Case: Babu Varghese  Vs. Bar Council Of Kerala

2. The Bar Council of Kerala, which was constituted underthe Advocates Act, 1961 (for short "the Act") on 28-1-1992, was to last for a term of five years which expired on 27-1-1997. But before the expiry of the term, it approached the Bar Council of India (BCI for short) through its letter dated 31-12-1996 for extension of its term by six months. A reminder for this purpose was also sent on 13-1-19973. On receipt of the reminder from the State Bar Council, a resolution was circulated by BCI to all its 18 members on 13-1-1997 proposing to extend the term for a period of six months. In its meeting held on 8-2-1997, BCI confirmed the resolution on which opinion was obtained from the members by circulation. It was during this period of six months that elections were held and a new State Bar Council for Kerala was elected4. It appears that for holding fresh elections, the preliminary electoral roll was published on 28-12-1996 followed by notice of publication of the final electoral roll on 22-1-1997, which was challenged by one Shri P. G. Chacko, Advocate, by OP No. 1987 of 1997 filed in the High Court on 31-1-1997. The petition was, however, dismissed in limine on 6-2-1997 against which Writ Appeal No. 307 of 1997 was filed before the Division Bench. It further appears that in the meantime, the Kerala Bar Council adopted a resolution on 1-2-1997 to conduct the elections. After the extension of term by the Bar Council of India by its resolution dated 8-2-1997, the process of elections was started and the elections were held with counting of votes being completed on 3-4-1997. The results were declared on the same day, but they were published in the Kerala Gazette on 6-5-1997. It was, at this stage that OP No. 8524 of 1997 was filed on 21-5-1997 in the High Court challenging the elections on the grounds, inter alia, that the term of the Kerala Bar Council having expired on 27-1-1997, it had ceased to have any jurisdiction to conduct the elections. This writ petition as also the writ appeal referred to above, were disposed of by a common judgment passed on 11-12-1997 dismissing the writ petition as also the writ appeal. The High Court has held that the term of the Kerala Bar Council will be treated to have been extended by the Bar Council of India before the expiry of its original term. It is against this judgment that the present appeal has been filed

Reasoning: 19. 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 appeal26. A perusal of this resolution indicates that the extension in the term was granted under the proviso to Section 8-A of the Act. The resolution does not speak of "confirmation" as, indeed, there could hot he any confirmation" as no action on the resolution which was circulated to the 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 on 27-1-199729. 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 13-1-1997 or 14-1-1997 and the 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 (15-1-1997), Mr. Ashok Deb (18-1-1997), Mr. D. V. Patil (25-1-1997) and Mr. Jagannath Patnaik (25-1-1997) 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 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 granted30. We may point it out that the process for extension of the term of the Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applied, it must be shown that all its requirements were fulfilled31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all33. Now, BCI could act in the matter in three ways(a) It could convene its meeting by giving 14 days notice to all its members under Rule I and pass a resolution extending the term of the Kerala Bar Council(b) It could convene the meeting on a short notice under Rule 1 and pass the above resolution(c) It could act under Rule 6 by circulating the resolution to all its members and on obtaining the opinion of the majority, extend the term of the Kerala Bar Council subject to confirmation at the next meeting34. BCI did not adopt the modes available to it under (a) and (b), but invoked the provisions of Rule 6 and adopted the mode indicated at (c). It circulated the resolution to its members proposing extension in the term of the Kerala Bar Council by six months. The opinion of only four of the members was obtained by 27-1-1997 which is the date on which the term of the Kerala Bar Council expired. Since the majority of the members had not expressed their approval by that date in favour of the resolution, no "action" was taken. It was clearly a case of abandonment. The other essential requirements of Rule 6 were, therefore, not complied with. BCI, however, in its regular meeting held on 8-2-1997, passed a resolution extending the term of the Kerala Bar Council by six months under the proviso to Section 8. Once the move initiated under Rule 6 was abandoned and no "action" was taken as the majority opinion had not been obtained by 27-1-1997 nor even thereafter, BCI or the Kerala Bar Council cannot legally feed back upon Rule 6 to contend that the resolution adopted on 8-2-1997 would relate back to the date on which the resolution under Rule 6 was circulatedThis case is clearly distinguishable36. This principle cannot be applied in the instant case. BCI, as pointed out earlier, took no "action" on the basis of the resolution circulated to its members. In fact, it abandoned the whole process and adopted a resolution of extension only at its meeting on 8-2-1997 which would not relate back to the date of circulation as "mere circulation" is not "action" and that too, based on a majority opinion, within the meaning of Rule 6 which was required to be confirmedWe appreciate their effort and add to their research the maxim, "confirmation ones supplet defectus, licet id quod actum est ab initio non value" (confirmation supplies all defects, though that which had been done was not valid at the beginning). But, as pointed out above, it was not a case of "confirmation" as no "action" under Rule 6 was taken. Since the term of the Kerala Bar Council had expired on 27-1-1997 and they had ceased to be members with effect from that date, their term could not be legally revived with retrospective effect by BCI on 8-2-1997 when it adopted the resolution for extension of the term by six months. The Kerala Bar Council had ceased to have any jurisdiction and could not hold fresh elections which could be held only by the Special Committee appointed by BCIThis contention is wholly devoid of merit. The decision of this Court in Bar Council of Delhi v. Surjit Singh (1980 SC 308) is a complete answer to this contention39. In the instant case, it was the question of jurisdiction to hold elections which was agitated in the writ petition. 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 BCI in terms of the provisions contained in Section 8-A which are imperative in character. Since the Kerala Bar Council has 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 election, 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 Council40. 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 8-2-1997, 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.