Full Text
Date ofdecision: 17"^ July,2018
PRATAP MEHTA Appellant
Through: Mr. J.P. Sengh, Senior Advocate with Mr. Sunil Dalai, Ms. Garima Goel & Mr. Rajiv Singh,Advocates
Through:: Mr.> V Upadhyaya, AdyocMe for the State ofM.P.
BAR COUNCIL OF nyDI4:&;ANR/. . ......Appellants
Through:' : l^v^reetPal Singh,Advocate vefsus"T'"--'=7'7 "
STATE BAR COUNCIL OF MP 8l ORS ..... Respondents
Through: Mr. Vikas Upadhyaya, - - ; ^ Advocate!for the State ofM.P.
BAR COUNCIL OFINDIA & ANR .....Appellants
Through: Mr.PreetPal Singh,Advocate
Through LPA 366/2018andconnected matters PageIof2
/" 2018:DHC:9125-DB
HON'BLE MR.JUSTICE CHANDER SHEKHAR SANJIV KHANNA.J.rORATJ:
For detailed order, see
JUDGMENT
365/2018.
JULY 17,2018 b II SANJIV KHANNA,J ' : -y CHANDER SHEKHAR,J
$-53 to 56 HIGH COURT OF DELHI
Date ofdecision: 17"'July,2018
Through: Mr.J,P. Sengh,Senior Advocate with Mr.Sunil Dalai, Ms.Garima Goel& Mr.Rajiv
Through: ; Mr.: J.P. Sengh, Senior
,•AdypGate with Mr. Sunil Dalai, M^ Goel & Mr. Rajiv
Advocate for the State ofM.P.
BAR COUNCIL OFINDIA & ANR Appellants
BAR COUNCIL OFINDIA &ANR Appellants
HON'BLE MR.JUSTICE CHANDER SHEKHAR SANJIV KHANNA.J.(ORAL):
1. Aforestated Letters Patent Appeals under Chapter-X of the Letters Patent Actirripugncpmmdnjudgnient dated 6"^July, 2018 by the learned Single Judge in W.P.(C) No.2142/2016, State Bar Council ofM.P.,v. Bar Council ofIndia & Ors:and W.P.(C)No.2215/2016,AwmV Gupta v. Bar Council ofIndia & Ors.
2. Present Us is an unfortunate litigation regarding election of the representative of the State Bar Council of Madhya Pradesh ('SBCMP') to the Bar Council of India ('BCl'). SBCMP and BCl are pitted and opposing each other on the question who should representSBCMP before the BCl.
3. It is undisputed that Mr. Rameshwar.Nikhra was elected as the Chairman in the General Body Meeting ('OEM') of SBCMP held on 29"^ June, 2014 at Jabalpur. As per recorded minutes ofthe OEM of SBCMP held on 29""June, 2014, the meeting had recommenced after an adjournment/suspension consequent to the election of the Chairman, and thereupon, Vice-Chairman, Treasurer and members of various committees including SBCMP representative to BCI were elected. Minutes state that Mr. Sunil Gupta, petitioner in W.P.(C)No.2215/2016 before the Single Judge, was elected to represent SBCMP atthe BCI.
4. On 29"^ June, 2014 itself, nine members ofSBCMP had written a letter addressed to the Chairman of SBCMP,stating that post election to the post of Chairman, the GEM was adjourned. There was no information'about recommencement of GEM till 2 pm and no meeting took place in the meeting hall thereafter. The Chairman"was requested to conduct remaining elections by holding "adjourned meeting" ofGEM.
5. Subsequently,two letters both dated 13"^July,2014 were written to the officiating secretary of the SBCMP. First letter signed by thirteen members was under Rule 122-A ofthe M.P. State Bar Council Rules to call for aspecial meeting within 21 days to consider no-confidence motion against the Chairman as after election ofthe Chairman on 29th June,2014,GEM-ofthe SBCMP was adjourned and had not been called in spite ofthe letter by 9 members dated 29th June, 2014. Second letter had asserted that upon election ofthe Chairman, election for other posts including BCI representative was adjourned. Nine members had written letter dated 29th June, 2014 at 2.20 P.M. that elections for. the remaining posts be conducted. It was regrettable that meeting was not called for holding elections. Officiating secretary was requested to call for a meeting within 21 days on receipt ofthe letter for conducting election for the, remaining posts.
6. In view the letters dated 29th June,2014 and 14th July, 2014(letters dated 13th July,2014 were received by SBCMP on 14th July, 2014), emails from two members and another letter by one member disputing election process of Vice,Chairman, Treasurer and various committees in representative to the BCI, Officiating secretary vide notice.dated 16"' July, 2014 had convened and informed membdrs fhat a special GBM.of the SBCMP was scheduled on.2""August,2014.Asthis notice is of some relevance,we reproduce the same in entirety including the portion with the signature ofthe officiating Secretary enclosing the letters dated 29"'June,2014,..1.4"'July,2014, 15"'July,2014 and 16"'July,2014. Notice dated 16th July,2014reads;- " Sir/Ma'am, The Special Meeting of the General Body of the State Bar Council of Madhya Pradesh will be organized on 02"'' August, 2014 Day-Saturday, in conference hallofcounciloffice at11:00am in which the sisned letter by 9 Hon'ble Member ofthe council dated 29.01.2014 and two letters dated 14.07.2014 signed by Hon'ble Members received on 14.07.2014 and two e-mails sisned bv two Hon'ble Members by them two letters were received dated 15.07.2014 and two letters sisned bv one Hon'ble Member was received on 16.07.2014 in which by one letter request was made to call the meetingfor election on the post of Vice President, Treasurer of the council, for representative to Bar council ofIndia and with itfor various committees and in the second letter under rule 122A of the council, asainst the Chairman ho confidence proposal was presented. In the special meetins both the above two letters have to be decided. It is requested that all ofyou shall attend the meeting (Annexurepage 1 to 7) For the convenience of the Hon'ble Members Rule 122-A ofthe Council is asfdllows:- I22-A The Chairman, Vice Chairman or the Treasurer ofthe Council could be removed by a vote ofno confidence passed by majority ofthe members, present and voting in a meeting of the council especially called for the purpose, provided that at least 7 members of the Council have signed the requisition for holdingisUchf,,special meeting, and such meeting shall be called within a period of21 daysfrom the date ofreceipt ofthe requisition by the Secretary." ■: Sd/- (MUKESHMISHRA) OfficiatingSecretary Annexure - Letter dated 29.06.2014, 14.07.2014, 15.07.2014 and 16.07.2014 from the Hon'ble members. (Emphasissupplied)
7. Subsequent notice by the officiating'secretary dated 19"" \d July, 2014, amending the earlier notice dated 16^'^ July^ 2014, reads as under "Sir/Ma'am, The Special Meeting of the General Body of the State Bar Council of Madhya Pradesh is scheduled for 2'"^ August, 2014, Day-Saturday, in the Meeting Room ofthe Council's Office at 11:00 O'Clock in the Morning, in which the letter dated 29/06/2014 sisned by 9 Hon'ble Members of the Council two letters dated 13/-7/2-14 received on 14/07/2014 sisned by 11 Hon'ble Member and Two letters sisned by 2 Hon'ble Members received by e-mail dated 15/07/2014 and two letters sisned by 1 Hon'ble Member received on. 16/07/2014 in which vide one letter the prayer has been made to call for the meeting for election,of the Vice-Chairman of Council Treasurer, election ofvarious committees alons with the representative to the Bar Council of India and vide the second letter the no-confidence motion has been presented against the Chairman of the Council under Rule -122'-A of the rules of the Council. In the special meetins both the aforesaid letters are to be■decided:- ■.Youiall are requested to be present in the Meeting. [Enclosure-Page 1to 7] For the convenience of the Hon'ble Members Rule 122-A ofthe Councilis as under:- "122-A The Chairman, Vice Chairman or the Treasurer ofthe Council couldbe removedby a vote ofno confidencepassedby majority ofthe members, present and voting in a meeting of the council especially calledfor the purpose, provided that at least 7 members of the Council have signed the requisitionfor holding such a special meeting, and such meeting shall be called within a period of 21 daysfrom the date ofreceipt ofthe requisition by the Secretary." Sd/- (MUKESHMISHRA) OfficiatingSecretary NOTE- The letters received from the Hon'ble Members in relation to the Special Meeting has already been sent alongwith the letter dated 16/07/2014/ (Emphasissupplied) nd
8. Thereafter, special GBM ofthe SBCMP was held on 2 August,2014. Minutes ofthis meeting read as under:- "MINUTES OF MEETING Today on 02/08/2014, the special meeting of State Bar Council has been held on the meeting Hall of Council under the' chairmanship of Shri Rameshwar Neekhra. He has thanked all the membersfor his election as the chairman. The Chairman. of the. council Hon'ble Rameshwar Niekhfa.deHihed-to preside over the meeting ofgeneral body, but the majority,ofHon'ble members by giving a reference to rule 2,3,4,[5] and[6] of the rules of Council has said that the special meeting has to be presided over by the chairman of Council. Thus, on the request of members the special meeting was started and it has been presided over by Shri Rameshwar Neekhra, the Chairman of Council. Hon'ble Member Shri Ashok Shukla has produced a letter of 14 members in the special meeting withdrawing the no-confidence motion against the chairman. Thus, the no-confidenCe 19--motion submitted is not being considered. In the meantime, Member Shri Dinesh Narayan Pathak hasproduced resignations ofsome of the honourable members but Hon'ble Member Shri Sunil Gupta has not tendered his resignation. In the meantime, honourable member Shri Ashok Shukla has requested that no election has been conducted as per law. It has been supported by 14 other members present in the meeting. Thus, considering the decision of the majority the chairman haspassedfollowing order. DECISION- The consideration has been made upon a letter presented by nine Hon'ble members at 2:20 o'clock in the Council and along with that the signed letter by 14 members. On 29/06/2014 after the election ofEon'ble Chairman, the general body meeting had been post-phone and honourable members had gone to the places oftheir residence, they did notget any information later. Thisfact has been mentioned by all 12- members during the meeting. In these circumstance, the Chairman has held that the election hqs^.ngtffen conducted asper law, therefore all the proceedings on 29/06/2014, except ofthe election ofChairman, the electionfor Vice Chairman, Treasurer, representative member ofBCIand the election ofaU the committees, that is void because of the majority of members and law and the same may be deletedfrom the earlier minute books. Hon'ble Member Shri Manish Dutt, Vivek Singh and some other members whose names are illegible, have submitted their resignations. Since, this has been held that no election process as per law has taken place therefore the resignations submitted may be kept on record. In these circumstances, the request has been made to Hon'ble Chairman by the Hon'ble members 1> that the meeting may be adjourned for further proceedings and the meeting may be adjournedfor furtherproceedings and the meeting willstart again at 12:30 o'clock. The information with regard to the same be given to all the members and request be made to allthe members to bepresentin the meeting at 12:30 o'clock. The meeting has started again at 12:30 o'clock in presence ofall the members and all the aforesaid members appeared and have participated in the meeting. At the start of meeting Hon'ble Members Shri Mrigendra Singh, Dinesh Narayan Pathak have given a written as well as oral objections with regard to legality of the election. Since, it has been held earlier therefore there is no necessary to pass order again. Election process has been started. RESOLUTIONNO.-3/G.B./2014 REGARDING THE..
ELECTION OF REPRESENTATIVE OFCOUNCIL FOR THE BAR COUNCIL OFINDIA:-: ■ The Secretary, of the counselfhas requested the honourable m:ejnb:ers•dd:prqfqse a name for the representation of Madhya Pradesh State Bar Council before the Bar Council ofIndia. Hon'ble Member Shri Vijay Kumar Choudhary hasproposed the name of Hon'ble Member Shri Pratap Mehta which has been supported by Hon'ble Member Shri Shivendra Upadhyay and with the majority of 14 members and in absence ofany other name being proposed, Hon'ble member Shri Pratap Mehta has been elected as a representative member of Bar CouncilofIndia." The aforesaid minutes reveal that a member produced a letter signed by 14 members withdrawing the no-confidence motion against the Chairman. Accordingly, the no-confidence motion against the Chairman was not considered. Another member had produced resignation letters ofmembers from their posts as per the election held on 29"'June,2014. However,.Mr. Sunil Gupta had not tendered his resignation. Minutes record that another member had stated that elections had not been conducted as per law, which version was supported by 14 other members. In view of the. decision of the majority, it was directed that exceptforthe postofthe Chairperson,electionsfor other posts had not been conducted as per law in the meeting/proceedings held on 29'" June, 2014. Election of the Vice Chairman, Treasurer, representative members ofthe BCI and other Committees was declared,void. Accordingly,minutes ofthe GBM on 29"'June,2014regarding the elections should be deleted. Special GBM was thereupon suspended to reconvene at 12:30 p.m. Some members post 12.30p.m.had made written as well as oral objections regarding legality of the elections. In view ofthe earlier deliberation on elections, the minutes reeord that there was no necessity to pass an order again. Thereupon, the election process was started. Mr. Pratap Mehta, appellant before us in LPA No. 365/2018, was elected as representative member ofSBCMP to the BCI.
9. In the same meeting election of the Vice Chairperson, Treasurer and members ofvarious committees was held. We are not concerned or required to comment and pronounce any verdict and decision on elections to the said posts. As noticed Is above, members "elected" to these post on 29"^ June,2014 had resigned. We are concerned with the election of SBCMP representative to BCI.
10. Gazette Notification regarding election of Mr._Pratap Mehta as SBCMP's representative to the BCI was published on 15th August,2014 and intimation was sentto the BCI.
11. In the meanwhile, Mr. Sunil Gupta had preferred election petition No. 01/2014 before the BCI, asserting his right as an elected member of SBCMP to represent them in BCI and questioning election of Mr. Pratap Mehta in the special GBM held on 2nd August, 2014. While the election petition was pending, in the GBM of SBCMP'held on February, 2015, seventeen members present vide Resolution No. 19/GB/2015 fV\ had unanimously resolved that,election was held on 29 June, 2014, as per the prescribed agdnda issued by the Secretary of the SBCMP,and Mr. Sunil GuptaWas elected as representative to the BCI. Resolution had recoded that Sunil Gupta had taken charge thereof and started discharging the duties and had not resigned from the post till date. Resolution passed was to show confidence in Mr.Sunil Gupta.It was resolved to recommend to the BCI that Mr. Sunil Gupta was the elected representative of SBCMP. The resolution declared as void, resolution dated 2"^* August, 2014 by which Mr. Pratap Mehta had been elected as the representative to BCI.
12. Consequently, Mr. Sunil Gupta preferred an application before the BCI dated ll"^ February, 2015, seeking liberty to withdraw election petition No. 1/2014 as it has become infructuous in view of resolution dated February, 2015 confirming his election astherepresentativetotheBCI.
13. On 2N' November, 2015, BCI constituted a sub committee to consider the issues raised by Mr. Sunil Gupta. Sub-eommittee vide its report dated 4 December, 2015 concluded that minutes of the GBM dated 29"' June, 2014 regarding election ofrepresentative to BCI and constitution of different eommittees ofthe SBCMP were bad in law and could not be relied upon. There was nothing on record to show the communication of the election result to the BCI as per rules. Election result had not been ptiblished in the State Gazette. Sub-committee also examined the legality ofthe election held on 2""August,2014 and had observed:- "18.In this agenda,,itisspecifi'eally mentioned that the meeting is''hetng;cohy^n^d'm order to find a solution to the demands made in the aforesaidletters and for holding meeting for election of Vice- Chairman, Treasurer and Member-State Bar Council of India. and constitution of different Committees ofthe 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 againstthe Chairman under Rule 122A of the State Bar Council of Madhya Pradesh Rules, wasfixedfor consideration.
19. This notice was addressed to all the member of the State Bar Council who in response thereto attended special meeting ofthe State Bar Council Page 12of27 held on 2.8.2014 this meeting was attended by all the 25 members.
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 ofthe State Bar Council which was adjourned on 29.6.2014 may be reconvened so that the untransacted business ofthe agendafor 29.6.2014 i.e. holding ofelection ofMember-Bar-Council ofIndia and filling up of other posts offices/committees is transacted. The other letters dated 13.7.2014 and emailalso contain a special request that the meeting which was adjourned on 29.6.2014 after the election ofChairman State Bar Council may be convened.In addition to it, agenda contained consideration ofthe no confidence motion as againstthe 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.-ofthe meeting held on 29.6.2014 in order to dispose'ofand transact the untransacted businessjwhick wasfixedfor 29.6.2014. In this respect representation, of[9] Member dated 29.6.2014 is veryspecific and clear.
22. In this view ofthe matter no exception can be taken to the legality ofthe meeting held on 2.8.201 on the ground thatsufficient notice ofthe 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 ofthe above discussion we are ofthe considered view that the election petition filed by Mr.Sunil Gupta is without merits and deserves to be rejected under rule 10(1) ofthe relevant rules as it does not disclose any prima-facie case and there is no needfor determination ofthis dispute on merits under Rule 10(2)ofthe Rules." Accordingly, the sub-committee held that the special GBM on 2"^August,2014 was in continuation ofthe GBM held on 29"^. June, 2014. Special GBM on 2"^^ August, 2014 had disposed of business fixed for 29"^ June, 2014. Reference was th made to the representation of nine members dated 29 June, 2014.:
14. BCI thereafter vide resolution no. 291/2015 dated 5"^ December,2015 disposed,ofthe Election Petition No.-172014 simply recording that the sub-coniMittee report had detailed the reasons and there was no meritinfhe'election cases against Mr. Pratap Mehta.No other reason and ground wasstated.
15. The aforesaid resolution dated 5"^,December, 2015 was challenged by the SBCMP and Mr.Sunil Gupta in WritPetition (C)Nos. 2142/2016 and 2215/2016, which have been decided by the impugnedjudgmentdated 6"^July,2018.
16. Plea and contention that Mr. Sunil Gupta was elected as the representative member ofSBCMP to the BCI on 29"^June, 2014,was not accepted. We need not dwell on the said finding, as we are concerned with the second finding that, election of Mr. Pratap Mehta for the same post on 2"^* August, 2014 was unsustainable and contrary to the rules/law. On election of Mr. Pratap Mehta,impugnedjudgment holds "38. Having come to the conclusion that it is not possible to hold that the RespondentNo. S'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 RespondentNo. 4could be elected, it was incumbent upon the Petitioner tofollow the entire process set down in the BCl Rules, more particularly, the procedure as prescribed under Rules 2, 7 and 8 of the BCIRules. Rule 7 makes it clear that before any proposalfor 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-[beep.-.avdrred on behalf of the Respondent No:4 nor anyMiug'-has been placed on record to show- that qhy::agendafor holdingfresh elections for the Concerned Post had ever been circulated before the meeting held on 02.08.2014, and the only agenda circulatedfor 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 ofany elections.
39. Thus, what emergesfrom 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 ofPetitioner'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. 2 to the Concerned Post on 29.06.2014. In view of the categorical mandatory provisions ofthe BCIRules requiring an agendafor the election proposed to be conducted in any meeting to be circulated atleast 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."
17. In view of the findings, learned Single Judge did not examine the contention of Mr. Sunil Gupta that elections conducted on 29"^June,2014 could not be reconsidered before a period ofthree months with less than a 2/3'"'^ majority.'Second contention that election to'the pdst ofrepresentative to the BCI could not have been •considered oh 2"^* August, 2014 without Mr. Sunil Gupta's elections being set aside or his removal from the post, was also not considered. This is clear from the following observations and findings recorded by the learned Single Judge:- "40. Having come to the conclusion that the alleged election ofthe RespondentNo. 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 aperiod ofthree months with less than a 2/3 majority ofthe members ofthe State Bar Council.It isfor the same reason that 1 also do not deem-it necessary to deal with the contention of Mr. Kirti Uppal that the RespondentNo. 4 can be removed as a member ofRespondent 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 ofState Bar Council ofMadhya Pradesh. Once the Respondent No. 4's very election on 02.08.2014 isfound 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 whereofRespondent No. I's Impugned Order dated 05.12.2015 upholding the election of RespondentNo.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 Nho should hold the post of the representative member of the Petitioner/SBCMP in the'Riespondent No. 1/BCI. Keeping in view the s0tled legal principle that a Court exercising its extra-ordinary writjurisdiction under Article 226 ofthe Constitution ofIndia, can and should mould the relief to be granted to the peculiarfacts and circumstances ofthe case, in my considered opinion the Petitioner cannot be left • unrepresented in the Respondent No. I/BCI and, therefore, this court must issue appropriate directions to ensure the representation of the Petitioner/SBCMP in the RespondentNo. 1/BCI."
18. Thereupon,learned Single Judge held that the issue could be best resolved by directing the SBCMP to hold fresh elections for the post ofthe representative to the BCI. Accordingly, the 7^' following directions have been issued:- "45. Theprayers in the writpetitions, sofar as they seek implementation ofthe 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 RespondentNo. 1/BCI, are rejected. However, the prayer quashing the Respondent No. I'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.2I42/20I[6], i.e., the State Bar Council of Madhya Pradesh is directed to hold within a period of[4] weeks,fresh electionsfor electing its representative member in the Respondent No. I/BCI. by following, the procedure asprescribed in the BCIRules. Upon the Petitioner communicating the result ofthe election to be held in terms ofthe aforesaid directions to the Respondent No. 1/BCI, the said Respondent No. I would take consequential steps to include the name oftheperson elected by the Petitioner/SBCMP as its representative member in. - the Respondent NO. 1/BCI";
19. Mr. Sunil Gupta and SBGMP have accepted the decision and want to proceed with the election., Mr. Pratap Mehta and BCI have filed appeals,challenging setting aside of election of Mr. Pratap Mehta as representative of SBGMP to the BCI. It was submitted that elections on 2nd August,2014 were,valid and the impugned order does not notice Rule 1 ofthe BCI Rules regarding elections of member of Bar council. Reliance was placed onjudgment ofMadhya Pradesh High Court in W.P.(C) No. 4499/2018, Rameshwar Neekhra V[5]. The State Bar Council of Madhya Pradesh and others decided on 26"^ February,2018.
20. Rule 1 ofthe BCI Rules reads as under:-. "7. Notice of every meeting of the Council and committees shall ordinarily be sent by the Secretary not less than 15 days before the date ofthe meeting except when the Chairman requires a meeting to be called on short notice on grounds ofurgency. Ifany five or more members of the Council require in writing, a meeting to be calledon short notice ofnot less than 10 days for consideration of specified matters, the Secretary shall convene the meeting on such date as requisitioned and the agendafor such meeting shall include matters specified by such members. Noproceedingshallbe invalidatedmerely on the ground that the rule relating to notice is not strictly complied with." In our opinion, Rule 1 ofthe BCI Rules, would apply to every meeting of BCI and its; committees. Rule 1 refers to "council", which has been defined in Part I clause (f) of the BCI Rules to mean, the BCI. "State Council" has been defined in Part I clause (J) of the BCI Rules to mean a "Bar Council" constituted under Section 3 ofthe Advqcates Act,1961. Thus, Rule 1 applies specifically to "council" i.e. BCI and not to the State Councils like SBCMP. 21., We will now refer to Rule 2, 3, 4, 7 and 8 of the BCI Rules which read as under:- "2. (1) The notice and agendafor thefirst meeting of the State Council held after the election of its members on the expiry ofthe term ofits members elected at the previous election under Section 8 of the Act may include the election ofa member ofthe State Councilto the Council under Section (1)(c)of the Act. (2) Every such election shall be held not later than 30 days after thefirst meeting ofthe State Councilafter election under Section 8ofthe Act. -
3. The election ofa member ofthe Councilshall be conducted by the Secretary ofthe State Council who shallactas the Returning Officer.
4. A person elected as a member of the Council under Section 4(1)(c) ofthe Act shall cease to be such member:(a)from the date when he ceases to be a member ofthe State Council as mentionedJn Section 4(3)(ii)ofthe Act.(b)on the acceptance by the Councilofhis resignation. 5... 6...
7. Every notice by the Secretary ofthe 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 datefixedfor the election. A copy of the said notice shall be sent simultaneously to the Secretary ofthe Council.
8. (1) The narne ofeach candidatefor the election shall be proposed by onerrrienyber and seconded by another member ofthe-State Council at the meeting. No member shallpropose or second more than one name. (2)Ifonly one candidate.has been duly nominated, the Returning Officershalldeclare him elected. (3) Any nominated candidate can withdraw before the voting takesplace. (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 ofthe 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 ofthe candidate ofhis 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 accountfor the purposes ofthe election. Subject to the provisions ofRule 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- 4(a)the mark X' is not made, or (b) the mark X'is-set opposite the name ofmore 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 offigures are setopposite the name ofthesame candidate, or
(d) there is any mark in-writing by which the voter can be identified.
(6) The Returning Officershfll count the valid votes immediately after the close ofvoting in thepresence ofthe candidates or theirpominees who may choose to bepresent. (7) The candidate securing the,largest number of the votesshall be declared dected by the Returning Officer.In the case oftwo more candidatessecuring an equal number of votes, the Returning Officer shalldecide the election by drawing lots. (8) Immediately after he declaration ofthe result, the Returning Officer shall put the ballot papers usedfor voting in the election in a separate cover, have the cover closed andsealed with his signature and thatofall contesting candidates ifthey desire to do so. (9) The result ofthe election shall be communicated forthwith to the Secretary ofthe Councilandsent to the State Gazette or Gazettes concerned for publication." Rule 2 states that agenda notice for the first meeting of the State Council held after election of its members shall include the election ofmember ofthe State Council to the BCI. Election shall be held not later than 30 days after the first meeting ofthe State Council after election under Section 8 of the Act. Rule 4 states that a person elected as a member of Council under Section 4 (1)(c) of the Act shall cease to be member from the date when he ceases to be a member ofthe State Council or on the acceptance of his resignation by the Council (i.e. BCI). Thus, resignation of representative of the, State Council to BCI requires acceptance by the BCI. Rule 7 states that every notice of the-Secretary of the State Council fixing a date for the election ofa meinber to the Council under the Rules shall be sent in not less than 15 clear days before the date fixed for the election. A copy ofthe said notice shall be simultaneously sent to the Secretary of the Council i.e. BCI. Rule 8 states that 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. If only one candidate has been duly nominated,the Returning Officer shall declare him elected. Nominated member/candidate can withdraw before the voting takes place. If more than one member is nominated,elections would be held by secret ballot.
22. It is obvious and the facts noted above hardly require articulation and elucidation to hold thatthere was complete and absolute non compliance of the statutory BCI Rules, even assuming that SBCMP could have decided on election of Mr.Sunil Gupta. Agenda for the meeting as circulated vide Notice dated 16"'July, 2014 as amended agenda vide Notice dated 19 July,2014 did notpostulate and envisage holding of electionforrepresentative ofSBCMPtoBCI. Theagendafixed was to examine and take a decision on letters dated 29'"June, 2014 and 13 July, 2014 and other communications, i.e. whether the minutes dated 29th June, 2014 were correct and election was not held. Motion of no-confidence against the Chairman was to be also considered. Agenda did not state and stipulate that elections would be held on 2nd August, 2014. Letters were circulated as enclosures,with the Noticeto examine and decide on the allegation /made therein, and not for conducting and holding of elections on 2nd August, 2014. As per minutes dated 29th June,2014 elections had been held. We would without hesitation and reservation reject the submission thatthe agendafixed wasto electrepresentative to BCI.
23. Reasoning of the sub-committee referring to letters enclosed with the Notice is erroneous and ill-reasoned. It is illusory and fallible.Itfalls fouland does notreferto the Rules. Letter dated 29th June, 2014 had alleged that elections to differentposts otherthan thatofthe Chaiiman were not held on 29th June, 2014 and had requested the Chairman to hold remaining elections by holding "adjourned meeting". Notices convening the special GBM by the officiating secretary did not accept or even comment and indicate that the request for remaining elections" at the "adjourned meeting" had been accepted. Notices do not remotely whisper and suggest that "remaining election" would be held. Special GBM was to be held to decide on the correctness ofthe allegations in the letters. Fate and decision on the agenda was unknown and uncertain when the Notice for special GBM was circulated. It was not possible for the officiating secretary to mention beforehand the fate oftheno confidence motion and.statethatelectionforposts other than the Chairman was mot held on 29th June, 2014. Notice as amended did not state that elections would be held, posta decision accepting the assertions in the letters circulated.
24. As noted earlier,minutes:oftheGBM held on 2"^^August, 2014 state that,the no-confidence nSotion against the Chairman was withdrawn. Other membersmxcept Mr. Sunil Gupta, who were elected'on 29"Mune,2014 had tendered theirresignation. Mr. Sunil Gupta had pressed and insisted that he had been elected asthe SBCMP representativeforthe BCI.
25. BCI submits that it was not informed of Sunil Gupta's 'election' and neither had the election been notified. Further, minutes ofthe meeting dated29"Nune,2014 are disputed bythe BCI. Notification is subsequent to election and not a condition precedent. BCI had not pronounced and decided the election dispute relating to the minutes dated 29th June,2014 till 5th December,2015. This was long after the "election" was,held on 2nd August,2014.
26. Election" of Mr.Sunil Gupta had not been challenged before BCI. He had not ceased to be a member under Rule4of the BCI Rules. Several issues were raised in the appeal preferred by Mr.Sunil Gupta, before BCI. Whether SBCMP, vide a subsequent resolution dated 2"^*August,2014 could have nullified the election'ofMr.Sunil Gupta as per minutes ofthe GBM on 29 June,2014 without his election being challenged or being set aside by the BCI? What was the report of the Returning Officer for the "election" on 29th June, 2014 and effect thereof? Whether and, when "election" would be complete? Whether SBCMP would be permitted to take a u-tum vide resolution dated 7th Februaiy, 2015 and the legal effect thereof? Aforesaid substantial.questions have not been decided by the BCI. PerMctoryVahd ciyptic order dated 5"" December, 2015 passed by theBCTby simply relying on the sub-committee report has not helped. We would also observe that repeated change in position and stand ofSBCMP on their representative to BCI is a cause ofconcern and has contributed to the litigation.
27. At this stage, counsel for the appellants submit that proceedings ofSBCMP should notbeinvalidated ontheground offailure to make strict compliance of the Rules relating to Notice.Reliance is placed on Rule lA ofthe State Bar Council ofMadhyaPradesh Rules.This,as noted above,is nota case of op absence of strict compliance, albeit a case of complete and absolute non compliance ofRules 2,7and 8 ofthe BCI Rules. Election was held by SBCMP without there being an agenda and in flagrant and unconcealed violation of the BCERules. Violations are not technical or procedural lapses and flaws,but substantial, and have the affect of total negation and transgression of the election process, which ensures free, fair and transparent election. Violations are absolute in the sense that they annul and obliterate fairness essential for democratic election. Out and out failure to follow the procedure for election cannot be overlooked. Given the factual.context noticed above and given the change in stand ofthe SBCMP on the question of "election" of the representative to BCI, compliance with the BCI Rules,;as recorded in the special SBCMP meeting on;.2"'^ August,,2014, was mandated, and required. Compliance would have-ensured such disputes"do not arise in elections ofthe State Bar"Councils.
28. In Rameshwar Neekhra (supra), a Division Bench of Madhya Pradesh High Court had observed that election to the• post ofChairman,postresignation,was unanimous and plea of failure or absence of agenda was raised by a disgruntled minority member. This being a case of resignation, the Division Bench observed Rule 13,PartC,ChapterII oftheBCI Rules would not apply.This decision is-distinguishable and had examined and answered a differentfactual matrix and situation.
29. Counsel for the appellant had expressed apprehension that the respondents are proceeding in haste and huny to hold elections for representative to the BCI. We have called upon counsel for the respondents, to obtain instructions and ensure thatthe electionsfortheposts are held aftersome gap and notin haste and hurry. Counsel for the respondents had stated that he would obtain instructions and inform the date ofelections..30. In the aforesaid circumstances,we are ofthe opinion that the finding on the question of "election" of SBCMP representative to BCI and directions passed by the learned Single Judge do notrequire in'tefference.
31. In view ofthe aforesaid,discussion, we do not find any merit in the present appeals and the same are dismissed. No order as to costs. -' J i SANJIVKHANNA,J 'vy'y.v yy-y'f ■ " JULY 17,2018 b/ssn GRANDER SHEKHAR,J LPA 365/2018 andconnected matters Page27of27