http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: BABU VERGHESE & ORS.

       Vs.

RESPONDENT: BAR COUNCIL OF KERALA & ORS.

DATE OF JUDGMENT:       16/03/1999

BENCH: D.P.Wadhwa, S.Saghir Ahmad

JUDGMENT:

     S.  SAGHIR AHMAD, J.

     Leave granted.

     Bar Council of Kerala, which was constituted under the Advocates Act, 1961 (for short, the ’Act’), on 28th January, 1992,  was to last for a term of five years which expired on 27th  January  1997.  But before the expiry of the term,  it approached the Bar Council of India (BCI, for short) through its  letter  dated 31st December, 1996 for extension of  its term  by  six months.  A reminder for this purpose was  also sent on 13th January, 1997.

     On receipt of the reminder from the State Bar Council, a Resolution was circulated by the BCI to all its 18 members on  13th  January, 1997 proposing to extend the term  for  a period  of six months.  In its meeting held on 8th February, 1997,  BCI  confirmed  the Resolution on which  opinion  was obtained  from  the members by circulation.  It  was  during this period of six months that elections were held and a new State Bar Council for Kerala was elected.

     It  appears  that  for holding  fresh  elections,  the Preliminary  Electoral  Roll  was  published  on  28.12.1996 followed  by  notice of publication of the  final  Electoral Roll  on  22.1.1997, which was challenged by one  Shri  P.G. Chacko,  Advocate,  by O.P.  No.  1987/97 filed in the  High Court on 31.1.1997.  The Petition was, however, dismissed in limine  on  6.2.1997 against which Writ Appeal No.   307  of 1997  was  filed  before  the Division  Bench.   It  further appears that in the meantime, the Kerala Bar Council adopted a  resolution  on 1.2.1997 to conduct the elections.   After the  extension  of term by the Bar Council of India  by  its resolution  dated  8.2.1997,  the process of  elections  was started  and the elections were held with counting of  votes being  completed on 3.4.1997.  The results were declared  on the  same day, but they were published in the Kerala Gazette on  6th of May, 1997.  It was, at this stage, that O.P.  No.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

8524  of  1997  was  filed on 21.5.1997 in  the  High  Court challenging  the elections on the grounds, inter alia,  that the  term  of  the  Kerala Bar  Council  having  expired  on 27.1.1997, it had ceased to have any jurisdiction to conduct the  elections.  This Writ Petition as also the Writ  Appeal referred  to  above, were disposed of by a  common  judgment passed  on  11.12.1997 dismissing the Writ Petition as  also the  Writ Appeal.  The High Court has held that the term  of the Kerala Bar Council will be treated to have been extended by  the  Bar  Council  of India before  the  expiry  of  its original term.  It is against this judgment that the present appeal has been filed.

     We  have  heard  learned   counsel  for  the  parties. Learned  counsel appearing for the appellants has  contended that  the  impugned election by which a new Bar Council  for the  State of Kerala has been elected is no election in  the eye  of  law as the State Bar Council, on the expiry of  its term  on  27th  January,  1997,  had  ceased  to  exist  and consequently  had  ceased  to   have  any  jurisdiction  for conducting  a fresh election.  It is also contended that the extension  of the term of the State Bar Council should  have been  granted  by the BCI before 27th of January,  1997  and since  the extension was granted by a Resolution adopted  on 8th  February,  1997,  it  would  not  have  the  effect  of extending  the term with effect from 27th of January,  1997. It  is contended that immediately on the expiry of the  term of  the  State Bar Council, fresh elections could have  been held only in the manner provided under Section 8A (3) of the Act  and  since the elections were not held in  that  manner through the Special Committee but were held by the State Bar Council,  which  had ceased to have any jurisdiction in  the matter, the elections were a nullity.

     Mr.   V.  R.  Reddy, learned Senior counsel  appearing on  behalf  of BCI as also Mr.  K.M.K.  Nair,  appearing  on behalf of the Bar Council of Kerala, have contended that the term  of the State Bar Council shall be deemed to have  been extended on 13th of January, 1997, namely, the date on which the  Resolution for extending the term was circulated to all the  eighteen  members  of the BCI and since  eight  of  the members  had  already given their consent for extending  the term by a period of six months and others had not raised any objection,  the  Resolution of Confirmation adopted  on  8th February,  1997  would relate back to the date on which  the Resolution  for  extension  of the term by  six  months  was circulated  under Rule 6 of the Bar Council of India  Rules. That  being so, the decision, it is contended, to extend the term  of the State Bar Council shall be deemed to have  been taken  by the BCI on 13th January, 1997 and, therefore,  the State Bar Council retained its jurisdiction to conduct fresh elections which had been validly held.

     Learned  counsel for the appellants also raised a  few other  contentions, specially those relating to the Revision of  Electoral  Rolls etc., but we need not look  into  those contentions  as  we intend to dispose of this appeal on  the questions mentioned above.

     "Bar Council" has been defined in Section 2(1)(d) as a Bar  Council  constituted under the Act.  The definition  of the  "State  Bar  Council" is contained in  Section  2(1)(m) which means a Bar Council constituted under Section 3.  "Bar Council  of India" is defined in Section 2(1)(e) as the  Bar Council constituted under Section 4.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

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

     "The  term  of office of an elected member of a  State Bar  Council (other than an elected member thereof  referred to  in  section  54) shall be five years from  the  date  of publication  of  the result of his election:  Provided  that where  a State Bar Council fails to provide for the election of  its members before the expiry of the said term, the  Bar Council  of India may, by order, for reasons to be  recorded in  writing, extend the said term for a period not exceeding six months".

     Another  provision which has a bearing on the term  of office  of the members of State Bar Council, is contained in Section 8A which is reproduced below :

     "8A.   (1) Where a State Bar Council fails to  provide for  the  election of its members before the expiry  of  the term  of five years or the extended term, as the case may be referred to in section 8, the Bar Council of India shall, on and  from  the  date immediately following the day  of  such expiry, constitute a Special Committee consisting of --

     (i)  the  ex officio member of the State  Bar  Council referred to in clause (a) of sub-section (2) of section 3 to be the Chairman.

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

     (ii) two members to be nominated by the Bar Council of India  from  amongst advocates on the electoral roll of  the State Bar Council,

     to  discharge  the functions of the State Bar  Council until the Bar Council is constituted under this Act.

     (2)  On the constitution of the Special Committee  and until the State Bar Council is constituted --

     (a) all properties and assets vesting in the State Bar Council shall vest in the Special Committee.

     (b)  all  rights, liabilities and obligations  of  the State  Bar  Council, whether arising out of any contract  or otherwise,  shall be the rights, liabilities and obligations of the Special Committee.

     (c)  all  proceedings  pending before  the  State  Bar

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

Council  in respect of any disciplinary matter or  otherwise shall stand transferred to the Special Committee.

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

     These two Sections indicate that the term of office of an  elected member of a State Bar Council is five years from the date of publication of the result of his election, which is  extendable by a period not exceeding six months provided the  elections  have not been held before the expiry of  the term.   If  the  State  Bar  Council  does  not  hold  fresh elections  either  before the expiry of five years’ term  or the extended term, the BCI, in either of the two situations, would  constitute  a  Special  Committee  to  discharge  the functions  of the State Bar Council until a new Bar  Council is  constituted.  For this purpose, Special Committee  would hold  elections  to constitute the State Bar Council  within the  extended  period  of six months.  The life  of  Special Committe is, however, extendable.

     It  is  obvious that fresh elections have to  be  held before  the  expiry of the five years’ term and if they  are not  so held, it would be open to the BCI to extend the term by  six months to enable the State Bar Council to hold fresh elections.   The  extension  has to be  granted  before  the expiry  of the original term so as to maintain continuity of the term.

     It  may be pointed that the term of members of the Bar Council  under  the Advocates Act as originally  enacted  in 1961  was  six years with a provision of retirement for  one third  of the members after every two years, but by Act  No. 23  of  1966, Section 8 was amended and it was  provided  as under:

     "8.  Term of office of members of State Bar Council --

     (1) The term of office of an elected member of a State Bar  Council (other than an elected member thereof  referred to  in  section  54) shall be four years from  the  date  of publication of the result of his election.

     (2)  An outgoing member shall continue in office until the  publication  of  the  result of  the  election  of  his successor."

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

raised from four to five years.

     Since  BCI  is  a  creature of  Statute,  namely,  the Advocates Act, 1961, which refers to it as a body corporate, it  acts  through  its members and  various  Committees  and transacts  its  business through various Resolutions at  its meetings.   Section  10A, which provides for transaction  of business by Bar Councils and Committees thereof, provides as under :

     "Transaction   of  business  by   Bar   Councils   and committees thereof --

     (1)  The Bar Council of India shall meet at New  Delhi or at such other place as it may, for reasons to be recorded in writing, determine.

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

     (3)  The committees other than disciplinary committees constituted   by  the  Bar  Councils   shall  meet  at   the headquarters of the respective Bar Councils.

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

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

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

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

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

     (a)   ...............    (b)    ...............    (c) ...............   (d)  ...............  (e)  ............... (f)      ...............            (g)      ............... (ga)...............   (gb)...............  (h) the summoning and  holding of meetings of the Bar Council, the conduct  of business  thereat,  and the number of members  necessary  to constitute a quorum.  (i) ...............  (j) the summoning and holding of meetings, the conduct of business of any such committee  and the number of members necessary to constitute a quorum.

     (k)   ................   (l)   ................    (m) ................  (n) ................

     (3) .....................

     In  exercise of its powers under Section 15(2) of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

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

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

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

     3.   No member shall be entitled to bring forward  for the  consideration of the meeting any matter of which he has not  given  ten  days notice to the  Secretary,  unless  the Chairman, in his discretion, permits him to do so.

     4.    The  minutes  of   the  previous  meeting  shall ordinarily be read and recorded at the subsequent meeting.

     5.  The quorum for the meeting of the Council shall be seven;   and  for all other Committees except the  Executive Committee  and  the  Legal Education Committee,  the  quorum shall  be  two.  The quorum for the Executive Committee  and the Legal Education Committee shall be four.

     6.   If  urgent  action  by  the  Council  or  by  any Committee of the Council other than a Disciplinary Committee becomes  necessary,  the Chairman of the Council or of  such Committee  as the case may be may permit the business to  be transacted  by  circulation of papers to the members of  the Council  or  the Committee as the case may be.   The  action proposed  to be taken shall not be taken unless agreed to by a majority of the members of the Council or the Committee as the  case  may be.  The action so taken shall  be  forthwith initimated  to  all  the  members  of  the  Council  or  the Committee  concerned.  The papers shall be placed before the next  meeting of the Council or the Committee concerned  for confirmation.

     7.   The Council or any Committee may adjourn from day to day or any particular day, without further notice.

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

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

     10.   No matter once decided shall be reconsidered for a  period of three months unless the Council by a two-thirds majority of the members present so permits.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

     11.   Any Committee may refer for advice any matter to the Council.

     12.    In  the  absence  of   the  Chairman  and   the Vice-Chairman  at  any meeting, a member chosen  by  members present shall preside at the meeting."

     Rule  1 contemplates a notice of not less than 15 days of  the  proposed meeting which is to be sent ordinarily  by the  Secretary,  but if the Chairman or any two  members  so require,  the  meeting  can be convened on short  notice  on grounds  of urgency.  The notice has to specify the time and place  of  the  meeting as also the agenda  fixed  for  that meeting.   The minutes of the previous meeting are  required to  be read and recorded at the subsequent meeting.  That is how the business has to be ordinarily transacted by the BCI. If,  however,  urgent action is to be taken by the BCI,  the provisions contained in Rule 6 can be invoked.

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

     (a)  There  should be a need for urgent action by  the BCI;   (b) The Chairman shall then permit the business to be transacted  by  circulation of papers to the  members;   (c) Action proposed to be taken shall not be taken unless agreed to  by a majority of the members;  (d) Action so taken shall be  forthwith  intimated  to all the members;  and  (e)  The papers  shall  be  placed  before the next  meeting  of  the Council for confirmation.

     Rule  6  can,  therefore, be resorted  to  for  urgent action.   This  can be done by circulation of papers to  all the  members  and if majority of the members so  agree,  the action   would   be  taken   immediately  subject   to   two requirements  that  "(i)  the action so taken  is  forthwith intimated  to  all  the members;  and (ii)  the  papers  are placed  before  the next meeting for confirmation."  It  is, therefore,  the "action taken on the majority opinion" which is required to be confirmed in the subsequent meeting.

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

     "THE BAR COUNCIL OF INDIA

     BCI:D:118:1997  21,  Rouse Avenue Institutional  Area, New Delhi-110002.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

     13th Jan., 97

     To,

     All the members of the Bar Council of India.

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

     Sirs,

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

     A  copy of the letter of the Bar Council of Kerala  is also  enclosed.   Members are requested to kindly  send  the Resolution back to us after signature on approval.

     Thanking you, Yours faithfully, Sd/- (C.M.  Balaraman) Officiating Secretary Enc:  As above."

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

     "THE BAR COUNCIL OF INDIA

     RESOLUTION  UNDER RULE 6, PART II, CHAPTER III OF  THE BAR COUNCIL OF INDIA.

     RESOLUTION

     Resolved that the term of the Bar Council of Kerala be and  is hereby extended for six months from 27th Jan.,  1997 under Proviso to Section 8A under the Advocates Act 1961 for the  reasons  set  out in the letter of the Bar  Council  of Kerala dated 31.12.1996.

     Place Approved / Not Approved Date

     (SIGNATURE OF THE MEMBERS)"

     Further  documents which have been filed before us are the  photostat  copies of the list of members to  whom  this Resolution  was  circulated under Certificate of posting  on which  only  one  postal  stamp is clear which  is  of  14th January,  1997.   Response from the following eight  members only was received by the BCI on various dates, noted against their names :

     1.   Mr.Ashok  Desai :  15.1.1997 2.  Mr.Ashok  Deb  : 18.1.1997  3.   Mr.  DV Patil :  25.1.1997 4.   Mr.Jagannath Patnaik  :   25.1.1997 5.  Mr.  Arun Misra :   30.1.1997  6. Illegible  :  3.2.1997 7.  Mr.  Gopakumaran Nair :  4.2.1997 8.  Illegible :  7.2.1997

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

     The matter came up for the consideration of BCI

     in the meeting of 8th February, 1997 and the following

     resolution was adopted:

     "RESOLVED  that the term of the Bar Council of  Kerala be  and  is  hereby extended for six months  from  27.1.1997 under  proviso to section 8A of the Advocates Act, 1961  for the  reasons  set out in the letters of the Bar  Council  of Kerala -

     1.  Letter No.  KBC/BCI/991 of 1996 dated 31-12-1996

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

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

     A  perusal  of  this  resolution  indicates  that  the extension  in  the  term was granted under  the  Proviso  to Section  8A  of the Act.  The resolution does not  speak  of "confirmation"   as,   indeed,  there   could  not  be   any "confirmation"  as  no  action on the resolution  which  was circulated  to members was taken possibly because only eight had  responded  and that too, very late, as the term of  the State Bar Council had already expired 27.1.1997.

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

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

     In  the instant case, process for "action", no  doubt, was  initiated, but no action was taken.  The resolution for extension  of  the  term  of  the  Kerala  Bar  Council  was circulated  on  13th  or 14th January, 1997 and  opinion  of eight members was also received but no "action" was taken on that  basis  nor  was any member intimated of  the  "action" taken.   By  the time the opinion of the eight  members  was obtained,  the term of the Kerala Bar Council stood  expired on 27.1.1997.  By that date, namely, by 27.1.1997, only four

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

members, namely, Mr.  Ashok Desai (15.1.97);  Mr.  Ashok Deb (18.1.97);   Mr.  D.V.  Patil (25.1.97);  and Mr.  Jagannath Patnaik  (25.1.97)  had indicated their approval.  But  that was  not  enough as the Rule itself provides  that  "action" will  not  be  taken unless agreed to by a majority  of  the members.   Since there were eighteen members in the BCI, the opinion  of  four of the members was wholly  irrelevant  and insufficient  for  "action" being taken.  On that basis,  no extension could be granted, nor was it granted.

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

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

     "Where  a  power is given to do a certain thing  in  a certain  way,  the thing must be done in that way or not  at all."

     This rule has since been approved by this Court in Rao Shiv  Bahadur  Singh & Anr.  vs.  State of  Vindhya  Pradesh 1954  SCR 1098 = AIR 1954 SC 322 and again in Deep Chand vs. State  of  Rajasthan  1962(1) SCR 662 = AIR  1961  SC  1527. These  cases were considered by a Three-Judge Bench of  this Court  in State of Uttar Pradesh vs.  Singhara Singh &  Ors. AIR 1964 SC 358 = (1964) 1 SCWR 57 and the rule laid down in Nazir  Ahmad’s case (supra) was again upheld.  This rule has since been applied to the exercise of jurisdiction by courts and  has  also  been recognised as a salutary  principle  of administrative law.

     Now, the BCI could act in the matter in three ways :

     (a)  It  could convene its meeting by giving 14  days’ notice to all its members under Rule 1 and pass a resolution extending the term of Kerala Bar Council.

     (b)  It  could convene the meeting on a  short  notice under Rule 1 and pass the above resolution.

     (c)  It  could  act under Rule 6  by  circulating  the resolution  to all its members and on obtaining the  opinion of  the majority, extend the term of the Kerala Bar  Council subject to confirmation at the next meeting.

     BCI  did not adopt the modes available to it under (a) and  (b),  but invoked the provisions of Rule 6 and  adopted the  mode indicated at (c).  It circulated the resolution to its  members  proposing extension in the term of the  Kerala Bar  Council  by  six months.  Opinion of only four  of  the members was obtained by 27.1.1997 which is the date on which the  term of the Kerala Bar Council expired.  Since majority of the members had not expressed their approval by that date in  favour of the resolution, no "action" was taken.  It was clearly   a  case  of   abandonment.   The  other  essential requirements  of Rule 6 were, therefore, not complied  with. BCI,  however,  in  its regular meeting  held  on  8.2.1997,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

passed  a  resolution extending the term of the  Kerala  Bar Council  by six months under the Proviso to Section 8.  Once the  move  initiated  under  Rule 6  was  abandoned  and  no "action" was taken as majority opinion had not been obtained by  27.1.1997 nor even thereafter, the BCI or the Kerala Bar Council cannot legally fall back upon Rule 6 to contend that the  resolution adopted on 8.2.1997 would relate back to the date on which the resolution under Rule 6 was circulated.

     Learned counsel for the respondents have placed strong reliance  on  the decision of this Court in Sri  Parmeshwari Prasad Gupta vs.  Union of India (1973) 2 SCC 543 in support of their contention that "confirmation" would relate back to the  date on which "action" was taken.  This case is clearly distinguishable.   Here, the services of the General Manager of  a  company were terminated by a resolution passed  at  a meeting  of  the  Directors, of which notice to one  of  the Directors  was not given.  This meeting was held on 16.12.53 and  the services were terminated by letter of the  Chairman dated  17.12.53.   The  decision  taken by  the  company  in terminating  the  service at the earlier meeting,  of  which notice  was not given to one of the Directors, was confirmed in a regularly convened meeting on 23.12.53.  It was in this context  that  this  Court held that  although  the  earlier meeting at which the resolution for terminating the services of  the General Manager was adopted was not valid as  notice to  one  of  the  Directors was not  given,  the  subsequent meeting at which the resolution of confirmation was adopted, would  cure the defects and the subsequent resolution  would relate  back to the date on which "action" was taken and the services  were terminated.  That is to say, the  termination would  be  effective  from the date on  which  the  original resolution  was adopted.  The decision was essentially based on  the  effect  of "confirmation" in a  regularly  convened meeting  on  the "action" which had already been taken.   It was  this  defect  which  was   cured  by  a  resolution  of confirmation  at the subsequent meeting and it was held that this  resolution would relate back to the date on which  the services were terminated.

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

     Learned  counsel for the respondents in their  written submissions  have referred to Dictionary meaning of the word "confirm"  or  "confirmation" in support of  their  argument that it has as the effect of validating the earlier act.  We appreciate their effort and add to their research the maxim, "Confirmatio omnes supplet defectus, licet id quod actum est ab  initio non valuit".  (Confirmation supplies all defects, though  that  which  had  been done was  not  valid  at  the beginning.)  But, as pointed out above, it was not a case of "confirmation" as no "action" under Rule 6 was taken.  Since the  term  of  the Kerala Bar Council had  expired  on  27th January,  1997 and they had ceased to be members with effect from that date, their term could not be legally revived with retrospective  effect  by BCI on 8th February, 1997 when  it adopted  the  resolution  for extension of the term  by  six

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

months.   The  Kerala  Bar Council had ceased  to  have  any jurisdiction  and could not hold fresh elections which could be held only by the Special Committee appointed by the BCI.

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

     In   the  instant  case,  it   was  the  question   of jurisdiction  to  hold elections which was agitated  in  the Writ  Petition.  Fresh elections could have been held by the Kerala  Bar  Council  only before the expiry  of  its  term. Otherwise,  the jurisdiction to hold elections passes on  to the  Special Committee appointed by the BCI in terms of  the provisions  contained in Section 8A which are imperative  in character.   Since the Kerala Bar Council had ceased to have any jurisdiction on the expiry of its term and the so-called extension  of  its  term has been held by us  to  be  wholly illegal,  the elections held by the Kerala Bar Council  were farcical  in  character  and on that basis  the  respondents cannot  claim  themselves to be the duly elected members  of the Council.

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

     The  Bar  Council  of India is directed to  appoint  a Special  Committee  as  contemplated by Rule 8A  within  two weeks  from  the  date on which a copy of this  judgment  is communicated to them and the Special Committee shall, within four months of its being constituted, hold the elections for constituting  a  new Kerala Bar Council in  accordance  with law.   Till  the elections are held, the  Special  Committee shall,  as provided by Section 8A of the Act, discharge  the functions   of  the  State  Bar   Council  with  all   other consequences provided thereunder.

     There will be no order as to costs.