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TMI Blog2011 (10) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... for elections to the Bar Council of Maharashtra and Goa (for short 'the State Bar Council'), Electoral Roll was prepared in which the names of the Advocates on the roll of the State Bar Council who had not paid the subscription as per Rule 40, Chapter -II, Part VI of the Rules were deleted from the Electoral Roll. The names of these Advocates had to be deleted from the Electoral Roll because Rule 6(h) of the Bar Council of Maharashtra and Goa Rules (for short 'the State Bar Council Rules') provided that the name of an Advocate appearing in the State Bar Council Roll shall not be on the Electoral Roll if he has not paid the subscription under Rule 40, Chapter -II, Part VI of the Rules and obtained receipt from the State Bar Council. Respondent No. 1, who was earlier a member of the State Bar Council, filed Writ Petition No. 903 of 2004 before the High Court on 31.12.2003 praying that all the Advocates on the Roll of the State Bar Council be allowed to cast their votes and contest the elections without being disqualified for non-payment of the amounts as per Rule 40, Chapter -II, Part VI of the Rules. While the Writ Petition was pending, elections to the State Bar Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il Rules are not rules relating to the preparation and revision of Electoral Rules, but rules laying down the conditions subject to which an Advocate would be entitled to vote at an election of the State Bar Council, including the qualification and disqualification of voters, and therefore the State Bar Council had by making Rules 6(h) and 32(g) of the State Bar Council Rules exceeded its powers and encroached on the power of the Bar Council of India. By the impugned common order dated 21.06.2007, the High Court allowed the Writ Petitions in terms of the judgment of Rebello, J. declaring Rules 6(h) and 32(g) of the State Bar Council Rules as ultra vires Section 49(1)(a) of the Act and directed the State Bar Council to have counted the votes which were declared invalid counted on the ground that voters had not cast ten preference votes. 4. Mr. U.U. Lalit, learned senior counsel for the Petitioner, submitted that Rule 6(1)(h) of the State Bar Council Rules provides that the name of an Advocate in the State Bar Council Roll shall not be on the Electoral Roll if he has not paid the subscription under Rule 40, Chapter - II, Part VI of the Rules and obtained receipt from the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the Bar Council of India in exercise of its powers under Section 49(1)(a) of the Act. He submitted that this Court has taken a view in the case of Lily Thomas v. Speaker, Lok Sabha (1993) 4 SCC 234 that voting means formal expression of will or opinion by the person entitled to exercise the right and this right will not only include the right in favour or against the motion or resolution, but also the right to remain neutral. He submitted that when an Advocate votes for even one candidate and does not communicate his preferences for any other candidate on the ground that according to his opinion none other candidate was suitable for being elected as a member of the State Bar Council, his vote cannot be discarded. He relied on the decision of this Court in Shradha Devi v. Krishna Chandra Pant and Ors. (supra) in support of his submission that every elector has one vote and indicating other preferences is optional for the elector and if he has not communicated other preferences his ballot paper cannot be rejected as invalid. He submitted that in Bar Council of Delhi and Ors. v. Surjeet Singh and Ors. (1980) 4 SCC 211 this Court has held that mere approval of the Bar Council of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to less than ten candidates are communicated. 7. It will be clear from the language of Section 49(1)(a) of the Act that the Bar Council of India has the power to make rules prescribing the conditions subject to which an Advocate may be entitled to vote at an election to the State Bar Council, including the qualification or disqualification of voters, and the manner in which the Electoral Roll of voters may be prepared and revised by the State Bar Council. In exercise of its power the Bar Council of India has made rules in Part III, Chapter - I of the Bar Council of India Rules, 1975. Rule (1) and 2(h) of these rules are quoted hereinbelow: 1. Every advocate whose name is on the electoral roll of the State Council shall be entitled to vote at an election. 2. The name of an advocate appearing in the state roll shall not be on the electoral roll, if on information received or obtained by the State Bar Council concerned on the basis of which it is satisfied that xxx (h) if he has not paid the subscription under Rule 40 Chapter-II, Part VI of the Rules and obtained receipt from the State Bar Council; 8. The language of Rule (1) is clear that ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, is not a rule relating to validity of ballot paper but a rule relating to a condition subject to which an Advocate can vote and was beyond the powers of the State Bar Council under Section 15(2)(a) of the Act. In Shradha Devi v. Krishna Chandra Pant and Ors. (supra), this Court held: 12...It, therefore, necessarily follows that when voting is in accordance with the proportional representation by means of the single transferable vote it is obligatory to cast the first preference vote for ensuring the validity of the ballot-paper and the first preference vote must be so cast as not to leave any one in doubt about it. The remaining preferences are optional with the elector. He may or may not exercise his franchise for the remaining preferences. If he chooses not to exercise remaining preferences the ballot-paper cannot be rejected as invalid for failure to exercise the remaining preferences.... 10. Once we hold that Rules 6(h) and 32(g) of the State Bar Council Rules are ultra vires the Act, the fact that Bar Council of India has approved the two provisions made by the State Bar Council under Section 15(3) of the Act will not validate Rules 6(h) and 32(g) of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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