JUDGMENT
A.K. Sikri,J.
1. This suit relates to the membership in the premier Gold Club of the country, namely, Delhi Gold Club Ltd. The plaintiff who was given Tenure Membership of the Golf Club in August 1999 which came to end on his retirement. He wants to be a permanent member of this Club. He in fact applied for this membership which was refused by the Club. The plaintiff asserts that he has right to be accorded regular membership. Therefore, this suit is filed by the plaintiff for declaration and injunction.
The prayers contained in the suit are:
a) pass a decree for declaration declaring that the plaintiff has a right to be accorded membership with the defendant club;
b) Pass a decree of permanent injunction directing the defendant club, its authorised officers, agents, nominees, representatives, committees etc. to allow the plaintiff the user of the club facilities especially the Gold Course;
c) costs of the suit may be awarded in favor of the plaintiff and against the defendant.
2. Some factual matrix may be noted at this stage. The Delhi Golf Club Ltd. (hereinafter referred to as the ‘the Club’) is a company registered under the Indian Companies Act. This Club was founded with the objective of promotion of the game of gold. Its functions are regulated by its Memorandum and Articles of Association and Bye-laws. The Club was given land on lease by the Government of India on Dr. Zakir Hussain Road, new Delhi vide lease deed dated 5th August, 1996. Certain Clauses of this lease deed have bearing on the present case and it would be appropriate to glance through the same.
3. Clause -4 of the Memorandum and Articles of Association of the Club stipulates various objectives for which the Club is founded and the main objective which concerns this case is objective 4(a) as per which the Club is “to promote the game of gold only”. Articles 3 to 10 of the Memorandum and Articles of Association deal with various kinds of the membership in the Club. As per Article 3 the club is to consist of not more than 750 permanent members; provided that at no time shall the number of the ‘A’ members be less than four-fifths of the permanent members. As per Clause 8(i) there shall be one class of Permanent Members, namely, ‘A’ Members. Explanation attached to this article reads as under:
“There shall be in future only one class of Permanent Members, namely, ‘A’ Members. There are certain ‘B’ and Life Members at the time of adoption of these Articles who are Permanent Members. They would continue as such and in future no ‘B’ Member or Life Member shall be admitted.”
4. Apart from Permanent Members, there could be Associate Members. As per Clause 9(i) an Associate Member is a lady or a gentleman who plays golf and is 21 years of age or above which is admitted as such Associate Member and enjoys the privileges as specified in these Articles and bye-laws of the Club and he/she is not a Permanent Member of the Club. Clause 9(ii) describes various classes of Associate Members as under:
(a) Mid-week Members
(b) ‘C’ Members
(c) Tenure Members
(d) Temporary Members
(e) Honorary Members
(f) Casual Members.
5. Clause 10 of the Articles thereafter stipulates as to who could be permanent ‘A’ members as well as various kinds of Associate Members mentioned above. The relevant provisions of Clause 10 in this respect defining all these members are reproduced below:
10 A.1 PERMANENT ‘A’ MEMBERS
Election of ‘A’ Members:
‘A’ Members vacancies will be filled up from Mid-week members strictly in the order of seniority of their becoming Mid-week Members subject to their playing regularly and a handicap of 18 or below for gentlemen and 24 or below for ladies on the LODHI COURSE for the last three months, as follows:-
(a) 80% out of Mid-Week Members other than Serving Govt. Officers.
(b) 20% out of Govt. officers who are Mid-Week Members as per the Lease Agreement of the Club.
If sufficient Govt. officers are not Mid-Week Members then this 205 can be filled up from Govt. Officers who are ‘C’ Members or are in the waiting list for Membership.”
10.A.2 ASSOCIATE MID-WEEK & ‘C’ MEMBERS:
Mid-Week Members:
The Committee may admit not more than 1200 Mid-Week Members (whether Resident in Delhi or outside Delhi) with privileges similar to those of ‘A’ Members other than voting rights and playing rights, provided that:-
(i) Mid-Week Members shall be elected normally from ‘C’ Members in order of seniority and their election will be subject to men having a handicap of 12 or below on the ‘Peacock’ Course and ladies having a handicap of 16 or below on the ‘Peacock’ Course and will be as per the Bye-Laws of the Club. However, those applications already having a handicap of 6 or below for men and 10 or below for women on the ‘Lodhi’ Course or from a recognized Gold Club may be taken directly as Mid-Week Members. Above handicap limit may vary subject to the Bye-Laws. The ratio of intake in Mid-Week Members will be as follows:-
(a) 50% from Senior Dependents Applied in Time and Applied Late. The ratio to be as per the Bye-Laws of the Club.
(b) 50% from others.
(ii) Mid-Week Members will not have any voting rights.
(iii) Playing rights of Mid-Week Members will be as per the Bye-Laws of the Club.
‘C’ Members:
The Committee may admit not more than 900 Golf Playing ‘C’ Members (whether resident in Delhi or outside Delhi) with privileges similar to those of Mid-Week Members provided that:-
(i) ‘C’ Members shall be elected out of applicants for Membership strictly in accordance with seniority of applications on the following basis:-
(a) 50% from Senior Dependents Applied in Time and Applied Late. The ratio to be as per the Bye-Laws of the Club.
(b) 50% from other applicants.
(ii) Playing Rights of ‘C’ Members shall be determined as per the Bye-Laws of the Club.
(iii) ‘C’ members will not have any voting rights.
10.A.3. ASSOCIATE TENURE MEMBERS:
Tenure Members:
1. A Tenure Member is not a Permanent, Mid-Week for C Member of the Club but is a person allowed use of the Club for a specific tenure as herein specified provided that a Tenure Member shall have continuous residence in Delhi during his tenure membership.
Classes of Tenure Members:
2. There shall be five classes of Tenure Members:-
(i) Three Government of India Nominees on the General Committee.
(ii) Government Officers as per the Lease Agreement.
(iii) Foreign
(iv) Non Resident Indian (hereinafter referred to as NRI).
(v) Corporate.
6. The Tenure Members could be Government service officers (Clause — 4), Foreign Tenure Members (Clause–5), NRI Tenure Members (Clause-6) and Corporate Tenure Members (Clause-7). Since the plaintiff was accorded Tenure Membership as a Government Service Offer, it would be worthwhile to notice Clause-4 dealing with such Membership.
“Clause-4:
(i) Three Government of India nominees officers who are nominated to the General Committee shall be elected as Tenure Members according to the Lease executed by the Delhi Golf Club Ltd. with the Ministry of Urban Affairs and Employment and would have all the privileges of ‘A’ Members including voting rights during their tenure.
(ii) Further Central Government Officers shall be elected as Tenure Members according to the Lease executed by the Delhi Gold Club Ltd. with Ministry of Urban Affairs and Employment and would be subject to the Bye-Laws of the Club.
10.A. 4. ASSOCIATE: TEMPORARY : DAY : CASUAL MEMBER:
Temporary Member:
1. A Temporary Member shall be a lady or gentleman admitted as such who plays golf and is above 21 years of age with Mid-Week Member golf playing privileges.
Number-Period-Duration:
2. The Temporary Memberships in a given financial year shall not exceed 10 and shall be confined for the period of 2 calender months.
Fee:
3. The Temporary Membership entrance fee for Indian Nationals domiciled in India and for citizens of Nepal & Bhutan resident in the sub continent shall be Rs. 5000/- p.m. and for all others including Indian Nationals domiciled abroad, NRI’s and Foreign Nationals US $ 400 p.m.
4. Temporary Members who pay their entrance fees in Rupees and US $ shall purchase coupons in Rupees and US $ respectively to settle their Club charges/bills as per the Bye-Laws of the Club.
Casual Member:
5. A Casual Member shall be a lady or gentleman who plays gold and who is not a Member of the Delhi Golf Club Ltd. or any other Golf Club associated with “the Club”. Playing rights, fees will be as per the Bye-Laws of the Club.
10.A.5 HONORARY MEMBERS AND HONORARY GUESTS OF THE CLUB:
Honorary Member:
1.(a) The Committee may admit up to 7 Honorary Members holding High Office in Delhi for the tenure of such office held as laid out in the Bye-Laws.
(b) The Committee may admit outstanding golfers as Honorary Members for a fixed period of 10 years whose number will not be more than 3 at any given time.”
7. Apart from aforesaid classes of Membership, the President and the Captain may invite national dignitaries and foreign dignitaries visiting NCT of Delhi to be the honorary guest of the Club during the period of their visit to Delhi. The Club has also framed its bye-laws which, inter alia, deal with the various categories of members, number of members, procedure of enrolling a person in specified category of membership, entrance, other fee in respect of various membership and other aspects of the functioning of the Club. Bye-laws 4 to 6 may be relevant for our purposes, and therefore, they are reproduced verbatim:
“4. NUMBER OF MEMBERS:
a. Permanent Members–The Club shall not have more than 750 Permanent Members. Subsequent vacancies shall be filled as under:
Proceeding outstation-By those returning from outstation.
Normal vacancy-By upgrading from Mid-Week.
b.The Committee, however, limit the number of ‘A’ members and those enjoying playing rights in keeping with the capacity of the Course. The exercise shall be undertaken only once in 2 years commencing January 1994.
C. The Committee also reserves the right to place a ceiling on all categories of Associates enjoying playing right: to be designated Associate M/W, C; Special A,M/W.C; Tenure A, M/W, C and Hony M/W,C, Student and Dependents.
5) APPLICATION FOR MEMBERSHIP:
Every candidate for admission as a Member/Association/Player of the Club shall apply for membership on the prescribed from which will be issued by the Club. The form will be serially numbered and entered in the Master Register at the time of issue. The candidates who apply for membership on the prescribed form shall have to ensure the following:-
a) The name of the candidate would have to be proposed and seconded by Permanent Members who are not Members of the General Committee at the time of endorsing the candidature.
b) The candidate must be personally known to both the proposer and the seconder.
c) Every candidate will have to deposit the requisite application fee as prescribed by the General Committee from time to time.
d) On receipt of the completed application the Club will enter the application form in a Master Register maintained for the purpose. The Registration No. will be recorded and a copy of the same will be handed over to the candidate for future reference. The names of candidates will also be placed on category-wise registers strictly in the order of inter-se seniority on the Master Register of Membership and the form will be counter signed by both Captain & Secretary.
6) METHOD AND PROCEDURE FOR ELECTION OF MEMBERS/ASSOCIATES:
a) The cases of the candidates for Membership/Player status will be considered by the General Committee strictly on the basis of seniority and handicap norms laid down by the Committee from time to time. All new entrants will be permitted to join the Club as Associates. No individual shall be taken as a Permanent ‘A’ Member directly.
b) Before the case of a candidate is considered for Membership/Associate/Player status by the General Committee, the application will have to be cleared by the Membership and Screening Committee.
Note: The General Committee may, however, relax any of the above conditions as a special case. The reason for deviation would be recorded in writing for future reference.”
At this stage, we may also note that Clause 3(h) deals with Out of Turn Membership as under:
“3(h) Out of Turn Membership: Generally no out of turn membership will be granted. The Committee may, however, consider granting out of turn associate status to a maximum of two eminent persons who are golfers per year, based on the recommendations of the President and the Captain”.
8. The plaintiff was a senior officer in the Indian Foreign Service (1963 Batch). In 1999, he was holding the rank of the Secretary of the Government of India. In that capacity he was offered Tenure Membership of the Club in August, 1999 in the category of Government Service Officers. It may be mentioned at this stage that as per Clause 21(i) there shall be three nominees of the Ministry of Urban Affairs and Employment on the management of the Committee of the Club who would be treated at par with ‘A’ category Members. They will have a term of two years from the date of nomination or the date of their cessation from Government service whichever is earlier. The Ministry can replace these nominees at any point of time. Clause 21(ii) further stipulates that at the time of enrolling new members, every fifth member will be a Government service official with full voting rights, provided he meets the Handicap rules of the Club. Clause 21(iii) stipulates that the Club shall take measures to ensure that officials who come to Delhi on tenure posting to the Government of India at the level of Director and above and who are golfers, would be made Temporary Members of the Club on the recommendations of the Ministry subject to a ceiling of 45. In addition, as per Clause 21(iv), five public servants, namely, Members of Parliament are given tenure membership on the recommendations of the Ministry. We are concerned here with Clause 21(iii) as the plaintiff was, on his posting to Delhi in 1999, made a Tenure Member on the recommendation of the Ministry. He was, therefore, given the Tenure Membership as per the relevant provisions of Memorandum and Articles of Association.
9. The plaintiff had applied for becoming Permanent Member i.e. ‘A’ category member on 16th January, 1998 vide registration No. 1491. Since he was to superannuate from service on 31st March, 2001, his Tenure Membership was coming to an end on that date. Therefore, he wanted to become ‘A’ category Member before the date of his retirement. Accordingly, he addressed letter dated 22nd December, 2000 to the Club bringing on record that he was accorded Handicap of 8 even when he started playing golf at a relatively late age of 57 years, and therefore, he should be accorded Membership to the Club. He received reply dated 29th December, 2000 wherein the Club congratulated the plaintiff on the success of his achieving the Handicap of 8 in a short span of two years. In this letter which was written by the President of the Club, it was further stated that he was putting up his request for Membership to the Membership Committee and thereafter to the General Committee depending on the view that they take in respect of his request dated 22nd December, 2000. It appears that his application for membership was not accepted and on coming to know of the same, the plaintiff wrote letter dated 16th February, 2001 to the President and the Chairman of the Membership Committee. In this letter he also alleged various irregularities being committed by the Club in giving out of turn membership to several persons who did not deserve the same on merits, not strictly adhering to the request of Association, granting membership by labelling them ‘former dependents’ who were in fact not ‘dependents’ as defended by the Club’s request. As the Club showed its inability to grant the membership even after this letter dated 16th February, 2001, the plaintiff filed the present suit with prayers already reproduced above.
10. In the plaint, apart from claiming the proficiency in the golf which the plaintiff has admittedly achieved on the basis of which he states that he is entitled to the membership of the Club, the plaintiff has alleged that the Club has in the past and regularly accorded special consideration and has granted full membership (even from tenure membership) to persons holding senior ranks in the Government of India. He has quoted the names of Mr. Prabhat Kumar, who held the rank of Cabinet Secretary (1963 Batch), Mr. Yogesh Chandra, who retired on 30th June, 2000 as Secretary to the Government of India, Mr. B.P. Mishra, who is holding the post of Administrator, NDMC and Mr. Ajay Raj Sharma, the Police Commissioner who have been accorded full membership of the Club. He has also given the list of 19 persons who have been granted membership, being off-spring of erstwhile members of the Club. It is alleged that all these persons have been granted full membership even when they had not achieved anywhere near the level of Handicap enjoyed by the plaintiff. It is stated in the plaint, which was the thrust of the oral arguments of learned counsel for the plaintiff as well, that as per Memorandum and Articles of Association of the Club, there could be only one basic criteria for admission to the Club, namely, a high degree of proficiency in the game of golf as the basic objective of the Club was the game of golf only. When the plaintiff was satisfying this criteria, there was no ground to deny the membership to the plaintiff.
11. In the written statement filed on behalf of the Club, various preliminary objections are taken to the maintainability of the suit. It is stated that since the plaintiff was only a Tenure Member which was to expire on 31st March, 2001, his suit for declaration and injunction was not maintainable. He had no right for such a declaration and for grant of membership with the Club. It is also stated that he had concealed the material facts. The allegations of discrimination are denied as incorrect and it is stated that as per Clause 3(h) of the bye-laws, the President/Captain was entitled to nominate two eminent persons for membership subject to approval of the Committee on out of turn basis and the vires of this Clause not having been challenged, the Club was within its right to nominate four persons named by the plaintiff. The Club has further stated that it has to admit the members in accordance with Memorandum and Articles of Association.
12. There is a cap on the membership inasmuch as not more than 750 permanent members can be enrolled. It is also stated, that as the plaintiff applied for membership in the year 1998 only, he cannot claim any preferential right on the basis of his so-called proficiency as there were many other persons in the queue aspiring to become permanent members who were more proficient and who had applied for membership much prior to the plaintiff.
13. It is an undisputed fact that the plaintiff was taken as tenure member in Government service officers’ category when he was a Government employee. As per Clause 21 of the lease deed, he was so nominated by the Government of India for this tenure membership. There is no dispute that on his retirement form Government service on 31st March, 2001 this tenure membership came to an end. Therefore, the plaintiff could not continue to be a tenure member after 31st March, 2001. The parties are at ad-ide up to this. What is claimed by the plaintiff is that he has right to become a permanent/full member. The basis of his claim, as is clear from the reading of the plaint as well as submissions of learned counsel for the plaintiff, is as under:
a) The objective of the Club is the game of golf only. (SIC) it is the proficiency in this game which should be the guiding factor for granting full Membership to a candidate
b) The plaintiff has attained desired level of proficiency as he has achieved the Handicap of 8 in a short span of time.
c) The Club is not giving the membership to all the candidates in accordance with the Memorandum and Articles of Association and Bye-Laws etc. and the same are flouted. Large number of persons who are accorded full membership are not even golf playing members.
d) Waiting list is not prepared and produced by the Club. Had the waiting list been prepared and operated and had the candidates been selected on merits, the turn of the plaintiff would have come in normal course for Membership.
e) Instead the Club has adopted pick and choose policy by resorting to Clause 3(h) of the Bye-laws and conferring the membership to persons on ‘Out of Turn Basis’. It was submitted that even otherwise out of turn membership could be given to only those who were playing golf and had achieved proficiency therein and not to non-playing golfers.
f) Clause 3(h) of the Bye-Laws was in fact a non-existing Clause as it stood deleted. In any case, this was against the provisions of Articles of Association as there was no such power in Articles of Association to grant out of turn membership inasmuch as the only discretion with the Club was to have honorary guests of specified dignitaries during the period of their visit to Delhi. It was further submitted that if the persons who were wrongly given out of turn membership as well as those persons who were not the ‘dependent’ but accorded full membership are excluded and had the list been operated properly, the plaintiff would have got the membership in its turn even as per wait list. Therefore, the plaintiff had a prima facie case in his favor and balance of convenience was also in his favor. In support reliance was placed on the judgments in the cases of Dorab Caswaji Warden v. Coomi Sorab Warden and Ors. , Dornier Luftfahrt GMBH v. K.C. V. Airways and DDA v. Nehru Place Hotel Ltd. and Ors. .
14. The learned counsel for the defendant Club, on the other hand, submitted that the plaintiff himself was enrolled as a Tenure Member as per the rules and he had taken advantage of such provisions. Further, when he applied for membership on 16th January, 1998 he was not a golfer earlier. Therefore, he could not now claim superior right only on the basis that he had attained necessary proficiency in game of golfer as otherwise he could not get even tenure membership in the first instance. Further his case in the plaint was only for membership on the ground that he was holding a senior post and had become a good golfer, and therefore, he should be made a member. He had accepted the existence of Clause 3(h) of the Bye-Laws as is clear from the replication filed by him. Further his application was considered on its merit and the Membership Committee did not find it proper to admit him as a member. The plaintiff had no legal right and pre-existing right to become a member. The application was considered as per the relevant Bye-Laws and provisions of Memorandum and Articles of Association. The plaintiff’s suit was therefore barred by the provisions contained in Sections 34, 38, 39 and 41(e) of the specific Relief Act. It was also argued that such a suit was not maintainable and was liable to be dismissed and consequently applications were liable to be dismissed. In support of his plea, he pressed into service two judgments of the Supreme Court in the case of Wander Ltd. and Anr. v. Antox India P. Ltd. reported in 1990 (Supp) SCC 727 and in the case of Dalpat Kumar and Anr. v. Prahlad Singh and Ors. . He also relied upon he Full Bench judgment of this Court in the case of Chandu Lal v. Municipal Corporation of Delhi reported in AIR 1978 Delhi 178 .
15. The defendant club has to ambit the applicants as members of the club in accordance with its Memorandum of Articles and Association and Bye-Laws. As the plaintiff is no longer a Government of India employee, his tenure membership has come to an end and he cannot claim this membership. He is not claiming it either. For permanent membership, the plaintiff’s application has to be considered with reference to the date of his application. He applied for membership in the year 1998 only. It is not his case that any person who applied in this category subsequent to the plaintiff has been enrolled as a permanent member. Bye-Laws 6 of the defendant club stipulates as under:
‘METHOD AND PROCEDURE FOR ELECTION OF MEMBERS/ASSOCIATES:
a) The cases of the candidates for Membership/Player status will be considered by the General Committee strictly on the basis of seniority and handicap norms laid down by the Committee from time to time. All new entrants will be permitted to join the Club as Associates. No individual shall be taken as a Permanent ‘A’ member directly.
b) Before the case of candidate is considered for Membership/Associate/Player status by the General Committee, the application will have to be cleared by the Membership and Screening Committee.
Note: The General Committee may, however, relax any of the above conditions as a special case. The reason for deviation would be recorded in writing for future reference.”
16. Merely because the plaintiff has attained a particular proficiency in the game may not be the solitary facto or granting him full membership. In the first instance, there is no preference which is to be given on this account as per the bye-laws. Secondly, as rightly argued by learned counsel for the defendant, there may be many aspirants who may be better golfer than the plaintiff and if membership is to be given making it to be the sole criteria without reference to the date of application, it would be introducing a consideration which is not provided in the rules of bye-laws and it may even create chaos. Therefore, applications are to be considered in accordance with ranking in the Waiting List. Of course when the turn matures, one of the guiding factors would be proficiency in the game of golf.
17. In so far as allegation of the plaintiff regarding non-preparation of the waiting list is concerned, the learned counsel for the defendant has produced on record the complete waiting list which has been prepared and statement made that the said list is strictly operated while according full membership.
18. The only other ground on the basis of which the plaintiff claims full membership is discrimination. In this respect the plaintiff has given certain instances who have been given full membership on ‘out of turn basis’ by resorting to Clause 3(h). It may be that certain persons are given out of turn membership and it is also possible that the persons who have been accorded this membership may be non-playing golfers. That is why the plaintiff argues that the club has adopted pick and choose policy by resorting to Clause 3 (h) of the bye-laws. It may be stated here that he defendant club has tried to justify the grant of membership to those persons whose names are given by the plaintiff. However, it may not be necessary to go into this question at this stage inasmuch as even if it is presumed that the defendant club has wrongly conferred full membership on certain persons on out of turn basis, no legal right thereby would accrue in favor of the plaintiff to get the membership. It is also not necessary to go into the validity of Clause 3 (h) of the bye-laws at this stage. The provisions of Article 14 are not applicable to the defendant club. Even presuming it be so, the equality clause mentioned in Article 14 is a positive concept and even it is presumed that some wrong is committed in certain cases that by itself would not confer any right in favor of the plaintiff.
19. We are dealing in the present case with a civil suit wherein the plaintiff, on the basis of averments noted above, is seeking declaration to the effect that he has a right to be accorded membership with the defendant club. For this purpose, the plaintiff has to establish his right as per the relevant bye-laws or provisions of Memorandum of Articles and Association. No legal right seems to have accrued in favor of the plaintiff in terms of the aforesaid bye-laws.
20. Furthermore, grant of temporary injunction of the nature as prayed for by the plaintiff at this stage would amount to decreeing the suit itself inasmuch as for using the club by paying normal fee, it will have to be treated that the plaintiff is the member of the club. Therefore, the injunction of this sort is almost in mandatory terms and unless a very strong case for relief of this nature is made out, such a relief cannot be granted at this stage. The plaintiff may not suffer irreparable injury, if he is not granted interim relief, inasmuch as even now the plaintiff has a right to use the club by paying little higher fee. Therefore, ultimately if the plaintiff succeeds, an order for refund of excess money which he would have paid during this period can always be passed. On the other hand, if the plaintiff is granted this relief, which is in the nature of final relief it may have snowballing effect. Many persons similarly situated may start approaching the court and if such persons are given membership it may even exceed the membership prescribed in bye-laws 4. Therefore, balance of convenience is also against the plaintiff and in favor of the defendant.
21. For all these reasons, this application is dismissed. However, it is clarified that any observations made are only tentative in nature.