REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6482 OF 2011
(Arising out of SLP (CIVIL) No. 15722 of 2011)
Pratap Chandra Mehta ... Appellant
Versus
State Bar Council of M.P. & Ors. ... Respondents
With
CIVIL APPEAL NO.6483 OF 2011
(Arising out of SLP (CIVIL) No. 16088 of 2011)
Rameshwar Neekhra ... Appellant
Versus
State Bar Council of M.P. & Ors. ... Respondents
J U D G M E N T
Swatanter Kumar J.
1. Leave granted.
2. From the very simple facts of these cases, the following
substantial questions of law and public importance arise for
1
consideration of this Court:
(1) Whether the provisions of Rules 121 and 122-A of the State
Bar Council of Madhya Pradesh Rules (for short, the `M.P.
Rules') are ultra vires Section 15 of the Advocates Act, 1961
(for short, `the Advocates Act'), inter alia for the reason that
there is no nexus between the rule making power of the
State Bar Councils and the powers provided under Section
15(1) or 15(2)(c) of the Advocates Act? Was the delegation
of legislative power under Section 15 of the Advocates Act
excessive, 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?
2
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 provides that the State
Bar Councils can frame/amend the Rules with prior approval of
the Bar Council of India. Section 15(2)(a) of the Advocates Act
read with Part III and IX of the Bar Council of India Rules (for
short, `the Rules') contemplates that election to the State Bar
Council shall be held. In furtherance to this legislative mandate,
the election to the State Bar Council were held in the year 2008
and Mr. Rameshwar Neekhra was elected as Member and then
Chairman of the State Bar Council by its members on 31st
3
August, 2008. After the expiry of 2= years, fresh elections were
held on 12th February, 2011 and the said Mr. Neekhra was again
elected as member, and then the Chairman of the State Bar
Council by its members. He is stated to have secured 21 votes,
out of a total 25 votes of the Members of the State Bar Council.
Mr. Adarsh Muni Trivedi was elected as Vice-Chairman of the
State Bar Council.
5. At the very threshold of the 15th Meeting of the General
Body of the State Bar Council held on 27th March, 2011 at
Jabalpur, a number of Members submitted two requisitions: one
stated that due to lack of confidence in the Chairman and Vice-
Chairman, a `no confidence motion' should be issued; and the
second requisition stated that, since the election of the
Committees for the second term was not as per the constitution,
re-election for the Committees may be conducted. They
requested the State Bar Council to call a special meeting to
consider these requisitions. It is also recorded in these Minutes
that the Chairman and Vice-Chairman had offered their
resignation, subject to withdrawal of the requisition of `no
confidence motion'. There was a long discussion, whereafter it
4
was resolved that the agenda of the special meeting was to be
circulated on the same day i.e. 27th March, 2011 by registered
post. Copy of the resolution passed and the requisition motion
of `no confidence', would be circulated to all Hon'ble Members of
the State Bar Council i.e. who were present and those who were
not present. These Minutes, annexed as `P-10' (colly) to the
petition, read as under:
"Before the start of the meeting Hon'ble
Members S/s Vinod Kumar Bhardwaj,
Kuldeep Bhargava, Ghanshyam Singh,
Prem Singh Bhadouria, Shivendra
Upadhyay, Champa Lal Yadav, Dinesh
Narayan Pathak, Khalid Noor Fakhruddin,
Mrigendra Singh Baghel, Jai Prakash
Mishra, Prabal Pratap Singh Solanki, 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, Vice-
Chairman and Treasurer. For another
5
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 Vice-
Chairman 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
Badhouria, Champa Lal Yadav, Pratap
Mehta, Vijay Kumar Choudhary,
Ghanshyam Singh, Z.A. Khan, Kuldeep
Bhargava, Khalid Noor Fakhruddin, Rajesh
Pandey Mrigendra Singh Bhagel, Prabal
Pratap Singh Solanki expressed their views.
There had been divergent views in respect
of withdrawal of no confidence motion as
well as conditional resignation offered by
Hon'ble Chairman, Vice-Chairman and
Treasurer. As such it is resolved to hold a
special meeting on 16th April, 2011 at
Jabalpur from 12.30P.M. onwards in term
of Rule 122(A) & (B) of State Bar Council of
Madhya Pradesh Rules. It is resolved that
agenda of the meeting be circulated today
itself by registered post and copy of the
resolution passed along with requisition
motion of no confidence be circulated to all
Hon'ble Members of the Council who are
present and to them also who are not
present today."
6. It appears from the record that in terms of the above
minutes of the 15th Meeting of the General Body of the State Bar
6
Council held on 27th March, 2011, the notices of the 16th Meeting
were also issued and circulated. The 16th Meeting of the General
Body of the State Bar Council was decided to be held on 16th
April, 2011 in the Meeting dated 27th March, 2011 itself.
7. After issuing the notice in accordance with the M.P.
Rules, a meeting of the State Bar Council was held on 16th April,
2011. At this meeting, the `no confidence motion' was moved by
13 members of the State Bar Council, in terms of Rule 122-A of
the M.P. Rules, against both the Chairman and the Vice-
Chairman. The parties to the present appeals are at some
variance as to the manner, knowledge and the decision with
which the meeting was closed. The respondents herein have
contended that in this meeting, there was actual discussion of
the `no confidence motion' moved by some of the members of the
State Bar Council, which was a part of the formal agenda notice
issued by the Secretary of the State Bar Council. In the Minutes
placed on record as Annexure R-16/6, it has been stated that
item No.2 of the agenda, which was to consider the
requisitioning of `no confidence motion', was actually considered
and the question arose as to whether Shri Rameshwar Neekhra,
7
the Chairman could still preside over the meeting. There was
some discussion on that issue, whereafter the Chairman along
with the Secretary is stated to have left the meeting on 16th April
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
8
Solanki has asked Shri Rameshwar
Neekhra, Chairman to kindly decide that
the Members are ready to participate in the
No Confidence Motion but at that time
Hon'ble Chairman quit the Meeting Hall
along with his followers and also took away
the Secretary saying that we are not going
to participate in the No Confidence Motion.
At this Juncture Shri Vinod Kumar
Bhardwaj, Hon'ble Member State Bar
Council of Madhya Pradesh requested Shri
R.D. Jain, Hon'ble Advocate General and Ex
Official Member who remained present from
the very beginning of the meeting and has
watched all the proceedings & discussions
which took place by the Hon'ble Members
Shri Bhardwaj requested the Hon'ble
Advocate General Shri R.D. Jain to preside
over the meeting which was seconded by all
the members present as following:
1. S/Shri Vinod Kumar Bhardwaj, (2)
Kuldeep Bhargava (3) Jai Prakash
Mishra (4) Shivendra Upadhyay (5)
Ms. Rashmi Ritu Jain (6) Dinesh
Narayan Pathak (7) Prem Singh
Bhadouria (8) Champa Lal Yadav (9)
Ghanshyam Singh (10) Mrigendra
Singh Baghel (11) Prabal Pratap Singh
Solanki (12) Khalid Noor Fakhruddin
(13) Shri Ghanshyam Singh, Hon'ble
Members.
Shri R.D. Jain, Hon'ble Adovate
General and Ex Officio Member stated that
the meeting need not be adjourned and the
Hon'ble Advocate General also read out the
part of the order of Hon'ble High Court in
WP No. 6372/11.
9
Item No. 2 Resolution No. 258/GB/2011
The Item No. 2 of the agenda was read over.
The members are asked to give their vote
for or against by raising their hands.
Since the majority of the Members of the
Council have supported the motion by
raising hands it stands passed under Rule
122(A).
The following Members are present in the
house as per below:
S/Shri (1) Vinod Kumar Bhardwaj (2) Jai
Prakash Mishra (3) Shivendra Upadhyay (4)
Ms. Rashmi Ritu Jain (5) Kuldeep Bhargava
(6) Dinesh Narayan Pathak (7) Prem Singh
Bhadouria (8) Champa Lal Yadav (9)
Ghanshyam Singh (10) Mrigendra Singh
Baghel (11) Khalid Noor Fakhruddin (12)
Prabal Pratap Singh Solanki (13) Bal
Krishna Upadhyay have supported the
motion and hence the motion stands
passed by a majority of all the members
present and the voting under Rule 122-A."
8. We may notice that two sets of minutes recorded
differently for the same meeting have also been placed on record
as Annexure P-10 (colly) and R-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
10
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 listed for hearing on 25th
April, 2011. In the meanwhile, another writ petition was also
filed being Writ Petition No. 6628 of 2011 and the High Court in
its final judgment observed that, in both the petitions same
relief, on virtually the same grounds, had been claimed. The
11
High Court had framed two basic points for decision:
Whether Rule 122-A, as framed under Section 15 of the
1.
Advocates Act was, ultra vires; and
Whether the second Resolution, dated 16th April, 2011 was
2.
invalid?
11. Vide its detailed judgment dated 20th May, 2011, the
High Court decided both the issues against the petitioners and
dismissed the writ petitions while vacating the interim order.
The High Court held as under:
"22. On point (E) of para 16 above, it was
urged from the petitioner's side that if
Section 15(1) of the Act is taken to be the
source of power for framing Rules
prescribing the tenure for an elected
chairman, and prescribing curtailment
such tenure through a no-confidence
motion, then such delegation to
subordinate legislation must be struck
down as it confers wholly unguided and
thus unfettered powers upon the delegate
subordinate legislative Authority. In reply
it could not be shown that there is any
express guidance or that any policy
guidance can be deciphered from all or any
of the provisions of the Act or from the
scheme of the Act, regarding what tenure, if
any, should be permitted, and if so under
what circumstances and by what process,
subject to what restrictions.
12
23. A totally misplaced reliance was
placed upon the case of V. Sudheer
v. Bar Council of India [(1993) 3
SCC 176] which merely says that
the State Bar Council under Section
24(1)(e) of the Act could have
prescribed pre-enrolment training,
but the Bar Council of India could
not do so under Section 49 of the
Act. `Hukam Chand v. Union of
India [(1972) 2 SCC 601] was also
unnecessarily cited. It deals with
power to frame a rule with
retrospective effect and has no
relevance here. Two decision of the
Supreme Court in the case of
`Vasanlal Maganbhai vs. State of
Bombay [AIR 1961 4(para) and in
the case of `Agricultural Market
Committee vs. Shalimar Chemical
Works' reported in [(1997) 5 SCC
516 (para 26) were cited from the
petitioners side, both laying down
the same principle, which needs to
be discussed. The relevant part of
the latter (1997) decision reads "The
principle which 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
13
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 the petitioners. The decisions of
the Delhi and Kerala High Court
reported respectively in AIR 1975 Del
200 `Bar Council of Delhi Vs. Bar
Council of Kerala Vs.....' were read out
before us. It was pointed out that in
the Delhi case common law was used
to justify an implied power of removal
of the elected Chairman on the ground
that the statute had not changed the
common law. The correctness of the
law laid down in that decision was
assailed by placing reliance on AIR
1954 SC 210 `Jagan Nath Vs. Jaswant
Singh', (1982) 1 SCC 691 `Jyoti Basu
Vs. Debi Ghoshal', (1984)1SCC 91
`Arun Kumar Bose Vs. Mohd. Furkan
14
Ansari ` and (1992) 4 SCC 80 `Mohan
Lal Tripathi Vs. District Magistrate'.
And it was argued that concepts
familiar to common law and equity
must remain strangers to Election Law
unless statutorily embodied. In
respect of the Kerala High Court
decision it was argued that the Court
fell in error in reading the power of
removal as `incidental'. It is not
necessary to go into these arguments
because as stated above the Rule
regarding removal is not justified
under Section 15(2) but under Section
15(1) of the Act, which is of wide
amplitude and there is no reason to
restrict the scope of Rule making
power under Section 15(1) so as to
exclude (i) prescription of tenure, or (ii)
removal on a vote of no-confidence
from the ambit of the Rule making
power conferred by that provision.
28. Before moving on to the next issue, we
may refer to a decision cited by the
Respondent no.6 (of W.P. No. 6628).
In this interesting decision by a Full
Bench of Gujarat High Court in the
case of `N.B. Posia Vs. Director'
reported in AIR 2002 Guj 348 (PB)
(relevant paragraphs are 46 and 66 of
that law report) it has been held that
though there was no provision in the
Act or statutory Rules for removal of
an elected Chairman of the
Committee, yet (i) the words "ceasing
to hold office for any reason" include
the removal by a no-confidence motion
and (ii) if a holder of an office if elected
by a simple majority, he can be
15
removed (through no-confidence
motion) by a simple majority (even in
absence of a statutory provision for
such removal). With utmost respect to
the said decision, we find ourselves
totally unable to subscribe to either of
the two propositions therein."
12. It is the legality and correctness of the above reasoning
that has been questioned before us in the present appeals. 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
16
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 in all courts
including the Supreme Court. Therefore, this is a legislation
which deals with persons entitled to practise before the Supreme
Court. In the case of O.N. Mohindroo vs. Bar Council of Delhi &
Ors. [AIR 1968 SC 888] this Court held that:
"(10) The object of the Act is thus to
constitute one common Bar for the whole
country and to provide machinery for its
regulated functioning. Since the Act sets up
one Bar, autonomous in its character, the
Bar Councils set up thereunder have been
entrusted with the power to regulate the
working of the profession and to prescribe
rules of professional conduct and etiquette,
and the power to punish those who commit
breach of such rules. The power of
punishment is entrusted to the disciplinary
committees ensuring a trial of an advocate
by his peers. Section 35, 36 and 37 lay
down the procedure for trying complaints,
punishment and an appeal to the Bar
Council of India from the orders passed by
the State Bar Councils. As an additional
17
remedy S. 38 provides a further appeal to
the Supreme Court. Though the Act relates
to the legal practitioners, in its pith and
substance it is an enactment which
concerns itself with the qualifications,
enrollment, right to practise and discipline
of the advocates. As provided by the Act
once a person is enrolled by any one of the
State Bar Councils, he becomes entitled to
practise in all courts including the Supreme
Court. As aforesaid, the Act creates one
common Bar, all its members being of one
class, namely, advocates. Since all those
who have been enrolled have a right to
practise in the Supreme Court and the High
Courts, the Act is a piece of legislation
which deals with persons entitled to
practise before the Supreme Court and the
High Courts. Therefore the Act must be
held to fall within entries 77 and 78 of List
I. As the power of legislation relating to
those entitled to practise in the Supreme
Court and the High Courts is carved out
from the general power to legislate in
relation to legal and other professions in
entry 26 of List III, it is an error to say, as
the High Court did, that the Act is a
composite legislation partly falling under
entries 77 and 78 of List I and partly under
entry 26 of List III."
14. If one looks into the statement of objects and reasons for
enacting the Advocates Act, it becomes clear that the Act seeks
to implement the recommendations of the All India Bar
Committee, made in the year 1953, after taking into account the
18
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 provisions of the
Advocates Act.
19
`Bar Council' means a Bar Council constituted under the
Advocates Act.
On the other hand, the `Bar Council of India' means the
Bar Council constituted under Section 4 for the territories to
which the Advocates Act extends.
The `State Bar Council' means a Bar Council constituted
under Section 3 of the Advocates Act.
The expression `prescribed for the purposes of this Act'
means prescribed by the rules made under the Advocates Act.
16. The constitution of State Bar Council is provided under
Section 3 of the Advocates Act and as would be evident, this
Section has been subjected to numerous amendments made
from time to time. The constitution of the State Bar Council has
been spelt out in Section 3(2); and Section 3(3) of the Advocates
Act which provides that there shall be a Chairman and a Vice-
Chairman of each State Bar Council, elected by the members, in
such manner as may be prescribed. The Advocates Act, inter
20
alia, imposes certain restrictions and the deeming provisions in
terms of Sub-sections (3) and (3A) of Section 3 of the Advocates
Act, that every person holding office as Chairman or as Vice-
Chairman of any State Bar Council immediately before the
commencement of the Advocates (Amendment) Act, 1977, shall,
on such commencement, cease to hold office as the Chairman or
Vice-Chairman, as the case may be, but, would continue to
carry on the duties of his office until the persons elected as
Chairman or Vice-Chairman, as the case may be, in accordance
with the provisions of the Advocates Act, assume charge.
17. Section 3(4) of the Advocates Act requires that an
advocate shall be disqualified from voting at an election under
sub-section (2) or for being chosen as a member of the State Bar
Council, unless he possesses such qualifications or satisfies
such conditions as are prescribed in this behalf.
18. All elections to the State Bar Council are to be held in
accordance with the provisions of the Act. Similarly, under
Section 4 of the Advocates Act, Bar Council of India shall consist
of the persons stated under the Advocates Act. The provisions of
21
the Advocates Act dealing with State Bar Councils under Section
3, are substantially similar to the provisions with respect to the
Bar Council of India, under Section 4 of the Advocates Act. Every
Bar Council shall be a body corporate having perpetual
succession and a 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
22
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) are equivalent to Sections 7(l)
and 7(m) of the Advocates Act.
22. The election to the Bar Councils is for a specified tenure,
which is stated under Section 8 of the Advocates Act. The term
of the office of an elected member of a State Bar Council, other
than an elected member thereof referred to in Section 54, shall
be for five years from the date of publication of the results. The
Bar Council of India has been vested with the power of extending
this period, for reasons to be recorded, and only in the event of
the State Bar Council failing to provide for the election of its
members before the expiry of its terms. This power is also
regulated by an upper limitation of 6 months in such grant of
extension.
23. Section 14 of the Advocates Act mandates that no
23
election of a member to a Bar Council shall be called in question
on the ground merely that due notice thereof has not been given
to any person entitled to vote at the elections, if notice of the
date has, not less than thirty days before that date, been
published in the Official Gazette.
24. Section 15 of the Advocates Act is one of the most
relevant provisions, which needs to be examined by this Court,
as according to the contention raised by the appellants, Rule
122-A is ultra vires Section 15 of the Advocates Act. Section 15
of the Advocates Act gives power to the Bar Council to make
rules to carry out the purposes of `this Chapter'. `This Chapter'
means Chapter II of the Advocates Act. Inter alia, this Chapter
deals with constitution, election and functions of the Bar
Councils. It will be useful to refer to the relevant parts of the
provisions of Section 15 of Chapter II of the Advocates Act,
which are as under:
"15. Power to make rules,- (1) A Bar
Council may make rules to carry out the
purposes of this chapter.
(2) In particular, and without prejudice to
the generality of the foregoing power, such
rules may provide for--
24
a. (Note:- Subs. by Act 60 of 1973, sec.12)
the election of members of the Bar Council
by secret ballot including the conditions
subject to which persons can exercise the
right to vote by postal ballot , the
preparation and revision of electoral rolls
and the manner in which the results of
elections shall be published];
b. xxx xxx
c. (Note:- Clause (c) ins. by Act 38 of 1977,
sec. 5) the manner of election of the
Chairman and the Vice-Chairman of the
Bar council];
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
25
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
prescribed. However, the rules framed would not come into force
or take effect unless they have been approved by the Chief
Justice of India and if the rules relate to Section 49(1)(e) of the
Advocates Act they will not take effect unless they have been
approved by the Central Government. Under Section 49A of the
Advocates Act, the Central Government is vested with the
general power of making rules and these rules could be framed
for the whole of India or for all or any of the Bar councils. In the
event of conflicts between the rules framed by the Central
Government and the Bar Councils, the rules framed by the
Central Government shall have precedence in terms of Section
49A(4) of the Advocates Act. We need not elaborate upon other
26
provisions of the Advocates Act at this stage.
27. Now let us notice the relevant provisions in the Bar
Council of India Rules (in short, the `Rules') which were enacted
in exercise of its rule making powers under the Advocates Act.
This power of the Bar Council of India originates from clauses
(c), (d), (e), (f) and (g) of Sub-section (2) of Section 15 read with
Sections 4 and 10B of the Advocates Act.
28. Chapter I of Part II of the Rules deals with the matters
relating to the Bar Council of India and particularly to the
election of members of the Council. The election of the members
of the Bar Council of India has to be conducted in terms of Rules
1 to 10 of the Rules. Rule 11 of the Rules makes it mandatory
that a member of the Bar Council of India, who is elected as
Chairman or Vice-Chairman or member of any Committee of the
Council, shall cease to hold office as such Chairman or Vice-
Chairman or member of Committee, on the expiry of his term as
a member of the Bar Council of India. A restriction is further
sought to be placed upon the right of the person to resign. A
member can resign from the membership of the Bar Council of
27
India only on the grounds which are genuine and not for the
purposes of sharing of terms fixed by the statute. Under Rule
12(2) of the Rules, the Chairman or the Vice-Chairman shall
hold the office for a period of two years or until his term of office
as member of the Bar Council of India ceases whichever is
earlier. The election for the post of Chairman and Vice-Chairman
has to be held at the meeting of the Bar Council of India and in
accordance with the procedure prescribed under Rule 12 of the
Rules. 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
28
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 least one month.
The Chairman or the Vice-Chairman shall
have the right to vote, speak or take part in
the proceeding of the meeting."
29. The Committees excluding the Disciplinary Committees
are to be constituted by the Bar Council of India under Chapter
II. The framers of the Rules have taken a precaution that the
decisions of the Bar Council of India should not be changed
without reason and in violation of the relevant provisions. Rule
9 of Chapter II of the Rules provides that the decision on any
matter shall be by majority and, in the case of equality of votes,
the Chairman of the meeting shall have a second or a casting
vote. Rule 10 of the Rules puts a restriction on change of
decisions. According to this Rule, no matter once decided, shall
be re-considered for a period of 3 months unless the Bar Council
29
of India by a two-third majority of the members present so
permits. Under Rule 12 of the same Chapter, in the absence of
the Chairman or the Vice-Chairman member at any meeting, a
member chosen by the members of the Council shall preside at
the meeting.
30. We have noticed these Rules to make a comparative
study of the relevant M.P. Rules, to examine their impact in
correct perspective. In exercise of the powers conferred by
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,
with the approval of the Bar Council of India as required under
Sections 15(3) and 28(3) of the Advocates Act, has framed the
M.P. Rules. The M.P. Rules deal with different facets of
functioning of the State Bar Council. It is not necessary for us
to deal with all the aspects of the rules governing the functioning
of the State Bar Council. The State Bar Council shall elect the
members of each Committee in its Meeting as per Rule 1 of
Chapter VI. In terms of Rule 3 of the same Chapter, the election
to the Committee shall be conducted by the Chairman of the
State Bar Council and in case the Chairman of the State Bar
30
Council is a candidate for being elected as a member of any
Committee, the State Bar Council, before proceeding with the
elections to such Committee, shall appoint any one of its
members who is not a candidate for election to such committee,
to conduct the election to the said Committee and to declare the
results under his signature.
31. Under Chapter XVI, Rule 110 of the M.P. Rules, it 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
31
Bar Council has to elect a Chairman and a Vice-Chairman from
amongst its members for 2= 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 of the Bar Council of India had been obtained. It needs
to be noticed that all the members of the State Bar Council had
attended the meeting and were signatory to this Resolution.
However, Rule 121, which was amended vide Resolution No. 631
of 1998 dated 24th January, 1998 is also stated to have received
approval from the Bar Council of India. However, no notification
in that regard is stated to have been issued as yet. There is
some controversy whether Rule 121 under the same Chapter
was amended and whether it attained the approval of the Bar
Council of India. This question is not very material for us to
examine inasmuch as under both Rules 118 and 121, the period
32
of term of the elected Chairman and the Vice-Chairman is stated
to be two years or till they cease to be members whichever is
earlier. Besides the above facts, Section 15(3) of the Advocates
Act requires that the rules framed by the State Bar Council
should be approved by the Bar Council of India. It nowhere
requires issuance of any notification which, in some cases, can
be a part of legislative provisions. In view of the above factual
matrix, it has to be held that this controversy does not require
any further consideration by the Court.
34. The provisions with which we are primarily concerned in
the present case are contained in Chapter XVIII of the M.P.
Rules. They read as under:
"118. The Bar Council shall elect a
Chairman and a Vice-Chairman from
amongst its members for two years.
119. Any candidate for the office of
Chairman or Vice-Chairman shall be
proposed by one member and seconded by
another member.
120. The election of Chairman or Vice-
Chairman unless unanimously agreed upon
by all the members present at the meeting,
shall be by show of the hands. In case of
the tie, the election shall be decided by
drawing of lots.
33
121. The Chairman, the Vice-Chairman
and the Treasurer of the Council, shall hold
office for a period of two years or till they
cease to be members whichever is earlier.
122-A The Chairman, Vice-Chairman or the
Treasurer of the Council could be removed
by a vote of no confidence passed by
majority of the members, present and
voting in a meeting of the Council especially
called for the purpose, provided that at
least 7 members of the Council have signed
the requisition for holding such a special
meeting, and such meeting shall be called
within a period of 21 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
34
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 of members
constituting the State Bar Council for the time being, it results
in the removal of the Chairman, Vice-Chairman or any other
office bearer. Upon passing of such a resolution, the person
shall cease to hold the office forthwith. Every democratic
process is based upon the freedom to elect and freedom to
remove, in accordance with law. Rule 122-A of the M.P. Rules
contemplates moving of a `no confidence motion' and upon such
motion being passed by majority of the members, present and
voting, the office bearer against whom such a motion is moved
shall be liable to be removed from such office. For successful
application of Rule 122-A, the law requires the following minimal
conditions to be satisfied:
1. At least 7 members have signed the requisition calling for a
35
meeting of the Council;
2. Such meeting shall be called within 21 days from the date
of receipt of requisition by the Secretary.
3. Such `no confidence motion' has to be passed by a majority
of the members present and voting, in the meeting of the
Council, especially called for this purpose.
36. Once the above conditions are satisfied `no confidence
motion' can be passed and upon passing of such motion, the
person is liable to be removed from the office which he held in
the State Bar Council prior to the holding of such meeting. The
spirit behind this provision is that where a person is elected by
following a process of election to the post of an office in the State
Bar Council, he could be removed by following the prescribed
procedure in accordance with the Rules.
37. This Court in the case of Mohan Lal Tripathi v. District
Magistrate [(1992) 4 SCC 80], examined the validity of a `no
confidence motion' passed by the Board on 28th March, 1990
under Section 87-A of the U.P. Municipalities Act against the
President who was directly elected by the electorate under
Section 43(2) of the Act. The basic argument raised was that he
36
was sought to be removed or recalled by the other elected
members, which was a smaller and different body than the one
that had elected him and, thus, was violative of the democratic
mandate. While rejecting this argument, the Court held as
under:
"2. Democracy is a concept, a political
philosophy, an ideal practised by many
nations culturally advanced and politically
mature by resorting to governance by
representatives of the people elected
directly or 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
37
purpose by a specified number of citizens'.
It was urged that `recall gives dissatisfied
electors the right to propose between
elections that their representatives be
removed and replaced by another more in
accordance with popular will' therefore the
appellant could have been recalled by the
same body, namely, the people who elected
him. Urged Shri Sunil Gupta, learned
counsel, that since, `A referendum involves
a decision by the electorate without the
intermediary of representatives and,
therefore, exhibits form of direct democracy'
the removal of the appellant by a vote of no-
confidence by the Board which did not elect
him was subversive of basic concept of
democracy. Academically the submission
appeared attractive but applied as a matter
of law it appears to have little merit. None
of the political theorists, on whom reliance
was placed, have gone to suggest that an
elected representative can be recalled, only,
by the persons or body that elected him.
Recall expresses the idea that a "public
officer is indeed a `servant of the people'
and can therefore be dismissed by them".
In modern political set up direct popular
check by recall of elected representative has
been universally acknowledged in any
civilised system. Efficacy of such a device
can hardly admit of any doubt. But how it
should be initiated, what should be the
procedure, who should exercise it within
ambit of constitutionally permissible limits
falls in the domain of legislative power.
`Under a constitutional provision
authorizing municipalities of a certain
population to frame a charter for their own
government consistent with and subject to
the Constitution and laws of the State, and
38
a statutory provision that in certain
municipalities the Mayor and members of
the municipal council shall be elected at
the time, in the manner, and for the term
prescribed in the charter, a municipal
corporation has authority to enact a recall
provision'. Therefore, the validity or
otherwise of a no-confidence motion for
removal of a President, would have to be
examined on applicability of statutory
provision and not on political philosophy.
The Municipality Act provides in detail the
provisions for election of President, his
qualification, resignation, removal etc.
Constitutional validity of these provisions
was not challenged, and rightly, as they do
not militate, either, against the concept of
democracy or the method of electing or
removing the representatives. The recall of
an elected representative therefore, so long
it is in accordance with law cannot 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
39
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 extracted. But even
otherwise there appears no merit in the
submission and for that purpose it appears
appropriate to narrate, in brief, the history
of these sections. When Act 2 of 1916 was
enacted it provided for election of Chairman
of the Board by a special resolution passed
by the members under Section 43(1) of the
Act. Sub-section (2) provided for ex-officio
nomination by the Government of the
Chairman in some municipalities. Section
48 empowered the Government to remove a
Chairman after hearing and giving reasons.
It did not contain any provision for removal
of a Chairman by a vote of no-confidence.
Ten years later Act 2 of 1926 brought about
a very significant change in the Act by
introducing Section 47-A and conferring
power of removal of Chairman, other than
ex-officio, by the members of the Board by
expressing a vote of no-confidence against
him. Section 48, too, was amended and a
Chairman who failed to resign after a vote
of no-confidence was liable to be removed,
by the State Government. Thus it was as far
back as 1926 that removal of the Chairman
by elected representative found its way in
the Act. In 1933 by Act No. 9 another
important Section 87-A was added
providing for tabling of no-confidence
40
motion against the Chairman. In 1942
Section 47-A was omitted as the provision
for resigning by the Chairman was provided
for in Section 87-A itself. And hearing of the
Chairman by State Government under
Section 48 before removal in consequence
of vote of no-confidence was deleted. Act 7
of 1949 introduced major changes in
Sections 43 and 47-A, of the Act. Section
43 was substituted altogether and, it for the
first time, provided for election of the
Chairman simultaneously with members of
the Board by the electorate directly. Section
47-A which had been omitted by Act 13 of
1942 was reintroduced and a Chairman
against whom a vote of no-confidence was
passed was required to resign. In the
alternative he was permitted to recommend
to State Government that the Board itself
may be dissolved. And if the State
Government agreed with the President then
it was the Board which was to go. The
intention apparently was to keep a check
on the power of Board, too, while taking
action against the Chairman as if it was
found that exercise of power by the Board
was arbitrary and President was being
removed for extraneous reasons then the
Government could interfere and direct
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
41
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.
10. Even the strained construction of the
proviso does not result in coming to the
conclusion that there was a legislative
omission of not providing for removal, by
vote of no-confidence of a President elected
by the electors. Merely because the proviso
to Section 47-A prevents a Board from
holding election of the President in those
cases where he had made representation to
the Government to supersede the Board, it
cannot be stretched to mean that sub-
section (a) of Section 47-A cannot apply to a
President elected under Section 43(2). The
proviso is intended as check to prevent the
Board from taking any step which may
render the representation made by the
President infructuous as if the Government
accepts the representation then it is the
Board under sub-section (3) which stands
dissolved and not the President. That
situation may not arise in election of a
42
President under Section 43(2) as election of
President by electors cannot take place
immediately, therefore, there is no danger
involved, of putting at naught the
representation made by the President to
State Government, as is in the case of
Section 43(1). The proviso cannot be so
construed as to nullify the operation of
Section 47 2DA to a President elected by
electorate. A proviso or an exception is
incapable of controlling the operation of
principal clause. Result of such
construction would lead to absurdity as if
Section 47-A is held not to apply to
President elected under Section 43(2) he
will not be liable to resign even though a
vote of no-confidence has been passed
against him under Section 87-A and it has
been communicated to him. Merely because
the proviso cannot apply to one of the
situations that may arise cannot be reason
to hold that Section 47-A(1)(a) did not apply
to President elected by the electorate. `If the
language of the enacted part of the statute
does not contain provision which are said
to occur on it, you cannot derive those
provisions by implication from a proviso'.
Proviso could be used for adopting a
construction as suggested either when
there was some doubt about the scope of
the section or there would have been at
least some reasonable doubt about
accepting one or the other construction as
became necessary in Jennings v. Kelly on
which reliance was placed by the learned
counsel for appellant.
38. `Election' is an expression of wide connotation which
embraces the whole procedure of election and is not confined to
43
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 Vice-
Chairman 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 always consists of
members elected to that Council. The democratic principles
44
would require that a person who attains the position of a
Chairman or Vice-Chairman, as the case may be, could be
removed by the same electorate or smaller body which elected
them to that position by taking recourse to a `no confidence
motion' and in accordance with the Rules. The body that elects
a person to such a position would and ought to have the right to
oust him/her from that post, in the event the majority members
of the body do not support the said person at that time. Even if,
for the sake of argument, it is taken that this may not be
generally true, the provisions of Rule 122-A of the M.P. Rules
make it clear, beyond doubt, that a `no confidence motion' can
be brought against the elected Chairman provided the conditions
stated in the said Rules are satisfied. As already noticed, the
thrust of the challenge to the vires of Rule 122-A is primarily
that Section 15 of the Advocates Act does not contemplate the
framing of such a Rule by the State Bar Councils. Rule 122-A is
stated to be ultra vires Section 15 of the Advocates Act and, it is
argued, that the introduction of such provision suffers from the
vice of excessive delegation. Section 15 of the Advocates Act
empowers the State Bar Councils to frame Rules to carry out the
45
purposes of this Chapter. `This Chapter' obviously means
Chapter II of the Act. Let us examine what Chapter II contains.
Section 3 requires the constitution of the State Bar Councils.
Section 3(3) contemplates that there shall be a Chairman and a
Vice-Chairman of each State Bar Council elected by the State
Bar Council in such manner as may be prescribed. As already
noticed above, another important provision is Section 6 of the
Act, which details the functions to be performed by the State Bar
Councils. Inter alia, the functions to be performed by the State
Bar Councils include, under Sections 6(1)(d), to safeguard the
rights, privileges and interests of the advocates on its roll.
Under Section 6(1)(g), the function of the Bar Council is to
provide for the election of its members and under Sections
6(1)(h) and 6(1)(i), the State Bar Council has to perform all other
functions conferred on it by or under this Act and to do all other
things necessary for discharging the aforesaid functions. In our
view, Sections 6(1)(h) and 6(1)(i) have to be read and interpreted
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
46
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 of
Section 15(2)(c), the manner of the election of the Chairman and
the Vice-Chairman of the Bar Council and appointment of
authorities which would decide any electoral disputes is
provided. The expression `manner of election of the Chairman'
47
again is an expression which needs to be construed in its wide
connotation. The rules so framed by the State Bar Council shall
become effective only when approved by the Bar Council of India
in terms of Section 15(3) of the Advocates Act.
40. The power of the State Bar Council to frame rules under
Section 15 of the Advocates Act as a delegate of the Bar Council
of India has to be construed along with the other provisions of
the Advocates Act, keeping in mind the object sought to be
achieved by this Act. In this regard, greater emphasis is to be
attached to the statutory provisions and to the other purposes
stated by the legislature under the provisions of Chapter II of the
Advocates Act. This is an Act which has been enacted with the
object of preparing a common roll of advocates, integrating the
profession into one single class of legal practitioners, providing
uniformity in classification and creating autonomous Bar
Councils in each State and one for the whole of India. The
functioning of the State Bar Council is to be carried out by an
elected body of members and by the office-bearers who have, in
turn, been elected by these elected members of the said Council.
The legislative intent derived with the above stated objects of the
48
Act should be achieved and there should be complete and free
democratic functioning in the State and All India Bar Councils.
The power to frame rules has to be given a wider scope, rather
than a restrictive approach so as to render the legislative object
achievable. The functions to be performed by the Bar Councils
and the manner in which these functions are to be performed
suggest that democratic standards both in the election process
and in performance of all its functions and standards of
professional conduct which need to be adhered to. In other
words, the interpretation furthering the object and purposes of
the Act has to be preferred in comparison to an interpretation
which would frustrate the same and endanger the democratic
principles guiding the governance and conduct of the State Bar
Councils. The provisions of the Advocates Act are a source of
power for the State Bar Council to 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
49
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 that very elected body cannot move a `no
confidence motion' against such office bearers, particularly,
when the rules so permit.
41. The Bar Council of India, as already noticed, has also
framed rules and permitted moving of `no confidence motion'
against its Chairman/Vice-Chairman subject to compliance of
the conditions stated therein. Similarly, Rule 122-A of the M.P.
50
Rules contemplates the removal of a Chairman/Vice-Chairman
by a motion of no confidence, passed by a specific majority of the
members and subject to satisfaction of the conditions stated
therein. This provision, thus, can neither be termed as vesting
arbitrary powers in the elected body, nor can it be said to be
suffering from the vice of excessive delegation. The power
delegated to the elected body is within the framework of the
principal Act, i.e., Section 15, read with the other provisions, of
the Advocates Act. In terms of Rule 120 of the M.P. Rules, a
person can be elected as Chairman/Vice-Chairman only by
majority and in case there is a tie, the election shall be decided
by drawing of lots. Under Rule 118 of the M.P. Rules a
Chairman/Vice-Chairman has to be elected from amongst its
members for two years. In other words, the term of office of the
Chairman/Vice-Chairman is controlled by the fact that he has to
be elected to that particular office. The removal contemplated
under Rule 122-A is not founded on a disciplinary action but is
merely a `no confidence motion'. It is only the loss of confidence
simpliciter i.e. the majority of the members considering, in their
wisdom, that the elected Chairman/Vice-Chairman should not
51
be permitted to continue to hold that office, which is the very
basis for such removal. One must remember that Rules 118 to
122-B all come within Chapter XVIII of the M.P. Rules and, as
such, have to be examined collectively. But for this Chapter, it
cannot be even anticipated as to who and how the office of the
Chairman/Vice-Chairman of the State Bar Council shall be
appointed.
42. Now, let us examine some judgments to substantiate
what we have aforestated. In the case of General Officer
Commanding-in-Chief v. Subhash Chandra Yadav [(1988) 2 SCC
351], this Court stated the principle that the rules framed under
the provisions of a statute form part of the statute, i.e., the rules
have statutory force. But a rule can have the effect of a
statutory provision provided 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.
52
[(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 6-
A of the Central Electricity Regulatory Commission (Procedure,
Terms and Conditions for Grant of Trading Licence and other
Related Matters) Regulations, 2004 and dealing with this aspect,
the Court expressed the view that in some cases guidelines could
be assumed, by necessary implication, as already laid down and,
while relying upon the case of Kunj Behari Lal Butail (supra), the
Court held as under:
"26. We may, in this connection refer to a
decision of this Court in Kunj Behari Lal
53
Butail v. State of H.P.1 wherein a three-
Judge Bench of this Court held as under:
(SCC p. 47, para 14)
"14. We are also of the opinion that
a delegated power to legislate by making
rules `for carrying out the purposes of the
Act' is a general delegation without laying
down any guidelines; it cannot be so
exercised as to bring into existence
substantive rights or obligations or
disabilities not contemplated by the
provisions of the Act itself."
27. The power of the regulation-making
authority, thus, must be interpreted
keeping in view the provisions of the Act.
The Act is silent as regards conditions for
grant of licence. It does not lay down any
pre-qualifications therefor. Provisions for
imposition of general conditions of licence
or conditions laying down the pre-
qualifications therefor and/or the
conditions/qualifications for grant or
revocation of licence, in absence of such a
clear provision may be held to be laying
down guidelines by necessary implication
providing for conditions/qualifications for
grant of licence also."
44. The above enunciated principles clearly show that the
language of the statute has to be examined before giving a
provision an extensive meaning. The Court would be justified in
giving the provision a purposive construction to perpetuate the
object of the Act, while ensuring that such rules framed are
54
within the field circumscribed by the parent Act. It is also clear
that it may not always be absolutely necessary to spell out
guidelines for delegated legislation, when discretion is vested in
such delegatee bodies. In such cases, the language of the rule
framed as well as the purpose sought to be achieved, would be
the relevant factors to be considered by the Court. In the
present case, the minimum guidelines of secrecy and fairness in
election have been provided in Part IX of the Rules, which have
been framed in exercise of the supervisory powers under
Sections 49(1)(a), 49(1)(i) and 49(1)(j) of the Advocates Act.
Further, clause (5) of this Part even 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
55
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, they are in line with the scheme of the
parent Act.
46. Having dealt with the primary aspect of this case, now
we would consider the contention that the recall of the
Chairman/Vice-Chairman, by a smaller and distinct body of
members of the State Bar Council, does not fall within the
purview of the authority of the delegatee Council, under Section
15(2)(c) of the Advocates Act, i.e. to legislate on `the manner of
election'. Even on this ground, according to the appellants, the
provisions of Rule 122-A are unsustainable. We find no merit in
56
this contention as well as it has no substance. The election to
the post of Chairman/Vice-Chairman of the State Bar Council is
not by the larger body, i.e., the advocates enrolled on the rolls of
the State Bar Council, but is by a distinct body, i.e. elected
members of the State Bar Council. Once they elect the
Chairman/Vice-Chairman of the State Bar Council as per the
scheme of Rules 118 to 123, then all actions taken by such body
would have to be accepted by all concerned as correct, if they are
within the domain of the rules governing such body. We do not
consider it necessary to deliberate on this issue in any greater
detail. Suffice it to refer to the judgment of this Court in the
case of Mohan Lal Tripathi (supra), where the Court was
concerned with an elected candidate, who, in terms of the
statute, was elected by a larger electorate and was recalled by
smaller representative body rather than by the electorate itself.
Similar arguments were raised that the recall was violative of the
spirit and purpose of the election and was arbitrary, irrational
and violative of the democratic norms. These arguments were
rejected by the Court, after detailed deliberation and examining
the fields of democratic norms. We have already referred in
57
paragraph 37 of this judgment, the relevant parts of the said
discussion.
47. Similarly, in the case of Ram Beti v. District Panchyat Raj
Adhikari [(1998) 1 SCC 680], the Court was dealing with a
situation where a Pradhan of the Panchayat was removed by the
Gram Panchayat, a smaller body, instead of removal by the
Gram Sabha which had elected him. They questioned the
validity of Section 14 of the U.P. Panchayati Raj, Act, 1947. The
Court, while rejecting the contentions, as are even being raised
before us in the present case, held as under:
"6.... It is no doubt true that under Section
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 sub-
section (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
58
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 responsibility to
keep a watch on the President, whether
elected by it or by the electorate, so also the
Gram Panchayat is visualized as a body
entrusted with the responsibility to keep a
watch on the Pradhan who is not elected by
it and is elected by the members of the
Gram Sabha. An arbitrary functioning of a
Pradhan is disregard of the statute or his
acting contrary to the interests of the
electorate could be known to the members
of the Gram Panchayat only and, in the
circumstances, it is but proper that the
members of the Gram Panchayat are
empowered to take action for removal of the
Pradhan, if necessary. It is no doubt true
that in Section 11 of the Act provision is
made for holding two general meetings of
the Gram Sabha in each year and for
requisitioning of a meeting of the Gram
Sabha by one-fifth of its members. But, at
the same time, we cannot lose sight of the
fact that the number of members of the
Gram Sabha is also fairly large. It would
range from one thousand to more than three
thousand. Elections to public offices even
at village level give rise to sharp polarization
of the electorate on caste or communal
basis. The possibility of disturbance of law
59
and order in a meeting of the Gram Sabha
called for considering a motion for removal
of the Pradhan cannot be excluded.
Moreover, there cannot also be due
deliberation of a serious matter as no-
confidence motion by a very large body of
persons. While amending Section 14 of the
Act so as to confer the power to remove the
Pradhan of a Gram Sabha on the members
of the Gram Panchayat the legislature must
have taken into consideration the prevailing
social environment. Moreover, by way of
safeguard against any arbitrary exercise of
the power of removal it is necessary that the
motion must be passed by a majority of two-
thirds of the members present and voting.
7. For the reasons aforementioned we are
unable to hold that Section 14 of the Act,
insofar as it empowers the members of the
Gram Panchayat to remove the Pradhan of a
Gram Sabha by moving a motion of no
confidence, is unconstitutional and void
being violative of the concept of democracy
or is arbitrary and unreasonable so as to be
hit by Article 14 of the Constitution."
48. For the reasons aforestated, as well as the reasons
recorded in the above reproduced judgments, which, with
respect, we adopt, we have no hesitation in rejecting this
contention of the appellants.
49. The next argument that was raised on behalf of the
60
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 re-
consideration would operate; that too depending on the facts
and circumstances of a given case. `Once decided' obviously
means the matter should be concluded or finally decided in
61
contradistinction of being `kept pending' or `deferred'. Therefore,
we must now examine, whether the matter in relation to `no
confidence motion' had been finally decided at any point of time
before the date on which the `no confidence motion' is stated to
have been passed. This also we are proceeding to consider on
the assumption that the matter related to `no confidence motion',
for the sake of arguments, would be covered under Rule 15 of
the M.P. Rules.
51. After issuance of a notice in accordance with the M.P.
Rules, admittedly, the 15th Meeting of the General Body of the
State Bar Council was held on 27th March, 2011 at Jabalpur,
during which two requisitions were made: one, relating to a `no
confidence motion' against the Chairman/Vice-Chairman, and
second, that there should be re-election of the Committees. In
the minutes, it was also stated that the Chairman/Vice-
Chairman had offered their resignation subject to withdrawal of
`no confidence motion'. There were discussions on this matter
and it was resolved that the agenda of the meeting would be
circulated on the same day itself, by post, to all the members of
the State Bar Council, whether present at the meeting or not
62
and the next meeting would be held on 16th April, 2011 at
Jabalpur. These notices were issued and as decided the meeting
was held on 16th April, 2011. During the course of the meeting
on 16th April 2011, some of the members left the meeting, the
Advocate General of Madhya Pradesh presided over the
continuation of the meeting and the `no confidence motion' was
passed on the same day. Of course, there is some dispute with
regard to the recording of the minutes of this meeting. We have
already reproduced the minutes which were recorded by the
respective parties. We are not very inclined to rely upon the
minutes produced by the appellants, inasmuch as they are not
signed by all the members present and voting. Even if, for the
sake of arguments, we take that the minutes produced by the
appellants are correct, then it must follow that both the
meetings took place on 16th April, 2011. However, it is obvious
from the record that in the 15th meeting of the General Body held
on 27th March, 2011, no final decision had been taken and it
was decided to circulate the minutes and other papers of the
meeting to all members.
52. Another ancillary argument to the above is that by virtue
63
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 termed as reconsideration of the decision taken.
53. Once the Council is constituted in terms of the Act and
the Rules framed thereunder, then it has to take decisions in the
64
role of a Council in relation to various matters, including
rejecting or passing a `no confidence motion'. This is even clear
from the case of Ram Beti (supra) wherein it was held that the
smaller representative body is better equipped to make a recall
decision and it has more information in its hands, to make such
a recall decision. The decision is, therefore, substantially
different in character from the election decision. A statutory bar
may exist in this respect, in some cases, but in its absence, the
Court cannot infer or imply a time bar on challenging the results
of election as a feature of common law or general democratic
principles.
54. Thus, the bar contemplated under Rule 15 of the M.P.
Rules does not operate, on merits, when applied to the facts of
the present case. Thus, we have no hesitation in rejecting this
contention, raised by the appellants.
55. It is also the contention of the appellants that the group
supporting the Chairman/Vice-Chairman of the State Bar
Council, in the meeting dated 16th April, 2011, had raised the
issue that `no confidence motion' and reconstitution of the
65
committee could not be considered in view of the bar contained
in Rule 15 of the M.P. Rules, in the form of `a point of order'
against the requisition asked for by the other group. Firstly, we
have already rejected the contention of the appellants that the
matters were discussed and concluded, either through the
February 2011 elections or in the 15th Meeting of the Council
dated 27th March, 2011, as, according to the minutes, the
meeting had only been deferred for issuance of appropriate
agenda and requisition notice to all the members present or not
present. Treating it as a valid point of order, the Chairman had
accepted the same and then he along with some members, had
walked out of the meeting.
56. As indicated above, the meeting then was presided over
by the Advocate General, Madhya Pradesh, whereafter the `no
confidence motion' was passed. We are unable to accept the
approach adopted by the Chairman/Vice-Chairman as, on the
peculiar facts and circumstances of this case, it ex facie was
untenable and without any basis. It was the duty of the
Chairman/Vice-Chairman to face the `no confidence motion', as
they were elected office bearers and if they had lost the
66
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 absence of
any specific provision, the right of persons to elect a
67
Chairman/Vice-Chairman would include the right to undo the
same by moving a `no confidence motion'.
58. It needs to be noticed at the very threshold of
consideration of this submission that `no confidence motion'
cannot be equated in law to removal relatable to a disciplinary
action or as a censure. It is stricto senso not removal from office,
but a removal resulting from loss of confidence. It is relatable to
no confidence and is not removal relatable to the conduct or
improper behaviour of the elected person. Even the concept of
`term' under the Rules, is referable to and is controlled by a
super-imposed limitation of no confidence. This tenure cannot
be compared to a statutory tenure as is commonly understood in
the service jurisprudence. The distinction between removal by
way of `no confidence motion' and removal as a result of
disciplinary action or censure is quite well accepted in law. They
are incapable of being inter-changed in their application and
must essentially operate in separate fields. The Court has always
prioritized harmonious functioning of the State Bar Council. In
the case of Afjal Imam v. State of Bihar and others, [JT 2011 (5)
19], the recall of a Mayor and the re-election of a different Mayor
68
in his place has been held to implicitly shorten the term of the
appointees of the previous Mayor, if such is in the interest of
smooth functioning of the body.
59. Noticing this distinction, a Bench of this Court in the
case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot
[(1974) 2 SCC 706], while dealing with the question whether
grounds for removal must necessarily be specified when passing
a motion of no confidence, noticed the difference between `no
confidence motion' and a censure motion and described the
same as follows:
"19.....It does not, however, follow
therefrom that the ground must also be
specified when a motion of no confidence is
actually passed against a President. It is
pertinent in this context to observe that
there is a difference between a motion of no
confidence and a censure motion. While it
is necessary in the case of a censure motion
to set out the ground or charge on which it
is based, a motion of no confidence need
not set out a ground or charge. A vote of
censure presupposes that the persons
censured have been guilty of some
impropriety 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
69
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 actions, a motion of no
confidence need not set out any grounds on
which it is based. Even when grounds are
mentioned in the notice and read out in the
House, they do not form part of the no-
confidence motion."
60. Still, in another case, titled B.P. Singhal v. Union of India
& Anr. [JT 2010 (5) SC 640], the Court, while dealing with the
doctrine of pleasure in relation to the term of the office of the
Governor, for a tenure of 5 years, noticed that Article 156(1) of
the Constitution dispenses with the need to assign reasons or
70
the need to give notice in the event of removal. But the need to
act fairly and reasonably still cannot be dispensed with.
Exception was carved out against acting in a manner which is
arbitrary, capricious or unreasonable. In face of the above
enunciated principles, we are of the considered view that the
concept of just cause and right of hearing, the features of
common law, are not applicable to the elected offices where a
person is so elected by majority in accordance with statutory
rules. It would also have hardly any application to moving of a
`no confidence motion' in so far as these are controlled by
specific provisions and are not arbitrary or unreasonable. There
is nothing in Rule 122-A of the M.P. Rules that requires
adherence to these two concepts when a motion of no confidence
is moved against a sitting Chairman/Vice-Chairman. Of course,
it does not imply that the action can be arbitrary or capricious
and absolutely contrary to the spirit of the Rule. There is no
dispute in the facts of the present case that majority of the
members had passed the `no confidence motion' in the 16th
Meeting of the State Bar Council on 16th April, 2011. We are not
able to accept the view taken by the High Court of Delhi in the
71
case of Bar Council of Delhi (supra) in saying that solely with the
aid of General Clauses Act, the power to elect would deem to
include power to remove by a motion of no confidence,
particularly, with reference to the facts and circumstances of
this case. The power to requisition a `no confidence motion' and
pass the same, in terms of Rule 122-A of the M.P. Rules, is clear
from the bare reading of the Rule, as relatable to loss of faith
and confidence by the elected body in the elected office bearer.
We have already discussed in some detail and concluded that
Rule 122-A of the M.P. Rules is not ultra vires the provisions of
the Advocates Act, including Section 15. When the law so
permits, there is no right for that office bearer to stay in office
after the passing of the `no confidence motion' and, in the facts
and circumstances of the present case, it is clearly established
that the appellants had lost the confidence of the majority of the
elected members and thus the Resolution dated 16th April, 2011
cannot be faulted with.
61. Before concluding the judgment we would proceed to
record our conclusions and answer the three questions posed at
the outset of the judgment as follows:
72
Answers to:
Question
No. 1
We hold that the provisions of Rules 121 and 122-A (in
particular) of the M.P. Rules are not ultra vires of the provisions,
including the provisions of Section 15, of the Advocates Act.
These rules also do not suffer from the vice of excessive
delegation.
Question No. 2
In view of our answer to Question No. 1, there is no need
for us to specifically answer this question.
Question No. 3
In view of the language of Section 15(3) of the Advocates
Act and the factual matrix afore-noticed by us, it is clear that the
amended rules of the M.P. Rules had received the approval of the
Bar Council of India, particularly Rule 122-A. The Rules would
not be invalidated for want of issuance of any notification, as it
is not the requirement in terms of Section 15(3) of the Advocates
Act and in any case would be a curable irregularity at best.
For the reasons afore-stated, we dismiss these appeals.
73
.....................................J.
[Dr. B.S. Chauhan]
.....................................J.
[Swatanter Kumar]
New Delhi;
August 9, 2011
74
