TMI Blog1999 (3) TMI 628X X X X Extracts X X X X X X X X Extracts X X X X ..... during this period of six months that elections were held and a new State Bar Council for Kerala was elected. It appears that for holding fresh elections, the Preliminary Electoral Roll was published on 28.12.1996 followed by notice of publication of the final Electoral Roll on 22.1.1997, which was challenged by one Shri P.G. Chacko, Advocate, by O.P. No. 1987/97 filed in the High Court on 31.1.1997. The Petition was, however, dismissed in limine on 6.2.1997 against which Writ Appeal No. 307 of 1997 was filed before the Division Bench. It further appears that in the meantime, the Kerala Bar Council adopted a resolution on 1.2.1997 to conduct the elections. After the extension of term by the Bar Council of India by its resolution dated 8.2.1997, the process of elections was started and the elections were held with counting of votes being completed on 3.4.1997. The results were declared on the same day, but they were published in the Kerala Gazette on 6th of May, 1997. It was, at this stage, that O.P. No. 8524 of 1997 was filed on 21.5.1997 in the High Court challenging the elections on the grounds, inter alia, that the term of the Kerala Bar Council having expired on 27.1.1997, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to extend the term of the State Bar Council shall be deemed to have been taken by the BCI on 13th January, 1997 and, therefore, the State Bar Council retained its jurisdiction to conduct fresh elections which had been validly held. Learned counsel for the appellants also raised a few other contentions, specially those relating to the Revision of Electoral Rolls etc., but we need not look into those contentions as we intend to dispose of this appeal on the questions mentioned above. Bar Council has been defined in Section 2(1)(d) as a Bar Council constituted under the Act. The definition of the State Bar Council is contained in Section 2(1)(m) which means a Bar Council constituted under Section 3. Bar Council of India is defined in Section 2(1)(e) as the Bar Council constituted under Section 4. Section 3, inter alia, provides that there shall be a Bar Council for the State of Kerala and the Union Territory of Laccadive, Minicoy and Amindivi Island, to be known as the Bar Council of Kerala. Section 5 provides that every Bar Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) shall, in accordance with such directions as the Bar Council of India may give to it in this behalf, hold elections to the State Bar Council within a period of six months from the date of its constitution under sub-section (1), and where, for any reason the Special Committee is not in a position to conduct election within the said period of six months, the Bar Council of India may, for reasons to be recorded by it in writing, extend the said period. These two Sections indicate that the term of office of an elected member of a State Bar Council is five years from the date of publication of the result of his election, which is extendable by a period not exceeding six months provided the elections have not been held before the expiry of the term. If the State Bar Council does not hold fresh elections either before the expiry of five years' term or the extended term, the BCI, in either of the two situations, would constitute a Special Committee to discharge the functions of the State Bar Council until a new Bar Council is constituted. For this purpose, Special Committee would hold elections to constitute the State Bar Council within the extended period of six months. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, determine. (3) The committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar Councils. (4) Every Bar Council and every committee thereof except the disciplinary committees shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed. (5) The disciplinary committees constituted under Section 9 shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed. BCI has been given the Rule making power under Section 15 of the Act which, inter alia, provides as under :- 15(1) A Bar Council may make Rules to carry out the purposes of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for : (a) ............... (b) ............... (c) ............... (d) ............... (e) ............... (f) ............... (g) ............... (ga)............... (gb)............... (h) the summoning and holding of meetings of the Bar Council, the conduct of business thereat, and the numb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the Council or the Committee concerned. The papers shall be placed before the next meeting of the Council or the Committee concerned for confirmation. 7. The Council or any Committee may adjourn from day to day or any particular day, without further notice. 8. A member shall address the chair when speaking at a meeting of the Council and he shall be entitled to speak only once on each subject, unless otherwise required or permitted by the Chairman to do so. 9. Save as otherwise provided in these rules, the decision on any matter shall be by majority, and in the case of equality of votes, the Chairman of the meeting shall have a second or casting vote. 10. No matter once decided shall be reconsidered for a period of three months unless the Council by a two-thirds majority of the members present so permits. 11. Any Committee may refer for advice any matter to the Council. 12. In the absence of the Chairman and the Vice-Chairman at any meeting, a member chosen by members present shall preside at the meeting. Rule 1 contemplates a notice of not less than 15 days of the proposed meeting which is to be sent ordinarily by the Secretary, but if the Chairma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r : THE BAR COUNCIL OF INDIA BCI:D:118:1997 21, Rouse Avenue Institutional Area, New Delhi-110002. 13th Jan., 97 To, All the members of the Bar Council of India. Sub: Extension of the term of the Kerala Bar Council for a further period not exceeding six months. Sirs, The Chairman has desired that the enclosed Resolution be circulated to the members for approval under Rule 6, Part II Chapter II of the Rules of the Bar Council of India for extension of the term of the Kerala Bar Council by six months from 27th Jan., 1997. The term of the Bar Council of Kerala expires on the 27th of Jan.,97 and hence the urgency. A copy of the letter of the Bar Council of Kerala is also enclosed. Members are requested to kindly send the Resolution back to us after signature on approval. Thanking you, Yours faithfully, Sd/- (C.M. Balaraman) Officiating Secretary Enc: As above. The proposed Resolution, which accompanied this letter, reads as under : THE BAR COUNCIL OF INDIA RESOLUTION UNDER RULE 6, PART II, CHAPTER III OF THE BAR COUNCIL OF INDIA. RESOLUTION Resolved that the term of the Bar Council of Kerala be and is hereby extended for six months from 27th Jan., 1997 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chairman may permit the business to be transacted by circulation of papers to all its members but the action proposed to be taken will not be taken unless agreed to by a majority of the members. The Rule further requires that the action so taken shall be intimated to all the members and the papers shall be placed in the next meeting for confirmation. The Rule, therefore, contemplates urgent action being taken on the opinion of the majority of the members. It is this action which is confirmed in the next meeting. It is obvious that if no action is taken, the question of confirmation does not arise. In the instant case, process for action , no doubt, was initiated, but no action was taken. The resolution for extension of the term of the Kerala Bar Council was circulated on 13th or 14th January, 1997 and opinion of eight members was also received but no action was taken on that basis nor was any member intimated of the action taken. By the time the opinion of the eight members was obtained, the term of the Kerala Bar Council stood expired on 27.1.1997. By that date, namely, by 27.1.1997, only four members, namely, Mr. Ashok Desai (15.1.97); Mr. Ashok Deb (18.1.97); Mr. D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mode indicated at (c). It circulated the resolution to its members proposing extension in the term of the Kerala Bar Council by six months. Opinion of only four of the members was obtained by 27.1.1997 which is the date on which the term of the Kerala Bar Council expired. Since majority of the members had not expressed their approval by that date in favour of the resolution, no action was taken. It was clearly a case of abandonment. The other essential requirements of Rule 6 were, therefore, not complied with. BCI, however, in its regular meeting held on 8.2.1997, passed a resolution extending the term of the Kerala Bar Council by six months under the Proviso to Section 8. Once the move initiated under Rule 6 was abandoned and no action was taken as majority opinion had not been obtained by 27.1.1997 nor even thereafter, the BCI or the Kerala Bar Council cannot legally fall back upon Rule 6 to contend that the resolution adopted on 8.2.1997 would relate back to the date on which the resolution under Rule 6 was circulated. Learned counsel for the respondents have placed strong reliance on the decision of this Court in Sri Parmeshwari Prasad Gupta vs. Union of India (1973) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luit . (Confirmation supplies all defects, though that which had been done was not valid at the beginning.) But, as pointed out above, it was not a case of confirmation as no action under Rule 6 was taken. Since the term of the Kerala Bar Council had expired on 27th January, 1997 and they had ceased to be members with effect from that date, their term could not be legally revived with retrospective effect by BCI on 8th February, 1997 when it adopted the resolution for extension of the term by six months. The Kerala Bar Council had ceased to have any jurisdiction and could not hold fresh elections which could be held only by the Special Committee appointed by the BCI. Lastly, it was contended by learned counsel for the respondents that the elections already having been held and the members having been in office for more than one and half year, this Court should not intervene, specially as the appellants could have challenged the elections by way of an Election Petition which was not done. This contention is wholly devoid of merit. The decision of this Court in Bar Council of Delhi Anr. vs. Surjit Singh Ors. AIR 1980 SC 1612 = 1980 (3) SCR 940 = (1980) 4 SCC 211 is a compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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