Judgment:
ORDER
Navaniti Prasad Singh, J.
1. The petitioner is a practicing Advocate of this Court of some standing. He has challenged the State Bar Council elections on the ground that his voting right has been denied to him because of a mistake committed by the State Bar Council, which vitiates the election process itself. The facts giving rise to the writ petition are thus:
2. Petitioner is an Advocate whose name was there on the State Bar Council rolls. Under the provisions of the Advocates Act no person can act as an Advocate or appear in that capacity before any Court or Authority or Tribunal unless he is enrolled as such either before any State Bar Council or the Bar Council of India. Thus, for carrying out the profession of an Advocate enrollment with the State or All India Bar Council is a pre-condition. State Bar Council and Bar Council of India has its Managing Committee, elections to which are held as envisaged under the Advocates Act and the Rules framed thereunder. For the purposes of election, the list of enrolled Advocates is used. The said list is revised. One of the requirements of Advocates Act is that an Advocate should be a member of the Advocate Welfare Fund of the Advocate Welfare Trust established by the Bar Council of India. The subscription to that may be either Rs. 100/- per year or Rs. 1000/- as onetime subscription. It is further provided that if any Advocate fails to subscribe to the said fund for three consecutive years and is not a life time member of the said fund his name would be struck off from the rolls of the Bar Council concerned. On 29-12-2007, a voter list which is nothing but enrollment list was published by the State Bar Council. Petitioner was surprised to find that his name was not there. His name stood deleted without notice to him. On his own averment he made enquiry and was informed that he had not subscribed to the fund aforesaid and as such his name has been struck off after list of defaulting Advocates were sent to the respective Associations as notice to lawyer in general. Petitioner immediately realized his mistake and deposited life time one time membership fee of Rs. 1000/- on 14-2-2008 along with arrears, thus, he was not in default any more. On 15th June, 2009 electoral roll for the Bihar State Bar Council election were published as preliminary voter list, calling for objection against wrongful exclusion or wrongful inclusion of the names therein by the Advocates, fixing 20th July, 2009 as the last date for such objections to be filed. It is evident that the petitioner did not file any objection in the said period. In paragraph-14 of the writ petition, it is averred that petitioner filed objection petition after seeing his name on the website of the Bar Council of India where his name still continues but without considering his objection on 22-10-2009 the final voter list was published in which his name does not appear. It is, thus, submitted that his name has been wrongly excluded and he is entitled voter and his name is entitled to be included in the voter list.
3. Learned Counsel for the Bihar State Bar Council submits that under the Bar Council of India Rules read with Bihar State Bar Council Election Rules, a voter list is prepared which may contain revision and is notified to general public for objections, Advocates are supposed to file objections and the the final voter list is published. To the voter list as was published in June, 2009, petitioner admittedly did not file any objection. It is when the final voter list was published on 23rd October, 2009 that the election process starting, filing of nomination schedule for 12th November that he submits that he approached the Returning Officer with an application objecting to wrongful exclusion of his name from the voter list, which was not entertained. This, it is then submitted is wrong.
4. In my considered view, the writ cannot succeed for more than one reason. It is well settled that once statute prescribes a mode for an act to be performed then the act has to be performed in that manner alone and all other modes are impliedly prohibited. This proposition is then recognized, as is noted in paragraph 18 of the decision of the Apex Court in the case of Hukam Chand Shyam Lal v. Union of India since reported in : AIR 1976 SC 789, which is quoted hereunder:
Paragraph 18. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden...
5. Here, the petitioner was required to file his objection to the voter list as published in June 2009, within the period stipulated, he failed to do so. Having failed to do so, he cannot now fault the State Bar Council in wrongly excluding the name of the petitioner. He has chance to get the same rectified, he failed to get his right within the stipulated time and he looses his right by his own conduct. The other reason is that he is said to have filed a protest petition before the Returning Officer after the final electoral rolls were published on 23rd October, 2009. Firstly, Returning Officer has no authority to entertain any such petition. The petitioner was at the wrong station on the wrong time for the wrong train. Secondly, the averment as contained in paragraph 14 in the writ petition wherein it is said that he had filed an objection petition but in the writ petition in support of the said averment the objection petition has not been annexed nor any specific date has been mentioned. Such an averment unsupported by document cannot be taken note of this Court. This is well settled by the judgment of the Apex Court in the case of Bharat Singh v. State of Haryana since reported in : AIR 1988 SC 2181, the relevant part whereof, which is quoted hereunder:
When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a pleading under the Civil P.C. and a writ petition of a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
6. It must be noted that the writ petitioner is a practicing Advocate of this Court of long standing. A presumption is that he knew his rights and he knew the law having not exercised his rights in lawful manner, this Court cannot grant him any relief or remedy.
7. In fairness to the writ petitioner, his submission was that once petitioner had cleared his dues in February, 2008, it was the duty of the State Bar Council to include his name automatically in the electoral rolls and not having done so the State Bar Council failed in its duty because of which petitioner cannot suffer. The proposition is that for a mistake of one another cannot suffer, equally settled proposition is that no person can take advantage of his own mistake. The two propositions have no play in the present case, inasmuch as, the statutory opportunity for correcting a mistake was provided, the petitioner was under a statutory obligation to verify the mistake, committed and file objection that was the whole purpose of pre-publication of the voter list calling for objection. If petitioner chooses to sleep and not take appropriate action in accordance with law it cannot blame the authorities for the mistake because the pre-publication was only with the purpose of correction of mistake. The fault unfortunately is of the petitioner himself and it is he who is to be blamed for his predicament.
8. The writ petition is, thus, dismissed summarily.