Delhi High Court
State Bar Council Of M.P. vs Bar Council Of India & Ors. on 6 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30.05.2018
Date of Decision : 06.07.2018.
+ W.P.(C) 2142/2016 & C.M. No. 9187/2016
STATE BAR COUNCIL OF M.P. ..... Petitioner
Through: Mr.Vikas Upadhyay with Mr.Vidit
Monge, Advs.
versus
BAR COUNCIL OF INDIA & ORS ..... Respondents
Through: Mr.Kirti Uppal, Sr. Adv. with Mr.Preet
Pal Singh with Ms.Priyam Mehta,
Advs. for BCI.
Mr.J.P. Sengh, Sr. Adv. with Mr.Sunil
Dalal, Adv. & Ms.Garima Goel, Adv.
for R-4.
+ W.P.(C) 2215/2016 & C.M. No. 9552/2016
SUNIL GUPTA ..... Petitioner
Through: Mr.Nitin Gaur, Adv. with
Mr.Anshuman Ashok, Adv.
versus
BAR COUNCIL OF INDIA & ORS ..... Respondents
Through: Mr.Preet Pal Singh with Ms.Priyam
Mehta, Advs.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
JUDGMENT
1. The present batch of writ petitions raise common issues with
similar prayers and are, therefore, being decided vide this common
judgment.
2. The first writ petition being WP(C) No. 2142/2016 has been
preferred by the State Bar Council of Madhya Pradesh (hereinafter
referred to as "SBCMP") seeking inter alia a direction to the Bar
Council of India (hereinafter referred to as "BCI") as also the Chairman
of the BCI to implement the SBCMP‟s resolutions dated 29.06.2014
and 07.02.2015, whereby Mr. Sunil Gupta was, in accordance with
Section 4(1)(c) of the Advocates Act, 1961 (hereinafter referred to as
the "Act"), elected and re-affirmed as the representative member of the
SBCMP in the BCI. The SBCMP has also sought quashing of the order
dated 05.12.2015 passed by the BCI (hereinafter referred to as the
"Impugned Order"), whereby the Election Petition being Election
Petition No. 01/2014 filed by the Mr. Sunil Gupta challenging the
alleged election of Mr. Pratap Mehta as the representative member of
the SBCMP in the BCI, has been dismissed on the ground that it is
meritless.
3. The second writ petition being WP(C) No. 2215/2016 has been
preferred by Mr. Sunil Gupta, who being aggrieved by the BCI‟s
Impugned Order dated 05.12.2015, has also sought prayers similar to
the ones sought by the SBCMP in WP(C) No. 2142/2016.
4. Before dealing with the controversy in issue, it will be
appropriate to refer to the factual matrix leading to the filing of the
present batch of writ petitions. For the sake of convenience, the parties
are being referred to by their respective statuses in WP(C) No.
2142/2016. The brief facts as emerge from the record are that the
Petitioner/SBCMP held the elections for its constituent members and
declared the results for the same in May-June 2014, pursuant whereto it
issued a notice dated 09.06.2014 for holding the first meeting of its
newly elected members on 29.06.2014. As per the aforementioned
notice, the agenda for the meeting to be held on 29.06.2014 was to
conduct elections for the various posts and committees of the
Petitioner/SBCMP, including the post of its representative member in
the Respondent No. 1/BCI (hereinafter referred to as the "Concerned
Post"). For the sake of ready reference, the relevant extract of the
Petitioner‟s notice dated 09.06.2014 is reproduced hereinbelow: -
― Part-B
Serial No. 1: Discussion, consideration and decision regarding
the election of the representative member of the Bar Council for
the Bar Council of India‖
5. Pursuant to its aforementioned notice dated 09.06.2014, the
Petitioner held a meeting on 29.06.2014, which was presided over by
the then Advocate General of the State of Madhya Pradesh and duly
attended by all the 25 members of the Petitioner/SBCMP. It is the
Petitioner‟s case that in the said meeting, the Respondent No. 3/Mr.
Sunil Gupta‟s name was proposed for the Concerned Post, and since
the same was unanimously approved by all its members, the
Respondent No. 3 was elected as the representative member of the
Petitioner/SBCMP in the Respondent No. 1/BCI in accordance with
Section 4(1)(c) of the Act. It is the Petitioner's further case that its
Secretary had duly communicated the result of the aforesaid meeting to
the Respondent No. 1 whereafter the Respondent No. 3 took charge of
the Concerned Post and started discharging the accompanying official
duties. However, it transpires that on 29.06.2014 itself, 9 members of
the Petitioner/SBCMP wrote a letter to its Secretary requesting him to
organize a meeting for conducting elections to the various posts and
committees of the Petitioner/SBCMP. The said letter alleged that after
the election of the Petitioner/SBCMP's Chairman on 29.06.2014, the
meeting had been adjourned and the available members, without any
further notice to the members who had thereafter left the place of
meeting, reconvened the meeting and purportedly elected the
Respondent No. 3 to the Concerned Post.
6. Thereafter, it emerges that some of the Petitioner/SBCMP‟s
members, on 13.07.2014, sent letters to its Secretary with a request to
initiate a 'No-Confidence Motion' under Rule 122-A of State Bar
Council of Madhya Pradesh Rules (hereinafter referred to as the
"SBCMP Rules") against Mr. Rameshwar Neekhra, the
Petitioner/SBCMP‟s Chairman. The Petitioner/SBCMP's members
made the aforesaid request on the ground that even though the meeting
held on 29.06.2014 was to be reconvened for the purpose of conducting
elections to the other posts and committees of the Petitioner/SBCMP,
the Chairman had paid no heed to the said request and no meeting for
the aforementioned purpose was organized either on 29.06.2014 or
even thereafter till 13.07.2014.
7. Taking cognizance of the letters dated 29.06.2014 and
13.07.2014 sent by the various members of Petitioner, the Petitioner‟s
Secretary sent a notice dated 19.07.2014 to all the members of the
Petitioner/SBCMP informing them of a special meeting scheduled to be
held on 02.08.2014 for deciding the issues brought forth in the said
letters. For the sake of ready reference, the Petitioner‟s notice dated
19.07.2014 is reproduced hereinbelow:-
―MADHYA PRADESH STATE BAR COUNCIL: JABALPUR
HIGH COURT CAMPUS, JABALPUR-482007
SI./SBC/MP/Special Meeting/General Body/4311/2014
Date-19/7/2014
Amended Letter for the Special Meeting Dated 16/7/2014
To,
All the Hon'ble Members,
State Bar Council of Madhya Pradesh
Sir/Ma'm,
The special meeting of general body of Madhya Pradesh State
Bar Council has been called at 11 o'clock in the morning on 2nd of
August, 2014, day - Saturday, in the meeting Hall of Council's
office. In which, a signed letter dated 29/06.2014 by 9 honourable
members, 2 letters dated 13/07/2014 signed by 11 honourable
members received on 14/07/2014, and 2 letters dated 15/07/2014
received from email signed by 2 honourable members and 2 letters
dated 16/07/2014 Centre by onse honourable member, out of which
by one letter the request has been made to call for meeting for the
election to the post of vice-chairman, Treasurer are, representative
to the bar Council of India and other committees and by the 2nd letter
the proposal for non-confidence has been submitted against the
Chairman of the Council under rule 122-A of the Council. Both the
aforesaid letters are to be adjudicated in the special meeting. You
all are requested to be present in the meeting.
That for the convenience of Hon'ble members, rule 122-A is as
under:-
122A. The Chairman, Vice-Chairman or the Treasure of the
Council could be removed by a voice of no confidence passed by
majority of the members, present and voting in a meeting of the
Council especially called for a 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.
Sd/-
Acting Secretary‖
8. It emerges that when the special meeting was convened on
02.08.2014, the Petitioner/SBCMP's members withdrew the proposed
No-Confidence Motion against its Chairman, who in turn, by placing
reliance on the various letters sent by Petitioner/SBCMP's members,
declared all the elections held on 29.06.2014, except his own, as void
since they were not conducted as per law. The Chairman categorically
observed that after his election, the meeting held on 29.06.2014 had
been adjourned and consequently, some members had already left the
place of the meeting and, therefore, even though some elections were
conducted by the remaining members, all such subsequent elections
were void since they had been conducted without any notice to the
other members of the Petitioner/SBCMP. The Chairman, therefore,
directed that the minutes of the meeting held on 29.06.2014 recording
the elections to all the posts and committees of the Petitioner/SBCMP,
excluding the post of Chairman, be deleted from the minutes‟ book.
Furthermore, the Chairman, after observing that all the members who
had been elected to various committees and posts of the Petitioner on
29.06.2014, except the Respondent No. 3, had tendered their
resignations, directed holding of fresh elections on the same date for all
such vacant posts as also the Concerned Post. It is in this subsequent
election, held on 02.08.2014, that the Respondent No. 4/Mr. Pratap
Mehta was declared as the elected representative member of the
Petitioner/SBCMP in the Respondent No. 1/BCI.
9. Aggrieved by the aforesaid resolution dated 02.08.2014,
recording that Respondent No. 4 had been elected to the Concerned
Post, the Respondent No. 3 filed an Election Petition being Election
Petition No. 01/2014 under Rule 9 of the Bar Council of India Rules
(hereinafter referred to as the "BCI Rules") read with Section 40-B of
the Act before the Respondent No. 1/BCI, thereby impugning the said
resolution. It is the Respondent No. 3‟s case that he had also raised
objections to the Respondent No. 4‟s election to the Concerned Post
before the Petitioner/SBCMP.
10. During the pendency of the Respondent No. 3‟s
aforementioned election petition, the Petitioner/SBCMP after re-
examining the facts of the case, passed a resolution dated 07.02.2015,
with a majority of 17 votes, withdrawing its earlier resolution dated
02.08.2014, thereby re-affirming the Respondent No. 3 as its
representative member in the Respondent No. 1/BCI. While passing the
aforesaid resolution dated 07.02.2015, the Petitioner observed that the
election held on 29.06.2014 had been conducted as per the prescribed
agenda in the notice dated 09.06.2014 and since the Respondent No. 3
had neither resigned from his post nor any No-Confidence Motion had
been passed against him, his election to the Concerned Post remained
valid. In this resolution, the Petitioner also declared the election of the
Respondent No. 4 to the Concerned Post vide the resolution dated
02.08.2014, as null and void.
11. Keeping in view the fact that he had been re-affirmed as the
Petitioner/SBCMP‟s representative member in the Respondent No.
1/BCI, the Respondent No. 3, on 11.02.2015, filed an application
before the Respondent No. 1 seeking leave to withdraw his
aforementioned Election Petition. However, instead of allowing the
Respondent No. 3‟s application for withdrawal, the Respondent No.
2/Chairman of the BCI, by placing reliance on the statements of the
majority of the members of the Petitioner/SBCMP, vide order dated
16.11.2015 held that a prima facie case existed in favor of Respondent
No. 4 and therefore, allowed him to join the Respondent No.1/BCI as a
member pending the final orders of the sub-committee which was to be
specially constituted for enquiring into the elections of the Respondent
No. 3/Mr. Sunil Gupta and the Respondent No. 4/Mr. Pratap Mehta to
the Concerned Post.
12. Pursuant to the aforesaid order dated 16.11.2015, the Respondent
No. 2, on 21.11.2015, constituted a sub-committee for considering the
issues raised by Respondent No. 3. The Sub-committee considered the
aforementioned letters sent by the Petitioner/SBCMP‟s members to the
Petitioner/SBCMP's secretary as also the statements given by the
Advocate General of the State of Madhya Pradesh and the
Petitioner/SBCMP‟s Secretary and came to the following conclusions:
―8. The Secretary, State Bar Council of MP issued notice on
09.06.2014 for holding elections to the office of Chairman/Vice-
Chairman of Bar Council of Madhya Pradesh, its different
Committees and election to the office of Member-Bar Council of
India for 29.6.2014. This was the First Meeting after the declaration
of the results and publication of the names of the elected members.
9. This First Meeting was attended to by all the elected members of
the State Bar Council and it was Pradesh. The record reveals that
Mr.Rameshwar Neekhra, Sr. Advocate was declared elected as the
Chairman of the State Bar Council by the Ld. Advocate General.
10. After this election was over, this First Meeting was
adjourned. Even the minutes of the proceedings of the First Meeting
prepared by the Secretary of the State Bar Council and approved by
the Chairman on 11.07.2014 clearly reveal that this First Meeting
was adjourned after the conclusion of the election of the Chairman.
The apparent reasons for this adjournment given in the said Minutes
are that the newly elected Chairman was to be congratulated on his
election and the members were to honourably see off the Advocate
General.
11. The Minutes further reveal that sometime after the First
General Council Meeting was over and AG was seen off and new
Chairman was congratulated on his victory, fresh Meeting of the
Council was started by the ―members present there‖. It is apparent
that in this second meeting all the members were not present.
However, the newly elected Chairman was present. This record is
completely silent as to the identity and number of members who
attended this second meeting. There is no record as to who formally
convened this second meeting. It is even not clear at what place this
2nd meeting took place. Once a meeting was adjourned, how could it
have been resumed without proper and legal notice to all the
members? When this meeting was adjourned, the members were not
told that the meeting would resume that day. It was imperative that
members should have been specifically told that the meeting would
resume that day. No such thing was done. This adjournment is an
admitted fact. Another thing which is apparent from the face the
record is that at the time of announcement of adjournment, there was
no announcement as to when the meeting would resume. It was
adjournment simpliciter without assigning any time or day for its
resumption. We are of the opinion that once the meeting is
adjournment sine die. The acts/deeds of ―congratulating the news
elected Chairman‖ and non-specific as to the duration of time that
the members may take in completing the aforesaid acts/deeds. These
acts/deeds may consume any account of time and may take any form.
It cannot be said that these acts are inherently of short and
insignificant duration. Had it been so, there was no need of
announcing a formal adjournment of the meeting. After such
adjournment, every member having voting rights is entitled to fresh
due notice of the meeting.
One thing is clear that part of the business (i.e. election of Vice
Chairman, Treasurer, Member-BCI and constitution of different
Committees etc.) fixed for 29.06.2014 was not transacted on that day
in the First Meeting that was adjourned at about 12 Noon.
12. The record further reveals that the Secretary of the Council
prepared the Minutes later on and he put his signatures on each
paper but the Chairman put his signature only on the last page on
11.07.2014.
13. One controversy between the parties is if election to the
office of Member-Bar Council of India and election to different
Committees of the State Bar Council were held on 29.6.2014 in
which he was declared elected. This claim is that this election took
place in the second gathering that took place after the First Meeting
had been adjourned. On the other hand, the case of the respondent is
that the meeting of the State Bar Council on 29.6.2014 was presided-
over by Advocate-General who acted as Returning Officer for
election to the office of Chairman, Bar Council of Madhay Pradesh.
After declaration of the aforesaid results, meeting was adjourned
sine-die and other business fixed for 29.6.2014 was not transacted
on that day. This position is supported by the Statement of
Officiating Secretary, State Bar Chairman, the meeting was
adjourned and the advocate General left the office. In this respect,
there is one representation made by nine members of the State Bar
Council addressed to the Chairman that election meeting held on
29.6.2014 was filled up by way of election, but no meeting after such
adjournment took-place and a request was made that the House may
be reconvened. This letter was received in the office of State Bar
Council on 29.6.2014 itself. The Officiating Secretary states that this
application/representation by 9 members was made at about 2 PM
and the second so-called meeting/gathering had taken place only
after 2 PM.
Much reliance cannot be placed on these Minutes qua constitution of
different Committees of the State Bar Council and election of Bar
Council of India member for the following reasons:-
(i) As per Rule 3 of Chapter I, Part-II of Bar Council of
India Rules framed under the Advocates Act, 1961, the
election to the office of Member-Bar Council of India is to be
conducted by the Secretary of the State Bar Council who
shall act as Returning Officer. We have perused the minutes
and it nowhere shows that election to the office of Member-
Bar Council of India was conducted by the Secretary as
Returning Officer on 29.6.2014. The statement of Secretary,
State Bar Council of Madhya Pradesh recorded on
3.1.20145 also reinforces the aforesaid position.
(ii) It is proved on record that after the Chairman of the
State Bar Council was elected on 29.6.2014, the meeting was
adjourned. In this respect, we have closely scrutinized the
election record and we are of the firm opinion that the
meeting on 26.6.2014 was adjourned sine-die after the
election to the office of Chairman of State Bar Council was
concluded and there is no material to show that this meeting
was reconvened that second gathering of some of the
Members of the State Bar Council took place which is being
styled as a ―Council meeting‖ by the petitioner in which
different committees were constituted and election of the
office of member-bar Council of India was held has no
sanctity in the eyes of law. It is no Council meeting in the
eyes of law. It is just a informal gathering of some members
of the State Bar Council.
(iii) The position that no election meeting was held in the
afternoon hours is supported by the letters/emails dated
13.07.2014 received in the office of State Bar Council on
14.07.2014 wherein as many as 11-13 members of the State
Bar Council have stated that no election to the office of Bar
Council of India had taken place on 29.06.2014 and that the
adjourned meeting was never reconvened in the afternoon
hours.
(iv) Had meeting leading to the election of Member-bar
Council of India taken place in the So-called second meeting
on 29.06.2014 the Secretary of the State Bar Council would
have taken necessary steps for communicating the same to
the Secretary, Bar Council of India and for publication in
the State Gazette as per Law. But nothing of this sought has
been done. The fact that no follow up action was taken by
the Secretary of the State Bar Council in terms of Rule 8 (9 )
of the relevant rules, envisaging communication of the result
of the election of Member-Bar Council of India to the
Secretary, Bar Council of India forthwith and to send the
same for gazetted notification only leads to aforesaid office
on 29.06.2014.
14. The plea of the Petitioner that the Secretary of the State Bar
Council communicated the election result6 of the petitioner to Bar
Council of India in compliance of Rule 8(9) is not borne out from
the record of the case. There is no communication on the file
showing that such communication was ever made by him. Not only
this, the election result has admittedly not been published in the
State gazette.
15. In the light of the aforesaid discussion, the Minutes of the
meeting of 29.6.2014 with respect to the election of Member-Bar
Council of India and constitution of different committees of the
State bar Council is of no help to the petitioner and his part of the
Minutes is bad in law cannot be relied upon for any purpose.
16. The fact that Petitioner Mr.Sunil Gupta attended Meeting of the
Bar Council of India and was member of the Inspection team of Bar
Council of India which inspected law colleages is of little
importance. This conduct on the part of Bar Council of India or on
the part of the Petitioner cannot validate his election. In fact, no
election had taken place in which Petitioner could be said to have
been elected as Member-Bar Council of India.
17. Another important contested issue between the parties which
awaits decision is about the validity and legality of the election of
Member-Bar Council of India held on 2.8.2014. Vide letter bearing
No.KSBC/MP/SPCL/Meeting/Gen. Meeting/4311/MP/SPCL
Meeting/Gen.Meeting/4311/2014 dated 19.7.2014, Secretary of
State Bar Council convened a Special Meeting of General House of
the State Bar Council of Madhya Pradesh for 2.8.2014 and agenda
for this meeting was as follows:-
1. Consideration of leeter dated 28.6.2014 written by nine member
of the State Bar Council;
2. Consideration of letter dated 13.7.2014 received in the office of
State Bar Council on 14.7.2014 signed by the 11-13 Members of
State Bar Council.
3. Consideration of two letters sent to the Secretary State Bar
Council through emails.
18. In this agenda, it is specifically mentioned that the meeting is
being convened in order to find a solution to the demands made in
the aforesaid letters and for holding meeting for election of Vice-
Chairman, Treasurer and Member-State Bar Council of India and
constitution of different Committees of the State Bar Council. The
copies of the aforesaid letters were also annexed with this agenda
as pages 1 to 7. Further no confidence motion as against the
Chairman under Rule 122A of the State Bar Council of Madhya
Pradesh Rules, was fixed for consideration.
19. This notice was addressed to all the member of the State Bar
Council who in response thereto attended special meeting of the
State Bar Council held on 2.8.2014 this meeting was attended by all
the 25 member.
20. Vide the aforesaid letter/representation dated 29.6.2014 moved
by 9 Members of the State Bar Council, a request was made that
the meeting of the State Bar Council which was adjourned on
29.6.2014 may be reconvened so that the un-transacted business of
the agenda for 29.6.2014 i.e. holding of election of Member-Bar
Council of India and filling up of other posts offices/committees is
transacted. The other letters dated 13.7.2014 and email also
contain a special request that the meeting which was adjourned on
29.6.2014 after the election of Chairman State Bar Council may be
convened. In addition to it, agenda contained consideration of the
no confidence motion as against the Chairman, State Bar Council.
21. If aforesaid agenda dated 19.7.2014 and annexures No.1 to 7
are read as a whole harmoniously, it becomes clear that the
meeting of 2.8.2014 was in continuation of the meeting held on
29.6.2014 in order to dispose of and transact the un-transacted
business which was fixed for 29.6.2014. In this respect
representation of 9 Member dated 29.6.2014 is very specific and
clear.
22. In this view of the matter no exception can be taken to the
legality of the meeting held on 2.8.201 on the ground that sufficient
notice of the election of Member-Bar Council of India was not
given the Members.
23. In our considered view the aforesaid notice dated 19.7.2014 is
sufficient notice for holding of election to the office of Member-Bar
Council of India held on 2.8.2014 was duly published in the State
gazette.
24. In the light of the above discussion we are of the considered
view that the election petition filed by Mr.Sunil Gupta is without
merits and deserves to be rejected under rule 10(1) of the relevant
rules as it does not disclose any prima-facie case and there is no
need for determination of this dispute on merits under Rule 10(2) of
the Rules.
13. After considering the Sub-committee‟s report dated 04.12.2015,
the General Body of the Respondent No. 1/BCI, vide its Impugned
Order dated 05.12.2015, dismissed the Respondent No. 3‟s Election
Petition holding that the Respondent No. 3‟s election to the Concerned
Post was invalid and that there was no infirmity in the Respondent No.
4‟s election to the Concerned Post. In the meanwhile, upon learning
about the Respondent No. 2‟s order dated 16.11.2015 allowing the
Respondent No. 4 to join the Respondent No. 1/BCI as a member till
the final order of the Sub-committee, the Petitioner/SBCMP preferred a
writ petition being WP(C) No. 973/2016 impugning the said order of
the Respondent No. 2. However, it transpires that during the pendency
of the aforesaid writ petition, the Petitioner, on 09.02.2016, was
informed of the Respondent No. 1's Impugned Order dated 05.12.2015
dismissing the Respondent No. 3‟s election petition as meritless. It is in
these circumstances that the Petitioner/SBCMP has withdrawn the writ
petition being WP(C) No. 973/2016 and approached this Court vide
WP(C) No. 2142/2016 to challenge the Impugned Order dated
05.12.2015.
14. Having set out the facts hereinabove, I may now refer to the rival
contentions of the parties. Mr. Vikas Upadhyay, learned counsel for the
Petitioner, contends that on 29.06.2014 all the elections held pursuant
to the election of Petitioner‟s Chairman, including the Respondent No.
3/Mr. Sunil Gupta‟s election to the Concerned Post, had been
conducted as per the procedure prescribed under the BCI Rules and
were, therefore, perfectly valid. He submits that in accordance with
Rule 7 of the BCI Rules, the Petitioner had, through its Secretary, sent
a notice on 09.06.2014 to all its members with the prescribed agenda
for conducting elections on 29.06.2014 to the various posts and
committees of the Petitioner/SBCMP, including the elections to the
Concerned Post.
15. Taking his aforementioned plea further, Mr. Upadhyay submits
that Rule 3 of the BCI Rules mandates that the Secretary of a State Bar
Council shall act as the Returning Officer for the purpose of conducting
elections to the post of its representative member in the Bar Council of
India. Therefore, he contends, the Respondent No. 3‟s election to the
Concerned Post having been conducted by the Petitioner/SBCMP‟s
Secretary in the presence of all its 25 members, who had unanimously
elected the Respondent No. 3, was valid. In support of his aforesaid
plea, Mr. Upadhyay also places reliance on the Minutes of the Meeting
dated 29.06.2014 to show that not only the attendance sheet had been
signed by all the 25 members but even each page of the minutes of the
aforesaid meeting had been duly signed by the Petitioner/SBCMP‟s
Secretary and thereafter approved by its Chairman. Mr. Upadhyay
further submits that after the Respondent No. 3 had been elected to the
Concerned Post on 29.06.2014, his name was uploaded on the
Respondent No. 1‟s website as a member of the Bar Council of India
and the Respondent No. 1 had also issued him visiting cards and
envelopes addressing him as its member.
16. However, Mr. Upadhyay submits that while the Respondent No.
3 was elected to the Concerned Post in accordance with law, the
Petitioner‟s Chairman had, vide resolution dated 02.08.2014, cancelled
the Respondent No. 3‟s election without following the procedure
prescribed under the BCI Rules. He submits that if any of the members
of the Petitioner/SBCMP were of the view that the Respondent No. 3‟s
election to the Concerned Post was not conducted in accordance with
law, it was open to them to challenge the same by way of an Election
Petition under Rule 9 of the BCI Rules, which was not done in the
present case. Therefore, he contends, the cancellation of the
Respondent No. 3‟s election was manifestly illegal.
17. Without prejudice to his aforesaid contention, Mr. Upadhyay
submits that even the election of the Respondent No. 4/Mr. Pratap
Mehta to the Concerned Post was in clear violation of the BCI Rules as
also the SBCMP Rules. He submits that when a notice is issued under
Rule 7 of the BCI Rules to schedule a meeting for electing the
representative member of a State Bar Council in the Bar Council of
India, the said notice should also specifically include the agenda for
conducting the said election, which was admittedly not done in the case
of the Respondent No. 4's election. He submits that the meeting held on
02.08.2014 was only scheduled to consider some of the letters sent by a
few members of the Petitioner/SBCMP to its Secretary, which letters
pertained to entirely different issues. Even otherwise, he submits, as per
Rule 15 of the SBCMP Rules, the Petitioner/SBCMP's decision cannot
be reconsidered within a period of 3 months unless the same is
permitted by at least a 2/3rd majority. Therefore, Mr. Upadhyay
contends that the resolution recording the Respondent No. 3's election
to the Concerned Post, having been passed only on 29.06.2014, could
not have been reconsidered by members much less than a 2/3rd majority
in the meeting held on 02.08.2014. Thus, Mr. Upadhyay's contention is
that the resolution dated 29.06.2014 recording that the Respondent No.
3 had been elected to the Concerned Post was reconsidered by the
Petitioner within a period of three months by less than a 2/3rd majority
of its members and was, therefore, the said reconsideration was illegal
18. Finally, Mr. Upadhyay contends that since none of the members
of the Petitioner/SBCMP have hitherto challenged the resolutions dated
29.06.2014 and 07.02.2015 electing and re-affirming the Respondent
No. 3/Mr. Sunil Gupta as the representative member of the
Petitioner/SBCMP in the Respondent No. 1/BCI, the said resolutions
have attained finality and on this ground alone, the writ petition is
entitled to succeed.
19. Mr. Nitin Gaur, learned counsel for the Respondent No. 3/Mr.
Sunil Gupta, while reiterating the submissions made by Mr. Upadhyay,
at the outset submits that it has been falsely contended by the
Respondents No. 1 and 2 that subsequent to the Chairman's election,
the meeting held on 29.06.2014 was adjourned sine die and no other
elections were held thereafter. While refuting the aforesaid contention
of the Respondents No. 1 and 2, Mr. Gaur submits that the meeting was
never adjourned on 29.06.2014 but it was only halted for some time to
see off the then Advocate General, who had presided over the meeting
for election of the Petitioner/SBCMP's Chairman. Thereafter, Mr. Gaur
submits that the elections to the other posts and committees of the
Petitioner/SBCMP were to be conducted under the supervision of the
newly elected Chairman. In support of his aforesaid plea, Mr. Gaur
places reliance on the minutes of the meeting dated 29.06.2014,
wherein it has been duly recorded that the said meeting was "stayed for
seeing off the Advocate General and thereafter again meeting was
commenced and elections on difference post and committee was held."
20. Mr. Gaur further contends that the Respondent No. 1 has, by
passing the Impugned Order, completely usurped jurisdiction which it
did not possess and has arbitrarily dismissed the Respondent No. 3‟s
election petition. He submits that after the Petitioner/SBCMP had on
07.02.2015, by a 2/3rd majority, withdrawn the resolution dated
02.08.2014 and re-affirmed the Respondent No. 3/Mr. Sunil Gupta as
its elected representative in the Respondent No. 1/BCI, the Election
Petition had become infructuous and the same ought to have been
permitted to be withdrawn. He, thus, contends that once the
Respondent No. 3 had filed an application for the withdrawal of the
election petition, the jurisdiction of the Respondent No. 1 to act on the
said petition ended there itself, but the Respondent No. 1, instead of
dismissing the petition as withdrawn, illegally dismissed the petition as
meritless.
21. On the other hand, Mr. J.P Sengh, learned Senior Counsel for the
Respondent No. 4/Mr. Pratap Mehta, by placing reliance on the
statement dated 03.01.2015 of the Petitioner‟s Secretary as also the
letters dated 29.06.2014 and 13.07.2014 sent by the members of the
Petitioner/SBCMP, contends that after the election of Petitioner‟s
Chairman on 29.06.2014, the meeting was adjourned sine die and no
elections to other posts and committees of the Petitioner were
conducted thereafter. Even otherwise, he contends, the Respondent No.
3/Mr. Sunil Gupta could not have been validly elected to the Concerned
Post on 29.06.2014 since his election was not conducted as per the
mandatory procedure prescribed under the BCI Rules. By placing
reliance on the statement dated 03.01.2015 of the Petitioner‟s
Secretary, Mr. Mukesh Mishra, who had categorically admitted before
the Respondent No. 1‟s Enquiry Committee that he had never been
appointed as the Returning Officer for the purpose of conducting the
elections to the Concerned Post on 29.06.2014, Mr. Sengh submits that
it has been wrongly contended on behalf of the Petitioner as also the
Respondent No. 3 that the Petitioner/SBCMP‟s Secretary had
conducted the election to the said post on 29.06.2014. He, thus,
contends that the election dated 29.06.2014 was in violation of the BCI
Rules as the Petitioner‟s Secretary had never been appointed as the
Returning Officer for the aforesaid election.
22. Mr. Sengh further submits that as per Rule 8(9) of the BCI
Rules, after the result of the election of a representative member of a
State Bar Council in the Bar Council of India is declared, the Secretary
of the concerned State Bar Council is required to communicate the
aforesaid result to the Secretary of the Bar Council of India and also
send the same to the concerned gazette for its publication. He contends
that the alleged election of the Respondent No. 3/Mr. Sunil Gupta as
the representative member of the Petitioner/SBCMP in the Respondent
No. 1/BCI was neither communicated by the Petitioner‟s Secretary to
the Respondent No. 1 nor was it notified in the Gazette as required
under Rule 8(9) of the BCI Rules. Mr. Sengh, thus, contends that the
alleged election of Respondent No. 3 on 29.06.2014 was rightly not
accepted by the Respondent No. 1. On the contrary, he contends it is
the Respondent No. 4/‟s election to the Concerned Post, which is valid
since it was conducted strictly in accordance with the procedure laid
down in the BCI Rules. He submits that the meeting held on
02.08.2014 had been preceded by an agenda for holding the elections to
the Concerned Post, as stated in the Petitioner‟s amended notice dated
19.07.2014, whereafter the Petitioner‟s Secretary had been duly
appointed as the Returning Officer as per Rule 3 of the BCI Rules for
conducting the aforesaid elections on 02.08.2014. Thereafter, he
submits that as per Rule 8 (9) of the BCI Rules, the result of the
Respondent No. 4's election to the Concerned Post was duly
communicated to the Respondent No. 1‟s Secretary vide letter dated
02.08.2014 and notified in the Official Gazette on 15.08.2014.
23. Mr. Sengh further contends that the Petitioner‟s resolution dated
07.02.2015 reviving the election dated 29.06.2014 is bad in law insofar
as the election of the Respondent No. 3/Mr. Sunil Gupta is concerned.
He submits that after the Petitioner‟s Chairman had already concluded
that that no valid elections, except his own, had taken place on
29.06.2014, there was no question of reviving the same as it already
stood expunged from the minutes‟ book vide resolution dated
02.08.2014. He further contends that even otherwise, once the
Respondent No. 3‟s Election Petition was sub-judice, the resolution
dated 07.02.2015 could not have been passed by the Petitioner and
thus, the same had been rightly stayed by the Respondent No. 2 by
passing an interim order to the effect on 08.02.2015.
24. Taking Mr. Singh‟s pleas further, Mr. Kirti Uppal, learned
Senior Counsel for the Respondent No. 1/BCI and the Respondent No.
2/Chairman of the BCI, submits that once a representative member of
the Petitioner in the Respondent No. 1/BCI is elected, he can only be
removed either under Rule 4 of the BCI Rules or by passing a No-
Confidence Motion against him. By placing reliance on Rule 4 of the
BCI Rules, Mr. Uppal submits that a person elected as a member of the
Bar Council of India under Section 4(1)(c) of the Act, ceases to be a
member either from the date he ceases to be a member of the State Bar
Council or on the Bar Council of India‟s acceptance of his resignation.
Mr. Uppal, thus, contends that once the Respondent No. 4/Mr. Pratap
Mehta was elected as the representative member of the
Petitioner/SBCMP in the Respondent No. 1/BCI vide resolution dated
02.08.2014, the Petitioner had no power to declare his election as void
or revive the resolution dated 29.06.2014 recording Respondent No. 3's
election to the Concerned Post.
25. Mr. Uppal further submits that the Petitioner has wrongly
contended that the Respondent No. 2/Chairman of the BCI did not have
jurisdiction to pass the order dated 16.11.2015 allowing the Respondent
No. 4 to join the Respondent No. 1 as a member till the final order of
the Sub-committee. He contends that as per Rule 18 of the BCI Rules,
the Chairman of the BCI can pass interim orders in revisional and other
matters relating to the supervisory jurisdiction of the BCI and in his
absence, even the chairman of the Sub-committee can pass any orders
relating to supervisory jurisdiction of the BCI. He, thus, contends that
the Respondent No. 2 had, by passing the order dated 16.11.2015,
rightly permitted the Respondent No. 4 to join the Respondent
No.1/BCI as its member pending the final order of the sub-committee.
26. Having heard the rival contentions of the parties and perused the
record, I find that the first issue which arises for my consideration in
the present petitions is whether the Respondent No. 3/Sunil Gupta was
validly elected as a representative member of the Petitioner/SBCMP in
the Respondent No. 1/BCI on 29.06.2014 after following the procedure
prescribed in the BCI Rules? If yes, could his election to the said Post,
vide resolution dated 29.06.2014 be set aside and in his place, could
Respondent No. 4/Mr. Pratap Mehta be elected as the representative
member of the Petitioner/SBCMP in the Respondent No. 1/BCI?
Furthermore, even if the Respondent No. 3/Mr. Sunil Gupta's election
to the Concerned Post vide resolution dated 29.06.2014 is invalid, has
the election of the Respondent No. 4/Mr. Pratap Mehta on 02.08.2014
to the said Post been conducted in accordance with the procedure
prescribed under the BCI Rules?
27. Before proceeding further, it may be appropriate to refer to
Sections 4 and 8 of the Advocates Act, 1961, which read as under:-
―4. Bar Council of India.--
(1) There shall be a Bar Council for the territories to which this Act
extends to be known as the Bar Council of India which shall consist
of the following members, namely:--
(a) the Attorney-General of India, ex officio;
(b) the Solicitor-General of India, ex office
1[***]
(c) one member elected by each State Bar Council from amongst its
members.
8. Term of office of Members of State Bar Council.--
The term of office of an elected member of a State Bar Council (other
than an elected member thereof referred to in section 54) shall be
five years from the date of publication of the result of his election:
Provided that where a State Bar Council fails to provide for the
election of its member before the expiry of the said term, the Bar
Council of India may, by order for reasons to be recorded in writing,
extend the said term, the Bar Council of India may, by order, extend
the said term for a period not exceeding six months.‖
28. It may also be necessary to refer to the relevant provisions of
Part-II, Chapter-1 of the Bar Council of India Rules, which read as
under: -
―2.(1) The notice and agenda for the first meeting of the State Council
held after the election of its members on the expiry of the term of its
members elected at the previous election under Section 8 of the Act
may include the election of a member of the State Council to the
Council under Section (1) (c) of the Act.
(2) Every such election shall be held not later than 30 days after the
first meeting of the State Council after election under Section 8 of the
Act.
3. The election of a member of the Council shall be conducted by the
Secretary of the State Council who shall act as the Returning Officer.
4. A person elected as a member of the Council under Section 4 (1)
(c) of the Act shall cease to be such member :
(a) from the date when he ceases to be a member of the State Council
as mentioned in Section 4 (3) (ii) of the Act.
(b) on the acceptance by the Council of his resignation.
xxx
7. Every notice by the Secretary of the State Council fixing a date for
the election of a member to the Council under these rules shall be sent
not less than 15 clear days before the date fixed for the election. A
copy of the said notice shall be sent simultaneously to the Secretary of
the Council.
8. (1) The name of each candidate for the election shall be proposed
by one member and seconded by another member of the State Council
at the meeting. No member shall propose or second more than one
name.
(2) If only one candidate has been duly nominated, the Returning
Officer shall declare him elected.
(3) Any nominated candidate can withdraw before the voting takes
place.
(4) If the number of candidates duly nominated is more than one,
there shall be an election by secret ballot. The Returning Officer shall
provide voting papers with the names of the candidates typed. Each
voting paper shall bear the signature of the Returning Officer.
(5) A voter in giving his vote shall place in his voting paper the mark
‗X' against the name of the candidate of his choice.
The voting paper shall not be signed by the voter and in the event of
any erasures, obliterations or alterations in the voting papers or of the
voting paper purporting to have been signed by the voter, the voting
paper shall be deemed to have been defaced and the vote purporting
to have been given thereby shall not be taken into account for the
purposes of the election. Subject to the provisions of Rule 10, the
decision of the Returning Officer whether the voting paper has or has
not been defaced shall be final.
A voting paper shall be invalid on which-
(a) the mark ‗X' is not made, or
(b) the mark ‗X' is set opposite the name of more than one candidate
or is so placed as to render it doubtful to which candidate it is
intended to apply, or
(c) the mark ‗X' and any other mark of figures are set opposite the
name of the same candidate, or
(d) there is any mark in writing by which the voter can be identified.
(6) The Returning Officer shall count the valid votes immediately
after the close of voting in the presence of the candidates or their
nominees who may choose to be present.
(7) The candidate securing the largest number of the votes shall be
declared elected by the Returning Officer. In the case of two more
candidates securing an equal number of votes, the Returning Officer
shall decide the election by drawing lots.
(8) Immediately after he declaration of the result, the Returning
Officer shall put the ballot papers used for voting in the election in a
separate cover, have the cover closed and sealed with his signature
and that of all contesting candidates if they desire to do so.
(9) The result of the election shall be communicated forthwith to the
Secretary of the Council and sent to the State Gazette or Gazettes
concerned for publication.
9. (1) In case of a dispute arising out of the election, any of the
contesting candidates, or any other member of the State Council, may
challenge the election by a petition which shall be filed with, or
dispatched by registered post to the Secretary of the Council within 10
clear days of declaration by the Returning Officer of the result of the
election as mentioned in Rule 8 (7). The petitioner shall also send
copies of the petition to all the contesting candidates and to the
Secretary of the State Council.
(2) As soon as possible after the receipt of the copy of the petition
under sub-rule (1), the Secretary of the State Council shall send the
sealed cover containing the ballot papers referred to in Rule 8 (8)
above, and all other papers and records relating to the election to the
Secretary of the Council
10. (1) The Council may reject any petition received under Rule 9, if,
in its opinion, there is no prima facie case.
(2) If the Council is of the opinion that there is a prima facie case,
either the Council or a Committee of the Council comprising not more
than 3 members of the Council constituted therefor shall, after
hearing all the parties concerned, determine the said dispute.
(3) The Council, or the Committee, as the case may be, shall have all
or any of the following powers:
(a) to dismiss the petition;
(b) to set aside the election;
(c) to declare any candidate as having been duly elected;
(d) to order a fresh election; and
(e) to make an order as to costs.
(4) A copy of the Order of the Council or the Committee may be sent
to the State Council.
(5) The State Council concerned shall cause such fresh election to be
held as may be ordered under sub rule (3) of this rule.
(6) The parties shall be entitled to obtain copies of the Order or the
decision of the Council or of the Committee as the case may be, on
payment of the charges, if any, prescribed therefor under the rules of
the Council. The Chairman of the Council or the President of the
Committee, as the case may be, may also permit copies of any other
part of the record of the enquiry to be furnished on payment of such
charges as may be prescribed during the pendency of the election
petition.
xxx
22. 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 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 atleast 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 procedure for electing a member of a State Bar Council to
be a member of the Bar Council of India is stipulated under the rules
framed in Part-II, Chapter-1 of the Bar Council of India Rules. As per
the procedure laid down in the BCI Rules, once the members of the
State Bar Councils are elected under Section 8 of the Act, the State Bar
Councils are required to hold a „first meeting‟ of its newly elected
members for conducting elections to the various posts and committees
of the said Councils. In accordance with Rule 2, the notice and agenda
of the first meeting may include an agenda for the election of a member
of the State Bar Council to the BCI under section 4(1)(c) of the Act,
which election in any case is to be held not later than 30 days after the
„first meeting‟ of the State Bar Council. Rule 3 further provides that the
Secretary of the State Bar Council shall act as the Returning Officer for
the purpose of conducting the election of a member of the BCI and
Rule 7 makes it incumbent upon the Secretary of the State Bar Council
to send a 15 days‟ clear notice to all the members of the State Bar
Council for fixing a date for the election of a member of the State Bar
Council to the BCI, which communication is also required to be
simultaneously sent to the Secretary of the BCI.
30. The procedure for conducting the election of the representative
member of the State Bar Council in the Bar Council of India is
explained in Rule 8, according to which, the candidate's name has to be
proposed and recorded by members of the State Bar Council with a
further rider that no member can propose or second more than one
name in a meeting. Where only one candidate is nominated, the
Returning Officer, i.e., the Secretary of the State Bar Council, shall
declare him as the elected member of the Bar Council of India.
However, in case more than one candidate is nominated, the election is
to be conducted by way of a secret ballot. In such an eventuality, it is
for the Returning Officer to provide voting papers with the typed name
of the candidates, duly signed by the Returning Officer himself, to the
members. As is evident from the Rules noted hereinabove, immediately
after the voting has been closed, it is for the Returning Officer to count
the valid votes and declare as elected the candidate who secures the
largest number of votes, and immediately thereafter keep the ballot
papers in a separate cover and seal the same with his signature and that
of the contesting candidates, if they so desire. It is also incumbent upon
the Returning Officer to forthwith communicate the result of the said
election to the Secretary of the Bar Council of India as also to the
concerned Gazette for its publication.
31. Having noted the statutory procedure to be followed for the
election of the State Bar Council's representative in the Bar Council of
India, I may now proceed to examine the first issue as to whether the
Respondent No. 3/Mr. Sunil Gupta‟s election to the Concerned Post on
29.06.2014 was conducted as per the procedure prescribed under the
BCI Rules.
32. The first undisputed fact that emerges from the record is that the
Petitioner/SBCMP had, in accordance with the requirement under
Rules 2 & 7 of the BCI Rules, vide its notice dated 09.06.2014
circulated a specific agenda to all its constituent members for
conducting elections on 29.06.2014 to the various posts and
committees of the Petitioner/SBCMP, including the post of its
representative member in the Respondent No. 1. Pursuant to the said
notice, a meeting of the Petitioner‟s General Body was admittedly held
on 29.06.2014 in which Mr. Rameshwar Neekhra was elected as the
Petitioner‟s Chairman. The Minutes of the Meeting dated 29.06.2014
also show that after the election of the Petitioner‟s Chairman on
29.06.2014, the meeting was adjourned briefly at 12.30 p.m. for
congratulating the newly elected Chairman, soon whereafter it was
resumed in the presence of all the available members who then
proceeded to elect the Respondent No. 3 to the Concerned Post in
accordance with Part-B of the Agenda in the notice dated 09.06.2014. It
is also undisputed that after the Respondent No. 3 had been elected to
the Concerned Post, some of the members of the Petitioner had sent
letters dated 29.06.2014 and 13.07.2014 to the Petitioner‟s Secretary
contending therein that, on 29.06.2014 after the election of Mr.
Rameshwar Neekhra as the Petitioner‟s Chairman, no further meeting
had taken place and therefore, there was no question of the Respondent
No. 3 having been elected to the said post on 29.06.2014.
33. At this stage, it may be pertinent to note that in the special
meeting of the Petitioner's General Body held on 02.08.2014, all
members who had been allegedly elected to the various posts and
committees of the Petitioner/SBCMP on 29.06.2014, except for the
Respondent No. 3, had tendered their resignations. Thereafter, the
General Body, comprising of all 25 members of the Petitioner, came to a
conclusion that only the election of its Chairman on 29.06.2014 was
valid and decided to hold fresh elections on the same date for electing its
representative member in the Bar Council of India. In this meeting held
on 02.08.2014, the Petitioner, vide its resolution no. 3/GB/2014 dated
02.08.2014, upon the name of the Respondent No. 4 being proposed for
the Concerned Post, declared him as elected for the said post. This
decision of electing the Respondent No. 4 to the Concerned Post was not
only communicated to the Respondent No. 1 but was also published in
the Official Gazette on 15.08.2015.
34. It is the Respondent No. 4's election to the Concerned Post on
02.08.2014 that was challenged by the Respondent No. 3 by way of an
election petition before the Respondent No. 1, pursuant whereto a sub-
committee was constituted by the Respondent No. 1 for considering the
issues raised by the Respondent No. 3. Based on the statement of the
Petitioner‟s Secretary and the letters sent by Petitioner‟s members, the
Sub-committee in its report dated 04.12.2015 came to a categorical
conclusion that the minutes whereby the Respondent No. 3 was
allegedly elected to the Concerned Post were bad in law and could not
be relied upon for any purpose, and merely because the Respondent No.
3 had been permitted to attend some meetings of the Respondent No. 1,
it could not be held that he had ever been validly elected to the
Concerned Post.
35. A perusal of the record shows that the Petitioner‟s Secretary, in
his statement dated 03.01.2015 to the Respondent No. 1‟s Enquiry
Committee, in no uncertain terms admitted that subsequent to the
election of the Petitioner‟s Chairman on 29.06.2014, the meeting had
been adjourned sine die and thereafter some of the members had left the
place of meeting. He further admitted that it is only the remaining
members who had reconvened the meeting without any notice thereof to
the other members and had conducted elections to the various posts and
committees of the Petitioner/SBCMP. In his aforesaid statement, the
Secretary had also admitted that the said election of the Respondent No.
3 to the Concerned Post on 29.06.2014 was neither communicated by the
Petitioner to the Respondent No. 1 nor notified in the official gazette in
accordance with Rule 8(9) of the BCI Rules.
36. During the pendency of the aforesaid election petition, the
Petitioner had vide its resolution dated 07.02.2015 reiterated that the
Respondent No. 3‟s election to the Concerned Post was the only valid
election and thus, it cancelled the resolution dated 02.08.2014 in which
the Respondent No. 4 was declared as the elected representative member
of the Petitioner/SBCMP in the Respondent No. 1/BCI. However,
despite the Petitioner‟s resolution dated 07.02.2015 re-affirming the
election of the Respondent No. 3 to the Concerned Post, the Respondent
No. 1 vide its Impugned Order dated 05.12.2015, by relying on the Sub-
committee‟s report dated 04.12.2015, dismissed the Respondent No. 3‟s
Election Petition by holding that the election of Respondent No. 3 to the
Concerned Post on 29.06.2014 was not valid, thus concluding that there
was no infirmity in the election of the Respondent No. 4 to the
Concerned Post on 02.08.2014.
37. In light of the aforementioned undisputed facts, what becomes
apparent is that the procedural requirements necessary to convene a
meeting for holding an election to the Concerned Post on 29.06.2014
were undoubtedly followed, as not only an agenda for the same had been
duly circulated on 09.06.2014 but even the Petitioner‟s Secretary, who in
terms of Rule 3 of the BCI Rules has to act as the Returning Officer, was
present. However, it also emerges from the record that the that on
29.06.2014 after the election of Petitioner‟s Chairman, the meeting had
indeed been adjourned even if for a short duration, whereafter only some
of the members held a meeting amongst themselves in which
Respondent No. 3 was allegdly elected. The core question, thus, would
be whether this election of Respondent No. 3 by some of the members of
the Petitioner can be held to be valid merely because the meeting was
preceded by a valid agenda circulated as per the Rules? In determining
the answer to this question, a crucial fact which has to be kept in mind is
that in his statement dated 03.01.2015 before the Sub-committee, the
Petitioner's Secretary had categorically admitted that after the election of
the Petitioner's Chairman on 29.06.2014, no other election had been
conducted in accordance with the procedure prescribed under the BCI
Rules. The Advocate General, in his statement dated 22.12.2014 before
the Sub-Committee of Respondent No. 1 has also stated that he had left
the place of meeting after the election of Petitioner‟s Chairman. Thus, in
view of the specific stands taken by the Petitioner's Secretary as also the
Advocate General of Madhya Pradesh, I find no merit in Mr.
Upadhyay‟s contention that the Respondent No. 3 was validly elected
for the Concerned Post on 29.06.2014.
38. Having come to the conclusion that it is not possible to hold that
the Respondent No. 3‟s election to the Concerned Post on 29.06.2014
was valid, I may now examine the question as to whether the
Respondent No. 4‟s alleged election to the Concerned Post on
02.08.2014, was valid. In this regard, it needs to be kept in mind that
before the Respondent No. 4 could be elected, it was incumbent upon the
Petitioner to follow the entire process set down in the BCI Rules, more
particularly, the procedure as prescribed under Rules 2, 7 and 8 of the
BCI Rules. Rule 7 makes it clear that before any proposal for electing
the Respondent No. 4 could even be considered in the meeting held on
02.08.2014, an agenda for the same had to be necessarily circulated at
least 15 days before the proposed elections. However, it is interesting to
note that it has neither been averred on behalf of the Respondent No. 4
nor anything has been placed on record to show that any agenda for
holding fresh elections for the Concerned Post had ever been circulated
before the meeting held on 02.08.2014, and the only agenda circulated
for holding the said meeting was for considering the letters dated
29.06.2014 and 13.07.2014 sent by some members, which letters
admittedly did not even refer to holding of any elections.
39. Thus, what emerges from the record is that the meeting dated
02.08.2014 was held only to consider the letters dated 29.06.2014 and
13.07.2014 written by certain members of the Petitioner/SBCMP,
alleging therein that after the election of Petitioner‟s Chairman on
29.06.2014, no valid election to any other posts or committees of the
Petitioner could have taken place. Therefore, in my considered opinion,
in the special meeting held on 02.08.2014, the only decision which could
have been taken was regarding the validity of the election of the
Respondent No. 3 to the Concerned Post on 29.06.2014. In view of the
categorical mandatory provisions of the BCI Rules requiring an agenda
for the election proposed to be conducted in any meeting to be circulated
at least 15 days prior to the said meeting, which was admittedly not
circulated for conducting the Respondent No. 4's alleged election on
02.08.2014, the Respondent No. 4's election in the said meeting cannot
be held to be valid.
40. Having come to the conclusion that the alleged election of the
Respondent No. 4 on 02.08.2014 is in itself unsustainable, I do not deem
it necessary to deal with Mr. Upadhyay's contention that the Respondent
No. 3's election to the Concerned Post, having been conducted in the
meeting held on 29.06.2014, could not have been reconsidered before a
period of three months with less than a 2/3rd majority of the members of
the State Bar Council. It is for the same reason that I also do not deem it
necessary to deal with the contention of Mr. Kirti Uppal that the
Respondent No. 4 can be removed as a member of Respondent No. 1
only by passing a No-Confidence Motion against him or in the
alternative only in situations where he no longer remains a member of
State Bar Council of Madhya Pradesh. Once the Respondent No. 4's very
election on 02.08.2014 is found to be invalid, he cannot be permitted to
continue as a representative member of the Petitioner in the Respondent
No. 1/BCI, as a consequence whereof Respondent No. 1's Impugned
Order dated 05.12.2015 upholding the election of Respondent No. 4 is
also unsustainable and is liable to be quashed.
41. In light of the fact that the elections of both Respondents No. 3
and 4 are invalid, the question which now arises concerns who should
hold the post of the representative member of the Petitioner/SBCMP in
the Respondent No. 1/BCI. Keeping in view the settled legal principle
that a Court exercising its extra-ordinary writ jurisdiction under Article
226 of the Constitution of India, can and should mould the relief to be
granted to the peculiar facts and circumstances of the case, in my
considered opinion the Petitioner cannot be left unrepresented in the
Respondent No. 1/BCI and, therefore, this court must issue appropriate
directions to ensure the representation of the Petitioner/SBCMP in the
Respondent No. 1/BCI.
42. Having given my thoughtful consideration to this question
regarding the representation of the Petitioner/SBCMP in the Respondent
No. 1/BCI, I am of the view that the only manner in which this issue can
be resolved, so as to be fair and just to all concerned, would be to direct
the Petitioner/SBCMP to hold fresh elections to the Concerned Post after
following the due procedure as prescribed in the BCI Rules, and to
further direct the Respondent No. 1/BCI to accept the name of the
representative so elected by the Petitioner/SBCMP.
43. At this stage, it may also be noted that when the present petitions
were initially being taken up for hearing, a suggestion had been mooted
by the learned Senior Counsel for the Petitioner that the Petitioner be
granted liberty to hold a fresh election for electing its representative
member in the Respondent No. 1/BCI, which suggestion was not
accepted by any of the Respondents. Learned Senior Counsel for the
Respondents No. 1 and 2 had objected to such a course of action on the
ground that a person once elected as a representative of the State Bar
Council can be removed either by passing of a No-Confidence Motion
against him in the Bar Council of India or if he ceases to be a Member of
the State Council. He had further contended that there was no process by
which the Respondent No. 4 could be removed as a member of the
Respondent No. 1/BCI at this stage, after his name has already been
notified in the Official Gazette. In my considered opinion, once it is
found that the very election of Respondent No. 4 to the Concerned Post
on 02.08.2014 itself cannot be sustained, the plea of the Respondent No.
1/BCI that Respondent No. 4 cannot be removed from the said post
except in the aforesaid two circumstances, is wholly misconceived, since
it is not a case where an elected representative is being removed but one
in which the alleged representative of the SBCMP in the BCI had not
been validly elected in the first place.
44. For the aforesaid reasons, the Respondent No. 1‟s Impugned
Order dated 05.12.2015 upholding the elections of the Respondent No. 4
to the Concerned Post cannot be sustained.
45. The prayers in the writ petitions, so far as they seek
implementation of the Petitioner‟s Resolutions dated 29.06.2014 and
07.02.2015 electing the Respondent No. 3 as a member representative of
Petitioner/SBCMP in the Respondent No.1/BCI, are rejected. However,
the prayer quashing the Respondent No. 1‟s Impugned Order dated
05.12.2015 is allowed and accordingly the Impugned Order dated
05.12.2015 is quashed and set aside. The Petitioner in W.P.(C)
No.2142/2016, i.e., the State Bar Council of Madhya Pradesh is directed
to hold within a period of 4 weeks, fresh elections for electing its
representative member in the Respondent No.1/BCI by following the
procedure as prescribed in the BCI Rules. Upon the Petitioner
communicating the result of the election to be held in terms of the
aforesaid directions to the Respondent No. 1/BCI, the said Respondent
No. 1 would take consequential steps to include the name of the person
elected by the Petitioner/SBCMP as its representative member in the
Respondent No. 1/BCI.
46. The writ petitions along with pending applications are,
accordingly, disposed of in the aforesaid terms.
(REKHA PALLI)
JUDGE
JULY 06, 2018
sr/gm
