R. M. Sahai, J. - (1.) ADHIVAKTA Maha Sangh, through its Regional Secretary, both in his capacity as Secretary and as an Advocate of this State has invoked extraordinary jurisdiction of this Court and has raised an issue of far-reaching importance as to if members of State Bar Council can continue to hold office even after expiry of their term. The gravamen of the charge is that a representative body elected for five years under statute is continuing in office by abuse of power and breach of trust reposed in it by delaying and postponing the election of members of Bar Council of State which became due as far back as May, 1985. Accusation of mis-use of fund by its members, charging of excessive travelling allowance, including airfare contrary to rules, holding of meetings by disciplinary committee at long distances to enable charging of inflated travelling allowances, organising Golden and Diamond Jubilee within span of five years to squander public fund have also been attempted to be highlighted.
(2.) SINCE the allegations about abuse of funds could be general due to paucity of material available with petitioner whereas it could effectively be decided only after examining detailed records of opposite parties we considered it appropriate to decide the principal issue only if the term of members of Bar Council came to an end after five years and if they became functus-officio thereafter or they could continue in office by virtue of sub-section (2) of Section 8 of the Advocates Act, 1961 till their successor was elected. Further was the Bar Council justified in postponing the elections which were scheduled to take place in March and April, 1986 despite an undertaking given on their behalf in Civil Misc. Writ Petition No. 18833 of 1985 (decided by this Court on 30th November, 1985) that elections shall not be postponed. In any case was there any justification not to hold the election as visualised in Act or Rules and if it was not then its effect ? State Bar Council was constituted under Section 3 of the Advocates Act, 1961 (Act 25 of 1961) as a body corporate having perpetual succession. Section 8 which lays down the term of office of a member reads as under : " 8. Term of office of members of State Bar Council-(1) The term of office of an elected member of a State Bar Council (other than an elected member thereof referred to in Section 54) shall be five years from the date of publication of the result of his election. (2) An outgoing shall continue in office until the publication of the result of the election of his successor. " As is clear from sub-section (1) the term of a member of Bar Council is five years. He is, however, permitted to continue till the publication of result of election of his successor. This has been done, obviously to ensure continuity of the office. It does not extend the term beyond five years. In 1977 when the Advocates' Act was amended, ' to restore the domocratic principle of elected Chairman and Vice Chairman for the Bar Council of India and the State Bar Council the term of State Bar Council was increased to five years from four years as, ' election to the State Bar Council is a time consuming process and involves considerable expenditure. The duration of four years was raised to five to ensure that elections for the next term are completed prior to expiry of the term. That appears to be the intention and objective gathered from the Advocates Act and rules framed by the Bar Council of India as well. Subsection (2) has given rise to much argument but that shall be adverted to later. For the time being it may be pointed out that there is no provision which may permit office bearers to continue after five years. Sub-section (1) of Section 8 appears to fix the outer limit of members of the Bar Council. The use of the word ' shall ' does not appear to be without purpose. That becomes clear if the rules framed by the Bar Council of India for preparation of electoral roll which is the first and the most important process in an election is considered. It is dealt in part III of the Rules. Rule (1) of Chapter I confers right on every advocate whose name is on electoral roll of the State Council to vote at the election. Rule 2 deals with disqualification and Rule 3 provides that subject to the provisions of Rule 2 the name of every advocate entered in the State Roll shall be entered in the electoral roil of the State Council. Rule 4 provides procedure for preparation of electoral roll by those Bar Councils who do not maintain a list of Advocates who are entitled to vote in terms of Rule 2. Rule 5 requires the State Council to put on notice board the preliminary electoral roll containing the names of all the Advocates whose names are required to be included within 120 clear days before the expiry of the terms of the members. Rule 6 requires publication of final roll of the notice board of State Bat Council not more than 75 clear days and not less than 60 days before the date of election. Section 8 which fixes the maximum period of five years as the term of an elected member read with rule 5 requiring publication of preliminary roll 120 days before expiry of the term of members necessitating election leaves no room for doubt that the election process has to be completed before expiry of term so that election may be held before term runs out. The process of election should be completed within five years. The declaration of results, however, has to be after expiry of the term. Reliance has been placed on rule 7 which provides for preparation of fresh electoral roll of Advocates enrolled 75 days prior to date of election is adjourned for any reason. It is urged that this rule read with sub-section (2) indicates that a member may not only continue beyond five years but even the election may be postponed. The argument proceeds on misapprehension. The rule falls in a Chapter dealing with preparation of electoral roll. It cannot be pressed in service to interpret sub-section (1) of Section 8 of the Act. It only ensures that if elections are not held within five years then those Advocates who have been enrolled later should not be deprived of their right to exercise franchise since preliminary roll etc. is required to be published at the least four months prior to the expiry of the term. Further even if the rule can be considered to create that impression then need not be said that the plain meaning of section cannot be curtailed or whittled down by a rule. No other provision was pointed out which could entitle a council to continue after five years. In fact the rules as stated earlier deals with preparation of electoral roll and not with extension of term of office bearers of the Bar Council. It is true that Section 8 does not use words like 'no longer' etc. but considering the objective of the Act the reason for extending the term from four to five years in 1977 and the inherent spirit of democratic principle of holding elections of autonomous bodies at regular intervals it has to be held that term of members of Bar Council cannot be extended directly or indirectly beyond five years. Sub-section (2) is not of any help. Rather it visualises that election process should be completed within five years but the result may be published lateron and so long that is not done the members shall continue. It cannot be construed as a provision empowering members of the council to extend their term beyond five years by delaying or postponing the election. It only attempts to achieve continuity in the office by permitting declaration of result after expiry of term of an election, held within five years. It's reach can be appreciated by taking an illustration. The five year term of a Bar Council ends say on 1st January 1987. The election for the next term has to be completed before this date. It is completed say on 15th December, 1986. But the result cannot be published immediately as it shall result in curtailment of term of earlier council since the term commences to run from the date of publication of result. Therefore, the result may be declared on any date after 1st January. Till then the earlier office bearers continue.
(3.) ELECTION of representatives of autonomous bodies, discharging public functions and duties under statute or even otherwise at regular or stipulated intervals is to ensure the statutory right which vests in every person, who is a member of such body to be entitled to contest such elections. Any effort to erode or destroy such right by delaying or postponing elections is an encroachment on the fundamental right of others to be elected after expiry of time of earlier office bearers. Such rights are not only civil but statutory rights which has to be protected and any effort to frustrate or thwart it has to be dealt with strictly by construing the provisions in a manner which may promote public and common interest. We must express our grief that an august body like the Bar Council which is expected to set patterns for other members of society rather than create an atmosphere in which a feeling may be generated that they are usurping the office by continuing in it illegally has failed to live up to its expectators. Legal consideration apart public interest has come a part of our jurisprudence. No action of public bodies created under statute can be countenanced which cannot withstand this interest. If a provision of law however flexible is abused because of lacuna or loopholes in it then the courts of law have to adopt clinical approach to avoid spreading of malady any further. In our opinion Section 8 should be held both on principle of interpretation and in public interest, to limit the term of office bearers of a Council to five years and no more during which it should complete the process of election for next term. Therefore, the term of the Bar Council which was elected in 1980 came to an end in 1985. Legal position being thus there can be no doubt that the members of Bar Council elected in May 1985 ceased to hold their office from the date as process for election had not been completed prior to it and no publication of result was being awaited. Sub-section (2) of Section 8, therefore, became inoperative due to failure to hold elections. Even assuming that elections could be postponed and they could be held after expiry of five years, although there is no such indication either in the Act or rules except rule 7, it may be examined if there was a valid reason or justification for the council not to hold an election and if there was none then its effect ? This has to be considered in two phases one from 25th February 1985 when Central Council asked the State Council to hold the elections by 31st July 1985 to 30th November 1985 when writ petition no. 8837 of 1985 filed by one K. K. Misra for similar direction to hold election was dismissed on undertaking given by the Bar Council that elections as scheduled shall take place. And second from 30th November 1985 till now. From records produced on behalf of the Bar Council it transpired that it received a letter from the Bar Council of India in February 1985 to hold the ensuing elections not later than 31st July 1985. That such direction could be given by the Bar Council of India to State Bar Council cannot be doubted as Sec. 48 B of the Act provides : " 48-B. Power to give directions-(1) For the proper and efficient discharge of the functions of a State Bar Council or any committee thereof, the Bar Council of India may, in the exercise of its powers of general supervision and control, give such directions to the State Bar Council or any committee thereof as may appear to it to be necessary, and the State Bar Council or the committee shall comply with such directions. (2) Where a State Bar Council is unable to perform its functions for any reason whatsoever, the Bar Council of India, may, without prejudice to the generality of the foregoing power, give such directions to the ex officio member thereof as may appear to it to be necessary, and such directions shall have effect, notwithstanding anything contained in the rules made by the State Bar Council." The direction was given presumably because the State Bar Council had not taken any steps to complete the process of election within stipulated period of five years. It has to fix the dealing of 31st July to enable the council to finalise the electoral roll as required under rules. The direction was, however, observed in breach. The council passed resolutions no. 50, 51, 52 and 53 in May 1985. By the first it authorised the Chairman of the Council to inform the Chairman of Bar Council of India that election process had already started and election shall be held expeditiously. But it does not indicate what process had been initiated prior to it. In fact the first and the most essential process of election is to finalise the electoral roll. But nothing had been done till then. Of course the second resolution purported to constitute an election tribunal consisting of one retired and two ex-judges of this Court, namely Sri J. S. Trivedi, Sri B. D. Agarwal and Sri R. C. Srivastava. And by third resolution Sri J. M L. Sinha another retired judge was appointed as returning officer. Probably these were the first step towards holding elections. But the most amazing resolution is the resolution no. 53 fixing 31st March and 1st April as the date of elections. Therefore, the Bar Council on one hand informed the Bar Council of India that the process has started and elections shall be held expeditiously and on other extended its term of five years by one further year by process of fixing the election date in March and April 1986. The resolution does not explain as to why the council was not in a position to follow the direction of central body and hold elections by 31st july, 1985. It acted arbitrarily in not complying with directions issued under Section 48-B of the Act. Sri G. C. Dwivedi, Chairman of the Council who appeared in person was at pains to explain the bonafide of the Council. But the very first important resolution in this regard speaks for itself. The anxiety of the council to hold elections expeditiously is further blown in pieces when the Secretary took nearly two months to publish notices in gazette of 10th June and newspaper in July 1985. He needed two months to invite declarations forms from Advocates u/rule 4 of central rules. Whether it was at all necessary or not is another matter since rule 4 applied only to those Bar Councils which did not maintain a list of advocates. In fact steps should have been taken under rule 5 only. But that apart even steps under rule 4 were being taken so leisurely as the office bearers had just been elected. The notices issued in June and July had fixed 30th September as the date for return of declaration forms by the Advocates. From resolution no. 159 of 1985 passed in September it is clear that the council took the decision that since only 16000 forms had been received and there were 79,000 Advocates in the State the time for sending of declaration be extended till Oct. 1985. After this extended period was over steps appear to have been taken to get the electoral list prepared. But for reason better known to the council the list was not published. And a resolution by one of the members Sri D. K. Trivedi to finalise the list of the members received till then and include others latter on so that election may not be delayed was turned down by the majority by resolution no. 202 of 1985. And the council decided to hold election by resolution no. 203 on State roll maintained by it. When this information trickled down that the members were interested in delaying the elections further then two of the Advocates of this State filed writ petition no. 18833 of 1985 K. K. Misra v. State for direction to the Bar Council to hold elections immediately. From the counter-affidavit filed by the Bar Council in that case it appeared that by that time declaration forms of nearly 56 thousand Advocates had been received, prior to it the Council had taken a decision to hold election on roll of lawyers maintained by it and not on declaration forms received in pursuance of notice issued under rule 4. And yet it was stated that declarations received were only fraction of the strength of lawyers. The averment was irrelevant in view of changed decision of council. Further if declaration of 56 thousand Advocates had been received out of 70 thousand then it could not be said that roll could not be finalised. Once the procedure was followed then elections could not be delayed because all the Advocates of the State had not sent their declaration or they were defective or incomplete. But the most important averments were made in paragraph 12 which reads as under :- " That if the process of election initiated and partly completed on 29th November, 1985 with the publication of the preliminary electoral roll as required by rule 5 of the Election Rules is disturbed and the elections are directed to be held as per the demand of the petitioners the deponent will not be in a position to hold the elections in time fixed for the same as the whole process of publication of preliminary electoral roll will have to be reinitiated over again and that will take the election further from the date fixed. " Due to these averments the Bench held : " Bar council of U. P. has filed a counter-affidavit stating that the election would be held on the dates already notified and the apprehension of the petitioners that the dates would be changed did not have any substance. After hearing council for the parties ?and perusing the counter-affidavit of respondent no. 1 it appears that there are no merits in this petition. The petitioners are not right in contending that by rejecting the resolution (Annexure A-5) and by introducing and passing the resolution (Annexure A-5) the election would be postponed. The resolution of the Bar Council has not changed the dates of the polling which have been notified. It also does not appear to be correct that the election would be disturbed and upset by the change brought about in the preparation of the revised electoral roll. We, consequently do not find any merit in the submission. " ;