Delhi High Court

Sarvadeshik Arya Pratinidhi ... vs Sh. Kailash Nath Singh Yadav & Ors. on 5 February, 2010

Author: Manmohan Singh

*              HIGH COURT OF DELHI : NEW DELHI

+          I.A. No.10973/2009 in CS (OS) No.1146/2004

     Sarvadeshik Arya Pratinidhi Sabha & Anr.             ...Plaintiffs
                     Through : Mr. R.P. Bansal, Sr. Adv. with
                                Mr. Vimal Wadhwan and Mr. Rakesh
                                Mahajan, Advs.

                                 Versus

     Sh. Kailash Nath Singh Yadav & Ors.                ...Defendants
                     Through : Mr. V.P. Chaudhary, Sr. Adv. with
                               Ms. Sushma, Adv. for the applicant
                               Mr. R.S. Tomar with Mr. Sumit
                               Tomar, Advs. for the defendants


Decided on : February 5, 2010

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                     No

2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported
   in the Digest?                                      Yes

MANMOHAN SINGH, J.

1. By this order I shall dispose of I.A. No. 10973/2009 filed by

Mr. Prakash Arya claiming to be Secretary of plaintiff No.1 under

Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to

as the CPC).

2. There are three factions claiming to be the plaintiff Sabha,

disputing with each other and struggling so that one faction remains in

the Sabha and the other factions are dislodged, thus a tug of war has

been going on between them and it is this reason that has given rise to

the present suit. Due to the animosity between these factions, this Court

by order dated 11th December, 2008 asked all the three factions to

suggest two names each for the purpose of constituting a committee of

three Court Commissioners. Of the names submitted, a committee

comprising of Justice K. Ramamoorthy, Justice Jawahar Lal Gupta and

Justice S.K. Mahajan was formed by this Court to ensure proper and

unbiased elections so as to empower the Sabha with duly elected persons

in charge and in the meantime, to ensure smooth functioning of the

matters of the Sabha etc.

3. The three factions thereafter appeared before the Court

Commissioners appointed by this Court in regular meetings. In the sixth

such meeting held on 11th July, 2009 the case of the Delhi Prantiya

Sabha as submitted by the three factions was to be considered. However,

one of the factions‟ (headed by Sh. Vimal Wadhawan) counsel Sh. Ram

Phan Bansal, Senior Advocate along with the support of the other faction

(headed by Swami Agnivesh) objected to the proceedings stating that the

Court Commissioners had become functus officio. Thereafter the Court

Commissioners fixed 18th July, 2009 as the date of the next meeting

stating that the proceedings would continue only if the Court extended

the time enabling them to continue with the proceedings for holding the

elections.

4. This Court by order dated 14th July, 2009 extended the tenure

of the Court Commissioners till further orders. The meeting was held on

18th July, 2009 as scheduled and the proceedings were re-commenced. In

the said meeting, the two factions headed by Sh. Vimal Wadhawan and

Swami Agnivesh submitted that though each of them had given a

separate list of office-bearers of each State for the elections, they would

agree to submit one list for each State in order to limit the dispute

regarding the electoral college. Accepting this suggestion, the Court

Commissioners gave the factions four weeks time to file a common list

for each Prantiya Sabha.

5. In the next meeting which was held on 22nd August, 2009,

certain events transpired which caused the Court Commissioners to

adjourn the next meeting to 12th September, 2009 and on 24th August,

2009 the Court Commissioners passed an order stating that they would

request this Court to relieve them of their duties and appoint another

committee of Court Commissioners due to the occurrence of events on

22nd August, 2009. What had happened on the said date was that the

Senior Advocate appearing on behalf of Sh. Vimal Wadhavan submitted

in the meeting that one of the Court Commissioners was friendly with

the Senior Advocate representing the applicant herein and therefore, the

said Court Commissioner would entertain a bias towards the applicant.

In pursuance of this allegation of bias, the ld. Court Commissioners

decided to cease their activities as Court Commissioners in the present

case. The meeting on 22nd August, 2009 was adjourned by the learned

Court Commissioners with the direction that the next meeting would be

held on 12th September, 2009 and the Court Commissioners passed a

speaking order which reads as under:

"Present: Mr. R.P. Bansal, Senior Advocate with Mr. Vimal Wadhavan, Advocate for the plaintiffs. Shri Satyavarat Samvedi and Kailash Nath Singh for the defendants.

Mr. V.P. Chaudry, Senior Advocate with Mr. Nitinjya Chaudhry, Advocate for the applicant.

Matter was fixed today for consideration for the list of Delhi Prantiya Sabha, however, at the outset, one of the advocates representing one of the factions has submitted that one of the members of the Committee is friendly with a lawyer of one of other parties and he should, therefore, not continue to be member of the Committee.

We were appointed by an order of the High Court of Delhi dated 11th December, 2008 and the first meeting was held on 15th January, 2009. Since then, we have been holding regular meetings and today was the eighth meeting. No objection whatsoever was raised in any of the earlier seven meetings about the presence of one of us as a member of the Committee on the ground of any one of us being friendly with a lawyer of one of the parties. Though the objection taken is highly unfortunate, however, since an allegation of bias has been made against one of us, we would like to recuse ourselves from this matter and would request the Hon‟ble Delhi High Court to relieve us as early as possible. Next sitting has been decided to be held on 12th September, 2009 at 5.30 p.m. and in the mean time, the parties may approach the High Court for getting a new Committee appointed for holding elections in terms of the orders of the High Court."

6. The applicant has filed the present application praying that

this Court should not accept the request of the Court Commissioners to

recuse themselves from this matter and should ask them to continue as

the Court Commissioners till they are able to hold fresh and proper

elections of the Sabha as expeditiously as possible.

7. Prior to the filing of the present application being IA

No.10973/2009, an application being IA No.6850/2009 under Order 23

Rule 1 read with Section 151 CPC was filed on 20th May, 2009 which

was signed by Sh. Vimal Wadhawan on behalf of the plaintiff and by

some other defendants for dismissal of the suit as withdrawn. The

present applicant opposed the said application by referring order dated

11th December, 2008 and thereafter the statement was made on behalf of

the applicant in IA No.6850/2009 being not pressed. However, the

plaintiff wished to press the relief of constitution of fresh committee of

two members drawn from each of the three factions for holding of the

elections and this Court in order dated 21st May, 2009 observed as under:

"It is made clear that the Election Committee appointed by the Court vide order dated 11.12.2008 shall continue to discharge its functions, unhindered by the fact that the present application has been moved."

8. According to the applicant, Sh. Raj Singh Arya and Sh.

Vinay Arya are the President and Secretary respectively of Delhi Arya

Pratinidhi Sabha.

9. The applicant has submitted that the non-applicants have

made every attempt possible to delay the proceedings before the Court

Commissioners, no doubt with the ultimate goal of not allowing the

elections to ever take place. Further, the allegation of Senior Advocate

representing Sh. Vimal Wadhavan has been stated to be completely

unfounded and it has been submitted that the applicants‟ Senior

Advocate has been a practicing advocate in Tis Hazari courts, has been

an advocate on record in the Supreme Court of India and has been a

designated Senior Advocate in this court since 1991. During the course

of these years he has obviously acquainted himself with innumerable

persons of the legal profession.

10. Further, the Court Commissioner against whom the

allegations of bias were leveled was an advocate who later became a

Judge of this Court and in fact, he had an unblemished record as a Judge

of this Court. Being of the same profession, the two persons are cordial

to each other and extend natural professional courtesy to each other but

they are not related and there is no reason to believe that the views of

said Court Commissioner might be prejudiced or biased due to his

alleged „friendship‟ with senior counsel for the applicant.

11. A reply to the said application has been filed by Professor

Swatanter Kumar, Secretary of the plaintiff Sabha stating that Sh.

Prakash Arya has no locus standi to represent the plaintiff Sabha.

12. It has also been stated that a Single Judge of this Court

disposed of the suit as infructous vide order dated 24 th August, 2007,

after which Sh. Prakash Arya filed an appeal being R.F.A. (OS) No.

54/2007. A Division Bench of this Court thereafter remanded the matter

back to the Single Bench with the specific direction to dispose of the

pending application being I.A. No. 8291/2006 filed by Sh. Prakash Arya.

It is the non-applicant‟s submission that the counsel of Sh. Prakash Arya

is deliberately avoiding arguing on the said application.

13. It is also stated that the Court Commissioners were appointed

on the condition that the election process would be completed within six

months however, no satisfactory progress in this regard has been made

and an amount of Rs. 6 lac has already been spent. Further, one of the

Court Commissioners has been snubbing the other counsels during the

proceedings and seems inclined to listen to the opinion of Sh. Chaudhry

only.

14. A reply has also been filed by Sh. Vimal Wadhawan, the

head of one of the factions and plaintiff no. 2 in the present suit. Sh.

Vimal Wadhawan has submitted various facts which have already been

mentioned as well as the fact that he was the secretary of the plaintiff no.

1 before the current secretary Sh. Swatanter Kumar, along with the

assertion that Sh. Prakash Arya has no locus standi to file the application

under consideration and the application being I.A. No. 8291/2006 filed

by Sh. Prakash Arya earlier ought to taken up for consideration in the

first instance.

15. In the rejoinder to the above two replies, the applicant has

submitted that it is clearly one of the three parties mentioned in this

court‟s order dated 11th December, 2008 and it is too late in the day now

to challenge the locus standi of Sh. Prakash Arya, who is entitled to ask

for directions to ensure the expeditious and fair election process of the

Sabha.

16. It is not in dispute that vide order dated 11th December,

2008 passed by this Court, it was observed that there are three factions

each claiming to be the Sabha and by the same order this Court

appointed three retired Judges as Receivers/ Court Commissioners/

Election Officers for the purpose of holding fresh election of

Sarvadeshik Arya Pratinidhi Sabha.

17. It appears from the pleadings and orders that the order dated

11the December, 2008 was passed for appointing the Court

Commissioners after considering the names provided by the three

factions and as per their suggestions. None of the factions objected to

any of the three names of the Court Commissioners when the order was

passed. Admittedly, the first meeting was conducted on 15the January,

2009 and subsequently six more meetings took place. There were no

suggestions whatsoever by any of the parties regarding any bias or

prejudice in favour of or against any faction by any of the Court

Commissioners. When the application No.6850/2009 under Order 23

Rule 1 CPC was filed on 20.5.2009 for withdrawal of the suit, no

allegation whatsoever was made in the application that any of the Court

Commissioners were biased in favour of the present applicant. Not only

that, the matter was listed before the Court from time to time. On 14th

July, 2009 when the parties‟ counsel appeared before the Court, nothing

was mentioned in this regard. In the subsequent meetings also, no

objection was raised despite of the appearance of the parties before the

Court Commissioners.

18. I agree with the submission of the learned counsel for the

applicant and this Court has full confidence in the impartiality, integrity

and competence of the Court Commissioners and this Court sees no

reason for any of them to be recused from the responsibility of

conducting the elections of the Sabha.

19. It has been rightly observed by the Division Bench of the

Andhra Pradesh High Court in the case of A. Anuradha Vs. Canara

Bank, 2006 ALT 4 581 that :-

"In this connection, it is apposite to observe that Satya (truth) and Ahimsa (nonviolence) are the two basic values of life, which have been cherished for centuries in this land of Mahavir and Mahatma Gandhi. People from different parts (sic) of the world come here to learn these fundamental principles of life. However, post-independence era and particularly the last two decades have witnessed sharp decline in these two basic values of life. Materialism has over shadowed the old ethos and quest for personal gain is so immense that people do not have any regard for the „truth‟."

20. Unfortunately, in the present case it appears prima facie that

one of the parties is trying to adopt one or the other strategy and/or

technique in order to stall the election process of the Sabha. Flinging

baseless allegations of prejudice against the highly respected and reputed

Court Commissioners appointed by this Court shall not be taken lightly

and this Court shall not succumb to strategies concocted by parties to

halt or unnecessarily lengthen the process of justice and for the said act,

the faction led by Sh. Vimal Wadhavan will bear the cost of Rs. 50,000/-

to be deposited within two weeks by way of a cheque drawn in favour of

the Registrar General of this Court. The total amount of the said cheque

shall be kept available for Juvenile Justice.

21. For the aforesaid reasons, I accept the prayer made in the