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HIGH COURT OF CALCUTTA
Ray
NARENDRA N. CHOWDHURY - Appellant
Versus
INSTITUTE OF ENGINEERS INDIA - Respondent
. Of .
Decided On : May 24, 1963
INSTITUTION OF ENGINEERS - CHARTER - BYE-LAWS - APPROVAL OF PRIVY COUNCIL - ULTRA VIRES - MAINTAINABILITY OF SUIT - REPRESENTATIVE CHARACTER - COSTS.
Fact of the Case:
The plaintiff, a member of the Institution of Engineers, filed a suit challenging the validity of certain bye-laws passed by the Institution on the ground that they were not submitted to the Privy Council for approval as required by the Institution's charter. The defendant Institution contended that the bye-laws were not ultra vires and that it was not possible to seek approval from the Privy Council in view of the Constitution of India.
Finding of the Court:
The court held that the Institution was not amenable to the doctrine of ultra vires and that the making of bye-laws was not a matter that could be described as going beyond the objects of the Corporation. The court further held that the non-observance of the proviso requiring approval of the Privy Council was at its worst a procedural irregularity and not a matter going to the root of the objects or vires of the Corporation. The court also held that the suit was not maintainable as it was not instituted in a representative character.
Issues: 1. Whether the bye-laws passed by the Institution were ultra vires and required approval of the Privy Council? 2. Whether the suit was maintainable as it was not instituted in a representative character?
Ratio Decidendi: 1. The court held that the Institution was not amenable to the doctrine of ultra vires and that the making of bye-laws was not a matter that could be described as going beyond the objects of the Corporation. The court further held that the non-observance of the proviso requiring approval of the Privy Council was at its worst a procedural irregularity and not a matter going to the root of the objects or vires of the Corporation. 2. The court held that the suit was not maintainable as it was not instituted in a representative character.
Final Decision: The court dismissed the suit with costs, but directed that each party would pay and bear its own costs in view of the plaintiff's undertaking not to prefer an appeal.
( 2 ) THE suit was instituted for a declaration that certain bye-laws passed by the general body of corporate members of the Institution at a meeting specially convened for the purpose on November 26, 1960 are ultra vires, illegal, not according to law, and not binding on the plaintiffs, the defendant Institution and/or members. The declaration is also asked for that the bye-laws made by the general body of the defendant Institution on January 31, 1950 and approved by the Privy Council on October 17, 1951 are valid, effective, operative and binding on the defendant Institution. The other declarations are that the Resolution of the Council at its 426th meeting on August 12, 1962 are ultra vires and illegal, and that the direction of defendant No. 3 to defendant No. 4 to issue nomination forms for election to the Council is ultra vires and illegal, and the notice issued by the defendant No. 4 is illegal, and an injunction is asked for to restrain the defendants from giving effect to the alleged bye-laws.
( 3 ) IN short, the plaintiff's suit is that certain bye-laws which were passed at the General Meeting held on 28 November 1960, namely, new Bye Laws numbered 4 (a), 4 (b), 37 and 50 are ultra vires, because the bye-laws were not submitted to the Privy Council and thereby clause 18 of the Charter of the defendant Institution was violated.
( 4 ) ON behalf of the defendants it has been denied in the written statement that the bye-laws which were passed, are ultra vires and further that it is possible under the law of the land and particularly in view of the Constitution of India to ask for approval by the Privy Council.
( 5 ) THE following issues were framed at the trial: 1. Is the suit as framed maintainable? 2. (a) Are the new bye-laws invalid or ultra vires as alleged in the plaint? (b) Do the new bye-laws require approval of the Privy Council as alleged? 3.
Have the plaintiffs ceased to be corporate members as alleged? 4. Are the plaintiffs entitled to any declaration or relief in this suit?
( 6 ) THE only oral evidence is that of Birendra Kanta Dutt who said that in the year 1960 the Institution revised certain bye-laws and the Council thereafter decided to give effect to the bye-laws without having the approval of the Privy Council, and that is why the suit was instituted by the plaintiffs. He further said that he apprehended that if the bye-laws were not passed as laid down in the charter, the charter might be revoked, and the witness would lose his membership and prestige as an Engineer. In cross-examination he said that it was a mere apprehension on his part, and he did not find out the whether there had been any cancellation of the charter.
( 7 ) THE most important question is whether the Institution can pass and give effect to the bye-laws. On behalf of the plaintiff reliance is placed on the proviso to clause 18 of the charter. That proviso is as follows :-"provided that no such bye-law, revocation, alteration or amendment shall take effect until the same has been allowed by the Lords of our Privy Council of which allowance a Certificate under the hand of the Clerk of our Privy Council shall be conclusive evidence. "
( 8 ) COUNSEL on behalf of the plaintiffs contended that giving effect to the bye-laws without the approval of the Privy Council was ultra vires the charter, and therefore the plaintiffs were entitled to an injunction restraining the defendant institution from giving effect to the bye-laws.
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