Patna High Court
Young Lawyers' Association vs Bihar State Bar Council And Ors. on 21 April, 1988
Equivalent citations: AIR1988PAT290, AIR 1988 PATNA 290, (1988) BLJ 746 (1988) PAT LJR 815, (1988) PAT LJR 815
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
ORDER
1. This application has been filed on behalf of the petitioner for a writ of mandamus directing the respondents to enter the name of every advocate, whose name appears in the State roll, maintained by the Bihar State Bar Council (hereinafter referred to as the State Bar Council'), in the electoral roll which is being prepared by the State Bar Council for the election of the members of the State Bar Council.
2. According to the petitioner majority of the advocates who have been enrolled by the State Bar Council and whose names, appear on the State Roll have not been included in the electoral roll prepared for the election to be held. This happened because the advocates, who have been practising in the different district courts and Sub-Divisional Courts, had no information that before their names are entered in the electoral roll they have to furnish the details in the prescribed forms in terms of Rule 4 of the Bar Council of India Rules (hereinafter referred to as 'the Rules').
3. In view of Section 3(1) of the Advocates Act, 1961 (hereinafter referred to as 'the Act') for each State there has to be a Bar Council. Sub-section (2) of Section 3 prescribes the details of the members of that Bar Council. Section 3(2)(b) which is relevant in the present case is as follows : --
"3(2) A State Bar Council shall consist of the following members, namely;
(a) xxxxx
(b) In the case of a Slate 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 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."
Section 3(4) is also relevant :
"3(4) An Advocate shall be disqualified from voting at an election under Sub-section (2) or for being chosen as, and for being, a member of a State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council"
In view of Section 6(1)(b) of the Act the Bar Council has to prepare and maintain the State Roll. The relevant part of Section 15(2)(a) is as follows : --
"15(2). In particular, and without prejudice to the generality of the foregoing power, such rules may provide for : --
(a) the election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the results of election shall be published."
Section 49(1)(a) and (ab) prescribe : --
"49.(1). The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe -
(a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by State Bar Council;
(ab) qualifications for membership of a Bar Council and the disqualifications for such membership;"
4. In exercise of the powers under Sections 3(4); 15(2)(a) and 49(1)(a) and (ab) of the Act, in Part III Chapter I of the Rules, specific rules have been framed in respect of preparation of electoral roll, prescribing qualification and disqualification of advocates whose names have to be entered in such electoral roll. In view of Rule 1 every advocate, whose name is on the Electoral Roll of the State Bar Council shall be entitled to vote at an election. Rule 2 prescribes that the name of an advocate appearing in the State Roll shall not be on the Electoral Roll, "if on information furnished by the advocate concerned in terms of Rule 4, or obtained by the State Bar Council concerned," he is subject to disqualfication mentioned in Clauses (a) to (g) of Rule 2. It may be mentioned that Clauses (a) to (g) mention several disqualifications including that the advocate concerned has suspended his practice is an undischarged insolvent, is in full-time service etc. Rules 3 and 4, which have a direct bearing on the controversy which has been raised in this writ application are as follows : --
"3. Subject to the provisions of Rule 2, the name of every advocate entered in the State Roll shall be entered in the electoral, roll of the. State Council.
4 (1) In preparing the Electoral Roll, unless the State Bar Council concerned is already maintaining a list of advocates who are entitled to be voters in terms of Rule 2 of these Rules, at least 150 days before the date of election, shall publish notice issued by the Secretary of the State Bar Council concerned in prescribed form in the Official Gazette and in two or more local newspapers one English and the other a local language, as may be decided by the State Bar Council, asking each of the advocates on the Roll of the concerned Slate Bar Council to intimate the State Bar Council within the time to be specified in the said notice or within such extended times may be given/allowed by the State Bar Council for reason to be recorded, as to whether he has incurred any disqualification mentioned in Rule 2 of these Rules (Rule 2 has to he quoted in the notice). By the said notice the Secretary shall also inform the advocates concerned that unless informations required by the said notice in question is received by the State Bar Council in the prescribed form or forms exactly similar thereto, within the specified time or within the extended time as stated herein above, his name shall not be included in the Electoral Roll and he shall not be entitled to take part in the election in question.
(2) The Secretary of the State Bar Council shall also send a similar notice along with a prescribed form to all advocates on the Roll of the State Bar Council concerned at their respective addresses us maintained by the State Bar Council in ordinary post with certificate of posting, asking the advocate concerned to furnish all the information mentioned in the said notice and in the form attached therewith or in a form exactly similar thereto either typed, printed or cyclostyled, within the lime specified in the notice. Unless such informations are furnished within the time specified the name of the advocate concerned shall not be included in the electoral roll and he shall not be entitled to take part in the election in question.
(3) Before final publication of Electoral Roll a State Bar Council may. if satisfied, on an application made by any particular advocate giving sufficient reasons for not being able to furnish the informations sought in terms of this Rule, allow the name of the advocate who has made such application to be included in the Electoral Roll in question, and on such inclusion advocate concerned shall be entitled to take part in the election in question. Any accidental omission to send this personal notice to any advocate or advocates shall not invalidate the election."
5. According to the petitioner name of every advocate should be entered in the Electoral Roll, if his name appears on the State Roll and he does not suffer from any disqualification mentioned in Rule 2. The additional condition, prescribed by Rule 4 that the name of an advocate is not to be included in the Electoral Roll if he has failed to furnish the information required by the Bar Council, within the specified time, in the prescribed form, amounts to introducing an additional disqualification, which has not been mentioned in Rule 2. It was pointed out that in view of Rule 3 the name of every advocate entered in the State Roll has to be entered in the Electoral Roll of the Stale Bar Council subject to the provisions of Rule 2 only. But if the name of an advocate who has not furnished the information required pursuant to the notice issued by the Bar Council in the prescribed form is not to be included in the Electoral Roll, it will amount to reading Rule 3 subject to Rule 4 as well, although Rule 3 does not say so in so many words.
6. The learned Advocate General appearing for the Bar Council of India, placed reliance on a judgment of Allahabad High Court in Jagdish Chandra Dixit v. Union Govt.
of India Civil Misc. Writ No. 9715 of 1987 disposed of on 11-9-1987 where it was held that the preparation of the Electoral Roll in accordance with Rule 4(1)(a) of the Rules was perfectly valid and the advocates who had not sent information in prescribed form had been rightly excluded from the Electrol Roll. Reliance was also placed on an order passed by the Supreme Court on 1-10-1982 in S.L.P. (Civil) No. 8718 of 1982 Bar Council of India v. Paramjit Singh Goraya directing the Punjab and Haryana Bar Council to prepare fresh Electoral Roll in compliance with Rule 4(1)(2) of the Rules during the pendency of the appeal before the Supreme Court. It was submitted on behalf of the Bar Council of India that although the aforesaid direct ion of the Supreme Court was an interim direction, but it should be presumed that the Supreme Court before issuing that direction was satisfied about the validity of Rule 4(1)and (2) of the Rules.
7. In view of the challenge regarding the validity of the Rule 4 we would have examined that question in detail, but during hearing of this writ application, on behalf of the petitioner it was stated that if the State Bar Council undertakes or is directed to make a proper final publication of the Electoral Roll after following the procedure prescribed under Rule 4(3) read with Rule 6, then the petitioner shall not insist on examining the validity of the Rule 4 because if the procedure for final publication of the Electoral Roll is followed from the stage of Rule 4(3) read with Rule 6, the advocates, who could not avail the opportunity provided to them at the stage of Rule 4(1) of the Rules, their names can still be included in the Electoral Roll.
8. From a bare reference to Rule 4(3) it appears that before final publication of the Electoral Roll the State Bar Council, if satisfied, on an application made by any particular advocate giving sufficient reason for not being able to furnish the information sought in terms of that Rule, has to allow the name of such advocate to be included in the Electoral Roll in question and on such inclusion such advocate or advocates, as the case may be, shall be entitled to take part in the election in question. Rule 6 of the Rules is as follows : --
"6. The final electoral roll shall be prepared after incorporating such changes as may be necessary including the addition of the names of advocates enrolled after the preparation of the preliminary roll and put up on the notice board of the State Council not more than 75 clear days and not less than 60 clear days, before the date of election. (Intimation of such publication shall be given within a week after the publication to the Bar Association aforesaid)."
In view of Rule 6 of the Rules the final Electoral Roll has to be prepared after incorporating such changes as may be necessary, including the addition of the names of the advocates enrolled after the preparation of the preliminary roll which shall be put up on the notice board of the State Bar Council for not more than 75 clear days and not less than 60 clear days, before the date of election.
9. On behalf of the petitioner it was pointed out that there has been no final publication of the Electoral Roll in accordance with the requirement of Rule 6. From the statements made on behalf of the petitioner in the writ application and the State Bar Council in the counter-affidavit it appears that the election of the members of the State Bar Council became due on 20th April, 1985 after the expiry of the tenure of the members of the State Bar Council. It has been stated in the counter-affidavit that by a resolution dated 8-9-1985 it was decided by the State Bar Council to conclude the election by the 15th April, 1986. Accordingly, individual notice to each advocate whose name stood on the State Roll of the State Bar Council was issued annexing the pro forma of the declaration form to be submitted by advocates in accordance with Rule 4(1) and (2) of the Rules. The notice was also published in two daily newspapers of Bihar requesting the advocate to furnish the details in prescribed form in accordance with rules. It has been stated that only a few declaration forms were received and hence the date for submission of form was further extended to 31-1-1986. by resolution dated 24-11-1985, which was again extended to 31-5-1986. In the meeting of the State Bar Council held on 18-5-1986 it was discovered that only 13,000 declaration forms had been received till that date, hence the period for receiving such declaration forms was extended to 15-7-1986, In the meantime, a letter dated 18-6-1986 was received from the Bar Council of India intimating to the State Bar Council that steps were being taken to amend the Election Rules. In view of the aforesaid communication in the meeting of the State Bar Council held on 20-7-1986 it was resolved to stay all steps in the matter of preparation of Electoral Roll till the Election Rules are finalised by the Bar Council of India. According to the counter-affidavit aforesaid, in the meeting of the State Bar Council held on 15-2-1987 it was resolved that the election be held on 10-8-1987 in accordance with the existing Election Rules. It was also decided to publish notice in two daily newspapers published from Patna about the date of the election. In paragraph 10 of the counter-affidavit it has been stated that on 15-2-1987 it was further resolved to publish notice in two newspapers requesting all Advocates to submit the prescribed declaration forms, if they had not done so far."
10. In the counter-affidavit no statement has been made as to when the final publication of Electoral Roll in accordance with Rule 6 of the Rules was made. The petitioner has stated in the supplementary affidavit that it was made on 10th July, 1987. During the hearing of this writ application the counsel for the State Bar Council produced a copy of the communication dated 10th June, 1987, addressed to the President of all the Bar/Advocates/Lawyers'. Association informing that "the Final Electoral Roll has been published and it is under print." Neither there is any statement in the counter-affidavit nor in the aforesaid communication as to when the aforesaid final Electoral Roll was published and ''put upon the notice board of the State Bar Council for not more than 75 clear days and not less than 60 clear days before the date of election" as required by Rule 6 of the Rules. If 10-8-1987 had been fixed as the date for election the procedure prescribed by Rule 6 of the Rules should have been followed at least 60 days before 10th Aug. 1987. In such a situation, it is difficult to hold on the materials on record that there has been a final publication of the Electoral Roll in accordance with Rule 6 of the Rules aforesaid on the basis of which an election could have been held on 10th Aug. 1987. However, the present writ application was filed on 17th July, 1987 and admitted on 31st July, 1987, when the election which was to be held on 10th Aug. 1987 was stayed.
11. Once it is held that there has been non-compliance of Rule 6 of the Rules in respect of the final publication of the Electoral Roll, then certainly the advocates, who could not furnish information sought in terms of Rule 4(1) can furnish those informations in accordance with Rule 4(3), which has to be considered by the State Bar Council for the purpose of inclusion of their names in the Electoral Roll. During the hearing of this writ application it transpired that there were over 26,000 advocates on the State Roll in the year 1987 out of which less than 13000 only furnished the information in accordance with Rule 4(1) of the Rules. We are informed that during the pendency of this writ application more than 1,000 Advocates have since been enrolled, who are entitled to get their names included in the Electoral Roll in view of Rule 7 of the Rules, which is as follows : --
"7. REVISION OF ELECTORAL ROLL : If for any reason the election to the State Council is postponed beyond the date of expiry of the term of its members the preliminary or the final electoral roll shall be revised so as to include therein the names of advocates enrolled upto 75 clear days before the date of the election."
In such a situation it has to be held that the names of majority of the advocates have not been included in the Electoral Roll either due to fault of advocates concerned or due to lack or (sic) sufficient notice to them because of which they could not furnish the requisite information for the purpose of their names being included in the Electoral Roll.
12. It may be mentioned that during hearing of this writ application a supplementary counter affidavit, has been filed on behalf of State Bar Council, saying that a meeting of the State Bar Council was held on 17-4-1988 in which questions raised in this writ application were considered and it was resolved that in the general interest of the Bar as well to facilitate an early election, to again "publish notice in two daily newspapers published from Patna and to send notices to each Bar/Advocates Association in the State calling upon advocates who have been and may be enrolled after the publication of the last Electoral Roll to submit declaration in the prescribed form for inclusion of their names in the Electoral Roll." It was further resolved by State Bar Council that, "by the same notice other advocates who did not submit the declaration in prescribed form within the specified time may also submit such declaration form in the prescribed form with explanation showing sufficient cause for not submitting such form earlier."
13. In view of our finding that there has been no proper publication of the final Electoral Roll in accordance with Rule 6 of the Rules, and the stand taken by the State Bar Council itself, we direct that in terms of the aforesaid resolution dated 17-4-1988 of the State Bar Council notices be published in two daily newspapers and notices be also issued to each Bar/Advocates Associations in the State, calling upon the advocates, who have been enrolled after the publication of the last Electoral Roll, to submit declaration in the prescribed form for inclusion of their names in the final Electoral Roll in accordance with Rule 7 of the Rules. We further direct that in that very notice the State Bar Council shall also request such advocates, who could not submit the declarations in the prescribed forms within the specified time to submit such declaration forms within the period fixed in the such notices. In view of the fact that this is the first election, which is being held, in accordance with amended rules, it can be presumed that the advocates practising in different district courts and sub-divisional courts did not have knowledge of the procedure regarding furnishing their particulars for being enrolled as voters, as such, while considering their applications under Rule 4(3) of the Rules, it is expected that the State Bar Council shall take a liberal view on the question of their not furnishing the particulars so required pursuant to the earlier notices already issued. It is expected that all steps shall be taken so that the election of the members of the State Bar Council is held before 31st Dec. 1988.
14. This writ application is, accordingly, allowed. But in circumstances of the case there shall be no order for costs.