B. Sukesan v Union of India & Ors. (W.P.(C) No. 3807 of 2018)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943 ## WP(C) NO. 3807 OF 2018 ## PETITIONER/S: B.SUKESAN S/O BHASKARA PANICKER, AGED 65 YEARS,RESIDING AT INDIRA SADANAM, T.C 65/89,KAIRALI GARDEN, THIRUVALLAM PO, THIRUVANANTHAPURAM PIN.695 027. BY ADV SRI.J.S.AJITHKUMAR ## RESPONDENT/S: - 1 UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF LAW & COMPANY AFFIARS, SASTHRI BHAVAN, NEW DELHI.110 001. - 2 STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF LAW, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. - 3 THE BAR COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, NEW DELHI. - 4 THE BAR COUNCIL OF INDIA REPRESENTED BY ITS SECRETARY, HIGH COURT COMPLEX,ERNAKULAM, KOCHI.682 031. - 5 THE SPECIAL COMMITTEE OF THE BAR COUNCIL OF KERALA BAR COUNCIL BUILDING, HIGH COURT COMPLEX,KOCHI.682 031, REPRESENTED BY ITS CHAIRMAN,THE ADVOCATE GENERAL, HIGH COURT OF KERALA. - 6 THE ADVOCATE GENERAL EX-OFFICIO MEMBER OF THE BAR COUNCIL OF KERALA,OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OFKERALA, KOCHI -682 031. - 7 SRI. AJITH T.S MEMBER, BAR COUNCIL OF KERALA, 'ATHULYA', MAMMIYOOR,GURUVAYOOR PO, THRISSUR DISTRICT. - 8 JOSEPH JOHN ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,THODUPUZHA PO, IDUKKI. - 9 AJITHAN NAMBOOTHIRI C.S ADVOCATE, MEMBER BAR COUNCIL OF KERALA,SANKARAMANA, MUTTAMBALAM PO, KOTTAYAM. W.P.(C) No. 3807/2018 : 2 : - 10 SREEDHARAN NAIR C ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,NEETHI, MANJERI PO, MALAPPURAM-676 121. - 11 NAMBOOTHIRI M.V.S ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,LISIE HOSPITAL ROAD, ERNAKULAM, KOCHI.18 - 12 NIYAS P.M MEMBERM, BAR COUNCIL OF KERALA, ERANHIPALAMA PO, KOZHIKODE-673 006. - 13 AYYAPPAN PILLAI N.V ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,PADA NORTH, KARUNAGAPALLY PO, KOLLAM. - 14 RAJASEKHARAN NAIR C ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,,AISWARYA, T.C 4/971(10), KOWDIAR PO, THIRUVANANTHAPURAM-695 003. - 15 ANIL KUMAR K.N ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,KARIYATH HOUSE, CHERUKUNNAM, ASAMANNOOR PO,ERNAKULAM-683 549. - 16 VASUDEVAN NAIR B ADVOCATE, MEMBER, BAR COUNCIL OF KERALA, TC.XI/240, PANAVILA,NALANCHIRA PO, THIRUVANANTHAPURAM. - 17 SABU C.T ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,CHIRAMMEL HOUSE, CHALAKKUDY PO, THRISSUR-680 307. - 18 CHINCY GOPAKUMAR ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,ASHIRWAD, MATHA MANJOORAN ROAD, ERNAKULAM,COCHIN.682 018. - 19 ABDUL AZEEZ THARAPARAMBIL ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,MATHAI MANJOORAN ROAD, ERNAKULAM, COCHIN.682 018. - 20 NAGARESH N ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,ANUGRAHA COMPLX, MARKET ROAD NORTH, ERNAKULAM,COCHIN-682 018. - 21 SHARAFUDEEN M ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,SHAD, CHETTOMMOON PO, TELLICHERRY, KANNUR. - 22 RAPHY RAJ N ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,CAMPISSERIL, RANI BHAVAN, VALLIKUNNAM,KADUVINAL PO, ALAPPUZHA-690 601. - 23 JAYARAJAN K ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,TULIP ARCADE, NEAR TAGORE CENTENARY HALL,RED CROSS ROAD, KOZHIKODE – 32. - 24 JAMES MATHEW ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,KALLARACKAL KADAVIL, UDAYANAPURAM PO,VAIKOM, KOTTAYAM-686 143. W.P.(C) No. 3807/2018 : 3 : - 25 GEETHAKUMARI P.S ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,HARIGEETHAM, SANATHANAM WARD, ALAPPUZHA.688 001. - 26 MATHAI VARKEY MUTHIRENTHY ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,ROSE GARDEN, MARIYAKUTTY JOHN ROAD,COCHIN-682 018. - 27 SANTHOSH KUMAR P ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,KAINTHAVILASM, KARUKULAM, PUTHIYATHUR PO,THIRUVANANTHAPURAM -695 526. - 28 DR. NARAYANAN NAIR N ADVOCATE, ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,LAW ACADEMY QUARTERS, PERURKADA, THIRUVANANTHAPURAM -5. - 29 SHANAVASKHAN E., ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,VISHNUMADOM, TD NAGAR, KOLLAM. - 30 JAYACHANDRAN K.P ADVOCATE, MEMBER, BAR COUNCIL OF KERALA,T.C 9/1280, DWARAKA, TEMPLE ROAD,SASTHAMANGALAM PO, THIRUVANANTHAPURAM -695 010. 31 THE SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, KATHRIKKADAVU, ERNAKULAM. 32 COMPTROLLER AND AUDITOR GENERAL AG'S OFFICE, THIRUVANANTHAPURAM. BY ADVS. SRI.B.RAMACHANDRAN, CGC SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SRI.ATHUL SHAJI SRI.BENOJ C AUGUSTIN SRI.T.B.HOOD SMT.M.ISHA SRI.JEN JAISON SRI.PETER JOSE CHRISTO SRI.RAJU K.MATHEWS SMT.RAHANA JOSE SMT.N.SANTHA SRI.T.A.SHAJI (SR.) SRI.SHAJI THOMAS SRI.SAJU.S.A SRI.V.VARGHESE R1 BY SRI. P. VIJAYAKUMAR, ASG R2 BY SRI. TEK CHAND, SR. GOVERNMENT PLEADER R3 BY RAJIT, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 3807/2018 : 4 : ## **Dated this the 7[th] day of September, 2021.** ## **JUDGMENT** ## **S. MANIKUMAR,CJ.** The petitioners have filed the writ petition as a Public Interest Litigation for the following reliefs: 1. To issue a writ of mandamus, order or direction commanding the 31[st] respondent (CBI) to conduct an exhaustive investigation under the supervision of this Hon'ble Court into the grave financial malpractice, irregularities, misutilisation, criminal breach of trust and criminal misappropriation of various funds in the Bar Council of Kerala and other offences committed by respondents 7 to 30 as well as the Administrative Staff of the Bar Council of Kerala and Bar Council of India Welfare Fund for the State of Kerala, and to register case against those who are found responsible; 2. To issue a writ of mandamus, order or direction commanding the 32[nd] respondent to conduct an exhaustive audit of the books of accounts as well as the financial/economic transactions of the various funds maintained by the Bar Council of Kerala, Kerala Advocate Welfare Fund and Bar Council of India Welfare Fund for the State of Kerala pinpointing the commission and omission of the various persons involved/responsible in the transaction and submit a detailed report before this Hon'ble Court within a time frame and taken steps to recover all financial loss sustained to the petitioner and the other advocates in the State of Kerala from the responsible culprits. 2. Even though notice has been ordered as early as on - 05.02.2018, no statement of facts or counter affidavit has been filed by the respondents. 3. On this day, when the matter came up for further hearing, Mr. - J. S. Ajith Kumar, learned counsel for the petitioners, submitted that he W.P.(C) No. 3807/2018 : 5 : is not pressing the relief No.1, as investigation has already been done by the Vigilance Department. 4. Insofar as relief No.2 seeking a direction to respondent No.32 to conduct an exhaustive audit of the books of accounts as well as the financial/economic transactions of the various funds maintained by the Bar Council of Kerala, Kerala Advocate Welfare Fund and Bar Council of India Welfare Fund for the State of Kerala is concerned, Mr. J.S. Ajith Kumar, learned counsel for the petitioner, submitted that Section 12 of the Advocates Act, 1961 provides for compulsory audit of books of accounts of a Bar Council before the 31[st] December of every year. 5. Section 12 of the Advocates Act, 1961 stipulates that the accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of companies under the Companies Act, 1956 (1 of 1956), at such times and in such manner as may be prescribed. SubSection 2 further stipulates that as soon as may be practicable at the end of each financial year, but not later than the 31[st] day of December of the year next following, a State Bar Council shall send a copy of its accounts together with a copy of the report of the auditors thereon to the Bar Council of India and shall cause the same to be published in the official Gazette of India. 6. To a query as to whether in the light of the statutory provision, W.P.(C) No. 3807/2018 : 6 : the petitioners have made any demand for conducting audit of accounts as stated supra, there is no specific answer, except to state that a complaint was filed. 7. Even though the statute provides for compulsory audit of the accounts, for exercise of the discretionary power to issue a writ of mandamus, a person who invoked the jurisdiction has to make out a case that the statute provides for a right; that he has exercised the right by making a demand, but the petitioner has failed to perform his duties. Reference can be made to a few of the decisions as to when a writ of mandamus can be issued. (i) In **State of Kerala v. A. Lakshmi Kutty** reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. ## (ii) In **Comptroller and Auditor General of India v.** W.P.(C) No. 3807/2018 : 7 : **K.S.Jegannathan** , reported in AIR 1987 SC 537 - (1986) 2 SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4[th] Edition, Vol. I, Paragraph 89, about the efficacy of mandamus: "89.Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." (iii) In **Raisa Begum v. State of U.P.** , reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law. (iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one W.P.(C) No. 3807/2018 : 8 : can approach the Court for a mandamus. The said position is well settled in a series of decisions. (a) In **State of U.P. and Ors. v. Harish Chandra and** Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows: “10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....” (b) In **Union of India v. S.B. Vohra** reported in (2004) 2 SCC 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.” (c) In **Oriental Bank of Commerce v. Sunder Lal Jain** reported in (2008) 2 SCC 280, at paragraphs 11 and 12, the Hon'ble Apex Court held as follows:- “11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: “Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the W.P.(C) No. 3807/2018 : 9 : proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty W.P.(C) No. 3807/2018 : 10 : rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.” 12. These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and** **others** , AIR 1977 SC 2149, after referring to the earlier decisions in _Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer, AIR 1966 SC 334; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, AIR 1962 SC 1210 and Dr. Umakant Saran v. State of Bihar, AIR 1973 SC 964_ , this Court observed as follows in paragraph 15 of the reports : "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. .... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as W.P.(C) No. 3807/2018 : 11 : already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same." (v) When a Writ of Mandamus can be issued, has been summarised in _Corpus Juris Secundum_ , as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasi-judicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an W.P.(C) No. 3807/2018 : 12 : evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) 8. In as much as there is no demand by the petitioners to exercise the statutory functions and the consequential denial, writ of mandamus cannot be issued as a matter of right. 9. In the light of the above discussion and decisions, direction sought for in the writ petition cannot be granted. Accordingly, this writ petition is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ W.P.(C) No. 3807/2018 : 13 : ## APPENDIX OF WP(C) 3807/2018 PETITIONER'S EXHIBITS EXHIBIT P1 COPY OF THE COMMUNICATION DATED 19.12.2017 FROM THE BAR COUNCIL OF KERALA TO SRI.P.MURALEEDHARAN. EXHIBIT P2 COPY OF THE PROCEEDINGS OF THE WELFARE FUND TRUST COMMITTEE DATED 10.11.2017. EXHIBIT P3 COPY OF THE LETTER DATED 13.12.2017 OF THE COMMUNICATION OF THE LAW SECRETARY TO THE SECRETARY OF THE BAR COUNCIL OF KERALA. EXHIBIT P4 COPY OF THE PROCEEDINGS OF THE SPECIAL COMMITTEE PREPARED ON 11.12.2017. EXHIBIT P5 COPY OF THE REPRESENTATION OF THE ADVOCATE , SRI.P MURALIDHARAN SUBMITTED TO THE CHAIRMAN OF THE SPECIAL COMMITTEE OF BAR COUNCIL OF KERALA. EXHIBIT P6 COPY OF THE COMPLAINT/REPRESENTATION DATED 28.1.2018 FILED BY THE PETITIONER BEFORE THE 31ST RESPONDENT. EXHIBIT P7 COPY OF THE COMPLAINT DATED 02.06.2017 BY THE SECRETARY, BAR COUNCIL OF KERNATAKA TO THE CHAIRMAN OF LEGAL EDUCATION COMMITTEE, BAR COUNSEL OF INDIA, NO.21, ROSE AVENUE, INSTITUTIONAL AREA, NEW DELHI – 110 002. ## RESPONDENTS' EXHIBITS: NIL /True Copy/ rv PS To Judge.