Judgment : 1. For reasons inexplicable, I was reminded, in the course of hearing of these Applications, of what Mahatma Gandhi (who himself was a lawyer) once said "It is any day better to stand erect with a broken and bandaged head than to crawl on ones belly, in order to be able to save ones head". 2. Pending Suit for a direction to the Bar Council of Tamil Nadu and Pondicherry (first defendant) to conduct an election to the post of Chairman of the Bar Council and for a permanent injunction restraining the second defendant from acting as Chairman, the plaintiff has come up with — .(i) O.A. No.687 of 2008 seeking an interim order of injunction restraining the second respondent from acting as the Chairman of the Bar Council, and .(ii) O.A. No.700 of 2008 seeking an interim order of injunction restraining the second respondent from in any manner reconstituting any of the Committees in the Bar Council except following due process of law. 3. I have heard Mr. S. Prabhakaran, learned counsel for the applicant/plaintiff, Mr. T.V. Ramanujun, learned Senior Counsel for the first respondent/first defendant (Bar Council) and Mr. Vijay Narayan, learned Senior Counsel appearing for the second respondent/second defendant. 4. The applicant as well as the second respondent were elected to the Bar Council of Tamil Nadu, for a term of 5 years, in the elections held in September 2005. A total number of 25 members were elected from all over the State and the Union Territory of Pondicherry in the said elections. These elected representatives, in their meeting held on 111. 2005, elected the second respondent as the Chairman. Under normal circumstances, the tenure of the person so elected to the post of Chairman, is 5 years. .5. However, the applicant has come up with the present Suit to unseat the second respondent from the post, on the ground that no elected member had the support of the majority in November 2005 so as to get elected as Chairman and that therefore a tacit understanding was reached between the applicant and the second respondent to share power for equal terms within their tenure. According to the plaintiff, the term of office of the second respondent as Chairman came to an end on 30.5.2008, by virtue of such understanding and that the second respondent submitted a letter of resignation in tune .with such understanding. According to the plaintiff, the term of office of the second respondent as Chairman came to an end on 30.5.2008, by virtue of such understanding and that the second respondent submitted a letter of resignation in tune .with such understanding. It is the case of the applicant that thereafter, a few members gave a letter dated 6. 2008, to the Secretary of the Bar Council, seeking the convening of the meeting of the General Council, for the purpose of conducting election to the post of Chairman. Though no meeting was convened in pursuance of the said letter dated 6. 2008, the second respondent convened another meeting on 16. 2008 purportedly at the instance of a few other members, who had allegedly voiced concern at newspaper reports about the aforesaid resignation letter. In the said meeting held on 16. 2008, certain resolutions were allegedly passed, one among them being, an expression of solidarity and confidence by all the other members on the second respondent. Therefore, the applicant has come up with the present Suit. 6. The first defendant (Bar Council) has filed a counter affidavit through its Secretary contending that he did not receive either a letter of resignation dated 30.5.2008 from the second defendant or a letter dated 6. 2008 from a few members seeking the convening of the meeting of the Council. He has further stated that under Rule 16 of the Bar Council of Tamil Nadu Rules, the resignation of a Chairman or Vice Chairman will take effect only from the date of its acceptance and that there was neither a resignation nor its acceptance by the Bar Council. .7. He has further stated that under Rule 16 of the Bar Council of Tamil Nadu Rules, the resignation of a Chairman or Vice Chairman will take effect only from the date of its acceptance and that there was neither a resignation nor its acceptance by the Bar Council. .7. The second defendant has filed a counter affidavit contending inter alia that in November 2005, when elections to the post of Chairman of the Bar Council were scheduled to be held, he wanted to contest, but realised that he would not succeed (probably for want of adequate support); that the plaintiff represented to him at that point of time that he had six members with him and that without his support, the second defendant could not win; that he got completely misled by the said representations of the plaintiff; that the plaintiff agreed to secure the support of those six members, if the second defendant agreed to share the tenure of office in equal terms; that the plaintiff brought a typed letter in November 2005, containing the date 30.5.2008 and purporting to be a letter of resignation of the second defendant; that the plaintiff also brought another letter dated 6. 2008 purporting to be the letter of a few members seeking to convene a meeting for election of Chairman on account of the alleged resignation; that believing the representation of the plaintiff, the second defendant signed the letter dated 30.5.2008; that thereafter, the second defendant consulted his well wishers before filing nomination and came to know on advice that such an arrangement was opposed to public policy and unenforceable; that therefore the second defendant told the plaintiff that the proposal was not agreeable to him; that the members who had signed the letter dated 6. 2008 also expressed their disagreement with the arrangement propounded by the plaintiff., that thereafter, the plaintiff agreed to destroy both the letters dated 30.5.2008 and 6. 2008 also expressed their disagreement with the arrangement propounded by the plaintiff., that thereafter, the plaintiff agreed to destroy both the letters dated 30.5.2008 and 6. 2008; that thereafter, there was a contest for the post in which the second defendant secured 15 out of a total of 25 votes, while the rival contestants (two persons) secured 5 votes each; that the second defendant, who was then known as "K. CHANDRA MOHAN", changed his name later as "R.K. CHANDRA MOHEN" by a Gazette notification and started signing only as "R.K. CHANDRA MOHEN"; that this itself would show that the letter dated 30.5.2008 relied upon by the plaintiff came into existence only in November 2005 and not now; that a few members requested the convening of a meeting to discuss certain news items appearing in the press about the resignation of the second defendant; that therefore a meeting was convened on 16. 2008, in which, 19 members participated and the entire matter was discussed and the members (except the petitioner) reposed confidence in the second defendant; that therefore there is no cause of action for the plaintiff to institute the present Suit; and that the reliefs of the nature sought for, cannot be granted in law. 8. Thus it is seen from the counter affidavit filed by the second defendant that his signature in the letter of resignation dated 30.5.2008 is not disputed by him. All that the second defendant would say is that the said letter was signed by him in November 2005, on the basis of a representation (or misrepresentation) made by the plaintiff, to get six votes for him in the election to the post of Chairman. It is his further contention that after signing such a letter in November 2005 (with the date 30.5.2008), he came to understand from his well wishers that any such arrangement to share power in equal terms, was opposed to Public Policy and unenforceable. Therefore, the second defendant claims that he did not go ahead with the arrangement proposed by the plaintiff and that the plaintiff promised to destroy or return those letters. 9. Therefore, the second defendant claims that he did not go ahead with the arrangement proposed by the plaintiff and that the plaintiff promised to destroy or return those letters. 9. In simple terms, the case of the second defendant, as projected in his counter affidavit, is that he signed a post dated letter of resignation in November 2005, on the basis of a proposed pact for sharing of power, without being aware of the legal effect or consequences of the same and that he withdrew from the proposed pact after being made aware of the legal implications. 10. It is not for me, at this juncture, to comment upon such a stand, coming as it does from the Chairman of a State Bar Council, who is looked upon by the entire legal fraternity of the State as their steward. Less said, the better. 11. Mr. S. Prabhakaran, learned counsel for the applicant/plaintiff contended that since the signature of the second defendant in the letter of resignation dated 30.5.2008 is not disputed, a vacancy had arisen in the post of Chairman and that therefore the second defendant ought to have convened a meeting for electing a Chairman by secret ballot, in response to the letter dated 6. 2008, submitted by a few members. 12. To test the tenability of the said contention, we have to see if a vacancy had actually arisen on 30.5.2008 or on any other date, so as to compel the defendants to hold an election. For a minute, I am prepared to assume (for the sake of argument) that the letter of resignation was actually signed by the second defendant on 30.5.2008 as contended by the plaintiff. Even then, a vacancy would not be created automatically, unless the condition precedent for considering the post to be vacant, is satisfied in accordance with the Rules. The Rules of the Bar Council of Tamil Nadu, framed in exercise of the power conferred by Section 15 of the Advocates Act, 1961, contemplates the arising of a vacancy and its filling up, under Rules 16 and 17. Rules 16 and 17 read as follows: “16. The Chairman or the Vice Chairman may resign his office by letter addressed to the Secretary of the Bar Council. Rules 16 and 17 read as follows: “16. The Chairman or the Vice Chairman may resign his office by letter addressed to the Secretary of the Bar Council. Such resignation shall take effect from the date of acceptance thereof by the Bar Council or from such other date as the Bar Council may fix." “17. If the Chairman or the Vice Chairman ceases to be a member of the Bar Council for any reason, the vacancy of the Chairman or the Vice Chairman shall be filled up by election as far as possible at the next meeting of the Bar Council and the meeting of the Bar Council shall be held within 45 days from the date of vacancy." 13. Therefore, even if the letter of resignation is deemed to have been given on 30.5.2008, it would not come into effect, unless it was accepted by the Bar Council, in a meeting convened for the purpose, by virtue of Rule 16. It is open to the Bar Council either to accept the resignation or to reject it. It is also open to the Bar Council to accept it either with immediate effect or with effect from "such other date as it may fix". Therefore, the contention that a vacancy arose on 30.5.2008 or on any other date consequent upon the letter of resignation, cannot be accepted unless the plaintiff proves that the resignation was also accepted by the Bar Council in a meeting convened for the purpose. 14.The case would not also fall under Rule 17. While resignation is covered by Rule 16, the cessation of membership of the Bar Council is what is covered by Rule 17. Such cessation of membership of the Bar Council may arise upon expiry of the term as prescribed under Section 8 of the Advocates Act, 1961 or upon the elected member suffering a disqualification as prescribed under Section 10-B of the Act. Since the case of the second defendant would not fall under the category of cessation of membership covered by Rule 17 (even if the case of the plaintiff is accepted), it can at the most be brought only within the four corners of Rule 16. Since the case of the second defendant would not fall under the category of cessation of membership covered by Rule 17 (even if the case of the plaintiff is accepted), it can at the most be brought only within the four corners of Rule 16. But unfortunately for the plaintiff, the resignation of the second defendant has not so far been accepted by the Bar Council and hence there is no vacancy as on date to enable the plaintiff to seek a direction to fill up the post. 15. Suppose the stand taken by the second defendant in the counter affidavit is accepted, even then, no relief can be granted to the plaintiff. The stand taken by the second defendant is that he signed a post dated resignation letter. If this is accepted, then what the plaintiff now seeks to do, is to have the understanding that the second defendant allegedly had with him in November 2005, specifically enforced. But it is not given to this Court to compel specific performance of "a word of honour" or "a gentlemen agreement" (?). As the second defendant has rightly understood (at least before filing his nomination), such an arrangement is opposed to public policy and it is incapable of being enforced. 16. Section 8(1) of the Advocates Act, 1961 prescribes the term of office of an elected member of a State Bar Council as five years from the date of publication of the result of his election. Section 3(3) of the Act, stipulates that there shall be a Chairman and a Vice Chairman of each State Bar Council elected by the Council in such manner as may be prescribed. Therefore, as stated earlier, in exercise of the power conferred by Section 15 of the Act, the Bar Council of Tamil Nadu has framed Rules. Rule 4 of the said Rules prescribes that the election of Chairman, unless unanimously agreed, shall be by secret ballot. A member questioning the validity of the election, is required to send a letter under Rule 5 to the Chairman of the Bar Council of India within 7 days of declaration of results. Rule 15 specifies that- "the Chairman or the Vice Chairman shall hold office for the full term from the date of election". 17. In the light of the above provisions, any agreement or understanding to outwit the statutory provisions, would be opposed to public policy. Rule 15 specifies that- "the Chairman or the Vice Chairman shall hold office for the full term from the date of election". 17. In the light of the above provisions, any agreement or understanding to outwit the statutory provisions, would be opposed to public policy. Section 23 of the Contract Act, 1872, makes it clear that the consideration or object of an agreement is unlawful if it is of such a nature that, if permitted, it would defeat the provisions of any law or the Court regards it as opposed to public policy. Section 24 declares those agreements whose considerations or objects are unlawful, to be void. Therefore, the understanding that is pleaded by the plaintiff and partly accepted by the second defendant (at least to the extent of being a proposal to which he was attracted momentarily in November 2005) is one that is hit by Section 23 of the Contract Act. Hence, this Court cannot look into such "gentlemen agreement". 18. Any agreement or understanding to secure votes in favour of a person to enable hint to get elected to a statutory body, in consideration of such person agreeing to share power or quit office after a specified period, is opposed to public policy and is also against the provisions of Section 8 of the Advocates Act, 1961 and the statutory rules of the Bar Council. Therefore, even if I were to accept that there was such an understanding between the plaintiff and the second defendant in November 2005, I cannot now compel the second defendant to perform his part of the obligations under such arrangement or understanding. Moral obligations should at best be left to a mans conscience, as they are beyond the pale of judicial scrutiny. All that I can do perhaps, is to quote George Bernard Shaw who said "The more things a man is ashamed of, the more respectable he is". 19. It has long been held that a contract for the buying, selling or procuring of public offices, is opposed to public policy. All that I can do perhaps, is to quote George Bernard Shaw who said "The more things a man is ashamed of, the more respectable he is". 19. It has long been held that a contract for the buying, selling or procuring of public offices, is opposed to public policy. In "Equity Jurisdiction", Story says: "It is obvious that all such contracts must have a material influence to diminish the respectability, responsibility and purity of public offices and to introduce a system of official patronage, corruption and deceit wholly at war with the public interest" This is based upon the fundamental principle of law "Ex turpi causa non oritur actio" meaning thereby that no right of action arises out of an immoral cause or consideration. 20. A situation similar to the one on hand arose in the year 1980 in the Bar Council of Kerala. One Mr.Thankappan Pillai was elected as a member of the Bar Council of India on 110. 1980, by the Bar Council of Kerala. After more than 2 years, another elected member of the Bar Council of Kerala, by name C.J. Antony, gave a letter to the State Bar Council, pointing out that there was a secret pact between him and Thankakppan Pillai and 2 other elected candidates, whereby Thankappan Pillai was to resign and surrender his membership of the Bar Council of India, to enable the other 2 candidates to share the rest of the term between them. C.J. Antony also forwarded an undated letter of resignation submitted by Thankappan Pillai to the State Bar Council along with his own letter, requesting appropriate action. The State Bar Council resolved that Thankappan Pillai forfeited the confidence of the State Bar Council and hence requested the Bar Council of India to take appropriate action to terminate his membership. But Thankappan Pillai took a stand that the letter of resignation was obtained from him under threat and coercion and that by way of abundant caution, he was also withdrawing his letter of resignation. In view of the said stand taken by Thankappan Pillai, the Bar Council of India did not accept the resolution of the State Bar Council, to take appropriate action. Therefore, the State Bar Council passed a resolution, recalling Thankappan Pillai from the membership of the Bar Council and also proposing to take action for professional and other misconducts. In view of the said stand taken by Thankappan Pillai, the Bar Council of India did not accept the resolution of the State Bar Council, to take appropriate action. Therefore, the State Bar Council passed a resolution, recalling Thankappan Pillai from the membership of the Bar Council and also proposing to take action for professional and other misconducts. Simultaneously, the State Bar Council also proposed an amendment to the Rules of the Bar Council of Kerala, so as to incorporate a provision for bringing a no confidence motion against the office bearers of the Bar Council. But the Bar Council of India did not accept the proposed amendments on the ground that they were against statutory provisions contained in Section 8 of the Advocates Act, 1961. When the decision of the Bar Council of India was challenged by the Bar Council of Kerala, before the Kerala High Court, a Full Bench of the Kerala High Court considered the issue in detail. By the time, the issue was considered, K.C. Thankappan Pillai had completed his tenure of office and hence the Full Bench (comprising of 5 Judges), considered only the validity of the proposed amendment to the Rules of the Bar Council of Kerala, intended for incorporating a provision for bringing a no confidence motion against a member. After quoting with approval, a decision of the Division Bench of the Delhi High Court, the Full Bench of the Kerala High Court upheld the proposed amendment. Thereafter, the Full Bench expressed an opinion in paragraph-13 of its judgment in Bar Council of Kerala v. Thankappan Pillai, AIR 1986 Ker. 144 , before concluding, as follows: "Before parting with the case, it is necessary to express our displeasure at the manner in which a "deal" was made between certain persons in the matter of electing the representative of the State Bar Council to the Bar Council of India. It was unfortunate that despite being notified about the deal, the Bar Council of India chose to close the matter on technical grounds. The first respondent who had admittedly gone back on his assurance, and the majority of the State Bar Council whose anxiety was only to enforce the "deal" also did not appear to have brought any honour to the profession by their conduct." Therefore, such deals or arrangements are wholly opposed to Public Policy. 21. The first respondent who had admittedly gone back on his assurance, and the majority of the State Bar Council whose anxiety was only to enforce the "deal" also did not appear to have brought any honour to the profession by their conduct." Therefore, such deals or arrangements are wholly opposed to Public Policy. 21. The case of the plaintiff based upon the letter dated 6. 2008 signed by a few members, calling for a meeting of the Bar Council, to elect a Chairman in the vacancy allegedly created by the resignation of the second defendant, is also very weak. Rule 29 of the Rules of the Bar Council of Tamil Nadu obliges the Chairman to convene an extraordinary meeting of the Council, if not less than five members of the Bar Council make a requisition in writing. Unfortunately, for the plaintiff, even if the letter dated 6. 2008 relied upon by him is taken for its face value, the occasion for invoking Rule 29 would not arise, since the said letter contains the signatures of only 4 persons. Therefore, I cannot even direct the second defendant to convene an extraordinary meeting of the Bar Council under Rule 29 on the basis of the letter dated 6. 2008 relied upon by the plaintiff. 22. Mr. Vijay Narayan, learned Senior Counsel appearing for the second defendant contended that Rule 29 also cannot be invoked to unseat the second defendant from the post of Chairman, since there is no provision under the Rules of the Bar Council to remove a Chairman or to pass a vote of no confidence against him. Though the said question does not arise at present in view of the fact that there is no requisition from 5 members, the learned Senior Counsel does not appear to be correct in saying that the Bar Council has no power to remove a Chairman, in the absence of a specific rule. A statutory body which is conferred with the power to elect a Chairman, should be deemed to be clothed with the power even to remove him. It was held by a Division Bench of the Delhi High Court in Bar Council of Delhi v. Bar Council of India, AIR 1975 Del. 200 , as follows: “11. A statutory body which is conferred with the power to elect a Chairman, should be deemed to be clothed with the power even to remove him. It was held by a Division Bench of the Delhi High Court in Bar Council of Delhi v. Bar Council of India, AIR 1975 Del. 200 , as follows: “11. Quite irrespective of the question whether the office of the Chairman of a State Bar Council is held at pleasure or for the sane period for which the Bar Council is elected, the common law relating to the removal of the holder of an office is that the body which has the authority to elect its Chairman has the inherent and implied power to remove the Chairman. If the Chairman holds his office at pleasure, then he can be removed at will. But if he holds his office otherwise than at pleasure, he can be removed only for cause after notice and hearing." “12. The view expressed by the majority of the Bar Council of India that a rule cannot be made under Section 15 of the Advocates Act for the removal of the Chairman of the State Bar Council leads to the result that once elected such Chairman is irremovable. He would go out of office only when the State Bar Council does at the expiry of its statutory tenure. Such a result can be justified only if the common law stated above has been changed by the statute. The view of the Bar Council of India is, on the other hand, based on the very silence of the statute on this point. We are of the opinion that such silence indicates that the common law regarding the removal of the holder of an office remains unchanged. The statute does not, therefore, have to say that the Chairman of the State Bar Council would be removable by a resolution of no-confidence. The reason is that such power of removal is inherent in the Bar Council which elects its Chairman. The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other part of the common law which implies in the State Bar Council the power to remove the Chairman so elected. The power given to the State Bar Council to elect its Chairman is the codification of only a part of the common law. Such codification does not change the other part of the common law which implies in the State Bar Council the power to remove the Chairman so elected. Just as rules can be made under Section 15 to carry out the expressed power of the Bar Council to elect the Chairman, it would appear that rules may also be made to carry out the implied power of the State Bar Council to remove the Chairman. The two powers are inseparable in common law. They can be separated only by a statutory intervention. So long as this is not done, they would remain connected with each other even though only one of the powers, namely, the power of election has been made statutory while the other power, namely, the power of removal has been left to be implied. If such a power is not implied, the mere codification of the power to elect would result in a change in the common law. There is no warrant for implying such a change. On the contrary, the construction of the statute in the light of the common law implies such a power in the State Bar Council." The ratio laid down by the Division Bench of the Delhi High Court as above, was quoted with approval by the Full Bench of the Kerala High Court in K.C. Thankappan Pillais case. 23. Therefore, no relief of the nature prayed for by the plaintiff can be granted even if his case is accepted in total or if the second defendants case is accepted in total. Hence the application O.A. No.687 of 2008 is dismissed. 24. In O.A. No.700 of 2008, the plaintiff seeks an interim order of injunction restraining the second defendant from reconstituting any of the Committees of the Bar Council, except after following due process of law. In the counter affidavit filed to this Application, the Secretary to the Bar Council of Tamil Nadu has contended that since the plaintiff did not approve the enrolment applications processed by the office, the Chairman reconstituted the Committees, by virtue of the power conferred on him by the Resolution No.84/2008 dated 16. 2008. In the counter affidavit filed to this Application, the Secretary to the Bar Council of Tamil Nadu has contended that since the plaintiff did not approve the enrolment applications processed by the office, the Chairman reconstituted the Committees, by virtue of the power conferred on him by the Resolution No.84/2008 dated 16. 2008. However, the first defendant has also stated that the reconstitution of the Enrolment Committee and the Executive Committee have been kept in abeyance, in deference to the undertaking given to this Court at the time when the Application for injunction was moved. The second defendant has also taken a similar stand in his counter affidavit. Thus it is clear that the apprehension of the plaintiff that there is an attempt to remove him from the Committees in which he is a member, has come true. 25. It is seen from Rule 36 of the Rules of the Bar Council of Tamil Nadu that there shall be an Executive Committee comprising of 5 members, an Enrolment Committee comprising of 3 members, a Legal Aid Committee comprising of 5 members, a Complaints Scrutiny Committee comprising of 3 members, one or more Disciplinary Committees comprising of 3 members each, a Legislation and Law Reforms Committee comprising of 3 members, a Privileges Committee comprising of 3 members and a Rules Committee comprising of 5 members. It is seen from Rule 36 that the members of these Committees are to be elected by the Bar Council from amongst its members. 26. While the constitution of all the Committees is governed by the provisions of Rule 36 as aforesaid, the Bar Council is said to have passed a resolution bearing No.84/2008 in its meeting held on 16. 2008, authorising the Chairman to reconstitute the Disciplinary Committees and other Committees, if necessary. Therefore the resolution is clearly not in tune with Rule 36. As a matter of fact, the constitution of Committees of the Bar Council is governed by the provisions of Sections 9, 9-A and 10 of the Advocates Act, 1961. Section 9(1) mandates a Bar Council to constitute one or more Disciplinary Committees, each of which shall consist of 3 persons of whom 2 shall be "persons elected by the Council from among its members" and the other shall be a person coopted by the Council from among Advocates who possess the qualification prescribed under Section 3(2) of the Act. Section 9(1) mandates a Bar Council to constitute one or more Disciplinary Committees, each of which shall consist of 3 persons of whom 2 shall be "persons elected by the Council from among its members" and the other shall be a person coopted by the Council from among Advocates who possess the qualification prescribed under Section 3(2) of the Act. Section 9-A enables a Bar Council to constitute one or more Legal Aid Committees, but the Section does not use the expression "persons elected by the Council from among its members". Section 10(1) mandates the State Bar Council to constitute an Executive Committee and an Enrolment Committee (which are termed as Standing Committees). These Committees are to consist of 5 members and 3 members respectively "elected by the Council from amongst its members". Similarly, Section 10(3) enables a State Bar Council to constitute such other Committees, but the Section indicates that such constitution shall be "by the Bar Council from amongst its members". 27. Thus, neither the scheme of the Advocates Act, 1961 nor the scheme of the Rules of the Bar Council of Tamil Nadu enables the Bar Council to authorise the Chairman to reconstitute all the Committees, at his discretion like a blank cheque. Consequently, the resolution No.84/2008 passed on 16. 2008 conferring sweeping powers upon the second defendant to reconstitute the Committees and the action taken by the second defendant in pursuance of such a resolution, does not appear to be lawful. Under such circumstances, I have no alternative except to grant an injunction in favour of the plaintiff restraining the respondents from removing the plaintiff from any of the Committees to which he has already been elected/nominated. Accordingly, O.A. No.700 of 2008 is allowed, granting an interim order of injunction restraining the respondents from in any manner removing the plaintiff from any of the Committees to which he has been elected/nominated, except by due process of law, as contemplated under the Act and the Rules, pending disposal of the above Suit. No costs.