TNSTC IS THE GOVT. COMPANY - LAND CAN BE ACQUIRED FOR IT

                                                               REPORTABLE










                   IN THE SUPREME COURT OF INDIA






                    CIVIL APPELLATE JURISDICTION






                     CIVIL  APPEAL NO. 137 OF 2003










Ramji Veerji Patel & Ors.                                        .... Appellants




                                      Versus




Revenue Divisional Officer & Ors.                                  ....Respondents








                                   JUDGMENT








R.M. Lodha, J. 










              The   appellants   were   unsuccessful   in   challenging   the 




acquisition   of   their   land   before   the   Single   Judge   as   well   as   the 




Division   Bench   of   the   Madras   High   Court.   They   are   in   appeal,   by  




special leave. 








2.            On   the   requisition   of   Cholan   Roadways   Corporation 




Limited,   Kumbakonam   (for   short,   `the   Corporation')   for   making 




available   land   for   expansion   of   their   depot,   particularly   for   a 


                                                                                     1



workshop, at Chidambaram, the State Government of Tamil Nadu (for 




short,   `the   Government')   issued   a   notification   under   Section   4(1)   of 




the   Land   Acquisition   Act,   1894   (for   short,   `the   Act')   which   was  




published   in   the   Gazette   on   March   3,   1989   notifying   for   general  




information   that   the   land   mentioned   therein,   namely,   land 




admeasuring   1.45   acres   comprised   in   T.S.   No.   14,   classified   as 




government wet  land in Chidambaram Municipal Town, South Arcot 




District   was   needed   for     the   above   public   purpose.   The   notification  




under   Section   4(1)   was   also   published   in   the   two   newspapers   on 




November   18,   1988   and   in   the   locality   on   March   27,   1989.   The 




appellants   filed   objections   to   the   acquisition   before   the   Revenue  




Divisional   Officer   (for   short,   `RDO'),   Chidambaram.   The   diverse 




objections   to   the   acquisition   were   raised;   one   of   such   objections  




being   that   the   other   lands   behind   the   existing   depot   of   the 




Corporation   were   available   and   could   be   used   for   the   purpose   for 




which   their   land   was   sought   to   be   acquired.   They   stated   that   their 




family was dependant upon the income from the saw mill existing on 




the land and by compulsory acquisition of their land, they would  be  




deprived of the sole means of livelihood.










                                                                                     2



3.             The RDO considered the objections put forth on behalf of 




the   appellants   and   submitted   his   report   to   the   Government   on 




conclusion of the enquiry under Section 5-A of the Act.








4.             It   appears   that   when   the   report   of   the   RDO   was   under 




consideration,   the   appellants   sent   a   representation   to   the 




Government   bringing   to   its   notice   that   the   land   belonging   to   Tamil  




Nadu Evengelical Lutheran Church (`TELC') just behind the existing 




depot   has   been   advertised   for   sale   and,   therefore,   instead   of 




resorting   to   the   compulsory   acquisition   of   the   appellants'   land,   the 




land of TELC may be acquired.








5.             The   Government   was   not   persuaded   by   the   appellants' 




objections and the declaration under Section 6 of the Act was issued 




which   was   published   in   the   Gazette   on   March   21,   1990.   The 




publication of the Section 6 declaration was  made by other modes as  




well.








6.             The   appellants   challenged   the   notification   under   Section 




4(1)   and   declaration   under   Section   6   of   the   Act   in   the   writ   petition  




before   the   Madras   High   Court.   In   opposition   to   the   writ   petition, 




counter affidavit was filed on behalf of the Government. The learned 










                                                                                          3



Single Judge of the High Court dismissed the writ petition by his order 




dated November 18, 1998.








7.              Against   the   order   of   the   Single   Judge,   the   appellants 




preferred   intra-court   appeal   which   has   been   dismissed   by   the  




impugned order on July 25, 2001.








8.              Mr.   Pallav   Shishodia,   learned   senior   counsel   for   the 




appellants raised two-fold contention. His first contention was that the 




appellants' objections about the availability of land belonging to TELC  




which   is   situated   behind   the   existing   depot   of   the   Corporation   and 




was available for sale were not rationally considered by the RDO and 




the   Government.   He   submitted   that   the   livelihood   of   about   40 




members   of   the   family   was   directly   affected   by   the   compulsory 




acquisition of their land and, therefore, the objections ought to have  




been   considered   in   a   reasonable   manner   more   so   since   the   public 




purpose   for   which   the   appellants'   land   was   sought   to   be   acquired  




could have been easily met by the acquisition of the TELC's land. In  




this   regard,   he   referred   to   three   decisions   of   this   Court,   namely,   (i)  




Delhi Administration v. Gurdip Singh Uban and Others1, (ii) Hindustan  




Petroleum Corpn. Ltd.  v.  Darius Shapur Chenai and others2  and (iii) 










1 (2000) 7 SCC 296


2  (2005) 7 SCC 627


                                                                                          4



Radhy   Shyam   (Dead)   Through   LRs.   and   others  v.  State   of   Uttar  




Pradesh and Others3.








9.               The second contention of the learned senior counsel for 




the appellants was that the acquisition of the appellants' land by the  




Government   was   for   the   purposes   of   the   Corporation   and   the 




Corporation   being   a   `company'   for   the   purposes   of   the   Act,   the  




procedure   contemplated   in   Part   VII   of   the   Act   was   required   to   be 




mandatorily   followed   and   since   the   said   procedure   has   not   been 




followed,   the   acquisition   is   bad   in   law.   In   this   regard,   Mr.   Pallav 




Shishodia   placed   reliance   upon   a  decision   of   this   Court   in   State   of  




Punjab and Others v. Raja Ram and others4.








10.              On the other hand, Mr. B. Balaji, learned counsel for the 




State   of   Tamil  Nadu  supported  the  view  taken  by  the   Single  Judge  




and   the   Division   Bench   of   the   High   Court.   He   submitted   that   the  




proceedings for acquisition of the appellants' land have been initiated 




and   concluded   in   accordance   with   the   procedure   prescribed   in   the 




Act. There is no illegality in the acquisition of the appellants' land. He  




referred   to   the   counter   affidavit   filed   on   behalf   of   the   Government 




before the High Court in opposition to the writ petition.










3  (2011) 5 SCC 553


4  (1981) 2 SCC 66


                                                                                      5



11.           The   Act   was  enacted  in   1894   for   the   acquisition   of   land 




needed   for   public   purposes   and   for   companies   and   for   determining 




the amount of compensation to be made on such acquisition. The Act 




has undergone some amendments in 1919, 1921, 1923, 1933, 1962, 




1967   and   1984;   the   last   major   amendments   being   by   the   Land  




Acquisition (Amendment) Act, 1984 (Act 68 of 1984).








12.           The provisions contained in the Act, of late, have been felt 




by  all   concerned,   do  not  adequately  protect   the   interest  of  the  land  




owners/persons interested in the land. The Act does not provide for  




rehabilitation  of persons  displaced  from  their  land  although  by  such 




compulsory acquisition, their  livelihood  gets  affected. For years,   the 




acquired   land   remains   unused   and   unutilised.   To   say   the   least,   the  




Act has become outdated and needs to be replaced at the earliest by 




fair, reasonable and rational enactment in tune with the constitutional 




provisions,   particularly,   Article   300A   of   the   Constitution.   We   expect 




the law making process for a comprehensive enactment with regard 




to   acquisition   of   land   being   completed   without   any   unnecessary  




delay.








13.           Reverting   back   to   the   Act,   that   Section   5-A   of   the   Act 




confers  a  valuable  right  on  the person  interested  in  any land  which  




has   been   notified   under   Section   4(1)   as   being   needed   for   a   public 


                                                                                     6



purpose or likely to be needed for public purpose is beyond doubt. By 




this right, the owner/person interested may put forth his objections not 




only   in   respect   of   public   purpose   but   also   the   suitability   of   the 




acquisition   in   respect   of   his   land.   The   objector   gets   an   opportunity 




under   Section   5-A   to   persuade   the   Collector   that   his   land   is   not 




suitable for the purpose for which the acquisition is being made or the  




availability   of   other   land   suitable   for   that   purpose.   Section   5-A 




proceedings are two-tier proceedings. In the first step, the objections  




by   the   owner/person   interested   are   heard   by   the   Collector   and   a 




report is submitted to the Government. In the second step, the final  




decision is taken by the Government on the objections so furnished  




by the person interested and the consideration of the report submitted 




by the Collector. 








14.             In  Munshi   Singh   and   others  v.  Union   of   India5,   in 




paragraph 7 of the Report, this Court stated as follows :








           "7.   Section   5-A   embodies   a   very   just   and   wholesome 


           principle   that   a   person   whose   property   is   being   or   is 


           intended   to   be   acquired   should   have   a   proper   and 


           reasonable   opportunity   of   persuading   the   authorities 


           concerned   that   acquisition   of   the   property   belonging   to 


           that  person  should  not be made.  ... The legislature  has, 


           therefore,   made   complete   provisions   for   the   persons 


           interested   to   file   objections   against   the   proposed 


           acquisition   and   for   the   disposal   of   their   objections.   It   is 


           only  in  cases   of   urgency  that  special   powers  have  been 




5  (1973) 2 SCC 337


                                                                                             7



           conferred   on   the   appropriate   Government   to   dispense 


           with the provisions of Section 5-A: "




15.             The above legal position has been reiterated by this Court 




in various decisions including the decisions of this Court in Hindustan  




Petroleum   Corpn.   Ltd.2  and  Radhy   Shyam3  cited   by   Mr.   Pallav 




Shishodia.   In  Hindustan   Petroleum   Corpn.   Ltd.2  ,   this   Court   in 




paragaraph 6 of the Report stated thus :








         "6. It is not in dispute that Section 5-A of the Act confers a 


         valuable right in favour of a person whose lands are sought 


         to be acquired. Having regard to the provisions contained 


         in Article 300-A of the Constitution, the State in exercise of 


         its power  of "eminent domain" may interfere with the right 


         of property of a person by acquiring the same but the same 


         must be for a public purpose and reasonable compensation 


         therefor must be paid."




16.             In  Union of India v. Mukesh Hans6, this Court  referred to 




Munshi   Singh5  and   in   paragraph   35   of   the   Report   stated   that   the 




limited right given to the owner/person interested under Section 5-A 




of   the   Act   to   object   to   the   acquisition   proceedings   is   not   an   empty 




formality and is a substantive right.  








17.             As a matter of law, under the Act, the only right that the  




owner/person   interested   has,   is   to   submit   objections   to   the 




compulsory   acquisition   of   his   land   under   Section   5-A.   No   question, 




such   right   and   the   consideration   of   objections   filed   by   the   land-








6 (2004) 8 SCC 14


                                                                                        8



owner/person interested in exercise of such right must be given the 




importance   it   deserves.   The   question   before   us,   is   whether   the 




consideration of  the appellants' objections  to the acquisition of their  




land  by the Government suffers from any illegality or irrationality. 








18.            The   appellants   and   their   family  members   purchased   the 




subject land admeasuring 1.45 acres on January 27, 1981. The said  




land was  agricultural at the time of purchase and was depressed in  




as   much   as   it   was   low   in   level   than   the   main   road.   The   appellants 




incurred   expenditure   in   raising   the   level   of   the   land   and   made 




improvements;   raised   the   building   thereon   and   installed   a   saw   mill 




somewhere in 1986.   In their objections filed on May 24, 1989 before 




the   RDO, the facts concerning the expenditure incurred by them for  




converting   the   agricultural   land   into   building   site;   the   deprivation   of  




their sole means of livelihood and the availability of other  lands were  




stated.     The   objectors   also   stated   that   the   workshop   of   Thanthai 




Periyar   Transport   Corporation   was   originally   put   up   in   Anna 




Kalayarangam   land   owned   by   the   Municipality.     Later,     they   had  




purchased four acres of land comprised in T.S. Nos. 133 and 151 at  




Lal Puram main road, and constructed a workshop and that workshop 




was   functioning.   The   Corporation,   the   objectors   submitted,     can  




acquire any extent of land next to them to construct a workshop.




                                                                                        9



19.            The RDO considered the above objections raised by the 




appellants   and   in   the   proceedings   drawn   on   September   14,   1989  




overruled   the   same.   The   RDO     held   that   when   the   requisitioning  




authority approached TELC  for making available their land, the TELC 




refused   to   sell   the   said   land   and   informed   them   that   they   required 




their   land   for   their   religious   purposes.     The   RDO,   in   this   backdrop,  




observed   that   TELC's     land   cannot   be   acquired   for   the   purpose   of 




expansion of depot. As regards the availability of lands near Thanthai  




Periyar   Transport   Corporation,   the   RDO   observed   that   these   lands 




were one kilometre away from the Corporation's depot and, thus,  the 




land of the appellants alone was suitable for the expansion of depot.  




The RDO, accordingly, forwarded its report to the  Government.








20.            On   October   26,   1989,   TELC   issued   a   public   notice   in   a 




daily newspaper `Dina Malhar' for sale of its land referred to above. 




The appellants sent the copy of the said notice to the   Government. 




However,   the     Government     was   not   persuaded   to   accept   the 




landowners'   objections   and   on   consideration   of   the   RDO's   report 




proceeded   with   the   issuance   and   publication   of   declaration   under 




Section 6 of the Act. 








21.            Mr.   Pallav   Shishodia,   learned   senior   counsel   for   the 




appellants   vehemently   contended   that   the   land   belonging   to   the 


                                                                                       10



TELC   is   suitable   as   that   land   is   situated   just     behind   the   existing 




depot;   the existing depot has already access to the main road from 




Chidambaram to Cuddalore and on  acquisition of the land of TELC, 




the   acquired   land   too   would   have   access   to   the   main   road   through 




the   existing   depot   of   the   Corporation.     He,   thus,   submitted   that  




suitability   aspect   has   not   at   all   been   rationally   considered   by   the  




Government. 








22.            It is difficult to accept the contention of the  learned senior 




counsel for more than one reason. In the first place, in paragraph 5 of  




the counter affidavit filed by the Government before the High Court, 




inter alia, following averment was made:








        ".......The   land   acquired   exists   adjacent   to   the   existing 


        depot   and   it   has   easy   access   to   the   main   road   from 


        Chidambaram   to   Cuddalore   and   it   is   found   to   be   more 


        suitable   in   all   aspects   for   the   expansion   of   the 


        depot.........."




The   above   averment     remains   unrebutted   and   unchallenged   by   the  




appellants as no rejoinder was filed. 








23.            Secondly,     if   the   land   proposed   to   be   acquired   and   the 




alternative   land   suggested   by   the   owners/persons   interested     are 




equally suitable for the purpose for which land is being acquired, the  




satisfaction   of   the   Government,   if   not   actuated   with   ulterior   motive,  






                                                                                       11



must get primacy.  In the judicial review, it is not open to the court to  




examine the aspect of suitability as a court of appeal and substitute  




its opinion.   In any case the present case is not a case where   the  




other   lands   suggested   by   the   appellants   have   been   found   to   be  




equally suitable. The  Government has given reasons  as  to why  the  




appellants' land has been  found to be more suitable for expansion of  




the depot.  The appellants'  land is adjacent to the existing depot   of  




the Corporation having   easy access to the main road. In our view,  




the manner in which the decision has been taken by the  Government  




regarding suitability of the appellants' land for expansion of the depot  




of the Corporation is not vitiated by any error of law nor it is irrational  




or  founded on the extraneous reasons.








24.            Third   and   more     important,     at   the     insistence   of   the  




learned   senior   counsel   for   the   appellants,   we     considered   the   site 




plan referred to by him and from a perusal thereof no doubt is left that  




the   land of the appellants is more   suitable than the land of TELC  




situate   behind   the   existing   depot.   TELC   land   has   no   direct   access  




from the Chidambaram to Cuddalore main road. It has access from a 




different   side   road   passing   adjacent   to   the   canal.   The   size   of   the 




TELC's land is also awkward;  it is a long piece of land of which width  




narrows   down   from   175   feet   to   56   feet   west   to   east.   On   the   other  




                                                                                        12



hand,   the   appellants'   land   is   adjacent   on   the   southern   side   to   the 




existing depot and has access from the Chidambaram to Cuddalore 




main road. Having regard to the purpose for which the land is sought 




to be acquired, namely, expansion of existing depot, particularly, for a  




workshop, the appellants' land is definitely more suitable.  Pertinently, 




in   their   objections,   the   appellants   have   not   challenged   the   public 




purpose for  the acquisition of their land.  In what we have  indicated  




above,   it   cannot   be   said   that   suitability     aspect   has   not   been 




reasonably or rationally considered by the  Government.          








25.           Then   comes   the   second   contention   of   Mr.   Pallav 




Shishodia.    He relied upon  the decision of this Court in the case of  




Raja   Ram4      and   submitted   that   the   erstwhile   Corporation   or   the 




successor   Tamil   Nadu   State   Transport   Corporation   (TNSTC)     is   a 




`government   company'   for   the   purposes   of   the   Act     and,   therefore,  




compliance with the provisions of Part VII of the Act had to be made 




in order to lawfully acquire any land for its purpose. In this regard, he 




referred to the averment made in the reply to I.A. No. 3 of 2003 that  




TNSTC   was   the   beneficiary   of   the   acquisition;   it   is   they   who   have 




remitted   the   extent   of   compensation   quantified   by   the   authorities 




under the land acquisition.










                                                                                     13



26.            With   regard   to   the   above   contention   of  Mr.   Pallav 




Shishodia,   it   is   enough   to   say   that   it   overlooks     Section   3(cc)   and 




Section 3(e) of the Act, substituted by Act 68 of 1984. The definition 




of `company' in Section 3(e) after substitution in 1984 is as follows: 








       "S.3(e).-    the expression "company" means--




               (i)      a   company   as   defined   in   section   3   of   the 


                        Companies Act, 1956 (1 of 1956), other than a 


                        Government company referred to in clause (cc);








               (ii)     A   society   registered   under   the   Societies 


                        Registration   Act,   1860   (21   of   1860),   or   under 


                        any   corresponding   law   for   the   time   being   in 


                        force in a State, other than a society referred to 


                        in clause (cc);                




                                                                                                 




               (iii)    A   co-operative   society   within   the   meaning   of 


                        any law relating to co-operative societies for the 


                        time   being   in   force   in   any   State,   other   than   a 


                        co-operative society referred to in clause (cc)".










Section 3(cc) of the Act defines the expression "corporation owned or  




controlled by the State" as follows :








        "S.3(cc).-              the   expression   "corporation   owned   or 


        controlled   by   the   State"   means   any   body   corporate 


        established by or under a Central, Provincial or State Act, 


        and includes a Government company as defined in section 


        617   of   the   Companies   Act,   1956   (1   of   1956),   a   society 


        registered under the Societies Registration Act, 1860 (21 of 


        1860), or under any corresponding law for the time being in 


        force   in   a   State,   being   a   society   established   or 


        administered   by   Government   and   a   co-operative   society 




                                                                                                     14



        within   the   meaning   of   any   law   relating   to   co-operative 


        societies  for the time being in force  in any State,  being  a 


        co-operative   society   in   which   not   less   than   fifty-one   per 


        centum of the paid-up share capital is held by the Central 


        Government, or by any State Government or Governments 


        or partly by the Central Government and partly by one or 


        more State Governments;"




27.           That Corporation and the TNSTC fall within the definition 




of Section 3(cc) is not in dispute. Both may not have been divested of  




their   character   as   a   government   company   but   sub-clause   (i)     of 




Section 3(e)   excludes a government company from the definition of 




company.       Part   VII   (Sections   38   to   44B)   of   the   Act   provides   for  




acquisition   of   land   for   companies.   In   view   of   the   definition   of   the 




`company' in Section 3(e) which excludes government company,  the 




Corporation   or   for   that   matter   its   successor   TNSTC   does   not   fall  




within the definition of the `company' and, therefore, is not covered by 




Part VII of the Act at all.




28.           In Raja Ram4,  the definition of `company' in Section 3 (e) 




of the Act prior to its substitution fell for consideration.  The definition 




of `company' under consideration  read as follows :






        "the   expression   "company"   means   a   company   registered 


        under   the   Indian   Companies   Act,   1890   or   under   the 


        (English) Companies Acts, 1862 to 1882 or incorporated by 


        an Act of Parliament of the United Kingdom or by an Indian 


        law,  or by Royal Charter or Letters Patent and includes a 


        society   registered   under   the   Societies   Registration   Act, 


        1860,   an   a   registered   society   within   the   meaning   of   the 


        Cooperative Societies Act, 1912, or any other law relating 






                                                                                      15



        to cooperative  societies  for the time being  in force  in any 


        State." 








29.           It was in the context of the above definition that  this Court  




held in Raj Ram4  that the Food Corporation of India was not divested 




of   its   character   as   a   company   within   the   meaning   of   definition   of 




clause (e) of Section 3 of the Act.  As noticed above,  the definition of  




`company'   has   undergone     complete   change   and   the     government 




company   has   been   expressly   excluded   from   the   expression 




`company' for the purposes of the Act.  






30.           For the above reasons, it has to be held that Part VII of 




the Act has no application to the present case   as the acquisition of  




land is not  for a `company' as defined in Section 3(e).






31.           Mr. Pallav Shishodia, learned senior counsel also   urged 




that the appellants are migrants from Gujarat.     They have settled in  




Chidambaram about thirty years back and the livelihood of the entire  




family   of   the   appellants   which   comprised   of   about     40   members   is 




dependant   on   the   saw   mill   existing   on   the     subject   land.     Having  




regard to these facts, he would submit that we invoke  our jurisdiction  




under Article 142 of the Constitution and declare the acquisition of the 




appellants' land bad in law to do complete justice.    There is no doubt 




that   by   compulsory   acquisition   of   their   land,     the   appellants   have  






                                                                                    16



been put to hardship.  As a matter of fact, the RDO was alive to this  




problem.   In   his   report   dated   September   14,   1989,   the   RDO     did 




observe that the land owners have spent considerable money to raise 




the level of the land for constructing compound wall and running saw 




mill. He was,  however, of the opinion   that the appellants' land was  




very   suitable   for   the   expansion   of   the   depot   and   the   suitable 




compensation   can   be     paid   to   the   land-owners   to   enable   them   to 




purchase an alternative land. The appellants, however, proceeded to 




challenge the acquisition. The litigation has traversed upto this Court  




and taken about 22 years.   The public purpose has been stalled for  




more than two  decades.   Being the Highest Court, an extraordinary 




power has been conferred on this Court under Article 142 to pass any 




decree,   order   or   direction   in   the   matter   to   do   complete   justice 




between the parties. The power  is plenary in nature and not inhibited  




by constraints or limitations.  However, the power under Article 142 is 




not   exercised   routinely.     It   is   rather   exercised   sparingly   and   very 




rarely.     In   the   name   of   justice   to   the   appellants,   under   Article   142, 




nothing   should   be   done   that   would   result   in   frustrating   the 




acquisition of land which has been completed long back by following  




the   procedure   under   the   Act   and   after   giving   full   opportunity   to   the  




appellants  under Section 5-A.   The possession of the land has also  








                                                                                         17



been taken  as far   back as   on July 25, 2001. The appellants made  




an application (I.A. No. 2 of 2002) for direction to the respondents not  




to interfere with the functioning of the saw mill and permit them to use  




the saw mill but   this Court in its order dated  May 8, 2002  only said 




that   the   saw   mill   shall   not   be   demolished   till   further   orders.   No 




permission was granted to the appellants to use the saw mill. In other  




words,   for   more   than   ten     years   the   saw   mill   is   closed   after 




possession was taken over from the appellants. In the circumstances, 




this   is   not   a     case   fit   for   exercise   of   power   under   Article   142   and  




declare   the   acquisition   of   the   appellants'   land   bad   although   the  




acquisition   proceedings   have   been   completed   in   accordance   with  




law.






32.            Lastly, the learned senior counsel invited our attention to 




the   application   (I.A.   No.   4)   wherein   the   appellants   offered   for 




amicable settlement by expressing their readiness and willingness to 




give an area of land admeasuring 13250 square feet out of the total  




land of 1.45 acres (i.e. 1 acre and 19445 sq. ft.) free of cost to the  




Corporation. The offer is not acceptable to Mr. B. Balaji. He submitted  




that   such   a   small   area   is   of   no   use   for   expansion   of   the   existing  




depot.   We   do   not   find   any  unreasonableness   in   the   submission     of 










                                                                                            18



the counsel   that an area of 13250 square feet would  not meet the 




purpose for which the appellants' land has been acquired.






33.         In view of the above, there is no merit in the appeal and it 




is dismissed. I.A. No. 4 and  other pending applications, if any,  stand 




disposed of. No costs.  










                                                ...........................J


                                                      (R.M. LODHA)  










                                                ......................................J.


                                             (JAGDISH SINGH KHEHAR )










NEW DELHI


NOVEMBER 2, 2011.                        










                                                                      19

supreme court bar association = amendment to the bye laws =the resolution “One Bar One Vote”, which was adopted in the General Body Meeting dated February 18, 2003. The notices of the election and about formation of the Implementation Committee were sent to the Members of the Bar Association on March 11, 2003 again along with the cause list and conveyed also by displaying the same on the notice board of the SCBA. On March 13, 2003, meeting of the Implementation Committee was held and the declaration form was finalized and programme for implementation was also decided. The notices regarding declaration form were again issued on March 25, 2003. Meanwhile, Mr. B.D. Kaushik, who is one of the members of the SCBA as well as a member of the High Court Bar Association, Delhi Bar Association, Tis Hazari Courts, filed Suit No. 100 of 2003 in the Court of

                                                       Reportable



           IN THE SUPREME COURT OF INDIA



             CIVIL APPELLATE JURISDICTION


            CIVIL APPEAL NO. 3401 OF 2003




Supreme Court Bar Association

and others                                         ... Appellants


                              Versus


B.D. Kaushik                                        ... Respondent




                              WITH


            CIVIL APPEAL NO. 3402 OF 2003


Supreme Court Bar Association                      ... Appellant


                              Versus


A.K. Manchanda                                      ... Respondent





                       J U D G M E N T




J.M. Panchal, J.





      Since   common   issues   for   determination   are



involved   in   Civil   Appeal   No.   3401   of   2003   and   Civil


                                                                        2


Appeal   No.   3402   of   2003,   this   Court   proposes   to



dispose them of by this common judgment.




2.      Civil   Appeal   No.   3401   of   2003   is   filed   by   three



appellants,   i.e.,   (1)   Supreme   Court   Bar   Association



(Registered), through its Honorary Secretary Mr. Ashok



Arora,   (2)   Shri   Ashok   Arora,   Honorary   Secretary   of



Supreme Court Bar Association and (3) Ms. Sunita B.



Rao,         Coordinator,          Implementation             Committee,



Supreme   Court   Bar   Association   (for   short   "SCBA"),



Tilak   Marg,   New   Delhi.     It   is   directed   against   interim



order   dated   April   5,   2003,   passed   by   learned   Civil



Judge,   Delhi   below   application   filed   under   Order   39



Rules 1 and 2 read with Section 151 of Civil Procedure



Code   (CPC)   filed   in   Civil   Suit   No.   101   of   2003.     Civil



Appeal No. 3402 of 2003 is filed by Supreme Court Bar



Association   through   its   Honorary   Secretary   against



interim   order   dated   April   5,   2003,   passed   by   the



learned Civil Judge below application filed under Order



39 Rules 1 and 2 read with Section 151, CPC, filed in



Civil Suit No. 101 of 2003.  By the common order, the



appellants   are   restrained   from   implementing   the


                                                                 3


resolution dated February 18, 2003 amending Rule 18



of   the   Rules   and   Regulations   of   SCBA   till   the   final



disposal of both the suits.




3.    The respondent in Civil Appeal No. 3401 of 2003



is   Shri   B.D.   Kaushik   whereas   the   respondent   in   Civil



Appeal   No.   3402   of   2003   is   Shri   A.K.   Manchanda.



Both   the   respondents   are   the   advocates   practicing   in



Delhi.    They are  members of  SCBA,  Delhi  High  Court



Bar   Association,   Delhi   Bar   Association,   Tis   Hazari



Courts, Delhi, etc.   The appellant No. 1, i.e., Supreme



Court Bar Association is a Society registered on August



25,   1999   under   the   Societies   Registration   Act,   1860



and   its   Registration   No.   is   35478   of   1999.     The



Registered   Office   of   the   Association   is   in   Supreme



Court   premises   at   New   Delhi.     The   provisions   of   the



Societies   Registration   Act,   1860   empower   a   society   to



frame   Memorandum   of   Association   and   Rules   and



Regulations.         In   exercise   of   those   powers   the



Association has framed Memorandum of Association of



the SCBA as also the Rules and Regulations.  The aims



and   objectives   of   the   Association   are   specified   in


                                                                          4


Clause 3 of the Memorandum of Association, which are



as under: -




     "3.      AIMS   AND   OBJECTIVES:   The   Aims

     and Objectives of the association are:


     i)       To promote upholding of rule of law;


     ii)      To   encourage   profession   of   law   in

              India;


     iii)     To   promote   and   protect   the   privileges,

              interest and prestige of the association

              and to promote union and cooperation

              among  the  advocates practicing  in the

              court   and   other   associations   and

              advocates;


     iv)      To   promote   and   maintain   high

              standards           of         profession         among

              members of the Bar;


     v)       To establish and maintain an adequate

              library for the use of the members and

              to   provide   other   facilities   and

              convenience to the members;


     vi)      To   watch   the   state   of   law,   progress   of

              legislation   and   administration   of

              justice and to take such steps as may

              be   necessary   for   their   progress   and

              reform;


     vii)     To   express   opinion   on   proposed

              legislation   and   other   matters   of

              interest and to make representation in

              respect thereof;


     viii)    To take necessary steps to prevent and

              remedy   any   abuse   of   law   or   mal-

              administration of justice;


                                                                     5


     ix)      To   make   representation   from   time   to

              time   to   the   authorities   on   matters

              affecting the Bar;


     x)       To   acquire   and   safeguard   the   rights

              and privileges necessary or convenient

              for the purpose of the association;


     xi)      To   arrange   for   raising   funds   for   legal

              aid   and   to   do   everything   including

              applying   of   funds   that   may   be

              necessary to that end;


     xii)     To promote and participate in All India

              Lawyers'   Association   and   activities

              connected therewith;


     xiii)    To adopt all such matters as might be

              necessary or incidental to the carrying

              out of the aforesaid objects;


     xiv)     To   take   measures   including   founding

              and   applying   of   funds   for   aid   to

              deserving   members   of   the   association

              and its employees;


     xv)      To   conduct   and   hold   seminars,

              symposia,   conference   on   issues   and

              topics of interest to the legal profession

              and to disseminate information in this

              behalf; and


     xvi)     To promote the welfare of the members

              of the association."





The  Rules  and  Regulations  framed  by  the  Association



are known as Rules and Regulations of Supreme Court



Bar Association.   Rule 3 of the Rules and Regulations



defines certain phrases.   Rule 3(i) defines `Association'


                                                                  6


to   mean   the   Supreme   Court   Bar   Association.     There



are   four   classes   of   Members   as   specified   in   Rule   4.



They   are   (i)   Resident   Members,   (ii)   Non-resident



Members,   (iii)   Associate   Members,   and   (iv)   Non-Active



Members.   As per Rule 3(ii) `Associate Member' means



an association of advocates practicing in a High Court



or Judicial Commissioner's Court and enrolled as such



a Member.   Rule 3(iv) defines the term  `Committee' to



mean   Executive   Committee   of   the   Bar   Association



whereas Rule 3(v) defines the word `Court' to mean the



Supreme Court of India.  The term `Member' is defined



in  Rule  3(vi) to  mean a  member of  Association.    Sub-



rule (vi)(a) of Rule 3, which was inserted by resolution



of   Special   General   Body   Meeting   dated   September   9,



2010   retrospectively   with   effect   from   September   14,



2009, defines `Temporary Member' to mean a member



other than a member within the meaning of Rule 3(vi).



`Non-Active Member' is defined in Rule 3(viii) to mean a



Member   whose   name   is   kept   on   the   list   of   Members



notwithstanding   he   has   accepted   an   office   of   profit



disentitling   him   to   practice.     The   phrase   `Resident


                                                                     7


Member'   is   defined   in   Rule   3(ix)   to   mean   a   member



residing  and  practicing  as an  advocate  in  Delhi  or  its



suburbs.     Rule   5   of   the   Rules   and   Regulations   deals



with fees, admission and subscription.




      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,   will   be   made   a   member,   initially   on



temporary   basis   for   a   period   of   two   years.     It   further



provides   that   a   person   so   made   a   member   on



temporary   basis   will   be   identified   as   temporary



member   and   such   temporary   member   will   be   entitled



to avail the facilities of the Association such as library



and   canteen   etc.,   but   he   will   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   and   to   be   issued   a   Library   Card.



Explanation   appended   to   Rule   5(v)(b)   makes   it   clear



that `suitable' means a person applying must fulfill all



the  criteria listed in  the  Rules  and Regulations  of  the



Association,   viz.,   Rule   5(v)   and   also   satisfy   the



requirements   prescribed   in   the   prescribed   form.     As


                                                                  8


per Rule 5(v)(c) at the end of two years period from the



date   of   approval   of   temporary   membership   by   the



Executive Committee, if such temporary member pays



SCBA   dues   without   any   default   during   such   period



and   produces   the   proof   of   either   of   the   following   of



requirements   before   the   Executive   Committee,   his



name   would   be   considered   for   being   made   a   regular



Member of the Association - (i) appearance in Supreme



Court  as lead counsel in  at least  five matters in  each



year   of   the   two   years   period,   or   (ii)   appearance   in



Supreme   Court   as   a   junior   advocate   appearing   with



any   senior   advocate/advocate-on   record   in   at   least



twenty   matters   in   each   year   of   the   two   years   period,



(iii) only such of the temporary members on satisfying



the above requirements at the end of two years period



would   be   made   a   member   of   the   Association   with   an



entitlement   to   all   the   privileges   of   the   Association



including   the   right   to   contest   and   vote   and   Library



Card   etc.,   else,   he/she   shall   continue   to   remain   a



temporary member till such  time  he/she  fulfills these



conditions.


                                                                       9


4.    A   requisition   dated   January   10,   2003   signed   by



      343   Members   was   received   in   the   Office   of   the



      SCBA   on   January   23,   2003.     By   the   said



      requisition an amendment was sought in Rule 18



      regarding the eligibility of the members to contest



      and vote at an election.  It was proposed that the



      member,   who   exercises   his   right   to   vote   in   any



      High   Court   or   District   Court,   Advocates'/Bar



      Association,   shall   not   be   eligible   to   contest   for



      any   post   of   the   SCBA   or   to   cast   his   vote   at   the



      elections.     It   was   further   proposed   that   every



      member   before   casting   his   vote   shall   in   a



      prescribed  form  give  a declaration  that  he  is not



      voting   in   any   other   election   of   advocates   in   the



      High   Court/District   Court   Bar   Association.     It



      was   also   proposed   that   if   such   a   declaration   is



      found   to   be   false,   it   shall   entail   automatic



      suspension   of   the   member   giving   such   false



      declaration   from   membership   of   SCBA   for   a



      period   of   three   years.     The   requisition   dated



      January   10,   2003   was   considered   in   the


                                                            10


Executive Committee meeting held on February 1,



2003 and it was decided to hold a special General



Body   Meeting   on   February   18,   2003   to   consider



the   requisition.     Rule   22   of   the   Rules   and



Regulations of SCBA provides that  the Executive



Committee   may   call   a   General   Body   Meeting   on



seven days' notice to the  members whereas Rule



23   stipulates   the   manner   in   which   notice   of



meeting   has   to   be   given   to   a   member.



Accordingly   notices   for   the   aforesaid   General



Body   Meeting   were   issued   by   the   SCBA   on



February   6,   2003.     The   notices   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   at   Supreme   Court



premises.   The notices were also sent to different



Bar Associations at Delhi including the Delhi Bar



Association.     On   February   18,   2003   the   General



Body   Meeting   was   convened   wherein   more   than



278 Members had participated.   Mr. Ved Sharma



and Mr. Rajiv Khosla, Office Bearers/Members of


                                                                    11


the         District/Delhi         Bar         Association         had



participated   and   had   spoken   against   the



resolution   in   the   General   Body   Meeting.     After



due   deliberations   and   discussion,   the   resolution



proposing   amendment   in   Rule   18   of   the   Rules



was put to vote.  It was passed by majority of 85%



of the members present and voting.  Thereafter, a



meeting   of   the   Executive   Committee   was



convened on March 3, 2003.  In the said meeting



it   was   resolved   to   hold   election   of   the   Office



Bearers/Executive   Members  for   the   next   session



and for the constitution of Election Committee.  It



was further resolved to hold election on April 25,



2003.  An election Committee of three members of



the   SCBA   was   constituted   for   the   purposes   of



conducting election.   Further in the said meeting



a requisition signed by 237 Members of SCBA to



recall   resolution   dated   February   18,   2003   was



considered   and   dealt   with.     It   was   decided   to



defer   the   consideration   of   the   said   resolution   in



view   of   the   fact   that   elections   were   declared.


                                                          12


Moreover,   in   the   meeting   of   the   Executive



Committee   held   on   March   10,   2003   it   was



resolved   to   constitute   an   Implementation



Committee to implement the resolution "One Bar



One   Vote",   which   was   adopted   in   the   General



Body   Meeting   dated   February   18,   2003.     The



notices of the election and about formation of the



Implementation   Committee   were   sent   to   the



Members   of   the   Bar   Association   on   March   11,



2003   again   along   with   the   cause   list   and



conveyed   also   by   displaying   the   same   on   the



notice   board   of   the   SCBA.     On   March   13,   2003,



meeting   of   the   Implementation   Committee   was



held   and   the   declaration   form   was   finalized   and



programme for implementation was also decided.



The notices regarding declaration form were again



issued on March 25, 2003.   Meanwhile, Mr. B.D.



Kaushik, who is one of the members of the SCBA



as   well   as   a   member   of   the   High   Court   Bar



Association,   Delhi   Bar   Association,   Tis   Hazari



Courts, filed Suit No. 100 of 2003 in the Court of


                                                            13


Shri Sanjeev Jain, Commercial Civil Judge, Delhi,



challenging   validity   of   resolution   dated   February



18, 2003.  He has sought a decree declaring that



Resolution   dated   February   18,   2003,   passed   by



the General Body Meeting of SCBA inserting Rule



18-III,   is   illegal   and   ineffective.     He   had   also



prayed   for   a   decree   of   perpetual   injunction



restraining the SCBA and its Office Bearers from



implementing   the   Resolution   dated   February   18,



2003   in   the   elections   of   SCBA,   which   were



proposed to be held on April 25, 2003.   Further,



the   prayer   to   restrain   the   SCBA   and   its   election



officers from debarring any of the members of the



SCBA,   who   had   already   paid   their   subscription



from   casting   their   votes   in   the   ensuing   elections



was   also   sought.     Mr.   A.K.   Manchanda,   another



member of the SCBA, filed suit No. 101 of 2003 in



the Court of Shri Sanjeev Jain, Commercial Civil



Judge,   Delhi,   seeking   the   reliefs   which   were



sought by Mr. B.D. Kaushik in his suit No. 100 of



2003.


                                                                    14


5.    Mr.   B.D.   Kaushik   and   Mr.   A.K.   Manchanda,   the



      plaintiffs   in   Suit   Nos.   100   of   2003   and   101   of



      2003 respectively,  filed applications  under  Order



      39   Rules   1   and   2   read   with   Section   151   of   the



      Code   of   Civil   Procedure   to   restrain   the



      defendants,   who   are   appellants   herein,   from



      implementing   the   Resolution   dated   February   18,



      2003 till the final disposal of the suits.   Both the



      applications   were   taken   up   together   for   hearing



      by   the   learned   Judge.     The   learned   Judge



      disposed of those applications seeking temporary



      injunction by common order dated April 5, 2003.



      By   the   said   common   order   the   applications   filed



      by   the   plaintiffs   under   Order   39   Rules   1   and   2



      were   allowed   and   the   appellants   were   restrained



      from implementing the Resolution dated February



      18,   2003   amending   Rule   18   of   the   Rules   and



      Regulations  of the  SCBA  till the  final  disposal  of



      the   suits.     As   the   injunction   granted   by   the



      learned   Judge   had   far   reaching   repercussions,



      the appellants straightway approached this Court


                                                           15


by   filing   Special   Leave   Petition   No.   D-7644   of



2003   against   order   dated   April   5,   2003   in   Suit



No.   100   of   2003,   passed   by   the   learned   Civil



Judge,   Delhi.     The   SCBA   also   filed   Special   leave



Petition   No.   D-7645   of   2003   against   order   dated



April   5,   2003   in   Suit   No.   101   of   2003.     The



matters   were   placed   before   this   Court   in



mentioning   list   on   April   10,   2003.     This   Court



had heard the then learned Attorney General and



other   learned   senior   advocates   practicing   in   this



Court.     The   matters   were   taken   on   Board   and



straightway   leave   was   granted.                Pending



proceedings, stay of the common order passed by



the   trial   court   was   also   granted.     It   was   made



clear   that   if   any   elections   were   held,   the   same



shall be subject to the result of these appeals.  It



was also clarified that the order shall be effective



notwithstanding   any   other   order   made   by   any



court  or   authority   in   any   other   proceedings   filed



or yet to be filed.  On leave being granted Special



Leave   Petition   No.   D-7644   of   2003   is   numbered


                                                                 16


      as Civil Appeal No. 3401 of 2003 whereas Special



      Leave   Petition   No.   D-7645   of   2003   is   numbered



      as Civil Appeal No. 3402 of 2003.




6.    This   Court   had   appointed   Mr.   Ranjit   Kumar,



      learned   senior   counsel   practicing   in   this   Court,



      as   Amicus   Curie   to   assist   the   Court   in   the



      matters.     This   Court   has   also   requested   learned



      Attorney   General   Mr.   Goolam   Vahanvati   to



      express his views in the matters and to assist the



      Court.  Accordingly, this Court has heard learned



      Attorney   General   as   well   as   learned   senior



      counsel   Mr.   Ranjit   Kumar.     The   Court   has   also



      heard Mr. Rajesh Aggarwal, who has appeared on



      behalf   of   the   appellants   as   well   as   Mr.   Dinesh



      Kumar   Garg,   learned   advocate   who   appeared   on



      behalf   of   the   original   plaintiffs.     This   being   a



      matter,   which   affects   the   learned   advocates



      practicing in this Court, the Court has also heard



      learned   senior   counsel   Mr.   P.P.   Rao,   former



      President   of   SCBA,   Mr.   Pravin   Parekh,   present



      President   of   SCBA   and   Mr.   Sushil   Kumar   Jain,


                                                                  17


      President   of   Association   of   Advocates-on-Record.



      The   Court   has   considered   the   Memorandum   of



      Association   of   SCBA   as   well   as   Rules   and



      Regulations of SCBA.




7.    It is not disputed by any of the learned advocates



      appearing   in   the   matters   that   after   stay   of



      common   order   dated   April   5,   2003,   passed   in



      Civil Suit No. 100 of 2003 and Civil Suit No. 101



      of   2003   was   granted   by   this   Court   on   April   10,



      2003, elections of the  office bearers of the SCBA



      have   taken   place   and   Rule   18   of   the   Rules   and



      Regulations,   as   was   amended   by   the   Resolution



      dated February 18, 2003, has been implemented.




8.    Article   145   (1)(a)   of   the   Constitution   empowers



      the  Supreme  Court  to  make Rules for  regulating



      generally the practice and procedure of the Court



      including   Rules   as   to   the   persons   practicing



      before   the   Court.            In   exercise   of   this



      constitutional   power,   the   Supreme   Court   has



      framed Rules called Supreme Court Rules, 1966.


                                                            18


Rule   2(1)(b)   provides   that   an   advocate-on-record



to be the only person to "act" as well as to "plead"



before   this   Court.     The   other   two   categories   of



persons,   namely,   "senior   advocate"   and   "non-



advocate-on-record"   can   only   plead,   but   cannot



act   on   behalf   of   the   client.                   Their



appearances/pleadings   in   a   case   before   this



Court   cannot   be   without   an   advocate-on-record



and   without   his   instructions.     Order   IV   of   the



Supreme   Court   Rules,   1966   deals   with



"advocates".     Rule   1   states   that   subject   to   the



provisions   of   the   Rules   only   those   advocates



whose names are entered on the roll of any State



Bar   Council,   maintained   under   the   Advocates



Act,   1961,   shall   be   entitled   to   appear   and   plead



before   the   Court.     As   per   Rule   2(b)   certain



restrictions  have  been placed on  senior  advocate



who   is   recognized   as   such   under   Rule   2(a),



mentioning   inter-alia   that   he   cannot   file   a



vakalatnama   or   act   in   any   court   or   tribunal   in



India or accept instructions to draw pleadings or


                                                              19


affidavits,   etc.     Explanation   (iii)   appended   to   the



Order   IV   defines   "junior"   to   mean   an   advocate



other than a senior advocate.   Rule 6(a) provides



that   an   advocate-on-record   shall,   on   his   filing   a



memorandum of appearance on behalf of a party



accompanied by a vakalatnama duly executed by



the party, is entitled to act as well as to plead for



the   party   in   the   matter   and   to   conduct   and   to



prosecute   before   the   Court   all   proceedings   that



may   be   taken   in   respect   of   the   said   matter.



Clause   (b)   of   Rule   6   mentions   that   no   advocate



other   than   an   advocate-on-record   shall   be



entitled to file an appearance or act for a party in



the court.   Rule 10 of the Rules provides that no



advocate   other   than   an   advocate-on-record   shall



appear   and   plead   in   any   matter   unless   he   is



instructed   by   an   advocate-on-record,   whereas



Rule 12 enables an advocate-on-record or  a firm



of   advocates   to   employ   one   or   more   clerks   to



attend the registry for presenting or receiving any



papers   on   behalf   of   the   said   advocate   or   firm   of


                                                                   20


      advocates.     Rule   12(2)   mandates   that   notice   of



      every   application   for   the   registration   of   a   clerk



      shall be given to the  Secretary, SCBA, who  shall



      be entitled to bring to the notice of the Registrar



      within seven days of the receipt of the notice any



      facts,  which,  in  his  opinion,  may have  a  bearing



      on   the   suitability   of   the   clerk   to   be   registered.



      Rule 13(1) requires the Registrar to publish list of



      persons proved to his satisfaction  by evidence of



      general   repute   or   otherwise,   habitually   to   act   as



      touts   to   be   known   as   list   of   touts.     Explanation



      (b)   appended   to   Rule   13(1)   mentions   that   the



      passing   of   a   resolution   by   the   SCBA   or   by   High



      Court Bar Association declaring any person to be



      tout   shall   be   evidence   of   general   repute   of   such



      person for the purpose of this Rule.




9.    The Advocates Act, 1961 provides for the creation



      of different State Bar Councils, whose one or the



      main   function   is   to   admit   advocates   on   its   rolls



      and to promote the growth of Bar Associations for



      the   purpose   of   effective   implementation   of   the


                                                             21


welfare   schemes.     It   further   enables   the   Bar



Councils to make their own rules.   Section 17 of



the   Advocates   Act   provides   that   every   Sate   Bar



Council   shall   prepare   and   maintain   roll   of



advocates.     Section   17(4)   further   states   that   no



person   shall   be   enrolled   as   an   advocate   on   the



roll of more than one State Bar Council.   Section



49 of the Advocates Act, 1961 empowers the Bar



Council of India to make rules.  In exercise of the



said   power   Bar   Council   of   India   has   framed



Rules.   Chapter III of Bar Council Rules provides



that   every advocate   shall   be  under   an  obligation



to ensure that his name appears on the roll of the



State   Bar   Council   in   whose   jurisdiction   he



ordinarily practices and if that advocate does not



apply for transfer of his name to the roll of State



Bar   Council   within   whose   jurisdiction   he



ordinarily practices within six months of the start



of   such   practice,   it   shall   be   deemed   that   he   is



guilty   of   professional   misconduct.     Section   34   of



the Advocates Act, 1961 also empowers the High


                                                                   22


       Courts   to   make   Rules   regarding   the   advocate



       practicing   in   the   High   Court   and   courts



       subordinate thereto.




10.    The   learned   counsel,   appearing   in   the   matters,



       pointed   out   to   the   Court   that   problem   of   bogus



       voting   in   the   election   of   office   bearers   of   SCBA



       started   since   the   year   1978.     According   to   the



       learned counsel, in the year 1978, 101 Members



       contested   election   for   the   post   of   Members   of



       Executive Committee.  The grievance made by the



       learned   counsel   was   that   those   advocates,   who



       were   not   regularly   practicing   in   this   Court,   were



       enrolled as Members of the SCBA only to vote at



       the   election   of   office   bearers   of   the   SCBA.



       According   to   the  learned   counsel,   the   advocates,



       who have been enrolled as Members of the SCBA



       are   practicing   either   at   Kanpur   or   at   Gurgaon



       and other courts situated in India, but they never



       practice in this Court regularly nor are even able



       to   recognize   the   Hon'ble   Judges   of   this   Court.



       The   learned   counsel   emphasized   that   those


                                                                   23


       advocates,   who   are   not   practicing   in   this   Court



       and   are   enrolled   as   members   of   the   SCBA,   have



       outnumbered   the   actual   practitioners   in   this



       Court and do not permit the actual practitioners



       to   be   office   bearers   of   the   SCBA.     Thus   the



       learned advocates appearing in the matters have



       called   upon   this   Court   to   consider   the   problem



       posed   in   the   appeals   in   the   light   of   facts



       mentioned by them.




11.    The Supreme Court Bar Association, as the name



       suggests, is a society primarily meant to promote



       the   welfare   of   the   advocates   generally   practicing



       in   the   Supreme   Court.     The   name,   i.e.,   the



       Supreme   Court   Bar   Association   was   formally



       registered   under   the   Societies   Registration   Act,



       1860 only on August 25, 1999.  One of the prime



       objectives   of   the   SCBA   is   to   establish   and



       maintain   adequate   library   for   the   use   of   the



       members   and   to   provide   other   facilities   and



       convenience   of   the   members.                Thus,   the



       formation   of   the   SCBA  is  in   the   nature  of   aid  to


                                                                   24


       the   Advocates   Act,   1961   and   other   relevant



       statutes including Article 145 of the Constitution.




12.    There is no manner of doubt that court annexed



       Bar   Associations   constitute   a   separate   class



       different from other lawyers associations such as



       Lawyers' Forum, All India Advocates' Association,



       etc.   as   they   are   always   recognized   by   the



       concerned   court.              Court   annexed   Bar



       Associations function as part of the machinery for



       administration   of   justice.     As   is   said   often,   the



       Bench   and   Bar   are   like   two   wheels   of   a   chariot



       and one cannot function without  the other.   The



       court   annexed   Bar   Associations   start   with   the



       name of the court as part of the name of the Bar



       Association   concerned.     That   is   why   we   have



       Supreme   Court   Bar   Association,   Tis   Hazari



       District   Court   Bar   Association,   etc.     The   very



       nature   of   such   a   Bar   Association   necessarily



       means   and   implies   that   it   is   an   association



       representing members regularly practicing in the



       court   and   responsible   for   proper   conduct   of   its


                                                                   25


       members   in   the   court   and   for   ensuring   proper



       assistance to the court.  In consideration thereof,



       the   court   provides   space   for   office   of   the



       association,   library   and   all   necessary   facilities



       like chambers at concessional rates for members



       regularly   practicing   in   the   court,   parking   place,



       canteen   besides   several   other   amenities.     In   the



       functions   organized   by   the   court   annexed   Bar



       Associations the Judges participate and exchange



       views and ascertain the problems, if any, to solve



       them   and   vice-versa.     There   is   thus   regular



       interaction   between   the   members   of   the   Bar



       Association   and   the   Judges.              The   regular



       practitioners   are   treated   as   officers   of   the   court



       and are shown due consideration.




13.    Enrolment   of   advocates   not   practicing   regularly



       in   the   court   is   inconsistent   with   the   main   aim



       and   object   of   the   Association.     No   court   can



       provide   chambers   or   other   facilities   for   such



       outside   advocates,   who   are   not   regular



       practitioners.     Neither   the   Association   nor   the


                                                             26


court   can   deal   with   them   effectively   if   they



commit   any   wrong.              There   are   sufficient



indications   in   the   Memorandum   of   Association



and   the   Rules   and   Regulations   of   SCBA,   which



indicate   that   the   Association   mainly   tries   to



promote   and   protect   the   privileges,   interest   and



prestige of the Association and to promote union



and   cooperation   among   the   advocates   practicing



in the court and other associations of advocates.



This   is   quite   evident   if   one   refers   to   sub-clause



(iii) of clause (3) of the Aims and Objectives of the



Association.     It   is   significant   to   note   that   the



signatories   of   the   Memorandum   of   Association,



namely,   Members   of   the   Executive   Committee,



whose   names   are   mentioned,   are   all   regular



practitioners,   who   got   the   Association   registered



under   the   Societies   Registration   Act,   1860.     Mr.



P.P.   Rao,   learned   senior   counsel   has   given   all



credit   for   registration   of   Association   to   Shri   K.K.



Venugopal, one of the senior-most counsel of this



Court.


                                                                    27


14.    Rule 6 of the Rules and Regulations of the SCBA



       mentions   the   duties   of   Members.     It   inter   alia



       provides   that   (i)   a   member   shall   endeavour   to



       provide   full   assistance   to   the   court   and



       competent   representation   to   a   client,   (iii)   a



       member   shall   not   knowingly   (a)   make   a   false



       statement of material fact or  of law to the court,



       (b) shall not seek to influence the court or Judges



       or   officers   of   the   court   in   any   matter   by   means



       prohibited   by   law   or   by   false   representation   on



       behalf   of   his   client   nor   shall   such   member



       communicate   with   such   persons   ex-parte   or



       engage in conduct intending to bring disrepute to



       the   functioning   of   the   court.     Rule   6(iii)(c)



       provides   that   a   member   of   the   Association   shall



       participate   in   serving   those   persons/groups   of



       persons   who   are   unable   to   pay   all   or   portion   of



       reasonable   fees   or   who   are   unable   to   obtain



       representation   by   counsel.     Clause   (c)   of   Rule



       6(iii)   inter   alia   states   that   a   member   may



       discharge his duty to serve those persons who are


                                                                       28


       unable to pay all or portions of reasonable fees by



       providing professional  services at no  fees or  at  a



       substantially   reduced   fee.     A   member   of   the



       Association   has   to   charge   reasonable   fees   from



       his   client   which   has   to   be   determined   on   the



       basis   of   the   time   and   labour   spent   over   the



       matter and is not entitled to charge a contingent



       fee.     Thus   duties   of   members   contemplate   that



       the   members   should   be   regular   practitioners   in



       the Supreme Court.




15.    As   noticed   earlier,   no   person   can   be   enrolled   as



       an   advocate   on   the   roll   of   more   than   one   State



       Bar Council.   A citizen of India is entitled to cast



       his vote at an election of Legislative Assembly or



       an election of M.P. only in the constituency where



       his name appears as a voter in the voting list and



       he   cannot   claim   right   to   vote   at   another   place



       where   he   may   be   residing   because   of   his



       occupation,   service,   etc.     Thus   "one   person   one



       vote" is recognized statutorily since long.   Viewed



       in   the   light   of   these   facts,   the   concept   of   voting


                                                                       29


       introduced by amendment of Rule 18 of the Rules



       and Regulations of the SCBA cannot be regarded



       as illegal or unconstitutional.  It is well settled by



       catena of reported decisions of this Court that the



       right   to   vote   is   not   an   absolute   right.     Right   to



       vote   or   to   contest   election   is   neither   a



       Fundamental Right nor a common law right, but



       it is purely a statutory right governed by statute/



       rules/regulations.     The   right   to   contest   an



       election   and   to   vote   can   always   be   restricted   or



       abridged,   if   statute/   rules   or   regulations



       prescribe so.  Voting right restrictions also existed



       in Rule 18 and 18A before Rule 18 was amended.



       By amendment a further restriction is imposed by



       the   Resolution   adopted   in   the   General   Body



       Meeting.




16.    The   argument   that   by   the   said   amendment   of



       Rule   18   the   Aims   and   Objects   of   the   SCBA   are



       amended   without   prior   approval   of   the   Registrar



       of   Societies   and,   therefore,   the   same   is   illegal,



       cannot be accepted.   The impugned order makes


                                                                   30


       it   more   than   clear   that   this   ground   has   heavily



       weighed   with   the   learned   Judge   in   granting   the



       injunction.     The   substance   and   purpose   of   the



       amendment   made   in   Rule   18   of   the   Rules   and



       Regulations of the SCBA cannot be lost site of.  It



       does not  affect any of the aims and objectives of



       the   SCBA.     On   the   contrary,   it   promotes   and



       protects   privileges,   interest   and   prestige   of   the



       SCBA.     There   is   no   manner   of   doubt   that   the



       amended   Rule   18   promotes   union   and



       cooperation   among   the   advocates   practicing   in



       this Court and this is one of the prime aims and



       objectives of forming the SCBA.  The SCBA exists



       for   the   purpose   of   promoting   the   interest   of   the



       Supreme   Court   of   India   as   well   as   that   of



       advocates   regularly   practicing   in   the   Court   and



       not   of   the   advocates,   who   are   not   regularly



       practicing in the Court.




17.    It   has   been   rightly   pointed   out   by   the   learned



       counsel for the appellant that restrictions placed



       on   right   of   voting   can   hardly   be   regarded   as


                                                              31


altering or amending Aims and Objects of SCBA.



The   Aims   and   Objects   of   SCBA   have   been



enumerated in earlier part of this judgment.  The



basic principle underlying the amendment of Rule



18 is that those advocates who are not practicing



regularly   in   this   Court   cannot   be   permitted   to



take over the affairs of the SCBA nor on ransom.



One   of   the   Aims   and   Objects   of   the   SCBA   is   to



promote   and   protect   the   privileges,   interest   and



prestige   of   the   Association   whereas   another



objective   is   to   promote   and   maintain   high



standards   of   profession   among   members   of   the



Bar.     To   achieve   these   objectives   Rule   18   is



amended.            It   is   wrong   to   hold   that



limitations/restrictions on the exercise of right to



vote and contest the elections amount to altering



and/or   amending   and/   or   changing   Aims   and



Objects of the SCBA and this could not have been



done without the consent of Registrar as provided



in Societies Registration Act, 1860.


                                                                     32


18.    Section 12 of the Societies Registration Act, 1860



       invests   a   society   with   the   power   to   frame   rules/



       regulations   to   govern   the   body   of   any   society



       under   the   Act,   which   has   been   established   for



       any particular purpose or purposes.  In built in it



       is the authority to alter or abridge such power.  If



       such a wide power is conferred including power to



       alter,   amend   or   abridge   the   purpose   itself,   it



       could   never   be   successfully   contended   that   the



       power   to   amend,   vary   or   rescind   the   rules   does



       not exist in such society.




19.    As   noticed   earlier   `Associate   Member'   means   an



       association   of   advocates   practicing   in   a   High



       Court   or   Judicial   Commissioners'   Court   and



       enrolled as such a member.  As an association of



       advocates   cannot   practice   in   a   High   Court   or



       Judicial Commissioners' Court, it is obvious that



       an associate member is a member of association



       of   advocates   practicing   in   a   High   Court   and



       enrolled   as   such   a   Member.     The   intention,



       therefore,   is   obvious   that   it   is   only   an   advocate,


                                                                     33


       who is practicing in a High Court or in a court of



       Judicial   Commissioner   and   enrolled   as   a



       member,   who   is   entitled   to   the   status   of   an



       `Associate   Member'   for   the   purpose   of   the   Rules



       and Regulations of the SCBA.   When it comes to



       the   question   of   voting   or   contesting   for   an



       election,   Rule   18(1)(iv)   declares   that   non-active



       members   and   associate   members   shall   not   have



       right to vote.  It is, therefore, clear that the SCBA



       is   constituted   primarily   for   those   advocates   who



       are   regularly   practicing   in   the   Supreme   Court.



       Other  advocates can  become  non-resident senior



       members,   non-resident   members,   associate



       members  and  non-active  members,  but   they   will



       not   be   eligible   to   vote   much   less   to   contest   the



       election.     Thus,   the   amendment   in   Rule   18   is



       wholly consistent with the aims and objectives of



       the SCBA.




20.    This   Court   further   finds   that   in   the   application



       filed   by   the   respondents/plaintiffs   in   each   suit



       under Order 39 Rules 1 and 2 read with Section


                                                                     34


 151   CPC,   injunction   against   the   appellants   to



 restrain them from implementing resolution dated



 February   18,   2003   amending   Rule   18   of   the



 Rules   and   Regulations   of   SCBA   till   the   final



 disposal   of   the   suits,   was   claimed.     A   bare



 perusal of the plaint of Civil Suit No. 100 of 2003



 indicates   that   the   respondent   has   claimed



 following reliefs in the plaint: -




 "a.     A   decree   of   declaration   declaring   that

         the resolution dated 18.2.2003 passed

         by the alleged General Body Meeting of

         Supreme   Court   Bar   Association

         amending   Rule   18-III   is   illegal   and

         ineffective;


b.      pass   a   decree   of   perpetual   injunction

        restraining   the   defendant   No.   1

        Association   and   its   office   bearers   from

        implementing   the   resolution   dated

        18.2.2003   in   the   ensuing   elections   of

        Supreme            Court         Bar         Association

        proposed to be held on 25.4.2003;


c.      This Hon'ble Court may also be pleased

        to   restrain   the   defendant   No.   1

        association,   its   election   officer(s)   from

        debarring   any   of   the   members   of

        Supreme   Court   Bar   Association   who

        have   already   paid   their   subscription

        from   casting   their   vote   in   the   ensuing

        elections.


d.      Any   other   proper   and   further   order

        which this Hon'ble Court deems fit may


                                                                      35


             kindly   be   passed   in   favour   of   the

             plaintiff and against the defendants."





Thus,   the   learned   Judge   has   decreed  the   suit   partially



by granting injunction without adjudicating rival claims



of   the   parties.     This   Court   in   catena   of   reported



decisions has laid down the principle that interim relief,



which   has   tendency   to   allow   the   final   relief   claimed   in



the   proceedings,   should   not   be   granted   lightly.     No



special   circumstances   have   been  mentioned   in   the   two



impugned orders which would justify decreeing the suits



at   interim   stage.     The   relief   granted   by   the   learned



Judge   at   the   interim   stage   was   not   warranted   by   the



facts of the case at all.  Therefore, the impugned orders



are also liable to be set aside on this ground.




21.     Further,   Order   39   Rule   1   deals   with   cases   in



        which  temporary  injunction   may  be  granted  and



        inter   alia   provides   that   where   in   any   suit   it   is



        proved   by   affidavit   or   otherwise   -   (a)   that   any



        property in dispute in a suit is in danger of being



        wasted, damaged or alienated by any party to the


                                                                    36


        suit,  or  wrongfully sold in  execution  of  a decree,



        (b)   that   the   defendant   threatens,   or   intends,   to



        remove  or  dispose  of  his  property  with  a  view  to



        defrauding   his   creditors,   (c)   that   the   defendant



        threatens to dispossess the plaintiff or  otherwise



        cause   injury   to   the   plaintiff   in   relation   to   any



        property in dispute in the suit, the Court may, by



        order,   grant   a   temporary   injunction   to   restrain



        such   act,   or   make   such   other   order   for   the



        purpose   of   staying   and   preventing   the   wasting,



        damaging, alienation, sale removal or disposition



        of the property or dispossession of the plaintiff, or



        otherwise   causing   injury   to   the   plaintiff   in



        relation to any property in dispute in the suit as



        the Court thinks fit until the disposal of the suit



        or until further orders.




        Order 39 Rule 2 deals with injunction to restrain



repetition   or   continuance   of   breach   and   inter   alia



provides   that   in   any   suit   for   restraining   the   defendant



from committing a breach of contract or other injury of



any  kind,  whether  compensation  is claimed in   the  suit


                                                                    37


or   not,   the   plaintiff   may,   at   any   time   after   the



commencement   of   the   suit   and   either   before   or   after



judgment, apply to the court for a temporary injunction



to restrain the defendant from committing the breach of



contract   or   injury   complained   of,   or   any   breach   of



contract or injury of a like kind arising out of the same



contract or relating to the same property or right.




        As is well-known Section 151 deals with saving of



inherent powers of the Court and provides that nothing



in   Civil   Procedure   Code   shall   be   deemed   to   limit   or



otherwise affect the inherent power of the court to make



such orders as may be necessary for the ends of justice



or to prevent abuse of the process of the Court.




22.     It   hardly   needs   to   be   emphasized   that   in   any



        Body   governed   by   democratic   principles,   no



        member has a right to claim an injunction so as



        to   stall   the   formation   of   the   Governing   Body   of



        the Association.    No such right exists in election



        matters   since   exercise   of   a   right   conferred   by   a



        rule   is   always   subject   to   the   qualifications


                                                                         38


       prescribed   and   limitations   imposed   thereunder.



       The   contention   of   the   respondents   that   the



       amendment   to   Rule   whereunder   the   right   to   be



       eligible to contest for any post for the Association



       or   the   eligibility   to   cast   the   vote   at   the   election,



       takes away the  right  completely, is misconceived



       since   by   the   amendment   the   right   is   not   taken



       away   but   is   preserved   subject   to   certain



       restrictions on its exercise and this could always



       be done.




23.    It is important to notice that what the impugned



       Rule does is that it only declares the eligibility of



       a member to contest and vote and does not take



       away ipso facto the right to vote.   The impugned



       Rule   only   prescribes   the   eligibility   or   makes   a



       person   ineligible   in   the   circumstances   stated



       therein   which   is   the   nature   of   a   reasonable



       restriction   as   the   right   to   vote   is   neither   a



       common   law   right   nor   Fundamental   Right   but   a



       statutory   right   prescribed   by   the   statute   as   has



       been   held   in   several   reported   decisions   of   this


                                                             39


Court.     What   is   necessary   to   be   noticed   here   is



that   the   impugned   clause   in   the   Rule   is   not   the



only   clause   prescribing   ineligibility   to   vote   as



there are other eligibility conditions or ineligibility



restrictions within Rule 18, which may also make



a   person   ineligible   to   vote.     The   challenge,



therefore, to this ineligibility of filing a declaration



not   to   vote   at   the   elections   to   any   other   Bar



Association is erroneous in law.  If a person is the



member of several  associations  of  advocates and



wants   to   participate   in   the   affairs   of   different



associations   of   which   he/she   is   a   member,



he/she   may   not   be   in   a   position   to   be   really



involved in the affairs of all associations of which



he/she   is   the   member.     A   person   who   is   a



member of more than one association would form



a different class than the person who is a member



of   only   one   association   of   lawyers,   particularly,



the   association   of   the   Court   in   which   he/she



regularly   practices.     Though   an   advocate   can   be



member of several associations, the right to form


                                                               40


an association  or be a member of an association



does   not   necessarily   include   the   right   to   vote   at



every such association's General Body Meeting or



election meetings and the rules of the association



can circumscribe the voting rights of members of



such   association   by   prescribing   eligibility   and



ineligibility.  It is an admitted position that SCBA



today has temporary members who do not have a



right to vote.   Similarly, non-active members and



associate   members   do   not   have   a   right   to   vote.



Thus, these are all reasonable restrictions which



have   been   prescribed   and   are   not   open   to



challenge   as   there   is   no   Fundamental   Right   to



vote.     After   all   a   Bar   Association   in   a   court   is



formed for the purpose of seeing that all lawyers



practicing   normally   and   regularly   in   that   court



work under one umbrella and be in a position to



interact with the Judges or officials of that court



for   any   grievance   through   their   elected   body



because individual lawyers are not supposed nor



it  is  proper   for  them  to  interact  with   the  Judges


                                                                        41


        so as to preserve and secure the independence of



        judiciary.




24.     The   argument   of   the   respondents   was   that   the



        right   to   vote   available   to   a   member   has   been



        infringed or curtailed but this argument does not



        appear   to   be   correct   for   the   simple   reason   that



        though   the   Rule   is   couched   in   a   negative



        language,   it   preserves   the   right   of   a   Member   to



        either   contest   or   to   cast   his   vote   in   the   election



        subject to his exercising an option to vote only in



        the   SCBA   and   not   in   any   High   Court/District



        Court Bar Association.




        This   is   amply   clear   from   the   amended   provision



whereunder   every   member   before   casting   his   vote,   is



required,   in   the   prescribed   form,   to   give   a   declaration



that   he   has   not   voted   in   any   other   election   of   any



advocates   in   the   High   Court/District   Court   Bar



Association.     The   restriction   on   the   right   to   vote   of   a



member   is   provided   with   an   avowed   object   of   better



welfare   and   convenience   of   those   advocates,   who   are


                                                                     42


regularly   practicing   in   this   Court   and   who   are   directly



concerned with day-to-day affairs of the Supreme Court.



Such   restriction   in   fact   subserves   Article   145   of   the



Constitution   and   other   statutory   provisions   relating   to



advocates.     As   right   to   vote   is   not   an   absolute   right



recognized in common law and is always subject to the



statute/Rules   creating   such   rights,   it   is   equally   well



settled   that   the   exercise   of   such   right   could   always   be



subject   to   the   provisions   of   the   Statute/Rules   creating



it.     Under   the   circumstances,   the   contention   advanced



by   the   respondents   that   their   right   to   vote   was   either



curtailed   or   abridged   should   not   have   been   lightly



accepted by the learned Judge.




25.     The right to form an association is recognized as


        a Fundamental Right under Article 19(1)(c) of the



        Constitution.     The   provision   in   the   SCBA   Rules



        for prescribing eligibility to vote at only one of the



        associations,   i.e.,   "One   Bar   One   Vote"   is   a



        prescription   which   is   in   furtherance   of   the   right



        to   form   association   and   be   able   to   manage   the



        affairs   of   the   association   by   those   who   regularly


                                                                 43


practice in the courts of which the association is



formed   and   of   which   the   members   are   regular



practitioners.     It   will   not   be   out   of   place   to



mention that a person having become ineligible to



vote   because   of   having   voted   at   another



association   election   does   not   (a)   lose   the



membership   of   the   association   nor   (b)   is   in   any



way   hampered   or   restricted   in   the   use   of   other



facilities,   which   the   association   provides   to   its



members            such         as         library,         canteen,



telecommunication,   car   parking,   etc.       Having



regard  to   the   aims   and  objects   as  set  out   in   the



Memorandum   of   Association,   it   is   evident   that



one   of  the  primary  objectives of  formation   of the



association was to have a Body of Advocates who



are   attached   to   and   practicing   in   the   Supreme



Court   of   India.     In  Smt.   Damyanti   Naranga  vs.


The   Union   of   India   and   others  (1971)   1   SCC


678, this Court has authoritatively laid down that


the   right   to   form   an   association   necessarily



implies that persons forming the association have


                                                                  44


also   the   right   to   continue   to   be   associated   with



only   those   whom   they   voluntarily   admit   in   the



association.           In     Zoroastrian   Cooperative


Housing   Society   Ltd.   and   others  vs.  District


Registrar,   Cooperative   Societies   (Urban)   and


others  (2005)   5   SCC   632,   in   the   context   of


Fundamental   Right   to   form   an   association



excluding others and the right of the Members of



the   association   to   keep   others   out,   it   has   been



held in para 17 at page 651 as under: -




"Section   24  of the   Act, no  doubt, speaks of

open membership, but Section 24(1) makes

it   clear   that   open   membership   is   the

membership   of   a   person   duly   qualified

therefore   under   the   provisions   of   the   Act,

the   Rules   and   the   bye-laws   of   the   Society.

In   other   words,   Section   24(1)   does   not

contemplate   an   open   membership   dehorns

the bye-laws of the society.   Nor do we find

anything   in   the   Act   which   precludes   a

society   from   prescribing   a   qualification   for

membership based on a belief, a persuasion

or   a   religion   for   that   matter.     Section   30(2)

of   the   Act   even   places   restrictions   on   the

right   of   a   member   to   transfer   his   right.     In

fact,   the   individual   right   of   the   member,

Respondent   2,   has   got   submerged   in   the

collective   right   of   the   Society.     In  State   of

U.P.   v.   C.O.D.   Chheoki   Employees'   Coop.

Society   Ltd.  (1997)   3   SCC   681,   this   Court

after   referring   to  Daman   Singh  vs.  State   of


                                                                       45


       Punjab  (1985)   2   SCC   670,   held   in   para   16

       that: (SCC p. 691)


             "16. Thus,   it   is   settled   law   that   no

             citizen  has   a  fundamental  right   under

             Article 19(1)(c) to become a member of

             a   cooperative   society.     His   right   is

             governed   by   the   provisions   of   the

             statute.   So, the right to become or to

             continue being a member of the society

             is   a   statutory   right.     On   fulfillment   of

             the qualifications prescribed to become

             a   member   and   for   being   a   member   of

             the   society   and   on   admission,   he

             becomes   a   member.     His   being   a

             member of the society is subject to the

             operation   of   the   Act,   rules   and   bye-

             laws   applicable   from   time   to   time.     A

             member   of   the   society   has   no

             independent right  qua  the   society  and

             it   is   the   society   that   is   entitled   to

             represent   as   the   corporate   aggregate.

             No   individual   member   is   entitled   to

             assail   the   constitutionality   of   the

             provisions   of   the   Act,   rules   and   the

             bye-laws as he has his right under the

             Act,   rules   and   the   bye-laws   and   is

             subject   to   its   operation.     The   stream

             cannot rise higher than the source."





26.    In   matters   of   internal   management   of   an



       association, the courts normally do not interfere,



       leaving   it   open   to   the   association   and   its



       members   to   frame   a   particular   bye-law,   rule   or



       regulation which may provide for eligibility and or


                                                                    46


       qualification   for   the   membership   and/or



       providing   for   limitations/restrictions   on   the



       exercise  of any  right  by and  as a  member of  the



       said association.




       It   is   well   settled   legal   proposition   that   once   a



person   becomes   a   member   of   the   association,   such   a



person looses his individuality qua the  association  and



he has no individual rights except those given to him by



the   rules   and   regulations   and/or   bye-laws   of   the



association.




27.    It should have been noticed by the learned Judge



       that          the         plaintiffs/respondents         claimed



       injunction   on   the   basis   that   the   right   to   contest



       and   vote   in   the   election   of   the   SCBA   had   been



       adversely   affected   and,   therefore,   they   invoked



       the   provisions   of   Order   39   Rules   1   and   2   read



       with Section 151 CPC.  The amended Rule 18 has



       not   taken   away   right   to   vote   completely   but   has



       put   restrictions   to   promote   and   protect   the



       privileges,   interest   and   prestige   of   the   SCBA.


                                                                         47


       Rule   18   was   also   amended   to   promote   and



       maintain   high   standards   of   profession   amongst



       Members of the Bar.  Having regard to the objects



       of   amendment   of   Rule   18,   this   Court   is   of   the



       opinion   that   the   learned   Judge   should   not   have



       granted   the   injunction   as   claimed   by   the



       plaintiffs/respondents for mere asking.




28.    Originally enacted Rule 18 provided for eligibility



       of   members   to   contest   and   vote   at/in   the



       elections.  An important provision is contained in



       Rule   18(II)(4)   to   the   effect   that   non-active



       members   and   associate   members   shall   not   have



       the right to vote.   In light of the above provisions



       of   the   Rules,   more   particularly,   Rule   5(1)(v),   the



       eligibility of every advocate entitled to practice law



       for   being   a   member   of   the   Supreme   Court   Bar



       Association is subject to the provisions of the said



       Rules.     In   other   words,   an   absolute   right   as   is



       sought          to         be         asserted         by         the



       plaintiffs/respondents is controlled by conditions,


                                                                  48


       qualifications,   disqualifications   and   restrictions



       imposed by the said Rules.




29.    The   power   to   amend   Rules   is   specifically


       conferred   under   Rule   39   whereunder   it   is



       provided   that   the   Rules   and   the   bye-laws   of   the



       Association   shall   be   subject   to   such   conditions



       and/or   modifications,   as  may   from   time   to   time,



       by   resolution   passed   by   at   least   2/3rd  of   the



       Members present and voting at the General Body



       Meeting.     Therefore,   any   part   of   the   Rules   could



       always   be   amended.     As   noticed   earlier,   SCBA



       being   a   Society   registered   under   the   Societies



       Registration Act, is governed by its Memorandum



       of Association.  The said Association is entitled to



       have its own Rules and Regulations.  In fact, it is



       contemplated   in   the   Act   that   a   Committee   of



       management   can   be   constituted   to   manage   the



       affairs of the Society as specified in the Rules and



       Regulations.   The Memorandum of Association is



       a   contract   amongst   the   members   of   the   Society,



       which though required to be registered under the


                                                                      49


       Statute, does not acquire any statutory character.



       These are rules which govern internal control and



       management   of   the   Society.     The   authority   to



       frame,   amend,   vary   and   rescind   such   rules,



       undoubtedly,   vests   in   the   General   Body   of   the



       Members of the Society.  The power to amend the



       rules is implicit in the power to frame rules.




30.    Yet, another ground of attack in the suits filed by



       the   respondents   is   with   reference   to   notice   of



       meetings and  the  manner  of holding  of meetings



       including   Special   General   Meeting.     The   record



       produced by the SCBA before this Court indicates



       that   the   meeting   in   which   the   amendment   was



       carried   out   in   Rule   18   was   held   in   accordance



       with   Rule   22   because   it   was   a   Special   General



       Meeting.     The   holding   of   meetings   including



       Special General Meeting is governed by Rules 21,



       22 and 23, which read as under: -




       "21. MEETINGS


       The   Annual   General   Meeting   of   the

       Association shall ordinarily be held not later

       than   15th  day   of   May   every   year.     Not   less


                                                              50


than   15   days   notice   shall   be   given   to   the

members   of   the   Annual   General   Meeting.

The   following   shall   along   with   other

business   that   may   be   required   to   be

transacted, be included in the agenda of the

Annual General Meeting.


a) Auditor's   Report   on   the   Account   and

   Balance Sheet of Budget estimate;


b) Report of the Secretary on the activities of

   the terms which will include report of the

   work   of   committee   other   than   the

   Executive Committee;


c) The   election   of   the   officers   of   the

   Association   and   Members   of   Executive

   Committee   or   other   committees   and

   appointment of Auditors;


d) The approval of the  revenue account and

   the   balance   sheet   of   the   affairs   of   the

   Association   as   on   31st  March   of   the

   previous year duly passed.





22.     SPECIAL GENERAL MEETING


  The Committee may call a General Meeting

on   7   days   notice   to   the   Members   provided

that   a   Special   General   Meeting   may   be

called on a shorter notice.


        Provided that the Secretary may call an

emergent   General   Meeting   on   any   day   by

affixing a notice to that effect on the notice

board of the Association and circulating the

same   to   the   Members   as   can   be

conveniently informed.


        The   Committee   shall   call   a   General

Meeting  or  a   Special  General  Meeting  upon


                                                                51


the   requisition   given   in   writing   by   at   least

150   Members   of   the   Association   in   respect

of any matter.   The requisition specified the

matter   or   question   to   be   laid   before   the

meeting   and   shall   be   addressed   to   the

Secretary.     The   meeting   shall   be   called   not

later than 2 weeks after the receipt of such

requisition.     The   quorum   at   the   Annual

General   Meeting   or   a   General   Meeting   or   a

Special   General   Meeting   shall   be   50

Members.     In   absence   of   such   quorum   the

meeting   shall   stand   adjourned   to   such   a

date and time as the Chairman may appoint

and   for   such   adjourn   meeting   no   quorum

will be necessary.


23.       NOTICE OF MEETING


1.        The   notice   of   the   Annual   General

Meeting or any of the Special Meeting shall

be given by: -


(a)       Circulating   the   notice,   to   such

          members   as   can   conveniently   be

          informed in that way;


(b)       Sending   out   such   notices   by   post

          addressed   to   every  non-resident  and

          associate   member   and   to   every

          resident   member   who   may   have

          required   the   Secretary   to   send   the

          notice   in   this   way   and   has   registered

          his   address   in   the   office   of   the

          Association;


The   notice   of   the   meeting   other   than   the

Annual General Meeting shall be given by:


(a) Affixing the notice on the notice board of

       the Association;


(b) Circulating   the   notice   to   such   members

       as   may   be   conveniently   informed   in   that

       way."


                                                                    52




As   can   be   seen   from   the   bare   reading   of   these   Rules,



notice by post has to go to non-resident members and to



resident   members only   if   request   in   writing  is   made   to



the Secretary that notices should be sent to him by post



at his registered address, otherwise, notice by affixation



on notice board and by circulating the notice, normally



done with cause list is sufficient notice.  The record does



not indicate at all that any of the plaintiffs/respondents



had   given   any   notice  to   the   Secretary   of   SCBA   that   he



should be informed individually by a notice in writing of



holding   of   any   meeting   by   sending   it   at   his   registered



address.     There   is   weighty   reason   as   to   why   notice   by



affixation   on   the   notice   board   and   by   circulating   the



notice   with   cause   list   should   be   regarded   as   sufficient



notice.  This is obviously so because advocate members



normally practicing in this Court would be made aware



by   these   methods   of   notice.     Thus   the   ground   of



improper   holding   of   the   meeting   or   lack   of   service   of



notice   upon   the   plaintiffs/respondents   are   devoid   of


                                                                  53


merits and could not have been taken into consideration



while granting injunction claimed by them.




31.    On   page   2   of   the   paper   book   the   learned   trial



       judge has mentioned details of the plaint and has



       categorically stated as under: -




       "It is disclosed in the plaint that members of

       defendant   No.   1   are   scattered   in   various

       parts   of   the   country   including   Delhi   and

       majority of them do not visit the SCBA office

       on regular basis."





In para 3 of the plaint it is averred as under: -




       "Since   all   the   members   including   the

       plaintiff do not visit the Supreme Court and

       office of the defendant No. 1 Association on

       regular basis, they do not have an occasion

       to acquaint themselves about all the notices

       and circulars put up by the defendant No. 1

       Association   on   its   notice   boards   in   the

       Supreme Court building."





Further, at page 19 of the paper book a finding has been



arrived at by the trial court as under: -




       "Most   of   the   members   do   not   ordinarily

       practice in the Supreme Court of India and

       are members of other association."


                                                                    54


In the light of above pleadings, it is quite clear that the



plaintiffs/respondents   who   were   seeking   to   challenge



the impugned Rule which prescribed an eligibility clause



to enable them to vote, have candidly admitted that they



are not  regular  practitioners of the  Supreme Court nor



do they attend the Supreme Court on regular basis nor



are   aware   of   the   circulars   circulated   by   the   SCBA   or



pasted   on   the   information   board   of   the   SCBA.     This   is



something which has been totally overlooked by the trial



court   in   arriving   at   a   conclusion   in   favour   of   the



plaintiffs/respondents   without   examining   the   true   and



correct import of Rule 23 of the Rules, which prescribes



the method of giving notice of the meeting.   There is no



manner of doubt that the trial court has committed an



error   in   coming   to   the   conclusion   that   in   any   case



individual notice was required to be given when the rule



does not warrant giving of any such individual notice.




32.     The three reasons indicated by the learned Judge



        in the impugned orders for grant of injunction are



        not   sustainable   at   all   and,   therefore,   the



        impugned orders will have to be set aside.


                                                                 55


33.    Further, the appellants had rightly pointed out to



       the   learned   Judge   that   election   process   had



       already   started   and,   therefore,   injunction,   as



       claimed, should not be granted.   Since 1952 this



       Court   has   authoritatively   laid   down   that   once



       election process has started the courts should not



       ordinarily  interfere  with  the   said  process   by  way



       of   granting   injunction.     The   argument   advanced



       by   the   appellants   that   election   process   having



       started,   the   injunction   should   not   be   granted   is



       dealt with by the learned Judge by holding that in



       the present case the plaintiffs have not prayed for



       injunction   against   the   election   process.     This



       Court   has   no   doubt   at   all   that   the   injunction



       granted   by   the   learned   Judge   has   propensity   to



       intervene   and   interfere   with   election   process



       which   had   already   started.     Apart   from   the



       prayers   claimed   in   the   applications   filed   under



       Order   39   Rules   1   and   2   read   with   Section   151



       CPC   the   Court   could   not   have   ignored  the  effect



       of   granting   an   injunction.     If   the   injunction


                                                                    56


       granted   by   the   learned   Judge   had   not   been



       stayed   by   this   Court,   the   office   bearers   of   the



       SCBA would have been required to prepare a new



       voters   list   as   if   unamended   Rule   18   was   in



       operation   and   the   exercise   undertaken   by   them



       for   preparing   voters   list   in   the   light   of   the



       amended   Rule   18   would   have   been   of   no



       consequence.  Thus the injunction claimed by the



       plaintiffs/respondents   which   had   very   wide



       repercussions on the elections, which were to be



       held   in   the   year   2003,   should   not   have   been



       granted by the learned Judge.




34.    The impugned order is also liable to be set aside



       on   yet   another   ground.     Though   the   suits   were



       not   filed   in   a   representative   capacity,   the



       injunction is granted by the court restraining the



       appellants   from   implementing   the   resolution



       dated   February   18,   2003   in   respect   of   all



       advocates   and   not   in   respect   of   two   advocates



       only   who   have   filed   Civil   Suit   Nos.   100   of   2003



       and   101   of   2003   respectively.     A   perusal   of   the


                                                                     57


       plaint  in  the   two  suits makes it  more  than  clear



       that   suits   are   not   filed   in   a   representative



       capacity.     In   the   plaint,   individual   rights   to   vote



       at   the   election   of   the   Executive   Committee   of



       SCBA   is   claimed.     Even   if   extremely   good   case



       was made out by the plaintiffs/respondents of the



       two suits, the relief could have been confined only



       to   the   two   plaintiffs/respondents   and   a   relief



       granting   blanket   injunction   restraining   the



       appellants   from   implementing   the   Resolution



       dated February 18, 2003 amending Rule 18 of the



       Rules   and   Regulations   of   SCBA   till   the   final



       disposal of the suits could not have been granted.




35.    For all these reasons impugned common order is



       liable to be set aside and is hereby set aside.




36.    Mr.   K.K.Venugopal,   an   august   and   well-known



       senior  lawyer, who  is regularly  practicing  in  this



       Court since years and was also former President



       of SCBA at least for three years and who was also



       Chairman, Interim Board of Management in 2010


                                                            58


when  the   Executive  Committee   of  the   SCBA   had



dissolved   itself   and   appointed   the   Interim   Board



of Management, submitted that the statements of



aims   and   objectives   of   the   SCBA,   among   others,



includes   the   objective,   viz.,   "to   promote   and



protect the privileges, interest and prestige of the



association   and   to   promote   union   and



cooperation   among   the   advocates   practicing   in



the   court   and   other   association   and   advocates".



According  to   the   learned  counsel,  the   phrase   "to



promote   union   and   cooperation   among   the



advocates   practicing   in   the   court   and   other



association   and   advocate"   is   to   promote   union



and   cooperation   among   the   advocates   practicing



in   the   Supreme   Court,   on   the   one   hand,   and



other   advocates   or   associations   of   advocates,   on



the other, which itself indicates that SCBA exists



for   the   advocates   practicing   "in   the   court",   i.e.,



Supreme   Court   of   India.     The   learned   counsel



explained that SCBA exists for  the  benefit of the



advocates   in   the   Supreme   Court   of   India   and


                                                           59


SCBA   owes   a   fiduciary   duty   to   such   advocates



and   members   of   the   SCBA   for   protecting   their



privileges,   interests   and   prestige.     The   learned



counsel   asserted   that   the   SCBA   is,   therefore,



entitled   to   seek   the   protection   of   the   Court   by



invoking Article 142 of the Constitution to ensure



that   the   members   practicing   in   the   Supreme



Court   are   not   rendered   incapable   of   enjoying,   to



the   full,   the   privileges   and   benefits   in   the



Supreme   Court   of   India,   which   has   provided



infrastructure   and   facilities   in   the   nature   of



libraries,   car   parking,   chambers,   canteens,



lounges,   etc.     The   learned   counsel   pointed   out



that the factual situation, which has been placed



before   the   Court,   would   establish   that   today   the



membership   of   the   SCBA   has   risen   to   an   mind-



boggling   figure   of   around   10,000,   of   which   only



around 2,000 members are regularly practicing in



this   Court.     Informing   the   Court   the   learned



counsel   mentioned   that   historically,   with   the



advocates   regularly   practicing   in   the   Supreme


                                                           60


Court   being   inducted   as   members   of   the   SCBA,



the  facilities  made  available  by this  Court  to   the



members were sufficient for their use, but certain



unhealthy practices and vices started creeping in



to   the   system   of   elections   to   the   various



posts/offices   of   the   SCBA   by   reason   of   the   fact



that the office of the President of SCBA carried a



vast   prestige   and   status,   not   merely   among



lawyers   but   also   among   Governments   and   the



political class.   It was also stated by the learned



counsel that being an office bearer of a member of



the Executive Committee of the SCBA also carried



great importance  and  prestige.   According to  the



learned counsel, the main vice that crept into the



system,   for   the   last   decade   or   so   was   that



aspiring   office   bearers   started   buying   the



application   forms   for   membership,   in   bulk,   and



paying   the   membership   fee   for   lawyers   from   the



various  places  like  Meerut,  Rohtak,  Saharanpur,



Ghaziabad   and   even   as   far   away   a   place   as



Chandigarh.  The learned counsel Shri Venugopal


                                                           61


claimed   as   Chairman   of   the   Interim   Board   of



Management   that   one   came   across   as   many   as



100   subscription   forms,   paid   with   consecutive



bank   draft   numbers,   as   disclosed   by   the   bank



statements   obtained   by   the   Interim   Board   of



Management, which showed that a single sponsor



had   paid   vast   sums   of   money   for   each   of   these



forms   and   memberships,   the   membership   fee



being   Rs.5,150/-   for   advocates   with   ten   years



standing   and   Rs.3,650/-   for   advocates   with   less



than   ten   years   standing.     It   was   emphasized   by



the learned counsel that practices like these have



resulted   in   the   present   strength   of   the   SCBA



being around 10,000 and it is a well known  fact



among   the   members   of   the   Bar   regularly



practicing   in   the   Supreme   Court   of   India   that



persons   inducted   into   the   SCBA   through   such



means,   numbering   about   8,000,   are   seen   in   the



Supreme Court premises only on the day of SCBA



elections  for  casting their  votes, otherwise, these



persons have no interest whatsoever either in the


                                                              62


functioning   of   the   SCBA   or   the   well   being   of   its



members or the functioning of the Supreme Court



of   India,   as   a   Court.     The   learned   counsel   has



produced   minutes   of   the   meeting   of   the   Interim



Board   of   Management   dated   March   22,   2010



along with his written submissions for perusal of



the Court.   The learned senior counsel lamented



that   all   these   would   disclose   the   disgraceful



condition   to   which   SCBA   has   been   reduced   on



account   of   machinations   and   malpractices   of



certain   members   of   the   SCBA,   who   are   aspiring



for   offices   in   the   Executive   Committee   of   the



SCBA.     The   learned   counsel   has   also   appended



copies   of   Allotment   of   Lawyers'   Chambers   Rules



as amended up to November 30, 2007 as well as



letter   dated   August   10,   2004   inter   alia



prescribing   eligibility   to   apply   for   allotment   of



chambers   along   with   his   written   submissions.



The   learned   counsel   has   pointed   out   that   the



SCBA   is   facing   a   crises   today,   because   of   the



induction of the vast number of members who do


                                                              63


not   practice   regularly   in   the   Supreme   Court   of



India and, therefore, have no interest whatsoever



in   the   function   of   the   Apex   Court   or   in   the



reputation,   prestige   and   well   being   of   the   SCBA



whereas, on the other hand, the sole objective of



such   persons   is   to   ensure   that   their   respective



sponsor(s),   who   paid   their   subscription   and



entrance fee, would be elected to one of the posts



of   the   SCBA,   including   the   post   of   SCBA



President.     The   learned   counsel   has   expressed



apprehension that the day may not be far of when



the entire set of office bearers of the SCBA may be



persons with no regular practice in the Supreme



Court   of   India   and   who   may   have   their   regular



practice   in   other   courts   in   Delhi   or   even   in   the



adjoining towns or even in a city as far away from



Delhi   as   Chandigarh.     The   learned   counsel



argued   that   the   SCBA   has   to   shoulder   great



responsibility   in   regard   to   the   effective



functioning   of   the   Supreme   Court   itself,   the



dispensation   of   justice   and   to   represent   the


                                                                  64


regular practicing members of the Bar from time



to   time.     According   to   the   learned   counsel   the



present   situation,   which   virtually   renders   the



regularly   practicing   members   strangers   in   their



own court can only be remedied if this Court were



to   step   in,   to   exercise   its   vast   powers   under



Article 142 of the Constitution, to ensure that the



functioning   of   the   Court   itself   is   not   affected   by



reason   of   the   huge   influx,   into   the   SCBA,   of



advocates who have no interest in the functioning



of  the  Supreme Court, its Bar  or  its association.



The   learned   counsel   asserted   that   the



circumstances   prevailing   are   such   that   it   is



imperative for the well being of the institution, as



well   as   Apex   Court   of   the   country   itself,   and   its



regularly practicing members to ensure that it is



only the regularly practicing members who will be



eligible  to  cast  votes  at  the  SCBA  elections.     For



this   purpose   the   learned   counsel   has   suggested



that   it   is   essential   that   the   right   to   vote   in   the



SCBA   elections   is   restricted   to   the   categories   of


                                                                     65


        persons   enumerated   in   the   Interim   Board   of



        Management circular dated March 22, 2010, the



        relevant   portion   whereof   has   been   extracted   in



        the written submissions.




        Mr.   P.P.Rao,   learned   celebrated   senior   counsel



regularly practicing in this Court since long and who is



also former President of SCBA, has emphasized that the



very   name   of   Bar   Association,   viz.,   SCBA   necessarily



means and implies that it is an association representing



members   regularly   practicing   in   the   court   and



responsible   for   proper   conduct   of   its   members   in   the



court   and   for   ensuring   proper   assistance   to   the   court.



The   learned   counsel   has,   in   his   written   submissions,



mentioned   that   SCBA   needs   to   be   salvaged   from   the



deluge   of   overwhelming   numbers   of   outside   advocates



practicing   not   only   in   the   NCTR   but   even   all   other



States   in   North   India   who   had   been   enrolled   by   short-



sighted   candidates   with   an   eye   on   their   election   to   the



SCBA.     The   learned   counsel   has   asserted   that   unless



this Court comes to the rescue of SCBA, the association



will   cease   to   be   a   court   annexed   Bar   Association   and


                                                                   66


words   "Supreme   Court"   will   have   to   be   dropped   and



substituted   by   the   words   "North   India".     Emphasizing



that the character of the SCBA should not be allowed to



be   diluted   in   any   circumstances,   the   learned   counsel



has asserted that this is a fit case for exercise of powers



under   Article   142   of   the   Constitution.     The   learned



counsel   Mr.   P.P.   Rao   has   suggested   that   to   identify



regular   practitioners   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  at   pages   465-467   para   7,   may   be


adopted   or   in   the   alternative   criteria   mentioned   in   the



circular   dated   March   22,   2010   issued   by   the   Interim



Board   of   Management   of   the   SCBA   consisting   of   M/s.



K.K. Venugopal, Chairman, Mr. P.P. Rao, Vice Chairman



and Mr. P.H. Parekh, Member - Executive and Convener



may be considered for acceptance mutatis mutandis.




        Mr.   Ranjit   Kumar,   a   distinguished   attorney   of



this   Court,   who   is   appointed   as   amicus   curie   in   this



matter   to   assist   the   Court,   Mr.   Sushil   Kumar   Jain,



learned President, Supreme Court Advocates-on-Record


                                                                 67


Association,   Mr.   D.K.Garg,   learned   Counsel   for   the



respondent   and   who   was   also   in   past   President   of



Supreme   Court   Advocates-on-Record   Association,



pointed out to this Court the difficulties being faced by



regular  members of the SCBA because of enlistment of



large   number   non-regular   advocates   as   members   of



SCBA, who according to them, now constitute a majority



as a result of which the SCBA has not been able to take



any decision which would be in the interest of the Bar.



The   learned   Counsel   have   stated   in   their   written



submissions  filed,  to   supplement  their   oral  arguments,



that   there   are   more   than   ten   thousand   members   of



SCBA   out   of   which   only   two   thousand   advocates   are



regular   members   who   actually   practice   in   this   Court



and   eight   thousand   non-regular   members   have   taken



over the affairs of the SCBA in such a manner that it is



almost   impossible   for   the   regular   members   to   transact



any   business   in   the   general   or   special   meetings   of



SCBA.     The   learned   Counsel   emphasized   that   yearly



subscription   for   members   of   SCBA   for   many   decades



remained   fixed   at   a   paltry   amount   of   Rs.   500/-   and


                                                                      68


every   time   when   a   proposal   was   made   to   increase   the



subscription the same was rejected by the General Body



dominated by these non-regular members and that only



recently  with   great   difficulty   the   subscription   has   been



revised   to   Rs.  1500/-  by   secret  ballot   held   within   high



security   area   of   Supreme   Court   namely   Library   1,   but



now there is a demand to reduce it again to Rs. 500/-.



The learned Counsel pointed out that if the subscription



for   members   of   SCBA   is   again   revised   and   reduced   to



Rs.500/-, it will be a boon not only for such non-regular



members but also a boon for the candidates contesting



elections   who   will   have   to   shell   out   less,   for   enrolling



those advocates who are not practicing regularly in this



Court,   to   secure   their   votes   and   get   elected.     It   was



emphasized   that   the   enhanced   subscription   is   in   the



interest   of   association   as   it   would   not   only   improve



financial position of SCBA but also help to keep at bay



those members who are not regularly practicing in this



Court.     The   learned   Counsel   argued   that   this   Court



provides   to   the   members   of   SCBA,   who   are   regularly



practicing in this Court, several facilities/benefits such


                                                                 69


as bar rooms, libraries, canteens, parking place, clinics,



rest   rooms   etc.,   and   as   SCBA   is   intrinsically   and



inextricably connected with the working of the Supreme



Court, this Court should give appropriate directions for



effective implementation of "One Bar One Vote" concept



introduced by the amended rule in exercise of its powers



under   Articles   136,   142   and   145(1)   (a)   of   the



Constitution   to   relieve   the   SCBA   of   the   number   of



maladies which have now come to be associated with it



and   to   improve   the   working   of   the   institution   as   a



whole.     What   was   stressed   by   all   the   learned   Counsel



was that it is not in the interest of SCBA that advocates



who  do not  practice in this Court regularly, vote for  or



get elected to the Executive Committee of SCBA, but in



past,   several   members   who   were   themselves   not



regularly practicing in the Supreme Court had contested



elections   for   different   posts   of   Executive   Committee   of



SCBA   though   they   were   already   members   of   the



Executive   Committees   of   other   Court   annexed   Bar



Associations   and   had   come   out   successful   on   the



strength of votes of such non-regular members who are


                                                                     70


to   be   seen  in   the   Court   compound   only   on   the   date   of



elections.   The learned Counsel mentioned that persons



so elected do not participate in the functioning of SCBA



since   they   are   not   affected   by   the   working   or   non-



working of the SCBA which has affected the functioning



of SCBA as a facilitator  in the administration of justice



and therefore in order to maintain purity and dignity of



the profession this Court has not only power but duty to



give   directions   under   Article   136   and   Article   142



particularly   when   request   is   made   by   the   learned



amicus   curie,   SCBA   represented   by   its   Honorary



Secretary,   President   of   Supreme   Court   Advocates-on-



Record Association and other high-ranking lawyers like



Shri K.K.Venugopal, Shri P.P.Rao etc., who are regularly



practicing only in this Court.  Mr. D.K.Garg, the learned



Counsel who represents respondent Mr. B.D.Kaushik in



C.A. No. 3401 of 2003, frankly pointed out to this Court



as an officer of the Court that in spite of other effective



alternative   remedies   available   to   the   appellant   SCBA



against the interim order dated April 5,2003 passed by



the learned Civil Judge, Delhi, this Court had not  only


                                                                   71


entertained   Special   Leave   Petition   filed   by   SCBA,   but



also granted stay because this Court wanted to regulate,



reform   and   improve   the   functioning   of   SCBA   and   to



prevent the misuse of various facilities provided by this



Court   to   the   regular   members   of     SCBA   so   that   the



members   of   the   SCBA   render   best   assistance   to   this



Court in dispensation of justice.   It was also submitted



that SLP was entertained and operation of the impugned



interim   order   was   stayed   by   this   Court   to   prevent   the



interference   of   the   outside   members   in   day-to-day



functioning   of   SCBA   and   therefore   this   Court   should



give directions/frame guidelines to regulate, reform and



improve the functioning of SCBA.   The learned Counsel



pointed out that it is no secret that yearly membership



subscription   fee   of   almost   all   these   non-regular



members   is   paid   by   candidates   contesting   election   for



the   various   posts   of   the   Executive   Committee   of   SCBA



and   the   records   of   SCBA   show   that   hundreds   of   bank



drafts were issued by the same branch of the same bank



in   favour   of   SCBA   for   the   same   amount   towards



subscription   of   SCBA   for   such   non-regular   members


                                                                 72


and   that   some   interested   persons   who   seek   votes   of



these   non-regular   members   in   the   elections   had   paid



the   subscription.     This   last   argument   of   Mr.   D.K.Garg



was endorsed by one and all learned advocates who are



appearing   in   the   matter.     Thus,   the   learned   advocates



have   urged   this   Court   to   give   guidelines/directions   for



effective implementation of amended rule which projects



the principle of "One Bar One Vote".




 37.    This   Court   has   considered   the   request   made   by


         the  learned Counsel appearing in  the  matter to



         give   appropriate   directions/guidelines   for



         effective  implementation  of  "One  Bar  One  Vote"



         principle enunciated by the amended rule.   It is



         a   matter   of  common   knowledge   that   this   Court



         has provided four huge libraries, three canteens,



         two   lounges,   several   rooms   to   be   used   as



         consultation   rooms   where   learned   advocates



         regularly   practicing   in   this   Court   can   consult



         with   their   clients,   arbitration   rooms,   advocate's



         chambers,   huge   parking   places,   free   use   of



         electricity   supply   etc.,   to   the   members   of   the


                                                              73


SCBA.   It is not in dispute that there are about



ten   thousand   members   of   SCBA   at   present



though           the         actual         number            of



advocates/practitioners,   who   are   regularly



practicing   in   this   Court   is   not   more   than   two



thousand   five   hundred   out   of   which   there   are



about nine hundred Advocates-on-Record.   It is



an   accepted   fact   that   on   the   eve   of   annual



elections   of   the   Executive   Committee   of   SCBA,



nearly more than three thousand voters turn up



from   all   over   India   to   come   to   the   premises   of



this   Court,   who   are   made   to   vote   by   the



advocates   seeking   elections   for   various   posts.



Further,   enlistment   of   large   number   of   non-



regular members as members of the SCBA have



created   problems   in   allotment   of   chambers   for



this   Court   and   it   has   been   found   that   large



number   of   non-regular   members   of   SCBA   eats



up the quota of regular members who genuinely



need   the   chambers.     It   was   pointed   by   Shri



Sushil   Kumar   Jain,   the   learned   President   of


                                                        74


Supreme            Court          Advocates-on-Record



Association   that   many   of   the   non-regular



members   who   are   allotted   chambers   are   not



even residing in or around Delhi.   The Supreme



Court   Advocates-on-Record   are   advocates



primarily   practicing   in   the   Supreme   Court   and



are directly affected by the functioning of SCBA



primary   object   of   which   is   to   look   after   the



interest   of   advocates   actually   practicing   in   the



Supreme   Court.     There   is   no   manner   of   doubt



that   Advocates-on-Record   form   an   important



constituent   of   the   SCBA.     All   members   of   the



Supreme            Court          Advocates-on-Record



Association  are  also  members of the  SCBA and



because   of   malpractices   committed   by   the



candidates   who   contest   the   elections   a   large



number   of   advocates   who   are   not   regular



practitioners in the Supreme Court have become



members of SCBA and claim a right, not only to



vote   and   elect   the   office   bearers   of   the



Association but also seek to be elected as office


                                                           75


bearers themselves on the strength and support



of   such   non-regular   members.     Because   such



non-regular  members have  become members  of



SCBA,   they   claim   facilities   which   are   being



extended   to   members   of   SCBA,   who   are



regularly   practicing   in   this   Court.     Because   of



such   claims,   clashes,   had   taken   place   in   the



past.     It   has   been   pointed   out   by   Mr.   Sushil



Kumar   Jain,   learned   President   of   Supreme



Court   Advocates-on-Record   Association   that   by



merely   becoming   members   of   the   SCBA   some



advocates   deem   themselves   to   be   advocates   of



the   Supreme   Court   and   fleece   litigants   on   that



basis.     According   to   Shri   Sushil   Kumar   Jain



such   advocates   call   themselves   as   Supreme



Court   Advocates   and   write/mention   such   a



status on their letter heads, visiting cards, name



plates,   etc.   misleading   the   litigants.     As   rightly



pointed out by the learned counsel Mr. P.P. Rao,



enrolment   of   advocates   not   practicing   regularly



in   the   Supreme   Court   is   inconsistent   with   the


                                                                   76


 main aim and object of the SCBA, no court can



 provide   chambers   or   other   facilities   for   such



 outside   advocates,   who   are   not   regular



 practitioners.     Neither   the   SCBA   nor   the   court



 can deal with them effectively if they commit any



 wrong.  The power of this Court to make certain



 rules,   regulations   and   give   directions   to   fill   up



 the   vacuum   till   such   time   appropriate   steps   in



 order   to   cover   the   gap   are   taken,   is   recognized



 and upheld in several reported decisions of this



 Court.     In  Vineet   Narain  Vs.  Union   of   India


 (1998)   1   SCC   226  this   Court   has   observed   as


 under in Paragraph 51 of the reported decision:-




"In   exercise   of   the   powers   of   this   Court

under   Article   32   read   with   Article   142,

guidelines   and   directions   have   been   issued

in   a   large   number   of     cases   and   a   brief

reference   to   a   few   of   them   is   sufficient.     In

Erach   Sam   Kanga   Etc.   Vs,  Union   of   India,

(Writ   Petition   No.   2632   of   1978   decided   on

20th  March,   1979)   the   Constitution   Bench

laid   down   certain   guidelines   relating   to

Emigration   Act.     In  Lakshmi   Kant   Pandey

Vs.  Union of India  (1984) 2 SCC 244, (in re:

Foreign Adoption), guidelines for adoption of

minor children by foreigners were laid down.

Similarly   in  State   of   West   Bengal   and   Ors.

Etc.   Vs.  Sampat   Lal   and   Ors.   Etc.,   (1985)   1


                                                                    77


        SCC 317,  K. Veeraswami  Vs.  Union of India

        and   Others,  (1991)   3   SCC   655,  Union

        Carbide Corporation and Others Vs. Union of

        India   and   others,   (1991)   4   SCC   584,  Delhi

        Judicial  Service Association  Etc.  Vs.  State  of

        Gujarat   and   others   Etc.   (Nadiad   Case),

        (1991)   4   SCC   406,          Delhi   Development

        Authority  Vs.  Skipper   Construction   Co.   (P)

        Ltd.   and   Another,  (1996)   4   SCC   622   and

        Dinesh Trivedi, M.P. and Others Vs. Union of

        India   and   others       [1997]   4   SCC   306,

        guidelines   were   laid   down   having   the   effect

        of   law,   requiring   rigid   compliance.     In

        Supreme           Court         Advocates-on-Record

        Association   and   Others  Vs.  Union   of   India

        (IInd   Judges   case),   (1993)   4   SCC   441,   a

        Nine-Judge Bench laid down guidelines and

        norms   for   the   appointment   and   transfer   of

        Judges   which   are   being   rigidly   followed   in

        the   matter   of   appointments   of   High   Court

        and   Supreme  Court  Judges and   transfer  of

        High   Court   Judges.     More   recently   in

        Vishakha and Others  Vs.  State  of Rajasthan

        and   others,   (1997)   6   SCC   241,   elaborate

        guidelines   have   been   laid   down   for

        observance in work places relating to sexual

        harassment of working women."





Moreover, this Court, has framed Supreme Court Rules,



1966 in exercise of powers under Article 145(1)(a) of the



Constitution regulating amongst other things advocates



who   are   entitled   to   practice   in   this   Court.     Further,



necessary   directions/guidelines   can   always   be   issued



when   facilities   and   privileges   are   conferred   on   the


                                                                  78


members   of   the   SCBA.     Thus   not   only   power   to   give



necessary   guidelines/directions   is   available   under



Articles 136, 142, 145(1)(a) of the Constitution but such



power can also be exercised as "Grantor" of the benefits



and privileges which are enjoyed by the members of the



SCBA  to  restore  its  dignity.    Having  regard  to  the   over



all   conditions   prevailing   in   SCBA,   this   Court   proposes



to give appropriate directions for implementation of the



amended rule which  projects the  principle of "One Bar



One Vote".




38.    Having   given   thoughtful   consideration   to   the


       suggestions   made   by   the   learned   counsel



       appearing   in   the   matter,   this   Court   is   of   the



       opinion   that   to   identify   regular   practitioners   the



       criteria   adopted   by   this   Court   for   allotment   of



       chambers,   as   explained   in  Vinay   Balchandra


       Joshi  Vs.  Registrar General of Supreme Court


       of   India  (1998)   7   SCC   461  at   pages   465-467


       para 7, should be directed to be adopted by SCBA



       from   time   to   time.     Shri   K.K.   Venugopal,   the



       learned   senior   counsel   has   annexed   a   copy   of


                                                              79


Allotment   of   Lawyers'   Chambers   Rules,   as



amended   up   to   November   30,   2007,   with   his



written   submissions,   wherein   detailed   procedure



for   allotment   of   chambers   and   conditions



precedent   to   be   satisfied   before   a   chamber   is



allotted, are laid down.  Under the circumstances



this   Court   directs   under   Article   136   of   the



Constitution   read   with   Article   142   of   the



Constitution   that   criteria   adopted   by   this   Court



for   allotment   of   chambers,   as   mentioned   in



Allotment   of   Lawyers'   Chambers   Rules,   and   as



explained   in  Vinay   Balchandra   Joshi   (supra)



shall   be   adopted   by   the   SCBA   and   its   office



bearers   to   identify   regular   practitioners   in   this



Court.     To   identify   regular   practitioners   in   this



Court,   it   would   be   open   to   the   office   bearers   of



SCBA   or   a   small   committee,   which   may   be



appointed by the SCBA consisting of three senior



advocates,   to   collect   information   about   those



members   who   had   contested   election   in   any   of



the   Court   annexed   Bar   Association,   viz.,   High


                                                           80


Court   Bar   Association,   District   Court   Bar



Association,   Taluka   Bar   Association,   Tribunal



Bar      Association         and      Quasi-judicial      Bar



Associations like BIFR, AIFR, CAT, etc. from 2005



to 2010.  If such an information is sought by the



office   bearers   of   SCBA   or   the   Committee



appointed   by   it,   the   same   shall   be   supplied



invariably and without fail by the Court annexed



Bar   Associations   mentioned   earlier.                The



committee   of   SCBA   to   be   appointed   is   hereby



directed   to   prepare   a   list   of   regular   members



practicing in this Court and another separate list



of members not regularly practicing in this Court



and third list of temporary members of the SCBA.



These lists are directed to be put up on the SCBA



website   and   also   on   the   SCBA   notice   board.     A



letter is directed to be sent by the SCBA to each



member of SCBA informing him about his status



of   membership   on   or   before   February   28,   2012.



The aggrieved member would be entitled to make



a representation within 15 days from the date of


                                                                      81


        receipt   of   letter   from   the   S.C.B.A.   to   the



        Committee, which is to be appointed by the SCBA



        to identify regular practitioners stating in writing,



        whether personal hearing before the Committee is



        required   or   not.     If   such   a   request   is   made   the



        concerned   member   shall   be   heard   by   the



        Committee.           The   representation/s   shall   be



        considered   and   the   decision   would   be   rendered



        thereon by the aforesaid Committee on or before



        April   30,   2012.     The   decision   of   that   Committee



        shall be communicated to the member concerned



        but   the   decision   shall   be   final,   conclusive   and



        binding on the member of the SCBA.  Thereafter,



        final   list   of   regular   practitioners   of   this   Court



        shall be displayed by S.C.B.A.




        After   preparation   of   the   final   list   of   the   regular



practitioners,   each   member   shall   give   a   written



intimation   to   the   S.C.B.A.   whether   he   is   a   member   of



another Court annexed Bar.  It shall be mandatory for a



member, whose name is included in the said list, to give



a permanent declaration that he would vote only in the


                                                                        82


SCBA and would not vote in any of the elections of any



High   Court   Bar  Association   or  District  Bar   Association



or   Taluka   Bar   Association   or   Tribunal   Bar   Association



or Quasi-judicial Bar Associations like BIFR, AIFR, CAT,



etc.        A   copy   of   this   declaration   shall   be   put



up/displayed on the website of the SCBA as well as on



the   notice   board   of   the   SCBA.     The   information   about



having   filed   such   a   declaration   shall  be   sent   to   all   the



Bar Associations where the said advocate is a member.



Once such a declaration has been given, it will be valid



till it is revoked and once it is revoked a member shall



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.




39.       The members of the SCBA, whose names do not



          figure   in   the   final   list   of   regular   practitioners,



          shall 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 S.C.B.A.


                                                                   83


40.    This   Court   suggests   that   to   ensure   strict



       compliance   with   the   directions   issued   by   this



       judgment,          an         Implementation         Committee



       consisting of three learned senior advocates may



       be   constituted.     The   SCBA   has   suggested   that



       Mr. K.K. Venugopal, learned senior advocate, Mr.



       P.P. Rao, learned senior advocate and Mr. Ranjit



       Kumar,   learned   senior   advocate,   practicing   in



       this  Court   be   appointed   as   members  of   the   said



       Implementation   Committee.                  This   Court



       recommends   that   the   names   of   three   learned



       senior counsel mentioned above be considered by



       the SCBA for being appointed as members of the



       said   Committee   subject   to   their   consent   and



       convenience.




41.    In view of the findings that the amendment made



       in Rule 18 is legal and valid and that no right of



       the   advocates,   who   have   filed   the   suits,   is



       infringed or is violated, this Court directs the trial



       court   to   take   up   the   two   suits   immediately   for



       hearing and to dismiss/ dispose of the two suits


                                                              84


       pending on its file in the light of the observations



       made by this Court in this judgment.




42.    Subject   to   above   mentioned   directions,   the   two



       appeals stand disposed of.





                                  ....................................J.

                             (J.M. PANCHAL)





                                 .....................................J.

                                  (H.L. GOKHALE)

New Delhi;

September 26, 2011.