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Case Study: D.Saibaba v/s Bar Council of India

Parties to the Case: D. Saibaba (Petitioner) & Bar Council of India (Respondent)

Court: The Supreme Court of India
Bench Composition: Justice Ashok Bhan & Justice R.C. Lahoti

Facts of the Case:
  • This is a case that involves a complaint with the cornerstones of professional misconduct against an advocate D. Saibaba (Petitioner), made by his wife, Smt. D. Anuradha (Respondent 1). It was alleged that despite being a duly enrolled advocate, the Petitioner was running a telephone booth allotted to him in the handicapped person's quota. However, hearing the Petitioner's response the State Bar Council, directed the complaint to be dropped out.
  • The wife, aggrieved by the said decision, filed yet another complaint making almost identical averments. The appellant provided a detailed reply submitting that this complaint was malicious in nature, originating from a disgruntled wife who had even lodged a criminal complaint to harass the appellant. While defending himself, he stated that he was a handicapped person, and under the levying onus of family's responsibilities and stringent financial conditions he had applied for an STD booth under the handicapped person's quota and was allowed to him.
  • He also stated of being operated the STD booth, after getting married to his wife, he enrolled as an advocate and commenced his apprenticeship under a senior lawyer. The said booth was then later operated by his parents. However, by an order dated 20.02.2001, the Bar Council of India (BCI) directed the appellant to surrender the STD booth forming an opinion that whosoever might be conducting the STD booth, the booth was allotted in the name of the appellant and the surrender would bring an end to the controversy. Although the appellant sought some time in order to clear any pending dues, he failed to surrender the booth and, consecutively, the BCI advised the State Bar Council to remove his name from the rolls of the advocates.
  • The appellant sought a review of such order of BCI on the subsequent event of the telephone booth having been surrendered. By an order dated 26.8.2001, the BCI rejected the petition for review on the ground that the same was barred by time. As against the order dated 26.8.2001, the appellant filed an appeal by special leave.
  • Section 48AA of the Advocates Act, 1961, which allows for the BCI or its committees to review any order passed by them under the Act within sixty days of the date of that order. The BCI believed that the limitation period for review begins on the date of the order, while the petitioner argued that it should begin on the date of communication of the order. The BCI concluded that there was a legislative intent to differentiate between the language used in Sections 37 and 38 and Section 48AA and that the limitation period for review under Section 48AA begins on the date of the order. As a result, the review petition was dismissed as barred by limitation without consideration of the merits.
  • The appellant filed an original petition challenging the constitutionality of Section 48AA, arguing that it was unworkable and therefore should be struck down. The appeals and the petition were heard together, and the parties agreed that the two questions relating to the interpretation of Section 48AA should be answered by the Court.

Issues of Law:
  • The main legal issue, in this case, was the interpretation of Section 48AA of the Advocates Act, which provides for a 60-day time limit for filing a review petition before the BCI against any order passed by it. The specific issue was whether the 60-day period starts from the date of the order or from the date of communication or knowledge of the order to the review petitioner.
  •  Another legal issue in the case was the constitutional validity of Section 48AA. The appellant had originally filed an original petition challenging the provision's validity on the ground that it was unworkable and, therefore, liable to be struck down.
  • Although the complaint was dismissed, the wife of the appellant had filed a malicious suit against the appellant for misusing the quota for the handicapped person for personal advantage, which could have potentially invited a writ petition under Article 32 or 226 by the appellant and seeking redressal for the mental and social injury dealt by the latter.

Court's Observation:
  • The Court noted that the series of events forming the subject matter of this litigation was an attempt to make a mountain out of a molehill. The court found that the BCI if it had exercised its review jurisdiction, would have formed no opinion other than the one of condoning the innocuous lapse on the part of the appellant who permitted the allotment of the STD booth to continue in his name though he had actually discontinued the operation of the STD booth by himself. The court found that the BCI would certainly have taken a sympathetic view and would not have deprived the appellant of the source of his bread and butter and nipped in the bud the opportunity of blooming into an independent advocate from an apprentice.
  • Therefore, the Court allowed all the appeals filed by the appellant and set aside the impugned orders of the BCI. The enrolment of the appellant as an advocate was restored. The Court also dismissed the civil writ petition challenging the vires of Section 48AA of the Act on the ground that the provision was unworkable and unreasonable and, therefore, suffered from inherent infirmity. In view of the construction placed on the language of Section 48AA, the challenge to the constitutional validity of the provision did not survive.
  • The Court held that the expression 'the date of that order' in Section 48AA should be construed as meaning the date of communication or knowledge of the order to the review-petitioner. The Court emphasized that where the law provides a remedy to a person, the provision should be interpreted in a way that makes it practical for the person to avail of the remedy and for the authority to exercise the power conferred on it meaningfully and effectively. The Court noted that while interpretation cannot be used to revive a dead provision, it can be used to give life to a sinking provision.
  • The Court also rejected BCI's argument that it becomes functus officio on the lapse of sixty days from the date of the order and its jurisdiction to exercise the power of review comes to an end. The Court held that the BCI can exercise its power of review even after sixty days, but it should do so sparingly and only in exceptional circumstances. The Court also noted that the power of review is not a right of the parties but a discretionary power of the authority, and the authority should exercise it only for the purpose of correcting an error or a mistake apparent on the face of the record, or for other compelling reasons.

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