Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) Nos. 18386-18387 of 2007    

The Bar Council of Maharashtra & Goa            … Petitioners

Versus

Manubhai Paragji Vashi & Ors.                     … Respondents

WITH  

SPECIAL LEAVE PETITION NOs.18388-18389 OF 2007    

Patil Rajiv Laxmna                                             … Petitioner

Versus

Manubhai Paragji Vashi & Ors.                     … Respondents

O R D E R

A. K. PATNAIK, J.

These two Special Leave Petitions under Article 136 of  

the Constitution  are against the common judgments dated  

13.12.2006,   04.06.2007   and   21.06.2007   of    the  

Bombay High   Court   in   Writ   Petition   Nos.  903  of  

2004    and   1781  of  2004  (for  short  ‘the  impugned

judgment’)   and   relate   to elections to the Bar Council of  

Maharashtra and Goa.    

2. The facts very briefly are that for elections to the Bar  

Council of Maharashtra and Goa (for short ‘the State Bar  

Council’), Electoral Roll was prepared in which the names of  

the Advocates on the roll of the State Bar Council who had  

not paid the subscription as per Rule 40, Chapter -II, Part  

VI of the Rules were deleted from the Electoral Roll.  The  

names  of  these  Advocates  had  to  be  deleted  from  the  

Electoral  Roll  because  Rule  6(h)  of  the  Bar  Council  of  

Maharashtra  and  Goa  Rules  (for  short  ‘the  State  Bar  

Council  Rules’)  provided  that  the  name  of  an  Advocate  

appearing in the State Bar Council Roll shall not be on the  

Electoral Roll if he has not paid the subscription under Rule  

40, Chapter - II, Part VI of the Rules and obtained receipt  

from the  State  Bar  Council.   Respondent  No.1,  who  was  

earlier a member of the State Bar Council, filed Writ Petition  

No.  903  of  2004  before  the  High  Court  on  31.12.2003  

praying that all the Advocates on the Roll of the State Bar  

Council  be  allowed  to  cast  their  votes  and  contest  the  

elections without being disqualified for non-payment of the  

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amounts as per Rule 40, Chapter - II, Part VI of the Rules.  

While the Writ Petition was pending, elections to the State  

Bar Council were held and the result of the elections was  

declared on 04.03.2004.  Respondent Nos. 1 and 7 to 30  

were declared elected to the State Bar Council and the State  

Bar Council was constituted for a fresh term of five years.  

Respondent No.1 amended the Writ Petition No. 903 of 2004  

and  prayed  for  striking  down Rule  6(h)  of  the  State  Bar  

Council  Rules  as  ultra  vires the  powers  of  the  State  Bar  

Council.  Under Rule 31 of the State Bar Council Rules, it  

was  provided  that  a  voter  shall  be  entitled  to  mark  his  

preferences  to  all  the  candidates  appearing  in  the  voting  

paper  and  Rule  32  (g)  of  the  State  Bar  Council  Rules  

provided  that  a  voting  paper  shall  be  invalid  in  which  

preferences to less than ten candidates are communicated.  

Respondent No.1 also challenged these provisions in Rules  

31 and 32 and prayed for the deletion of the provision for  

communicating a minimum of ten preferences in the voting  

paper.   On  07.06.2004,  some  other  Advocates  filed  Writ  

Petition No. 1781 of 2004 seeking similar reliefs.  In both  

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the Writ Petitions a prayer was made for setting aside the  

election to the State Bar Council held on 04.03.2004.   

3. After the replies were filed by the State Bar Council as  

well as the Bar Council of India, the Division Bench of the  

High  Court  heard  the  matter  and  the  learned  Judges  

delivered two separate judgments on 13.12.2006.  While one  

learned Judge, Anoop V. Mohta, J. held Rules 6(h) and 32(g)  

of  the  State  Bar  Council  Rules  valid,  the  other  learned  

Judge,  F.I.  Rebello,  J.  held Rules 6(h)  and 32(g)  as  ultra  

vires the powers of the State Bar Council.  The matter was  

referred to a third learned Judge, D.K. Deshmukh, J., who  

on 04.06.2007 agreed with  F.I.  Rebello,  J.  and held  that  

Rules 6(h) and 32(g) are ultra vires the powers of the State  

Bar Council.  Rebello and Deshmukh, JJ., have held that  

under Section 49(1)(a) of the Advocates Act, 1961, (for short  

‘the Act’) it is the Bar Council of India which has the power  

to make Rules prescribing the conditions subject to which  

an Advocate may be entitled to vote at an election to the  

State Bar Council, including qualification or disqualification  

of  voters,  and  under  Section  15  of  the  Act  a  State  Bar  

Council has only the power to make rules for election of the  

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members of the State Bar Council and for preparation and  

revision of Electoral Rolls and that Rules 6(h) and 32(g) of  

the State  Bar Council  Rules are  not  rules relating to the  

preparation and revision of Electoral Rules, but rules laying  

down the conditions subject to which an Advocate would be  

entitled  to  vote  at  an  election  of  the  State  Bar  Council,  

including  the  qualification  and  disqualification  of  voters,  

and therefore the State Bar Council had by making Rules  

6(h) and 32(g) of the State Bar Council Rules exceeded its  

powers and encroached on the power of the Bar Council of  

India.  By the impugned common order dated 21.06.2007,  

the High Court allowed the Writ Petitions in terms of the  

judgment of Rebello, J. declaring Rules 6(h) and 32(g) of the  

State Bar Council Rules as ultra vires Section 49(1)(a) of the  

Act and directed the State Bar Council to have counted the  

votes which were declared invalid counted on the ground  

that voters had not cast ten preference votes.  

4. Mr.  U.U.  Lalit,  learned  senior  counsel  for  the  

petitioner,  submitted  that  Rule  6(1)(h)  of  the  State  Bar  

Council Rules provides that the name of an Advocate in the  

State Bar Council Roll shall not be on the Electoral Roll if he  

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has not paid the subscription under Rule 40, Chapter – II,  

Part VI of the Rules and obtained receipt from the State Bar  

Council, is really a rule made by the State Bar Council in  

relation to election of the members of the State Bar Council  

and  relating  to  preparation  of  Electoral  Roll  and  was  

therefore within the powers of the State Bar Council under  

Section 15(1) of  the Act.   He further submitted that Rule  

32(g) of the State Bar Council Rules which provided that a  

voting paper shall be invalid in which the preferences to less  

than ten candidates are communicated, is a rule relating to  

the validity of a ballot paper and was also within the powers  

of the State Bar Council under Section 15(1) of the Act to  

make  rules  in  relation  to  election  of  its  members.   He  

submitted that  the High Court therefore was not right in  

coming to the conclusion that Rules 6(1)(h) and 32(g) of the  

State Bar Council Rules are beyond the powers of the State  

Bar Council and were within the powers of the Bar Council  

of India.  He further submitted that in any case the State  

Bar Council Rules made by the State Bar Council including  

Rules 6 and 32 were approved by the Bar Council of India  

under Section 15(3) of the Act.  He cited the judgments of  

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this Court in  Km. Shradha Devi v.  Krishna Chandra Pant   

and Others [(1982) 3 SCC 389 (II)] and Ananga Uday Singh  

Deo v. Ranga Nath Mishra and Others [(2002) 1 SCC 499] in  

which the system of proportional  representation by single  

transferable vote has been discussed and explained.   

5. In reply, Mr. Colin Gonsalves, learned senior counsel  

appearing for the respondents, submitted that in exercise of  

powers under Section 49(1)(a) of the Act the Bar Council of  

India has in Rule 1, Chapter – I, Part III of the Bar Council  

of  India Rules, 1975, provided that every Advocate whose  

name is on the Electoral Roll of the State Bar Council shall  

be entitled to vote at an election.  He submitted that this  

valuable right given to an advocate whose name is on the  

Electoral Roll of the State Bar Council to vote at an election  

of the State Bar Council cannot be taken away by the State  

Bar Council by providing that the vote cast by an Advocate  

will not be counted and will be held invalid if the Advocate  

has not communicated at least ten preferences in the ballot  

paper.   He  submitted  that  Rule  32(g)  of  the  State  Bar  

Council Rules made by the State Bar Council is therefore in  

direct  conflict  with  Rule  I,  Chapter  I,  Part  III  of  the  Bar  

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Council of India Rules, 1975, made by the Bar Council of  

India in exercise of its powers under Section 49((1)(a) of the  

Act.  He submitted that this Court has taken a view in the  

case of  Lily Thomas v. Speaker,  Lok Sabha  [(1993) 4 SCC  

234] that voting means formal expression of will or opinion  

by the person entitled to exercise the right and this right  

will  not  only  include  the  right  in  favour  or  against  the  

motion or resolution, but also the right to remain neutral.  

He  submitted  that  when an  Advocate  votes  for  even one  

candidate  and  does  not  communicate  his  preferences  for  

any other  candidate  on the  ground that  according to  his  

opinion none other candidate was suitable for being elected  

as a member of the State Bar Council, his vote cannot be  

discarded.   He  relied  on  the  decision  of  this  Court  in  

Shradha Devi v. Krishna Chandra Pant and Others (supra) in  

support of his submission that every elector has one vote  

and indicating other preferences is optional for the elector  

and if he has not communicated other preferences his ballot  

paper cannot be rejected as invalid.  He submitted that in  

Bar Council of Delhi and Others v. Surjeet Singh and Others   

[(1980) 4 SCC 211] this Court has held that mere approval  

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of  the  Bar  Council  of  India  could  neither  validate  or  

otherwise ultra vires a rule, nor have the effect of making up  

a rule made by the Bar Council of India itself.  He submitted  

that the approval of the Bar Council of India to Rule 32(g) of  

the State Bar Council Rules will therefore not make the rule  

valid.   

6. The relevant provisions of Section 15 and Section 49 of  

the Act are extracted hereinbelow:  

15. Power to make rules.—

(1) ……

(2)  In  particular,  and  without  prejudice  to  the  generality of the foregoing power, such rules may  provide for—

(a) the election of members of the Bar Council by  secret ballot including the conditions subject to  which persons can exercise  the  right  to  vote  by  postal  ballot,  the  preparation and revision of electoral rolls and the  manner in which the result of election shall  be  published;

……………………………………………………………….

(3) No rules made under this section by a State  Bar  Council  shall  have  effect  unless  they  have  been approved by the Bar Council of India.

49. General power of the Bar Council of India  to make rules.—

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(1) The Bar Council of India may make rules for  discharging its functions under this Act, and, in  particular, such rules may prescribe—

(a) the conditions subject to which an advocate  may be entitled to vote at an election to the State  Bar  Council  including  the  qualifications  or  disqualifications  of  voters,  and  the  manner  in  which an electoral roll of voters may be prepared  and revised by a State Bar Council;

Rules 6(h), 31 and 32 of the State Bar Council Rules  

are extracted hereinbelow:

“6. The  name  of  an  Advocate  appearing  in  the Bar Council Roll shall not be on the Electoral  Roll,  if  on  information  received  or  otherwise  obtained by the Bar Council that :-

(a) …..  (b) ….. (c) …..  (d) ….. (e) ….. (f) …… (g) …..

(h)   If  he  has  not  paid  the  subscription under  Rule 40, Chapter – II, Part VI of the Rules and  obtained receipt from the State Bar Council.  

31. Method of Voting : - (1) Voter shall be  entitled  to  mark  his  preferences  to  all  the  candidates appearing in the voting paper in the  form  mentioned  hereinbelow  and  such  preferences  shall  not  be  less  than  to  ten  candidates.  

32. Voting  papers  when  invalid:-  A voting  paper shall be invalid in which:-  

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(a) …..  (b) ….. (c) …..  (d) ….. (e) ….. (f) ……

(g)   Preference  to  less  than  ten candidates  are  communicated.”

7. It will be clear from the language of Section 49(1)(a) of  

the Act that the Bar Council of India has the power to make  

rules  prescribing  the  conditions  subject  to  which  an  

Advocate may be entitled to vote at an election to the State  

Bar Council, including the qualification or disqualification of  

voters, and the manner in which the Electoral Roll of voters  

may be prepared and revised by the State Bar Council.  In  

exercise  of  its  power  the  Bar  Council  of  India  has  made  

rules in Part  III,  Chapter –  I  of  the  Bar Council  of  India  

Rules, 1975.  Rule (1) and 2(h) of these rules are quoted  

hereinbelow:  

“1. Every  advocate  whose  name  is  on  the  electoral  roll  of  the  State  Council  shall  be  entitled to vote at an election.

2. The  name  of  an  advocate  appearing  in  the  state roll shall not be on the electoral roll, if on  information  received  or  obtained  by  the  State  

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Bar Council concerned on the basis of which it  is satisfied that-

x   x   x    x    x    x    x    x    x    x    x    x    x   x   (h) if he has not paid the subscription under  Rule  40  Chapter-II,  Part  VI  of  the  Rules  and  obtained receipt from the State Bar Council;”

8. The language of Rule (1) is clear that every Advocate  

whose name is on the Electoral Roll  of  the State Council  

shall be entitled to vote at an election.  Rule 2(h), however,  

states that the name of an Advocate appearing in the State  

Roll shall not be on the Electoral Roll if he has not paid the  

subscription  under  Rule  40,  Chapter  –  II,  Part  VI  of  the  

Rules and obtained receipt from the State bar Council.  The  

language of Rule 2(h) is therefore verbatim the same as Rule  

6(h) of the State Bar Council Rules made by the State Bar  

Council  and  lays  down  a  condition  subject  to  which  an  

Advocate  will  be entitled to vote  inasmuch as it  provides  

that  he  will  be  entitled to  vote  provided he  has  paid his  

subscription. The State Bar Council  could not have made  

such a provision in Rule 6(h) of the State Bar Council Rules  

in exercise of its powers under Section 15 of the Act and  

such a provision could only be made by Bar Council of India  

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under  Section  49(1)(a)  of  the  Act.   The  High  Court  was,  

therefore, right in holding that Rule 6(h) of the State Bar  

Council  Rules was  ultra  vires Section 49(1)(a)  of  the  Act.  

However,  as  Rule  2(h)  of  the  Bar  Council  of  India  Rules  

makes exactly the same provision, names of the Advocates  

who had not paid the subscription had to be deleted from  

the Electoral Roll.   

9. Regarding Rule 32(g)  of  the State Bar Council  Rules  

made by the State Bar Council, it is clear from Rule 32(g)  

that by the said rule a vote cast by an Advocate is rendered  

invalid if he has indicated in the ballot paper less than ten  

preferences.   The  effect  of  this  rule  is  that  an  Advocate  

whose name is on the Electoral Roll of the State Bar Council  

and is entitled to vote at an election under Rule 1, Chapter –  

I, Part III of the Bar Council of India Rules, 1975, will not be  

able to cast his vote in favour of even a single candidate to  

whom he may have communicated his first preference vote.  

In other words, Rule 32(g) has the effect of taking away the  

right  conferred  on  an  Advocate  whose  name  is  on  the  

Electoral Roll of the State Bar Council to vote at an election  

under Rule  1,  Chapter – I,  Part  III  of  the Bar Council  of  

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India Rules, 1975, made under Section 49((1)(a) of the Act.  

To say, as is said in Rule 32(g), that the vote of an Advocate  

whose name is on the Electoral Roll will not be accepted is  

to  lay  down  that  he  can  vote  provided  he  indicates  a  

minimum of ten preferences in the ballot paper.  Rule 32(g),  

therefore, is not a rule relating to validity of ballot paper but  

a rule relating to a condition subject to which an Advocate  

can  vote  and  was  beyond  the  powers  of  the  State  Bar  

Council under Section 15(2)(a) of the Act.  In Shradha Devi  

v.  Krishna  Chandra  Pant  and  Others (supra),  this  Court  

held:

“12…..It,  therefore,  necessarily  follows  that  when  voting  is  in  accordance  with  the  proportional representation by means of the  single transferable vote it is obligatory to cast  the  first  preference  vote  for  ensuring  the  validity  of  the  ballot-paper  and  the  first  preference  vote  must  be  so  cast  as  not  to  leave  any  one  in  doubt  about  it.   The  remaining preferences are optional  with the  elector.   He  may  or  may  not  exercise  his  franchise for the remaining preferences.  If he  chooses not to exercise remaining preferences  the ballot-paper cannot be rejected as invalid  for  failure  to  exercise  the  remaining  preferences…….”  

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10. Once we hold that Rules 6(h) and 32(g) of the State Bar  

Council  Rules  are  ultra  vires the  Act,  the  fact  that  Bar  

Council of India has approved the two provisions made by  

the State Bar Council under Section 15(3) of the Act will not  

validate Rules 6(h) and 32(g) of the State Bar Council Rules.  

In  Bar  Council  of  Delhi  and  Others  v.  Surjeet  Singh  and   

Others (supra), this Court has observed:

“8-A……..But the approval of the Bar Council  of India can make the rule made by the State  Bar Council valid and effective only if the rule  made is within the competence of the State  Bar Council, otherwise not.  Mere approval by  the Bar Council of India to a rule ultra vires  the State Bar Council cannot make the rule  valid.  Nor has it the effect of a rule made by  the Bar Council  of  India.  Making a rule by  the Bar Council of India and giving approval  to a rule made by the State Bar Council are  two distinct and different things. One cannot  take the place of the other.”

11. For  the  aforesaid  reasons,  we  are  not  inclined  to  

entertain these Special Leave Petitions and we accordingly  

dismiss the same.  There shall be no order as to costs.  

.……………………….J.                                                             (R. V. Raveendran)

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………………………..J.                                                             (A. K. Patnaik) New Delhi, October 13, 2011.    

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