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Case Number

C.R No. 1781 of 1977

Advocates

R. Ghosh and Roma Bhattacherji. S.S. Hazra and Durga Dutta

Judges

Murari Mohan Dutt, J.

Acts

sub-rule (2) of R. 13 of the West Bengal Bar Council Rules
State.6. Rule 34 of the West Bengal Bar Council Rules
cl.(a) of Section 49(1) of the Advocates Act, 1961,
sub-rule (6). Under Cl.(ii) of sub-rule (6)
ADVOCATES ACT 1961
SECTION 15 ADVOCATES ACT 1961
Civil Courts. Rule 34
Cl.(iv) of sub-rule (6)
sub-rule (2) of R. 36
sub-rule (6) of R. 34
sub-rule (2) of R. 13,
sub-rule (1) of R. 34,
rules. Rule 13

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This Rule was brought by the defendants (the Bar Council of West Bengal and two others) challenging Order No. 12 dated 5 April 1977 of the learned Judge, Second Bench, City Civil Court, Calcutta. By that order the learned Judge decided Issue No. 2 in favour of the plaintiff. Issue No. 2 concerned the jurisdiction of the City Civil Court to entertain and try the plaintiff's suit.

The plaintiff is a practising advocate whose name appears on the State Roll maintained by the Bar Council of West Bengal under the Advocates Act, 1961. The Bar Council held elections for members on 11 and 12 August 1975. The plaintiff alleges that when she attempted to vote on 12 August 1975 she was refused the vote at the polling booth in the City Civil Court building because her name was not included in the electoral roll. She further alleges that the electoral roll was not published and that about 9,000 advocates were omitted from it. The election result had not been declared at the time of the opinion.

The plaintiff sued seeking a declaration that the election was void (on the ground of the allegedly illegal electoral roll and omission of names) and a permanent injunction restraining the defendants from publishing the election result. The defendants contested the suit; one of their principal defences was that the Civil Court lacked jurisdiction because Rule 34(4) of the West Bengal Bar Council Rules provided for an Election Tribunal to decide election disputes. Upon the parties' pleadings the learned Judge framed, among others, Issue No. 2: “Has this Court jurisdiction to entertain and try this suit in view of R. 34, cl.(4) of the Bar Council Rules”. The learned Judge answered that question in favour of the plaintiff, prompting this Rule.

Legal Issues Presented

Whether the City Civil Court has jurisdiction to entertain and try the plaintiff's suit in view of Rule 34(4) of the West Bengal Bar Council Rules (i.e., whether establishment of an Election Tribunal under Rule 34 impliedly or expressly excludes the jurisdiction of Civil Courts).

Arguments of the Parties

Plaintiff's Arguments

The plaintiff contended that she was debarred from exercising her franchise because her name was omitted from the electoral roll; the electoral roll was allegedly not published; and approximately 9,000 advocates' names were omitted.
On this basis she contended the election held on 11–12 August 1975 was void and sought a declaration to that effect and a permanent injunction restraining publication of the election result.

Defendants' / Petitioners' Arguments

One of the defendants' principal defences was that the Civil Court had no jurisdiction to entertain or try the suit because Rule 34(4) of the West Bengal Bar Council Rules provides for an Election Tribunal to decide disputes relating to elections.
Counsel for the petitioners (Mr. Ranjit Ghose) relied on the principle (as stated by Willes J. in Wolverhampton New Water Works Co. v. Hawkesford and cited in N.P. Ponnuswami) that where a statute creates a liability and also gives a special and particular remedy for enforcement of that liability, the statutory remedy must be followed exclusively and common law remedies cannot be pursued. He argued that Rule 13(2) of the West Bengal Bar Council Rules created a liability (names not to be included if required information was not supplied) and thus that the statutory scheme should be treated as providing the exclusive remedy.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Secretary of State v. Mask and Co., 67 Ind App 222 : AIR 1940 PC 105	Principle that exclusion of jurisdiction of Civil Courts must be explicitly expressed or clearly implied and is not to be readily inferred.	The court relied on this principle to require explicit or clear implication before concluding that Rule 34 ousted Civil Court jurisdiction; it found no such explicit or necessary implication in the West Bengal Bar Council Rules.
Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai, AIR 1969 SC 439	The same principle as above, cited as authority for the requirement of clear expression or implication to oust ordinary jurisdiction.	The court noted that the Supreme Court had relied on the same principle and applied it in concluding that Rule 34 did not oust Civil Court jurisdiction beyond narrow limits.
Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 CB (NS) 336	Principle (stated by Willes J.) that where a statute creates a liability and at the same time provides a special and particular remedy, the statutory remedy must be followed and the common law remedy is not available.	The petitioners relied on this authority to argue exclusivity of the statutory remedy arising under Rule 13(2). The court considered the principle but held it inapplicable because the West Bengal Bar Council Rules did not provide any remedy for an aggrieved advocate against non-inclusion in the electoral roll.
N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64	Reference point in which the Wolverhampton principle was referred to by the Supreme Court.	The court referred to the Ponnuswami decision as a context in which the Wolverhampton principle had been discussed; ultimately the court distinguished the present rules from situations where a remedy is provided by the statute.
Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547	Affirmation of the same principle regarding exclusivity of statutory remedies when provided by the statute.	The court cited this decision to show the principle has been laid down by the Supreme Court, but concluded it did not operate in the case because the state rules did not provide the requisite statutory remedy.

Court's Reasoning and Analysis

The court proceeded in a stepwise manner, applying the applicable rules and established principles strictly as set out in the opinion:

The court first examined the statutory and rule framework: provisions of the Advocates Act authorising rules for electoral rolls; the Bar Council of India rules (R.1–R.4) governing preparation and publication of preliminary and final electoral rolls; and the West Bengal Bar Council's Rule 13 (prescribing procedures and notifications for preparing the voters' list) and Rule 34 (providing for an Election Tribunal and its powers).
Applying the rules to the plaintiff's factual case, the court observed that, on the material before it, the plaintiff's name should have been included in the electoral roll because she was on the State Roll and had no disqualifications. The plaintiff alleged omission of her name and the names of some 9,000 advocates.
The court analysed Rule 34 and concluded that sub-rule (1) entitles only a “voter” (i.e., an advocate whose name is included in the electoral roll) to challenge the validity of an election. The court further relied on sub-rule (6) which delineates specific powers of the Election Tribunal (dismiss petition, order recount, declare elected on recount, set aside election for corrupt practices) and on sub-rule (2) of Rule 36 which bars petitions on grounds such as wrongful inclusion/omission of a voter’s name or other non-substantial irregularities.
From that construction, the court reasoned that (a) an omitted advocate who is not a voter is barred by the Rules from using Rule 34(1) to challenge an election; and (b) even a voter is barred under Rule 36(2) from challenging the election on the ground of wrongful inclusion or omission of a voter. Therefore, the Election Tribunal's enumerated powers do not extend to setting aside an election based solely on the omission of names from the electoral roll.
The pivotal legal question was whether the existence of the Election Tribunal under Rule 34 ousted the ordinary jurisdiction of Civil Courts. The court invoked the settled principle (citing Secretary of State v. Mask and Co. and Musamia Imam Haider Bax Razvi) that ouster of ordinary civil jurisdiction must be either expressly stated or clearly implied; such an ouster is not lightly inferred.
Applying that principle to the West Bengal Bar Council Rules, the court found no express clause excluding Civil Court jurisdiction. Nor did it find a necessary implication that the Election Tribunal was intended to be the exclusive forum for all challenges to an election. The court concluded that Rule 34, read as a whole, at most bars Civil Court intervention only to the extent that a voter may challenge an election before the Election Tribunal on the limited grounds the Tribunal can entertain (recount and corrupt practices), but it does not, either expressly or by necessary implication, oust Civil Court jurisdiction to adjudicate other forms of challenge such as the plaintiff's suit.
The court addressed the petitioners' reliance on the Wolverhampton principle (as cited in N.P. Ponnuswami and supported by Firm Seth Radha Kishan) that where a statute creates a liability and provides a special remedy, the statutory remedy is exclusive. The court accepted that Rule 13(2) creates a rule-based liability (a name shall not be included if required information is not furnished), but it found that the West Bengal Bar Council Rules do not provide any remedy for an advocate aggrieved by non-inclusion. Because no remedial scheme is provided in the state rules for such an aggrieved person, the court held that the Wolverhampton principle could not be invoked to oust ordinary civil jurisdiction.
On these bases, the court concluded that Civil Court jurisdiction to entertain the plaintiff's suit was not barred by Rule 34 or any other rule, either expressly or by necessary implication.

Holding and Implications

Holding: The court affirmed the order of the learned Judge and held that the Civil Court has jurisdiction to entertain and try the plaintiff's suit; accordingly, the Rule (brought by the defendants) is discharged.

Immediate consequences and directions issued by the court:

The Rule filed by the defendants is discharged (i.e., the challenge to the learned Judge's order is rejected).
There will be no order as to costs.
The records are to be sent down at once and the learned Judge of the City Civil Court is directed to dispose of the suit as expeditiously as possible.

The opinion does not discuss any broader legal or policy implications beyond these immediate effects, and it does not purport to lay down a novel precedent beyond applying established principles concerning ouster of civil jurisdiction and the exclusivity of statutory remedies where a remedial scheme is provided.

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Bar Council Of West Bengal And Others v. Miss Ajanta Augbstin Opposite Party.

1. This Rule is at the instance of the defendants, the Bar Council of West Bengal and two others and it is directed against order No. 12, dated April 5, 1977, of the learned Judge, Second Bench, City Civil Court, Calcutta. By the said order the learned Judge decided issue No. 2 in favour of the plaintiff. That issue relates to the jurisdiction of the City Civil Court to entertain and try the suit instituted by the plaintiff.

2. The plaintiff is a practising advocate and her name has been entered in the State Roll maintained by the Bar Council of West Bengal, under the provisions of the Advocates Act, 1961 and the rules framed thereunder. The defendants Nos. 1, 2 and 3 held an election of the members of the Bar Council of West Bengal on Aug. 11 and 12, 1975. It is the case of the plaintiff that she came to know about the said election from her advocate friends, and on Aug. 12, 1975 the plaintiff went to cast her vote in the said election, but she was refused to cast vote by the Polling Agent, who was conducting the election at the election booth situate in the City Civil Court building, Calcutta. It is alleged by her that her name was not in the electoral roll on the basis of which the said election was held. It is alleged that the electoral roll was not published by the defendants. It is also the plaintiff's case that she came to know that the names of 9,000 advocates have not been included in the electoral roll of the State Bat Council. The result of the said election held on Aug. 11 and 12, 1975 has not yet been declared. The contention of the plaintiff is that the defendants by their conduct debarred her from exercising her right of franchise. It is also the case of the plaintiff that the electoral roll has been prepared illegally by eliminating the name of the plaintiff and the names of 9,000 advocates and, accordingly, the election which has been held on the basis of such illegal electoral roll is void and liable to be set aside. The plaintiff has prayed for a declaration in that regard. She has also prayed for a permanent injunction restraining the defendants from publishing the result of the said election. The defendants, including the Bar Council of West Bengal have been contesting the suit by filing a written statement. One of the defences of the defendants is that the Civil Court has no jurisdiction to entertain and try the suit inasmuch as under cl.(4) of R. 34 of the West Bengal Bar Council Rules, there is an Election Tribunal to decide all disputes relating to election. Upon the pleadings of the parties, the learned Judge framed certain issues of which issue No. 2 is as follows:—

“Has this Court jurisdiction to entertain and try this suit in view of R. 34, cl.(4) of the Bar Council Rules”.

3. It has been held by the learned Judge that the Civil Court has jurisdiction to entertain and try the suit in spite of the provision of cl.(4) of R. 34. Hence this Rule. Under cl.(a) of Section 49(1) of the Advocates Act, 1961, the Bar Council of India may make rules for discharging its functions under the Act, and in particular, such rules may prescribe—

(a) the conditions subject to which an Advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council.

4. The Bar Council of India framed its rule including the rules for the election of members to the State Council. R. 1 provides that every advocate whose name is on the electoral roll of the State Council shall be entitled to vote at an election. Rule 2 provides that subject to the provision of R. 3, the name of every advocate entered in the said roll shall be entered in the electoral roll of the State Council. R. 3 lays down certain disqualifications and if an advocate has any such disqualifications his name shall not be entered on the electoral roll. Cls. (a) and (b) of R. 4 provide as follows:—

“4(a). A preliminary electoral roll consisting of the names of all advocates whose names are required to be included under these rules shall be put up on the notice board of the State Council within 120 clear days before the expiry of the term of the members of the said State Council necessitating the election and relevant portions thereof shall be sent to such Bar Associations as the Secretary considers fit.

(b) The final electoral roll shall be prepared after incorporating such changes as may be necessary including the addition of the names of Advocates enrolled after the preparation of the preliminary roll and put up on the notice board of the State Council not more than 75 clear days and not less than 60 clear days, before the date of election. Intimation of such publication shall be given within a week after the publication to the Bar Association aforesaid”.

5. By virtue of cls. (a) and (d) of Section 15 of the Advocates Act, 1961, the Bar Council of West Bengal framed the election rules. Rule 13 provides as follows:—

“13. Preparation of list of voters:

(1) The Electoral Roll containing the list of voters shall be prepared by the State Bar Council in accordance with the rules of the Bar Council of India in Part III, Chap. 1 of the Bar Council of India Rules.

(2) In preparing the final electoral roll a Notice in the prescribed form shall be issued by the Secretary of the State Bar Council to all Advocates whose names are in the State Roll for the time being, asking them to intimate the Council within the time specified in the said Notice as to whether he has incurred any disqualification mentioned in Rule 3 of Chapter 1. Part III of the Bar Council of India Rules. By the said Notice the Secretary shall also inform the Advocate concerned that unless the information required by the Notice in question is received by the State Bar Council within the specified time or such extended time as may be granted by the Council on an application made on that behalf, his name shall not be included in the electoral roll.

(3) The Bar Council will publish for information of all Advocates concerned the purport of the Rule 13(2) by a notice, in three daily newspapers, viz., (i) Statesman. (ii) Amrita Bazar and (iii) Ananda Bazar Patrika and also in the Official Gazette of the State.”

6. Rule 34 of the West Bengal Bar Council Rules provides as follows:—

“(1) Any voter may contest the validity of the election of a candidate declared to have been elected to the Bar Council by a petition signed by him and supported by an affidavit and delivered to the Secretary personally or sent by registered post so as to reach him within 15 days from the date of publication of the results of the election,

(2) The petition shall be accompanied by a fee of Rs. 250/- which shall be paid in cash or sent by Money Order. In case it is sent by M.O the M.O receipt shall also be attached to the petition. The fee shall not be refundable.

(3) Such petition shall include as respondents all the contesting candidates, and the petition shall be accompanied by as many copies as there are respondents.

(4) All disputes arising under the above sub-rules shall be decided by a tribunal to be known as an Election Tribunal comprising 3 Advocates whose names are on the State Roll and who are not less than of 10 years' standing.

(5) The Election Tribunal shall be appointed by the Bar Council on or before the date on which the time of the Election is fixed under R. 4.

(6) The Election Tribunal shall have all or any of the following powers:—

(i) To dismiss a petition;

(ii) To order recount;

(iii) To declare any candidate to have been duly elected on a recount;

(iv) To set aside the election of the candidate who either by himself or through any other person acting with his consent is guilty of corrupt practices.

7. It thus appears that the plaintiff being an advocate and her name being on the State Roll and she not having any disqualifications, her name should have been included in the electoral roll of the Bar Council of West Bengal. It is the case of the plaintiff that the names of 9,000 Advocates have not been included in the electoral roll. The plaintiff has challenged the legality of the election held on Aug. 11 and 12, 1975 on the basis of the electoral roll which, according to the plaintiff, does not include the name of the plaintiff as also the names of 9,000 Advocates. Under sub-rule (1) of R. 34, only a voter is entitled to challenge the validity of the election of the candidate declared to have been elected to the Bar Council. The grounds of such challenge have not been specifically mentioned in R. 34, but there is an indication in that regard under sub-rule (6). Under Cl.(ii) of sub-rule (6) an Election Tribunal can order recount of the votes cast. Presumably such recount may be ordered by the Election Tribunal in case it is complained and proved that there has not been a proper counting. Cl.(iv) of sub-rule (6) indicates that the election of a candidate can be challenged on the ground of corrupt practices. These are, therefore, two grounds for challenging the election of a candidate declared to be elected to the Bar Council. But an election can be challenged only at the instance of a voter, that is an advocate whose name has been included in the electoral roll. In this connection, we may refer to sub-rule (2) of R. 36 which provides that no petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character. Sub-r. (2) of R. 36, therefore, debars a voter from challenging the election of a candidate on the ground of wrong inclusion or non-inclusion of a voter. The plaintiff is not a voter as her name has not been included in the electoral roll. Even if she had been a voter she could not challenge the election on the ground of non-inclusion of the names of 9,000 Advocates in the electoral roll, nor will any of such 9,000 Advocates be entitled to challenge the election. It is clear from the powers of the Election Tribunal as enumerated in sub-rule (6) of R. 34 that the Tribunal cannot set aside the election of members to the Bar Council on the ground that the names of 9,000 Advocates have not been included in the electoral roll. It has been already noticed that it follows from the powers of the Election Tribunal that such Tribunal can set aside the election of a candidate upon recounting of votes where there has not been a proper counting, and on the ground of corrupt practices of a candidate declared to be elected.

8. The question, therefore, is whether by the setting up of an Election Tribunal the jurisdiction of the Civil Court has been impliedly barred. It is settled law that the exclusion of the jurisdiction of the Civil Court is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied (See Secretary of State v. Mask and Co., 67 Ind App 222 : AIR 1940 PC 105)). This principle has been relied on by the Supreme Court in Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai, AIR 1969 SC 439. The West Bengal Bar Council Rules do not contain any provision expressly excluding the jurisdiction of Civil Courts. Rule 34 also does not provide for such exclusion either expressly or by necessary implication, except that it may be said, that the Civil Court is by necessary implication, debarred from challenging the election of a candidate at the instance of a voter on the two grounds on which he may challenge such election before an Election Tribunal, and beyond that I do not find any implied exclusion of the jurisdiction of Civil Court to adjudicate the validity of an election to the West Bengal Bar Council.

9. Much reliance has been placed on behalf of the petitioners on the observation of Willes J. in Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 CB (NS) 336 at p. 356, as referred to by the Supreme Court in N.P Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64. It has been inter alia observed by Willes J. that where a liability not existing at common law is created, by a statute which at the same time gives a special and particular remedy for enforcing it, the remedy provided by the statute must be followed, and it is not competent to the party to pursue the common law remedy. It is contended by Mr. Ranjit Ghose, learned Advocate appearing on behalf of the petitioners that the names of the plaintiff and other advocates have not been included in the electoral roll as they did not furnish the information required by the State Bar Council under sub-rule (2) of R. 13 of the West Bengal Bar Council Rules which has been quoted above. Under sub-rule (2) of R. 13, if the information required by the notice is not received from the advocate concerned by the State Bar Council within the specified time or such extended time as may be granted by the Bar Council on an application made in that behalf, his name shall not be included in the electoral roll. A liability has, therefore, been created by R. 13(2). But no remedy has been provided for in the West Bengal Bar Council Rules in case an advocate feels aggrieved by the action of the Bar Council. In order to apply the principles of law laid down by Willes J. in Wolverhampton's case referred to above the statute concerned which creates the liability must also provide remedy for the party aggrieved in the enforcement of the liability. As there is no provision in the West Bengal Bar Council Rules for any remedy which may be taken resort to by an advocate if he feels aggrieved by the non-inclusion of his name in the electoral roll, the said principles do not apply.

10. In this connection, we may refer to the decision of the Supreme Court in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 where the same principle has been laid down. In these circumstances, I do not think that the jurisdiction of the Civil Court to try the instant suit has been barred by Rule 34 or any other rule, either expressly or by necessary implication, to entertain and hear the instant suit.

11. For the reasons stated above, the order of the learned Judge is affirmed. This Rule is discharged. There will, however, be no order for costs. Let the records be sent down at once and the learned Judge is directed to dispose of the suit as expeditiously as possible.

12. Rule discharged.

Bar Council Of West Bengal And Others v. Miss Ajanta Augbstin Opposite Party.

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff's Arguments

Defendants' / Petitioners' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bar Council Of West Bengal And Others v. Miss Ajanta Augbstin Opposite Party.

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