Kerala High Court Advocates' Association v District Registrar (General)

**“C.R.”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **WP(C).No.25032 OF 2014(D)** ## **PETITIONER:** **KERALA HIGH COURT ADVOCATES' ASSOCIATION REPRESENTED BY ITS SECRETARY, HIGH COURT BUILDING, ERNAKULAM-682031.** **BY ADVS. SRI.M.P.ASHOK KUMAR SMT.BINDU SREEDHAR SMT.R.S.MANJULA** ## **RESPONDENT:** **THE DISTRICT REGISTRAR (GENERAL) OFFICE OF THE DISTRICT REGISTRAR (GENERAL), SOUTH RAILWAY STATION ROAD, ERNAKULAM-682016.** **SR GP- SRI B. VINOD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **05-11-2019, THE COURT ON 11-12-2019 DELIVERED THE FOLLOWING:** **WP(C).No.25032 OF 2014(D)** 2 **==> picture [55 x 10] intentionally omitted <==** ## **JUDGMENT** **Dated this the 11th day of December 2019** The authority of the District Registrar (General) to decline grant of approval to amendments made in the bye laws of a Society, governed by the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955, is the _lis_ involved in this writ petition. 2. The Kerala High Court Advocates Association is the petitioner. The Association, which is an organisation of lawyers practicing in the Kerala High Court, is registered under the Travancore-Cochin Literary, Scientific & Charitable Societies Registration Act, 1955 (hereinafter referred to as the 'Act 1955'). The petitioner-Association states that it has a membership of around 4000 advocates. **WP(C).No.25032 OF 2014(D)** 3 3. Clause 4 of the Rules and Regulations of the Association deals with the conditions regarding the membership in the Association. Clause 10 deals with formation of and election to the Executive Committee. The Executive Committee of the petitioner-Association consists of a President, two Vice Presidents, Secretary, Treasurer and six members of whom one shall be a lady. 4. In the Special General Body meeting convened by the petitioner-Association on 17.10.2013, it was decided to amend Clause 10(a), Clause 10(bb) and Clause 39 of the existing Rules and Regulations and incorporate certain new clauses which _inter alia_ mandate certain minimum standing required for a candidate to contest to the post of “Executive Committee Member”. The clauses as they existed and the amendments made, are as follows:- **WP(C).No.25032 OF 2014(D)** 4 ||**Existing Clause**||**amendment**| |---|---|---|---| |The<br>management<br>of<br>the<br>Association shall vest in Executive<br>Committee consisting of (1). The<br>President, (2) Two vice Presidents<br>of whom one shall be a lady, (3)<br>The Secretary (4) The Treasurer<br>and (5) Six members of whom one<br>shall be a lady||The Management of the Association<br>shall vest in Executive Committee<br>consisting (1). The President, (2) Two<br>Vice Presidents of whom one shall be<br>a lady, (3) The Secretary (4) The<br>Treasurer and (5)**Seven members**<br>**of whom one shall be a lady and**<br>**one shall be a designated Senior**<br>**Advocate**|| |**Clause.10(bb)**<br>**(New Clause)**||**The candidate to the post of**<br>**members in the Executive**<br>**Committee shall have been a**<br>**member of the Association at least**<br>**for a continuous period of 3years.**|| |Clause 10(d)||If any vacancy arises in the post<br>reserved for lady member and/or a<br>designated Senior Advocate, the<br>President may nominate members<br>from the respective constituency,<br>subject to clause 12 of this Rule|| |Clause 39<br>The election of the President, Vice<br>Presidents, Secretary, Treasurer<br>and 6 members of the Executive<br>Committee shall be by Secret<br>ballot||The election of the President, Vice<br>Presidents,Secretary, Treasurer and<br>**7 members**<br>of the Executive<br>Committee shall be by secret ballot|| The General Body of the petitioner-Association approved the amendments. 5. The petitioner-Association thereafter filed a certified copy of the resolution effecting the amendments, with the respondent-District Registrar(General) under Section 22 of the **WP(C).No.25032 OF 2014(D)** 5 Act 1955. But, the respondent-District Registrar (General) rejected the application for amendment stating that the new clause 10(bb) goes against Section 7(2) of the Act, 1955. According to the respondent, election has to be conducted from the Annual General Body as provided under Section 7(2) of the Act, 1955. It is aggrieved by the refusal of the District Registrar (General) to approve the amendments, that the petitioner has filed this writ petition seeking to declare that Clause 10(bb) in the bye laws of the Kerala High Court Advocates Association Rules and Regulations is strictly in accordance with law, and to direct the respondent to approve and incorporate the amended Clause 10(bb) in the Rules and Regulations of the petitionerAssociation. 6. Heard Sri.M.P.Ashok Kumar, the learned counsel appearing for the petitioner and the learned Government Pleader Sri.B.Vinod appearing for the respondent. **WP(C).No.25032 OF 2014(D)** 6 ## 7. The Section 7(2) of the Act, 1955 reads as follows:- “At the annual general meeting so held, election of members to the governing body shall be made as provided for in the rules and regulations of the society provided the minimum number of persons in the governing body shall be three”. It is based on the said Section 7(2) that the respondentRegistrar has declined approval to the amendments, as per Ext.P2 order. Ext.P2 states that since as per Section 7(2), Governing body is to be elected by the general body, any member of the general body should be eligible to contest to the Governing body and that the proposed amendment at Clause 10(bb) disqualifies certain members from contesting in election, which is against the provisions of the Act, 1955. 8. A plain reading of Section 7(2) would show that election of members to the Governing body shall be made as provided for in the Rules and Regulations of the society. The petitioner being a society, is entitled to frame its own Rules and Regulations relating to election of members to the Governing **WP(C).No.25032 OF 2014(D)** 7 body. There is nothing in Section 7(2) of the Act which restrains the petitioner-Association from prescribing conditions for contesting in election to the Governing body. 9. Section 2(a) of the Act 1955 defines “Governing body” to mean “the Governors, Council, Directors, Committee, Trustees or other body to whom, _by the rules and regulations of the society, the management of its affairs is entrusted_ ;” It is therefore evident that a Society is competent to make its own rules and regulations for the management of its affairs. Section 2(b) of the Act, 1955 defines the term “Member” to mean “a person who, having been admitted in a society _according to the rules and regulations thereof_ , shall have paid a subscription or shall have signed the roll or list of members thereof, and shall have not resigned in accordance with such rules and regulation”. Section 2(b) indicates that a society can make its own rules and regulations for admitting a member in the society. Therefore, it will be competent for the society to make separate **WP(C).No.25032 OF 2014(D)** 8 rules and regulations for admission of members as well as for election of members to the Governing body of the society. 10. Section 21 of the Act 1955 states that in cases in which a member of the governing body is removed or dismissed under Section 20, _the vacancy shall be filled up in accordance with the rules and regulations of the society_ . The Section 21 would also indicate that filling up of vacancies to the Governing body is governed by rules and regulations of the society, made by the society for that purpose. 11. The right to contest an election is neither a fundamental right nor a common law right. The right to contest an election can always be restricted or abridged, if Statutes, Rules or Regulations prescribe so. By the amendment to Clause 10(bb) of the Rules and Regulation of the petitioner-Association, a restriction is imposed for contesting to the posts of Members in the Executive Committee, by adopting a resolution in the **WP(C).No.25032 OF 2014(D)** 9 ## Governing Body of the petitioner-Association. 12. While deciding the issue, the substance and purpose of the amendment to Clause 10(bb) of the Rules and Regulation of the petitioner-Association cannot be lost site of. No one has a case that it does affect any of the aims and objectives of the petitioner-Association. At the same time the amendment ensures that members of the General Body who are elected as members of the Executive Committee have a minimum standing at the Bar and requisite knowledge in the aims, objectives and functioning of the Association as a Society of practicing lawyers in the Kerala High Court. The limitations/restrictions prescribed for the right to contest the elections cannot be said to be against the aims and objectives of the petitioner-Association. 13. Section 22 of the Act, 1955 enables a Society to make amendments in the provisions of the memorandum or the rules and regulations of the Society. The amendment to Clause **WP(C).No.25032 OF 2014(D)** 10 10(bb) has not taken away completely the right to contest in elections, but has only put restrictions intended to promote and protect the interest and prestige of the Kerala High Court Advocates Association. Such restrictions cannot be said to be illegal, especially in the light of the judgment of the Hon'ble Apex Court in **Supreme Court Bar Association and others v. B.D.Kaushik** [(2011)13 SCC 774). 14. In short, neither Section 7(2) nor any other provisions of the Act, 1955 prohibits a society from making rules and regulations for election to its governing body, nor there is any statutory prohibition in prescribing eligibility conditions for contesting in elections to the Managing Committee. As long as the amendments made by a Society registered under the Act, 1955, to its rules relating to elections are not in conflict with the provisions of the Act or with any other existing law of the land and as long as such amendments do not go against or affect the aims and objectives of the Society, the District Registrar **WP(C).No.25032 OF 2014(D)** 11 (General) cannot refuse to grant approval to such amendments. In view of the above, the writ petition is allowed. It is declared that the Clause 10(bb) in the bye laws of the Kerala High Court Advocates Association Rules and Regulations is strictly in accordance with law. Consequently, the respondent is directed to approve and incorporate the amended Clause 10(bb) in the Rules and Regulations of the petitioner-Association. **Sd/-** **N.NAGARESH** dlk/04.01.2020 **JUDGE** **WP(C).No.25032 OF 2014(D)** 12 ## **APPENDIX** **PETITIONER'S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF THE RELEVANT PAGES OF THE GENERAL BODY RESOLUTION. EXHIBIT P2 PHOTOCOPY OF THE LETTER DATED 21-01-2014.**