Holding

An extension of a State Bar Council’s term must be granted before the expiry of the original term and must comply with Rule 6; lacking the requisite majority approval before expiry, the extension was invalid and the subsequent elections were void.

Summary

The Kerala Bar Council’s five‑year term expired on 27 January 1997. It sought a six‑month extension from the Bar Council of India (BCI), which circulated a resolution under Rule 6 of the BCI Rules on 13 January 1997. Only four of the eighteen BCI members approved before the expiry, falling short of the required majority, and no "action" as defined by Rule 6 was taken. The BCI later passed a resolution on 8 February 1997 extending the term, which the Kerala High Court treated as effective retrospectively. The Supreme Court held that an extension must be granted before the original term expires and must satisfy all requirements of Rule 6; since the majority approval was not obtained, the extension was invalid and the Kerala Bar Council lost jurisdiction to hold elections, rendering the elections void. Consequently, the Court set aside the High Court judgment, directed the BCI to appoint a Special Committee, and allowed the writ petition.

Issues considered

The validity of extending a State Bar Council’s term after its original term has expired.
Whether a BCI resolution passed under Rule 6 after expiry can be deemed to have retrospective effect.
Whether elections conducted by the Kerala Bar Council after its term expired are legally valid.
The correctness of the Kerala High Court’s finding that the term was deemed extended before expiry.

Legislation cited

Advocates Act, 1961s. 10-A, s. 15, s. 2(1)(d), s. 2(1)(e), s. 2(1)(m), s. 4, s. 8, s. 8A

Subjects

Advocates ActBar Council of IndiaState Bar CouncilTerm extensionRule 6Election validityJurisdictionAdministrative lawUltra viresProfessional bodiesStatutory compliance

Judgment

--
BABU VERGHESE AND ORS. A
.A
v.
BAR COUNCIL OF KERALA AND ORS.

MARCH 16, 1999

[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] B

Advocates Act, 1961-Section &4. and 10-A-Temi of office of State
Bar Council-Extension under proviso to Section &4-Held, can be granted
only before the expily of its miginal tenn-1he te1m cannot be extended by
way of a resolution of the Bar Council of India after the expiry of the tenn of c
the State Bar Council-Any election after the expiry of temt without its having
valid~v extended was invalid-Also held on facts, that urgent action initiated
under Rule 6 of the Bar Council of India Rules was not completed before the
expiry of the tenn of the State Bar Council-Therefore, no action could be
considered to have been taken under Rule 6, nor did the post tenn resolution
D
of the Bar Council of India could be considered to have confimied any such
action-Thus, the Members of the State Bar Council continued in office
without any valid extensio11:-Bar Council of India Rules, Rule 6.

Administrative Law-Doctrine of ultra vires-Statute prescribing the
doing of an act in a particular manne1Jffeld, could not be considered to E
have been done unless it was done in the prescribed manner-Jurisdic-
tiort-Exercise of

Election-Professional Bodies-Non-compliance with statutory
provisions-Effect of
~
F
The term of Bar Council of Kerala was to expire on 27.1.1997, but
;.
before the expiry of the term, it approached the Bar Council of India (BCI)
for extension of its term by six months under proviso to Section 8 of the
Advocates Act, 1961. Though no meeting for extension of term was held by
the BCI before 27.1.1997 as requested by the State Bar Council, on 13.1.1997,
the Chairman of BCI purporting to act under Rule 6 of the Bar Council of
G
India Rules got a draft resolution circulated to 18 members for sending their
opinion as to whether or not the proposed extension should be granted.
-~ Before 27.11.1997 only 4 members sent their opinion, the other 4 sent it after
this date. Later on, the BCI in its meeting dated 8.2.1997 formally extended
the term of the State Bar Council for 6 months. During this extended term H
1121
1122 SUPREME COURT REPORTS [1999] 1 S.C.R.

A the State Bar Council conducted election and counting of votes was com-
pleted on 3.4.1997. The elections were challenged before the High Court, inter .-
alia, on the ground, that the term of the State Bar Council having expired OJll
27.1.1997, it had ceased to have any jurisdiction to conduct the elections. The
High Court held that the term of the State Bar Council would be treated to
have been extended by the BCI before-the expiry of its original term. Hence
B /this appeal.
It was contended by the appellant that the election after the expiry of
the term of the State Bar Council was no election as it ceased to exist and
consequently it had ceased to have any jurisdiction for conducting a fresh
C election. It was also contended that the extension of the term of the State Bar
Council by the BCI byway of a resolution passed on 8.2.1997 would not have the
effect extending the term with retrospective effect i.e. with effect from 27.1.1997.
It was further contended that the elections were not held as contemplated under
Section SA (3) of the Advocates Act through a Special Committee and hence any
election held by the State of Bar Council was a nullity.
D
It was contended by the respondents that the term was deemed to have
been extended on 13.1.1997, the date on which the Resolution for extending
the term was circulated to all the 18 members of the BCI although the entire )

resolution may have been passed on 8.2.1997.

E Allowing the appeal, this Coutt

HELD: 1.1. A reading of Sections 8 andS-A of the Advocates Act, 1961
clearly indicates that extension has to be granted before expiry of the
original term so as to maintain continuity of the term. In the present case,
process for granting extension was initiated on 13.1.1997 by circulating a
F draft resolution to the members of Bar Council of India under Rule 6 of the
Bar Council of India Rules which contemplates 'urgent action' being taken
on the opinion of majority members. It is this 'action' which is required to be
confirmed in the next meeting. It is obvious that if no action is taken, the
question of confirmation does not arise. (1136-H]
G 1.2. Though 'action' under Rule 6 was initiated on 13.1.1997 yet it was not
completed before 27.1.1997. Out of 8 members of BCI, only four gave their
opinion before 27.1.1997. Remaining four gave their opinion after this date but
even then total eight members who gave opinion, were less than the majority.
The opinion of four members was insufficient for 'action' being taken. On that
H basis, no extension could be considered to have been granted. (1137 •B-C]
BABUVERGHESE v. BARCOUNCILOFKERALA 1123

1.3. If Rule 6 was intended to be applied, then all of its requirements A
should have been fulfilled. It is a basic principle of law that if the manner
of doing a particular action is prescribed under any statute, the act must
be.done in that manner or not at all. (1137-D]

Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, (1954] SCR 1098
: AIR (1954) SC 322; Deep Chand v. State of Rajasthan, (1962] 1 SCR 662 B
: AIR (1961) SC 1527 and State of Uttar Pradesh v. Singhara Singh & Ors.,
AIR (1964) SC 358 : (1964) 1 SCWR 57, relied on.

S1i Panneshwmi Prasad Gupta v. Union of India, (1973] 2 SCC 543,
distinguished. C

Taylor v. Tay/01; (1875) 1 Ch D 426; Nazir Ahmed v. King Emper01;
63 Indian Appeals 372; AIR (1936) PC 253, referred to.

2.1. It is also not possible to say that resolution dated 8.2.1997 of
BCI was a 'confirmation' of the extension already granted. This is because D
no action had been validly completed under Rule 6 before 27.1.1997, In fact
action initiated under Rule 6 was abandoned and later on, BCI took a
""' different course in its resolution dated 8.2.1997. In view of the facts and
circumstances of this case, Rule 6 cannot be pressed into service to impart
validity to the so-called extension granted by BCI. Fresh elections· could
E
have been held by the Kerala Bar Council only before the expiry of its term.
Otherwise, the jurisdiction to hold elections passes on to the Special
Committee appointed by the BCI in terms of the provisions contained in
Section SA which are imperative in character. Since the Kerala Bar Coon-
cit had ceased to have any jurisdiction on the expiry of its term and the
~o-called extension of its term has been wholly ille~al, the elections held by F
• Kerala Bar Council were therefore farcical in character and on that basis,
the respondents cannot claim themselves to be the duly elected members
of the Council. (1140-D-E]

2.2. It cannot be said that elections having already been held and mem-
G
hers having been in ollice for more than one and a half years, the Court
should not intervene, specially as the appellants could have challenged the
~~ elections byway ofan election petition, which was not done. [1140-B]

2.3. Queerly the High Court, merely after looking into the correspon-
deuce between the State Bar Council and the Bar Council of India, as also H
1124 SUPREME COURT REPORTS (1999] 1 S.C.R.

A the resolution adopted on 8.2.1997, came to the conclusion that the term of ,o......t
the State Bar Council shall be treated to have been extended before the
expiry of the original term. This view is wholly erroneous and contrary to
the mandatory provisions contained in the Act and the Rules framed there-
under. [1140-F]

B Bar Council of Delhi v. Swjit Singh, AIR (1980) SC 1612 = [1980) 3
SCR 940 : [1980) 4 SCC 211, relied on. ~

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1504 of
1999.

c From the Judgment and Order dated 11.12.97 of the Kerala High
Court in O.P. No. 8524 of 1997.

V.K. Beeran, V.J. Francis and P.I. Jose for the Appellants.

V.R. Reddy, M.M. Paikaday, Vipin Nair, K.M.K. Nair, Ramesh Babu
D M.R. Romy Chake, Rajive Mehta, Sanjay Parikh and P.B. Suresh for the
Respondents.
)'
The Judgment of the Court was delivered by

S. SAGHIR AHMAD, J. Leave granted.
E Bar Council of Kerala, which was constituted under the Advocates
Act, 1961 (for short, the 'Act'), on 28th January, 1992, was to last for a
term of five years which expired on 27th January 1997. But before the
expiry of the term, it approached the Bar Council of India (BCI, for short)
through its letter dated 31st December, 1996 for extension of its term by
F six months. A reminder for this purpose was also sent on 13th January,
"
1997.
..
On receipt of the reminder from the State Bar Council, a Resolution
was circulated by the BCI to all its 18 members on 13th January, 1997
proposing to extend the term for a period of six months. In its meeting held
G on 8th February, 1997, BCI confirmed the Resolution on which opinion
was obtained from the members by circulation. It was during this period
of six months that elections were held and a new State Bar Council for
Kerala was elected. ..... ~
.

It appears that for holding fresh elections, the Pt'eliminary Electoral
H Roll was published on 28.12.1996 followed by notice of publication of the

I
I
)

BABUVERGHESE v. BARCOUNCILOFKERALA[S.SAGHIRAHMAD,J.] 1125

_,, ....... final Electoral Roll on 22,1.1997, which·was challenged by one Shri P.G. A
Chacko, Advocate, by O.P. No. 1987/97 filed in the High Court on
31.1.1997. The Petition was, however, dismissed in limine on 6.2.1997
against which Writ Appeal No. 307 of 1997 was filed before the Division
Bench. It further appears that in the meantime, the Kerala Bar Council
adopted a resolution on 1.2.1997 .to conduct the elections. After the exten-
sion of term by the Bar Council of India by its resolution dated 8.2.1997,
B
,., the process of elections was started and the elections were held with
counting of votes being completed on 3.4.1997. The results were declared
on the same day, but they were published in the Kerala Gazette on 6th of
May, 1997. It was, at this stage, that O.P. No. 8524 of 1997 was filed on
21.5.1997 in the High Court challenging the elections on the grounds, inter c
alia, that the term of the Kerala Bar Council having expired on 27.1.1997,
it had ceased to have any jurisdiction to conduct the elections. This Writ
Petition as also the Writ Appeal referred to above, were disposed of by a
common judgment passed on 11.12.1997 dismissing the Writ Petition as
also the Writ Appeal. The High Court has held that the term of the Ker ala
D
"' Bar Council will be treated to have been extended by the Bar Council of
India before the expiry of its original term. It is against this judgment that
~ the present appeal has been filed.

We have heard learned counsel for the parties. Learned counsel
appearing for the appellants has contended that the impugned election by E
which a new Bar Council for the State of Kerala has been elected is no
election in the eye of law as the State Bar Council, on the expiry of its term
on 27th January, 1997, had ceased to exist and consequently had ceased to
have any jurisdiction for conducting a fresh election. It is also contended ·
that the extension of the term of the State Bar Council should have been
granted by the BCI before 27th of January, 1997 and since the extension F
" was granted by a Resolution adopted on 8th February, 1997, it would not
....
have the effect of extending the term with effect from 27th of January, 1997.
It is contended that immediately on the expiry of the term of the State Bar
Council, fresh elections could have been held only in the manner provided
under Section 8A (3) of the Act and since the elections were not held in
that manner through the Special Committee but were held by the State Bar
G
Council, which had ceased to have any jurisdiction in the matter, the
elections were a nullity .
......
Mr. V. R. Reddy, learned Senior counsel appearing on behalf of BCI
as also Mr. K.M.K. Nair, appearing on behalf of the Bar Council of Kerala, H
1126 SUPREME COURT REPORTS [1999] l S.C.R.

A have contended that the term of the State Bar Council shall be deemed to
have been extended on 13th of January, 1997, namely, the date on which
the Resolution for extending the term was circulated to all the eighteen
members of the BCI and since eight of the members had already given their
consent for extending the term by a period of six months and others had
not raised any objection, the Resolution of Confirmation adopted on 8th
B
February, 1997 would relate back to the date on which the Resolution for
extension of the term by six months was circulated under Rule 6 of the Bar )<

Council of India Rules. That being so, the decision, it is contended, to
extend the term of the State Bar Council shall be deemed to have been
taken by the BCI on 13th January, 1997 and, therefore, the State Bar
c Council retained its jurisdiction to conduct fresh elections which had been
validly held.
I.
Learned counsel for the appellants also raised a few other conten-
lions, specially those relating to the Revision of Electoral Rolls etc., but we
D need not look into those contentions as we intend to dispose of this appeal .....
on the questions mentioned above.
.;
;-
"Bar Council" has been defined in Section 2(1)( d) as a Bar Council
constituted under the Act. The definition of the "State Bar Council" is
E contained in Section 2(1)(m) which means a Bar Council constituted under
Section 3. "Bar Council of India" is defined in Section 2(1)(e) as the Bar
Council constituted under Section 4.

Section 3, inter alia, provides that there shall be a Bar Council for
the State of Kerala and the Union Territory of Laccadive, Minicoy and
F
Amindivi Island, to be known as the Bar Council of Kerala. Section 5
...
provides that every Bar Council shall be a body corporate having perpetual _.
succession and a common seal, with power to acquire and hold property,
both movable and immovable, and to contract, and may by the name by
which it is known, sue and be sued. Section 6 defines the functions of the
G State Bar Council while Section 7 defines the functions of the Bar Council
of India. Term of office of the members of State Bar Council is indicated
in Section 8 which is reproduced below :

"The term of office of an elected member of a State Bar Council
H (other than an elected member thereof referred to in section 54)
BABU VERGHESE v. SBAR COUNCIL OF KERALA [S. SAGHIRAHMAD, J.] 1127

shall be five years from the date of publication of the result of his A
election:

Provided that where a State Bar Council fails to provide for the
election of its members before the expiry of the said term, the Bar
Council of India may, by order, for reasons to be recorded in writing,
extend the said term for a period not exceeding six months". B

Another provision which has a bearing on the term of office of the
members of State Bar Council, is contained in Section SA which is
reproduced below :

"SA (1) Where a State Bar Council fails to provide for the election of c
its members before the expiry of the term of five years or the extended
term, as the case may be referred to in section S, the Bar Council of
India shall, on and from the date immediately following the day of such
expiry, constitute a Special Committee consisting of -
~
D
(i) the ex officio member of the State Bar Council referred
to in clause (a) of sub-section (2) of section 3 to be the·
"' Chairman.

Provided that where there are more than one ex officio
members, the senior most amongst them shall be the E
Chairman; and

(ii) two members to be nominated by the Bar Council of
India from amongst advocates on the electoral roll of
). the State Bar Council,
F
~
to discharge the functions of the State Bar Council until the Bar
Council is constituted under this Act.

(2) On the constitution of the Special Committee and until the
State Bar Council is constituted -
G
(a) all properties and assets vesting in the State Bar Council shall
vest in the Special Committee.

(b) all rights, liabilities and obligations of the State Bar Coun-
cil, whether arising out of any contract or otherwise, shall . H
1128 SUPREME COURT REPORTS (1999] 1 S.C.R.

A be the rights, liabilities and obligations of the Special
Committee.

(c) all proceedings pending before the State Bar Council in
respect of any disciplinary matter or otherwise shall stand
transferred to the Special Committee.
B
(3) The Special Committee constituted under sub-section (1) shall,
in accordance with such directions as the Bar Council of India may
give to it in this behalf, hold elections to the State Bar Council
within a period of six months from the date of its constitution under
c sub-section (1), and where, for any reason the Special Committee
is not in a position to conduct election within the said period of
six months, the Bar Council of India may, for reasons to be
recorded by it in writing, extend the said period."

These two Sections indicate that the term of office of an elected
D ~

member of a State Bar Council is five years from the date of publication
of the result of his election, which is extendable by a period not exceeding
six months provided the elections have not been held before the expiry of
..
the term. If the State Bar Council do~s not hold fresh elections either
before the expiry of five years' term or the extended term, the BCI, in either
E of the two situations, would constitute a Special Committee to discharge
the functions of the State Bar Council until a new Bar Council is con-
stituted. For this purpose, Special Committee would hold elections to
constitute the State Bar Council within the extended period of six months.
The life of Special Committe is, however, extendable.
F ,.;
It is obvious that fresh elections have to be held before the expiry of
the five years' term and if they are not so held, it would be open to the •
BCI to extend the term by six months to enable the State Bar Council to
hold fresh elections. The extension has to be granted before the expiry of
the original term so as to maintain continuity of the term.
G
It may be pointed that the term of members of the Bar Council under
the Advocates Act as originally enacted in 1961 was six years with a
provision of retirement for one third of the members after every two years,
... ~

l
but by Act No. 23 of 1966, Section 8 was amended and it was provided as
H under:
BABU VERGHESE v. BARCOUNCILOFKERALA[S.SAGHIRAHMAD,J.] 1129

"8. Term of office of members of State Bar Council - A
(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 four years from the date of publication of the result of his
election.
B
(2) An outgoing member shall continue in office until the publica-
tion of the result of the election of his successor."

The term of office was reduced from six to four years but it was
provided that the outgoing member would continue till the result of the C
election of his successor was published. This amounted to an indirect and
automatic extension of the term. But, by further amendment by Act No. 38
of 1977, this provision was deleted with the result that on the expiry of the
term, a member would immediately cease to be a member and would not
continue in office until the publication of the result of the election of his D
successor. By the same amendment, however, the term of the member was
raised from four to five years.

Since BCI is a creature of Statute, namely, the Advocates Act, 1961,
which refers to it as a body corporate, it acts through its members and
E
various Committees and transacts its business through various Resolutions
at its meetings. Section lOA, which provides for transaction of business by
Bar Councils and Committees thereof, provides as under :

"Transaction of business by Bar Councils and committees thereof -
F
(1) The Bar Council of India shall meet at New Delhi or at such
other place as it may, for reasons to be recorded in writing,
determine.

(2) A State Bar Council shall meet at its headquarters or at such G
other place as it may, for reasons to be recorded in writing,
determine.

(3) The committees other than disciplinary committees constituted
by the Bar Councils shall meet at the headquarters of the respec-
tive Bar Councils. H
1130 SUPREME COURT REPORTS [1999] 1 S.C.R.

A (4) Every Bar Council and every committee thereof except the
disciplinary committees shall observe such rules of procedure in
regard to the transaction of business at their meetings as may be
prescribed.

(5) The disciplinary committees constituted under Section 9 shall
B
meet at such times and places and shall observe such rules of
procedure in regard to the transaction of business at their meetings
as may be prescribed."

BCI has been given the Rule making power under Section 15 of the
C Act which, inter alia, provides as under :-

"15(1) A Bar Council may make Rules to carry out the pur-
poses of this Chapter.

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

(a) .............. .

(b) .............. .

E (c) ............... .

'(d) .............. .

(e) .............. .

F (t) ···············
(g) .............. .

(ga) .............. .

G (gb) .............. .

(h) the summoning and holding of meetings of the Bar Council,
the conduct of business thereat, and the number of members
necessary to constitute a quorum.

H (i)
BABU VERGHESE v. BAR COUNCIL OF KERALA (S. SAGHIRAHMAD. J J 1131

G) the summoning and holding of meetings, the conduct of A
business of any such committee and the number of members
necessary to constitute a quorum.

(k) ················

(1) B
(m)

(n)

(3) ····················· c
In exercise of its powers under Section 15(2) of the Act, BCI has
made Rules known as "Bar Council of India Rules". Chapter II of the Rules
contains Rules relating to "Meeting of Council and its Committees (other
than those of the Disciplinary Committee)." These Rules have been made
under clauses (h) and (j) of Section 15 (2) of the Act. Rules 1 to 12 D
contained in this Chapter are reproduced below: .

"1. Notice of every meeting of the Council and the Committees
shall ordinarily be sent by the Secretary not less than 15 days
before the date of the meeting, except when the Chairman or
any two members require a meeting to be called on short notice E
on grounds of urgency. No proceedings shall be invalidated
merely on the ground that the rule relating to notice is not
strictly complied with.

2. Notice of the meeting shall specify the time and place of the
F
meeting and shall contain the agenda fixed for the meeting.

3. No member shall be entitled to bring forward for the considera-
tion of the meeting any matter of which he has not given ten days
notice to the Secretary, unless the Chairman, in his discretion,
permits him to do so. G
4. The minutes of the previous meeting shall ordinarily be read
and recorded at the subsequent meeting.

5. The quorum for the meeting of the Council shall be seven; and
for all other Committees ex'Cept the Executive Committee and the H
1132 SUPREME COURT REPORTS (1999] 1 S.C.R.

A Legal Education Committee, the quorum shall be two. The quorum
for the Executive Committee and the Legal Education Committee
shall be four.

6. If urgent action by the Council or hy any Committee of the
Council other than a Disciplinary Committee becomes necessary,
B the Chairman of the Council or of such Committee as the case
may be may permit the business to be transacted by circulation of
papers to the members of the Council or the Committee as the
case may be. The action proposed to be taken shall not be taken
unless agreed to by a majority of the members of the Council or
C the Committee as the case may be. The action so taken shall be
forthwith initimated to all the m~mbers of the Council or the
Committee concerned. The papers shall be placed before the next
meeting of the Council or the Committee concerned for confirma-
tion.
D
7. The Council or any Committee may adjourn from day to day or
any particular day, without further notice.

8. A member shall address the chair when speaking at a meeting
of the Council and he shall be entitled to speak only once on each
E subject, unless otherwise required or permitted by the Chairman
to do so.

9. Save as otherwise provided in these rules, the decision on
any matter shall be by majority, and in the case of equality of
F votes, the Chairman of the meeting shall have a second or
casting vote.

10. No matter once decided shall be reconsidered for a period of
three months unless the Council by a two-thirds majority of the
members present so permits.
G
11. Any Committee may refer for advice any matter to the Council.

12. In the absence of the Chairman and the Vice-Chairman at any
meeting, a member chosen by members present shall preside at
H the meeting."
BABU VERGHESE v. BAR COUNCIL OF KER\LA (S. SAGHIRAHMAD, J.j 1133
..,.. Rule 1 contemplates a notice of not less than 15 days of the proposed A
"' meeting which is to be sent ordinarily by the Secretary, but if the Chairman
' \...
or any two members so require, the meeting can be convened on short
notice on grounds of urgency. The notice has to specify the time and place
of the meeting as also the agenda fixed for that meeting. The minutes of
the previous meeting are required to be read and recorded at the sub-
sequent meeting. That is how the business has to be ordinarily transacted
B
~ by the BCI. If, however, urgent action is to be taken by the BCI, the
provisions contained in Rule 6 can be invoked.

Since in the instant case a resolution for extension of the term of the
Kerala Bar Council was sought to be passed by the process of circulation
as provided by Rule 6 and the High Court has found it to have been validly
c
done, it was this Rule which constituted the focal point of debate by both
the sides in this appeal. We would, therefore, first analyse Rule 6 to find
out its requirements as also the essential elements of the "manner
prescribed" thereunder and then examine whether those requirements were
fulfilled in order to justify the resolution of "confirmation". The require- D
ments of Rule 6 are :-
:t.
(a) There should be a need for urgent action by the BCI;

(b) The Chairman shall then permit the business to be transacted
by circulation of papers to the members; E

(c) Action proposed to be taken shall not be taken unless agreed
to by a majority of the members;

(d) Action so taken shall be forthwith intimated to all the mem-
• bers; and F
)-

{e) The papers shall be placed before the next meeting of the
Council for confirmation.

Rule 6 can, therefore, be resorted to for urgent action. This can be
done by circulation of papers to all the members and if majority of the G
members so agree, the action would be taken immediately subject to two
reqtiirements that "(i) the action so taken is forthwith intimated to all the
members; and (ii) the papers are placed before the next meeting for
confirmation." It is, therefore, the "action taken on the majority opinion"
which is required to be confirmed in the subsequent meeting. H
1134 SUPREME COURT REPORTS (1999] 1 S.C.R.

A In order to find out as to how the BCI had proceeded in the matter,
we sent for the original record which were produced before us by the
counsel for the BCI. The record indicates that the BCI by its letter dared
13th January, 1997, addressed to all members, circulated a Resolution
under Rule 6 for extension of the term of the Kerala Bar Council by six
months. This letter reads as under :
B
"THE BAR COUNCIL OF INDIA

BCI:D:118:1997 21, Rouse Avenue
Institutional Area,
New Delhi- 110002.
c
13th Jan., 97

To,

All the members of the
D Bar Council of India.

Sub: Extension of the term of the Kerala Bar Council for a further
period not exceeding six months.

Sirs,
E
The Chairman has desired that the enclosed Resolution be
circulated to. the members for approval under Rule 6, Part II
Chapter II of the Rules of the Bar Council of India for extension
of the term of the Kerala Bar Council by six months from 27th
Jan., 1997. The term of the Bar Council of Kerala expires on the
F ...
27th of Jan., 97 and hence the urgency.

A copy of the letter of the Bar Council of Kerala is also
enclosed. Members are requested to kindly send the Resolution
back to us after signature on approval.
G Thanking you,
Yours faithfully,
Sd/-
(C.M. Balaraman)
Officiating Secretary
H Enc: As above."
BABU VERGHESE v. BAR COUNCIL OF KERALA [S. SAGHIRAHMAD, J.] 1135

The proposed Resolution, which accompanied this letter, reads as A
under:

"THE BAR COUNCIL OF INDIA

RESOLUTION UNDER RULE 6, PART II, CHAPTER Ill OF
THE BAR COUNCIL OF INDIA. B
,;
j. RESOLUTION

Resolved that the term of the Bar Council of Kerala be and is
hereby extended for six months from 27th Jan., 1997 under Proviso
to Section SA under the Advocates Act 1961 for the reasons set c
out in the letter of the Bar Council of Kerala dated 31.12.1996.

Place Approved I Not Approved
Date
..
.., (SIGNATURE OF THE MEMBERS)" D
Further documents which ha,1e been filed before us are the photostat
" copies of the list of members to whom this Resolution was circulated under
Certificate of posting on which only one postal stamp is clear which is of
14th January, 1997. Response from the following eight members only was
received by the BCI on various dates, noted against their names : E

1. Mr. Ashok Desai 15.1.1997

2. Mr.Ashok Deb 18.1.1997

3. Mr. D.V. Patil 25.1.1997 F

4. Mr.Jagannath Patnaik 25.1.1997

5. Mr. Arun Misra 30.1.1997

6. Illegible 3.2.1997 G
7. Mr. Gopakumaran Nair 4.2.1997

8. Illegible 7.2.1997

The matter came up for the consideration of BCI in the meeting of H
1136 SUPREME COURT REPORTS (1999) 1 S.C.R.

A 8th February, 1997 and the following resolution was adopted: J'.

"RESOLVED that the term of the Bar Council of Kerala be and
is hereby extended for six months from 27.1.1997 under proviso to
section SA of the Advocates Act, 1961 for the reasons set out in
the letters of the Bar Council of Kerala -
B
1. Letter No. KBC/BCl/991 of 1996 dated 31-12-1996
)(

2. Letter No. KBC/BCl/38 of 1997 dated 13-1-1997."

This resolution was communicated to the Bar Council of Kerala by
c registered AD. post on 12.2.1997.

A perusal of this resolution indicates that the extension in the term
was granted under the Proviso to Section SA of the Act. The resolution
does not speak of "confirmation" as, indeed, there could not be any '
"confirmation" as no action on the resolution which was circulated to
D members was taken possibly because only eight had responded and that ~

too, very late, as the term of the State Bar Coun_cil had already expired
27.1.1997. )( "
Learned counsel for BCI and the counsel appearing for Kerala Bar
Council contended that Resolution adopted on 8.2.1997 was a resolution
E
of "confirmation" under Rule 6 and, therefore, it would relate back to the
date (13.1.1997) on which the resolution was circulated to the members.
The term shall be deemed to have been extended from that date. This
argument must fail.

F Rule 6 contemplates confirmation of "action" taken by the BCI. The
""--
manner in which action would be taken has been prescribed in the Rule
itself. It provides that if urgent action becomes necessary, the Chairman
,,
may permit the business to be transacted by circulation of papers to all its
members but the action proposed to be taken will not be taken unless
agreed to by a majority of the members. The Rule further requires that the
G action so taken shall be intimated to all the members and the papers shall
be placed in the next meeting for confirmation. The Rule, therefore,
contemplates "urgent action" being taken on the opinion of the majority of
·..i,-~
the members. It is this "action" which is confirmed in the next meeting. It
is obvious that if no action is taken, the question of confirmation does not
H arise.
'
j
< (

I'

BABU VERGHESE v. BAR COUNCIL OF KERALA [S. SAGHIRAHMAD, J.] 1137

In the instant case, process for "action", no doubt, was initiated, but A·.·
no action was taken. The resolution for extension of the term of the Kerala
Bar Council was circulated on 13th or 14th January, 1997 and opinion of
eight members was also received but no "action" was taken on that basis
nor was any member intimated of the "action" taken. By the time the
opinion of the eight members was obtained, the term of the Kerala Bar
B
_. Council stood expired on 27.1.1997. By that date, namely, by 27.1.1997, only
_j " four members, namely, Mr. Ashok Desai (15.1.97); Mr. Ashok Deb
(18.1.97); Mr. D.V. Patil (25.1.97); and Mr. Jagannath Patnaik (25.1.97)
had indicated their approval. But that was not enough as the Rule itself
provides that "action" will not be taken unless agreed to by a majority of
the members. Since there were eighteen members in the BCI, the opinion
c
of four of the members was wholly irrelevant and insufficient for "action"
being taken. On that basis, no extension could be granted, nor was it
granted.

We may point it out that the process for extension of the term of D
Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applil\d,
it must be shown that all its requirements were fulfilled.

It is the basic principle of law long settled that if the manner of doing
a particular act is prescribed under any Statute, the act must be done in E
that manner or not at all. The origin of this rule is traceable to the decision
in Taylor v. Taylor, (1875) 1 Ch.D 426 which was followed by Lord Roche
in Nazir Ahmad v. King Emperor, 63 Indian Appeals 372 = AIR (1936) PC
253 who stated as under :
)>
"Where a power is given to do a certain thing in a certain way, the
F
' thing must be done in that way or not at all."

This rule has since been approved by this Court in Rao Shiv Bal1adur
Singh & Anr. v. State of Vindhya Pradesh, (1954] SCR 1098 = AIR (1954)
SC 322 and again in Deep Chand v. State of Rajasthan, (1962] 1 SCR 662 G
= AIR (1961) SC 1527. These cases were considered by a Three-Judge
Bench of this Court in State of Uttar Pradesh v. Singhara Singh & Ors., AIR
(1964) SC 358 = [1964) 1 SCR 57 and the rule laid down in Nazir Ahmad's
case (supra) was again upheld. This rule has since been applied to the
j exercise of jurisdiction by courts and has also been recognised as a salutary H
'
G Learned counsel for the respondents have placed strong reliance on
the decision of this Court in Sri Parmeshwari Prasad Gupta v. Union of
Indiai (1973) 2 SCC 543 in support of their contention that "confirmation"
would relate back to the date on which "action" was taken. This case is
.clearly distinguishable. Here, the services of the General Manager of a
H company were terminated by a resolution passed at a meeting of the
BABU VERGHESE v. BAR COUNCIL OF KERALA [S. SAGHIRAHMAD, J.] 1139

> Directors, of which notice to one of the Directors was not given. This A
meeting was held on 16.12.53 and the services were terminated by letter of
the Chairman dated 17.12.53. The decision taken by the company in
terminating the service at the earlier meeting, of which notice was not given
to one of the Directors, was confirmed in a regularly convened meeting on
23.12.53. It was in this context that this Court held that although the earlier
B
meeting at which the resolution for terminating the services of the General
Manager was adopted was not valid as notice to one of the Directors was
not given, the subsequent meeting at which the resolution of confirmation
was adopted, would cure the defects and the subseque1:1t resolution would
relate back to the date on which "action" was taken and the services were
terminated. That is to say, the termination would be effective from the date
c
on which the original resolution was adopted. The decision was essentially
based on the effect of "confirmation" in a regularly convened meeting on
the "action" which had already been taken. It was this defect which was
cured by a resolution of confirmation at the subsequent meeting and it was
held that this resolution would relate back to the date on which the services
Do
were terminated.

This principle cannot be applied in the instant case. BCI, as pointed
out earlier, took no "action" on the basis of the resolution circulated to its
members. In fact, it abandoned the whole proce;ss and adopted a resolution E
of extension only at its meeting on 8.2.1997 which would not relalie back to
the date of circulation as 'mere circulation' is not "action" and that too,
based on majority opinion, within the meaning of Rule 6 which was
required to be confirmed.

• Learned counsel for the respondents in their written submissions F
" have referred to Dictionary meaning of the word "confirm" or "confirma-
tion" in support of their argument that it has the effect of validating the
earlier act. We appreciate their effort and add to their research the maxim,
"Confimtatio omnes supp/et defectus, licet id quad actum est ab initio non
valuit". (Confirmation supplies all defects, though that which had been G
done was not valid at the beginning.) But, as pointed out above, it was not
a case of "confirmation" as no "action" under Rule 6 was taken. Since the
~ "· term of the Kerala Bar Council had expired on 27th January, 1997 and they
had ceased to be members with effect from that date, their term could not
be legally revived with retrospective effect by BCI on 8th February, 1997 H
1140 SUPREME COURT REPORTS (1999] 1 S.C.R.
A when it adopted the resolution for extension of the term by six months. The
Kerala Bar Council had ceased to have any jurisdiction and could not hold ·
fresh elections which could be held only by the Special Committee ap-
pointed by the BCI.

B Lastly, it was contended by learned counsel for the respondents that
the elections already having been held and the members having been in
office for more than one and half year, this Court should not intervene,
specially as the appellants could have challenged the elections by way of
an Election Petition which was not done. This contention is wholly devoid
of merit. The decision of this Court in Bar Council of Delhi & Anr. v. Swjit
C Singh & Ors., AIR (1980) SC 1612 = (1980) 3 SCR 940 = (1980) 4 SCC
211 is a complete answer to this contention.

In the instant case, it was the question of jurisdiction to hold elections
which was agitated in the Writ Petition. Fresh elections could have been
CD held by the Kerala Bar Council only before the expiry of its term. Other-
wise, the jurisdiction to hold elections passes on to the Special Committee
appointed by the BCI in terms of the provisions contained in Section SA
which are imperative in character. Since the Kerala Bar Council had ceased
to have any jurisdiction on the expiry of its term and the so-called extension
E of its term has been held by us to be wholly illegal, the elections held by
the Kerala Bar Council were farcical in character and on that basis the
respondents cannot claim themselves to be the duly elected members of
the Council.

Queerly, the Kerala High Court, merely after looking into the cor-
F respondence between the State Bar Council and the Bar Council of India,
as also the resolution adopted on 8th February, 1997, came to the con-
clusion that the term of the State Bar Council shall be treated to have been
extended before the expiry of the original term. This view, in our opinion,
is wholly erroneous and contrary to the mandatory provisions contained in
the Act and the Rules framed thereunder. The impugned judgment cannot,
G therefore. be sustained. The appeal Is consequently allowed and the judg-
ment passed by the High Court is set aside. The Writ Petition filed by the
appellants stands allowed.

Th~ B<!r Council of India is directed to appoint a Special Committee
H as contemplated by Rule SA within two weeks from the date on which a
BABU VERGHESE v. BARCOUNCILOFKERALA(S.SAGHIRAHMAD,J.] 1141

copy of this judgment is communicated to them and the Special Committee A
shall, within four months of its being constituted, hold the elections for
constituting a new Kerala Bar Council in accordance with law. Till the
elections are held, the Special Committee shall, as provided by Sectio11 SA
of the Act, discharge the functions of the State Bar Council with all other
consequences provided thereunder.
B
There will be no order as to costs.

R.K.S. Appeal allowed.

f