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

1. These three appeals by the Bar Council of Delhi and the Bar Council of India are from the common judgment of the Delhi High Court allowing three writ petitions filed by the first respondent in each appeal and Others seeking the setting aside of the election of the Bar Council of Delhi held in the year 1978. As the points involved in them are identical they are all being disposed of by this common judgment. We shall proceed to state the facts from the records of Civil Appeal No. 2224 of 1979 in which respondent No. 1 is Shri Surjeet Singh Bhangul. He was a voter as also a candidate for the election wherein he lost. In the writ petition giving rise to Civil Appeal 2225 of 1979 there were three petitioners—two were candidates but Shri D.R. Thakur was an Advocate whose name was not included in the electoral roll although his name occurs in the State roll of Advocates. Shri A.S. Randhawa, respondent No. 1 in Civil Appeal 2226 of 1979 was a person whose name occurred both in the State roll of Advocates as also in the electoral roll. But he was not a candidate2. Surjeet Singh was an Advocate who was a member of the Delhi Bar Council before the impugned election. A proviso was added to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, in the year 1978. In accor-dance with that proviso a copy of the declaration form was sent on 14th June, 1978 to the Advocates whose names found place in the State roll of Advocates asking them to return the declaration form duly filled up and signed within the specified period. A publication to this effect was also made in some newspapers viz. Hindustan Times, Indian Express, Statesman etc. The last extended date for the submission of the declaration forms was 14th Septem-ber, 1978 and the electoral roll was finally published on the 16th September, 1978 excluding the names of about 2,000 Advocates who had failed to submit such declaration forms. On the basis of the electoral roll so prepared, accord-ing to the programme of election, the election of member to the Bar Council of Delhi was held on the 17th November, 1978. The total number of Advo-cates on the Advocates roll was 5,000 and odd out of which the names of about 3,000 and odd only were included in the electoral roll in accordance with the proviso to rule 3(j) of the Election Rules of the Bar Council of Delhi. The results of the election were declared on the 19th November, 1978. The names of the 15 persons who were declared elected were published in the Gazette on the 22nd November, 1978. Thereafter on the 24th of January, 1979 the writ petition was filed in the High Court challenging the whole election by attacking the validity of the proviso of Rule 3(j)3. Apart from the successful candidates the writ petitions were mainly and vigorously contested by the two Bar Councils, namely, the Bar Council of Delhi and the Bar Council of India. The latter seems to have taken keen interest in the matter of contesting the writ petitions because the impugned proviso to Rule 3(j) was introduced in the Election Rules with the approval of the Bar Council of India in accordance with the requirement of Sub-section (3) of Section 15 ofthe Advocates Act, 1961. The High Court has taken the view:(1) ?Lastly, the irresistible conclusion, therefore, is that so far as the qualifications to be possessed by and the conditions to be satisfied by an advocate before being brought on the Electoral Roll are concerned only the Bar Council of India has the competence to make the rules under Section 3(4) and Section 49(1) (a) and the State Bar Council has no power at all to make a rule on this subject.?(2) The plea of estoppel raised against Surjeet Singh was rejected(3) ?Rank injustice has been done to the petitioner because more than 2,000 advocates were wrongfully disqualified from being brought on the Electoral Roll. This has materially affected the result of the election.?(4) ?For the reasons stated above, we hold that Rule 3 (j) of the Bar Council of Delhi Election Rules, 1968, is in excess of the rules making power of the Bar Council of Delhi. Since the action taken by the Bar Council of Delhi to disqualify more than 2,000 advo-cates because of their non-compliance with the proviso to Rule 3(j) has resulted in great prejudice to the petitioner who can justly claim that the bringing on the Electoral Roll of more than 2,000 advocates would have made a considerable difference to his own election and to the election as a whole, we are constrained to set aside the election to the Bar Council of Delhi held on 17th Nov 1978.?

Reasoning:
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.