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 ... Jurisdiction of the Kerala Bar Council to conduct elections after the expiry of its term - extension of the term of the State Bar Council - Compliance with procedural requirements u/s 8 and 8A of the Advocates Act, 1961 - HELD THAT:- Since in the instant case a resolution for extension of the term of the Kerala Bar Council was sought to be passed by the process of circulation as provided by Rule 6 and the High Court has found it to have been validly done, it was this Rule which constituted the focal point of debate by both the sides in this appeal. We would, therefore, first analyse Rule 6 to find out its requirements as also the essential elements of the 'manner prescribed' thereunder and then examine whether those requirements were fulfilled in order to justify the resolution of 'confirmation'. A perusal of this resolution indicates that the extension in the term was granted under the Proviso to Section 8A of the Act. The resolution does not speak of 'confirmation' as, indeed, there could not be any 'confirmation' as no action on the resolution which was circulated to members was taken possibly because only eight had responded and that too, very late, as the term of the State Bar Council had already expired 27.1.1997. In the instant case, process for 'action', no doubt, was initiated, but no action was taken. The resolution for extension of the term of the Kerala Bar Council was circulated on 13th or 14th January, 1997 and opinion of eight members was also received but no 'action' was taken on that basis nor was any member intimated of the 'action' taken. By the time the opinion of the eight members was obtained, the term of the Kerala Bar Council stood expired on 27.1.1997. By that date, namely, by 27.1.1997, only four members, namely, Mr. Ashok Desai (15.1.97); Mr. Ashok Deb (18.1.97); Mr. D.V. Patil (25.1.97); and Mr. Jagannath Patnaik (25.1.97) had indicated their approval. But that was not enough as the Rule itself provides that 'action' will not be taken unless agreed to by a majority of the members. Since there were eighteen members in the BCI, the opinion of four of the members was wholly irrelevant and insufficient for 'action' being taken. On that basis, no extension could be granted, nor was it granted. Fresh elections could have been held by the Kerala Bar Council only before the expiry of its term. Otherwise, the jurisdiction to hold elections passes on to the Special Committee appointed by the BCI in terms of the provisions contained in Section 8A which are imperative in character. Since the Kerala Bar Council had ceased to have any jurisdiction on the expiry of its term and the so-called extension of its term has been held by us to be wholly illegal, the elections held by the Kerala Bar Council were farcical in character and on that basis the respondents cannot claim themselves to be the duly elected members of the Council. Queerly, the Kerala High Court, merely after looking into the correspondence between the State Bar Council and the Bar Council of India, as also the resolution adopted on 8th February, 1997, came to the conclusion that the term of the State Bar Council shall be treated to have been extended before the expiry of the original term. This view, in our opinion, is wholly erroneous and contrary to the mandatory provisions contained in the Act and the Rules framed thereunder. The impugned judgment cannot, therefore. be sustained. The appeal is consequently allowed and the judgment passed by the High Court is set aside. The Writ Petition filed by the appellants stands allowed. 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.