S.D. Siddhiqui vs University Of Delhi And Ors.
2005 Latest Caselaw 1401 Del

JUDGMENT

Vikramajit Sen, J.

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1. The Petitioner is one of the three unsuccessful candidates for the post of President to the Delhi University Teachers' Association (DUTA) in the Elections held on 31.8.2005. He has prayed for the issuance of a writ of certiorari calling for the records of the DUTA Elections and for the quashing of the election result in respect of the post of President.

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CAN A WRIT ISSUE AGAINST DUTA

2. At the first hearing of the petition Mr. Y.P. Narula, learned Senior counsel appearing on behalf of Respondent No. 4, had raised a preliminary objection as to the maintainability of the writ petition against the DUTA. A quarter century ago the law on this subject was laid down in Ramana Dayaram Shetty v. International Airport Authority, 1979 SC 1628. It was further explained in Ajay Hasia v. Khalid Mujib, in these words:

9. The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority's case . These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression ''other authorities'', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the government with the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority's case as follows:

(1) ''One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government''.

(2) ''Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.''

(3) ''It may also be a relevant factor... whether the corporation enjoys monopoly status which is the State conferred or State protected''.

(4) ''Existence of ''deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality''.

(5) ''If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. ''

(6) ''Specifically, if a department of Govt. is transferred to a corporation, it would be a strong factor supportive of this inference'' of the corporation being an instrumentality or agency of Government''.

If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority's case, be an 'authority' and, therefore, 'State' within the meaning of the expression in Article 12.

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3. A Restatement of the law is readily available in the decision in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Ors., . It would be most fruitful to reproduce the observations of the Hon'ble Supreme Court in extensio, since an answer to the gravamen of the contention can be found therein:

''The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction there under though by various decisions of this Court with varying and divergent views it has been held that jurisdiction under Article 226 can be exercised only when body or authority, decision of which is complained, was exercising its poper in the discharge of public duty and that writ is a public law remedy. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union, it as submitted before the Constitution Bench that an award under Section 10A of the Industrial Disputes Act, 1947 savours of a private arbitration and was not amenable to correction under Article 226 of the Constitution. The Court said as under (at p. 429 of AIR):

''The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person - even a private individual - and be available for any (other) purpose - even one for which another remedy may exist. The amendment to Article 226 in 1963 inserting Article 226(1-A) riterates the targets of the writ power as inclusive of any person by the expressive reference to ''the residence of such person''. But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdictor mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights. We hold that the award here is not beyond the legal reach of Article 226, although this power must be kept in severely judicious leash.

Many rulings of the High Courts, pro and con, were cited before us to show that an award under Section 10A of the Act is insulated from interference under Article 226 but we respectfully agree with the observations of Gajendragadkar, J. (as the then was) in Engineering Mazdoor Sabha, which nail the argument against the existence of jurisdiction. The learned Judge clarified at p.640 (of SCR): (at Pp.881-82 of AIR) `Article 226 under which writ of certiorari can be used in an appropriate case, is, in a sense, wider than Article 136, because the power conferred on the High Courts to issue certain Page 1520 writs is not conditioned or limited by the requirement that the said writs can be issued only against the order of Courts or Tribunals. Under Article 226, an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. Therefore, even if the arbitrator appointed under Section 10A is not a tribunal under Article 136 in a proper case, a writ may lie against his award under Article 226''

In Life Insurance Corporation of India v. Escorts Ltd. another Constitution Bench had to say as under (at Pp.1423 and 1424 of AIR):

''It was, however, urged by the learned counsel for the company that the Life Insurance Corporation was an instrumentality of the State and was, therefore, debarred by Article 14 from acting arbitrarily. It was, therefore, under an obligation to state to the Court its reasons for the resolution once a rule nisi was issued to it. If it failed to disclose its reasons to the Court, the Court would presume that it had no valid reasons to give and its action was, therefore, arbitrary. The learned counsel relied on the decisions of this Court in Sukhdev Sing, : Maneka Gandhi ; International Airport Authority and Ajay Hasia . The learned Attorney General, on the other hand, contended that actions of the State or an instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review. He relied on O' Reilly v. Mackman, (1982 (3) All ER 1124); Davy v. Spelthone (1983 (3) AllER 278); I Congress del Parido, (1981)(2) All ER 1064; R. v. East. Berkshire Health Authority (1984(3)All ER 425) and Radhakrishna Aggarwal v. State of Bihar . While we do find considerable force in the contention of the learned Attorney General it may not be necessary for us to enter into any lengthy discussion of the topic, as we hall presently see. We also desire to warn ourselves against readily referring to English cases on questions of Constitutional Law, Administrative Law and Public Law as the law in India in these branches has forged ahead of the law in England, guided as we are by our Constitution and uninhibited as we are by the technical rules which have hampered the development of the English Law. In Shri Anandi Mukta S.M.V.S.S.J.M.S. Trust v. V.R. Rudani a two Judge Bench of this Court was considering the question of ''issue of a writ of mandamus or writ in the nature of mandamus or any other appropriate writ or direction or order directing the appellant-Trust and its Trustees to pay to the respondents their due salary and allowances etc. in accordance with the Rules framed by the University and to pay the compensation under certain Ordinance of the University''. The High Court before which the issue was raised held in favor of the respondents. This Court noted that the essence of the attack on the maintainability of the writ petition under Article 226 by the appellant was that it being a Trust registered under the Bombay Page 1521 Public Trust Act was managing the college where the respondents were employed was not amenable to writ jurisdiction of the High Court. In other words, the contention was that Trust being a private institution against which no writ of mandamus could be issued. In support of the contention, the appellant referred two decisions of this Court: Executive Committee of Vaish Degree College Shamli v. Lakshmi Narain, (1976) 2 SCC 58: (AIR 1976 SC 888) and Deepak Kumar Biswas v. Director of Public Instructions, . This Court, however, distinguished those two decision and said that the facts before it were different and that there was no plea for specific performance of contractual service by the respondents now in the case before it. Respondents were not seeking a declaration that they be continued in service and they were not asking for mandamus to put them back into the college. But they were claiming only the terminal benefits and arrears of salary payable to them. The question thus was whether the Trust could be compelled to pay by writ of mandamus? The Court noted the observations of Subba Rao, J. in Dwarkanath, HUF v. I.T.O, Special Circle, Kanpur, as under (at Pp.84 and 85 of AIR):

''This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly by used a wide 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 is 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 Court also noted the observations of this Court in Praga Tools Corporation v. Sh. C.A. Imanual as under (at Pp. 1309-1310 of AIR):

''It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. Page 1522 A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statutes under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes author sing their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfillling public responsibility. (Cf. Halsbhury's Laws of England, 3r Edn. Vol. II p. 52 and onwards).

The Court then said :

''The term ''authority'' used in Article 226 in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power in the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental, rights. The words ''any person or authority'' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists mandamus cannot be denied.''

And finally it said as under :

''Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law. Professor, De Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. ''We share this view. The judicial control over the fact expanding maze of bodies affecting the rights of the people should not be pout into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available `to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.''

In Air India Statutory Corporation v. United Labour Union, this Court speaking through a Bench of three-Judges said (at p. 469 of AIR SCW):

''The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writ provided therein but also any order or direction to enforce any of the fundamental rights and ''for any other purpose.'' The distinction between public law and private law remedy by judicial Page 1523 adjudication gradually marginalised ad became obliterated. In LIC V. Escorts Ltd. , this Court in paragraph 102 had pointed out that the difficulty will lie in demarcating the frontier between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares? It was in that fact situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the State's power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately purposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta v. Union of India, .''

A Full Bench of the Andhra Pradesh High Court in Sri Konaseema Co-operative Central Bank Ltd. Amalapuram v. N. Seetharama Raju, AIR 1990 Andh Pra 171, was considering the question whether a writ petition lay against a cooperative society and if it does, in what circumstances. After examining various decisions and treatises on the subject it was stated that even if a society could not be characterised as a `State within the meaning of Article 12 even so a writ would lie against it to enforce a statutory public duty which an employees entitled to enforce against the society. In such a case, it is unnecessary to go into the question whether the society is being treated as a `person', or an `authority', within the meaning of Article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty.

In view of the fact that control of the State Government on the appellant is all pervasive and the employees had statutory protection and, therefore, the appellant being an authority or even instrumentality of the State would be amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a divide. To understand the explicit language of the Article it is not necessary for us to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while Page 1524 empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. Under Clause (1) of Article 367 unless the context otherwise requires, the General Cause Act, 1897, shall subject to any adaptations and modifications that may be made therein under Article 372 apply for the interpretation of the Constitution as it applies for the inter retation of an Act of the Legislature of the Dominion of India. ''Person'' under Section 2(42) of the General Clauses Act shall include any company, or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is a fountain head of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged the High Court will step in to protect him be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guide-lines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guide-lines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial `bull in china shop' in the exercise of its jurisdiction under Article 226.''

DUTA fulfillls a vital public function especially so far as the Delhi University is concerned. The objection that DUTA is not amenable to any writ or direction or Order under Article 226 of the Constitution of India is wholly without merit and is rejected. A writ petition is certainly maintainable against DUTA.

WHEN SHOULD A RECOUNT BE ORDERED

4. There is a distinction between ordering a recount, directing discovery of documents which is essentially a fact finding exercise, and inspection of ballots papers by the Court with a view to satisfy itself of the correctness and legal propriety of the practice adopted by the Election Officer and the validity of his decision on a particular issue. Mr. Narula has drawn attention to the following passage from Bhabhi v. Sheo Govind, :

''Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are Page 1525 imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers:

(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void.''

5. Mr. Narula has also relied on Chandrika Prasad Yadav v. State of Bihar, and M. Chinnasamy v. K.C. Palanisamy, . Both Judgments have been authored by His Lordship, S.B. Sinha for the three Judge Bench presided over by the Hon'ble Chief Justice of India. The question that had arisen was to what extent an Election Tribunal should exercise jurisdiction to direct inspection of ballot papers and recounting of votes polled while determining an election petition in terms of the provisions of the Representation of the People Act, 1951. Although this statute does not apply to the facts of the present case the general principles of law recognised and given expression to therein must be kept in perspective and adhered to wherever disputes arise pertaining to elections to any Body or Authority. The Supreme Court was at pains to highlight the need for Courts to eschew venturing into roving inquiries in the manner in which the elections were conducted and the results were arrived at and declared. It emphasised the absolute need for proper and precise pleadings pertaining to the alleged irregularities committed at any stage of the elections. The Court pronounced that inspection of ballot papers can be ordered if it is found necessary to do so in the interest of justice; however, discovery or inspection of documents should not be granted as a matter of course. The Court emphasised the necessity of the High Court to arrive at a positive finding of the existence of a prima facie case for issuance of a direction for recounting. It went to the extent of enunciating that if on recount it was found that the returned candidate had not secured majority of the votes, the result should not be disturbed unless prima facie case of high degree of probability existed for re-count of votes. Reliance was placed on P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, .

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6. At the initial stage of the hearing of this petition I had directed the production of the ballot papers, which order was duly complied with. I had done so fully mindful of the fact that while exercising writ jurisdiction it was not expected of me to substitute or vary the finding or decision of the Election Officer with the view preferred by me. Writ jurisdiction ought not to be confused with appellate jurisdiction. Writs are more akin to Revisions, and the Court will only interfere in a matter if the decision which has been assailed cannot be sustained in the factual matrix of the case or if it is entirely contrary to the law. If the verdict is a plausible one, meddling or modifying it should be avoided.

FACTUAL MATRIX OF THIS CASE

7. I have perused the Reply of the Election Officer to the Petitioner's representation dated 1.9.2005. The contention of learned counsel for the Petitioner that it commended itself for further consideration was that the Election Officer had wrongly rejected some of the ballot papers because the sign/mark which had to be put in between lines in the blank space against the name of the candidate, had crossed the enclosing lines. It seem to me that if a wholly untenable decision had been taken in this regard, leading to the defeat of the Petitioner, this Court would not be reluctant to exercise the extraordinary powers reposed in it under Article 226 of the Constitution. This exercise would neither amount to a roving enquiry nor partake of the nature of a recount of votes.

8. The method of counting preferred by the Election Officer was the placing of ballot papers in bundles of 100, in respect of each of the four candidates. The Petitioner's asseveration is that 14 bundles with 85 loose ballots had been segregated in respect of himself and Respondent No. 4 who has subsequently been declared duly elected as the President. It is his complaint that thereafter the Petitioner's ballots were scrutinised, with the mala fide intention of declaring the maximum number of ballots to be invalid so far as he was concerned. In my view the Election Officer must be allowed freedom to adopt any procedure of counting that he finds convenient, so long as it is not inherently imperfect. On a reading of the Reply of the Election Officer I am satisfied that no illegality, partiality or favoritism, has been committed by him. For arriving at a decision on the validity of a ballot paper, the intention of the voter is primarily to be ascertained. While this is true for an uneducated voter, a Lesser stringency and technicality is called for where the voter is shown to be highly educated. In Era Sezhiyan v. T.R. Balu, , the Hon'ble Supreme Court has gone to the extent of concurring in the decision rejecting a vote cast by Rajya Sabha voters with their own pen having green ink and not by the pen provided in the booth. This decision would apply a fortiori to the present case since the vote that has not been cast strictly in compliance with the prescribed direction by voters who are highly educated. In the present case each voter is at least the holder of a post-graduate qualification and Page 1527 a host of them hold doctorates. He/She had clear notice that the sign/mark must be put in between lines in the blank space against the name of the chosen candidate. Such person must be held to have knowledge of the fact that if the sign/mark was not found to be so it would stand disqualified. Care in exercising their franchise should have been taken. It is inappropriate to grant the benefit of the doubt or leniency to such voters. The Report of the Election Officer shows that he had discussed the matter with the Representatives of the candidates and that after these parleys the valid votes of the Petitioner were 1434 and those of Respondent No. 4 were 1446. After discussing the matter with the representatives of the parties the Election Officer decided that if a sign/mark merely touched the lines of the blank space it would be counted as a valid vote, but if it crossed any of the lines, it should be declared invalid. This is the decision taken by the Election Officer, which cannot be substituted by one which this Court may prefer; in any event I find no error in that decision. It is fallacious to contend that the Petitioner and Respondent No. 4 received the same number of votes since votes must be those which are valid ones. The Election Officer has decided, as seen above, that the Petitioner had received 1434 votes and the Respondent No. 4 received 1446 and it is fallacious to argue or contend that on the first count equal votes has been received.

9. The advisability of refusing to take into consideration objections and arguments which have been raised after the event is indeed a salutary one. The rationale in Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, would apply in this case also. The Report shows that after the initial counting all concerned had reached the consensus that only those signs/marks which cut/crossed the enclosing lines would be void and that recounting the votes of two other candidates would not be necessary. The latter point has been belaboured by Dr. Sarabjit Sharma, learned counsel for the Petitioner, as if votes for these candidates had not been counted at all. In laying down that recounting should only be ordered for weighty reasons, the Supreme Court had inter alia rejected such a decision being taken primarily because the margin of victory/defeat was very slender. In such cases the possibility of the decision being overturned because of the miscounting of votes is broodingly omnipresent. That in itself, however, is not a reason for ordering the recount. So far as the declaration of some votes as valid or invalid because of the failure of the voter to confine his sign/mark within the relevant space, I find the decision of the Election Officer to be a very plausible one. Had there been illiterate voters this could be considered a ground for recounting but in the present case all the voters are very well educated, and thus the decision of the Election Officer cannot be questioned. The alleged discovery of one vote in favor of the Petitioner in bundles of Respondent No. 4 is not important. Can there be complete certainty that after two countings no error can exist? Why hould there be even a second count and/or for that matter why should there not be three or more counts. These decisions must be left with the Election Officer. This is especially so where the Election Officer has conducted elections for over a decade without any objection or blemish whatsoever.

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10. None of the arguments raised by learned counsel for the Petitioner persuade me to exercise the extraordinary jurisdiction vested in this Court under Article 226 of the Constitution. The writ petition is dismissed .

11. A copy of this Judgment be given dusty to learned counsel for the parties under the signature of the Court Master.