1999 (3) TMI 628 - SC - Indian Laws

Extension of State Bar Council term invalid for failing Rule 6 and ss. 8, 8A; elections declared void

SC held the purported extension of the State Bar Council's term was invalid for failure to comply with Rule 6 and mandatory provisions of ss. 8 and 8A of ... Confirmation relating back of corporate action - transaction of business by circulation under Rule 6 of the Bar Council of India Rules - extension of term under the proviso to Section 8/Section 8A of the Advocates Act, 1961 - mandatory manner of doing a statutory act - jurisdiction to hold elections vested in the Special Committee under Section 8ATransaction of business by circulation under Rule 6 of the Bar Council of India Rules - confirmation relating back of corporate action - mandatory manner of doing a statutory act - Validity of the Bar Council of India's resolution dated 8.2.1997 as a confirmation relating back to the circulation dated 13.1.1997 so as to extend the term of the Kerala Bar Council from 27.1.1997. - HELD THAT: - Rule 6 permits urgent action by circulation only if the Chairman permits circulation, a majority of members agree to the proposed action, the action so taken is forthwith intimated to all members and the papers are placed before the next meeting for confirmation. In the present case the resolution was circulated on 13/14.1.1997 but by 27.1.1997 (when the Kerala Council's term expired) a majority of the eighteen members had not indicated approval; only four members had responded by that date. No action based on a majority opinion was taken or intimated before expiry and the process under Rule 6 was therefore abandoned. A subsequent regular meeting on 8.2.1997 adopted a fresh resolution extending the term, but that resolution could not be treated as a confirmation which related back to 13.1.1997 because there had been no antecedent 'action' under Rule 6 to be cured or confirmed. The Court applied the principle that when the manner of doing a statutory act is prescribed, it must be followed, and distinguished authorities relied on by respondents where an antecedent valid 'action' had been taken and later confirmed.The Bar Council of India's resolution of 8.2.1997 does not relate back to 13.1.1997 under Rule 6 and does not validly extend the term of the Kerala Bar Council from 27.1.1997.Extension of term under the proviso to Section 8/Section 8A of the Advocates Act, 1961 - jurisdiction to hold elections vested in the Special Committee under Section 8A - mandatory manner of doing a statutory act - Whether elections conducted by the Kerala Bar Council after 27.1.1997 were valid and who had jurisdiction to hold elections following expiry of the Council's term. - HELD THAT: - Sections 8 and 8A read together require that elections to a State Bar Council be held before expiry of the five-year term or, if not so held, the Bar Council of India may extend the term by up to six months; failing that, the Bar Council of India must constitute a Special Committee to discharge the State Bar Council's functions and hold elections. Because the Kerala Bar Council's term expired on 27.1.1997 and no valid extension operated from that date, the State Bar Council ceased to have jurisdiction to conduct elections thereafter. The statutory scheme is imperative: when the State Bar Council does not hold elections in the prescribed manner before expiry, the jurisdiction to hold fresh elections vests in the Special Committee constituted under Section 8A. Consequently the elections held by the Kerala Bar Council after expiry were invalid.The elections conducted by the Kerala Bar Council after 27.1.1997 are null and void; jurisdiction to hold elections vested in the Special Committee under Section 8A.Final Conclusion: The High Court judgment treating the Kerala Bar Council's term as extended before expiry is set aside. The Bar Council of India is directed to constitute the Special Committee contemplated by Section 8A within two weeks and that Special Committee shall hold elections within four months; until then the Special Committee shall discharge the functions of the State Bar Council. Issues Involved:1. Jurisdiction of the Kerala Bar Council to conduct elections after the expiry of its term.2. Validity of the extension of the term of the Kerala Bar Council by the Bar Council of India (BCI).3. Compliance with procedural requirements u/s 8 and 8A of the Advocates Act, 1961.4. Application of Rule 6 of the Bar Council of India Rules.Summary:1. Jurisdiction of the Kerala Bar Council to Conduct Elections:The Kerala Bar Council's term expired on 27th January 1997. It conducted elections during an extended period granted by the BCI. The validity of these elections was challenged on the grounds that the Kerala Bar Council had ceased to have jurisdiction to conduct elections after the expiry of its term.2. Validity of Extension by BCI:The BCI circulated a resolution for extending the term of the Kerala Bar Council by six months on 13th January 1997. The resolution was confirmed in a meeting on 8th February 1997. The appellants contended that the extension should have been granted before 27th January 1997, and the BCI's resolution on 8th February 1997 could not retrospectively extend the term from 27th January 1997.3. Compliance with Procedural Requirements u/s 8 and 8A:Sections 8 and 8A of the Advocates Act, 1961, provide that the term of office of an elected member of a State Bar Council is five years, extendable by six months if elections are not held before the expiry of the term. If the term expires without elections, the BCI must constitute a Special Committee to conduct elections. The Kerala Bar Council failed to hold elections within its original term, and the BCI's extension was not granted before the term expired.4. Application of Rule 6 of the Bar Council of India Rules:Rule 6 allows urgent action by circulation of papers to members, requiring majority approval and subsequent confirmation. The BCI circulated the resolution on 13th January 1997 but received only four approvals by 27th January 1997, insufficient for majority action. The resolution adopted on 8th February 1997 was not a confirmation of any action taken under Rule 6, as no action was taken based on majority opinion before the expiry of the term.Judgment:The Supreme Court held that the Kerala Bar Council's term could not be retrospectively extended by the BCI's resolution on 8th February 1997. The Kerala Bar Council had no jurisdiction to conduct elections after 27th January 1997. The elections conducted were declared null and void. The BCI was directed to appoint a Special Committee u/s 8A within two weeks to hold fresh elections within four months. The appeal was allowed, and the High Court's judgment was set aside. No order as to costs.