Case No: Writ Petition No. 4546 of 2012
Judge: Hasan Foez Siddique,
Court: High Court Division,,
Advocate: Mr. M.I. Farooqi,Mr. Abdul Baset Majumdar,Mr. A. J. Mohammad Ali,,
Citation: 2 LNJ (2013) 130
Case Year: 2013
Appellant: Muhammad Salahuddin and others
Respondent: The Bar Council and others
Delivery Date: 2012-05-20
(SPECIAL ORIGINAL JURISDICTION)
|Hasan Foez Siddique, J.
Md. Zahangir Hossain, J.
|Muhammad Salahuddin and others
Vs.The Bar Council and others.
General Clauses Act (X of 1897)
It is well accepted principle of legislation that whenever power is conferred on an authority to issue an order or notification that power would include power to amend, vary or rescind its orders subject to the like sanctions and conditions if any. Section 21 of the General Clauses Act embodies a rule of construction the nature and extend of the application of that rule is governed by the relevant provisions of the rules which confer power to issue notification and to fix dates.…(43).
Bangladesh Legal Practitioners and Bar Council Order (PO 98 of 1972)
The word ‘shall’ as used in Article 8 has to be considered as merely directory. The neglect of which does not affect the validity or involve any other consequence if the election is held within the shortest possible time after 31st May in order to run the affairs of the Bar Council by the elected body following democratic process. In such view of the matter, the High Court Division was pleased to direct the Bar Council to correct the voter list, if any error is detected within 10 days from today and communicate the same to the respective polling station. The Chairman, Bar Council was directed to refix the date of holding election and the date of objection thereof. The Chairman, Bar Council was further directed to take effective steps so that one voter cannot cast his vote twice.….(45 and 46)
Narendra Nath Nandi Vs. Amiya Chowdhury (1959) 63 CWN 216; Giriwar Prashad Vs. Dukhulal , AIR (1968) SC 90; M/S Rubber House Vs. M/S. E.N. Industries (Pvt.) Ltd., AIR 1989 (SC) 1160; Shah Mohammed Umair Vs. Ram Charan Singh, AIR 1954 (Patna) 225; Rani Drigroy Kuer Vs. Raja Sri Amar Narain Singh, AIR 1960 S.C. page 444; G.C. Patel –Vs- Agricultural Produce Market Committee, (1995) 2 S.C.C. page 482 & Ravi Kiran Jain Vs. Bar Council of Uttar Prashad, AIR 1974 (Allahabad) 211, ref.
Mr. A.J. Mohammad Ali &
Ms. Nazneen Nahar, Advocates
Mr. Abdul Baset Majumder with
Mr. M. K. Rahman, Advocates
Writ Petition No. 4546 of 2012
This Rule Nisi was issued calling upon the respondents to show cause as to why the declaration of the election schedule of the Bangladesh Bar Council under Memo No. BBC/Prosha/2012/680(81) dated 14.3.2012 read with memo No. বিবিসি/প্রশাসন/২০১২ dated 12.4.2012 under the signature of the Chairman of the Bangladesh Bar Council and setting into motion the election process should not be declared to have been done without lawful authority and is of no legal effect and as to why a direction should not be given upon the respondents to prepare a correct consolidated voter list in accordance with the provisions of the Bangladesh Legal Practitioners and Bar Council Order, 1972 and the Bangladesh Legal Practitioners and Bar Council Rules, 1972.
The relevant facts, for the disposal of the Rule, in short, are that the Chairman of the Bangladesh Bar Council by a Circular dated 14.03.2012 declared the schedule of election to elect 14 members of the Bar Council under Article 8 of the Bangladesh Legal Practitioners and Bar Council Order, 1972 (hereinafter referred as P.O. No. 46 of 1972). The schedule was subsequently amended on 12.4.2012. The amended schedule was as follows :
- Date of submission of nomination paper--- from 17.4.2012 to 19.04.2012.
- Date of scrutiny ---- 26.04.2012.
- Date of withdrawal of nomination paper ----- 29.04.2012.
- Date of holding election--- 28.05.2012.
- Date of filing objection ----within one month from the date of publication of the result.
- Date of receiving objection by the Tribunal ---- 05.7.2012.
The respondent Nos. 1, 2 and 4 entered appearance in the instant Rule.
The respondent No. 3 filed an affidavit-in-opposition contending, inter alia, that some names of the voters appeared in the list in more than one polling station and the reason that the lists which were sent by the different Bar Association had been printed by the Bar Council and prepared the voter list. This process has been continuing for a long time. No one raised any objection. It has further been stated that in a special meeting held on 29.4.2012, the Bar Council took resolution to omit the names of the voters from one place of voter list whose names appeared in the voter list twice. The Bar Council has already made a correction of the names of the voters which was referred to and others. Some steps for holding the election have already been taken. In such circumstances, the process of election should not be stopped as the learned Advocates are waiting to cast their voters.
The petitioners, by a supplementary affidavit dated 09.05.2012, further stated that the petitioners have been able to collect 52 names of the voters whose names have been recorded as voters in the voter list in more than one place. In affidavit-in-reply the petitioners further stated that the statement made in paragraph 4 of the affidavit-in-opposition that “the Bar Council will take all the precaution to see that double voting is checked and accordingly in the meantime instruction has been given to the respective presiding officers to that effect” exposes that instruction has replaced the law that requires a consolidated Roll of Advocates under Articles 5, 20, 232, 25 read with articles 2(d) (e) and (h) of P.O. 46 of 1972. It has further been stated that the law requires that the Bar Council shall publish such list of voters in accordance with Articles 5, 20, 23, 25 of the P.O.46 of 1972 at least 30 days before the polling. It has further been stated that the voter list has not been prepared in accordance with law and no option had been sought for from the Advocates of the roll for their enlistment in general seats or in group seats as defined under Article 5 read with Article 2(d) (e) of P.O. 46 of 1972.
Mr. M.I. Farooqui and Mr. A.J. Moham-mad Ali, the learned Senior Advocate appeared for the petitioners.
Mr. M.I. Farooqui, the learned Senior Advocate appearing for the petitioners submits that the declaration of election schedule of Bar Council on the basis of inflated voter list in violation of law is unlawful. He submits that the defective voter list shows the malafide intention of some vested quarter just to facilitate election engineering is violation of law and the same being unethical is liable to be declared unlawful. He submits that mere assimilation of the members list obtained from various Bar Associations has made the voter list defective and on the basis of such defective voter list a free, fair and impartial election cannot be held.
Mr. Abdul Baset Majumder and Mr. M.K. Rahman, the Senior Advocates appeared for respondents No.1-3, Mr. Abdul Baset Majum-der submits that getting notice about defect in the voter list the Bar Council took steps to correct the voter list. He submits that membership of the present members of the Bar Council shall be ceased at the end of 30th June of this year so election of Bar Council is required to be held before 30th June. He submits that the Bar Council has already taken steps to correct the voter list but in fact, it has become impossible to hold election within 31st May as per provision of Article 8 of the Order in view of the order of stay of this court so the Bar Council may be allowed sometimes to hold election refixing the date of polling after 31st May. He submits that the provision of Article 8 is not mandatory rather the same is directory in nature.
We have heard the learned Advocates for both the parties and perused the petition and other materials on record.
The Bar Council is a statutory body. As per provision of Article 4 of the P.O. 46 of 1972, the tenure of the elected members of the Bar Council is three years beginning on the first day of July following the General Election to the Bar Council and at the end of each term the members of the Bar Council shall cease to hold office. Article 5 provided that the Bar Council shall consist of 15 members of whom (a) one shall be the Attorney General for Bangladesh, ex officio; (b) seven shall be elected in the prescribed manner by the Advocates on the roll from amongst their members and (c) seven shall be elected by the Advocates who are members of the Local Bar Association included in each group under clause (2), from amongst themselves. Article 5(2) provides that for the purpose of sub-clause (c) of clause (i), the Bar Associations shall be divided by the Government, by notification in the official Gazette, into seven groups. Article 8 provides that elections to the Bar Council shall always be held so as to conclude on or before the thirty first day of May, in the year in which the term of the Bar Council expires.
Article 9 provides that no election of a member to the Bar Council shall be called in question on the ground merely that due notice thereof has not been given to ay person entitled to vote thereat, if notice of the date has, not less than thirty days before that date, been published in the official Gazette.
Article 18 provides that no suit or other legal proceeding shall lie against the Bar Council or any Tribunal, Committee, Officer, or servant of the Bar Council for any act in good faith done or intended to be done in pursuance of the provisions of this Order or rules made thereunder.
In exercise of the powers conferred by clause (3) of Article 40 of P.O. 46 of 1972, the Government made Rules, namely, the Bang-ladesh Legal Practitioners and Bar Council Rules, 1972 (hereinafter referred as Rules) wherein the procedures of holding election of the Bar Council have been specifically provided.
Rule 3 of the said Rules provides that the Chairman shall (at least 45 days before the election of the Bar Council), publish a programme of the election of members of the Bar Council in the official Gazette.
Rule 11 (1) provides that the Bar Council shall publish a list of voters showing at which polling station a particular voter shall cast his vote at least thirty days before the polling.
Provided further that no person shall be entitled to vote if he ceases to be an Advocate before the poll.
Rule 11 sub-rule (2) provides that all voters shall cast their votes at the polling stations indicated in the list except persons appointed as polling agents who shall be entitled to cast their votes at the polling station for which they have been appointed. A candidate can cast his vote at any polling station.
Rule 12 provides that voting shall take place generally under the direction, control, and supervision of the Chairman at such hours as the Chairman may direct on the date or dates already fixed for voting in the programme, but the Chairman may, for sufficient reasons, direct that the voting may continue after the date or dates fixed. Directions given by the Chairman shall be put up on the notice board of the Bar Council, and a copy thereof shall be sent to the Presidents of all the Bar Associations recognized under rule 67 for being posted at the notice boards of the Associations.
Grievance of the petitioners, who are the learned Advocates and the voters is that their names have been recorded in the voter list more than one place and on verification they found that names of few hundred advocates have been registered in the voter list more than one place and according to them the vote cannot be held on the basis of such inflated and incorrect voter list. In the petition the petitioners have made a statement mentioning the names of 690 persons and in the supplementary affidavit they have also given the names of 51 persons whose names appeared in the voter list more than one place. It has been stated in the petition that the Bar Council assimilated the members list obtained from the different Bar Association recognized by the Bar Council and as a result many advocates have been shown as voters twice or thrice. It is the case of the petitioners that such voter list made on the basis of the members list of different Bar Association is illegal and void.
The respondent No. 3 in his affidavit-in-opposition admitted that some names of the voters appeared in voter list more than one polling station and the reasons of such appearance are that the list of the members of the Bar Associations which were sent by the respective Bar Association had been printed by the Bar Council and published as voter list. It has further been stated that such process had been continuing since long and no one raised any objection. Since some Advocates got their names enlisted in different Bar Association their names appeared in the voter list in more than one polling station.
Mr. M.I. Farooqui, the learned Advocate for the petitioners submits that it was the duty of the Bar Council to maintain a roll of the Advocates as per provision of Article 20 of P.O.46 of 1972 which provides that the Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names of –
- all persons who were, as advocates, entitled to practice in the High Court or in any court subordinate to the High Court immediately before the commen-cement of this order;
- all persons who are admitted as advocates under the provisions of this Order and the same should be prepared in the order of seniority as provided under Article 23 of the Order.
Mr. A. J. Mohammad Ali, the learned Senior Council supported the submission of Mr. M.I. Farooqui.
“Roll” has been defined in Article 2(h) of P.O. 46 of 1972 which means the roll of Advocates prepared and maintained by the Bar Council. In view of the definition of roll and the provisions of Articles 20 and 23 of P.O. 46 of 1972 the submission of Mr. Farooqui is correct in respect of preparation and maintenance of roll of Advocates. But in respect of voter list his submission is not acceptable because the voter list has been defined in Rule 2(h) of the Rules which provides that voter means an Advocate whose name for the time being appears in the roll and who is a member of Bar Association. The voter includes Advocates who have been granted certificate of enrollment under Rule 73A of Chapter VI.
That is, in order to be a voter one must enroll his name in the roll of Bar Council and he also must be a member of Bar Association.
Rule 66(1) provides that no person shall practice as an Advocate unless he is a member of a Bar Association of the place at which he ordinarily practices, which Association has been recognized under the rules next following.
Sub-rule (2) provides that the certificate of enrolment of a person who has not become a member of a Bar Association within six months of his enrolment shall stand automatically suspended.
The aforesaid provisions clearly indicate that in order to prepare a voter list the roll of Bar Council and the members list sent by the Bar Association should be examined and thereafter the Bar Council shall prepare the voter list. That is, in order to prepare voter list help of the Bar Association is very much necessary to ascertain whether any person enrolled as Advocate is a member of any association or not.
The respondent No. 3 in his affidavit-in-opposition stated that the Bar Council has already taken steps to correct the voter list. They have adopted a resolution and prepared a list correcting the names of some voters (Annexure-I to the supplementary affidavit).
Mr. M.K. Rahman, the learned Advocate appearing on behalf of the respondent No. 1-3 submits that the preparation of voter list of the Bar Council is a continuous process and the Bar Council will take positive step to make the voter list corrected in order to hold free, fair and impartial election.
In view of the correction of the voter list it appears to us that the dispute between the parties has been reduced at a tolerable stage. It will be more acceptable if Bar Council is allowed sometime to get the voter list corrected if any error is detected. In the supplementary affidavit filed by the petitioners they mentioned the names of 51 persons whose names appeared in the voter list more than one place.
Both the parties demand a free, fair and impartial election which should be held in accordance with law. It is our pious wish and belief that learned Advocates, who demands highest respect from all corners of the people and Nation is confident about their honesty and integrity, would try to cast their votes twice in one poll. But it is the duty of the Bar Council to make every obstruction on the way of casting votes twice. Rule 12 of the Rules has given wide power to the Chairman of the Bar Council to take every steps so that a free, fair and impartial election can be held.
Mr. Abdul Baset Majumder, submits that the provision of holding election within 31st May as provided Article 8 of P.O. 46 of 1972 is not mandatory rather the same is directory in nature. Due to the order of stay of the Court, the process of Election has been stopped and it has become impossible to hold election by 31st May. There will be a total deadlock situation to run the functions of Bar Council if the election is not held by 30th June. So some time is required to be allowed to hold election condoning the delay.
In view of the submission of Mr. Majumder the provision of Article 8 is required to be interpreted to ascertain whether the said provision is mandatory or directory in nature. The said provision runs as follows:
The word “shall” as used in the said provision in its ordinary signification is mand-atory though there may be considerations which may influence the court to hold that the intention of the legislature is to give a discretion.
In determination of the question whether a provision of law is directory or mandatory, the prime object must be to ascertain the legislative intent from a consideration of the entire statute, its nature, its object and the cons-equences that would result from construing it in one way or the other in connection with other related statutes and the determination does not depend on the form of the statute. The mandatory language of an enactment by itself affords no justification for the conclusion that its provision are always imperative and in the sense that any act done in violation will be invalid. The legislative mandate must be considered as mandatory not merely because of the language employed therefor. But also in view of the purpose behind the provision in question. We find the above views in the case of Narendra Nath Nandi Vs. Amiya Chowd-hury reported in (1959) 63 CWN 216.
In the case of Giriwar Prashad Vs. Dukhulal reported in AIR (1968) SC 90, it has held by the Supreme Court of India:
In the case of M/S Rubber House Vs. M/S. E.N. Industries (Pvt.) Ltd. reported in AIR 1989 (SC) 1160, the Indian Supreme Court further held: “the word “shall” in its ordinary import is obligatory but that connotation used not be given in each and every case. The provisions can be interpreted as directory depending the purpose which the legislature intended to achieve.”
In the case of Shah Mohammed Umair Vs. Ram Charan Singh reported in AIR 1954 (Patna) 225, it has been held :
In the case of Rani Drigroy Kuer Vs. Raja Sri Amar Narain Singh reported in AIR 1960 S.C. page 444 Supreme Court of India also observed that the use of the word “shall” is not conclusion of the question whether the provi-sion is mandatory. The same may be construed to mean “ may” when no right or benefit to any one depends on its imperative use; when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual by giving it that construction; or when it is absolutely necessary to prevent irreparable mischief. (P Ramanatha Aiyar’s Law Laxiscon -1997 Edition ) In the Case of G.C. Patel –Vs- Agricultural Produce Market Committee reported in (1995) 2 S.C.C. page 482 Indian Supreme Court further held, “The use of the words “shall” or “may” is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstances that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory”.
The use of the order “shall” would not by itself make a provision of the Act mandatory. It is to be construed with reference to the context in which it used. The construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which the word “shall” has been used.
Section 21 of the General Clauses Act provides that where, by any Act or Regulations a power to issue notifications, orders, rules or by-laws is conferred, than that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any) to add, amend, very or rescind any notifications, orders, rule or bylaw so issued.
It is well accepted principle of legislation that whenever power is conferred on an authority to issue an order or notification that power would include power to amend, vary or rescind its orders subject to the like sanctions and conditions if any. Section 21 of the General Clauses Act embodies a rule of construction the nature and extend of the application of that rule is governed by the relevant provisions of the rules which confer power to issue notification and to fix dates.
In the case of Ravi Kiran Jain Vs. Bar Council of Uttar Prashad reported in AIR 1974 (Allahabad) 211 it has been held that in respect of the election of the Bar Council, Rule 4 of the Bar Council of Uttar Pradesh Rules confers power on the Bar Council to fix dates and to issue notification notifying the dates for the elections. In absence of any restrictions or limitations express or implied on the power of the Bar Council in the said Rules, the council is free to exercise that power from time to time or whenever it may consider it necessary. The power to modify, vary or rescind its notification must be conceded to the Bar Council. There is no limitation express or implied in the rules on the power of Bar Council for exercising its power to modify, vary or rescind its notification relating to holding election except that power can be exercised only before the elections are held. The power of the Bar Council to fix time, place and date of the election is not exhausted merely on the issue of notification of the programme. It can alter modify or rescind its order fixing the various dates otherwise preposterous result would follow. Take a case where the Bar Council may have fixed dates for holding election, but to natural calamities like earth-quake, floods or grave emergencies such as the country may be at war, the election programme cannot be adhered to, in that situation the Bar Council may consider it necessary to change the entire election programme.
The word ‘shall’ as used in Article 8 has to be considered as merely directory. The neglect of which does not affect the validity or involve any other consequence if the election is held within the shortest possible time after 31st May in order to run the affairs of the Bar Council by the elected body following democratic process. If the election of the Bar Council is not held in that case at the end of the terms of the members of the present Bar Council by 30th June the democratic process of running the administration of the Bar Council will be collapsed and object of the legislation will be frustrated. We do not find any other alternative in the Order to run the affairs of the Bar Council after expiry of the tenure of the members of the present Bar Council. In order to rid over the situation all the Lawyers must co-operate the Bar Council to hold election.
In such view of the matter, our considered opinion is that the ends of justice would be met if the Bar Council is allowed sometimes to hold the election. Accordingly :
- the Bar Council is directed to make necessary correction of the voter list, if any error is detected, within 10 days from today and to communicate the same to the respective polling station.
- The Chairman, Bar Council is directed to refix the date of holding election, the date of receiving objection and the first date of receiving objection by the Tribunal. The refixed date of polling must be on or before 20th June, 2012.
- The Chairman, Bar Council is directed to take effective steps so that one voter cannot cast his vote twice taking opportunity of appearance of his name in the voter list more than one place if the same is so appeared.
Communicate the order at once.