WHAT IS SCOPE OF SEC.8, 8 A OF ADVOCATES ACT.
WHAT IS THE DOCTRINE OF DE FACTO.
THE HON’BLE THE CHIEF JUSTICE SHRI MADAN B. LOKUR
W.A. No.100 of 2012
Smt. S. Jayasree
The Secretary, A.P. Bar Council Hyderabad and another
JUDGMENT: (per the Hon’ble the Chief Justice Sri Madan B. Lokur)
Where as an advocate A.P.STATE BAR COUNCIL MEMBER Smt.S.Jayasree FILED A WRIT PETITION and thereafter Writ appeal.
Questioning the Authority in the issuing of Election Notification By the Bar Council Secretary for the period 2011 to 2016 for a period of 5 years.
in this case, in the first aspect their lord ships on one way accepting that the appellant contentions and on the other hand rejected her writ due to lack of appropriate relief and non-joinder of BCI.
In thesecond aspect their Lord ships brought the “DOCTRINE OF DE FACTO”
under this doctrine their lordships up held the actions of the Secretary in issuing and conducting elections as valid and finally dismissed the writ appeal.
Their lord ships beautifully discussed the scope of sec.8 and sec.8 A of Advocates act and also by quoting number settled decided cases on the scope and application of the Doctrine of De Facto.
Before going in to the matter it is just and necessary for us to see the prayer of the Writ Petition.
Which reads as follows:-
“…………….the High Court may kindly be pleased to issue a Writ, or Quo-
Warranto or Writ of Mandamus, or orders of appropriate writ, order quashing the
Election Notification dated 05.11.2011 to the Bar Council of State of Andhra
Pradesh illegally issued by the Secretary without competency or authorization by
a competent authority as per the provision of Bar Council Rules of Advocates Act
1961 by granting injunction in exercise of its powers under Article 226
of the Constitution of India restraining the Secretary from proceeding to hold
elections and grant suitable orders as this Hon’ble Court may deem fit and proper in the circumstances of the
Elections to the Andhra Pradesh Bar Council were notified on 5.11.2011
through an election notification issued by the Secretary of the State Bar
Council. The elections to the State Bar Council were actually held on 30.12.2011
and the results are awaited.
Smt.S.Jayasree is not a candidate in the election.
First the elections to the State Bar Council were earlier held on 28.4.2006 and that its term came to an end in April, 2011.
Consequently, the election notification issued after the expiry of the term of the State Bar Council, by its Secretary, was without any authority of law.- is the main point of Smt.S.Jayasree.
As a matter of fact even though the earlier elections may have been held on 28.4.2006, but the Bar Council was actually constituted on 2.6.2006.
Consequently, the term of the earlier State Bar Council ended on
2.6.2011 and not in April, 2011 as contended.
However, in the meanwhile, in exercise of power conferred by Section 8 of
the Advocates Act, 1961 (for short, ‘the Act’), the Bar Council of India (BCI)
extended the term of the State Bar Council for a period of six months.
by a resolution communicated to the State Bar Council by a letter dated
In other words, the life of the State Bar Council was extended from
2.6.2011 till 2.12.2011.
As mentioned above, the impugned election notification
was issued on 5.11.2011. This was during the lifetime of the State Bar Council.
Therefore, the issuance
of the election notification by the Secretary of the State Bar Council was not void and was within the term that means issued during the life of the earlier State Bar Council.
The second point of Smt.S.Jayasree was that since the life of the earlier State Bar Council was extended by six months, the entire election process should have been completed within that extended period.
In other words, the contention is that
the results of the election (counting of which is now underway) should have been declared on or before 2.12.2011.
Their lord ships also upheld that this contention is correct,
but their lord ships upheld that
it is of not much significance as far as the election is concerned.
The proviso to Section 8 of the Act requires the State Bar Council “to
provide for the election of its members”.
This section reads as follows:
“8. Term of office of members of State Bar Council.-
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.”
The expression “to provide for the election of its members” means that the
members of the State Bar Council should be elected within the period provided or
that the election process should be complete.
It does not have a limited
meaning that the election process should be set in motion.
This is clear from a
reading of Section 8-A(1) of the Act, where again, the expression used is
provide for the election of its members” but the section also provides for the
consequence of the failure to so provide “before the expiry of the term of five
years or the extended term, as the case may be”.
Section 8-A(1) of the Act
mandates that immediately on the following day, the BCI should constitute a
Special Committee “to discharge the functions of the State Bar Council until the
Bar Council is constituted under this Act.”
Section 8-A(1) of the Act reads as follows:
“8A.Constitution of Special Committee in the absence of election.-(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
(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:
(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.”
A reading of the above provision clearly suggests as said by their Lord ships that the State Bar
Council should elect its members
(which means a declaration of the results)
before the expiry of its term or within the extended period provided by the BCI.
In the present case, the results of the State Bar Council should have been
declared on or before 2.12.2011, that is, within the extended period of six
months. The failure of the State Bar Council may invite the constitution of a
Special Committee under the provisions of Section 8A of the Act. However, that
is within the domain of the BCI and as such their lord ship expressed that they need to say nothing more on this subject.
Their lord ships opined that the provisions of the Act is in accord with the view of the BCI in this regard.
In the extension letter dated 2.4.2011 the resolution
communicated by the BCI reads as follows:
“RESOLVED that having regard to the facts and circumstances placed before the
Bar Council in letter dated 1st February, 2011, the Bar Council of India extends
the term of the present Bar Council of Andhra Pradesh for a period of 6 months
w.e.f. 3rd June 2011 and further stipulates that election to the said Council
may be completed before the expiry of the said period.”
Finally their Lord ships up held that However, no relief can be granted to the petitioner in this regard since
no such relief is prayed for, nor has the BCI been made a party to these proceedings for the purposes of constituting a Special Committee.
Their lord ships further opined that the de facto doctrine validates the actions of the Secretary in issuing the election notification.
No office bearer of the State Bar Council has questioned the election notification
in fact the election notification has even been acted upon and the elections held.
Explaining the de facto doctrine,
their Lord Ships quoted various citations
1.the Supreme Court in Pushpa Devi M.Jatia v. M.L. Wadhawan1 said:
“Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough
that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.
2. In Gokaraju Rangaraju case (1981) 3 SCC 132
Chinnappa Reddy, J., explained that this doctrine was engrafted as a matter of policy and necessity to protect the interest of the public.
He quoted the
following passage from the judgment of Sir Ashutosh Mukherjee, J., in Pulin
Behari Das v. King Emperor (1912) 15 Cal L J 517 :
“The substance of the matter is that the de facto doctrine was introduced into
the law as a matter of policy and necessity, to protect the interest of the
public and the individual where those interests were involved in the official
acts of persons exercising the duties of an office without being lawful
officers. The doctrine in fact is necessary to maintain the supremacy of the law
and to preserve peace and order in the community at large.
The learned Judge also relied upon the following passage from the judgment of P.
Govindan Nair, J., in P.S. Menon v. State of Kerala AIR 1970 Ker. 165 :
This doctrine was engrafted as a matter of policy and necessity to protect the interest of the public and individuals involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid.”
3. Similarly, in Central Bank of India v. C. Bernard2, it was held:
“The de facto doctrine has two requisites, namely, (i) the possession of the
office and the performance of the duties attached thereto, and (ii) colour of title, that is, apparent right to the office and acquiescence in the possession thereof by the public.
According to this doctrine the acts of officers de facto
performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers.
4. This doctrine dates back to the case of Abbe de Fountaine decided way back in 1431
to which reference was made by Sir Asutosh Mookerjee, J. in Pulin Behari Das v.
King Emperor (1912) 15 Cal L J 517. Mookerjee, J. held that
as the complaint was
made after complying with Section 196, Criminal Procedure Code, by the order of or under authority from local government which was de facto, the proceedings were valid.
On the same principle it was further held that the Court of
Sessions, assuming it was not the holder of a de jure office, was actually in possession of it under the colour of title which indicated the acquiescence of the public in its actions and hence its authority could not be collaterally impeached in the proceedings arising from the conviction of Pulin and his co-accused.
5. Again, in Immedisetti Ramkrishnaiah Sons v. State of Andhra Pradesh AIR 1976 AP 193 the government nominated nine persons on a Market Committee which nomination was later set aside by the High Court. However, before the High Court pronounced its judgment, the Market Committee had functioned as if it had been properly constituted. Between the date of its constitution and the date of the High Court decision it had taken several decisions, issued notifications, etc.which were the subject matter of challenge on the ground that its constitution was ab initio bad in law.
6. Chinnappa Reddy, J. relying on the observations of
Mookerjee, J., in Pulin case concluded that the acts of the Market Committee de facto performed within the scope of its assumed official authority, in the interest of the public or third persons and not for his own benefit are generally as valid and binding as if they were performed by a de jure Committee.
7. The Allahabad High Court in Jai Kumar v. State 1968 All L J 877 upheld the
judgments of the District Judges whose appointments were later struck down by
this Court on the principle that
the acts of officers de facto are not to be
questioned because of the want of legal authority except by some direct
proceeding instituted for the purpose by the State or by someone claiming the
office de jure, or except when the person himself attempts to build up some
right, or claim some privilege or benefit by reason of being the officer which
he claims to be.
In all other cases, the acts of an officer de facto are valid
and effectual, while he is suffered to retain the office, as though he were an
officer by right and the same legal consequences will flow from them for the
protection of the public and of the third parties.
8. This Court in Gokaraju Rangaraju v. State of A.P. (1981) 3 SCC 132 was required to consider the
question of the effect of the declaration of this Court holding the appointment
of an Additional Sessions Judge invalid on judgments pronounced by him prior to
such declaration. This Court observed that the de facto doctrine is founded on
good sense, sound policy and practical experience. It is aimed at the prevention
of public and private mischief and the prevention of public and private
interest. It avoids endless confusion and needless chaos.
It, therefore, seems that their lord ships upheld
that the de facto doctrine can be invoked in cases where there is an
appointment to office which is defective; but notwithstanding the defect to the
title of the office, the decisions made by such a de facto officer clothed with
the powers and functions of the office would be as efficacious as those made by
a de jure officer. The same would, however, not be true of a total intruder or
usurper of office.”
On an overall consideration of the material, their lord ships of the view that
Smt. S.Jayasree has not made out any case for setting aside the election process or
the election notification dated 5.11.2011. Dismissed the writ appeal.