TMI Blog2003 (5) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... otted to him in the handicapped person s quota. After hearing the appellant s response the State Bar Council of India, vide its order dated 6.11.1999, directed the complaint to be dropped forming an opinion that no case for proceeding against the appellant was made out. On 30.12.1999, the wife lodged yet another complaint making almost identical averments. The appellant filed a detailed reply. He submitted that the complaint was malicious, originating from a disgruntled wife who has even lodged criminal case against him and was out to harass the appellant. The appellant s defence was that he is a handicapped person. Pressed by family circumstances, including financial stringency, he applied for a STD booth being licensed to him in the handicapped persons quota, which, on consideration of the merits of the prayer, was allowed to him. He did operate the STD booth. On 4.12.1997 he was married to the respondent no.1. Thereafter, sometime in mid-1998, he applied for his enrolment as an advocate and commenced apprenticeship under a senior lawyer. Eversince that day he stopped sitting at the telephone booth which was thenceforth operated by his parents. His father had retired by that time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary committee of a State Bar Council being preferred to the Bar Council of India within 60 days of the date of the communication of the order to the person aggrieved. Section 38 provides for an appeal by any person aggrieved by an order contemplated therein being preferred to the Supreme Court within 60 days of the date on which the order is communicated to him . The opinion formed by the Bar Council is that the employment by Parliament of different phraseology in Sections 37 and 38 and Section 48AA is suggestive of the legislative intent that while the limitation for an appeal under Sections 37 or 38 is to be calculated from the date of the communication of the order , the limitation for review under Section 48AA commences from the date of the order sought to be reviewed and not from the date of communication of the order. The review petition was dismissed as barred by limitation without going into the merits. During the pendency of these appeals the appellant has filed an original petition laying challenge to the constitutional validity of Section 48AA on the ground that the provision (as construed by the Bar Council of India) is unworkable and hence liable to be struc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor s award. It was held that the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words the date of the award occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even filing it in the office of the Collector ; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words from the date of the Collector s award was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n unless the order is communicated to or is known to him either actually or constructively? The words the date of that order , therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. In O.N. Mohindroo Vs. The District Judge, Delhi Anr, (1971) 3 SCC 5, interpreting the pari materia provision contained in Section 44A of the Act, this Court held that the word otherwise used in the context of the power of review exercisable of its own motion or otherwise must be assigned a wide meaning and it will cover a case where the review jurisdiction is sought to be exercised by a reference made to the Bar Council. The provision entitles a person aggrieved to invoke review jurisdiction of the Bar Council by moving an appropriate petition for the purpose. It was also held that the review jurisdiction conferred on the Bar Council is wide and reference cannot be made to the provisions of the Civil Procedure Code so as to limit the width of review jurisdiction by drawing an analogy from the provisions of the Civil Procedure Code or the Criminal Procedure Code. Placing such a construction, as we prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised. On the same principle the provision has to be interpreted from the point of view of exercise of the power by the Bar Council. The interpretation ought to be directed towards giving the expression a meaning which will carry out the purpose of the provision and make the remedy of review conferred by the provision meaningful, practical and effective. How can the Bar Council of India or any of its Committees exercise their power to review unless the matter is before them? The jurisdiction to exercise power of review does not come to an end merely by lapse of sixty days from the date of the order sought to be reviewed. In view of the construction which we have placed hereinabove, in our opinion, the expression sixty days from the date of that order prescribes the period of limitation for invoking the power of review. It has nothing to do with the actual exercise of power by the Bar Council. In other words, merely by lapse of sixty days from the date of the order sought to be reviewed, the Bar Council of India or any of its Committees is not divested of its power to exercise review jurisdiction. That is the only reasonable construction which can be placed on the provision as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts forming subject matter of this litigation happened. We have no reason to form any opinion other than this that the Bar Council, if only it had exercised its review jurisdiction, would have formed no opinion other than the one of condoning the innocuous lapse on the part of the appellant who permitted the allotment of STD booth to continue in his name though he had actually discontinued the operation of the STD booth by himself. The Bar Council would certainly have taken a sympathetic view and would not have deprived the appellant of the source of his bread and butter and nipped in the bud the opportunity of blooming into an independent advocate to an apprentice. In our opinion, all the appeals filed by appellant deserve to be allowed and are allowed accordingly. The impugned orders of the Bar Council are set aside. The enrolment of the appellant as an advocate shall stand restored. So far as the civil writ petition is concerned, the vires of Section 48AA of the Act were sought to be challenged only on the ground that the provision was unworkable and unreasonable and, therefore, suffered from inherent infirmity. In view of the construction which we have placed on the langua ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
