REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.     10319   OF 2010 (arising out of SLP(C)No.19040 of 2009)

M. SUDAKAR   …  APPELLANT

VERSUS

V. MANOHARAN & ORS.           … RESPONDENTS

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Petitioner  happens  to  be  a  member  of  Aruppukkottai  

Nadarkal Uravinmurai Pothu Abiruthi Trust and elected as its  

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

a  direction  to  the  third  respondent  in  the  writ  petition  to  

enquire into the affairs of the Trust according to the provisions  

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

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

September,  2008.  Petitioner  filed  another  writ  application  

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

respondent  to  consider  his  representation  dated  22nd  

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

and  28th September,  2008  referred  to  above  the  petitioner  

questioned the resolution passed by the General Body on 7th  

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

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

representation  dated  22nd December,  2008,  the  petitioner  

questioned the validity of the Governing Body itself.

2

2. All  the  writ  petitions  were  heard  together  and  while  

questioning the validity  of the resolution dated 7th January,  

2007 debarring  the  petitioner  from holding any post  in  the  

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

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

and it does not empower either the General Body or Governing  

Body  to  debar  any  person  from  holding  any  post  for  a  

stipulated  period.  As  observed  earlier  the  prayer  of  the  

petitioner was to restrain the respondents from registering the  

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

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

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

that the said prayer has become infructuous but it proceeded  

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

the  resolution  dated  7th January,  2007  “debarring  the  

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

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

not have any legal sanction and the petitioner continues to be  

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

the learned Single Judge found that there is no provision in  

3

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

any  post.  Relevant  portion  of  the  judgment  of  the  learned  

Single Judge in this regard reads as follows:

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

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

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

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

Single  Judge  on  its  finding  that  the  petitioner  filed  

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

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

2007 and further having not approached the High Court or the  

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

months  of  the  resolution  deserves  to  be  dismissed.  The  

Division Bench further observed that the learned Single Judge  

4

having held the writ petition as infructuous ought not to have  

moulded the relief and set aside the resolution being contrary  

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

have been decided in the writ petition and the petitioner ought  

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

observation  of  the  Division  Bench  in  this  regard  reads  as  

follows:

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

5

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

5. Leave granted.

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

behalf of the appellant submits that the Division Bench of the  

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

Single Judge on the ground that the appellant had approached  

the High Court  belatedly.  He points out that the resolution  

dated 7th January, 2007 debarred the appellant from holding  

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

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

even continues till date.  He submits that the appellant had  

filed the writ petition to restrain the authority to register the  

resolution and taking into account the fact that the resolution  

has already been registered, the learned Single Judge moulded  

the relief, which Courts having the power to issue prerogative  

writs always possess.  He further submits that the registration  

of the resolution in the opinion of the learned Single Judge  

rendered the writ petition infructuous and in the background  

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

6

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

interfered in appeal.  

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

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

learned Single Judge held the writ petition to be infructuous it  

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

resolution  to  be  bad.  He further  points  out  that  inordinate  

delay in filing the writ petition also disentitled the appellant to  

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

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

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

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

held as follows:

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

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

7

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

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

resolved to debar the appellant from holding any office of the  

Trust for 10 years because of the serious charges of financial  

impropriety and removing 526 members of the Trust in block  

and they could regain their membership by bringing an action  

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

the discretionary relief under Article 226 of the Constitution.  

9. We  have  bestowed  our  serious  consideration  to  the  

submissions  advanced  and  we  are  of  the  opinion  that  the  

Division Bench of  the High Court erred in setting aside the  

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

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

debarring any member of  the Trust from holding a post for  

specified  period.  Bye-laws  provide  for  removal  of  the  

membership  in  accordance  with  the  procedure  prescribed  

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

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

8

our opinion shall not include power to debar the member from  

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

Governing  Body  debarring  the  appellant  from  holding  the  

office of the Trust was valid and operative when the matter  

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

quashing the resolution.  The power to mould relief is always  

available to the Court possessed with the power to issue high  

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

the relief, depending upon the facts and circumstances of the  

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

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

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

is otherwise entitled. Further delay and latches does not bar  

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

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

the relevant facts and declined to dismiss the writ petition on  

the ground of delay and latches.   

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

the writ petition had become infructuous and still proceeded  

9

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

Single Judge may not be absolutely right in observing that the  

writ  petition  had  become  infructuous  as  the  resolution  

debarring the appellant was still operative.  In our opinion a  

writ  petition broadly speaking is held infructuous when the  

relief sought for by the petitioner is already granted or because  

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

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

the resolution of the Governing Body was still holding the field  

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

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

claimed by the appellant had become infructuous. In any view  

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

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

appellant  in  removing  a  large  number  of  members  and  

financial impropriety will not clothe the General Body to pass  

resolution debarring the appellant from holding the post for 10  

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

action being patently illegal,  the learned Single Judge could  

not  have  declined  the  relief  taking  into  account  the  

10

alleged   action.

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

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

same has no bearing in the facts and circumstances of the  

case.  In  the  said  case  the  instruction  issued  by  the  

Government was challenged and when the matter was taken  

up it was conceded by the State that the State Government  

would withdraw the instruction. In view of the aforesaid the  

High  Court  observed  that  the  writ  petition  has  become  

infurctuous and in that background this Court observed that  

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

case.   In  the  present  case  the  resolution  debarring  the  

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

Single  Judge  rightly  gone  into  its  validity.   Hence,  the  

judgment  relied  on  in  no  way  supports  the  contention  of  

the respondents.  

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

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

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

11

respondents from proceeding against the appellant for removal  

of his membership in accordance with law.  

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

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

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

there shall be no order as to costs.  

………………………………………J. (HARJIT SINGH BEDI)

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

NEW DELHI, DECEMBER 7, 2010.

12