M. SUDAKARversusV. MANOHARAN & ORS.

               [2010] 14 (ADDL.) S.C.R. 1009


                        M. SUDAKAR                                   A
                               v.
               V. MANOHARAN & ORS.
           (Civil Appeal No. 10319 of 2010)
                  DECEMBER 7, 2010
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.                           B
                     PRASAD, JJ.]

     Trusts:
      Resolution of the General Body debarring the President
of the Trust from holding any office for 10 years - HELO: The        C
Bye-laws only provide for removal from the membership on
certain grounds, in accordance with the procedure prescribed
therein; they do not provide for debarring any member from
holding a post for specified period - Power to remove would
not include the power to debar a member from holding an              D
office of the Trust - Single Judge of the High Court did not
err in quashing the resolution.
    Constitution of India, 1950:
     Article 226 - Writ petition - Power of High Court to mould      E
relief - Prayer in writ petition to restrain the respondents from
registering the resolution by which the writ petitioner was
debarred from holding any office of the Trust for ten years -
Resolution already registered before filing ofwrit petition -
Single Judge while holding the writ petition as infructuous,         F
held the resolution as illegal and the writ petitioner entitled to
continue as the member - HELD: Power to mould relief is
always available to the court possessed with power to issue
high prerogative writs - In the instant case, the resolution was
to operate for a further period, therefore, the relief claimed by    G
the writ petitioner cannot be said to have become infructuous
and the Single Judge was right in moulding the relief.
    Article 226 - Writ petition - Delay in filing of - HELD:
Delay and /aches do not bar the jurisdiction of the court - It
                            1009                                     H
    1010 SUPREME .COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A is a matter of discretion and not jurisdiction - Single Jude of
  the High Court took note of relevant facts and rightly declined
  to dismiss the writ petition on the ground of delay ar.d /aches.
         The appellant, who was the President of a Trust, and
    was, by a resolution dated 7 .1.2007 passed by the
  8 General Body, debarred from holding any post in the
    Trust for a period of 10 years, filed a writ petition before
    the High Court with a prayer to restrain the respondents
    from registering the said resolution. However, since the
    resolution had been registered before filing of the writ
..C petition, the Single Judge observed that the prayer had
    become infructuous, but held that debarring the writ
    petitioner for a period of 10 years was patently illegal and
    that the resolution would not have any legal sanction and
    the writ petitioner would continue to be the member of
  D the Trust. On appeal by the respondents, the Division
    Bench of the High Court dismissed the writ petition, inter
    alia, on the ground of delay and also held that the Single
    Judge having held the writ petition as infructuous ought
    not to have moulded the relief. Aggrieved, the writ
  E petitioner filed the instant appeal.
        Allowing the appeal, the Court
        HELD:
       1.1 The Division Bench of the High Court erred in
F setting aside the order of the Single Judge. Admittedly,
  the bye-laws which govern the Trust, do not provide for
  debarring any member of the Trust from holding a post
  for specified period. The bye-laws provide for removal of
  the membership in accordance with the procedure
G prescribed therein in case a member is found to be
  indulging in activities prejudicial to the Trust. The power
  to remove the member shall not include power to debar
  the member from holding an office of the Trust. The act
  of the appellant in removing a large number of members
H and financial impropriety will not clothe the General Body
      M. SUDAKAR v. V. MANOHARAN & ORS.               1011


to pass resolution debarring the appellant from holding A
the post for 10 years, as no such power is conferred by
the bye-laws. The Single Judge did not err in quashing
the resolution. Further, delay/latches does not bar the
jurisdiction of the court; it is a matter of discretion and
not of jurisdiction. The Single Judge had taken note of B
the relevant facts and rightly declined to dismiss the writ
petition on the ground of delay and latches. [para 9-1 O]
[1016-G-H; 1017-A-B-D; 1018-A-B]
    State of Haryana and others v. Krishna Rice Mills (1981)
4 sec 148 - distinguished.                                     c
     2.1 The power to mould relief is always available to
the court possessed with the power to issue high
prerogative writs. In order to do complete justice it can
mould the relief, depending upon the facts and
                                                           0
circumstances of the case. In the facts of a given case, a
writ petitioner may not be entitled to the specific relief
claimed by him but this itself. will not preclude the writ
court to grant such other relief which he is otherwise
entitled. [para 9] [1017-C-D]
                                                               E
     2.2 A writ petition broadly speaking is held
infructuous when the relief sought for by the petitioner
is already granted or because of certain events, there may
not be necessity to decide the issue involved in the writ
petition. In the instant case, the resolution of the F
Governing Body was still holding the field when the writ
petition was heard and, in fact, was to operate for a
further period. Therefore, it can not be said that the relief
claimed by the appellant had become infructuous. In any
view of the matter, as the effect of the order continued, G
the Single Judge was right in moulding the relief. The
impugned order of the Division Bench of the High Court
is set aside and that of the Single Judge restored. [para
10, 13] [1017-F-H; 1018-A-F-H]
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    1012 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A                         Case Law Reference:
         (1981) 4 sec 148              distinguished        para 7

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    10319 of 2010.
B
         From the Judgment and Order dated 30.07.2009 of the
    High Court of Madras at Madurai Bench in W.A.(MD) No. 366
    of 2009.

        P.S. Patwalia, Prasanth P., Uma Shankar, Aman Preet
C   Singh and K.V. Bharathi Upadhyaya for the Appellant.

         Soli J. Sorabjee and G.R. Swaminathan, G. Balaji,
    Mahalakshmi Pavani, Parthasarathy (for Mahalakshmi Balaji &
    Co.) R. Nedumaran and Vimal Dubey for the Respondents.
D
         The Judgment of the Court was delivered by

          CHANDRAMAULI KR. PRASAD, J. 1. Petitioner
    happens to be a member of Aruppukkottai Nadarkal
    Uravinmurai Pothu Abiruthi Trust and elected as its President
E   for two terms i.e. 2003-2006 and 2006-2009. By a resolution
    of the General Body dated 7th January, 2007 he was debarred
    from holding any post in Aruppukkottai Nadarkal Uravinmurai
    Pothu Abiruthi Trust (hereinafter referred to as the 'Trust') for a
    period of 10 years. The aforesaid resolution was sent to the
F   Secretary to the Government, Revenue and Registration
    Department, for its registration. Aggrieved by the same
    petitioner filed Writ Petition (MD)No. 3414 of 2009 before the
    Madurai Bench of Madras High Court, inter alia, praying to
    restrain the respondent from registering the same. Petitioner
G   further filed Writ Petition (MD) No.3657 of 2009 for a direction
    to the third respondent in the writ petition to enquire into the
    affairs of the Trust according to the provisions of the Tamil Nadu
    Societies Registration Act, 1975, in the light of the
    representations dated 5th May, 2008 and 28th September,
H
       M. SU DAKAR v. V. MANOHARAN & ORS.                    1013
          [CHANDRAMAULI KR. PRASAD, J.]
2008. Petitioner filed another writ application bearing               A
W.P.(MD) No.4269 of 2009 for a direction to the third
respondent to consider his representation dated 22nd
December, 2008. In the representations dated 5th May, 2008
and 28th September, 2008 referred to above the petitioner
questioned the resolution passed by the General Body on 7th           B
January, 2007 and as also the authority of respondent Nos.6
and 7 of the writ petition to pass the resolution. In the
representation dated 22nd December, 2008, the petitioner
questioned the validity of the Governing Body itself.

      2. All the writ petitions were heard together and while         C
questioning the validity of the resolution dated 7th January,
2007 debarring the petitioner from holding any post in the Trust
for a period of 10 years, it was contended before the learned
Single Judge that the Trust is governed by bye-laws and it does
riot empower either the General Body or Governing Body to             D
debar any person from holding any post for a stipulated period.
As observed earlier the prayer of the petitioner was to restrain
the respondents from registering the resolution dated 7th
January, 2007 but even before the writ petition was filed the
same was registered on 5th December, 2008. Accordingly, the           E
learned Single Judge was of the view that the said prayer has
become infructuous but it proceeded to mould the relief sought
for by the petitioner and held that the resolution dated 7th
January, 2007 "debarring the petitioner for a period of -10 years
is patently illegal, the fact that the resolution had been filed on   F·
5th December, 2008 will not have any legal sanction and the
petitioner continues to be the member of the Trust". While
granting the aforesaid relief the learned Single Judge found that
there is no provision in the bye-laws of the Trust to debar any
person from holding any post. Relevant portion of the judgment        G .
of the learned Single Judge in this regard reads as follows:

          "As stated supra, there is no provision in the bye-
     laws of the Trust enabling General Body or Governing
     Body to debar any person from holding any post.
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    1014 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A       Therefore, when the bye-laws are silent about the power
        of the Trust to debar any person from holding any post, the
        resolution passed on 07.01.2007 debarring the petitioner
        from holding any post for a period of 10 years is patently
        illegal and therefore, even though the resolution has been
B       registered by the District Registrar, the resolution has no
        legal sanction and it is not legal".

        3. Aggrieved by the same respondent Nos.4 to 7 in the
  writ petition preferred Writ Appeal No.366 of 2009. The Division
  Bench of the High Court set aside the order of the learned
C Single Judge on its finding that the petitioner filed
  representation to the Registrar on 5th May, 2008, that is after
  16 months from the date of the resolution i.e. 7th January, 2007
  and further having not approached the High Court or the Civil
  Court the writ petition filed in April, 2009 after 27 months of the
D resolution deserves to be dismissed. The Division Bench
  further observed that the learned Single Judge having held the
  writ petition as infructuous ought not to have moulded the relief
  and set aside the resolution being contrary to bye-laws. It further
  observed that the issue ought not to have been decided in the
E writ petition and the petitioner ought to have been relegated to
  the remedy of civil suit. The observation of the Division Bench
  in this regard reads as follows:

        "But unfortunately, the petitioner made a representation to
F       the Registrar after 16 months of the said resolution. The
        first representation was dated 05.05.2008. Even after the
        said representation, the first respondent neither came to
        this Court nor went to a Civil Court. He waited till April,
        2009 to move a Writ Petition seeking to forbear the
        District Registrar from recording Form No.VII. At the time
G
        when the first respondent filed the Writ Petition in April,
        2009 seeking-'to restrain the District Registrar from
        recording the resolution, a full period of about 27 months
        had passed. During this period of 27 months, the first
        respondent went into a slumber and did not come to this
H
       M. SUDAKAR v. V. MANOHARAN & ORS.                       1015
          [CHANDRAMAULI KR. PRASAD, J.]

     Court challenging the resolution. Therefore, we are of the A
     considered view that the learned Judge was not right in
     adjudicating a question which was riot actually before him.
     When the very prayer of the first respondent not to register
     the resolution was doubtful of being entertained, in view
     of the efflux of about 27 months, the first respondent would .     s
     not have been entitled to the relief of setting aside the very
     resolution as being contrary to the bye-laws".

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

     5. Leave granted.                                                  c
      6. Mr. P.S. Patwalia, learned Senior Counsel, appearing
on behalf of the appellant submits that the Division Bench of
the High Court ought not to have set aside the order of the
learned Single Judge on the ground that the appellant had               D
approached the High Court belatedly. He points out that the
resolution dated 7th January, 2007 debarred the appellant from
holding any post of the Trust for a period of 10 years and,
therefore, it had adverse effect on the day the writ petition was
filed and even continues till date. He submits that the appellant       E.
had filed the writ petition to restrain the authority to register the
resolution and taking into account the fact that the resolution
has already been registered, the learned Single Judge moulded
the relief, which Courts having the power to issue prerogative
writs always possess. He further submits that the registration
of tne resolution in the opinion of the learned Single Judge            F
rendered the writ petition infructuous and in the background of
the fact that the effect of the resolution was to continue for 10
years it moulded the relief and the same ought not to have
interfered in appeal.
                                                                        G
     7. Mr. Soli J. Sorabjee, learned Senior Counsel, appearing
on behalf of the respondents, however, submits that once the
learned Single Judge held the writ petition to be infructuous it
ought not to have gone into the merit of the case and held the
resolution to be bad. He further points out that inordinate delay       H
    1016 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A in filing the writ petition also disentitled the appellant to the relief
  granted and, therefore, the Division Bench rightly set aside the
  said order. Reliance has been placed on a decision of this
  Court in the case of State of Haryana and others v. Krishna
  Rice Mills, (1981) 4 SCC 148, in which it has been held as
B follows:

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

D               After hearing learned counsel for the parties, it
         seems to us that the High Court should not have
         proceeded beyond recording the assurance that the State
         Government would withdraw the instructions and holding
         that therefore the writ petition had become infructuous. In
E        our opinion, no further question arose for consideration by
         the High Court."

         8. Mr. Sorabjee further points out that the General Body
    resolved to debar the appellant from holding any office of the
    Trust for 10 years because of the serious charges of financial
F   impropriety and removing 526 members of the Trust in block
    and they could regain their membership by bringing an action
    in the Court and, therefore, the appellant was not entitled to the
    discretionary relief under Article 226 of the Constitution.

G      9. We have bestowed our serious consideration to the
  submissions advanced and we are of the opinion that the
  Division Bench of the High Court erred in setting aside the
  order of the learned Single Judge. It is an admitted position that
  the bye-laws which governs the Trust do not provide for
H debarring any member of the Trust from holding a post for
       M. SU DAKAR v. V. MANOHARAN & ORS.                     1017
          [CHANDRAMAULI KR. PRASAD, J.]

specified period. Bye-laws provide for removal of the                  A
membership in accordance with the procedure prescribed
therein in case a member is found to be indulging in activities
prejudicial to the Trust. The power to remove the member in
our opinion shall not include power to debar the member from
holding an office of the Trust. As the resolution of the Governing     B
Body debarring the appellant from holding the office of the Trust
was valid and operative when the matter was pending before
the learned Single Judge, he did not err in quashing the
resolution. The power to mould relief is always available to the
Court possessed with the power to issue high prerogative writs.        ~
In order to do complete justice it can mould the relief, depending
upon the facts and circumstances of the case. In the facts of a
given case a writ petitioner may not be entitled to the specific
relief claimed by him but this itself will not preclude the Writ
Court to grant such other relief which he is otherwise entitled.
                                                                       0
Further delay and latches does not bar the jurisdiction of the
Court. It is a matter of discretion and not of jurisdiction. The
learned Single Judge had taken note of the relevant facts and
declined to dismiss the writ petition on the ground of delay and
latches.
                                                                       E
      10. True it is that the learned Single Judge had observed
that the writ petition had become infructuous and still proceeded
to grant relief to the appellant. In our opinion, the learned Single
Judge may not be absolutely right in observing that the writ
petition had become infructuous as the resolution debarring the        F·
appellant was still operative. In our opinion a writ petition
broadly speaking is held infructuous when the relief sought for
by the petitioner is already granted or because of certain
events, there may not be necessity to decide the issue involved
in the writ petition. Here in the present case the resolution of       G ·
the Governing Body was still holding the field when the writ
petition was heard and in fact was to operate for a further
period, hence it can not be said that the relief claimed by the
appellant had become infructuous. In any view of the matter, as
the effect of the order continued, the learned Single Judge was        H
    1018 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A right in moulding the relief. The act of the appellant in removing
  a large number of members and financial impropriety will not
  clothe the General Body to pass resolution debarring the
  appellant from holding the post for 10 years, as no such power
  is conferred by the bye-laws. The action being patently illegal,
B the learned Single Judge could not have declined the relief
  taking into account the alleged action.

       11. As regards the decision of this Court in the case of
  Krishna Rice Mi//s(supra) relied on by Mr. Sorabjee, the same
  has no bearing in the facts and circumstances of the case. In
C the said case the instruction issued by the Government was
  challenged and when the matter was taken up it was conceded
  by the State that the State Government would withdraw the
  instruction. In view of the aforesaid the High Court observed
  that the writ petition has become infurctuous and in that
D background this Court observed that the High court ought not
  to have gone into the merit of the case. In the present case the
  resolution debarring the appellant was and still in force and,
  therefore, the learned Single Judge rightly gone into its validity.
  Hence, the judgment relied on in no way supports the contention
E of the respondents.

         12. For all these reasons the impugned order of the
    Division Bench cannot be sustained and it is set aside and that
    of the Single Judge is restored. However, this will not preclude
F   the respondents from proceeding against the appellant for
    removal of his membership in accordance with law.

       13. In the result, the appeal is allowed the impugned order
  of the Division Bench is set aside and that of the learned Single
  Judge restored. In the facts and circumstances of the case,
G there shall be no order as to costs.

    R.P.                                           Appeal allowed.