Holding

The proviso to Rule 3(j) is ultra vires and invalid, making the electoral roll and the election void; the writ petition is maintainable and the alternative remedy under Rule 34 is insufficient.

Summary

In 1978 the Delhi Bar Council added a proviso to Rule 3(j) of its Election Rules requiring advocates to submit a declaration confirming certain qualifications, failing which they would be excluded from the electoral roll. About 2,000 advocates were omitted, the electoral roll was used for the Bar Council election and the results were declared. The petitioners challenged the election, arguing that the proviso was beyond the State Bar Council's power under the Advocates Act, that the Bar Council of India's approval could not validate an ultra vires rule, and that the exclusion of advocates rendered the election void. The Supreme Court held that the proviso was ultra vires because qualifications for voting are prescribed only by the Bar Council of India under sections 3(4) and 49(1)(a) of the Advocates Act, and that the Bar Council of India's approval cannot cure a rule made beyond competence. Consequently the electoral roll prepared on that basis was invalid, the whole election was void, and the writ petition was maintainable; estoppel, laches and the alternative remedy under Rule 34 were rejected. The appeals by the Bar Councils were dismissed.

Issues considered

The validity of the proviso added to Rule 3(j) of the Delhi Bar Council Election Rules under the Advocates Act, 1961.
Whether the Bar Council of India's approval can render a rule made ultra vires by a State Bar Council valid.
Whether the exclusion of approximately 2,000 advocates from the electoral roll invalidates the entire election.
Whether the petitioners are barred by estoppel or laches from challenging the election.
Whether the alternative remedy provided in Rule 34 of the Delhi Bar Council Election Rules is an adequate substitute for a writ petition.

Legislation cited

Advocates Act, 1961s. 15(1), s. 15(2)(a), s. 15(3), s. 24(e)(1), s. 26A, s. 3(4), s. 49(1)(a)

Subjects

Advocates ActBar Council of DelhiBar Council of Indiaelectoral rollelection validityultra viresrule-making powerwrit petitionestoppellachesalternative remedyRule 34

Judgment

946

A BAR COUNCIL OF DELHI AND ANR. ETC.
v.
SURJEET SINGH AND ORS. ETC. ETC.
May 1, 1980
B [N. L. UNTWALIA, V. D. Tul.ZAPURKAR AND A. P. SEN, JI.] t

Bar Council of Delhi Election Rules 1968 Rule 3(i) ·validity of-JUJViiic-"
tion of the High Court under Article 226-Alfernative remedy no bar-Rig'ltt
l
to vote and right to stand for election-Doctrine of Promissory Estoppel allll
principle of approbation and reprobation.

In the year 1978, a proviso wa< added to "Rule 3(j) of the Bar Council
'
c of Delhi Flection Rules, 1968 with the approval of the Bar Couucil of India in
accordance with the requirement of Sub-section (3) of section 15 of the
Advocates Act, 1961. In accordance with that proviso a copy of the decla-
ration form was sent on 14th June, 1978 to the Advocates whose names found
place in the State roll of Advocates asking them to return the declaration form
duly filled up and signed within the specified period. A publication to this
effect was also made in some newspapers viz. Hindustan Times, Indian Express,
D
Statesman etc. The last extended date for the submission of the declaration"
forms was 14th September, 1978 and the electoral 'roll was finally" pub-
lished on the 16th September, 1978 excluding the names of about 2,000 Advo-
cates who had failed ro submit such declaration forms. On the besis of the
electoral roll so prepared, elections to tho Bar Council of Delhi was held on
the 17th November, 1978. The total number of advocates on the Advocates
E roll was 5,000 and odd out of which the names of about 3,000 and odd
only were included in the electoral roll in accordance with the proviso to
Rule 3 (j) of the Election Rules of the Bar Council of Delhi. The re!ults of
the election were declared on the 19th November, 1978. The names of lhe
15 persons Who were declared elected were published in the Gazette on the
22ild November, 1978. Thereafter the respondents in these appeals filed writ
petitions challenging the whole election by attacking the validity of the pro-
F viso to Rule 3(j).
The Delhi High Court allowed the three writ petitions taking the view,
(i) so for as the qualifications to be possessed by and the conditions to be
I
satisfied by an advocate before being brought on to the Electoral Roll was
concerned only the Bar Council of. India has the competence to make the ~
\
rules under section 3(4) and section 49(1)(a) of the Advocates Act, 1961 and·

G
the State Bar Council has no power at. all to make o. rule on this subject;
(ii) the plea of estoppel against Surjeet Singh does not arise, (ill) nmt in-
justice has been done to the petitioners because more than 2000 advocates
..
were wrongfully disqualified being brought on the Electoral Roll. Thi.! has
materially affected the result of the elections; and (iv) Rule 3(j) of the Bar
Council of Delhi Election Rules, 1968 is in excess of the roles making power
of Bar Council of Delhi.
H Dismissing the appeals by special leave the Court,
HEID : 1. The impugned proviso to Rule 3(j) of the Delhi B!ll Comu:IV
bf Electiop.. Rules is ultra vires and invalid 3.nd the. electoml roll prepared by
BAR COUNCIL OF DELHI V. SURJEET SINGH 947

the Delhi Bar Council o~ the basis of the same resulting in the exclusion o! A
the names of about 2000 advocates from the said roll was not valid in
lMV. [958!}.E]
(b) The whole election was invalid on that account and it could be chal-
lenged as such in a writ petition. It was not a case of challenging the pre-
• paration of the electoral roll on the factual basis of wrong exclusion of a few
namei. For the said purpose Rule 4 occurring in Chapter I of the Bar B
Cotmcil of India Rules could come into play. But here, because of the in-
J validity of the Rules itself, the preparation of the electoral roll was completely
vitiated-a matter which cannot be put within the narrow limit of the
said rule. [958E-F]
However, it depends upon the nature and the intensity of the error com-
mitted in the preparation of the electoral. roll and its effect on the whole
) c
_,.. ..
election for deciding the question as to whether a writ petition wonld be
maintainable or not. [862E-F]
Chief Commissioner, Aimer v. Radhey Shyam Dani, [1957] S.C.R. 68;
Parme1hwar Mahaseth and Ors. v. 1State of Bihar and Ors., AIR 1958 Patna
149; Umakant Singh and Ors. v. Binda Choudhary and Ors., AIR 1965 Patna
459; D<v Prakash Balmukand v. Babu Ram Rewti Mal and Ors. AIR 1961
Punjab 429; Ramgulam Shri Baijnath Parsad v. The Collector, District Guna D
and OFJ., AIR 1975 M.P. 145 and Bhoop Singh v. Bar Council of P1miab
and Haryana through its Secretary and Ors., AIR 1976 M.P. 110; referred to.

(c) The illegal preparation of the electoral roll by the Delhi Bar Council
on the basis of the invalid proviso to Rule 3 (j) goes to the very root of the
matter and no election held on the basis of such an infirmity can be upheld.
There is no question of the result being materially affected in such a E
case. [958F-GJ ·

(d) The contesting respondents could not be defeated in their writ petitions
on the ground of estoppel or the principle that one cannot approbate and
reprobate or that they were guilty of laches. In the first instance some of the
contesting respondents were merely voters. Even Sri Surjeet Singh in his
writ petition claimed to be both a candidate and a voter. As a voter be could F
challenge the election even assuming that as ~ candidate after being unsuccess-
ful he was estopped from doing so. But, merely because he took part in the
electiOn by standing as a candidate or by exercise of his right of fmnchise he
cannot be estopped from challenging the whole election when the election was
~aringly illegal and void on the basis of the obnoxious proviso. There
IS no question of approbation and reprobation in such a case. A voter could
• come to the High· Court eyen earlier before the election was held. But mere- G
ly beoouse he came to challenge the election after it was held it cannot be
said that he was guilty of ]aches and must be. non-suited on that
account. [958F-H, 959A·B]

Kanglu Beula Kotwal and Anr. v. Chief Executive Officer, Janpad Sabha,
Durga and Ors., AIR 1955 Nagpur 49; distinguished.
H
(e) The manner of resolving disputes as to the validity of election is pro·
vided for in Rule 34 of the Delhi Bar Council Election Rules. This is not an
SUPREME COURT REPORTS [1980] 3 S.C.ll,

A appropriate and adequate alte'l"'tive remedy to defeat the writ petitioner on
that account. Firstly, 'no clause of Rule 34 covers the challenging of the
election on the ground that it has been done in this case. Secondly, the
Election Tribuool will not be competent to declare any provision of the Blee- .-(.
ti.on Rules ultra vires and invalid. It ~ not a case where the name of any
voter was wrongly omitted from the electoral roll but it is a case Where the
preparation of the whole electoral roll was null and void because of the in- •
·B validity of the impugned proviso. [959C-D, &Fl

Ramgulam Shri Baijnath Pd. v. The Collector, Dist. Guna and Ors., AIR l
1975 M.P. 145 and Bhupendra Kumar Jain v. Y. S. Dharmadhikari and Ors.,
AIR .1976, M.P. llO; referred to.

Bhoop Singh v. Bar Council of Puniab and Haryana through its Secretary
'C and Ors., AlR 1977 Pb. & Haryana; quoted with approval. ~·

K. K. Srivastava etc. v. B1iupendra Kumar Jain and Ors., AIR 1977 S.C.
1703; distinguished.

2. If the alternative remedy fully covers the challenge to the election then
that remedy and that remedy alone must be resorted to even though it in-
D volves the challenge of the election of all the successful oandidates. But if
the nature and the ground of the challenge of the whole election are such that
the alternative remedy is no remedy in the eye of law to cover the challenge
or, in any event, is not adequate and efficacious remedy, then the remedy of
writ petition to challenge the \Vhole election is still available. In the present
case the Election Tribunal would have found itself incompetent to declare the
proviso to Rule 3(j) of the Delhi Bar Council Election Rules ultra yires and
E that being so the alternative remedy provided in Rule 34(8) was no
remedy at all. [9641)..F]

Suryya Kumar Ray v. The Bar Council of India and Ors. Matter No. 304
of 1976 decided on December 17, 1976, ovemiled.

Barish Sambhu Prasad v. Bar Council of Gujarat, Special Civil Applica-
F tion Nos. 542 and 551 of 1969; approved.

3. So long the existing rules framed by the Bar Council of India remained
In vogne all persons whose names are ori .the State Roll are entitled proprio
vl11.ore to be put on the electoral roll. Sections 24(e )( 1) and 26A of the
Advocates Act, 1961 read with Rules l, 2 and 3 of Chapter I of Part ill of
the Bar Council of India Rules male this position clear. [954A-B, [).HJ
G 4. On a plain reading of sub-sections 4 of section 3 of the Advocate& Act, •
1961, it is manifest that under the Act the qualifications and conditions entit-
ling an advocate to vote at an election or for being chosen as a member of
the State Bar CQuncil has to be prescribed by the Bar Council of India. Tlte
State Bar Council bas no such power. The power of the State Bar Council
is merely to prepare and revise from time to time the electoral roll subject to
the Rules made by the Bar Council of India concerning the qualifications and
H conditions aforesaid. This interpretation of Section 3 (4) of the Act finds
ample support from the very special and specific provision contained in section .
49(l)(a) providing for the general power of the Bar Council of India. [956F-H]
BftR COUNCIL OF DELHI V. SURJEBT SINGH 949

S. It is true that the power to make rules conferred by section IS is both A.
for the Bar O>uncil of India as also for the Bar O>uncil of a State. But
no provision Of section IS can override die specific provision IJlllde in section
3(4) and section 49(1)(a) of the Act. Sub-section (I) of section 15 says-
"A Bar Council may make rules to carry out !he purpooes of !his Chapter"
which means Chapter ll including section 3. But the power to prescn'be quali-
• llcatioDS and conditions entitling an advocate to vote at an election being that of
the Bar O>uncil of India section IS(!) cannot be interpreted to confer power B.
on the State Bar O>uncil to make rules regarding the qualifications and con-
ditiono aforesaid. [957B-DJ

The State Bar O>ancil can franw rules for the preparation and revision of
electoral rolls under section 15(2)(a). That would be in conformity witll the
.i latter part of sub-section ( 4) of section 3 elso. But in the garb of making
a rule for the preparation and revision of die electoral rolls it cannot pres- c
~ cribe disqualifications, qualiftoations or conditions subject to which an advo-
cate whose name occurs in the. State roll can find place in the electoral roll
resulting in his deprivation of his right to vote at the election. In the instant
case nndef the impugned proviso failure on the part of an advocate to sub-
mit the required declaration within the specified time entitles 1he State Bar
Council to exclude his name from the electorel roll. Such a thing was squa-
rely oovered by the exclusive power conferred on the Bar O>uncil of India
under sections 3(4) and 49(l)(a) of the Advocates Act. The Stste Bar
Cotmcil hail no such power. [957F-H]

6. The approval of the Bar Council of India can make the rule made by
the State Bar Council valid and effective only if the rule made is within the
competence of the State Bar Council otherwise not. Mere approval by the Bar E.
Council of India to a rule ultra vir"" the State Bar O>uncil cannot make the
rule valid. Nor has it the effect of a rule made by the Bar Council of India.
Making a rule by the Bar Council of India and giving approval to a rnle made
by the State Bar Council are two distinct and different things. One cannot
take the place of the other. [958B-DJ

ClvIL APPELLATE JURISDICTION : Civil Appeals NOil, 2224, 2225 F.
and 2226 of 1979 .
.,,., Appeals by Special Leave from the Judgment and Order dated
22-5-1979 of the Delhi High Court in Civil Writ NOil. 111, 551 and
284 of 1979.
• V.M. Tarkunde, A. K. Sen, G. L. Sanghi, B. P. Maheshwari and G:
S. K. Bhattacharya for the Appellants in C.A.s. 2224, 2225, 2226179.
P. R. Mridul, Vimal Shanker, K. R. R. Pillai, P. N. Wadhera and
Aruneshwar Gupta for Respondent No. 1 in CA 2224/79.
D. D. Chawla, Vineet Kumar and R. S. Sihota for Respondent
Nos. 1-3 in CA 2225/79.
H
B. D. Sharma and Aloka Bhattacharya for Respondent No. 1 in
CA 2226/79.
950 SUPREME COURT REPORTS [1980] 3 s.c.R.

A The Judgment of the Court was delivered by

UNTWALIA J .-These th!ee appeals by the Bar Council of Delhi
and the Bar Council of India are from the common judgment of the
....
Delhi High Court .allowing three writ petitions filed by the first res-
pondent in each appeal and others seeking the setting aside of the elec- •
B tion of the Bar Conncil of Delhi held in the year 1978. As the points
involved in them are identica( they are all being disposed of by this
common judgment. We shall proceed to state the facts from the records
of Chi! Appeal No. 2224 of 1979 in which respondent no. 1 is Shri
Surjeet Singh Bhangul. He was a voter as also a candidate for the elec-
tion wherein he lost In the writ petition giving rise to Civil Appeal
·c 2225 of 1979 there were three petitioners-two were candidates but
Shri D. R. Thakur was an advocate whose name was not included in
the electoral roll although his name occurs in the State roll of Advocates.
Shri A S. Randhawa, respondent no. 1 in Civil Appeal 2226 of 1979
was a person whose name occurred both in the State roll of Advocates
as also in the electoral roll. But he was not a candidate.

Surjeet Singh was an advocate who was a member of the Delhi Bar
Conncil before the impugned election. A proviso was added to Rnle
3.(j) of the Bar Council of Delhi Election Rules, 1968 in the year
1978. In accordance with that proviso a copy of the declaration form
E
was sent on 14th Jnne, 1978 to the advocates whose names fonnd place
in the State roll o1' Advocates asking them to return the declaration
form dnly filled up and signed within the specified Fod. A publica-
tion to this effect was also made in some newspapers viz. Hindustan
Times, Indian Express, Statesman etc. The last ex~nded date for th•
submission of the declaration forms was 14th September 1978 and the
electoral roll was finally published on the 16th Septelnber 197 8 exclud-
ing the names df about 2,000 advocates who had faijed to submit such
declaration forms. On the basis of the electoral ·toll so prepared,
.,,,_.
\
according to the programme of election, the electi?Jl of members to
the Bar Council of Delhi was held on the 17th Nofomber 1978. The
total number of adrocates on the Advocates roll was ji,000 and odd oot •
of which the names of about 3,000 and odd only were included in the
el.ectoral roll in accordance with the proviso to Rulel 3 (j) of the Elec-
tion Rules of the Bar Council of Delhi. The results of the election were y
'I
declared on the 19th November, 1978. The names lof the 15 persons
who were declared elected were published in the Gazette on the 22nd
H November, 1978. Thereafter on the 24th of Januaijy 1979 the writ
petition was filed in the High Court challenging the whole election by
attacking the validity of the proviso to Rule 3 (j). I
BAR COUNCIL OF DELHI v. SURJEET SINGH ( Untwalia, J.) 951

Apart from the successful candidates the writ petitions were mainly A
.and vigorously contested by the two Bar Councils, namely, the Bar
Council of Delhi and the Bar Council of India. The latter seems to
have taken keen interest in the matter of contesting the writ petitions
because the impugned proviso to Rule 3 (j) was introduced in the Elec-
• tion Rules with the approval of the Bar Council of India in accordance
l with the requirement of sub-s. ( 3) of Section 15 of the Advocates Act,
1961. The High Court has taken the view;-
.B ·

( 1) "Lastly, the irresistible conclusion, therefore, is that
so far as the qualifications to be possessed by and the
'. 7 conditions to be satisfied by an advocate before be-
t ing brought on the Electoral Roll are concerned only
the Bar Council of India has the competence to make
C

the rules under Section 3( 4) and Section 49(1)(a)
and the State Bar Council has no power at all to make
a rule on this subject."
( 2) The plea of estoppel raised against Snrjeet Singh was
rejected. D
(3) "Rank injustice has been done to the petitioner be-
cause more than 2,000 advocates were wrongfully
disqualified from being brought on tho Electoral Roll.
Tim has materially affected the regnlt of the olection."
( 4) "For the reasons stated above, we hold that Rule E
3(j) of the Bar Council of Delhi Election Rules, 1%8,
is in excess of the ruleS making power of the Bar
Council of Delhi. Since the action taken by the Bar
Council of Delhi to disqnalify more than 2,000 advo-
cates because of their non-<:<>mpliance with the pro-
viso to Rule 3 (j) has resulted in great prejudice to the F
petitioner who can justly claim that the bringing on
the Electoral Roll of more than 2000 advocates wonld
have made a considerable difference to his own elec-
tion and to the election as a whole, we are constrained
to set aside the election to the Bar Council of Delhi
held on 17th November 1978." G
M/s V. M. Tarkunde, A. K. Sen and G. L. Sanghi appearing for
>the appellMm, broadly speaking, made the following submissions : -
( 1) That the impugned proviso of Delhi Bar Council Elec-
tion Rufo; was valid as it was within the competence
of the Delhi Bar Council to add 1uch a proviso in the H
Rules under its tale making power with the approval
of the Bar Council of India. In any event the ap-
952 SUPREME· COURT REPORTS [198Q] 3 S.C.ll~

A proval had the effect of making it a rule made by the
Bar Council of India.
(2) The electoral roll prepared by ·the Bar Council of
Delhi could not be challenged in a writ petition. The
preparation of the electoral roll is final and any wrong
exclusion or inclusion of name from or in the electoral
•
B
roll is beyond the pale of challenge in a writ petition.
(3) That it was not shown that the result of the election
has been materially affected due to the non-inclusion
of the names of about 2,000 advocates from the eloo--
toral roll. There was neither any pleading to this.
c effect nor was any material placed before the High.
Court in support of this assertion.
( 4) That Surjeet Singh and others like him who had taken
part in the election and were defeated were estop-
ped from challenging the election as they could not
approbate and reprobate at the same time. They were
D
guilty of !aches also as they could have challenged in
the High Court the validity of the impugned proviso
before the election was actually held.
(5) That there is a specific remedy provided in the Delhi
Bar Council Election Rules for challenging any elec-
E tion to the Bar Council and hence in view of the ade-
quate remedy being available the election could not
be challenged by a writ petition.
M/s. P. R. Mridul and F. S. Nariman appearing for the contesting
respondents combated all the submissions made on behalf of the appelc
F !ants and supported the judgment of the High Court.
We find no substance in any of the points urged on behalf of the·
appellants. We are, by and ]arge, in agreement with the decision of
the High Court on each and every point. We proceed to briefly state
t i

our reasons for the same.
G Section 4 of the Advocates Act provides for persons who may be
admitted as advocates on a State roll. Clause (e) of sub-s. ( l ) says
that the person must fulfil such other conditions as may be specified in y
the rules made by the State Bar Council under Chapter Ill of the Act 'I
which concerns the admission and enrolment of advocates. Under
the Rules so framed a person desirous of being enrolled as an advocate
H has to apply in the prescribed form furnishing all the details Qf his
qualifications to be enrolled as an advocate. In item 3 of the appli-
cation the applicant declares-"I. declare that upon admission I pro-
BAR COUNCIL OF DELHI v. SURJEET SINGH ( Untwalia, J.) 95 3

pose to practise within the State of Delhi." At the end of the appli- A
cation form certain undertakings are given by the applicant. Clause
).._ ( c) of the undertaking runs thus : -
"I hereby declare and undertake that-
• . .... ................................. .
~

(iv) I intend to practise Qrdinarily and regularly within B
J the jurisdiction of the Bar Council of Delhi.
( v) I shall inform the Bar Council of a11y change of
• address of my residence or place of practice for the
proper maintenance of the roll and voters' list."
17
c
~ According to the case of the Delhi Bar Council many advocates
after having been enrolled and put on the State roll of advocates of
Delhi break the said undertaking. They do not ordinarily and regu-
larly practise within the jurisdiction of the Bar Council of Delhi nor
do they inform any change of address fQI' the proper maintenance of
the roll and the voters' list. It is a pertinent matter no doubt. It D
1is the duty of the Bar Council to obtain information as to whether any
person put on the roll of State advocates ceased ordinarily and regu-
larly to practise within the jurisdiction of the Bar Council of Delhi, if
so, to take steps for removal of his name from the State rolls. That
would automatically, as we shall presently show, debar the person
concerne<l to be put on the electoral roll. But no provision in the E
Advocates Act or any rule was brought to our notice enabling the
Delhi Bar Council to remove the name of a pel'l!on from th@ State roll
if he has broken the undertaking aforesaid. Section 26A, of the Advo-
cates Act merely says-"A State Bar Council may remove from the
State roll the name of any advocate who is dead or from whom a
request has been received to that effect." In para 2 of the affidavit of
Shri D. Gupta, Advocate it is ~tated : -
"It is the experience of this Council that most of the
advocates who are elevated to the Bench or those who join
subordinate judiciary or family or other business or employ-
ment, seldom care to notify this Council to get their licence G
revoked or suspended, nor do the advocates shifting their
place of practice from Delhi to elsewhere, care to notify this
Council in that respect, although the undertakings at internal
page 8 of the Enrolment form of this Council oblii:es them
to do so."
D
It may be so but the lacunae in this regard have got to be removed by
amending the Advocates Act or by properly framing the rules in thati
2-610SCI/80
954 SUPREME COURT REPORTS [1980] 3 S,C,R,

A respect. We are definitely of the opinion that so long the existing
rules framed by the Bar Council of India remained in vogue all per-
sons whOie names are on the State roll are entitled proprio vigore to
be put on the electoral roll Rule 1 occurring in Chapter I of Part
III of the Bar Council of India Rules says : -
"1. Every advocate whose name .is on the Electoral Roll •
a of the State Council shall be entitled to vote at an .election."
Rule 2 provides : -
"2, Subject to the provisions of Rule 3, the name of
every advocate entered in ihe State Roll shall be entered in
the electoral roll of the State Council."
c
&ceptions to Rule 2 are to be found embodied, in Rule 3 which runs
thus:-
"3. The name of an advocate appearing in the State
Roll shall not be entered in the Electoral Roll, if on infor-
mation obtained by the State Council :
D
(a) his name has any time been removed;
(b) he has been suspended from practice, provided that
this disqualification shall operate only for a period of
five years from the date of the expiry of the period of
suspension;
( c) he is an undischarged insolvent;
( d) he has been found ·guilty of an election offence in
regard to an election to the State Council by an Elec-
tion Tribunal, provided however that such .disquali-
fication shall not operate beyond the election next
p' following after such finding has been made;
( e) he is convicted by a competent court for un offence
involving moral turpitude, provided that this disqua-
.,_
lification shall cease to have effect after a period of '
two years has elapsed since his release;
G (f) he is in full-time service or is in such part-time busi- •
ness or other vocation not permitted in the case cf.
practising advocates by the rules either of the State y
Cmmcil concerned or of the Council;
(g) he has intimated voluntary suspension of practice and '
II
has not .given intimation of resumption of practice." '"
None of the clauses in Rule 3 covers a clause of the kind found in
the proviso to Rule 3 (j) of the Delhi Bar Council Election Rules.

•
BAR COUNCIL OF DELIII v. SURJEET SINGH (Untwalia, J.) 95 5

~ule 3 of Delhi Bar Council Election Rules is headed 'Interpretation". A
Clause (j) of the said Rules says : -
""Electoral Roll" means and includes the roll containing
the names of the advocates prepared in accordance with the
rules of the Bar Council of India in Part III, Chapter I."
• The impugned proviso added to clause (j) in the year 1978 runs B
thus:-
J
"Provided that the Elector;il Roll shall not include the
name of such advocate who fails to file in the office of the
Bar Council, on or before such date (not being earlier than
30 days of the date of notification) as may he notified by
c
•
17 the Bar Council in such mannoc ,as may be considered proper
by it from time to time, or withiri 45 days of the putting up
of the preliminary Electoral Roll under Rule 4 ( 1 ) of Chapter
I of Part II! of the Bar Council, of India Rules, a declaration
containing the name, address and number of the advocate
on the State Roll and to the effect that : -
D
(a) He is an advocate ordinarily practisinlll in the Union -
Territory of Delhi and that his principal place of
practice is within Union Territory of Delhi;
(b) He is not an undischarged insolvent;
( c) l{e has never been convicted by any court for an offence E
involving moral turpitude;
or
A period of two years has elapsed since his release
after being. convicted of an offence involving moral
turpitude; F
(In case of conviction particulars of such conviction
should be given)
(d) He is not in full-time service or business or in any
such part-time business or other vocation as is not
permitted in the case of practising adrocates by the
·- rules of the Bar Council; and
.G

( e) He has not been suspended from practice; and on
the failure to file the declaration or C1ll filing of in-
complete or incorrect declaration in any respect, it
shall be presumed that the name of such advocate is
not to be entered on the Electoral Roll in accordance H-
with Rule 3 of Chapter I of Part ID of the Bar Coun-
cil of India Rules."
956 SUPREME COURT REPORTS [1980] 3 S.C.R.

A In these appeals we are not concerned with the proprfoty or legality
of asking such a declaration from a person belonging to the, noble
profession. We shall proceed on the assumption that such an infor-
mation could be asked for from a person concerned whose name is
on the State roll of Advocates. On the furnishing of such information
the name of the advocate concerned could not ~ included in the
B electoral roll only if on the basis of that information one or more
clauses of Rule 3 of the Bar Council of India Rules to be found iii
Part III, Chapter I could come into play, not otherwise. In these
appeals w,e are not concerned with any such case. The contr~versy
here centres round the fact that under the impugned !Proviso mere
failure to file the required declaration disqualified the advocate con-
e cerned from being put on the electoral roll thus depriving him of his
right to vote or to stand as a candidate. The crux of the matter in
these appeals is as to whether such a proviso was valid or ultra vires.

In order to determine· the point at issue we shall now read some
relevant provisions of the Advocates Act. Section 3 provides for the
D constitution of the State Bar Council, sub-s. ( 4) of which says : -
-----.~

"( 4) An advocate shall be disqualified from voting at
'
an election under sub-section (2) or for being chosen as,
and for being, a member of a State Bar Council, unless he
E possesses such qualifications or satisfies such conditions as
may be prescribed in this behalf by the Bar Council of fadia,
and subject to any such rules that may be made, an electoral
roll shall be prepared and revised from time to time by each
State Bar Coll!lcil."

On a plain reading of this sub-section it is manifest that under the Act
F
the qualifications· and conditions entitling an advocate ta vote at an
election or for being chosen as a member of the, State Bar Council ha~
to be prescribed by the Bar Council af India. The State Bar Council
has no such power. The power of the State Bar Council is merely to
prepare. and revise from time to time the electoral roll subject to the
G rules made by the Bar Council of India concerning the qualifications
and conditions aforesaid. This interpretation of Section 3 ( 4) of the
Act finds ample support from the very special and specific J»"Ovision
' contained in section 49(1)(a) providing for the general power of the
Bar Council of India in these terms:-

H "49. (l) The Bar Council of India may make rules for
discharging its functions under this Act, and, in particular,
such rules may prescribe-
BAR COUNCIL OF DELHI v. SURJEET SINGH ( Untwalia, !.) 95 7

(a) the conditions subject to which an advocate may be A
entitled to vote at an election to the State Bar Coun-
cil in.eluding the qualifications or disqualifications of
voters, and the manner in which an electoral roll of
• voters may be prepared and revised by a State Bar
Council;"
B
J
Great reliance was placed on behalf of the appellants on the concurrent
power of the State Bar Council and the. Bar Council of India engrafted

..
:r
in section 15 of the Advocates Act. It is true that the power to make
rules conferred by section 15 is both for the Bar Council of India as
also for the Bar Council of a State. But no provision of section 15
can override the specific provision made in section 3 ( 4) and section
49(1)(a) of the Act. Sub-section (1) of section 15 says-"A Bar
Council may make rules to carry out the purposes of this Chapter"
c

which means Chapter II including section 3. But the power to pres-
cribe qualifications and conditions entitling an advocate to vote at an
election being that of the Bar Council of India section 15 ( 1) cannot D
be interpreted to confer power on the State Bar Council to make rules
regarding ths qualifications and conditions aforesaid. The relevant
words of sub-section 2(a) of section 15 are the following:-

"In particular, and without prejudice to the generality of
the foregoing power, such rules may pmvide for:-

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . the preparation and
revision of electoral rolls and the manner in which
the results of election shall be published."
F
The State Bar Council can frame rules for the preparation and revi·
sion of electoral rolls under section 15(2)(a). That would be in
conformity with' the latter part of sub-section ( 4) of section 3 also.
But in the garb of making a rule for the preparation and revision of
the electoral rolls it cannot prescribe disqualifications, qualifications or
• conditions subject to which an advocate whose name occurs in the G
State roll can find place in the electoral roll resulting in his depriva-
. tion of bis right to vote at the election. In the instan~ case under the
impugned proviso failure on the part of an advocate ta submit the
required declaration within the specified time entitles the State Bar
Council to exclude his name from the electoral roll. Such a thing
was squarely covered by the exclusive power conferred on the Bar H
Council of India under sections 3 ( 4) and 49 (1) (a) qf the Advo-
cates Act. The State Bar Council had no such power.
958 SUPREME COUllT REPORTS [1980] 3 S.C.R,

A · Sub-s. (3) of section 15 says : -
"No rules made under this section by a State Bar Coun-
cil shall have effecj unless they have been approved by the
Bar Council of India."
Introduction of the impugned proviso in Rule 3 (j) of the Delhi Bar
B Council Election Rules was approved by Resolution No. 18 of 1978
passed by the Bar Council of India. Any rule made by the State Bar
Council cannot have effe_ct unless it is approved by the Bar Council
of India. But the approval of the Bar Council of India can make the
rule made by the S!ate Bar Council valid and effective only if the rule
made is within the competence of the State Bar Council, ptherwi8e
C not. Mere approval by the Bar Council of India to a rulo ultra vires
the State Bar Council cannot make the rulef vaiid. Nor has it the
effect of a rule made by the Bar Council of India. Making a rule by
the Bar Council of India and giving approval to a rule made by the
State Bar Council are two distinct and different things. One cannot
'take the place of the other.
D
We, therefore, hold that the impugned proviso to Rule 3 (j) of the
Delhi Bar Council Election Rules is ultra vires and invalid and the
electoral roll prepare.cl by the Delhi Bar Council on: the basis of the
same resulting in the exclusion of the names of about 2,000 advocates
from the said roll was not valid in law. We are further of the opinion
E that the whole election was. invalid on that account and it could be
challenged as such in a writ petition. It was1 not a case of challenging
the preparation of the electoral roll Oil the factual basis of wrong
exclusion of a few names. For the said purpose Rule 4 occurring in
Chapter I of the Bar Council of India Rules could come into· play.
But here, because of the invalidity of the Rules itself, the preparation
F
of the electoral roll was completely vitiated-a matter which cannot I
be put within the narrow limit of the said rule.

The illegal preparation of the electoral roU by the Delhi Bar Coun-
cil on the basis of the invalid proviso to Rule 3 (j) goes to the very
r
root of the matter and no election held on the basis of such an infir-
G mity can be qpheld. There is no question a( the result being mate-
rially affected in such a case.
The contesting respondents could not be defeated in their writ
petitions on. the ground of estoppel or the principle that one cannot
approbate and reprobate or that they were guilty of !aches. In the
H first inst312cc some of the contesting respondeois were merely voters.
Even Shri Surjeet Singh in his writ petition claimed to be bo'th a can-
-didate and a VQter. A$ a voter he could challenge the election even
BAR COUNCIL .OF DELHI v. SURJEET SINGH (Untwalia, !.) 959

assuming that as a candidate after being unsuccessful he was estopped A
from doing so. But to be precise, we are of the opinion that merely
beL<1use he took part in the election by standing as a candidate or by
exercise of his right of franchise he cannot be estopped from challeng-
ing the whole election when the election was glaringly illegal and void
• on the basis of the obnoxious proviso. There ii; no question of appro-
bation and reprobation at the same time in such a case. A voter B
l could come to the !figh Court e.ven earlier before the election was
held. But merely, because he came to challenge the election after it
was held it cannot be said that he was guilty of any !aches and must
be non-suited only on that accow1t.

,.,t
I There is no substance in the last submissiqn; made on behalf of the
appellants. The manner of resolving disputes as to the validity of
c
election is provided for in Rule 34 of the Delhi Bar Council Election
Rules. This is not an appropriate and adequate alternative remedy
to defeat the writ petitioner on that account. Firstly, no Flause of
Rule 34 coven. the challenging of the election on the; ground it has
been done in this case. Secondly, the Election Tribunal will not be D
competent to declare any provision o!- the Election Rules ultra vius
and invalid. Our attention was specifically drawn to clause (8) of
Rule 34 which says : -
"No petition shall lie on the ground tl1at any nomination
paper was wrongly rejected or the name of any voter wus
wrongly included in or omitted from the electoral roll or any
error or irregularity which is not of a substantial character."
As we have said above, it is not .a case where the name of any voter
' was wrongly omitted from the electoral roll but it is a case where the
preparation of the whole electoral roll was null and void because of the
invalidity of the impugned proviso. F

We now proceed to refer to some relevant decisions of the High
Courts and of this Court cited at the Bar in support of some of the
points discussed above.
Mudholkar J., delivering the leading and the majority judgment of G
a Full Bench of the Nagpur High Court in Kanglu Baula Kotwal &
another v. Chief Executive Officer. Janpad Sabha, Durg and others('),
rejected the plea of estoppel to challenge the election at page 58, para
25 in these terms : -
"As regards the petitioners who were also candidates at H
the elections but were defeated, the learned counsel said that
(ll A. I. R. 1955 Nagpur 49.
960 SUPREME COURT REPO~TS [l 98QJ 3 S.C.R.

A those who took their chances at the elections and failed
should not now be allowed to challenge elections of their
opponents on the ground that the electoral rolls were· defec-
tive. The plea is in substance one of estoppel. There can
be no question of any estoppel, because it cannot be said that
the position of. the other side has in any way altered by rea- •
• son of sqmething done or not done by the petitioners."

We are of the view that neither the principle of estoppel nor the prin- \
ciple of approbation and reprobation can be pressed into services1 in
this case.
•r
In Chief Commissioner, Ajmer v. Radhey Shyam Dani(') the res-
c pondent before the Supreme Court had filed a writ petition ln the
Court of Chief Commissioner of Ajmer challenging the validity of the
notification directing the holding of the election of the Ajmer Munici-
pnlity and the electoral roll. This challenge was made before the
election was held. Since the electoral roll prepared was found to be
invalid as it was prepared in accordance with some invalid rules, a
D Constitution Bench of this Court upheld the decision of the Chief
Commissioner. At page 75, Bhagwati J., speaking for the Court
said:-
"It is of the essence of these elections that proper elec-
toral rolls should be. lll'aintained and in order that a proper
E electoral roll should be maintained it is necessary that after
the preparation of the electoral roll opportunity should be
given to the parties concerned to scrutinize whether the per-
sons enrolled as electors possessed the requisite qualifica-
tions. Opportunity should also be given for the revision
of the electroral roll and for the adjudication of cl-aims to be
F enrolled therein and entertaining objections to such enrol-
ment. Unless this is done, the entire obligation cast upon
the authorities holding the elections is not discharged and . 11"'-
the elections held on s11ch imperfect electoral rolls would (
acquire no validity and would be liable to be challenged at
the instance of the parties concerned. It was in our opi-
G aion, therefore, necessary for the Chief Commissioner to
frame rules in this behlllf, and in so far as the rules which
were thus framed omitted these provisions they were defec-
y
tive." 1
:Finally at pages 76 and 77 it was said : -
H "If Rules 7 and 9 above referred to were intended to
focm a complete code for the finalisation of the electonil roll
(I) [1957J S. C. R. 68.
BAR COUNCIL OF DELHI v. SURJEET SINGH (Untwalia, J.) 661

of the Municipality they did not serve the intended purpose A
and were either inconsistent with the provisions of s. 30,
sub--s. (2), of the Regulation or were defective in so far as
they failed to provide the proper procedure for taking of
the steps hereinabove indicated for finalising the electoral roll
of the Municipality. If that was the true position the electo-
ral roll of the Municipality which has been authenticated B
J and published by the Chief Commissioner on August 8, 1955
was certainly not an electoral roll prepared in accordance
with law on the basis of which the elections and poll to the
Ajmer Municipal Committee could be held either on Sep-

•
I t tember 9, 1955, or at -any time thereafter." c
In the instant case the electoral roll was prepared on the basis of a
rule which has been found to be void and ultra vires. That being
so, e~en though the contesting respondents came to challenge the
election after it was held, they could do so because of the gravity of
the infraction of the law in the preparation of the electoral roll.
D
Dani's case (supra) was followed by the Patna High Court in two
decisions. In Parmeshwar Mahaseth and others v. State of Bihar
and others(!) and Umakant Singh and others v. Binda Choudhary
and others('). After quoting a passage at page 153 from Dani's
case Kanhaiya Singh J., said in Parmeshwar Mahaseth's case at the
same page in paragraph 14 thus : - I;'
"It was urged by the learned Government Advocate
that the election cannot be disputed except by an election
petition, us laid down in R. 62 of the Election Rules. He
submitted that petitioner 9 had already filed an election
petition after the presentation of this writ application. This
F
contention is not valid. What is challenged here is not the
election of a particular candidate, but the validity of the
entire election; because of the violation of the essential pro-
visions of the Election Rules and the Act. I think, R. 62
provides for a case where a person challenges the election
• of a particular candidate. I would overrule the objection." G
In Umakant's case the Court quoted the passage from Dani's case
from page 461 and finally expressed the view in paragraph 12 at page
(1 462 in these terms :-
"Mr. Shankar Kumar appearing for respondents 6 and
7 submitted that the e:ection ought to have beeh challenged II
(I) A. I. R. 1958 Patna 149.
f2) A- I. R. 1965 Patna 459.
962 SUPREME COURT REPORTS [1980] 3 S.C.R.

A by following the machinery provided in rule 148 of the
rules, and this Court, in exercise of its power under Article.
226 of the Constitution, should not interfere with the elec·
tion when a special machinery was provided for challenging
it. I am unable to accept this argument. It is the well
settled view of the Court that if the entire election is chal-
lenged as having been held under statutes or 'statutory rules
\
which are invalid or by committing illegalities which make
the entire election void, it can be quashed by grant of a writ
in the nature of certiorari." '
..,
c A Full Bench of the Punjab High Court in Dev Prakash Balmu-
kand v. Babu Ram Rewti Mal and others(') had occassion to consider
this question and in that connection at page 434 Dulat J., said in
paragraph 15 : -

"Everybaly, of course, agrees that, if the very foun-
dation of the election, namely, the electoral roll is illegal,
D
no election on its basis can proceed or be allowed to stand,
but that does not mean that a'ny kind of defect in the roll,
however technical in its nature, will suffice to reach such
a conclusion."
It would thus be seen that it depends upon the nature and the
E intensity of the error committed in the preparation of the electoral
roll and its effect on the whole election for deciding the question as
to whether a writ petition would be maintainable or not. In Ram-
gulam Shri Baiinath Prasad v. The Collector, District Guna af1d
others(') Oza J., delivering the judgment of the Division Bench stated
F in para 17 at page 152 thus : -

"It was also contended that the petition was not filed
immediately, but has been filed after the elections were
over. As regards the question of estoppel we had already
,-
•
considered it and found that the petition under Art. 226
cannot be disposed on the question of estoppel. As re-
G gards delay, it is sufficient to state that it could not be said
that the petition was unduly delayed. Apart from it, it
is also clear that a'n election held on the basis of rolls y
which have not been prepared in accordance with law, the \
petition cannot be dismissed merely on the ground of de-
lay."
B
(ll A. I. R. 1961, Punjab 429.
(2) A. I. R. 1975 M. P. 145.
"
·:'l''

BAR COUNCIL OF DELlil v. SURJBBT SINGH (Untwalia, J.) 963

The Madhya Pradesh High Court has taken a similar view in the A
case of Bhupendra Kumar Jain v. Y. S. Dharmadhikari and others(')
)- wherein it was held that the entire election could be challenged on
the basis of certain types of illegalities committed in holding it.

" Shri Bhoop Singh, an Adocate and a member of the Bar Asso-
ciation at Chandigarh was a candidate to the Bar Council of Punjab & B
) Haryana. After being unsuccessful he challenged the election by
filing a writ. petition in the High Court. The full Bench of the
Punjab & Haryana High Court in Bhoop Singh v. Bar Council of
Punjab and Haryana through its Secretary and others(') disl)lissed
the writ petition on the particular facts of that case. Yet the view
expressed at page 43 in para 9 was : - c
"I am extremely doubtful whether the nature of the
relief which the petitioner claims here, namely the setting
aside of the whole of the election and the ordering of a
repoll could be claimed by way of an election petition under
rule 34(1). No provision in the said rule was brought to D
our notice which in express terms empowers or warrants
the setting aside of the whole of the election (in contradis-
tinction to the election of individual candidates) or to direct
a repoll. In any case it is well settled that the existence
of an alternative remedy is not an absolute legal bar to the
issuance of a writ". E

Reliance was placed for the appellants upon the decision of this
Court in K. K. Shrivastava etc. v., Bhupendra Kumar Jain and
others(") that because of rule 34(8) of the Delhi Bar Council Elec-
tion Rules the writ petitions ought to have been held to be 'not
maintainable. It would be noticed from the facts of that case that F
an election petition had already been filed. About four months later
a writ petition was also filed to challenge the election. At page
1704, column 1 Krishna Iyer' J., speaking for the Court said : -
"One of them which is relevant for the present case
is that where there is an appropriate or equally efficacious G
remedy the Court should keep its hands off. This is
"'f/ more particularly so where the dispute relates to an elec-
'f ' ' tion. Still more so where there is a statutorily prescribed
remedy which almost reads in mandatory terms".
(l) A. I. R. 1976 Madhya Pradesh 110. JI
(2) A. I. R. 1977 Punjab & Hacyana 40.
(3) A. I. R. 1977 S. C. 1703.
,,
'~~,-- '

964 ·SUPREME COURT REPORTS [1980] 3 S.C.R.

A But he added : -
"While we need not in this case go to the extent of
stating that if there are exceptional or extraordinary cir-
cumstances the Court should still refuse to entertain a writ
petition."
B
Finally the view expressed in K. K. Shrivastava's cas. is

"There is no foundation whatever for thinking that where
the challenge is to an "entire election" then the writ juris-
diction springs into action. On the other hand the cir-
cumstances of this c;ase convince us that exercise of the
c power under Art. 226 may be described as mis-exercise."

We may add that the view expressed by some of the High Courts
in t}1e cases referred to above that 111erely because the whole election
has been challenged by a writ petition, the petition would be main-
0 tainable in spite of there being an alternative remedy being available,
so widely put, may not be quite correct and especially after the recent
am~ndment of Art. 226 of the Constitution. If the alternative remedy
fully covers the challenge to the election then that remedy and that
remedy alone must be resorted to even though it involves the challenge
of the election of all the successful candidates. But if the nature
E and the ground of the challenge of the whole election are such that
the alternative remedy is no remedy in the eye of law to cover the
challenge or, in any event, is not adequate and efficacious remedy
then the remedy of writ petition to challenge the whole election is
still available. In the present case we have pointed out above that
the Election Tribunal would have found itself incompetent to declare
F the proviso to Rule 3 (j) of the Delhi Bar Council Electicm Rules
11/tra vires and that being so· the alternative remedy provided in Rule
34(8) was no remedy at all.

Appellants heavily relied upon an unreported decision ,of the Cal-
G
cutta High Court in Suryya Kumar Ray v. The Bar Council of India
& Ors.('). The challenge to the election to the Bar Council of West
.
Bengal was almost on grounds which are similar to those in the pre-
sent case. The Calcutta High Court upheld the validity of the Rule y
and the election held on the basis of electoral roll prepared in accor- r
dance with that Rule and dissented from the. view of the Gujarat
H High Court in Barish Sambhu Prasad v. Bar Council of Gujarat(').
(I) Matter No. 304 of 1976 decided on December 17, 1976. (Cal. H. C.)
(2) Special Civil Application Nos. 542 and 551 of 1969. (Gaj H. C.)
MR COUNCIL OF DELHI v. SURJEET SINGH (U-ntwalia,J.) 965

The learned Judge said with reference to the decision of the Gujarat A
High Court thus : -
"It al'l1"ars to me that this decision will not be of much
assistance to the petitioner in the instant case i'n as
much as the electoral rules which are before me have duly
been approved by the Bar Council of India itself. Such
approval confers upon these rules the authority and sanction B
I of the Bar Council of India and may be deemed to be
the rules framed by the Bar Council of India."
The enunciation of the law as made above, in our opinion, is not
·correct. We have held to the contrary.
For the reasons stated above, we dismiss all the appeals but make
c
no order as to costs in any of them.

S. R. Appeals dismissed.