Avtar Singh Hit vs Delhi Sikh Gurudwara Management ...
2006 Latest Caselaw 144 Del

JUDGMENT

Vikramajit sen, J.

1. Keeping in perspective the urgent nature of these writ petitions, Counter Affidavits being available on the record, and arguments having been heard in full detail, the matter was taken up for final disposal. The vagaries and vicissitudes of public life and elections cannot always be visualized or predicted with precision, as these petitions demonstrate. Shri Paramjit Singh Sarna, the President and Shri Ravinder Singh Khurana, General Secretary of the Delhi Sikh Gurdwara Management Committee have intractably locked horns with each other. They have their own factions and supporters. The General Secretary had convened the annual elections of the Executive Board for 19th December, 2005 in terms of his letter dated 28.11.2005. It transpires that in that particular period the President was part of the Jatha which was on pilgrimage to Nankana Sahib, on the outskirts of Lahore, Pakistan. On his return the President took umbrage at the unilateral decision of the General Secretary; at first he cancelled the election but thereafter allegedly held it on that very same day. This somersault is ironically matched the Secretary's stance that the elections could not have been properly and legally conducted on that day, i.e. the one fixed by him. This challenge must, in large measure, be a consequence of the misfortunes of General Secretary's faction since the group has failed to assume any significant semblance of power. This electoral drama which shall be unfurled, amplified and detailed below, is indeed peculiar and unique, with confusion being worse confounded with the passing of each day.

2. Learned Senior Counsel for the Respondents have mounted a challenge to the maintainability of the writ petitions principally on the availability of the alternative and efficacious relief of an election petition. By virtue of Section 31 of the Delhi Sikh Gurdwaras Act, 1971 (hereinafter referred to as `the Act) the provisions of sundry sections of the Delhi Municipal Corporation Corporation Act, 1957 have mutates mutants been made applicable. One of these is Section 15, which stipulates that no election shall be called into question except by an election petition presented to the Court of the District Judge within fifteen days from the date of the publication of the result of the election.

3. In Gurdeep Singh Dua v. Delhi Sikh Gurdwara Prabandhak Committee , almost identical objections had been raised and rejected. The decision was unsuccessfully carried to the Hon'ble Supreme Court. The ratio of Dua has been applied in another petition filed by the Petitioner titled Avtar Singh Hit v. Delhi State Sikh Gurdwara Management Committee where a challenge to the maintainability of the writ petition had been obdurately raised yet again. The Objection has been interred by the Division Bench and ought not to have been ventilated yet again. The Division Bench in Dua had made the following observations which have the imprimatur of the Supreme Court.

9. Mr. Rohtagi said that minutes of 21 may 1994 could not be read in isolation and that both the minutes of 10 May 1994 and 21 May 1994 go together, and if the minutes of 10 May 1994 fall the minutes of 21 May 1994 must necessarily also fall. He said there were no election as a matter of fact and the whole thing was an eye wash and in contravention of the provisions of the Act and the Rules. Mr. Thakur, however, defended minutes of both the meetings and said that no corrupt practice had been alleged and it was not a case of mere nominations but of regular elections as per law and the Court has to first find out the correct facts which cannot be done in a writ petition. Mr. Thakur also said that without the office bearers who have been elected being parties, the petition was not maintainable. Mr. Thakur said that there was no question of surrender of their rights by the members of the Committee in favor of the Acting Jathedar Akal Takht Sahib and it was not a case of any `hukmnama' having been issued by the Akal Takht and the minutes of 21 May 1994 show that there was no delegation of the rights of the members in favor of anyone. He said it could not also be said that presence of Akal Takht Sahib would have any terrifying effect on the members inasmuch as the Act envisages his being a member of the Committee though having no right to vote. In support of his submission Mr. Thakur referred to three decisions of the Supreme Court in (1) K.K. Shrivastava etc. v. Bhupendra Kumar Jaina nd Others ; (2)Gujarat University v. Shri N.U. Rajguru and Others, ; and (3) Daulat Ram Chauhan v. Anand Sharma . Decision of the Supreme Court in K.K. Srivastava's case had been referred to in Gujarat University's case . In Gujarat University's case there was challenge to election of certain members to "Court" of Gujarat University constituted under the Gujarat University Act. The challenge was by way of Writ Petition. The Court said that the Gujarat University Act and the Statutes framed there under provided a machinery or a Forum for determination of disputes arising out of election and that the aggrieved person should pursue his remedy before the Forum provided by the statute. The Court said it was not permission to invoke the jurisdiction of the High Court under Article 226 of the Constitution by passing the machinery designated by the Act for determination of the election dispute, and that ordinarily the remedy provided by the statute must be followed before the authority designated therein. However, the Court said that there might be cases where exceptional or extraordinary circumstances might exist to justify by-passing the alternative remedies. It is said that in the case before it there existed no circumstance justifying departure from the normal Rule. In K.K. Shrivastava's case a defeated candidate in the election to the Bar Council of Madhya Pradesh moved the High Court under Article 226 of the Constitution challenging the validity of the election. The High Court interfered on the ground that since the entire election was challenged an election petition could not be an appropriate remedy and that the same could not be considered as an equally efficacious remedy. The Court found this approach of the High Court wrong and said that there was no foundation whatever for thinking that where the challenge was to "entire election" then the writ jurisdiction sprang into action. The Court observed as under:--

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.

10. The Act and the Rules provide for settlement of disputes regarding elections. In view of the law laid down by the Supreme Court that where even whole of the elections are sought to be challenged it would be no ground to by-pass 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 was cited to show that in order to constitute "corrupt practices" in election what are the necessary particulars, statement of facts and essential ingredients that must be contained in the pleadings.

4. This undisturbed statement enunciating the legal position binds me in every respect, as has been correctly contended by Dr. A.M. Singhvi. What immediately comes to mind is the celebrated decision of the Constitutional Bench comprising seven learned Judges of the Supreme Court in landmark precedent titled L. Chandra Kumar v. Union of India . One of the question that had arisen in that batch of Appeals/Petitions inter alia was whether the powers of the High Court under Article 226 of the Constitution could be curtailed by statutes such as the Administrative Tribunals Act, 1985. The Court pronounced that the powers of judicial review over legislative action vested, inalienably, in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution, and were integral and essential features of the Constitution constituting part of its basic structure. Ordinarily, therefore, the power of these Courts to test the constitutional validity of legislations could not be ousted or excluded. It was further held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions was also a concomitant of the basic structure of the Constitution. Divesting the High Courts of these powers had therefore to be abjured. It was further held that the provisions of the statute which excluded the jurisdiction of the High Courts and the Supreme Court, such as Section 28 of the Administrative Tribunals Act, 1985 were unconstitutional. In these circumstances, whether the Arbitration and Conciliation Act, 1996 is a specialised or a subsequent statute would not, in any way, 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. This careful analysis/this is the very conclusion that I had arrived at in Ashish Gupta v. I.B.P. Co. Ltd. , and I find no reason to depart from it.

5. Nearly two decades ago the Supreme Court had clarified that there are almost no frontiers curtailing the amplitude of Article 226 of the Constitution. In The Comptroller & Auditor General v. K.S. Jagannathan , I can do no better than to reproduce the relevant passages from the Judgment which deserve careful reading not only for the legal erudition but also for the extraordinary literature.

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 the relief prayed for by the respondents in their writ petition. What the Division Bench did was to issue directions to the Appellants in the exercise of its jurisdictions under Article 226 of the Constitution. Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. Income-Tax Officer, Special Circle, Kanpur this Court pointed out that Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in england, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country". In Hochtief Gammon v. State of Orissa this Court held that the powers of the courts in England as regards the control which the Judiciary has over the Executive indicate the minimum limit to which the courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officers.

19. Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions the High Court would have been entitled in law to do so for even the courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin. B. in Mayor of Rochester v. Regina 1858 E B & E 1024, 1032, 1034 said :

But, were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen's Bench. That court has power, by the prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy and justice and good government require that there ought to be one for the execution of the common law or the provisions of a statute 'Comyn's Digest, Mandamus (A) .... Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction it can be made applicable.

The principle enunciated in the above case was approved and followed in the King v. Revising Barrister for the Borough of Hanley (1912) 3KB 518, 528-9, 531. In Hochtief Gammon's case this Court pointed out (at page 675) that the powers of the Courts in relation to the orders of the Government or an officer of the Government who has been conferred any power under any statute, which apparently confers on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide, and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield v. Minister of Agriculture, Fisheries and Food 1968 AC 997 the House of Lords held that where Parliament had conferred a discretion on the Minister of Agriculture Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the court and though there might be reasons which would justify the Minister in refusing to refer a complaint to a committee of investigation the Minister's discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the court was entitled to interfere by an order of mandamus. In Halsbury's Laws of England, Fourth Edition Volume I, paragraph 89, it is stated that the purpose of an order of mandamus "is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial 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 and 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 or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.

These observations have been relied upon in Union of India v. S.B. Vohra .

6. A Restatement of the law is also available in the decision in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey and Others and it would be most fruitful to reproduce the observations of the Hon'ble Supreme Court in extensio.

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 power in the discharge of public duty and that writ is a public law remedy. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union it was 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) reiterates 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 interdict or 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 writs is not conditioned or limited by the requirement that the said writs can be issued only against the orders of Courts or Tribunals. Under Article 226(1) , 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 Singh, (AIR 1975 SC 1331): Maneka Gandhi (AIR 1978 SC 597); International Airport Authority (AIR 1979 SC 1628) and Ajay Hasia (AIR 1981 SC 487). 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) All ER 278); I Congress del Partido, (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 shall 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 them 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 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 decisions 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. 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 authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfillling public responsibility. (Cf. Halsbury's Laws of England, 3rd 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 on 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 (AIR 1989 SC 1607 at Pp.1613):

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 fast 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 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 226 even so a writ would lie against it to enforce a statutory public duty which an employee is 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 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 Clause 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 interpretation 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."

7. Section 21 of the Act is of relevance. Its first two sub-sections clarify that the Executive Board and the President respectively possess all residuary powers, and appear to me to be platitudinous. However, the third sub-section is of significance as it reposes in the President powers which are revisory in character. The President's powers are neither absolute nor untrammeled since by virtue of the next/last subject in his orders again require the confirmation of the Executive Board. These provisions have been cited on both sides of the Bar. It will be recalled that the Secretary had issued a communication to all the Members of the DSGMC notifying them that the election of the Office-bearers and Members of the Executive Board would be held on 19.12.2005. This action was obviously based on Regulation 4 formulated under Section 40 of the Act, which is extracted below for facility of reference -

4. Meetings of the Committee/Executive Board etc.

(1) Annual General Meeting

(i)Annual General Meetings of the Committee shall be held in the month of September every year to hold election of Office-bearers and members of the Executive Board. The date of election once announced by the President/General Secretary shall not be postponed.

(ii)Among other items, the Annual General Meetings shall consider and approve.

(a) Annual Report of the Committee;

(b) Annual Budget containing proposals for;

1) Revised estimates of the current year;

2) Budget estimates for the next year;

(c) Audited statement of accounts of the last year;

(d) Action taken on report for pending audit paras;

(e) Format and the manner in which the accounts shall be maintained in the next financial year;

(f) Appointment of Auditors for the next year.

Note : Election of New Executive Board and Office-bearers is to be held in accordance with the Rules framed or to 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.

8. The writ petitions are replete with approbation and reprobation of the two warring factions. On the one hand it has been contended by learned Senior counsel for the Respondents, predicated on the President's several letters, that the Agenda had not been circulated in consonance with Regulation 4; and on the other the President has himself fallen back on the notice of the General Secretary since otherwise he could not have taken the decision on 17.12.2005 to hold the elections on 19.12.2005. In my opinion the requirements of Regulation 4 have been met. Before departing from this Regulation I must also reject another argument put forward by learned Senior counsel for the Respondents that the General Secretary was not competent to fix and notify the date of elections. Section 21(2) read with Regulation 4(i) clarifies that either the President or the General Secretary can take this action, and once it is so done the elections cannot be postponed. The President has himself weered down this position in its letter dated 17.12.2005. Since Regulation 4 empowers the General Secretary for this purpose and he being an office-bearer of the Executive Board his action has statutory force.

9. Learned Senior counsel for Respondents have also laid great stress on the presence of the Director, Gurdwara Elections and his certification of the elections held. This appointment is statutory in nature by virtue of Section 13 of the Act which vests powers of superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, elections of members of the Committee which in terms of Section 2 (c) refers to the Delhi Sikh Gurdwara Management Committee and not the Executive Committee. Mr. Lekhi's reliance on Section 114(f) of the Evidence Act in having declared the result does not infuse statutory correctness into the elections. Section 16(a) envisages role for the Director Gurdwara Elections where a Committee is unable to elect a pro tempore Chairman or a President or any other office-bearer or member of the Executive Board under sub-section (4) of Section 15 or sub-section (1) or sub-section (2) of Section 16. This impasse has not transpired. I am unequivocally of the view that motions of holding of an election were factually completed on 19.12.2005. The gravamen of the Petitioners' is that confuse state of affairs pervaded the entire month ending on 19.12.2005 and especially from 15.12.2005 to 19.12.2005. The pleadings are to the effect that it is "mandatory that for every meeting there has to be a clear notice which is absent in this case." 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 to hold elections on 19.12.2005. I cannot accept the bald statement, which is self-serving, that the General Secretary has colluded with the President. This is also belied by the forceful argument of Mr. Nigam supporting the Petitioners.

10. It is well settled that a party cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If authority is required for this proposition it can be found in the celebrated decision titled Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi , paragraph 8 of which reads as follows:

8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji :

Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older.

In similar vein, in Babu Verghese v. Bar Council of Kerala , the Apex Court was called upon to consider a case under the Advocates Act. While doing so it applied the same principles earlier enunciated in Taylor v. Taylor (1875) 1 Ch D 426 and in Nazir Ahmad v. King Emporer . The Apex Court observed as follows:

It is the basic principles of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor.

11. The action of the Secretary in convening elections for 19.12.2005 are in consonance with the statute and the Rules and Regulations framed pursuant thereto. The challenge of the President prior to 17.12.2005, therefore, has no legal foundation. Having said that the action of the General Secretary in cancelling the elections on the penultimate day is also not permissible since by virtue of Regulation 4 an election once called cannot be postponed. This is why I have observed that the manner in which the election has been conducted has been reduced to a farce.

12. The 1st Scene of the 1st Act, (it is indeed a drama that has been enacted in the course of one month), is the letter dated 28.11.2005 signed by 17 Members of the General Committee calling upon the General Secretary to hold elections of the Executive Committee for the year 2005-2006. On that very day the following Circular was issued:

Ref.:11534/3-5 Dated : 28.11.05

All Hon'ble Members

Delhi Sikh Gurdwara Management Committee

Dear Sir,

Waheguru Ji Ka Khalsa

Waheguru Ji Ki Fateh

This is to request that it has been decided that the Meeting of the General House of the Members of the Delhi Sikh Gurdwara management Committee will held on Monday, the 19th December, 2005 at 11:00 a.m. in the office of the Delhi Sikh Gurudwara Management Committee, Guru Gobind Singh Bhawan New Delhi " 110 001. The following agenda will be considered in this meeting:

AGENDA

Elections of the Office Bearers and Members of the Executive Board.

You are requested to attend the meeting in time.

Thanking you, Yours sincerely,

Sd:-Ravinder Singh Khurana

General Secretary

Delhi Sikh Gurdwara Management

Committee

The President in terms of its letter dated 1.12.2005 informed the Members that the General Secretary's letter dated 28.11.2005 "has no meaning since no decision has been taken by any competent authority to hold the Annual General Meeting on 19.12.2005 as such there shall be no General House Meeting on 19.12.2005". A show cause notice was also issued by the President to the General Secretary on that very day. By letter dated 7.12.2005 the General Secretary informed all the Members of the Management Committee that once the elections have been called they cannot be postponed and, therefore, the President's letter "has no meaning whatsoever and the elections will be held on 19.12.2005 at the time and the place mentioned in the letter dated 28.11.2005". On the next day, 8.12.2005 the President issued a letter recording therein that the DSGMC had not taken any decision in regard to the elections in the Agenda and reiterated that no elections would be held on 19.12.2005. Two days thereafter, on 10.12.2005 the President issued Order No. 981 under Section 21(3) of the Act; he stated that he had perused the records and had not found any decision of any authority to hold the AGM on 19.12.2005. He convened a Meeting of the Executive Board for 15.12.2005 after repeating that the AGM would not be held on 19.12.2005. As is to be expected the General Secretary addressed a letter on that very day requesting all the Members including the President of DSGMC "to participate and elect the Executive Members gracefully and peacefully on 19.12.2005 as communicated earlier by my letter dated 28.11.2005". The President repeated his stance by letter dated 12.12.2005 and by a separate letter convened special meeting of the Executive Board to be held on 15.12.205 at 10.30 A.M., inter alia, "To discuss about holding the Annual General Meeting of DSGMC for Election of the Executive Board". The next day the General Secretary issued a letter stating that the orders of the President to revise the date of elections was `non est' and that convening of the meeting of the Executive Committee was also `non est'.

13. Despite the General Secretary's objection to the Meeting of the Executive Board of the DSGMC on 15.12.2005 at 10.30 A.M, this Meeting did take place and was attended by the General Secretary himself. The proceedings were completed at 10.55 A.M. and four decisions were unanimously taken. Firstly, that the annual elections would be held on 19.12.2005; that the Secretary's letter dated 28.11.2005 was issued as per the Gurdwaras Act; thirdly, that the President's letter dated 10.12.2005 be cancelled; and fourthly, that the powers of the President were to be exercised by a Five Member Committee. It transpires that the President thereafter held a Meeting at 11 A.M., which like the previous one was attended by eight members, Bibi Daljit Kaur having attended both. One of the decisions taken at the later Meeting was the confirmation of Order No. 981 dated 10.12.2005 by the President. Mr. P.N. Lekhi, learned Senior counsel appearing for some of the Respondents has contended that the President had acceded to legal advice that the second Meeting was not in order since the earlier one had commenced at the scheduled time and stated place and had concluded its proceedings. He further contended that because of legal advice the President had decided to withdraw from his repeated written objections and fall in line with the elections convened by the General Secretary. If this is so the decision to confirm the Order No. 981 dated 10.12.2005 must necessarily fall. Having said that it will be necessary to underscore the fact that even in the second Meeting it had been resolved to hold the next Meeting of the Executive Board on 7.1.2006 "to decide the date of elections of the Executive Board". So far as the President is concerned, therefore, three days prior to crucial date of 19.12.2005 the President's position was that the elections would not be held on that date. On that same day, 15.12.2005 the President addressed letter to the SHO, Parliament Street asking for deployment of adequate police protection and presence to quell any disturbance that may arise in an attempt to hold the Annual General Meeting on 19.12.2005. A copy of that letter had also been addressed to the Directorate of Gurdwaras Elections. As is to be expected the General Secretary issued a letter to all Members on the next day, 16.12.2005 stating that the Elections would be held on 19.12.2005.

14. On the fateful day of 16.12.2005 18 (eighteen)Members of the DSGMC addressed the following letter to the President:

Subject : Regarding elections of the Executive Board of the Delhi Sikh Gurdwara Management Committee.

Dear Sir,

Waheguru Ji Ka Khalsa, Waheguru Ji Ki Fateh.

As you are well aware that earlier the General Secretary by illegally issuing a notice for holding Annual Elections of the Executive Board on 19.12.05 has hurt the sentiments of the Committee. After that it is unfortunate that the statements are being published in the media. The general masses (sangat) are laughing on the conditions of the Delhi Committee. In view of this we request you to think in the right direction and give proper directions to set the matter right and take a right decision for holding the annual election of the Executive Board of the Committee. We are proud of your sacrifices for the Sikh Panth.

In spite of the action of the General Secretary in the matter you are also fully responsible for holding the elections. We therefore hope that you will oblige us by announcing the date of Annual General Meeting of the Committee for holding elections of the Executive Board of the Committee. This letter may please be treated as a notice.

15. The result appears to be that immediately the President conveyed his decision to hold the Annual Elections on 18.1.2006. As in the case of the Secretary's letter dated 28.11.2005 the Agenda of the Meeting proposed for 18.1.2006 constituted an integral part of the communication. However, as is plainly obvious, the requirement of eight days prior notice had not been complied with.

16. One can only imagine the goings-on in the evening and night of 16.12.2005 since the next morning, 17.12.2005 the President issued a letter that the Meeting would be held on 19.12.2005, the date which he had bitterly opposed predicated on the statute and the Regulations. I can only presume that the confabulation between President and his legal advisors took place on that evening/night; and possibly that arithmetical calculations disclosed to the President that his faction was likely to win the Elections. The expected sequel was that the General Secretary immediately opposed the two days old decision of the President to hold the Elections on 18.1.2006, attributing this volte face to the expected presence of 1000 Punjab Police officials in plain cloths with the purpose of disturbing 19.12.2005 Meeting. Almost at the conclusion of arguments Mr. Phoolka has placed reliance on a copy of a letter purportedly authored by Joginder Singh, Jathedar of Sri Akal Takhat Sahib, Sri Amritsar (Pb) India dated 17.12.2005 ordering him to cancel the programme of elections fixed by him for 19.12.2005, "in the greater interests of the Sikh Panth". Receipt of this communication of the General Secretary dated 18.12.2005 has been vehemently denied by the Respondents. It is palpably clear that both sides have reduced this important Election to a legal farce.

17. Thirty Five Members of the DSGMC appear to have attended and voted in the Election which was held on 19.12.2005. The attendance of these persons has not been specifically disputed. Had there been any dispute on this issue the 35 persons ought to have been imp leaded as Respondents. Alternatively, any of them should have approached this Court stating that the President had falsely depicted and recorded their presence at that Meeting. The Petitioner's challenge must, therefore, be seen on legal rather than on factual grounds.

18. Powers under Article 226 has been described as expansive and extraordinary, and the Article has been couched in such comprehensive phraseology that it ex facie confers wide power on the High Courts to reach injustice wherever it is found. Courts have, however, cautioned that these powers should not be exercised in a manner reminiscent and akin to a bull in a china shop. Judges have themselves imposed constraints on its user, one of which is the availability of a statutory remedy. In this regard it should immediately be recalled that writ petitions have unhesitatingly been entertained even where civil or appellate remedy has been provided for, if the Petitioner is able to disclose a complete failure to adhere to legal/statutory norms while passing a particular order. Courts have, therefore, entertained writ petitions challenging Rateable Values fixed under municipal laws and Assessment predicated thereon, if the statutory provisions have been violated by the Authorities concerned. On this analogy, if it can be shown that the election has been conducted in gross violation of statutory provisions the Writ Court would not have to impotently and helplessly remain a bystander. In the present case the grievance of the Petitioner is that no election as envisaged by the Act at all took place. The Petitioners may be right or wrong in their submission, and upon that determination would depend the ultimate decision whether to exercise extraordinary power or to desist. An election petition, however, assumes that an election has been duly conducted; the quarrel is with an individual result and in such cases an election petition would be the appropriate remedy. I would, therefore, be loathe to dismiss the writ petition as not maintainable, in the backdrop of the events leading up to it.

19. In Rahul Mehra v. Union of India the Division Bench has not felt constrained in any manner in issuing a high prerogative writ even to organizations such as the BCCI.

20. Learned counsel for the Petitioners have sought to make capital of a statement made by Mr. Phoolka on 13.12.2005 in W.P.(C) 4355/2002 to the effect that no election would be held on 19.12.2005. The circumstances of the earlier writ petition were entirely different and have no bearing or effect on the questions that have arisen in the present proceedings. In any event the President had made a turn-around and reversed his decision a few days later.

21. Politics and opportunism, whether of the Machiavelli or Ayaram Gayaram genre, has pervaded every walk of life; what is regrettable is that it has not spared even religious organizations such as the Sikh Gurdwara Prabandhak Committee. So many of us behave as Dr. Jekyll while in our respective sanctum sanctorums, but are quickly transformed to Mr. Hyde no sooner we leave the holy precincts. Increasingly more and more of the citizenry pays only formal obeisance to our Holy Scriptures. 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. So far as the law of Meetings is concerned judicial verdicts are to the effect that absence of prior notice even to one member vitiates the Meeting in totality. This appears to be the version of the Petitioners, although it has not been explicitly pleaded so.

22. The dictum in Babu Verghese and Nazir Ahmed mandates that if a particular procedure has been prescribed every action must be in consonance therewith. A joint reading of the Rules, especially Part III thereof and Regulation 4 indicates that eight days prior notice must be given for Meetings. Had the President conveyed his decision to abide with the Election scheduled for 19.12.2005 and had publicly made an announcement to this effect on or before 10.12.2005 the Meeting would have been perfectly in order. Reliance by the General Secretary on the edict dated 17.12.2005 of Sri Akal Takht Sahib has no legal efficacy. His conduct in cancelling the elections one day in advance can scarcely be viewed as bona fide. Elections cannot be reduced to a game of chess. They must be conducted in a free and fair manner. Since the President's decision to go along with the Elections scheduled for 19-12-2005 was given at the eleventh hour it does not meet with the expectations of law. Had consensus been arrived at between all the members of the electoral college even after 10th December, 2005 it may have become legally permissible to complete the elections on 19.12.2005. The contention that 35 Members had attended the Elections would not clothe the action which was otherwise legally naked.

23. The elections held on 19.12.2005 are countermanded and set aside.

24. The course that commends itself is the same as was followed by the Division Bench as well as the Single Bench in the two previous writ petitions, namely, Gurdeep Singh Dua and Avtar Singh Hit respectively. It is ordered that --

1. Elections of the office-bearers and of Executive Board shall now be held on 14.2.2006 at 11 A.M. at the Office of the Delhi Sikh Gurdwara Management Committee, Guru Gobind Singh Bhawan, Gurdwara Rakab Ganj Sahib, New Delhi-110001. Notices of this Meeting shall be issued within three days from today by the President or the General Secretary and the Court Observer shall be informed of the same;

2. I appoint Mr. Justice S.S. Chadha, a retired Judge of High Court of Delhi, 99, Sukhdev Vihar, New Delhi, Tel. No. 26311502 to preside over the Meeting as Chairman.

3. I also appoint Mr. J.P. Sengh, Advocate and Vice-President, Delhi High Court Bar Association, 421, Lawyers' Chamber, Delhi High Court, New Delhi, Tel No.23387169 as the Deputy Chairman/Court Observer, who will prepare the Report of the Elections including the result thereof to be filed in this Court within five days thereof;

4. If the Chairman is not available for any reason Deputy Chairman/Court Observer would be authorised to chair the Meeting. No obstruction shall be caused in the Elections or in the functioning of the Chairman or the Deputy Chairman/Court Observer by any one. The Chairman shall be paid a sum of Rs.50,000/- as his fee. The Court Observer shall be shall be paid a sum of Rs.30,000/- as his fee. A copy of the Judgment shall be given to Counsel for both the parties as well as to the Chairman and Court Observer.

25. The writ petitions are disposed of with these observations. Parties to bear their respective costs.