|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO.1 OF 2012
IN
CIVIL APPEAL NOS.3401 OF 2003
1
2 Supreme Court Bar Association & Ors. … Appellants
Vs.
2 B.D. Kaushik … Respondent
WITH
I.A. NO.1 OF 2012 IN CIVIL APPEAL NO.3402 OF 2003
AND
CONT. PET. (C) NO.45 OF 2012 IN C.A. NOs.3401 & 3402 OF 2003
J U D G M E N T
ALTAMAS KABIR, J.
1. I.A. No.1 of 2012 has been filed by the Supreme Court Advocate-on-
Record Association (SCAORA) in Civil Appeal Nos.3401 and 3402 of 2003,
which were disposed of on 26th September, 2011, and form the genesis of the
events leading to the filing of the said application. It has been a
painful experience for us to have had to hear this matter as it involves
two sections of the Supreme Court Bar Association whose unbecoming
posturing has cast dark shadows on the functioning of the Bar Association
even in the eyes of the general public and the litigants who throng the
Supreme Court each day for their cases.
2. While Civil Appeal No.3401 of 2003 was filed by three Appellants,
namely, (i) Supreme Court Bar Association (Regd.) through its Honorary
Secretary, Mr. Ashok Arora; (ii) Mr. Ashok Arora in his capacity as the
Honorary Secretary of the Supreme Court Bar Association; and (iii) Ms.
Sunita B. Rao, Coordinator, Implementation Committee, Supreme Court Bar
Association, (hereinafter referred to as “SCBA”), on the other hand, Civil
Appeal No.3402 of 2003 has been filed by the Supreme Court Bar Association
through its Honorary Secretary. Both the Appeals are directed against the
interim order dated 5th April, 2003, passed by the learned Civil Judge on
an application filed under Order XXXIX Rules 1 and 2 read with Section 151
of the Code of Civil Procedure, 1908, filed in Civil Suit Nos.100 and 101
of 2003. By the common order, the Appellants were restrained from
implementing the Resolution dated February 18, 2003, amending Rule 18 of
the Rules and Regulations of SCBA till the final disposal of both the
suits. While Shri B.D. Kaushik is the sole Respondent in Civil Appeal
No.3401 of 2003, Shri A.K. Manchanda is the sole Respondent in Civil Appeal
No.3402 of 2003. Both the Respondents are Advocates who are practising in
Delhi and are Members of the SCBA, the Delhi Bar Association and the Bar
Association of the Tis Hazari Courts, Delhi.
3. The Supreme Court Bar Association is a Society registered under the
Societies Registration Act, 1860, on 25th August, 1999, under Registration
No.35478 of 1999. In keeping with the provisions of the Societies
Registration Act, 1860, the SCBA has framed its Memorandum of Association
and Rules and Regulations, Rule 4 whereof divides the Members into four
separate classes, namely, :-
(i) Resident Members;
(ii) Non-Resident Members;
iii) Associate Members; and
iv) Non-Active Members.
Rule 5(v)(a) provides that in terms of Rule 5, an Applicant found to
be suitable to be made a Member of the Association would be made Member
initially on temporary basis for a period of two years. It also provides
that a person who is made such a Member, would be identified as a temporary
Member who would be entitled to avail the facilities of the Association,
such as library and canteen, but would not have a right to participate in
general meetings, as prescribed in Rule 21 or to contest and vote at the
elections, as provided in Rule 18.
4. On 23rd January, 2003, the Office of the SCBA received a requisition
dated 10th January, 2003, signed by 343 Members seeking an amendment to
Rule 18 regarding the eligibility of the Members to contest and vote at an
election. It was proposed that the Member, who exercised his right to vote
in any High Court or District Court Advocates/Bar Association, would not be
eligible to contest for any post of the SCBA or to cast his vote at the
elections. The said requisition dated 10th January, 2003, was considered
in the meeting of the Executive Committee of the SCBA on 1st February, 2003
and a decision was taken to hold a Special General Body Meeting on 18th
February, 2003, to consider the requisition. It appears that notice for the
said General Body Meeting was issued by the SCBA on 6th February, 2003, and
copies of the same were sent to the Members along with the cause list. The
notice was also displayed on the Notice Board of the office of the SCBA
situated in the Supreme Court premises. The notices were also sent to
different Bar Associations at Delhi, including the Delhi Bar Association.
On 18th February, 2003, the General Body Meeting was convened in which 278
Members participated. Some of the Members of the Association had spoken
against the requisition, but when the Resolution proposing the amendment in
Rule 18 of the Rules was put to vote, it was passed by a majority of 85% of
the Members present and voting. Subsequently, at a meeting of the Executive
Committee convened on 3rd March, 2003, a Resolution was adopted to hold
election of the Office Bearers for the next session and for the
constitution of the Election Committee on 25th April, 2003. An Election
Committee of three Members of the SCBA was constituted for the purpose of
conducting the election. In the said meeting, a requisition signed by 237
Members of the SCBA to recall the Resolution dated 18th February, 2003, was
taken up for consideration, but deferred on account of the fact that the
elections had been declared. Moreover, in the meeting of the Executive
Committee held on 10th March, 2003, it was resolved to constitute an
Implementation Committee to implement the Resolution of “One Bar One Vote”,
which was adopted in the General Body Meeting of 18th February, 2003.
5. The apparent differences, which have surfaced between the two groups
of Members within the SCBA, resulted in Mr. B.D. Kaushik filing Suit No.100
of 2003 in the Court of Shri Sanjeev Jain, Commercial Civil Judge, Delhi,
challenging the validity of the Resolution adopted by the Executive
Committee of the SCBA on 18th February, 2003. While seeking a decree for a
declaration that the Resolution dated 18th February, 2003, was illegal and
ineffective, the Plaintiff also prayed for a decree of perpetual injunction
to restrain the SCBA and the Office Bearers from implementing the said
Resolution dated 18th February, 2003, in the elections of the SCBA which
were proposed to be held on 25th April, 2003. A further prayer was made to
restrain the SCBA from debarring any of the Members of the SCBA who had
already paid their subscription from casting their votes in the elections
which were scheduled to be held on 25th April, 2003. A similar Suit No.101
of 2003 was filed before the same learned Judge by Shri A.K. Manchanda,
seeking the same relief as had been sought by Mr. B.D. Kaushik in his Suit
No.100 of 2003.
6. As indicated hereinbefore, applications were filed by the Plaintiffs
in both the suits under Order XXXIX Rules 1 and 2 read with Section 151 of
the Code of Civil Procedure to restrain the Defendants, who are the
Appellants in the two civil appeals, from implementing the Resolution dated
18th February, 2003, till the final disposal of the suits. By a common
order dated 5th April, 2003, the learned Judge allowed the two applications
filed for injunction and restrained the Appellants herein from implementing
the Resolution dated 18th February, 2003, amending Rule 18 of the Rules and
Regulations of the SCBA, till the final disposal of the suits.
7. The Supreme Court Bar Association through its Honorary Secretary
thereupon filed the two Civil Appeal Nos.3401 and 3402 of 2003 against the
said common order dated 5th April, 2003, passed by the learned Civil Judge,
Delhi. Both the matters were placed before the Court in the mentioning list
of 10th April, 2003, when the matters were taken on Board and leave was
granted. Pending the proceedings, the common order passed by the Trial
Court was also stayed. It was also made clear that if any elections were
held, the same would be subject to the result of the Appeals. Thereafter,
this Court appointed Mr. Ranjit Kumar, learned Senior Advocate, as Amicus
Curiae to assist the Court in the two matters. In addition, the Court also
requested the learned Attorney General to assist the Court. Accordingly,
the Appeals were taken up for hearing in the presence of the Amicus Curiae,
the learned Attorney General, Mr. Rajesh Aggarwal, who appeared on behalf
of the Appellants and Mr. Dinesh Kumar Garg, learned Advocate, who appeared
on behalf of the original plaintiffs. Since the matter involved the
learned Advocates practising in the Supreme Court, the Court also heard
senior counsel Mr. P.P. Rao, the former President of the SCBA, Mr. Pravin
Parekh, the present President of the SCBA and Mr. Sushil Kumar Jain, the
President of SCAORA. The Court also considered the Memorandum of
Association of SCBA as well as its Rules and Regulations.
8. During the hearing, one of the more important issues that surfaced
was the escalating number of Members of the SCBA to about 10,000 Members,
of whom only around 2,000 Members were said to be regularly practising in
the Supreme Court. The manner in which the membership was infiltrated was
also brought to the notice of the Court and a definite and deliberate
allegation was made that out of the 10,000 Members of the SCBA, not more
than 2,000 Members were seen to attend the Supreme Court regularly and the
remaining 8,000 Members are seen in the Supreme Court premises only on the
day of the SCBA elections. It was alleged that apart from the above, these
8,000 floating members had no interest whatsoever in the functioning of the
SCBA or the well-being of its Members, or even the functioning of the
Supreme Court of India as a Court.
9. Mr. P.P. Rao, learned Senior Counsel, and a past President of the
SCBA, with a lot of experience behind him, asserted that in view of the
overwhelming number of advocates admitted to the membership of the SCBA, it
was necessary to identify the advocates who actually practised in the
Supreme Court in keeping with the criteria adopted by this Court for
allotment of chambers in Vinay Balchandra Joshi Vs. Registrar General of
Supreme Court of India [(1998) 7 SCC 461]. Mr. Rao submitted that the said
criteria could be adopted in identifying the regular practitioners in the
Supreme Court. In the judgment dated 26th September, 2011, the Hon’ble
Judges had recorded that the learned advocates who had appeared in the
matter had urged the Court to give guidelines/directions for effective
implementation of the amended rule which projects the principle of “One Bar
One Vote”. Accepting the submissions for the need to identify the members
of the SCBA who regularly practised in the Supreme Court, and also taking
note of Mr. Rao’s suggestions, the Court directed that the criteria adopted
by this Court for allotment of chambers, as explained in Vinay Balchandra
Joshi’s case (supra), should be adopted by the SCBA in this case also. The
Court also observed that to identify regular practitioners in the Supreme
Court, it would be open to the Office Bearers of the SCBA or a small
Committee appointed by the SCBA, consisting of three senior advocates, to
collect information about those members who had contested elections in any
of the Court-annexed Bar Associations, such as, the High Court Bar
Association, District Court Bar Association, Taluka Bar Association, etc.,
from 2005 to 2010. The Committee of the SCBA to be appointed was, inter
alia, directed as follows :
“The Committee of SCBA to be appointed is hereby directed to prepare a
list of regular members practising in the Supreme Court and another
separate list of members not regularly practising in the Supreme Court
and third list of temporary members of the SCBA. The lists were
directed to be put up on the SCBA website and also on the SCBA notice
board. The committee was also directed to send a letter to each
member of the SCBA informing him about his status of membership on or
before 28th February, 2012. An aggrieved member would be entitled to
make a representation within 15 days from the date of receipt of the
letter from the SCBA to the Committee, which is to be appointed by the
SCBA.”
10. It was subsequently mentioned in the judgment that once a declaration
had been made by the Committee, it would be valid till it was revoked and
once it was revoked, the Member would forfeit his right to vote or contest
any election to any post to be conducted by the SCBA, for a period of three
years from the date of revocation. It was also categorically indicated
that the Members of the SCBA, whose names did not figure in the final list
of regular practitioners, would not be entitled to either vote at an
election of the Office Bearers of the SCBA or to contest any of the posts
for which elections would be held by the SCBA. On the suggestion of the
SCBA, the Hon’ble Judges recommended the names of Mr. K.K. Venugopal, Mr.
P.P. Rao, and Mr. Ranjit Kumar, learned Senior Advocates, practising in the
Supreme Court, for constituting the Implementation Committee, subject to
their consent and convenience.
11. As it appears from the materials disclosed before us, the three
aforesaid senior members of the Bar, whose names had been suggested, were
ultimately appointed by the SCBA to be the members of the Implementation
Committee to implement the directions given by the Hon’ble Judges in Civil
Appeal Nos.3401 and 3402 of 2003.
12. For the purpose of implementing the directions of this Court
contained in the judgment dated 26th September, 2011, the Implementation
Committee issued a Questionnaire to all the Members of the SCBA.
Furthermore, in order to identify the regular practitioners of the Court,
the Implementation Committee adopted certain criteria vide its Resolution
dated 11th January, 2012, and the Members who fulfilled the said criteria
were to be treated as regular practitioners of this Court, along with the
754 Members to whom Chambers had already been allotted or whose names were
already included in the approved Waiting List for allotment of Chambers.
The Resolution adopted by the Implementation Committee in its meeting held
on 11th January, 2012, is reproduced hereinbelow :-
“RESOLUTION
1. The Implementation Committee of the Supreme Court Bar Association,
in its meeting held on 11.01.2012 at 1:10 p.m. has resolved as
follows:
2. In view of the directions of the Supreme Court of India, in its
judgment in SCBA Vs. B.D. Kaushik, to the effect that “the
Committee of the SCBA to be appointed is hereby directed to
prepare a list of regular members practising in this Court……”, the
following categories of members of SCBA, in addition to the list
of members already approved by the Implementation Committee, are
entitled to vote at, and contest, the election of the office
bearers of the SCBA as ‘regular members practising in this Court’:
i) All Advocates on Record who have filed cases during the
calendar year 2011.
ii) All Senior Advocates designated as Senior Advocates by the
Supreme Court of India, who are resident in Delhi and
attending the Supreme Court of India.
iii) All members who subscribed to any of the cause lists of
the Supreme Court of India during the calendar year 2011.
iv) All members who have been members of the SCBA for the last
25 years, commencing 01.01.1986, and have been paying
subscription to the SCBA regularly, in each one of the 25
years.
3. The list of such members who are eligible to vote and contest
elections will be put up on the SCBA notice board for the
information of all members and will also be circulated in the
usual manner including circulation with the daily cause list.
Copies of this list will also be available at the reception desk
in Library I.
4. The persons whose names figure in this list need not reply to
the questionnaire issued earlier.
Sd/- Sd/- Sd/-
K.K. VENUGOPAL P.P. RAO RANJIT KUMAR”
13. Thereafter, pursuant to a request made by some of the Members of the
SCBA to the Implementation Committee, the said Committee by its Resolution
dated 15th January, 2012, included two other categories of Members who were
to be treated as regular Members of the SCBA, namely :-
i) All Members of the SCBA, who have attended the Supreme Court of
India on at least 90 days in the Calendar Year 2011, as
established from the database showing the use of Proximity Cards
maintained by the Registry of the Supreme Court of India; and
ii) All Live Members of the SCBA, other than temporary Members, as
on 31.12.2011.
14. While the aforesaid exercise was being undertaken by the
Implementation Committee, on 12th January, 2012, about 240 Members of the
SCBA requested the convening of a General Body Meeting of the SCBA. As the
Executive Committee of the SCBA had at its meeting held on 6th January,
2012, already decided to call such Meeting on 16th January, 2012, a
Circular in this regard was issued informing the Members that the Meeting
would be held on 16th January, 2012. It is alleged that on 16th January,
2012, apart from the regular practitioners, a large number of persons who
were not even members of the SCBA, assembled at the venue of the meeting
and obstructed Shri P.H. Parekh, the elected President of the SCBA, from
conducting the meeting.
15. In view of the aforesaid circumstances, Mrs. B. Sunita Rao, learned
Advocate and the Secretary of the Applicant Association, filed an
application for directions, setting out in detail the events of the General
Body Meeting convened on 16th January, 2012, to consider the implementation
of the recommendations of the Implementation Committee. In the said
background, the Applicant prayed that in furtherance of the judgment dated
26th September, 2011, only those Members of the SCBA, whose names would be
identified and declared by the Implementation Committee, consisting of Shri
K.K. Venugopal, Shri P.P. Rao and Shri Ranjit Kumar, Senior Advocates,
would be entitled to participate in the elections and/or General Body
Meeting of the SCBA or to vote either in the election or in the General
Body Meeting or to sign any requisition. Among the other prayers was a
prayer for a direction that the meeting held on 16th January, 2012, and the
decisions purportedly taken therein, were null and void. A direction was
also sought that the Implementation Committee comprised of Shri K.K.
Venugopal, Shri P.P. Rao and Shri Ranjit Kumar, Senior Advocates, and no
other person, should be allowed to complete the task of implementing the
judgment dated 26th September, 2011.
16. The said two applications were taken up for consideration and
extensive submissions were made, both in support of and against the reliefs
sought for therein.
17. Appearing on behalf of the Appellant Association, Mr. Ashok Desai,
learned Senior Advocate, submitted that the events which occurred on 16th
January, 2012, at the Requisition Meeting convened at the instance of some
of the members of the SCBA, were highly condemnable and left much to be
desired. Mr. Desai submitted that after Mr. P.H. Parekh, the elected
President of the SCBA had been shouted down, it was unceremoniously
declared that he had resigned and his resignation from the post of
President of the SCBA had been accepted in the meeting by a Resolution said
to have been adopted at the meeting itself. Mr. Desai submitted that seeing
the manner in which the meeting was being taken over by a certain section
of the persons present at the venue of the meeting, Mr. Parekh requested
Mr. Ram Jethmalani, learned Senior Advocate and a former President of the
SCBA, to preside over and conduct the meeting. Mr. Desai further submitted
that even Mr. Ram Jethmalani was not permitted to preside over the meeting
and Mr. Pramod Swarup, a Senior Advocate and Member of the Executive
Council, was prevailed upon to preside over the meeting, where certain
resolutions were allegedly adopted, which were not only unlawful, but even
contumacious.
18. Mr. Desai then referred to the letter dated 17th January, 2012,
addressed by one Mr. Arun Kumar, Advocate, to Hon’ble the Chief Justice of
India enclosing copies of the Resolution purportedly passed by the Members
of the SCBA on 16th January, 2012, in its Special General Meeting. The said
Resolution purported to have been adopted on 16th January, 2012, is
extracted hereinbelow :-
“RESOLUTION
Special General Body Meeting held on 16.01.2012 at 4.15 PM at Supreme
Court Lawns passed the following Resolutions through Voice Vote and
Show of Hands :
The Special General Body of the SCBA, presided over by Mr. Ram
Jethmalani, Sr. Advocate (who was invited to preside over the meeting
by President Mr. P.H. Parekh), has resolved that :
1) Under the Rule making powers of SCBA (General Body) it is
resolved that the judgment of Hon’ble Supreme Court dated
26.9.2011 passed in the case of HCBA Vs. B.D. Kaushik should not
be given effect to.
2) The Implementation Committee proposed by the Hon’ble Supreme
Court vide its judgment dated 26th September, 2011 passed in the
case of SCBA Vs. B.D. Kaushik has itself ignored the judgment
and is left with no authority to issue any list of the regular
practicing Members of SCBA as it has acted in a manner which is
detrimental to the interest of Members of SCBA and, therefore,
the Implementation Committee stands dissolved.
3) The Members of Implementation Committee, namely, (i) Shri P.P.
Rao, Sr. Advocate, (ii) Shri K.K. Venugopal, Sr. Advocate, and
(iii) Shri Ranjit Kumar, Sr. Advocate, are forthwith expelled
from the Primary Membership of the SCBA.
4) All the active Members of SCBA, without any classification, will
be eligible to vote in the annual elections, subject to their
clearing the annual subscription/ dues and filing of the
Declaration Form.
5) Mr. P.H. Parekh, President of SCBA has publicly announced his
resignation from his post with immediate effect. His resignation
is forthwith accepted by the General Body.
The Meeting ended with thanks to the Chair.
Resolution signed by more than 400 SCBA Members present during
the Special General Body Meeting.”
19. Mr. Desai also drew our attention to the minutes of the meeting of
the Executive Committee purported to have been held on 18th January, 2012,
chaired by Mr. Pramod Swarup, Senior Executive Member, who had purportedly
chaired the General Body Meeting held on 16th January, 2012. Mr. Desai
pointed out from the minutes that the same resolution which had been
adopted at the General Body Meeting of 16th January, 2012, was also adopted
at the purported meeting of the Executive Committee held on 18th January,
2012.
20. On the resolutions said to have been adopted both at the Special
General Body Meeting and the meeting of the Executive Committee of the SCBA
allegedly held thereafter, Mr. Desai submitted that the said resolutions
are per se in disregard of the judgment of this Court in SCBA Vs. B.D.
Kaushik and are, therefore, null and void. Mr. Desai also pointed out that
the resolution starts by recording that “The Special General Meeting of the
SCBA was presided over by Mr. Ram Jethmalani, Sr. Advocate”, but Mr. Ram
Jethmalani, who was present in the Court stated that he did not preside
over the meeting and he had also expressed his view that everybody should
speak in a decorous manner. Mr. Parekh, the President and all concerned
parties should be given a full hearing and all grievances should be
ventilated in accordance with law. Mr. Desai submitted that the statement
made by Mr. Ram Jethmalani in Court had not been contradicted by anyone.
21. Mr. Desai also submitted that the Special General Body Meeting of the
SCBA had been convened on 16th January, 2012, only for the purpose of
considering the implication of the judgment dated 26th September, 2011,
passed in Civil Appeal Nos.3401 and 3402 of 2003, and the agenda of the
said meeting clearly reflected the same. Mr. Desai submitted that there
was no suggestion that the meeting was held to consider :
a) that the validity of the aforesaid judgment should not be given
effect to;
b) that the Implementation Committee should be dissolved;
c) that the Members of the Implementation Committee, namely, Mr.
K.K. Venugopal, Mr. P.P. Rao and Mr. Ranjit Kumar, learned
Senior Advocates should be expelled from primary membership of
the Association;
d) that the members who were not eligible should be entitled to
vote, notwithstanding the judgment delivered in B.D. Kaushik’s
case (supra); or
e) that anybody’s resignation should be accepted.
22. Referring to Section 173(2) of the Companies Act, 1956, Mr. Desai
contended that as had been repeatedly held by this Court, at any
Extraordinary General Meeting, along with a notice of the meeting, a
statement setting out all material facts in respect of each item of
business to be transacted at the meeting, had to be annexed. In this
regard, Mr. Desai referred to the decision of this Court in Claude-Lila
Parulekar (Smt.) Vs. Sakal Papers (P) Ltd. & Ors. [(2005) 11 SCC 73], in
which it was categorically held that in respect of special business an
explanatory statement had to be annexed to the notice of the Board Meeting
and in the absence thereof, any decision taken in connection with such
special business would be invalid. A similar view had earlier been
expressed in Life Insurance Corporation of India Vs. Escorts Ltd. & Ors.
[(1986) 1 SCC 264].
23. Mr. Desai submitted that even Mr. Dinesh Dwivedi and Mr. S.P. Singh,
learned Senior Advocates, had, at the very first instance, submitted that
Resolution Nos.1 and 4 relating to the decision not to give effect to the
judgment of this Court dated 26th September, 2011, and that all active
members of SCBA without any classification would be eligible to vote in the
annual elections, could not be defended and submitted that the same be
disregarded and treated as withdrawn. Mr. Desai urged that even the
decision to expel the three senior members of the SCBA, who had been
appointed as the members of the Implementation Committee, was not only
irregular, but in complete violation of the Rules relating to expulsion of
members of the SCBA and in breach of the principles of natural justice. Mr.
Desai also urged that when the aforesaid resolution was sent to the Vice-
President of the SCBA on 17th January, 2012, the majority of the members of
the Executive Committee by a circular resolution of even date requested him
to withdraw the same and on such request being communicated to Mr. Parekh,
he withdrew his resignation on 18th January, 2012. The meeting of the
Executive Committee on 18th January, 2012, was, therefore, wholly
unauthorized and all the members of the Executive Committee were so
informed by way of SMS and E-mails dated 18th January, 2012. Mr. Desai
submitted that the Minutes of the meeting held on 18th January, 2012, were
unanimously recalled by the Executive Committee on 19th January, 2012, in
their entirety. It was also pointed out that out of the 21 members, 18
members were present in that meeting of the Executive Committee held on
19th January, 2012.
24. Mr. Desai further submitted that Rule 35 of the SCBA Rules and
Regulations provided for the removal of a member from the SCBA on receipt
of a written complaint. Rule 35 provides the procedure for dealing with
such complaints and categorically indicates that only if the Committee was
satisfied that there was a prima facie case against a member complained
against, it would direct the complaint, together with the report of the
Committee or Sub-Committee, to be placed before a General Meeting of the
Association and afford the member concerned a reasonable opportunity of
being heard in person.
25. Mr. Desai submitted that certain subsequent developments are also
required to be taken note of and, in particular, a requisition notice dated
23rd March, 2012, signed by 2/3rd of the Members of the SCBA, many of whom
were signatories to the General Body Meeting resolution dated 16th January,
2012, requiring the Executive Committee to initiate the process of election
and to publish the list of voters on or before 17th April, 2012, failing
which the Members would call a General Body Meeting and pass a resolution
of “No Confidence” against the Executive Committee. Mr. Desai submitted
that the requisition was considered by the Executive Committee of the SCBA
and in its meeting of 11th April, 2012, it was resolved that since the
matter had been heard by this Court and judgment had been reserved on 4th
April, 2012, the requisition notice dated 23rd March, 2012, should be
placed before this Court with an application seeking proper directions.
26. Mr. Desai submitted that yet another requisition notice dated 18th
April, 2012, was received on 20th April, 2012, purported to have been
signed by 252 advocates, calling upon the members of the Executive
Committee to convene a General Body Meeting on 25th April, 2012, failing
which the requisitionists would hold a General Body Meeting on that day
and pass a resolution of ‘No Confidence’ and also fix the date of holding
of the elections of the SCBA in the month of May, 2012.
27. Mr. Desai submitted that the manner in which the Special General
Meeting was held on 16th January, 2012, was highly contumacious and,
therefore, void, and was liable to be declared as such. Furthermore, the
subsequent notices received for holding Requisition Meetings containing a
demand for finalization of the Voters’ List, was completely contrary to the
directions given in the judgment dated 26th September, 2011, particularly,
when an illegal resolution was purportedly adopted expelling the three
members of the Implementation Committee from the primary membership of the
SCBA.
28. Mr. Harish N. Salve, learned Senior Advocate, who appeared for the
Supreme Court Advocate-on-Record Association, submitted that as far as the
maintainability of Interlocutory Application No.1 of 2012 is concerned,
there could not be any doubt that the directions issued under Article 142
of the Constitution are binding upon all, unless they are recalled or set
aside in a manner known to law. Mr. Salve submitted that any attempt to
defy the directions would empower this Court with jurisdiction to take
appropriate action for compelling compliance, including by way of contempt.
Mr. Salve submitted that the application had been made in furtherance of
the judgment dated 26th September, 2011, and the underlying object of the
application was to uphold the majesty of this Court and to ensure that the
directions were duly implemented in the spirit in which they were given.
Mr. Salve submitted that since the resolutions said to have been adopted by
the General Body of the Association on 16th January, 2012, were in defiance
of the directions issued by this Court, this Court would always have
jurisdiction to deal with such violation or to give further directions for
effective implementation thereof.
29. Mr. Salve submitted that the Respondents had themselves accepted that
Resolution No.1 was in defiance of the judgment of this Court. As a result,
the other Resolutions were a fall-out of Resolution No.1 and could not,
therefore, be accepted. Referring to Resolution No.5 relating to Mr. P.H.
Parekh’s resignation, Mr. Salve submitted that the same was not part of the
agenda for the meeting held on 16th January, 2012. Mr. Salve submitted that
the minutes of the meetings held on 16th and 18th January, 2012, lacked
credence and acceptability on account of the circumstances in which they
were adopted.
30. On the question of whether the Implementation Committee acted
contrary to the judgment dated 26th September, 2011, Mr. Salve submitted
that the Implementation Committee acted in keeping with the guidelines in
Vinay Balchandra Joshi’s case (supra) as was directed by this Court and the
object of the directions given in the judgment dated 26th September, 2011,
was to make a list of those who regularly practise in the Supreme Court, as
they alone would have voting rights in the matter of elections of the
Office Bearers of the Supreme Court Bar Association in terms of the
judgment. Such task had to be performed by the Committee within a given
time and whatever steps that were taken by the Implementation Committee
were in the light of such directions.
31. Mr. Salve submitted that given the manner in which the purported
Resolutions were adopted in the meetings said to have been held on 16th and
18th January, 2012, the same were liable to be declared as non est in law.
Mr. Salve further submitted that a direction should be given to the
Implementation Committee to continue with the work of finalizing the
Voters’ List, as per the directions given in the judgment dated 26th
September, 2012, on a war footing and to publish the Voters’ List as early
as possible, so that the subsequent steps could be taken for conducting the
elections of the Office Bearers of SCBA expeditiously.
32. Appearing on behalf of some of the members of the SCBA, Mr. Dinesh
Dwivedi, learned Senior Advocate, firstly submitted that Interlocutory
Application No.1 filed in Civil Appeal No.3401 of 2003, was not
maintainable, either under Order 47 of the Supreme Court Rules, 1966, or
under Order 13 Rule 3 thereof. Furthermore, since the judgment dated 26th
September, 2011, was not under challenge, even the provisions of Order 40
of the Supreme Court Rules were not applicable to the application. Mr.
Dwivedi, however, accepted the fact that Resolution Nos.1 and 4, which,
according to him, had been adopted at the Special General Body Meeting of
the SCBA held on 16th January, 2012, could not be supported and he was not,
therefore, pressing the same.
33. Mr. Dwivedi urged that once the judgment had been delivered, the
Court became functus officio and any further proceeding in relation to the
disposed of matter could be only by way of the provisions for review, both
under the Code of Civil Procedure, as also under Order 47 of the Supreme
Court Rules, 1966. Reiterating his earlier submissions, Mr. Dinesh Dwivedi
submitted that the judgment dated 26th September, 2011, had attained
finality and could not be modified or altered in any manner. In support of
his aforesaid submissions, Mr. Dwivedi firstly referred to and relied upon
the decision of this Court in Durgesh Sharma Vs. Jayshree [(2008) 9 SCC
648], wherein, as a general principle, it was held that the inherent powers
vested in a Court, could not be invoked when there were specific provisions
in law in that regard. The decisions in A.R. Antulay Vs. R.S. Nayak & Anr.
[(1988) 2 SCC 602]; Union Carbide Corporation Vs. Union of India [(1991) 4
SCC 584] and Supreme Court Bar Association Vs. Union of India & Anr.
[(1998) 4 SCC 409], were also referred to, wherein, it had, inter alia,
been held that Article 142 of the Constitution empowering the Supreme Court
to pass a decree or to make such order, as is necessary for doing complete
justice in any case or matter pending before it, cannot be invoked as a
matter of course. It was urged that a lis would have to be pending before
the Supreme Court in order to invoke jurisdiction under Article 142 of the
Constitution. Mr. Dwivedi urged that in the present case, since the
appeals themselves had been disposed of, there was no pending lis which
would allow the invocation of the extraordinary powers vested in the
Supreme Court under Article 142 of the Constitution.
34. Mr. Dwivedi submitted that in an application of this nature, the
extraordinary powers vested in the Supreme Court under Article 142 of the
Constitution could not be invoked to allow the prayers made and the same
being entirely misconceived, were liable to be rejected.
35. Representing the Supreme Court Advocates Association (Non-AOR), Mr.
S.P. Singh, learned Senior Advocate, firstly submitted that I.A. Nos.1 and
2 of 2012, filed on behalf of the SCAORA, were not maintainable, since they
neither fell within the ambit of a Review Petition under Article 137 of the
Constitution of India or Order XL of the Supreme Court Rules, 1966. It was
also urged that SCAORA was not a necessary party and the application filed
by it was in gross abuse of the process of the Court. Mr. Singh submitted
that none of the rights of any of the members of SCAORA have been affected
by the Resolutions adopted by the Governing Body of the SCBA on 16th
January, 2012 and, if at all any clarification was required, the members of
the Implementation Committee could have come and obtained directions from
the Court.
36. Mr. Singh submitted that the main intention of the requisition
meeting was to bring to the notice of the Executive Committee of the SCBA
various irregularities committed by the Implementation Committee which
needed to be rectified. It was submitted that what had transpired at the
meeting of the General Body of SCBA on 16th January, 2012, was a reflection
of the mood of the members of the SCBA, who were of the view that the
Executive Committee of the SCBA was trying to stall the elections which
were required to be conducted within the month of May, 2012. Mr. Singh
reiterated the submissions made by Mr. Dwivedi and submitted that since the
General Body of the SCBA had accepted the resignation of Mr. Parekh given
voluntarily, the subsequent meeting of the Executive Committee held in his
absence could not be faulted, since even the Vice-President of the
Association refused to preside over the meeting.
37. Mr. Singh also urged that the Implementation Committee had deviated
from the directions given in the judgment passed by this Court on 26th
September, 2011, and the questionnaire issued by it contained various
anomalies and excluded even Senior Advocates practising in this Court but
living outside Delhi, such as in Noida and Gurgaon, from being eligible to
vote.
38. Apart from the above, the names of various Advocates and Advocates-on-
Record had been wrongly shown in the list which was also bound to create
confusion. For example, the name of Shri M.C. Bhandare, the present
Governor of Orissa and the name of a sitting Judge of the Madras High
Court, have been included in the list, which clearly went to show that the
Implementation Committee had not applied its mind to the preparation of the
Voters’ List. Mr. Singh also urged that the consideration of valid members
who were eligible to vote was to be considered by the SCBA which meant the
General Body and not the Executive Committee alone. Accordingly, even the
appointment of Mr. K.K. Venugopal, Mr. P.P. Rao and Mr. Ranjit Kumar,
Senior Advocates, as members of the Implementation Committee, was irregular
and unlawful and any decision taken by the Committee must be held to be
void.
39. Mr. Singh submitted that various mal-practices were resorted to by
the persons who have been at the helm of affairs of SCBA, by throwing
lavish parties and using other means to attract votes at the time of
election to the Executive Committee of the Association. Mr. Singh
submitted that far from protecting the interests of the members of the Bar,
some of the present members of the Executive Committee were more concerned
about their own aggrandizement to the detriment of the interests of the
members of the Bar. Mr. Singh submitted that the Resolutions adopted by the
General Body Meeting of the SCBA at the meeting held on 16th January, 2012
and the subsequent meeting of the Executive Committee held on 18th January,
2012, had been legally adopted and could not be interfered with, especially
in a Petition which was not maintainable.
40. Dr. Rajiv Dhawan, learned Senior Advocate, briefly appeared for some
of the members and urged that having regard to the questionnaire published
by the members of the Implementation Committee, some clarification was
necessary as to the voting rights of the members of the Association.
41. Apart from Dr. Dhawan, among others who addressed the Court, were Mr.
Ashok Arora, learned Advocate and former Honorary Secretary of the SCBA,
Mr. Pramod Swarup, Senior Executive Member of the SCBA, Mr. Dinesh Kumar
Garg, former President of SCAORA. Each of them spoke, either in support of
the submissions made by Mr. Dinesh Dwivedi and Mr. S.P. Singh or in favour
of those made by Mr. Harish Salve and Mr. Ashok Desai.
42. Since Mr. Ranjit Kumar, learned Senior Advocate, besides being a
member of the Implementation Committee, was also appointed as amicus curiae
by this Court in the matter, we requested him to file written submissions
in the matter. In a brief submission, Mr. Ranjit Kumar submitted that
despite all the apprehensions expressed by Mr. Dinesh Dwivedi and Mr. S.P.
Singh, that the rights of the practising lawyers in the Supreme Court to
form an Association had been curtailed or that the provisions of the
Societies Registration Act were being violated by the Implementation
Committee, none of the aforesaid rights of the members of the SCBA had been
curtailed in any manner. Mr. Ranjit Kumar submitted that all that the
judgment dated 26th September, 2011 in B.D. Kaushik’s case had done was to
regulate the right to vote and for that purpose the Implementation
Committee was appointed to oversee the same. The membership of the members
of SCBA was not affected in any way on account of such regulations.
43. From the facts as narrated hereinabove, one thing is clear that in
view of the order of interim injunction passed in the two suits filed by
Mr. B.K. Kaushik and Mr. A.K. Manchanda restraining the SCBA from
implementing its Resolution dated 18th February, 2003, amending Rule 18 of
the Rules and Regulations, till the final disposal of both the suits, the
two appeals were filed by SCBA through its Honorary Secretary, Mr. Ashok
Arora, and Ms. Sunita B. Rao as Coordinator of the Implementation
Committee. When the two appeals were taken up for hearing, one of the
major issues which was canvassed was that in connection with the holding of
elections to the Executive Committee of the SCBA, one of the methods
resorted to for the purpose of ensuring a candidate’s success in the
election was to enroll a large number of members to vote for a particular
candidate. The same had given rise to a lot of discussion and deliberation
which ultimately resulted in the amendment of Rule 18 regarding the
eligibility of such members to contest and vote at any election. It was
also proposed that a member who exercised his right to vote in any High
Court or District Court, Advocates’ Association or Bar Association, would
not be eligible to contest for any post of the SCBA or to cast his vote at
the elections. It was also proposed that every member before casting his
vote would, in a prescribed form, give a declaration that he had not voted
in any other election of advocates in the High Court/District Court Bar
Association. Any false declaration would invite automatic suspension of the
member from the membership of the SCBA for a period of three years. The
requisition dated 10th January, 2003, was placed for consideration at a
Special General Body meeting of the SCBA on 18th February, 2003, and the
amendment was adopted by a majority of 85% of the members present and
voting. Thereafter, at a further meeting of the Executive Committee
convened on 3rd March, 2003, it was resolved to hold election of the Office
Bearers/Executive Members for the next session and for the constitution of
the Election Committee. It was further resolved to hold elections on 25th
April, 2003. Despite an attempt by some of the members to stall the
proceedings, in the meeting of 10th March, 2003, it was resolved to
constitute an Implementation Committee to implement the Resolution on “One
Bar One Vote” which had been adopted at the General Body Meeting on 18th
February, 2003.
44. As indicated hereinbefore, the challenge to the Resolution dated 18th
February, 2003, in the two suits filed by Mr. B.K. Kaushik and Mr. A.K.
Manchanda resulted in the appeals being preferred in this Court by the SCBA
through its Honorary Secretary, Mr. Ashok Arora.
45. The matter was, thereafter, considered in detail by the Hon’ble
Judges who took up the appeals for hearing and directed that it was
necessary to identify the regular practitioners for the purpose of
establishing the eligibility of the members who would be entitled to vote
in the elections and, accordingly, the Hon’ble Judges directed that for the
said purpose the best course would be to adopt the methodology set out in
Vinay Balchandra Joshi’s case (supra), and, thereafter, it would be open to
the Office Bearers of the SCBA or a Small Committee, which may be appointed
by the SCBA, consisting of three Senior Advocates, to collect information
and to prepare a list of regular members practising in this Court and
another separate list of members not regularly practising in this Court and
a third list of temporary members of the SCBA. After placing the list on
the SCBA website and inviting objections, the Committee could then take a
final decision which would be final and binding on the members of the SCBA,
and, thereafter the final list of regular practitioners of the Supreme
Court would be displayed by the SCBA.
46. Once such directions had been given in the judgment disposing of the
two civil appeals filed by the SCBA through Mr. Ashok Arora, the members of
the SCBA were bound by the directions contained therein and the said
directions had to be obeyed, however aggrieved a member of the SCBA might
be. The agenda for the meeting of the General Body which was convened on
16th January, 2012, to consider the implications of the judgment in B.D.
Kaushik’s case, did not permit the members to consider any other agenda for
which notice had not been given, whatever may have been the mood of the
members present at the meeting. If any member felt aggrieved by the
judgment delivered on 26th September, 2011, he could have taken recourse to
other lawful means available to him under the law. The Resolutions adopted
at the General Body Meeting on 16th January, 2012, and, thereafter, on 18th
January, 2012, were not only an affront to the majesty and dignity of the
Supreme Court, but were outright contumacious. It is highly regrettable
that the members of the Supreme Court Bar Association. which is the leading
Bar Association in the country and whose members are expected to provide
leadership and example to other Bar Associations of the country and to act
in aid of the judgments of the Courts, should have resorted to a Resolution
not to abide by the judgment and to even act in defiance thereof by
resolving that all members of the Bar Association would be entitled to vote
in the elections. Although, Mr. Dinesh Dwivedi did concede that the second
and fourth Resolutions adopted at the meeting of 16th January, 2012, should
not be taken into consideration, the attempt to justify the conduct of the
members of the SCBA at its meeting held on 16th January, 2012, cannot be
supported. Mr. Ram Jethmalani, learned Senior Advocate, who was present
at the meeting submitted in no uncertain terms that he had not chaired the
General Body Meeting convened on 16th January, 2012, and was not a party to
the Resolutions which had been adopted at such meeting. On the other hand,
Mr. Jethmalani submitted that he had cautioned the Members not to act in an
unruly manner and to allow the proceedings to be conducted in a lawful and
free manner and to allow each member, who had a grievance, including Mr.
Parekh, to express his views and then to adopt any Resolution that the
members felt was needed to be adopted in the light of the agenda of the
meeting.
47. We cannot help but notice that although the General Body Meeting had
been convened to consider the implications of the judgment dated 26th
September, 2011, what transpired later is a complete departure therefrom.
The members of the SCBA present at the meeting were bent upon their own
agendas, which were directed against the three senior members of the Bar,
who had been appointed as members of the Implementation Committee, together
with the President. In our view, this was not a method which should have
been resorted to for the said purpose. The meeting degenerated into a
chaotic situation in which various things were done, which were not in
accordance with the provisions of the Rules and Regulations of the SCBA,
and were against the normal rules of decorum and cannot be supported,
despite attempts made to do so by Mr. Dwivedi and Mr. Singh. The manner in
which the three members of the Implementation Committee whose names had
been referred to by the Hon’ble Judges in the judgment dated 26th
September, 2011, were treated, speaks volumes of the manner in which the
Hon’ble Members of the SCBA conducted themselves. If any member is
aggrieved by the actions of any other member and seeks his removal from the
membership of the SCBA, the rules provide the manner in which the same is
to be done and certainly not arbitrarily. It is no doubt true, that some of
the members were aggrieved by the methodology adopted by the Implementation
Committee for preparing the list of eligible voters for the election, but
the same was done pursuant to the directions given by this Court in its
judgment dated 26th September, 2011. If the members were aggrieved by the
questionnaire which was promulgated, nothing prevented them from
approaching this Court and asking for modification of the contents thereof.
We are, therefore, unable to accept the manner in which the purported
General Body Meeting of the SCBA was conducted on 16th January, 2012, and
the Resolutions adopted therein, some of which the members themselves were
unwilling to support, as well as the same resolutions purportedly adopted
by the Executive Committee of the SCBA on 18th January, 2012.
48. At this stage, it will also be necessary for us to deal with the
question of maintainability of I.A. Nos.1 and 2 raised both by Mr. Dinesh
Dwivedi and by Mr. S.P. Singh. Their main contention is that once the
judgment has been delivered by the Court, the Court becomes functus officio
and in the absence of any pending lis, this Court could not have
entertained the said two applications.
49. We are unable to accept the said submission made by Mr. Dwivedi and
Mr. Singh, since the need to implement the directions contained in the
judgment does not cease upon the judgment being delivered. In order to
enforce its orders and directions, the Supreme Court can take recourse to
the powers vested in it under Article 142 of the Constitution to do
complete justice to the parties. In such cases, the lis does not cease and
the expression “matter pending before it” mentioned in Article 142 of the
Constitution, would include matters in which orders of the Supreme Court
were yet to be implemented, when particularly such orders were necessary
for doing complete justice to the parties to the proceedings. To take any
other view would result in rendering the orders of the Supreme Court
meaningless. In this regard, reference may be made to the Constitution
Bench decision of this Court in Supreme Court Bar Association Vs. Union of
India & Anr. [(1998) 4 SCC 409], referred to hereinbefore, wherein the
question before the Bench was the power of the Supreme Court to punish for
contempt of itself under Article 129 read with Article 142 of the
Constitution. While considering the same and holding that the power vested
in the Supreme Court under Article 142 should not be used to supplant
substantive law applicable to a case, being curative in nature, their
Lordships also observed that the plenary powers of this Court under Article
142 of the Constitution are inherent in the Court and are complementary to
those powers which are specifically conferred on the Court by various
statutes, though are not limited by those statutes. This Court held that
these powers also exist independent of the statutes with a view to doing
complete justice between the parties. This power exists as a separate and
independent basis of jurisdiction, apart from the statutes, and stands upon
the foundation for preventing injustice in the process of litigation and to
do complete justice between the parties. This Court further observed that
this plenary jurisdiction is thus the residual source of power which this
Court may draw upon as necessary, whenever it is just and equitable to do
so and, in particular, to ensure the observance of the due process of law,
to do complete justice between the parties, while administering justice
according to law. In the event the parties do not or refuse to abide by its
decision, the Supreme Court would have no option, but to take recourse to
the provisions of Article 129 of the Constitution or under the provisions
of the Contempt of Courts Act, 1971.
50. When a judgment has been delivered by this Court, it is the
obligation of all citizens to act in aid thereof and to obey the decision
and the directions contained therein, in view of the provisions of Article
141 of the Constitution, until and unless the same are modified or
recalled. In the said background, each of the Resolutions said to have
been adopted at the purported meeting of the General Body of the SCBA on
16th January, 2012, do not muster scrutiny and must be held to be in
violation of Article 141 of the Constitution and cannot, therefore, be
countenanced. Apart from the fact that the agenda for the meeting did not
include the matters in respect whereof the resolutions have been adopted,
the resolutions themselves, being in flagrant violation of the judgment
delivered by this Court on 26th September, 2011, have to be set aside. It
is the duty of all the members of the SCBA to abide by and to give effect
to the judgments of this Court and not to act in derogation thereof. The
purported resolution expelling the three senior members of the
Implementation Committee, appointed under the directions of this Court,
from the primary membership of the Association, speaks volumes as to the
illegality thereof and the deliberate and willful attempt on the part of
the members, who are alleged to have passed such a resolution to over-reach
the orders of this Court. The same is sufficient ground to set aside the
resolutions purportedly adopted at the meeting held on 16th January, 2012,
notwithstanding the technical arguments advanced by Mr. Dwivedi and Mr.
Singh.
51. Since the members of the Bar are involved, we do not wish to add
anything further, except to express the hope that in future this kind of
unruly and undignified behaviour will not be repeated. Even if the members
of the SCBA have any grievance against the judgment delivered on 26th
September, 2011, they have to obey the same in the scheme of judicial
discipline.
52. Accordingly, I.A. No.1 of 2012 in Civil Appeal Nos.3401 and 3402 of
2003 is allowed. All the Resolutions purported to have been adopted in the
General Body Meeting of the SCBA held on 16th January, 2012, and the
meeting of the Executive Committee are held to be invalid and are set
aside. Consequently, the composition of the Office Bearers of the SCBA
prior to the adoption of the alleged resolutions of 16th January, 2012,
stand restored. The alleged resolution expelling the three senior members
of the SCBA constituting the Implementation Committee appointed under the
directions of this Court, is set aside. The Implementation Committee shall,
therefore, continue with the work assigned to it for identification of the
members of the SCBA eligible to vote in the elections in terms of the
directions given in the judgment dated 26th September, 2011. However, if
any member of the SCBA is aggrieved by the methodology adopted by the
Implementation Committee for identification of such eligible members,
he/she may make a representation to the Executive Committee of the SCBA
within a fortnight from date and if such a representation or
representations is or are received within the specified period, the
Executive Committee of the SCBA will look into such objections and take a
decision thereupon and, if necessary, to apply to the Court, before further
steps are taken by the Implementation Committee in regard to
identification of members eligible to vote at the elections. For a period
of two weeks, the Implementation Committee shall not take any further steps
in the matter, and shall, thereafter, resume the work of identification of
members of the SCBA eligible to vote on the instructions that may be given
by the Executive Committee of the SCBA in this regard. The process of
identifying the members of the SCBA eligible to vote in the elections for
selection of the members of the Executive Committee must be completed
within four weeks from the date of individual objections received, if any,
are decided finally. Thereafter, the SCBA shall set the dates for the
election schedule, including publication of the list of members of the SCBA
eligible to vote in the elections, so that the elections can be held once
the final list is approved and published.
53. We expect all the members of the SCBA to cooperate with the
Implementation Committee and the Executive Committee of the SCBA to
complete the publication of the list of members of the SCBA eligible to
vote in the elections within the time specified, and, thereafter, to
cooperate in the conducting of the elections for the election of the Office
Bearers of the SCBA.
54. I.A. No.1 of 2012 in Civil Appeal Nos.3401 and 3402 of 2003 is thus
disposed of. Let copies of this order be made available to the President
of the SCBA and the members of the Implementation Committee for immediate
compliance. A copy of the operative portion of this judgment may also be
put up on the web-site and Notice Board of the SCBA for general information
of all of its members. All connected IAs are also disposed of by this
order.
55. Having regard to the observations made hereinabove, the Contempt
Petition No.45 of 2012, filed in the civil appeals by Dr. Parvin Kumar
Mutreja, Advocate, and two others, is also disposed of by virtue of this
order.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(SURINDER SINGH NIJJAR)
New Delhi
Date: 07.05.2012
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