Decided on March 25,2013

Bar Council Of Uttarakhand And Others Respondents


Kalyan Jyoti Sengupta, J. - (1.) THE above writ petition has been filed by the petitioner, above named, challenging the election for the post of Chairman, Bar Council of Uttarakhand. Consequently, declaration of the result, and further constitution of Tribunal. Shorn of all details short fact relevant this matter is as follows: - The petitioner is a member of Bar Council of Uttarakhand. He contested election for the post of Chairman. On the date of election total 19 voters cast their votes to elect Chairman from and amongst three contestants. It is claimed by the petitioner that he secured six votes of first preference whereas respondent No. 3 has also received six votes of first preference and respondent No. 4 received three votes in the first preference and four votes were declared invalid. If the same are not be treated as invalid then the petitioner would be able to secure two more votes of first preference. According to the petitioner, all the votes which were declared to be invalid by the Returning Officer are valid votes, as the same were cast in accordance with Rule 22 of the Election Rules, 2009 (hereinafter referred to as "First Rule"). If these votes, which were declared invalid, are examined and recounted it would be found that declaration of result absolutely wrong and the petitioner would have been elected.
(2.) IT is further stated in the writ petition that the Tribunal for resolution of election dispute was not constituted in terms of the Rule 32 sub rule (5) of the First Rule as it was not done on or before the date on which the time of election fixed under Rule 4 of the First Rule. According to the petitioner, if the Tribunal is not constituted in terms of Sub Rule (5) of Rule 32 of the First Rule, there is no Tribunal in real sense. As such there is no alternative remedy and the only remedy is by way of the present writ petition. In the counter affidavit it has been urged that this Tribunal is the only forum for adjudication of this dispute. The methodology for challenging the election of Chairman is provided under Rules 14 and 15 of Rules for Election of Chairman and Vice Chairman framed by Bar Council of Uttarakhand on 18th October, 2008 (hereinafter referred to as "Second Rule"). In this case, admittedly the Tribunal has been constituted comprising of Senior Advocates having requisite experience by valid resolution adopted by respondent No. 1 to which the petitioner is also signatory. Therefore, the petitioner, after having signed the resolution is estopped from challenging legality and validity of formation of the Tribunal. The petitioner is bound to accept the Tribunal as being only adjudicating authority. On merit it has been said that the votes were duly counted, scrutinized as such declaration of invalidity of four votes is absolutely correct and lawful as the markings of those were made in violation of rules. Therefore, after participating in the election and becoming unsuccessful one cannot challenge such result on merit.
(3.) THE learned counsel for the petitioner submits that the Tribunal is not lawfully constituted, as it was constituted after declaration of the result, not on or before the date on which the time of election fixed under Rule 4 of First Rule. The language mentioned in the said Sub -Rule (5) of Rule 32 of the First Rule is mandatory in nature. When the Tribunal is not validly constituted, there is no forum as mentioned in the first and second Rules, which can be termed to be an alternative one. He submits further that if four votes which are declared invalid are examined and scrutinized by this Court, it would be found those are valid one and lawfully cast under relevant Rules. The method of casting vote is to mark figure one either in English or Hindi or Roman against a candidate. These were cast in accordance with the Rules and in spite of that the same were wrongly and motivatedly declared invalid.;

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