Kerala High Court
B.Sukesan vs Union Of India on 7 September, 2021
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 7TH 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 7th 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
31st 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
32nd 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
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. Sub-
Section 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,
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.
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
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
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
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
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
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
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/
PS To Judge.
rv
