Yogesh Pandey vs Rohini Court Bar Asso. And Ors.
2014 Latest Caselaw 3609 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 8032/2012 AND C.M. APPL. 20043/2012

       YOGESH PANDEY                                      ..... Petitioner
                   Through:             Mr. Arun Nischal, Advocate.

                          versus

       ROHINI COURT BAR ASSO. AND ORS.                      .....Respondents
                    Through: None.


%                                       Date of Decision :08th August, 2014

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                             JUDGMENT

MANMOHAN, J: (Oral)

1. Present writ petition has been filed seeking setting aside of election for the post of Library In-charge. The petitioner has also prayed for re- election for the post of Library In-charge or in the alternative constitution of a Committee to investigate the fraud allegedly played in the election process by respondent no. 1 in connivance with respondent No.2.

2. After a perusal of the paper-book, this Court is of the view that this writ petition not only raises disputed questions of fact for which evidence would have to be led but it also seeks relief of setting aside the election result, which relief in writ proceedings should normally not be granted. This Court is of the view that in election matters the remedy available is to challenge it by way of an election petition or suit. In K.K. Srivastava and Others vs. Bhupendra Kumar Jain and Others. (1977) 2 SCC 494

it was held that, "It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election."

3. In Nanhoo Mal and Others vs. Hira Mal and Others (1976) 3 SCC 211 the Supreme Court after referring N.P. Ponnuswami vs. Returning Officer, Namakkal Constituency, 1952 SCR 528 has held that election disputes can be challenged only by way of a petition and Article 226 remedy should normally not be invoked for the same.

4. This Court is also of the opinion that the power of judicial review conferred under Article 226 of the Constitution is designed to prevent cases of abuse of power and neglect of duty by public authorities. A writ lies where performance of a public or statutory duty is involved. Writs can also be issued against private authorities discharging public functions, provided the decision sought to be challenged or enforced is in discharge of a public function. The Supreme Court in Binny Ltd. and Another vs. V. Sadasivan and Others, (2005) 6 SCC 657 has held as under:-

"11. Judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. However, under our Constitution, Article 226 is couched in such a way that a writ of mandamus could be issued even against a private authority. However, such private authority must be discharging a public function and the decision sought to be corrected or enforced must be in discharge of a public function. The role of the State expanded enormously and attempts have been made to create various agencies to perform the governmental

functions. Several corporations and companies have also been formed by the Government to run industries and to carry on trading activities. These have come to be known as public sector undertakings. However, in the interpretation given to Article 12 of the Constitution, this Court took the view that many of these companies and corporations could come within the sweep of Article 12 of the Constitution. At the same time, there are private bodies also which may be discharging public functions. It is difficult to draw a line between public functions and private functions when they are being discharged by a purely private authority. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. In a book on Judicial Review of Administrative Action (5th Edn.) by de Smith, Woolf & Jowell in Chapter 3, para 0.24, it is stated thus:

"A body is performing a „public function‟ when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public or that section of the public as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest. This may happen in a wide variety of ways. For instance, a body is performing a public function when it provides „public goods‟ or other collective services, such as health care, education and personal social services, from funds raised by taxation. A body may perform public functions in the form of adjudicatory services (such as those of the criminal and civil courts and tribunal system). They also do so if they regulate commercial and professional activities to ensure compliance with proper standards. For all these purposes, a range of legal and administrative techniques may be deployed, including rule making,

adjudication (and other forms of dispute resolution); inspection; and licensing.

Public functions need not be the exclusive domain of the State. Charities, self-regulatory organisations and other nominally private institutions (such as universities, the Stock Exchange, Lloyd's of London, churches) may in reality also perform some types of public function. As Sir John Donaldson, M.R. urged, it is important for the courts to „recognise the realities of executive power‟ and not allow „their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted‟. Non-governmental bodies such as these are just as capable of abusing their powers as is Government."

5. Consequently, elections of bar association/society/trade union is a matter of internal management, which does not entitle the aggrieved party to a public remedy like a writ petition under Article 226 of the Constitution.

6. Also bye-laws and rules of a Bar Association/Society/Trade Union are contractual in nature and therefore, cannot be enforced through writ remedy.

7. In view of the aforesaid, present writ petition and application challenging the election are dismissed, with liberty to file appropriate proceedings in accordance with law. The rights and contentions of all parties are left open. It is clarified that if any proceeding is filed, the same shall be decided in accordance with law without being influenced by any observation made by this Court.

MANMOHAN, J AUGUST 08, 2014 hs