Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.81728173 OF 2018
PRATAP MEHTA … APPELLANT(S)
VERSUS
SUNIL GUPTA & ORS. … RESPONDENT(S)
WITH
CIVIL APPEAL NOS.81748177 OF 2018
BAR COUNCIL OF INDIA … APPELLANT(S)
VERSUS
STATE BAR COUNCIL OF M.P.
& ORS. ETC. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
These appeals have been filed against the common
judgment dated 17.07.2018 of the High Court of Delhi in
Letters Patent Appeal NO.365/2018 and other connected
LPAs. Letters Patent Appeals were filed by the appellant
Signature Not Verified
Digitally signed by
SUSHIL KUMAR
RAKHEJA
Date: 2018.11.02
15:28:47 IST
Reason:
aggrieved by common judgment dated 06.07.2018 of learned
Single Judge in Writ Petition(C)No.2142 of 2016 (State
2
Bar Council of M.P. vs. Bar Council of India & Ors.)
and Writ Petition (C) No.2215 of 2016 (Sunil Gupta vs.
Bar Council of India & Ors.). Learned Single Judge vide
its judgment dated 06.07.2018 disposed of the writ
petitions with certain directions.
2. The brief facts of the case necessary to be noted
for deciding these appeals are:
State Bar Council of Madhya Pradesh held the
elections for its constituent members in the month of
MayJune, 2014. After declaration of the result notice
dated 09.06.2014 was issued for holding the first
meeting of newly elected members on 29.06.2014. Agenda
for the meeting to be held on 29.06.2014 was to conduct
the elections for the various offices and the Committees
of the State Bar Council of Madhya Pradesh including the
office of its representative member in the Bar Council
of India. In these appeals we are concerned only with
one Agenda item which is to the following effect:
" PartB
Serial No.1: Discussion, consideration and
decision regarding the election of the
representative member of the Bar Council for
the Bar Council of India.”
3
3. Pursuant to notice dated 09.06.2014, a meeting was
held on 29.06.2014, which was presided over by the
Advocate General of the State of Madhya Pradesh and was
attended by all the 25 members of the State Bar Council
of M.P. In the meeting, one Shri Rameshwar Neekhra was
elected as Chairman.
4. The case of the respondents, who were writ
petitioners before the High Court was that in the said
meeting, election for other office bearers including
election for representative member of the State Bar
Council to Bar Council of India was held in which Shri
Sunil Gupta was unanimously elected. Shri Sunil Gupta,
also started working as member representative in the Bar
Council of India. On 29.06.2014, 9 members of the State
Bar Council wrote a letter to its Secretary requesting
him to organise a meeting for conducting elections to
the various offices and Committees of the State Bar
Council. It was further alleged in the letter that after
the election of Chairman on 29.06.2014, the meeting has
been adjourned and the members without any further
notice to the members who had thereafter left the place
4
of meeting, reconvened the meeting and elected Shri
Sunil Gupta as representative of the Bar Council of
India. A letter dated 13.07.2014 was also sent to the
above effect by 13 members.
5. On 13.07.2014 another letter was sent to the
Secretary by 13 members requesting to consider a no
confidence motion under Rule 122A of the State Bar
Council of M.P. Rules against Shri Rameshwar Neekhra,
the Chairman. Taking cognizance of the letters dated
29.06.2014 and 13.07.2014 sent by various members to the
Secretary, notice dated 16.07.2014/19.07.2014 was issued
to the members of State Bar Council informing them of a
special meeting scheduled to be held on 02.08.2014 for
deciding the issues brought forth in the said letters.
The special meeting was convened on 02.08.2014. The
proposed noconfidence motion against Chairman was
withdrawn, Chairman relying on the various letters sent
by the members declared all the elections held on
29.06.2014 except his own, as void. All the office
bearers and members who were elected on 29.06.2014
submitted their resignations from their respective posts
5
except Shri Sunil Gupta who refused to resign as
representative to the Bar Council of India. On
02.08.2014, election of several officer bearers
including representative to the Bar Council of India was
conducted in which Shri Pratap Mehta was declared
elected as representative of the State Bar Council to
the Bar Council of India.
6. Aggrieved by the Resolution dated 02.08.2014
electing Shri Pratap Mehta, Election Petition No.01/2014
was filed by Shri Sunil Gupta before the Bar Council of
India. During pendency of the aforesaid Election
Petition, State Bar Council passed Resolution on
07.02.2015, with a majority of 17 votes, withdrawing its
earlier Resolution dated 02.08.2014, thereby re
affirming that Shri Sunil Gupta is its representative
member in the Bar Council of India. Shri Sunil Gupta
filed an application on 11.02.2015 before the Bar
Council of India for seeking leave to withdraw his
Election Petition No.01/2014. However, instead of
permitting for withdrawal, Chairman of the Bar Council
of India passed an order dated 16.11.2015 observing that
6
Pratap Mehta has prima facie case, hence, he permitted
Pratap Mehta to join as representative of the State Bar
Council in the Bar Council of India pending the final
report of the subcommittee which was constituted for
enquiring into the elections of Shri Sunil Gupta and
Shri Pratap Mehta. The subcommittee submitted its
report in which report subcommittee found that election
of Shri Sunil Gupta cannot be held to be valid as
representative of State Bar Council in the Bar Council
of India rather it is Shri Pratap Mehta who was elected
on 02.08.2014 in continuation of the meeting held on
29.06.2014 which meeting was held to dispose of and
transact the untransacted business which was fixed for
29.06.2014. The Bar Council of India passed an order
dated 05.12.2015, dismissing the Election Petition filed
by Shri Sunil Gupta. Bar Council of India held that
there is no infirmity in the election of Shri Pratap
Mehta as representative to the Bar Council of India.
7. The State Bar Council of M.P. withdrew Writ Petition
(C) No.No.973 of 2016 challenging order dated 16.11.2015
and Writ Petition(C) No.2142 of 2016 was filed by the
7
State Bar Council of M.P. challenging order dated
05.12.2015 of the Bar Council of India. Another Writ
Petition (C)No.2215 of 2016 was filed by Shri Sunil
Gupta challenging order dated 05.12.2015 passed by the
Bar Council of India. Both the writ petitions were heard
by the learned Single Judge and have been decided by a
common judgment dated 06.07.2018. Learned Single Judge
held that election of Shri Sunil Gupta as representative
in the Bar Council of India dated 29.06.2014 is not
valid. Learned Single Judge also held that election
dated 02.08.2014 electing Shri Pratap Mehta as
representative in the Bar Council of India is also not
valid it having been held contrary to the Bar Council of
India Rules.
8. The learned Single Judge vide its judgment dated
06.07.2018 allowed few of the prayers made by writ
petitioners, however, certain other prayers were
refused. Allowing the petition, learned Single Judge
held that election of representative in Bar Council of
India from the State Bar Council of Madhya Pradesh held
on 29.06.2014 as well as 02.08.2014 were both invalid.
8
In the circumstances, learned Single Judge took the view
that the State Bar Council cannot be without any
representative in the Bar Council of India, hence he
directed for holding of fresh elections by the State Bar
Council to elect its representative in the Bar Council
of India. Paragraph 45 of the judgment contains the
operative portion of the judgment, which is to the
following effect:
“45. The prayers in the writ petitions, so far
as they seek implementation of the
Petitioner s Resolutions dated 29.06.2014 and ‟
07.02.2015 electing the Respondent No. 3 as a
member representative of Petitioner/SBCMP in
the Respondent No.1/BCI, are rejected.
However, the prayer quashing the Respondent
No. 1 s Impugned Order dated 05.12.2015 is ‟
allowed and accordingly the Impugned Order
dated 05.12.2015 is quashed and set aside. The
Petitioner in W.P.(C) No.2142/2016, i.e., the
State Bar Council of Madhya Pradesh is
directed to hold within a period of 4 weeks,
fresh elections for electing its
representative member in the Respondent
No.1/BCI by following the procedure as
prescribed in the BCI Rules. Upon the
Petitioner communicating the result of the
election to be held in terms of the aforesaid
directions to the Respondent No. 1/BCI, the
said Respondent No. 1 would take consequential
steps to include the name of the person
elected by the Petitioner/SBCMP as its
representative member in the Respondent No.
1/BCI.”
9
9. Aggrieved by the judgment dated 06.07.2018, Shri
Pratap Mehta and Bar Council of India filed letters
patent appeals before the Division Bench of the High
Court. All the appeals were dismissed by the Division
Bench vide its judgment dated 17.07.2018. Shri Pratap
Mehta aggrieved by said judgment has filed Civil Appeal
Nos. 81728173 of 2018 whereas Bar Council of India has
filed Civil Appeal Nos. 81748177 of 2018. All the
appeals have been heard together.
10. Shri Vikas Singh, learned senior counsel has
appeared for Shri Pratap Mehta whereas Shri S.N. Bhat
has appeared for Bar Council of India. Shri Vikas
Upadhyay, learned counsel has appeared for State Bar
Council of Madhya Pradesh. Shri Nitin Gaur, learned
counsel has appeared on behalf of Shri Sunil Gupta.
11. Shri Vikas Singh, learned senior counsel appearing
for the appellants submits that High Court committed an
error in exceeding its jurisdiction under Article 226 by
entering into the issues of the facts by reappreciating
evidence. It is submitted that High Court under Article
10
226 could not have reappreciated evidence and come to a
different conclusion to one which was arrived at by Bar
Council of India, the adjudicating authority, regarding
election of State Bar Council for electing a
representative to the Bar Council of India. It is
submitted that both learned Single Judge as well as the
Division Bench of the Delhi High Court committed an
error in holding that there was no agenda for holding
election of the State Bar Council representative for Bar
Council of India for the meeting dated 02.08.2014. It is
submitted that for the meeting dated 02.08.2014, letters
of the members of the State Bar Council dated 29.06.2014
as well as 13.07.2014 itself contain items, which were
to be considered in the meeting to be scheduled, hence
agenda of the meeting was very much clear and High Court
erred in setting aside the election dated 02.08.2014 on
an erroneous ground. The meeting dated 02.08.2014 being
an adjourned meeting of 29.06.2014, no separate agenda
was required to be issued for the meeting dated
02.08.2014.
12. Shri Vikas Upadhyay, learned counsel appearing for
11
State Bar Council submits that the meeting dated
02.08.2014 was not an adjourned meeting of meeting dated
29.06.2014. He submits that special meeting was convened
by the Secretary of the State Bar Council to take a
decision on the letter dated 29.06.2014 and 13.07.2014
given by members of the State Bar Council. The question
as to whether the election of representative to the Bar
Council of India was validly held on 29.06.2014, was a
disputed question, which was required to be decided
before holding any fresh election, hence no fresh
election could have been held on 02.08.2014. He further
submits that the Bar Council of India Rules framed under
the Advocates Act, 1961 are statutory rules, which
govern election of the member of the State Bar Council
to the Bar Council of India, which election is to be
held in accordance with the Statutory Rules. The
election dated 02.08.2014 for electing a member of the
State Bar Council to the Bar Council of India having not
been held in accordance with Part II of Bar Council of
India Rules has rightly been invalidated by the High
Court. It is submitted that election dated 02.08.2014
12
is in breach of Rules 2, 3 and 7. He further submits
that State Bar Council having already elected Shri Sunil
Gupta as its member in the Bar Council of India on
29.06.2014, the said election could not have been set
aside except in accordance with the procedure as
prescribed in Rule 9 of the Bar Council of India Rules.
There was no challenge to the election dated 29.06.2014
of Shri Sunil Gupta as per Rule 9, hence it was not
within the jurisdiction of State Bar Council to elect
another representative in place of Shri Sunil Gupta. He
submits that in the Election Petition No.1 of 2014 filed
by Shri Sunil Gupta in spite of there being application
by Shri Sunil Gupta to withdraw the election petition in
view of the resolution of the State Bar Council dated
07.02.2015, the Bar Council of India erroneously
proceeded to decide the election petition on 05.12.2015.
He further submits that in pursuance of judgment of
learned Single Judge as confirmed by Division Bench on
17.07.2018, the State Bar Council has fixed 12.08.2018
for holding election of the State Bar Council’s
representative in the Bar Council of India, which
13
election has been held on 12.08.2018 and the result of
the election in pursuance of order of this Court dated
03.10.2018 has been submitted before this Court in the
sealed envelope on the date fixed for hearing.
13 . Learned counsel for the Bar Council of India
supported the decision of the Bar Council of India dated
05.12.2015. It is submitted that in the meeting dated
29.06.2014, no election was held except the election of
Chairman. After election of Chairman, the meeting was
adjourned, which is recorded in the meeting itself. The
letter dated 29.06.2014 and 13.07.2014 submitted by
members of the State Bar Council were for fixing a
meeting to hold rest of the elections and that meeting
having been fixed for 02.08.2014, no fresh agenda was
required to be issued and there was no illegality in the
meeting dated 02.08.2014. It is further submitted that
on 02.08.2014, apart from electing the representative to
the Bar Council of India, rest of the elections were
conducted and no one has any objections regarding
elections held on 02.08.2014 except Shri Sunil Gupta,
who did not submit his resignation on that day whereas
14
all other office bearers and members elected on
29.06.2014 has submitted their resignations. He submits
that High Court committed an error in holding that
election dated 02.08.2014 in so far as it relates to
representative of State Bar Council in the Bar Council
of India is not correct.
14. We have considered the respective submissions of the
parties and have perused the records.
15. The entire dispute in the present appeals centres
round the election dated 02.08.2014 in so far as it
relates to election of Shri Pratap Mehta as State Bar
Council representative in the Bar Council of India. The
learned Single Judge having held that election of Shri
Sunil Gupta on 29.06.2014 as State Bar Council
representative in the Bar Council of India was not valid
and the said decision having not been challenged either
by the State Bar Council or by Shri Sunil Gupta, the
said issue has become final between the parties. The
High Court having held that election dated 02.08.2014 is
not valid in so far as it relates to election of
representative of State Bar Council in the Bar Council
15
of India is concerned, the only issue to be answered is
as to whether the said election is valid or not?
16. The Advocates Act, 1961, Section 4 provides for the
Bar Council of India. According to Section 4(1)(c) in
the Bar Council of India, one member has to be elected
by each State Bar Council from amongst its members.
Section 4(1)(c) is as follows:
“4. Bar Council of India.(1) There shall be a
Bar Council for the territories to which this
Act extends to be known as the Bar Council of
India which shall consist of the following
members, namely:
(a) ... ... ...
(b) ... ... ...
(c) one member elected by each State Bar
Council from amongst its members.”
17. Under Section 49 of the Advocates Act, 1961, Bar
Council of India is empowered to make rules for
discharging its functions. In exercise of power under
Section 49 and all other enabling powers under the
Advocates Act, 1961, the Bar Council of India has framed
the Bar Council of India Rules. Chapter I of Part II of
the Rules refers to Section 15, Sections 4 and 10B of
the Advocates Act, 1961. Chapter I Part II of the
16
Rules, thus, are to give effect to provisions of Section
4 of the Act, which provides for constitution of Bar
Council of India in which one of its members to be
elected by each State Bar Council from amongst its
members. Rule 2, Rule 3 and rule 7 of Chapter I of Part
II of the Rules are as follows:
“2. (1) The notice and agenda for the
first meeting of the State Council held after
the election of its members on the expiry of
the term of its members elected at the
previous election under Section 8 of the Act
may include the election of a member of the
State Council to the Council under Section (1)
(c) of the Act.
(2) Every such election shall be held not
later than 30 days after the first meeting of
the State Council after election under Section
8 of the Act.
3. The election of a member of the Council
shall be conducted by the Secretary of the
State Council who shall act as the Returning
Officer.
7. Every notice by the Secretary of the
State Council fixing a date for the election
of a member to the Council under these rules
shall be sent not less than 15 clear days
before the date fixed for the election. A copy
of the said notice shall be sent
simultaneously to the Secretary of the
Council.”
18. A conjoint reading of the aforesaid Rules indicate
that for holding election of a member of Bar Council of
India to be elected by State Bar Council, notice and
17
agenda has to be issued by the Secretary of the State
Bar Council, which is a statutory requirement. There is
no issue between the parties regarding the fact that
agenda dated 09.06.2014 was issued for the meeting of
the members of the State Bar Council on 29.06.2014
including the agenda for electing a member from the
State Bar Council to the Bar Council of India as noticed
above. Minutes of the meeting dated 29.06.2014 has been
brought on the record in Civil Appeal Nos. 81748177 of
2018 as Annexure A4. A perusal of the proceeding
indicates that all 25 elected members and learned
Advocate General, who is Exofficio member was present
and meeting started at 11.00 am and by 12.00 noon, the
election of the Chairman was completed. The Minutes
record that for greeting the newly elected Chairman and
to seeoff learned Advocate General, the proceeding of
the meeting were stayed/adjourned and thereafter again
the meeting started in presence of members for election
of rest of the office bearers and members of the
Committees. It is useful to refer to the above portion
of the proceeding (English translation of the proceeding
18
brought on record), which is to the following effect:
“The meeting of the Council started at 11:00
am at morning and till 12:00 noon the
election for the post Chairman was completed
and in wishing the newly elected Chairman and
for giving respectful departure to the
Hon’ble Advocate, the working of the meeting
was stayed. Thereafter, again the meeting of
general assembly was started before the
present members and the remaining office
bearers and member of the Council were
elected.”
19. The proceeding dated 29.06.2014 also contain a
resolution as Resolution No. 7 Part B, by which Shri
Sunil Gupta’s name was proposed and unanimously approved
as representative of the State Bar Council to the Bar
Council of India. On 29.06.2014 itself, 9 members
submitted a letter addressed to Chairman of the State
Bar Council that no information of holding of adjourned
meeting after 2.00 pm was received by them, hence
adjourned meeting be called for completing the rest of
the elections. To the same effect is another letter
dated 13.07.2014 by 13 members of the Bar Council of
State, which was received on 15.07.2014 by the State Bar
Council. Another letter dated 13.07.2014 signed by 13
members of the State Bar Council was submitted to the
19
State Bar Council of M.P. requesting for convening a
meeting under Rule 122A for considering no confidence
motion against the Chairman of the State Bar Council –
Shri Rameshwar Nikhra. The Officiating Secretary of the
State Bar Council issued a notice dated 16.07.2014 to
all the members of the State Bar Council referring to
the letters received from members where election
proceeding of ViceChairman, Treasurer and
representative to the Bar Council of India are being
disputed and no confidence motion has been presented
against the Chairman. The officiating Secretary has
convened a special meeting dated 02.08.2014 for disposal
of aforesaid letters received from the members of the
State Bar Council. It is useful to extract the entire
notice dated 16.07.2014 issued by officiating Secretary,
which is to the following effect:
“No. – SBC/MP/Important Meeting/General
Body/4277/2014,
Date 16/07/2014
To,
All Hon'ble Members
State Bar Council of Madhya Pradesh,
Sir/Ma'm„
The Special Meeting of the General Body of the
State Bar Council of Madhya Pradesh is
20
scheduled for 2nd August, 2014, DaySaturday,
in the Meeting Room of the Council's Office at
11: O'clock in the Morning, in which the
letter dated 29/06/2014 signed by 9 Hon'bie
Members of the Council, two letters dated
13/07/2017 received on 14/07/2014 signed by 11
Hon'ble Member and Two letters signed by 2
Hon'ble Members received by email dated
15/07/2014 and one letter signed by 1 Hon'ble
Member received on 16/07/2014, vide which
because of the election process of the Vice
Chairman of the Council, Treasurer, various
committees including the representative to the
Bar Council of India being disputed, a
proposal for no confidence against the
Chairman of the Council has been submitted
under Ru1e 122A of the Council. In the
special meeting both the aforesaid letters are
to be decided. You all are requested to be
present in the Meeting.
For the convenience of the Hon’ble Members
Rule 122A of the Council is as under:
"122A 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”.
Sd/
(MUKESH M1SHRA)
Officiating Secretary
ENCLOSED The letters dated 29/06/2014,
14/07/2014, 15/07/2014 and 16/07/2017 received
from the Hon’ble members.”
21
20. Another notice referred to as Amended notice of
letter dated 16.07.2014 convening a special meeting was
issued on 19.07.2014, which is to the following effect:
No. SBC/MP/Important Meeting/General
Body/4311/2014,
Date 19/07/2014
Amended letter for date 16/07/2014 of Special
Meeting
To,
All Hon'bie Members
State Bar Council of Madhya Pradesh,
Sir/Ma' m,
The Special Meeting of the General Body of the
State Bar Council of Madhya Pradesh is
nd
scheduled for 2 August, 2014, DaySaturday,
in the Meeting Room of the Council's Office at
11: O'clock in the Morning, in which the
letter dated 29/06/2014 signed by 9 Hon'ble
Members of the Council, two letters dated
13/07/2017 received on 14/07/2014 signed by 11
Hon'bie Members and Two letters signed by 2
Hon'ble Members received by email dated
15/07/2014 and two letters signed by 1 Hon'ble
Member received on 16/07/2014, in which vide
one letter the prayer has been made to call
for the meeting for election of the Vice
Chairman of Council, Treasurer, election of
various committees along with the
representative to the Bar Council of India and
vide the second letter the noconfidence
motion has been presented against the Chairman
of the Council under Rule 122A of the Rules
of the Council. In the special meeting both
aforesaid letters are to be decided. You all
are requested to be present in the meeting.
[EnclosurePage 1 to 7]
For the convenience of the Hon’ble Members
Rule 122A of the Council is as under:
22
"122A 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”.
Sd/
(MUKESH M1SHRA)
Officiating Secretary
NOTE The letters received from the Hon'bie
Members in relation to the Special Meeting has
already been sent alongwith the letter dated
16/07/2014.”
21. The notice dated 16.07.2014 as well as dated
19.07.2014 clearly indicate that special meeting was
convened for taking a decision on the letters received
from members of the Council. The notice dated
19.07.2014 categorically mentions “in the special
meeting both aforesaid letters are to be decided” . The
letters dated 29.06.2014 and 13.07.2014 has been
referred in the notice where following two subjects were
mentioned:
(a) Request for convening a meeting for conducting
elections of the rest of the office bearers and
23
members;
(b) Under Rule 122A, considering the motion of no
confidence given by 13 members of the Bar
Council against the Chairman, Rameshwar Nikhra.
22. The notice dated 16.07.2014 clearly indicate that it
did not contain any agenda for the meeting. The notice
convening the meeting only referred to consideration of
letters received from the members, which was
specifically mentioned as noticed above. The subject
mentioned in both the notices was to the following
effect:
(i)Notice dated 16.07.2014 “in the
special meeting both the aforesaid letters
are to be decided”;
Amended notice dated 19.07.2014
(ii) “in
the special meeting both aforesaid letters
are to be decided”.
23. Shackleton on the Law and Practices of Meetings,
Fourteenth Edition, while dealing with the subject
“notice” states following:
“The purpose to be stated
A notice, to be valid, must clearly state the
business to be transacted at the meeting and
24
give all material information to enable it to
be fully understood.”
24. It is clear from the aforesaid that notices dated
16.07.2014 and 19.07.2014 were issued not for convening
any adjourned meeting rather special meeting was
convened to consider two set of letters given by members
of the Council requesting for convening a meeting for
holding elections of office bearers and the members of
different Committees including representative to Bar
Council of India and for considering no confidence
motion against the Chairman of the State Bar Council.
In the notice dated 16.07.2014 as well as notice dated
19.07.2014, the subject of special meeting was thus for
disposal of letters received by the members of the
Council. It is to be noted that the minutes of the
proceeding dated 29.06.2014 has recorded and signed by
Chairman containing the election of not only the
Chairman rather election of other office bearers and
different representatives, which is clear from the
proceedings brought on the record by Bar Council of
India itself as Annexure A4. It is a well established
25
principle that minutes of the proceeding signed by the
Chairman are prima facie evidence of proceeding and
decisions recorded therein are deemed to be valid until
contrary is proved. Shackleton , while dealing with
minutes as evidence in Chapter 8 states following:
“8. MINUTES AS EVIDENCE
807 In general, minutes form evidence of the
matters to which they refer, which can be
relied on in civil proceedings:
'In an action against one or several
members of the Gosport and Forton
Water Works Company for the value of
lead pipes supplied by the plaintiffs
to the company, after the defendant
had been proved to be a partner in the
company the entries in a book contain
ing a record of the proceedings of the
society produced at its meetings, and
open, to the inspection of ail
members, were admissible in evidence
against the defendant; the minutes
showed that the order had been
authorised by the society:”
When minutes are signed by the chairman of
the meeting, or the next succeeding meeting,
they are prima facie evidence of the
proceedings, and decisions recorded therein
are deemed to be valid until the contrary is
proved. In practice, certified copies of
minutes are frequently provided to third
parties as evidence of the matters decided
upon at the Meeting.
The chairman of a meeting has authority to
determine all incidental questions which arise
26
at the meeting, and an entry by him in the
minute book of the result of a poll, or of his
decision on such questions, is prima facie
evidence of that result, and the onus of
displacing that evidence is thrown on those
who impeach the entry:”
25. Thus, the letters issued by the members on
29.06.2014 and 13.07.2014 raised a dispute containing
allegations disputing minutes of the proceeding of the
meeting dated 29.06.2014. Thus, it was a disputed matter
as to what actually happened on 29.06.2014, i.e. as to
whether the election of other office bearers and
representatives were validly completed on 29.06.2014 or
after the election of the Chairman, the meeting was
adjourned. This dispute was to be resolved in the
special meeting dated 02.08.2014, which was clearly
indicated by notice dated 16.07.2014 and 19.07.2014 as
indicated above. The issue of agenda alongwith the
notice is requirement of a valid meeting and it is only
in context of adjourned meeting that no fresh agenda
need to be issued. The notices dated 16.07.2014 and
19.07.2014 having not contained any agenda and the
meeting also not being described as adjourned meeting,
27
issuance of agenda for the meeting was necessary.
Issuance of an agenda, if any election was to be
conducted on 02.08.2014 was necessary.
26. We, thus, do not find any infirmity in the view of
the High Court both of learned Single Judge as well as
the Division Bench that no election could have been
conducted on 02.08.2014 for electing member to the Bar
Council of India from the State Bar Council. Further,
the election of the member to the Bar Council of India
is statutorily regulated by Bar Council of India Rules
and Rule 7 require notice by the Secretary of the State
Council fixing a date for the election of the member to
the Council. The notices dated 16.07.2014 and 19.07.2014
cannot be read as notice as required under Rule 7 for
holding election of a member to the Bar Council of India
from the State Bar Council, hence, the conduct of
election of a member as a representative from State Bar
Council to Bar Council of India in the meeting dated
02.08.2014 cannot be said to be in conformity with Rule
7 of Bar Council of India Rules. The High Court was,
thus, clearly right in its view that election of Shri
28
Pratap Mehta on 02.08.2014 as member of the Bar Council
of India was not a valid election. The learned Single
Judge having already taken a view that election dated
29.06.2014 electing Shri Sunil Gupta as the
representative to the Bar Council of India was not a
valid election, which issue was not, however, agitated
either by the State Council or by Shri Sunil Gupta,
there is no need to ponder over the above election.
Both the elections dated 29.06.2014 and 02.08.2014 to
elect a member in the Bar Council of India having been
held to be invalid, the High Court was right in issuing
directions for conducting a fresh election to elect a
member in the Bar Council of India, which was necessary
and just.
27. Now, we come to the submission of Shri Vikas Singh
that High Court committed error in reappreciating the
evidence on record and coming to a different conclusion
to one which was recorded by the Bar Council of India.
Shri Vikas Singh has relied on the judgment of this
Court in Waryam Singh and another Vs. Amarnath and
another, AIR 1954 SC 215; Syed Yakoob Vs. K.S.
29
Radhakrishnan and others, AIR 1964 SC 477.
28. In Waryam Singh (supra) , the landlord has filed a
petition for eviction on the ground of nonpayment of
rent by the tenant. The Rent Controller rejected the
application of the landlord against which landlord has
moved to the Judicial Commissioner, Himachal Pradesh.
Exercising jurisdiction under Articles 226 and 227,
which allowed the application for ejectment of tenant,
which has been noted in Para 10 of the judgment, which
is to the following effect:
“10. The respondents moved the Judicial
Commissioner, Himachal Pradesh, under Articles
226 and 227 of the Constitution of India for
setting aside the order of the District Judge.
The learned Judicial Commissioner held that in
view of the admitted failure to pay the rent
as provided by the rent deed or at the first
hearing of the court under the proviso to
Section 13 (2) (i) the courts below had acted
arbitrarily in refusing to make an order for
ejectment against the tenants who had not done
what was incumbent on them to do under the law
and that such a situation called for
interference by the Court of the Judicial
Commissioner in order to keep the subordinate
courts within the bounds of their authority.
He, accordingly, set aside the orders of the
courts below and allowed the application for
ejectment but gave the appellants three
months’ time for vacating the premises. The
appellants have now come up before this court
on appeal by special leave obtained from this
30
court.”
29. The tenant challenged the orders under Articles 226
and 227 in this Court and one of the submissions raised
was that Judicial Commissioner acted wholly without
jurisdiction in as much as the order of the Rent
Controller exercising powers under the Act was not
amenable to the jurisdiction of the High Court under
Article 227, the said submission is noted in Para 11,
which is to the following effect:
“11. Learned advocate appearing in support
of this appeal urges that the learned Judicial
Commissioner acted wholly without jurisdiction
inasmuch as (1) the Rent Controller or the
District Judge exercising powers under the Act
was not amenable to the jurisdiction of the
High Court and, therefore, Article 227 confers
no power on the Court of the Judicial
Commissioner over the Rent Controller or the
District Judge, and (2) that Article 227 read
with Article 241 confers no power of judicial
superintendence on the Court of the Judicial
Commissioner.”
30. This Court repelled the submission of the tenant and
held that the High Court has judicial superintendence
over tribunals and authorities. In Paragraph Nos. 13
and 14, following has been laid down:
“ 13. Re. 2.—The material part of Article
227 substantially reproduces the provisions of
31
Section 107 of the Government of India
Act,1915, except that the power of
superintendece has been extended by the
Article also to Tribunals. That the Rent
Controller and the District Judge exercising
jurisdiction under the Act are Tribunals
cannot and has not been controverted. The only
question raised is as to the nature of the
power of superintendence conferred by the
Article. Reference is made to clause (2) of
the article in support of the contention that
this article only confers on the High Court
administrative superintendence over the
subordinate courts and tribunals. We are
unable to accept this contention because
clause (2) is expressed to be without
prejudice to the generality of the provisions
in clause (1). Further, the preponderance of
judicial opinion in India was that Section 107
which was similar in terms to Section 15 of
the High Courts Act, 1861, gave a power of
judicial superintendence to the High Court
apart from and independently of the provisions
of other laws conferring revisional
jurisdiction on the High Court.
In this connection it has to be remembered
that Section 107 of the Government of India
Act, 1915, was reproduced in the Government of
India Act, 1935, as Section 224. Section 224
of the 1935 Act, however, introduced sub
section (2), which was new, providing that
nothing in the section should be construed as
giving the High Court any jurisdiction to
question any judgment of any inferior court
which was not otherwise subject to appeal or
revision. The idea presumably was to nullify
the effect of the decisions of the different
High Courts referred to above. Section 224 of
the 1935 Act has been reproduced with certain
modifications in Article 227 of the
Constitution. It is significant to note that
32
subsection (2) to Section 224 of the 1935 Act
has been omitted from Article 227.
This significant omission has been regarded
by all High Courts in India before whom this
question has arisen as having restored to the
High Court the power of judicial
superintendence it had under Section 15 of the
High Courts Act, 1861, and Section 107 of the
Government of India Act, 1915. See the cases
referred to in Moti Lal v. The State through
Shrimati Sagrawati1. Our attention has not
been drawn to any case which has taken a
different view and, as at present advised, we
see no reason to take a different view.
14. This power of superintendence conferred
by Article 227 is, as pointed out by Harries
C.J., in Dalmia Jain Airways Ltd. v. Sukumar
Mukherjee2, to be exercised most sparingly and
only in appropriate cases in order to keep the
subordinate courts within the bounds of their
authority and not for correcting mere errors.
As rightly pointed out by the Judicial
Commissioner in the case before us the lower
courts in refusing to make an order for
ejectment acted arbitrarily. The lower courts
realised the legal position but in effect
declined to do what was by Section 13(2)(i)
incumbent on them to do and thereby refused to
exercise jurisdiction vested in them by law.
It was, therefore, a case which called for an
interference by the Court of the Judicial
Commissioner and it acted quite properly in
doing so. In our opinion there is no ground on
which in an appeal by special leave under
Article 136 we should interfere. The appeal,
therefore, must stand dismissed with costs.”
31. The above decision in no manner support the
case of the appellant rather it reiterates that
33
the High Court under Articles 226 and 227 can
interfere with an arbitrary order passed by an
authority. The next judgment relied by the
appellant is Constitution Bench judgment of this
Court in Syed Yakoob (supra). This Court had
elaborately considered the scope of Article 226
of the Constitution in the aforesaid case. This
Court held that a writ of certiorari can be
issued for correcting errors of jurisdiction
committed by inferior courts or tribunals. It
was further held that jurisdiction of High Court
under Article 226 to issue a writ of certiorari
is a supervisory jurisdiction and the High Court
exercising it is not entitled to act as an
appellate court.
32. The findings of the fact reached by the inferior
Court or Tribunal as result of the appreciation of
evidence cannot be reopened or questioned in writ
proceedings. There cannot be any dispute to the above
propositions laid down by the Constitution Bench of this
Court. However, in the same judgment, in paragraph 8,
34
following was laid down by this Court:
“8. It is, of course, not easy to define or
adequately describe what an error of law
apparent on the face of the record means. What
can be corrected by a writ has to be an error
of law; hut it must be such an error of law as
can be regarded as one which is apparent on
the face of the record. Where it is manifest
or clear that the conclusion of law recorded
by an inferior Court or Tribunal is based on
an obvious misinterpretation of the relevant
statutory provision, or sometimes in ignorance
of it, or may be, even in disregard of it, or
is expressly founded on reasons which are
wrong in law, the said conclusion can be
corrected by a writ of certiorari. In all
these cases, the impugned conclusion should be
so plainly inconsistent with the relevant
statutory provision that no difficulty is
experienced by the High Court in holding that
the said error of law is apparent on the face
of the record. It may also be that in some
cases, the impugned error of law may not be
obvious or patent on the face of the record as
such and the Court may need an argument to
discover the said error; but there can be no
doubt that what can be corrected by a writ of
certiorari is an error of law and the said
error must, on the whole, be of such a
character as would satisfy the test that it is
an error of law apparent on the face of the
record……………………..”
33. Applying the above proposition in the present case,
it was clear that High Court had referred to statutory
provisions of Bar Council of India Rules and came to the
35
conclusion that there was no notice of agenda for
holding election of the State Bar Council member in the
Bar Council of India for meeting dated 02.08.2014. An
obvious error of law was committed by Bar Council of
India in dismissing the election petition of Shri Sunil
Gupta. The High Court was right in exercise of its
certiorari jurisdiction to set aside the erroneous order
of the Bar Council of India. The High Court was, thus,
well within its jurisdiction in deciding the writ
petition and submission of the learned counsel for the
appellant cannot be accepted that the High Court
exceeded its jurisdiction in deciding the writ petition.
34. Learned counsel for the appellant has also relied on
K. Narasimhiah Vs. H.C. Singri Gowda and others, AIR
1966 SCC 330. In the above case, this Court held that
three days clear notice to Councillors for holding a
special general meeting is not mandatory. What was held
that period of notice in the facts of that case was not
mandatory. Present is not a case where any one has
complained that there was no notice for meeting to be
held on 02.08.2014. In the above case also, the notice
36
was received by members, some of them have received
three days notice, some of them had received notice of
less than three days. In the above circumstances, this
Court held that provision of three days notice was only
directory and not mandatory. The said judgment has no
application in the present case.
35. Another judgment relied by the appellant is P.
Kasilingam Vs. P.S.G. College of Technology, AIR 1981 SC
In the said case, this Court was dealing with a
789.
question regarding effectiveness of resignation and
consequence of withdrawal of resignation before the
effective date. The said case has no application in the
present case. Last case relied by the appellant is V.S.
Krishnan and others Vs. Westfort Hitech Hospital Ltd.
and Others, (2008) 3 SCC 363 . In the above case, the
Court held that when there are materials to show that
notices were sent, the burden is on the addressee to
rebut the statutory presumption. In paragraph 29,
following has been held:
“29. Section 172 as well as Section 53
emphasised “giving notice”. We have already
adverted to how notice should be given for AGM
37
as per Section 172(2) and Sections 53(1) and
(2) of the Act. In view of the fact that the
Company has placed materials to substantiate
that notices, in terms of the above
provisions, were given, as rightly pointed out
by learned Senior Counsel for the contesting
respondents, statutory presumption under
Section 53 will apply though the said act is
rebuttable. In view of the fact that there are
materials to show that notices were sent, the
burden is on the addressee to rebut the
statutory presumption. The High Court, on
verification of those materials, has concluded
that “postal receipt with post office seal was
produced to show that notice was sent to all
shareholders by certificate of posting in the
correct address as per the report”.”
36. In the present case, challenge to the proceeding
dated 02.08.2014 was not on the ground of want of notice
for the special meeting, hence this case also does not
help the appellant in the present case.
37. Learned counsel appearing for the State Bar Council
has produced the result of fresh election dated
12.08.2018 as conducted in pursuance of the directions
of the High Court, which election was also permitted by
this Court vide its order dated 09.08.2018 but with a
condition that the result thereof shall not be declared
without the permission of the Court.
38
38. In view of the foregoing discussions, we are of the
view that there are no merits in these appeals, which
are hereby dismissed. In view of the dismissal of the
appeals, the election already conducted on 12.08.2018 be
given effect to by all concerned. The appeals are
dismissed subject to above. Parties shall bear their
own costs.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
November 02, 2018.