The State Trading Corporation of India Ltd v. The Commercial Tax Officer and others reported in AIR 1965 SC 40

and affirmed in

Mahinder Kumar Gupta and others v. Union of India, Ministry of Petroleum and Natural Gas reported in (1995) 1 SCC 85

and

State of U.P. and Another v. C.O.D Chheoki Employees’ Cooperative Society Ltd. and Others reported in (1997) 3 SCC 681.

Applying the principles of law laid down in these cases, an Association or trade union is separate from its members and cannot espouse the cause of its members by filing a writ application. However, other decisions of the Supreme Court cited by Mr. Sengupta on reply Smt. Damayanti Naranga v. The Union of India and others (W.P. No. 91 of 1994) and the

Hindi Sahitya Sammelan and others v. Shri Jagdish Swarup and others reported in AIR 1971 SCC 966,

( Civil Appeal No. 358 of 1966) and

Delhi Cloth & General Mills Co. Ltd. V. Union of India and Others reported in (1983) 4 SCC 166

clearly indicate a change in thinking of the Supreme Court post The Tata Engineering and Locomotive Co. Ltd. v. the State of Bihar and others, The Automobile Products of India and another v. Mohd. Sharfuddin Sale-tax officer, Bombay, The State Trading Corporation of India Ltd v. The Commercial Tax Officer and others reported in AIR 1965 SC 40. Smt. Damayanti Naranga v. The Union of India and others (W.P. No. 91 of 1994) and the Hindi Sahitya Sammelan and others v. Shri Jagdish Swarup and others ( Civil Appeal No. 358 of 1966) reported in AIR 1971 SCC 966recognises the right to form and run an Association as a fundamental right

Kameshwar Prasad and others v. State of Bihar and another reported in AIR 1962 SC 1166

very plainly tells us that any obstruction caused to exercise the right to form or join an Association is violative of our Constitution. More importantly

Delhi Cloth & General Mills Co. Ltd. V. Union of India and Others reported in (1983) 4 SCC 166

has identified certain actions which may affect a body corporate as well as its shareholders or members.

There may be a cause of action which is common to a body corporate as well as its shareholders or members or a cause of action that affects both of them. Often these rights are “co-extensive as held in the 1983 case. In those circumstances the body corporate or a registered trade union or its members can maintain a writ application. Furthermore, this decision says that a body corporate may not only sue or be sued for violation of Article 19 but it may also sue for violation of Article 14 or any other law.

Furthermore, take a look at a Section 15 (d) of the Trade Unions Act, 1926. A Trade Union can expend funds for the conduct of trade disputes on behalf of the Trade Union or any member thereof. It is quite plain from this provision that the union can espouse the cause of its members. It is obvious that the impugned clauses in the agreement very seriously affect the rights of the Association, as a union as well as all its members. Therefore, following the principles in

Delhi Cloth & General Mills Co. Ltd. V. Union of India and Others reported in (1983) 4 SCC 166

the Association has a clear right to maintain this writ application on behalf of its members. This writ, apart from challenging the formation of the agreement, attacks certain clauses therein, namely 4, 11,13,16 and 18. The writ petitioners attack these clauses on the ground that they are violative ofArticle 19 of the Constitution of India, and are thus, void and arbitrary. In my opinion, in the exercise of its writ jurisdiction, this court is competent to adjudge whether certain clauses of an agreement violate the Constitution or the laws. To this extent, public law is involved. Where breach of public law is complained of, this court can intervene. It does not matter whether this public law element arises out of an ordinary contract between two parties. Furthermore, parties cannot contract so as to take away the fundamental or other legal rights of another party, applying the ratio in

Kameshwar Prasad and others v. State of Bihar and another reported in AIR 1962 SC 1166

State of Gujarat and Others v. Meghji Pethraj Shah charitable Trust and Others reported in (1994) 3 SCC 552.

Those parts of the agreement would be void an initio.

The impugned clauses of the agreement 4,11,13,16 and 18 tend to unreasonably restrict the fundamental rights of free association, demonstration, expression of speech, opinion etc.. granted by Article-19 of the Constitution and the rights conferred on the members of the Association by the Trade Unions Act, 1926. Hence, those clauses are illegal and void ab initio. They cannot be applied against the members of the Association. If an agreement or any clause in it is against the constitution or the laws it is illegal. If a clause or clauses in the agreement are so tainted with illegality but the rest of the agreement can survive, it is a well-known principle of law that the court has the power to sever those parts, using the “blue pencil test”. Now, if the whole agreement or a part of it is illegal, under the ordinary law, the whole or a part of it, as the case may be is void ab initio. If it is void ab initio it never came into being. It never existed at any point of time. Void ab initio is defined by Black’s Law Dictionary in the following manner: “void ab initio-null from the beginning, as from the first moment when a contract is conferred into. A contract is void ab initio if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one party to the contract. A vacuum or something non- existent can never give rise to any cause of action. Therefore, the contention, invoking the Limitation Act, 1963 is misplaced. Of course, I would add that if a further remedy arising out of voidness is sought, e.g. return of money, delivery back of property etc, then those reliefs have to be claimed within the period of limitation, as provided by law. Enforcement of an illegal agreement can be resisted by a party to it at any point of time.