- (1.) These two Special Leave Petitions under Article 136 of the Constitution are against the common judgments dated 13.12.2006, 04.06.2007 and 21.06.2007 of the Bombay High Court in Writ Petition Nos. 903 of 2004 and 1781 of 2004 (for short 'the impugned judgment') and relate to elections to the Bar Council of Maharashtra and Goa.
(2.) The facts very briefly are that for elections to the Bar Council of Maharashtra and Goa (for short 'the State Bar Council'), Electoral Roll was prepared in which the names of the Advocates on the roll of the State Bar Council who had not paid the subscription as per Rule 40, Chapter -II, Part VI of the Rules were deleted from the Electoral Roll. The names of these Advocates had to be deleted from the Electoral Roll because Rule 6(h) of the Bar Council of Maharashtra and Goa Rules (for short 'the State Bar Council Rules') provided that the name of an Advocate appearing in the State Bar Council Roll shall not be on the Electoral Roll if he has not paid the subscription under Rule 40, Chapter - II, Part VI of the Rules and obtained receipt from the State Bar Council. Respondent No.1, who was earlier a member of the State Bar Council, filed Writ Petition No. 903 of 2004 before the High Court on 31.12.2003 praying that all the Advocates on the Roll of the State Bar Council be allowed to cast their votes and contest the elections without being disqualified for non-payment of the amounts as per Rule 40, Chapter - II, Part VI of the Rules. While the Writ Petition was pending, elections to the State Bar Council were held and the result of the elections was declared on 04.03.2004. Respondent Nos. 1 and 7 to 30 were declared elected to the State Bar Council and the State Bar Council was constituted for a fresh term of five years. Respondent No.1 amended the Writ Petition No. 903 of 2004 and prayed for striking down Rule 6(h) of the State Bar Council Rules as ultra vires the powers of the State Bar Council. Under Rule 31 of the State Bar Council Rules, it was provided that a voter shall be entitled to mark his preferences to all the candidates appearing in the voting paper and Rule 32 (g) of the State Bar Council Rules provided that a voting paper shall be invalid in which preferences to less than ten candidates are communicated. Respondent No.1 also challenged these provisions in Rules 31 and 32 and prayed for the deletion of the provision for communicating a minimum of ten preferences in the voting paper. On 07.06.2004, some other Advocates filed Writ Petition No. 1781 of 2004 seeking similar reliefs. In both the Writ Petitions a prayer was made for setting aside the election to the State Bar Council held on 04.03.2004.
(3.) After the replies were filed by the State Bar Council as well as the Bar Council of India, the Division Bench of the High Court heard the matter and the learned Judges delivered two separate judgments on 13.12.2006. While one learned Judge, Anoop V. Mohta, J. held Rules 6(h) and 32(g) of the State Bar Council Rules valid, the other learned Judge, F.I. Rebello, J. held Rules 6(h) and 32(g) as ultra vires the powers of the State Bar Council. The matter was referred to a third learned Judge, D.K. Deshmukh, J., who on 04.06.2007 agreed with F.I. Rebello, J. and held that Rules 6(h) and 32(g) are ultra vires the powers of the State Bar Council. Rebello and Deshmukh, JJ., have held that under Section 49(1)(a) of the Advocates Act, 1961, (for short 'the Act') it is the Bar Council of India which has the power to make Rules prescribing the conditions subject to which an Advocate may be entitled to vote at an election to the State Bar Council, including qualification or disqualification of voters, and under Section 15 of the Act a State Bar Council has only the power to make rules for election of the members of the State Bar Council and for preparation and revision of Electoral Rolls and that Rules 6(h) and 32(g) of the State Bar Council Rules are not rules relating to the preparation and revision of Electoral Rules, but rules laying down the conditions subject to which an Advocate would be entitled to vote at an election of the State Bar Council, including the qualification and disqualification of voters, and therefore the State Bar Council had by making Rules 6(h) and 32(g) of the State Bar Council Rules exceeded its powers and encroached on the power of the Bar Council of India. By the impugned common order dated 21.06.2007, the High Court allowed the Writ Petitions in terms of the judgment of Rebello, J. declaring Rules 6(h) and 32(g) of the State Bar Council Rules as ultra vires Section 49(1)(a) of the Act and directed the State Bar Council to have counted the votes which were declared invalid counted on the ground that voters had not cast ten preference votes.;