w w w . L a w y e r S e r v i c e s . i n



K. Elango & Others v/s The Secretary, Bar Council of Tamil Nadu & Others

    W.P. Nos. 24961 & 26025 of 2013 & 13389 of 2015

    Decided On, 14 October 2015

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN & THE HONOURABLE MR. JUSTICE K. RAVICHANDRA BAABU

    For the Appearing Parties: V. Raghavachari for E. Prabhu, Elephant G. Rajendran, V. Parthiban, B.S. Ajeetha, S. Sathiyachandran, S.Y. Masood, S. Haja Mohideen Gisthi for High Court, AR.L. Sundaresan, Senior Counsel for RC. Paul Kanagaraj for MHAA, G. Mohanakrishnan, K. Muthuramalingam, Satyapal, Kasiramalingam, T. Kalaimani, Mahaveer Sivaji, Advocates.



Judgment Text

(Prayers: Petitions under Article 226 of the Constitution of India praying for,—

A Writ of Mandamus directing the Respondents to conduct all future elections to be held for the Second Respondent in accordance with the law declared by the Supreme Court in its Order dated 20.7.2012 in Civil Appeal Nos.3401 & 3402 of 2002. Statutory provision contained in Section 9-A of the Tamil Nadu Advocates’ Welfare Fund Act and the Resolution No.423 of 2012 dated 15.12.2012 passed by the First Respondent. (Prayer amended as per the Order dared 17.4.2015 made in W.P. No.24961 of 2013);

A Writ of Mandamus directing the First Respondent to follow the above guidelines in the election may be held on 10th September 2013 or any other date.

A Writ of Mandamus directing the First Respondent to issue appropriate directions either in the form of Guidelines or Regulations to the respective recognised Associations. namely the Respondents 4 to 7 relating to the manner in which elections ought to be conducted peacefully and democratically and also to provide for consequential penal action in case of violations of the Guidelines and/Or Regulations and pass appropriate Orders to direct the Associations to function as per the Bylaws and without indulging in any activity prohibited by law, taking into consideration the Petitioners’ representation dated 25.3.2015, within a time frame fixed this Court.)

V. Ramasubramanian, J.

1. W.P. No.24961 of 2013 was filed by three Advocates by name (1) Mr. K. Elango, (2) Mr. P. Vijendran, and (3) Mr. Sanjeev Kumar, seeking the issue of a Writ of Mandamus to direct (i) the Bar Council of Tamil Nadu and (ii) the Madras High Court Advocates’ Association to ensure that the Election scheduled for Madras High Court Advocates’ Association for the year 2013 was conducted in accordance with law declared by the Supreme Court in Civil Appeal Nos. 3401 & 3402 of 2003 dated 20.7.2012 and also in accordance with the Statutory provisions contained in Section 9-A of the Tamil Nadu Advocates’ Welfare Fund Act, 1987 and Resolution No.423 of 2012, dated 15.12.2012 passed by the Bar Council of Tamil Nadu.

3. Thereafter, another Advocate by name Elephant G. Rajendran came up with a Writ Petition in W.P. No.26025 of 2013, seeking the issue of a Writ of Mandamus to direct the Election Officer of the Madras High Court Advocates’ Association to follow certain Guidelines in the Elections scheduled to be held on 10.9.2013 to the Madras High Court Advocates’ Association.

4. On 19.9.2013, the Petitioner was permitted to serve Notice of the above Writ Petition on the Members of the Teller Committee and thereafter on the Respondent.

5. However, during the pendency of the above two Writ Petitions, the elections were conducted to the Madras High Court Advocates’ Association, in October 2013 and a new set of Office Bearers assumed office. Therefore, the Writ Petitions did not come to the surface.

6. In March 2013, a group of 6 Advocates joined together and sent individual representations to (i) the Registrar General of this Court, (ii) the Bar Council of Tamil Nadu and Puducherry, (iii) the State of Tamil Nadu, (iv) the Madras High Court Advocates’ Association, (v) the Law Association, (vi) the Women Lawyers’ Association, and (vii) the Madras Bar Association, seeking in effect, certain reforms to be made in the manner of working of the 4 Major Associations. Despite the receipt of the representations, none of those recipients chose to respond. Therefore, tho

Please Login To View The Full Judgment!

e 6 Advocates joined together and came up with a Writ Petition in W.P. No.13389 of 2015. The prayer in the Writ Petition was for the issue of a Writ of Mandamus to direct the Registrar General of the Court to issue appropriate directions to the recognized Associations namely Respondents 4 to 7 prescribing the manner in which Elections ought to be conducted peacefully and democratically and also to provide for consequential penal action in ease of violations of the Guidelines.7. On 30.4.2015 we ordered Notice of Motion in the said Writ Petition.8. In the meantime, the Petitioners in W.P. No.24961 of 2013 came up with a Miscellaneous Petition in M.P. No.1 of 2015 for amendment of the prayer. It was allowed on 17.4.2015. The amended prayer in W.P, No.24961 of 2013 is for a Writ of Mandamus to direct the Bar Council and Madras High Court Advocates’ Association to conduct all future elections to the Madras High Court Advocates’ Association, in accordance with the law declared by the Supreme Court in its Order dated 20.7.2012 passed in C.A. Nos.3401 & 3402 of 2003 as well as in accordance with the Statutory provisions contained in Section 9-A of the Tamil Nadu Advocates’ Welfare Fund Act, 1987 and the Resolution of the Bar Council of Tamil Nadu dated 15.12.2012.9. When all the three Writ Petitions came up for hearing on 4.6.2015 after Completion of service of Notice on all the Respondents in the last of theWrit Petitions, the Office Bearers of the Respondents 4, 6 & 7 agreed that certain reforms have become the need of the hour. Therefore, on 4.6.2015 we passed the following Order in common in all the three Writ Petitions:“Service of Notice on all the Respondents has been completed. The Respondent, as well as the Petitioners and their Counsel are free to file a set of Rules that Cat: govern the future course of the Associations of Advocates. Post on 19.6.2015”.10. Thereafter, the Writ Petitions came up for hearing on 1.7.2015. On that day we were informed by the Secretary of the Madras High Court Advocates’ Association, that a General Body has been convened for inviting suggestions towards reforms. Therefore, we passed the following Order on 1.7.2015:“It is stated by Mr. Arivazhagan, Secretary of Madras High Court Advocates Association, that a 21 days’ Notice has been issued to the Members inviting suggestions to bring amendment to the policy. Post on 24.7.2015 to know the outcome of the General Body Meeting”.11. Thereafter, we were not informed of any decision taken in the General Body Meeting. However, a few individuals filed Applications for impleading themselves as parties to W.P. No.13389 of 2015. Out of them Mr. S. Mahaveer Sivaji and Mr. T. Kalaimani appearing in person, support the stand of the Writ Petitioners seeking reforms.12. But Mr. K. Muthuramalingam, appearing as Petitioner in person, seeking to implead himself in W.P. No.13389 of 2015 has opposed the very maintainability of the Writ Petition. Three Counsel by name Mr. K. Mohana Krishnan, Mr. Kasiramalingam and Mr. Satyapal, without filing any Applications for impleading, made submissions on the question of maintainability.13. In the light of the fact that Madras High Court Advocates’ Association itself did not pass any Resolution authorising the elected Office Bearers either to oppose any reform or to question the very maintainability of the Writ Petition and also in the light of the fact that as per the original stand taken by Madras High Court Advocates’ Association, they convened a General Body Meeting of the Association on 21.7.2015 for considering reformative measures, we thought that Madras High Court Advocates’ Association was not questioning the maintainability of the Writ Petitions. But after a few individuals raised the question of maintainability, the Office Bearers of the Association appear to have chosen the safer path to join the chorus in opposing the maintainability of the Writ Petitions so that they are not blamed for attempting to continue in office after the expiry of their tenure.14. Since some individual members of Madras High Court Advocates’ Association sought to question the maintainability of the Writ Petitions either by seeking to implead or without even seeking to implead themselves as parties to the Writ Petition and also since they place strong reliance upon a Judgment of another Division Bench of this Court (to which one of us namely VRSJ was a party) passed under identical circumstances, we thought fit to deal with the Preliminary Issue of jurisdiction now, postponing the decision on merits, if warranted eventually.15. Therefore, we have heard, only on the question of maintainability, M/s. V. Parthiban, Mrs. B. Ajeetha, Mr. S. Sathyachandran, Mr. T. Kalairnani, Mr. V. Raghavachari and Mr. S. Mahaveer Sivaji, all arguing in favour of the maintainability and Mr. ARL Sundaresan, learned Senior Counsel appearing for Madras High Court Advocates’ Association and Mr. K. Mohana Krishnan, Mr. K. Muthuramlingarn, Mr. Kasirarnalingam and Satyapal learned Counsel opposing the maintainability of the Writ Petitions.16. The learned Counsel, opposing the maintainability of the Writ Petitions, are armed with an Order passed by a Division Bench of this Court in W.P.(MD) No.5809 of 2014 dated 3.4.2014. As stated earlier, one of us (VRSJ) was the author of the said Judgment dated 3.4.2014, rendered by a Division Bench.17. In the said W.P.(MD) No.5809 of 2014, an Advocate, who was a Member of the Madurai Bench of the Madras High Court Bar Association came up with a Writ Petition seeking a Mandamus to direct the Respondents 5 & 6 to conduct the elections to the said Association by following the decision of the Supreme Court in Supreme Court Bar Association v. B.D. Kaushik, 2011 (13) SCC 774, by prescribing “one-bar-one vote” system. The Writ Petition was dismissed in limini at the stage of admission, on the ground that the High Court will have no jurisdiction especially under Article 226 of the Constitution, to deal with the internal matters of an Association and that the decision of the Supreme Court in Supreme Court Bar Association also arose only out of Civil proceedings and not out of Writ proceedings. Therefore, the main plank of the argument of the learned Counsel opposing the maintainability of the Writ Petition is that the issue is squarely covered by a decision of the Division Bench of this Court to which one of us was a patty and that therefore, judicial discipline requires us to follow the same.18. However, the learned Counsel appearing for the Writ Petitioners contend:(a) that the expression “State” defined in Article 12 of the Constitution to include certain Authorities is confined to Part III of the Constitution and that Article 226 empowers the High Court to issue a Writ to “any Person or Authority”;(b) that in a catena of decisions starting from Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others, 1974 (2) SCC 706, the Supreme Court repeatedly held that in cases where persons seek to enforce fundamental rights or to compel the performance of a Public Duty, a Writ Petition is maintainable;(c) that in any case Madras High Court Advocates’ Association is bound by a decision of another Division Bench of this Court in Dr. G. Krishnamurthy v. The President, CDJ 2001 MHC 1272;(d) that in the light of the fact that the directions issued by the Supreme Court in Supreme Court Bar Association v. B.D. Kaushik, 2011 (13) SCC 774, has become the law of the land, everyone is obliged to follow the same; and(e) that almost 5 High Courts have already issued similar directions to the State Bar Councils for ensuring that the Associations of Advocates followed the prescription contained in B.D. Kaushik. In support of the above contentions, the learned Counsel for the Writ Petitioners reply upon the following decisions:(i) Babubhai Mutjibhai Patel, 1974 (2) SCC 706;(ii) Rohtas Industries Ltd. v. Rohtas Industries Staff Union, 1976 (2) SCC 82;(iii) T. Gauaiah v. Commissioner of Labour, 1981 (2) LLJ 54;(iv) Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, 1989 (2) SCC 691;(v) Dr. G. Krishnamurthy v. The President, CDJ 2001 MHC 1272;(vi) M.S. Grewal v. Deep Chand Sood, 2001 (8) SCC 151;(vii) Jose Kuttiyani v. High Court, CDJ 2003 Ker. HC 628;(viii) Anaimalai National Estate v. The Planter’s Association, W.P. No.4884 to 4887 of 2002, etc. dated 21.3.2002 passed by this Court;(ix) Shiv Kumar Akela v. The Registrar, Societies Firms, 2007 (2) AWC 2011 AlIa. HC 1;(x) Binny Ltd. v. V. Sadasivan, 2005 (5) CTC 117 (SC) : 2005 (6) SCC 657;(xi) Rajbir Singh Dalal (Dr.) v. Chaudhari Devilal University, Sirsa, 2008 (9) SCC 284;(xii) Sudha v. President, 2010 (14) SCC 114;(xiii) Supreme Court Bar Association v. B.D. Kaushik, 2011 (13) SCC 774;(xiv) Rashmi Metaliks Limited v. Kolkata Metropolitan Development Authority, 2013 10 SCC 95;(xv) Poonam Chand Bhandari and others, D.B. Civil Writ Petition (PIL) No.18688 of 2013, dated 9.10.2014 by the Rajasthan High Court, Bench at Jaipur;(xvi) Board of Control for Cricket in India v. Cricket Association of Bihar, 2015 (3) SCC 251;(xvii) K.K. Saksena v. International Commission on Irrigation, 2015 (3) CTC 554 (SC) : 2015 (4) SCC 670;(xix) Shiv Kumar Akela v. The Registrar, Societies Firms, 2005 (3) A WC 2864 Alla. HC 1;(xx) Madras High Court Advocates’ Association v. The Secretary Bar Council of Tamil Nadu, W.P. No.9752 of 2015 dated 19.6.2015.19. In support of the contention that the Writ Petition is not maintainable, Mr. K. Muthuramalingam, learned Counsel appearing as a Petitioner in person in the Miscellaneous Petition for impleadment, relied upon the decisions of the Supreme Court in:(i) Sabhajit Tewary v. Union of India, AIR 1975 SC 1329;(ii) G. Bassi Reddy v. International Crops Research Institute, AIR 2003 SC 1764; and(iii) Pradeep Kumar Biswas v. Indian Institute of Chemical Biology. 2002 (2) CTC 474 (SC) : 2002 (5) SCC 111.20. Apart from relying upon the above decisions, it is also contended by Mr. K. Muthuramalingam, learned Counsel that once a Division Bench of this Court has decided the issue of maintainability of a Writ Petition against another Association of a similar character, the Judgment becomes a binding precedent and that a Bench of equal or lesser strength cannot overlook the same. In support this contention the learned Counsel relied upon the decisions in:(i) Oriental Insurance Co. Ltd. v. Raj Kumari, 2008 (1) TN MAC 1 (SC) : 2008 (1) MLJ 501 (SC);(ii) Philip Jeyasingh v. The Joint Registrar of Cooperative Societies, 1992 (2) MLJ 309 (Mad.) (FB);(iii) State of Punjab v. Devans Modern Breweries Ltd., 2004 (11) SCC 26;(iv) Ambica Industries v. Commissioner of Central Excise, 2007 (6) SCC 769.21. We have carefully considered the rival submissions only on the question of maintainability.22. It is true, as rightly contended by Mr. V. Parthiban, learned Counsel for the Writ Petitioners that Article 12 merely defines the expression “State” and that too for the purposes of Part III of the Constitution. The expression “State” is not used in Article 226 which confers powers upon the High Courts to issue various Writs. Clause (1) of Article 226 empowers the High Court to issue prerogative Writs “to any Person or Authority”. Apart from using the said expression, Clause (1) goes further with the phrase “including in appropriate cases, any Government”. This is where the difference between Articles 12 & 226 assumes significance. While Article 12 defines the expression “State” to include “the Government”, Article 226 does not define anything but says that the High Court would have power to issue Writs “to any Person or Authority including in appropriate cases, any Government”. In other words the Power of the High Court to issue a Writ against the Government under Article 226, arises not out of the inclusion of the Government within the meaning of the expression “State” under Article 12, but because of the inclusion of the Government, along with any Person or Authority, against whom a Writ could be issued. Since the expression “person” is not defined in the Constitution, it should be given the ordinary meaning in which the said expression could be understood in the literal sense. This conclusion is also fortified by the fact that the expression “person” is used in Articles 14, 20, 21 & 22, in contrast to the expression “citizen” used in the other Articles in Part III. Therefore, without even drawing any inspiration from the decisions cited across the Bar, it could be concluded that a Writ can be issued against any person. Keeping this in mind, let us move over to the decisions.23. In Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and others, 1974 (2) SCC 706, the Supreme Court indicated in Para 10 that a Writ under Article 226 could be issued to any Authority. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union, 1976 (2) SCC 82, the Supreme Court indicated in Para 9 that the expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person, even a private individual.24. In T. Gattaiah v. Commissioner of Labour, 1981 (2) LLJ 54, the Andhra Pradesh High Court held that wherever a public duty is imposed, even if it be on a Private Company, a Writ is maintainable.25. In Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, 1989 (2) SCC 691, the Supreme Court pointed out the distinction between the expression “Authority” used in Article 12 and in Article 226 and held that there are only two exceptions to Mandamus namely (a) that the person against whom it is sought, is purely a private body and (b) that the rights sought to be enforced are also purely of a private character.26. In M.S. Grewal v. Deep Chand Sood, 2001 (8) SCC 151, the Supreme Court allowed a remedy under 226 even for awarding Compensation against the management of a school for tortious liability, despite the opposition that it involved disputed questions of fact.27. In Jose Kuttiyani v. High Court, CDJ 2003 Ker. HC 628, a learned Judge of the Kerala High Court even went to the extent of issuing a Writ quashing an Order of Suspension passed by the Kerala High Court Advocates’ Association, against one of its members.28. In Anaimalai National Estate v. The Planter’s Association, W.P. No.4884 to 4887 of 2002, etc. dated 21.3.2002, a learned Judge of this Court entertained a Writ Petition challenging the Notices of termination of the settlements reached by the Management of a Private Company with the Trade Unions of its employees.29. In Shiv Kumar Akela v. The Registrar, Societies Firms, 2007 (2) A WC 2011 Alla. HC I, a Division Bench of the Allahabad High Court issued a Writ to the Registrar of Societies, Firms and Chits to require the High Court Bar Association to provide in the Membership Forms adequate columns to maintain the distinction between the categories of Members who are entitled to vote and those who arc not. The Court also issued a series of directions to the Bar Council to incorporate Model Bye-laws.30. In Binny Ltd. v. V. Sadasivan, 2005 (5) CTC 117 (SC), the Supreme Court held that a Writ would lie against a private party if he discharges Public functions. In Board of Control for Cricket in India v. Cricket Association of Bihar, 2015 (3) SCC 251, the Court held that a Writ is maintainable even against a private body, if it was discharging Public functions. In KK. Saksena v. International Commission on Irrigational, 2015 (3) CTC 554 (SC), the Supreme Court reiterated that the power under Article 226 is not limited to Government or Authority, which qualifies to be a State within the meaning of Article 12, but such power extends to issuing directions “to any Person or Authority”. In fact the Supreme Court went to the extent of holding that the term “Authority” used in Article 226 is to be more liberally interpreted than the same term used in Article 12.31. Therefore, in the light of the overwhelming number of decisions of the Supreme Court, it appears that the above Writ Petitions are maintainable. Though the decision in Sabhajit Tewary v. Union of India, AIR 1975 SC 1329, relied upon by Mr. K. Muthuramalingam, was of a Constitution Bench of the Supreme Court where it was held that a Writ would not lie against the Council of Scientific and Industrial Research, the said decision was specifically overruled by a 7-Judge Bench in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 (2) CTC 474 (SC). This fact has been adverted to in Para 28 of the decision of the Supreme Court in Board of Control for Cricket in India v. Cricket Association of Bihar, 2015 (3) SCC 251, decided recently on 22.1.2015.32. Similarly, the reliance placed by Mr. K. Muthuramalingam, learned Counsel, on the conclusions summed up in Para 98 of the decision in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 (2) CTC 474 (SC), is improper. Paragraph 98 forms part of the minority view in Pradeep Kumar Biswas and hence, no reliance can be placed on it, when in Para 66 of the decision, the majority overruled: Sabhajit Tewary v. Union of India, AIR 1975 SC 1329.33. The decision in G. Bassi Reddy v. International Crops Research Institute, AIR 2003 SC 1764, where International Crops Research Institute (ICRISAT) was declared to be not amenable to the Writ jurisdiction of the High Court, cannot be pressed into service in view of the fact that the Institute in question was an International Organization set up as a non-profit research and training centre by a group of about 50 Government and Non-Governmental Bodies called Consultative Group on International Agricultural Research. It was co-sponsored by the Food and Agriculture Organization of the United Nations and the United Nations Development Programme. Therefore, in the peculiar circumstances, as reflected in Para 3 of the decision, the Supreme Court held ICRISAT not to be amenable to the Writ jurisdiction of the High Court.34. Therefore, it is quite clear that in the light of the overwhelming number of decisions of the Supreme Court, the present Writ Petitions are maintainable. But before we finally hold so, we owe a responsibility to explain as to how we could reconcile ourselves to the decision of another Division Bench of this Court in R. Amarnath v. The Registrar (Judicial), rendered on 3.4.2014 in W.P.(MD) No.5809 of 2014.35. Since one of us (VRSJ) was the author of the said decision also, it would be appropriate to quote what the great historian and philosopher Will Durant said: “Education is the progressive discovery of one’s own ignorance”. Any stiff resistance to a change of opinion, even when warranted, will result in the deprivation of the dawn of wisdom. There is nothing wrong in being wrong, provided there is willingness to set the wrong right, when an opportunity arises.36. There are very many features that distinguish (or perhaps extinguish) the decision of the Division Bench in R. Amarnath v. The Registrar (Judicial), rendered on 3.4.2014 in W.P.(MD) No.5809 of 2014. They are:(i) In R. Amarnath, the Bench (a) did not take note of the distinction between Articles 12 & 226 and (b) did not take note of the various decisions of the Supreme Court that we have now taken note of.(ii) R Amaranth was decided at the stage of admission without even ordering Notice and hence the decision cannot fetter our hands.(iii) In R. Amarnath, a lawyer came to Court on 2.4.2014, seeking a Mandamus to consider his representation dated 1.4.2014, when the elections to the association had already been notified to be held on 11.4.2014. This factor weighed very much with the Bench and hence, the Writ Petition was not even admitted. Therefore, the refusal to admit a Writ Petition cannot be equated to a well considered decision on a point of law.(iv) The decision of the Supreme Court in BCCI came on 22.1.2015, long after the decision of the Division Bench in R. Amarnath. Therefore, the decision in R. Amarnath is no longer good law.(v) The State of Tamil Nadu, which has certain Statutory powers over registered Societies in terms of the provisions of the Tamil Nadu Societies Registration Act, 1975 was not a party to the decision in R. Amarnath. But in W.P. No.13389 of 2015, the State is a party and a representation had already been given to them on 28.3.2015 before the Writ Petition was filed.37. In any case, the Madras High Court Advocates’ Association cannot raise the issue of maintainability of the Writ Petition, in view of the fact that they have already suffered an Order from a Division Bench of this Court in Dr. G. Krishnamurthy v. The President, Madras High Court Advocates’ Association, CDJ 2001 MHC 1272. The prayer in the Writ Petition filed by Dr. G. Krishnamurthy was to direct the Respondents therein to regulate the functioning of the Association in a befitting manner. The Writ Petition was opposed by MHAA on the ground that a Writ will not lie. Overruling the objections raised by MHAA, a Division Bench of this Court held in Paragraphs 9 & 10 of the said decision as follows:“9. We have heard the parties on both sides and perused the respective pleadings, Counter and reply to the Counter. So far as the maintainability of the Writ Petition is concerned, generally, no Writ lies against a Society. The Madras High Court Advocates’ Association is a Society, which has been permitted by the High Court to function within the campus of the High Court. A reference can be made to the decision in Praga Tools Corporation v. C.A. Immanuel, AIR 1969 SC 1306, wherein it was held that a Mandamus can issue, for instance, to an official of a Society to compel him to carry out the terns of the Statute under or by which the Society is constituted or governed, and also to Companies or Corporations to carry out duties placed on them by Statutes authorising their undertakings. A Mandamus would also lie against a Company constituted by a Statute for the purpose of fulfilling Public responsibilities. Thereafter, a Division Bench of this Court in Madras Labour Union, rep. by its President v. Binny Ltd., 1995 (1) CTC 73, after referring to the entire case law and text books on Administrative Law has set out several propositions, viz. a Writ will issue against a private body to protect the fundamental rights, in extraordinary circumstances if the monstrosity of the situation warrants it, and against a Private body, if there is no equally convenient remedy and if there is Public duty. A Full Bench of this Court in M. Thanikachalam & others v. Mathurathagam Agricultural Producers Coop. Marketing Society. 2000 (4) CTC 556, after referring to the entire case-law on the subject held, ‘what is necessary to l)e seen is, if the Order passed is without jurisdiction, or before passing any Order, it is required to hear the affected party, as per the Statute, but not followed, meaning thereby, if the Principles of Natural Justice are not followed, or if there is any flagrant violation of law, or if situations wan-ant, due to the prevailing of a monstrous situation, a Writ Petition can be’. So, as the facts culled out, the Association, which has been established to uphold the noble tradition of the Legal profession, is being misused as has been set out earlier. The argument of Mr. R. Karuppan that the Petitioner does not command good reputation and is facing some Complaints in the Bar Council is not sufficient to throw out the Writ Petition when he is a practising Lawyer of this Coun as Mr. R. himself. Even assuming that he has no locus standi, what is to be seen is that once the matter has come to the Notice of the Court and the issue involved is shocking and touching the conscience of the Court, the Court can issue direction in an appropriate case against an interloper or busy body also. But, at the same time, it has to be seen that the PIL should not be used for one’s personal gain or publicity or political motivation.10. In the administration of justice, the Bar plays a vital role. Without the cooperation of the Bar, the Bench cannot function smoothly and effectively. A look at the records available before us, shows that the Members of the Association are fighting with each other and that a cold war persists between a group of Members and the group of the President. The Advocates, who arc raising their voice for maintaining the rule of law, arc being deprived of their right to vindicate their grievance. Except stating that such a state of things is an unfortunate one, we desist ourselves from saying anything more.”38. As against the above Order of the Division Bench, the MHAA did not go on Appeal. Therefore, in so far as MHAA is concerned, the question as to whether a Writ will lie as against them stand settled finally by the said decision. Hence, we cannot unsettle a settled issue. Once finality is reached on a point of fact or law, as between 2 parties, the same cannot be upset.39. Moreover, in the initial stages, the Association wanted to come up with a draft set of Rules that can govern the future course of the Association. We have extracted the Order passed by us on 1.7.2015. We have recorded therein, the fact that the Association convened a General Body Meeting to invite suggestions to bring amendment to the Bye-laws. Therefore, it is clear that the Association submitted itself to the jurisdiction of this Court in the initial stages. But subsequently a few persons appear to have turned the table and the Association has now taken up the issue of maintainability.40. We are not for a moment suggesting that the Association is estopped from raising a legal contention. They are well within their right to do so. But the statement made before the Court on 1.7.2015 to the effect that a General Body Meeting had been convened to invite suggestions to bring amendment to the Bye-laws shows that even the Office Bearers of the Association were desirous of having reforms. In the General Body Meeting held in the third week of July 2015, the General Body docs not appear to have rejected any suggestion for reforms outright. On the contrary, it is a positive averment of the Writ Petitioners that about 540 Members have signed a Memorandum agreeing with the contention of the Petitioners. Therefore, there is nothing on record to show that a majority of the Members of the Madras High Court Advocates’ Association are happy about the status quo. The majority has not even taken a decision to oppose the above Writ Petitions on the ground of maintainability. Therefore, we are of the considered view that it is too late in the day for the Association to raise the question of maintainability of a Writ Petition, especially after having allowed the Order passed in Dr. G. Krishnamurthy’s case to attain finality.41. Heavy reliance was placed upon the observation of the other Division Bench in its decision in R. Amarnath v. The Registrar (Judicial), rendered on 3.4.2014 in W.P.(MD) No.5809 of 2014, where this Court has recorded that the Court cannot poke its nose into the internal affairs of an Association of Advocates. In an ideal situation it could be so. But the Bar has always taken a stand that the Bar and the Bench are two sides of the same coin. Therefore, with the noble object of bringing about transparency and accountability in the matter of appointment of Judges to this Court, MHAA has always poked its nose in the recent past. Just as they are interested in ensuring that the right persons are elevated from the Bar to the Bench, the Judiciary should also be interested in ensuring that the elections of the Advocates’ Associations are conducted properly and that the Association performs its functions in the manner prescribed by law and in accordance with the highest standards and professional ethics prescribed for Lawyers.42. A question was raised in the course of arguments as to how an Association of Advocates can be said to be performing Public duties or public functions. The answer is too obvious. The monopoly to practice law is conferred upon persons enrolled as Advocates. The Advocates, who are so enrolled, form themselves into Associations. Whenever there is a cause, which the Association considers to be a justifiable cause, they take it up. At such points of time, the Judicial Institution as a whole is paralysed. On such occasions, access to justice is denied to the common man. Therefore, if a body of professionals is able to prevent the effective discharge of the Public duties functions of an institution like judiciary, such a body should be deemed to be performing (in the negative) Public functions. Hence, a Writ will always lie against such body of professionals.43. Certain arguments have been raised both by Mr. Kasiramalingam and Mr. Satyapal to the effect that the Writ Petitioners have not even indicated whether they are Members of the Madras High Court Advocates Association or not. It is argued that the Writ Petitioners have not disclosed what legal right of theirs is infringed. Therefore, both the learned Counsel questioned the locus stadi of the Writ Petitioners.44. But questions such as locus standi of the Writ Petitioners, the question has to be whether the Writ Petition is bad for non-joinder of the other Associations, etc., are all questions that will come up for consideration only after the issue of maintainability is decided. Therefore, we are not going into questions of locus standi, absence of a cause of action or the question of non-joinder of necessary parties.45. We cannot omit to take note of one important thing that Madras High Court Advocates’ Association is the largest Association of Advocates. In recognition of the services rendered by them in the past, they have been provided by the Registry of the High Court, a huge space, both for locating their Library and for conducting Meetings. It is only in recognition of the fact that they are discharging Public Duties that they have been allotted such a space. Madras High Court Advocates’ Association is in a way recognised by the Registry of this Court and this is why the President of the Association is allowed to welcome newly appointed Judges, at the time of their swearing in ceremony. As a condition for the retention of this honour, the Registry is entitled to ask the Association to keep its Bye-laws in tune with the law declared by the Apex Court. If the Registry can do this, a Mandamus will lie against the Registry. Madras High Court Advocates’ Association is also recognised by the Bar Council of Tamil Nadu in terms of the provisions of the Tamil Nadu Advocates’ Welfare Fund Act, 1987. On account of this recognition, they are entitled to vend Advocates’ Welfare Fund Stamps. The Association is entitled to take a commission out of the sale proceeds. This commission is intended to help the Association to improve its infrastructure. Therefore, some amount of Public money goes into their coffers. The recognition given to them is a Statutory recognition. The space provided to them is in recognition of the Public Duties that they discharge. Therefore, the Association cannot avoid the consequences of enjoying these privileges, facilities and recognitions. The first consequence is that they are amenable to the Writ jurisdiction of this Court. Therefore, we hold that the Writ Petitions are maintainable against the Madras Advocates’ Association.Post the Writ Petitions for hearing on merits, on 26.10.2015.
OR

Already A Member?

Also