HIGH COURT OF KERALA
Hon'ble Mr. Justice V. Chitambaresh W.P.(C) No. 19823 of 2011 Dated this the 9th Day of January, 2012 For the Petitioner:
For the Respondents:
Head Note:- Statute Law - If a statute is passes for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out. Bar Council of Kerala Rules, 1979 - Rule 34(5) - Advocates Act, 1971 - Sections 7, 48B - Bar Council of India has power to nominate a member to the election tribunal appointed by the Bar Council of Kerala. Facts of the Case:- The petitioner is a returned candidate to the Bar Council of Kerala whose election has been challenged by the additional fifth respondent in an election petition before the election petition before the election Tribunal. The election tribunal comprises of the three advocates whose names are on the State Roll and who are having not less than ten years standing as per Rule 34(4) of the Rules. One of the members of the election tribunal on being appointed as the Advocate General of the State became an ex-officio member of the Bar Council of Kerala and hence submitted his resignation. Another person had necessarily to be nominated to the election tribunal to facilitate the disposal of the election petition pending on its file. The Bar Council of Kerala therefore sought clarification from the Bar Council of India as regards nomination of a member to the election tribunal. Ext.P1 is the letter addressed by the Secretary of the Bar Council of Kerala to the Secretary of the Bar Council of India. The Bar council of India by Ext.P2 letter nominated the fourth respondent to the election tribunal in the place of the member who had demitted office. This is challenged by the petitioner contending inter alia that only the Bar Council of Kerala can nominate a person to the election tribunal. Dismissing the Petition the Court Held: The Act clothes the Bar Council of India with the jurisdiction to exercise general supervision and control over the State Bar Council or any committee thereof. Therefore, the Bar Council of India had acted well within its powers in nominating the fourth respondent to the election tribunal and the same cannot be faulted with. There is yet another facet of the case which justifies the action of the Bar Council of India to so nominate a member to the election tribunal. All the present members of the Bar Council of Kerala have been arrayed as respondents to the election petition as warranted by Rule 34(3) of the Rules. The election tribunal has been appointed by the erstwhile Bar Council of Kerala even before the election as envisaged under rule 34(5) of the Rules. The present members of the Bar council of Kerala are thus parties to the lis and have interest in the subject matter. A nomination of a member to the election tribunal by them would be virtually choosing a judge to adjudicate their cause which is forbidden in law. J U D G M E N T 1. Has the Bar Council of India the power to nominate a member to the election tribunal appointed by the Bar Council of Kerala under Rule 34(5) of the Bar Council of Kerala Rules, 1979 (hereinafter referred to as ‘the Rules’ only for short) is the short question that arises for consideration in this writ petition. 2. The petitioner is a returned candidate to the Bar Council of Kerala whose election has been challenged by the additional fifth respondent in an election petition before the election petition before the election Tribunal. The election tribunal comprises of the three advocates whose names are on the State Roll and who are having not less than ten years standing as per Rule 34(4) of the Rules. One of the members of the election tribunal on being appointed as the Advocate General of the State became an ex-officio member of the Bar Council of Kerala and hence submitted his resignation. Another person had necessarily to be nominated to the election tribunal to facilitate the disposal of the election petition pending on its file. The Bar Council of Kerala therefore sought clarification from the Bar Council of India as regards nomination of a member to the election tribunal. Ext.P1 is the letter addressed by the Secretary of the Bar Council of Kerala to the Secretary of the Bar Council of India. 3. The Bar council of India by Ext.P2 letter nominated the fourth respondent to the election tribunal in the place of the member who had demitted office. This is challenged by the petitioner contending inter alia that only the Bar Council of Kerala can nominate a person to the election tribunal. Reliance is placed on Rule 34(5) of the Rules and also the general principles to be followed by the State Bar Councils under Part IX of the Bar Council of India Rules. Rule 34(5) of the Rules states that the election tribunal shall be ‘appointed’ by the Bar Council of Kerala and that the Secretary of the Council shall act as its Registrar. Rule 5 of Part IX of the Bar Council of India Rules stipulates that all election disputes shall be decided by tribunals ‘constituted’ by the State Councils. 4. The Bar Council of India has filed a counter affidavit explaining the circumstances under which the fourth respondent was so nominated to the election tribunal. Reliance is placed on Section 7 of the Advocates Act, 1971 (hereinafter referred to as ‘the Act’ only for short) to justify its action. My attention was also drawn to Section 48 B of the Act to contend that the Bar Council of India has powers of general supervision and control over the State Bar Council or any committee thereof. The additional fifth respondent has also filed a counter affidavit referring to the Rules framed in Uttar Pradesh and Chattisgarh as regards election to its State Bar Councils. I must immediately take note that there is no allegation of malafides in the writ petition against the fourth respondent who has been nominated to the election tribunal. 5. I have heard counsel appearing for all parties including Mr.P.Viswanathan on behalf of the petitioner and Senior Counsel Mr.P.B.Suresh Kumar on behalf of the Bar Council of India. 6. I shall quote the relevant provisions of Section 7 of the Act as follows:- “7. Functions of Bar Council of India – (1) The functions of the Bar Council of India shall be – (a) …….. (b) …….. (c) ……. (d) ……. (e) ……… (f) to deal with and disposed of any matter arising under this Act, which may be referred to it by a State Bar Council; (g) To exercise general supervision and control over State Bar Councils; (h) ……. (i) …….. (j) ……. (k) ……… (l) …….. (m) to do all other things necessary for discharging the aforesaid functions.” These provisions coupled with Section 48B of the Act clothes the Bar Council of India with the jurisdiction to exercise general supervision and control over the State Bar Council or any committee thereof. Therefore, the Bar Council of India had acted well within its powers in nominating the fourth respondent to the election tribunal and the same cannot be faulted with. 7. There is yet another facet of the case which justifies the action of the Bar Council of India to so nominate a member to the election tribunal. All the present members of the Bar Council of Kerala have been arrayed as respondents to the election petition as warranted by Rule 34(3) of the Rules. The election tribunal has been appointed by the erstwhile Bar Council of Kerala even before the election as envisaged under rule 34(5) of the Rules. The present members of the Bar council of Kerala are thus parties to the lis and have interest in the subject matter. A nomination of a member to the election tribunal by them would be virtually choosing a judge to adjudicate their cause which is forbidden in law. 8. The petitioner lastly contended that no rules have been framed under Section 49 of the Act to deals with similar contingencies and hence the nomination is illegal. An answer to the question posed can be found in Craies on Statute Law (seventh edition) which is extracted below:- “If a statute is passes for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out.” 9. The writ petition fails and is dismissed without costs. |
