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CHEQUE BOUNS CASE

Doctrine of defacto – A.P.Bar council elections are valid

THE HON’BLETHE CHIEF JUSTICE SHRI MADAN B. LOKUR

High Court at Hyderabad, the main judicial bod...

High Court at Hyderabad, the main judicial body for Andhra Pradesh. (Photo credit: Wikipedia)

W.A. No.100 of 2012

8-2-2012

Smt. S. Jayasree

The Secretary, A.P. Bar Council Hyderabad and another

COUNSEL FOR APPELLANT : Sri D. Venkateswarlu

COUNSEL FOR RESPONDENT NO.1: Sri G.M. Mohiuddin
COUNSEL FOR RESPONDENT NO.2 : Sri A. Sudarshan Reddy

JUDGMENT: (per the Hon’ble the Chief Justice Sri Madan B. Lokur)

This appeal is directed against the judgment and order dated
29.12.2011 passed by a learned Single Judge dismissing Writ Petition No.34163 of
2011.
2. At the outset, it is necessary to state the prayer made in the writ
petition. This 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 in accordance with legal citations M/s Transmission Corporation of
A.P. Limited v. M/s. Lanco Kondapalli Power Pvt. Limited Justice S.B.Sinha and
Justice P.P.Naolekar 2005 (1) Decisions Today (SC) 1253=(10)SCALE 233 as this
Hon’ble Court may deem fit and proper in the circumstances of the
case……………….”

3. During the course of hearing, learned counsel did not cite the judgment
referred to in the prayer, but we have gone through that judgment and we propose
to refer to it a little later.
4. 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.
5. The elections to the State Bar Council were actually held on 30.12.2011
and the results are awaited. Although it is not clear, it does appear that the
appellant is not a candidate in the election.
6. Learned counsel for the appellant raised several issues before us. First
of all, he submitted that 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.
7. We find from the record that 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.
8. 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. This was
by a resolution communicated to the State Bar Council by a letter dated
2.4.2011. 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, we cannot accept the contention of learned counsel that the issuance
of the election notification by the Secretary of the State Bar Council was void
due to its not having been issued during the life of the earlier State Bar
Council.
9. It was then submitted 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. In our opinion, this contention is correct, but
it is of not much significance as far as the election is concerned.
10. 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 “to
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
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:
(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.”

11. A reading of the above provision clearly suggests to us 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.
12. 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 we need say nothing more on this subject.
13. Our understanding of 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.”
14. 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.
15. It was then submitted that the Secretary to the State Bar Council is not
qualified to be a Secretary to the Bar Council. There is no specific averment
why the Secretary is not so qualified. However, learned counsel placed reliance
on Rule 115 of the Rules of the Bar Council of the State of Andhra Pradesh.
This reads as follows:
“The Secretary may be appointed either by the method of direct recruitment from
among the Advocates on the roll of the Council having not less than 10 years
standing and not more than 45 years of age at the time of the appointment, or by
promotion. In case of promotion, the promotee shall be a Law Graduate of not
less than 10 years substantive service of the Council.”

16. As mentioned above, the appellant has not given any specific reason for
the alleged disqualification in the writ petition or in the grounds of appeal.
The only averment to be found is in paragraph 4 of the affidavit filed in
support of the writ petition. This reads as follows:
“The present Secretary Smt. N. Renuka playing fraud in almost all matters as a
key person of the Bar Council ever since she was fraudulently inducted as
Secretary without fulfilling requisites for holding the post of Secretary as
prescribed in Chapter IV of the Advocates Act 1961 under the Bar Council of
India Rules under Section 15(2) (k) of the Act.”
17. The Bar Council of India Rules are not at all applicable to the present
case. The Secretary of the State Bar Council need not be a Secretary of the BCI.
Nor is it that if the Secretary of the State Bar Council does not fulfill the
requirements of being a Secretary to the BCI, he or she cannot be a Secretary to
the State Bar Council. The submission of learned counsel in this regard is
totally misconceived.
18. However, what is more important is that the appellant has made certain
allegations against the Secretary to the State Bar Council as mentioned in
paragraph 4 of the affidavit. She has also described her as a tainted person in
paragraph 3 of the affidavit. The appellant has not bothered to make the said
Secretary as a party to these proceedings by name so that she can answer the
allegations made against her. It is rather unfortunate that allegations have
been made by the appellant against a person who is not a party to the writ
petition or this appeal. We, therefore, decline to take notice of the
allegations made by the appellant.
19. During the course of hearing, learned counsel the appellant handed over
two documents to us. We are not clear for what purpose he handed over these
documents since they have no relevance to the subject matter, but we have
perused them even though they are not a part of the record.
20. One of the documents handed over is a notice sent by him to the State Bar
Council regarding fraudulent cases, embezzlement of funds, misuse of office etc.
The notice is not dated and in it he has made all kinds of allegations,
particularly against the Secretary of the State Bar Council and against a former
President of the Bar Association of High Court of Andhra Pradesh. In the
notice, learned counsel states that it is in the interest and welfare of the
advocates of Andhra Pradesh and in the interest of public and the safety of the
public funds that a detailed probe is conducted by the CBI or ACB of the State
to unearth the details of the scams mentioned by him. We have no doubt in our
mind that this has no relevance to the case at all.
21. Learned counsel has also given us a letter addressed by an advocate on
11.6.2011 to the Chairman of the State Bar Council making all kinds of
allegations relating to appointments and promotions in the State Bar Council.
This letter questions the appointment of the Secretary of the State Bar Council
and other employees. But, even this letter lacks specificity. We feel that this
letter is also not relevant for deciding this case.

22. Finally, even otherwise, we are of the opinion 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
and in fact the election notification has even been acted upon and the elections
held.

23. Explaining the de facto doctrine, 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. 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.”

24. 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. 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. 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. 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.
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. 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
clear to us 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.”
25. On an overall consideration of the material, we are of the view that the
appellant has not made out any case for setting aside the election process or
the election notification dated 5.11.2011.

26. As far as M/s Transmission Corporation of A.P. Limited v. M/s. Lanco
Kondapalli Power Pvt. Limited3 referred to in the prayer clause in the writ
petition is concerned, we find that the citation is incorrect. The correct
citation is 2005 (10) SCALE 233. That apart, we find that the decision pertains
to the Arbitration and Conciliation Act. We simply cannot see the relevance of
this decision.
27. The writ appeal is dismissed.
28. Interim applications stand disposed of. No costs.

___________________
MADAN B. LOKUR, C.J.

8th February, 2012.
________________
SANJAY KUMAR, J.

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