Secretary, Bangladesh Bar Council Vs. A. F. M. Faiz & others, 2 LNJ (AD) (2013) 43

Case No: Civil Petition No. 1434 of 2012

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Abdul Baset Majumdar,Mr. Md. Abdul Momen Chowdhury,,

Citation: 2 LNJ (AD) (2013) 43

Case Year: 2013

Appellant: Secretary, Bangladesh Bar Council

Respondent: A. F. M. Faiz & others

Delivery Date: 2012-06-18

APPELLATE DIVISION
(CIVIL)
 
Surendra Kumar Sinha, J.
Md. Abdul Wahhab Miah, J.
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.
Md. Shamsul Huda, J.

Judgment
18.06.2012
 
The Secretary Bangladesh Bar Council
---Petitioner
-Versus-
A. F. M. Faiz & others
---Respondents
 

Bangladesh Legal Practitioner and Bar Council Order, 1972
Article 8
Article 8 is not mandatory rather it is directory—Where a stature requires something to be done in a particular manner and the consequence of failure to do so are also provided no difficulty arise and the provision is construed as mandatory but when the stature does not specify the consequences of failure to do something in a particular manner such provision is directory.....(27)

HV Kamath vs Ishaque (1955)1 SCR 1104 (1126); Thomas M Cooley in his book "A Treatise on Constitutional Limitations" 1868 (Thirdprint) P 74 2004; AHM Mustafa Kamal Vs. Bangladesh (2009) 61 DLR (AD) 10; Md Delwar Hossain vs. State reported in 2006 Bangladesh Bar Council-Vs.-A. P.M. Faiz (Syed Mahmud Hossain, J) 2 ALR(AD)(2013)referred to BID (AD) 109; M/s. Gannysons Ltd. and another vs. Sonali Bank and others,(1985)37 DLR (AD)42; AFM Nazimddin Vs. Mrs. Hameeda Banu, (1993) 45 DLR (AD)38 ref.
 
For the Petitioner (In C. M. P. Nos. 622-624/12) : Mr. Abdul Baset Majumder, Senior Advocate (with Mr. M.K. Rahman, Senior Advocate), instructed by Zainul Abedin, Advocate-on-Record.
For the Petitioner. (In C.P. No. 1434/12): Mr. Md. Abdul Momen Chowdhury, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.
For the Respondents: (In all the C.M. Petitions): Not represented.

Civil Misc. Petition Nos. 622-24 of 2012 with Civil Petition No. 1434 of 2012
 
JUDGMENT
Syed Mahmud Hossain, J:

Civil Petition for Leave to Appeal No. 1434 of 2012 and Civil Miscellaneous Petition for Leave to Appeal Nos.622-624 of 2012 involving similar questions of law having been heard together and are now disposed of by this common judgment.
 
Civil Petition for Leave to Appeal No. 1434 of 2012 is directed against the judgment and order dated 20.05.2012 passed by a Division Bench of the High Court Division disposing of Writ Petition No.4546 of 2012.
 
The relevant facts  for the purpose of disposal of this civil petition for leave to appeal are as follows:
The Chairman of the Bangladesh Bar Council   by   a   circular   dated   14.03.2012 declared the election schedule to elect 14 members of the Bar Council under Article 8 of the Bangladesh Legal Practitioners and Bar Council Order, 1972 (hereinafter referred to as the Order of 1972). Subsequently, the schedule was amended on 12.04.1972. The writ-petitioners who are the voters, procured a voter list on 10.04.2012 which was published on 09.04.2012 and came to know that their names have been recorded in the voter list twice. On verification, it was discovered that in most of the cases, the name of each member has been recorded in more than one place in the voter list. On search, the writ-petitioners had been able to find out 500 cases whose names had been recorded in the voter list in more than one place. It has further been stated that Article 10 of the Order of 1972 provides that the Bar Council shall admit persons as Advocates on its roll; to hold examinations for purposes of admission and to remove Advocates from such roll and also to prepare and maintain the roll of Advocates. Article 20 provides that the Bar Council shall prepare and maintain a roll of Advocates. Article 23 provides for entries in the roll in order of seniority and Article 25 provides that the roll shall be made in order of seniority. The roll of Advocates prepared and maintained in accordance with the provisions of P. O. No.46 of 1972 shall be the sole basis for holding the election of the Bar Council but on scrutiny, the list of voters published by the Bar Council on 09.04.2012 shows ex facie that the same was merely consolidation of the members list obtained from various Bar Associations recognized by the Bar Council. Consequently, many Advocates have been shown as voters twice or thrice. The voter list prepared by the Bar Council on the basis of the lists of members of different Bar Associations is illegal. It has further been stated that election is a formal decision making process which cannot be allowed to be frustrated by an election of the national Bar Council on the basis of inflated and illegal voter list.
 
Being aggrieved by and dissatisfied with Memo No.BBC/Prosha/2012/680(81) dated 14.03.2012 and   the Memo No. BBC/Administration/2012 dated 12.04.2012 issued by the Chairman of  Bangladesh Bar Council, the writ-petitioners   moved   the   High   Court Division by filing Writ Petition No.4546 of 2012 and obtained Rule Nisi.
 
Writ-respondent No. l, 2 and 4 entered appearances by filing affidavit-in-opposition controvert the material statements made in the writ petition. Their case, in short, is that some names of the voters appeared in the list in more than one polling station and the reason is that the lists sent by the different Bar Associations had been printed by the Bar Council as the voter list. This process has been continuing for a long time. No one raised any objection. At a special meeting held on 29.04.2012, the Bar Council took resolution to omit the names of the voters whose names appeared in the voter list twice. The Bar Council has already made correction of the names of the voters. 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 votes.

The writ-petitioners, by a supplementary affidavit dated 09.05.2012, further stated that they have been able to collect 52 more names in the voters' list whose names have been recorded as voters in more than one place. In the affidavit-in-reply, the writ-petitioners also 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, 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 and 25 read with articles 2(d) (e) and (h) of the Order of 1972. The law requires the Bar Council shall publish such list of voters in accordance with Articles 5, 20, 23 and 25 of the Order of 1972 at least 30 days before the polling. The voter list has not been prepared in accordance with law.
 
The learned Judges of the High Court Division upon hearing the parties disposed of the Rule by the judgment and order dated 25.05.2012.
 
Feeling aggrieved by the impugned judgment and order passed by the High Court Division, writ-respondents have  filed this Civil Petition for Leave to Appeal No. 1434 of 2012 before this Division.
 
Civil Miscellaneous Petition for Leave to Appeal No.623 of 2012 arises out of Writ Petition No.7003 of 2012. In that writ-petition, the petitioner impugned the election schedule dated    20.01.2000 published by writ-respondent No. l fixing the date of election of Bangladesh Bar Council on 17.06.2012 on averments that the schedule is violative of Article 7 of Bangladesh Legal Practitioners and Bar Council Order, 1972 (in short, the Order) and that the election schedule is also violative of Article 9 of the Order of 1972. The impugned election schedule also violates Rule 11 of the Bar Council Rules, 1972.
 
The writ-petitioners obtained Rule Nisi and an interim order of stay on the date of issuance of the Rule.
 
Civil Miscellaneous Petition for Leave to Appeal No.624 of 2012 arises out of Writ Petition No.7017 of 2012. The aforesaid writ- petition was filed challenging the failure of Bangladesh Bar Council in not concluding the Bar Council election on or before 31st Day of May, 1912 and that the impugned election schedule is violative of Article 8 of the Order of 1972.
 
At the time of issuance of the Rule, the petitioner obtained an interim order dated 05.06.2012 staying operation of the election schedule.
 
Civil Miscellaneous Petition for Leave to Appeal No.622 of 2012 arises out of Writ Petition No.7045 of 2012. In the aforesaid writ petition, the petitioner challenged the election schedule and the election process on various grounds.
 
On 05.06.2012, the High Court Division issued a Rule Nisi and passed an interim order of stay in that writ petition against which this civil miscellaneous petition for leave to appeal has been filed.
 
Mr. Abdul Baset Majumder, learned Senior Advocate, appearing on behalf of the leave-petitioner in Civil Miscellaneous Petitions for leave to Appeal Nos.622-624 of 2012, submits that the High Court Division in Writ Petition No.4546 of 2012 has considered all the points which are involved in the writ petitions from which   the   present   civil miscellaneous cases for leave to appeal arise. He further submits that unless the interim orders of stay passed in the writ petitions are vacated the Bar Council Election cannot be held as per the schedule declared by the Bar Council. He then submits that the Bangladesh Bar Council declared the date of election within time-frame given in Article 8 of the Order of 1972 and that because of the interim orders of stay passed by the High Court Division the schedule had to be changed and that the writ petitions filed subsequent to the disposal of Writ Petition No.4546 of 2012 are new devices to delay the election.
 
Mr. A. J. Mohammad AH, learned Senior Advocate appearing on behalf of respondent No. 1 in civil miscellaneous petition for leave to appeal Nos.623-624 of 2012, on the other hand, submits that according to Sub-rule (1) of Rule 11 of the Bangladesh legal Practitioner and Bar Council Rules, 1972 (in short, the rules),the Bar Council is required to publish a voter shall cast his vote at least 30 days before the polling and that admittedly, there are serious faults in the voter list and as such, the election process should start afresh after correct the voter list.
 
We have considered the submission of the learned  Advocates, pressured the judgment delivery in Writ Petition No.4546 of 2012 and the records of other write petitions in which the High Court Division issued Ruled and passed interim orders stopping the election schedule of the Bangladesh Bar Council..
 
At the very outset, it is important to outset that the Bar Council election should be held a.: expeditiously as possible and therefore, we have decided to dispose of all the civil miscellaneous petitions for leave to appeal and the civil petition for leave to appeal by this common judgment and the writ petitions now awaiting disposal before the High Court Division shall   be  deemed   to   have   been disposed of.
 
In order to address the submissions the Article 8 of the Order of 1972 is mandatory and that there is no scope for holding election of the Bangladesh Bar Council beyond the time frame, Article 8 of the Order of 1972 is quoted below:
"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 in term of Bar Council expires."
 
The Chairman of the Bangladesh Bar Council   by   a   circular   dated    14, 03.2012; declared the schedule of election to elect 14  Members    of   Bangladesh   Bar      Council according to Article 8 of the Order of 1972 and the schedule was subsequently amended on 12,04.2012. The amended schedule is saw follows
"Date of submission of nomination paper—from 17.04.2012.
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 — with one month from the date of publication of the result.
Date   of receiving   objection   by   the Tribunal ......... -05.07.20I2.”
 
The above schedule reveals that steps were taken to hold the election within 3 1 st day of May according to the mandate of Article 8 of the Order of 1972. Allegations were made that there were serious mistakes in the voter list and that the names of. Many voters have been recorded in the voter list twice and thrice. Therefore, challenging the voter list, the writ petitioner of Writ Petition No.4546 of 2012 obtain a Rule and interim order of stay from the High Court Division and subsequently, the election could riot ho held according to the
 
Challenging the interim order of stay, the Bangladesh Bar Council filed a civil miscellaneous petition   for leave to appeal before this Division and the learned Judge-in Chamber stayed the operation of the impugned interim order of stay passed by the High Court Division and directed to connect the voter list within a stipulated date. The Full Court of this Division, How ever, maintained the interim order to stay passed by the High Court and directed a particular Bench of the High Court Division to dispose of Writ Petition No.4546 2012 within a stipulated time. Therefore, it uppers that; he, election could not be held within 31st day of May for fie reasons which were beyond the control of the Bangladesh Bar Council.
 
Having gone through Article 8 of the Order to 1972, it appears that no consequence Has been attached to it in the event of failure of the Bar Council to concluded the election within 31st day of May of the Bar Council to conclude the ejection within 31st day of May.
 
The word "shall" gives an impression that the time-frame given in Article 8 of the Order of 1972 is intended to be mandatory. The article requires to be considered in the light of the intention of the legislature by carefully construing the scope of the statute and the consequences that flow from the construction there of.
 
Where a statute requires something to be done or to be done in a particular manner and the consequences of failure to do so are also provided, no difficulty arises and the provision is construed as mandatory. But where the statute requires something to be done or to I have done in a particular manner without specifying the   consequences   of   noncompliance, a question arises as to whether the requirement is to be construed as merely directory, or as imperative or mandatory.
 
Henry Cambell Black in his handbook on Constitution and Interpretation of Laws 334 1896 opined:
"A provision is said to be mandatory when disobedience to it or want of exact compliance with it will make the ad done under the statute absolutely void.”
 
Craies on Statute Law, 6th Ed. opined:
"The terms "mandatory" and "directory" refer to the method by which the legislature sets about attaining its object. When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performa-nce, those prescribed formalities which are essential to the validity of the thing when done are called imperative (or mandatory); but those which are not essential, and may be disregarded without invalidating the thing to be dine, are called director-.!. "
 
In the case of HV Kamath vs Ishaque (1955)1 SCR 1104 (1126) it was held:
"The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed, in the case of the latter it is sufficient that it is substantially complied with."
 
Thomas M Cooley in his book "A Treatise on Constitutional Limitations" 1868 (Third print) P 74 2004 wrote as under:
"In respect to statutes it has long been settled that particular provisions may be regarded as directory merely; by which is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot be effectually exercised without observing them. There are cases where, whether a statute was to be regarded as merely directory or not, was made to depend upon the employment or failing to employ negative words which imported that the act should be done in a particular manner or time, and not otherwise. The use of such words is often very conclusive of intent to impose a limitation; but their absence is by no means equally conclusive that the statute was not destined to be mandatory. Lord Mansfield would have the question whether mandatory or not depends upon whether that which was directed to the done was or was not of the essence of the thing required. The Supreme Court of New York, in an opinion afterwards approved by the Court of Appeals, laid down the rule as one settled by authority, that "statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute.
But many regulations are made by statutes designed for the information of assessors and officers, and intended to promote method, system and uniformity in the modes of proceeding, compliance or non-compliance with which does in no respect affect the rights of tax paying citizens. These may be considered directory. Officers may be liable to legal animadversion, perhaps to punishment, for not observing them; but yet their observance is not a condition precedent to the validity of the tax."
 
In the case of AHM Mustafa Kamal vs. Bangladesh (2009) 61 DLR (AD) 10, this Division held as under:
"Since no consequence has been provided for the provisions both in section 6A of the Criminal Law Amendment Act and Rule 19Ka of the EP Rules, 2007, they are directory in nature and the Court shall not become Functus officio even after the expiry of stipulated period."
 
In the case of Md Delwar Hossain vs. State reported in 2006 BLD (AD) 109 this Division considered whether section 20 of the Nari-o-Shishu Nirjatan Daman Ain, 1995 providing for conclusion of the trial within 120 days is directory or mandatory. This Division held that sub-section 2 of section does not provide for a consequence for failure of the trial Court to conclude the trial within 120 days. The provision is not mandatory rather directory.
 
From the cases referred to above, it appears that unless consequence is provided, a provision though appears to be mandatory is directory.
 
Bangladesh Bar Council did not have any latches in not holding the election within 31st day of May in the year in which the terms of the Bar Council expired and because of intervention of the Court the election could not be held. Though the language of Article 8 of the Order of 1972 appears to be mandatory no consequence has been attached thereto. Therefore, Article 8 of the Order of 1972 is directory and not mandatory.
 
Article 20 of the Order of 1972 provides that that the Bar Council shall prepare and
maintain a roll of Advocates. The provision of this Article is quoted below:
"20. The Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names of-
a. all persons who were, as advocates, entitled to practice in the High Court or in any court subordinate to the High Court ultimately before the commencement of this order;
b. all persons who are admitted as advocates under the provisions of this Order. "
 
Rule 11 of the Rules provides for preparation of voter list and casting of votes. Rule 11 is quoted below:
"11. (1) 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 that the Bar Council shall have power to add to the list till the polling
Provided further that no person shall be entitled to vote if he ceases to be an Advocate before the poll
(2) 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."
 
Having considered the provisions of Article 20 of the Order of 1972 and Rule 11 of AD# 10 (Forma No. 3) the Rules, in general, and Sub-rule (1) of rule 11, in particular, we are of the view that the Bar Council is required to publish a correct voter list at least 30 days before the polling. A voter list containing innumerable mistakes can not be regarded as a voter list as contemplated under Sub-rule (1) of Rule 11 although the first proviso to it states that the Bar Council shall have the power to add to the list till the polling. This proviso does not allow the Bangladesh Bar Council to delete the names of 500 to 600 voters from the voter list before the polling. In addition, the candidates must know before participation in the election about the exact number of voters in the roll. Though it is not expected that a learned Advocate whose name is recorded as voter in more than one Bar Association will not cast his vote in more than one Bar Association, there may be a few unscrupulous ones who may cast their votes in more than one Bar Association. The preparation of correct voter list is an important part of the election process and a voter list containing duplication and triplication of the names of some of the voters must be corrected before declaration of election schedule.
 
Having given our anxious consideration try the facts and circumstances of the cases, we feel that the Bar Council should be run by elected representatives and as such, tile election of the Bar Council should be held as expeditiously as possible. We also feel that keeping the litigations pending in the High Court Division; it is not possible to initiate the election process afresh.
 
This Division previously exercised the power of doing complete justice under article 104 of the Constitution in several cases including the cases of M/s. Gannysons Ltd. and other vs. Sonali  Bank and others, (l985)37 DLR  (AD)42 and AFM  Naziruddin vs. Mrs. Hameeda Banu, (1993) 45 DLR (AD) 38. The subject-matter of the instant case not only presents an occasion to but also demands, exercise of the power of this Division.
 
Therefore, we have decided to dispose of all the civil miscellaneous petitions for leave to appeal and the civil petition for leave to appeal. In order to ensure free and fair election, a fresh schedule should be published by the Bar Council after correcting the voter list so that there can not be duplications and triplications of some voters in different Bar Associations. Therefore, all the cases are disposed of on the following terms:

Civil Miscellaneous Petition Nos.622-624 of 2012, Writ Petition Nos.7045, 7003 and 7017 of 2012 out of which the above civil miscellaneous petitions arose and civil petition for leave to appeal No. 1434 of 2017 are disposed of.

The declaration of election schedule by the Bangladesh Bar Council for holding election of Bar Council for the term from 2012 to 2015 is cancelled. The election of Bangladesh Bar Council shall be held within 30 days from date according to the following schedule;
Date of filing of nomination paper by 25.06.2012.
Date of scrutiny: 28.06.2012.
Date of withdrawal: 05.07.2012.
Date of election: 18.07.2012.
 
The Bangladesh Bar Council is directed to publish the above schedule by 19.06.2012.
 
The tenure of the incumbent Bangladesh Bar Council is extended till 30th July, 2012 or till publication of the election result in the official Gazette, whichever is earlier.
 
Ed.