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TMI Blog2006 (3) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... of the DSGMC. (b) Upon his return the President issued a letter dated 8th December, 2005 stating that the General Secretary had no authority to issue the letter dated 28th November, 2005 and issued an order in exercise of his powers under Section 21 of the Delhi Sikh Gurudwara Act, 1971 (hereinafter referred to as the `DSG Act') to the same effect. Thereafter, a notice dated 12th December, 2005 was issued by the President calling for a special meeting of the Executive Board on 15th December, 2005 at 10.30 am. The said meeting was attended by eight members who constituted a majority in the Executive Board and was presided over by the Secretary since the President was unable to reach at the prescribed time. The majority unanimously approved the letter dated 28th November, 2005 reiterating that the elections would be held on 19th December, 2005. However, the President under the belief that no meeting had been held, convened another meeting at 11.00 am, which was also attended by 8 members of the Executive Board and a resolution was passed to the effect that the elections would not be held on 19th December, 2005 but on 18th January, 2006. The same was communicated by the Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) In Gurdeep Singh Dua v. Delhi Sikh Gurdwara Prabandhak Committee reported as , it was held that the Court can certainly interfere in the elections under its writ jurisdiction if it finds that exceptional and extraordinary circumstances existed. But in the present case no exceptional and extraordinary circumstances exist so as to warrant interference by this Court under Article 226 since factionalism, cut throat competition and heated exchanges etc., are part and parcel of the contemporary election process. (c) The learned Single Judge has inter alia relied upon the position of law laid down in Gurdeep Singh Dua's case (supra) to set aside the election dated 19th December, 2005. However, the position of law laid down in the said judgment is not applicable to the facts of the present case as the position of law laid down in the above mentioned judgment is not with respect to elections but with respect to power of the office bearers to authorize any person to make nominations on their behalf. Para 12 of the Gurdeep Singh Dua's case (supra) reads as follows:- 2...The Committee, as noted above, is a statutory body and law prescribes the functions of the office-bearers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Returning Officer. The learned Single Judge found that the statements of the witnesses were vague, general and conjectural in nature and did not establish the charge made by the appellant. We have been taken through the evidence of the witnesses by learned counsel for the parties and we are not persuaded to take a different view than the one taken by the High Court either. To avoid an election, it is necessary that cogent evidence is led in support of the charge. An election cannot be set aside on 'presumptions', surmises or conjectures. Clear and cogent proof in support of the allegations is essential. In the instant case, the evidence led by the appellant runs hopelessly short of establishing the charge under Section 100(1)(d)(iv) of the Act. In this view of the matter, the finding recorded by the learned Single Judge of the High Court on Issue 1 against the appellant cannot be found fault with. We, therefore, do not find any merit in this appeal. The appeal consequently fails and is hereby dismissed but without any order as to costs. 5. The learned Senior Counsel for the appellants, Shri J.M. Sabharwal has submitted that in elections where close knit groups are pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an advanced stage. Judicial notice could be taken of the fact that considerable amount must have been spent; enormous preparations made and ground works done in the process of election and that too for election in a State like the one under consideration. Having regard to these subsequent developments coupled with numbers belonging to different political parties, it was thought fit not to put the State in another spell of uncertainty. Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by not directing status quo ante and consequently permitting the completion of the ongoing election process with the fond hope that the electorate may again not give fractured verdict and may give a clear majority to one or other political party the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past. (ii) In Harnek Singh v. Charanjit Singh reported as 2005(8) Scale @ 441, 445-446, the Hon'ble Supreme Court laid down the following position of law:- 15. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favor of the petitioner by the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he elections dated 19th December, 2005, there could have been no material effect of the confusion of the respondents with respect to elections dated 19th December, 2005 on the result of the elections. He also submitted that if every voter, after an election process is complete, submits that he was confused, then it would not be possible to convene and conclude any elections. f) He sought to distinguish the two judgments relied upon by the Single Judge in his judgment. He submitted that the judgment in Gurdeep Singh Dua's case (supra) was not applicable as no election took place in this case but there was only a pre-election nomination. (g) In respect of Avtar Singh Hit's case (supra) he submitted that this judgment cannot be relied upon because it has been set aside by consent by the Division Bench of this Court in appeal. 6. The learned counsel for the appellants, Mr. Balgopal submitted as follows: a. Since the question of confusion in the elections is a disputed question of facts, a writ petition is not maintainable. b. The 15 persons who were elected as the office bearers in the elections dated 19th December, 2005 and who would be affected by the result of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary parties. ii) In Udit Narain Singh v. Board of Revenue it was held:- (9) The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favor of the successful party. However the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19th December, 2005 had taken place. The respondents should have informed the court that the elections had already taken place on 19th December, 2005 in the presence of the officer of the Directorate, Gurudwara Prabandhak Committee. e. The learned Single Judge has granted relief beyond the scope of the prayer made in the writ petition. The prayer of the respondents requests the Hon'ble Court to hold fresh elections but there was no mention of the elections held on 19th December, 2005 because the respondent was aware that such a plea would amount to a prayer best suited for an election petition. f. The necessary parties to the writ petition are required to be served eight days' notice as per the High Court Rules and as per the law laid down in Dua's case and Avtar Singh Hit's case. 8. The learned senior counsel Mr. Rajiv Nayyar, appearing for the respondents submitted as follows:- a. In respect of the maintainability of the writ petition, he relied on paras 10, 15, 18 22 of the judgment of the learned Single Judge to submit that the learned Single Judge did not rely upon Avtar Singh Hit's case except to the extent of appointment of the observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors for the next year. 9. Shri Arvind K. Nigam, the learned counsel for respondent No. 2, R.S. Khurana submitted that the Annual General Meeting is not convened only for the purpose of organizing elections but also includes other particulars as specified in Regulation 4(1)(ii) of the DSG Act. 10. The learned senior counsel Dr. Singhvi appearing for the respondent No. 1, submitted as follows:- a. That 'Election' as contended by the appellants is a sham and a non-existent event. Therefore, pleas of the appellants qua 'Election Petitions', 'Appeal', 'impleadment' of the affected parties to the writ petitions are not relevant. A sham election cannot be converted into an actual election. The appellants had till 18th December, 2005 denied the validity of the elections to be held on 19th December, 2005 by virtue of the letter dated 28th November, 2005 issued by the Secretary. He drew the attention of the Court to the following documents to show the consistent course of written conduct by the appellants through letters or notices showing that the letter dated 28th November, 2005 issued by Secretary was illegal and that no elections would be held on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court that where even whole of the elections are sought to be challenged it would be no ground to bypass the statutory provisions for resolving the election dispute by filing a writ petition it was submitted that the concession made by the respondent in CWP No. 2630/94 that if the election was sham it was not necessary to challenge the election of the members by filing election petitions' may be of no relevance. We do not think, however, that that was the intent and purpose of the judgment of the Supreme Court. If on the face of record it is found that there were no real elections as contemplated by law and that the elections were merely a pretence in an attempt just to satisfy the requirement of law, it will be a ground to interfere. In that context the respondent must be held bound by the statement of law attributed to it in the previous judgment. But then the Court can certainly interfere in writ jurisdiction if it finds that exceptional and extraordinary circumstances exist. These to our mind do exist in the present case. The judgment of the Supreme Court in Daulat Ram Chauhan's case AIR 1984 S.C. 621 was cited to show that in order to constitute 'corrupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Be that as it may, I am of the opinion that the President had correctly reversed his position and decided to adhere to the 19.12.2005 Election schedule, since this Meeting had been legally convened. The Regulations repose power in either the President or the General Secretary for convening the Elections. Most Constitutions of societies and other organizations envisage that such decisions are taken by the President, but this is not the position in the present case. Since a Meeting had taken place at 10.30 A.M. on 15.12.2005 any subsequent meeting without due notice to all persons entitled to attend the meeting could not have been legally and validly convened and held. Assuming that the President had exercised powers under Section 21(3) of the Act in the cancellation of the Secretary's notice viz-a-viz the Elections scheduled for 19.12.2005, it remained unenforceable since it had not been confirmed by the Executive Board. (d) In order to qualify for the exercise of writ jurisdiction the Petitioners ought to have asserted that they did not have notice of a meeting and not merely that there was some confusion in regard thereto, especially since they were privy to the decision t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and voters were not easy to communicate with. In a constituency of merely 50 voters with identified factions, the plea of confusion is not sustainable specially in the era of modern communications where use of mobile phones and other contemporary modes of communication are prevalent. Thus, the plea and the finding that 15 members who stayed away from the election got confused is incapable of belief and cannot be sustained particularly in light of the findings of the learned Single Judge that the elections were validly summoned. 15. We are thus of the view that notwithstanding the conflicting claims of the rival factions about the legality and efficacy of the election of 19th December 2005, there was no confusion worth the name. The staying away of 15 members could have been upon perceiving that the rival faction of 35 members led by the President was numerically far stronger and a loss in the elections scheduled for 19th December, 2005 was inevitable. The absence of such members including the Secretary is particularly baffling because all along, the Secretary had been repeatedly asserting by his communication dated 10th December, 2005, 13th December, 2005, 16th December, 2005 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Single Judge cannot stand. Since the learned Single Judge had himself recorded a finding that the summoning of the elections was valid and in accordance with Rule 4, the countermanding of the result of the election by the learned Single Judge, in the absence of a sustainable finding of confusion, cannot be upheld. In this view of the matter we have not dealt with the other pleas of the appellants about the effect of non-joining of affected parties in detail. However, we are satisfied prima facie that this plea is really a plea of desperation and unsustainable as both the factions were adequately and ably represented before the learned Single Judge and the affidavit in support of the LPA was in fact filed by two members elected in the 19th December, 2005 elections. 18. The learned counsel for the appellant Sh.R.K.Anand had contended vehemently that without joining the elected office bearers who were directly affected by the result of the writ petition countermanding the elections, the writ petition was not maintainable. Since we are sustaining the plea of the learned counsel for the appellant on other grounds, we have not gone into this plea of the learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumscribe the amplitude of that decision, namely, that the sweep of Article 226 cannot be curtailed by legislative action and ought to remain untrammeled. An interpretation of any of the provisions of the Arbitration and Conciliation Act or the Delhi Municipal Corporation Act or Delhi Sikh Gurdwaras Act which tend to have this effect would become impermissible. If the Legislature is not competent to curtail the extraordinary jurisdiction of High Courts, a fortiori, the provisions of subordinate legislation such as the Rules and Regulations referred to in these proceedings can certainly not do so. (b) In The Comptroller Auditor General v. K.S. Jagannathan reported as , where the Hon'ble Supreme Court held as under:- 18. The first contention urged by learned counsel for the appellants was that the Division Bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission both with respect to the order of the Division Bench and the purpose and scope of the Writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neficial and effectual. 20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statue or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant consideration or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases in any other fit and proper case a High Court can, in the exercise of its jurisdiction under article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised, it can issue writs in the nature of prerogative writs as understood in England: but the scope of those writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs in to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. The Hon'ble Supreme Court in Shri Anandi Mukta's case (supra) then observed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality of governmental intervention, we may straightaway say that amenability to judicial review is in no way connected with governmental interference in the affairs of the BCCI which is self-regulated body and will continue to be one. Theonly difference being, that its discharge of public duties and public functions (as distinct from private duties and functions) would be open to judicial review under Article 226 of the Constitution. This does not, ipso facto, translate into governmental intervention in the internal affairs of BCCI which would remain a private body. ...Thirdly, even in cases of judicial review, the High Court exercises self-imposed restraints. It does not substitute its views in place of those under review. Although it has become a hackneyed clich it bears repetition that in exercise of powers under Article 226, the High Court is not so much concerned with the decision itself in the sense as to whether an action is 'right or wrong', but with the decision making process signifying as to whether the action is 'lawful or unlawful'. So, if the selection of the team is lawfully made, the Court would not be concerned with the composition of the team. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reiterate the view of the learned Single Judge on the scope of intervention under Article 226 of the Constitution and hold that the writ petitions filed by the respondents under Article 226 of the Constitution of India were maintainable. In the light of the extraordinary circumstances cited by the learned Single Judge, the writ petition was maintainable and writ jurisdiction was rightly invoked. 23. In a petition directly arising from nomination to the election to the post of office bearers and members of the Executive Board, a Division Bench this Court in Gurdeep Singh Dua v. Delhi Sikh Gurdwara Prabandhak Committee reported as , held as under:- ...If on the face of record it is found that there were no real elections as contemplated by law and that the elections were merely a pretence in an attempt just to satisfy the requirement of law, it will be a ground to interfere. In that context the respondent must be held bound by the statement of law, attributed to it in the previous judgment. But then the court can certainly interfere in writ jurisdiction if it finds that exceptional and extraordinary circumstances exist. These to our mind do exist in the present case. 24. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction felicitously summed up by the learned Single Judge and indeed affirm his conclusions on the scope of Article 226. We also do not agree that all the members elected on 19th December, 2005 ought to have been joined as parties. The stand on behalf of the appellants was adequately and capably represented before the learned Single Judge and no prejudice whatsoever was caused to the elected office bearers by their not being joined as parties to the writ petitions and the writ petitions challenged the conduct of elections under extraordinary circumstances warranting the maintainability of the writ petitions. 27. Thus in view of the above discussion, we conclude that:- a) The writ petitions were maintainable notwithstanding the plea of alternate remedy provided under the DSG Act. b) As per the position of law laid down in Dua's case(supra) this Court is empowered under Article 226 of the Constitution to interfere in the elections if exceptional and extraordinary circumstances so exist. The manner in which elections were conducted and the conduct of both the parties certainly warranted invocation of this Court's writ jurisdiction and the examination of the legality a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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