BADAR DURREZ AHMED, J.
(1) RULE. With the consent of the parties the petitions are taken up for final disposal. These petitions raise identical issues. CW. No. 6188/2003 has been filed by the Bar Council of Delhi whereas CW. No. 6179/2003 has been filed by Mr. Sidharth Mridul and Mr. Sanjay Jain who are both advocates and are members of the Bar Council of Delhi. These petitions are concerned with the on-going Bar Council of Delhi elections which have been brought to a sudden halt by the impugned order dated 20. 9. 2003, passed by Mr. Adish C. Aggarwala (respondent No. 1 in CWP 6188/2003) purporting to be the Vice Chairman of the Bar Council of India (respondent No. 2 in CWP 6188/2003) in purported exercise of powers under Section 48-B of the Advocates' Act, 1961.
(2) THE elections were scheduled to be held on two dates i. e. 29. 9. 2003 and 30. 9. 2003 as per the directions of the Division Bench on 4. 9. 2003 in LPA 610/2003. The directions that were given are as under:
" Accordingly, we dispose off this appeal with the following directions:1. On 29. 9. 2003 Polling Arrangement shall be made at High Court of Delhi where advocates will be permitted to exercise their voting rights. Those who do not exercise their vote on 29. 9. 2003 will be permitted to exercise their voting right on 30. 9. 2003 at Tis Hazari. 2. The Bar Council shall issue corrigendum to the aforesaid effect and wide publicity shall be given by issuing public notice in the newspaper (s), as well as on the notice boards of all the Bar Associations. Notice would be circulated along with cause list of High Court (and Supreme Court, if possible). At the same time it will be the duty of the Bar Council to see that on the notice board of the Bar Council, notice to this effect is displayed. 3. The Committee of the following members is constituted to supervise election process:- (a) Mr. R. K. Anand, Senior Advocate (b) Mr. K. K. Sud, Additional Solicitor Generally (c) Mr. Raj Birbal, Senior Advocate (d) Mr. A. S. Chandhiok, Senior Advocate (e) Mr. H. R. Banga, Advocate. We make it clear that the aforesaid changes in the election scheduled are made, keeping in view the grievances of the members of Bar and after hearing them by the Court by means of this order. Direct Service permitted (Dasti)September 04, 2003 as Sd/- Chief Justice Sd/ A. K. Sikri, Judge"
(3) SOME background would be necessary to appreciate to the extent and the scope of the present petition. The present Bar Council of Delhi was constituted on 31. 3. 1998 for a five-year term. On 13. 1. 2003, with a view to hold the elections to the next Bar Council of Delhi, the present Bar Council of Delhi wrote a letter to the Bar Council of India asking for extension under Section 8 of the Advocates Act, 1961 to enable it to complete the electoral process. The Bar Council of India on 23. 2. 2003 held a meeting in this regard and passed a resolution extending the time of the Bar Council of Delhi by another six months w. e. f. 1. 4. 2003. In other words, the term of the Bar Council of Delhi was extended up to 30. 9. 2003. The factum of holding of the meeting and the passage of the said resolution was communicated to the Bar Council of Delhi by a letter dated 4. 3. 2003.
(4) IN the meanwhile, on 25. 1. 2001, the Bar Council of Delhi had issued a notification notifying that all Advocates on the State Roll of the State Bar Council of Delhi would be entitled to vote if their names appeared on the electoral roll to be prepared for the forthcoming election and that the schedule of which would be notified separately. In accordance with Rules 2 and 3 of Chapter I (Part-III) of the Bar Council of India Rules, it was indicated that all advocates were required to furnish a declaration to the effect that they had not incurred any disqualification referred to in clauses (a) to (i) of Rule 2 and it also made it clear that the declaration forms were available in the office of the Bar Council of Delhi as also at the places of the various Bar Associations of Delhi. It further made it clear that the last date for acceptance of such declaration was 20. 3. 2003 and it indicated that if the declarations were not received by that date the name of the advocate would not be included in the electoral roll under preparation. The last date for submission of these declarations was extended on 27. 4. 2003 up to 19. 5. 2003. Thousands of advocates responded to this notification and submitted their declarations. On the basis of this, the Bar Council of Delhi prepared the preliminary electoral role on 29. 5. 2003 and issued letters to the Bar Associations as well as the Bar Council of India with regard to the same. The Bar Associations were also requested to put up the notice dated 29. 5. 2003 on their notice boards so that all advocates were informed about the preliminary electoral roll. The notice that was required to be brought to the knowledge of all the Advocates was as under:
" NOTICE in terms of rule 4 (2) of Chapter-I, Part-III of the Bar Council of India Rules, the preliminary electoral roll containing the names of all advocates required to be included under these rules for the forthcoming elections of the members of Bar Council of Delhi is being put up and notified to all the advocates. The relevant floppies of the roll are sent to various Bar Associations of Delhi for further notification. Advocates may check their names, addresses, etc. in the said list and mistake, if any, may be got corrected before the final roll. Issued and put up on the notice board of the Bar Council on 29th May, 2003. Sd/- (Surya Prakash Khatri) Hony. Secretary"
(5) ON 12. 6. 2003, the Bar Council of Delhi wrote a letter to the Bar Council of India informing it regarding the notices and the invitation of declaration as well as the preparation of the preliminary electoral roll. It further informed the Bar Council of India that the final roll would be published in accordance with the Rules and that Shri S. K. Mendiratta Consultant to the Chief Election Commission of India who was also associated with the Bar Council of Delhi had been appointed as Returning Officer for the forthcoming election.
(6) ON 17. 7. 2003, after objections etc. which had been received in the meanwhile had been taken care of, the final electoral roll was published and the following notice was issued:
" NOTICE it is hereby notified that Bar Council of Delhi has prepared final electoral roll containing the names of all the advocates required to be included under the rules contained in Chapter-I, Part-III of Bar Council of India Rules. This notice is being published in terms of Rule 5 of Chapter-I, Part-III of Bar Council of India Rules. Necessary intimation of the said publication is also being sent to Bar Associations for further publication in terms of this rule. Issued and put up on the notice board of the Bar Council on 17th July, 2003. Sd/- (Surya Prakash Khatri) Hony. Secretary. "
(7) THEREAFTER, on 28. 7. 2003, the schedule of election was notified. Nominations were to be submitted between 14th to 21st August, 2003. Scrutiny was fixed for 22nd August, 2003. Withdrawal of candidature could be done by 28th August, 2003 and the list of candidates remaining in the fray was to be notified on 29th August, 2003. The date of actual poll was 19th September, 2003.
(8) ON 19th August, 2003, the Bar Council of India, upon certain representations being made, passed an order in purported exercise of powers under Section 48-B of the Advocates Act, 1961 and thereby stayed the entire election of the Bar Council of Delhi. The reasons, apparently, were that there were some irregularities in the electoral rolls and that approximately 14,000 persons had been omitted from the electoral roll who were otherwise allegedly eligible to vote. However, the stay order was short-lived as the Bar Council of India itself vacated the stay on 24th August, 2003. As a result of which the election process resumed.
(9) BECAUSE of the interruption caused in the electoral process, the schedule of the election was modified and on 25th August, 2003 it was notified that the nominations would be accepted up to 28th August, 2003; scrutiny would be done on 29th August, 2003. The last date of withdrawal would be 5th September, 2003 and the date of poll had been fixed for 30th September, 2003.
(10) IN the meanwhile, a writ petition being CWP No. 5200/2003 had been filed by certain persons requesting the court to issue a direction that the polling be done at difference venues on account of the congestion at the Tis Hazari Court complex. I had occasion to deal with that petition and I decided the matter on 26. 8. 2003 wherein I held that no interference was called for in the present election although the grievances raised by the petitioner were genuine. The matter went up before a Division Bench of this court in LPA No. 610/003 and the Division Bench, after considering the difficulties that were being faced by the voters and after noting that the order that they were about to pass was not an interference with the electoral process but rather a facilitation of the same in view of the dictum of the Supreme Court in the case of Election Commission of India v Ashok Kumar and Ors AIR 2000 SC 2979, directed that the polling should be done in two different venues on two different dates i. e. 29. 3. 2003 and 30. 9. 2003 on the basis of the same electoral roll. The directions in detail have already been set out hereinabove.
(11) THE matter did not rest there. Certain disputes arose between certain members of the Bar Council of Delhi on account of the fact that on 22nd August, 2003 the Bar Council of Delhi, by a resolution, disqualified the respondent No. 1 (Shri Adish C. Aggarwala) and another from holding office as members of the Bar Council of Delhi on account of the fact that they were deemed to have vacated their office on their failure to attend three consecutive meetings under Section 10 (B) of the Advocates Act, 1961. A notification to this effect was brought out on 26th August, 2003 by the Government of NCT which was to be published in Delhi Gazette. It was also notified that Shri Adish C. Aggarwala on being declared to have vacated the office as member of Bar Council of Delhi had also ceased to be a member of Bar Council of India and in the vacancy so caused, Shri Jatan singh, Member, Bar Council of Delhi had unanimously been elected as Member, Bar Council of India in place of Shri Adish C. Aggarwala with immediate effect. There is, however, also a letter purportedly from the Bar Council of India dated 27. 8. 2003 addressed to the Bar Council of Delhi to the effect that the process of election of the nominee member of Bar Council of Delhi in the Bar Council of India was not valid and as such the election of Shri Jatan Singh cannot be taken cognizance of and that Bar Council of Delhi ought to follow the procedure in this regard.
(12) THE resolution dated 22. 8. 2003 and the notification of 26. 8. 2003, inter alia, became the subject matter of another writ petition filed by Mr. Adish C. Aggarwala being CWP 5484/2003 which is pending before a Division Bench of this Court. In that writ petition a CM 9660/2003 for interim relief was heard and orders have been reserved thereon on 3. 9. 2003. I need not make any comments with regard to that dispute i. e. the dispute which is pending before the Division Bench. The only thing that is to be noted is that respondent No. 1 (i. e. Mr. Aggarwala) had been disqualified by the Bar Council of Delhi and that he had challenged this disqualification. These circumstances only go to show that there is a possibility and, indeed, a great probability of Mr. Aggarwala having an animus in respect of the present members of the Bar Council of Delhi. It bears repetition that in LPA No. 610/2003 on 4th September, 2003, the Division Bench gave directions for the holding of election on two days i. e. 29th September, 2003 and 30th September, 2003. The electoral process was in full swing and as the date of poll drew closer another blow was dealt to it by the impugned order dated 20th September, 2003 which has been passed by the respondent No. 1 purportedly acting as Vice Chairman of the respondent Bar Council of India.
(13) THE main issue here is whether the impugned order can be sustained in law at all and whether this court in judicial review under Article 226, ought not to set it aside? Mr. V. P. Singh and other learned counsel who appeared on behalf of the petitioners stated and submitted that respondent No. 1 (i. e. Shri Adish C. Aggarwala) had passed the impugned order despite the fact that he, himself, was a candidate in this election that he was aggrieved by the fact that his name had been removed from the membership of the Bar Council of Delhi. As a consequence of these events and circumstances, it could not be said that he would be impartial or was not interested in the matter. Therefore, he ought not to have been a judge in his own case. Nemo debet esse judex in propria causa. Another argument is that Mr. Aggarwala did not have the competence to pass the impugned order at all. Mr. V. P. Singh further submitted that courts have been very cautious and circumspect in interfering with the electoral process once it is set in motion. He pointedly referred to paragraph 25 of the Supreme Court decision in Election Commission of India Vs. Ashok Kumar and Ors (supra) which reads as under:
" Anugrah Narain Singh v. State of U. P. (1996) 6 SCC 303, is a case relating to Municipal elections in the State of Uttar Pradesh. Barely one week before the voting was scheduled to commence, in the writ petitions complaining of defects in the electoral rolls and de-limitation of constituencies and arbitrary reservation of constituencies for scheduled castes, scheduled tribes and backward classes the High Court passed interim order stopping the election process. This Court quashed such interim orders and observed that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the Court and stall the elections. The importance of holding elections at regular intervals cannot be over-emphasised. If holding of elections is allowed to stall on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the democratic bodies. "
He emphasised that if such circumstances and events as in the present case are permitted to go on then no election will ever take place because someone or the other will find some cause and stall the election. The importance of holding elections at regular intervals as indicated by the Supreme Court cannot be over-emphasised. Thereafter, Mr. V. P. Singh referred to paragraph 32 of the said judgment which is as under:"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows there from in view of the analysis made by us hereinabove:-1)If an election, (the term `election' being widely interprreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elesctions. 2)Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. 3)Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. 4)Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. 5)The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329 (b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. "
(14) ON the other hand, it was contended on behalf of the respondents,1 and, with some degree of vehemence, that the Bar Council of India has the power under Section 48-B of the Advocates Act, 1961 to pass an order staying the electoral process if it finds that the electoral roll has been prepared contrary to law. Mr. Harish Salve, Senior Advocate, who appeared on behalf of Mr. Adish C. Aggarwala made the short submission that just as the Election Commission of India had powers of superintendence over the conduct of elections to the Lok Sabha and Legislative Assemblies, the Bar Council of India had similar powers under Section 48-B of the Advocates Act, 1961 in respect of, inter alia, conduct of elections by the State Bar Councils. Mr. Salve also contended that the restraint of not interfering with the electoral process was one imposed by the courts upon themselves. This restraint, according to him, did not apply to bodies like the Election Commission or the Bar Council of India. Thus, it was his contention that there was no bar on impediment in law for the passing of an order staying the elections by the Bar Council of India in appropriate cases. However, he fairly submitted, any such order would have to survive judicial scrutiny on the touchstone of the well-known principles. An order such as the one impugned in these petitions could be sustained only if it was not arbitrary, whimsical, displaying a bias, malafide, for oblique or collateral purpose.
(15) THE challenge to the impugned order of stay of election passed by Mr. Adish C. Aggarwala can be viewed from two angles. The first being - whether the Bar Council of India has the power to pass such an order under Section 48-B of the Advocates Act, 1961? And, the second - whether the order passed by Mr. Aggarwala could be construed as an order of the Bar Council of India passed under Section 48-B of the said Act? While Mr. Salve and Mr. Manoj Goel (learned counsel for the Bar Council of India) were at pains to urge that the Bar Council of India had the powers to pass such an order under Section 48-B of the said Act, that is not the main question in these petitions. Here we are concerned with the second aspect. A decision on whether the Bar Council of India has or has not the power to pass such an order under Section 48-B is not at all necessary for the disposal of the present petitions as will become apparent here in below. Though, there were arguments addressed on both sides, and with equal vigour, on the question of powers of the Bar Council of India under Section 48-B, those need not be noticed as a decision on this aspect is not required and the issue is kept open for an appropriate case. I shall proceed on the assumption that the Bar Council of India had such a power.
(16) THE second aspect noted in the preceding paragraph has two facets: Firstly, did Mr. Aggarwala have the power to pass such an order and, secondly even if he had the power to pass such an order whether he was entitled to pass such an order on the ground of propriety inasmuch as he was himself an interested party. Insofar as the legal competence is concerned, it would be pertinent to note the provisions of Section 4 of the Advocates Act, 1961:-
" 4. Bar Council of India.- (1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, : (a) the Attorney-General of India, ex officio; (b) the Solicitor-General of India, ex officio; (c) one member elected by each State Bar Council from amongst its members. (1-A) No person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub-section (2) of Sec. 3. (2) There shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed. (2-A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977, shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be: provided that such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977, assumes charge of the office. (3) The term of office of a member of the Bar Council of India elected by the State Bar Council shall, -- (i)in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election or till he ceases to be a member of the State Bar Council, whichever is earlier; and (ii)in any other case, be for the period for which he holds office as a member of the State Bar Council: provided that every such member shall continue to hold office as a member of the Bar Council of India until his successor is elected. "
It is to be seen that once the person is elected by the State Bar Council, he continues to be a member of the Bar Council of India under the proviso to Section 4 (3) "until his successor is elected". In the present case what has happened is that Mr. Aggarwala ceased to be a member of the Bar Council of Delhi and in his place Mr. Jatan Singh was elected as a member of the Bar Council of India on 22. 8. 2003. Of course, his election and Mr. Aggarwala's disqualification is, inter alia, the subject matter of the dispute before the Division Bench in CWP 5484/2003 and therefore, I need not pass any comment on the legality or validity thereof. But, the fact of the matter is that the Division Bench has not as yet granted any stay of the disqualification of Mr. Aggarwala or of the election of Mr. Jatan Singh. That being the case, in point of fact, Mr. Aggarwala was not a member of the Bar Council of Delhi on the date (i. e. 20. 9. 2003) on which he passed the impugned order staying the entire election. As he was not a member of the Bar Council of Delhi as Mr. Jatan Singh had been elected in his place, he could not also be a member of the Bar Council of India. Therefore, he was not qualified to pass the impugned order dated 20. 9. 2003. Apart from this, Rule 21 of Chapter I (Part-II) of the Bar Council of India Rules clearly shows that "the Vice Chairman shall exercise all the powers and discharge all the functions of the Chairman in his absence and under his direction". This rule is with reference to Rule 18 where the Chairman has been given "power to pass interim orders in revisional and other matters arising out of the supervisory jurisdiction of the council". The key words in Rule 21 are "in the absence and under his direction". The impugned order has been styled in the first person and the entire tenor discloses that it has been passed by Mr Aggarwala and Mr Aggarwala alone. He has not exercised powers under "the direction" of the Chairman. Therefore, even if it is assumed that Mr. Aggarwala was the Vice Chairman of the Bar Council of India on the date on which he passed the impugned order, it could not be said that it was passed under the direction of the Chairman, Bar Council of India. That being the case, the order also suffers on this ground.
(17) COMING now to the most important aspect of the case and that is the propriety of passing such an order. Although, the order has been passed, inter alia, taking the ground of purported disqualification of the 14,000 voters on account of non- furnishing of declarations, it appears to me that this is only an ostensible reason. Had it been a genuine reason, what prevented the Bar Council of India from taking action earlier. The question that remains unanswered is, if the Bar Council of India had acted genuinely, then why did it vacate its first stay order which it passed on 19th August, 2003 on the very same ground? The reply attempted by the learned counsel for the Bar Council of India is that the complainant at that time had withdrawn his complaint. That is a very feeble explanation, if at all. Once a matter is brought to the notice of the Bar Council of India and it has initiated action under Section 48-B, whether the complainant withdraws his complaint or not, the information had reached the Bar Council of India and it ought to have taken or continued to take action in that regard. That it did not do so, could be indicative of the fact that the Bar Council of India felt that the complaint was frivolous or had little truth in it. Possibly, other factors weighed with them while vacating the stay earlier granted. It must also be remembered that the electoral process has chugged along since 25. 01. 2003 when the requirement for declarations was first notified. The preliminary electoral roll was notified on 29. 05. 2003. Correction of mistakes etc. , could have been done thereafter also. The final roll was notified on 17. 07. 2003. All these processes were within the knowledge of the Bar Council of India as well as all the Advocates on the State Bar Roll. Being aware of these circumstances, perhaps, the Bar Council of India withdrew the stay of 19. 08. 2003.
(18) THEN, again, on the same fact situation, another complaint was filed. Mr. Aggarwala, who had by then been disqualified and his matter before the Division Bench was pending, exercised jurisdiction purporting to be the Vice Chairman of the Bar Council of India and purportedly acting on behalf of the Bar Council of India took up the case and issued the impugned stay order on 20. 09. 2003.
(19) IT appears that Mr. Aggarwala was irked by the decision of the Bar Council
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of Delhi in disqualifying him as a member thereof. Furthermore, where his very position as Vice-Chairman of the Bar Council of India was itself in question, he ought not to have, under rules of propriety, passed such an order. That he did pass such an order, raises serious doubts on the legitimacy of such an order and cannot be sustained under judicial scrutiny. It might have been a different matter had the impugned order been passed by the Chairman. But this is not so. Mr Aggarwala clothing himself as a valiant knight in shining armour, as it were, handed out the impugned stay order dated 20. 09. 2003 in an attempt to bring the entire electoral process to a screeching halt. Ostensibly, the order was passed on the basis of an apparently laudable object. In reality, it does not give of a scent of fair play. It reeks of bias. One is left to ponder on the questions--Would Mr Aggarwala have passed such an order had he not been disqualified by the Bar Council of Delhi? Was it not part of a personal vendetta? Was it not to settle scores? When such questions arise the order cannot be sustained. (20) THERE is yet another matter which needs to be disposed of before I part with this case. Elections are the bedrock of democracy. Whether it is the legislative elections or elections to municipal bodies or local bodies or to bodies like Bar Councils, elections are the essence of democracy. If no election is held, there can be no democracy. Holding of an election is of the essence. There are two facets to an election. First, is the holding of an election in time and the second, is the maintaining of the purity of election. As was observed by the Supreme Court in the case of A. K. M. Hasan Uzzaman and Ors v. Union of India and Ors: (1982) 2 SCC 218, the Court's interference with the electoral process was inversely related to the imminence of the date of election. The more imminent such date, the greater ought to be the reluctance to interfere. The second aspect is the purity of the election. While the purity of the electoral process can be tested and is, indeed, often decided not only by way of election petitions but by way of writ petitions also, the same can, however, only be tested if the elections are held. Time is unidirectional. An election not held at the scheduled time cannot later be held at that time. However, and election irregularly held can be corrected later. In this particular case, it is peremptory to hold the elections latest by 30th September, 2003 in view of the fact that extended term of the Bar Council of Delhi expires on that date. The Bar Council of India is well aware of that because, it is the Bar Council of India which extended that term. So, Elections must be held before that date otherwise the present Bar Council becomes defunct and there would be no Bar Council of Delhi after that date. (21) IN these facts and circumstances, the impugned order dated 20. 09. 2003 passed by the respondent No. 1 (Mr. Adish C. Aggarwala) is set aside. Writ petitions are allowed. No order as to costs.