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2018 DIGILAW 227 (MP)

Rameshwar Neekhra v. State Bar Council of M. P.

2018-02-26

HEMANT GUPTA, VIJAY KUMAR SHUKLA

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JUDGMENT : HEMANT GUPTA, CJ. 1. The challenge in the present writ petition is to the election of respondent No.2 as Chairman of Madhya Pradesh State Bar Council on 3rd February, 2018 by a unanimous decision of 22 members present and voting as against total strength of 25 members. 2. The petitioner has filed the present petition challenging the election of respondent No.2 as Chairman of State Bar Council in a meeting held on 3rd February, 2018 on the ground that he as a member of the State Bar Council, had sought leave of absence on the said date but without giving an opportunity to the petitioner to contest the election, the members have elected the respondent No.2 as Chairman in violation of the statutory Rules framed under the Advocates Act, 1961. Learned counsel for the petitioner refers to the following provisions in support of his arguments: The Advocates Act, 1961 Chapter II Bar Councils 3. State Bar Councils.- (1) There shall be a Bar Council *** *** ** (3) There shall be a Chairman and a Vice Chairman of each State Bar Council elected by the Council in such manner as may be prescribed. 3. The Bar Council of India has framed the Bar Council of India Rules (in short "the Rules") in terms of Section 15 and in terms of Sub-section (3) of Section 3 of the Advocates Act, 1961. The petitioner relies upon the following Rules:- PART II MATTERS RELATING TO THE BAR COUNCIL OF INDIA *** *** *** C. ELECTION OF CHAIRMAN AND VICE-CHAIRMAN 12. (1) *** *** *** (2) *** *** *** (3) The Chairman or the Vice-Chairman may resign his office by letter addressed to the Secretary of the Council. Such resignation shall take effect from the date of the acceptance thereof by the Council or from such other date as the Council may fix: Provided in the eventuality of mid-term poll of the office of the Chairman or Vice-Chairman, the term shall be of the residuary term. 13. If the Chairman or the Vice-Chairman ceases to be a member of the Council for any reason, the vacancy shall be filled up by election as far as possible at the next meeting of the Council." 4. Learned counsel for the petitioner also refers to the State Bar Council of Madhya Pradesh Rules approved by Bar Council of India (for short "the State Rules"). Learned counsel for the petitioner also refers to the State Bar Council of Madhya Pradesh Rules approved by Bar Council of India (for short "the State Rules"). The Rules referred to by the petitioner are mentioned as under:- Chapter - V RULES. MEETING OF THE BAR COUNCIL "1. After elections to the State Bar Council under Section 8 of the Advocates Act are held, the first meeting of the Bar Council shall be called, as far as possible within 30 days from the date of declaration of the result of the election to elect the Chairman and Vice-Chairman of the Council. A notice of at least 21 days shall be given for the general meeting to be held for this purpose. The notice of the meeting shall be sent by hand delivery or registered post. The first meeting of the Council shall be presided over by the Advocate-General, but if for some reasons the Advocate-General does not attend the meeting, then the Council shall appoint any one of the members who is not a candidate for the election of Chairman or Vice-Chairman to preside over the meeting. 1.(A) No proceeding shall be invalidated merely on the ground that the rule relating to notice is not strictly complied with. *** *** *** Chapter - VI RULES COMMON TO ALL COMMITTEES 12. Calling of Meetings- The Secretary in consultation with the President of a Committee, shall circulate the agenda for the meeting of such Committee to its members or such other persons who is specially invited and shall intimate to them the date, time and place of such meeting at least seven days before such meeting of any committee. *** *** *** Chapter XVII POWERS AND DUTIES OF THE CHAIRMAN AND VICECHAIRMAN *** *** *** VICE CHAIRMAN 117. The Vice-Chairman shall exercise all the powers and discharge all the functions of the Chairman, in the absence of the Chairman or in the event of his inability to discharge his functions. He shall perform such other functions as may be delegated to him in writing by the Chairman. The Vice-Chairman shall exercise all the powers and discharge all the functions of the Chairman, in the absence of the Chairman or in the event of his inability to discharge his functions. He shall perform such other functions as may be delegated to him in writing by the Chairman. *** *** *** Chapter - XVIII 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. 5. On the strength of the aforesaid provisions, the argument is that the Chairman is duty bound to circulate the agenda of meeting of the Council after giving seven days notice but in the agenda circulated there was no whisper that he intends to resign in the meeting. Relying upon Rule 13 of the Rules, it is contended that the election of the Chairman cannot be held in the same meeting but is required to be conducted in the next meeting. It is also contended that even if the Chairman has decided to resign in the meeting, the election of the Chairman could wait as Vice-Chairman can take over as Chairman and could continue with the proceedings. In terms of clause 117 of Chapter XVII of the State Rules, the Vice-Chairman exercise all the powers and discharges all the functions of the Chairman in the absence of the Chairman. Therefore, the Vice-Chairman could act as Chairman pending election in the next meeting of the Bar Council. 6. In terms of clause 117 of Chapter XVII of the State Rules, the Vice-Chairman exercise all the powers and discharges all the functions of the Chairman in the absence of the Chairman. Therefore, the Vice-Chairman could act as Chairman pending election in the next meeting of the Bar Council. 6. Relying upon clauses 122-A and 122-B of Chapter-XVIII of the State Rules and by drawing analogy from the procedure for resolution against the Chairman for removal, it is argued that notice required is for seven days, therefore, the election of a Chairman in the meeting in which the previous Chairman resigns contravenes the spirit of the Rules as the meeting for election of Chairman should have held in terms of Clause 1, Chapter V of the State Rules or after seven days' notice. Reliance is also placed upon the Supreme Court judgment reported as (Subramanian Swamy vs. Election Commission of India, (2013) 10 SCC 500 ) to contend that all elections are said to be conducted in a transparent manner. Learned counsel has placed heavy reliance upon the following paragraph of the said decision:- "28. From the materials placed by both the sides, we are satisfied that the "paper trail" is an indispensable requirement of free and fair elections. The confidence of the voters in the EVMs can be achieved only with the introduction of the "paper trail". EVMs with VVPAT system ensure the accuracy of the voting system. With an intent to have fullest transparency in the system and to restore the confidence of the voters, it is necessary to set up EVMs with VVPAT system because vote is nothing but an act of expression which has immense importance in democratic system." 7. Learned counsel for the petitioner also relies upon Supreme Court judgment in the case of Nathi Devi vs. Radha Devi Gupta, (2005) AIR SC 648 to contend that even if there is some difficulty or ambiguity in the language of the Rules, the interpretation which serves the object and purport of the Act must be given effect to. Learned counsel for the petitioner also relies upon a Single Bench judgment of this Court in the case of Kamla Bai vs. Nagar Panchayat, Jatara and another, (2002) 2 MPLJ 366 to contend that there has to be an agenda, which is required to be circulated before the meeting. 8. Learned counsel for the petitioner also relies upon a Single Bench judgment of this Court in the case of Kamla Bai vs. Nagar Panchayat, Jatara and another, (2002) 2 MPLJ 366 to contend that there has to be an agenda, which is required to be circulated before the meeting. 8. We have heard learned counsel for the petitioner and find that the petitioner is a disgruntled minority member of the Bar Council, who has invoked the writ jurisdiction of this Court. In the meeting of the Bar Council held on 3rd February, 2018, the Chairman submitted his resignation and the members present unanimously elected respondent No.2 as Chairman of the Bar Council. Once the election of respondent No.2 was unanimous, all other arguments are raised so as to tinker with the unanimous opinion of other members of the Council. 9. Coming to the arguments raised by learned counsel for the petitioner, we find that Rule 13, Part C, Chapter II of the Rules has no application to the facts of the present case, as such clause deals with when Chairman or Vice Chairman ceases to be member of Council for any reason. It does not deal with the situation where Chairman or Vice Chairman resigns from his post retaining membership and thus, consequently creates a vacancy of the post of Chairman or Vice Chairman. The statutory rules framed by Bar Council of India do not contemplate that the vacancy caused by resignation of a Chairman or Vice Chairman has to be filled up in a subsequent meeting only. 10. The reliance of the petitioner on Rule 1 of Chapter V of the State Rules is again not tenable. Such clause deals with the election of the Chairman in the first meeting of Bar Council after election to the State Bar Council. Admittedly, the meeting held on 3rd February 2018 was not the first meeting of the State Bar Council after its elections. Still further, clause 12 of Chapter VI deals with circulation of the agenda for the meetings of the Council. If the Chairman has not decided to resign at the time of circulation of the agenda, it cannot be said that he is debarred in law from submitting his resignation in the meeting of the Bar Council, which was conducted on rd February, 2018. Therefore, we do not find any merit in the said argument as well. 11. If the Chairman has not decided to resign at the time of circulation of the agenda, it cannot be said that he is debarred in law from submitting his resignation in the meeting of the Bar Council, which was conducted on rd February, 2018. Therefore, we do not find any merit in the said argument as well. 11. In respect of an argument based upon clause 117 of the Chapter XVII of the State Rules that the Vice Chairman could exercise all the powers and discharge the function of the Chairman in the absence of Chairman, is again not tenable. Clause 117 is an enabling provision to enable the Vice Chairman to act as Chairman but that does not bar the Council to elect a Chairman in lieu of Chairman, who has put in his papers. Therefore, we find the said argument to be not tenable. 12. In respect of an argument on the analogy that agenda for removal of a Chairman or Vice Chairman has to be moved after notice of seven days is again not tenable. There was no "no confidence motion" against the Chairman or Vice Chairman, but it was a voluntary act of resignation by the Chairman causing vacancy of the Chairman of the Bar Council in the meeting held on 3rd February, 2018 and consequently, the 22 members present out of 25 members, unanimously elected respondent No.2 as Chairman. Such election in the meeting held on 3rd February, 2018 does not contravene any of the Rules or State Rules as well. 13. The judgment in Subramanian Swamy's case is a judgment wherein the Supreme Court has directed the Election Commission of India to incorporate paper trail system in the electronic paper voting machine so as to bring full transparency in the election system. We find that such judgment has nothing to do even remotely with the arguments raised. The 22 members of the Council unanimously voted in favour of a candidate, therefore, it cannot be said that such unanimous opinion is anywhere violating the transparency in the election process. 14. It may be mentioned that in a judgment of the Supreme court reported as (Kuldip Nayar and others vs. Union of India and others, (2006) 7 SCC 1 ) a Constitution Bench has held that election by show of hands is a valid mode of votes. 14. It may be mentioned that in a judgment of the Supreme court reported as (Kuldip Nayar and others vs. Union of India and others, (2006) 7 SCC 1 ) a Constitution Bench has held that election by show of hands is a valid mode of votes. The said judgment arises in relation to the elections as Members of Rajya Sabha. Therefore, the State Bar Council could vote by show of hands when electing respondent No.2 as the Chairman of the Bar Council. The judgment in Nathi Devi's case again has no application to the facts of the present case as there is no contradiction in any of the provisions of the Rules. The Rules do not provide that in the event of resignation of Chairman, the vacancy cannot be filled up in the same meeting of the Bar Council. 15. In the present case, the Members of the Bar Council unanimously elected respondent No.2 as Chairman. Therefore, such unanimous election cannot be permitted to be disputed in the writ petition by another member, who was not present in the meeting of the Bar Council. The judgment of this Court in Kamla Bai's case relates to retirement of writ petitioner ordered by the Municipal Council without there being any agenda. It is in these circumstances, this Court held that there needs to be an agenda when passing a resolution and while confirming the minutes of the meeting such decision cannot be taken. We find that reliance of the petitioner on the said judgment is also of no assistance to the arguments raised. 16. We find that the petitioner being in absolute minority has invoked the writ jurisdiction of this Court finding no way to dispute the election of the Chairman in the meeting of the Council. Consequently, we do not find any merit in the present petition and the same is dismissed.