Important Points
1. The process for extension of the term of Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applied, it must be shown that all its requirements were fulfilled.
2. If term of State Bar Council is not extended before the expiry of its terms, it would cease to have jurisdiction to hold election and extension of term subsequent to expiry term by BCI would not relate back. In such a case election could be conducted only in the manner provided in Section 8A of the Advocates Act.

Headnote:Advocates Act, 1961-Sections 8 and 8A read with Rule 6 of Bar Council of India Rules-State Bar Council-Election for-Kerala Bar Council-Term expired on 27-1-1997-Extension sought for before expiry of term - BCI circulated Resolution to its members on 13.1.1997 for approval proposing extension-Approval of four members alone received before 27-1-1997-No action taken-BCI confirmed resolution extending term in its meeting on 8.2.1997-Election held by Kerala Bar Council within extended period of six months-Not valid-Extension of term of Bar Council could be made only before expiry of term-Resolution circulated on 13.1.1997 not approved by majority members-No action taken as contemplated by Rule 6-Action abandoned-Resolution dated 8-2-1997 after terms of Kerala Bar Council would not relate back to 13.1.1997 on which date BCI circulated resolution proposing extension-Election could have been held only in manner prescribed under Section 8A as Kerala Bar Council ceased to have jurisdiction on expiry of its terms-Section 8A mandatory-Election set aside - BCI directed to appoint Special Committee u/s 8A to conduct election.
       Held : Fresh elections have to be held before the expiry of the five years’ term and if they are not so held, it would be open to the BCI to extend the term by six months to enable the State Bar Council to hold fresh elections. The extension has to be granted before the expiry of the original term so as to maintain continuity of the term. On the expiry of the term a member would immediately cease to be a member and would no continue in office until the publication of the result of his successor. (Paras 12, 13 & 14)
       Rule 1 of the Bar Council of India Rules 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 Chairman or any two members so require, the meeting can be convened on short notice on grounds of urgency. The notice has to specify the time and place of the meeting as also the agenda fixed for that meeting. The minutes of the previous meeting are required to be read and recorded at the subsequent meeting. That is how the business has to be ordinarily transacted by the BCI. If, however, urgent action is to be taken by the BCI, the provisions contained in Rule 6 can be invoked. Since in the instant case a resolution for extension of the term of the Kerala Bar Council was sought to be passed by the process of circulation as provided by Rule 6 and the High Court has found it to have been validly done, it was this Rule which constituted the focal point of debate by both the sides in this appeal. We would, therefore, first analyse Rule 6 to find out its requirements as also the essential elements of the “manner prescribed” thereunder and then examine whether those requirements were fulfilled in order to justify the resolution of “confirmation”. The requirements of Rule 6 are:-
        (a) There should be a need for urgent action by the BCI;
        (b) The Chairman shall then permit the business to be transacted by circulation of papers to the members;
        (c) Action proposed to be taken shall not be taken unless agreed to by a majority of the members;
        (d) Action so taken shall be forthwith intimated to all the members; and
        (e) The papers shall be placed before the next meeting of the Council for confirmation.
       Rule 6 can, therefore, be resorted to for urgent action. This can be done by circulation of papers to all the members and if majority of the members so agree, the action would be taken immediately subject to two requirements that “(i) the action so taken is forthwith intimated to all the members; and (ii) the papers are placed before the next meeting for confirmation.” It is, therefore, the “action taken on the majority opinion” which is required to be confirmed in the subsequent meeting. (Paras 18 to 20).
       The record indicates that the BCI by its letter dated 13th January, 1997, addressed to all members, circulated a Resolution under Rule 6 for extension of the term of the Kerala Bar Council by six months. Before 27.1.1997 approval of only four members was received by the BCI. The matter came up for consideration of BCI in the meeting of 8.2.1997 wherein the resolution extending term of Kerala Bar Council was adopted. This was communicated to the Bar Council of Kerala on 12.2.1997. A perusal of this resolution indicates that the extension in the term was granted under the Proviso to Section 8A of the Act. The resolution does not speak of “confirmation” as, indeed, there could not be any “confirmation” as no action on the resolution which was circulated to members was taken possibly because only eight had responded and that too, very late, as the term of the State Bar Council had already expired 27.1.1997. (Paras 21 & 26)
       Rule 6 contemplates confirmation of “action” taken by the BCI. The manner in which action would be taken has been prescribed in the Rule itself. It provides that if urgent action becomes necessary, the 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.V. Patil (25.1.97); and Mr. Jagannath Patnaik (25.1.97) had indicated their approval. But that was not enough as the Rule itself provides that “action” will not be taken unless agreed to by a majority of the members. Since there were eighteen members in the BCI, the opinion of four of the members was wholly irrelevant and insufficient for “action” being taken. On that basis, no extension could be granted, nor was it granted. (Paras 28 & 29)
       It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. (Para 31)
       The process for extension of the term of Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applied, it must be shown that all its requirements were fulfilled. Now, the BCI could act in the matter in three ways :
        (a) It could convene its meeting by giving 14 days’ notice to all its members under Rule 1 and pass a resolution extending the term of Kerala Bar Council.
        (b) It could convene the meeting on a short notice under Rule 1 and pass the above resolution.
        (c) It could act under Rule 6 by circulating the resolution to all its members and on obtaining the opinion of the majority, extend the term of the Kerala Bar Council subject to confirmation at the next meeting.
       BCI did not adopt the modes available to it under (a) and (b), but invoked the provisions of Rule 6 and adopted the 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. (Paras 30, 33 & 34)
       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. Fresh elections could have been held by the Kerala Bar Council only before the expiry of its term. Otherwise, the jurisdiction to hold elections passes on to the Special Committee appointed by the BCI in terms of the provisions contained in Section 8A which are imperative in character. Since the Kerala Bar Council had ceased to have any jurisdiction on the expiry of its term and the so-called extension of its term has been held by us to be wholly illegal, the elections held by the Kerala Bar Council were farcical in character and on that basis the respondents cannot claim themselves to be the duly elected members of the Council. (Paras 37 & 39)
       The Bar Council of India is directed to appoint a Special Committee as contemplated by Rule 8A within two weeks from the date on which a copy of this judgment is communicated to them and the Special Committee shall, within four months of its being constituted, hold the elections for constituting a new Kerala Bar Council in accordance with law. Till the elections are held, the Special Committee shall, as provided by Section 8A of the Act, discharge the functions of the State Bar Council with all other consequences provided thereunder. (Para 41)
       (ii) Administrative Law-Rules of doing administrative acts - If manner of doing a particular act is prescribed under any Statute, the Act must be done in that manner or not at all. (Paras 31 & 32)

Judgment

S. Saghir Ahmad, J.-Leave granted.

2. Bar Council of Kerala, which was constituted under the Advocates Act, 1961 (for short, the ‘Act’) on 28th January, 1992, was to last for a term of five years which expired on 27th January, 1997. But before the expiry of the term, it approached the Bar Council of India (BCI, for short) through its letter dated 31st December, 1996 for extension for its term by six months. A reminder for this purpose was also sent on 13th January, 1997.

3. On receipt of the reminder from the State Bar Council, a Resolution was circulated by the BCI to all its 18 members on 13th January, 1997 proposing to extend the term for a period of six months. In its meeting held on 8th February, 1997, BCI confirmed the Resolution on which opinion was obtained from the members by circulation. It was during this period of six months that elections were held and a new State Bar Council for Kerala was elected.

4. 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, it had ceased to have any jurisdiction to conduct the elections. This Writ Petition as also the Writ Appeal referred to above, were disposed of by a common judgment passed on 11.12.1997 dismissing the Writ Petition as also the Writ Appeal. The High Court has held that the term of the Kerala Bar Council will be treated to have been extended by the Bar Council of India before the expiry of its original term. It is against this judgment that the present appeal has been filed.

5. We have heard learned counsel for the parties. Learned counsel appearing for the appellants has contended that the impugned election by which a new Bar Council for the State of Kerala has been elected is no election in the eye of law as the State Bar Council, on the expiry of its term on 27th January, 1997, had ceased to exist and consequently had ceased to have any jurisdiction for conducting a fresh election. It is also contended that the extension of the term of the State Bar Council should have been granted by the BCI before 27th of January, 1997 and since the extension was granted by a Resolution adopted on 8th February, 1997, it would not have the effect of extending the term with effect from 27th of January, 1997. It is contended that immediately on the expiry of the term of the State Bar Council, fresh elections could have been held only in the manner provided under Section 8A(3) of the Act and since the elections were not held in that manner through the Special Committee but were held by the State Bar Council, which had ceased to have any jurisdiction in the matter, the elections were a nullity.

6. Mr. V.R. Reddy, learned Senior counsel appearing on behalf of BCI as also Mr. K.M.K. Nair, appearing on behalf of the Bar Council of Kerala, have contended that the term of the State Bar Council shall be deemed to have been extended on 13th of January, 1997, namely, the date on which the Resolution for extending the term was circulated to all the eighteen members of the

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1999 Supreme(SC) 320

Cases Referred (6)