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HIGH COURT OF ORISSA
ARINDAM SINHA, J
CHINMAY MOHANTY – Appellant
Versus
BAR COUNCIL OF INDIA – Respondent
WP(C)/21100/2021
The Bar Council of India cannot extend the term of the State Bar Council beyond six months on the expiry of the term, and Rule 23 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, is ultra vires section 8 of the Advocates Act, 1961.
Headnote:
ELECTION - BAR COUNCIL - EXTENSION OF TERM - [The Bar Council of India cannot extend the term of the State Bar Council beyond six months on the expiry of the term. Rule 23 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, which bars the State Bar Council from conducting elections until the verification process is completed, is ultra vires section 8 of the Advocates Act, 1961.]
Fact of the Case:
The petitioners, former Chairman and a three-time elected member of the Odisha State Bar Council, filed a writ petition challenging the extension of the term of the State Bar Council beyond six months on the expiry of the term. The petitioners contended that the Bar Council of India had no power to extend the term under section 8 of the Advocates Act, 1961, and that Rule 23 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, which barred the State Bar Council from conducting elections until the verification process was completed, was ultra vires section 8 of the Advocates Act, 1961.
Finding of the Court:
The Court held that the Bar Council of India could only extend the period for six months beyond May, 2019, and that Rule 23 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, was ultra vires section 8 of the Advocates Act, 1961.
Issues: 1. Whether the Bar Council of India can extend the term of the State Bar Council beyond six months on the expiry of the term? 2. Whether Rule 23 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, is ultra vires section 8 of the Advocates Act, 1961?
Ratio Decidendi: 1. The Court relied on the judgment of the Supreme Court in Lakshmi Charan Sen vs. A.K.M. Hassan Uzzaman, where it was held that election laws abhor a vacuum and that the fact that certain claims and objections are not finally disposed of cannot arrest the process of election. 2. The Court also relied on the judgment of the Supreme Court in Union of India v. S.Srinivasan, where it was held that a rule cannot travel beyond the parent statute and that a rule must be in accord with the parent statute.
Final Decision: The Court allowed the writ petition and directed the State Bar Council to conduct election on the basis of existing electoral roll within six weeks from the date of communication of the order.
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.21100 of 2021
(Through hybrid mode)
Chinmay Mohanty and another
….
Petitioners
Mr.Asok Mohanty, Senior Advocate
Mr. G.M.Rath, Advocate
-versus-
Bar Council of India and another
….
Opposite Parties
Mr. Amit Prasad Bose, Advocate (for O.P. no.1)
Mr.Amitav Das, Advocate (for O.P. no.2)
CORAM: JUSTICE ARINDAM SINHA
Order No.
ORDER
04.01.2022
10.
1.
Two persons have joined as petitioners. Petitioner no.1
claims to be former Chairman of Odisha State Bar Council and
petitioner no.2, three times elected member of Odisha State Bar
Council. Mr. Mohanty, learned senior advocate appears on their
behalf. He submits, election has not been held in the State Bar
Council. He draws attention to paragraph 3F of the petition,
where there is clear averment that the State Bar Council (O.P.
no.2) conducted its last Council Election in year 2014 and
tenure of the members expired on 5th May, 2019. There is
further statement that the State Bar Council had by letter dated
27th January, 2019 written to Bar Council of India (O.P. no.1)
for extension of the term under section 8 in Advocates Act,
1961.
// 2 //
2.
He relies on following judgments of the Supreme
Court.
(i) Lakshmi Charan Sen vs. A.K.M. Hassan
Uzzaman, reported in (1985) 4 SCC 689, particularly
paragraphs 18, 20 and 21.
He submits, this judgment consisting of majority view of four
learned Judges, including those expressed in paragraphs relied
upon, clearly declares the law regarding the rule relied upon for
verification of electoral roll causing elections to the State Bar
Council to be pended as creating a vacuum. Election laws abhor
a vacuum. There cannot be arrest of the process of election.
(ii) Kishansing Tomar vs. Municipal Corporation of
the City of Ahmedabad, reported in (2006) 8 SCC 352.
He submits, this also is a Constitution Bench judgment of the
Supreme Court where the views expressed are unanimous. He
relies on paragraphs 19 to 22. Paragraph 20 is reproduced
below.
“20. The majority opinion in Lakshmi Charan
Sen v. A.K.M. Hassan Uzzaman held that the fact
that certain claims and objections are not finally
disposed of while preparing the electoral rolls or
even assuming that they are not filed in accordance
with law cannot arrest the process of election to the
legislature. The election has to be held on the basis
of the electoral rolls which are in force on the last
date for making nomination. It is true that the
Election Commission shall take steps to prepare the
electoral rolls by following due process of law, but
// 3 //
that too, should be done timely and in no
circumstances, it shall be delayed so as to cause
gross violation of the mandatory provisions
contained in Article 243-U of the Constitution.”
(iii) Union of India v. S.Srinivasan, reported in (2012)
7 SCC 683.
Mr. Mohanty relies on paragraph 21, quoted below.
“21. At this stage, it is apposite to state about
the rule-making powers of a delegating authority. If
a rule goes beyond the rule-making power conferred
by the statute, the same has to be declared ultra
vires. If a rule supplants any provision for which
power has not been conferred, it becomes ultra
vires. The basic test is to determine and consider the
source of power which is relatable to the rule.
Similarly, a rule must be in accord with the parent
statute as it cannot travel beyond it.”
3.
Mr. Das, learned advocate appears on behalf of
opposite party no.2. He, on behalf of his client has filed
memorandum dated 3rd January, 2022 pursuant to direction in
order dated 16th December, 2021. In this connection paragraphs
3 and 4 in said order dated 16th December, 2021 are reproduced
below.
“3. Mr. Das, learned advocate appears on
behalf of the State Bar Council and draws attention
to
