M. Sudakar vs V.Manoharan & Ors

to restrain the respondent from registering the same.

Petitioner further filed Writ Petition (MD) No.3657 of 2009 for

a direction to the third respondent in the writ petition to

enquire into the affairs of the Trust according to the provisions

of the Tamil Nadu Societies Registration Act, 1975, in the light

of the representations dated 5th May, 2008 and 28th

September, 2008. Petitioner filed another writ application

bearing W.P.(MD) No.4269 of 2009 for a direction to the third

respondent to consider his representation dated 22nd

December, 2008. In the representations dated 5th May, 2008

and 28th September, 2008 referred to above the petitioner

questioned the resolution passed by the General Body on 7th

January, 2007 and as also the authority of respondent Nos.6

and 7 of the writ petition to pass the resolution. In the

representation dated 22nd December, 2008, the petitioner

questioned the validity of the Governing Body itself. 3

2. All the writ petitions were heard together and while

questioning the validity of the resolution dated 7th January,

2007 debarring the petitioner from holding any post in the

Trust for a period of 10 years, it was contended before the

learned Single Judge that the Trust is governed by bye-laws

and it does not empower either the General Body or Governing

Body to debar any person from holding any post for a

stipulated period. As observed earlier the prayer of the

petitioner was to restrain the respondents from registering the

resolution dated 7th January, 2007 but even before the writ

petition was filed the same was registered on 5th December,

2008. Accordingly, the learned Single Judge was of the view

that the said prayer has become infructuous but it proceeded

to mould the relief sought for by the petitioner and held that

the resolution dated 7th January, 2007 "debarring the

petitioner for a period of 10 years is patently illegal, the fact

that the resolution had been filed on 5th December, 2008 will

not have any legal sanction and the petitioner continues to be

the member of the Trust". While granting the aforesaid relief

the learned Single Judge found that there is no provision in 4

the bye-laws of the Trust to debar any person from holding

any post. Relevant portion of the judgment of the learned

Single Judge in this regard reads as follows:

"As stated supra, there is no provision in the bye-laws of the Trust enabling General Body or Governing Body to debar any person from holding any post. Therefore, when the bye-laws are silent about the power of the Trust to debar any person from holding any post, the resolution passed on 07.01.2007 debarring the petitioner from holding any post for a period of 10 years is patently illegal and therefore, even though the resolution has been registered by the District Registrar, the resolution has no legal sanction and it is not legal".

3. Aggrieved by the same respondent Nos.4 to 7 in the writ

petition preferred Writ Appeal No.366 of 2009. The Division

Bench of the High Court set aside the order of the learned

Single Judge on its finding that the petitioner filed

representation to the Registrar on 5th May, 2008, that is after

16 months from the date of the resolution i.e. 7th January,

2007 and further having not approached the High Court or the

Civil Court the writ petition filed in April, 2009 after 27

months of the resolution deserves to be dismissed. The

Division Bench further observed that the learned Single Judge 5

having held the writ petition as infructuous ought not to have

moulded the relief and set aside the resolution being contrary

to bye-laws. It further observed that the issue ought not to

have been decided in the writ petition and the petitioner ought

to have been relegated to the remedy of civil suit. The

observation of the Division Bench in this regard reads as

follows:

"But unfortunately, the petitioner made a representation to the Registrar after 16 months of the said resolution. The first representation was dated 05.05.2008. Even after the said representation, the first respondent neither came to this Court nor went to a Civil Court. He waited till April, 2009 to move a Writ Petition seeking to forbear the District Registrar from recording Form No.VII. At the time when the first respondent filed the Writ Petition in April, 2009 seeking to restrain the District Registrar from recording the resolution, a full period of about 27 months had passed. During this period of 27 months, the first respondent went into a slumber and did not come to this Court challenging the resolution. Therefore, we are of the considered view that the learned Judge was not right in adjudicating a question which was not actually before him. When the very prayer of the first respondent not to register the resolution was doubtful of being entertained, in view of the efflux of about 27 months, the first respondent would not have been entitled to the relief of setting aside the very resolution as being contrary to the bye-laws".

6 4. The petitioner assails the aforesaid order in this petition.

5. Leave granted.

6. Mr. P.S. Patwalia, learned Senior Counsel, appearing on

behalf of the appellant submits that the Division Bench of the

High Court ought not to have set aside the order of the learned

Single Judge on the ground that the appellant had approached

the High Court belatedly. He points out that the resolution

dated 7th January, 2007 debarred the appellant from holding

any post of the Trust for a period of 10 years and, therefore, it

had adverse effect on the day the writ petition was filed and

even continues till date. He submits that the appellant had

filed the writ petition to restrain the authority to register the

resolution and taking into account the fact that the resolution

has already been registered, the learned Single Judge moulded

the relief, which Courts having the power to issue prerogative

writs always possess. He further submits that the registration

of the resolution in the opinion of the learned Single Judge

rendered the writ petition infructuous and in the background

of the fact that the effect of the resolution was to continue for 7

10 years it moulded the relief and the same ought not to have

interfered in appeal.

7. Mr. Soli J. Sorabjee, learned Senior Counsel, appearing

on behalf of the respondents, however, submits that once the

learned Single Judge held the writ petition to be infructuous it

ought not to have gone into the merit of the case and held the

resolution to be bad. He further points out that inordinate

delay in filing the writ petition also disentitled the appellant to

the relief granted and, therefore, the Division Bench rightly set

aside the said order. Reliance has been placed on a decision of

this Court in the case of State of Haryana and others v.

Krishna Rice Mills, (1981) 4 SCC 148, in which it has been

held as follows:

"The High Court noted the assurance and on that observed that the writ petition would become infructuous. But the High Court did not stop there. It proceeded to consider the question on the merits whether the aforesaid transactions constituted a sale for the purpose of the Haryana General Sales Tax held that they did not Act and the Central Sales Tax Act. The High Court. Hence this appeal.

After hearing learned counsel for the parties, it seems to us that the High Court should not have proceeded beyond recording the assurance that the State Government would withdraw the instructions 8

and holding that therefore the writ petition had become infructuous. In our opinion, no further question arose for consideration by the High Court."

8. Mr. Sorabjee further points out that the General Body

resolved to debar the appellant from holding any office of the

Trust for 10 years because of the serious charges of financial

impropriety and removing 526 members of the Trust in block

and they could regain their membership by bringing an action

in the Court and, therefore, the appellant was not entitled to

the discretionary relief under Article 226 of the Constitution.

9. We have bestowed our serious consideration to the

submissions advanced and we are of the opinion that the

Division Bench of the High Court erred in setting aside the

order of the learned Single Judge. It is an admitted position

that the bye-laws which governs the Trust do not provide for

debarring any member of the Trust from holding a post for

specified period. Bye-laws provide for removal of the

membership in accordance with the procedure prescribed

therein in case a member is found to be indulging in activities

prejudicial to the Trust. The power to remove the member in 9

our opinion shall not include power to debar the member from

holding an office of the Trust. As the resolution of the

Governing Body debarring the appellant from holding the

office of the Trust was valid and operative when the matter

was pending before the learned Single Judge, he did not err in

quashing the resolution. The power to mould relief is always

available to the Court possessed with the power to issue high

prerogative writs. In order to do complete justice it can mould

the relief, depending upon the facts and circumstances of the

case. In the facts of a given case a writ petitioner may not be

entitled to the specific relief claimed by him but this itself will

not preclude the Writ Court to grant such other relief which he

is otherwise entitled. Further delay and latches does not bar

the jurisdiction of the Court. It is a matter of discretion and

not of jurisdiction. The learned Single Judge had taken note of

the relevant facts and declined to dismiss the writ petition on

the ground of delay and latches.

10. True it is that the learned Single Judge had observed that

the writ petition had become infructuous and still proceeded 10

to grant relief to the appellant. In our opinion, the learned

Single Judge may not be absolutely right in observing that the

writ petition had become infructuous as the resolution

debarring the appellant was still operative. In our opinion a

writ petition broadly speaking is held infructuous when the

relief sought for by the petitioner is already granted or because

of certain events, there may not be necessity to decide the

issue involved in the writ petition. Here in the present case

the resolution of the Governing Body was still holding the field

when the writ petition was heard and in fact was to operate for

a further period, hence it can not be said that the relief

claimed by the appellant had become infructuous. In any view

of the matter, as the effect of the order continued, the learned

Single Judge was right in moulding the relief. The act of the

appellant in removing a large number of members and

financial impropriety will not clothe the General Body to pass

resolution debarring the appellant from holding the post for 10

years, as no such power is conferred by the bye-laws. The

action being patently illegal, the learned Single Judge could

not have declined the relief taking into account the 11

alleged action.

11. As regards the decision of this Court in the case of

Krishna Rice Mills(supra) relied on by Mr. Sorabjee, the

same has no bearing in the facts and circumstances of the

case. In the said case the instruction issued by the

Government was challenged and when the matter was taken

up it was conceded by the State that the State Government

would withdraw the instruction. In view of the aforesaid the

High Court observed that the writ petition has become

infurctuous and in that background this Court observed that

the High court ought not to have gone into the merit of the

case. In the present case the resolution debarring the

appellant was and still in force and, therefore, the learned

Single Judge rightly gone into its validity. Hence, the

judgment relied on in no way supports the contention of

the respondents.

12. For all these reasons the impugned order of the Division

Bench cannot be sustained and it is set aside and that of the

Single Judge is restored. However, this will not preclude the 12

respondents from proceeding against the appellant for removal

of his membership in accordance with law.

13. In the result, the appeal is allowed the impugned order of

the Division Bench is set aside and that of the learned Single

Judge restored. In the facts and circumstances of the case,

there shall be no order as to costs.

.............................................J. (HARJIT SINGH BEDI)

.............................................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI, DECEMBER 7, 2010.