Full Judgment Text
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PETITIONER:
BAR COUNCIL OF DELHI AND ANR. ETC.
Vs.
RESPONDENT:
SURJEET SINGH AND ORS. ETC. ETC.
DATE OF JUDGMENT01/05/1980
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
TULZAPURKAR, V.D.
SEN, A.P. (J)
CITATION:
1980 AIR 1612 1980 SCR (3) 946
1980 SCC (4) 211
ACT:
Bar Council of Delhi Election Rules 1968 Rule 3(i)
validity of-Jurisdiction of the High Court under Article
226-Alternative remedy no bar-Right to vote and right to
stand for election-Doctrine of Promissory Estoppel and
principle of approbation and reprobation.
HEADNOTE:
In the year 1978, a proviso was added to Rule 3(j) of
the Bar Council of Delhi Election Rules, 1968 with the
approval of the Bar Council of India in accordance with the
requirement of Sub-section (3) of section 15 of the
Advocates Act, 1961. In accordance with that proviso a copy
of the declaration form was sent on 14th June, 1978 to the
Advocates whose names found place in the State roll of
Advocates asking them to return the declaration form duly
filled up and signed within the specified period. A
publication to this effect was also made in some newspapers
viz. Hindustan Times, Indian Express, Statesman etc. The
last extended date for the submission of the declaration
forms was 14th September, 1978 and the electoral roll was
finally published on the 16th September, 1978 excluding the
names of about 2,000 Advocates who had failed to submit such
declaration forms. On the basis of the electoral roll so
prepared, elections to the Bar Council of Delhi was held on
the 17th November, 1978. The total number of advocates on
the Advocates roll was 5,000 and odd out of which the names
of about 3,000 and odd only were included in the electoral
roll in accordance with the proviso to Rule 3(j) of the
Election Rules of the Bar Council of Delhi. The results of
the election were declared on the 19th November, 1978. The
names of the 15 persons who were declared elected were
published in the Gazette on the 22nd November, 1978.
Thereafter the respondents in these appeals filed writ
petitions challenging the whole election by attacking the
validity of the proviso to Rule 3(j).
The Delhi High Court allowed the three writ petitions
taking the view, (i) so far as the qualifications to be
possessed by and the conditions to be satisfied by an
advocate before being brought on to the Electoral Roll was
concerned only the Bar Council of India has the competence
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to make the rules under section 3(4) and section 49(1)(a) of
the Advocates Act, 1961 and the State Bar Council has no
power at all to make a rule on this subject; (ii) the plea
of estoppel against Surjeet Singh does not arise, (iii) rank
injustice has been done to the petitioners because more than
2000 advocates were wrongfully disqualified being brought on
the Electoral Roll. This has materially affected the result
of the elections; and (iv) Rule 3(j) of the Bar Council of
Delhi Election Rules, 1968 is in excess of the rules making
power of Bar Council of Delhi.
Dismissing the appeals by special leave the Court,
^
HELD: 1. The impugned proviso to Rule 3(j) of the Delhi
Bar Council of Election Rules is ultra vires and invalid and
the electoral roll prepared by
947
the Delhi Bar Council on the basis of the same resulting in
the exclusion of the names of about 2000 advocates from the
said roll was not valid in law. [958D-E]
(b) The whole election was invalid on that account and
it could be challenged as such in a writ petition. It was
not a case of challenging the preparation of the electoral
roll on the factual basis of wrong exclusion of a few names.
For the said purpose Rule 4 occurring in Chapter I of the
Bar Council of India Rules could come into play. But here,
because of the invalidity of the Rules itself, the
preparation of the electoral roll was completely vitiated-a
matter which cannot be put within the narrow limit of the
said rule. [958E-F]
However, it depends upon the nature and the intensity
of the error committed in the preparation of the electoral
roll and its effect on the whole election for deciding the
question as to whether a writ petition would be maintainable
or not. [862E-F]
Chief Commissioner, Ajmer v. Radhey Shyam Dani, [1957]
S.C.R. 68; Parmeshwar Mahaseth and Ors. v. State of Bihar
and Ors., AIR 1958 Patna 149; Umakant Singh and Ors. v.
Binda Choudhary and Ors., AIR 1965 Patna 459; Dev Prakash
Balmukand v. Babu Ram Rewti Mal and Ors. AIR 1961 Punjab
429; Ramgulam Shri Baijnath Parsad v. The Collector,
District Guna and Ors., AIR 1975 M.P. 145 and Bhoop Singh v.
Bar Council of Punjab and Haryana through its Secretary and
Ors., AIR 1976 M.P. 110; referred to.
(c) The illegal preparation of the electoral roll by
the Delhi Bar Council on the basis of the invalid proviso to
Rule 3(j) goes to the very root of the matter and no
election held on the basis of such an infirmity can be
upheld. There is no question of the result being materially
affected in such a case. [958F-G]
(d) The contesting respondents could not be defeated in
their writ petitions on the ground of estoppel or the
principle that one cannot approbate and reprobate or that
they were guilty of laches. In the first instance some of
the contesting respondents were merely voters. Even Sri
Surjeet Singh in his writ petition claimed to be both a
candidate and a voter. As a voter he could challenge the
election even assuming that as a candidate after being
unsuccessful he was estopped from doing so. But, merely
because he took part in the election by standing as a
candidate or by exercise of his right of franchise he cannot
be estopped from challenging the whole election when the
election was glaringly illegal and void on the basis of the
obnoxious proviso. There is no question of approbation and
reprobation in such a case. A voter could come to the High
Court even earlier before the election was held. But merely
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because he came to challenge the election after it was held
it cannot be said that he was guilty of laches and must be
non-suited on that account. [958F-H, 959A-B]
Kanglu Beula Kotwal and Anr. v. Chief Executive
Officer, Janpad Sabha, Durga and Ors., AIR 1955 Nagpur 49;
distinguished.
(e) The manner of resolving disputes as to the validity
of election is provided for in Rule 34 of the Delhi Bar
Council Election Rules. This is not an
948
appropriate and adequate alternative remedy to defeat the
writ petitioner on that account. Firstly, no clause of Rule
34 covers the challenging of the election on the ground that
it has been done in this case. Secondly, the Election
Tribunal will not be competent to declare any provision of
the Election Rules ultra vires and invalid. It is not a case
where the name of any voter was wrongly omitted from the
electoral roll but it is a case where the preparation of the
whole electoral roll was null and void because of the
invalidity of the impugned proviso. [959C-D, E-F]
Ramgulam Shri Baijnath Pd. v. The Collector, Dist. Guna
and Ors., AIR 1975 M.P. 145 and Bhupendra Kumar Jain v. Y.
S. Dharmadhikari and Ors., AIR 1976, M.P. 110; referred to.
Bhoop Singh v. Bar Council of Punjab and Haryana
through its Secretary and Ors., AIR 1977 Pb. & Haryana;
quoted with approval.
K. K. Srivastava etc. v. Bhupendra Kumar Jain and Ors.,
AIR 1977 S.C. 1703; distinguished.
2. If the alternative remedy fully covers the challenge
to the election then that remedy and that remedy alone must
be resorted to even though it involves the challenge of the
election of all the successful candidates. But if the nature
and the ground of the challenge of the whole election are
such that the alternative remedy is no remedy in the eye of
law to cover the challenge or, in any event, is not adequate
and efficacious remedy, then the remedy of writ petition to
challenge the whole election is still available. In the
present case the Election Tribunal would have found itself
incompetent to declare the proviso to Rule 3(j) of the Delhi
Bar Council Election Rules ultra vires and that being so the
alternative remedy provided in Rule 34(8) was no remedy at
all. [964D-F]
Suryya Kumar Ray v. The Bar Council of India and Ors.
Matter No. 304 of 1976 decided on December 17, 1976,
overruled.
Harish Sambhu Prasad v. Bar Council of Gujarat, Special
Civil Application Nos. 542 and 551 of 1969; approved.
3. So long the existing rules framed by the Bar Council
of India remained in vogue all persons whose names are on
the State Roll are entitled proprio vigore to be put on the
electoral roll. Sections 24(e) (1) and 26A of the Advocates
Act, 1961 read with Rules 1, 2 and 3 of Chapter I of Part
III of the Bar Council of India Rules make this position
clear. [954A-B, D-H]
4. On a plain reading of sub-sections 4 of section 3 of
the Advocates Act, 1961, it is manifest that under the Act
the qualifications and conditions entitling an advocate to
vote at an election or for being chosen as a member of the
State Bar Council has to be prescribed by the Bar Council of
India. The State Bar Council has no such power. The power of
the State Bar Council is merely to prepare and revise from
time to time the electoral roll subject to the Rules made by
the Bar Council of India concerning the qualifications and
conditions aforesaid. This interpretation of Section 3(4) of
the Act finds ample support from the very special and
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specific provision contained in section 49(1) (a) providing
for the general power of the Bar Council of India. [956F-H]
949
5. It is true that the power to make rules conferred by
section 15 is both for the Bar Council of India as also for
the Bar Council of a State. But no provision of section 15
can override the specific provision made in section 3(4) and
section 49(1)(a) of the Act. Sub-section (1) of section 15
says-"A Bar Council may make rules to carry out the purposes
of this Chapter" which means Chapter II including section 3.
But the power to prescribe qualifications and conditions
entitling an advocate to vote at an election being that of
the Bar Council of India section 15(1) cannot be interpreted
to confer power on the State Bar Council to make rules
regarding the qualifications and conditions aforesaid.
[957B-D]
The State Bar Council can frame rules for the
preparation and revision of electoral rolls under section
15(2)(a). That would be in conformity with the latter part
of sub-section (4) of section 3 also. But in the garb of
making a rule for the preparation and revision of the
electoral rolls it cannot prescribe disqualifications,
qualifications or conditions subject to which an advocate
whose name occurs in the State roll can find place in the
electoral roll resulting in his deprivation of his right to
vote at the election. In the instant case under the impugned
proviso failure on the part of an advocate to submit the
required declaration within the specified time entitles the
State Bar Council to exclude his name from the electoral
roll. Such a thing was squarely covered by the exclusive
power conferred on the Bar Council of India under sections
3(4) and 49(1)(a) of the Advocates Act. The State Bar
Council had no such power. [957F-H]
6. The approval of the Bar Council of India can make
the rule made by the State Bar Council valid and effective
only if the rule made is within the competence of the State
Bar Council otherwise not. Mere approval by the Bar Council
of India to a rule ultra vires the State Bar Council cannot
make the rule valid. Nor has it the effect of a rule made by
the Bar Council of India. Making a rule by the Bar Council
of India and giving approval to a rule made by the State Bar
Council are two distinct and different things. One cannot
take the place of the other. [958B-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 2224,
2225 and 2226 of 1979.
Appeals by Special Leave from the Judgment and Order
dated 22-5-1979 of the Delhi High Court in Civil Writ Nos.
111, 551 and 284 of 1979.
V.M. Tarkunde, A. K. Sen, G. L. Sanghi, B. P.
Maheshwari and S. K. Bhattacharya for the Appellants in
C.A.s. 2224, 2225, 2226/79.
P. R. Mridul, Vimal Shanker, K. R. R. Pillai, P. N.
Wadhera and Aruneshwar Gupta for Respondent No. 1 in CA
2224/79.
D. D. Chawla, Vineet Kumar and R. S. Sihota for
Respondent Nos. 1-3 in CA 2225/79.
B. D. Sharma and Aloka Bhattacharya for Respondent No.
1 in CA 2226/79.
950
The Judgment of the Court was delivered by
UNTWALIA J.-These three appeals by the Bar Council of
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Delhi and the Bar Council of India are from the common
judgment of the Delhi High Court allowing three writ
petitions filed by the first respondent in each appeal and
others seeking the setting aside of the election of the Bar
Council of Delhi held in the year 1978. As the points
involved in them are identical they are all being disposed
of by this common judgment. We shall proceed to state the
facts from the records of Civil Appeal No. 2224 of 1979 in
which respondent no. 1 is Shri Surjeet Singh Bhangul. He was
a voter as also a candidate for the election wherein he
lost. In the writ petition giving rise to Civil Appeal 2225
of 1979 there were three petitioners-two were candidates but
Shri D. R. Thakur was an advocate whose name was not
included in the electoral roll although his name occurs in
the State roll of Advocates. Shri A. S. Randhawa, respondent
no. 1 in Civil Appeal 2226 of 1979 was a person whose name
occurred both in the State roll of Advocates as also in the
electoral roll. But he was not a candidate.
Surjeet Singh was an advocate who was a member of the
Delhi Bar Council before the impugned election. A proviso
was added to Rule 3(j) of the Bar Council of Delhi Election
Rules, 1968 in the year 1978. In accordance with that
proviso a copy of the declaration form was sent on 14th
June, 1978 to the advocates whose names found place in the
State roll of Advocates asking them to return the
declaration form duly filled up and signed within the
specified period. A publication to this effect was also made
in some newspapers viz. Hindustan Times, Indian Express,
Statesman etc. The last extended date for the submission of
the declaration forms was 14th September 1978 and the
electoral roll was finally published on the 16th September
1978 excluding the names of about 2,000 advocates who had
failed to submit such declaration forms. On the basis of the
electoral roll so prepared, according to the programme of
election, the election of members to the Bar Council of
Delhi was held on the 17th November 1978. The total number
of advocates on the Advocates roll was 5,000 and odd out of
which the names of about 3,000 and odd only were included in
the electoral roll in accordance with the proviso to Rule
3(j) of the Election Rules of the Bar Council of Delhi. The
results of the election were declared on the 19th November,
1978. The names of the 15 persons who were declared elected
were published in the Gazette on the 22nd November, 1978.
Thereafter on the 24th of January 1979 the writ petition was
filed in the High Court challenging the whole election by
attacking the validity of the proviso to Rule 3(j).
951
Apart from the successful candidates the writ petitions
were mainly and vigorously contested by the two Bar
Councils, namely, the Bar Council of Delhi and the Bar
Council of India. The latter seems to have taken keen
interest in the matter of contesting the writ petitions
because the impugned proviso to Rule 3(j) was introduced in
the Election Rules with the approval of the Bar Council of
India in accordance with the requirement of sub-s. (3) of
Section 15 of the Advocates Act, 1961. The High Court has
taken the view:-
(1) "Lastly, the irresistible conclusion,
therefore, is that so far as the
qualifications to be possessed by and the
conditions to be satisfied by an advocate
before being brought on the Electoral Roll
are concerned only the Bar Council of India
has the competence to make the rules under
Section 3 (4) and Section 49 (1) (a) and the
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State Bar Council has no power at all to make
a rule on this subject."
(2) The plea of estoppel raised against Surjeet
Singh was rejected.
(3) "Rank injustice has been done to the
petitioner because more than 2,000 advocates
were wrongfully disqualified from being
brought on the Electoral Roll. This has
materially affected the result of the
election."
(4) "For the reasons stated above, we hold that
Rule 3(j) of the Bar Council of Delhi
Election Rules, 1968, is in excess of the
rules making power of the Bar Council of
Delhi. Since the action taken by the Bar
Council of Delhi to disqualify more than
2,000 advocates because of their non-
compliance with the proviso to Rule 3(j) has
resulted in great prejudice to the petitioner
who can justly claim that the bringing on the
Electoral Roll of more than 2000 advocates
would have made a considerable difference to
his own election and to the election as a
whole, we are constrained to set aside the
election to the Bar Council of Delhi held on
17th November 1978."
M/s V. M. Tarkunde, A. K. Sen and G. L. Sanghi
appearing for the appellants, broadly speaking, made the
following submissions:-
(1) That the impugned proviso of Delhi Bar
Council Election Rules was valid as it was
within the competence of the Delhi Bar
Council to add such a proviso in the Rules
under its rule making power with the approval
of the Bar Council of India. In any event the
ap-
952
proval had the effect of making it a rule
made by the Bar Council of India.
(2) The electoral roll prepared by the Bar
Council of Delhi could not be challenged in a
writ petition. The preparation of the
electoral roll is final and any wrong
exclusion or inclusion of name from or in the
electoral roll is beyond the pale of
challenge in a writ petition.
(3) That it was not shown that the result of the
election has been materially affected due to
the non-inclusion of the names of about 2,000
advocates from the electoral roll. There was
neither any pleading to this effect nor was
any material placed before the High Court in
support of this assertion.
(4) That Surjeet Singh and others like him who
had taken part in the election and were
defeated were estopped from challenging the
election as they could not approbate and
reprobate at the same time. They were guilty
of laches also as they could have challenged
in the High Court the validity of the
impugned proviso before the election was
actually held.
(5) That there is a specific remedy provided in
the Delhi Bar Council Election Rules for
challenging any election to the Bar Council
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and hence in view of the adequate remedy
being available the election could not be
challenged by a writ petition.
M/s. P. R. Mridul and F. S. Nariman appearing for the
contesting respondents combated all the submissions made on
behalf of the appellants and supported the judgment of the
High Court.
We find no substance in any of the points urged on
behalf of the appellants. We are, by and large, in agreement
with the decision of the High Court on each and every point.
We proceed to briefly state our reasons for the same.
Section 4 of the Advocates Act provides for persons who
may be admitted as advocates on a State roll. Clause (e) of
sub-s. (1) says that the person must fulfil such other
conditions as may be specified in the rules made by the
State Bar Council under Chapter III of the Act which
concerns the admission and enrollment of advocates. Under
the Rules so framed a person desirous of being enrolled as
an advocate has to apply in the prescribed form furnishing
all the details of his qualifications to be enrolled as an
advocate. In item 3 of the application the applicant
declares-"I declare that upon admission I pro-
953
pose to practise within the State of Delhi." At the end of
the application form certain undertakings are given by the
applicant. Clause (c) of the undertaking runs thus:-
"I hereby declare and undertake that-
(iv) I intend to practise ordinarily and regularly
within the jurisdiction of the Bar Council of
Delhi.
(v) I shall inform the Bar Council of any change
of address of my residence or place of
practice for the proper maintenance of the
roll and voters’ list."
According to the case of the Delhi Bar Council many
advocates after having been enrolled and put on the State
roll of advocates of Delhi break the said undertaking. They
do not ordinarily and regularly practise within the
jurisdiction of the Bar Council of Delhi nor do they inform
any change of address for the proper maintenance of the roll
and the voters’ list. It is a pertinent matter no doubt. It
is the duty of the Bar Council to obtain information as to
whether any person put on the roll of State advocates ceased
ordinarily and regularly to practise within the jurisdiction
of the Bar Council of Delhi, if so, to take steps for
removal of his name from the State rolls. That would
automatically, as we shall presently show, debar the person
concerned to be put on the electoral roll. But no provision
in the Advocates Act or any rule was brought to our notice
enabling the Delhi Bar Council to remove the name of a
person from the State roll if he has broken the undertaking
aforesaid. Section 26A of the Advocates Act merely says-"A
State Bar Council may remove from the State roll the name of
any advocate who is dead or from whom a request has been
received to that effect." In para 2 of the affidavit of Shri
D. Gupta, Advocate it is stated:-
"It is the experience of this Council that most of
the advocates who are elevated to the Bench or those
who join subordinate judiciary or family or other
business or employment, seldom care to notify this
Council to get their licence revoked or suspended, nor
do the advocates shifting their place of practice from
Delhi to elsewhere, care to notify this Council in that
respect, although the undertakings at internal page 8
of the Enrollment form of this Council obliges them to
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do so."
It may be so but the lacunae in this regard have got to be
removed by amending the Advocates Act or by properly framing
the rules in that
954
respect. We are definitely of the opinion that so long the
existing rules framed by the Bar Council of India remained
in vogue all persons whose names are on the State roll are
entitled proprio vigore to be put on the electoral roll.
Rule 1 occurring in Chapter I of Part III of the Bar Council
of India Rules says:-
"1. Every advocate whose name is on the Electoral
Roll of the State Council shall be entitled to vote at
an election."
Rule 2 provides:-
"2. Subject to the provisions of Rule 3, the name
of every advocate entered in the State Roll shall be
entered in the electoral roll of the State Council."
Exceptions to Rule 2 are to be found embodied in Rule 3
which runs thus:-
"3. The name of an advocate appearing in the State
Roll shall not be entered in the Electoral Roll, if on
information obtained by the State Council:
(a) his name has any time been removed;
(b) he has been suspended from practice, provided that
this disqualification shall operate only for a
period of five years from the date of the expiry
of the period of suspension;
(c) he is an undischarged insolvent;
(d) he has been found guilty of an election offence in
regard to an election to the State Council by an
Election Tribunal, provided however that such
disqualification shall not operate beyond the
election next following after such finding has
been made;
(e) 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;
(f) he is in full-time service or is in such part-time
business or other vocation not permitted in the
case of practising advocates by the rules either
of the State Council concerned or of the Council;
(g) he has intimated voluntary suspension of practice
and has not given intimation of resumption of
practice."
None of the clauses in Rule 3 covers a clause of the kind
found in the proviso to Rule 3(j) of the Delhi Bar Council
Election Rules.
955
Rule 3 of Delhi Bar Council Election Rules is headed
’Interpretation". Clause (j) of the said Rules says:-
""Electoral Roll" means and includes the roll
containing the names of the advocates prepared in
accordance with the rules of the Bar Council of India
in Part III, Chapter I."
The impugned proviso added to clause (j) in the year 1978
runs thus:-
"Provided that the Electoral Roll shall not
include the name of such advocate who fails to file in
the office of the Bar Council, on or before such date
(not being earlier than 30 days of the date of
notification) as may be notified by the Bar Council in
such manner as may be considered proper by it from time
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to time, or within 45 days of the putting up of the
preliminary Electoral Roll under Rule 4(1) of Chapter I
of Part III of the Bar Council of India Rules, a
declaration containing the name, address and number of
the advocate on the State Roll and to the effect that:-
(a) He is an advocate ordinarily practising in
the Union Territory of Delhi and that his
principal place of practice is within Union
Territory of Delhi;
(b) He is not an undischarged insolvent;
(c) He has never been convicted by any court for
an offence involving moral turpitude;
or
A period of two years has elapsed since his
release after being convicted of an offence
involving moral turpitude;
(In case of conviction particulars of such
conviction should be given)
(d) He is not in full-time service or business or
in any such part-time business or other
vocation as is not permitted in the case of
practising advocates by the rules of the Bar
Council; and
(e) He has not been suspended from practice; and
on the failure to file the declaration or on
filing of incomplete or incorrect declaration
in any respect, it shall be presumed that the
name of such advocate is not to be entered on
the Electoral Roll in accordance with Rule 3
of Chapter I of Part III of the Bar Council
of India Rules."
956
In these appeals we are not concerned with the propriety or
legality of asking such a declaration from a person
belonging to the noble profession. We shall proceed on the
assumption that such an information could be asked for from
a person concerned whose name is on the State roll of
Advocates. On the furnishing of such information the name of
the advocate concerned could not be included in the
electoral roll only if on the basis of that information one
or more clauses of Rule 3 of the Bar Council of India Rules
to be found in Part III, Chapter I could come into play, not
otherwise. In these appeals we are not concerned with any
such case. The controversy here centres round the fact that
under the impugned proviso mere failure to file the required
declaration disqualified the advocate concerned from being
put on the electoral roll thus depriving him of his right to
vote or to stand as a candidate. The crux of the matter in
these appeals is as to whether such a proviso was valid or
ultra vires.
In order to determine the point at issue we shall now
read some relevant provisions of the Advocates Act. Section
3 provides for the constitution of the State Bar Council,
sub-s. (4) of which says:-
"(4) An advocate shall be disqualified from voting
at an election under sub-section (2) or for being
chosen as, and for being, a member of a State Bar,
Council, unless he possesses such qualifications or
satisfies such conditions as may be prescribed in this
behalf by the Bar Council of India, and subject to any
such rules that may be made, an electoral roll shall be
prepared and revised from time to time by each State
Bar Council."
On a plain reading of this sub-section it is manifest that
under the Act the qualifications and conditions entitling an
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advocate to vote at an election or for being chosen as a
member of the State Bar Council has to be prescribed by the
Bar Council of India. The State Bar Council has no such
power. The power of the State Bar Council is merely to
prepare and revise from time to time the electoral roll
subject to the rules made by the Bar Council of India
concerning the qualifications and conditions aforesaid. This
interpretation of Section 3(4) of the Act finds ample
support from the very special and specific provision
contained in section 49(1)(a) providing for the general
power of the Bar Council of India in these terms:-
"49. (1) The Bar Council of India may make rules
for discharging its functions under this Act, and, in
particular, such rules may prescribe-
957
(a) the conditions subject to which an advocate
may be entitled to vote at an election to the
State Bar Council including the
qualifications or disqualifications of
voters, and the manner in which an electoral
roll of voters may be prepared and revised by
a State Bar Council;"
Great reliance was placed on behalf of the appellants on the
concurrent power of the State Bar Council and the Bar
Council of India engrafted in section 15 of the Advocates
Act. It is true that the power to make rules conferred by
section 15 is both for the Bar Council of India as also for
the Bar Council of a State. But no provision of section 15
can override the specific provision made in section 3(4) and
section 49(1)(a) of the Act. Sub-section (1) of section 15
says-"A Bar Council may make rules to carry out the purposes
of this Chapter" which means Chapter II including section 3.
But the power to prescribe qualifications and conditions
entitling an advocate to vote at an election being that of
the Bar Council of India section 15(1) cannot be interpreted
to confer power on the State Bar Council to make rules
regarding the qualifications and conditions aforesaid. The
relevant words of sub-section 2(a) of section 15 are the
following:-
"In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for :-
(a) ............ the preparation and revision of
electoral rolls and the manner in which the
results of election shall be published."
The State Bar Council can frame rules for the preparation
and revision of electoral rolls under section 15(2)(a). That
would be in conformity with the latter part of sub-section
(4) of section 3 also. But in the garb of making a rule for
the preparation and revision of the electoral rolls it
cannot prescribe disqualifications, qualifications or
conditions subject to which an advocate whose name occurs in
the State roll can find place in the electoral roll
resulting in his deprivation of his right to vote at the
election. In the instant case under the impugned proviso
failure on the part of an advocate to submit the required
declaration within the specified time entitles the State Bar
Council to exclude his name from the electoral roll. Such a
thing was squarely covered by the exclusive power conferred
on the Bar Council of India under sections 3(4) and 49(1)(a)
of the Advocates Act. The State Bar Council had no such
power.
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Sub-s. (3) of section 15 says:-
"No rules made under this section by a State Bar
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Council shall have effect unless they have been
approved by the Bar Council of India."
Introduction of the impugned proviso in Rule 3(j) of the
Delhi Bar Council Election Rules was approved by Resolution
No. 18 of 1978 passed by the Bar Council of India. Any rule
made by the State Bar Council cannot have effect unless it
is approved by the Bar Council of India. But the approval of
the Bar Council of India can make the rule made by the State
Bar Council valid and effective only if the rule made is
within the competence of the State Bar Council, otherwise
not. Mere approval by the Bar Council of India to a rule
ultra vires the State Bar Council cannot make the rule
valid. Nor has it the effect of a rule made by the Bar
Council of India. Making a rule by the Bar Council of India
and giving approval to a rule made by the State Bar Council
are two distinct and different things. One cannot take the
place of the other.
We, therefore, hold that the impugned proviso to Rule
3(j) of the Delhi Bar Council Election Rules is ultra vires
and invalid and the electoral roll prepared by the Delhi Bar
Council on the basis of the same resulting in the exclusion
of the names of about 2,000 advocates from the said roll was
not valid in law. We are further of the opinion that the
whole election was invalid on that account and it could be
challenged as such in a writ petition. It was not a case of
challenging the preparation of the electoral roll on the
factual basis of wrong exclusion of a few names. For the
said purpose Rule 4 occurring in Chapter I of the Bar
Council of India Rules could come into play. But here,
because of the invalidity of the Rules itself, the
preparation of the electoral roll was completely vitiated-a
matter which cannot be put within the narrow limit of the
said rule.
The illegal preparation of the electoral roll by the
Delhi Bar Council on the basis of the invalid proviso to
Rule 3(j) goes to the very root of the matter and no
election held on the basis of such an infirmity can be
upheld. There is no question of the result being materially
affected in such a case.
The contesting respondents could not be defeated in
their writ petitions on the ground of estoppel or the
principle that one cannot approbate and reprobate or that
they were guilty of laches. In the first instance some of
the contesting respondents were merely voters. Even Shri
Surjeet Singh in his writ petition claimed to be both a
candidate and a voter. As a voter he could challenge the
election even
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assuming that as a candidate after being unsuccessful he was
estopped from doing so. But to be precise, we are of the
opinion that merely because he took part in the election by
standing as a candidate or by exercise of his right of
franchise he cannot be estopped from challenging the whole
election when the election was glaringly illegal and void on
the basis of the obnoxious proviso. There is no question of
approbation and reprobation at the same time in such a case.
A voter could come to the High Court even earlier before the
election was held. But merely because he came to challenge
the election after it was held it cannot be said that he was
guilty of any laches and must be non-suited only on that
account.
There is no substance in the last submission made on
behalf of the appellants. The manner of resolving disputes
as to the validity of election is provided for in Rule 34 of
the Delhi Bar Council Election Rules. This is not an
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appropriate and adequate alternative remedy to defeat the
writ petitioner on that account. Firstly, no clause of Rule
34 covers the challenging of the election on the ground it
has been done in this case. Secondly, the Election Tribunal
will not be competent to declare any provision of the
Election Rules ultra vires and invalid. Our attention was
specifically drawn to clause (8) of Rule 34 which says:-
"No petition shall lie on the ground that any
nomination paper was wrongly rejected or the name of
any voter was wrongly included in or omitted from the
electoral roll or any error or irregularity which is
not of a substantial character."
As we have said above, it is not a case where the name of
any voter was wrongly omitted from the electoral roll but it
is a case where the preparation of the whole electoral roll
was null and void because of the invalidity of the impugned
proviso.
We now proceed to refer to some relevant decisions of
the High Courts and of this Court cited at the Bar in
support of some of the points discussed above.
Mudholkar J., delivering the leading and the majority
judgment of a Full Bench of the Nagpur High Court in Kanglu
Baula Kotwal & another v. Chief Executive Officer, Janpad
Sabha, Durg and others, rejected the plea of estoppel to
challenge the election at page 58, para 25 in these terms:-
"As regards the petitioners who were also
candidates at the elections but were defeated, the
learned counsel said that
960
those who took their chances at the elections and
failed should not now be allowed to challenge elections
of their opponents on the ground that the electoral
rolls were defective. The plea is in substance one of
estoppel. There can be no question of any estoppel,
because it cannot be said that the position of the
other side has in any way altered by reason of
something done or not done by the petitioners."
We are of the view that neither the principle of estoppel
nor the principle of approbation and reprobation can be
pressed into services in this case.
In Chief Commissioner, Ajmer v. Radhey Shyam Dani the
respondent before the Supreme Court had filed a writ
petition in the Court of Chief Commissioner of Ajmer
challenging the validity of the notification directing the
holding of the election of the Ajmer Municipality and the
electoral roll. This challenge was made before the election
was held. Since the electoral roll prepared was found to be
invalid as it was prepared in accordance with some invalid
rules, a Constitution Bench of this Court upheld the
decision of the Chief Commissioner. At page 75, Bhagwati J.,
speaking for the Court said:-
"It is of the essence of these elections that
proper electoral rolls should be maintained and in
order that a proper electoral roll should be maintained
it is necessary that after the preparation of the
electoral roll opportunity should be given to the
parties concerned to scrutinize whether the persons
enrolled as electors possessed the requisite
qualifications. Opportunity should also be given for
the revision of the electoral roll and for the
adjudication of claims to be enrolled therein and
entertaining objections to such Enrollment. Unless this
is done, the entire obligation cast upon the
authorities holding the elections is not discharged and
the elections held on such imperfect electoral rolls
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would acquire no validity and would be liable to be
challenged at the instance of the parties concerned. It
was in our opinion, therefore, necessary for the Chief
Commissioner to frame rules in this behalf, and in so
far as the rules which were thus framed omitted these
provisions they were defective."
Finally at pages 76 and 77 it was said:-
"If Rules 7 and 9 above referred to were intended
to form a complete code for the finalisation of the
electoral roll
961
of the Municipality they did not serve the intended
purpose and were either inconsistent with the
provisions of s. 30, sub-s. (2), of the Regulation or
were defective in so far as they failed to provide the
proper procedure for taking of the steps hereinabove
indicated for finalising the electoral roll of the
Municipality. If that was the true position the
electoral roll of the Municipality which has been
authenticated and published by the Chief Commissioner
on August 8, 1955 was certainly not an electoral roll
prepared in accordance with law on the basis of which
the elections and poll to the Ajmer Municipal Committee
could be held either on September 9, 1955, or at any
time thereafter."
In the instant case the electoral roll was prepared on the
basis of a rule which has been found to be void and ultra
vires. That being so, even though the contesting respondents
came to challenge the election after it was held, they could
do so because of the gravity of the infraction of the law in
the preparation of the electoral roll. Dani’s case (supra)
was followed by the Patna High Court in two decisions. In
Parmeshwar Mahaseth and others v. State of Bihar and others
and Umakant Singh and others v. Binda Choudhary and others.
After quoting a passage at page 153 from Dani’s case
Kanhaiya Singh J., said in Parmeshwar Mahaseth’s case at the
same page in paragraph 14 thus:-
"It was urged by the learned Government Advocate
that the election cannot be disputed except by an
election petition, as laid down in R. 62 of the
Election Rules. He submitted that petitioner 9, had
already filed an election petition after the
presentation of this writ application. This contention
is not valid. What is challenged here is not the
election of a particular candidate, but the validity of
the entire election, because of the violation of the
essential provisions of the Election Rules and the Act.
I think, R. 62 provides for a case where a person
challenges the election of a particular candidate. I
would overrule the objection."
In Umakant’s case the Court quoted the passage from
Dani’s case from page 461 and finally expressed the view in
paragraph 12 at page 462 in these terms:-
"Mr. Shankar Kumar appearing for respondents 6 and
7 submitted that the election ought to have been
challenged
962
by following the machinery provided in rule 148 of the
rules, and this Court, in exercise of its power under
Article 226 of the Constitution, should not interfere
with the election when a special machinery was provided
for challenging it. I am unable to accept this
argument. It is the well settled view of the Court that
if the entire election is challenged as having been
held under statutes or statutory rules which are
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invalid or by committing illegalities which make the
entire election void, it can be quashed by grant of a
writ in the nature of certiorari."
A Full Bench of the Punjab High Court in Dev Prakash
Balmukand v. Babu Ram Rewti Mal and others had occasion to
consider this question and in that connection at page 434
Dulat J., said in paragraph 15:-
"Everybody, of course, agrees that, if the very
foundation of the election, namely, the electoral roll
is illegal, no election on its basis can proceed or be
allowed to stand, but that does not mean that any kind
of defect in the roll, however technical in its nature,
will suffice to reach such a conclusion."
It would thus be seen that it depends upon the nature
and the intensity of the error committed in the preparation
of the electoral roll and its effect on the whole election
for deciding the question as to whether a writ petition
would be maintainable or not. In Ramgulam Shri Baijnath
Prasad v. The Collector, District Guna and others Oza J.,
delivering the judgment of the Division Bench stated in para
17 at page 152 thus:-
"It was also contended that the petition was not
filed immediately, but has been filed after the
elections were over. As regards the question of
estoppel we had already considered it and found that
the petition under Art. 226 cannot be disposed on the
question of estoppel. As regards delay, it is
sufficient to state that it could not be said that the
petition was unduly delayed. Apart from it, it is also
clear that an election held on the basis of rolls which
have not been prepared in accordance with law, the
petition cannot be dismissed merely on the ground of
delay."
963
The Madhya Pradesh High Court has taken a similar view
in the case of Bhupendra Kumar Jain v. Y. S. Dharmadhikari
and others wherein it was held that the entire election
could be challenged on the basis of certain types of
illegalities committed in holding it.
Shri Bhoop Singh, an Advocate and a member of the Bar
Association at Chandigarh was a candidate to the Bar Council
of Punjab & Haryana. After being unsuccessful he challenged
the election by filing a writ petition in the High Court.
The full Bench of the Punjab & Haryana High Court in Bhoop
Singh v. Bar Council of Punjab and Haryana through its
Secretary and others dismissed the writ petition on the
particular facts of that case. Yet the view expressed at
page 43 in para 9 was:-
"I am extremely doubtful whether the nature of the
relief which the petitioner claims here, namely the
setting aside of the whole of the election and the
ordering of a repoll could be claimed by way of an
election petition under rule 34(1). No provision in the
said rule was brought to our notice which in express
terms empowers or warrants the setting aside of the
whole of the election (in contradistinction to the
election of individual candidates) or to direct a
repoll. In any case it is well settled that the
existence of an alternative remedy is not an absolute
legal bar to the issuance of a writ".
Reliance was placed for the appellants upon the
decision of this Court in K. K. Shrivastava etc. v.
Bhupendra Kumar Jain and others that because of rule 34(8)
of the Delhi Bar Council Election Rules the writ petitions
ought to have been held to be not maintainable. It would be
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noticed from the facts of that case that an election
petition had already been filed. About four months later a
writ petition was also filed to challenge the election. At
page 1704, column 1 Krishna Iyer J., speaking for the Court
said:-
"One of them which is relevant for the present
case is that where there is an appropriate or equally
efficacious remedy the Court should keep its hands off.
This is more particularly so where the dispute relates
to an election. Still more so where there is a
statutorily prescribed remedy which almost reads in
mandatory terms".
964
But he added:-
"While we need not in this case go to the extent
of stating that if there are exceptional or
extraordinary circumstances the Court should still
refuse to entertain a writ petition."
Finally the view expressed in K. K. Shrivastava’s case
is:-
"There is no foundation whatever for thinking that
where the challenge is to an "entire election" then the
writ jurisdiction springs into action. On the other
hand the circumstances of this case convince us that
exercise of the power under Art. 226 may be described
as mis-exercise."
We may add that the view expressed by some of the High
Courts in the cases referred to above that merely because
the whole election has been challenged by a writ petition,
the petition would be maintainable in spite of there being
an alternative remedy being available, so widely put, may
not be quite correct and especially after the recent
amendment of Art. 226 of the Constitution. If the
alternative remedy fully covers the challenge to the
election then that remedy and that remedy alone must be
resorted to even though it involves the challenge of the
election of all the successful candidates. But if the nature
and the ground of the challenge of the whole election are
such that the alternative remedy is no remedy in the eye of
law to cover the challenge or, in any event, is not adequate
and efficacious remedy then the remedy of writ petition to
challenge the whole election is still available. In the
present case we have pointed out above that the Election
Tribunal would have found itself incompetent to declare the
proviso to Rule 3(j) of the Delhi Bar Council Election Rules
ultra vires and that being so the alternative remedy
provided in Rule 34(8) was no remedy at all.
Appellants heavily relied upon an unreported decision
of the Calcutta High Court in Suryya Kumar Ray v. The Bar
Council of India & Ors. The challenge to the election to the
Bar Council of West Bengal was almost on grounds which are
similar to those in the present case. The Calcutta High
Court upheld the validity of the Rule and the election held
on the basis of electoral roll prepared in accordance with
that Rule and dissented from the view of the Gujarat High
Court in Harish Sambhu Prasad v. Bar Council of Gujarat.
965
The learned Judge said with reference to the decision of the
Gujarat High Court thus:-
"It appears to me that this decision will not be
of much assistance to the petitioner in the instant
case in as much as the electoral rules which are before
me have duly been approved by the Bar Council of India
itself. Such approval confers upon these rules the
authority and sanction of the Bar Council of India and
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may be deemed to be the rules framed by the Bar Council
of India."
The enunciation of the law as made above, in our
opinion, is not correct. We have held to the contrary.
For the reasons stated above, we dismiss all the
appeals but make no order as to costs in any of them.
S.R. Appeals dismissed.
966