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1995 DIGILAW 718 (MP)

Tamaskar Tandon v. State Bar Council Of Madhya

1995-09-15

S.K.DUBEY, U.L.BHAT

body1995
ORDER 1. By this petition under Articles 226/227 of the Constitution of India, the petitioner has challenged the vires of the Rules known as State Bar Council of Madhya Pradesh Election Rules, 1968 (for short 'the Election Rules') (Annexure P-1) framed under Section 15(2)(a) and (d) of the Advocates Act, 1961 (for short 'the Act') and approved by the Bar Council of India. The petitioner has also challenged the, notification No. SBC/M.P./Election/Cir. No. 04/95 dated 17-7-1995 and also the notification No. SBC.M.P./Errata/(Elect-Roll)/Election/95/256 dated 26-6-1995 (Annexure P-6) and also the candidature of respondent No. 3. 2. Brief facts giving rise to this petition are these. The petitioner who is on State Roll of Advocates prepared and maintained by Madhya Pradesh State Bar Council is practising at Durg. He avers that he belongs to Scheduled Caste Community and socially and economically belongs to the " weaker section of the society. The petitioner was desirous of contesting the election; but under the Election Rules no seats are reserved for the candidates of Scheduled Caste, Scheduled Tribe and Other Backward Classes including women. Therefore, the Rules are violative of Articles 14 and 16 of the Constitution of India and are against the judgment of the Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477 , and also of Report of Mandal Commission. The petitioner also challenges the proviso (1) of Rule 25 of the Election Rules which lays down that no candidate who has been an Advocate on the State Roll for at least 10 years shall be elected if 12 candidates of less than 10 years' standing have already been declared elected, while in case of Advocates who have put in more than 10 years standing, a provision for election of 13 candidates has been made which is discriminatory. The petitioner has also challenged the correctness of the Electoral Roll as defined in Rule 2(j) of the Election Rules which means and includes the roll containing the names of Advocates prepared in accordance with the Rules of the Bar Council of India in Part III, Chapter I, the term 'voter' in Rule 2(t) means a person whose name is included in the Electoral Roll. In the Electoral Roll, the names of the Advocates .have been included as voters from Raipur and Durg who are no more in this world. In the Electoral Roll, the names of the Advocates .have been included as voters from Raipur and Durg who are no more in this world. Petitioner also challenges Annexure P-6, Errata - on the ground that once Final Electoral Roll 1995 (Annexure P-3) was published, no amendment in that could have been made vide Annexure P-6. It is also alleged that under Rule 31 of the Election Rules no Election Tribunal has been constituted by the State Bar Council for deciding the validity of the election disputes; therefore, candidature of respondent No. 3 who is on State Roll, cannot be challenged as he is disqualified because of his conviction in Misc. Cr. Case No. 641/92 for committing contempt of Court under Section 2(c)(i) of the Contempt of Courts Act, 1971, for demanding certain amount from the client in the name of a Judge of this Court, and, hence, was sentenced to imprisonment till rising of the Court and fine of Rs. 1,000/- in default of payment of fine, he was directed to undergo simple imprisonment for a period of one month vide judgment dated 30-11-1992. Respondent No. 3 preferred Special Leave Petition before the Supreme Court against the said judgment which was dismissed. Last grievance of the petitioner is that the Secretary of the State Bar Council has been appointed Returning Officer, which is illegal. 3. After hearing Shri R. N. Tiwari, counsel for the petitioner and Shri V. K. Tankha, counsel for the State Bar Council, Madhya Pradesh, we are of the opinion that none of the contentions have any merit, which we shall deal one by one. 4. Re. Reservation of Seats -- A careful reading of the Act and Rules reveal that no provision has been made for the reservation of the categories of the candidates belonging to Scheduled Caste, Scheduled Tribe and Backward Classes, and also for woman candidates. Petitioner contends that the rules are violative of Articles 14 and 16 of the Constitution. Reliance was placed on Indra Sawhney v. Union of India, AIR 1993 SC 477 . Petitioner contends that the rules are violative of Articles 14 and 16 of the Constitution. Reliance was placed on Indra Sawhney v. Union of India, AIR 1993 SC 477 . Suffice it to say that unless a provision for reservation is made by the Parliament/Legislature in the Act or in the Rules or even by an executive order, a writ Court in its extraordinary jurisdiction under Article 226 of the Constitution will not direct the Legislature or the Executive authority to make such provision by enacting law or by issuing executive order as the case may be. The decision of the Supreme Court in Indra Sawhney's case (supra) is of no help. The Supreme Court while considering the provision for reservation of appointments or posts in favour of Backward classes of citizens, contemplated by Article 16(4) of the Constitution has observed that such provision cannot only be made by Parliament/Legislature; but also by the Executive in respect of Central/State services and by the local bodies and 'other authorities', contemplated by Article 12 of the Constitution. Article 16(4) of the Constitution can be invoked to test or examine the constitutional validity of a provision relating to reservation as valid and enforceable. It would not be reasonable, possible or practicable to say that Parliament or the Legislature should provide for reservation of posts/appointments in the services of all such bodies besides providing, in respect of services under the Central/State Government. 5. Re. Contention No. 2. - In all 25 candidates are to be elected as the Members of the State Bar Council amongst the Advocates who are on Electoral Roll. Rule 25 deals with the candidates with quota to be elected. Proviso (1) restricts election of 12 candidates for those who have less than 10 years standing; 13 for those who have more than 10 years standing which is almost-equal. Restriction of the elected candidates among the two categories of the Advocates cannot be said to be discriminatory or violative of Article 14 of the Constitution as the standing and the experience at the Bar have been made the basis for classification of the two classes of categories. Restriction of the elected candidates among the two categories of the Advocates cannot be said to be discriminatory or violative of Article 14 of the Constitution as the standing and the experience at the Bar have been made the basis for classification of the two classes of categories. The State Bar Council as defined under Section 2(m) is constituted under Section 3 of the Act, is a body corporate under Section 5 of the Act having perpetual succession and a common seal with power to acquire and hold property, both movable and immovable and has to perform functions as enumerated under Section 6 of the Act. While taking decisions on matters within the province of the State Bar Council, experienced Advocates of senior standing at the Bar should also be involved in the decision making process. Such involvement will arrive proper functioning of the Council. The petitioner has not pleaded or demonstrated as to how restricting the number of elected candidates from amongst the two categories of the Advocates is discriminatory. It is the settled position of law that there is always a presumption in favour of the constitutionality of a statute and the burden is upon one who attacks it to show that there has been a glaring transgression of the constitutional principles. Unless the classification is proved to be "arbitrary, artificial or evasive" and is not based on intelligible differentia which distinguishes persons or things grouped together in one class from others left out of it or the Court is satisfied that the classification has no reasonable or rational nexus with the object sought to be achieved, the provision cannot be challenged. Bearing in mind the above well established principles for testing constitutional validity on the touch stone of Article 14 of the Constitution, since nothing arbitrary, artificial or evasive has been pointed out in the classification of the categories, the provision cannot be said to be unconstitutional. 6. Re. Constitution of Election Tribunal under Rule 31 of the Election Rules. - From the reply to the interim application it is clear that under Rule 31(6) the Tribunal has already been constituted by Resolution of the State Bar Council dated 29-1-1995 which consists of 3 senior Advocates, viz. Shri P. L. Dubey, Ex-Advocate General, Gwalior; Shri V S. Dabir, Senior Advocate of Jabalpur and Shri G. M. Chaphekar, Senior Advocate of Indore. Shri P. L. Dubey, Ex-Advocate General, Gwalior; Shri V S. Dabir, Senior Advocate of Jabalpur and Shri G. M. Chaphekar, Senior Advocate of Indore. Letters of request were sent to them on 8-5-1995 and they have sent their consent. Therefore, if any election dispute arises a statutory remedy is available under the Act and the Election Rules; if the petitioner or any aggrieved person has noticed irregularities committed in the election, they may raise election dispute before the Tribunal who had wide powers under Rule 31(6) of the Election Rules to deal with election dispute. Therefore, in the matter relating to irregularities in election, disqualification of a candidate, corrupt practice, the Court will not interfere under Article 226 of the Constitution. See Ravi Kiran Jain and Ors. v. Bar Council of U. P. and Ors., AIR 1975 All. 190 . 7. Regarding Amendment in Electoral Roll - Names of the Advocates who were already on the State Roll could not be included in the Electoral Roll because of typographical error; by errata such error was rectified. We find nothing illegal in it. Moreover the members so included are not candidates for the election of the Members of the Bar Council. Therefore, also, inclusion of the names by errata is not vitiated. 8. Re. Inclusion of the Advocates who are no more in this world - Shri Vivek Tankha, learned counsel for the respondent State Bar Council, stated that in spite of the notices issued to the various Bar Associations in the State including the Bar Associations of Durg and Raipur, none pointed out that any member of their Bar has expired. Hence after the expiry of the period of notice, the Electoral Roll was finally prepared. However, Shri Tankha, counsel for the respondent, assured that if any of the Bar Associations points out that any member has died, that will be noted and care will be taken at the time of counting of ballots. 9. As regards respondent No. 3, admittedly he is on the roll of the State Bar Council. He was sentenced on 3-11-1992. Disqualification as contained in the notification (Annexure R. 1/3) which enumerates the disqualifications of a candidate to contest the election in accordance with Rules 2 and 3 of Chapter 1, Part III of the Rules framed by the Bar Council of India, under Sections 3(4), 10B, 15(2), 49(l)(a) and (ab) of the Act. He was sentenced on 3-11-1992. Disqualification as contained in the notification (Annexure R. 1/3) which enumerates the disqualifications of a candidate to contest the election in accordance with Rules 2 and 3 of Chapter 1, Part III of the Rules framed by the Bar Council of India, under Sections 3(4), 10B, 15(2), 49(l)(a) and (ab) of the Act. Clause (e) of Rule 2 of Chapter 1, Part III of the Rules framed by Bar Council of India as above, lays down that a candidate shall not be qualified to contest the election if he is convicted by a competent Court for an offence involving moral turpitude provided that this disqualification shall cease to have effect after a period of two years has elapsed since his release. Admittedly two years have elapsed after the execution of the sentence imposed on respondent No. 3; therefore, it cannot be said that respondent No. 3 is disqualified to contest the election. 10. Coming to the last contention, viz. appointment of Secretary of the Bar Council as Returning Officer, Rule 33 (p) of the Election Rules defines the Returning Officer, as the person appointed by the Bar Council to conduct the election and in case no Returning Officer is appointed, then the Secretary. As the State Bar Council admittedly did not appoint any other person as Returning Officer, hence the Secretary will be the Returning Officer, in view of the statutory provision. 11. As a result of the aforesaid discussion, petition has no merit and it is dismissed without any order as to costs.