REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6482 OF 2011 (Arising out of SLP (CIVIL) No. 15722 of 2011)

Pratap Chandra Mehta             … Appellant

Versus

State Bar Council of M.P. & Ors.           … Respondents

With

CIVIL APPEAL NO.6483 OF 2011 (Arising out of SLP (CIVIL) No. 16088 of 2011)

Rameshwar Neekhra              … Appellant

   Versus

State Bar Council of M.P. & Ors.         … Respondents

J U D G M E N T

Swatanter Kumar J.

1. Leave granted.

2. From the very simple facts of these cases, the following  

substantial  questions  of  law  and  public  importance  arise  for  1

consideration of this Court:

(1) Whether the provisions of Rules 121 and 122-A of the State  

Bar Council of Madhya Pradesh Rules (for short, the ‘M.P.  

Rules’) are ultra vires Section 15 of the Advocates Act, 1961  

(for short, ‘the Advocates Act’), inter alia for the reason that  

there is no nexus between the rule making power of the  

State Bar Councils and the powers provided under Section  

15(1) or 15(2)(c) of the Advocates Act?  Was the delegation  

of legislative power under Section 15 of the Advocates Act  

excessive, inasmuch as it does not provide any guidelines  

for removal of office-bearers of the State Bar Councils?

(2) Whether despite the absence of the enabling provisions in  

the  principal  statute,  namely,  the  Advocates  Act,  

empowering  subordinate  State  Bar  Councils  to  enact  

provisions for removal of the office bearers of the State Bar  

Councils by ‘no confidence motions’, such power could be  

read  into  the  general  clause  of  Section  15(1)  of  the  

Advocates Act?

(3) Whether Rules 121 and 122-A of the M.P. Rules are invalid  

for want of prior approval from the Bar Council of India?

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3. The necessary facts are that the Parliament enacted the  

Advocates Act on 19th May, 1961.  Section 15 of the Advocates  

Act empowers the State Bar Councils to frame Rules to carry out  

the  powers  conferred  upon  the  State  Bar  Councils  under  

Sections 15(1), 15(2), 28(1) and 28(2) read with Chapter II and  

other provisions of the Advocates Act.  The State Bar Council of  

Madhya  Pradesh  (for  short  ‘the  State  Bar  Council’),  with  the  

approval of the Bar Council of India, made and published the  

M.P. Rules in 1962.  These M.P. Rules came to be amended on  

27th April, 1975.   

4. Section 15 of the Advocates Act provides that the State  

Bar Councils can frame/amend the Rules with prior approval of  

the Bar Council of India.  Section 15(2)(a) of the Advocates Act  

read with Part III and IX of the Bar Council of India Rules (for  

short,  ‘the Rules’)  contemplates that election to the State Bar  

Council shall be held.  In furtherance to this legislative mandate,  

the election to the State Bar Council were held in the year 2008  

and Mr. Rameshwar Neekhra was elected as Member and then  

Chairman  of  the  State  Bar  Council  by  its  members  on  31st  

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August, 2008.  After the expiry of 2½ years, fresh elections were  

held on 12th February, 2011 and the said Mr. Neekhra was again  

elected as  member,  and then  the  Chairman of  the  State  Bar  

Council by its members.  He is stated to have secured 21 votes,  

out of a total 25 votes of the Members of the State Bar Council.  

Mr. Adarsh Muni Trivedi was elected as Vice-Chairman of the  

State Bar Council.   

5. At the very threshold of the 15th Meeting of the General  

Body  of  the  State  Bar  Council  held  on  27th March,  2011  at  

Jabalpur, a number of Members submitted two requisitions: one  

stated that due to lack of confidence in the Chairman and Vice-

Chairman, a ‘no confidence motion’ should be issued; and the  

second  requisition  stated  that,  since  the  election  of  the  

Committees for the second term was not as per the constitution,  

re-election  for  the  Committees  may  be  conducted.   They  

requested  the  State  Bar  Council  to  call  a  special  meeting  to  

consider these requisitions.  It is also recorded in these Minutes  

that  the  Chairman  and  Vice-Chairman  had  offered  their  

resignation,  subject  to  withdrawal  of  the  requisition  of  ‘no  

confidence motion’.  There was a long discussion, whereafter it  

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was resolved that the agenda of the special meeting was to be  

circulated on the same day i.e. 27th March, 2011 by registered  

post.  Copy of the resolution passed and the requisition motion  

of ‘no confidence’, would be circulated to all Hon’ble Members of  

the State Bar Council i.e. who were present and those who were  

not  present.  These  Minutes,  annexed  as  ‘P-10’  (colly)  to  the  

petition, read as under:

“Before  the  start  of  the  meeting  Hon’ble  Members  S/s  Vinod  Kumar  Bhardwaj,  Kuldeep  Bhargava,  Ghanshyam  Singh,  Prem  Singh  Bhadouria,  Shivendra  Upadhyay,  Champa  Lal  Yadav,  Dinesh  Narayan Pathak, Khalid Noor Fakhruddin,  Mrigendra  Singh  Baghel,  Jai  Prakash  Mishra,  Prabal  Pratap  Singh  Solanki,  Ku.  Rashmi  Ritu  Jain  and  B.K.  Upadhyay  submitted  two  requisition  motion  of  no  confidence.  In one of the requisition motion  of no confidence they have stated that they  have  no  confidence  in  Chairman,  Vice-  Chairman and Treasurer therefore, they are  moving no confidence motion against them.  In the second requisition motion they have  requested  that  since  the  election  of  the  Committees for the second term were not as  per  the  constitution  therefore  and  even  otherwise  they  want  re-election  for  the  Committees.   For  both  the  requisition  motion they have requested to call a special  meeting  and  consider  their  vote  of  no  confidence  against  Chairman,  Vice- Chairman  and  Treasurer.   For  another  

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requisition motion they  have requested to  call  a  special  meeting  and  consider  their  proposal.   When  the  meeting  was  started  both  the  requisition  motion  were  placed  before the Hon’ble Chairman.  Shri Ganga  Prasad  Tiwari,  Hon’ble  Treasurer,  Shri  Rameshwar  Neekhra,  Hon’ble  Chairman  and  Shri  A.M.  Trivedi,  Hon’ble  Vice- Chairman  stated  that  they  offer  their  resignation  subject  to  withdrawal  of  requisition of no confidence motion.  There  had been long discussion and members S/s  Vinod  Kumar  Bhardwaj,  Prem  Singh  Badhouria,  Champa  Lal  Yadav,  Pratap  Mehta,  Vijay  Kumar  Choudhary,  Ghanshyam  Singh,  Z.A.  Khan,  Kuldeep  Bhargava, Khalid Noor Fakhruddin, Rajesh  Pandey  Mrigendra  Singh  Bhagel,  Prabal  Pratap Singh Solanki expressed their views.  There had been divergent views in respect  of  withdrawal  of  no  confidence  motion as  well  as  conditional  resignation  offered  by  Hon’ble  Chairman,  Vice-Chairman  and  Treasurer.  As such it is resolved to hold a  special  meeting  on  16th April,  2011  at  Jabalpur from 12.30P.M. onwards in term  of Rule 122(A) & (B) of State Bar Council of  Madhya Pradesh Rules.  It is resolved that  agenda of the meeting be circulated today  itself  by  registered  post  and  copy  of  the  resolution  passed  along  with  requisition  motion of no confidence be circulated to all  Hon’ble  Members  of  the  Council  who  are  present  and  to  them  also  who  are  not  present today.”

6. It  appears from the record that in terms of the above  

minutes of the 15th Meeting of the General Body of the State Bar  

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Council held on 27th March, 2011, the notices of the 16th Meeting  

were also issued and circulated. The 16th Meeting of the General  

Body of the State Bar Council was decided to be held on 16th  

April, 2011 in the Meeting dated 27th March, 2011 itself.  

7. After  issuing  the  notice  in  accordance  with  the  M.P.  

Rules, a meeting of the State Bar Council was held on 16th April,  

2011.  At this meeting, the ‘no confidence motion’ was moved by  

13 members of the State Bar Council, in terms of Rule 122-A of  

the  M.P.  Rules,  against  both  the  Chairman  and  the  Vice-

Chairman.   The  parties  to  the  present  appeals  are  at  some  

variance  as  to  the  manner,  knowledge  and  the  decision  with  

which the meeting was closed.   The respondents  herein  have  

contended that in this meeting, there was actual discussion of  

the ‘no confidence motion’ moved by some of the members of the  

State Bar Council, which was a part of the formal agenda notice  

issued by the Secretary of the State Bar Council.  In the Minutes  

placed on record as Annexure R-16/6, it has been stated that  

item  No.2   of  the  agenda,  which  was  to  consider  the  

requisitioning of ‘no confidence motion’, was actually considered  

and the question arose as to whether Shri Rameshwar Neekhra,  

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the Chairman could still  preside over the meeting.  There was  

some discussion on that issue, whereafter the Chairman along  

with the Secretary is stated to have left the meeting on 16th April  

2011. The Advocate General had then presided over the meeting,  

and the ‘no confidence motion’ is stated to have been passed by  

majority of the members.  It will be useful to refer to the Minutes  

of the Meeting, held on 16th April, 2011 on this issue, which are  

as follows:

“Twelve of the Members have quit away the  meeting  on  the  ground  that  by  virtue  of  Rule  15  of  Chapter  V  no  matter  can  be  decided  and  reconsidered  for  a  period  of  three months unless the Council by 2/3 of  majority  of  the  Members  present  shall  permit.   The  affect  of  this  rule  is  also  required  to  be  considered  by  the  Hon’ble  High Court  and all  these issues are open  before the Hon’ble High Court.

So far as the presiding over of the  meeting is concerned, Rule 14 of Chapter V  says that in the absence of  any provision  the matter is to be decided by the majority.  That being so the  majority of the Members  present  have  decided  to  consider  the  No  Confidence  Motion  hence  this  meeting  is  now  being  presided  over  by  Advocate  General to whom the majority has decide to  preside.

Before  the  start  of  the  Meeting  Hon’ble Member Shri Prabal  Pratap Singh  

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Solanki  has  asked  Shri  Rameshwar  Neekhra,  Chairman  to  kindly  decide  that  the Members are ready to participate in the  No  Confidence  Motion  but  at  that  time  Hon’ble  Chairman  quit  the  Meeting  Hall  along with his followers and also took away  the Secretary saying that we are not going  to participate in the No Confidence Motion.

At this Juncture Shri Vinod Kumar  Bhardwaj,  Hon’ble  Member  State  Bar  Council of Madhya Pradesh requested Shri  R.D. Jain, Hon’ble Advocate General and Ex  Official Member who remained present from  the very beginning of the meeting and has  watched all the proceedings & discussions  which took place by the Hon’ble Members  Shri  Bhardwaj  requested  the  Hon’ble  Advocate General Shri R.D. Jain to preside  over the meeting which was seconded by all  the members present as following:

1.   S/Shri  Vinod Kumar Bhardwaj,  (2)  Kuldeep  Bhargava  (3)  Jai  Prakash  Mishra  (4)  Shivendra  Upadhyay  (5)  Ms.  Rashmi  Ritu  Jain  (6)  Dinesh  Narayan  Pathak  (7)  Prem  Singh  Bhadouria  (8)  Champa Lal  Yadav  (9)  Ghanshyam  Singh  (10)  Mrigendra  Singh Baghel (11) Prabal Pratap Singh  Solanki  (12)  Khalid Noor Fakhruddin  (13)  Shri  Ghanshyam Singh,  Hon’ble  Members.

Shri  R.D.  Jain,  Hon’ble  Adovate  General and Ex Officio Member stated that  the meeting need not be adjourned and the  Hon’ble Advocate General also read out the  part of the order of Hon’ble High Court in  WP No. 6372/11.

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Item No. 2 Resolution No. 258/GB/2011 The Item No. 2 of the agenda was read over.  The members are asked to give their  vote  for or against by raising their hands. Since  the majority  of  the  Members of  the  Council  have  supported  the  motion  by  raising hands it stands passed under Rule  122(A). The following Members are present in the  house as per below: S/Shri  (1)  Vinod Kumar  Bhardwaj  (2)  Jai  Prakash Mishra (3) Shivendra Upadhyay (4)  Ms. Rashmi Ritu Jain (5) Kuldeep Bhargava  (6) Dinesh Narayan Pathak (7) Prem Singh  Bhadouria  (8)  Champa  Lal  Yadav  (9)  Ghanshyam  Singh  (10)  Mrigendra  Singh  Baghel  (11)  Khalid  Noor  Fakhruddin  (12)  Prabal  Pratap  Singh  Solanki  (13)  Bal  Krishna  Upadhyay  have  supported  the  motion  and  hence  the  motion  stands  passed  by  a  majority  of  all  the  members  present and the voting under Rule 122-A.”

8. We  may  notice  that  two  sets  of  minutes  recorded  

differently for the same meeting have also been placed on record  

as Annexure P-10 (colly) and R-16/4 respectively.  It needs to be  

noticed that one set of minutes is only signed by the Secretary of  

the State Bar Council while the other is signed by the Secretary  

as well as by other members who passed the Resolution.

9. In the Minutes of the meeting dated 16th April, 2011, it  

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had been specifically recorded that the Resolution is not to be  

given  effect  to  in  view  of  the  orders  passed  by  the  Madhya  

Pradesh High Court on 15th April, 2011 in Writ Petition No. 6372  

of  2011.   However,  the  copy  of  the  proceeding  was  to  be  

communicated  to  the  Registrar  General  of  the  High  Court  of  

Madhya  Pradesh.   This  Resolution  had  been  signed  by  the  

members present.   

10. One  Pratap  Chandra  Mehta  had  filed  this  above-

mentioned Writ Petition No. 6372 of 2011, challenging the vires  

of Rules 121 and 122-A of the M.P. Rules.  These Rules related  

to  the  term  of,  and  procedure  for  passing  a  ‘no  confidence  

motion’ against the Chairman, Vice-Chairman and the Treasurer  

etc.  As already noticed, the Court had directed that the meeting  

of the State Bar Council could be held on 16th April, 2011, but  

the Resolution, if passed, would not be given effect to, till further  

orders.  The matter was ordered to be listed for hearing on 25th  

April, 2011.  In the meanwhile, another writ petition was also  

filed being Writ Petition No. 6628 of 2011 and the High Court in  

its  final  judgment  observed  that,  in  both  the  petitions  same  

relief,  on virtually the same grounds, had been claimed.  The  

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High Court had framed two basic points for decision:

1. Whether  Rule 122-A,  as framed under Section 15 of  the  

Advocates Act was, ultra vires; and

2. Whether the second Resolution, dated 16th April, 2011 was  

invalid?

11. Vide  its  detailed  judgment  dated  20th May,  2011,  the  

High Court decided both the issues against the petitioners and  

dismissed the  writ  petitions  while  vacating  the  interim order.  

The High Court held as under:

“22. On point (E) of para 16 above, it was  urged  from  the  petitioner’s  side  that  if  Section 15(1) of the Act is taken to be the  source  of  power  for  framing  Rules  prescribing  the  tenure  for  an  elected  chairman,  and  prescribing  curtailment  such  tenure  through  a  no-confidence  motion,  then  such  delegation  to  subordinate  legislation  must  be  struck  down  as  it  confers  wholly  unguided  and  thus unfettered powers  upon the delegate  subordinate legislative Authority.  In reply  it  could  not  be  shown  that  there  is  any  express  guidance  or  that  any  policy  guidance can be deciphered from all or any  of  the  provisions  of  the  Act  or  from  the  scheme of the Act, regarding what tenure, if  any, should be permitted, and if so under  what circumstances and by what process,  subject to what restrictions.

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23. A  totally  misplaced  reliance  was  placed upon the case of V. Sudheer  v.  Bar  Council  of  India  [(1993)  3  SCC  176] which merely says that  the State Bar Council under Section  24(1)(e)  of  the  Act  could  have  prescribed  pre-enrolment  training,  but the Bar Council of India could  not do so under Section 49 of the  Act.  ‘Hukam  Chand  v.  Union  of  India [(1972) 2 SCC 601] was also  unnecessarily  cited.   It  deals  with  power  to  frame  a  rule  with  retrospective  effect  and  has  no  relevance here.  Two decision of the  Supreme  Court  in  the  case  of  ‘Vasanlal  Maganbhai  vs.  State  of  Bombay  [AIR  1961  4(para)  and  in  the  case  of  ‘Agricultural  Market  Committee  vs.  Shalimar  Chemical  Works’  reported  in  [(1997)  5  SCC  516 (para 26)  were  cited from the  petitioners  side,  both  laying  down  the same principle, which needs to  be discussed.  The relevant part of  the latter (1997) decision reads “The  principle  which  therefore  emerges  out is that the essential legislative  function  consists  of  the  determination  of  the  legislative  policy  and  the  legislature  cannot  abdicate  essential  legislative  function  in  favour  of  another.  Power  to  make  subsidiary  legislation may be entrusted by the  legislature  to  another  body  of  its  choice  but  the  legislature  should  before  delegating,  enunciate  either  expressly  or  by  implication,  the  policy  and  the  principles  for  the  

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guidance  of  the  delegates”.  However, the words of the Supreme  Court  immediately   following  the  above  quoted  words  bring  out  the  implication.   They read “The effect  of  these  principles  is  that  the  delegate………cannot  widen  or  constrict the scope of the Act or the  policy  laid  down  thereunder.   It  cannot, in the garb of making rules,  legislate on the field covered by the  Act……”.  We do not find the rule in  question  to  be  widening  or  constricting the scope of either the  Act or any policy laid down under  the Act.  Nor is the Rule in question  legislating  upon  any  field  covered  by the Act.   To the same effect is  cited  the  case  of  ‘Addl.  District  Magistrate Vs. Sir Ra,’ (2005) 5 SCC  451 (para 16).

27. This brings us to the last point raised  by  the  petitioners.   The  decisions  of  the  Delhi  and  Kerala  High  Court  reported respectively in AIR 1975 Del  200  ‘Bar  Council  of  Delhi  Vs.  Bar  Council of Kerala Vs…..’ were read out  before us. It was pointed out that in  the Delhi case common law was used  to justify an implied power of removal  of the elected Chairman on the ground  that the statute had not changed the  common law.  The correctness of the  law  laid  down  in  that  decision  was  assailed  by  placing  reliance  on  AIR  1954 SC 210 ‘Jagan Nath Vs. Jaswant  Singh’, (1982) 1 SCC 691 ‘Jyoti Basu  Vs.  Debi  Ghoshal’,  (1984)1SCC  91  ‘Arun Kumar Bose Vs. Mohd. Furkan  

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Ansari ‘ and (1992) 4 SCC 80 ‘Mohan  Lal  Tripathi  Vs.  District  Magistrate’.  And  it  was  argued  that  concepts  familiar  to  common  law  and  equity  must remain strangers to Election Law  unless  statutorily  embodied.   In  respect  of  the  Kerala  High  Court  decision it was argued that the Court  fell  in  error  in  reading  the  power  of  removal  as  ‘incidental’.   It  is  not  necessary to go into these arguments  because  as  stated  above  the  Rule  regarding  removal  is  not  justified  under Section 15(2) but under Section  15(1)  of  the  Act,  which  is  of  wide  amplitude  and there  is  no  reason to  restrict  the  scope  of  Rule  making  power  under  Section  15(1)  so  as  to  exclude (i) prescription of tenure, or (ii)  removal  on  a  vote  of  no-confidence  from  the  ambit  of  the  Rule  making  power conferred by that provision.

28. Before moving on to the next issue, we  may  refer  to  a  decision  cited  by  the  Respondent  no.6  (of  W.P.  No.  6628).  In this interesting decision by a Full  Bench of  Gujarat  High  Court  in  the  case  of  ‘N.B.  Posia  Vs.  Director’  reported  in  AIR  2002  Guj  348  (PB)  (relevant paragraphs are 46 and 66 of  that law report) it has been held that  though there was no provision in the  Act or statutory Rules for removal of  an  elected  Chairman  of  the  Committee, yet (i)  the words “ceasing  to hold office for any reason” include  the removal by a no-confidence motion  and (ii) if a holder of an office if elected  by  a  simple  majority,  he  can  be  

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removed  (through  no-confidence  motion) by a simple majority (even in  absence  of  a  statutory  provision  for  such removal).  With utmost respect to  the  said  decision,  we  find  ourselves  totally unable to subscribe to either of  the two propositions therein.”

12. It is the legality and correctness of the above reasoning  

that has been questioned before us in the present appeals. We  

have  already  noticed  that  the  questions  which  arise  for  

consideration in the present cases are of some public importance  

and  are  matters  which  are  likely  to  arise  repeatedly  in  the  

conduct of affairs of the State Bar Councils.  Before we proceed  

to discuss the legal aspects of the propositions involved in the  

present cases, it will be more appropriate for the Court to notice  

the scheme of the Advocates Act and the relevant provisions of  

the laws and rules.

13. The Parliament of  India enacted the Advocates Act on  

19th May, 1961 to amend and consolidate the laws relating to  

legal practitioners and to provide for the constitution of State  

Bar Councils and an All India Bar Council.  The object of the  

Advocates Act is to constitute one common Bar for the whole  

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country and to provide machinery for its regulated functioning.  

Though the Advocates Act relates to legal practitioners in its pith  

and  substance,  it  is  an  enactment  dealing  with  the  

qualifications,  enrolment,  right  to  practise  and  discipline  of  

advocates.  It is not only implicit but clear from the provisions of  

the Advocates Act that once an advocate is enrolled by any State  

Bar  Council,  he  becomes  entitled  to  practise  in  all  courts  

including  the  Supreme  Court.  Therefore,  this  is  a  legislation  

which deals with persons entitled to practise before the Supreme  

Court.  In the case of O.N. Mohindroo vs. Bar Council of Delhi &  

Ors. [AIR 1968 SC 888] this Court held that:

“(10)  The  object  of  the  Act  is  thus  to  constitute one common Bar for  the whole  country  and  to  provide  machinery  for  its  regulated functioning. Since the Act sets up  one Bar, autonomous in its character, the  Bar Councils set up thereunder have been  entrusted  with  the  power  to  regulate  the  working of the profession and to prescribe  rules of professional conduct and etiquette,  and the power to punish those who commit  breach  of  such  rules.  The  power  of  punishment is entrusted to the disciplinary  committees ensuring a trial of an advocate  by  his  peers.  Section  35,  36  and  37  lay  down the procedure for trying complaints,  punishment  and  an  appeal  to  the  Bar  Council of India from the orders passed by  the  State  Bar  Councils.  As  an  additional  

17

remedy S. 38 provides a further appeal to  the Supreme Court. Though the Act relates  to  the  legal  practitioners,  in  its  pith  and  substance  it  is  an  enactment  which  concerns  itself  with  the  qualifications,  enrollment, right to practise and discipline  of  the  advocates.  As  provided  by  the  Act  once a person is enrolled by any one of the  State Bar Councils, he becomes entitled to  practise in all courts including the Supreme  Court.  As  aforesaid,  the  Act  creates  one  common Bar, all its members being of one  class,  namely,  advocates.  Since  all  those  who  have  been  enrolled  have  a  right  to  practise in the Supreme Court and the High  Courts,  the  Act  is  a  piece  of  legislation  which  deals  with  persons  entitled  to  practise before the Supreme Court and the  High  Courts.  Therefore  the  Act  must  be  held to fall within entries 77 and 78 of List  I.  As  the  power  of  legislation  relating  to  those  entitled  to  practise  in  the  Supreme  Court  and the  High Courts  is  carved  out  from  the  general  power  to  legislate  in  relation  to  legal  and  other  professions  in  entry 26 of List III, it is an error to say, as  the  High  Court  did,  that  the  Act  is  a  composite  legislation  partly  falling  under  entries 77 and 78 of List I and partly under  entry 26 of List III.”

14. If one looks into the statement of objects and reasons for  

enacting the Advocates Act, it becomes clear that the Act seeks  

to  implement  the  recommendations  of  the  All  India  Bar  

Committee, made in the year 1953, after taking into account the  

18

recommendations  of  the  Law  Commission  on  the  subject  of  

Reform  of  Judicial  Administration,  and  particularly,  the  

recommendations relating to the Bar and to legal education. It  

was,  therefore,  conceptualized  to  legislate  a  law  which  will  

govern  the  State  Councils  and  the  All  India  Bar  Councils  in  

different specified fields.  The main features of the Advocates Act  

were,  the  integration  of  the  Bar  into  a  single  class  of  legal  

practitioners  known  as  advocates;  the  establishment  of   a  

common roll of advocates, having a right to practise in any part  

of the country and in any court, including the Supreme Court;  

the prescription of uniform qualifications for the admission of  

persons  to  become  advocates;  the  division  of  advocates  into  

senior advocates and other advocates based on merit; and the  

creation  of  autonomous  Bar  Councils,  one  for  the  whole  of  

India, i.e, the establishment of an All India Bar Council and one  

for each State.  We may examine some of the relevant provisions  

of the Advocates Act.

15. Section 2(a) of the Advocates Act defines an ‘advocate’ to  

mean an advocate entered in any roll under the provisions of the  

Advocates Act.

19

‘Bar Council’ means a Bar Council constituted under the  

Advocates Act.

On the other hand, the ‘Bar Council of India’ means the  

Bar  Council  constituted under  Section 4 for  the  territories  to  

which the Advocates Act extends.

The ‘State Bar Council’  means a Bar Council  constituted  

under Section 3 of the Advocates Act.

The  expression  ‘prescribed  for  the  purposes  of  this  Act’  

means prescribed by the rules made under the Advocates Act.

16. The constitution of State Bar Council is provided under  

Section 3 of the Advocates  Act and as would be evident,  this  

Section  has  been  subjected  to  numerous  amendments  made  

from time to time.  The constitution of the State Bar Council has  

been spelt out in Section 3(2); and Section 3(3) of the Advocates  

Act which provides that there shall be a Chairman and a Vice-

Chairman of each State Bar Council, elected by the members, in  

such manner as may be prescribed.  The Advocates Act,  inter  

20

alia, imposes certain restrictions and the deeming provisions in  

terms of Sub-sections (3) and (3A) of Section 3 of the Advocates  

Act, that  every person holding office as Chairman or as Vice-

Chairman  of  any  State  Bar  Council  immediately  before  the  

commencement of the Advocates (Amendment) Act, 1977, shall,  

on such commencement, cease to hold office as the Chairman or  

Vice-Chairman,  as  the  case  may be,  but,  would  continue to  

carry on the duties of his office until  the  persons elected as  

Chairman or Vice-Chairman, as the case may be, in accordance  

with the provisions of the Advocates Act, assume charge.

17. Section  3(4)  of  the  Advocates  Act  requires  that  an  

advocate shall be disqualified from voting at an election under  

sub-section (2) or for being chosen as a member of the State Bar  

Council,  unless  he  possesses  such  qualifications  or  satisfies  

such conditions as are prescribed in this behalf.

18. All elections to the State Bar Council are to be held in  

accordance  with  the  provisions  of  the  Act.   Similarly,  under  

Section 4 of the Advocates Act, Bar Council of India shall consist  

of the persons stated under the Advocates Act.  The provisions of  

21

the Advocates Act dealing with State Bar Councils under Section  

3, are substantially similar to the provisions with respect to the  

Bar Council of India, under Section 4 of the Advocates Act. Every  

Bar  Council  shall  be  a  body  corporate  having  perpetual  

succession and a common seal, with power to acquire and hold  

property and to sue and be sued in its own name.  

19. The  functions  of  the  State  Bar  Council  and  the  Bar  

Council of India are prescribed under Sections 6 and 7 of the  

Advocates Act.  Besides admitting persons as advocates on its  

rolls [Section 6(a)] and maintaining such rolls [Section 6(b)], it is  

for  the  State  Bar  Councils  to  provide  for  the  elections  of  its  

members  [Sections  6(g)]  and  to  perform  all  other  functions  

conferred on it by or under this Act [Section 6(h)]. Section 6(i) of  

the Advocates Act allows the State Bar Councils to do all other  

things necessary for discharging their functions.

20. Functions  of  the  Bar  Council  of  India  are  of  a  wider  

spectrum than that of the State Bar Council.   Bar Council  of  

India  has to  lay  down standards of  professional  conduct  and  

etiquette  for  the  advocates,  the  procedure  to  be  followed  in  

22

Disciplinary Committees and to safeguard the rights, privileges  

and interest of advocates.

21. The Bar Council of India may, under Section 7(k) of the  

Advocates  Act,  provide  for  the  election  of  its  members.   This  

provision  is  identical  to  Section  6(g)  of  the  Advocates  Act.  

Similarly, Sections 6(h) and 6(i)  are equivalent to Sections 7(l)  

and 7(m) of the Advocates Act.

22. The election to the Bar Councils is for a specified tenure,  

which is stated under Section 8 of the Advocates Act.  The term  

of the office of an elected member of a State Bar Council, other  

than an elected member thereof referred to in Section 54, shall  

be for five years from the date of publication of the results.  The  

Bar Council of India has been vested with the power of extending  

this period, for reasons to be recorded, and only in the event of  

the State Bar Council  failing to provide for  the election of  its  

members  before  the  expiry  of  its  terms.   This  power  is  also  

regulated by an upper limitation of 6 months in such grant of  

extension.

23. Section  14  of  the  Advocates  Act  mandates  that  no  

23

election of a member to a Bar Council shall be called in question  

on the ground merely that due notice thereof has not been given  

to any person entitled to vote at the elections, if notice of the  

date  has,  not  less  than  thirty  days  before  that  date,  been  

published in the Official Gazette.

24. Section  15  of  the  Advocates  Act  is  one  of  the  most  

relevant provisions, which needs to be examined by this Court,  

as according to the  contention raised by the appellants,  Rule  

122-A is ultra vires Section 15 of the Advocates Act.  Section 15  

of  the Advocates Act gives power to the Bar Council  to make  

rules to carry out the purposes of ‘this Chapter’.  ‘This Chapter’  

means Chapter II of the Advocates Act.  Inter alia, this Chapter  

deals  with  constitution,  election  and  functions  of  the  Bar  

Councils. It will be useful to refer to the relevant parts of the  

provisions  of  Section  15  of  Chapter  II  of  the  Advocates  Act,  

which are as under:

“15.  Power  to  make  rules,-  (1)  A  Bar  Council  may make rules  to  carry  out  the  purposes of this chapter.

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

24

a. (Note:- Subs. by Act 60 of 1973, sec.12)  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  results  of  elections shall be published]; b.            xxx                        xxx c. (Note:- Clause (c) ins. by Act 38 of 1977,  sec.  5)  the  manner  of  election  of  the  Chairman  and  the  Vice-Chairman  of  the  Bar council]; d.          xxx                        xxx e.          xxx                        xxx f. the filling of casual vacancies in the Bar  Council ; g.  the  power  and duties  of  the  Chairman  and the Vice- Chairman of the bar Council ; (ga) .            xxx                        xxx (gb) .            xxx                        xxx h.         xxx                        xxx i.  the  constitution  and  functions  of  any  committee of the Bar council and the term  of office of members of any such committee;  (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.”

25. Chapter III of the Advocates Act deals with ‘Admission  

and Enrolment of Advocates’.

Section 28 of the Advocates Act empowers the State Bar  

Councils  to  make  rules  to  carry  out  the  purposes  of  this  

25

Chapter, i.e., Chapter III.

26. Section 49 of the Advocates Act appears under Chapter  

VI, i.e., ‘Miscellaneous’ and empowers the Bar Council of India to  

make  rules  for  discharging  its  functions  under  this  Act  and  

besides providing for specific powers, the Bar Council of India  

may prescribe rules under the residuary provisions of Section  

49(1)(j) of the Advocates Act, whereby the Council is empowered  

to  make  rules  in  regard  to  any  other  matter  which  may  be  

prescribed.  However, the rules framed would not come into force  

or  take  effect  unless  they  have  been  approved  by  the  Chief  

Justice of India and if the rules relate to Section 49(1)(e) of the  

Advocates Act they will  not take effect unless they have been  

approved by the Central Government.  Under Section 49A of the  

Advocates  Act,  the  Central  Government  is  vested  with  the  

general power of making rules and these rules could be framed  

for the whole of India or for all or any of the Bar councils.  In the  

event  of  conflicts  between  the  rules  framed  by  the  Central  

Government  and  the  Bar  Councils,  the  rules  framed  by  the  

Central Government shall have precedence in terms of Section  

49A(4) of the Advocates Act.  We need not elaborate upon other  

26

provisions of the Advocates Act at this stage.

27. Now  let  us  notice  the  relevant  provisions  in  the  Bar  

Council of India Rules (in short, the ‘Rules’) which were enacted  

in exercise of its rule making powers under the Advocates Act.  

This power of the Bar Council of India originates from clauses  

(c), (d), (e), (f) and (g) of Sub-section (2) of Section 15 read with  

Sections 4 and 10B of the Advocates Act.   

28. Chapter I of Part II of the Rules deals with the matters  

relating  to  the  Bar  Council  of  India  and  particularly  to  the  

election of members of the Council.  The election of the members  

of the Bar Council of India has to be conducted in terms of Rules  

1 to 10 of the Rules.  Rule 11 of the Rules makes it mandatory  

that a member of the Bar Council  of  India,  who is elected as  

Chairman or Vice-Chairman or member of any Committee of the  

Council,  shall  cease to hold office as such Chairman or Vice-

Chairman or member of Committee, on the expiry of his term as  

a member of the Bar Council of India.  A restriction is further  

sought to be placed upon the right of the person to resign.  A  

member can resign from the membership of the Bar Council of  

27

India only on the grounds which are genuine and not for the  

purposes of sharing of terms fixed by the statute.  Under Rule  

12(2)  of  the  Rules,  the  Chairman or  the  Vice-Chairman shall  

hold the office for a period of two years or until his term of office  

as  member  of  the  Bar  Council  of  India  ceases  whichever  is  

earlier. The election for the post of Chairman and Vice-Chairman  

has to be held at the meeting of the Bar Council of India and in  

accordance with the procedure prescribed under Rule 12 of the  

Rules.   The  Chairman  and  the  Vice-Chairman  perform  the  

functions of exercising general control and supervision over the  

affairs of the Bar Council of India, save as otherwise provided in  

these Rules and subject to the resolutions of the Bar Council of  

India.   Rule  22  of  the  Rules  has  significant  bearing  on  the  

discussion  in  the  present  cases.   This  Rule  relates  to  ‘no  

confidence motion’ against the Chairman, the Vice-Chairman, or  

any  other  office  bearer,  and  its  consequences.   The  Rule  22  

reads as under:

“On  a  motion  of  “No  confidence”  being  passed  by  Bar  Council  of  India  by  a  Resolution passed  by  majority  of  not  less  than  3/4th of  the  Members  present  and  voting  and  such  majority  passing  “No  Confidence  Motion”  is  more  than 2/3rd of  

28

the total  number of  Members constituting  the  Bar  Council  for  the  time  being,  the  Chairman  or  Vice-Chairman  or  any  other  office  bearer  against  whom the  motion  is  passed shall cease to hold office forthwith.

Notwithstanding  anything  contained  in  the  Act  or  the  Rules  made  thereon,  the  Chairman  or  Vice-Chairman  shall not preside over the meeting in which  motion  of  “No  Confidence”  is  discussed  against  him  and  such  meeting  shall  be  convened on a notice of at least one month.  The Chairman or the Vice-Chairman shall  have the right to vote, speak or take part in  the proceeding of the meeting.”

29. The Committees excluding the Disciplinary Committees  

are to be constituted by the Bar Council of India under Chapter  

II.  The framers of the Rules have taken a precaution that the  

decisions  of  the  Bar  Council  of  India  should  not  be  changed  

without reason and in violation of the relevant provisions.  Rule  

9 of Chapter II of the Rules provides that the decision on any  

matter shall be by majority and, in the case of equality of votes,  

the Chairman of the meeting shall have a second or a casting  

vote.   Rule  10  of  the  Rules  puts  a  restriction  on  change  of  

decisions.  According to this Rule, no matter once decided, shall  

be re-considered for a period of 3 months unless the Bar Council  

29

of  India  by  a  two-third  majority  of  the  members  present  so  

permits.  Under Rule 12 of the same Chapter, in the absence of  

the Chairman or the Vice-Chairman member at any meeting, a  

member chosen by the members of the Council shall preside at  

the meeting.

30. We  have  noticed  these  Rules  to  make  a  comparative  

study  of  the  relevant  M.P.  Rules,  to  examine  their  impact  in  

correct  perspective.   In  exercise  of  the  powers  conferred  by  

Sections 15(1), 15(2), 28(1) and 28(2), read with Chapter II and  

other  provisions  of  the  Advocates  Act,  the  State  Bar  Council,  

with the approval of the Bar Council of India as required under  

Sections 15(3) and 28(3) of the Advocates Act, has framed the  

M.P.  Rules.   The  M.P.  Rules  deal  with  different  facets  of  

functioning of the State Bar Council.  It is not necessary for us  

to deal with all the aspects of the rules governing the functioning  

of the State Bar Council.  The State Bar Council shall elect the  

members  of  each Committee  in  its  Meeting  as  per  Rule  1  of  

Chapter VI.  In terms of Rule 3 of the same Chapter, the election  

to the Committee shall  be conducted by the Chairman of  the  

State Bar Council and in case the Chairman of the State Bar  

30

Council  is  a  candidate  for  being  elected as  a  member  of  any  

Committee,  the State Bar Council,  before proceeding with the  

elections  to  such  Committee,  shall  appoint  any  one  of  its  

members who is not a candidate for election to such committee,  

to conduct the election to the said Committee and to declare the  

results under his signature.

31. Under  Chapter  XVI,  Rule  110 of  the  M.P.  Rules,  it  is  

obligatory on the part of the Chairman of the State Bar Council  

to call a meeting, which he shall preside over, when he receives a  

requisition for doing so, signed by not less than 3 members of  

the State Bar Council.  The Chairman has to exercise general  

control  and supervision over  all  the  matters  of  the  State  Bar  

Council.

32. The State Bar Council consists of 26 elected members  

and the Advocate General of the State. Rule 118 is the first rule  

that falls under Chapter XVIII and it requires that a State Bar  

Council  shall  elect  a  Chairman  and  a  Vice-Chairman  from  

amongst its members for two years.  Rule 118 of the M.P. Rules  

came to be amended and, as per the amended Rule, the State  

31

Bar Council has to elect a Chairman and a Vice-Chairman from  

amongst its members for 2½ years vide Resolution No. 631 of  

1998.

33. Rule 122-A of the M.P. Rules was amended by the State  

Bar Council sometime in the year 1975 and vide its Resolution  

dated 27th April, 1975, the amendments and newly added rules  

were sent for approval of the Bar Council of India.  Again in its  

Resolution dated 9th March,  1980,  the  State  Bar Council  had  

recorded  that  to  these  amendments/newly  added  Rules,  

approval of the Bar Council of India had been obtained.  It needs  

to be noticed that all the members of the State Bar Council had  

attended  the  meeting  and  were  signatory  to  this  Resolution.  

However, Rule 121, which was amended vide Resolution No. 631  

of 1998 dated 24th January, 1998 is also stated to have received  

approval from the Bar Council of India.  However, no notification  

in that regard is stated to have been issued as yet.  There is  

some controversy  whether  Rule  121 under  the  same Chapter  

was amended and whether it attained the approval of the Bar  

Council of India.  This question is not very material for us to  

examine inasmuch as under both Rules 118 and 121, the period  

32

of term of the elected Chairman and the Vice-Chairman is stated  

to be two years or till  they cease to be members whichever is  

earlier.  Besides the above facts, Section 15(3) of the Advocates  

Act  requires  that  the  rules  framed  by  the  State  Bar  Council  

should be approved by the Bar  Council  of  India.   It  nowhere  

requires issuance of any notification which, in some cases, can  

be a part of legislative provisions.  In view of the above factual  

matrix, it has to be held that this controversy does not require  

any further consideration by the Court.

34. The provisions with which we are primarily concerned in  

the  present  case  are  contained  in  Chapter  XVIII  of  the  M.P.  

Rules.  They read as under:

“118.   The  Bar  Council  shall  elect  a  Chairman  and  a  Vice-Chairman  from  amongst its members for two years.

119.   Any  candidate  for  the  office  of  Chairman  or  Vice-Chairman  shall  be  proposed by one member and seconded by  another member.

120.   The  election  of  Chairman  or  Vice- Chairman unless unanimously agreed upon  by all the members present at the meeting,  shall be by show of the hands.  In case of  the  tie,  the  election  shall  be  decided  by  drawing of lots.

33

121.   The  Chairman,  the  Vice-Chairman  and the Treasurer of the Council, shall hold  office for a period of two years or till  they  cease to be members whichever is earlier.

122-A The Chairman, Vice-Chairman or the  Treasurer of the Council could be removed  by  a  vote  of  no  confidence  passed  by  majority  of  the  members,  present  and  voting in a meeting of the Council especially  called  for  the  purpose,  provided  that  at  least 7 members of the Council have signed  the  requisition  for  holding  such a  special  meeting, and such meeting shall be called  within a period of 21 days from the date of  receipt of the requisition by the secretary.

122-B That the Bar Council by a resolution  may  reconstitute  any  of  its  committee  elected  earlier  by  it,  provided  that  the  requisition  for  the  purpose  signed  by  at  least 7 members of the Council is received  by  the  Secretary,  and  such  a  special  meeting shall be called within 21 days from  the date of receipt of the requisition by the  Secretary.”

35. Rule 122-A of the above Rules deals with the removal of  

the Chairman, Vice-Chairman or the Treasurer of the State Bar  

Council by moving a ‘no confidence motion’.  Existence of such a  

provision is not exceptional, but is a common provision in any  

electoral  system.   Our  parliamentary  system  is  the  most  

significant  example  of  a  democratic  process,  where  the  ‘no  

34

confidence motion’ under Article 75(3) of the Constitution is an  

integral part of the process of election.  Similarly, under Rule 22  

of  the  Rules,  a  provision  has  been  made  for  moving  a  ‘no  

confidence  motion’  and  where  such  motion  is  passed  by  a  

majority of not less than three-fourth of the members, present  

and voting, and such majority passing the ‘no confidence motion’  

is  more  than  two-third  of  the  total  number  of  members  

constituting the State Bar Council for the time being, it results  

in  the  removal  of  the  Chairman,  Vice-Chairman or  any other  

office  bearer.   Upon passing of  such a resolution,  the person  

shall  cease  to  hold  the  office  forthwith.   Every  democratic  

process  is  based  upon  the  freedom  to  elect  and  freedom  to  

remove, in accordance with law.  Rule 122-A of the M.P. Rules  

contemplates moving of a ‘no confidence motion’ and upon such  

motion being passed by majority of the members, present and  

voting, the office bearer against whom such a motion is moved  

shall be liable to be removed from such office.  For successful  

application of Rule 122-A, the law requires the following minimal  

conditions to be satisfied:  

1. At least 7 members have signed the requisition calling for a  

35

meeting of the Council;

2. Such meeting shall be called within 21 days from the date  

of receipt of requisition by the Secretary.

3. Such ‘no confidence motion’ has to be passed by a majority  

of the members present and voting, in the meeting of the  

Council, especially called for this purpose.

36. Once the above conditions are satisfied ‘no confidence  

motion’  can be passed and upon passing of such motion, the  

person is liable to be removed from the office which he held in  

the State Bar Council prior to the holding of such meeting.  The  

spirit behind this provision is that where a person is elected by  

following a process of election to the post of an office in the State  

Bar Council,  he could be removed by following the prescribed  

procedure in accordance with the Rules.

37. This Court in the case of  Mohan Lal Tripathi v. District   

Magistrate [(1992)  4  SCC 80],  examined  the  validity  of  a  ‘no  

confidence motion’  passed by the Board on 28th March,  1990  

under Section 87-A of  the U.P.  Municipalities  Act against the  

President  who  was  directly  elected  by  the  electorate  under  

Section 43(2) of the Act.  The basic argument raised was that he  

36

was  sought  to  be  removed  or  recalled  by  the  other  elected  

members, which was a smaller and different body than the one  

that had elected him and, thus, was violative of the democratic  

mandate.   While  rejecting  this  argument,  the  Court  held  as  

under:

“2. Democracy  is  a  concept,  a  political  philosophy,  an  ideal  practised  by  many  nations culturally advanced and politically  mature  by  resorting  to  governance  by  representatives  of  the  people  elected  directly  or  indirectly.  But  electing  representatives  to  govern  is  neither  a  ‘fundamental  right’  nor  a  ‘common  law  right’  but  a  special  right  created  by  the  statutes,  or  a  ‘political  right’  or  ‘privilege’  and  not  a  ‘natural’,  ‘absolute’  or  ‘vested  right’.  ‘Concepts  familiar  to  common  law  and  equity  must  remain  strangers  to  Election Law unless statutorily  embodied.’  Right to remove an elected representative,  too, must stem out of the statute as ‘in the  absence of a constitutional restriction it is  within the power of a legislature to enact a  law for the recall of officers’. Its existence or  validity can be decided on the provision of  the Act and not, as a matter of policy. In  the American Political Dictionary the right of  recall  is  defined  as,  ‘a  provision  enabling  voters  to  remove  an  elected  official  from  office  before  his  or  her  term  expired’.  American  Jurisprudence explains  it  thus,  ‘Recall is a procedure by which an elected  officer may be removed at any time during  his term or after a specified time by vote of  the  people  at  an  election  called  for  such  

37

purpose by a specified number of citizens’.  It  was urged that  ‘recall  gives  dissatisfied  electors  the  right  to  propose  between  elections  that  their  representatives  be  removed and replaced by another more in  accordance with popular will’ therefore the  appellant could have been recalled by the  same body, namely, the people who elected  him.  Urged  Shri  Sunil  Gupta,  learned  counsel, that since, ‘A referendum involves  a  decision  by  the  electorate  without  the  intermediary  of  representatives  and,  therefore, exhibits form of direct democracy’  the removal of the appellant by a vote of no- confidence by the Board which did not elect  him  was  subversive  of  basic  concept  of  democracy.  Academically  the  submission  appeared attractive but applied as a matter  of law it appears to have little merit. None  of the political theorists, on whom reliance  was placed, have gone to suggest that an  elected representative can be recalled, only,  by  the  persons  or  body that  elected him.  Recall  expresses  the  idea  that  a  “public  officer  is  indeed  a  ‘servant  of  the  people’  and can therefore be dismissed by them”.  In  modern  political  set  up  direct  popular  check by recall of elected representative has  been  universally  acknowledged  in  any  civilised system. Efficacy of  such a device  can hardly admit of any doubt. But how it  should  be  initiated,  what  should  be  the  procedure,  who  should  exercise  it  within  ambit of constitutionally permissible limits  falls  in  the  domain  of  legislative  power.  ‘Under  a  constitutional  provision  authorizing  municipalities  of  a  certain  population to frame a charter for their own  government consistent with and subject to  the Constitution and laws of the State, and  

38

a  statutory  provision  that  in  certain  municipalities  the  Mayor  and members of  the  municipal  council  shall  be  elected  at  the time, in the manner, and for the term  prescribed  in  the  charter,  a  municipal  corporation has authority to enact a recall  provision’.  Therefore,  the  validity  or  otherwise  of  a  no-confidence  motion  for  removal  of  a  President,  would  have  to  be  examined  on  applicability  of  statutory  provision  and not  on  political  philosophy.  The Municipality Act provides in detail the  provisions  for  election  of  President,  his  qualification,  resignation,  removal  etc.  Constitutional  validity  of  these  provisions  was not challenged, and rightly, as they do  not militate, either, against the concept of  democracy  or  the  method  of  electing  or  removing the representatives. The recall of  an elected representative therefore, so long  it  is  in  accordance  with  law  cannot  be  assailed on abstract notions of democracy.

7. Value  of  ‘historical  evolution’  of  a  provision or ‘reference to what preceded the  enactment’ as  an  external  aid  to  understand and appreciate the meaning of  a provision, its ambit or expanse has been  judicially  recognised  and  textually  recommended. But this aid to construe any  provision  which  is  ‘extremely  hazardous’  should  be  resorted  to,  only,  if  any  doubt  arises about the scope of the section or it is  found  to  be  ‘sufficiently  difficult  and  ambiguous to justify the construction of its  evaluation in the statute book as a proper  and logical course and secondly the object  of  the  instant  enquiry’  should  be  ‘to  ascertain the true meaning of that part of  the  section  which  remains  as  it  was  and  

39

which there is no ground for thinking the  substitution of a new proviso was intended  to alter’. But ‘considerations stemming from  legislative  history  must  not,  however,  override  the  plain  words  of  a  statute’.  Neither  Section  47-A  nor  87-A  on  plain  reading  suffer  from  such  defect  as  may  necessitate  ascertaining  their  intent  and  purpose  from the  earlier  sections  as  they  stood.  That  shall  be  clear  when  relevant  part of the sections are extracted. But even  otherwise  there  appears  no  merit  in  the  submission and for that purpose it appears  appropriate to narrate, in brief, the history  of these sections. When Act 2 of 1916 was  enacted it provided for election of Chairman  of the Board by a special resolution passed  by the members under Section 43(1) of the  Act.  Sub-section (2)  provided for  ex-officio  nomination  by  the  Government  of  the  Chairman in  some municipalities.  Section  48 empowered the Government to remove a  Chairman after hearing and giving reasons.  It did not contain any provision for removal  of a Chairman by a vote of no-confidence.  Ten years later Act 2 of 1926 brought about  a  very  significant  change  in  the  Act  by  introducing  Section  47-A  and  conferring  power of removal of Chairman, other than  ex-officio, by the members of the Board by  expressing a vote of no-confidence against  him. Section 48, too, was amended and a  Chairman who failed to resign after a vote  of no-confidence was liable to be removed,  by the State Government. Thus it was as far  back as 1926 that removal of the Chairman  by elected representative found its way in  the  Act.  In  1933  by  Act  No.  9  another  important  Section  87-A  was  added  providing  for  tabling  of  no-confidence  

40

motion  against  the  Chairman.  In  1942  Section 47-A was omitted as the provision  for resigning by the Chairman was provided  for in Section 87-A itself. And hearing of the  Chairman  by  State  Government  under  Section 48 before removal  in consequence  of vote of no-confidence was deleted. Act 7  of  1949  introduced  major  changes  in  Sections 43 and 47-A,  of  the Act.  Section  43 was substituted altogether and, it for the  first  time,  provided  for  election  of  the  Chairman simultaneously with members of  the Board by the electorate directly. Section  47-A which had been omitted by Act 13 of  1942  was  reintroduced  and  a  Chairman  against whom a vote of no-confidence was  passed  was  required  to  resign.  In  the  alternative he was permitted to recommend  to State  Government that the Board itself  may  be  dissolved.  And  if  the  State  Government agreed with the President then  it  was  the  Board  which  was  to  go.  The  intention  apparently  was to  keep a  check  on  the  power  of  Board,  too,  while  taking  action  against  the  Chairman  as  if  it  was  found that exercise of power by the Board  was  arbitrary  and  President  was  being  removed  for  extraneous  reasons  then  the  Government  could  interfere  and  direct  dissolution  of  the  Board  itself.  Both  the  sections were amended once again in 1955  and  by  Act  1  the  election  of  Chairman,  known now as President, by the members  of  the  Board  was  reintroduced,  as,  ‘The  experience  of  the  working  of  the  Boards  since their constitution at the last general  elections  has  generally  been  one  of  continuing  conflict  between  Presidents  elected by the popular vote on the one hand  and  the  members  on the  other.  This  has  

41

greatly  prejudiced  the  normal  working  of  the  Boards’.  Section  47-A  of  the  Act  was  substituted  completely  and  it  is  in  this  shape  that  the  section  stands  today.  Section 43(1) was amended, once again, by  Act 47 of 1976 and election of President by  electorate  was  revived.  In  1982  another  change was made in this section by Act 17  and election of President by the members of  Board was confined to municipalities other  than a city declared as such under Section  3 having a population of less than one lakh  inhabitants.  Sub-section  (2)  provided  for  election of President of Board of such a City  Municipality  by  the  electorate  directly.  From 1982  onwards,  therefore,  the  direct  election  of  President  by  the  electorate  is  confined to smaller Municipalities.

10. Even the strained  construction of  the  proviso  does  not  result  in  coming  to  the  conclusion  that  there  was  a  legislative  omission  of  not  providing  for  removal,  by  vote of no-confidence of a President elected  by the electors. Merely because the proviso  to  Section  47-A  prevents  a  Board  from  holding  election  of  the  President  in  those  cases where he had made representation to  the Government to supersede the Board, it  cannot  be  stretched  to  mean  that  sub- section (a) of Section 47-A cannot apply to a  President elected under Section 43(2). The  proviso is intended as check to prevent the  Board  from  taking  any  step  which  may  render  the  representation  made  by  the  President infructuous as if the Government  accepts  the  representation  then  it  is  the  Board under sub-section (3)  which stands  dissolved  and  not  the  President.  That  situation  may  not  arise  in  election  of  a  

42

President under Section 43(2) as election of  President  by  electors  cannot  take  place  immediately,  therefore,  there is  no danger  involved,  of  putting  at  naught  the  representation  made  by  the  President  to  State  Government,  as  is  in  the  case  of  Section  43(1).  The  proviso  cannot  be  so  construed  as  to  nullify  the  operation  of  Section 47 2DA to  a President  elected  by  electorate.  A  proviso  or  an  exception  is  incapable  of  controlling  the  operation  of  principal  clause.  Result  of  such  construction would lead to absurdity as if  Section  47-A  is  held  not  to  apply  to  President  elected  under  Section  43(2)  he  will  not be liable to resign even though a  vote  of  no-confidence  has  been  passed  against him under Section 87-A and it has  been communicated to him. Merely because  the  proviso  cannot  apply  to  one  of  the  situations that may arise cannot be reason  to hold that Section 47-A(1)(a) did not apply  to President elected by the electorate. ‘If the  language of the enacted part of the statute  does not contain provision which are said  to  occur  on  it,  you  cannot  derive  those  provisions  by  implication  from a  proviso’.  Proviso  could  be  used  for  adopting  a  construction  as  suggested  either  when  there was some doubt about the scope of  the  section  or  there  would  have  been  at  least  some  reasonable  doubt  about  accepting one or the other construction as  became necessary in  Jennings v.  Kelly on  which reliance  was placed by  the learned  counsel for appellant.

38. ‘Election’  is  an  expression  of  wide  connotation  which  

embraces the whole procedure of election and is not confined to  43

final result thereof.  Rejection or acceptance of nomination paper  

is  included  in  this  term.   This  Court,  in  the  case  of  N.P.  

Ponnuswami  v.  returning  Officer,  Namakkal  Constituency [AIR  

(39) 1952 SC 64] held that the word ‘election’ has been used in  

Part XV of the Constitution in a broad sense, that is to say, to  

connote the entire procedure to be followed to return a candidate  

to the legislature and even the expression ‘conduct of elections’  

in Article 324 specifically points to this  wide meaning and the  

meaning which can be read consistently  into other  provisions  

occurring in the Constitution. In this case, the election process  

as contemplated under the relevant laws is that the members of  

a State Bar Council are elected by the electorate of advocates on  

the rolls of the State Bar Council from amongst the electorate  

itself.  The  elected  members  then  elect  a  Chairman,  a  Vice-

Chairman and the Treasurer of the State Bar Council as well as  

constitute various committees for carrying out different purposes  

under the provisions of the Advocates Act.   

39. In other words, the body which elects the Chairman or  

Vice-Chairman  of  a  State  Bar  Council  always  consists  of  

members  elected  to  that  Council.   The  democratic  principles  44

would  require  that  a  person  who  attains  the  position  of  a  

Chairman  or  Vice-Chairman,  as  the  case  may  be,  could  be  

removed by the same electorate or smaller body which elected  

them to  that  position  by  taking  recourse  to  a  ‘no  confidence  

motion’ and in accordance with the Rules.  The body that elects  

a person to such a position would and ought to have the right to  

oust him/her from that post, in the event the majority members  

of the body do not support the said person at that time.   Even if,  

for  the  sake  of  argument,  it  is  taken  that  this  may  not  be  

generally true, the provisions of Rule 122-A of the M.P. Rules  

make it clear, beyond doubt, that a ‘no confidence motion’ can  

be brought against the elected Chairman provided the conditions  

stated in the said Rules are satisfied.  As already noticed, the  

thrust of the challenge to the  vires of Rule 122-A is primarily  

that Section 15 of the Advocates Act does not contemplate the  

framing of such a Rule by the State Bar Councils.  Rule 122-A is  

stated to be ultra vires Section 15 of the Advocates Act and, it is  

argued, that the introduction of such provision suffers from the  

vice  of  excessive  delegation.  Section  15  of  the  Advocates  Act  

empowers the State Bar Councils to frame Rules to carry out the  

45

purposes  of  this  Chapter.  ‘This  Chapter’  obviously  means  

Chapter II of the Act.  Let us examine what Chapter II contains.  

Section 3 requires the constitution of the State Bar Councils.  

Section 3(3) contemplates that there shall be a Chairman and a  

Vice-Chairman of each State Bar Council  elected by the State  

Bar Council in such manner as may be prescribed.  As already  

noticed above, another important provision is Section 6 of the  

Act, which details the functions to be performed by the State Bar  

Councils.  Inter alia,  the functions to be performed by the State  

Bar Councils include, under Sections 6(1)(d),  to safeguard the  

rights,  privileges  and  interests  of  the  advocates  on  its  roll.  

Under  Section  6(1)(g),  the  function  of  the  Bar  Council  is  to  

provide  for  the  election  of  its  members  and  under  Sections  

6(1)(h) and 6(1)(i), the State Bar Council has to perform all other  

functions conferred on it by or under this Act and to do all other  

things necessary for discharging the aforesaid functions.  In our  

view, Sections 6(1)(h) and 6(1)(i) have to be read and interpreted  

conjointly.   We see no reason why the  expression ‘manner  of  

election  of  its  members’  in  Section  6(1)(g)  should  be  given  a  

restricted meaning, particularly in light of Sections 6(1)(h) and  

46

6(1)(i).  The responsibility of the State Bar Councils to perform  

functions as per the legislative mandate contained in Section 6  

of the Act is of a very wide connotation and scope.  No purpose  

would be achieved by giving it a restricted meaning or by a strict  

interpretation.   The  State  Bar  Council  has  to  be  given  wide  

jurisdiction  to  frame  rules  so  as  to  perform  its  functions  

diligently  and  perfectly  and  to  do  all  things  necessary  for  

discharging its functions under the Act.  The term of office of the  

members  of  the  State  Bar  Council  is  also  prescribed  under  

Chapter II, which shall be five years from the date of publication  

of the result of the election.  On failure to provide for election,  

the Bar Council of India has to constitute a special committee to  

do  so  instead.   Section  15(2)  then  provides  that  without  

prejudice to the generality of the foregoing powers, rules may be  

framed to provide for the preparation of electoral rolls and the  

manner  in  which  the  result  shall  be  published.   In  terms of  

Section 15(2)(c), the manner of the election of the Chairman and  

the  Vice-Chairman  of  the  Bar  Council  and  appointment  of  

authorities  which  would  decide  any  electoral  disputes  is  

provided.  The expression ‘manner of election of the Chairman’  

47

again is an expression which needs to be construed in its wide  

connotation.  The rules so framed by the State Bar Council shall  

become effective only when approved by the Bar Council of India  

in terms of Section 15(3) of the Advocates Act.   

40. The power of the State Bar Council to frame rules under  

Section 15 of the Advocates Act as a delegate of the Bar Council  

of India has to be construed along with the other provisions of  

the  Advocates  Act,  keeping  in  mind  the  object  sought  to  be  

achieved by this Act.  In this regard, greater emphasis is to be  

attached to the statutory provisions and to the other purposes  

stated by the legislature under the provisions of Chapter II of the  

Advocates Act.  This is an Act which has been enacted with the  

object of preparing a common roll of advocates, integrating the  

profession into one single class of legal practitioners, providing  

uniformity  in  classification  and  creating  autonomous  Bar  

Councils  in  each State  and one  for  the  whole  of  India.   The  

functioning of the State Bar Council is to be carried out by an  

elected body of members and by the office-bearers who have, in  

turn, been elected by these elected members of the said Council.  

The legislative intent derived with the above stated objects of the  48

Act should be achieved and there should be complete and free  

democratic functioning in the State and All India Bar Councils.  

The power to frame rules has to be given a wider scope, rather  

than a restrictive approach so as to render the legislative object  

achievable.  The functions to be performed by the Bar Councils  

and the manner in which these functions are to be performed  

suggest that democratic standards both in the election process  

and  in  performance  of  all  its  functions  and  standards  of  

professional  conduct  which  need  to  be  adhered  to.   In  other  

words, the interpretation furthering the object and purposes of  

the Act has to be preferred in comparison to an interpretation  

which would frustrate the same and endanger the democratic  

principles guiding the governance and conduct of the State Bar  

Councils.  The provisions of the Advocates Act are a source of  

power for the State Bar Council to frame rules and it will not be  

in consonance with the principles of law to give that power a  

strict  interpretation,  unless  restricted  in  scope  by  specific  

language. This is particularly so when the provisions delegating  

such power are of generic nature, such as Section 15(1) of the  

Act, which requires the Bar Councils to frame rules to ‘carry out  

49

the purposes of this Chapter’ and Section 15(2), which further  

uses generic terms and expressly states that the Bar Council is  

empowered to frame rules ‘in particular and without prejudice to  

the  generality  of  the  foregoing  powers’.   If  one  reads  the  

provisions of clauses (a), (c), (g), (h) and (i) of Sub-section (2) of  

Section  15  of  the  Act,  then,  it  is  clear  that  framing  of  rules  

thereunder would guide and control the conduct or business of  

the State Bar Councils and ensure maintenance of the standards  

of democratic governance in the said Councils.  Since the office  

bearers like the Chairman and the Vice-Chairman are elected by  

a representative body i.e. by the advocates who are the elected  

members of the Council, on the basis of the confidence bestowed  

by the advocates/electorate in the elected members, there seems  

to be no reason why that very elected body cannot move a ‘no  

confidence  motion’  against  such  office  bearers,  particularly,  

when the rules so permit.

41. The Bar Council of India, as already noticed, has also  

framed rules  and  permitted  moving  of  ‘no  confidence  motion’  

against  its  Chairman/Vice-Chairman subject  to  compliance  of  

the conditions stated therein.  Similarly, Rule 122-A of the M.P.  50

Rules contemplates the removal of a Chairman/Vice-Chairman  

by a motion of no confidence, passed by a specific majority of the  

members  and  subject  to  satisfaction  of  the  conditions  stated  

therein.  This provision, thus, can neither be termed as vesting  

arbitrary powers in the elected body, nor can it be said to be  

suffering  from  the  vice  of  excessive  delegation.   The  power  

delegated  to  the  elected  body  is  within  the  framework  of  the  

principal Act, i.e., Section 15, read with the other provisions, of  

the Advocates Act.  In terms of Rule 120 of the M.P. Rules, a  

person  can  be  elected  as  Chairman/Vice-Chairman  only  by  

majority and in case there is a tie, the election shall be decided  

by  drawing  of  lots.   Under  Rule  118  of  the  M.P.  Rules  a  

Chairman/Vice-Chairman has  to  be  elected  from amongst  its  

members for two years.  In other words, the term of office of the  

Chairman/Vice-Chairman is controlled by the fact that he has to  

be elected to that particular office.  The removal contemplated  

under Rule 122-A is not founded on a disciplinary action but is  

merely a ‘no confidence motion’.  It is only the loss of confidence  

simpliciter i.e. the majority of the members considering, in their  

wisdom, that the elected Chairman/Vice-Chairman should not  

51

be permitted to continue to hold that office, which is the very  

basis for such removal.  One must remember that Rules 118 to  

122-B all come within Chapter XVIII of the M.P. Rules and, as  

such, have to be examined collectively.  But for this Chapter, it  

cannot be even anticipated as to who and how the office of the  

Chairman/Vice-Chairman  of  the  State  Bar  Council  shall  be  

appointed.

42. Now,  let  us  examine  some  judgments  to  substantiate  

what  we  have  aforestated.   In  the  case  of  General  Officer  

Commanding-in-Chief v. Subhash Chandra Yadav [(1988) 2 SCC  

351], this Court stated the principle that the rules framed under  

the provisions of a statute form part of the statute, i.e., the rules  

have  statutory  force.   But  a  rule  can  have  the  effect  of  a  

statutory  provision  provided  it  satisfies  two  conditions:  (1)  it  

must conform to the provisions of the statute under which it is  

framed; and (2) it must also come within the scope and purview  

of the rule making power of the statutory authority framing the  

rule.

43. In  the  case  of  Kunj  Behari  Lal  Butail  v.  State  of  H.P.  

52

[(2000) 3 SCC 40], this Court noticed that it is very common for  

the legislature to provide general rule making power to carry out  

the purposes of the Act.  When such a power is given, it may be  

permissible to find out the object of the enactment and then see  

if the rules framed thereunder satisfy this test of functionality.  

This  test  will  determine  if  the  rule  falls  foul  of  such  general  

power conferred on the delegatee. If  the rule making power is  

expressed in usual general form, then it has to be seen if the  

rules made are protected by the limits prescribed by the parent  

Act.  Still in the case of Global Energy Ltd. v. Central Electricity   

Regulatory  Commission  [(2009)  15  SCC  570],  this  Court  was  

concerned with the validity of clauses (b) and (f) of Regulation 6-

A of the Central Electricity Regulatory Commission (Procedure,  

Terms and Conditions for Grant of  Trading Licence and other  

Related Matters) Regulations, 2004 and dealing with this aspect,  

the Court expressed the view that in some cases guidelines could  

be assumed, by necessary implication, as already laid down and,  

while relying upon the case of Kunj Behari Lal Butail (supra), the  

Court held as under:

“26. We may, in this connection refer to a  decision  of  this  Court  in  Kunj  Behari  Lal   

53

Butail v.  State  of  H.P.1 wherein  a  three- Judge Bench of this Court held as under:  (SCC p. 47, para 14)

“14. We are also of the opinion that  a  delegated  power  to  legislate  by  making  rules ‘for carrying out the purposes of the  Act’  is a general delegation without laying  down  any  guidelines;  it  cannot  be  so  exercised  as  to  bring  into  existence  substantive  rights  or  obligations  or  disabilities  not  contemplated  by  the  provisions of the Act itself.”

27. The  power  of  the  regulation-making  authority,  thus,  must  be  interpreted  keeping in view the provisions of  the Act.  The Act is silent as regards conditions for  grant of licence. It does not lay down any  pre-qualifications  therefor.  Provisions  for  imposition of general  conditions of  licence  or  conditions  laying  down  the  pre- qualifications  therefor  and/or  the  conditions/qualifications  for  grant  or  revocation of licence, in absence of such a  clear  provision  may  be  held  to  be  laying  down  guidelines  by  necessary  implication  providing  for  conditions/qualifications  for  grant of licence also.”

44. The above enunciated principles clearly show that the  

language  of  the  statute  has  to  be  examined  before  giving  a  

provision an extensive meaning.  The Court would be justified in  

giving the provision a purposive construction to perpetuate the  

object  of  the  Act,  while  ensuring  that  such rules  framed are  

54

within the field circumscribed by the parent Act.  It is also clear  

that  it  may  not  always  be  absolutely  necessary  to  spell  out  

guidelines for delegated legislation, when discretion is vested in  

such delegatee bodies.  In such cases, the language of the rule  

framed as well as the purpose sought to be achieved, would be  

the  relevant  factors  to  be  considered  by  the  Court.   In  the  

present case, the minimum guidelines of secrecy and fairness in  

election have been provided in Part IX of the Rules, which have  

been  framed  in  exercise  of  the  supervisory  powers  under  

Sections  49(1)(a),  49(1)(i)  and  49(1)(j)  of  the  Advocates  Act.  

Further,  clause (5)  of  this Part even extends to the State Bar  

Councils the power to independently resolve all election disputes  

through tribunals  constituted for  this  purpose.  Therefore,  the  

powers delegated have an in-built element of guidance that the  

Chairman/Vice-Chairman  will  be  appointed  and  regulated  by  

the majority members of the State Bar Council. Their conduct,  

and the conduct of the State Bar Council as a whole, is to be  

maintained  in  consonance  with  democratic  principles  and  

keeping the high professional standards of advocates in mind.  

Thus, it is not a power which falls beyond the purview and scope  

55

of Section 15 of the Advocates Act read in conjunction with other  

provisions, particularly Chapter II and also keeping in view the  

object of the Act.   

45. Purposive construction, to a large extent, would help to  

resolve the controversy raised in the present case.  The purpose  

of  the  Advocates  Act  is  the  democratic  and  harmonious  

functioning of the State Bar Councils, to achieve the object and  

purposes of the Act.  We are unable to see how the provisions of  

Rule 122-A fall foul of the ambit and scope of Section 15 of the  

Advocates Act and, for that matter, any other provisions of that  

Act.  On the contrary, they are in line with the scheme of the  

parent Act.

46. Having dealt with the primary aspect of this case, now  

we  would  consider  the  contention  that  the  recall  of  the  

Chairman/Vice-Chairman,  by  a  smaller  and  distinct  body  of  

members  of  the  State  Bar  Council,  does  not  fall  within  the  

purview of the authority of the delegatee Council, under Section  

15(2)(c) of the Advocates Act, i.e. to legislate on ‘the manner of  

election’. Even on this ground, according to the appellants, the  

provisions of Rule 122-A are unsustainable.  We find no merit in  56

this contention as well as it has no substance.  The election to  

the post of Chairman/Vice-Chairman of the State Bar Council is  

not by the larger body, i.e., the advocates enrolled on the rolls of  

the  State  Bar  Council,  but  is  by  a  distinct  body,  i.e.  elected  

members  of  the  State  Bar  Council.   Once  they  elect  the  

Chairman/Vice-Chairman of  the State Bar Council  as per the  

scheme of Rules 118 to 123, then all actions taken by such body  

would have to be accepted by all concerned as correct, if they are  

within the domain of the rules governing such body.  We do not  

consider it necessary to deliberate on this issue in any greater  

detail.  Suffice it to refer to the judgment of this Court in the  

case  of  Mohan  Lal  Tripathi  (supra),  where  the  Court  was  

concerned  with  an  elected  candidate,  who,  in  terms  of  the  

statute, was elected by a larger electorate and was recalled by  

smaller representative body rather than by the electorate itself.  

Similar arguments were raised that the recall was violative of the  

spirit and purpose of the election and was arbitrary, irrational  

and violative  of  the democratic  norms.  These arguments were  

rejected by the Court, after detailed deliberation and examining  

the  fields  of  democratic  norms.   We  have  already  referred  in  

57

paragraph 37 of this judgment,  the relevant parts of the said  

discussion.

47. Similarly, in the case of Ram Beti v. District Panchyat Raj   

Adhikari [(1998)  1  SCC  680],  the  Court  was  dealing  with  a  

situation where a Pradhan of the Panchayat was removed by the  

Gram  Panchayat,  a  smaller  body,  instead  of  removal  by  the  

Gram  Sabha  which  had  elected  him.   They  questioned  the  

validity of Section 14 of the U.P. Panchayati Raj, Act, 1947.  The  

Court, while rejecting the contentions, as are even being raised  

before us in the present case, held as under:

“6…. It is no doubt true that under Section  11(1)  of  the  Act  provision  is  made  for  holding of two general meetings of the Gram  Sabha  in  each  year  as  well  as  for  requisitioning  of  a  meeting  by  one-fifth  of  the  members.   But  the  legislature,  in  its  wisdom, thought it proper that the matter of  removal  of  a  Pradhan,  instead  of  being  considered  at  the  meeting  of  the  Gram  Sabha,  should  be  considered  by  the  members  of  the  Gram  Panchayat.   The  considerations  which  weighed  with  this  Court  for  upholding  the  validity  of  sub- section  (2)  of  Section  87-A  of  the  U.P.  Municipalities  Act,  1916  relating  to  the  removal  of  the  President  of  a  Municipal  Board  in  Mohan  Lal  Tripathi  are,  in  our  opinion,  also  applicable  to  the  removal  of  the Pradhan of the Gram Sabha.  Although  

58

under  Section  14  of  the  Act  the  power  of  removal  of  a  Pradhan  is  conferred  on  the  members of the Gram Panchayat, which is a  smaller body than the Gram Sabha, but the  members  of  the  Gram Pancyhayat,  having  been elected by the members of  the Gram  Sabha, represent the same electorate which  has elected the Pradhan.  The removal of a  Pradhan by two-third members of the Gram  Sabha through their  representatives.   Just  as  the  Municipal  Board  is  visualized  as  a  body  entrusted  with  the  responsibility  to  keep  a  watch  on  the  President,  whether  elected by it or by the electorate, so also the  Gram  Panchayat  is  visualized  as  a  body  entrusted with the responsibility to keep a  watch on the Pradhan who is not elected by  it  and  is  elected  by  the  members  of  the  Gram Sabha.  An arbitrary functioning of a  Pradhan is  disregard of  the  statute  or  his  acting  contrary  to  the  interests  of  the  electorate could be known to the members  of  the  Gram  Panchayat  only  and,  in  the  circumstances,  it  is  but  proper  that  the  members  of  the  Gram  Panchayat  are  empowered to take action for removal of the  Pradhan, if necessary.  It is no doubt true  that  in  Section  11  of  the  Act  provision  is  made  for  holding  two  general  meetings  of  the  Gram  Sabha  in  each  year  and  for  requisitioning  of  a  meeting  of  the  Gram  Sabha by one-fifth of its members.  But, at  the same time, we cannot lose sight of the  fact  that  the  number  of  members  of  the  Gram Sabha is  also fairly  large.   It  would  range from one thousand to more than three  thousand.  Elections to public offices even  at village level give rise to sharp polarization  of  the  electorate  on  caste  or  communal  basis.  The possibility of disturbance of law  

59

and order in a meeting of the Gram Sabha  called for considering a motion for removal  of  the  Pradhan  cannot  be  excluded.  Moreover,  there  cannot  also  be  due  deliberation  of  a  serious  matter  as  no- confidence motion by a very large body of  persons.  While amending Section 14 of the  Act  so as to confer the power to remove the  Pradhan of a Gram Sabha on the members  of the Gram Panchayat the legislature must  have taken into consideration the prevailing  social  environment.   Moreover,  by  way  of  safeguard against any arbitrary exercise of  the power of removal it is necessary that the  motion must be passed by a majority of two- thirds of the members present and voting.    7.  For the reasons aforementioned we are  unable to hold that Section 14 of  the Act,  insofar as it empowers the members of the  Gram Panchayat to remove the Pradhan of a  Gram  Sabha  by  moving  a  motion  of  no  confidence,  is  unconstitutional  and  void  being violative of the concept of democracy  or is arbitrary and unreasonable so as to be  hit by Article 14 of the Constitution.”

48. For  the  reasons  aforestated,  as  well  as  the  reasons  

recorded  in  the  above  reproduced  judgments,  which,  with  

respect,  we  adopt,  we  have  no  hesitation  in  rejecting  this  

contention of the appellants.

49. The  next  argument  that  was  raised  on  behalf  of  the  

60

appellants is that, in view of Rule 15 of Chapter V of the M.P.  

Rules, the State Bar Council is debarred from re-considering the  

same matter  for  a  period  of  three  months,  and as  such,  the  

decision passing ‘no confidence motion’ is vitiated because of the  

limitation  contained in  the  said  Rule.   Rule  15 of  Chapter  V  

reads as under:

“No  matter  once  decided  shall  be  reconsidered for  a period of three months  unless the Council by a two-third majority  of the members present, so permits.”

50. Though the  language  of  the  above Rule  clearly  shows  

that no matter once decided shall be reconsidered for a period of  

three  months  but  clearly  makes  an  exception  that  wherever  

2/3rd majority of the members present of the State Bar Council  

permits, this bar will not operate.  In other words, there is no  

absolute bar  and the Rule  makes out  an exception when the  

matters could be reconsidered.  But that is not the situation in  

the present case.  The first pre-requisite under this rule is that  

matter should be ‘once decided’, and then alone, the bar of re-

consideration  would  operate;  that  too  depending  on the  facts  

and circumstances  of  a  given  case.   ‘Once  decided’  obviously  

means  the  matter  should  be  concluded  or  finally  decided  in  61

contradistinction of being ‘kept pending’ or ‘deferred’. Therefore,  

we must  now examine,  whether  the  matter  in  relation to  ‘no  

confidence motion’ had been finally decided at any point of time  

before the date on which the ‘no confidence motion’ is stated to  

have been passed.  This also we are proceeding to consider on  

the assumption that the matter related to ‘no confidence motion’,  

for the sake of arguments, would be covered under Rule 15 of  

the M.P. Rules.

51. After issuance of a notice in accordance with the M.P.  

Rules, admittedly, the 15th Meeting of the General Body of the  

State Bar Council was held on 27th March, 2011 at Jabalpur,  

during which two requisitions were made: one, relating to a ‘no  

confidence  motion’  against  the  Chairman/Vice-Chairman,  and  

second, that there should be re-election of the Committees.  In  

the  minutes,  it  was  also  stated  that  the  Chairman/Vice-

Chairman had offered their resignation subject to withdrawal of  

‘no confidence motion’.  There were discussions on this matter  

and it  was resolved that the agenda of the meeting would be  

circulated on the same day itself, by post, to all the members of  

the State Bar Council,  whether present at the meeting or not  62

and  the  next  meeting  would  be  held  on  16th April,  2011  at  

Jabalpur.  These notices were issued and as decided the meeting  

was held on 16th April, 2011. During the course of the meeting  

on 16th April 2011, some of the members left the meeting, the  

Advocate  General  of  Madhya  Pradesh  presided  over  the  

continuation of the meeting and the ‘no confidence motion’ was  

passed on the same day.  Of course, there is some dispute with  

regard to the recording of the minutes of this meeting.  We have  

already  reproduced  the  minutes  which  were  recorded  by  the  

respective parties.   We are not very inclined to rely upon the  

minutes produced by the appellants, inasmuch as they are not  

signed by all the members present and voting.  Even if, for the  

sake of arguments, we take that the minutes produced by the  

appellants  are  correct,  then  it  must  follow  that  both  the  

meetings took place on 16th April, 2011.  However, it is obvious  

from the record that in the 15th meeting of the General Body held  

on 27th March, 2011, no final decision had been taken and it  

was decided to circulate the minutes and other papers of the  

meeting to all members.   

52. Another ancillary argument to the above is that by virtue  

63

of the bar under Rule 15 of the M.P. Rules, the Chairman and  

Vice-Chairman were elected to their respective posts in February  

2011 and, as such, the election itself was a ‘decision’ which was  

incapable of being reconsidered and revised in the meetings of  

March  and  April,  2011.   According  to  the  appellants,  the  

limitation contained in Rule 15 of the M.P. Rules shall vitiate the  

decision of passing a ‘no confidence motion’.  This argument is  

also misconceived in law and on the facts of the present case.  

Election is not a ‘decision’ as contemplated under Rule 15 of the  

M.P. Rules.  It is not a matter on which the State Bar Council  

decides,  as  firstly,  this  matter  falls  within  the  discretion  of  

individual advocates on the rolls of the State Bar Council to elect  

the representative members of the said Councils, and secondly it  

falls within the discretion of such elected representatives to elect  

a  person  as  Chairman/Vice-Chairman.   It  is  not  a  ‘decision’  

which relates  to  the  matters  as contemplated  under  the  M.P.  

Rules.  Passing  of  a  ‘no  confidence  motion’  in  law,  therefore,  

cannot be termed as reconsideration of the decision taken.   

53. Once the Council is constituted in terms of the Act and  

the Rules framed thereunder, then it has to take decisions in the  

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role  of  a  Council  in  relation  to  various  matters,  including  

rejecting or passing a ‘no confidence motion’.  This is even clear  

from the case of  Ram Beti  (supra) wherein it was held that the  

smaller representative body is better equipped to make a recall  

decision and it has more information in its hands, to make such  

a  recall  decision.  The  decision  is,  therefore,  substantially  

different in character from the election decision. A statutory bar  

may exist in this respect, in some cases, but in its absence, the  

Court cannot infer or imply a time bar on challenging the results  

of  election as a feature of  common law or general  democratic  

principles.

54. Thus, the bar contemplated under Rule 15 of the M.P.  

Rules does not operate, on merits, when applied to the facts of  

the present case.  Thus, we have no hesitation in rejecting this  

contention, raised by the appellants.

55. It is also the contention of the appellants that the group  

supporting  the  Chairman/Vice-Chairman  of  the  State  Bar  

Council, in the meeting dated 16th April, 2011, had raised the  

issue  that  ‘no  confidence  motion’  and  reconstitution  of  the  

65

committee could not be considered in view of the bar contained  

in Rule 15 of the M.P. Rules, in the form of ‘a point of order’  

against the requisition asked for by the other group.  Firstly, we  

have already rejected the contention of the appellants that the  

matters  were  discussed  and  concluded,  either  through  the  

February 2011 elections or in the 15th Meeting of the Council  

dated  27th March,  2011,  as,  according  to  the  minutes,  the  

meeting  had  only  been  deferred  for  issuance  of  appropriate  

agenda and requisition notice to all the members present or not  

present.  Treating it as a valid point of order, the Chairman had  

accepted the same and then he along with some members, had  

walked out of the meeting.   

56. As indicated above, the meeting then was presided over  

by the Advocate General,  Madhya Pradesh, whereafter  the ‘no  

confidence motion’  was passed.  We are unable to accept the  

approach adopted by the Chairman/Vice-Chairman as, on the  

peculiar  facts  and circumstances of  this  case,  it  ex facie  was  

untenable  and  without  any  basis.   It  was  the  duty  of  the  

Chairman/Vice-Chairman to face the ‘no confidence motion’, as  

they  were  elected  office  bearers  and  if  they  had  lost  the  66

confidence of majority group which elected them to this post and  

a ‘no confidence motion’ had been moved against them in terms  

of  Rule  122-A,  they  were  expected  to  face  the  consequences  

thereof. This, alone, would have served the ends of democratic  

governance  and  proper  functioning  of  the  State  Bar  Council.  

Therefore,  in  our  considered  view,  even  on  this  issue,  the  

appellants cannot succeed.

57. Then  it  is  contended  that  removal  from  an  office  is  

punitive.   It  being punitive,  there has to be a just cause and  

adherence  to  the  principles  of  natural  justice  by  granting  

hearing  before  the  removal  from office  is  given  effect  to.   To  

clarify, it is submitted that removal from an elected office, even  

in  face  of  a  valid  rule,  would  have  to  meet  these  twin  

requirements of just cause and hearing, before a person can be  

removed from office.  On the other hand, the learned counsel  

appearing for the respondents, while relying upon the judgment  

of the Delhi High Court in the case of Bar Council of Delhi v. Bar  

Council  of  India [AIR  1975  Del  200],  contended  that  by  

application of the General Clauses Act, 1897 even in absence of  

any  specific  provision,  the  right  of  persons  to  elect  a  

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Chairman/Vice-Chairman would include the right to undo the  

same by moving a ‘no confidence motion’.  

58. It  needs  to  be  noticed  at  the  very  threshold  of  

consideration  of  this  submission  that  ‘no  confidence  motion’  

cannot be equated in law to removal relatable to a disciplinary  

action or as a censure.  It is stricto senso not removal from office,  

but a removal resulting from loss of confidence.  It is relatable to  

no confidence  and is  not  removal  relatable  to  the  conduct or  

improper behaviour of the elected person.  Even the concept of  

‘term’  under  the  Rules,  is  referable  to  and is  controlled  by a  

super-imposed limitation of no confidence.  This tenure cannot  

be compared to a statutory tenure as is commonly understood in  

the service jurisprudence.  The distinction between removal by  

way  of  ‘no  confidence  motion’  and  removal  as  a  result  of  

disciplinary action or censure is quite well accepted in law.  They  

are  incapable  of  being  inter-changed  in  their  application  and  

must essentially operate in separate fields. The Court has always  

prioritized harmonious functioning of the State Bar Council. In  

the case of Afjal Imam v. State of Bihar and others, [JT 2011 (5)  

19], the recall of a Mayor and the re-election of a different Mayor  

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in his place has been held to implicitly shorten the term of the  

appointees of the previous Mayor, if  such is in the interest of  

smooth functioning of the body.

59. Noticing this distinction,  a Bench of this Court in the  

case  of  Babubhai  Muljibhai  Patel  v.  Nandlal  Khodidas  Barot  

[(1974)  2  SCC 706],  while  dealing  with  the  question  whether  

grounds for removal must necessarily be specified when passing  

a motion of  no confidence,  noticed the difference between ‘no  

confidence  motion’  and  a  censure  motion  and  described  the  

same as follows:

“19…..It  does  not,  however,  follow  therefrom  that  the  ground  must  also  be  specified when a motion of no confidence is  actually  passed  against  a  President.  It  is  pertinent  in  this  context  to  observe  that  there is a difference between a motion of no  confidence and a censure motion. While it  is necessary in the case of a censure motion  to set out the ground or charge on which it  is  based,  a  motion of  no confidence  need  not set out a ground or charge. A vote of  censure  presupposes  that  the  persons  censured  have  been  guilty  of  some  impropriety or lapse by act or omission and  it  is  because  of  that  lapse  or  impropriety  that  they  are  being  censured.  It  may,  therefore, become necessary to specify the  impropriety or lapse while moving a vote of  censure. No such consideration arises when  

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a  motion  of  no  confidence  is  moved.  Although a ground may be mentioned when  passing  a  motion  of  no  confidence,  the  existence of a ground is not a prerequisite  of a motion of  no confidence. There is no  legal bar to the passing of a motion of no  confidence  against  an  authority  in  the  absence  of  any  charge  of  impropriety  or  lapse  on  the  part  of  that  authority.  The  essential  connotation  of  a  no-confidence  motion is that the party against whom such  motion is  passed has ceased to enjoy the  confidence  of  the  requisite  majority  of  members.  We  may  in  the  above  context  refer to page 591 of Practise and Procedure  of  Parliament, Second  Ed.  by  Kaul  and  Shakdher wherein it is observed as under:

“A no-confidence motion in the Council  of  Ministers  is  distinct  from  a  censure  motion.  Whereas,  a  censure  motion  must  set out the grounds or charge on which it is  based and is moved for the specific purpose  of  censuring  the  Government  for  certain  policies  and  actions,  a  motion  of  no  confidence need not set out any grounds on  which it is based. Even when grounds are  mentioned in the notice and read out in the  House,  they  do  not  form  part  of  the  no- confidence motion.”

60. Still, in another case, titled B.P. Singhal v. Union of India  

& Anr. [JT 2010 (5) SC 640], the Court, while dealing with the  

doctrine of pleasure in relation to the term of the office of the  

Governor, for a tenure of 5 years, noticed that Article 156(1) of  

the Constitution dispenses with the need to assign reasons or  70

the need to give notice in the event of removal.  But the need to  

act  fairly  and  reasonably  still  cannot  be  dispensed  with.  

Exception was carved out against acting in a manner which is  

arbitrary,  capricious  or  unreasonable.   In  face  of  the  above  

enunciated  principles,  we  are  of  the  considered view that  the  

concept  of  just  cause  and  right  of  hearing,  the  features  of  

common law, are not applicable to the elected offices where a  

person is  so elected by majority  in accordance with statutory  

rules.  It would also have hardly any application to moving of a  

‘no  confidence  motion’  in  so  far  as  these  are  controlled  by  

specific provisions and are not arbitrary or unreasonable.  There  

is  nothing  in  Rule  122-A  of  the  M.P.  Rules  that  requires  

adherence to these two concepts when a motion of no confidence  

is moved against a sitting Chairman/Vice-Chairman. Of course,  

it does not imply that the action can be arbitrary or capricious  

and absolutely contrary to the spirit of the Rule.  There is no  

dispute   in the  facts of  the present case that  majority  of  the  

members  had  passed  the  ‘no  confidence  motion’  in  the  16th  

Meeting of the State Bar Council on 16th April, 2011.  We are not  

able to accept the view taken by the High Court of Delhi in the  

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case of Bar Council of Delhi (supra) in saying that solely with the  

aid of General Clauses Act, the power to elect would deem to  

include  power  to  remove  by  a  motion  of  no  confidence,  

particularly,  with reference  to  the  facts  and circumstances  of  

this case.  The power to requisition a ‘no confidence motion’ and  

pass the same, in terms of Rule 122-A of the M.P. Rules, is clear  

from the bare reading of the Rule, as relatable to loss of faith  

and confidence by the elected body in the elected office bearer.  

We have already discussed in some detail  and concluded that  

Rule 122-A of the M.P. Rules is not ultra vires the provisions of  

the  Advocates  Act,  including  Section  15.   When  the  law  so  

permits, there is no right for that office bearer to stay in office  

after the passing of the ‘no confidence motion’ and, in the facts  

and circumstances of the present case, it is clearly established  

that the appellants had lost the confidence of the majority of the  

elected members and thus the Resolution dated 16th April, 2011  

cannot be faulted with.   

61. Before  concluding  the  judgment  we  would  proceed  to  

record our conclusions and answer the three questions posed at  

the outset of the judgment as follows: 72

Answers to:  

Question No.     1    

We hold that the provisions of Rules 121 and 122-A (in  

particular) of the M.P. Rules are not ultra vires of the provisions,  

including  the  provisions  of  Section  15,  of  the  Advocates  Act.  

These  rules  also  do  not  suffer  from  the  vice  of  excessive  

delegation.

Question No. 2

In view of our answer to Question No. 1, there is no need  

for us to specifically answer this question.  

Question No. 3

In view of the language of Section 15(3) of the Advocates  

Act and the factual matrix afore-noticed by us, it is clear that the  

amended rules of the M.P. Rules had received the approval of the  

Bar Council of India, particularly Rule 122-A.  The Rules would  

not be invalidated for want of issuance of any notification, as it  

is not the requirement in terms of Section 15(3) of the Advocates  

Act and in any case would be a curable irregularity at best.  

For the reasons afore-stated, we dismiss these appeals.

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.....................................J.                               [Dr. B.S. Chauhan]

.....................................J.                           [Swatanter Kumar]

New Delhi; August 9, 2011

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