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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.

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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.

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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

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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

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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

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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.

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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.

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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

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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

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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,

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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

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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.