Adish C. Aggarwala vs Bar Council Of Delhi And Ors.
2003 Latest Caselaw 1089 Del

JUDGMENT

A.K. Sikri, J.

1. I have gone through the judgment of Hon'ble the Chief Justice. With respect, I hold a different view. I am of the opinion that in the given case, the petitioner is not entitled to any interim relief and this CM is liable to be dismissed. My reasons for dissent are enumerated hereafter in the following text.

2. By means of this civil miscellaneous application, the petitioner is seeking ad interim stay. Perusal of the prayer clause would reveal the nature of relief which the petitioner wants at this stage :

(i) stay the operation of the impugned order dated 26.8.2003, passed by respondent No. 1, till the final disposal of the accompanying writ petition, in the interest of justice.

(ii) to direct the respondent No. 1 to 6 to maintain status quo ante as on 21.8.2003.

(iii) to direct respondent No. 1 that in the meantime the petitioner shall continue to hold the office of member of Bar Council of Delhi.

(iv) to direct the respondent No. 6 to allow the petitioner to function as Vice Chairman, Bar Council of India

(v) to direct Bar Council of India to make enquiry into the entire matter and to submit its report forthwith.

(vi) to direct the respondent No. 1 to produce all the original records relating to the holding of 10 recent meetings of Bar Council of Delhi including agenda, minutes, proof of service of notices of meetings to the membeRs.

3. Taking note of relevant facts, essential for the disposal of this application, is called for at this juncture.

4. The petitioner is an Advocate enrolled with the Bar Council of Delhi (for short ` the BCD') which is a statutory body created under the Advocates Act, 1961 (hereinafter referred to as `the Act'). As per provisions of this Act, there shall be a Bar Council of India (BCI) which is an All India boDy. In addition, as per mandate of Section 3, different States as mentioned in the said Section, shall have State Bar Councils (SBC). Section 3(f) stipulates that there shall be a Bar Council for Union Territory of Delhi, to be known as the Bar Council of Delhi. Since the BCD has a electorate exceeding 10000 numbers, it consists of 25 elected membeRs. The Additional Solicitor General is an ex-officio member . The term of the elected members of the State Bar Council is five years from the date of publication of the result of his election as provided under Section 8 of the Act. Proviso to this Section, however, stipulates that where a SBC fails to provide for the election of its member before the expiry of the said term of five years, the BCI may, by order for reasons to be recorded in writing, extend the the said term for a period not exceeding six months. In case elections are not held even after the extended period, Section 8A provides for constitution of Special Committee. Under this Section, it is the BCI which has to constitute a Special Committee and the elected members, therefore, cease to hold office in such an eventuality.

5. Last elections to BCD were held on 30th March, 1998 when 25 members were elected. The petitioner was also one of the elected membeRs. Five years' term of these members expired on 30th March, 2003. However, as the elections were not held before the expiry of the term, by an order in writing, the BCI has extended the term of the BCD for another six months. The term of the present members is, therefore, going to expire on 30th September, 2003. It is also a matter of record that fresh elections to the BCD have already been announced which are scheduled for 29th and 30th September, 2003.

6. The BCI consists of the Attorney General of India and the Solicitor General of India as ex-officio members and one member elected by each SBC from amongst its membeRs. Each SBC has to elect one member from amongst its members for the BCI. On 21st May, 1998, the petitioner was elected under this provision and he became member of the BCI as well. Under Section 4(2) of the Act, the Chairman and Vice-Chairman of the BCI are to be elected by the BCI. The petitioner was elected as Vice-Chairman of the BCI on 21st April, 2002 and since then he started functioning in that capacity as well.

7. The cause for filing the present writ petition by the petitioner arose when the BCD, in its emergency meeting held on 22nd August, 2003, declared under Section 10B of the Act that the petitioner as well as another member, Mr. Satish Aggarwala as disqualified and deemed to have vacated their office as members of the BCD with effect from 22nd August, 2003 on their failure to attend three consecutive meetings. The BCD further resolved that the two vacancies created because of disqualification of Sh.Satish Aggarwala and the petitioner as members of the BCD be filled up by co-option of Shri Arjun Bhandari and Shri Ravi Kant Chadha, Advocates. The BCD further resolved that on being declared to have vacated the office as member of the BCD, the petitioner also ceases to be the member of the BCI and in the vacancy so caused, Shri Jatan Singh, another member BCD was unanimously elected as member, BCI in place of the petitioner with immediate effect. Notification dated 26th August, 2003 in this behalf was issued to be published in the Delhi Gazette (Part-IV), extraordinary by Government of National Capital Territory of Delhi (Department of law, Justice & Legislative Affairs). The petitioner has challenged the aforesaid Resolution dated 22nd August, 2003 as well as Notification dated 26th August, 2003 by means of present writ petition.

8. It would be necessary to state at this stage that in the writ petition, the petitioner has attributed mala fides against other members of the BCD, particularly against the respondent No2., i.e. the Chairman, BCD. Without stating in detail these allegations of mala fides (there is a reason to do so as would be noted later at the appropriate stage), it would be suffice to state that according to the petitioner, the impugned action of the BCD resorting to extreme step of `expelling' the petitioner from the membership of the BCD in purported exercise of powers under Section 10B of the Act, is without serving upon the petitioner notice of such meetings and without following the principles of natural justice by either serving any show cause notice or giving him opportunity to explain his position. It is, therefore, alleged that such blatant illegalities have been actuated against the petitioner by the BCD with mala fides. The case of the petitioner in this behalf is that he had gone on record in giving his opinion to the Chairman of the BCI against gross illegalities committed by the BCD in preparing the electoral roll for the ensuing elections of the BCD by leaving out 14000 names out of a total 33000 eligible voteRs. On his opinion, the Chairman, BCI had even passed orders on 19th August, 2003 staying the process of elections of the BCD till further ordeRs. Reference is made to some petitions filed in this court by various Advocates and representation of one Sh.Ajay Kumar, Advocate on which aforesaid orders were passed by taking opinions from different persons, including the petitioner. It is further stated that feeling aggrieved by the said interim order dated 19th August, 2003, the BCD filed CWP No. 5237/2003 in this court on 21st August, 2003 in which notice was issued for 25th August, 2003 but no interim order staying the operation of order dated 19th August, 2003 passed by the BCI was granted. According to the petitioner, he remained busy between 22nd to 24th August, 2003 in holding meetings and discussions with members of the BCD on the one hand and with the members of the BCI on the other hand and efforts of the petitioner proved fruitful. There were negotiations between the BCD and the BCI resultantly Sh.Ajay Kumar, Advocate was persuaded to withdraw this complaint dated 10th August, 2003 and the BCI revoked its interim order dated 19th August, 2003. As a sequitur, the BCD withdrew its CWP No. 5237/2003 on 25th August, 2003. It is alleged that immediately after the withdrawal of this writ petition, the Chairman, BCD managed to show that in an emergency meeting held on 22nd August, 2003 in pursuance of alleged notice dated 19th August, 2003, the petitioner and his brother Sh.Satish Aggarwala had ceased to be members of the BCD for allegedly not attending three consecutive meetings of the BCD on 25th April, 16th May and 25th July, 2003 without sufficient excuse, as required under Section 10B of the Act.

9. It may be mentioned at this stage that the writ petition is replete with allegations of mala fides against the BCD and more particularly against the respondent No. 2, Chairman of BCD. The petitioner has also annexed a copy of his letter dated 25th August, 2003 addressed to the BCI referring to the alleged threats given by the respondent No. 2 to him, including that he Along with his brother Sh.Satish Aggarwala would be expelled from the membership of the BCD. This representation is also filled of allegations of mala fides on the part of the respondent No. 2. In a matter like this, therefore, when such serious allegations of mala fides are attributed to the respondents 1 and 2, it was but reasonable to given an opportunity to the respondents to file counter affidavit so that their version also comes on record. However, learned senior counsel for the petitioner submitted that the petitioner would rest his case, for the purpose of stay application, only on the legal contention viz. before such an impugned action under the provisions of Section 10B of the Act, it was incumbent upon the respondents 1 and 2 to comply with the principles of natural justice. The arguments, therefore, were heard confining to this aspect alone, with the agreement of the parties. It is for this reason, factual allegations contained in the writ petition are not stated in detail as that exercise is not required. We are concerned with the question as to whether the petitioner is entitled to interim relief on the basis of sole argument of the petitioner confined to the alleged infraction of Section 10B of the Act.

10. Section 10B of the Act is in the following terms:

"10B Disqualification of members of Bar Council- An elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council, or if his name is, for any cause, removed from the roll of advocates or if he is otherwise disqualified under any rule made by the Bar Council of India."

11 A reading of the aforesaid Section would show that in three eventualities, an elected member of the Bar Council shall be deemed to have vacated his office, namely, (a) if he is declared by the Bar Council to have been absent without sufficient excuse from three consecutive meetings of the Council; (b) if his name is, for any cause, removed from the roll of advocates; or (c)if he is otherwise disqualified under any rule made by the BCI. Admittedly, in the present case, we are concerned with the first situation only.

12. Laying stress on the words "absent without sufficient excuse" Mr. Anil B.Diwan, learned senior counsel for the petitioner argued that an elected member shall be deemed to have vacated office only if his absence from three consecutive meetings of the Council was without sufficient excuse. To adjudge whether the absence was with or without sufficient excuse, the BCD had to make a declaration to this effect. Before such declaration could be made, the BCD had to be satisfied that absence from a member from three consecutive meetings was without sufficient excuse. To adjudge whether it was without sufficient excuse or not, it was implicit in the provisions of Section 10B of the Act that an opportunity to show cause was required to be given to the defaulting member. He submitted that action of "expelling a member" visited with civil and/or evil consequences and, therefore, principles of natural justice in the form of giving hearing etc. was mandatory and it could be treated as non-applicable only if there was specific exclusion by the Statute. In support of this proposition, learned senior counsel laid much emphasis on the following observations made in the Constitution Bench judgment of the Apex Court in the case of C.B.Gautam v. Union of India and others :

"Para 26: The next question to which we propose to address ourselves is whether the provisions of Chapter XX-C are bad in law as there is no provision for giving the concerned parties an opportunity of being heard before an order is passed under the provisions of Section 269-UD of the said Chapter for the purchase by the Central Government of an immovable property agreed to be sold in an agreement of sale. In this regard a plain reading of the provisions of the said Chapter clearly shows that they do not contain any provision for giving the concerned parties an opportunity to be heard before an order for compulsory purchase of the property by the Central Government is made. In connection with the requirement of opportunity of being heard before an order for compulsory purchase is made we find that somewhat similar questions have been considered by this Court on a number of occasions. In the case of Union of India v.Col.J.N.Sinha, the facts were that the first respondent who was in the class I service of the Survey of India and rose to the position of Deputy Director, was compulsorily retired by an order under Rule 56(j) of the Fundamental Rules, no reasons were given in the order. Respondent 1 challenged the order on the ground that it violated principles of natural justice and no opportunity had been given to the first respondent to show cause against his compulsory retirement. A Division Bench of this Court in its judgment in that case observed as follows: (SCC pp.460-61, para 8)

" Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak, A.K. v. Union of India, `the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it'. It is true that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it may be presumed that the Legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the Legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power."

Para 27: In the case of Olga Tellis v.Bombay Municipal Corporation, a Constitution Bench comprising five learned Judges of this Court had occasion to deal with the provisions of Section 314 of the Bombay Municipal Corporation Act, 1888. Chandrachud, C.J., (as he then was) delivering the judgment of the Court held that: (SCC p.581, para 44) "....(the said section) confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and and reasonable. (The Court) must lean in favor of this interpretation because it helps sustain the validity of the law."

Chandrachud, CJ., went on to observe as follows: (SCC p.581, para 45) "It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (`Hear the other side') could be presumed to have been intended. Section 314 is to designed as to exclude the principles of natural justice by way of exception and not as a general rule. These are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence."

Para 28: It must, however, be borne in mind that courts have generally read into the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made which would have adverse civil consequences for the parties affected. This would be particularly so in a case where the validity of the section would be open to a serious challenge for want of such an opportunity."

13. He also pressed into service para 12 from the judgment of the Apex Court in the case of Assistant Collector of Customs v. Charan Das Malhotra which explains as to what would constitute "sufficient excuse". This para reads as under:

Para 12: There can be no doubt that the proviso to the second sub-section of Section 110 contemplates some sort of inquiry. The Collector, obviously, is expected not to pass extension orders mechanically or as a matter of routine, but only on being satisfied that there exist facts which indicate that the investigation could not be completed for bona fide reasons within the time laid down in Section 110(2), and that therefore, extension of that period has become necessary. He cannot, therefore, extend the time unless he is satisfied on facts placed before him that there is a sufficient cause necessitating extension. The burden of proof in such an inquiry is clearly on the Customs Officer applying for extension and not on the person from whom the goods are seized."

14. At this stage, it may be mentioned that Mr. Manoj Goel, learned counsel appearing for respondent No. 6/Bar Council of India supported the interpretation of Section 10B as given by the learned senior counsel for the petitioner. He further submitted that in so far as election of a member to the BCI in place of the petitioner is concerned, vide letter dated 27th August, 2003 written by the BCI to the BCD, the BCI has taken the stand that in regard to a vacancy arising under Section 10B of the Act, Rule 6 stipulates that after intimation of a vacancy by the Secretary of the State Bar Council to the Secretary, BCI, the Secretary BCI will call upon the State Bar Council requiring it to elect its Member to the BCI within 30 days of such notice. It is also pointed out in this letter that Rule 7 deals with the process of holding the elections and it says that for the election of a member to the BCI, a notice shall be sent not less than 15 clear days before the date fixed for the elections and a copy of the notice shall be sent simultaneously to the Secretary of the BCI. We are not examining validity of this stand of the BCI as that is not in question. What he emphasized was that the BCI had not taken cognizance of the letter of BCD.

15. Mr. V.P.Singh, learned senior counsel appearing for the respondents 1 and 2, on the other hand, submitted that a distinction had to be made between the cases where a person was elected to an office and was discharging his duties as an elected member on the one hand AND a person who was appointed to an office on the other hand. According to the learned senior counsel, cases of former type would have to be dealt with on a different footing. In such cases, the Statute had normally provisions for `vacating' office on happening of contingencies as provided in the relevant Sections in contra distinction to the `expulsion' and/or `removal' from the office. His submission was that it is only in the latter type of cases that the adherence to the principles of natural justice was necessary before taking an action. In so far as former type of cases are concerned, the learned senior counsel submitted, the elected member had to vacate the office on the happening of a particular contingency as provided in the Statute. He submitted that the petitioner was elected member of the BCD. Section 10B of the Act, according to him, provided for deeming provision on the happening of either of three contingencies and on the happening of one of these contingencies, a member shall `deemed to have vacated his office'. To buttress this submission, he referred to the provisions of Article 101(4) of the Constitution of India relating to vacation of office by an elected member of the Parliament which is in the following terms:

"101 (4) Vacation of seats.-: If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:

Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days."

16. He also referred to Section 283(1)(g) of the Companies Act dealing with automatic vacation of office by a Director in case of not attending certain meetings which reads as under:

"283 (1) (g) Vacation of office by directors- The office of a director shall become vacant if he absents himself from three consecutive meetings of the Board of directors, or from all meetings of the Board for a continuous period of three months, whichever is longer, without obtaining leave of absence from the Board."

17. He submitted that similar provisions exist in the Delhi Municipal Corporation Act, 1957 relating to vacation of office by the Municipal Councillor as well as the Delhi Co-operative Societies Act, 1972 relating to vacation of office by the elected members/office beareRs. His submission was that there was no provision in any of these Statutes, including the Act for expelling or dismissing an elected member. Only on incurring some disqualification provided under the Statute that such an elected member would vacate his office. These were considered, therefore, self-inflicting actions whereby the member would incur disqualification and not third party action. Therefore, principles of natural justice could not be read in such cases. In the instant case, it was not the act of the BCD but self-inflicting act of the petitioner himself in not attending three consecutive meetings of the BCD. He submitted that as rigours of not attending three consecutive meetings are provided in Section 10B, a person absenting from meeting, has to intimate the Council of such absence and give an excuse which should be sufficient excuse. According to the learned senior counsel, the petitioner not only did not attend three consecutive meetings of the Council, he sent no prior intimation to the Council giving any excuse. His further submission that `excuse' occurring in the Section 10B is related to the person who raises an excuse and not a person who makes an `excuse'. He also relied upon Rule 31(B) of the Rules of the Bar Council of Delhi (for short `the Rules) in aid to interpret Section 10B in the manner submitted by him which is in the following terms:

"31 (B) : Any member of the Bar Council who fails to attend three consecutive meetings or any of its Committees, without previous leave of absence obtained in writing from the Chairman, shall be deemed to have vacated and to have caused a casual vacancy."

18. The question of adjudging whether a cause was sufficient or not would arise only when such an excuse was furnished by the petitioner. As he did not furnish any excuse, the BCD was only required to make a declaration that the petitioner had absented from three consecutive meetings without sufficient excuse since no excuse was furnished. In support of his submission, he relied upon the judgment of this court in the case of Bharat Bhushan v. H B Portfolio Leasing Ltd. reported in (1992) 3 Comp. Law Journal 32 wherein interpreting the provisions of Section 283(1)(g) of the Companies Act, a learned Single Judge of this court, inter alia, held as under:

"Para 7: Section 283(1)(g) lays down that the office of a director shall become vacant, if he absents himself from three consecutive meetings of the board of directors, or from all meetings of the board for a continuous period of three months, whichever is longer, without obtaining leave of absence from the board. This particular provision does not contemplate the passing of any board resolution for showing that the office of the director has been vacated by a particular director. It appears that the vacation of the office of director is automatic as soon as a director is found to have incurred the disability as contemplated by clause (g). Section 284 of the Companies Act, however, contemplates removal of a director by the passing of a board resolution. That provision, in fact, is not applicable where the director vacates office by virtue of incurring the disqualification laid down in section 283. The case of Turnbull (1894) 70 Law Times 92, examined the provisions of Article 70 of the articles of association of a company which provided that the office of any director should be vacated on any of the five grounds enumerated therein, one of them being that a director had absented himself from board meetings for a period of three months. In the said case, the plaintiff was a director and, at the meeting of the board, he informed the Chairman that he was jointly interested with one "M" in a contract, but he did not specify the precise nature or extent of his interest. At a meeting of the board of which no notice was given to the plaintiff, a resolution was passed declaring his seat as director vacated for infringing article 70(e) which prohibits a director from having contracts with the company or being concerned in or participating in the profits of any contract with or work done for the company without declaring his interest. It was this particular clause (e) of article 70 which was examined by the Chancery Division, and it held that, in such a case, the construction must be that something more must be done to render the seat vacant and, moreover, natural justice requires that a director shall have an opportunity of saying what occurs to him on his own behalf. As, in the said case, no opportunity of hearing had been granted to the director before passing the resolution that he had incurred the disability under clause (e) of article 70, the injunction in favor of the director was granted. The facts of the said case are distinguishable. In case, a particular director acts against the interest of the company, obviously, the rules of natural justice do require that, before he is held guilty of such act, he should be given an opportunity of hearing.

Para 8: It would be too much to say that in all the clauses contemplated under section 283 where disqualifications are incurred automatically, there should be granted an opportunity of hearing to the director before he is deemed to have vacated the office of the director. It is evident that if any director is removed under section 284 of the Companies Act, a show-causes notice is bound to be given to such a director and this was provided in section 284 itself. Section 283 contemplates vacation of office of the director on various grounds which are given in clauses (1) (e) to (1) (l). Clause (k) speaks of removal of the director in pursuance of section 284. It is evident that when section 284 itself provides for a show-cause notice being issued before passing a resolution for removing a director, no fresh show cause notice would be required to be issued for purposes of section 283 of the Companies Act.

Para 9: In the case of Richardson (1893) 3 Ch 570 (ChD), rule 14 in Schedule II, Part I, to the Elementary Education Act, 1870, contemplated that a member of a school board ceases to be a member "if he absents himself during six successive months from all meetings of the board, except from temporary illness or other cause to be approved by the board." The question which arose for consideration before the Chancery Division was whether a particular member had incurred the said disqualification or not. The plea taken by the member was that he was ill, and thus he justified his absence. It was held that without, however, giving a chance to that member of defending himself, he could not have been declared a default and thus, the action of the board was termed to be illegal. The question whether a particular person has absented himself from meeting of the board due to any serious illness could be a disputed question of fact, and may be in such a situation, the rules of natural justice have to be observed before declaring that such a person had incurred the disqualification."

19. The learned senior counsel for the respondents 1 and 2 additionally submitted that in the instant case, the petitioner was in any case not entitled to ad interim relief inasmuch as he had not attended any meeting since 2nd November, 2001 although from 2nd November, 2001 till 22nd August, 2003, as many as 35 meetings had taken place. He further submitted that the petitioner had made false averment to the effect that he was not served with notices of the meetings. Not only the notices were served, his submission was that the minutes of the meeting were interlocking in nature as the minutes of a particular meeting would indicate the fixation of any meeting inasmuch as certain disciplinary cases which were heard on a particular date used to be adjourned to a next specific date and thus no specific notice for such a date was even required. He also referred to Rule 51 of the Rules as per which the BCD had to meet atleast once every two months and submitted that the petitioner knew that one meeting had to be convened every two months still he absented himself from these meetings from 2nd November, 2001. He also produced the record for our perusal and also showed that notice dated 19th August, 2003 of the meeting held on 22nd August, 2003 was served in the office of the petitioner as well his brother which was signed by his clerk. Referring to the minutes of the meeting dated 22nd August, 2003, he argued that 21 out of 24 members (excluding the petitioner and his brother) attended the meeting and the declaration that the petitioner and his brother had deemed to have vacated their office was unanimous. He also submitted that once a statutory elected body had taken a view, this should not ordinarily be interfered with at interim stage and in support of this plea, he relied upon para 3 of the judgment of the Supreme Court in the case of Siliguri Municipality and others v. Amalendu Das and others :

"Para 3: It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at the juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues, the levy of tax or rate or a part thereof, as the case may be, in the event of the entire levy or a part thereof being ultimately held to be invalid by the court without obliging the tax-payers to institute a civil suit in order to claim the amount already recovered from them. On the other hand, the Court cannot be unmindful of the need to protect the authority levying the tax, for, at that stage the Court has to proceed on the hypothesis that the challenge may or may not succeed. The Court has to show awareness of the fact that in a case like the present a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision. And that the municipality has to maintain essential civic services like water supply, street lighting and public streets etc., apart from running public institutions like schools, dispensaries, libraries etc. What is more, supplies have to be purchased and salaries have to be paid. The grant of an interlocutory order of this nature would paralyze the administration and dislocate the entire working of the municipality. It seems that these serious ramifications of the matter were lost sight of while making the impugned order."

20. Before dealing with the respective contentions, it may be noted that the BCD had produced the records for our perusal. From the records, it was found that the notice dated 19th August, 2003 of meeting scheduled for 22nd August, 2003 was served upon the petitioner through his clerk. The learned senior counsel for the petitioner was also shown the records. He did not point out non-service of notice in so far as previous two meetings prior to the meeting of 22nd August, 2003 were concerned. Thus, prima facie, I am of the opinion that the notices of three meetings were served upon the petitioner. However, he did not attend these meetings. Admittedly, he did not write any letter or give an advance intimation to the BCD about his inability to attend these meetings. On the contrary, in the writ petition, the petitioner has alleged that he was not even served with the notices which averment, prima facie, is false. A perusal of the minutes and other records produced by the BCD also gives a prima facie impression that the allegations of the petitioner that after the withdrawal of CWP No. 5237/2003 on 25th August, 2003 by the BCD, the respondent No. 2 managed to show that there was an emergency meeting held on 22nd August, 2003 (thereby trying to contend that there was no such meeting convened earlier and the minutes are manipulated on back date) are also not correct.

21. Coming to the issue raised, after considering the respective submissions of the parties, I am of the opinion that there appears to be force in the contention of learned senior counsel for the respondents that in a matter like this, it was not necessary to give any show cause notice or hearing to the petitioner before passing the Resolution dated 22nd August, 2003. The provisions of Section 10B of the Act are already reproduced above. As per Section 10B, a member is deemed to have vacated his office in three eventualities. As mentioned above, we are concerned with the first eventuality. For this deeming provision to be applicable, following ingredients are to be satisfied:

(i)A member was absent from three consecutive meetings of the Council.

(ii)Absence was without sufficient excuse.

(iii)Declaration by the BCD to the effect that absence of the member from three consecutive meetings of the Council was without sufficient excuse.

22. There is no dispute that the petitioner was absent from three consecutive meetings of the BCD. The question which falls for consideration is as to whether it was necessary to ask for the explanation of the petitioner that he was absent without sufficient excuse. In a case like this, answer has to be in the negative. I am inclined to accept the submission of the respondents 1 and 2 that case of elected member to an office has to be distinguished from those cases where a person is appointed to an office. The Legislature has consciously introduced deeming provision. The purpose is to ensure the attendance of the elected members of the BCD in its meetings and in case a member does not attend three consecutive meetings, he suffers disqualification because of deeming provision. Every elected member knows the consequence of absence from three consecutive meetings. Therefore, it becomes incumbent upon such a member to inform the BCD in case he is not in a position to attend a particular meeting. He has to not only excuse himself from a particular meeting, such excuse has to be sufficient excuse. Normally, leave of absence, in such cases, should be obtained in advance. In fact that is the practice followed which could be discerned from reading of minutes of some of the meetings as the minutes reflect that the Chairman had excused the absence of certain persons from time to time. Even when a member is not able to give advance intimation of his absence with sufficient excuse, he is required to intimate about this immediately after the meeting. That was not done by the petitioner. The question whether a member has given "sufficient excuse" or not while absenting from meeting would arise only if `excuse' is given. Only then the BCD would be called upon to decide as to whether a particular excuse given by an absentee member is sufficient or not. If there is no excuse forthcoming, there is no question of deciding as to whether excuse is sufficient or not. In that case it can safely be presumed that the excuse is not sufficient and the only thing which is required to be done is to give a declaration. This declaration is clearly reflected in the Resolutions passed by the BCD in its meetings held on 22nd August, 2003. Thus all the three ingredients stand satisfied.

23. It is well established that the principles of natural justice cannot be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. The principle of natural justice for holding an enquiry is neither a universal principle of natural justice nor inflexible dogma. These principles are not incapable of exclusion in a given situation.

24. The Apex Court in the case of Aligarh Muslim University and others v. Mansoor Ali Khan, noticed gradual relaxation of the rigours of this rule and also went to the extent of holding that even when principles of natural justice are required to be followed, non-observance thereof need not be set aside under Article 226 of the Constitution. In that case the respondent, who was a non-teaching employee of the appellant university was sanctioned two years leave from 18th April, 1979. Before the expiry of this period, he applied for further extension of leave by three more yeaRs. The university granted him extension for one year and also stated that he was required to resume duties by 18th April, 1982. He was forewarned that no further extension would be given and he should positively resume duties by 18th April, 1982. However, the employee did not resume the duty. Thereafter, some special consideration was still shown in his favor by way of granting him joining time up to 1st July, 1982 and it was clearly stated that otherwise he would be deemed to have vacated the post. As he did not join duties by the extended period, his services were terminated. Even in such a case when the court found that principles of natural justice were applicable and were not followed, the court refused to grant relief to the employee and reversed the decision of the High Court by observing:

"Para 28: We may state that the University had not acted unreasonably in informing him in advance - while granting one year extension, in addition to the initial absence of 2 years-that no further extension will be given. We have noticed that when the extension is sought for three years, the Department has given him extension only for one year as he had already availed 2 years' extraordinary leave by that time. It has to be noticed that when employees go on foreign assignments which are secured by them at their own instance, in case they do not come back within the original period stipulated or before the expiration of the extended period, the employer in the parent country would be put to serious inconvenience and will find it difficult to make temporary alternative appointments to fill up the post during the period of absence of those who have gone abroad. However, when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In this case, giving of further extension only for one year out of the further period of three years sought for is not unreasonable. In such a situation, if the employee has entangled himself into further commitments abroad, he has to blame himself.

Para 29: On the above facts, the absence of a notice to show cause does not make any difference for the employee has already been told that if his further overstay is for continuing in the job in Libya, it is bound to be refused.

Para 30: Should notice have been given before he is deemed to have vacated office under Rule 5 (8) (i)? Was no prejudice caused?

Para 31: Now the question of deeming the vacation of the post is mentioned both in Rule 10 which deals with 5 years' absence and also by Rule 5(8)(i) where absence is for a period less than 5 yeaRs. In the latter case, it is true, notice is normally contemplated. We have said that Rule 10 has no application to the case before us since the absence of Mr. Mansoor ali Khan's absence is less than 5 yeaRs. Now even under Rule 5(8)(i), there is a deeming provision of vacation of the post where the explanation offered by the employee, consequent upon a notice, is found not satisfactory.

Para 32: Let us then take two situations. An employee who is permitted to be abroad for two years on a job seeks extension for 3 years but is granted extension only for 1 years and is also told in advance that no further extension will be given and if he does not join after the 1-year extended period, he will be deemed to have vacated office. Let us assume that he does not joint as advised and, in a given case, notice is given calling for his explanation. He replies stating that he had entered into a further commitment for 2 years and wants one more year of extension. The University refuses extension treating the explanation as unsatisfactory and under Rule 5(8)(i) deems that he has vacated his job. No fault can be found in the procedure. Let us take another situation where the officer does not join in identical circumstances but is not given notice under Rule 5(8)(i). He has no other explanation-from what is revealed in his writ petition filed later-other than his further commitment abroad for 2 more yeaRs. In the latter case, it is, in our opinion, clear that even if no notice is given, the position would not have been different because that particular explanation would not be treated as satisfactory had already been intimated to him in advance. Therefore, the absence of a notice in the latter situation must be treated as having made no difference. That is precisely the position in the case of case of Shri Mansoor Ali Khan."

25. Another case which may have close resemblance to the present case is the judgment of the Apex Court in the case of Hyderabad Karnataka Education Society v. Registrar of Societies and others . In that case, the Apex Court was dealing with the provisions of the Karnataka Societies Registration Act, 1960 and the rules framed there under. Rule 7-A framed by the appellant society required that an ordinary member shall pay his annual subscription in advance in the month of December and that in case of his failure to pay his subscription before the end of March of any year he shall automatically cease to be a member. Holding that Rule 7-A was intra vires Section 2(b) of the said Act which defined `member'. The court further held that when required membership was not paid the rigours mentioned in Rule 7-A would automatically follow and no notice would be required to be served to him in this connection as every member knows the relevant bye-laws and rules governing his membership. The court also observed:

"Para 32: Thus remains the question of an ordinary member who has to pay a small amount of Rs. 25 for being continued as an ordinary member for the year concerned. He has been given three months' time to pay up this small amount, still if he does not do so, he has to thank himself. Then by the fourth month he will cease to be treated as an ordinary member for that year. The Society is not expected to give him further notice to show cause why he should not be treated to be an ordinary member for that year because he has not paid his subscription during the period of the first three months and has not availed of that opportunity. Such a notice is implicit in the rule itself which is well known to all members who are enrolled as such in previous yeaRs. It is the member's own inaction which makes him get out of ordinary membership for that year once the fourth month starts. Consequently, there would remain no occasion for any member of the Society to complain about failure of natural justice in not being issued a notice to show cause why he should not be treated as a non-member from April of that year. He is not being removed as an ordinary member on account of any alleged misconduct for which a show-case notice may be required on the principles of natural justice. Therefore, on that score also the rule cannot be treated to be harsh or arbitrary."

26. In para 35 of the judgment, the court further held that Rule 7-A has to be read down in order to sustain its legality and validity by providing that it would for the member concerned to apply to the society by raising a dispute about the automatic cessation of his ordinary membership by putting forward for consideration of the Society his relevant defense against the alleged non-compliance with Rule 7-A by the end of March and an application raising such a dispute is filed and if any valid ground is made out by the member concerned and if the Society accepts such application and the ground made therein, then for that year, Rule 7-A will not be treated to have dismembered him from his ordinary membership. The reading of this case makes it clear that the court held in no uncertain terms that if the conditions in Rule 7-A are satisfied, that would entail automatic cessation of the membership and no show cause was required to be served by the Society. However, in case a member wanted to avoid the consequences of the Rule and wanted to submit the application for non-payment of dues etc. then it was for him to raise such a dispute.

27. Thus, in the instant case, when the petitioner knew the consequences of not attending three consecutive meetings, it was for him to make an appropriate application well in time, i.e. at the time of absenting himself from 3rd meeting or immediately thereafter as to what was the sufficient excuse for not attending the three consecutive meetings.

28. The Apex Court cautioned long ago that it is not expedient to extend the horizon of natural justice involved in the audi alteram partem rule to the "twilight zone of mere expectations", however great they might be.[ Per Mathew, J. in Union of India v. Mohan Lal Kapoor, ]

29. No doubt, when an order visits a person, against whom such an order is passed, with civil and/or evil consequences, principles of natural justice are to be followed. However, categories like the present one, are to be excluded where it is not an `order' of the BCD but only a declaration of the fact which exists, namely, neither the petitioner attended three consecutive meetings nor offered any excuse what to talk of sufficient excuse. Further, a member to BCD is an elected member and there is no "expulsion" from this membership. He is not expelled from membership. It is a case of deemed vacation on the happening of a contingency. It is this deeming provision which has sprung into action on happening of an eventuality provided in the Section 10B of the Act.

30. As already noted above, similar deeming provision was noted in the case of Hyderabad Karnataka Education Society (supra).

31. `Deemed' is used in various senses. Sometimes it means `generally' regarded; at other times it signifies `taken prima facie to be', while in other cases it means `taken conclusively to be'. The meaning attached to the word `deemed', therefore, must depend upon the context in which it is used. In Section 10B of the Act, the words `deemed to have vacated office' would clearly mean that on the happening of contingencies provided therein, the person would no more remain in office the movement declaration is made by the Council to that effect. As far as first eventuality provided in Section 10B of the Act, to which this case relates, is concerned, the question of considering of sufficient excuse would arise only if such an excuse is given. In the absence of such excuse provided by the concerned member, mere declaration would be sufficient to put into action the deeming clause.

32. No doubt, in other provisions like Article 101(4) of the Constitution of India or Section 283(1)(g) of the Companies Act, prior permission for absence is to be obtained and there is a provision for automatic vacation from office on not attending particular number of meetings, these provisions were shown by Mr. V.P.Singh, learned senior counsel for the respondents 1 and 2 in an attempt to demonstrate that cases of election to office and incurring disqualification of such office on happening of certain contingency are to be treated differently from the cases where a person is appointed to an office and he is expelled, removed or terminated from that office. In this attempt, Mr. Singh has, prima facie, succeeded. It is but natural that provisions of such Statutes would not be identically worded. But when the matter is examined on the touchstone of applicability of principles of natural justice in such cases, when case relates to election to an office and deemed vacation of office on happening of certain contingencies, all these cases fall in same class. For this reason, judgments cited by the learned senior counsel for the petitioner in the cases of C.B.Gautam (supra) and Charan Das Malhotra (supra) would not be applicable in the instant case.

33. Once I hold that principles of natural justice are not applicable in such a situation, the petitioner is not entitled to any interim relief. However, even otherwise I am of the opinion that the petitioner is not entitled to ad interim relief in the facts of this case. Such a relief is discretionary in nature. In fact exercise of power under Article 226 of the Constitution of India itself is discretionary in nature. There are various reasons for not granting any such prayer at this stage. Some of the reasons to deny such a relief, which immediately flash across mind, are the following:

(a) The petitioner has not attended any meeting of the BCD since 2nd November, 2001 and the petitioner did not dispute this submission of the respondents 1 and 2 that as many as 35 meetings took place during this period. How much interested the petitioner would be in the affairs of the BCD when he did not attend 35 meetings!

(b) The petitioner has made the allegations in the writ petition that he was not served with the notice of the three meetings i.e. 25th April, 16th May and 25th July, 2003. This averment is, prima facie, false in view of the records shown by the respondents 1 and 2.

(c) The term of the present BCD is expiring within few days i.e. on 30th September, 2003. Indisputably, even the elections for fresh term have already been announced which are slated for 29th and 30th September, 2003. The petitioner is also in the fray. As far as present term is concerned, it has been virtually over. Most members who are seeking re-election are busy in their campaign. There is no likelihood of transacting any business by the BCD before the elections.

(d) A view is taken by the statutory elected body giving declaration that the petitioner is deemed to have vacated his office. Unless the case of extreme prejudice is shown and the petitioner is able to demonstrate that such an action is palpably illegal, no interference at interim stage is called for.

34. I am, therefore, of the opinion that no relief can be granted to the petitioner by way of ad interim order and this application is accordingly dismissed.