{"id":204184,"date":"1980-05-01T00:00:00","date_gmt":"1980-04-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bar-council-of-delhi-and-anr-etc-vs-surjeet-singh-and-ors-etc-etc-on-1-may-1980"},"modified":"2017-10-03T21:44:35","modified_gmt":"2017-10-03T16:14:35","slug":"bar-council-of-delhi-and-anr-etc-vs-surjeet-singh-and-ors-etc-etc-on-1-may-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bar-council-of-delhi-and-anr-etc-vs-surjeet-singh-and-ors-etc-etc-on-1-may-1980","title":{"rendered":"Bar Council Of Delhi And Anr. Etc vs Surjeet Singh And Ors. Etc. Etc on 1 May, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bar Council Of Delhi And Anr. Etc vs Surjeet Singh And Ors. Etc. Etc on 1 May, 1980<\/div>\n
Equivalent citations: 1980 AIR 1612, \t\t 1980 SCR (3) 946<\/div>\n
Author: N Untwalia<\/div>\n
Bench: Untwalia, N.L.<\/div>\n
           PETITIONER:\nBAR COUNCIL OF DELHI AND ANR. ETC.\n\n\tVs.\n\nRESPONDENT:\nSURJEET SINGH AND ORS. ETC. ETC.\n\nDATE OF JUDGMENT01\/05\/1980\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nTULZAPURKAR, V.D.\nSEN, A.P. (J)\n\nCITATION:\n 1980 AIR 1612\t\t  1980 SCR  (3) 946\n 1980 SCC  (4) 211\n\n\nACT:\n     Bar Council  of Delhi  Election Rules  1968  Rule\t3(i)\nvalidity of-Jurisdiction  of the  High Court  under  Article\n226-Alternative remedy\tno bar-Right  to vote  and right  to\nstand  for  election-Doctrine  of  Promissory  Estoppel\t and\nprinciple of approbation and reprobation.\n\n\n\nHEADNOTE:\n     In the  year 1978,\t a proviso was added to Rule 3(j) of\nthe Bar\t Council of  Delhi Election  Rules,  1968  with\t the\napproval of  the Bar Council of India in accordance with the\nrequirement  of\t  Sub-section  (3)  of\tsection\t 15  of\t the\nAdvocates Act,\t1961. In accordance with that proviso a copy\nof the\tdeclaration form  was sent on 14th June, 1978 to the\nAdvocates whose\t names found  place in\tthe  State  roll  of\nAdvocates asking  them to  return the  declaration form duly\nfilled\tup   and  signed  within  the  specified  period.  A\npublication to\tthis effect was also made in some newspapers\nviz. Hindustan\tTimes, Indian  Express, Statesman  etc.\t The\nlast extended  date for\t the submission\t of the\t declaration\nforms was  14th September,  1978 and  the electoral roll was\nfinally published  on the 16th September, 1978 excluding the\nnames of about 2,000 Advocates who had failed to submit such\ndeclaration forms.  On the  basis of  the electoral  roll so\nprepared, elections  to the Bar Council of Delhi was held on\nthe 17th  November, 1978.  The total  number of advocates on\nthe Advocates  roll was 5,000 and odd out of which the names\nof about  3,000 and  odd only were included in the electoral\nroll in\t accordance with  the proviso  to Rule\t3(j) of\t the\nElection Rules\tof the\tBar Council of Delhi. The results of\nthe election  were declared  on the 19th November, 1978. The\nnames of  the 15  persons who  were  declared  elected\twere\npublished  in  the  Gazette  on\t the  22nd  November,  1978.\nThereafter the\trespondents  in\t these\tappeals\t filed\twrit\npetitions challenging  the whole  election by  attacking the\nvalidity of the proviso to Rule 3(j).\n     The Delhi\tHigh Court  allowed the three writ petitions\ntaking the  view, (i)  so far  as the  qualifications to  be\npossessed by  and the  conditions  to  be  satisfied  by  an\nadvocate before\t being brought\ton to the Electoral Roll was\nconcerned only\tthe Bar\t Council of India has the competence\nto make the rules under section 3(4) and section 49(1)(a) of\nthe Advocates  Act, 1961  and the  State Bar  Council has no\npower at  all to  make a rule on this subject; (ii) the plea\nof estoppel against Surjeet Singh does not arise, (iii) rank\ninjustice has been done to the petitioners because more than\n2000 advocates were wrongfully disqualified being brought on\nthe Electoral  Roll. This has materially affected the result\nof the\telections; and\t(iv) Rule 3(j) of the Bar Council of\nDelhi Election\tRules, 1968 is in excess of the rules making\npower of Bar Council of Delhi.\n     Dismissing the appeals by special leave the Court,\n^\n     HELD: 1. The impugned proviso to Rule 3(j) of the Delhi\nBar Council of Election Rules is ultra vires and invalid and\nthe electoral roll prepared by\n947\nthe Delhi  Bar Council on the basis of the same resulting in\nthe exclusion  of the names of about 2000 advocates from the\nsaid roll was not valid in law. [958D-E]\n     (b) The  whole election was invalid on that account and\nit could  be challenged\t as such  in a writ petition. It was\nnot a  case of\tchallenging the preparation of the electoral\nroll on the factual basis of wrong exclusion of a few names.\nFor the\t said purpose  Rule 4  occurring in Chapter I of the\nBar Council  of India  Rules could come into play. But here,\nbecause\t of   the  invalidity\tof  the\t Rules\titself,\t the\npreparation of\tthe electoral roll was completely vitiated-a\nmatter which  cannot be\t put within  the narrow limit of the\nsaid rule. [958E-F]\n     However, it  depends upon\tthe nature and the intensity\nof the\terror committed\t in the preparation of the electoral\nroll and  its effect  on the whole election for deciding the\nquestion as to whether a writ petition would be maintainable\nor not. [862E-F]\n     Chief Commissioner,  Ajmer v. Radhey Shyam Dani,<\/a> [1957]\nS.C.R. 68;  Parmeshwar Mahaseth\t and Ors.  v. State of Bihar\nand Ors.,  AIR 1958  Patna 149;\t Umakant Singh\tand Ors.  v.\nBinda Choudhary\t and Ors.,  AIR 1965  Patna 459; Dev Prakash\nBalmukand v.  Babu Ram\tRewti Mal  and Ors.  AIR 1961 Punjab\n429;  Ramgulam\t Shri  Baijnath\t Parsad\t v.  The  Collector,\nDistrict Guna and Ors., AIR 1975 M.P. 145 and Bhoop Singh v.\nBar Council  of Punjab and Haryana through its Secretary and\nOrs., AIR 1976 M.P. 110; referred to.\n     (c) The  illegal preparation  of the  electoral roll by\nthe Delhi Bar Council on the basis of the invalid proviso to\nRule 3(j)  goes to  the very  root  of\tthe  matter  and  no\nelection held  on the  basis of\t such an  infirmity  can  be\nupheld. There  is no question of the result being materially\naffected in such a case. [958F-G]\n     (d) The contesting respondents could not be defeated in\ntheir writ  petitions on  the  ground  of  estoppel  or\t the\nprinciple that\tone cannot  approbate and  reprobate or that\nthey were  guilty of  laches. In  the first instance some of\nthe contesting\trespondents were  merely  voters.  Even\t Sri\nSurjeet Singh  in his  writ petition  claimed to  be both  a\ncandidate and  a voter.\t As a  voter he\t could challenge the\nelection even  assuming that  as  a  candidate\tafter  being\nunsuccessful he\t was estopped  from doing  so.\tBut,  merely\nbecause he  took part  in the  election\t by  standing  as  a\ncandidate or by exercise of his right of franchise he cannot\nbe estopped  from challenging  the whole  election when\t the\nelection was  glaringly illegal and void on the basis of the\nobnoxious proviso.  There is  no question of approbation and\nreprobation in\tsuch a\tcase. A voter could come to the High\nCourt even  earlier before the election was held. But merely\nbecause he  came to challenge the election after it was held\nit cannot  be said  that he was guilty of laches and must be\nnon-suited on that account. [958F-H, 959A-B]\n     Kanglu  Beula   Kotwal  and  Anr.\tv.  Chief  Executive\nOfficer, Janpad\t Sabha, Durga  and Ors., AIR 1955 Nagpur 49;\ndistinguished.\n     (e) The manner of resolving disputes as to the validity\nof election  is provided  for in  Rule 34  of the  Delhi Bar\nCouncil Election Rules. This is not an\n948\nappropriate and\t adequate alternative  remedy to  defeat the\nwrit petitioner\t on that account. Firstly, no clause of Rule\n34 covers the challenging of the election on the ground that\nit has\tbeen done  in  this  case.  Secondly,  the  Election\nTribunal will  not be  competent to declare any provision of\nthe Election Rules ultra vires and invalid. It is not a case\nwhere the  name of  any voter  was wrongly  omitted from the\nelectoral roll but it is a case where the preparation of the\nwhole electoral\t roll was  null\t and  void  because  of\t the\ninvalidity of the impugned proviso. [959C-D, E-F]\n     Ramgulam Shri Baijnath Pd. v. The Collector, Dist. Guna\nand Ors.,  AIR 1975  M.P. 145 and Bhupendra Kumar Jain v. Y.\nS. Dharmadhikari and Ors., AIR 1976, M.P. 110; referred to.\n     Bhoop Singh  v.  Bar  Council  of\tPunjab\tand  Haryana\nthrough its  Secretary and  Ors., AIR  1977 Pb.\t &  Haryana;\nquoted with approval.\n     K. K. Srivastava etc. v. Bhupendra Kumar Jain and Ors.,\nAIR 1977 S.C. 1703; distinguished.\n     2. If the alternative remedy fully covers the challenge\nto the\telection then that remedy and that remedy alone must\nbe resorted  to even though it involves the challenge of the\nelection of all the successful candidates. But if the nature\nand the\t ground of  the challenge  of the whole election are\nsuch that  the alternative remedy is no remedy in the eye of\nlaw to cover the challenge or, in any event, is not adequate\nand efficacious\t remedy, then the remedy of writ petition to\nchallenge the  whole election  is still\t available.  In\t the\npresent case  the Election  Tribunal would have found itself\nincompetent to declare the proviso to Rule 3(j) of the Delhi\nBar Council Election Rules ultra vires and that being so the\nalternative remedy  provided in\t Rule 34(8) was no remedy at\nall. [964D-F]\n     Suryya Kumar  Ray v.  The Bar Council of India and Ors.\nMatter No.  304\t of  1976  decided  on\tDecember  17,  1976,\noverruled.\n     Harish Sambhu Prasad v. Bar Council of Gujarat, Special\nCivil Application Nos. 542 and 551 of 1969; approved.\n     3. So long the existing rules framed by the Bar Council\nof India  remained in  vogue all  persons whose names are on\nthe State  Roll are entitled proprio vigore to be put on the\nelectoral roll.\t Sections 24(e) (1) and 26A of the Advocates\nAct, 1961  read with  Rules 1,\t2 and 3 of Chapter I of Part\nIII of\tthe Bar\t Council of  India Rules  make this position\nclear. [954A-B, D-H]\n     4. On a plain reading of sub-sections 4 of section 3 of\nthe Advocates  Act, 1961,  it is manifest that under the Act\nthe qualifications  and conditions  entitling an advocate to\nvote at\t an election  or for being chosen as a member of the\nState Bar Council has to be prescribed by the Bar Council of\nIndia. The State Bar Council has no such power. The power of\nthe State  Bar Council\tis merely to prepare and revise from\ntime to time the electoral roll subject to the Rules made by\nthe Bar\t Council of  India concerning the qualifications and\nconditions aforesaid. This interpretation of Section 3(4) of\nthe Act\t finds ample  support  from  the  very\tspecial\t and\nspecific provision  contained in section 49(1) (a) providing\nfor the general power of the Bar Council of India. [956F-H]\n949\n     5. It is true that the power to make rules conferred by\nsection 15  is both for the Bar Council of India as also for\nthe Bar\t Council of  a State. But no provision of section 15\ncan override the specific provision made in section 3(4) and\nsection 49(1)(a)  of the  Act. Sub-section (1) of section 15\nsays-\"A Bar Council may make rules to carry out the purposes\nof this Chapter\" which means Chapter II including section 3.\nBut the\t power to  prescribe qualifications  and  conditions\nentitling an  advocate to  vote at an election being that of\nthe Bar Council of India section 15(1) cannot be interpreted\nto confer  power on  the State\tBar Council  to\t make  rules\nregarding  the\t qualifications\t and  conditions  aforesaid.\n[957B-D]\n     The  State\t  Bar  Council\t can  frame  rules  for\t the\npreparation and\t revision of  electoral rolls  under section\n15(2)(a). That\twould be  in conformity with the latter part\nof sub-section\t(4) of\tsection 3  also. But  in the garb of\nmaking a  rule for  the\t preparation  and  revision  of\t the\nelectoral  rolls   it  cannot  prescribe  disqualifications,\nqualifications or  conditions subject  to which\t an advocate\nwhose name  occurs in  the State  roll can find place in the\nelectoral roll\tresulting in his deprivation of his right to\nvote at the election. In the instant case under the impugned\nproviso failure\t on the\t part of  an advocate  to submit the\nrequired declaration  within the specified time entitles the\nState Bar  Council to  exclude his  name from  the electoral\nroll. Such  a thing  was squarely  covered by  the exclusive\npower conferred\t on the\t Bar Council of India under sections\n3(4) and  49(1)(a) of  the  Advocates  Act.  The  State\t Bar\nCouncil had no such power. [957F-H]\n     6. The  approval of  the Bar  Council of India can make\nthe rule  made by  the State Bar Council valid and effective\nonly if\t the rule made is within the competence of the State\nBar Council  otherwise not. Mere approval by the Bar Council\nof India  to a rule ultra vires the State Bar Council cannot\nmake the rule valid. Nor has it the effect of a rule made by\nthe Bar\t Council of  India. Making a rule by the Bar Council\nof India and giving approval to a rule made by the State Bar\nCouncil are  two distinct  and different  things. One cannot\ntake the place of the other. [958B-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 2224,
\n2225 and 2226 of 1979.\n<\/p>\n
     Appeals by\t Special Leave\tfrom the  Judgment and Order
\ndated 22-5-1979\t of the\t Delhi High Court in Civil Writ Nos.
\n111, 551 and 284 of 1979.\n<\/p>\n
     V.M.  Tarkunde,   A.  K.  Sen,  G.\t L.  Sanghi,  B.  P.
\nMaheshwari and\tS. K.  Bhattacharya for\t the  Appellants  in
\nC.A.s. 2224, 2225, 2226\/79.\n<\/p>\n
     P. R.  Mridul, Vimal  Shanker, K.\tR. R.  Pillai, P. N.
\nWadhera and  Aruneshwar Gupta  for Respondent  No. 1  in  CA
\n2224\/79.\n<\/p>\n
     D. D.  Chawla,  Vineet  Kumar  and\t R.  S.\t Sihota\t for
\nRespondent Nos. 1-3 in CA 2225\/79.\n<\/p>\n
     B. D.  Sharma and Aloka Bhattacharya for Respondent No.
\n1 in CA 2226\/79.\n<\/p>\n
950<\/span><\/p>\n
     The Judgment of the Court was delivered by
\n     UNTWALIA J.-These\tthree appeals  by the Bar Council of
\nDelhi and  the Bar  Council of\tIndia are  from\t the  common
\njudgment  of  the  Delhi  High\tCourt  allowing\t three\twrit
\npetitions filed\t by the\t first respondent in each appeal and
\nothers seeking\tthe setting aside of the election of the Bar
\nCouncil of  Delhi held\tin the\tyear  1978.  As\t the  points
\ninvolved in  them are  identical they are all being disposed
\nof by  this common  judgment. We  shall proceed to state the
\nfacts from  the records\t of Civil Appeal No. 2224 of 1979 in
\nwhich respondent no. 1 is Shri Surjeet Singh Bhangul. He was
\na voter\t as also  a candidate  for the\telection wherein  he
\nlost. In  the writ petition giving rise to Civil Appeal 2225
\nof 1979 there were three petitioners-two were candidates but
\nShri D.\t R. Thakur  was\t an  advocate  whose  name  was\t not
\nincluded in  the electoral  roll although his name occurs in
\nthe State roll of Advocates. Shri A. S. Randhawa, respondent
\nno. 1  in Civil\t Appeal 2226 of 1979 was a person whose name
\noccurred both  in the State roll of Advocates as also in the
\nelectoral roll. But he was not a candidate.\n<\/p>\n
     Surjeet Singh  was an  advocate who was a member of the
\nDelhi Bar  Council before  the impugned\t election. A proviso
\nwas added  to Rule 3(j) of the Bar Council of Delhi Election
\nRules, 1968  in the  year  1978.  In  accordance  with\tthat
\nproviso a  copy of  the declaration  form was  sent on\t14th
\nJune, 1978  to the  advocates whose names found place in the
\nState  roll   of  Advocates   asking  them   to\t return\t the
\ndeclaration form  duly\tfilled\tup  and\t signed\t within\t the
\nspecified period. A publication to this effect was also made
\nin some\t newspapers viz.  Hindustan Times,  Indian  Express,
\nStatesman etc.\tThe last extended date for the submission of
\nthe declaration\t forms\twas  14th  September  1978  and\t the
\nelectoral roll\twas finally  published on the 16th September
\n1978 excluding\tthe names  of about  2,000 advocates who had
\nfailed to submit such declaration forms. On the basis of the
\nelectoral roll\tso prepared,  according to  the programme of
\nelection, the  election of  members to\tthe Bar\t Council  of
\nDelhi was  held on  the 17th November 1978. The total number
\nof advocates  on the Advocates roll was 5,000 and odd out of
\nwhich the names of about 3,000 and odd only were included in
\nthe electoral  roll in\taccordance with\t the proviso to Rule
\n3(j) of\t the Election Rules of the Bar Council of Delhi. The
\nresults of  the election were declared on the 19th November,
\n1978. The  names of the 15 persons who were declared elected
\nwere published\tin the\tGazette on  the 22nd November, 1978.
\nThereafter on the 24th of January 1979 the writ petition was
\nfiled in  the High  Court challenging  the whole election by
\nattacking the validity of the proviso to Rule 3(j).\n<\/p>\n
951<\/span><\/p>\n
     Apart from the successful candidates the writ petitions
\nwere  mainly   and  vigorously\tcontested  by  the  two\t Bar
\nCouncils, namely,  the Bar  Council of\tDelhi  and  the\t Bar
\nCouncil of  India. The\tlatter\tseems  to  have\t taken\tkeen
\ninterest in  the matter\t of contesting\tthe  writ  petitions
\nbecause the  impugned proviso to Rule 3(j) was introduced in
\nthe Election  Rules with  the approval of the Bar Council of
\nIndia in  accordance with  the requirement  of sub-s. (3) of
\nSection 15  of the  Advocates Act,  1961. The High Court has
\ntaken the view:-\n<\/p>\n
\t  (1)  “Lastly,\t  the\t irresistible\t conclusion,
\n\t       therefore,   is\t  that\t so   far   as\t the
\n\t       qualifications to  be possessed\tby  and\t the
\n\t       conditions to  be satisfied  by\tan  advocate
\n\t       before being  brought on\t the Electoral\tRoll
\n\t       are concerned  only the\tBar Council of India
\n\t       has the\tcompetence to  make the\t rules under
\n\t       Section 3  (4) and Section 49 (1) (a) and the
\n\t       State Bar Council has no power at all to make
\n\t       a rule on this subject.”\n<\/p><\/blockquote>\n
\t  (2)  The plea\t of estoppel  raised against Surjeet
\n\t       Singh was rejected.\n<\/p><\/blockquote>\n
\t  (3)  “Rank  injustice\t  has  been   done  to\t the
\n\t       petitioner because  more than 2,000 advocates
\n\t       were  wrongfully\t  disqualified\tfrom   being
\n\t       brought\ton  the\t Electoral  Roll.  This\t has
\n\t       materially  affected   the  result   of\t the
\n\t       election.”\n<\/p><\/blockquote>\n
\t  (4)  “For the\t reasons stated\t above, we hold that
\n\t       Rule  3(j)   of\tthe  Bar  Council  of  Delhi
\n\t       Election Rules,\t1968, is  in excess  of\t the
\n\t       rules making  power of  the  Bar\t Council  of
\n\t       Delhi. Since  the action\t taken\tby  the\t Bar
\n\t       Council of  Delhi  to  disqualify  more\tthan
\n\t       2,000  advocates\t  because  of\ttheir\tnon-
\n\t       compliance with\tthe proviso to Rule 3(j) has
\n\t       resulted in great prejudice to the petitioner
\n\t       who can justly claim that the bringing on the
\n\t       Electoral Roll  of more\tthan 2000  advocates
\n\t       would have  made a considerable difference to
\n\t       his own\telection and  to the  election as  a
\n\t       whole, we  are constrained  to set  aside the
\n\t       election to  the Bar Council of Delhi held on
\n\t       17th November 1978.”<\/p><\/blockquote>\n
     M\/s V.  M.\t Tarkunde,  A.\tK.  Sen\t and  G.  L.  Sanghi
\nappearing for  the appellants,\tbroadly speaking,  made\t the
\nfollowing submissions:-\n<\/p>\n
\t  (1)  That  the   impugned  proviso  of  Delhi\t Bar
\n\t       Council Election\t Rules was  valid as  it was
\n\t       within  the   competence\t of  the  Delhi\t Bar
\n\t       Council to  add such  a proviso\tin the Rules
\n\t       under its rule making power with the approval
\n\t       of the Bar Council of India. In any event the
\n\t       ap-\n<\/p><\/blockquote>\n
952<\/span><\/p>\n
\t       proval had  the effect  of making  it a\trule
\n\t       made by the Bar Council of India.\n<\/p><\/blockquote>\n
\t  (2)  The  electoral\troll  prepared\tby  the\t Bar
\n\t       Council of Delhi could not be challenged in a
\n\t       writ  petition.\t The  preparation   of\t the
\n\t       electoral  roll\t is  final   and  any  wrong
\n\t       exclusion or inclusion of name from or in the
\n\t       electoral  roll\t is  beyond   the  pale\t  of
\n\t       challenge in a writ petition.\n<\/p><\/blockquote>\n
\t  (3)  That it\twas not shown that the result of the
\n\t       election has  been materially affected due to
\n\t       the non-inclusion of the names of about 2,000
\n\t       advocates from  the electoral roll. There was
\n\t       neither any  pleading to\t this effect nor was
\n\t       any material  placed before the High Court in
\n\t       support of this assertion.\n<\/p><\/blockquote>\n
\t  (4)  That Surjeet  Singh and\tothers like  him who
\n\t       had taken  part\tin  the\t election  and\twere
\n\t       defeated were  estopped from  challenging the
\n\t       election as  they  could\t not  approbate\t and
\n\t       reprobate at  the same time. They were guilty
\n\t       of laches  also as they could have challenged
\n\t       in  the\t High  Court  the  validity  of\t the
\n\t       impugned\t proviso  before  the  election\t was
\n\t       actually held.\n<\/p><\/blockquote>\n
\t  (5)  That there  is a\t specific remedy provided in
\n\t       the Delhi  Bar  Council\tElection  Rules\t for
\n\t       challenging any\telection to  the Bar Council
\n\t       and hence  in view  of  the  adequate  remedy
\n\t       being available\tthe election  could  not  be
\n\t       challenged by a writ petition.<\/p><\/blockquote>\n
     M\/s. P.  R. Mridul\t and F. S. Nariman appearing for the
\ncontesting respondents\tcombated all the submissions made on
\nbehalf of  the appellants  and supported the judgment of the
\nHigh Court.\n<\/p>\n
     We find  no substance  in any  of the  points urged  on
\nbehalf of the appellants. We are, by and large, in agreement
\nwith the decision of the High Court on each and every point.
\nWe proceed to briefly state our reasons for the same.\n<\/p>\n
     Section 4 of the Advocates Act provides for persons who
\nmay be\tadmitted as advocates on a State roll. Clause (e) of
\nsub-s. (1)  says that  the person  must\t fulfil\t such  other
\nconditions as  may be  specified in  the rules\tmade by\t the
\nState Bar  Council  under  Chapter  III\t of  the  Act  which
\nconcerns the  admission and  enrollment of  advocates. Under
\nthe Rules  so framed  a person desirous of being enrolled as
\nan advocate  has to  apply in the prescribed form furnishing
\nall the\t details of  his qualifications to be enrolled as an
\nadvocate.  In  item  3\tof  the\t application  the  applicant
\ndeclares-“I declare that upon admission I pro-\n<\/p>\n
953<\/span><\/p>\n
pose to\t practise within  the State of Delhi.” At the end of
\nthe application\t form certain  undertakings are given by the
\napplicant. Clause (c) of the undertaking runs thus:-\n<\/p>\n
\t  “I hereby declare and undertake that-\n<\/p><\/blockquote>\n
\t  (iv) I intend to practise ordinarily and regularly
\n\t       within the jurisdiction of the Bar Council of
\n\t       Delhi.\n<\/p><\/blockquote>\n
\t  (v)  I shall\tinform the Bar Council of any change
\n\t       of  address  of\tmy  residence  or  place  of
\n\t       practice for  the proper\t maintenance of\t the
\n\t       roll and voters’ list.”\n<\/p><\/blockquote>\n
According  to  the  case  of  the  Delhi  Bar  Council\tmany
\nadvocates after\t having been  enrolled and  put on the State
\nroll of\t advocates of Delhi break the said undertaking. They
\ndo  not\t  ordinarily  and   regularly  practise\t within\t the
\njurisdiction of\t the Bar Council of Delhi nor do they inform
\nany change of address for the proper maintenance of the roll
\nand the\t voters’ list. It is a pertinent matter no doubt. It
\nis the\tduty of\t the Bar Council to obtain information as to
\nwhether any person put on the roll of State advocates ceased
\nordinarily and regularly to practise within the jurisdiction
\nof the\tBar Council  of Delhi,\tif so,\tto  take  steps\t for
\nremoval of  his\t name  from  the  State\t rolls.\t That  would
\nautomatically, as  we shall presently show, debar the person
\nconcerned to  be put on the electoral roll. But no provision
\nin the\tAdvocates Act  or any rule was brought to our notice
\nenabling the  Delhi Bar\t Council to  remove the\t name  of  a
\nperson from  the State roll if he has broken the undertaking
\naforesaid. Section  26A of  the Advocates Act merely says-“A
\nState Bar Council may remove from the State roll the name of
\nany advocate  who is  dead or  from whom  a request has been
\nreceived to that effect.” In para 2 of the affidavit of Shri
\nD. Gupta, Advocate it is stated:-\n<\/p>\n
\t  “It is the experience of this Council that most of
\n     the advocates  who are  elevated to  the Bench or those
\n     who join  subordinate  judiciary  or  family  or  other
\n     business or  employment, seldom  care  to\tnotify\tthis
\n     Council to\t get their licence revoked or suspended, nor
\n     do the  advocates shifting their place of practice from
\n     Delhi to elsewhere, care to notify this Council in that
\n     respect, although\tthe undertakings  at internal page 8
\n     of the  Enrollment form of this Council obliges them to
\n     do so.”\n<\/p><\/blockquote>\n
It may\tbe so  but the lacunae in this regard have got to be
\nremoved by amending the Advocates Act or by properly framing
\nthe rules in that
\n954<\/span>
\nrespect. We  are definitely  of the opinion that so long the
\nexisting rules\tframed by  the Bar Council of India remained
\nin vogue  all persons  whose names are on the State roll are
\nentitled proprio  vigore to  be put  on the  electoral roll.
\nRule 1 occurring in Chapter I of Part III of the Bar Council
\nof India Rules says:-\n<\/p>\n
\t  “1. Every  advocate whose name is on the Electoral
\n     Roll of  the State Council shall be entitled to vote at
\n     an election.”\n<\/p><\/blockquote>\n
Rule 2 provides:-\n<\/p>\n
\t  “2. Subject  to the provisions of Rule 3, the name
\n     of every  advocate entered\t in the\t State Roll shall be
\n     entered in the electoral roll of the State Council.”\n<\/p><\/blockquote>\n
Exceptions to  Rule 2  are to  be found\t embodied in  Rule 3
\nwhich runs thus:-\n<\/p>\n
\t  “3. The name of an advocate appearing in the State
\n     Roll shall\t not be entered in the Electoral Roll, if on
\n     information obtained by the State Council:\n<\/p><\/blockquote>\n
     (a)  his name has any time been removed;\n<\/p><\/blockquote>\n
     (b)  he has been suspended from practice, provided that
\n\t  this disqualification\t shall operate\tonly  for  a
\n\t  period of  five years\t from the date of the expiry
\n\t  of the period of suspension;\n<\/p><\/blockquote>\n
     (c)  he is an undischarged insolvent;\n<\/p><\/blockquote>\n
     (d)  he has been found guilty of an election offence in
\n\t  regard to  an election  to the State Council by an
\n\t  Election  Tribunal,  provided\t however  that\tsuch
\n\t  disqualification  shall  not\toperate\t beyond\t the
\n\t  election next\t following after  such\tfinding\t has
\n\t  been made;\n<\/p><\/blockquote>\n
     (e)  he is\t convicted  by\ta  competent  court  for  an
\n\t  offence involving  moral turpitude,  provided that
\n\t  this disqualification\t shall cease  to have effect
\n\t  after a  period of two years has elapsed since his
\n\t  release;\n<\/p><\/blockquote>\n
     (f)  he is in full-time service or is in such part-time
\n\t  business or  other vocation  not permitted  in the
\n\t  case of  practising advocates\t by the rules either
\n\t  of the State Council concerned or of the Council;\n<\/p><\/blockquote>\n
     (g)  he has  intimated voluntary suspension of practice
\n\t  and has  not given  intimation  of  resumption  of
\n\t  practice.”\n<\/p><\/blockquote>\n
None of\t the clauses  in Rule  3 covers a clause of the kind
\nfound in  the proviso  to Rule 3(j) of the Delhi Bar Council
\nElection Rules.\n<\/p>\n
955<\/span><\/p>\n
Rule 3\tof  Delhi  Bar\tCouncil\t Election  Rules  is  headed
\n‘Interpretation”. Clause (j) of the said Rules says:-\n<\/p>\n
\t  “”Electoral Roll”  means  and\t includes  the\troll
\n     containing the  names  of\tthe  advocates\tprepared  in
\n     accordance with  the rules\t of the Bar Council of India
\n     in Part III, Chapter I.”\n<\/p><\/blockquote>\n
The impugned  proviso added  to clause\t(j) in the year 1978
\nruns thus:-\n<\/p>\n
\t  “Provided  that   the\t Electoral  Roll  shall\t not
\n     include the  name of such advocate who fails to file in
\n     the office\t of the\t Bar Council, on or before such date
\n     (not  being  earlier  than\t 30  days  of  the  date  of
\n     notification) as  may be notified by the Bar Council in
\n     such manner as may be considered proper by it from time
\n     to time,  or within  45 days  of the  putting up of the
\n     preliminary Electoral Roll under Rule 4(1) of Chapter I
\n     of Part  III of  the Bar  Council\tof  India  Rules,  a
\n     declaration containing  the name, address and number of
\n     the advocate on the State Roll and to the effect that:-\n<\/p><\/blockquote>\n
\t  (a)  He is  an advocate  ordinarily practising  in
\n\t       the Union  Territory of\tDelhi and  that\t his
\n\t       principal place\tof practice  is within Union
\n\t       Territory of Delhi;\n<\/p><\/blockquote>\n
\t  (b)  He is not an undischarged insolvent;\n<\/p><\/blockquote>\n
\t  (c)  He has  never been convicted by any court for
\n\t       an offence involving moral turpitude;
\n\t\t\t     or
\n\t       A period\t of two\t years has elapsed since his
\n\t       release after  being convicted  of an offence
\n\t       involving moral turpitude;\n<\/p><\/blockquote>\n
\t       (In case\t of conviction\tparticulars of\tsuch
\n\t       conviction should be given)\n<\/p><\/blockquote>\n
\t  (d)  He is not in full-time service or business or
\n\t       in  any\tsuch  part-time\t business  or  other
\n\t       vocation as  is not  permitted in the case of
\n\t       practising advocates  by the rules of the Bar
\n\t       Council; and\n<\/p><\/blockquote>\n
\t  (e)  He has  not been suspended from practice; and
\n\t       on the  failure to file the declaration or on
\n\t       filing of incomplete or incorrect declaration
\n\t       in any respect, it shall be presumed that the
\n\t       name of such advocate is not to be entered on
\n\t       the Electoral  Roll in accordance with Rule 3
\n\t       of Chapter  I of\t Part III of the Bar Council
\n\t       of India Rules.”\n<\/p><\/blockquote>\n
956<\/span><\/p>\n
In these  appeals we are not concerned with the propriety or
\nlegality  of   asking  such  a\tdeclaration  from  a  person
\nbelonging to  the noble\t profession. We shall proceed on the
\nassumption that\t such an information could be asked for from
\na person  concerned whose  name is  on\tthe  State  roll  of
\nAdvocates. On the furnishing of such information the name of
\nthe  advocate\tconcerned  could  not  be  included  in\t the
\nelectoral roll\tonly if on the basis of that information one
\nor more\t clauses of Rule 3 of the Bar Council of India Rules
\nto be found in Part III, Chapter I could come into play, not
\notherwise. In  these appeals  we are  not concerned with any
\nsuch case.  The controversy here centres round the fact that
\nunder the impugned proviso mere failure to file the required
\ndeclaration disqualified  the advocate\tconcerned from being
\nput on the electoral roll thus depriving him of his right to
\nvote or\t to stand  as a candidate. The crux of the matter in
\nthese appeals  is as  to whether such a proviso was valid or
\nultra vires.\n<\/p>\n
     In order  to determine  the point at issue we shall now
\nread some  relevant provisions of the Advocates Act. Section
\n3 provides  for the  constitution of  the State Bar Council,
\nsub-s. (4) of which says:-\n<\/p>\n
\t  “(4) An advocate shall be disqualified from voting
\n     at an  election under  sub-section\t (2)  or  for  being
\n     chosen as,\t and for  being, a  member of  a State\tBar,
\n     Council, unless  he possesses  such  qualifications  or
\n     satisfies such  conditions as may be prescribed in this
\n     behalf by\tthe Bar Council of India, and subject to any
\n     such rules that may be made, an electoral roll shall be
\n     prepared and  revised from\t time to  time by each State
\n     Bar Council.”\n<\/p><\/blockquote>\n
On a  plain reading  of this sub-section it is manifest that
\nunder the Act the qualifications and conditions entitling an
\nadvocate to  vote at  an election  or for  being chosen as a
\nmember of  the State Bar Council has to be prescribed by the
\nBar Council  of India.\tThe State  Bar Council\thas no\tsuch
\npower. The  power of  the State\t Bar Council  is  merely  to
\nprepare and  revise from  time to  time the  electoral\troll
\nsubject to  the rules  made by\tthe  Bar  Council  of  India
\nconcerning the qualifications and conditions aforesaid. This
\ninterpretation of  Section  3(4)  of  the  Act\tfinds  ample
\nsupport\t from\tthe  very  special  and\t specific  provision
\ncontained in  section 49(1)(a)\tproviding  for\tthe  general
\npower of the Bar Council of India in these terms:-\n<\/p>\n
\t  “49. (1)  The Bar  Council of India may make rules
\n     for discharging  its functions  under this Act, and, in
\n     particular, such rules may prescribe-\n<\/p><\/blockquote>\n
957<\/span><\/p>\n
\t  (a)  the conditions  subject to  which an advocate
\n\t       may be entitled to vote at an election to the
\n\t       State\tBar\tCouncil\t   including\t the
\n\t       qualifications\tor    disqualifications\t  of
\n\t       voters, and  the manner in which an electoral
\n\t       roll of voters may be prepared and revised by
\n\t       a State Bar Council;”\n<\/p><\/blockquote>\n
Great reliance was placed on behalf of the appellants on the
\nconcurrent power  of the  State\t Bar  Council  and  the\t Bar
\nCouncil of  India engrafted  in section\t 15 of the Advocates
\nAct. It\t is true  that the  power to make rules conferred by
\nsection 15  is both for the Bar Council of India as also for
\nthe Bar\t Council of  a State. But no provision of section 15
\ncan override the specific provision made in section 3(4) and
\nsection 49(1)(a)  of the  Act. Sub-section (1) of section 15
\nsays-“A Bar Council may make rules to carry out the purposes
\nof this Chapter” which means Chapter II including section 3.
\nBut the\t power to  prescribe qualifications  and  conditions
\nentitling an  advocate to  vote at an election being that of
\nthe Bar Council of India section 15(1) cannot be interpreted
\nto confer  power on  the State\tBar Council  to\t make  rules
\nregarding the  qualifications and  conditions aforesaid. The
\nrelevant words\tof sub-section\t2(a) of\t section 15  are the
\nfollowing:-\n<\/p>\n
\t  “In  particular,  and\t without  prejudice  to\t the
\n     generality of  the\t foregoing  power,  such  rules\t may
\n     provide for :-\n<\/p><\/blockquote>\n
\t  (a)  ………… the\t preparation and revision of
\n\t       electoral rolls\tand the\t manner in which the
\n\t       results of election shall be published.”\n<\/p><\/blockquote>\n
The State  Bar Council\tcan frame  rules for the preparation
\nand revision of electoral rolls under section 15(2)(a). That
\nwould be  in conformity\t with the latter part of sub-section
\n(4) of\tsection 3 also. But in the garb of making a rule for
\nthe preparation\t and revision  of  the\telectoral  rolls  it
\ncannot\tprescribe   disqualifications,\t qualifications\t  or
\nconditions subject to which an advocate whose name occurs in
\nthe  State  roll  can  find  place  in\tthe  electoral\troll
\nresulting in  his deprivation  of his  right to\t vote at the
\nelection. In  the instant  case under  the impugned  proviso
\nfailure on  the part  of an  advocate to submit the required
\ndeclaration within the specified time entitles the State Bar
\nCouncil to  exclude his name from the electoral roll. Such a
\nthing was  squarely covered by the exclusive power conferred
\non the Bar Council of India under sections 3(4) and 49(1)(a)
\nof the\tAdvocates Act.\tThe State  Bar Council\thad no\tsuch
\npower.\n<\/p>\n
958<\/span><\/p>\n
Sub-s. (3) of section 15 says:-\n<\/p>\n
\t  “No rules  made under\t this section by a State Bar
\n     Council  shall   have  effect  unless  they  have\tbeen
\n     approved by the Bar Council of India.”\n<\/p><\/blockquote>\n
Introduction of\t the impugned  proviso in  Rule 3(j)  of the
\nDelhi Bar  Council Election Rules was approved by Resolution
\nNo. 18\tof 1978 passed by the Bar Council of India. Any rule
\nmade by\t the State  Bar Council cannot have effect unless it
\nis approved by the Bar Council of India. But the approval of
\nthe Bar Council of India can make the rule made by the State
\nBar Council  valid and\teffective only\tif the\trule made is
\nwithin the  competence of  the State  Bar Council, otherwise
\nnot. Mere  approval by\tthe Bar\t Council of  India to a rule
\nultra vires  the State\tBar Council  cannot  make  the\trule
\nvalid. Nor  has it  the effect\tof a  rule made\t by the\t Bar
\nCouncil of  India. Making a rule by the Bar Council of India
\nand giving  approval to a rule made by the State Bar Council
\nare two\t distinct and  different things. One cannot take the
\nplace of the other.\n<\/p>\n
     We, therefore,  hold that\tthe impugned proviso to Rule
\n3(j) of\t the Delhi Bar Council Election Rules is ultra vires
\nand invalid and the electoral roll prepared by the Delhi Bar
\nCouncil on  the basis of the same resulting in the exclusion
\nof the names of about 2,000 advocates from the said roll was
\nnot valid  in law.  We are  further of\tthe opinion that the
\nwhole election\twas invalid  on that account and it could be
\nchallenged as  such in a writ petition. It was not a case of
\nchallenging the\t preparation of\t the electoral\troll on\t the
\nfactual basis  of wrong\t exclusion of  a few  names. For the
\nsaid purpose  Rule 4  occurring in  Chapter  I\tof  the\t Bar
\nCouncil of  India Rules\t could come  into  play.  But  here,
\nbecause\t of   the  invalidity\tof  the\t Rules\titself,\t the
\npreparation of\tthe electoral roll was completely vitiated-a
\nmatter which  cannot be\t put within  the narrow limit of the
\nsaid rule.\n<\/p>\n
     The illegal  preparation of  the electoral\t roll by the
\nDelhi Bar  Council on  the basis  of the  invalid proviso to
\nRule 3(j)  goes to  the very  root  of\tthe  matter  and  no
\nelection held  on the  basis of\t such an  infirmity  can  be
\nupheld. There  is no question of the result being materially
\naffected in such a case.\n<\/p>\n
     The contesting  respondents could\tnot be\tdefeated  in
\ntheir writ  petitions on  the  ground  of  estoppel  or\t the
\nprinciple that\tone cannot  approbate and  reprobate or that
\nthey were  guilty of  laches. In  the first instance some of
\nthe contesting\trespondents were  merely voters.  Even\tShri
\nSurjeet Singh  in his  writ petition  claimed to  be both  a
\ncandidate and  a voter.\t As a  voter he\t could challenge the
\nelection even
\n959<\/span>
\nassuming that as a candidate after being unsuccessful he was
\nestopped from  doing so.  But to  be precise,  we are of the
\nopinion that  merely because he took part in the election by
\nstanding as  a candidate  or by\t exercise of  his  right  of
\nfranchise he  cannot be\t estopped from challenging the whole
\nelection when the election was glaringly illegal and void on
\nthe basis  of the obnoxious proviso. There is no question of
\napprobation and reprobation at the same time in such a case.
\nA voter could come to the High Court even earlier before the
\nelection was  held. But\t merely because he came to challenge
\nthe election after it was held it cannot be said that he was
\nguilty of  any laches  and must\t be non-suited\tonly on that
\naccount.\n<\/p>\n
     There is  no substance  in the  last submission made on
\nbehalf of  the appellants.  The manner of resolving disputes
\nas to the validity of election is provided for in Rule 34 of
\nthe Delhi  Bar\tCouncil\t Election  Rules.  This\t is  not  an
\nappropriate and\t adequate alternative  remedy to  defeat the
\nwrit petitioner\t on that account. Firstly, no clause of Rule
\n34 covers  the challenging  of the election on the ground it
\nhas been  done in this case. Secondly, the Election Tribunal
\nwill not  be competent\tto  declare  any  provision  of\t the
\nElection Rules\tultra vires  and invalid.  Our attention was
\nspecifically drawn to clause (8) of Rule 34 which says:-\n<\/p>\n
\t  “No petition\tshall lie  on the  ground  that\t any
\n     nomination paper  was wrongly  rejected or\t the name of
\n     any voter\twas wrongly  included in or omitted from the
\n     electoral roll  or any  error or  irregularity which is
\n     not of a substantial character.”\n<\/p><\/blockquote>\n
As we  have said  above, it  is not a case where the name of
\nany voter was wrongly omitted from the electoral roll but it
\nis a  case where the preparation of the whole electoral roll
\nwas null  and void because of the invalidity of the impugned
\nproviso.\n<\/p>\n
     We now  proceed to\t refer to some relevant decisions of
\nthe High  Courts and  of this  Court cited  at\tthe  Bar  in
\nsupport of some of the points discussed above.\n<\/p>\n
     Mudholkar J.,  delivering the  leading and the majority
\njudgment of  a Full Bench of the Nagpur High Court in Kanglu
\nBaula Kotwal  & another\t v. Chief  Executive Officer, Janpad
\nSabha, Durg  and others,  rejected the\tplea of\t estoppel to
\nchallenge the election at page 58, para 25 in these terms:-\n<\/p>\n
\t  “As  regards\t the  petitioners   who\t were\talso
\n     candidates at  the elections  but\twere  defeated,\t the
\n     learned counsel said that
\n960<\/span>
\n     those who\ttook their  chances  at\t the  elections\t and
\n     failed should not now be allowed to challenge elections
\n     of their  opponents on  the ground\t that the  electoral
\n     rolls were\t defective. The\t plea is in substance one of
\n     estoppel. There  can be  no question  of any  estoppel,
\n     because it\t cannot be  said that  the position  of\t the
\n     other  side  has  in  any\tway  altered  by  reason  of
\n     something done or not done by the petitioners.”\n<\/p><\/blockquote>\n
We are\tof the\tview that  neither the principle of estoppel
\nnor the\t principle of  approbation and\treprobation  can  be
\npressed into services in this case.\n<\/p>\n
     In Chief  Commissioner, Ajmer  v. Radhey Shyam Dani the<\/a>
\nrespondent  before  the\t Supreme  Court\t had  filed  a\twrit
\npetition  in  the  Court  of  Chief  Commissioner  of  Ajmer
\nchallenging the\t validity of  the notification directing the
\nholding of  the election  of the  Ajmer Municipality and the
\nelectoral roll.\t This challenge was made before the election
\nwas held.  Since the electoral roll prepared was found to be
\ninvalid as  it was  prepared in accordance with some invalid
\nrules,\ta  Constitution\t Bench\tof  this  Court\t upheld\t the
\ndecision of the Chief Commissioner. At page 75, Bhagwati J.,
\nspeaking for the Court said:-\n<\/p>\n
\t  “It is  of the  essence of  these  elections\tthat
\n     proper electoral  rolls should  be\t maintained  and  in
\n     order that a proper electoral roll should be maintained
\n     it is  necessary that  after  the\tpreparation  of\t the
\n     electoral roll  opportunity  should  be  given  to\t the
\n     parties concerned\tto scrutinize  whether\tthe  persons
\n     enrolled\tas    electors\t possessed   the   requisite
\n     qualifications. Opportunity  should also  be given\t for
\n     the  revision   of\t the  electoral\t roll  and  for\t the
\n     adjudication of  claims  to  be  enrolled\ttherein\t and
\n     entertaining objections to such Enrollment. Unless this
\n     is\t done,\t the  entire   obligation  cast\t  upon\t the
\n     authorities holding the elections is not discharged and
\n     the elections  held on  such imperfect  electoral rolls
\n     would acquire  no validity\t and would  be liable  to be
\n     challenged at the instance of the parties concerned. It
\n     was in  our opinion, therefore, necessary for the Chief
\n     Commissioner to  frame rules  in this behalf, and in so
\n     far as  the rules\twhich were thus framed omitted these
\n     provisions they were defective.”\n<\/p><\/blockquote>\n
Finally at pages 76 and 77 it was said:-\n<\/p>\n
\t  “If Rules  7 and 9 above referred to were intended
\n     to form  a complete  code for  the finalisation  of the
\n     electoral roll
\n961<\/span>
\n     of the  Municipality they\tdid not\t serve the  intended
\n     purpose  and   were  either   inconsistent\t  with\t the
\n     provisions of  s. 30,  sub-s. (2), of the Regulation or
\n     were defective  in so far as they failed to provide the
\n     proper procedure  for taking  of the  steps hereinabove
\n     indicated for  finalising the  electoral  roll  of\t the
\n     Municipality.  If\t that  was  the\t true  position\t the
\n     electoral roll  of\t the  Municipality  which  has\tbeen
\n     authenticated and\tpublished by  the Chief Commissioner
\n     on August\t8, 1955\t was certainly not an electoral roll
\n     prepared in  accordance with  law on the basis of which
\n     the elections and poll to the Ajmer Municipal Committee
\n     could be  held either  on September  9, 1955, or at any
\n     time thereafter.”\n<\/p><\/blockquote>\n
In the\tinstant case  the electoral roll was prepared on the
\nbasis of  a rule  which has  been found to be void and ultra
\nvires. That being so, even though the contesting respondents
\ncame to challenge the election after it was held, they could
\ndo so because of the gravity of the infraction of the law in
\nthe preparation\t of the\t electoral roll. Dani’s case (supra)
\nwas followed  by the  Patna High  Court in two decisions. In
\nParmeshwar Mahaseth  and others v. State of Bihar and others
\nand Umakant  Singh and others v. Binda Choudhary and others.
\nAfter quoting  a  passage  at  page  153  from\tDani’s\tcase
\nKanhaiya Singh J., said in Parmeshwar Mahaseth’s case at the
\nsame page in paragraph 14 thus:-\n<\/p>\n
\t  “It was  urged by  the learned Government Advocate
\n     that the  election cannot\tbe  disputed  except  by  an
\n     election petition,\t as  laid  down\t in  R.\t 62  of\t the
\n     Election Rules.  He submitted  that petitioner  9,\t had
\n     already  filed   an   election   petition\t after\t the
\n     presentation of  this writ application. This contention
\n     is not  valid. What  is  challenged  here\tis  not\t the
\n     election of a particular candidate, but the validity of
\n     the entire\t election, because  of the  violation of the
\n     essential provisions of the Election Rules and the Act.
\n     I think,  R. 62  provides for  a case  where  a  person
\n     challenges the  election of  a particular\tcandidate. I
\n     would overrule the objection.”<\/p><\/blockquote>\n
     In Umakant’s  case the  Court quoted  the passage\tfrom
\nDani’s case  from page 461 and finally expressed the view in
\nparagraph 12 at page 462 in these terms:-\n<\/p>\n
\t  “Mr. Shankar Kumar appearing for respondents 6 and
\n     7 submitted  that\tthe  election  ought  to  have\tbeen
\n     challenged
\n962<\/span>
\n     by following  the machinery provided in rule 148 of the
\n     rules, and\t this Court,  in exercise of its power under
\n     Article 226  of the  Constitution, should not interfere
\n     with the election when a special machinery was provided
\n     for  challenging\tit.  I\tam  unable  to\taccept\tthis
\n     argument. It is the well settled view of the Court that
\n     if the  entire election  is challenged  as having\tbeen
\n     held  under  statutes  or\tstatutory  rules  which\t are
\n     invalid or\t by committing\tillegalities which  make the
\n     entire election  void, it\tcan be quashed by grant of a
\n     writ in the nature of certiorari.”<\/p><\/blockquote>\n
     A Full  Bench of  the Punjab  High Court in Dev Prakash
\nBalmukand v.  Babu Ram\tRewti Mal and others had occasion to
\nconsider this  question and  in that  connection at page 434
\nDulat J., said in paragraph 15:-\n<\/p>\n
\t  “Everybody, of  course, agrees  that, if  the very
\n     foundation of  the election, namely, the electoral roll
\n     is illegal,  no election on its basis can proceed or be
\n     allowed to\t stand, but that does not mean that any kind
\n     of defect in the roll, however technical in its nature,
\n     will suffice to reach such a conclusion.”<\/p><\/blockquote>\n
     It would  thus be\tseen that it depends upon the nature
\nand the\t intensity of the error committed in the preparation
\nof the\telectoral roll\tand its effect on the whole election
\nfor deciding  the question  as to  whether a  writ  petition
\nwould be  maintainable or  not. In  Ramgulam  Shri  Baijnath
\nPrasad v.  The Collector,  District Guna  and others Oza J.,
\ndelivering the judgment of the Division Bench stated in para
\n17 at page 152 thus:-\n<\/p>\n
\t  “It was  also contended  that the petition was not
\n     filed  immediately,   but\thas  been  filed  after\t the
\n     elections\twere   over.  As  regards  the\tquestion  of
\n     estoppel we  had already  considered it  and found that
\n     the petition  under Art.  226 cannot be disposed on the
\n     question  of   estoppel.  As   regards  delay,   it  is
\n     sufficient to  state that it could not be said that the
\n     petition was  unduly delayed. Apart from it, it is also
\n     clear that an election held on the basis of rolls which
\n     have not  been prepared  in accordance  with  law,\t the
\n     petition cannot  be dismissed  merely on  the ground of
\n     delay.”<\/p><\/blockquote>\n
963<\/span><\/p>\n
     The Madhya\t Pradesh High Court has taken a similar view
\nin the\tcase of\t Bhupendra Kumar Jain v. Y. S. Dharmadhikari
\nand others  wherein it\twas held  that the  entire  election
\ncould be  challenged  on  the  basis  of  certain  types  of
\nillegalities committed in holding it.\n<\/p>\n
     Shri Bhoop\t Singh, an  Advocate and a member of the Bar
\nAssociation at Chandigarh was a candidate to the Bar Council
\nof Punjab  & Haryana. After being unsuccessful he challenged
\nthe election  by filing\t a writ\t petition in the High Court.
\nThe full  Bench of  the Punjab & Haryana High Court in Bhoop
\nSingh v.  Bar Council  of Punjab  and  Haryana\tthrough\t its
\nSecretary and  others dismissed\t the writ  petition  on\t the
\nparticular facts  of that  case. Yet  the view\texpressed at
\npage 43 in para 9 was:-\n<\/p>\n
\t  “I am extremely doubtful whether the nature of the
\n     relief which  the petitioner  claims here,\t namely\t the
\n     setting aside  of the  whole of  the election  and\t the
\n     ordering of  a repoll  could be  claimed by  way of  an
\n     election petition under rule 34(1). No provision in the
\n     said rule\twas brought  to our  notice which in express
\n     terms empowers  or warrants  the setting  aside of\t the
\n     whole of  the election  (in  contradistinction  to\t the
\n     election of  individual  candidates)  or  to  direct  a
\n     repoll. In\t any  case  it\tis  well  settled  that\t the
\n     existence of  an alternative  remedy is not an absolute
\n     legal bar to the issuance of a writ”.<\/p><\/blockquote>\n
     Reliance  was   placed  for  the  appellants  upon\t the
\ndecision  of  this  Court  in  K.  K.  Shrivastava  etc.  v.
\nBhupendra Kumar\t Jain and  others that because of rule 34(8)
\nof the\tDelhi Bar  Council Election Rules the writ petitions
\nought to  have been held to be not maintainable. It would be
\nnoticed from  the  facts  of  that  case  that\tan  election
\npetition had  already been  filed. About four months later a
\nwrit petition  was also\t filed to challenge the election. At
\npage 1704,  column 1 Krishna Iyer J., speaking for the Court
\nsaid:-\n<\/p>\n
\t  “One of  them which  is relevant  for the  present
\n     case is  that where  there is an appropriate or equally
\n     efficacious remedy the Court should keep its hands off.
\n     This is  more particularly so where the dispute relates
\n     to\t an  election.\tStill  more  so\t where\tthere  is  a
\n     statutorily prescribed  remedy which  almost  reads  in
\n     mandatory terms”.\n<\/p><\/blockquote>\n
964<\/span><\/p>\n
     But he added:-\n<\/p><\/blockquote>\n
\t  “While we  need not  in this case go to the extent
\n     of\t stating   that\t if   there   are   exceptional\t  or
\n     extraordinary  circumstances  the\tCourt  should  still
\n     refuse to entertain a writ petition.”<\/p><\/blockquote>\n
     Finally the  view expressed in K. K. Shrivastava’s case
\nis:-\n<\/p>\n
\t  “There is no foundation whatever for thinking that
\n     where the challenge is to an “entire election” then the
\n     writ jurisdiction\tsprings into  action. On  the  other
\n     hand the  circumstances of\t this case  convince us that
\n     exercise of  the power  under Art. 226 may be described
\n     as mis-exercise.”<\/p><\/blockquote>\n
     We may  add that the view expressed by some of the High
\nCourts in  the cases  referred to  above that merely because
\nthe whole  election has\t been challenged by a writ petition,
\nthe petition  would be\tmaintainable in spite of there being
\nan alternative\tremedy being  available, so  widely put, may
\nnot  be\t quite\tcorrect\t and  especially  after\t the  recent
\namendment  of\tArt.  226   of\tthe   Constitution.  If\t the
\nalternative  remedy   fully  covers  the  challenge  to\t the
\nelection then  that remedy  and that  remedy alone  must  be
\nresorted to  even though  it involves  the challenge  of the
\nelection of all the successful candidates. But if the nature
\nand the\t ground of  the challenge  of the whole election are
\nsuch that  the alternative remedy is no remedy in the eye of
\nlaw to cover the challenge or, in any event, is not adequate
\nand efficacious\t remedy then  the remedy of writ petition to
\nchallenge the  whole election  is still\t available.  In\t the
\npresent case  we have  pointed out  above that\tthe Election
\nTribunal would\thave found itself incompetent to declare the
\nproviso to Rule 3(j) of the Delhi Bar Council Election Rules
\nultra  vires  and  that\t being\tso  the\t alternative  remedy
\nprovided in Rule 34(8) was no remedy at all.\n<\/p>\n
     Appellants heavily\t relied upon  an unreported decision
\nof the\tCalcutta High  Court in\t Suryya Kumar Ray v. The Bar
\nCouncil of India & Ors. The challenge to the election to the
\nBar Council  of West  Bengal was almost on grounds which are
\nsimilar to  those in  the present  case. The  Calcutta\tHigh
\nCourt upheld  the validity of the Rule and the election held
\non the\tbasis of  electoral roll prepared in accordance with
\nthat Rule  and dissented  from the  view of the Gujarat High
\nCourt in Harish Sambhu Prasad v. Bar Council of Gujarat.\n<\/p>\n
965<\/span><\/p>\n
The learned Judge said with reference to the decision of the
\nGujarat High Court thus:-\n<\/p>\n
\t  “It appears  to me  that this decision will not be
\n     of much  assistance to  the petitioner  in the  instant
\n     case in as much as the electoral rules which are before
\n     me have  duly been approved by the Bar Council of India
\n     itself. Such  approval confers  upon  these  rules\t the
\n     authority and  sanction of the Bar Council of India and
\n     may be deemed to be the rules framed by the Bar Council
\n     of India.”<\/p><\/blockquote>\n
     The enunciation  of the  law  as  made  above,  in\t our
\nopinion, is not correct. We have held to the contrary.\n<\/p>\n
     For the  reasons  stated  above,  we  dismiss  all\t the
\nappeals but make no order as to costs in any of them.\n<\/p>\n
S.R.\t\t\t\t\t  Appeals dismissed.\n966<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bar Council Of Delhi And Anr. Etc vs Surjeet Singh And Ors. Etc. Etc on 1 May, 1980 Equivalent citations: 1980 AIR 1612, 1980 SCR (3) 946 Author: N Untwalia Bench: Untwalia, N.L. PETITIONER: BAR COUNCIL OF DELHI AND ANR. ETC. Vs. RESPONDENT: SURJEET SINGH AND ORS. ETC. ETC. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-204184","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBar Council Of Delhi And Anr. Etc vs Surjeet Singh And Ors. Etc. 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