TaxTMI 
TaxTMI 
2011 (8) TMI 1228
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....essive, inasmuch as it does not provide any guidelines for removal of office-bearers of the State Bar Councils? (2) Whether despite the absence of the enabling provisions in the principal statute, namely, the Advocates Act, empowering subordinate State Bar Councils to enact provisions for removal of the office bearers of the State Bar Councils by 'no confidence motions', such power could be read into the general clause of Section 15(1) of the Advocates Act? (3) Whether Rules 121 and 122-A of the M.P. Rules are invalid for want of prior approval from the Bar Council of India? 3. The necessary facts are that the Parliament enacted the Advocates Act on 19th May, 1961. Section 15 of the Advocates Act empowers the State Bar Councils to frame Rules to carry out the powers conferred upon the State Bar Councils under Sections 15(1), 15(2), 28(1) and 28(2) read with Chapter II and other provisions of the Advocates Act. The State Bar Council of Madhya Pradesh (for short 'the State Bar Council'), with the approval of the Bar Council of India, made and published the M.P. Rules in 1962. These M.P. Rules came to be amended on 27th April, 1975. 4. Section 15 of the Advocates Act provi....
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....olanki, Ku. Rashmi Ritu Jain and B.K. Upadhyay submitted two requisition motion of no confidence. In one of the requisition motion of no confidence they have stated that they have no confidence in Chairman, Vice- Chairman and Treasurer therefore, they are moving no confidence motion against them. In the second requisition motion they have requested that since the election of the Committees for the second term were not as per the constitution therefore and even otherwise they want re-election for the Committees. For both the requisition motion they have requested to call a special meeting and consider their vote of no confidence against Chairman, ViceChairman and Treasurer. For another requisition motion they have requested to call a special meeting and consider their proposal. When the meeting was started both the requisition motion were placed before the Hon'ble Chairman. Shri Ganga Prasad Tiwari, Hon'ble Treasurer, Shri Rameshwar Neekhra, Hon'ble Chairman and Shri A.M. Trivedi, Hon'ble ViceChairman stated that they offer their resignation subject to withdrawal of requisition of no confidence motion. There had been long discussion and members S/s Vinod Kumar Bhardwaj, Prem Singh B....
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....pril 2011. The Advocate General had then presided over the meeting, and the 'no confidence motion' is stated to have been passed by majority of the members. It will be useful to refer to the Minutes of the Meeting, held on 16th April, 2011 on this issue, which are as follows: "Twelve of the Members have quit away the meeting on the ground that by virtue of Rule 15 of Chapter V no matter can be decided and reconsidered for a period of three months unless the Council by 2/3 of majority of the Members present shall permit. The affect of this rule is also required to be considered by the Hon'ble High Court and all these issues are open before the Hon'ble High Court. So far as the presiding over of the meeting is concerned, Rule 14 of Chapter V says that in the absence of any provision the matter is to be decided by the majority. That being so the majority of the Members present have decided to consider the No Confidence Motion hence this meeting is now being presided over by Advocate General to whom the majority has decide to preside. Before the start of the Meeting Hon'ble Member Shri Prabal Pratap Singh Solanki has asked Shri Rameshwar Neekhra, Chairman to kindly decide that....
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....-16/4 respectively. It needs to be noticed that one set of minutes is only signed by the Secretary of the State Bar Council while the other is signed by the Secretary as well as by other members who passed the Resolution. 9. In the Minutes of the meeting dated 16th April, 2011, it had been specifically recorded that the Resolution is not to be given effect to in view of the orders passed by the Madhya Pradesh High Court on 15th April, 2011 in Writ Petition No. 6372 of 2011. However, the copy of the proceeding was to be communicated to the Registrar General of the High Court of Madhya Pradesh. This Resolution had been signed by the members present. 10. One Pratap Chandra Mehta had filed this above-mentioned Writ Petition No. 6372 of 2011, challenging the vires of Rules 121 and 122-A of the M.P. Rules. These Rules related to the term of, and procedure for passing a 'no confidence motion' against the Chairman, Vice-Chairman and the Treasurer etc. As already noticed, the Court had directed that the meeting of the State Bar Council could be held on 16th April, 2011, but the Resolution, if passed, would not be given effect to, till further orders. The matter was ordered to be liste....
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....ich 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, 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 Ra,' (2005) 5 SCC 451 (para 16). 27. This brings us to the last point raised by th....
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....als. We have already noticed that the questions which arise for consideration in the present cases are of some public importance and are matters which are likely to arise repeatedly in the conduct of affairs of the State Bar Councils. Before we proceed to discuss the legal aspects of the propositions involved in the present cases, it will be more appropriate for the Court to notice the scheme of the Advocates Act and the relevant provisions of the laws and rules. 13. The Parliament of India enacted the Advocates Act on 19th May, 1961 to amend and consolidate the laws relating to legal practitioners and to provide for the constitution of State Bar Councils and an All India Bar Council. The object of the Advocates Act is to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Though the Advocates Act relates to legal practitioners in its pith and substance, it is an enactment dealing with the qualifications, enrolment, right to practise and discipline of advocates. It is not only implicit but clear from the provisions of the Advocates Act that once an advocate is enrolled by any State Bar Council, he becomes entitled to practise i....
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....e All India Bar Committee, made in the year 1953, after taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration, and particularly, the recommendations relating to the Bar and to legal education. It was, therefore, conceptualized to legislate a law which will govern the State Councils and the All India Bar Councils in different specified fields. The main features of the Advocates Act were, the integration of the Bar into a single class of legal practitioners known as advocates; the establishment of a common roll of advocates, having a right to practise in any part of the country and in any court, including the Supreme Court; the prescription of uniform qualifications for the admission of persons to become advocates; the division of advocates into senior advocates and other advocates based on merit; and the creation of autonomous Bar Councils, one for the whole of India, i.e, the establishment of an All India Bar Council and one for each State. We may examine some of the relevant provisions of the Advocates Act. 15. Section 2(a) of the Advocates Act defines an 'advocate' to mean an advocate entered in any roll under the pro....
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....common seal, with power to acquire and hold property and to sue and be sued in its own name. 19. The functions of the State Bar Council and the Bar Council of India are prescribed under Sections 6 and 7 of the Advocates Act. Besides admitting persons as advocates on its rolls [Section 6(a)] and maintaining such rolls [Section 6(b)], it is for the State Bar Councils to provide for the elections of its members [Sections 6(g)] and to perform all other functions conferred on it by or under this Act [Section 6(h)]. Section 6(i) of the Advocates Act allows the State Bar Councils to do all other things necessary for discharging their functions. 20. Functions of the Bar Council of India are of a wider spectrum than that of the State Bar Council. Bar Council of India has to lay down standards of professional conduct and etiquette for the advocates, the procedure to be followed in Disciplinary Committees and to safeguard the rights, privileges and interest of advocates. 21. The Bar Council of India may, under Section 7(k) of the Advocates Act, provide for the election of its members. This provision is identical to Section 6(g) of the Advocates Act. Similarly, Sections 6(h) and 6(i) ....
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....il]; d. xxx xxx e. xxx xxx f. the filling of casual vacancies in the Bar Council ; g. the power and duties of the Chairman and the Vice- Chairman of the bar Council ; (ga). xxx xxx (gb). xxx xxx h. xxx xxx i. the constitution and functions of any committee of the Bar council and the term of office of members of any such committee; (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." 25. Chapter III of the Advocates Act deals with 'Admission and Enrolment of Advocates'. Section 28 of the Advocates Act empowers the State Bar Councils to make rules to carry out the purposes of this Chapter, i.e., Chapter III. 26. Section 49 of the Advocates Act appears under Chapter VI, i.e., 'Miscellaneous' and empowers the Bar Council of India to make rules for discharging its functions under this Act and besides providing for specific powers, the Bar Council of India may prescribe rules under the residuary provisions of Section 49(1)(j) of the Advocates Act, whereby the Council is empowered to make rules in regard to any other matter which may be....
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....ules. The Chairman and the Vice-Chairman perform the functions of exercising general control and supervision over the affairs of the Bar Council of India, save as otherwise provided in these Rules and subject to the resolutions of the Bar Council of India. Rule 22 of the Rules has significant bearing on the discussion in the present cases. This Rule relates to 'no confidence motion' against the Chairman, the Vice-Chairman, or any other office bearer, and its consequences. The Rule 22 reads as under: "On a motion of "No confidence" being passed by Bar Council of India by a Resolution passed by majority of not less than 3/4th of the Members present and voting and such majority passing "No Confidence Motion" is more than 2/3rd of the total number of Members constituting the Bar Council for the time being, the Chairman or Vice-Chairman or any other office bearer against whom the motion is passed shall cease to hold office forthwith. Notwithstanding anything contained in the Act or the Rules made thereon, the Chairman or Vice-Chairman shall not preside over the meeting in which motion of "No Confidence" is discussed against him and such meeting shall be convened on a notice of at ....
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....is obligatory on the part of the Chairman of the State Bar Council to call a meeting, which he shall preside over, when he receives a requisition for doing so, signed by not less than 3 members of the State Bar Council. The Chairman has to exercise general control and supervision over all the matters of the State Bar Council. 32. The State Bar Council consists of 26 elected members and the Advocate General of the State. Rule 118 is the first rule that falls under Chapter XVIII and it requires that a State Bar Council shall elect a Chairman and a Vice-Chairman from amongst its members for two years. Rule 118 of the M.P. Rules came to be amended and, as per the amended Rule, the State Bar Council has to elect a Chairman and a Vice-Chairman from amongst its members for 2½ years vide Resolution No. 631 of 1998. 33. Rule 122-A of the M.P. Rules was amended by the State Bar Council sometime in the year 1975 and vide its Resolution dated 27th April, 1975, the amendments and newly added rules were sent for approval of the Bar Council of India. Again in its Resolution dated 9th March, 1980, the State Bar Council had recorded that to these amendments/newly added Rules, approval ....
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....1 days from the date of receipt of the requisition by the secretary. 122-B That the Bar Council by a resolution may reconstitute any of its committee elected earlier by it, provided that the requisition for the purpose signed by at least 7 members of the Council is received by the Secretary, and such a special meeting shall be called within 21 days from the date of receipt of the requisition by the Secretary." 35. Rule 122-A of the above Rules deals with the removal of the Chairman, Vice-Chairman or the Treasurer of the State Bar Council by moving a 'no confidence motion'. Existence of such a provision is not exceptional, but is a common provision in any electoral system. Our parliamentary system is the most significant example of a democratic process, where the 'no confidence motion' under Article 75(3) of the Constitution is an integral part of the process of election. Similarly, under Rule 22 of the Rules, a provision has been made for moving a 'no confidence motion' and where such motion is passed by a majority of not less than three-fourth of the members, present and voting, and such majority passing the 'no confidence motion' is more than two-third of the total number o....
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....indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by the statutes, or a 'political right' or 'privilege' and not a 'natural', 'absolute' or 'vested right'. 'Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied.' 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'. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary the right of recall is defined as, 'a provision enabling voters to remove an elected official from office before his or her term expired'. American Jurisprudence explains it thus, 'Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an election called for such purpose by a specified number of citizens'. It was urged that 'recall gives dissatisfied electors the right to propose between elections that ....
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....annot be assailed on abstract notions of democracy. 7. Value of 'historical evolution' of a provision or 'reference to what preceded the enactment' as an external aid to understand and appreciate the meaning of a provision, its ambit or expanse has been judicially recognised and textually recommended. But this aid to construe any provision which is 'extremely hazardous' should be resorted to, only, if any doubt arises about the scope of the section or it is found to be 'sufficiently difficult and ambiguous to justify the construction of its evaluation in the statute book as a proper and logical course and secondly the object of the instant enquiry' should be 'to ascertain the true meaning of that part of the section which remains as it was and which there is no ground for thinking the substitution of a new proviso was intended to alter'. But 'considerations stemming from legislative history must not, however, override the plain words of a statute'. Neither Section 47-A nor 87-A on plain reading suffer from such defect as may necessitate ascertaining their intent and purpose from the earlier sections as they stood. That shall be clear when relevant part of the sections are extrac....
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....ect dissolution of the Board itself. Both the sections were amended once again in 1955 and by Act 1 the election of Chairman, known now as President, by the members of the Board was reintroduced, as, 'The experience of the working of the Boards since their constitution at the last general elections has generally been one of continuing conflict between Presidents elected by the popular vote on the one hand and the members on the other. This has greatly prejudiced the normal working of the Boards'. Section 47-A of the Act was substituted completely and it is in this shape that the section stands today. Section 43(1) was amended, once again, by Act 47 of 1976 and election of President by electorate was revived. In 1982 another change was made in this section by Act 17 and election of President by the members of Board was confined to municipalities other than a city declared as such under Section 3 having a population of less than one lakh inhabitants. Sub-section (2) provided for election of President of Board of such a City Municipality by the electorate directly. From 1982 onwards, therefore, the direct election of President by the electorate is confined to smaller Municipalities. ....
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....ocedure of election and is not confined to final result thereof. Rejection or acceptance of nomination paper is included in this term. This Court, in the case of N.P. Ponnuswami v. returning Officer, Namakkal Constituency [AIR (39) 1952 SC 64] held that the word 'election' has been used in Part XV of the Constitution in a broad sense, that is to say, to connote the entire procedure to be followed to return a candidate to the legislature and even the expression 'conduct of elections' in Article 324 specifically points to this wide meaning and the meaning which can be read consistently into other provisions occurring in the Constitution. In this case, the election process as contemplated under the relevant laws is that the members of a State Bar Council are elected by the electorate of advocates on the rolls of the State Bar Council from amongst the electorate itself. The elected members then elect a Chairman, a ViceChairman and the Treasurer of the State Bar Council as well as constitute various committees for carrying out different purposes under the provisions of the Advocates Act. 39. In other words, the body which elects the Chairman or Vice-Chairman of a State Bar Council al....
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....erpreted conjointly. We see no reason why the expression 'manner of election of its members' in Section 6(1)(g) should be given a restricted meaning, particularly in light of Sections 6(1)(h) and 6(1)(i). The responsibility of the State Bar Councils to perform functions as per the legislative mandate contained in Section 6 of the Act is of a very wide connotation and scope. No purpose would be achieved by giving it a restricted meaning or by a strict interpretation. The State Bar Council has to be given wide jurisdiction to frame rules so as to perform its functions diligently and perfectly and to do all things necessary for discharging its functions under the Act. The term of office of the members of the State Bar Council is also prescribed under Chapter II, which shall be five years from the date of publication of the result of the election. On failure to provide for election, the Bar Council of India has to constitute a special committee to do so instead. Section 15(2) then provides that without prejudice to the generality of the foregoing powers, rules may be framed to provide for the preparation of electoral rolls and the manner in which the result shall be published. In terms....
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....frame rules and it will not be in consonance with the principles of law to give that power a strict interpretation, unless restricted in scope by specific language. This is particularly so when the provisions delegating such power are of generic nature, such as Section 15(1) of the Act, which requires the Bar Councils to frame rules to 'carry out the purposes of this Chapter' and Section 15(2), which further uses generic terms and expressly states that the Bar Council is empowered to frame rules 'in particular and without prejudice to the generality of the foregoing powers'. If one reads the provisions of clauses (a), (c), (g), (h) and (i) of Sub-section (2) of Section 15 of the Act, then, it is clear that framing of rules thereunder would guide and control the conduct or business of the State Bar Councils and ensure maintenance of the standards of democratic governance in the said Councils. Since the office bearers like the Chairman and the Vice-Chairman are elected by a representative body i.e. by the advocates who are the elected members of the Council, on the basis of the confidence bestowed by the advocates/electorate in the elected members, there seems to be no reason why tha....
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....it satisfies two conditions: (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule making power of the statutory authority framing the rule. 43. In the case of Kunj Behari Lal Butail v. State of H.P. [(2000) 3 SCC 40], this Court noticed that it is very common for the legislature to provide general rule making power to carry out the purposes of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed thereunder satisfy this test of functionality. This test will determine if the rule falls foul of such general power conferred on the delegatee. If the rule making power is expressed in usual general form, then it has to be seen if the rules made are protected by the limits prescribed by the parent Act. Still in the case of Global Energy Ltd. v. Central Electricity Regulatory Commission [(2009) 15 SCC 570], this Court was concerned with the validity of clauses (b) and (f) of Regulation 6A of the Central Electricity Regulatory Commission (Procedure, Terms and Conditions for Grant of Trading Licence and....
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....en extends to the State Bar Councils the power to independently resolve all election disputes through tribunals constituted for this purpose. Therefore, the powers delegated have an in-built element of guidance that the Chairman/Vice-Chairman will be appointed and regulated by the majority members of the State Bar Council. Their conduct, and the conduct of the State Bar Council as a whole, is to be maintained in consonance with democratic principles and keeping the high professional standards of advocates in mind. Thus, it is not a power which falls beyond the purview and scope of Section 15 of the Advocates Act read in conjunction with other provisions, particularly Chapter II and also keeping in view the object of the Act. 45. Purposive construction, to a large extent, would help to resolve the controversy raised in the present case. The purpose of the Advocates Act is the democratic and harmonious functioning of the State Bar Councils, to achieve the object and purposes of the Act. We are unable to see how the provisions of Rule 122-A fall foul of the ambit and scope of Section 15 of the Advocates Act and, for that matter, any other provisions of that Act. On the contrary, th....
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.... 11(1) of the Act provision is made for holding of two general meetings of the Gram Sabha in each year as well as for requisitioning of a meeting by one-fifth of the members. But the legislature, in its wisdom, thought it proper that the matter of removal of a Pradhan, instead of being considered at the meeting of the Gram Sabha, should be considered by the members of the Gram Panchayat. The considerations which weighed with this Court for upholding the validity of subsection (2) of Section 87-A of the U.P. Municipalities Act, 1916 relating to the removal of the President of a Municipal Board in Mohan Lal Tripathi are, in our opinion, also applicable to the removal of the Pradhan of the Gram Sabha. Although under Section 14 of the Act the power of removal of a Pradhan is conferred on the members of the Gram Panchayat, which is a smaller body than the Gram Sabha, but the members of the Gram Pancyhayat, having been elected by the members of the Gram Sabha, represent the same electorate which has elected the Pradhan. The removal of a Pradhan by two-third members of the Gram Sabha through their representatives. Just as the Municipal Board is visualized as a body entrusted with the resp....
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....ion of the appellants. 49. The next argument that was raised on behalf of the appellants is that, in view of Rule 15 of Chapter V of the M.P. Rules, the State Bar Council is debarred from re-considering the same matter for a period of three months, and as such, the decision passing 'no confidence motion' is vitiated because of the limitation contained in the said Rule. Rule 15 of Chapter V reads as under: "No matter once decided shall be reconsidered for a period of three months unless the Council by a two-third majority of the members present, so permits." 50. Though the language of the above Rule clearly shows that no matter once decided shall be reconsidered for a period of three months but clearly makes an exception that wherever 2/3rd majority of the members present of the State Bar Council permits, this bar will not operate. In other words, there is no absolute bar and the Rule makes out an exception when the matters could be reconsidered. But that is not the situation in the present case. The first pre-requisite under this rule is that matter should be 'once decided', and then alone, the bar of reconsideration would operate; that too depending on the facts and circu....
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....er papers of the meeting to all members. 52. Another ancillary argument to the above is that by virtue of the bar under Rule 15 of the M.P. Rules, the Chairman and Vice-Chairman were elected to their respective posts in February 2011 and, as such, the election itself was a 'decision' which was incapable of being reconsidered and revised in the meetings of March and April, 2011. According to the appellants, the limitation contained in Rule 15 of the M.P. Rules shall vitiate the decision of passing a 'no confidence motion'. This argument is also misconceived in law and on the facts of the present case. Election is not a 'decision' as contemplated under Rule 15 of the M.P. Rules. It is not a matter on which the State Bar Council decides, as firstly, this matter falls within the discretion of individual advocates on the rolls of the State Bar Council to elect the representative members of the said Councils, and secondly it falls within the discretion of such elected representatives to elect a person as Chairman/Vice-Chairman. It is not a 'decision' which relates to the matters as contemplated under the M.P. Rules. Passing of a 'no confidence motion' in law, therefore, cannot be term....
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....onfidence motion', as they were elected office bearers and if they had lost the confidence of majority group which elected them to this post and a 'no confidence motion' had been moved against them in terms of Rule 122-A, they were expected to face the consequences thereof. This, alone, would have served the ends of democratic governance and proper functioning of the State Bar Council. Therefore, in our considered view, even on this issue, the appellants cannot succeed. 57. Then it is contended that removal from an office is punitive. It being punitive, there has to be a just cause and adherence to the principles of natural justice by granting hearing before the removal from office is given effect to. To clarify, it is submitted that removal from an elected office, even in face of a valid rule, would have to meet these twin requirements of just cause and hearing, before a person can be removed from office. On the other hand, the learned counsel appearing for the respondents, while relying upon the judgment of the Delhi High Court in the case of Bar Council of Delhi v. Bar Council of India [AIR 1975 Del 200], contended that by application of the General Clauses Act, 1897 even in ....
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....or lapse by act or omission and it is because of that lapse or impropriety that they are being censured. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although a ground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no-confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members. We may in the above context refer to page 591 of Practise and Procedure of Parliament, Second Ed. by Kaul and Shakdher wherein it is observed as under: "A no-confidence motion in the Council of Ministers is distinct from a censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and acti....