grant or

revocation of licence, in absence of such a

clear provision may be held to be laying

down guidelines by necessary implication

providing for conditions/qualifications for

grant of licence also."

44. The above enunciated principles clearly show that the

language of the statute has to be examined before giving a

provision an extensive meaning. The Court would be justified in

giving the provision a purposive construction to perpetuate the

object of the Act, while ensuring that such rules framed are

54

within the field circumscribed by the parent Act. It is also clear

that it may not always be absolutely necessary to spell out

guidelines for delegated legislation, when discretion is vested in

such delegatee bodies. In such cases, the language of the rule

framed as well as the purpose sought to be achieved, would be

the relevant factors to be considered by the Court. In the

present case, the minimum guidelines of secrecy and fairness in

election have been provided in Part IX of the Rules, which have

been framed in exercise of the supervisory powers under

Sections 49(1)(a), 49(1)(i) and 49(1)(j) of the Advocates Act.

Further, clause (5) of this Part even extends to the State Bar

Councils the power to independently resolve all election disputes

through tribunals constituted for this purpose. Therefore, the

powers delegated have an in-built element of guidance that the

Chairman/Vice-Chairman will be appointed and regulated by

the majority members of the State Bar Council. Their conduct,

and the conduct of the State Bar Council as a whole, is to be

maintained in consonance with democratic principles and

keeping the high professional standards of advocates in mind.

Thus, it is not a power which falls beyond the purview and scope

55

of Section 15 of the Advocates Act read in conjunction with other

provisions, particularly Chapter II and also keeping in view the

object of the Act.

45. Purposive construction, to a large extent, would help to

resolve the controversy raised in the present case. The purpose

of the Advocates Act is the democratic and harmonious

functioning of the State Bar Councils, to achieve the object and

purposes of the Act. We are unable to see how the provisions of

Rule 122-A fall foul of the ambit and scope of Section 15 of the

Advocates Act and, for that matter, any other provisions of that

Act. On the contrary, they are in line with the scheme of the

parent Act.

46. Having dealt with the primary aspect of this case, now

we would consider the contention that the recall of the

Chairman/Vice-Chairman, by a smaller and distinct body of

members of the State Bar Council, does not fall within the

purview of the authority of the delegatee Council, under Section

15(2)(c) of the Advocates Act, i.e. to legislate on `the manner of

election'. Even on this ground, according to the appellants, the

provisions of Rule 122-A are unsustainable. We find no merit in

56

this contention as well as it has no substance. The election to

the post of Chairman/Vice-Chairman of the State Bar Council is

not by the larger body, i.e., the advocates enrolled on the rolls of

the State Bar Council, but is by a distinct body, i.e. elected

members of the State Bar Council. Once they elect the

Chairman/Vice-Chairman of the State Bar Council as per the

scheme of Rules 118 to 123, then all actions taken by such body

would have to be accepted by all concerned as correct, if they are

within the domain of the rules governing such body. We do not

consider it necessary to deliberate on this issue in any greater

detail. Suffice it to refer to the judgment of this Court in the

case of Mohan Lal Tripathi (supra), where the Court was

concerned with an elected candidate, who, in terms of the

statute, was elected by a larger electorate and was recalled by

smaller representative body rather than by the electorate itself.

Similar arguments were raised that the recall was violative of the

spirit and purpose of the election and was arbitrary, irrational

and violative of the democratic norms. These arguments were

rejected by the Court, after detailed deliberation and examining

the fields of democratic norms. We have already referred in

57

paragraph 37 of this judgment, the relevant parts of the said

discussion.

47. Similarly, in the case of Ram Beti v. District Panchyat Raj

Adhikari [(1998) 1 SCC 680], the Court was dealing with a

situation where a Pradhan of the Panchayat was removed by the

Gram Panchayat, a smaller body, instead of removal by the

Gram Sabha which had elected him. They questioned the

validity of Section 14 of the U.P. Panchayati Raj, Act, 1947. The

Court, while rejecting the contentions, as are even being raised

before us in the present case, held as under:

"6.... It is no doubt true that under Section

11(1) of the Act provision is made for

holding of two general meetings of the Gram

Sabha in each year as well as for

requisitioning of a meeting by one-fifth of

the members. But the legislature, in its

wisdom, thought it proper that the matter of

removal of a Pradhan, instead of being

considered at the meeting of the Gram

Sabha, should be considered by the

members of the Gram Panchayat. The

considerations which weighed with this

Court for upholding the validity of sub-

section (2) of Section 87-A of the U.P.

Municipalities Act, 1916 relating to the

removal of the President of a Municipal

Board in Mohan Lal Tripathi are, in our

opinion, also applicable to the removal of

the Pradhan of the Gram Sabha. Although

58

under Section 14 of the Act the power of

removal of a Pradhan is conferred on the

members of the Gram Panchayat, which is a

smaller body than the Gram Sabha, but the

members of the Gram Pancyhayat, having

been elected by the members of the Gram

Sabha, represent the same electorate which

has elected the Pradhan. The removal of a

Pradhan by two-third members of the Gram

Sabha through their representatives. Just

as the Municipal Board is visualized as a

body entrusted with the responsibility to

keep a watch on the President, whether

elected by it or by the electorate, so also the

Gram Panchayat is visualized as a body

entrusted with the responsibility to keep a

watch on the Pradhan who is not elected by

it and is elected by the members of the

Gram Sabha. An arbitrary functioning of a

Pradhan is disregard of the statute or his

acting contrary to the interests of the

electorate could be known to the members

of the Gram Panchayat only and, in the

circumstances, it is but proper that the

members of the Gram Panchayat are

empowered to take action for removal of the

Pradhan, if necessary. It is no doubt true

that in Section 11 of the Act provision is

made for holding two general meetings of

the Gram Sabha in each year and for

requisitioning of a meeting of the Gram

Sabha by one-fifth of its members. But, at

the same time, we cannot lose sight of the

fact that the number of members of the

Gram Sabha is also fairly large. It would

range from one thousand to more than three

thousand. Elections to public offices even

at village level give rise to sharp polarization

of the electorate on caste or communal

basis. The possibility of disturbance of law

59

and order in a meeting of the Gram Sabha

called for considering a motion for removal

of the Pradhan cannot be excluded.

Moreover, there cannot also be due

deliberation of a serious matter as no-

confidence motion by a very large body of

persons. While amending Section 14 of the

Act so as to confer the power to remove the

Pradhan of a Gram Sabha on the members

of the Gram Panchayat the legislature must

have taken into consideration the prevailing

social environment. Moreover, by way of

safeguard against any arbitrary exercise of

the power of removal it is necessary that the

motion must be passed by a majority of two-

thirds of the members present and voting.

7. For the reasons aforementioned we are

unable to hold that Section 14 of the Act,

insofar as it empowers the members of the

Gram Panchayat to remove the Pradhan of a

Gram Sabha by moving a motion of no

confidence, is unconstitutional and void

being violative of the concept of democracy

or is arbitrary and unreasonable so as to be

hit by Article 14 of the Constitution."

48. For the reasons aforestated, as well as the reasons

recorded in the above reproduced judgments, which, with

respect, we adopt, we have no hesitation in rejecting this

contention of the appellants.

49. The next argument that was raised on behalf of the

60

appellants is that, in view of Rule 15 of Chapter V of the M.P.

Rules, the State Bar Council is debarred from re-considering the

same matter for a period of three months, and as such, the

decision passing `no confidence motion' is vitiated because of the

limitation contained in the said Rule. Rule 15 of Chapter V

reads as under:

"No matter once decided shall be

reconsidered for a period of three months

unless the Council by a two-third majority

of the members present, so permits."

50. Though the language of the above Rule clearly shows

that no matter once decided shall be reconsidered for a period of

three months but clearly makes an exception that wherever

2/3rd majority of the members present of the State Bar Council

permits, this bar will not operate. In other words, there is no

absolute bar and the Rule makes out an exception when the

matters could be reconsidered. But that is not the situation in

the present case. The first pre-requisite under this rule is that

matter should be `once decided', and then alone, the bar of re-

consideration would operate; that too depending on the facts

and circumstances of a given case. `Once decided' obviously

means the matter should be concluded or finally decided in

61

contradistinction of being `kept pending' or `deferred'. Therefore,

we must now examine, whether the matter in relation to `no

confidence motion' had been finally decided at any point of time

before the date on which the `no confidence motion' is stated to

have been passed. This also we are proceeding to consider on

the assumption that the matter related to `no confidence motion',

for the sake of arguments, would be covered under Rule 15 of

the M.P. Rules.

51. After issuance of a notice in accordance with the M.P.

Rules, admittedly, the 15th Meeting of the General Body of the

State Bar Council was held on 27th March, 2011 at Jabalpur,

during which two requisitions were made: one, relating to a `no

confidence motion' against the Chairman/Vice-Chairman, and

second, that there should be re-election of the Committees. In

the minutes, it was also stated that the Chairman/Vice-

Chairman had offered their resignation subject to withdrawal of

`no confidence motion'. There were discussions on this matter

and it was resolved that the agenda of the meeting would be

circulated on the same day itself, by post, to all the members of

the State Bar Council, whether present at the meeting or not

62

and the next meeting would be held on 16th April, 2011 at

Jabalpur. These notices were issued and as decided the meeting

was held on 16th April, 2011. During the course of the meeting

on 16th April 2011, some of the members left the meeting, the

Advocate General of Madhya Pradesh presided over the

continuation of the meeting and the `no confidence motion' was

passed on the same day. Of course, there is some dispute with

regard to the recording of the minutes of this meeting. We have

already reproduced the minutes which were recorded by the

respective parties. We are not very inclined to rely upon the

minutes produced by the appellants, inasmuch as they are not

signed by all the members present and voting. Even if, for the

sake of arguments, we take that the minutes produced by the

appellants are correct, then it must follow that both the

meetings took place on 16th April, 2011. However, it is obvious

from the record that in the 15th meeting of the General Body held

on 27th March, 2011, no final decision had been taken and it

was decided to circulate the minutes and other papers of the

meeting to all members.

52. Another ancillary argument to the above is that by virtue

63

of the bar under Rule 15 of the M.P. Rules, the Chairman and

Vice-Chairman were elected to their respective posts in February

2011 and, as such, the election itself was a `decision' which was

incapable of being reconsidered and revised in the meetings of

March and April, 2011. According to the appellants, the

limitation contained in Rule 15 of the M.P. Rules shall vitiate the

decision of passing a `no confidence motion'. This argument is

also misconceived in law and on the facts of the present case.

Election is not a `decision' as contemplated under Rule 15 of the

M.P. Rules. It is not a matter on which the State Bar Council

decides, as firstly, this matter falls within the discretion of

individual advocates on the rolls of the State Bar Council to elect

the representative members of the said Councils, and secondly it

falls within the discretion of such elected representatives to elect

a person as Chairman/Vice-Chairman. It is not a `decision'

which relates to the matters as contemplated under the M.P.

Rules. Passing of a `no confidence motion' in law, therefore,

cannot be termed as reconsideration of the decision taken.

53. Once the Council is constituted in terms of the Act and

the Rules framed thereunder, then it has to take decisions in the

64

role of a Council in relation to various matters, including

rejecting or passing a `no confidence motion'. This is even clear

from the case of Ram Beti (supra) wherein it was held that the

smaller representative body is better equipped to make a recall

decision and it has more information in its hands, to make such

a recall decision. The decision is, therefore, substantially

different in character from the election decision. A statutory bar

may exist in this respect, in some cases, but in its absence, the

Court cannot infer or imply a time bar on challenging the results

of election as a feature of common law or general democratic

principles.

54. Thus, the bar contemplated under Rule 15 of the M.P.

Rules does not operate, on merits, when applied to the facts of

the present case. Thus, we have no hesitation in rejecting this

contention, raised by the appellants.

55. It is also the contention of the appellants that the group

supporting the Chairman/Vice-Chairman of the State Bar

Council, in the meeting dated 16th April, 2011, had raised the

issue that `no confidence motion' and reconstitution of the

65

committee could not be considered in view of the bar contained

in Rule 15 of the M.P. Rules, in the form of `a point of order'

against the requisition asked for by the other group. Firstly, we

have already rejected the contention of the appellants that the

matters were discussed and concluded, either through the

February 2011 elections or in the 15th Meeting of the Council

dated 27th March, 2011, as, according to the minutes, the

meeting had only been deferred for issuance of appropriate

agenda and requisition notice to all the members present or not

present. Treating it as a valid point of order, the Chairman had

accepted the same and then he along with some members, had

walked out of the meeting.

56. As indicated above, the meeting then was presided over

by the Advocate General, Madhya Pradesh, whereafter the `no

confidence motion' was passed. We are unable to accept the

approach adopted by the Chairman/Vice-Chairman as, on the

peculiar facts and circumstances of this case, it ex facie was

untenable and without any basis. It was the duty of the

Chairman/Vice-Chairman to face the `no confidence motion', as

they were elected office bearers and if they had lost the

66

confidence of majority group which elected them to this post and

a `no confidence motion' had been moved against them in terms

of Rule 122-A, they were expected to face the consequences

thereof. This, alone, would have served the ends of democratic

governance and proper functioning of the State Bar Council.

Therefore, in our considered view, even on this issue, the

appellants cannot succeed.

57. Then it is contended that removal from an office is

punitive. It being punitive, there has to be a just cause and

adherence to the principles of natural justice by granting

hearing before the removal from office is given effect to. To

clarify, it is submitted that removal from an elected office, even

in face of a valid rule, would have to meet these twin

requirements of just cause and hearing, before a person can be

removed from office. On the other hand, the learned counsel

appearing for the respondents, while relying upon the judgment

of the Delhi High Court in the case of Bar Council of Delhi v. Bar

Council of India [AIR 1975 Del 200], contended that by

application of the General Clauses Act, 1897 even in absence of

any specific provision, the right of persons to elect a

67

Chairman/Vice-Chairman would include the right to undo the

same by moving a `no confidence motion'.

58. It needs to be noticed at the very threshold of

consideration of this submission that `no confidence motion'

cannot be equated in law to removal relatable to a disciplinary

action or as a censure. It is stricto senso not removal from office,

but a removal resulting from loss of confidence. It is relatable to

no confidence and is not removal relatable to the conduct or

improper behaviour of the elected person. Even the concept of

`term' under the Rules, is referable to and is controlled by a

super-imposed limitation of no confidence. This tenure cannot

be compared to a statutory tenure as is commonly understood in

the service jurisprudence. The distinction between removal by

way of `no confidence motion' and removal as a result of

disciplinary action or censure is quite well accepted in law. They

are incapable of being inter-changed in their application and

must essentially operate in separate fields. The Court has always

prioritized harmonious functioning of the State Bar Council. In

the case of Afjal Imam v. State of Bihar and others, [JT 2011 (5)

19], the recall of a Mayor and the re-election of a different Mayor

68

in his place has been held to implicitly shorten the term of the

appointees of the previous Mayor, if such is in the interest of

smooth functioning of the body.

59. Noticing this distinction, a Bench of this Court in the

case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot

[(1974) 2 SCC 706], while dealing with the question whether

grounds for removal must necessarily be specified when passing

a motion of no confidence, noticed the difference between `no

confidence motion' and a censure motion and described the

same as follows:

"19.....It does not, however, follow

therefrom that the ground must also be

specified when a motion of no confidence is

actually passed against a President. It is

pertinent in this context to observe that

there is a difference between a motion of no

confidence and a censure motion. While it

is necessary in the case of a censure motion

to set out the ground or charge on which it

is based, a motion of no confidence need

not set out a ground or charge. A vote of

censure presupposes that the persons

censured have been guilty of some

impropriety or lapse by act or omission and

it is because of that lapse or impropriety

that they are being censured. It may,

therefore, become necessary to specify the

impropriety or lapse while moving a vote of

censure. No such consideration arises when

69

a motion of no confidence is moved.

Although a ground may be mentioned when

passing a motion of no confidence, the

existence of a ground is not a prerequisite

of a motion of no confidence. There is no

legal bar to the passing of a motion of no

confidence against an authority in the

absence of any charge of impropriety or

lapse on the part of that authority. The

essential connotation of a no-confidence

motion is that the party against whom such

motion is passed has ceased to enjoy the

confidence of the requisite majority of

members. We may in the above context

refer to page 591 of Practise and Procedure

of Parliament, Second Ed. by Kaul and

Shakdher wherein it is observed as under:

"A no-confidence motion in the Council

of Ministers is distinct from a censure

motion. Whereas, a censure motion must

set out the grounds or charge on which it is

based and is moved for the specific purpose

of censuring the Government for certain

policies and actions, a motion of no

confidence need not set out any grounds on

which it is based. Even when grounds are

mentioned in the notice and read out in the

House, they do not form part of the no-

confidence motion."

60. Still, in another case, titled B.P. Singhal v. Union of India

& Anr. [JT 2010 (5) SC 640], the Court, while dealing with the

doctrine of pleasure in relation to the term of the office of the

Governor, for a tenure of 5 years, noticed that Article 156(1) of

the Constitution dispenses with the need to assign reasons or

70

the need to give notice in the event of removal. But the need to

act fairly and reasonably still cannot be dispensed with.

Exception was carved out against acting in a manner which is

arbitrary, capricious or unreasonable. In face of the above

enunciated principles, we are of the considered view that the

concept of just cause and right of hearing, the features of

common law, are not applicable to the elected offices where a

person is so elected by majority in accordance with statutory

rules. It would also have hardly any application to moving of a

`no confidence motion' in so far as these are controlled by

specific provisions and are not arbitrary or unreasonable. There

is nothing in Rule 122-A of the M.P. Rules that requires

adherence to these two concepts when a motion of no confidence

is moved against a sitting Chairman/Vice-Chairman. Of course,

it does not imply that the action can be arbitrary or capricious

and absolutely contrary to the spirit of the Rule. There is no

dispute in the facts of the present case that majority of the

members had passed the `no confidence motion' in the 16th

Meeting of the State Bar Council on 16th April, 2011. We are not

able to accept the view taken by the High Court of Delhi in the

71

case of Bar Council of Delhi (supra) in saying that solely with the

aid of General Clauses Act, the power to elect would deem to

include power to remove by a motion of no confidence,

particularly, with reference to the facts and circumstances of

this case. The power to requisition a `no confidence motion' and

pass the same, in terms of Rule 122-A of the M.P. Rules, is clear

from the bare reading of the Rule, as relatable to loss of faith

and confidence by the elected body in the elected office bearer.

We have already discussed in some detail and concluded that

Rule 122-A of the M.P. Rules is not ultra vires the provisions of

the Advocates Act, including Section 15. When the law so

permits, there is no right for that office bearer to stay in office

after the passing of the `no confidence motion' and, in the facts

and circumstances of the present case, it is clearly established

that the appellants had lost the confidence of the majority of the

elected members and thus the Resolution dated 16th April, 2011

cannot be faulted with.

61. Before concluding the judgment we would proceed to

record our conclusions and answer the three questions posed at

the outset of the judgment as follows:

72

Answers to:

Question No. 1

We hold that the provisions of Rules 121 and 122-A (in

particular) of the M.P. Rules are not ultra vires of the provisions,

including the provisions of Section 15, of the Advocates Act.

These rules also do not suffer from the vice of excessive

delegation.

Question No. 2

In view of our answer to Question No. 1, there is no need

for us to specifically answer this question.

Question No. 3

In view of the language of Section 15(3) of the Advocates

Act and the factual matrix afore-noticed by us, it is clear that the

amended rules of the M.P. Rules had received the approval of the

Bar Council of India, particularly Rule 122-A. The Rules would

not be invalidated for want of issuance of any notification, as it

is not the requirement in terms of Section 15(3) of the Advocates

Act and in any case would be a curable irregularity at best.

For the reasons afore-stated, we dismiss these appeals.

73

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

[Dr. B.S. Chauhan]

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

[Swatanter Kumar]

New Delhi;

August 9, 2011

74