Madhya Pradesh High Court
Rameshwar Nekhra vs The State Bar Council Of M.P on 20 May, 2011
1
IN THE HIGH COURT OF JUDICATURE : PRINCIPAL SEAT
AT JABALPUR
D.B. : HON'BLE SHRI JUSTICE SUSHIL HARKAULI
AND HON'BLE SHRI JUSTICE S. C. SINHO
W.P. No.6628/2011
Pratap Chandra Mehta
Vs.
The State Bar Council of M.P. and others
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W.P.No.6372/2011
Rameshwar Neekhra
Vs.
The State Bar Council of M.P. and others
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For the petitioner : Shri R. P. Agrawal, Senior Advocate with Shri
Sanjay Agrawal, Parag Chaturvedi and Shri Manoj Sharma, Advocate.
For the respondents: Shri Rajendra Tiwari, Senior Advocate, Shri
Ravish Agrawal, Senior Advocate, Shri P. R. Bhave, Senior Advocate,
Smt. Shobha Menon, Senior Advocate with Shri Mohd Ali, Shri
Udyan Tiwari, Shri Hitendra Singh, Shri Bhanu Yadav, Ms. M.P.S.
Chuckal, Shri K. N. Fakhruddin, Ms. Sneh Mishra, Advocates.
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AS PER HON'BLE SHRI SUSHIL HARKAULI, J.
ORDER
(20.5.2011) The first mentioned of these two connected writ petitions being W.P. No. 6628/2011 has been filed by the present Chairman of the Bar Council of Madhya Pradesh. The second connected petition being Writ Petition No. 6372/2011 has been filed by a Member of the said Bar Council. Both the petitions have been filed for the same relief 2 on virtually the same grounds. They have been heard together and are consequently being disposed of by this common order. Two broad questions have been raised (A) whether the Rule 122-A framed under section 15 of the Advocates Act, 1961 is ultra-vires, and (B) whether the second resolution (Annexure R/6 to the Bar Council's return) dated 16-04-2011 in the meeting of the Bar Council is invalid. The relevant facts are given below.
2. Shri Rameshwar Neekhra was elected as a Member of the Madhya Pradesh State Bar Council in 2008. Shri Neekhra was elected as Chairman of the Bar Council by its members on 31.8.2008.
3. For prescribing (i) the manner of election, (ii) the tenure and
(iii) the process of premature removal through a no-confidence motion of certain office bearers including the Chairman, Vice-chairman and Treasurer of the Bar Council, the Madhya Pradesh Bar Council has made Rules with the approval of the Bar Council of India. At this point we may mention that an argument was attempted to be raised by the Respondent No 10 in W.P. No. 6372 that the approval of the Bar Council of India was obtained only for the original Madhya Pradesh Bar Council Rules, but no approval was obtained to the 1975 amendment by which the Rule 122-A was introduced. We have declined to permit such argument for want of factual foundation. There are no pleadings with regard to want of approval. Moreover, the M.P. Bar Council Resolution dated 27th April 1975 (copy enclosed as Annexure R-1 to the return of Respondent No. 1 in W.P. No. 6628 of 2011) in the resolution No. 78/GB/75 (b) resolves to forward the newly added Rules 120, 121-A and 121-B to the Bar Council of India for approval. Thereafter the Resolution at the M.P. Bar Council meeting dated 8th August 1976 (Annexure R-2 to the return of Respondent No. 1 in W.P. No. 6628 of 2011) records that the approval of the Bar Council of India has been obtained. Coming back, the relevant Rules in question along with other Rules have been made by the Bar Council of Madhya Pradesh in exercise of powers conferred 3 upon State Bar Councils by Section 15 of the Advocates Act 1961 (Central Act No. XXI of 1961), hereinafter referred to as the Act. The other Rules also cover a wide range of other subjects and accordingly the other parts of the Rules purport to have been made in exercise of powers conferred by other sections of the Act also, but the relevant rules with which we are concerned have been justified by the Bar Council during arguments as having been framed under sub-sections (1) and (2) of Section 15. These Rules require prior approval of the Bar Council of India under section 15(3) of the Act. Under Rule 118 of Chapter XVII, the term of the Chairman and Vice Chairman has been prescribed as two and half years. In the case of 'Bar Council of Delhi Vs. Surjeet Singh' (1980) 4 SCC 211 it was held that mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make the rule valid. Therefore ultimately the validity of the Rule in question will have to be tested on its own.
4. To continue with the facts, after the expiry of the said period of two and half years, fresh elections were held on 12.2.2011 and Shri Neekhra was again elected Chairman, securing 21 out of 25 votes. Along with him the Vice-chairman and Treasurer were also elected.
5. Subsequently, thirteen members of the State Bar Council moved a no-confidence Motion against Shri Neekhra as chairman, and also the Vice-Chairman and Treasurer under Rule 122-A of the same Chapter XVII. Upon receipt of the requisition, meeting of the M.P. Bar Council was called on 16-04-2011 for consideration of the no- confidence motion. For ready reference, the said Rule 122-A is reproduced below :-
122-A. The Chairman, Vice Chairman or the Treasury of the Council shall be removed by a vote of no confidence passed by the majority of the members present and voting in a meeting of the Council especially called for the purpose, provided that at least seven members of the 4 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.
6. Faced with this no-confidence Motion, Shri Neekhra filed the aforesaid writ petition.
7. Similarly the connected writ petition was filed by a Member namely Shri Pratap Chandra Mehta.
8. Initially these writ petitions challenged the validity or vires of Rule 122-A, and also challenged the maintainability of no-confidence Motion.
9. At the initial stage when these petitions came up for preliminary hearing on 15.04.2011, ie. just one day before the meeting was scheduled, the parties present were heard. The M.P. Bar Council, which was one of the main respondents in the writ petition, wanted to file a counter affidavit. In the circumstances, a Division Bench of this Court while not staying the holding of the meeting of the Bar Council for consideration of the no-confidence Motion, thought it proper to protect the interest of Shri Neekhra by an interim order staying the implementation of the resolution which may be passed in the said meeting. The above facts of this paragraph have been mentioned because there has been some attempt from the side of the respondents to interpret the interim order dated 15.04.2011 as a mandate by this Court that the meeting of 16-04-2011 must be held under all circumstances and that the motion of no-confidence must be considered in that meeting. Apart from the fact that one of us (Hon'ble Sushil Harkauli J.) was a member of the Bench which passed the interim order dated 15.4.2011, but even otherwise a perusal of that interim order also does not support such contention and because it is obvious that the meeting had to be called within 21 days 5 according to the mandate of Rule 122-B and because the interest of Shri Neekhra could be sufficiently safeguarded by staying the implementation of the resolution, therefore undoubtedly by that interim order the High Court had not mandated any meeting. The order had only refused to stay the holding of the meeting but had stayed the implementation of the resolution. Indeed there was no occasion for the Court to direct a meeting to be mandatorily held that two on a writ petition by those who wanted the meeting to be postponed. It was also directed by the order of this Court dated 15-4- 2011 to serve notice of the writ petition on all members of the Bar Council. Annexure R-4 of the return of the Respondent No. 1 in W.P. No. 6628 of 2011 is a receipt of the notices signed by all the members.
10. The meeting was held on 16-04-2011 and the M.P. Bar Council has in its return enclosed the minutes of the meeting/meetings dated 16-04-2011 as Annexures R/5 and R/6. It appears from the facts narrated in the return of the Bar Council as well as these two Annexures that the meeting of the Bar Council was held in which initially apart from 25 elected members, the 26th ex-officio member namely the Advocate General of the State were present. Sri Neekhra chaired the meeting in accordance with Rule 111 of Chapter XVI (quoted later in this order). Before the no-confidence Motion could be considered, some members raised an objection which they described as "a point of order". The objection was that since the election of the Chairman had taken place on 12.2.2011 and Rule 15 of Chapter V of the Rules made by the Bar Council of M.P., a matter once decided could not be re-considered for a period of 3 months unless so permitted by a 2/3rd majority of members therefore, it was contended that the no-confidence Motion which amounted to reconsideration of the election of the Chairman was not permissible on 16.4.2011 as the period of 3 months had not elapsed since the election date ie. 12.2.2011. For ready reference the said Rule 15 is reproduced below :-
15. No matter once decided shall be 6 re-considered for a period of three months unless the Advocate by a two-
third majority of the members present, so permits.
11. Shri Neekhra, as Chairman of the meeting, agreed with this objection and held that the no-confidence Motion was not tenable and accordingly held vide the minutes enclosed as Annexure R/5 that the meeting stood concluded for 16.4.2011. For taking this decision, Shri Neekhra relied upon Rules 111 and 113 of Chapter XVI. For ready reference, these two Rules are quoted below :-
111. The Chairman shall preside over all the meetings of the Bar Council.
113. The decision of the Chairman on all points of order raised at any meeting shall be final.
12. Thirteen elected members, who had brought the no-confidence motion, did not agree to the conclusion of the meeting. Upon this situation Shri Neekhra, along with eleven other elected members and the Bar Council Secretary walked out. Thirteen elected members along with ex-officio member i.e. the Advocate General remained and purported to continue the meeting. At the meeting so continued the Advocate General presided as requested under Chapter V Rule 16, and all the 13 elected members supported the no-confidence Motion which was accordingly declared passed under the Chairmanship of the Advocate General who was the ex-officio member, and who apparently did not cast any vote. These facts are found in the minutes enclosed as Annexure R/6. It has been contended from the side of the private respondents namely the elected members of the Bar Council who had supported the no-confidence Motion that under Rule 113 of Chapter XV, the Chairman can only decide a point of order, which does not include the power to adjourn a meeting.
713. Reliance from the side of these members has been placed upon Rules 12 and 14 of Chapter V-B. According to Rule 12 the Council (meaning Bar Council) may adjourn. Rule 14 provides that the decision of any matter, which according to the respondents' contention includes adjournment of the Council, shall be by majority. For ready reference, the relevant parts of the said Rules 12 and 14 are quoted below :-
12. The Council may adjourn from day to day or any particular day, without further notice.
14. Save as otherwise provided in these rules, the decision of any matter shall be by majority, and in the case of equality of votes, the Chairman of the meeting------------
14. The second resolution dated 16.4.2011 Annexure R/6 has been challenged by moving an amendment application being IA No. 5987/2011 in Writ Petition No. 6628/2011 and IA No. 5783/2011 in Writ Petition No. 6372/2011.
15. Before the final arguments in these petitions commenced on 2.5.2011, the Court put it across to all parties as to whether after the pleadings, there was any dispute about any fact stated by way of these two amendment applications, which would necessitate a response. Because all parties agreed that there was no dispute about any fact mentioned in any of the two amendment applications therefore, we made it clear during arguments that the amendment applications may be treated as allowed for the purpose of arguments and arguments should be advanced on that basis. A formal order allowing the amendment applications, and treating the amendment applications as part of the writ petition without the formal necessity of incorporating the same in the writ petition was passed on 3.5.2011 8 while reserving judgment.
THE CHALLEGE TO VIRES
16. The first contention raised from the side of the petitioner is that the Rules 122-A is ultra-vires being beyond the competence of the Bar Council of Madhya Pradesh as derived from Section 15. The various basis of this contention are as follows :
(A) It was urged that Section 15(1) confers the power of making the Rules to carry out the purposes of the Act and Section 15 (2) (c) permits the Bar Council to frame Rules prescribing the 'manner of election' of the Chairman. Relying upon 'N.P. Ponnuswami Vs. Returning Officer' AIR 1952 SC 64 (para 7)" and 'Election Commission Vs. Shivaji' (1988) 1 SCC 277 (para 6)", it has been argued that the word "election" does not include any event after the declaration of result of the election whereby the Chairman is elected and therefore, under section 15(2) (c) a State Bar Council has no power to prescribe for a motion of no-confidence.
(B) It has also been contended that the Act does not provide about removal by a no-confidence Motion and therefore the Act must be deemed to prohibit prescribing for a no-confidence Motion under the Rules made by a State Bar Council.
(C) The argument was carried further to say that because the Act expressly authorizes Rules to be framed prescribing the manner of election but is silent about the tenure of the Chairman so elected, therefore the Act must be deemed not to permit prescription of any tenure of the Chairman or prescription of curtailment of the tenure by a no-confidence Motion by subordinate legislation in the form of Rules.
(D) It has been submitted that provision for removal through no-confidence motion is an essential legislative function which could not have been delegated for subordinate legislation in the form of Rules.
(E) Another limb of the above submission was that the 9 delegation to the Rule making Authority is totally unguided. Reliance has been placed upon para 26 of (1997) 5 SCC 516 'Agricultural Market Committee Vs Shalimar Chemicals'.
17. The respondents defend the challenge mentioned under point (A) of paragraph number 16 above by relying upon sub-section (1) of section 15 of the Act. For ready reference the relevant parts of section 15 are reproduced below :
15. POWER TO MAKE RULES. - (1) A Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for -
(a)----
(b) omitted by Act 60 of 1973 wef 31-1-1974 (c ) the manner of election of Chairman and the Vice-Chairman of the Bar Council;
(d) ---
(3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.
It was urged that the opening words of sub-section (2) of section 15 leave no doubt that the said sub-section is at best illustrative and not exhaustive, and does not in any way control sub- section (1), nor can sub-section (2) curtail the wide powers under sub- section (1).
18. We can have not been sown any logical reason or precedent for disagreeing with the above submission of the respondents. On the other hand in 'V.T. Khanzode Vs. Reserve Bank of India' AIR 1982 SC 917 (924) it has been held "...It is well settled that where a specific power is conferred without prejudice to the generality of a power already conferred, the specific power is only illustrative and cannot restrict the width of the general power (see King-Emperor Vs. Sibnath 10 Banerjee AIR 1945 PC 156 and Om Prakash Vs. Union of India AIR 1971 SC 771". Therefore what remains to be seen on this score is whether the prescription of a two and a half year tenure and removal by a no confidence motion can be said to be not for 'carrying out the purposes of the Chapter II' of the Act, as required by section 15(1). Unless the relevant Rule is so patently foreign to the Chapter II, which it is certainly not, a heavy burden to demonstrate the transgression would lie upon the petitioners. We are afraid that such burden has not been discharged even remotely. Chapter II of the Act consists of sections 3 to 15 and deals with the Bar Councils, their constitution, functions and staff. Apart from saying that there shall be a Chairman and a Vice-Chairman of each State Bar Council, and that such Chairman and Vice-Chairman shall be elected, there is nothing in that chapter or for that matter in the entire Act about the role, functions, powers or rights of the Chairman or Vice-Chairman of a State Bar Council. Even the manner of election of these office bearers has been left to the Rules framed by the respective Bar Councils. This would indicate that the Legislature wanted to confer upon these democratically elected autonomous statutory bodies maximum free play for managing their own internal affairs. Apparently, the Legislature in its wisdom thought that the supervision by the apex autonomous elected statutory body namely the Bar Council of India by way of prior approval of the Rules under section 15(3) was sufficient safeguard. The process of election, tenure, and removal upon losing confidence (which incidentally is a mere corollary of accountability), assignment of functions, distribution of powers and duties are all part of management of internal functioning. Therefore, it cannot be said that the Rules provide something which is so foreign to the purposes of Chapter II, as to become liable to be struck down as ultra-vires. The decision (AIR 2000 SC 1069 'Kunj Behari Vs State of H.P.') cited by the petitioners has no application here, because that was a case where Tea Estates were already excluded by the Act itself, 11 and therefore it was held that the subordinate Rules could not prohibit alienation of land subservient to tea plantation.
19. The issues at (B) and (C) in paragraph 16 above are closely interconnected and are therefore being considered here together. The argument basically relies upon the doctrine of casus omissus. Reliance has been placed by the petitioners upon AIR 1952 SC 362 'Smt. Hira Devi Vs. District Board' and AIR 1953 SC 148 'Nalinakhya Bysack Vs. Shyam Sunder'. We are unable to agree because, for applying that doctrine which prohibits filling up of gaps or omissions or supplying deficiencies in legislations, the Court must be certain that the omission in question by the Legislature is intentional (see Maxwell's Interpretation of Statutes 12th Edn. Page 33). We do not think that there is any such intentional omission here. In fact, as already discussed above, we are of the opinion that these options were deliberately left open to the discretion of the State Bar Councils, subject to prior approval of the Rules by the Bar Council of India. The reliance by the petitioners upon para 29 of (2006) 4 SCC 517 'State of T.N. Vs P. Krishnamurthy' is misplaced because in that case the Supreme Court held after reading the Act as a whole, particularly section 4-A (1), (2) and (3) which provided for termination of lease after opportunity in given circumstances, that the Act "did not contemplate wholesale termination of existing leases", and thus it was held that the Rules subordinate to the Act could not provide for wholesale termination of existing leases. At this point we may refer to a decision {(2010) 12 SCC 1 'Bhanumati Vs. State of U.P.'} cited from the respondents' side. In that case there was no provision for no- confidence in the Constitution of India and such a provision had been made by the Legislature in the Statute. The Legislature is supreme in respect of the fields in which it is empowered to legislate under the various entries of the three Lists of the Seventh Schedule and those entries are to be liberally and widely construed. The Legislature does not exercise subordinate legislative powers. Therefore that decision 12 has no application here.
20. Regarding point (D) about essential legislative functions, in para 16 above, the petitioners have a two-fold argument. The first is based upon certain decisions which say that the power of recall of elected representatives must stem out of Statute, and one case which says that such power of recall must have a 'Statutory peg' to hang. The second argument is that unless the legislature spells out a guiding policy, it cannot give blanket powers of subordinate legislation. This second aspect is more closely linked with point (E) mentioned in the said para 16 and will be dealt with under that head.
21. On the first part of point (D) above, the petitioners have relied upon the case of 'Mohan Lal Tripathi Vs. District Magistrate' reported in (1992) 4 SCC 80. A superficial reading of that decision does seem to support the petitioners contention. The parts of the Supreme Court Judgment relied upon read (i) "Right to remove an elected representative, too, must stem out of the statute as in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers"......"But how it should be initiated, what should be the procedure, who should exercise it within ambit of constitutionally permissible limits falls in the domain of legislative power". But upon a detailed and careful examination it becomes clear that by these words the Supreme Court was dispelling the argument that such provision for recall should be in the Constitution of India. The Supreme Court does not say that the provision (for recall) necessarily has to be in the Statute and can not be introduced by statutory Rules. In 'General Officer Commanding- in-Chief Vs. Dr Subhash Chandra Yadav' (1988) 2 SCC 351 it has been held in para 14 of that law report that "it is well settled that rules framed under provisions of a statute form part of the statute. In other words, rules have statutory force".
22. On point (E) of para 16 above, it was urged from the petitioner's side that if section 15(1) of the Act is taken to be the 13 source of power for framing Rules prescribing the tenure for an elected chairman, and prescribing curtailment of such tenure through a no-confidence motion, then such delegation to subordinate legislation must be struck down as it confers wholly unguided and thus unfettered powers upon the delegate subordinate legislative Authority. In reply it could not be shown that there is any express guidance or that any policy guidance can be deciphered from all or any of the provisions of the Act or from the scheme of the Act, regarding what tenure, if any, should be prescribed for the Chairman etc., or whether removal by a no-confidence motion should be permitted, and if so under what circumstances and by what process, subject to what restrictions.
23. A totally misplaced reliance was placed upon the case of 'V. Sudheer Vs. Bar Council of India' (1993) 3 SCC 176, which merely says that the State Bar Council under section 24 (1) (e) of the Act could have prescribed pre-enrolment training, but the Bar Council of India could not do so under section 49 of the Act. 'Hukam Chand Vs. Union of India' (1972) 2 SCC 601 was also unnecessarily cited. It deals with power to frame a rule with retrospective effect ad has no relevance here. Two decisions of the Supreme Court in the case of 'Vasanlal Maganbhai Vs. State of Bombay' AIR 1961 4 (para 4) and in the case of 'Agricultural Market Committee Vs. Shalimar Chemical Works' reported in (1997) 5 SCC 516 (para 26) were cited from the petitioners side, both laying down the same principle, which needs to be discussed. The relevant part of the later (1997) decision reads "The principle which therefore emerges out is that the essential legislative function consists of the determination of the legislative policy and the legislature cannot abdicate essential legislative function in favour of another. Power to make subsidiary legislation may be entrusted by the legislature to another body of its choice but the legislature should, before delegating, enunciate either expressly or by implication, the policy and the principles for the guidance of the delegates". However, 14 the words of the Supreme Court immediately following the above quoted words bring out the implication. They read "The effect of these principles is that the delegate.......cannot widen or constrict the scope of the Act or the policy laid down thereunder. It cannot, in the garb of making rules, legislate on the field covered by the Act...". We do not find the rule in question to be widening or constricting the scope of either the Act or any policy laid down under the Act. Nor is the Rule in question legislating upon any field covered by the Act. To the same effect is cited the case of 'Addl District Magistrate Vs Sir Ram' (2000) 5 SCC 451 (para 16).
24. Moreover, in our opinion the issue is not so simple and does not end there. While it may be taken as settled law that normally it is for the Legislature to lay down the policy expressly, or at least decipherable, but in law there can not be absolute principles. Having given due thought to the matter we are of the opinion that while applying the said principle for the purposes of considering the validity of a Statute, regard must also be had to the subject matter which has been left to subordinate legislation, the scope of such subordinate legislative (rule making) power, the Authority to which the power of subordinate legislation has been delegated, and a host of other factors which it is neither desirable nor perhaps possible to rigidly and exhaustively define. In this case we find that the petitioner's argument overlooks the aspects that the Act only provides (i) that there has to be a chairman and a vice-chairman, and (ii) that they must be elected, without determining the procedure of election. The Act does not say anything about the powers, duties or functions of the chairman or vice chairman. In fact section 15 (2) (g) specifically says that the Rules framed by the State Bar Council can provide the powers and duties of the Chairman and Vice-Chairman. To our mind this suggests that the Legislature left to the subordinate legislation all aspects relating to the chairman and vice-chairman not only regarding the manner of their election but also subsequent to their election including their powers 15 and duties. This has apparently been done because the subject matter of subordinate legislation relates to internal management of a democratically elected autonomous statutory body, which body itself is being entrusted with the power of the subordinate legislation, and that entrustment is being safeguarded by providing for prior approval by the apex body ie. the Bar Council of India which again is a democratically elected autonomous statutory body. In our opinion in such circumstances, the lack of the policy being spelt out by the Legislature itself can not be a good ground for questioning the validity of the legislation.
25. The petitioners have also challenged the validity of the Rule 122- A on the ground that it is arbitrary and unreasonable. The petitioners have compared the said Rule 122-A with the corresponding Rule of the Bar Council of India and on that basis have argued that the Rule of Bar Council of India regarding removal of its Chairman is better and more reasonable. The submission can not be accepted because of the settled law that a provision of law can not be struck down as unreasonable merely because in the Court's opinion the provision could have been framed better.
26. For the same reason we are not inclined to strike down the Rule 122-A on the arguments that the Rule in question does not provide for
(i) somebody else to preside the meeting in which a no-confidence motion against the chairman himself is to be considered, or (ii) what should be the procedure (including the nature of debate) before the no-confidence motion is put to vote, or (iii) what should be the minimum number of votes, having regard to the total membership of the house (not merely the members present and voting) which would be necessary for passing of such motion, or (iv) what should be the minimum period which must expire since the defeat of such motion before a similar motion can be brought again, or (v) on what kind of charges such motion of no-confidence can be brought. However regarding argument number (iv) above, we may point out that the 16 minimum period for reconsideration of a decision (including a decision on no-confidence) is 3 months under Rule 15 of Chapter V, unless a two-third majority decides upon reconsideration . It may in some case be argued that the defeat of a no-confidence motion only means a decision to the effect that the office-bearer enjoyed the confidence of the House on the day of voting on the motion, and the issue whether he has lost the confidence anytime shortly after that voting, does not technically amount to a re-consideration of the earlier decision. But this hyper-technical argument is too thin to be sustained against the larger public interest and therefore the 3 month period in Chapter V Rule 15 will apply to such cases. Taking any other view may make the functioning of the Madhya Pradesh Bar Council practically impossible if just 7 of its members decide to bring no- confidence motions repeatedly. And regarding argument number (v), removal on a motion of no-confidence, without restriction, means that the law contemplates continuance in office only so long as the office- bearer commands the confidence of the House, which is a principle flowing from accountability and can not therefore be faulted, if so made by the Rule making authority.
27. This brings us to the last point raised by the petitioners. The decisions of the Delhi and Kerela High Courts reported respectively in AIR 1975 Del 200 'Bar Council of Delhi Vs. Bar Council of India' and AIR 1986 Ker 144 'Bar Council of Kerela Vs...' were read out before us . It was pointed out that in the Delhi case common law was used to justify an implied power of removal of the elected Chairman on the ground that the statute had not changed the common law. The correctness of the law laid down in that decision was assailed by placing reliance on AIR 1954 SC 210 'Jagan Nath Vs Jaswant Singh', (1982) 1 SCC 691 'Jyoti Basu Vs. Debi Ghoshal', (1984) 1 SCC 91 'Arun Kumar Bose Vs. Mohd. Furkan Ansari' and (1992) 4 SCC 80 'Mohan Lal Tripathi Vs District Magistrate', and it was argued that 'concepts familiar to common law and equity must remain stragers to 17 Election Law unless statutorily embodied'. In respect of the Kerala High Court decision it was argued that the Court fell in error in reading the power of removal as "incidental". It is not necessary to go into these arguments because as stated above the Rule regarding removal is not justified under section 15 (2) but under section 15(1) of the Act, which is of wide amplitude and there is no reason to restrict the scope of Rule making power under section 15 (1) so as to exclude
(i) prescription of tenure, or (ii) removal on a vote of no-confidence from the ambit of the Rule making power conferred by that provision.
28. Before moving on to the next issue, we may refer to a decision cited by the Respondent No. 6 (of W.P. No. 6628). In this interesting decision by a Full Bench of the Gujrat High Court in the case of 'N.B. Posia Vs. Director' reported in AIR 2002 Guj 348 (FB) (relevant paragraphs are 47 and 66 of that law report) it has been held that though there was no provision in the Act or statutory Rules for removal of an elected Chairman of the Committee, yet (i) the words "ceasing to hold office for any reason" include the removal by a no- confidence motion, and (ii) if a holder of an office is elected by a simple majority, he can be removed (through no-confidence motion) by a simple majority (even in absence of a statutory provision for such removal). With utmost respect to the said decision, we find ourselves totally unable to subscribe to either of the two propositions therein.
THE CHALLENGE TO THE MEETING & RESOLUTION
29. Next it was argued from the petitioners' side that under Chapter XVI Rule 111 (quoted earlier in this order) the Chairman of the Bar Council (if present) has to preside all meetings. Thus Sri Neekhra correctly presided the meeting dated 16-4-2011, though it had been called for considering the no-confidence motion against him. This presiding by Sri Neekhra has not been seriously contested from the respondents side before this Court. It was then submitted by the petitioners that under Chapter XVI Rule 113 (quoted earlier in this 18 order) the decision of the Chairman (of the meeting) on a point of order is final. The point of order raised was that the motion of no- confidence was not tenable because it had been brought within three months of the original election. The question therefore was whether a no-confidence motion amounted to a reconsideration of the original election. The petitioners have not been able to show to us any logical reason whatsoever to hold that it amounted to reconsideration. Therefore the decision of Sri Neekhra as Chairman of the meeting dated 16-4-2011 was legally not correct. Secondly, considering the events and circumstances preceding and following such decision by Sri Neekhra, the decision, to say the least, does suffer from an element of bias. Besides when the interim order of the High Court had already stayed the implementation of the resolution of the motion of no- confidence, if passed, the conduct of Sri Neekhra and his supporters in walking out has little justification. This brings us to the issue about validity of what followed the walk out. The petitioners call it a second meeting, while the contesting respondents call it a continuation of the initial meeting. The contesting respondents rely upon AIR 1960 Raj 25 'Deodutt Sharma Vs. Z.A. Zaid' and AIR 1988 SC 1665 'Chandrakant Khaire Vs. Dr. Shantaram Kale'to support the proposition that the meeting was a continuation of the original meeting. However, for deciding this issue we have to consider whether the power to adjourn a meeting of the Bar Council lies with the Chairman of the meeting or with the majority of the members present at the meeting under Rule 14 of Chapter V-B (quoted earlier in this order). As against the said Rule 14 of Chapter V-B, we have not been shown any provision which could even remotely sustain a power in the Chairman of a Bar Council meeting to adjourn the meeting. Adjournment of a meeting is not "a point of order" {see 'Surat Singh Vs. Kishori Lal' (1969) 2 SCC 487}. It would therefore appear that the decision whether a meeting should be adjourned or carried on lies with the majority in the House. When it is doubtful whether the power 19 to take an important decision lies with an individual or with a group, the collective wisdom is generally preferable to individual wisdom. AIR 1966 Mad 372 'B. Gnanaraj Vs. A.M. Vedanayagam' which in turn relies upon AIR 1927 Bom 603 'Gopal Narain Vs. Sanmukhappa' is a decision squarely covering the point.
30. We therefore hold that (i) neither the decision of the Chairman on the so called "point of order", (ii) nor his decision to conclude the proceedings was sustainable, and therefore the meeting was not adjourned by these decisions and was rightly continued. Since the Chairman and Vice-Chairman of the Bar Council had walked out of the meeting, in their absence the Advocate General was rightly elected to Chair the meeting under Chapter V Rule 16. The resolution of no- confidence passed against Sri Neekhra by all 13 members present and voting is valid.
31. In the result both these writ petitions fail and are dismissed. The interim order is vacated. No costs.
(Sushil Harkauli) (S. C. Sinho)
Judge Judge