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CASE NO.:

Writ Petition (civil) 528 of 2002

PETITIONER:

D. Saibaba

RESPONDENT:

Bar Council of India & Anr.

DATE OF JUDGMENT: 06/05/2003

BENCH:

R.C. LAHOTI & ASHOK BHAN.

JUDGMENT:

J U D G M E N T

WITH

C.A.No.3986/2003 (@S.L.P.(C) No.4477/2002)

C.A.No.4010/2003 (@S.L.P.(C) No.23108/2002)

C.A. No. 1951/2002

R.C. Lahoti, J.

Leave granted in SLP(C) Nos.4477/2002 and 23108/2002.

This common judgment disposes of two appeals by special

leave under Article 136 of the Constitution, an appeal under Section

38 of the Advocates Act, 1961, and a civil writ petition laying

challenge to the constitutional validity of Section 48AA of the

Advocates Act, 1961, hereinafter, the Act for short.

Smt. D. Anuradha, the respondent No.1 in the Civil Appeals is

the wife of D. Saibaba, the appellant. The marriage has broken down

and the spouses have fallen apart. On 25.8.1999, the wife filed a

complaint under Section 35 of the Act complaining of professional

misconduct committed by the appellant, alleging that in spite of his

being a duly enrolled advocate, he was running a telephone booth

allotted to him in the handicapped person's quota. After hearing the

appellant's response the State Bar Council of India, vide its order

dated 6.11.1999, directed the complaint to be dropped forming an

opinion that no case for proceeding against the appellant was made

out. On 30.12.1999, the wife lodged yet another complaint making

almost identical averments. The appellant filed a detailed reply. He

submitted that the complaint was malicious, originating from a

disgruntled wife who has even lodged criminal case against him and

was out to harass the appellant. The appellant's defence was that he is

a handicapped person. Pressed by family circumstances, including

financial stringency, he applied for a STD booth being licensed to

him in the handicapped persons quota, which, on consideration of the

merits of the prayer, was allowed to him. He did operate the STD

booth. On 4.12.1997 he was married to the respondent no.1.

Thereafter, sometime in mid-1998, he applied for his enrolment as an

advocate and commenced apprenticeship under a senior lawyer.

Eversince that day he stopped sitting at the telephone booth which

was thenceforth operated by his parents. His father had retired by that

time.

By order dated 20.2.2001, the Bar Council of India directed the

appellant to surrender the STD booth, presumably forming an opinion

that whosoever might be conducting the STD booth actually, yet the

booth was allotted in the name of the appellant and the surrender

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would bring to an end the controversy so far as the appellant's

conduct as an advocate is concerned. The appellant sought some

time for surrendering the licence of telephone booth because certain

dues were to be realised from customers which would be difficult to

do in the event of the business being suddenly discontinued. As the

appellant failed to surrender the STD booth, the Bar Council of India

passed an order dated 31.3.2001 advising the State Bar Council to

delete the name of the appellant from the rolls of advocates. On

26.4.2001, the appellant surrendered the booth. The appellant sought

for a review of the order of the Bar Council of India based on the

subsequent event of the telephone booth having been surrendered.

Vide order dated 26.8.2001, the Bar Council of India has rejected the

petition for review on the ground that the same was barred by time.

As against the order dated 26.8.2001 the appellant has filed appeal by

special leave. As against the order dated 31.3.2001 the appellant has

filed a statutory appeal under Section 38 of the Advocates Act, 1961

and also an appeal by special leave.

Section 48AA of the Advocates Act, 1961 reads as under:-

"48AA. Review. The Bar Council of

India or any of its committees, other than its

disciplinary committee, may of its own

motion or otherwise review any order,

within sixty days of the date of that order,

passed by it under this Act."

In the opinion of the Bar Council of India the limitation

commences from 'the date of that order' which is sought to be

reviewed. The submission of the review-petitioner was that he could

not have sought for review of the order unless the order was

communicated to him and therefore the expression 'the date of that

order' should be construed as meaning the date of communication of

the order. The Bar Council of India formed an opinion that there is a

lacuna in the provision which cannot be removed by it. The Bar

Council in its impugned order compared the provisions of Section

48AA with the provisions contained in Sections 37 and 38 of the Act.

Section 37 provides for an appeal against an order of the disciplinary

committee of a State Bar Council being preferred to the Bar Council

of India within 60 days of 'the date of the communication of the

order' to the person aggrieved. Section 38 provides for an appeal by

any person aggrieved by an order contemplated therein being

preferred to the Supreme Court within 60 days of 'the date on which

the order is communicated to him'. The opinion formed by the Bar

Council is that the employment by Parliament of different

phraseology in Sections 37 and 38 and Section 48AA is suggestive of

the legislative intent that while the limitation for an appeal under

Sections 37 or 38 is to be calculated from 'the date of the

communication of the order', the limitation for review under Section

48AA commences from 'the date of the order' sought to be reviewed

and not from the date of communication of the order. The review

petition was dismissed as barred by limitation without going into the

merits.

During the pendency of these appeals the appellant has filed an

original petition laying challenge to the constitutional validity of

Section 48AA on the ground that the provision (as construed by the

Bar Council of India) is unworkable and hence liable to be struck

down. The appeals and the civil writ petition were placed for hearing

analogously.

We have heard the learned counsel for the appellant/writ-

petitioner and the respondents, Bar Council of India and Smt. D.

Anuradha, the complainant. At the hearing of the appeals it was urged

that there was a doubt whether the Bar Council of India has

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committed an arithmetical error in calculating the period of limitation

and therefore whether the review petition could at all be held barred

by time. So, the learned counsel for the Bar Council of India sought

to support the order dismissing the review petition on the alternative

ground that on the language of Section 48AA, the Bar Council of

India becomes functus officio on the lapse of 60 days from the date of

the order and its jurisdiction to exercise power of review comes to an

end, and therefore also the impugned order dated 26.8.2001 has to be

sustained. However, the learned counsel for the parties agreed that

the two questions relating to interpretation of Section 48AA are of

frequent occurrence and the Bar Council of India is also feeling

difficulty in several cases, and therefore desires both the questions

may be answered by the Court. Accordingly, the appeals have been

heard.

So far as the commencement of period of limitation for filing

the review petition is concerned we are clearly of the opinion that the

expression 'the date of that order' as occurring in Section 48AA has to

be construed as meaning the date of communication or knowledge of

the order to the review-petitioner. Where the law provides a remedy

to a person, the provision has to be so construed in case of ambiguity

as to make the availing of the remedy practical and the exercise of

power conferred on the authority meaningful and effective. A

construction which would render the provision nugatory ought to be

avoided. True, the process of interpretation cannot be utilized for

implanting a heart into a dead provision; however, the power to

construe a provision of law can always be so exercised as to give

throb to a sinking heart.

An identical point came up for the consideration of this Court in

Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition

Officer & Anr., (1962) 1 SCR 676. Section 18 of the Land

Acquisition Act, 1894, contemplates an application seeking reference

to the Court being filed within six months from the date of the

Collector's award. It was held that 'the date of the award' cannot be

determined solely by reference to the time when the award is signed

by the Collector or delivered by him in his office. It must involve the

consideration of the question as to when it was known to the party

concerned either actually or constructively. If that be the true

position, then placing a literal and mechanical construction on the

words 'the date of the award' occurring in the relevant section would

not be appropriate. It is fair and just that a decision is communicated

to the party whose rights will ultimately be affected or who will be

affected by the decision. The knowledge, either actual or

constructive, of the party affected by such a decision, is an essential

element which must be satisfied before the decision can be brought

into force. Thus construed, the making of the award cannot consist

merely of the physical act of writing an award or signing it or even

filing it in the office of the Collector ; it must involve the

communication of the said award to the party concerned either

actually or constructively. A literal or mechanical way of construing

the words 'from the date of the Collector's award' was held to be

unreasonable. The court assigned a practical meaning to the

expression by holding it as meaning the date when the award is either

communicated to the party or is known by him either actually or

constructively.

The view taken in Raja Harish Chandra Raj Singh's case

(supra) by two-Judges Bench of this Court was affirmed by a three-

Judges Bench of this Court in State of Punjab Vs. Mst. Qaisar Jehan

Begum & Anr., (1964) 1 SCR 971. This Court added that the

knowledge of the award does not mean a mere knowledge of the fact

that an award has been made ; the knowledge must relate to the

essential contents of the award.

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In The Assistant Transport Commr., Lucknow & Ors. Vs.

Nand Singh, (1979) 4 SCC 19, the question of limitation for filing an

appeal under Section 15 of the U.P. Motor Vehicles Taxation Act,

1935, came up for the consideration of this Court. It provides for an

appeal being preferred 'within thirty days from the date of such

order'. The taxation officer passed an order on October 20/24, 1964

which was received by the person aggrieved on October 29, 1964.

The appeal filed by him was within thirty days __ the prescribed period

of limitation, calculated from October 29, 1964, but beyond thirty

days of October 24, 1964. It was held that the effective date for

calculating the period of limitation was October 29, 1964 and not

October 24, 1964.

In Raj Kumar Dey & Ors. Vs. Tarapada Dey & ors., (1987) 4

SCC 398, this Court pressed into service two legal maxims guiding

and assisting the Court while resolving an issue as to calculation of

the period of limitation prescribed, namely, (i) the law does not

compel a man to do that which he could not possibly perform, and (ii)

an act of the court shall prejudice no man. These principles support

the view taken by us hereinabove. Any view to the contrary would

lead to an absurdity and anomaly. An order may be passed without

the knowledge of anyone except its author, may be kept in the file and

consigned to record room or the file may lie unattended, unwittingly

or by carelessness. In either case, the remedy against the order would

be lost by limitation though the person aggrieved or affected does not

even know what order has been passed. Such an interpretation cannot

be countenanced.

How can a person concerned or a person aggrieved be expected

to exercise the right of review conferred by the provision unless the

order is communicated to or is known to him either actually or

constructively? The words 'the date of that order', therefore, mean

and must be construed as meaning the date of communication or

knowledge, actual or constructive, of the order sought to be reviewed.

In O.N. Mohindroo Vs. The District Judge, Delhi & Anr,

(1971) 3 SCC 5, interpreting the pari materia provision contained in

Section 44A of the Act, this Court held that the word 'otherwise' used

in the context of the power of review exercisable "of its own motion

or otherwise" must be assigned a wide meaning and it will cover a

case where the review jurisdiction is sought to be exercised by a

reference made to the Bar Council. The provision entitles a person

aggrieved to invoke review jurisdiction of the Bar Council by moving

an appropriate petition for the purpose. It was also held that the

review jurisdiction conferred on the Bar Council is wide and reference

cannot be made to the provisions of the Civil Procedure Code so as to

limit the width of review jurisdiction by drawing an analogy from the

provisions of the Civil Procedure Code or the Criminal Procedure

Code.

Placing such a construction, as we propose to, on the provision

of Section 48AA is permitted by well settled principles of

interpretation. Justice G.P. Singh states in Principles of Statutory

Interpretation (Eighth Edition, 2001), "It may look somewhat

paradoxical that plain meaning rule is not plain and requires some

explanation. The rule, that plain words require no construction, starts

with the premise that the words are plain, which is itself a conclusion

reached after construing the words. It is not possible to decide

whether certain words are plain or ambiguous unless they are studied

in their context and construed." (p.45) The rule of literal

interpretation is also not to be read literally. Such flexibility to the

rule has to be attributed as is attributable to the English language

itself.

The learned author states again, "In selecting out of different

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interpretations 'the court will adopt that which is just, reasonable and

sensible rather than that which is none of those things' as it may be

presumed 'that the Legislature should have used the word in that

interpretation which least offends our sense of justice'. (p.113, ibid)

"The courts strongly lean against a construction which reduces the

statute to a futility. A statute or any enacting provision therein must

be so construed as to make it effective and operative 'on the principle

expressed in the maxim: ut res magis valeat quam pereat'." (p.36,

ibid) "If the language used is capable of bearing more than one

construction, in selecting the true meaning regard must be had to the

consequences resulting from adopting the alternative constructions. A

construction that results in hardship, serious inconvenience, injustice,

absurdity or anomaly or which leads to inconsistency or uncertainty

and friction in the system which the statute purports to regulate has to

be rejected and preference should be given to that construction which

avoids such results."(pp.112-113, ibid).

Reading word for word and assigning a literal meaning to

Section 48AA would lead to absurdity, futility and to such

consequences as the Parliament could have never intended. The

provision has an ambiguity and is capable of being read in more ways

than one. We must, therefore, assign the provision a meaning __ and

so read it __ as would give life to an otherwise lifeless letter and

enable the power of review conferred thereby being meaningfully

availed and effectively exercised.

On the same principle the provision has to be interpreted from

the point of view of exercise of the power by the Bar Council. The

interpretation ought to be directed towards giving the expression a

meaning which will carry out the purpose of the provision and make

the remedy of review conferred by the provision meaningful, practical

and effective. How can the Bar Council of India or any of its

Committees exercise their power to review unless the matter is before

them? The jurisdiction to exercise power of review does not come to

an end merely by lapse of sixty days from the date of the order sought

to be reviewed. In view of the construction which we have placed

hereinabove, in our opinion, the expression 'sixty days from the date

of that order' prescribes the period of limitation for invoking the

power of review. It has nothing to do with the actual exercise of

power by the Bar Council. In other words, merely by lapse of sixty

days from the date of the order sought to be reviewed, the Bar Council

of India or any of its Committees is not divested of its power to

exercise review jurisdiction. That is the only reasonable construction

which can be placed on the provision as framed; though we cannot

resist observing that the provision is not happily drafted.

In ordinary course, having held that the application filed by the

petitioner for invoking review jurisdiction was well within limitation

and that the jurisdiction to review was not lost by the Bar Council of

India merely by lapse of sixty days from the date of the order sought

to be reviewed, we would have left this matter to be heard and decided

on merits by the Bar Council of India. However, in the peculiar facts

and circumstances of the case, we are not inclined to remand the

matter and we feel that the ends of justice would be better satisfied if

the controversy is set at rest here itself, fully and finally. During the

course of hearing, the learned counsel for the parties too agreed to

such a course being appropriate to follow. We, therefore, take up the

merits of the controversy as well.

The undisputed facts and the material brought on record clearly

show that the present one is a case which can be called an attempt to

make a mountain out of a molehill. The appellant is a handicapped

person. He was allotted an STD booth in the quota of handicapped

persons for earning his livelihood much before he was enrolled even

as a lawyer and commenced apprenticeship. He firmly claims to have

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kept himself busy in his legal profession from 10 to 5 p.m. by

attending the Courts in morning and evening in the chambers of his

senior. His father had retired from service. The parents took up

looking after of the STD booth. As the allotment stood in the name of

the appellant, he was advised by the Bar Council to surrender the

booth. The only ground on which he sought for time for acting on the

counsel tendered by the Bar Council was that outstanding dues were

to be collected which it would have been difficult to do if he had

abruptly surrendered the booth licence. However, the Bar Council

was not inclined to give more time. Faced with this situation, the

appellant, within a few days of the order of the Bar Council,

surrendered the licence to operate the STD booth and invited the

attention of the Bar Council for taking this event into consideration

and recalling or suitably modifying its earlier order. The appellant, a

handicapped person, whose marriage also unfortunately broke down,

was keen on pursuing his career as an advocate and was still under

apprenticeship when the series of events forming subject matter of this

litigation happened. We have no reason to form any opinion other

than this that the Bar Council, if only it had exercised its review

jurisdiction, would have formed no opinion other than the one of

condoning the innocuous lapse on the part of the appellant who

permitted the allotment of STD booth to continue in his name though

he had actually discontinued the operation of the STD booth by

himself. The Bar Council would certainly have taken a sympathetic

view and would not have deprived the appellant of the source of his

bread and butter and nipped in the bud the opportunity of blooming

into an independent advocate to an apprentice.

In our opinion, all the appeals filed by appellant deserve to be

allowed and are allowed accordingly. The impugned orders of the Bar

Council are set aside. The enrolment of the appellant as an advocate

shall stand restored.

So far as the civil writ petition is concerned, the vires of Section

48AA of the Act were sought to be challenged only on the ground that

the provision was unworkable and unreasonable and, therefore,

suffered from inherent infirmity. In view of the construction which

we have placed on the language of Section 48AA, the challenge to the

constitutional validity of the provision does not survive and the

petition is held liable to be dismissed. It is dismissed accordingly.