Supreme Court of India
PRATAP CHANDRA MEHTAversusSTATE BAR COUNCIL OF M.P. & ORS.
- Citation
- 2011 INSC 562
- Decided
- 9 August 2011
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
The Supreme Court held that Rules 121 and 122‑A are valid, not ultra vires Section 15 of the Advocates Act, and do not suffer from excessive delegation, thereby upholding the power to remove the Chairman/Vice‑Chairman by a no‑confidence motion.
Summary
The State Bar Council of Madhya Pradesh passed a no‑confidence motion against its Chairman and Vice‑Chairman under Rules 121 and 122‑A, prompting the petitioners to challenge the validity of those rules. The petitioners argued that the rules were ultra vires Section 15 of the Advocates Act, amounted to excessive delegation of legislative power, lacked proper approval from the Bar Council of India, and violated principles of natural justice. The Supreme Court examined the scope of Section 15, held that it confers a wide power to frame rules to carry out the purposes of Chapter II and that the Madhya Pradesh rules fall within that scope. The Court further ruled that the delegation was not excessive, that prior approval had been obtained and that the absence of a formal notification was a curable irregularity. It also held that natural‑justice requirements do not apply to the removal of elected office‑bearers by a no‑confidence motion. Consequently, the appeals were dismissed and the challenged rules were upheld.
Issues considered
- Whether Rules 121 and 122‑A of the Madhya Pradesh State Bar Council Rules are ultra vires Section 15 of the Advocates Act, 1961.
- Whether the delegation of rule‑making power under Section 15 of the Advocates Act is excessive.
- Whether the absence of an explicit enabling provision for removal by a no‑confidence motion renders the rules invalid.
- Whether Rules 121 and 122‑A are invalid for lack of prior approval from the Bar Council of India.
- Whether principles of natural justice, such as just cause and right to a hearing, apply to the removal of an elected Chairman or Vice‑Chairman.
Legislation cited
- Advocates Act, 1961s. 15(1), s. 15(2), s. 15(3), s. 3, s. 49(1)(a), s. 49(1)(i), s. 49(1)(o), s. 6(1)(d), s. 6(1)(g), s. 6(1)(h), s. 6(1)(i)
Subjects
Advocates Actdelegated legislationno confidence motionultra viresexcessive delegationBar Councilnatural justiceelectoral lawdemocratic principles
Judgment
[2011] 1-1 S.C.R. 965
PRATAP CHANDRA MEHTA A
v.
STATE BAR COUNCIL OF M.P. & ORS.
(Civil Appeal No. 6482 of 2011)
AUGUST 9, 2011
8
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
State Bar Council of Madhya Pradesh Rules - "· 121
and 122-A -· Challenge to vires of r. 122-A, on the ground
that s. 15 of the Advocates Act, does not contemplate the C
framing of such Rule by State Bar Councils providing for
removal of Chairman/Vice-Chairman by 'no confidence
motion' - Held: Rule 122-A of the M.P. Rules contemplates
the removal of a ChairmanNice-Chairman by a motion of no
confidence, passed by a specific majority of the members and D
subject to satisfaction of the conditions stated therein - It
cannot be termed as vesting arbitrary powers in the elected
body - Power delegated to the elected body is within the
framework of the principal Act-s. 15, read with the other
provisions, of the Advocates Act - Power to frame rules has E
to be given a wider scope, rather than a restrictive approach
so as to render the legislative object achievable - s. 15 which
delegates the Bar Councils the power to frame rules to 'carry
out the purposes of this Chapter' are of generic nature - Thus,
the provisions of"· 121 and 122-A of the Rules are not ultra F
vires of the provisions of the Advocates Act, including s. 15
- These rules also do not suffer from the vice of excessive
delegation - Amended Rules of the M.P. Rules received the
approval of the Bar Council of India, parlicularly Rule 122-A
and would not be invalidated for want of issuance of any
notification - On facts, the Chairman of the State Bar Council G
had lost the confidence of majority of the elected members
and thus, Resolution to hold special meeting to consider
requisition of 'no confidence motion' cannot be faulted with -
Advocates Act, 1961 - s.15.
965 H
966 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Object and purposes of - Explained.
Administrative law - Delegated legislation - Guidelines
for - Held: It is not necessary to spell out guidelines for
delegated legislation, when discretion is vested in such
delegatee bodies - In such cases, the language of the rule
8
framed as well as the purpose sought to be achieved, would
be relevant factors to be considered by the Court.
Doctrines/Principles - Principles of natural justice -
Applicability of, to removal of ChairmanNice-Chairman of
C State Bar Council by 'no-confidence motion' - Held: Concept
of just cause and right of hearing are not applicable to the
elected officers where a person is so elected by majority in
accordance with statutory rules - it also has no application to
moving of a 'no-confidence motion in so far as these are
D controlled by specific provisions and are not arbitrary or
unreasonable.
Words and Phrases:
'Election' - Meaning of - Held: Expression 'election'
E includes the whole procedure of election and is not confined
to final result - Rejection or acceptance of nomination paper
is included in the said expression.
The election to the State Bar Council were held and
F 'N' was elected as Member and then Chairman of the
State Bar Council by its members. After the expiry of 2%
years, fresh elections were held and 'N' was again
elected as member, and then the Chairman of the State
Bar Council by its members. After issuance of notice in
G accordance with the State Bar Council Madhya Pradesh
Rules, the General Body Meeting of the State Bar Council
was held on 27th March, 2011. Requisitions were made
relating to a 'no confidence motion' against the Chairman/
Vice-Chairman, and that there should be re-election of the
Committees. The minutes were recorded. It was also
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 967
OF M.P. & ORS.
stated that the ChairmanNice-Chairman had offered their A
resignation subject to withdrawal of 'no ·confidence
motion'. It was resolved that the agenda of the special
meeting would be circulated on the same day itself, by
post, to all the members of the State Bar Council, whether
present at the meeting or not and the next meeting would B
be held on 16th April, 2011. These notices were issued.
The meeting was held on 16th April, 2011. During the
course of the meeting on 16th April 2011, some of the
members left the meeting. The Advocate General of
Madhya Pradesh presided over the continuation of the c
meeting and the no-confidence motion against both the
Chairman and the Vice Chairman was passed by majority
of all the members present and the voting under Rule
122-A of the Rules.
Meanwhile, the appellant filed a writ petition D
challenging the vires of Rules 121 and 122-A relating to
the term of, and procedure for passing a 'no confidence
motion' against the ChairmanNice-Chairman. The court
directed that the meeting of the State Bar Council could
be held on 16th April, 2011, but the Resolution, if passed, E
would not be given effect to, till further orders and passed
order for listing the matter for hearing.
Two sets of minutes of the meeting dated 16th April,
2011 were recorded and the same were different. One set F
of minutes is only signed by the Secretary of the State
Bar Council while the other is signed by the Secretary as
well as by other members who passed the Resolution. In
the Minutes of the meeting dated 16th April, 2011, it was
specifically recorded that the Resolution is not to be G
.given effect to in view of the orders passed by the High
Court in the aforesaid Writ Petition. However, the copy of
the proceeding was to be communicated to the Registrar
General of the High Court of M.P. This Resolution was
signed by the members present. Thereafter, another writ
H
968 SUPREME COURT REPORTS [2011] 11 S.C.R.
A petition was filed claiming same relief. The High Court
dismissed both the writ petitions. Therefore, the
appellants filed the instant appeals.
The questions which arose for consideration In these
appeals are whether the provisions of Rules 121 and 122·
8
A of .the State Bar Council of Madhya Pradesh Rules are
ultra vires Section 15 of the Advocates Act, 1961; was the
delegation of legislative power under Section 15 of the
Act excessive; whether despite the absence of the
C enabling provisions in the principal statute, namely, the
Advocates Act, empowering subordinate State Bar
Councils to enact provisions for removal of the office
bearers of the State Bar Councils by 'no confidence
motions', such power could be read into the general
clause of Section 15(1) of the Act; and whether Rules 121
D and 122-A of the M.P. Rules are invalid for want of prior
approval from the Bar Council of India?
Dismissing the appeals, the Court
E HELD: 1. The provisions of Rules 121 and 122-A (in
particular) of the State Bar Council of Madhya Pradesh
Rules are not ultra vires of the provisions, including the
provisions of Section 15 of the Advocates Act. These
rules also do not suffer from the vice of excessive
delegation. In view of the language of Section 15(3) and
F the factual matrix, it is clear that the amended rules of the
M.P. Rules had received the approval of the Bar Council
of India, particularly Rule 122-A. The Rules would not be
invalidated for want of issuance of any notification, as it
is not the requirement in terms of Section 15(3) of the Act
G and in any case would be a curable irregularity at best.
[Para 61] [1026-F-H; 1027-A-B]
2. 'Election' is an expression of wide connotation
which embraces the whole procedure of election and is
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 969
OF M.P. & ORS.
not confined to final result thereof. Rejection or A
acceptance of nomination paper is included in this term.
[Para 38] [1008-H; 1009-A]
N.P. Ponnuswami v. returning Officer, Namakkal
Constituency AIR (39) 952 SC 64: 1952 SCR 218 - referred 8
to.
3.1. The body which elects the Chairman or Vice-
Chairman of a State Bar Council would and ought to have
the right to oust him/her from that post, in the event the
majority members of the body do not support the said C
person at that time. The provisions of Rule 122-A of the
M.P. Rules make it clear, beyond doubt, that a 'no
confidence motion' can be brought against the elected
Chairman provided the conditions. stated in the said
Rules are satisfied. Section 15 of the Advocates Act D
empowers the State Bar Councils to frame Rules to carry
out the purposes of Chapter II of the Act. Section 3
requires the constitution of the State Bar Councils.
Section 3(3) contemplates that there shall be a Chairman
and a Vice-Chairman of each State Bar Council elected E
by the State Bar Council in such manner as may be
prescribed. Section 6 of the Act, details the functions to
be performed by the State Bar Councils. Inter alia, the
functions to be performed by the State Bar Councils
include, under Sections 6(1 )(d), to safeguard the rights, F
privileges and interests of the advocates on its roll. Under
Section 6(1)(g), the function of the Bar Council is to
provide for the election of its members and under
Sections 6(1 )(h) and 6(1 )(i), the State Bar Council has to
perform all other functions conferred on it by or under G
this Act and to do all other things necessary for
discharging the aforesaid functions. Sections 6(1)(h) and
6(1)(i) have to be read and interpreted conjointly. There
is no reason why the expression 'manner of election of
its members' in Section 6(1 )(g) should be given a
H
970 SUPREME COURT REPORTS [2011] 11 S.C.R.
A restricted meaning, particularly in light of Sections 6(1 )(h)
and 6(1 )(i). The responsibility of the State Bar Councils
to perform functions as per the legislative mandate
contained in Section 6 of the Act is of a very wide
connotation and scope. No purpose would be achieved
B by giving it a restricted meaning or by a strict
interpretation. The State Bar Council has to be given wide
jurisdiction to frame rules so as to perform its functions
diligently and perfectly and to do all things necessary for
discharging its functions under the Act. The term of office
c of the members of the State Bar Council is also
prescribed under Chapter II, which shall be five years from
the date of publication of the result of the election. On
failure to provide for election, the Bar Council of India has
to constitute a special committee to do so instead.
Section 15(2) then provides that without prejudice to the
0
generality of the foregoing powers, rules may be framed
to provide for the preparation of electoral rolls and the
manner in which the result shall be published. In terms
of Section 15(2)(c), the manner of the election of the
Chairman and the Vice-Chairman of the Bar Council and
E appointment of authorities which would decide any
electoral disputes is provided. The expression 'manner
of election of the Chairman' is an expression which needs
to be construed in its wide connotation. The rules so
framed by the State Bar Council shall become effective
F only when approved by the Bar Council of India in terms
of Section 15(3) of the Advocates Act. [Para 39] [1009-E-
H; 1010-A-H; 1011-A-C]
3.2. The power of the State Bar Council to frame rules
G under Section 15 of the Advocates Act as a delegate of
the Bar Council of India has to be construed along with
the other provisions of the Advocates Act, keeping in
mind the object sought to be achieved by this Act.
Greater emphasis is to be attached to the statutory
H provisions and to the other purposes stated by the
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 971
OF M.P. & ORS.
legislature under the provisions of Chapter II of the A
Advocates Act. This is an Act which has been enacted
with the object of preparing a· common roll of advocates,
integrating the profession into one single class of legal
practitioners, providing uniformity in classification and
creating autonomous Bar Councils in each State and one B
for the whole of India. The functioning of the State Bar
Council is to be carried out by an elected body of
members and by the office-bearers who have, in turn,
been elected by these elected members of the said
Council. The legislative intent derived with the objects of C
the Act should be achieved and there should be complete
and free democratic functioning in the State and All India
Bar Councils. The power to frame rules has to be given
a wider scope, rather than a restrictive approach so as
to render the legislative object achievable. The functions
to be performed by the Bar Councils and the manner in 0
which these functions are to be performed suggest that
democratic standards both in the election process and
in performance of all its functions and standards of
professional conduct which need to be adhered to. In
other words, the interpretation furthering the object and E
purposes of the Act has to be preferred in comparison
to an interpretation which would frustrate the same and
endanger the democratic principles guiding the
governance and conduct of the State Bar Councils. The
provisions of the Advocates Act are a source of power F
for the State Bar Council to frame rules and it will not be
in consonance with the principles of law to give that
power a strict interpretation, unless restricted in scope
by specific language. This is particularly so when the
provisions delegating such power are of generic nature, G
such as Section 15(1) of the Act, which requires the Bar
Councils to frame rules to 'carry out the purposes of this
Chapter' and Section 15(2), which further uses generic
terms and expressly states that the Bar Council is
empowered to frame rules 'in particular and without H
972 SUPREME COURT REPORTS [2011] 11 S.C.R.
i.prejudice to the generality of the foregoing powers'. If one
reads the provisions of clauses (a), (c), (g), (h) and (i) of
Sub-section (2) of Section 15 of the Act, then, it is clear
that framing of rules thereunder would guide and control
the conduct or business of the State Bar Councils and
8 ensure maintenance of the standards of democratic
governance in the said Councils. Since the office bearers
like the Chairman and the Vice-Chairman are elected by
a representative body i.e. by the advocates who are the
elected members of the Council, on the basis of the
C confidence bestowed by the advocates/electorate in the
elected members, there seems to be no reason why that
very elected body cannot move a 'no confidence motion'
against such office bearers, particularly, when the rules
so permit. [Para 40] [1011-H; 1012-A-F]
D 3.3. The Bar Council of India, also framed rules and
permitted moving of 'no confidence motion' against its
Chairman/Vice-Chairman subject to compliance of the
conditions stated therein. Similarly, Rule 122-A of the M.P.
Rules contemplates the removal of a Chairman/Vice-
E Chairman by a motion of no confidence, passed by a
specific majority of the members and subject to
satisfaction of the conditions stated therein. This
provision, thus, can neither be termed as vesting arbitrary
powers in the elected body, nor can it be said to be
F suffering from the vice of excessive delegation. The
power delegated to the elected body is within the
framework of the principal Act, i.e., Section 15, read with
the other provisions, of the Advocates Act. In terms of
Rule 120 of the M.P. Rules, a person can be elected as
G ChairmanNice-Chairman only by majority and in case
there is a tie, the election shall be decided by drawing of
lots. Under Rule 118 of the M.P. Rules a ChairmanNice-
Chairman has to be elected from amongst its members
for two years. In other words, the term of office of the
.. H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 973
OF M.P. & ORS.
ChairmanNice-Chairman is controlled by the fact that he A
has to be elected to that particular office. The removal
contemplated under Rule 122-A is not founded on a
disciplinary action but is merely a 'no confidence motion'.
It is only the loss of confidence simpliciter i.e. the majority
of the members considering, in their wisdom, that the B
elected ChairmanNice-Chairman should not be permitted
to continue to hold that office, which is the very basis for
such removal. One must remember that Rules 118 to 122-
B all come within Chapter XVIII of the M.P. Rules and, as
such, have to be examined collectively. But for this c
Chapter, it cannot be even anticipated as to who and how
the office of the ChairmanNice-Chairman of the State Bar
Council shall be appointed. [Para 41] [1012-H; 1013-A-E]
4.1. The language of the statute has to be examined
before giving a provision an extensive meaning. The D
Court would be justified in giving the provision a
purposive construction to perpetuate the object of the
Act, while ensuring that such rules framed are within the
field circumscribed by the parent Act. It is also clear that
it may not always be absolutely necessary to spell out E
guidelines for delegated legislation, when discretion is
vested in such delegatee bodies. ~'1 such cases, the
language of the rule framed as well as the purpose
sought to be achieved, would be the relevant factors to
be considered by the Court. [Para 44] [1015-C-E] F
4.2. In the instant case, the minimum guidelines of
secrecy and fairness in election have been provided in
Part IX of the Rules, which have been framed in exercise
of the supervisory powers under Sections 49(1)(a), 49(1)(i) G
and 49(1 )U) of the Advocates Act. Further, clause (5) of
this Part even extends to the State Bar Councils the
power to independently resolve all election disputes
through tribunals constituted for this purpose. Therefore,
the powers delegated have an in-built element of H
974 SUPREME COURT REPORTS [2011] 11 S.C.R.
A guidance that the Chairman/Vice-Chairman will be
appointed and regulated by the majority members of the
State Bar Council. Their conduct, and the conduct of the
State Bar Council as a whole, is to be maintained in
consonance with democratic principles and keeping the
B high professional standards of advocates in mind. Thus,
it is not a power which falls beyond the purview and
scope of Section 15 of the Advocates Act read in
conjunction with other provisions, particularly Chapter II
and also keeping in view the object of the Act. [Para 44)
c [1015-E-H; 1016-A]
4.3. The purpose of the Advocates Act is the
democratic and harmonious functioning of the State Bar
Councils, to achieve the object and purposes of the Act.
It cannot be seen as to how the provisions of Rule 122-A
D fall foul of the ambit and scope of Section 15 of the
Advocates Act and, for that matter, any other provisions
of that Act. On the contrary, they are in line with the
scheme of the parent Act. [Para 45] [1016-B-C]
E O.N. Mohindroo v. Bar Council of Delhi AIR 1968 SC
888; General Officer Commanding-in-Chief v. Subhash
Chandra Yad?JV (1988) 2 SCC 351: 1988 (3) SCR 62; Kunj
Behari Lal Butail v. State of H.P. (2000) 3 SCC 40: 2000 (1)
SCR 1054; Global Energy Ltd. v. Central Electricity
F Regulatory Commission (2009) 15 SCC 570 - relied on.
5.1. The appellant submitted that the recall of the
ChairmanNice-Chairman, by a smaller and distinct body
of members of the State Bar Council, does not fall within
the purview of the authority of the delegatee Council,
G under Section 15(2)(c) of the Advocates Act, i.e. to
legislate on 'the manner of election'; and that the
provisions of Rule 122-A are unsustainable. There is no
merit in the contention as well as it has no substance. The
election to the post of ChairmanNice-Chairman of the
H State Bar Council is not by the larger body, i.e., the
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 975
OF M.P. & ORS.
advocates enrolled on the rolls of the State Bar Council, A
but is by a distinct body, i.e. elected members of the State
Bar Council. Once they elect the Chairman/Vice-
Chairman of the State Bar Council as per the scheme of
Rules 118 to 123, then all actions taken by such body
would have to be accepted by all concerned as correct, B
if they are within the domain of the rules governing such
body. [Para 46] [1016-D-G]
Mohan Lal Tripathi v. District Magistrate (1992) 4 SCC
80: 1992 (3) SCR 338; Ram Beti v. District Panchyat Raj C
Adhikari (1998) 1 SCC 680: 1997 (6 ) Suppl. SCR 582 -
referred to.
5.2. Though the language of the Rule 15 clearly
shows that no matter once decided shall be reconsidered
for a period of three months but clearly makes an D
exception that wherever 2/3rd majority of the members
present of the State Bar Council permits, this bar will not
operate. In other words, there is no absolute bar and the
Rule makes out an exception when the matters could be
reconsidered. But that is not the situation in the instant E
case. The first pre-requisite under this rule is that matter
should be 'once decided', and then. alone, the bar of re-
consideration would operate; that too depending on the
facts and circumstances of a given case. 'Once decided'
obviously means the matter should be concluded or F
finally decided in contradistinction of being 'kept pending'
or 'deferred'. [Para 50] [1019-F-H]
5.3. There is some dispute with regard to the
recording of the minutes of this meeting. The minutes
which were recorded by the respective parties are G
reproduced. There is no inclination to rely upon the
minutes produced by the appellants, inasmuch as they
are not signed by all the members present and voting.
Even if, for the sake of arguments, the minutes produced
by the appellants are taken to be correct, then it must H
'976 SUPREME COURT REPORTS [2011] 11 S.C.R.
A follow that both the meetings took place on 16th April,
2011. However, it is obvious from the record that in the
15th meeting of the General Body held on 27th March,
2011, no final decision was taken and it was decided to
circulate the minutes and other papers of the meeting to
B all members. [Para 51] [1020-F-H; 1021-A]
5.4. The submission that by virtue of the bar under
Rule 15 of the M.P. Rules, the Chairman and Vice-
Chairman were elected to their respective posts in
February 2011 and, as such, the election itself was a
C 'decision' which was incapable of being reconsidered
and revised in the meetings of March and April, 2011; and
that the limitation contained in Rule 15 of the M.P. Rules
shall vitiate the decision of passing a 'no confidence
motion', cannot be accepted. It is misconceived in law and
D on the facts of the instant case. Election is not a
'decision' as contemplated under Rule 15 of the M.P.
Rules. It is not a matter on which the State Bar Council
decides, as firstly, the said matter falls within the
discretion of individual advocates on the rolls of the State
E Bar Council to elect the representative members of the
said Councils, and secondly it falls within the discretion
of such elected representatives to elect a person as
Chairman/Vice-Chairman. It is not a 'decision' which
relates to the matters as contemplated under the M.P.
F Rules. Passing of a 'no confidence motion' in law,
therefore, cannot be termed as reconsideration of the
decision taken. Once the Council is constituted in terms
of the Act and the Rules framed thereunder, then it has
to take decisions in the role of a Council in relation to
G various matters, including rejecting or passing a 'no
confidence motion'. A statutory bar may exist in this
respect, in some cases, but in its absence, the Court
cannot infer or imply a time bar on challenging the results
of election as a feature of common law or general
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 977
OF M.P. & ORS.
democratic principles. Thus, the bar contemplated under A
Rule 15 of the M.P. Rules does not operate, on merits,
when applied to the facts of the instant case. [Paras 52,
53 and 54] [1021-B-H; 1022-A]
Ram Beti v. District Panchyat Raj Adhikari (1998) 1 SCC B
680: 1997 (6) Suppl. SCR 582 - referred to.
5.5. It was submitted that the group supporting the
ChairmanNice-Chairman of the State Bar Council, in the
meeting dated 16th April, 2011, had raised the issue that
'no confidence motion' and reconstitution of the C
committee could not be considered in view of the bar
contained in Rule 15 of the M.P. Rules, in the form of 'a
point of order' against the requisition asked for by the
other group. The submission of the appellants that the
matters were discussed and concluded, either through D
the February 2011 elections or in the 15th Meeting of the
Council dated 27th March, 2011 is rejected as, according
to the minutes, the meeting had only been deferred for
issuance of appropriate agenda and requisition notice to
all the members present or not present. Treating it as a E
valid point of order, the Chairman accepted the same and
then he along with some members, walked out of the
meeting. [Para 55] [1022-B-E]
5.6. The meeting then was presided over by the
Advocate General, whereafter the 'no confidence motion' F
was passed. The approach adopted by the Chairman/
Vice-Chairman cannot be accepted as, on the peculiar
facts and circumstances of the case, it ex facie was
untenable and without any basis. It was the duty of the
Chairman/Vice-Chairman to face the 'no confidence G
motion', as they were elected office bearers and if they
had lost the confidence of majority group which elected
them to this post and a 'no confidence motion' had been
moved against them in terms of Rule 122-A, they were
expected to face the consequences thereof. This, alone, H
978 SUPREME COURT REPORTS [2011] 11 S.C.R.
A would have served the ends of democratic governance
and proper functioning of the State Bar Council. [Para 56)
[1022-F-H]
5.7. 'No confidence motion' is in stricto senso not
removal from office, but a removal resulting from loss of
8
confidence. It is relatable to no confidence and is not
removal relatable to the conduct or improper behaviour
of the elected person. Even the concept of 'term' under
the Rules, is referable to and is controlled by a super-
imposed limitation of no confidence. This tenure cannot
C be compared to a statutory tenure as is commonly
understood in the service jurisprudence. The distinction
between removal by way of 'no confidence motion' and
removal as a result of disciplinary action or censure is
quite well accepted in law. They are incapable of being
D inter-changed in their application and must essentially
operate in separate fields. The Court has always
prioritized harmonious functioning of the State Bar
Council. [Para 58) [1023-D-G)
E 5.8. The concept of just cause and right of hearing,
the features of common law, are not applicable to the
elected offices where a person is so elected by majority
in accordance with statutory rules. It would also have
hardly any application to moving of a 'no confidence
F motion' in so far as these are controlled by specific
provisions and are not arbitrary or unreasonable. There
is nothing in Rule 122-A of the M.P. Rules that requires
adherence to these two concepts when a motion of no
confidence is moved again$t a sitting ChairmanNice-
G Chairman. It does not imply that the action can be
arbitrary or capricious and absolutely contrary to the
spirit of the Rule. In the instant case, majority of the
members had passed the 'no confidence motion' in the
16th Meeting of the State Bar Council on 16th April, 2011.
It cannot be said that solely with the aid of General
'-I
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 979
OF M.P. & ORS.
Clauses Act, the power to elect would deem to include A
power to remove by a motion of no confidence,
particularly, with reference to the facts and circumstances
of the instant case. The power to requisition a 'no
confidence motion' and pass the same, in terms of Rule
122-A of the M.P. Rules, is clear from the bare reading of B
the Rule, as relatable to loss of faith and confidence by
the elected body in the elected office bearer. Rule 122-A
of the M.P. Rules is not ultra vires the provisions of the
Advocates Act, including Section 15. When the law so
permits, there is no right for that office bearer to stay in c
office after the passing of the 'no confidence motion' and,
in the facts and circumstances of the instant case, it is
clearly established that the appellants had lost the
confidence of the majority of the elected members and
thus, the Resolution dated 16th April, 2011 cannot be
0
faulted with. [Para 60) [1025-D-H; 1026-A-D]
Bar Council of Delhi v. Bar Council of India AIR 1975 Del
200; Afjal Imam v. State of Bihar and Ors. JT 2011 (5) SC
19; Babubhai Muljibhai Patel v. Nandlal Khodidas Barot
(1974) 2 SCC 706: 1975 (2) SCR 71; B.P. Singhal v. Union E
of India and Anr. JT 2010 (5) SC 640: 2010 (6) SCR 589 -
referred to.
Case Law Reference:
AIR 1968 SC 888 Relied on. Para 13 F
1992 (3) SCR 338 Referred to. Para 37, 46
1952 SCR 218 Referred to. Para 38
1988 (3) SCR 62 Relied on. Para 42 G
I
2000 (1) SCR 1054 Relied on. I Para 43
2009 (15) sec 570 Relied on. Para 43
1997 (6) Suppl. SCR 582 Referred to. Para 47, 53
H
980 SUPREME COURT REPORTS [2011] 11 S.C.R.
A AIR 1975 Del 200 Referred to. Para 57, 60
JT 2011 (5) 19 Referred to. Para 58
1975 (2) SCR 71 Referred to. Para 59
2010 (6 ) SCR 589 Referred to. Para 60
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6482 of 2011.
From the Judgment & Order dated 20.5.2011 of the High
c Court of M.P. at Jabalpur in W.P. No. 6372 of 2011.
WITH
C.A. No. 6483 of 2011
D K.V. Vishwanathan, Fakhruddin, T.S. Doabia, Nikhil
Majithia (for Pragati Neekhra), Raj Kishor Chaudhary, Raja
Sharma, T. Mahipal, V.K. Verma, Sanjeev Sahdeva, Preet Pal
Singh, Priyan and Arjun Garg for the appearing parties.
The Judgment of the Court was delivered by
E
SWATANTER KUMAR J. 1.Leave granted.
2. From the very simple facts of these cases, the following
substantial questions of law and public importance arise for
F consideration of this Court:
(1) Whether the provisions of Rules 121and122-A of
the State BarCouncil of Madhya Pradesh Rules
(for short, the 'M.P. Rules') are ultra vires Section
15 of the Advocates Act, 1961 (for short, 'the
G Advocates Act'), inter a/ia for the reason that there
is no nexus between the rule making power of the
State Bar Councils and the powers provided under
Section 15(1) or 15(2)(c) of the Advocates Act?
Was the delegation of legislative power under
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 981
OF M.P. & ORS. [SWATANTER KUMAR, J.]
Section 15 of the Advocates Act excessive, A
inasmuch as it does not provide any guidelines for
removal of office-bearers of the State Bar
Councils?
(2) Whether despite the absence of the enabling B
provisions in the principal statute, namely, the
Advocates Act, empowering subordinate State Bar
Councils to enact provisions for removal of the
office bearers of the State Bar Councils by 'no
confidence motions', such power could be read into C
the general clause of Section 15(1) of the
Advocates Act? ·
(3) Whether Rules 121 and 122-A of the M.P. Rules
are invalid for want of prior approval from the Bar
Council of India? D
3. The necessary facts are that the Parliament enacted the
Advocates Act on 19th May, 1961. Section 15 of the Advocates
Act empowers the State Bar Councils to frame Rules to carry
out the powers conferred upon the State Bar Councils under E
Sections 15(1 ), 15(2), 28(1) and 28(2) read with Chapter II and
other provisions of the Advocates Act. The State Bar Council
of Madhya Pradesh (for short 'the State Bar Council'), with the
approval of the Bar Council of India, made and published the
M.P. Rules in 1962.These M.P. Rules came to be amended
F
on 27th April, 1975.
4. Section 15 of the Advocates Act provides that the State
Bar Councils can frame/amend the Rules with prior approval
of the Bar Council of India. Section 15(2)(a) of the Advocates
Act read with Part Ill and IX of the Bar Council of India Rules G
(for short, 'the Rules') contemplates that election to the State
Bar Council shall be held. In furtherance to this legislative
mandate, the election to the State Bar Council were held in the
year 2008 and Mr. Rameshwar Neekhra was elected as
Member and then Chairman of the State Bar Council by its H
982 SUPREME COURT REPORTS [2011] 11 S.C.R.
A members on 31st August, 2008. After the expiry of 2% years,
fresh elections were held on 12th February, 2011 and the said
Mr. Neekhra was again elected as member, and then the
Chairman of the State Bar Council by its members. He is stated
to have secured 21 votes, out of a total 25 votes of the
B Members of the State Bar Council. Mr. Adarsh Muni Trivedi
was elected as Vice-Chairman of the State Bar Council.
5. At the very threshold of the 15th Meeting of the General
Body of the State Bar Council held on 27th March, 2011 at
C Jabalpur, a number of Members submitted two requisitions: one
stated that due to lack of confidence in the Chairman and Vice-
Chairman, a 'no confidence motion' should be issued; and the
second requisition stated that, since the election of the
Committees for the second term was not as per the constitution,
re-election for the Committees may be conducted. They
D requested the State Bar Council to call a special meeting to
consider these requjsitions. It is also recorded in these Minutes
that the Chairman and Vice-Chairman had offered their
resignation, subject to withdrawal of the requisition of 'no
confidence motion'. There was a long discussion, whereafter
E it was resolved that the agenda of the special meeting was to
be circulated on the same day i.e. 27th March, 2011 by
registered post. Copy of the resolution passed and the
requisition motion of 'no confidence', would be circulated to all
Hon'ble Members of the State Bar Council i.e. who were
F present and those who were not present. These Minutes,
annexed as 'P-10' (colly) to the petition, read as under:
"Before the start of the meeting Hon'ble Members Sis
Vinod Kumar Bhardwaj, Kuldeep Bhargava, Ghanshyam
Singh, Prem Singh Bhadouria, Shivendra Upadhyay,
G
Champa Lal Yadav, Dinesh Narayan Pathak, Khalid Noor
Fakhruddin, Mrigendra Singh Baghel, Jai Prakash Mishra.
Prabal Pratap Singh Solanki, Ku. Rashmi Ritu Jain and
B.K. Upadhyay submitted two requisitior: motion of no
confidence. In one of the requisition motion of no
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 983
OF M.P. & ORS. [SWATANTER KUMAR, J.]
confidence they have stated that they have no confidence A
in Chairman, Vice- Chairman and Treasurer therefore,
they are moving no confidence motion against them. In the
second requisition motion they have requested that since
the election of the Committees for the second term were
not as per the constitution therefore and even otherwise B
they want re-election for the Committees. For both the
requisition motion they have requested to call a special
meeting and consider their vote of no confidence against
Chairman, Vice-Chairman and Treasurer. For another
requisition motion they have requested to call a special c
· meeting and consider their proposal. When the meeting
was started both the requisition motion were placed before
the Hon'ble Chairman. Shri Ganga Prasad Tiwari, Hon'ble
Treasurer, Shri Rameshwar Neekhra, Hon'ble Chairman
and Shri AM. Trivedi, Hon'ble Vice-Chairman stated that
0
they offer their resignation subject to withdrawal of
requisition of no confidence motion. There had been long
discussion and members Sis Vinod Kumar Bhardwaj,
Prem Singh Badhouria, Champa Lal Yadav, Pratap Mehta,
Vijay Kumar Choudhary, Ghanshyam Singh, Z.A. Khan,
Kuldeep Bhargava, Khalid Noor Fakhruddin, Rajesh
E
Pandey Mrigendra Singh Bhagel, Prabal Pratap Singh
Solanki expressed their views. There had been divergent
views in respect of withdrawal of no confidence motion as
well as conditional resignation offered by Hon'ble
Chairman, Vice-Chairman and Treasurer. As such it is F
resolved to hold a special meeting on 16th April, 2011 at
Jabalpur from 12.30P.M. onwards in term of Rule 122(A)
& (B) of State Bar Council of Madhya Pradesh Rules. It is
resolved that agenda of the meeting be circulated today
itself by registered ·post and copy of the resolution passed G
along with requisition motion of no confidence be
circulated to all Hon'ble Members of the Council who are
present and to them also who are not present today."
6. It appears from the record that in terms of the above H
984 SUPREME COURT REPORTS [2011] 11 S.C.R.
A minutes of the 15th Meeting of the General Body of the State
Bar Council held on 27th March, 2011, the notices of the 16th
Meeting were also issued and circulated. The 16th Meeting of
the General Body of the State Bar Council was decided to be
held on 16th April, 2011 in the Meeting dated 27th March, 2011
B itself.
7. After issuing the notice in accordance with the M:P.
Rules, a meeting of the State Bar Council was held on 16th April,
2011. At this meeting, the 'no confidence motion' was moved
by 13 members of the State Bar Council, in terms of Rule 122-
C A of the M.P. Rules, against both the Chairman and the Vice-
Chairman. The parties to the present appeals are at some
variance as to the manner, knowledge and the decision with
which the meeting was closed. The respondents herein have
contended that in this meeting, there was actual discussion of
D the 'no confidence motion' moved by some of the members of
the State Bar Council, which was a part of the formal agenda
notice issued by the Secretary of the State Bar Council. In the
Minutes placed on record as Annexure R-16/6, it has been
stated that item No.2 of the agenda, which was to consider the
E requisitioning of 'no confidence motion', was actually
considered and the question arose as to whether Shri
Rameshwar Neekhra, the Chairman could still preside over the
meeting. There was some discussion on that issue, whereafter
the Chairman along with the Secretary is stated to have left the
F meeting on 16th April 2011. The Advocate General had then
presided over the meeting, and the 'no confidence motion' is
stated to have been passed by majority of the members. It will
be useful to refer to the Minutes of the Meeting, held on 16th
April, 2011 on this issue, which are as follows:
G
"Twelve of the M.embers have quit away the meeting on
the ground that by virtue of Rule 15 of Chapter V no matter
can be decided and reconsidered for a period of three
months unless the Council by 2/3 of majority of the
Members present shall permit. The affect of this rule is also
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 985
OF M.P. & ORS. [SWATANTER KUMAR, J.]
required to be considered by the Hon'ble High Coyrt and A
all these issues are open before the Hon'ble High Court.
So far as the presiding over of the meeting is
concerned, Rule 14 of Chapter V says that in the absence
of any provision the matter is to be decided by-the majority. B
That being so the majority of the Members present have
decided to consider the No Confidence Motion hence this
meeting is now being presided over by Advocate General
to whom the majority has decide to preside.
Before the start of the Meeting Hon'ble Member Shri C
Prabal Pratap Singh Solanki has asked Shri_ Rameshwar
Neekhra, Chairman to kindly decide that the Members are
ready to participate in the No Confidence Motion but at that
time Hon'ble Chairman quit the Meeting Hall along with his
followers and also took away the Secretary saying that we D
are not going to participate in the No Confidence Motion.
At this Juncture Shri Vinod Kumar Bhardwaj, Hon'ble
Member State Bar Council of Madhya Pradesh requested
Shri R.D. Jain, Hon'ble Advocate General and Ex Official E
Member who remained present from the very beginning of
the meeting and has watched all the proceedings &
discussions which took place by the Hon'ble Members Shri
Bhardwaj requested the Hon'ble Advocate General Shri
R.D. Jain to preside over the meeting which was
F
seconded by all the members present as following:
1. S/Shri Vin_od Kumar Bhardwaj, (2) Kuldeep Bhargava
(3) Jai Prakash Mishra (4) Shivendra Upadhyay (5) Ms.
Rashmi Ritu Jain (6) Dinesh Narayan Pathak (7) Prem
Singh Bhadouria (8) Champa Lal Yadav (9) Ghanshyam G
Singh (10) Mrigendra Singh Baghel (11) Prabal Pratap
Singh Solanki (12) Khalid Noor Fakhruddin (13) Shri
Ghanshyam Singh, Hon'ble Members.
Shri R.D. Jain, Hon'ble Adovate General and Ex H
986 SUPREME COURT REPORTS [2011) 11 S.C.R.
A Officio Member stated that the meeting need not be
adjourned and the Hon'ble Advocate General also read
out the part of the order of Hon'ble High Court in WP No.
6372/11.
Item No. 2 Resolution No. 258/GB/2011
B
The Item No. 2 of the agenda was read over. The
members are asked to give their vote for or against by
raising their hands.
I
c Since the majority of the Members of the Council have
supported the motion by raising hands it stands passed
under Rule 122(A).
The following Members are present in the house as per
below:
D
S/Shri (1) Vinod Kumar Bhardwaj (2) Jai Prakash Mishra
(3) Shivendra Upadhyay (4) Ms. Rashmi Ritu Jain (5)
Kuldeep Bhargava (6) Dinesh Narayan Pathak (7) Prem
Singh Bhadouria (8) Champa Lal Yadav (9) Ghanshyam
E Singh (10) Mrigendra Singh Baghel (11) Khalid Noor
Fakhruddin (12) Prabal Pratap Singh Solanki (13) Bal
Krishna Upadhyay have supported the motion and hence
the motion stands passed by a majority of all the members
present and the voting under Rule 122-A."
F
8. We may notice that two sets of minutes recorded
differently for the same meeting have also been placed on
record as Annexure P-10 (colly) and R-16/4 respectively. It
needs to be noticed that one set of minutes is only signed by
G tlie Secretary of the State Bar Council while the other is signed
by the Secretary as well as by other members who passed the
Resolution.
9. In the Minutes of the meeting dated 16th April, 2011, it
had been specifically recorded that the Resolution is not to be
H given effect to in view of the orders passed by the Madhya
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 987
OF M.P. & ORS. [SWATANTER KUMAR, J.]
Pradesh High Court on 15th April, 2011 in Writ Petition No. A
6372 of 2011. However, the copy of the proceeding was to be
communicated to the Registrar General of the High Court of
Madhya Pradesh. This Resolution had been signed by the
members present.
B
10. One Pratap Chandra Mehta had filed this above-
mentioned Writ Petition No. 6372 of 2011, challenging the vires
of Rules 121 and 122-A of the M.P. Rules. These Rules related
to the term of, and procedure for passing a 'no confidence
motion' against the Chairman, Vice-Chairman and the C
Treasurer etc. As already noticed, the Court had directed that
the meeting of the State Bar Council could be held on 16th April,
2011, but the Resolution, if passed, would not be given effect
to, till further orders. The matter was ordered to be listed for
hearing on 25th April, 2011. In the meanwhile, another writ
petition was also filed being Writ Petition No. 6628 of 2011 and D
the High Court in its final judgment observed that, in both the
petitions same relief, on virtually the same grounds, had been
claimed. The High Court had framed two basic points for
decision:
E
1. Whether Rule 122-A, as framed under Section 15
of theAdvocates Act was, ultra vires; and
2. Whether the second Resolution, dated 16th April,
2011 was invalid?
F
11. Vide its detailed judgment dated 20th May, 2011, the
High Court decided both the issues against the petitioners and
dismissed the writ petitions while vacating the interim order. The
High Court held as under:
G
"22. On point (E) of para 16 above, it was urged from the
petitioner's side that if Section 15(1) of the Act is taken to
be the source of power for framing Rules prescribing the
tenure for an elected chairman, and prescribing curtailment
such tenure through a no-confidence motion, then such H
988 SUPREME COURT REPORTS [2011) 11 S.C.R.
A delegation to subordinate legislation must be struck down
· as it confers wholly unguided and thus unfettered powers
upon the delegate subordinate legislative Authority. In reply
it could not be shown that there is any express guidance
or that any policy guidance can be deciphered from all or
B any of the provisions of the Act or from the scheme of the
Act, regarding what tenure, if any, should be permitted, and
if so under what circumstances and by what process,
subject to what restrictions.
23. A totally misplaced reliance was placed upon the case
c of V. Sudheer v. Bar Council of India [(1993) 3 SCC 176)
which merely says that the State Bar Council under
Section 24(1)(e) of the Act could have prescribed pre-
enrolment training, but the Bar Council of India could not
do so under Section 49 of the Act. 'Hukam Chand v.
D Union of India [(1972) 2 sec 601] was also unnecessarily
cited. It deals with power to frame a rule with retrospective
effect and has no relevance here. Two decision of the
Supreme Court in the case of 'Vasanlal Maganbhai vs.
State of Bombay [AIR 1961 4(para) and in the case of
E 'Agricultural Market Committee vs. Shalimar Chemical
Works' reported in [(1997) 5 SCC 516 (para 26) were
cited from the petitioners side, both laying down the same
principle, which needs to be discussed. The relevant part
of the latter (1997) decision reads "The principle which
F therefore emerges out is that the essential legislative
function consists of the determination of the legislative
policy and the legislature cannot abdicate essential
legislative function in favour of another. Power to make
subsidiary legislation may be entrusted by the legislature
G to another body of its choice but the legislature should
before delegating, enunciate either expressly or by
implication, the policy and the principles for the guidance
of the delegates". However, the words of the Supreme
Court immediately following the above quoted words bring
H out the implication. They read "The effect of these
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 989
OF M.P. & ORS. [SWATANTER KUMAR, J.]
principles is that the delegate ......... cannot widen or A
constrict the scope of the Act or the policy laid down
thereunder. It cannot, in the garb of making rules, legislate
on the field covered by the Act.. ... .". We do not find the
rule in question to be widening or constricting the scope
of either the Act or any policy laid down under the Act. Nor B
is the Rule in question legislating upon any field covered
by the Act. To the same effect is cited the case of 'Addi.
District Magistrate Vs. Sir Ra,' (2005) 5 SCC 451 (para
16).
27. This brings us to the last point raised by the petitioners.
c
The decisions of the Delhi and Kerala High Court reported
respectively in AIR 1975 Del 200 'Bar Council of Delhi Vs.
Bar Council of Kerala Vs .... .' were read out before us. It
was pointed out that in the Delhi case common law was
used to justify an implied power of removal of the elected D
Chairman on the ground that the statute had not changed
the common law. The correctness of the law laid down in
that decision was assailed by placing reliance on AIR 1954
SC 210 'Jagan Nath Vs. Jaswant Singh', (1982) 1 SCC
691 'Jyoti Basu Vs. Debi Ghoshal', (1984)1SCC 91 'Arun E
Kumar Bose Vs. Mohd. Furkan Ansari 'and (1992) 4
SCC 80 'Mohan Lal Tripathi Vs. District Magistrate'. And
it was argued that concepts familiar to common law and
equity must remain strangers to Election Law unless
statutorily embodied. In respect of the Kerala High Court F
decision it was argued that the Court fell in error in reading
the power of removal as 'incidental'. It is not necessary to
go into these arguments because as stated above the
Rule regarding removal is not justified under Section 15(2)
but under Section 15(1) of the Act, which is of wide G
amplitude and there is no reason to restrict the scope of
Rule making power under Section 15(1) so as to exclude
(i) prescription of tenure, or (ii) removal on a vote of no-
confidence from the ambit of the Rule making power
conferred by that provision. H
990 SUPREME COURT REPORTS [2011] 11 S.C.R.
A 28. Before moving on to the next issue, we may refer to a
decision cited by the Respondent no.6 (of W.P. No. 6628).
In this interesting decision by a Full Bench of Gujarat High
Court in the case of 'N.B. Posia Vs. Director' reported in
AIR 2002 Guj 348 (PB) (relevant paragraphs are 46 and
B 66 of that law report) it has been held that though there
was no provision in the Act or statutory Rules for removal
of an elected Chairman of the Committee, yet (i) the words
"ceasing to hold office for any reason" include the removal
by a no-confidence motion and (ii) if a holder of an office
c if elected by a simple majority, he can be removed
(through no-confidence motion) by a simple majority (even
in absence of a statutory provision for such removal). With
utmost respect to the said decision, we find ourselves
totally unable to subscribe to either of the two propositions
therein."
D
12. It is the legality and correctm~ss of the above reasoning
that has been questioned before us in the present appeals. We
have already noticed that the questions which arise for
consideration in the present cases are of some public
E importance and are matters which are likely to arise repeatedly
in the conduct of affairs of the State Bar Councils. Before we
proceed to discuss the legal aspects of the propositions
involved in the present cases, it will be more appropriate for
the Court to notice the scheme of the Advocates Act and the
F relevant provisions of the laws and rules.
13. The Parliament of India enacted the Advocates Act on
19th May, 1961 to amend and consolidate the laws relating to
legal practitioners and to provide for the constitution of State
G Bar Councils and an All India Bar Council. The object of the
Advocates Act is to constitute one common Bar for the whole
country and to provide machinery for its regulated functioning.
Though the Advocates Act relates to legal practitioners in its
pith and substance, it is an enactment dealing with the
qualifications, enrolment, right to practise and discipline of
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 991
OF M.P. & ORS. [SWATANTER KUMAR, J.]
advocates. It is not only implicit but clear from the provisions A
of the Advocates Act that once an advocate is enrolled by any
State Bar Council, he becomes entitled to practise in all courts
including the Supreme Court. Therefore, this is a legislation
which deals with persons entitled to practise before the
Supreme Court. In the case of O.N. Mohindroo vs. Bar Council B
of Delhi & Ors. [AIR 1968 SC 888) this Court held that:
"(10) The object of the Act is thus to constitute one common
Bar for the whole country and to provide machinery for its
regulated functioning. Since the Act sets up one Bar, C
autonomous in its character, the Bar Councils set up
thereunder have been entrusted with the power to regulate
the working of the profession and to prescribe rules of
professional conduct and etiquette, and the power to
punish those who commit breach of such rules. The power
of punishment is entrusted to the disciplinary committees D
ensuring a trial of an advocate by his peers. Section 35,
36 and 37 lay down the procedure for trying complaints,
punishment and an appeal to the Bar Council of India from
the orders passed by the State Bar Councils. As an
additional remedy S. 38 provides a further appeal to the E
Supreme Court. Though the Act relates to the legal
practitioners, in its pith and substance it is an enactment
which concerns itself with the qualifications, enrollment,
right to practise and discipline of the advocates. As
provided by the Act once a person is enrolled by any one F
of the State Bar Councils, he becomes entitled to practise
in all courts including the Supreme Court. As aforesaid,. the
Act creates one common Bar, all its members being of
one class, namely, advocates. Since all those who have•
been enrolled have a right to practise in the Supreme Court G
and the High Courts, the Act is a piece of legislation which
deals with persons entitled to practise before the Supreme
· Court and the High Courts. Therefore the Act must be held
to fall within entries 77 and 78 of List I. As the power of
H
992 SUPREME COURT REPORTS [2011] 11 S.C.R.
A legislation relating to those entitled to practise in the
Supreme Court and the High Courts is carved out from the
general power to legislate in relation to legal and other
professions in entry 26 of List Ill, it is an error to say, as
the High Court did, that the Act is a composite legislation
B partly falling under entries 77 and 78 of List I and partly
under entry 26 of List Ill."
14. If one looks into the statement of objects and reasons
for enacting the Advocates Act, it becomes clear that the Act
C seeks to implement the recommendations of the All India Bar
Committee, made in the year 1953, after taking into account
the recommendations of the Law Commission on the subject
of Reform of Judicial Administration, and particularly, the
recommendations relating to the Bar and to legal education. It
was, therefore, conceptualized to legislate a law which will
D govern the State Councils and the All India Bar Councils in
different specified fields. The main features of the Advocates
Act were, the integration of the Bar into a single class of legal
practitioners known as advocates; the establishment of a
common roll of advocates, having a right to practise in any part
E of the country and in any court, including the Supreme Court;
the prescription of uniform qualifications for the admission of
persons to become advocates; the division of advocates into
senior advocates and other advocates based on merit; and the
creation of autonomous Bar Councils, one for the whole of India,
F i.e, the establishment of an All India Bar Council and one for
each State. We may examine some of the relevant provisions
of the Advocates Act.
15. Section 2(a) of the Advocates Act defines an
G 'advocate' to mean an advocate entered in any roll under the
provisions of the Advocates Act.
'Bar Council' means a Bar Council constituted under the
Advocates Act.
H On the other hand, the 'Bar Council of India' means the Bar
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 993
OF M.P. & ORS. [SWATANTER KUMAR, J.)
Council constituted under Section 4 for the territories to which A
the Advocates Act extends. ,
The 'State Bar Council' means a Bar Council constituted
under Section 3 of the Advocates Act.
The expression 'prescribed for the purposes of this Act' B
means prescribed by the rules made under the Advocates Act.
16. The constitution of State Bar Council is provided under
Section 3 of the Advocates Act and as would be evident, this
Section has been subjected to numerous amendments made c
from time to time. The constitution of the State Bar Council has
been spelt out in Section 3(2); and Section 3(3) of the
Advocates Act which provides that there shall be a Chairman
and a Vice-Chairman of each State Bar Council, elected by the
members, in such manner as may be prescribed. The o
Advocates Act, inter alia, imposes certain restrictions and the
deeming provisions in terms of Sub-sections (3) and (3A) of
Section 3 of the Advocates Act, that every person holding office
as Chairman or as Vice-Chairman of any State Bar Council
immediately before the commencement of the Advocates E
(Amendmer.it) Act, 1977, shall, on such commencement, cease
to hold office as· the Chairman or Vice-Chairman, as the case
may be, but, would continue to carry on the duties of his office
until the persons elected as Chairman or Vice-Chairman, as
the case may be, in accordance with the provisions of the
Advocates Act, assume charge. F
17. Section 3(4) of the Advocates Act requires that an
advocate shall be disqualified from voting at an election· under
sub-section (2) or for being chosen as a member of the State
Bar Council, unless he possesses such qualifications or G
satisfies such conditions as are prescribed in this behalf.
18. All elections to the State Bar Council are to be held in
accordance with the provisions of the Act. Similarly, under
S~ction 4 of the Advocates Act, Bar Council of India shall H
994 SUPREME COURT REPORTS [2011) 11 S.C.R.
A consist of the persons stated under the Advocates Act. The
provisions of the Advocates Act dealing with State Bar Councils
under Section 3, are substantially similar to the provisions with
respect to the Bar Council of India, under Section 4 of the
Advocates Act. Every Bar Council shall be a body corporate
B having perpetual succession and a common seal, with power
to acquire and hold property and to sue and be sued in its own
name.
19. The functions of the State Bar Council and the Bar
C Council of India are prescribed under Sections 6 and 7 of the
Advocates Act. Besides admitting persons as advocates on
its rolls [Section 6(a)] and maintaining such rolls [Section 6(b)],
it is for the State Bar Councils to provide for the elections of
its members [Sections 6(g)] and to perform all other functions
conferred on it by or under this Act [Section 6(h)]. Section 6(i)
D of the Advocates Act allows the State Bar Councils to do all
other things necessary for discharging their functions.
20. Functions of the Bar Council of India are of a wider
spectrum than that of the State Bar Council. Bar Council of India
E has to lay down standards of professional conduct and etiquette
for the advocates, the procedure to be followed in Disciplinary
Committees and to safeguard the rights, privileges and interest
of advocates.
21. The Bar Council of India may, under Section 7(k) of
F the Advocates Act, provide for the election of its members. This
provision is identical to Section 6(g) of the Advocates Act.
Simila~ly, Sections 6(h) and 6(i) are equivalent to Sections 7(1)
and 7(m) of the Advocates Act.
G 22. The election to the Bar Councils fs for a specified
tenure, which is stated under Section 8 of the Advocates Act.
The term of the office of an elected member of a State Bar
Council, other than an elected member thereof referred to in
Section 54, shall be for five years from the date of publication
H of the results. The Bar Council of India has been vested with
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 995
OF M.P. & ORS. [SWATANTER KUMAR, J.]
the power of extending this period, for reasons to be recorded, A
and only in the event of the State Bar Council failing to provide
for the election of its members before the expiry of its terms.
This power is also regulated by an upper limitation of 6 months
in such grant of extension.
23. Section 14 of the Advocates Act mandates that no B
· election of a member to a Bar Council shall be called in question
on the ground merely that due notice thereof has not been given
to any person entitled to vote at the elections, if notice of the
date has, not less than thirty days before that date, been C
published in the Official Gazette.
24. Section 15 of the Advocates Act is one of the most
relevant provisions, which needs to be examined by this Court,
as according to the contention raised by the appellants, Rule
122-A is ultra vires Section 15 of the Advocates Act. Section D
15 of the Advocates Act gives power to the Bar Council to
make rules to carry out the purposes of 'this Chapter'. 'This
Chapter' means Chapter II of the Advocates Act. Inter alia, this
Chapter deals with constitution, election and functions of the Bar
Councils. It will be useful to refer to the relevant parts of the E
provisions of Section 15 of Chapter II of the Advocates Act,
which are as under:
"15. Power to make rules,- (1) A Bar Council may make
rules to carry out the purposes of this chapter.
F
(2) In particular, and without prejudice to the generality of
the foregoing power, such rules may provide for-
a. (Note:- Subs. by Act 60 of 1973, sec.12) the election of
members of the Bar Council by secret ballot including the G
conditions subject to which persons can exercise the right
to vote by postal ballot , the preparation and revision of
electoral rolls and the manner in which the results of
elections shall be published];
b. )()()()()()( H
996 SUPREME COURT REPORTS [2011] 11 S.C.R
A. , c. (Note:- Clause (c) ins. by Act 38 of 1977, sec. 5) the
manner of election of the Chairman and the Vice-Chairman
of the Bar council];
d. )()()()()()(
B e. xxxxxx
f. the filling of casual vacancies in the Bar Council ;
g. the power and duties of the Chairman and the Vice-
Chairman of the bar Council ;
c
(ga) . xxx xxx
(gb). xxxxxx
h. xxxxxx
D
i. the constitution and functions of any committee of the Bar
council and the term of office of members of any such
committee;
E (3) No rules made under this section by a State Bar
Council shall have effect unless they have been approved
by the Bar Council of India."
25. Chapter Ill of the Advocates Act deals with 'Admission
and Enrolment of Advocates'.
F
Section is of the Advocates Act empowers the State Bar
Councils to make rules to carry out the purposes of this Chapter,
i.e., Chapter Ill.
G 26. Section 49 of the Advocates Act appears under
Chapter VI, i.e., 'Miscellaneous' and empowers the Bar Council
of India to make rules for discharging its functions under this
Act and besides providing for specific powers, the Bar Council
of India may prescribe rules under the residuary provisions of
H Section 49(1 )0) of the Advocates Act, whereby the Council is
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 997
OF M.P. & ORS. [SWATANTER KUMAR, J.]
empowered to make rules in regard to any other matter which A
may be prescribed. However, tl:le rules framed would not come
into force or take effect unless they have been approved by the
Chief Justice of India and if the rules relate to Section 49(1 )(e)
of the_ Advocates Act they will not take effect unless they have
been approved by the Ce.ntral Government. Under Section 49A B
of the Advocates Act, the Central Government is vested with
the general power of making rules and these rules could be
framed for the whole of India or for all or any of the Bar councils.
In the event of conflicts between the rules framed by the Central
Government and the Bar Councils, the rules framed by the c
Central Government shall have precedence in terms of Section
49A(4) of the Advocates Act. We need not elaborate upon other
provisions of the Advocates Act at this stage.
27. Now let us notice the relevant provisions in the Bar
Council of India Rules (in short, the 'Rules') which were enacted D
in exercise of its rule making powers under the Advocates Act.
This power of the Bar Council of India originates from clauses
(c), (d), (e), (f) and (g) ofSub-section (2) of Section 15 read
with Sections 4 and 1OB of the Advocates Act.
E
28. Chapter I of Part II of the Rules deals with the matters
relating to the Bar Council_pf India and particularly to the election
of members of the Council. The election of the members of the
Bar Council of India has to be conducted in terms of Rules 1
to 10 of the Rules. Rule 11 of the Rules makes it mandatory F
that a member of the Bar Council of India, who is elected as
Chairman or Vice-Chairman or member of any Committee of
the Council, shall cease to hold office as such Chairman or
Vice-Chairman or member of Committee, on the expiry of his
term as a member of the Bar Council of India. A restriction is G
further sought to be placed upon the right of the person to
resign. A member can resign from the membership of the Bar
Council of India only on the grounds which are genuine and not
for the purposes of sharing of terms fixed by the statute. Under
Rule 12(2) of the Rules, the Chairm'an or the Vice-Chairman
H
998 SUPREME COURT REPORTS [2011] 11 S.C.R.
A shall hold the office for a period of two years or until his term of
office as member of the Bar Council of India ceases whichever
is earlier. The election for the post of Chairman and Vice-
Chairman has to be held at the meeting of the Bar Council of
India and in accordance with the procedure prescribed under
B Rule 12 of the Rules. The Chairman and the Vice-Chairman
perform the functions of exercising general control and
supervision over the affairs of the Bar Council of India, save as
otherwise provided in these Rules and subject to the resolutions
of the Bar Council of India. Rule 22 of the Rules has significant
c bearing on the discussion in the present cases. This Rule
relates to 'no confidence motion' against the Chairman, the
Vice-Chairman, or any other office bearer, and its
consequences. The Rule 22 reads as under:
"On a motion of "No confidence" being passed by Bar
D Council of India by a Resolution passed by majority of not
less than 3/4th of the Members present and voting and such
majority passing "No Confidence Motion" is more than 2/
3rd of the total number of Members constituting the Bar
Council for the time being, the Chairman or Vice-Chairman
E or any other office bearer against whom the motion is
passed shall cease to hold office forthwith.
Notwithstanding anything contained in the Act or the Rules
made thereon, the Chairman or Vice-Chairman shall not
F preside over the meeting in which motion of "No
Confidence" is discussed against him and such meeting
shall be convened on a notice of at least one month. The
Chairman or the Vice-Chairman shall have the right to vote,
speak or take part in the proceeding of the meeting."
G 29. The Committees excluding the Disciplinary
Committees are to be constituted by the Bar Council of India
under Chapter II. The framers of the Rules have taken a
precaution that the decisions of the Bar Council of India should
not be changed without reason and in violation of the relevant
H provisions. Rule 9 of Chapter II of the Rules provides that the
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 999
OF M.P. & ORS. [SWATANTER KUMAR, J.]
jecision on any matter shall be by majority and, in the case of A.
3quality of votes, the Chairman of the meeting shall have a
second or a casting vote. Rule 10 of the Rules puts a restriction
on change of decisions. According to this Rule, no matter once
decided, shall be re-considered for a period of 3 months unless
the Bar Council of India by a two-third majority of the members B
present so permits. Under Rule 12 of the same Chapter, in the
absence of the Chairman or the Vice-Chairman member at any
meeting, a member chosen by the members of the Council shall
preside at the meeting.
30. We have noticed these Rules to make a comparative C
study of the relevant M.P. Rules, to examine their impact in
correct perspective. In exercise of the powers conferred by
Sections 15(1), 15(2), 28(1) and 28(2), read with Chapter II and
other provisions of the Advocates Act, the State Bar Council,
with the approval of the Bar Council of India as required under D
Sections 15(3) and 28(3) of the Advocates Act, has framed the
M.P. Rules. The M.P. Rules dea~ with different facets of
functioning of the State Bar Council. It is not necessary for us
to deal with all the aspects of the rules governing the functioning
of the State Bar Council. The State Bar Council shall elect the E
members of each Committee in its Meeting as per Rule 1 of
Chapter VI. In terms of Rule 3 of the same Chapter, the election
to the Committee shall be conducted by the Chairman of the
State Bar Council and in case the Chairman of the State Bar
Council is a candidate for being elected as a member of any F
Committee, the State Bar Council, before proceeding with the
elections to such Committee, shall appoint any one. of its
members who is not a candidate for election to such committee,
to conduct the election to the said Committee and to declare
the results under his signature. G
31. Under Chapter XVI, Rule 110 of the M.P. Rules, it is
obligatory on the part of the Chairman of the State Bar Council
to call a meeting, which he shall preside over, when he receives
a requisition for doing so, signed by not less than 3 members
H
1000 SUPREME COURT REPORTS [2011] 11 S.C.R.
A of the State Bar Council. The Chairman has to exercise general
control and supervision over all the matters of the State Bar
Council.
32. The State Bar Council consists of 26 elected members
B and the Advocate General of the State. Rule 118 is the first rule
that falls under Chapter XVIII and it requires that a State Bar
Council shall elect a Chairman and a Vice-Chairman from
amongst its members for two years. Rule 118 of the M.P. Rules
came to be amended and, as per the amended Rule, the State
Bar Council has to elect a Chairman and a Vice-Chairman from
C amongst its members for 2% years vide Resolution No. 631 of
1998.
33. Rule 122-A of the M.P. Rules was amended by the
. State Bar Council sometime in the year 1975 and vide its
D Resolution dated 27th April, 1975, the amendments and newly
added rules were sent for approval of the Bar Council of India.
Again in its Resolution dated 9th March, 1980, the State Bar
Council had recorded that to these amendments/newly added
Rules, approval of the Bar Council of India had been obtained.
E It needs to be noticed that all the members of the State Bar
..Council had attended the meeting and were signatory to this
Resolution. However, Rule 121, which was amended vide
Resolution No. 631 of 1998 dated 24th January, 1998 is also
stated to have received approval from the Bar Council of India.
F However, no notification in that regard is stated to have been
issued as yet. There is some controversy whether Rule 121
under !he same Chapter was amended and whether it attained
the approval of the Bar Council of India. This question is not
very material for us to examine inasmuch as under both Rules
118 and 121, the period of term of the elected Chairman and
G the Vice-Chairman is stated to be two years or till they cease
to be members whichever is earlier. Besides the above facts,
Section 15(3) of the Advocates Act requires that tRe rules
!framed by the State Bar Council should be approved by the Bar
Council of India. It nowhere requires issuance of any notification
H
•
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1001
OF M.P. & ORS. [SWATANTER KUMAR, J.]
which, in some cases, can be a part of legislative provisions. A
In view of the above factual matrix, it has to be held that this
controversy does not require any further consideration by the
Court.
34. The provisions with which we are primarily concerned B
in the present case are contained in Chapter XVIII of the M.P.
Rules. They read as under:
"118. The Bar Council shall elect a Chairman and a Vice-
Chairman from amongst its members for two years.
c
119. Any candidate for the office of Chairman or Vice-
Chairman shall be proposed by one member and
seconded by another member.
120. The election of Chairman or Vice-Chairman unless
unanimously agreed upon by all the members present at
0
the meeting, shall be by show of the hands. In case of the
tie, the election shall be decided by drawing of lots.
121. The Chairman, the Vice-Chairman and the Treasurer
of the Council, shall hold office for a period of two years E
or till they cease to be members whichever is earlier.
122-A The Chairman, Vice-Chairman or the Treasurer of
the Council could be removed by a vote of no confidence
passed by majority of the members, present and voting in
F
a meeting of the Council especially called for the purpose,
provided that at least 7 members of the Council have
signed the requisition for holding such a special meeting,
and such meeting shall be called within a period of 21 days
from the date of receipt of the requisition by the secretary. G
122-B That the Bar Council by a resolution may
reconstitute any of. its commil1~e17:, elected earlier by it,
provided that the requisition for 1."1e purpose signed by at
least 7 members of the Council is received by the
Secretary, and such a special meeting shall be called H
1002 SUPREME COURT REPORTS [2011] 11 S.C.R.
A within 21 days from the date of receipt of the requisition
by the Secretary."
35. Rule 122-A of the above Rules deals with the removal
of the Chairman, Vice-Chairman or the Treasurer of the State
B Bar Council by moving a 'no confidence motior1'. Existence of
such a provision is not exceptional, but is a common provision
in any electoral system. Our parliamentary system is the most
significant example of a democratic process, where the 'no
confidence motion' under Article 75(3) of the Constitution is an
C integral part of the process of election. Similarly, under Rule 22
of the Rules, a provision has been made for moving a 'no
confidence motion' and where such motion is passed by a
majority of not less than three-fourth of the members, present
and voting, and such majority passing the 'no confidence
motion' is more than two-third of the total number of members
D constituting the State Bar Council for the time being, it results
in the removal of the Chairman, Vice-Chairman or any other
office bearer. Upon passing of such a resolution, the person
shall cease to hold the office forthwith. Every democratic
process is based upon the freedom to elect and freedom to
E remove, in accordance with law. Rule 122-A of the M.P. Rules
contemplates moving of a 'no confidence motion' and upon
such motion being passed by majority of the members, present
and voting, the office bearer against whom such a motion is
moved shall be liable to be removed from such office. For
F successful application of Rule 122-A, the law requires the
following minimal conditions to be satisfied:
1. At least 7 members have signed the requisition
calling for a meeting of the Council;
G 2. Such meeting shall be called within 21 days from
the date of receipt of requisition by the Secretary.
3. Such 'no confidence motion' has to be passed by
a majority of the members present and voting, in the
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1003
OF M.P. & ORS. [SWATANTER KUMAR, J.]
meeting of theCouncil, especially caned for this A
purpose.
36. Once the above conditions are satisfied 'no confidence
motion' can be passed and upon passing of such motion, the
person is liable to be removed from the office which he held in
B
the State Bar Council prior to the holding of such meeting. The
spirit behind this provision is that where a person is elected
by following a process of election to the post of an office in the
State Bar Council, he could be removed by following the
prescribed procedure in accordance with the Rules.
c
37. This Court in the case of Mohan Lal Tripathi v. District
Magistrate [(1992) 4 sec 80], examined the validity of a 'no
confidence motion' passed by the Board on 28th March, 1990
under Section 87-A of the U.P. Municipalities Act against the
President who was directly elected by the electorate under D
Section 43(2) of the Act. The basic argument raised was that
he was sought to be removed or recalled by the other elected
members, which was a smaller and different body than the one
that had elected him and, thus, was violative of the democratic
mandate. While rejecting this argument, the Court held as under: E
"2. Democracy is a concept, a political philosophy, an ideal
practised by many nations culturally advanced and
politically mature by resorting to governance by
representatives of the people elected directly or indirectly.
But electing representatives to govern is neither a F
'fundamental right' nor a 'common law right' but a special
right created by the statutes, or a 'political right' or
'privilege' and not a 'natural', 'absolute' or 'vested right'.
'Concepts familiar to common law and equity must remain
strangers to Election Law unless statutorily embodied.' G
Right to remove an elected representative, too, must stem
out of the statute as 'in the absence of a constitutional
restriction it is within the power of a legislature to enact a
law for the recall of officers'. Its existence or validity can
be decided on the provision of the Act and not, as a matter H
1004 SUPREME COURT REPORTS [2011] 11 S.C.R.
A of policy. In the American Political Dictionary the right of
recall is defined as, 'a provision enabling voters to remove
an elected official from office before his or her term
expired'. American Jurisprudence explains it thus, 'Recall
is a proced·ure by which an elected officer may be
B removed at any time during his term or after a specified
time by vote of the people at an election called for such
purpose by a specified number of citizens'. It was urged
that 'recall gives dissatisfied electors the right to propose
between elections that their representatives be removed
c and replaced by another more in accordance with popular
will' therefore the appellant could have been recalled by
the same body, namely, the people who elected him.
Urged Shri Sunil Gupta, learned counsel, that since, 'A
referendum involves a decision by the electorate without
the intermediary of representatives and, therefore, exhibits
D
form of direct democracy' the removal of the appellant by
a vote of no-confidence by the Board which did not elect
him was subversive of basic concept of democracy.
Academically the submission appeared attractive but
applied as a matter of law it appears to have little merit.
E None of the political theorists, on whom reliance was
placed, have gone to sugges~ that an elected
representative can be recalled, only, by the persons or
body that elected him. Recall expresses the idea that a
"public officer is indeed a 'servant of the people' and can
F therefore be dismissed by them". In modern political set
up direct popular check by recall of elected representative
has been universally acknowledged in any civilised system.
Efficacy of such a device can hardly admit of any doubt.
But how it should be initiated, what should be the
G procedure, who should exercise it within ambit of
constitutionally permissible limits falls in the domain of
legislative power. 'Under a constitutional provision
authorizing municipalities of a certain population to frame
a charter for their own government consistent with and
·.,.· H subject to the Constitution and laws of the State, and a
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1005
OF M.P. & ORS. [SWATANTER KUMAR, J.)
statutory provision that in certain municipalities the Mayor A
and members of the municipal council shall be elected at
the time, in the manner, and for the term prescribed in the
charter, a municipal corporation has authority to enact a
recall provision'. Therefore, the validity or otherwise of a
no-confidence motion for removal of a President, would B
have to be examined on applicability of statutory provision
and not on political phjlosophy. The Municipality Act
provides in detail the provisions for election of President,
his qualification, resignation, removal etc. Constitutional
validity of these provisions was not challenged, and rightly, c
as they do not militate, either, against the concept of
democracy or the method of electing or removing the
representatives. The recall of an elected representative
therefore, so long it is in accordance with law cannot be
assailed on abstract notions of democracy. D
7. Value of 'historical evolution' of a provision or 'reference
to what preceded the enactment'-as an external aid to
understand and appreciate the meaning of a provision, its
ambit or expanse has been judicially recognised and
textually recommended. But this aid to construe any E
• provision which is 'extremely hazardous' should be
resorted to, only, if any doubt arises ·about the scope of
the section or it is found to be 'sufficiently difficult and
ambiguous to justify the construction of its evaluation in the
statute book as a proper and logical course and secondly F
the object of the instant enquiry' should be 'to ascertain the
true meaning of that part of the section which remains as
it was and which there is no ground for thinking the
substitution of a new proviso was intended to alter'. But
'considerations stemming from legislative history must not, G
however, override the plain words of a statute'. Neither
Section 47-A nor 87-A on plain reading suffer from such
defect as may necessitate ascertaining their intent and
purpose from the earlier sections as they stood. That shall
be clear when relevant part of the sections are extracted. H
1006 SUPREME COURT REPORTS . [2011] 11 S.C.R.
A But even otherwise there appears no merit in the
submission and for that purpose it appears appropriate to
narrate, in brief, the history of these sections. When Act 2
of 1916 was enacted it provided for election of Chairman
of the Board by a special resolution passed by the
B members under Section 43(1) of the Act. Sub-section (2)
provided for ex-officio nomination by the Government of the
Chairman in some municipalities. Section 48 empowered
the Government to remove a Chairman after hearing and
giving reasons. It did not contain any provision for removal
c of a Chairman by a vote of no-confidence. Ten years later
Act 2 of 1926 brought about a very significant change in
the Act by introducing Section 47-A and conferring power
of removal of Chairman, other than ex-officio, by the
members of the Board by expressing a vote of no-
confidence against him. Section 48, too, was amended
D
and a Chairman who failed to resign after a vote of no-
confidence was liable to be removed, by the State
Government. Thus it was as far back as 1926 that removal
of the Chairman by elected representative found its way
in the Act. In 1933 by Act No. 9 another important Section
E 87-A was added providing for tabling of no-confidence
motion against the Chairman. In 1942 Section 47-A was
omitted as the provision for resigning by the Chairman was
provided for in Section 87-A itself. And hearing of the
Chairman by State Government under Section 48 before
F removal in consequence of vote of no-confidence was
deleted. Act 7 of 1949 introduced major changes in
Sections 43 and 47-A, of the Act. Section 43 was
substituted altogether and, it for the first time, provided for
election of the Chairman simultaneously with members of
G the Board by the electorate directly. Section 47-A which
had been omitted by Act 13 of 1942 was reintroduced and
a Chairman against whom a vote of no-confidence was
passed was required to resign. In the alternative he was
permitted to recommend to State Government that the
H Board itself may be dissolved. And if the State
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1007
OF M.P. & ORS. [SWATANTER KUMAR, J.]
Government agreed with the President then it was the A
Board which was to go.· The intention apparently was to
keep a check on the power of Board, too, while taking
action against the Chairman as if it was found that exercise
of power by the Board was arbitrary and President was
being removed for extraneous reasons then the B
Government could interfere and direct dissolution of the
Board itself. Both the sections were amended once again
in 1955 and by Act 1 the election of Chairman, known now
as President, by the members of the Board was
reintroduced, as, 'The experience of the working of the c
Boards since their constitution at the last general elections
has generally been one of continuing conflict between
Presidents elected by the popular vote on the one hand
and the members on the other. This has greatly prejudiced
the normal working of the Boards'. Section 47-A of the Act
0
was substituted completely and it is in this shape that the
section stands today. Section 43.(1) was amended, once
again, by Act 47 of 1976 and election of President by
electorate was revived. In 1982 another change was made
in this section by Act 17 and election of President by the E
members of Board was confined to municipalities other
than a city declared as such under Section 3 having a
population of less than one lakh inhabitants. Sub-section
(2) provided for election of President of Board of such a
City Municipality by the electorate directly. From 1982
onwards, therefore, the direct election of President by the F
electorate is confined to smaller Municipalities.
10. Even the strained construction of the proviso does not
result in coming to the conclusion that there was a
legislative omission of not providing for removal, by vote G
of no-confidence of a President elected by the electors.
Merely because the proviso to Section 47-A prevents a
Board from holding election of the President in those
cases where he had ma~e_..-representation to the
Government to supersede
__.,,,/
the Board, it cannot be H
1008 SUPREME COURT REPORTS [2011] 11 S.C.R.
A stretched to mean that sub-section (a) of Section 47-A
cannot apply to a President elected under Section 43(2).
The proviso is intended as check to prevent the Board from
taking any step which may render the represent;:ition made
by the President infructuous as if the Government accepts
B the representation then it is the Board under sub-section
(3) which stands dissolved and not the President. That
situation may not arise in election of a President under
Section 43(2) as election of President by electors cannot
take place immediately, therefore, there is no danger
c involved, of putting at naught the representation made by
the President to State Government, as is in the case of
Section 43(1). The proviso cannot be so construed as to
nullify the operation of Section 47 2DA to a President
elected by electorate. A proviso or an exception is
incapable of controlling the operation of principal clause.
D
Result of such construction would lead to absurdity as if
Section 47-A is held not to apply to President elected
under Section 43(2) he will not be liable to resign even
though a vote of no-confidence has been passed against
him under Section 87-A and it has been communicated
E to him. Merely because the proviso cannot apply to one
of the situations that may arise cannot be reason to hold
that Section 47-A(1)(a) did not apply to President elected
by the electorate. 'If the language of the enacted part of
the statute does not contain provision which are said to
F occur on it, you cannot derive those provisions by
implication from a proviso'. Proviso could be used for
adopting a construction as suggested either when there
was some doubt about the scope of the section or there
would have been at least some reasonable doubt about
G accepting one or the other construction as became
necessary in Jennings v. Kelly on which reliance was
placed by the learned counsel for appellant.
38. 'Election' is an expression of wide connotation which
H embraces the whole procedure of election and is not confined
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1009
OF M.P. & ORS. [SWATANTER KUMAR, J.]
to final result thereof. Rejection or acceptance of nomination A
paper is included in this term. This Court, in the case of N.P.
Ponnuswami v. returning Officer, Namakkal Constituency [AIR
(39) 1952 SC 64) held that the word 'election' has been used
in Part XV of the Constitution in a broad sense, that is to say,
to connote the entire procedure to be followed to return a B
candidate to the legislature and even the expression 'conduct
of elections' in Article 324 specifically points to this wide
meaning and the meaning which can be read consistently into
other provisions occurring in the Constitution. In this case, the
election process as contemplated under the relevant laws is that c
the members of a State Bar Council are elected by the
electorate of advocates on the rolls of the State Bar Council
from amongst the electorate itself. The elected members then
elect a Chairman, a Vice-Chairman and the Treasurer of the
State Bar Council as well as constitute various committees for 0
carrying out different purposes under the provisions _of the
Advocates Act.
39~ In other words, the body which elects the Chairman or
Vice-Chairman of a State Bar Council always consists of
members elected to that Council. T.fte. democratic prinCiples E
would require that a person who attains the position of a
Chairman or Vice-Chairman, as the case may be, could be
removed by the same electorate or smaller body which elected
them to that position by taking recourse to a 'no confidence
motion' and in accordance with the Rules. The body that elects F
a person to. su6h a position would and ought to have the right
to oust him/her from that post, in the event the majority members
of the body do not support the said person at that time. Even
if, for the sake of argument, it is taken that this may not be
generally true, the provisions of Rule 122-A of the M.P. Rules G
make it clear, beyond doubt, that a 'no confidence motion' can
be brought against the elected Chairman provided the
conditions stated in the said Rules are satisfied. As already
noticed, the thrust of the challenge to the vir~ of Rule 122-A
is primarily that Section 15 of the Advocates Act does not H
1010 SUPREME COURT REPORTS [2011] 11 S.C.R.
A. contemplate the framing of such a Rule by the State Bar
Councils. Rule 122-A is stated to be ultra vires Section 15 of
the Advocates Act and, it is argued, that the introduction of such
provision suffers from the vice of excessive delegation. Section
15 of the Advocates Act empowers the State Bar Councils to
B frame Rules to carry out the purposes of this Chapter. 'This
Chapter' obviously means Chapter II of the Act. Let us examine
what Chapter II contains. Section 3 requires the constitution of
the State Bar Councils. Section 3(3) contemplates that there
shall be a Chairman and a Vice-Chairman of each State Bar
c Council elected by the State Bar Council in such manner as
may be prescribed. As already noticed above, another
important provision is Section 6 of the Act, which details the
functions to be performed by the State Bar Councils. lhter a/ia,
the functions to be performed by the State Bar Councils include,
under Sections 6(1)(d), to safeguard the rights, privileges and
0
interests of the advocates on its roll. Under Section 6(1 )(g), the
function of the Bar Council is to provide for the election of its
members and under Sections 6(1)(h) and 6(1)(i), the State Bar
Council has to perform all other functions conferred on it by or
under this Act and to do all other things necessary for
E discharging the aforesaid functions. In our view, Sections 6(1 )(h)
and 6(1)(i) have to be read and interpreted conjointly. We see
no reason why the expression 'manner of election of its
members' in Section 6( 1)(g) should be given a restricted
meaning, particularly in light of Sections 6(1 )(h) and 6(1 )(i). The
F responsibility of the State Bar Councils to perform functions as
per the legislative mandate contained in Section 6 of the Act
is of a very wide connotation and scope. No purpose would be
achieved by giving it a restricted meaning or by a strict
interpretation. The State Bar Council has to be given wide
G jurisdiction to frame rules so as to perform its functions diligently
and perfectly and to do all things necessary for discharging its
functions under the Act. The term of office of the members of
the State Bar Council is also prescribed under Chapter II, which
shall be five years from the date of publication of the result of
H the election. On failure to provide for election, the Bar Council
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1011
-OF M.P. & ORS. [SWATANTER KUMAR, J.]
of India has to constitute a special committee to do so instead. A
Section 15(2) then provides that without prejudice to the
generality of the foregoing powers, rules may be framed to
provide for the preparation of electoral rolls and the manner in
which the result shall be published. In terms of Section 15(2)(c),
the manner of the election of the Chairman and the Vice- B
Chairman of the Bar .council and appointment of authorities
which would decide any electoral disputes is provided. The
expression 'manner of election of the Chairman' again is an
expression which needs to be construed in its wide connotation.
The rules so framed by the State Bar Council shall become c
effective only when approved by the Bar Council of India in
terms of Section 15(3) of the Advocates Act.
40. The power of the State Bar Council to frame rules
under Section 15 of the Advocates Act as a delegate of the
Bar Council of India has to be construed along with the other D
. provisions of the Advocates Act, keeping in mind the object
sought to be achieved by this Act. In this regard, greater
emphasis is to be attached to the statutory provisions and to
the other purposes stated by the legislature under the provisions
of Chapter II of the Advocates Act. This is an Act which has E
been enacted with the object of preparing a common roll of
advocates, integrating the profession into one single class of
legal practitioners, providing uniformity in classification and
creating autonomous Bar Councils in each State and one for
!he whole of India. The functioning of the State Bar Council is F
to be carried out by an elected body of members and by the
office-bearers who have, in turn, been elected by these elected
members of the said Council. The legislative intent derived with
the above stated objects of the Act should be achieved and
there should be complete and free democratic functioning in G
!-he State and All India Bar Councils. The power to frame rules
has to be given a wider scope, rather than a restrictive
approach so as to render the legislative object achievable. The
functions to be performed by the Bar Councils and the manner
in which these functions are to be performed suggest that H
1012 SUPREME COURT REPORTS [2011] 11 S.C.R.
A democratic standards both in the election process and in
performance of all its functions and standards of profesS'ional
conduct which need to be adhered to. In other words, the
interpretation furthering the object and purposes of the Act has
to be preferred in comparison to an interpretation which would
B frustrate the same and endanger the democratic principles
guiding the governance and conduct of the State Bar Councils.
The provisions of the Advocates Act are a source of power for
the State Bar Council to frame rules and it will not be in
consonance with the principles of law to give that power a strict
c interpretation, unless restricted in scope by specific language.
This is particularly so when the provisions delegating such
power are of generic nature, such as Section 15(1) of the Act,
which requires the Bar Councils to frame rules to 'carry out the
purposes of this Chapter' and Section 15(2), which further uses
generic terms and expressly states that the Bar Council is
D empowered to frame rules 'iri particular and without prejudice
to the generality of the foregoing powers'. If one reads the
provisions..of clauses (a), (c), (g), (h) and (i) of Sub-section (2)
of Section 15 of the Act, then, it is clear that framing of rules
- thereunder would guide and control the conduct or business of
E the State Bar Councils and ensure maintenance of the
standards of democratic governance in the said Councils.
Since the office bearers like the Chairman and the Vice-
Chairman are elected by a representative body i.e. by the
advocates who are the elected members of the Council, on the
F basis of the confidence bestowed by the advocates/electorate
in the elected members, there seems to be no reason why that
very elected body cannot move a 'no confidence motion'
against such office bearers, particularly, when the rules so
permit.
G
41. The Bar Council of India, as already noticed, has also
framed rules and permitted moving of 'no confidence motion'
against its ChairmanNice~Chairman subject to compliance of
the conditions stated therein. Similarly, Rule 122-A of the M.P.
H Rules con~emplates the removal of a ChairmanNice-Chairman
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 1013
OF M.P. & ORS. [SWATANTER KUMAR, J.]
by a motion of no confidence, passed by a specific majority of A
the members and subject to satisfaction of the conditions stated
therein. This provision, thus, can neither be termed as vesting
arbitrary powers in the elected body, nor can it be said to be
suffering from the vice of excessive delegation. The power
delegated to the elected body is within the framework of the B
principal Act, i.e., Section 15, read with the other provisions,
of the Advocates Act. In terms of Rule 120 of the M.P. Rules, a
person can be elected as ChairmanNice-Chairman only by
majority and in case there is a tie, the election shall be decided
by drawing of lots. Under Rule 118 of the M.P. Rules a c
ChairmanNice-Chairman has to be elected from amongst its
members for two years. In other words, the term of office of the
ChairmanNice-Chairman is controlled by the fact that he has
to be elected to that particular office. The removal contemplated
under Rule 122-A is not founded on a disciplinary action but is
0
merely a 'no confidence motion'. It is only the loss of confidence
simpliciter i.e. the majority of the members considering, in their
wisdom, that the elected ChairmanNice-Chairman should not
be permitted to continue to hold that office, which is the very
basis for such removal. One must remember that Rules 118 to
122-B all come within Chapter XVIII of the M.P. Rules and, as E
such, have to be examined collectively. But for this Chapter, it
cannot be even anticipated as to who and how the offiee of the
ChairmanNice-Chairman of the State Bar Council shall be
appointed.
F
42. Now, let us examine some judgments to substantiate
what we have aforestated. In the case ·of General Officer
Commanding-in-Chief v. Subhash Chandra Yadav [(1988) 2
SCC 351], this Court stated the principle that the rules framed
under the provisions of a statute form part of the statute, i.e., G
the rules have statutory force. But a rule can have the effect of
a statutory provision provided it satisfies two conditions: (1) it
must conform to the provisions of the statute under which it is
framed; and (2) it must also come within the scope and purview
H
1014 SUPREME COURT REPORTS [2011] 11 S.C.R.
A of the rule making power of the statutory authority framing the
rule.
43. In the case of Kunj Behari Lal Butail v. State of H.P.
[(2000) 3 sec 40], this Court noticed that it is very common
for the legislature to provide general rule making power to carry
8
out the purposes of the Act. When such a power is given, it may
be permissible to find out the object of the enactment and then
see if the rules framed thereunder satisfy this test of
functionality. This test will determine if the rule falls foul of such
general power conferred on the delegatee. If the rule making
C power is expressed in usual general form, then it has to be seen
if the rules made are protected by the limits prescribed by the
parent Act. Still in the case of Global Energy Ltd. v. Central
Electricity Regulatory Commission [(2009) 15 SCC 570), this
Court was concerned with the validity of clauses (b) and (f) of
D Regulation 6-A of the Central Electricity Regulatory
Commission (Procedure, Terms and Conditions for Grant of
Trading Licence and other Related Matters) Regulations, 2004
and dealing with this aspect, the Cot1rt expressed the view that
in some cases guidelines could be assumed, by necessary
E implication, as already laid down and, while relying upon the
case of Kunj Behari Lal BiJtail (supra), the Court held as under:
"26. We may, in this connection refer to a decision of this
Court in Kunj Behari Lal Butail v. State of H.P.1 wherein
F a three-Judge Bench of this Court held as under: (SCC p.
47, para 14)
"14. We are also of the opinion that a delegated
power to legislate by making rules 'for carrying out the
purposes of the Act' is a general delegation without laying
G down any guidelines; it cannot be so exercised as to bring
into existence substantive rights or obligations or
disabilities not contemplated by the provisions of the Act
itself."
H 27. The power of the regulation-making authority, thus, must
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1015
OF M.P. & ORS. [SWATANTER KUMAR, J.]
be interpreted keeping in view the provisions of the Act. A
The Act is silent as regards conditions for grant of licence.
It does not lay down any pre-qualifications therefor.
Provisions for imposition of general conditions of licence
or conditions laying down the pre-qualifications therefor
and/or the conditions/qualifications for grant or revocation B
of licence, in absence of such a clear provision may be
held to be laying down guidelines by necessary implication
providing for conditions/qualifications for grant of licence
also."
44. The above enunciated principles clearly .show that the
c
language of the statute has to be examined before giving a
provision an extensive meaning. The Court would be justified
in giving the provision a purposive construction to perpetuate
the object of the Act, while ensuring that such rules framed are
within the field circumscribed by the parent Act. It is also clear D
that it may not always be absolutely necessary to spell out
guidelines for delegated legislation, when discretion is vested
·in such delegatee bodies. In such cases, the language of the
rule framed as well as the purpose sought to be achieved,
would be the relevant factors to be considered by the Court. In E
the present case, the minimum guidelines of secrecy and
fairness in election have been provided in Part IX of the Rules,
which have been framed in exercise of the supervisory powers
under Sections 49(1 )(a), 49(1 )(i) and 49(1 )0) of the Advocates
Act. Further, clause (5) of this Part even extends to the State F
Bar Councils the power to independently resolve all election
disputes through tribunals constituted for this purpose.
Therefore, the powers delegated have an in-built element of
guidance that the ChairmanNice-Chairman will be appointed
and regulated by the majority members of the State Bar Council. G
Their conduct, and the conduct of the State Bar Council as a
whole, is to be maintained in consonance with democratic
principles and keeping the high professional standards of
advocates in mind. Thus, it is not a power which falls beyond
the purview and scope of Section 15 of the Advocates Act read H
1016 SUPREME COURT REPORTS [2011] 11 S.C.R.
A in conjunction with other provisions, particularly Chapter II and
also keeping in view the object of the Act.
45. Purposive construction, to a large extent, would help
to resolve the controversy raised in the present case. The
B purpose of the Advocates Act is the democratic and
harmonious functioning of the State Bar Councils, to achieve
the object and purposes of the Act. We are unable to see how
the provisions of Rule 122-A fall foul of the ambit and scope of
Section .,15 of the Advocates Act and, for that matter, any other
C provisions of that Act. On the contrary, they are in line with the
scheme of the parent Act.
46. Having dealt with the primary aspect of this case, now
we would consider the contention that the recall of the
ChairmanNice-Chairman, by a smaller and distinct body of
D members of the State Bar Council, does not fall within the
purview of the authority of the delegatee Council, under Section
15(2)(c) of the Advocates Act, i.e. to legislate on 'the manner
of election'. Even on this ground, according to the appellants,
the provisions of Rule 122-A are unsustainable. We find no
E merit in this contention as well as it has no substance. The
election to the post of ChairmanNice-Chairman of the State
Bar Council is not by the larger body, i.e., the advocates enrolled
on the rolls of the State Bar Council, but is by a distinct body,
i.e. elected members of the State Bar Council. Once they elect
F the ChairmanNice-Chairman of the State Bar Council as per
the scheme of Rules 118 to 123, then all actions taken by such
body would have to be accepted by all concerned as correct,
if they are within the domain of the rules governing such body.
We do not consider it necessary to deliberate on this issue in
G any greater detail. Suffice it to refer to the judgment of this Court
in the case of Mohan Lal Tripathi (supra), where the Court was
concerned with an elected candidate, who, in terms of the
statute, was elected by a larger electorate and was recalled by
smaller representative body rather than by the electorate itself.
Similar arguments were raised that the recall was violative of
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1017
OF M.P. & ORS. [SWATANTER KUMAR, J.]
the spirit and purpose of the election and was arbitrary, A
irrational and violative of the democratic norms. These
arguments were rejected by the Court, after detailed
deliberation and examining the fields of democratic norms. We
have already referred in paragraph 37 of this judgment, the
relevant parts of the said discussion. B
47. Similarly, in the case of Ram Beti v. District Panchyat
Raj Adhikari ((1998) 1 SCC 680], the Court was dealing with
a situation where a Pradhan of the Panchayat was removed
by the Gram Panchayat, a smaller body, instead of removal by C
the Gram Sabha which had elected him. They questioned the
validity of Section 14 of the U.P. Panchayati Raj, Act, 1947. The
Court, while rejecting the contentions, as are even being raised
before us in the present case, held as under:
"6 .... It is no doubt true that under Section 11 (1) of the Act D
provision is made for holding of two general meetings of
the Gram Sabha in each year as well as for requisitioning
of a meeting by one-fifth of the members. But the
legislature, in its wisdom, thought it proper that the matter
of removal of a Pradhan, instead of being considered at E
the meeting of the Gram Sabha, should be considered by
the members of the Gram Panchayat. The considerations
which weighed with this Court for upholding the validity of
sub-section (2) of Section 87-A of the U.P. Municipalities
Act, 1916 relating to the removal of the President of a F
Municipal Board in Mohan Lal Tripathi are, in our opinion,
also applicable to the removal of the Pradhan of the Gram
Sabha. Although under Section 14 of the Act the power of
removal of a Pradhan is conferred on the members of the
Gram Panchayat, which is a smaller body than the Gram G
Sabha, but the members of the Gram Pancyhayat, having
been elected by the members of the Gram Sabha,
represent the same electorate which has elected the
Pradhan. The.removal of a Pradhan by two-third members
of the Gram Sabha through their representatives. Just as
H
1018 SUPREME COURT REPORTS [2011) 11 S.C.R.
A the Municipal Board is visualized as a body entrusted with
the responsibility to keep a watch on the President,
whether elected by it or by the electorate, so also the Gram
Panchayat is visualized as a body entrusted with the
responsibility to keep a watch on the Pradhan who is not
B elected by it and is elected by the members of the Gram
Sabha. An arbitrary functioning of a Pradhan is disregard
of the statute or his acting contrary to the interests of the
electorate could be known to the members of the Gram
Panchayat only and, in the circumstances, it is but proper
c that the members of the Gram Panchayat are empowered
to take action for removal of the Pradhan, if necessary. It
is no doubt true that in Section 11 of the Act provision is
made for holding two general meetings of the Gram Sabha
in each year and for requisitioning of a meeting of the
Gram Sabha by one-fifth of its members. But, at the same
D
time, we cannot lose sight of the fact that the number of
members of the Gram Sabha is also fairly large. It would
range from one thousand to more than three thousand.
Elections to public offices even at village level give rise to
sharp polarization of the electorate on caste or communal
E basis. The possibility of disturbance of law and order in a
meeting of the Gram Sabha called for considering a
motion for removal of the Pradhan cannot be excluded.
Moreover, there cannot also be due deliberation of a
serious matter as no-confidence motion by a very large
F body of persons. While amending Section 14 of the Act
so as to confer the power to remove the Pradhan of a
Gram Sabha on the members of the Gram Panchayat the
legislature must have taken into consideration the
prevailing social environment. Moreover, by way of
G safeguard against any arbitrary exercise of the power of
removal it is necessary that the motion must be passed
by a majority of /wo-thirds of the members present and
voting. ·
H 7. For the reasons aforementioned we are unable to hold
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 1019
OF M.P. & ORS. [SWATANTER KUMAR, J.]
that Section 14 of the Act, insofar as it empowers the A
members of the Gram Panchayat to remove the Pradhan
of a Gram Sabha by. moving a motion of no confidence,
is unconstitutional and void being violative of the concept
of democracy or is arbitrary and unreasonable so as to be
hit by Article 14 of the Constitution." B
48. For the reasons aforestated, as well as the reasons
recorded in the above reproduced judgments, which, with
respect, we adopt, we have no hesitation in rejecting this
contention of the appellants.
c
· 49. The next argument that was raised on behalf of the
appellants is that, in view of Rule 15 of Chapter V of the M.P.
Rules, the State Bar Council is debarred from re-considering
the same matter for a period of three months, and as such, the
decision passing 'no confidence motion' is vitiated because of o
the limitation contained in the said Rule. Rule 15 of Chapter V
reads as under:
"No matter once decided shall be reconsidered for a
period of three months unless the Council by a two-third
majority of the members present, so permits." E
50. Though the language of the above Rule clearly shows
that no matter once decided shall be reconsidered for a period
of three months but clearly makes an exception that wherever
2/3rd majority of the members present of the State Bar Council F
permits, this bar will not operate. In other wqrds, there is no
absolute bar and the Rule makes out an exception when the
matters could be reconsidered. But that is not the situation in
the present case. The first pre-requisite under this rule is that
matter should be 'once decided', and then alone, the bar of re- G
.consideration would operate; that too depending on the facts
and circumstances of a given case. 'Once decided' obviously
means the matter should be concluded or finally decided in
contradistinction of being 'kept pending' or 'deferred'.
H
1020 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Therefore, we must now examine, whether the matter in relation
to 'no confidence motion' had been finally decided at any point
of time before the date on which the 'no confidence motion' is
stated to have been passed. This also we are proceeding to
consider on the assumption that the matter related to 'no
B confidence motion', for the sake of arguments, would be
covered under Rule 15 of the M.P. Rules.
51. After issuance of a notice in accordance with the M.P.
Rules, admittedly, the 15th Meeting of the General Body of the
State Bar Council was held on 27th March, 2011 at Jabalpur,
C during which two requisitions were made: one, relating to a 'no
confidence motion' against the ChairmanNice-Chairman, and
second, that there should be re-election of the Committees. In
the minutes, it was also stated that the Chairman/Vice-
Chairman had offered their resignation subject to withdrawal
D of 'no confidence motion'. There were discussions on this
matter and it was resolved that the agenda of the meeting
would be circulated on the same day itself, by post, to all the
members of the State Bar Council, whether present at the
meeting or not and the next meeting would be held on 16th
E April, 2011 at Jabalpur. These notices were issued and as
decided the meeting was held on 16th April, 2011. During the
course of the meeting on 16th April 2011, some of the members
left the meeting, the Advocate General of Madhya Pradesh
presided over the continuation of the meeting and the 'no
F confidence motion' was passed on the same day. Of course,
there is some dispute with regard to the recording of the minutes
of this meeting. We have already reproduced the minutes which
were recorded by the respective parties. We are not very
inclined to rely upon the minutes produced by the appellants,
G inasmuch as they are not signed by all the members present
and voting. Even if, for the sake of arguments, we take that the
minutes produced by the appellants are correct, then it must
follow that both the meetings took place on 16th April, 2011.
However, it is obvious from the record that in the 15th meeting
H of the General Body held on 27th March, 2011, no final decision
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1021
OF M.P. & ORS. [SWATANTER KUMAR, J.]
had been taken and it was decided to circulate the minutes and A
other papers of the meeting to all members.
52. Another ancillary argument to the above is that by virtue
of the bar under Rule 15 of the M.P. Rules, the Chairman and
Vice-Chairman were elected to their respective posts in B
February 2011 and, as such, the election itself was a 'decision'
which was incapable of being reconsidered and revised in the
meetings of March and April, 2011. According to the appellants,
the limitation contained in Rule 15 of the M.P. Rules shall vitiate
the decision of passing a 'no confidence motion'. This argument C
is also misconceived in law and on the facts of the present
case. Election is not a 'decision' as contemplated under Rule
15 of the M.P. Rules. It is not a matter on which the State Bar
Council decides, as firstly, this matter falls within the discretion
of individual advocates on the rolls of the State Bar Council to
elect the representative members of the said Councils, and D
secondly it falls within the discretion of such elected
representatives to elect a person as ChairmanNice-Chairman.
It is not a 'decision' which relates to the matters as
contemplated under the M.P. Rules. Passing of a 'no
confidence motion' in law, therefore, cannot be termed as E
reconsideration of the decision taken.
53. Once the Council is constituted in terms of the Act and
the Rules framed thereunder, then it has to take decisions in
the role of a Council in relation to variou.s matters, including F
rejecting .or passing a 'no confidence motion'. This is even
clear from the case-of Ram Beti (supra} wherein it was held
that the smaller representative body is better equipped to make
a recall decision and it has more information in its hands, to
make such a recall decision. The decision is, therefore, G
substantially different in character from the election decision.
A statutory bar may exist in this respect, in some cases, but in
its absence, the Court cannot infer or imply a time bar on
challenging the results of election as a feature of common law
or general democratic principles.
H
1022 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 54. Thus, the bar contemplated under Rule 15 of the M.P.
Rules does not operate, on merits, when applied to the facts
of the present case. Thus, we have no hesitation in rejecting
this contention, raised by the appellants.
B 55. It is also the contention of the appellants that the group
supporting the Chairman/Vice-Chairman of the State Bar
Council, in the meeting dated 16th April, 2011, had raised the
issue that 'no confidence motion' and reconstitution of the
committee could not be considered in view of the bar contained
in Rule 15 of the M.P. Rules, in the form of 'a point of order'
C against the requisition asked for by the other group. Firstly, we
have already rejected the contention of the appellants that the
matters were discussed and concluded, either through the
February 2011 elections or in the 15th Meeting of the Council
dated 27th March, 2011, as, according to the minutes, the
D meeting had only been deferred for issuance of appropriate
agenda and requisition notice to a!l the members present or
not present. Treating it as a valid point of order, the Chairman
had accepted the same and then he along with some members,
had walked out of the meeting.
E
56. As indicated above, the meeting then was presided
over by the Advocate General, Madhya Pradesh, whereafter the
'no confidence motion' was passed. We are unable to accept
the approach adopted by the ChairmanNice-Chairman as, on
F the peculiar facts and circumstances of this case, it ex facie
was untenable and without any basis. It was the duty of the
ChairmanNice-Chairman to face the 'no confidence motion',
as they were elected office bearers and if they had lost the
confidence of majority group which elected them to this post
G and a 'no confidence motion' had been moved against them
in terms of Rule 122-A, they were expected to face the
consequences thereof. This, alone, would have served the ends
of democratic governance and proper functioning of the State
Bar Council. Therefore, in our considered view, even on this
issue, the appellants cannot succeed. ·
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 1023
OF M.P. & ORS. [SWATANTER KUMAR, J.]
57. Then it is contended that removal from an office is A
punitive. It being punitive, there has to be a just cause and
adherence to the principles of natural justice by granting hearing
before the removal from office is given effect to. To clarify, it is
submitted that removal from an elected office, even in face of
a valid rule, would have to meet these twin requirements of just B
cause and hearing, before a person can be removed from
office. On the other hand, the learned counsel appearing for the
respondents, while relying upon the judgment of the Delhi High
Court in the case of Bar Council of Delhi v. Bar Council of
India [AIR 1975 Del 200], contended that by application of the C
General Clauses Act, 1897 even in absence of any specific
provision, the right of persons to elect a ChairmanNice-
Chairman would include the right to undo the same by moving
a 'no confidence motion'.
58. It needs to be noticed at the very threshold of D
consideration of this submission that 'no confidence motion'
cannot be equated in law to removal relatable to a disciplinary
action or as a censure. It is stricto senso not removal from
office, but a removal resulting from loss of confidence. It is
relatable to no confidence and is not removal relatable to the E
conduct or improper behaviour of the elected person. Even the
concept of 'term' under the Rules, is referable to and is
controlled by a super-imposed limitation of no confidence. This
tenure cannot be compared to a statutory tenure as is commonly
understood in the service jurisprudence. The distinction F
between removal by way of 'no confidence motion' and removal
as a result of disciplinary action or censure is quite well
accepted in law. They are incapable of being inter-changed in
their application and must essentially operate in separate fields.
The Court has always prioritized harmonious functioning of the G
State Bar Council. In the case of Afjal Imam v. State of Bihar
and others, [JT 2011 (5) 19], the recall of a Mayor and the re-
election of a different Mayor in his place has been held to
implicitly shorten the term of the appointees of the previous
H
1024 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Mayor, if such is in the interest of smooth functioning of the body.
59. Noticing this distinction, a Bench of this Court in the
case of Babubhai Muljibhai Patel v. Nandlal Khodidas Barot
[(1974) 2 sec 706], while dealing with the question whether
grounds for removal must necessarily be specified when
8 passing a motion of no confidence, noticed the differe11ce
between 'no confidence motion' and a censure motion and
described the same as follows:
"19 ..... lt does not, however, follow therefrom that the ground
c must also be specified when a motion of no confidence is
actually passed against a President. It is pertinent in this
context to observe that there is a difference between a
motion of no confidence and a censure motion. While it is
necessary in the case of a censure motion to set out the
D ground or charge on which it is based, a motion of no
confidence need not set out a ground or charge. A vote of
censure presupposes that the persons censured have
been guilty of some impropriety or lapse by act or omission
and it is because of that lapse or impropriety that they are
E being censured. It may, therefore, become necessary to
specify the impropriety or lapse while moving a vote of
censure. No such consideration arises when a motion of
no confidence is moved. Although a ground may be
mentioned when passing a motion of no confidence, the
existence of a ground is not a prerequisite of a motion of
F
no confidence. There is no legal bar to the passing of a
motion of no confidence against an authority in the
absence of any charge of impropriety or lapse on the part
of that authority. The essential connotation of a no-
confidence motion is that the party against whom such
G motion is passed has ceased to enjoy the confidence of
the requisite majority of members. We may in the above
context refer to page 591 of Practise and Procedure of
Parliament, Second Ed. by Kaul and Shakdher wherein it
is observed as under:
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL1025
OF M.P. & ORS. [SWATANTER KUMAR, J.]
"A no-confidence motion in the Council of Ministers is A
distinct from a censure motion. Whereas, a censure motion
must set out the grounds or charge on which it is based
and is moved for the specific purpose of censuring the
Government for certain policies and actions, a motion of
no confidence need not set out any grounds on which it is B
based. Even when grounds are mentioned in the notice
and read .out in the House, they do not form part of the no-
confidence motion."
60. Still, in another case, titled B.P. Singhal v. Union of
India & Anr. [JT 2010 (5) SC 640], the Court, while dealing with C
the doctrine of pleasure in relation to the term of the office of
the Governor, for a tenure of 5 years, noticed that Article 156(1)
of the Constitution dispenses with the need to assign reasons
or the need to give notice in the event of removal. But the need
to act fairly and reasonably still cannot be dispensed with. D
Exception was carved out against acting in a manner which is
arbitrary, capricious or unreasonable. In face of the above
enunciated principles, we are of the considered view that the
concept of just cause and right of hearing, the features of
common law, are not applicable to the elected offices where a E
person is so elected by majority in accordance with statutory
rules. It would also have hardly any application to moving of a
'no confidence motion' in so far as these are controlled by
specific provisions and are not arbitrary or unreasonable. There
is nothing in Rule 122-A of the M.P. Rules that requires F
adherence to these two concepts when a motion of no
confidence is moved against a sitting Chairman/Vice-
Chairman. Of course, it does not imply that the action can be
arbitrary or capricious and absolutely contrary to the spirit of
the Rule. There is no dispute in the facts of the present case G
that majority of the members had pas·sed the 'no confidence
motion' in the 16th Meeting of the State Bar Council on 16th
April, 2011. We are not able to accept the view taken by the
High Court of Delhi in the case of Bar Council of Delhi (supra)
H
1026 SUPREME COURT REPORTS [2011] 11 S.C.R.
A in saying that solely with the aid of General Clauses Act, the
power to elect would deem to include power to remove by a
motion of no confidence, particularly, with reference to the facts
and circumstances of this case. The power to requisition a 'no
confidence motion' and pass the same, in terms of Rule 122-
8 A of the M.P. Rules, is clear from the bare reading of the Rule,
as relatable to loss of faith and confidence by the elected body
in the elected office bearer. We have already discussed in
some detail and concluded that Rule 122-A of the M.P. Rules
is not ultra vires the provisions of the Advocates Act, including
c Section 15. When the law so permits, there is no right for that
office bearer to stay in office after the passing of the 'no
confidence motion' and, in the facts and circumstances of the
present case, it is clearly established that the appellants had
lost the confidence of the majority of the elected members and
thus the Resolution dated 16th April, 2011 cannot be faulted
0
with.
61. Before concluding the judgment we would proceed to
record our conclusions and answer the three questions posed
at the outset of the judgment as follows:
E
Answers to:
Question No. 1
We hold that the provisions of Rules 121 and 122-A (in
F particular) of the M.P. Rules are not ultra vires of the provisions,
including the provisions of Section 15, of the Advocates Act.
These rules also do not suffer from the vice of excessive
delegation.
G Question No. 2
In view of our answer to Question No. 1, there is no need
for us to specifically answer this question.
H
PRATAP CHANDRA MEHTA v. STATE BAR COUNCIL 1027
OF M.P. & ORS. [SWATANTER KUMAR, J.]
Question No. 3 A
In view of the language of Section 15(3) of the Advocates
Act and the factual matrix afore-noticed by us, it is clear that
the amended rules of the M.P. Rules had received the approval
.of the Bar Council of India, particularly Rule 122-A. The Rules B
would not be invalidated for want of issuance of any notification,
as it is not the requirement in terms of Section 15(3) of the
Advocates Act and in any case would be a curable irregularity
at best.
For the reasons afore-stated, we dismiss these appeals. C
,N.J. Appeals dismissed.
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