Kerala High Court
A. Mohammed Iqbal And Ors. vs Bar Council Of India, New Delhi And Ors. on 17 December, 1999
Equivalent citations: AIR2000KER247, AIR 2000 KERALA 247, ILR(KER) 2000 (1) KER 900 (2000) 1 KER LT 301, (2000) 1 KER LT 301
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
ORDER K.S. Radhakrishnan, J.
1. Petitioners are Advocates in the roll of Bar Council of Kerala. They assail the decision taken by the Special Committee to depute the fifth respondent to Bar Council as the representative of the Bar Council of Kerala.
2. Election to the State Bar Council was a subject-matter of Civil Appeal No. 1504 of 1999 before the Supreme Court. The Supreme Court in Babu Verghese v. Bar council of Kerala, AIR 1999 SC 1281, set aside the election which was held in April, 1997 and directed the constitution of a Special Committee under Section 8-A of the Advocates Act, 1961 (in short the 'Act') for carrying on the functions of the State Bar Council and to conduct the election afresh.
3. Bar Council of India then passed a resolution for constituting a Special Committee under Section 8-A of the Act as directed by the Supreme Court. The Committee constituted by the Bar Council of India consists of following members :--
1) The Advocate General of Kerala (Ex Officio) as the Chairman.
2) P. Kumaran Kutty, Member, Bar Coun cil of India.
3) S. Gopakumaran Nair, Former Chairman, Bar Council of Kerala.
4. The above-mentioned Special Committee sent a resolution to the Bar Council of India nominating Sri. Kumaran Kutty as the representative of the Kerala Bar Council to the Bar Council of India. It is learnt that the said resolution is pending consideration before the Bar Council of India.
5. Counsel for the petitioners, Sri. Vincent Panikulangara submitted that Special Committee has no jurisdiction to nominate the fifth respondent to the Bar Council of India. Counsel submitted that the fourth respondent was representing the Bar Council of Kerala in the Bar Council of India till the terms of previous elected Committee.
Subsequent election conducted by the Kerala Bar Council was set aside by the Supreme Court and, therefore, fourth respondent should have been allowed to continue as member of the Bar Council of India until his successor is duly elected. Counsel laid emphasis to the proviso to Section 4(3) of the Act. Said Section is extracted below for easy reference :--
"Section 4 (3) : The term of office of a member of the Bar Council of India selected by the State Bar Council shall-
(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election (or till he ceases to be a member of the State Bar Council, whichever is earlier;
and
(ii) in any other case, be for the period for which he holds office as a member of the State Bar Council:
Provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected."
According to counsel, the term of member of the Bar Council of India elected by the State Bar Council shall in the case of a member of a State Bar Council who holds office ex officio be two years from the date of his election or till he ceases to be a member of the State Bar Council whichever is earlier and in any other case, be for the period for which he holds office as a member of the State Bar Council. Counsel submitted that by virtue of the proviso, every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected. Counsel, therefore, submitted that the decision taken by the Special Committee on 20-6-1999 nominating the fifth respondent to represent the Kerala Bar Council is Illegal and contrary to the above-mentioned proviso.
6. Counsel appearing for the Bar Council of India Sri N. N. Sugunapalan as well as Sri V. N. Achutha Kurup who appeared for the second respondent contended that petitioners have no legal right to challenge the resolution passed by the Special Committee constituted by the Bar Council of India on the basis of the direction of the Supreme Court. According to counsel, Section 8-A of the Act enables the Special Committee to discharge all the functions of the State Bar Council and consequently, the nomination of the fifth respondent to the Bar Council of India is in order.
7. In order to examine the rival contentions, it is necessary to examine the scope and ambit of Sections 4, 8 and 8-A of the Act. Section 3(2) of the Act states as follows :--
"Section 3 (2) -- A State Bar Council shall consist of the following members, namely :--
(a) in the case of the State Bar Council of Delhi, the Additional Solicitor-General of India, ex officio; in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate-General of each of the States of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio; in the case of the State Bar Council of Punjab and Haryana, the Advocate-General of each of the States of Punjab and Haryana, ex officio; and in the case of any other Stale Bar Council, the Advocate-General of the State. ex officio;
(b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of a State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council :
Provided that as nearly as possible one-half of such elected members shall, subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State roll, and in computing the said period of ten years in relation to any such person, there shall be included any period during which the person has been an advocate enrolled under the Indian Bar Councils Act, 1926 (38 of 1926)."
Section 4 of the Act inter alia states that the term of office of a member of the Bar Council of India elected by the State Bar Council shall be two years from the date of his election and proviso to Section 4 (3) of the Act says that every such member elected shall continue to hold office as a member of the Bar Council of India until his successor is elected. In a situation where election could not be conducted within the period of two years then as per proviso to Section 8 of the Act, the Bar Council of India may. by order, for reasons to be recorded in writing, extend the term for a period not exceeding six months, in the instant case, evidently that period is also over. Under such circumstances, the Supreme Court directed the Bar Council of India to constitute a Special Committee in accordance with Section 8-A of the Act. The said provision is also extracted hereinafter for easy reference :--
"Section 8-A : Constitution of Special Committee in the absence of election-
(1) Where a State Bar Council fails to provide for the election of its members before the expiry of the term of five years or the extended term, as the case may be, referred to in Section 8, the Bar Council of India shall, on and from the date immediately following the day of such expiry, constitute a Special Committee consisting of-
(i) the ex officio member of the State Bar Council referred to in Clause (a) of Sub-section (2) of Section 3 to be the Chairman :
Provided that where there are more than one ex officio members the seniormost amongst them shall be the Chairman; and
(ii) two members to be nominated by the Bar Council of India from amongst advocates on the electoral roll of the State Bar Council, to discharge the functions of the State Bar Council until the Bar Council is constituted under this Act.
(2) On the constitution of the Special Committee and until the Bar Council is constituted-
a) all properties and assets vesting in the State Bar Council shall vest in the Special Committee;
b) all rights, liabilities and obligations of the State Bar Council, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Special Committee;
c) all proceedings pending before the State Bar Council in respect of any disciplinary matter or otherwise shall stand transferred to the Special Committee.
(3) The Special Committee constituted under Sub-section (1) shall, in accordance with such directions as the Bar Council of India may give to it in this behalf, hold elections to the State Bar Council within a period of six months from the date of its constitution under Sub-section (1), and where for any reasons the Special Committee is not in a position to conduct election within the said period of six months, the Bar Council of India may, for reasons to be recorded by it in writing, extend the said period."
Section 8-A is imperative in character. Purpose of Section 8-A is to constitute a Special Committee where a Bar Council fails to provide for the election of its members before the expiry of the period of five years or to extend the term as the case may be, referred to in Section 8. Two of the members of the Special Committee are to be from amongst Advocates on the roll of the State Bar Council. Special Committee so constituted will have to discharge the functions of the State Bar Council until the Bar Council is constituted under the Act. The Committee so constituted under Section 8-A could also nominate a member of the Committee to the Bar Council of India since such Committee statutorily permits to discharge the functions of the State Bar Council until the Bar Council is constituted under the Act. In exercise of the said statutory power, the Special Committee nominated the fifth respondent to the Bar Council of India.
8. I, therefore, do not find any illegality in the decision taken by the Special Committee. The further contention raised by counsel for the petitioner that the Special Committee was constituted on the basis of the direction of the Supreme Court only for conducting an election cannot be sustained. In the decision of the Supreme Court reported in Babu Verghese (AIR 1999 SC 1281) [supra) it is specifically stated that till the elections are held, the Special Committee as constituted under Section 8-A of the Act shall discharge the functions of the State Bar Council with all consequences provided thereunder. The Supreme Court also directed the Bar Council of India to constitute a Special Committee under Section 8-A of the Act to discharge all the statutory functions.
In the above-mentioned circumstances, this writ petition lacks merits and the same is dismissed.