TMI Blog2006 (10) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... tee and others). The principal issue raised is regarding the validity of the election held on 19.12.2005 for electing the members of the Executive Board of Delhi Sikh Gurdwara Management Committee (hereinafter referred to as 'DSGMC'). In order to understand the controversy involved it is necessary to make a brief reference to the relevant statutory provisions. 4. The Parliament enacted The Delhi Sikh Gurdwaras Act, 1971 (hereinafter referred to as 'the Act') to provide for the proper management of the Sikh Gurdwaras and Gurdwara property in Delhi and for matters connected therewith. Section 2(c) of the Act defines Committee and it means the Delhi Sikh Gurdwara Management Committee established under Section 3 of the Act. Section 3 provides for establishment of a committee called the Delhi Sikh Gurdwara Management Committee for the proper management and control of the Gurdwaras and Gurdwara property. The Committee shall be a body corporate with the name aforesaid having perpetual succession and a common seal and shall by such name sue and be sued. Section 4 provides for composition of the Committee. Sub-section (a) of this Section provides that forty six members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be framed under Clause (r) of Sub-Section (2) of Section 39 of the Act. (iii) The agenda papers for the Annual General Meetings shall be circulated by the General Secretary with approval of the Executive Board at least 8 days before the date of meetings. 5. The issue involved in the present case is regarding the election, which was held for electing the members of the Executive Board for the year 2005-06. In the preceding year 2004-05, Shri Paramjit Singh Sarna was elected as President and Shri Ravinder Singh Khurana was elected as Secretary. According to Shri Paramjit Singh Sarna the election was held on 19.12.2005 in which the new office bearers of the Executive Board for the year 2005-06 were elected. There is no dispute that at the relevant time the Committee which had to elect the members of the Executive Board had 50 members and had the right to elect the members of the Executive Board from amongst themselves. 6. After constitution of the new Executive Board for the year 2005-06 had been announced as a result of election held on 19.12.2005 the appellant Shri Avtar Singh Hit filed Writ Petition (C) No. 370 of 2006 in the Delhi High Court praying that the alleged min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the writ petition it is stated that in a meeting, which had been called by Paramjit Singh Sarna, respondent No.2, on 15.12.2005, the members passed a resolution that the election shall be held as scheduled on 19.12.2005. This was followed by a communication sent by respondent No. 3 on 16.12.2005 to all the members that as intimated earlier vide letter dated 28.11.2005 the meeting shall take place on 19.12.2005. Respondent No. 2 then sent a letter to the members that the meeting for electing the members of the Executive Board shall be held on 18.1.2006. In para 28 of the writ petition it is stated that though respondent No. 3 was taking up a stand that the order passed by him and communicated vide letter dated 28.11.2005 that the meeting shall be convened on 19.12.2005 was justified but respondent No. 2 had taken a stand that the meeting shall be held on 18.1.2006. In para 29 of the writ petition it is averred that the President in connivance with the General Secretary kept the members of the Committee in a confused state of affairs and the position was not clear till 16.12.2005. In para 32 of the writ petition it is alleged that on account of aforesaid confusion the writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the office of President, did not want to hold the election so that he could continue in office. In para 7 of the counter affidavit it is stated that a meeting of the Executive Board was held on 15.12.2005 wherein a decision was taken to hold the elections on 19.12.2005 and accordingly a communication was sent to all the members of the Committee. However, respondent No. 2 held another meeting wherein only 8 members were present and a resolution was passed that the Secretary had no authority to circulate the letter dated 28.11.2005 and it was further resolved that the meeting shall be held on 7.1.2006. In para 9 of the counter affidavit it is averred that respondent No. 2 issued another communication to the members of the Committee on 16.12.2005 stating that the meeting for electing the office bears of the Executive Board would be held on 18.1.2006. Respondent No. 2 also passed an order whereby he declared 19.12.2005 to be a holiday. Lastly, it is averred that the respondent No. 2 had never agreed for holding of elections on 19.12.2005 and had in fact fixed 18.1.2006 for the said purpose and thus holding of the election on 19.12.2005 by respondent No. 2 was arbitrary and mala fide ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was utter confusion regarding the date of the meeting in which the new office bearers of the Executive Board had to be elected. Initially Shri Ravinder Singh Khurana, Secretary, sent a communication dated 28.11.2005 stating that the meeting shall be convened on 19.12.2005 but the President Shri Paramjit Singh Sarna sent a letter on 8.12.2005 disputing the authority of the Secretary to convene a meeting. He reiterated on 12.12.2005 that no meeting shall be held on 19.12.2005 and thereafter convened a meeting of all members on 15.12.2005 to discuss the issue and fix a date for holding of the election. The President subsequently fixed 7.1.2006 and then 18.1.2006 for the purpose of holding the meeting. The Secretary, later on took a different stand and sent telegrams to all the members of the Committee on 18.12.2005 cancelling the date earlier fixed by him and confirming the date fixed by the President, i.e., 18.1.2006. It has thus been submitted that the contradictory stand taken by the President and the Secretary and the confusion created thereby, the election held on 19.12.2005 was a farce and the learned single Judge had rightly countermanded the same. 14. Learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and conclusive. (2) The provisions of section 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply to appeals under this section. Sections 15 to 20 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as 'the DMC Act') provide for resolution of disputes regarding elections by filing an election petition. Sections 15 and 16 of the DMC Act read as under: - 15. Election petitions.-- (1) No election of a councilor shall be called in question except by an election petition presented to the court of the district judge of Delhi within fifteen days from the date of the publication of the result of the election under section 14. (2) An election petition calling in question any such election may be presented under any of the grounds specified in section 17 by any candidate at such election, by any elector of the ward concerned or by any councilor. (3) A petitioner shall join as respondents to his petition all the candidates at the election. (4) An election petition-- (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall, with sufficient particulars, set forth the ground or ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority and in such manner as may be provided for by or under any law made by the appropriate Legislature. In appeal this Court examined the question whether the writ petition would be maintainable at the initial state against an order rejecting the nomination paper. Certain observations made in para 9 of the reports are relevant and they are being reproduced below: - The law of elections in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court.............................. In para 12 it was observed: - Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Art. 226 of the Constitution by- passing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify by-passing the alternative remedies. There are several other decisions where the same view has been taken. S.T. Muthusami vs. K. Natarajan AIR 1988 SC 616 is a case relating to election to the office of Chairman of a panchayat union under the Tamil Nadu Panchayats Act, 1958 where it was held that the parties who are aggrieved by the result of the election can question the validity of an election by an election petition which is an eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meeting of the Committee for electing the office bearers of the Executive Board. The dispute could more appropriately be resolved by examination of oral evidence to be led by the parties. The writ petitioner Avtar Singh Hit claimed that on account of the confusion in dates he could not attend the meeting though he was very keen to participate in the meeting and contest for the office of the President of the Executive Board. In view of the nature of the dispute raised the proper remedy for the petitioner was to file an election petition as provided in Section 31 of the Act where parties could have got opportunity to lead oral evidence. No exceptional or extraordinary circumstances were disclosed which could justify recourse to the extraordinary remedy under Article 226 of the Constitution and for not availing the remedy provided by the statute. We are, therefore, of the opinion that on the facts and circumstances of the present case, the writ petitions ought not to have been entertained for resolving the dispute relating to election and on this count alone the writ petitions were liable to be dismissed. 19. The respondents in their counter affidavits, which were filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enging selection and appointment to some posts without impleading the selected candidates was not maintainable. This view has been reiterated in Arun Tewari Ors. v. Zila Mansavi Shikshak Sangh Ors. AIR 1998 SC 331. 21. This being the settled legal position the non-impleadment of the newly elected office bearers of the Executive Board was fatal and no relief could have been granted to the writ petitioners. The result of granting any relief in the writ petitions, as was done by the learned single Judge, was that the members of the newly elected Executive Board lost the office which they were holding without affording them an opportunity to present their case which is clearly impermissible in law. The writ petitions were liable to be dismissed on this count as well. 22. Mr. Soli J. Sorabjee, learned senior counsel for the appellant has submitted that absence of notice to even one member may vitiate the proceedings of the meeting which was convened on 19.12.2005 and in the present case some members were not served with the statutory notice. It is not necessary for us to examine this question as we have held above that the writ petitions filed by the appellants herein were not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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