HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on: 11.09.2015 Delivered on: 18.09.2015 Court No. - 10 Case :- MISC. SINGLE No. - 5336 of 2015 Petitioner :- Shiv Saran Upadhyaya Advocate And Another Respondent :- Bar Council Of U.P. Thru Its Secy. And Others Counsel for Petitioner :- Anu Pratap Singh Counsel for Respondent :- C.S.C.,Savitra Vardhan Singh Hon'ble Rajan Roy,J.
This is a writ petition under Article 226 of the Constitution of India filed by two Advocates claiming themselves to be the members of the Central Bar Association, Lucknow which is a Bar Association of the District and Sessions Court, Lucknow seeking the following reliefs:-
i) "Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to conduct repoll of Central Bar Association Election conducted on 02.09.2015.
i)(a) Issue a writ, order or direction in the nature of certiorari quashing the election proceedings of Central Bar Association, Lucknow by the Elders Committee on 02.09.2015 after summoning the original records from respondents. ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to conduct re-poll through Electronic Voting Machine, after conducting proper enquiry. iii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to permit any stranger or non-member of Central Bar Association to participate in any manner in the re-poll. iv) Issue any other order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. v) Allow the writ petition with costs."
The facts of the case in brief are that election to the aforesaid Bar Association, which is a society registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as 'the Act, 1860') were held on 02.09.2015. It appears that the petitioners sat on 'Dharna' being dissatisfied with the manner in which the voting was conducted. Ultimately the counting of the votes took place on 07.09.2015 and the result was declared on the same day. The petitioner no.1 was the candidate for the post of the President and petitioner No.2 was the candidate for General Secretary. The petitioner no.1 lost the election allegedly by a margin of 2 votes whereas petitioner no.2 lost the election by margin of 1 vote. The election was held under the supervision of Elders Committee constituted under the Model Bye-laws framed by the Bar Council of State of U.P. Which is said to have been adopted by the Central Bar Association, Lucknow.
The contention of Sri Anu Pratap Singh learned counsel appearing for the petitioner was as under:-
i) The Elders Committee had not been constituted in accordance with Model Bye-laws framed by Bar Council of U.P. And it did not comprise of the senior members of the Bar. In this regard he invited the attention of this Court to an order dated 23.01.2013 passed in Writ Petition No. 144 (MS) of 2013 relating to the earlier election held in the year 2013 when elections were ordered to be conducted under the supervision of Elders Committee constituted by the High Court. According to him the said Elders Committee had not resigned, therefore, there was no occasion for constitution of a new Elders Committee. He also invited the attention of this Court to another judgment and order dated 21.08.2015 passed by this Court in Writ Petition No. 4474 (MS) of 2015 wherein constitution of the Elders Committee under whose supervision the election in question have been held was itself challenged and this Court gave liberty to the petitioners of the said writ petition to approach the Bar council in this regard which shall look into the matter, hear the rival parties and shall take a decision as regards the validity of the resolution passed by the Central Bar Association regarding constitution of Elders Committee. The decision so taken shall be communicated by the Bar Council to the members of the Bar Association. The submission, therefore, is that the very constitution of Elders Committee was against the Model Bye-laws and the election held by it was ipso-facto invalid.
iii) In the election in question about 200 Election Officers were appointed out of which many of them were strangers and many of them were not even member of the Bar Association. The counting of ballot papers was to be done on 03.09.2015 as per election programme but the same was postponed without any justification and it was ultimately held on 07.09.2015, which clearly goes to show that the process of election was neither free nor fair and the result had been manipulated. The applications were submitted to the learned District Judge, District Authorities, Hon'ble the Chief Justice of this Court and on that very date in the evening at 4.00 p.m. the petitioners sat at 'Dharna' in the Civil Court for redressal of their grievance.
iv) As per result declared after counting of the votes 3533 votes were counted for the post of President and General Secretary whereas for the post of Senior Executives, Junior Executives and for the post of Vice President Middle 3528, 3518 and 3534 votes were counted respectively which according to them was evidence of the fact that number of votes counted varied from post to post.
v) He invited the attention of the Court to other irregularities which have been mentioned in paragraph 17 of the writ petition. According to them earlier Sri Mrigendra Pandey was declared to be elected as the President by a margin of 2 votes but subsequently the margin of victory was declared as one vote.
vi) Learned counsel for petitioner further invited the attention of the Court to the averments made in paragraph 19 of the writ petition regarding video recording of the Chairman of the Elders Committee in which he is said to have admitted to having committed irregularities and is also said to have admitted the signing of 4300 ballots. The counsel offered to produce the C.D. as evidence.
vii) Referring to the averments made in paragraph 20 of the writ petition it was submitted that only 2200 votes polled were valid votes and the remaining were fake votes.
viii) Relying upon the averments made in paragraph 21 of the writ petition, it was submitted that ballot papers were without serial number.
(ix) He contended that the police authorities were also present during the polling and CCTV footage was also available, which could be summoned and report also could be summoned from the police authorities which could demonstrate the irregularities committed in the election.
x) Learned counsel for petitioner also referred to the order dated 08.05.2015 passed in PIL No. 15895 of 2015 to submit that Bar Association is a Court annexed Association which is different from an ordinary society. The purity of the electoral process in the conduct of elections to the Bar Associations has a vital element of public interest since it is liable to affect the stability of the institution and the administration of justice. He referred to the direction issued by a seven Judges Bench of this Court in the said case to facilitate the holding of free and fair elections. Based on the aforesaid, the learned counsel submitted that impugned election is liable to be quashed and repolling is liable to be ordered.
Sri Anu Pratap Singh learned counsel for petitioner relied upon the following decisions in support of his contention as also in support of the query made by the Court as regard the maintainability of the writ petition challenging the election of the Bar Association, which is a society registered under the provisions of the Act, 1860:-
(a) Union of India and others vs. Tantia Construction Private Ltd. Reported in (2011) 5 SCC 697.
(b) K. Venkatachalam vs. A. Swamickan reported in (1999) 4 SCC 526.
(c) Gujrat University vs. N.U. Rajguru and others reported in 1987 (supp) SCC 512.
(d) Mohinder Singh Gill and another vs. The Chief Election Commissioner New Delhi and others reported in (1978) 1 SCC 405.
He also placed reliance upon the Division Bench judgment rendered in Civil Misc. Writ petition No. 61100 of 2011.
On the other hand Sri Savitra Vardhan Singh learned counsel appearing for Bar Council of U.P. Submitted that against the judgment and order dated 21.08.2015 passed in Writ Petition No. 4744 of 2015 special appeal has been preferred by a member of the Bar Association wherein the Division Bench of this Court declined to interfere with the election process. He also informed that the judgment and order of this Court dated 21.08.2015 had been served upon the Bar council only on 05.09.2015 and a decision in pursuance thereof was awaited. He further contended that the Bar Council of U.P. had no role to play in election matters of Bar Association, as has been held by a Division Bench of this Court vide its judgment and order dated 26.04.2013 passed in Civil Misc. Writ Petition No. 61100 of 2018, a copy of which has been annexed by the petitioners themselves as Annexure No.3 to the writ petition. He further submitted that no relief had been claimed against the Bar Council of U.P. in the writ petition.
Heard learned counsel for parties and perused the record.
This Court vide order dated 10.09.2015 directed the petitioner to address this Court on the preliminary question of maintainability of the writ petition.
In this regard before considering the facts of the case it is necessary to refer to certain pronouncements of the Supreme Court and of this Court on the question of maintainability of a writ petition under Article 226 of the Constitution while challenging an election.
In the case of Ravi Karan Jain and others vs. Bar Council of U.P. And others reported in AIR 1975 (Alld) 190, this Court considered the question of maintainability of a writ petition under Article 226 of the Constitution, challenging the election to the Bar Council and in paragraph 18 their Lordships held as under:-
"18. ............The Act and the Rules therefore require that any dispute relating to election should be decided in the manner prescribed by the rules. A statutory Tribunal has been created by the Act and the Rules conferring special jurisdiction on that Tribunal to decide election disputes. The law has created a special forum for the redress of any grievance arising out of the election; the aggrieved party, therefore, must follow that remedy before that forum. It is well established principle that if a statutory remedy is available under the Act and the Rules normally this Court does not interfere with election disputes under Article 226 of the Constitution and the aggrieved party should pursue his remedy before the statutory tribunal............"
In the case of K.K. Shrivastava and another vs. Bhupendra Kumar Jain and others reported in (1997) 2 SCC 494 the Supreme Court had an occasion to consider the same objection with regard to the elections of Bar council of Madhya Pradesh and in paragraphs 4 and 5, their Lordships held as under:-
" It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitation which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particulary so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a writ petition will lie, is a fallacious argument. ......................There is no foundation whatever for thinking that where the challenge is to an "entire election" then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis exercise. It is unfortunate that an election petition which probably might have been disposed of long ago is still pending because the writ petition was pending in the High Court and later on special leave having been granted these appeals have been pending in this Court. How injurious sometimes the repercussions of entertaining writ petitions are where they should not be is illustrated by this very case.
5. In this view we hold that the High Court fell into an error in entertaining the petitions and so we allow these appeals. ..............."
In the case of Bar Council of Delhi and others vs. Surjeet Singh and others reported in (1980) 4 SCC 211 wherein after considering the earlier decisions of the Supreme Court in the case of K.K. Shrivastava (supra) their Lordships in paragraph 18 held as under:-
"18. ..................We may add that the view expressed by some of the High Courts in the cases referred to above that merely because the whole election has been challenged by a writ petition, the petition would be maintainable in spite of there being an alternative remedy being available,, so widely put, may not be quite correct and especially after the recent amendment of Article 226 of the Constitution. If the alternative remedy fully covers the challenge to the election then that remedy and that remedy alone must be resorted to even though it involves the challenge of the election of all the successful candidates. ..........................................................."
In the case of Gujarat University vs. N.U. Rajguru and others reported in 1987 (Supp) SCC 512 the Supreme Court had an occasion to consider the issue in the context of election of teachers to the Court of the University and in paragraph 6 their Lordships held as under:-
"6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for 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 a 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 Article 226 of the Constitution bypassing 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 bypassing the alternative remedies. In the instant case, there existed no circumstances justifying departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the respondents before the High Court."
In the case of P. Manjula vs. State of Andhra Pradesh and others reported in (2007) 15 SCC 766 the same issue was considered in the context of election to the post of President of Mandal Parishad and their Lordship in paragraph 8 held as under:-
"8. Apart from the delay in approaching the High Court it is settled law that election dispute could not have been raised in a petition under Article 226 of the Constitution. This Court in Boddula Krishnaiah v. State Election Commr., A.P. held that in case of an election dispute, remedy is available at law for its redressal. Therefore, the High Court was not correct in law in giving directions not to declare the result of election or to conduct fresh poll."
Reference may also be made to the Division Bench Judgment dated 26.04.2013 rendered in Writ Petition No. 61100 of 2011 (Elder Committee Central Bar Association, Azamgarh vs. State of U.P. And others), which has been relied by the petitioners themselves, wherein this Court has held as under:-
"22. In this writ petition we are concerned with the question, as to whether the Bar Council of Uttar Pradesh as statutory body elected and constituted under the Advocates Act has any supervisory role to play and can issue any direction to the Bar Associations in the matters of its elections of its office bearers. It is submitted by learned counsel appearing for the petitioner that after preparing and recommending adoption of the Model-Bye Laws by the respective Bar Associations, which may be one or many in a particular district in subordinate courts including the service Tribunals, Taxation offices and Tribunals, Revenue Courts, District Consumer Forums, Labour Courts and others, the conduct of elections do not fall within the domain of the powers and authority of the Bar Councils of the State. The Bar Associations are Societies registered under the Societies Registration Act and that in case of any irregularity in election, the procedure for redressal of grievances of individual members or the office bearers is with the Prescribed Authority under Section 25 of the Societies Registration Act as amended in the State of UP or by filing a civil suit. In exceptional cases the High Court may interfere in the elections, if some non-professionals or total strangers are trying to usurp the office and/are creating a situation which obstructs the administration of justice. The Bar Council does not have any role otherwise, in the elections of the Bar Association".
"25.We do not find any provision in the Advocates Act, including Section 6, Section 17 (1), (3), (a), (b), and (c); Section 16 of the The Advocates Welfare Fund Act, 2001, or even in the Bar Council of U.P. Election Rules, 1992 made under Section 15 (2) of the Advocates Act, 1961 to supervise, monitor, regulate, or to intervene in the elections of any particular affiliated or non-affiliated Bar Associations on the ground that the Bye-Laws or the Model-Bye Laws framed by the Bar Council of Uttar Pradesh have been violated by any Bar Association. The Model-Bye Laws prepared by the Bar Council of U.P. have received approval of the High Court in Shiv Kumar Akela's case. The adoption of Model-Bye Laws by all Bar Associations is to avoid the entry of non-practicing and non-resident Advocates in the Bar Association and having prescribed a procedure in which the elections should be held regularly and in case the term of the office bearers expires, the Elders Committee to take over and run the Bar Association upto the time and for holding the elections, the Bar Council of Uttar Pradesh does not have any power or authority under any Statute, Rules, Regulations, Bye-laws, or any authority given by Court or judicial pronouncement to supervise and interfere in the elections of its office bearers or executive Committee. The Bar Council of Uttar Pradesh is a statutory body. It can exercise only those powers, which are vested in it by the Advocates Act or any other Acts and the Rules and Regulations framed thereunder. There is absolutely no power whatsoever, in the Bar Council of Uttar Pradesh or any of its office bearers or Secretary to direct any Bar Association to hold or not to hold elections or for that matter the appointment of Elders Committee; for fixing or finalizing the electoral list; fixing the dates of elections or in issuing directions for holding elections. The Bar Council of Uttar Pradesh or its members and officers do not have any authority whatsoever to issue directions to any Bar Association either directly or to be communicated through the District Magistrate or District Judge to act in any manner in the conduct of elections of its office bearers or executive Committees. The Bar Council of Uttar Pradesh cannot make inroads into and curtail the rights of the Advocates to form an association which includes their rights to elect the members to its executive Committees. The Bar Council of Uttar Pradesh being a statutory body to regulate the enrollment, discipline and conduct of its members, to ensure the welfare of its members and for implementation of various welfare schemes, do not get any authority to supervise the elections and affairs of the Bar Associations, which are independent societies registered under the Societies Registration Act."
"26. The members of the Bar Associations registered as societies under the Societies Registration Act have statutory remedies available to them before the Registrar of Societies, Prescribed Authority and finally in the civil court for redressal of their grievances."
"29. We may observe here that the Bar Council has powers under Section 21 of the Advocates Act to decide the question of seniority amongst the Advocates, who are enrolled with the Bar Council. If any representation is made on any dispute on the issue to determine the seniority, it is open to the Bar Council to decide it in accordance with the law. The Bar Council, however, does not have any authority on such a complaint to interfere in the elections of Bar Association and to stop the Elders Committee from taking steps for holding the elections."
"31. The writ petition is allowed. It is declared that Bar Council of Uttar Pradesh has no power or authority to interfere in the elections of the Bar Associations in any manner whatsoever. .........."
In the said decision, the Division Bench has also referred and relied upon the earlier decision in the case of Shiv Kumar Akela Advocate and others vs. Registrar, Societies, Firms and Chits and others reported in 2007 (2) AWC 2011.
From the conspectus of judicial pronouncements referred hereinabove, it is evident that a writ petition under Article 226 of the Constitution is not the appropriate remedy for challenging an election, though in exceptional and extra ordinary circumstances, the High Court may entertain such writ petitions. The question to be considered, herein, is as to whether in the facts of the present present case, the instant writ petition filed under Article 226 of the Constitution should be entertained and is maintainable or not.
From the pleadings in the writ petition specially from paragraphs 12 to 21 as also from the arguments advanced by the learned counsel for petitioners it is evident that the ground of challenge raised by the petitioners for assailing the writ petition are purely factual one, for which it is necessary that evidence be adduced by the rival parties to establish their claim.
The summary proceedings in writ jurisdiction are not appropriate proceedings for such an adjudication considering the factual nature of the dispute raised by the petitioners. A regular proceedings, where evidence can be adduced by the parties; the same can be assessed depending upon their admissibility, reliability and sufficiency and findings of fact can be recorded based thereon, are more appropriate for adjudication of such disputes. Considering the nature of the allegations oral evidence will also be required to be led involving examination of witnesses and cross-examination thereof. In paragraph 19 of the writ petition, the petitioners have referred to some video recording of the Chairman of Elders Committee. The veracity of such recording, the admission, if any, contained therein and the explanation which may be offered for the same, will have to be scrutinized and examined in detail which will require leading of oral evidence i.e. examination of witnesses and cross-examination, forensic examination of C.D. which is alleged to have been prepared by the petitioners, or some other persons, keeping in mind the law on the said subject.
In paragraph 13 of the writ petition bald, vague averments have been made that about 200 Election Officers were appointed out of which many of them were strangers and many of them were not members, without giving any specific detail in respect of this allegation. Such allegations cannot form the basis for any adjudication under Article 226 of the Constitution.
In paragraph 20 of the writ petition, it has been alleged that only 2200 votes were cast and remaining votes were fake. The writ petition does not disclose the total number of votes cast in the election in question. It is not possible in summary proceedings to decide whether the alleged remaining votes were fake or not. Similarly other allegations are also required to be proved by adducing evidence with equal opportunity to the rival parties to lead evidence in rebuttal and defend themselves. These factual issues are not such as could be decided by this Court under Article 226 of the Constitution merely on exchange of affidavits.
The petition at hand is not a public interest litigation. It is not as if members of the Bar in general have approached this Court alleging large scale malpractice in the election or participation of outsiders therein. The dispute herein is being raised by two persons who claim to be aggrieved persons. These persons have to establish their case based on evidence. It is not a case involving apparent violation of fundamental or statutory/legal right. It is an election dispute per-se relating to a society consisting of members of the Bar, raised by two persons alleged to be aggrieved.
No doubt the Bar Association is a Court annexed association and therefore, it does not stand on the same footing as any other society. In a given situation, this Court will not be found wanting in interfering even in respect to an election dispute relating to such Bar Association if exceptional and extra ordinary circumstances exist. Unfortunately in the present case the petitioners have not been able to make out an exceptional and extra-ordinary case warranting interference by this Court moreso in view of factual dispute involved.
As far as constitution of Elders Committee is concerned, the petitioner never approached this Court raising such grievance. They participated in the election held by the said Committee without any demurr. However, certain other members approached this Court by means of Writ Petition No. 4744 (MS) of 2015 wherein this Court has already given them liberty to approach the State Bar Council which shall look into the matter and take a decision. Consequences shall follow as per law. Moreover as per the Division Bench decision relied upon by the petitioners themselves which has been passed in Civil Misc. Writ Petition No. 61100 of 2011 it has been held that the Bar Council does not have any authority to interfere in the elections of Bar Association and to stop the Elders Committee for taking steps for holding the elections. In these circumstances this contention by itself cannot form a ground for interference by this Court once the elections have already been held.
The Central Bar Association indisputably is a society registered under the provisions of the Act, 1860 which provides a mechanism and forum for resolution of disputes pertaining to elections to the Committee of Management of the society and the continuance of its office bearers. Section 25 of the said Act as amended by State of U.P. reads as under:-
"25(1) The prescribed authority may, on a reference made to it by the Registrar or by a least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect thereof as it deems fit:
[Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied---
(a) that any corrupt practice has been committed by such office-bearer; or
(b) that the nomination of an candidate has been improperly rejected; or
(c) that the result of the election in so far it concerns such office bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society.
Explanation I. - A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-
(i) induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving a vote in favour of any candidate or any person to stand or not to stand as, or the withdraw or not to withdraw from being a candidate at the election;
(ii) with a view to inducing any elector to give or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;
(iii) abets (within the meaning of the Indian Penal Code) the doing of any of the acts specified in Clauses (i) and (ii);
(iv) induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;
(v) Canvasses on grounds of cast, community, sect or religion;
(vi) commits such other practice as the State Government may prescribe to be a corrupt practice;
Explanation II.-A "promise of individual advantage or profit to a persons includes a promise for the benefit of the person himself, or of any one in which he is interested.
Explanation III.- The State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.] Thus a statutory remedy has been provided under the Act, 1860 which can very well be availed by the petitioners for resdressal of their grievance.
Though it was not argued by the counsel for petitioners, nevertheless, it could be said that the remedy available under Section 25 of the Act, 1860 is hedged with conditions i.e. the same can be availed only if a reference is made to the Prescribed Authority by the Registrar or by atleast one-fourth of the members of the society registered in U.P. It could also be said that proceedings before the Prescribed Authority under Section 25 are summary in nature, therefore, they would not be suited for resolution of present dispute. As far as the reasoning no.1 is concerned, the petitioners can very well approach the Registrar/ Deputy Registrar for a reference under Section 25 of the Act, 1860 whereupon the Deputy Registrar can always consider as to whether there is a genuine dispute relating to election of the Committee of Management/Governing body or as regards the continuance of any office bearer elected therein warranting a reference by him to the Prescribed Authority under Section 25(1) of the Act, 1860, if so, he can refer the same to the Prescribed Authority under Section 25(1) of the Act, 1860. Further, the petitioners can also maintain a reference, if they are able to muster at least one-fourth of the members of the society. This is a possible option as the petitioners having contested may have secured more than one-fourth votes of the total members of the General-body of the society. As far as the second reasoning that the proceedings under Section 25(1) are summary proceedings the Court is of the view that if this is a hindrance in the petitioners' approaching the Prescribed Authority then based on the same reasoning the summary proceedings under Article 226 of the Constitution are also not suited for such adjudication, as already noted hereabove.
Assuming for a moment that the remedy available under Section 25(1) of the Act, 1860 is not an efficacious remedy for some reason, the petitioners can very well resort to regular proceedings before the Civil Court which is most suited for resolution of such dispute. Reference may be made in this regard to para 26 of the Division Bench Judgment rendered in Civil Misc. Writ Petition No. 61100 of 2011 wherein also the Court observed that the election can be challenged either under Section 25 of the Act 1860 or in the Civil Court for redressal of their grievance.
There are catena of decisions on this issue as regards the availability of remedy before the Civil Court for challenging such elections where disputed questions of fact are involved where summary proceedings under Section 25 of the Act, 1860 is not an efficacious remedy. This judgment need not be burdened with reference to such pronouncements. Moreso, as, there is a direct decision of the Supreme Court in the case of Nagri Pracharini Sabha and another vs. Vth Additional District and Sessions Judge, Varanasi and others reported in 1991 Supp (2) SCC 36 on this issue, wherein some of the respondents and others before the Supreme Court instituted a suit in a Civil Court challenging the election of Managing Committee and other office bearers of a society registered under the Societies Registration Act and asked for rendition of accounts. A preliminary objection as to the maintainability of the civil suit grounded on Sections 23 and 25 of the Act was raised. The courts below held that suit was not barred. Dismissing the appeal, the Supreme Court has held as under:-
"2. A litigant having a grievance of a civil nature has, independently of an statute, a right to institute a suit in the civil court unless its cognizance is either expressly or impliedly barred. The position is well settled that exclusion of jurisdiction of the civil court is not to be readily inferred and such exclusion must be either express or implied."
"3. ...................... ............ ....................
4. what is really in dispute is the application of the rule to the facts of the case. To ascertain whether the suit would be barred, the effect of the provisions of Sections 23 and 25 of the Registration Act with the U.P. Amendments has to be considered."
................ ................. ....................
We are of the view that provisions of Section 23 are confined to audit and have nothing to do with the relief of rendition of accounts. No more is necessary to be said about that relief. Section 25 deals with disputes regarding challenge to the election of office bearers. The maintainability of dispute within the purview of that section is hedged with conditions and unless such requirement is fulfilled, a statutory dispute would not be maintainable. The present action in the civil court is by some of the members who perhaps would not satisfy the requirements laid down in Section 25. It cannot be contended that Section 25 having provided the pre-conditions on the satisfaction of which a dispute within the purview of that section would be maintainable before the Registrar takes away the right of members of the society to claim relief otherwise outside the purview of Section 25 on the basis of their right to seek remedy for their grievance. It is not the contention of Mr. Mukhoty that the relief claimed is not one which would come within the ambit of Section 9 of the Code of Civil Procedure. That being so, we are of the view that the bar of Section 25 is not applicable to the facts of the case. Therefore, the conclusion reached in the courts below is correct and the suit is maintainable."
The aforesaid decision virtually clinches the issue and leaves no room for doubt that the petitioners herein, have a statutory remedy for challenging the election in question as prescribed under Section 25(1) of the Act 1860 and also before the Civil Court by means of regular civil proceedings to be initiated by filing a Regular Civil Suit. Even this Court is of the view that it is the latter remedy which is more appropriate in the facts and circumstances of the case but it is for the petitioners, who are the Dominus litis to choose the forum to seek redressal of their grievance.
The petitioners have inter-alia prayed for issuance of a writ in the nature of certiorari for quashing the election proceedings of Central Bar Association, Lucknow conducted by the Elders Committee on 02.09.2015. A writ of certiorari is issued for correcting apparent error of judicial or quasi judicial bodies or Tribunal or even any other person or authority exercising functions involving decision of a lis or determination of rights of the parties. Reference may be made in this regard to the decision of Supreme Court in the case of Dwarikanath vs. Income-tax Officer reported in AIR 1966 SC 81, T.C. Bassa vs. T. Nagappa reported in AIR 1954 SC 440 and Udit Narain Singh vs. Additional members, Board of Revenue reported in AIR 1963 SC 786. The society registered under the Societies Registration Act 1860 is not a statutory body. It is is a private body which is registered in accordance with an own Act 1860. Election proceedings of such a society are neither judicial nor quasi judicial proceedings. They do not involve the exercise of judicial or quasi judicial power by any authority nor decision of any lis between the parties or adjudication of their rights per-se. It is doubtful if writ of certiorari or a writ in the nature of certiorari could be issued under Article 226 of the Constitution for quashing the election proceedings of a society, even if, it is a Court annexed body. The appropriate relief/remedy in such a case is to seek a declaration in respect to the election proceedings. Even assuming such a writ could be issued, considering the nature of the dispute involved, this writ petition is not maintainable.
In view of above discussions, this Court does not find any valid ground nor any extra-ordinary circumstances to entertain this writ petition in exercise of its extra-ordinary discretionary power under Article 226 of the Constitution of India. The writ petition in the facts of the present case is not maintainable and the same is accordingly dismissed only for this reason, leaving it open for the petitioners to avail such remedy as they may choose in the light of what has been stated hereinabove. It is made clear that this Court has not adjudicated the merits of the controversy and the dismissal of this writ petition shall not prejudice the petitioners herein, in any manner whatsoever, while availing the remedy as aforesaid.
Order Date :-18 .9.2015 Vijay