Secretary, Bar Council of Tamilnadu vs G. Panneerselvam

Ratnam, J.—This civil revision petition has been preferred by the Secretary, Bar Council of Tamil Nadu, against the order of the Second

Assistant Judge, City Civil Court, Madras, recording a finding on issue No. 1 in the suit O.S.No. 9922 of 1988 instituted by the respondent herein,

praying for a declaration that the election held on 22.9.1988 to the Bar Council of Tamilnadu, is null and void, renest and inoperative and

consequently, restraining the petitioner from giving effect to the results of the said election by publication of the same in the official Gazette of the

Government of Tamilnadu, under Sub-rules (1) and (2) of Rule 34 of the Election Rules of the Bar Council of Tamil Nadu, after overruling the

objection raised by the petitioner that the jurisdiction of the Court to entertain the suit, is barred.

The respondent is an Advocate borne on the rolls of the Bar Council of Tamilnadu and a voter as well, in the election held on 22.9.1988.

According to the averments in the plaint filed by the respondent, the election was not conducted in accordance with the provisions of the

Advocates Act, 1961, and the Rules of the Bar Council of Tamilnadu and the conduct of the election and the publication of the results are invalid

and consequently, the members elected on what is styled as an illegal action, cannot function as the Bar Council of Tamil Nadu. In the plaint, the

respondent has catalogued the several irregularities, which, according to him, would vitiate the entire election and they are (1) violation of Rule 4(2)

of the Rules framed by the Bar Council of India for the preparation of the Electoral Rolls; (2) exclusion of a large number of eligible voters from the

Electoral Roll; (3) inclusion of nearly 700 voters in the Electoral Roll without adhering to the procedure prescribed therefor; (4) violation of the

secrecy of voting in the elections on the ground of lack of privacy while marking on the ballot papers, presence of candidates and several other

persons at the place of voting, snatching away of the ballot papers from the hands of the voters, appointment of the office-bearers of the local

Associations, resulting in a compulsion for giving the first vote to a local candidate, impersonation and rigging; (5) invalidity of the requirement

regarding the payment of a non-refundable fee of Rs. 1,000 for contesting the elections; (6) throwing of parties to the electors at some of the Clubs

with liquor flowing freely; (7) open canvassing by some District Judges, orally and by written communications, (8) advertisements inserted by

candidates seeking votes; (9) defective ballot boxes, as a result of the use of kerosene tins; and (10) irregularities in the counting of the votes, by

not following the prescribed procedure. On the basis of the aforesaid irregularities stated to have been committed, the respondent had prayed for

the reliefs referred to already.

Amongst others, the petitioner raised an objection that under Rules 35 to 37 of the Election Rules, framed by the Bar Council of Tamilnadu, the

jurisdiction of the Civil Court is ousted. Issue No. 1 was framed in that regard and the court below on a consideration of the aforesaid rules, found

that those rules do not either expressly or by implication oust the jurisdiction of the Civil Court and that those rules applied only to cases, in which

the election of a candidate &s a member of the Bar Council, is challenged on certain specified grounds set out in the Rules and not to a case,

where numerous general irregularities of the nature alleged in this case, have been put forward, as vitiating the validity of the entire election. It is the

correctness of this order that is questioned in this Civil Revision Petition.

Learned Counsel for the petitioner, inviting attention to Rules 35,36 and 37 of the Election Rules framed by the Bar Council of Tamilnadu

contended that those rules constituted a complete machinery for questioning the validity of an election to the Bar Council of Tamilnadu and a

special machinery has also been constituted thereunder, thereby ousting the jurisdiction of the Civil Court. On the other hand, the respondent, who

appeared in person, submitted that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but such exclusion should be

explicitly stated or clearly implied and Rules 35 to 37 of the Rules framed by the Bar Council of Tamilnadu, do not provide for such exclusion, but

provide only for challenging the election of a candidate at the instance of a voter on the grounds specified therein and therefore, the jurisdiction of

the Civil Court is not ousted. Reference was also made in this connection by the respondent to the decisions reported in Bar CouncilofWest

Bengal v. Miss.Ajanta Aughstin AIR 1979 Cat 35 and Bar Council of Delhi and Others Vs. Surjeet Singh and Others, .

In order to appreciate the contentions thus raised, it would be necessary to refer to Rules 35 to 37 of the Election Rules framed by the Bar

Council of Tamilnadu. They run as follows:

(1) Any voter may contest the validity of the election of a candidate declared to have been elected to the Council by a petition signed by him

and supported by an affidavit and delivered to the Secretary personally or sent by registered post to the Secretary within 15 days from the date of

publication of the results in the official Gazette.

(2) Such petition shall be accompanied by a fee ofRs.250 by way of demand draft on the State Bank of India, Madras, in favour of the Secretary,

Bar Council of Tamilnadu and it is not refundable.

(3) No election shall be called in question except on one or more of the following grounds:

(a) fraud, coercion or undue influence and any form of corruption in the conduct of the election.

(b) violation of the provisions of the Act or rules or commission of an election offence or irregularity materially affect the result of the Election.

(4) Such petition shall include as respondents thecontesting candidates with their addresses. The affidavit and petition shall be accompanied by as

many copies thereof as there are respondents.

(36)(1) All disputes under the above rule shall be decided by Election Tribunal consisting of three Advocates of more than 10 years standing on

the Roll of this Bar Council appointed by the Bar Council on or before the date on which the election is fixed. The Secretary of the Bar Council

shall act as the Registrar of the Tribunal. Senior among the three shall be Chairman of the Tribunal.

(2) Where there is or are one or more vacancies in the Tribunal by reason of death, resignation or any cause whatsoever the same shall be filled up

by the Bar Council of India from amongst Advocates on the roll of the State Bar Council concerned.

(37)The Election Tribunal shall have all or any of the following Powers:

(i) to dismiss a petition;

(ii) to order recount;

(iii) to declare any candidate to have been duly elected on a recount;

(iv) to set aside the election of the candidate who either by himself or through any other person acting with his consent, is guilty of corrupt

practices. The following shall be deemed to be corrupt practices for the purposes of this Act.

(1) ''Bribery'' that is to say-

(A) Any gift, offer or promise of any gratification to any person whomsoever, with the object, directly or indirectly or inducing -

(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or

(b) An elector to vote or refrain from voting at an election, or as a reward to,

(i) a person for having withdrawn or not having withdrawn his candidature; or

(ii) an elector having voted or refrained from voting.

(B) The receipt of, or agreement to receive, any gratification whether as a motive or as reward.

(a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being a candidate; or

(b) by a person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to

vote or refrain from voting or any candidate to withdraw or not to withdraw his candidature. For the purpose of this clause, the term ''gratification''

is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of

employment for reward.

(2) Undue influence, that is to say any direct or indirect interferences or attempt to interfere with the free exercise of any electoral right including the

issuing or sending of any appeal or manifesto for votes whether direct or indirect.

Provided that a mere intimation of a candidature with a bare request for a vote shall not amount to undue influence.

And provided further that a candidate or his agent may also orally ask for votes from voters, but on the date of election such request shall not be

made within a radius of 200 yards from the Polling Station. And a candidate may issue a written intimation to his voters announcing his candidature

and seeking their votes or their first preference votes, which intimation shall not contain any other publicity or his eulogy. Such written intimation

shall also not amount to undue influence.

Attempt to secure from any voter his ballot paper with intent to prevent him from transmitting it directly or with intent to ensure that the vote has

been cast or is to be cast for a particular candidate shall be deemed to interfere with the free exercise of the electoral right of the said voter.

(3) The hiring or procuring, whether on payment or otherwise of any vehicle or vessel or the use of such vehicle or vessel for the free conveyance

of any elector to or from any polling station.

Explanation: The vacancy arising under sub-rule

(iv) shall be filled up as a casual vacancy,

(v) in other cases to declare a vacancy to be filled up as a casual vacancy,

(vi) to make an order as to costs.

Even as the opening words of Rule 35(1) indicate, a voter is enabled to contest the validity of the election of a candidate declared to have been

elected, by means of a petition and the grounds on which such an election can be called in question, have also been set out in Rule 35(3). It is thus

seen that Rule 35 is confined in its application to questioning the validity of the election of a candidate on the grounds mentioned under Rule 35(3)

and cannot have any application in a case like this, where, the whole election of all the members to the Bar Council of Tamil Nadu is challenged on

the ground of several irregularities, referred to earlier. Under Rule 36, an election Tribunal is constituted for the purpose of deciding all disputes

under Rule 35 and necessarily, therefore, the constitution of an Election Tribunal for the purpose of discharging its duties as such, is confined only

to cases falling under Rule 35 and not any other. Rule 37, after enumerating the powers of the Tribunal to dismiss an election petition or to order

recount to declare any candidate to have been duly elected on recount or even to set aside the election of a candidate, who either by himself or

through any other person acting with his consent, is guilty of corrupt practices, proceeds to lay down the corrupt practices for purposes of the

election petition. Again, the powers of the Election Tribunal under Rule 37 have been enumerated with reference to an election petition filed under

Rule 35, which, as pointed out earlier, is confined to the questioning of the validity of the election of a candidate, who is declared to have been

elected, by means of a petition. Thus, the reliance placed by learned Counsel for the petitioner on Rule 35 to 37 of the Election Rules framed by

the Bar Council of Tamilnadu, do not in any manner assist in holding that the jurisdiction of the Civil Court in a case like this, where numerous

irregularities have been alleged against the validity of the election as a whole, is ousted. Indeed, learned Counsel for the petitioner did not also draw

the attention of the Court to any rule to the effect that in all matters relating to the election of members to the Bar Council, inclusive of the invalidity

of the election as a whole, resort should be had only to the Election Tribunal and not to the Civil Court. No rule in the Election Rules framed by the

Bar Council of Tamilnadu, provides for the ouster of the jurisdiction of the Civil Court, in a case like this. It is, in this connection, that the decisions

relied on by the respondent are relevant.

In Bar Council of West Bengal and Others Vs. Miss Ajanta Aughstin, , the election to the Bar Council was challenged on the ground of

irregularities in the preparation of the electoral roll and the electoral roll was also characterised as an illegal one and on that footing relief was

sought for in a suit. An objection was raised by Bar Council of West Bengal, relying upon Rule 34(4) of the West Bengal Bar Council Rules which

provided for the constitution of an Election Tribunal to decide all disputes relating to art election, that the jurisdiction of the Civil Court was ousted.

Rule 34 of the West Bengal Bar Council Rules is couched in language, which is almost identical to Rules 35 to 37 of the Election Rules framed by

the Bar Council of Tamilnadu. In overruling the objection raised regarding the ouster of the jurisdiction of the Civil Court, it was pointed out that it

is settled law that exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but such exclusion must either be clearly expressed or

implied and Rule 34 ''of the West Bengal Bar Council Rules did not contain any provision expressly excluding the jurisdiction of the Civil Courts

and it did not also provide for such exclusion either expressly or by necessary implication, except that the Civil Court is, by necessary implication,

debarred from enquiring into a challenge to the election of a candidate, at the instance of a voter on the two grounds, on which such an election

could be challenged before the Election Tribunal. It was also further pointed out that there was no implied exclusion of the jurisdiction of the Civil

Court to adjudicate upon the validity of an election to the West Bengal Bar Council. In Bar Council of Delhi and Others Vs. Surjeet Singh and

Others, , the Supreme Court was dealing with a case, where the relief prayed for was the setting aside of the election to the Bar Council of Delhi,

on the basis of the invalidity of certain rules framed for preparation of the Electoral Rolls. It was, in that context, the Supreme Court referred, with

approval, to the following passage in Parmeshwar Mahaseth and Others Vs. State of Bihar and Others, .

It was urged by the learned Government Advocate that the election cannot be disputed except by an election petition, as laid down in Rule 62 of

the Election Rules. He submitted that petitioner had already filed an election petition after the presentation of this writ application. The contention is

not valid. What is challenged here is not the election of a particular candidate, but the validity of the entire election, because of the violation of the

essential provisions of the Election Rules and the Act. I think, Rule 62 provides for a case where a person challenges the election of a particular

candidate. I would overrule the objection.

The Supreme Court also made a reference to the following passage in the decision in Umakant Singh and Others Vs. Binda Choudhary and

Others, , and approved of the same,

Mr. Shankar Kumar appearing for respondents 6 and 7 submitted that the election ought to have been challenged by following the machinery

provided in Rule 148 of the Rules, and this Court, in exercise of its powers under Art.226 of the Constitution, should not inteirfere with the election

when a special machinery was provided for challenging it. I am unable to accept the argument. It is the well settled view of the Court that if the

entire election is challenged as having been held under statutes or statutory Rules which are invalid or by committing illegalities which make the

entire election void, it can be quashed by grant of a writ in the nature of certiorari.

In addition to the above, reference was also made by the Supreme Court to the following passage in Dev Prakash Balmukund v. Baby Ram Rewti

Mai AIR 1961 Puny 429 (S. C).

Everybody, of course, agrees that, if the very foundation of the election, namely, the electoral roll is illegal, no election on its basis can proceed or

be allowed to stand, but that does not mean that any kind of defect in the roll, however technical in its nature, will suffice to reach such a

conclusion.

The Supreme Court then proceeded to observe that it would depend upon the nature and the intensity of the error committed in the preparation of

the electoral roll and its effect on the whole election for deciding the question and finally the Supreme Court pointed out that the nature of the

irregularities in that case were such that the Election Tribunal would have found itself incompetent to declare the relevant rule as ultra vires and

therefore, there was no bar to the issue of a writ. From the aforesaid decisions, it is clear that the availability of a machinery for questioning the

validity of an election of an elected candidate at the instance of a voter on certain specified grounds, would not in any manner affect the jurisdiction

of the Civil Court to entertain a suit questioning the validity and legality of the election of all the members of the Bar Council as a whole on the

grounds mentioned earlier. In the absence, therefore, of any express or implied ouster of the jurisdiction of the Civil Court in a case like the

present, the Court below was quite right in holding that it had jurisdiction to entertain the suit instituted by the respondent. There is, therefore, no

illegality or irregularity in the order of the Court below. The civil revision petition is, therefore, dismissed with costs of the respondent in a sum of

Rs. 500.

As much as the legality and validity of the election of the members of the Bar Council of Tamilnadu, a professional body, as a whole, is challenged

on the ground of commission of several irregularities and violation and infraction of the rules, it is desirable that the suit is heard and disposed of as

early as possible and counsel for the petitioner and the respondent requested that a direction may be given to the Court below to advance the suit,

now posted to 30.4.1991, and dispose it of as early as possible. This appears to be a very just and reasonable request and the learned Second

Assistant Judge, City Civil Court, Madras, is directed to list the suit immediately and hear it from day-today and dispose of the same on or before

30.4.1991 and report such disposal to this Court.