.q, THE TIIGH COTiRT OF'DELHI AT NEW DELHI CW No. 6526/2003 Abhay Iftrmar Yarma - velsus with CW No. 541912003 Jaya Bhaskaran Ravi versus . Bar Council of Delhi & Others with CW No.6222t2003 --_-:.- zry= - versus Bar Council of Delhi & Others ......Respondents with CW No. 6576/2003 Shri Jatan Shgh I ....,.petitioner ' Versus Pttge na I of79 * Juclgment PronounceA on, &trA ay,2004. .......Petitioner .....Respondents Petitioner ......Respondents .......Petitioners h, . cty652il2003 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified ,."f. f Bar Council of Delhi & Otlrers .....Respondents with CW No. 622312003 Abhay Kumar Yerma .......Petilioner - YeISUS Bar Council of Delhi & Others .....Respondents Advocates *ho appearetl in this cas: For Petitioners :Mr Sanjay iain wirh Mr Sunil Agarwal, Ms Karishma and Mr. Ravi Birbal in CIVP 6526103,6576103 Mr R.lt{. Bagai in CW 6223/03. MrV. Sudhir in CIV 5-ti9/03. MrNeeraj Goyal with Mr. B.B. Raval in CW 6222103. Mr P.N. Misra Sr Advocae wth Mr Jatan Singh for pedrioner in cw 6576/03. Mr Naushad Ahmed l(han for the Inrcrvenor. For Respondents :Mr Sanjiv Sachdeva for Bar Council of lndia Mr S.P. ]fulra Sr. Advocarc wirh Mr Manoj Goel and Ms Ruchi Kapur for Bar Council of Delhi. CORAM:- IION'BLE MR. JUSTICE BADAR DURREZ AIIMED 1. Mrether Reporters of local papers rnay be allowed to see the judgment? 2. To tre referred to the Reporter or not? 3. Whether the judgment shoulcl be reportedin Digest? BADARDURREZ AHMED.J 1. A11 the five writ pelitions pertain to the elections to the Bar Council of Delld for which polling was held on two dates being 29.9.2O03 atd \4 tl' cv652tr2003 Page no. 2 of79 I 3.6 3O.9.2OO3 where the venue of the polling was the High Courr of Delhi and. Toes Hazari Cornplex respectively. The counting process of the votes polled on the aforesaid two dates began on 2.10.2003 and conrinued upto 4.10.2003. The first ro,und of counting was concluded in the afternoon on 4.10.2003. However, in the subsequent round, allegations were rnade by sonre candidates that some of the ballot papers had been defaed. The allegations led ro ctispures and ultirnately it ernerged as a law and order problern and the Returning Officer had to suspend counting of votes in the evening of 4.10.2003. There was no counting on 5.10.2003. The Supervisory Committee appoinred by a Division Benclr of this Court in LPA 61012003 prior to the polling had discussions wirh the Returning Officer but, the Returning Officer resigned on 6.10.2003 and. submitted his report to the said Supervisory Commitree. The ballor pape$ have been sealed and placed within the premises of this Court. Since then counting has not resumed 2. The prayer in Abhay Kumar verrna (cw 6sz6l2003) is rhar directions be issued for the resunlption of counting. In cw 541912003, a petition which had boen filed prior to the holding of the poll, the grievance is that the electoral roll is faulty and ought to be revised before a poll is held on the basis thereof. In CV/ 622A2003 the challenge is to the extension of the term of the Bar Council of Delhi. This extension was granred on23.2.2003 bur with effect frorn 1.4.2OO3. The contention of the petitioner in that writ petition is that the extension was bad as it was beyond. time and, therefore, there existed. no Bar Council of Deltri thereafter and the entire electoral process which was t'1 bi cw6526/2003 Pttge na 3 of79 trl' F\ conducted by the Bar Council of Delhi would be non-est. In CW 6576ftA03 a similar allegation has been made and it is prayed that a Special Comrnittee be appoipted in place of the Bar Council of Delhi to revise the electoral rolls zurd to hold elections after such revision. Lastly, in CW 622A2003, a similar prayer had been made and the prayer is for the stay of elections ou 29.9.2003 aud 30.9.2OO3 on the ground that the extension granted to Bar Council of Delhi was invalid and, therefore, the entire elecloral process continued by the Bar Council of Delhi thereafter was bad. 3. From the aforesaid, it becomes clear that in one petition (CW 6526n0ffi) the prayer is for resumption of counting and corrpleling the electoral process. In all the other petitions the prayers a-re for haltittg this process and declaring it to be a nulliry on essentially.two grounds - (a) thar the electoral rolls are faulty and large numbers of names have been excluded therefrom: and (b) the extension of [he term of the Bar Council of Delhi was bad an{ therefore, the entire electoral process conducred by the Bar Council of Delhi after such extension was a nullity. \r) 4. Earlier in CWP Nos. 6188 and 611912003 I had occasion to deal wittr the entire aspect of these very Bar Council Elections. Those petitions were disposed of by judgment dated 25-9.2003 reported in Bar Council of Delhiv, Shri Adish C, Aggaruala: iln Q003) DLT 355, In those petitions, an order dated 20.9.2003 passed by one Slui Adish C. Aggarwala purporting to be J cw652il2003 Page na 4 of79 {}.' ! go v the Vice-Chairrnan of the Bar Council of India in purported exercise of trowers uncler Section 48-B of the Advocates Acq 1961, was in issue. By the said order dared 20.9-2003 the electoral process which was itt full swing then was brought to a grinding halt. ln that case ttre order dated 20.9.2003 staying the election was set aside. Since sorne of the issues which are raised in the present five writ peritions particularly with regard to the alleged defects in the electoral ro11 and have been considered in the decision reported in Bar Council of Delhi (supra), it would be pertinent to set out the facts as narrated in the said judgment i.e. Bar Council of Delhi (supra). The previous Bar Council of Delhi was constituted on 31.3.1998 for a five year term end.ing on 313.2b03. On 13.1.2003, with a view to hold the elections [o the next Bar Council of Delhi, the present Bar Council of Dethi wrote a letter to the Bar Council of India asking for extension under Section 8 of the Advocates Act, 1961 to enatrle ir ro cornplete the electoral process. The Bar Council of lndia on 23.2.2003 held a meeting in this rcgwd and passed a resolution extendiug the time of the Bar Council of Delhi by another six months with effec| from I-4.2003. Itt other words, the terrn of the Bar Council of Delhi was extended up to 30.g.2003. The faclum of holding of the rneeting and the passing of the said resolution was colnmunicated to the Bar Council of Delhi by a letter dated 4.3.2003. 5. In the meanwhile , on ?5.1.2001, the Bar Council of Delhi had issued a norification notifying that all Advocates on the State Roll of the State v cw652il2003 Pctge no. 5 of79 4. 1\ t"-.l Bar Council of Delhi would be entitled to vote if their narnes appeared on the electoral roll to be prepared for the forthcoming election and that the schedule would be notified separately. In accordance with Rules 2 and 3 of Chapcer I (Part-[l) of the Bar Council of India Rules, it was indicated thu all Advocates were required to furnish a declaration to the effect that they had not incurred any disqualificarion refered to in Clauses (a) to (i) of Rule 2 and it also rnade it clear that the declaration forms were available in the office of the Bar Council of Deltri as also at the places of the various Bar Associations of Delhi. It also made it clear that ttre last date for acceptance of such declarations was 20.32003 and it indicared that if the declarations were not received by that date the name of the Advocue would not be includedin the electoral roll under prepaJation. The last date for submission of these declarations was extended on 27.,4.2003 upto L9.5.2O03. Thousands of Advocates reqponded to this notification and submitted their declarations. On ttre basis of this, the Bar Council of Delhi prepared the preliminary elecroral ro11 on 29.5.2003 and issued letters [o the Bar Associations as well as the Bar Council of lndia witlt regard to the sarrrc. The Bar Associations were also requested to put up the notice dated 29.5.2OA3 on their notice boards so tha[ all Advocates were inforrned. about the preliminary elecforal roll. The notice that was required to be brought to the knowledge of all the Advocates was as under: ..NOTICE In terms of Rule aQ) ot Chapter-I, Parrlll of the Bar Council of lndia Rules, the preliminary elec[oral ro11 containing the names of all Advocates required to be included under these rules for the forthcoming elections of the Members of Bar Council of Delhi is V cw652il2003 Pnge na 6 of79 , 1T beingputupandnotifiedtoalltheAdvocates.Therelevant. floppiesoftlrerollaresenttovariousBarAssociationsofDelhifor furthernotificatiorr.Advocat'esrnaychecktheirnarnes,addresses, etc. in the said ti*iaJmistake' if any' may be got corected before rhe final roll- IssuedandputuponthenociceboardoftheBarCouncilon2g'h May,2OO3- S'd/- Surya Prakash Iftaui HonY' SectetarY" 6.on12.6.2003,tlreBarCouncilofDelhiwlotealettertotheBar council of India informing it regarding the trotices and the invitation of declarations as well as the preparation of the preliminary electoral ro11' ft' furrher i'formed *re Bar council of rndia thar rhe final rolr wourdbe published in aacordance with the Rules and that ShIi S'K Mendiratta' Consultant to the chief Election commission of India who was also associated with the Bar council of Delhi had been appointed as Reurning officer for the forthcoming election. 7.onL7.7.2003'afterobjectionsetc.wlrichhad"beenreceivedinthe meanwhilehadbeent'akencateof'thefinalelectoralrollwaspublishedarrdthe following notice was issued:- .}.IOTICE lc is hereby norified rhat Bar council of Delhi has pre,pared final electoral ro11 containing the nu*"* of all the Advocates required to beincludedunder[herulesconrainedinChapter-l,Part-lllofBar Council of lndia Rules' .t '4 cw652il200i Page no.7 of79 t 11 This notice is being published in terms of Rule 5 of Chaptef-I' PaIl: Ill of Bar Council of India Rules. Necessary intimarion of the said publication is also being sent to Bar Associations for further publication in terms of this rule. SiU. Surya Prakash Khatri HonY- Sectetary-" 8. Ttrereafter,on 28.72003, the schedule of election was notified- Nominations were to be subrnitted between 14-8.2003 and 2t-8-2003 (inclusive). Scrutiny was fixed for 22-8.2O03. Withdrawal of candidature could be done by 28.5.2O03 and the list of candidates remaining in the fray was to be notified on 29.8.2003. The date of actual poll was set a[ 19.9-2003. g. on 19.8.2003 the Bar council of India, upon certain lepresentations being made, passed an order in purported exercise of powers under Section 4B-B of the Advocates Act, 1961 and thereby stayed the entire election to the Bar Council of Delhi. The reasons, apparently, were that there were s"ome igegularities in the electoral rolls and that approximately 14,000 persons had been omitted from the electoral roll who were otherwise allegedly eligible to a.7 vote. However, the stay order was short-lived as the Bar Council of India itself vacated the stay on 24.8.2003. As a result of which the election process resumed. ) 10. Because of the schedule of the election was interruption caused in the electoral prrcess, the modified and on 25.8.2003 it was notified that the cw6526/2003 Page no.8 of79 !: t\ nominations would.be acce,pted upto 28.8.2003. Scrutiny would be done on 29.83003. The last date of withdrawal would be 5.9.2003 and the date of poll lrad been fixed for 30.9.2003. 11. In the meanwhile, a writ petition being CWP No. 5200/2003 had been filed by certain persons requesting the Court to issue a direction thar the polling be done at different. yenues on accourlt of the congeslion at the Tees Hazut Court complex. I had orcasion to deal with that petition and I decided tlre matter on 26.8.2O03 wherein I held that no inlerference was called for in the present election although tlre grievances raised by the petitioner were genuine. The matter went up before a Dvision Bench of this Court in LPA No. 610/2003 and the Division Bench, after considering the difficulties that were being faced by the voters and after noting that. the order that they were about to pass was not an interference with the electoral process bul rather a facilitation of the sarre in view of the clictum of the Supreme Court in the case of Election Commission of India v. Ashok Kunut & Others: AIR 2000 SC 2979, direcred rhat rhe polling should be done in two different venues on two differenr dues i.e. 29.9.2003 and30.9-2003 on the basis of the salne electoral roll. The directions that were given are as under:- " Accordingly, we dispose off this appeal wittr the following directions: 1. On 29.9.2003 Polling Arangernent shall be rnade at High Court of Delhi where advocates will be permitted [o exercise their voring righrs. Those who do not exercise their vote oll 29.9.2003 q/ill be perrnitted to exercise their --,41 cw652U2003 Page no. 9 of 79 qf : TJ voting right on 30.9.2003 at Tis Hazwi. 2. The Bar Council shall issue corrigendum to the aforesaid effect and wide publicity shall be given by issuing public notice in the newspaper (s), as well as on the notice boards of all the Bar Associatiotts. Notice would be circulated along with cause list of High Court (and Supreme Court, if possible). At the sarne time it will be the duty of the Bar Council to see that. ou the notice board of the Bar Council, notice to this effect is displayed. 3. The Cornmittee of the following rnernbers is constituted to supervise electicrn process:- (a) Mr. R.ICAnancl, Senior Advocate (b) Mr. K.K.Sud, Additional SolicitorGeneral (c) Mr. Raj Birbal, Senior Advocale (d) Mr. A.S.Cltandhiok, Senior Advocate (e) Mr. H.R.Banga, Advocate. We rnake it clear that the aforesaid chauges in the election scheduled are made, keeping in view ttre grievances of the rnembers of Bar and after heariug them by the Court by rneaus of this order. Direcr Service perrnitted ( Dasti ) sd/- Cldef Justice sd/ september 04, zooy' A'K'sikri' Judge 12- Before giving the aforesaid directions, the Division Bench considered the question of interference with matters relating to elections and in this context considered the decision of the Suprerne Court in the case of Election Commi,ssfutn of India v, Ashok Kumnr (supra). lt would be relevant to note the discussion of the Division Bench on this aspect of the matter as it would have a rnaterial bearing on the decision of the wrir petitions a[ hand. The cv65242003 Page no. l0 of79 1( ,t +':{ Division Bench observed as under:- " We may state at this stage that we are conscious of our limirations in interfering with matters relating to elections. In order to remind us of our limited jurisdiction, Mr. V.P. Singh even drew our atlentiou to the judgment of Apex Court in the case of Election Commission of lndia through Secretary V. Ashok Kumar and others AIR 2000 S.C.zng and particularly para 32 thereof, which reads:- t 32. For convenience sake we would now generally sum up our conclusions by partly reslating what the lwo Constitution Benches have already said and then adding by clarifying what fcrllows therefrom in view of the analysis made by us hereinabove:- 1) lf an electiott, (the term 'election' being widely interpreted so a*s to include all steps and enlire prooeedings commencing from the date of notification of election till the dare of declaration of result) is to be called in question and which questioning may have the effect of interrupting, oilrstructing or protracting the election proceedings in any mannet, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. 2). Any decision sougltt and rendered will not amount to "calling in question an electiott" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. '' 3). Subject to the above, the action taken or orders iszued -i- by Election Commission are open to judicial review on '+ the well-settled pararneters which enable judicial review of decisions of statutory bodies such a.s on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4). Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court lras been sought for merely to correct. or smoolhen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the saflte would be lost or desuoyed or cw652t200J Pctge no. )) of79 * 91 rendered. irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. 5). The Court rnust be very circumspec[ and act with caution while entertaining any eleclion diqpute though not hit by the bar of Article 329(b) but brought to it during the pendency of eleclion proceedings. The Court must guard against any attempt at. rehrding, interrupting, protracting or stalling of the elecLion proceedings. Care has to be ta^ken to see that there is no attempt co utilise the Court's indulgence by filing a petitioll outwardly ittttocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say thu in the very nature of the things the Court would act vrith reluctance and strall not act except. on a clear ild strong case for its intervetttiott having been rnade out by raising the pleas with particula$ and precision and suppofiing the same by necessary material.' We may ar this stage state lhal lhere is no intentiott on our part in interfering with the election process and once ilre election process is set in motion, it should be conducted as scheduled. We are also aware that the election pfocess should be completed by 3O.9.20O3. ln fact what we intend to do does not a.rnount. to "Calling in question an eleclion" bu[ rather it would facilitate the proper completion of the election." Frgm the above it is clear that the very electiou which is the subject matter of the present petitions was being considered by the Division Bench attd the Division Bench categorically held that they had no intentiott to interfere with the electoral process and that once the elecloral process is set in motion it should tre conducted as scheduled. 13. Returning to the facts, the matter did not rest lhere. Certain diqputes arose be[ween certain Members of the Bar Council of Delhi on account t',I ".\. cw652il2003 Page no. l2 of79 i 1a of the fact that on 22.8.2003 the Bar Counsil of Delhi, by a resolution, disqualified the said Shri Adish C. Aggarwala and another from holding office as Menbers of the Bar Council of Delhi on account of the fact ttrar they were deemed to have vacated their office on their failure to attend lhree consecutive meetings under Section 10(B) of the Advocates Act, 1961. A notification to this effect was lrrought out on 26.8.2l03by ttre Governrrent of NCT which was to be published in Delhi Gazette. It was also notified that Shri Adish C. Aggarwala on being deemed to have vacated the office as Member of Bar Council of Delhi had also ceased to be a Member of Bar Council of India and in the vacancy so caused, one S[ui Jatan Singh, Member, Bar Council of Delhi had unanimously been elected as Merrber, Bar Council of lndia in place of Shri Adish C. Aggarwala vrith immediate effect. There is, however, also a letter purportedlyfrom the Bar Council of lndia dated 21.8.2OO3 addressed to the Bar Council of Delhi to the effect that the process of election of the nominee Member of Bar Council of Delhi in rhe Bar Council of lndia was nol valid and as such the election of Shri Jatan Singh cannot be taken cognizance of and that Bar Council of Delhi ought to follow the procedure in this regard- 14. The Resolution dated 22.8.2003 and the Notification of 26.8.2003, inter alia, became the subject matter of yet another writ petition filed by Mr. Adish.C. Aggarwala being CWP 548412003 which is pending before this Court and, accordingly, I refrain from making any comments with regard to the diqputes theriin. While rhe electoral process was in fuIl swing and polling was ;. I cw652il200J Page no. 13 of79 q\ * t I' ,t-j ro be held on 29.9.2$A3 and 30.9.2003 as directed by the Dvision Bench, as aforesaid, Mr. Adish C. Aggarwala acting as Vice Chairman of the Bar Council of India, passed the order dated 20.9.2003 sraying the electoral process once again. The question before me in Bar Council of Delhi (supru) was whether the impugned order dated 20.9.2003 could be sustained in law at all arrd whether this Court in judicial review under Article 226, ought not to set it aside? Afier considering all the argurnents advanced on behalf of the parties, the impugned order dated 2O.9.2O03 was set aside by the judgment dated 25.9-2003 in Bar Council of Delhi (supra). While considerings the propriety of passing tlre order dated 20.9.2003, i[ was observed as under:- Coming now to the rnost important aspect of the a{ "L7. case and that is the propriety of passing such an order. Although, the order has been passed, tnter alia, taking the ground of purported disqualification of the 14,000 volers on arcount of non- furnishing of declaraliotts, it appears to me that this is only an ostensible reason. Had it been a genuine reason, what prevented the Bar Council of India from talcing action earlier. The question that rernains unanswered is, if the Bar Council of India had acted genuinely, then why did it vacate its first slay order which it passed on 19m August, 2003 on the tiery same ground? The reply attempled by the learned counsel for the Bar Council of lndia is that the cornplainant at that tirne had urithdrawn lris complaint. That is a very feeble explanation, if at all. Once a matter is brought [o the notice of the Bar Council of lndia and it has initiated action under Secliou 48-8, whether the complainant. withdraws his cornplainl or not, the inforrnation had reached the Bar Council of India and it ought to have taken or continued to take action in that regard. That it did not do so, could be indicative of the fact that the Bar Council of lndia felt that the complaint was frivolous or had little truth in it. Possibly, other factors weighed with them while vacating the stay earlier granted. It must also be remembered that the elecloral process has chugged along sittce 25.0L.2O03 when the requirement for declarations was first notified- The preliminary electoral ro11 was notified on 29.05.2003. ew652il2003 Page no. I of79 q^0 { r 'r' -Ln; Correction of mistakes etc., could have been done thereafter also. The final ro11 was notified an L7.07.2003. All these processes were within the knowledge of the Bar Council of lndia as w'ell as all the Advocates on the State Bar Roll. Being aware of these circumstances, perhaps, the Bar Council of lndia withdrew the stay of 19.08.2003. 18. Then, again, on [re same facl situation, ano[hel complaint wa.s filed. Mr.Aggarwala who had by then been disqualified" and his matter before ttre Division Bench was pending, exercised jurisdiction purporting to be the Vice Chairman of the Bar Couttcil of India and purportedly actiltg on behalf of the Bar Council of lndia took up the ca-se and issued the impugned stay order on 20.09.2003. It appears that Mr. Aggarwala was irked by the 19. on zln of .,| decision of the Bar Council of Delhi in disqualifytng him as a rnember thereof. Furthermore, whete his very position as Vice-Chairmall of the Bar Council of lndia was itself in question, he ought not to have, uttder rules of propriety, passed such an r:rder.