REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6962 of 2005
R.K. Mittal & Ors. ... Appellants
Versus
State of U.P. & Ors. ... Respondents
WITH
CIVIL APPEAL NO.6963 OF 2005
AND
CIVL APPEAL NOS.10535 &10536 OF 2011
(Arising out of SLP (C) No.24029 of 2005 and 9150 of 2007)
JUDGMENT
Swatanter Kumar, J.
1. Leave granted in both the Special Leave Petitions.
2. The ambit and scope of power of New Okhla Industrial
Development Authority (for short, the `Development Authority')
to permit users, other than residential, in the sectors
specifically earmarked for `residential use' in the Master Plan of
the New Okhla Industrial Development Area (for short, the
2
`Development Area') is the basic question that falls for
consideration of this Court in this bunch of appeals. These
appeals demonstrate some of the instances of widespread
violation of statutory provisions and somewhat arbitrary
exercise of power by the Development Authority. Lack of
adoption of uniform application of law has resulted in large
number of cases of violation of law all over the State of Uttar
Pradesh going unnoticed. The time has come for the
Development Authorities to change their style of functioning
and act vigilantly and uniformly, that too, strictly in accordance
with law, keeping in view the larger public interest.
Introductory Facts
3. This judgment shall dispose of the above referred four
civil appeals and the applications for intervention therein. Out
of the four appeals, in Civil Appeal No. 6962 of 2005and Civil
Appeal arising out of SLP(C) No. 24029 of 2005, the lease deed
in favour of the parties had been cancelled by the Development
Authority while in other two appeals, Civil Appeal No. 6963 of
2005 and Civil Appeal arising out of SLP (C) No.9150 of 2007,
after giving notice, it had passed an order requiring the parties
concerned to stop the misuse within the stipulated time, failing
which appropriate action in accordance with law, including
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cancellation of the lease deed, would be taken. The facts and
circumstances in all the appeals and even the intervention
applications are somewhat similar. In any case, the common
question of law arising in all the appeals and applications is
whether the residential premises can be, wholly or partly, used
by the original allottee or even its transferee, for any purpose
other than residential? We do not consider it necessary to refer
to the facts of each case in greater detail, except the facts of the
lead case, i.e., Civil Appeal No.6962 of 2005, R.K. Mittal v. State
of U.P. However, wherever reference to certain additional facts
is called for, we would notice the same in the other cases as
well.
4. The Development Authority executed a lease deed
dated 2nd April, 1988 in favour of Shri Rajendra Kumar
Srivastava in relation to Plot No.778, Block A, Sector XIV, New
Okhla Industrial Development Area, District Ghaziabad,
admeasuring about 274.37 square meters as per the
boundaries described in the deed. Upon the plot, the lessee
raised some construction which remained unfinished. The
lessee thereupon actually transferred the plot in question along
with unfinished superstructure vide Transfer Deed dated 20 th
August, 1999 in favour Shri R.K. Mittal, Shri Ashok Garg and
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Shri Sanjeev Gupta, the appellants herein. The original lease
deed contained specific stipulations in regard to the lessee
being obliged to obey all the Rules, Regulations and Directions
made by the lessor. The lessee was to raise construction as per
approved plans and to use the premises only for the purpose
for which it was committed in terms of the lease and as per law.
These clauses of the lease deed read as under :
"(d) That the lessee will obey and submit to all
Directions issued or Regulations made by the
Lessor now existing or hereafter to exist so for as
the same are incidental to the possession of
immovable property or so far as they effect the
health, safety or convenience of the other
inhabitants of the place.
(e) That the Lessee will at his own cost erect
on the demised premises in accordance with the
plans, elevation and design and in a position to be
approved by the lessor or any officer authorised by
the lessor in that behalf in writing and in a
substantial and workman like manner, a
residential building only with all necessary,
sewers, drains and other appurtenances according
to the Directions issued or Regulations made in
respect of buildings, drains, latrines and
connection with sewer.
XXX XXX XXX
(h) That the lessee shall use the demised
premises only for the purpose of constructing a
building for residential purpose of customary
home occupation or residential cum medical and
surgical clinic or dispensary or professional office
and for no other purpose without the consent of
the Lessor and subject to such terms & conditions
as Lessor may impose and will not do or suffer to
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be done on demised premises or any part thereof,
any act or thing which may be or grow to be a
nuisance, damage, annoyance, or inconvenience to
the Lessor or the owners, occupiers of other
premises in the neighbourhood."
5. The Transfer Deed executed by the original lessee in
favour of the appellants also contained similar conditions and
in addition thereto provided that the conditions of the lease
deed shall be binding upon the appellants. The relevant
clauses of the Transfer Deed read as under :
"10. That the Transferees shall complete the
construction of plot and shall obtain
Occupancy Certificate of Plot from Building
Cell, Noida within balance construction
period as per terms of lease deed of plot
which is upto 23.2.2000. Extension of time
for construction of plot and for obtaining
occupancy certificate will be granted as per
terms of lease deed of plot and as per then
prevailing extension policy of NOIDA.
11. That the Transferee shall be bound by the
terms and conditions of lease deed of plot
executed on 2.4.88, subject to the
amendments indicated in the Transfer
Memorandum.
XXX XXX XXX
15. That the Transferees shall put the property in
the use exclusively for residential purpose
and shall not use it for any purpose other
than residential.
XXX XXX XXX
17. That the terms and conditions amended by
the NOIDA AUTHORITY from time to time
shall be binding on the Transferees
aforesaid."
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6. After completing the construction, the appellants
appear to have rented out the premises to Andhra Bank and
Akariti Infotech. As such, both the bank and the company had
been carrying on their business from the premises in question.
The Development Authority, on 18th January, 2001 and 22nd
February, 2001 issued notices to both Andhra Bank and Akariti
Infotech to stop commercial use in the said premises within 30
days, failing which action would be taken as per the lease deed.
In these notices, it was also stated that there was
encroachment in violation of the prescribed building byelaws
and the use of residential plot for commercial purpose was in
violation of the provisions of the lease deed of the plot.
Invoking the provisions of the U.P. Industrial Area Development
Act, 1976 (for short, `the Act'),the Development Authority gave
them opportunity to file objections. To these notices, the
appellants not only filed objections but also appeared before the
Development Authority and contended that the Development
Authority, in furtherance to the proposal to permit running of
consulting clinics, banks and guest houses in the residential
areas, had permitted such use on the main roads, on payment
of 30 per cent of the existing residential rate on per square
meter area of plot per annum and had invited suggestions from
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the general public. Reliance was also placed on certain press
reports. Noticing these facts and obviously taking the view that
there was no legal sanctity to the alleged change of user, the
Development Authority rejected the objections and required the
misuse to be stopped and the violation of the building byelaws
to be removed within four months. A part of the said order
reads as follows :
"The terms and conditions of lease deed and
transfer deed of plot clearly states that allotted
plot shall be used exclusively for residential
purposes. The petitioner changed the land use of
plot without intimating to the Authority and did
not bother to seek any clarification or obtain
permission from the Authority for such change. It
is a well known fact that this Authority does not
permit commercial activity in the residential plots.
This is a classic case of violation of law by the
most educated enlightened class of the Country.
This class in Noida has tried to change not only
the character of Noida but have for self interest
destroyed the peace of the Neighbours. It is also
possible that the then Bank staff also colluded in
the matter and did not bother to see the
conditions contained in the lease deed and did not
even try to approach the Authority for clarification.
In view of the above stated facts and after
listening to the petitioner, it is ordered that
representation pleadings of the petitioner Allottee
of Residential Plot No.A-778, Sector-19 stand
rejected and the petitioner is also directed to
ensure vacation of bank branch and infotec office
from the residential premises and restore the
building according to prescribed building bye-law
within 4 months (Four Months) from the date of
service of this order.
7. As the Petitioner has evaded compliance of
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terms of lease deed for nearly five months on one
pretext or the other, he is also informed that in
case of failure to restore the land use of plot within
stipulated period, the Authority shall be free to
take further action under law WITHOUT
FURTHER NOTICE.
Orders regarding penalty for misuse of
premises will be passed separately."
7. Aggrieved from the aforesaid order, the appellants filed
a writ petition before the High Court of Judicature at
Allahabad. The writ petition preferred by the appellants came
to be dismissed vide order dated 19th January, 2002. It was
noticed by the High Court and rightly so, that the Development
Authority had invited some suggestions for change of user of
residential plots to commercial or mixed user on certain terms
and conditions, by bringing certain changes/amendments in its
byelaws and policy decisions. This remained at an interim stage
and no final decision was taken by any competent authority in
accordance with the provisions of the Act. The Development
Authority had not undertaken any exercise for the said
amendment in accordance with law and had not even sought
the approval of the State Government, as required under the
law, for change of user or amendment of the byelaws, Master
Plan, etc. In fact, the provisions directing forfeiture of property
under Section 14 of the Act and imposition of penalty for
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misuse in terms of Section 15 of the Act were in force. Relying
upon judgment of this Court in Munshi Ram v. Union of
India[(2000) 7 SCC 22], the High Court not only dismissed the
writ petition but also directed the Development Authority to
take immediate and strong action against those who have
started using residential plots, wholly or partially, for other
non-residential uses. The appellants, feeling dissatisfied by the
judgment of the High Court, have preferred the present appeal
before this Court. In order to complete the factual matrix of the
case, we may notice that the appellants have placed on record
Annexure P-7, a copy of the public notice dated 30 th March,
2000 indicating that there was proposal to grant permission for
mixed use consulting clinics, bank branch and guest houses on
18 A.M. wide roads on the conditions stated therein. These
conditions also included the provision that fees payable on
grant of permission for mixed use of land would be 30 per cent
of existing residential rate, on per square meter area of plot, on
yearly basis. To this proposal, public opinion was invited and it
was stated that objections/suggestions in this regard may be
filed in writing in the office of the Additional Chief Executive
Officer of the Development Authority. Even hearing was to be
granted. In the affidavit filed on behalf of the respondent-
10
Development Authority on 8th October, 2002, it has been
specifically averred that 21 banks were functioning in
residential sector in the Development Area under private
arrangements with the lessees of the concerned plots and these
banks have not obtained any permission or authorization from
the Development Authority. Two banks, namely, Oriental Bank
of Commerce, Sector 27, Noida and Vijaya Bank, Sector 19,
Noida had obtained such permission for a period of five years
and three years respectively since 1995 and 1994. These
banks had not obtained any permission or renewal thereafter.
Show cause notices had been issued to all the banks to wind
up their activities from these areas. In para 10 of the affidavit,
it had been stated that the Development Authority `has taken a
firm decision to evict all the banks from the residential sectors
and notices have been issued to all these 21 banks without
exception'. A definite averment has also been made in this
affidavit that the functioning of the banks in the residential
sectors caused inconvenience and disturbance to the public at
large and the Development Authority has earmarked specific
areas for making land available to the banks to carry on their
commercial activities. They have allotted land to several banks
in commercial-cum-institutional and commercial portion of
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industrial and institutional sectors. Option was given to the 21
banks to function in these areas and that if they would apply
for the same, the Development Authority shall consider their
cases sympathetically. The Development Authority, specifically
and with emphasis, reiterated that banking activities cannot be
allowed in residential plots of the residential sector. Another
affidavit was filed on behalf of the Development Authority in
March 2011, wherein a clear stand was taken that as per the
Master Plan, Sector 19 of the Development Area is a residential
sector, where the land use is residential alone, neither
commercial nor mixed. List of 43 properties in Sector 19,
Noida was filed as Annexure-1, where non-residential activities,
including banking and medical clinics, were being carried on
while Annexure-2 related to other 11 properties being used for
other non-residential purposes in Sector 19 itself. There are
institutional plots in Sector 19, which had been allotted by the
Development Authority for running of nursing homes or
commercial activity. An office order was issued on or about
14th May, 2009, in relation to Guest Houses, by the Chief
Executive Officer of the Development Authority. However, the
same is stated to have been withdrawn immediately thereafter.
In other words, according to the respondents, there is no order
12
or sanction operative and binding as of now, which permits any
user other than residential in the residential sector.
8. Having stated the facts, we may now examine the
relevant provisions of law. The State of Uttar Pradesh had
enacted the law to provide for creation of an Authority for
development of certain areas of the State into industrial and
urban townships and for matters connected therewith.
`Authority' had been defined under Section 2(b) of the Act to
mean the Authority constituted under Section 3 of the Act.
Section 3 required the State Government to constitute, for the
purposes of the Act, an authority for any industrial
Development Area in terms of that Section. Section 6 of the Act
related to functions of the Authority while Section 7 mentions
the powers of the Authority in respect of transfer of land. In
terms of these statutory provisions, the object of the Authority
was to secure the planned development of industrial
Development Area and the Authority was required to perform
certain functions in terms of Section 6(2), which reads as
under:
"2) Without prejudice to the generality of the
objects of the Authority, the Authority shall
perform the following functions--
(a) to acquire land in the industrial development
area, by agreement or through proceedings
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under the Land Acquisition Act, 1894 for the
purposes, of this Act;
(b) to prepare a plan for the development of the
industrial development area;
(c) to demarcate and develop sites for industrial,
commercial and residential purposes
according to the plan;
(d) to provide infra-structure for industrial,
commercial and residential purposes;
(e) to provide amenities;
(f) to allocate and transfer either by way of sale
or lease or otherwise plots of land for
industrial, commercial or residential
purposes;
(g) to regulate the erection of buildings and
setting up of industries; and
(h) to lay down the purpose for which a
particular site or plot of land shall be used,
namely for industrial or commercial or
residential purpose or any other specified
purpose in such area."
9. In terms of Section 8 of the Act, for the purposes of
proper planning and development of the industrial development
area, the Authority had the power to issue directions, as it
consider necessary, regarding the factors stated therein,
including restriction of use on any site for a purpose other than
for which it has been allocated. Every transferee in whose
favour the land was transferred was bound to comply with the
directions issued as expeditiously as possible and was obliged
14
to erect the building or to take such necessary steps to comply
with the directions in accordance with Section 8(2) of the Act.
No person could raise construction, erect or occupy the
building in contravention of the building regulations. The
Authority has been vested with the powers to make regulations
with the previous approval of the State Government in terms of
Section 19 of the Act, while the State Government may, by
notification, frame Rules for the purposes of the Act as
contemplated under Section 18 of the Act.
10. Section 2(d) of the Act defines `Industrial Development
Area' to be an area declared as such by the State Government
by notification. Section 6(2)(b) requires the Authority to prepare
a plan for the development of an industrial development area
while Section 6(2)(h) enjoins the Authority to lay down the
purpose for which a particular site or plot of land shall be used,
namely for industrial or commercial or residential or any other
specified purpose. The power to transfer lands is also given to
the Authority. In terms of Section 19 read with Section 6 of the
Act, the New Okhla Industrial Development Area was notified
and the Authority framed the regulations for the purposes of
proper planning and development of that area. These were
15
called the New Okhla Industrial Development Area (Preparation
and Finalization of Plan) Regulations, 1991 [hereafter referred
to as `the Regulations']. Regulation 2 of the Regulations defines
various kinds of uses including `Land Use'. `Land Use' under
Regulation 2(g) means the use of any land or part thereof in the
industrial development area for industrial, residential,
institutional, commercial, public water bodies, organized
recreational open spaces, public and semi-public buildings,
agriculture and other like purposes. In contradistinction to the
`Commercial Use', `Industrial Use' `Institutional Use' and `Public
Use', the `Residential Use' has been defined under Regulation
2(1)(k) which reads as under: -
"(k) `Residential Use' means the use of any land or
building or part thereof for human habitation and
such other uses incidental to residential uses."
11. The expression `Sector' has also been defined in
Regulation 2(l) to mean any one of the divisions in which the
industrial development area or part thereof may be divided, for
the purposes of development under the Act. Regulation 3
enjoins upon the Authority a duty to prepare a Draft Plan for
industrial development areas in terms of Regulation 3(1) to
3(6). Under Regulation 4, the Plan has to include sector plans
16
into which such industrial area has been divided. It should
also depict the residential use by allocating the area of land for
housing, for different and defined densities and plotted
development for different categories of households in terms of
Regulation 4(1)(b)(ii). Similarly, it should also state the
commercial use, public use, agricultural use and other
purposes as the Authority may deem fit. The procedure for
finalization of the Draft Plan is also contemplated under
Chapter III, Regulations 5 to 11 of the Regulations. The
Regulations postulate that the Authority, after preparation of
the Draft Plan, shall, by public notice, invite objections and
suggestions to be filed before the date notified but not earlier
than 30 days from the date of publication. A proper enquiry
and hearing is contemplated whereafter the Draft Plan is to be
finalized in terms of Regulation 9 and the date of
commencement of the Plan is to be specified in terms of
Regulation 10. The Authority has the power to amend the
Plans but this power to amend is restricted in its scope.
Regulation 11 empowers the Authority to do so, but no such
amendment can be made which would result in important
alteration in the character of the Plan and which do not relate
to the extent of land use or standards of population density.
17
Even thereafter, it is required to follow the prescribed
procedure. Regulation 11 reads as under: -
"11. Amendment of the Plan. - (1) The
Authority may make such amendments in the
Plan which do not effect important alteration in
the character of the Plan and which do not relate
to the extent of land use or standards of
population density.
(2) Before making any amendment in the Plan
under sub-section (1), the Authority shall publish
a notice in at least one newspaper having
circulation in the development are inviting
objections and suggestions from any affected
person with regard to the proposed amendment
before such date as may be specified in the notice
and shall consider all objections that may be
received.
(3) Every amendment made under this
Regulation shall be published in any of the
manner specified in Regulation 5 and the
amendment shall come into operation either on
the date of the first publication or on such other
date as the Authority may fix.
(4) The Authority shall not make during the
specified period in which the Plan is to remain
effective, such amendment(s) in the Plan which
affects important alteration in the character of the
Plan and which relates to the extent of the land
sue or standards of population density."
12. It is not in dispute before us that the Development
Authority had finalized the Master Plan in accordance with the
provisions of the Act and the Regulations, which was titled as
18
`Master Plan, NOIDA, 2001'. This Plan is in force and is
binding on all concerned.
13. Besides the above provisions of the Act and the
Regulations framed thereunder by the Development Authority,
the Development Authority has also framed building
regulations and directions, which are termed as `The New
Okhla Industrial Development Area Building Regulations and
Directions, 2006 (for short `Regulations 2006)'. These have
been primarily framed as byelaws in relation to the
constructions, restrictions thereof and type of user. Under
Regulation 3.12 (h), a residential building is explained as
under: -
"(h) `Residential building' refers to any building in
which sleeping accommodation is provided for
normal residential purpose with or without
cooking or dining or both facilities and includes
one or two or multi family dwelling, lodging or
rooming houses, dormitories, apartment houses,
flats and hostels."
14. In distinction to the `residential building', an `industrial
building' is the building or part thereof, in which product or
materials of all counts and properties are fabricated,
assembled, manufactured etc. An `institutional building' refers
to a building or a part of a building which is used for purposes
19
such as medical or other treatment or care of persons suffering
from physical or mental illness, disease or infirmity and
includes hospital, institutions and sanitaria etc. while a
`business building' refers to a building or part of a building
which is used for transaction of business like Banks,
Commercial office, etc. In other words, each building proposed
to be used for a definite purpose has to meet different
standards, FAR (Floor Area Ratio) and byelaws. These
purposes are incapable of being confused with each other or
even used interchangeably. Respective purposes have been
defined in unambiguous terms in the byelaws, having distinct
implications.
15. It does not appear to be the scheme of the provisions of
the Act, the Regulations and the bye laws, including the
Regulations, 2006 that each of these purposes or buildings can
be understood or used interchangeably. In fact, each has
distinct features and it does not lie in the jurisdiction of the
Development Authority to permit such conversion in users,
beyond the scope of the Master Plan, the byelaws and the
statutory provisions. Regulation 3.22 of the Regulations, 2006
explain the word `conversion' to mean the change of an
occupancy or change in building structure or part thereof,
20
resulting into change of space or use requiring additional
occupancy certificate.
16. The change in user of the building is, therefore,
violative not only of the Regulations, byelaws and the
provisions of the Act, but is also contrary to the law governing
erection of the building. The legislative purpose that emerges
from the scheme of the Act and other relevant provisions is to
keep a residential building separate from commercial and other
buildings. This would necessarily imply that the jurisdiction of
the Development Authority to permit different user in violation
of this statute and the Regulations is not contemplated in law.
Contentions
17. On behalf of the appellants/lessees/users, in the cases
before us, it has been contended that the activity of banking or
running of clinics is being carried on by them for a long period.
Thus, this has been impliedly permitted by the Development
Authority. It is also their contention that a public notice had
been issued by the Development Authority, permitting mixed
user and, thus, the appellants/lessees/users are bonafidely
carrying on activities of running banks/nursing homes/other
commercial activities in the residential sectors. Reliance has
21
been placed upon Public Notice dated 30th March, 2000 and
also that vide notification dated 4th December, 2010 plots
allotted in the developed sector to farmers under a
Rehabilitation Scheme had permitted establishment of guest
houses, restaurants, banks, professional offices, day care
centres etc. vide notification dated 4th December, 2010.
18. It is also the contention of the appellants that neither
the byelaws, rules and regulations nor the layout plan of the
Development Authority, in any manner, impede or place any
kind of bar on carrying out banking activity in the residential
sectors.
19. While relying upon the judgments of this Court in the
case of Hari Rao Vs. N. Govindachari & Ors. [(2005) 7 SCC
643], and Dev Brat Sharma Vs. Jagjit Mehta [(1990) Supp. SCC
724], it was contended that such use does not amount to
change of user as it is permissible to carry out professional or
clinical activity in the residential houses and, therefore, the
notice of termination issued and/or cancellation of the lease
deeds, being arbitrary and without application of mind, was
vitiated in law.
20. Lastly, it was contended that as there is inadequacy of
space for banks, clinics and other commercial offices in the
22
Development Area, the present user is need-based and is in the
larger public interest. According to the appellants, the number
of plots for the banks is not sufficient to meet the needs of the
public in the residential sectors and no alternative spaces are
available for relocation of the banks. The lease rent and other
charges payable to the Development Authority for both these
categories have a considerable difference. Thus, it has the
impact of creating heavy liability and inconvenience to the
appellants, particularly if they are forced to shift to commercial
or institutional sectors/pockets.
21. On the contra, the contention on behalf of the
Development Authority is that banking activity is impermissible
in the residential sectors. It causes inconvenience to public
and disturbance to the residents. Referring to the Meeting
dated 17th December, 2002 of the Committee of the Officers,
the stand taken is that banking activity cannot be allowed in
the residential portions of the residential sectors and to this
effect, a notice was also published.
22. Further, the contention is that the power of the
Development Authority to demarcate and develop sites, to lay
down the purpose for which a particular site or plot of land
shall be used, is controlled by the specific provisions of the Act
23
and the Regulations framed thereunder. Sections 6(2)(b) and 7
of the Act are stated to be the source of power in this regard. It
is also the contention that in the Master Plan, 2001,
subsequent Plans and the Zoning Regulations, all residential
sectors are marked in yellow colour. Sector 19 of the
Development Area, where the subject matter of this case is
located, is a residential sector. Thus, it can only be used for
the residential purpose.
23. The learned counsel appearing for the
lessee/transferees had relied upon the judgments of this Court
in the cases of Hari Rao (supra) and Dev Brat Sharma (supra).
Both these judgments have no application to the present case,
on facts or in law. These were cases of eviction under the
respective Rent Restriction Acts. In one case, this Court held
that putting up of a clinic in a part of the house by a doctor
was not change of user, while in the other, where the premises
had been rented out for a commercial purpose of selling of
leather goods, change of the industry to a garment and cloth
business, was not considered as change of user. We are
unable to understand as to how the lessees in the present case
can derive any benefit from these judgments. In the present
case, we have a clear law in force and that law is neither
24
similar in purpose nor linguistically identical to the Rent
Restriction Acts of the respective States. The change of user, in
the case in hand, has to be seen in light of the Master Plan, the
Regulations and the provisions of the Act. What may not be
change of user under the Rent Restriction Act, as the rights of
the parties therein are governed by the contract between the
parties and the grounds of eviction taken by them, may be a
change of user within the scope of development Plan and the
Regulations.
24. In light of the contentions raised, first of all, it will be
appropriate for this Court to examine the scheme of the Act
and the Regulations in question. Under the provisions of the
Act, the Development Authority is obliged to notify an
industrial development area. The very object of the
Development Authority is to secure the planned development of
the industrial development area and the first and foremost step
in this direction is to prepare a Plan for development of the
industrial development area. This development Plan is to
demarcate and develop sites for industrial, commercial and
residential purposes. The land which falls within the
jurisdiction of the Development Authority and is part of the
development Plan can be transferred in terms of Section 7 of
25
the Act by auction, allotment or otherwise, on such terms and
conditions as the Development Authority may state and subject
to any rules that may be made thereunder. No person can
erect or occupy any building in an industrial development area
in contravention to any building Regulation. Under Section
6(2) of the Act, the Development Authority is empowered to
make Regulations to regulate the erection of the buildings and
Section 6(2)(b) specifically authorizes the Development
Authority to make regulation providing for the layout Plan of
the building, whether industrial, commercial or residential.
The transfer of the land has to be as per the terms and
conditions contained in the lease deed executed by the
Development Authority in favour of the transferee. But this all
has to be subject to the provisions of the Act and the
Regulations framed thereunder. It has to be clearly understood
that the lease deed has to be in consonance with law and
cannot be in conflict with the provisions of the law. Section 14
of the Act empowers the Development Authority to resume the
site or building so transferred and further forfeit whole or any
part of the money paid in respect thereof, if the lessee commits
breach of the terms and conditions of the lease. No provision of
the Act has been brought to our notice which provides for the
26
manner and method to be adopted by the Development
Authority for preparation of the development Plan in
accordance with the provisions of the Act. This is where the
Regulations come into play. Under Regulations 3 and 4 of the
Regulations, the Draft Plan has to be prepared by the
Development Authority for development of an industrial area,
which will include a sector plan. The meaning of `residential
use' under the Regulations is a restricted one and is incapable
of being given a wide connotation. It means the use of any land
or building or part thereof for human habitation and such
other uses incidental to the residential use. The very language
of Regulation 2(1)(k) of the Regulations clearly depicts the
intent of the framers that the expression `residential use' is not
to be understood in its wider sense, in fact, it would require
strict construction because all other uses have been separately
defined. The different kinds of uses, therefore, have to be
understood only in terms of the explanation or meaning given
to them under the Regulations. If unduly wide meaning is
given to the expression `residential use', then it is bound to
cause overlap between the other uses. It would cause
unnecessary confusion. Thus, each use has to be understood
as per its plain language and there is no need for the
27
Development Authority or, for that matter, even for the courts,
to expand the meaning given to such expressions. The
expression `such other use incidental to residential use' in
Regulation 2(1)(k) has to take its colour from the use of the
building for human habitation. In other words, the latter part
of the Regulation has to be read ejusdem generis to the earlier
part of that Regulation.
25. The development Plan has to be prepared in
accordance with the provisions of the Act and the Regulations
framed thereunder. As already noticed, the Development
Authority has to prepare the Draft Plan, give public notice
thereof, invite objections and thereupon conduct an inquiry
and hearing as contemplated under the law, before preparing a
final development Plan. This final development Plan is a
statutory requirement which has to be prepared as ordained
under the provisions of Section 6(2)(b) of the Act read with
Regulations 5 to 11 of the Regulations. This Plan necessarily
provides for a particular use or purpose of any area/site,
namely industrial, commercial institutional or residential. The
notified development Plan has a legal sanction and provisions
contained therein are mandatory in nature. They are
incapable of being altered or varied without following the due
28
process prescribed in law. Reference can be made to the
judgment of this Court in the case of NOIDA Entrepreneurs
Association v. NOIDA & Ors. [(2011) 6 SCC 527]. Further, this
Court, in the case of NDMC & Ors. v. Tanvi Trading and Credit
Private Limited and Ors. [(2008) 8 SCC 765], not only took the
view that even the interim guidelines issued in relation to
Luytens' Building Zone till finalization of the Master Plan for
Delhi would have statutory force and be treated mandatory,
but also that such guidelines, so far as consistent with the
Master Plan, would continue to be binding even after coming
into force of the Master Plan.
26. It has to be noticed at this stage that the development
Plan prepared in accordance with the Regulations take the
statutory colour in terms of Section 6(2)(b) of the Act and,
therefore, its alteration by an executive order would be
impermissible. Even when a Master Plan is to be amended,
the entire prescribed procedure must be followed. The power
to amend should be exercised only in consonance with the
settled norms without going beyond the original power of the
Development Authority to make such Plan in accordance with
the provisions of the Act. The power to amend cannot be used
to frustrate the provisions of the statute. Regulations, being
29
subordinate legislation must fall in line with the principal
provisions of the Act and in no way should be detrimental to
the provisions and the legislative scheme of the Act.
27. In the case of M.C. Mehta v. Union of India & Ors.
[(2004) 6 SCC 588] dealing with the question of unauthorized
industrial activity in residential area in Delhi, the plea raised
for in situ regularization of areas with 70 per cent industrial use
was not accepted by this Court, holding that regularization
would have adverse impact on the law abiders. This Court also
held that the land cannot be permitted to be used contrary to
the stipulated user except by amendment of Master Plan, after
due consideration of the provisions of the Act and the Rules.
Inaction by the Government authorities means permitting the
unauthorized use, contrary to law.
28. The authorities while reconsidering such matters are
expected to act reasonably and cautiously. They deal with
larger public interest and, therefore, have a responsibility to act
with greater degree of sensitivity and proper application of
mind. If the Development Authority aids the violation of the
statutory provisions, it will be a perversity in the discharge of
statutory obligations on the part of the Development Authority.
The public interest, as codified in the statutory regulations and
30
the provisions of the Act, should control the conduct of the
Development Authority and its decision making process, rather
than popular public demand guiding the exercise of its
discretion, that too, in a somewhat arbitrary manner. To
illustrate the dimensions of exercise of such powers, we may
refer to the judgment of this Court in the case of Bangalore
Medical Trust v. B.S. Mudappa & Ors. [(1991) 4 SCC 54],
wherein this Court was concerned with the provisions of the
Bangalore Development Authority Act, 1976 with particular
reference to Sections 33, 38 and 38(A) of that Act. A site
intended for a public park was sought to be converted into a
hospital/nursing home, under the garb of the latter being a
`civic amenity'. This Court formed the view that such
conversion of an open space reserved under the scheme for a
public park into a civic amenity site by constructing hospital
and allotment of the site to persons or body of persons, was
opposed to the objects of the Act and would be ultra vires the
same. This Court held as under:-
"46. .......No one howsoever high can arrogate to
himself or assume without any authorisation
express or implied in law a discretion to ignore
the rules and deviate from rationality by
adopting a strained or distorted interpretation
as it renders the action ultra vires and bad in
31
law. Where the law requires an authority to act
or decide, `if it appears to it necessary' or if he is
`of opinion that a particular act should be done'
then it is implicit that it should be done
objectively, fairly and reasonably. Decisions
affecting public interest or the necessity of
doing it in the light of guidance provided by the
Act and rules may not require intimation to
person affected yet the exercise of discretion is
vitiated if the action is bereft of rationality,
lacks objective and purposive approach. The
action or decision must not only be reached
reasonably and intelligibly but it must be
related to the purpose for which power is
exercised. The purpose for which the Act was
enacted is spelt out from the Preamble itself
which provides for establishment of the
Authority for development of the city of
Bangalore and areas adjacent thereto. To carry
out this purpose the development scheme
framed by the Improvement Trust was adopted
by the Development Authority. Any alteration in
this scheme could have been made as provided
in sub-section (4) of Section 19 only if it
resulted in improvement in any part of the
scheme. As stated earlier a private nursing
home could neither be considered to be an
amenity nor it could be considered
improvement over necessity like a public park.
The exercise of power, therefore, was contrary
to the purpose for which it is conferred under
the statute."
29. The above decision of the Court was given in light of the
provisions of Section 19(4) of that Act which empowered the
Authority to alter the scheme, where it appeared to the
Authority that an improvement could be made in the scheme.
32
In other words, the power given to the Authority has to be
construed in strict terms and it cannot be exercised in a
manner which will run contrary to the scheme of the Act and
which would defeat the very object of the Act and the
Regulations.
30. The jurisdiction of the Development Authority has to be
seen on the touchstone of proper exercise of power within its
legal limitations while giving full effect to the statutory
provisions. This Court in the case of S.N. Chandrashekar &
Anr. v. State of Karnataka & Ors. [(2006) 3 SCC 208], referred
with approval to judgments of the High Courts, applying the
rule of strict construction to the terminology used and while
interpreting the words `commerce' and `commercial' held that
intra category changes could be permitted only in accordance
with law and Section 14-A of that Act. Even if the change of
user is consented to by the residents of the area, it would be no
ground to permit such a change in violation of the Regulations.
This Court stated the law as follows:-
"27. The Planning Authority has no power to permit
change in the land use from the Outline
Development Plan and the Regulations. Sub-section
(1) of Section 14, as it then existed, categorically
stated, that every change in the land use, inter alia,
must conform to the Outline Development Plan and
the Regulations which would indisputably mean
33
that it must conform to the Zoning Regulations.
28. The provisions of the Act are to be read with the
Regulations, and so read, the construction of
Sections 14 and 15 will lead to only one conclusion,
namely, such changes in the land use must be
within the Outline Development Plan and the
Zoning Regulations. If running of a hotel or a
restaurant was not permissible both under clauses
(a) and (b) of the Zoning Regulations in a residential
area, such change in the land use could not have
been permitted under Section 14 read with Section
15 of the Act. It is precisely for that reason, Section
14-A was introduced."
31. Even in the case of ITC Ltd. v. State of Uttar Pradesh &
Ors. [(2011) 7 SCC 493], this Court declined to accept the
contention that where the State Government had treated the
hotels as an `industry' even in such cases, the same could not
be treated as `industry' under the Act because the byelaws
continued to treat the hotels to be a commercial activity and
that had alone covered such industry. This Court held as
under:-
"38. The learned counsel for the respondents
submitted that the lease was terminated by the
State Government, in exercise of revisional
jurisdiction under Section 41 of the U.P. Urban
Planning and Development Act, 1973 read with
Section 12 of the Act on the ground that there
were irregularities and violations of regulations
and policies of Noida Authority in allotting the
hotel plots to the appellants. It is submitted that
the State Government has such power to cancel
34
the allotment and as a consequence the lease."
32. Reference can also be made to the judgment of this
Court in Dr. G.N. Khajuria & Ors. v. Delhi Development Authority
& Ors. [(1995) 5 SCC 762]. In that case, the Plan had provided
for a public park and the Delhi Development Authority had
taken the decision to establish a nursery school for the benefit
of the children of the colony. Rejecting the contention, this
Court observed that within the framework of law and the
provisions made in the Master Plan, the authorities could only
establish a public park and nothing else, as such conversion
would amount to misuse of power.
33. All the above judgments clearly show that it is not
merely at the discretion of the Development Authority
concerned to designate user of a site and then alter the same
without following due process of law. Even where such an
exercise is required to be undertaken by the Development
Authority, there also it is expected of the Development
Authority to act for the betterment of the public and strictly in
accordance with the Plans and the statutory provisions. It
cannot take recourse to its powers and use its discretion
contrary to such provisions and that too, to frustrate the very
35
object of the Act. Exercise of power ought not to be destructive
of the provisions of the Act and the Plans, having the force of
law. We would hasten to add that even where the requisite
prescribed procedure is followed, still the discretion should be
exercised sparingly for achieving the object of the statute and
not to completely vary or destruct the purpose for which the
sector has been earmarked.
34. A decision which is sought to be taken by the
Development Authority in the garb of a policy decision matter,
if not in conformity to the Master Plan, the Regulations and
provisions of the Act in force, would be an action extra jus. The
Development Authority is to act in adherence to the provisions
of the law regulating such user or construction. The laconic
result of a collective reading of the afore-referred statutory
provisions is that the Development Authority or its officers,
have no power to vary the user and spaces prescribed in the
Master Plan, except by amending the relevant laws and that
too, for a proper object and purpose. Any decision, as a policy
matter or otherwise, for any extent of public convenience, shall
be vitiated, if it is not supported by the authority. The Courts
would examine what is the sensible way to deal with this
situation, so as to give effect to the presumed purpose of the
36
legislation. The provisions in question should be construed on
their plain reading, supporting the structure of the legislative
intent and its purpose. The rule of schematic interpretation
would come into play in such situations and the concerned
Development Authority cannot be permitted to overreach the
procedure prescribed by law, with designs not acceptable in
law.
35. The Development Authority is inter alia performing
regulatory functions. There has been imposition of statutory
duties on the power of this regulatory authority exercising
specified regulatory functions. Such duties and activities
should be carried out in a way which is transparent,
accountable, proportionate and consistent. It should target
those cases in which action is called for and the same be
exercised free of arbitrariness. The Development Authority is
vested with drastic regulatory powers to investigate, make
regulations, impute fault and even to impose penalties of a
grave nature, to an extent of cancelling the lease. The
principles of administrative justice squarely apply to such
functioning and are subject to judicial review. The
Development Authority, therefore, cannot transgress its powers
as stipulated in law and act in a discriminatory manner. The
37
Development Authority should always be reluctant to mould
the statutory provisions for individual, or even public
convenience as this would bring an inbuilt element of
arbitrariness into the action of the authorities. Permitting
mixed user, where the Master Plan does not so provide, would
be glaring example of this kind.
36. In the case of Shabi Construction Company v. City &
Industrial Development Corporation & Anr. [(1995) 4 SCC 301],
this Court held that, prior sanction of the State Government
being the sine qua non for a final development Plan, as also for
minor modifications thereof, under Sections 31 and 37 of the
Maharashtra Regional and Town Planning Act, 1966, the
agreement entered into with the Planning Authority so far as it
relates to increased Floor Space Index (FSI) did not and could
not bestow any legal right upon the appellant. To put it
conversely, only on sanction by the State Government, could
the inchoate right under the agreement crystallize into a legally
enforceable right in favour of the appellant.
37. Still, in another case of K.K. Bhalla v. State of M.P. &
Ors. [(2006) 3 SCC 581], this Court did not approve and attach
any validity to the action of the Chief Minister directing and
38
calling for a proposal from the said Development Authority to
make allotment for development of an industrial area on
concessional terms and held that the purpose for which the
allotments were made might be well-meaning, but the
allotments, being contrary to the mandatory provisions of the
Act and the Rules were void and of no effect, being illegal.
38. Similarly, in the present case, the action of the
Development Authority in permitting mixed user was in
apparent violation of the statutory provisions in the Master
Plan.
39. Establishment of banks and nursing homes in the
residential sectors meant for residential use alone is
unequivocal violation of the statutory provisions in the Master
Plan.
40. Reverting to the case in hand, we may notice that the
lease deed executed in favour of the predecessor-in-interest of
R.K. Mittal and the other appellants had contained specific
stipulations that the lessee will obey and submit to all
directions issued, existing or thereafter to exist, as obeyed by
the lessor. The erection of the structure was also to be in
accordance with the approved plans. Clause (h) of the lease
39
deed specifically provides that the constructed building shall be
used only for the purpose of residential, residential-cum-
medical or surgical clinic and for no other purpose, that too
subject to such terms as are imposed by the lessor.
41. The transfer deed which was executed in favour of the
present appellants, with the approval of the Development
Authority, also contained similar clauses and also provided
that the terms and conditions imposed by Development
Authority from time to time shall be binding on the transferee.
Clause 15 of the transfer deed stipulated that the transferee
shall put the property to use exclusively for residential purpose
and shall not use it for any purpose other than residential.
After raising the construction on the plot in question,
admittedly, the appellants have put the property to a different
use other than residential. The property was rented out to two
different commercial undertakings, i.e., Andhra Bank and a
company by the name `Akariti Infotech'. It is not even the case
of the appellants before us that the Development Authority had
granted any specific permission to them to use the property for
any purpose other than residential.
42. The appellants, in fact, have relied upon an agenda
note where there was a proposal put forward by the
40
Development Authority to grant permission for nursing home,
guest house, lodging house, banks etc. on a 100 metres wide
road on such terms and conditions as may be imposed by the
Development Authority. This also provided for levying certain
additional charges for granting such permission. Based on this
proposal, it is stated that a public notice was issued and
objections were invited.
43. The matter rested at that. This was not finalized. In
other words, no final decision was taken by the Development
Authority in consonance with the provisions of the Act to
permit such user in the residential sector. We, in fact, are
unable to understand why such action was initiated by the
authorities concerned, in face of the statutory provisions of the
Act, Regulations and the Master Plan in force. It is a settled
position of law that no authority can exercise the power vested
in it, contrary to law. In the present case, there appears to be
no proper data collected or study carried out by the
Development Authority even for mooting such a proposal,
much less amending the Plan or the Regulations. It is a
matter of regret that the Development Authority is dealing with
such serious matters in such a casual manner. Either way,
this certainly affected the rights of the parties adversely. It is
41
not only the rights of individuals which are to be examined by
the authorities concerned, but also the effect of such
amendment on the residential sector as a whole which is one of
the relevant factors to be considered.
44. The running of a bank or a commercial business by a
company in the residential sector is certainly not permissible.
In fact, it is in patent violation of the Master Plan, Regulations
and the provisions of the Act. We see no power vested in the
Development Authority to permit such user and ignore the
misuse for such a long period.
45. We may notice that only in two cases i.e. Oriental Bank
of Commerce (Sector 27, Noida) and Vijaya Bank (Sector-19,
Noida), the permission for running a bank in the residential
sector was granted for a period of five years and three years,
respectively. This permission came to end few years back and
was admittedly never renewed or extended. Even this initial
grant of permission is a case of lack of legal authority and is
contrary to the provisions of law. It is not the case of anyone
before us that the Development Authority had granted
permission for running a bank/commercial activity or nursing
home in the residential sector. A survey had been conducted
under the orders of the Court dated 3rd March, 2011. As per
42
this survey, a number of banks and nursing homes were being
run in the residential sector, which was not permissible.
46. The conduct of the authorities, prior to institution of
the writ petitions in the High Court, showed uncertainty and
wavering of mind in its decision-making processes. In fact, it
was expected of the Development Authority to take a firm and
final decision and put at rest the unnecessary controversy
raised by its proposal. However, once the writ petitions were
filed, thereafter, the stand of the Development Authority has
been consistent and unambiguous. In the counter affidavit
filed in this Court, it has been stated that even in case of grant
of permission to the above stated two banks, no extension was
granted and in fact show cause notices have been issued to all
the banks in the residential sector to wind up their activities
and move out of the residential sector. It is the definite case of
the Development Authority that banking activity is a
commercial activity and therefore, cannot be carried on in the
residential sector, more particularly on the plots in question.
In regard to Sector 19, a specific averment has been made in
the affidavit of the Development Authority that the land use is
residential alone and is neither commercial nor mixed. As per
the Master Plan, its primary use is `residential' where plots are
43
planned for residential purpose alone. It is, therefore,
abundantly clear from the pleadings on record that commercial
activity of any kind in the residential sector is impermissible.
These pleadings are in conformity with the statutory provisions
and the Master Plan.
47. All the cases where banks, nursing homes or any
commercial activity is being carried on, particularly like the
appellants' case, where a bank and company are running their
offices in the residential sectors would amount to change of
user and thus be impermissible. The officers of the
Development Authority should refrain from carving out
exceptions to the implementation of the Master Plan and the
Regulations in force, that too without the authority of law. For
taking up any exercise for change of user or such similar
conditions, amendment to the relevant Regulations, Master
Plan and if needed, the provisions of the Act, is a condition
precedent. It should be ensured that such exercise would
further the cause and object of the Act and would not be
destructive to the scheme of the development. We have no
hesitation in our minds in holding that no such jurisdiction or
authority vests in the officers of the Development Authority to
permit change of user in its discretion and in violation of the
44
law in force.
48. Another important aspect is that the Development
Authority had taken a policy decision and had earmarked
specific areas where land was made available to the banks to
carry on their commercial activities in the commercial pockets
of the industrial or institutional sectors. This land was being
provided at a concessional rate and a number of banks had
taken advantage of this scheme to get the lands allotted to
them in the appropriate sectors. They have been given lands in
the commercial and even in the commercial pockets of the
industrial or institutional sector. However, the 21 banks
functioning in the residential sectors have not even opted to
apply under the said scheme. If they would apply, the
Development Authority has taken onto itself to consider the
same sympathetically. This Scheme was opened on 20th June,
2011 and closed on 11th July, 2011. 26 commercial plots were
offered for allotment under this Scheme in different sectors and
plots were even reserved to be used as banks. In other words,
the Development Authority has provided due opportunity to
these banks to shift their activities to the appropriate sectors,
however, to no effect. Despite issuance of show cause notices
and offer to allot alternative plots, the unauthorized use by the
45
appellant - banks and nursing homes have persisted in the
residential sectors.
49. Another case which is required to be noticed by us
from amongst the number of cases listed, is the case of
Chairman and Chief Executive Officer, New Okhla Industrial
Development Authority & Anr. v. Mange Ram Sharma & Anr.,
SLP (C) No. 24029/2005. In this case, according to the
Development Authority, the lessee is running a 20 bedded
hospital with all modern and diagnostic facilities, admitted by
the lessee and his family members in a letter Annexure P-7 to
the authorities. In this letter they had claimed that the
hospital is being run from the premises in question and had all
the modern facilities. However, these facts are not admitted by
the lessee who have tried to explain that letter by stating that
in a three-storeyed building of 400 square metres, they are
carrying on professional activity of medical consultancy only in
an area of 28.42 square metres on the ground floor and rest of
the premises is being used entirely for residential purposes. It
is also denied that any hospital is being run from the premises.
According to them, the order dated 15th October, 1994
terminating the lease is contrary to law and they have also
submitted an undertaking that the premises will not be used
46
for any purpose other than residential. According to the
applicant/respondent in terms of the lease deed, such a user is
permissible. The respondents being doctors, are carrying out
their professional activity in a limited portion and as such, they
have also placed on record a list of hospitals being operated
from residential blocks which have even been empanelled by
the appellant Development Authority. The Development
Authority is acting arbitrarily and not taking any action against
those persons, though they have executed the lease deed with
the same terms and conditions as the appellant's. In this case,
this Court had appointed a local Commissioner to visit the
premises. As per report of the Commissioner dated
20thSeptember, 2003, the premises in question is a corner plot
in front of 30 metres wide road and had two gates. There is a
sign board displaying `Sharma Clinic and Medical Surgical
Centre'. Names of the doctors have also been displayed on the
sign boards on the boundary wall. There is a reception
counter which is attended to by a nurse. On ground floor, the
basement was still under construction. Major part of the
ground floor was being used as medical clinic. There were four
cabins used by different doctors of different specialties. The
first floor is being used for residential purposes. The second
47
floor is being partly used for residential purposes while there is
also an office on that floor. None of the parties had filed
objections to this report of the Local Commissioner and,
therefore, there is no reason for us not to accept the same.
Even as per the report of the Local Commissioner, the house is
being used for medical-cum-surgical clinic and is not merely a
consultant's clinic. Use of a major part of the ground floor for
running the medical centre obviously is not permissible in
accordance with the provisions of the Act and the Regulations.
The Development Authority is expected to take proper action at
the earliest. Even if we reject the case of the appellant
Development Authority that a 20 bedded hospital is being run
from the premise, still the fact stands established on record
that practically the entire ground floor and part of the second
floor is being used for activities other than residential.
50. According to the respondents, they had not been served
with the show cause notice, though according to the appellant,
show cause notice dated 29th August, 1992 was issued and
thereafter, the order of termination/cancellation of lease had
been passed against the respondents. This order had been set
aside by the High Court and the Development Authority has
come up in appeal before this Court.
48
51. In the light of what we have discussed above, even on
facts of this case, running of a hospital or even a medical clinic
of this dimension cannot be permitted in a residential area. It
would be different if a doctor uses permissible part of the
premises for clinical purposes i.e. to meet or examine his
patients in any portion. For surgery or specific treatments,
such patients would have been addressed to proper nursing
homes or regular hospitals. Therefore, doctors cannot carry on,
in the garb of a medical clinic, a regular medical and surgical
activity on a commercial scale. Thus, we find that action of the
Development Authority was justifiable.
52. One of the allegations against the Development
Authority is that they have acted arbitrarily and
discriminatorily in issuance of notices, in passing of orders of
cancellation of the lease deed and/or even in imposing other
restrictions in relation to the properties in question. It is their
contention that commercial activity, nursing homes and banks
are operating in a large number of residential houses but the
Development Authority has adopted a policy of pick and choose
and has not acted uniformly even in that regard. Certain
instances have been mentioned. Instances of banks have been
mentioned in the case of R.K. Mittal (supra), while nursing
49
homes have been mentioned in the case of Mange Ram (supra).
We are unable to grant approval to this discriminatory policy of
the Development Authority. They are expected to act fairly and
judiciously in such matters. The action of the Development
Authority should be free of arbitrariness and must be applied
uniformly. The ground of legitimate expectation taken by the
lessees on the premise that public notice had been issued by
the Development Authority proposing to permit mixed user in
the residential sector binds the Authority. Firstly, the action of
the Development Authority in issuing the notices is not in
accordance with law. Secondly, this argument is without any
substance and is misconceived. The doctrine of reasonable
expectation has no applicability to the present case and there
cannot be any waiver of statutory provisions as well. The user
of a sector is provided under the Master Plan and in
furtherance to Regulations and the provisions of the Act. It is
incapable of being administratively or executively altered. The
lessees, who have changed the user contrary to law, are liable
to be proceeded against as per the terms of the lease deed and
the provisions of the Act.
53. The Master Plan and the Zonal plan specify the user as
residential and therefore these plots cannot be used for any
50
other purpose. The Plans have a binding effect in law. If the
scheme/Master Plan is being nullified by arbitrary acts and in
excess and derogation of the power of the Development
Authority under law, the Court will intervene and would direct
such authorities to take appropriate action and wherever
necessary even quash the orders of the public authorities. This
Court in the case of K. Ramadas Shenoy v. Chief Officer, Town
Municipal Council, Udipi and Others [(1976) 1 SCC 24] was
concerned with the resolution of the Municipal Committee to
construct a cinema theatre at place where earlier the
permission was granted for construction of Kalyan Mandap
cum-Lecture Hall and the contention before the Court was that
town planning scheme forbade any cinema building at the
place asked for and therefore, the resolution of the committee
was invalid. This Court accepted the contention and while
setting aside the resolution observed that an illegal
construction of a cinema building materially affected the right
to enjoyment of the property of the persons residing in the
residential area and there being unauthorized construction, the
Court would intervene and quash the resolution of the
Municipality. This view was followed in the case of M.I.
Builders v. Radhey Shyam Sahu [(1999) 6 SCC 464], wherein
51
this Court even directed demolition of unauthorized
constructions. At this stage, we may also refer to the judgment
of this Court in the case of Virender Gaur & Ors. v. State of
Haryana & Ors. [(1995) 2 SCC 577], wherein this Court was
concerned with the issue whether Dharmshala should be
permitted to be constructed upon the land which was reserved
as open space under the plan. This Court, while noticing the
impact on environment, right to hygienic environment and
protection of the residents, observed as under:-
"11. It is seen that the open lands, vested in the
Municipality, were meant for the public amenity to
the residents of the locality to maintain ecology,
sanitation, recreation, playground and ventilation
purposes. The buildings directed to be constructed
necessarily affect the health and the environment
adversely, sanitation and other effects on the
residents in the locality. Therefore, the order
passed by the Government and the action taken
pursuant thereto by the Municipality would clearly
defeat the purpose of the scheme. Shri D.V. Sehgal,
learned Senior Counsel, again contended that two
decades have passed by and that, therefore, the
Municipality is entitled to use the land for any
purpose. We are unable to accept the self-
destructive argument to put a premium on
inaction. The land having been taken from the
citizens for a public purpose, the Municipality is
required to use the land for the protection or
preservation of hygienic conditions of the local
residents in particular and the people in general
and not for any other purpose. Equally acceptance
of the argument of Shri V.C. Mahajan encourages
pre-emptive action and conduct, deliberately
chartered out to frustrate the proceedings and to
52
make the result fait accompli. We are unable to
accept the argument of fait accompli on the
touchstone of prospective operation of our order."
54. An ancillary question that comes up for consideration
is as to how much area can be permitted to be used by a doctor
to run his clinic or by a lawyer or architect to run their offices
in the residential sector. If other conditions are satisfied, then
as the law stands today, according to the Development
Authority, they can be permitted to use 30 per cent of the Floor
Area Ratio (FAR) of the ground floor for their clinics/offices.
Reference can also be made to the judgment of this Court in
the case of Delhi Pradesh Citizen Council Vs. Union of India &
Anr. [(2006) 6 SCC 305] wherein similar directions were issued.
We are not only relying upon the precedents of this Court, but
such an approach would also be permissible in face of the
Regulations, terms and conditions of the lease deed executed
by the parties and the Master Plan. It would, therefore, be
suffice if 30 per cent of the ground floor area is permitted to be
used for office of an architect/lawyer and for clinic simplicitor
by a doctor.
55. From the above dictum of this Court, it is clear that
53
environmental impact, convenience of the residents and
ecological impact are relevant considerations for the Courts
while deciding such an issue. The law imposes an obligation
upon the Development Authority to strictly adhere to the plan,
regulations and the provisions of the Act. Thus, it cannot ignore
its fundamental duty by doing acts impermissible in law.
There is not even an iota of reason stated in the affidavits filed
on behalf of the Development Authority as to why the public
notice had been issued without amending the relevant
provisions that too without following the procedure prescribed
under law. The concept of public accountability and
performance of public duties in accordance with law and for the
larger public good are applicable to statutory bodies as well as
to the authorities functioning therein. We find no justification,
whatsoever, for the respondents to act arbitrarily in treating
equals who are similarly placed as unequals. There is also no
justification for the Development Authority to issue a public
notice in the fashion in which it has done. A few officers of the
Development Authority cannot collectively act in violation of the
law and frustrate the very object and purpose of the Master
Plan in force, Regulations and provisions of the Act.
54
56. For the reasons afore-recorded, we would dispose of the
appeals of the Development Authority, the
appellants/occupiers/ lessees, interveners and occupants in
the following terms:-
1. That banking or nursing homes or any other commercial
activity is not permitted in Sector 19 and for that matter,
in any sector, in the Development Area earmarked for
`residential use'.
2. That the 21 banks and the nursing homes, which are
operating in Sector 19 or any other residential sector,
shall close their activity forthwith, stop misuse and put
the premises to residential use alone, within two months
from the date of pronouncement of this judgment.
3. That lessees of the plots shall ensure that the occupant
banks, nursing homes, companies or persons carrying on
any commercial activity in the residential sector should
stop such activity and shift the same to the appropriate
sectors i.e. commercial, commercial pockets in industrial/
institutional area and specified pockets for commercial
use within the residential sector, strictly earmarked for
55
that activity in the development Plan, Regulations and
provisions of the Act.
4. That the Development Authority shall consider the
request for allotment of alternative spaces to the banks
and the persons carrying on other commercial activities,
with priority and expeditiousness.
5. That the Doctors, Lawyers and Architects can use 30 per
cent of the area on the ground floor in their premises in
residential sector for running their clinics/offices.
6. That for such use, the lawyers, architects and doctors
shall be liable to pay such charges as may be determined
by the Development Authority in accordance with law and
after granting an opportunity of being heard. The affected
parties would be at liberty to raise objections before the
Development Authority that no charges are payable for
such users as per the law in force.
7. In the event the lessee or the occupant fails to stop the
offending activity and/or shift to alternate premises within
the time granted in this judgment. The Development
Authority shall seal the premises and proceed to cancel
56
the lease deed without any further delay, where it has not
already cancelled the lease deed.
8. Wherever the Development Authority has already passed
the orders cancelling the lease deeds, such orders shall be
kept in abeyance for a period of two months from today.
In the event the misuse is not stopped within a period of
two months in terms of this judgment, then besides
sealing of the premises, these orders of cancellation shall
stand automatically revived and would come into force
without further reference to any Court. In the event the
misuse is completely stopped in all respects, the orders
passed by the authorities shall stand quashed and the
property would stand restored to the lessees.
9. These orders shall apply to all cases, where the order of
termination of lease has been passed by the Development
Authority irrespective of whether the same has been
quashed and/or writs of the lessees dismissed by any
Court of competent jurisdiction and even if such judgment
is in appeal before this Court.
10.The orders in terms of this judgment shall be passed by
an officer not below the rank of Commissioner. This
57
order shall be passed after giving an opportunity to the
parties of being heard by such officer. This direction shall
relate only to the determination of charges, if any, payable
by the lessee or occupant for the period when the
commercial activity was being carried on in the premises
in question.
57. The appeals are disposed of in the above terms, with no
order as to costs.
...................................J.
(Swatanter Kumar)
...................................J.
(Ranjana Prakash Desai)
New Delhi;
December 05, 2011Tuesday, December 6, 2011
Shut banks, hospitals in Noida's residential areas: Supreme Court
Supreme Court Bar Association & ors. vs B.D. Kaushik
Supreme Court Bar Association & ... vs B.D. Kaushik on 26 September, 2011
Bench: J.M. Panchal, H.L. Gokhale
IN THE SUPREME COURT OF INDIACIVIL 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.
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