1974 Supreme(All) 222

Allahbad High Court
C.D.PAREKH,K.N.SINGH
Ravi Kiran Jain - Appellant
Versus
Bar Council of U. P. - Respondent
Decided On : 12/18/1974

The requirement of time fixed under Rule 32 (5) for the constitution of Election Tribunal is only directory and not mandatory.

Headnote:

ELECTION - Bar Council of Uttar Pradesh - Validity of election - Electoral roll - Preparation - Time limit - Directory and not mandatory - Alteration of dates of election - Jurisdiction of Bar Council - Tampering of ballot papers - Effect - Election Tribunal - Jurisdiction to decide election disputes - Constitution of Election Tribunal - Time limit - Directory and not mandatory - Members of Election Tribunal - Bias - Disqualification.

Fact of the Case:

Petition challenging the validity of the election of respondents Nos. 6 to 30 as members of the Bar Council of Uttar Pradesh. Petitioners claimed relief for the issue of a writ, order or direction in the nature of certiorari quashing the election of respondents Nos. 6 to 30 and the resolution of the Bar Council dated 31st March, 1974 constituting Election Tribunal, and for the issue of a writ, order or direction to the Bar Council of India to take recourse to sub-section (2) of Section 48-B of the Advocates Act, 1961, and to hold fresh elections under its auspices according to law.

Finding of the Court:

1. The requirement of Rule 4 (a) for preparation of preliminary electoral roll within 120 days before the date of expiry of members of the State Bar Council is directory and not mandatory. 2. Rule 4 (b) contemplates that the final electoral roll must contain the names of Advocates enrolled after the preparation of the preliminary electoral roll and the same should be put up on the notice board of the State Bar Council not more than 75 days and not less than 60 clear days before the date of election. 3. The State Bar Council had jurisdiction to fix dates of election and it could postpone the dates or refix the same. 4. The petitioners' contention that the entire election was vitiated on account of the tampering of ballot papers was rejected as the tampering was made on 6-5-1974 during the 59th round of counting, before that no tampering had been found or even alleged. It was also noted that the preferences recorded in favour of other candidates in the disputed ballot papers were not tampered with. 5. The Election Tribunal has ample power to investigate the allegations and if it considers necessary it may order recount and scrutiny of the ballot papers. 6. The requirement of time fixed under Rule 32 (5) for the constitution of Election Tribunal is only directory and not mandatory. 7. The petitioners failed to establish that the members of the Election Tribunal are biased or that they took any active part in the election.

Issues: 1. Whether the electoral roll was prepared in violation of Rules 4 (a) and 4 (b) of the Bar Council of India Rules? 2. Whether the State Bar Council had jurisdiction to alter the dates fixed for election and to fix 15th and 16th April, 1974? 3. Whether the entire election was vitiated on account of the tampering of ballot papers? 4. Whether the Election Tribunal has jurisdiction to decide election disputes? 5. Whether the constitution of Election Tribunal was invalid as it was not constituted before the date on which the time of the election was fixed? 6. Whether the members of the Election Tribunal were disqualified to adjudicate the election disputes due to bias?

Ratio Decidendi: 1. The requirement of Rule 4 (a) for preparation of preliminary electoral roll within 120 days before the date of expiry of members of the State Bar Council is directory and not mandatory. The rules do not indicate that the roll if prepared beyond 120 days from the expiry of the term of the members would be invalid. 2. Rule 4 (b) requires that the final electoral roll must contain the names of Advocates enrolled after the preparation of the preliminary electoral roll and the same should be put up on the notice board of the State Bar Council not more than 75 days and not less than 60 clear days before the date of election. The final electoral roll must contain the names of those Advocates who may be enrolled after the preparation of the preliminary electoral roll and the electoral roll must contain the names of those Advocates who may be enrolled prior to 75 days or 60 days as the case may be before the date of election. 3. The State Bar Council had jurisdiction to fix dates of election and it could postpone the dates or refix the same. Neither the statute nor the rules framed thereunder place any restriction on the exercise of the power of the State Bar Council. In the absence of any such restriction, the Court did not find any justification to accept the interpretation as suggested by the petitioners which would divest the Bar Council of its jurisdiction to fix or alter dates for election. 4. The Election Tribunal has ample power to investigate the allegations and if it considers necessary it may order recount and scrutiny of the ballot papers. Section 15 (2) (d) of the Election Rules, 1968, lays down that a dispute relating to election shall be decided in the manner prescribed in the rules. Rule 32 makes provision for raising election disputes and its adjudication by an Election Tribunal constituted under clause (4). The election tribunal is invested with powers to dismiss the petition, to order recount, to declare any candidate to have been duly elected on a recount and to set aside the election of candidates. The Tribunal is further invested with power to declare a vacancy. The procedure required to be followed by the Tribunal has also been laid down. 5. The requirement of time fixed under Rule 32 (5) for the constitution of Election Tribunal is only directory and not mandatory. It is a well established principle that where the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of that duty would work serious general inconvenience or injustice to persons who had no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, such provisions should be construed as being directory only and not imperative. 6. The petitioners failed to establish that the members of the Election Tribunal are biased or that they took any active part in the election.

Final Decision: Petition dismissed with costs.