Case: Bar Council Of Delhi And Anr. Etc Vs. Surjeet Singh And Ors. Etc. Etc

question of estoppel we have already considered it and found that the petition under Art. 226 cannot be disposed on the question of estoppel. As regards delay, it is sufficient to state that it could not be said that the petition was unduly delayed. Apart from it, it is also clear than an election held on the basis of rolls which have not been prepared in accordance with law, the petition cannot be dismissed merely on the ground of delay.? The Madhya Pradesh High Court has taken a similar view in the case of Bhupendra Kumar Jain v. Y.S. Dharmadhikari and Others, AIR 1979, Madhaya Pradesh, 110 wherein it was held that the entire election could be challenged on the basis of certain types of illegalities committed in holding it. 30. Shri Bhoop Singh, an Advocate and a member of the Bar Associa-tion at Chandigarh was a candidate to the Bar Council of Punjab and Haryana. After being unsuccessful he challenged the election by filing a writ petition in the High Court. The Full Bench of the Punjab and Haryana High Court in Bhoop Singh v. Bar Council of Punjab and Haryana through its Secretary and Others, AIR 1977 Punjab and Haryana, 40 dismissed the writ petition on the particular facts of that case. Yet the view expressed at page 43 in para 9 was:?I am extremely doubtful whether the nature of the relief which the petitioner claims here, namely the setting aside of the whole of the election and the ordering of a repoll could be claimed by way of an election petition under Rule 34(1). No provision in the said rule was brought to our notice which in express terms empowers or warrants the setting aside of the whole of the election (in contradistinc-tion to the election of individual candidates) or to direct a repoll. In any case it is well settled that the existence of an alternative remedy is not an absolute legal bar to the issuance of a writ.? 31. Reliance was placed for the appellants upon the decision of this Court in K.K. Shrivastava etc. v. Bhupendra Kumar Jain and Others, AIR 1977 SC 1703 that because of Rule 34(8) of the Delhi Bar Council Election Rules the writ petitions ought to have been held to be not maintainable. It would be noticed from the facts of that case that an election petition had already been filed. About four months later a writ petition was also filed to challenge the election. At page 1704, column 1 Krishna Iyer J., speaking for the Court said:?One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is rrore particularly so where the dispute relates to an election. Still more so where there is a statutorily pres-cribed remedy which almost reads in mandatory terms.? But he added:?While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition.? Finally the view expressed in K.K. Shrivastava?s case is:?There is no foundation whatever for thinking that where the challenge is to an ?entire election? then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Art. 226 may be described as mis-exercise.? 32. We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election than that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is on remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at all. 33. Appellants heavily relied upon an unreported decision of the Calcutta High Court in Suryya Kumar Ray v. The Bar Council of India and Ors., Matter No. 304 of 1976 decided on December 17, 1976. The challenge to the election to the Bar Council of West Bengal was almost on grounds which are similar to those in the present case. The Calcutta High Court upheld the validity of the Rule and the election held on the basis of electoral roll pre-pared in accordance with that Rule and dissented from the view of the Gujarat High Court in Harish Sambhu Prasad v. Bar Council of Gujarat, Special Civil Application Nos. 542 and 551 of 1S69. The learned Judge said with reference to the decision of the Gujarat High Court thus:?It appears to me that this decision will not be of much assistance to the petitioner in the instant case inasmuch the electoral rules which are before me have duly approved by the Bar Council of India itself. Such approval confers upon these rules the authority and sanction of the Bar Council of India and may be deemed to be the rules framed by the Bar Council of India.? The enunciation of the law as made above, in our opinion, is not correct. We have held to the contrary. 34.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is true that the power to make rules conferred by Section 15 is both for the Bar Council of India as also for the Bar Council of a State. But no provision of Section 15 can override the specific provision made in Section 3(4) and Section 49(1)(a) of the Act. Sub-section (1) of Section 15 says; ?A Bar Council may make rules to carry out the purposes of this Chapter? which means Chapter II including Section 3. But the power to prescribe qualifications and conditions entitling an advocate to vote at an election being that of the Bar Council of India Section 15(1) cannot be interpreted to confer power on the State Bar Council to make rules regarding the qualifications and conditions aforesaidThe State Bar Council can frame rules for the preparation and revision of electoral rolls under Section 15(2)(a). That would be in confor-mity with the latter part of Sub-section (4) of Section 3 also. But in the garb of making a rule for the preparation and revision of the electoral rolls it cannot prescribe disqualifications, qualifications or conditions subject to which an advocate whose name occurs in the State roll can find place in the electoral roll resulting in his deprivation of his right to vote at the election. In the instant case under the impugned proviso failure on the part of an advocate to submit the required declaration within the specified time entitles the State Bar Council to exclude his name from the electoral roll. Such a thing was squarely covered by the exclusive power conferred on the Bar Council of India under Sections 3(4) and 49(1) (a) of the Advocates ActThe State Bar Council had no such powerWe, therefore, hold that the impugned proviso to Rule 3(j) to the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2,000 advocates from the said roll was not valid in law. We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition. It was not a case of challenging the preparation of the electoral roll on the factual basis of wrong exclusion of a few names. For the said purpose Rule 4 occurring in Chapter I of the Bar Council of India Rules could come into play. But here, because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated a matter which cannot be put within the narrow limit of the said ruleThe illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a caseThe contesting respondents could not be defeated in their writ petitions on the ground of estoppel or the principle that one cannot approbate or that they were guilty of laches. In the first instance some of the contesting respondents were merely voters. Even Shri Surjeet Singh in his writ petition claimed to be both a candidate and a voter. As a voter he could challenge the election even assuming that as a candidate after being unsuccessful he was estopped from doing so. But to be precise, we are of the opinion that merely because he took part in the election by standing as a candidate or by exercise of his right of franchise he cannot be estopped from challenging the whole election when the election was glaringly illegal and void on the basis of the obnoxious proviso. There is no question of approbation and reprobation at the same time in such a case. A voter could come to the High Court even earlier before the election was held. But merely because he came to challenge the election after it was held it cannot be said that he was guilty of any laches and must be non-suited only on that accountwe are of theview that neither the principle of estoppel nor the principle of approbation and reprobation can be pressed into service in this case18. Inthe instant case the electoral roll was prepared on the basis of a rule which has been found to be void and ultra vires. That being so, even though the contesting respondents came to challenge the election after it was held, they could do so because of the gravity of the infraction of the law in the preparation of the electoral roll. Dani?s case (supra) was followed by the Patna High Court in two decisionsWe may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available, so widely put, may not be quite correct and especially after the recent amendment of Art. 226 of the Constitution. If the alternative remedy fully covers the challenge to the election than that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. But if the nature and the ground of the challenge of the whole election are such that the alternative remedy is on remedy in the eye of law to cover the challenge or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition to challenge the whole election is still available. In the present case we have pointed out above that the Election Tribunal would have found itself incompetent to declare the proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra vires and that being so the alternative remedy provided in Rule 34(8) was no remedy at allThe enunciation of the law as made above, in our opinion, is not correct. We have held to the contraryThere is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ peti-tioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid.