Sunita Arora vs Delhi University & Ors
2016 Latest Caselaw 335 Del

$~12
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 198/2016 & CM No.813/2016 (for stay)

       SUNITA ARORA                                         ..... Petitioner
                          Through:     Ms. Roma Bhagat with Mr. Pankaj
                                       Sinha & Ms. Nupur Grover, Advs.

                                 Versus

    DELHI UNIVERSITY & ORS                     ..... Respondents
                  Through: Mr. Sudhir Nandrajog, Sr. Adv. with
                            Mr. Mohinder J.S. Rupal & Ms.
                            Simran Jeet, Advs. for University of
                            Delhi.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                          ORDER

% 15.01.2016

1. The petition impugns (a) the Minutes of the General Body Meeting

(GBM) dated 28th November, 2015 of the respondent no.2 (DUWA)

containing the decision to hold the election to the Executive Committee of

the respondent no.2 DUWA; as well as, (b) the Notification dated 2nd

January, 2016 of the Returning Officer appointed in the aforesaid GBM for

holding the elections, announcing the result of the election. Axiomatically,

mandamus is also sought to the respondent no.2 to DUWA to hold de novo

election.

2. It is also inter alia the pleading of the petitioner that the respondent

no.1 Delhi University has interfered with the affairs of the respondent no.2

DUWA and axiomatically relief of restraining the respondent no. 1

University from interfering with the elections of DUWA is also claimed.

3. Though the petition came up first before this Court on 8 th January,

2016 and thereafter on 11th January, 2016 but was adjourned and notice has

not been issued as yet. The order dated 11 th January, 2016 records the

contention of the senior counsel for the respondent no.1 University appearing

on advance notice that the writ petition is not maintainable in view of the law

laid down by the Division Bench of this Court in S.D. Siddiqui Vs.

University of Delhi 2006 (3) AD (Delhi) 290 that Delhi University Teachers

Association (DUTA) is not a State or an instrumentality of the State under

Article 12 of the Constitution of India and does not perform any public

function and is a purely private body working for the welfare of teachers of

the university and affiliated colleges and hence no writ lies against DUTA.

4. The senior counsel for the respondent no.1 University today also

contends that the respondent no.2 DUWA is identically placed as DUTA and

thus what has been held qua DUTA would equally apply to the respondent

no.2 DUWA.

5. The counsel for the petitioner on the aspect of maintainability of the

writ petition contends that the judgment aforesaid is a judgment only on the

aspect of DUTA being not a State. It is contended that in the present

proceeding it is the case of the petitioner that the respondent no.1 University

has unreasonably, arbitrarily and unauthorizedly interfered with the process

of election of DUTA and thus a writ petition is maintainable. It is argued

that the Returning Officer of the election was appointed by the Vice

Chancellor (VC) of the respondent no.1 University and which the VC was

not authorized to do and the same has vitiated the entire election process. It

is even otherwise contended that since the elections have been held wrongly

and in an arbitrary manner, the petition would be maintainable.

6. I have enquired from the counsel for the petitioner whether the

petitioner was a candidate in the said election.

7. The answer is in the negative.

8. The senior counsel for the respondent no.1 University states that the

petitioner could not have been a candidate having been a member of the

Executive Committee of the respondent no.2 DUWA for the past two

consecutive terms.

9. The counsel for the petitioner controverts that the petitioner was the

member of the Executive Committee of the respondent no.2 DUWA for two

consecutive terms. It is stated that the petitioner was a member of the

Executive Committee for one term only and though was eligible to contest

the election to the Executive Committee this year also but chose not to.

10. I have in the circumstances enquired from the counsel for the

petitioner as to what is the cause of action of the petitioner to maintain this

petition, even if the same was to be maintainable.

11. The counsel for the petitioner states that this is not a suit, for the

petitioner to have a cause of action.

12. I am afraid that is not the position in law. It would be preposterous to

say that a writ petition can be filed without a cause of action. In fact, the

Division Bench of this Court in Guru Gobind Singh Indraprastha

University Vs. Smit Rajput MANU/DE/1356/2015 while relying on the

judgment of Supreme Court in Shipping Corporation of India Ltd. Vs.

Machado Brothers (2004) 11 SCC 168 has held that where the cause of

action with which a writ petition is filed disappears during the pendency of

appeal, the same is to proceed no further. The Constitutional Court should

not proceed to decide the issues in vacuum and should close the writ petition.

Reference can be made to Arnit Das Vs. State of Bihar (2001) 7 SCC 657

and Ram Das Athawale Vs. Union of India MANU/SC/0212/2010.

13. In my view, the petitioner, without being a candidate in the election

which was admittedly due, cannot challenge the same especially when it is

not in dispute that the election was due. Only a candidate desirous of

participating in the elections and wrongfully denied such participation or a

candidate who has contested in the election and the result whereof is claimed

to be vitiated, would in my opinion in such circumstances have cause of

action to challenge the result of the election. The position may be different if

the statute or the Rules and Regulations of the body / society vest such a

right.

14. The High Court of Madhya Pradesh, in Bhushan Ramlal Kahsyap Vs.

S.D.O. MANU/MP/0496/1996, relying on Jasbhai Motibhai Desai Vs.

Roshan Kumar Haji Bashir Ahmad AIR 1976 SC 578 held that in order to

have locus standi to invoke certiorari jurisdiction, the person must be an

aggrieved person and relying on Calcutta Gas Co. Vs. State of West Bengal

AIR 1962 SC 1044 held that the right which can be enforced under Article

226 shall ordinarily be a personal or individual right of petitioner. Applying

the said principles it was held that person aggrieved must be the person who

has suffered a legal grievance, a man against whom decision has been

pronounced which has wrongfully deprived him from something. Further

applying the said principles and finding that the petitioner therein was not a

candidate in the election, it was held that the petitioner was not a person

aggrieved to maintain a petition against the order of the Election Tribunal.

15. Supreme Court in Thammanna Vs. K. Veera Reddy (1980) 4 SCC 62,

though in the context of election petition under the Representation of Peoples

Act, 1951 held that a respondent to an election petition, who neither joins

issue with the contesting party nor do anything tangible to show that he had

made a common cause with the election petitioner was not a person

aggrieved to prefer an appeal against the decision of the High Court in the

election petition. The contention that since an election petition is in the

nature of a representative action on behalf of whole body of the electors, he

had a right to appeal, was negatived.

16. The counsel for the petitioner then states that the petitioner as the

member of the outgoing Executive Committee is entitled to refuse to

handover the charge to an illegally constituted Executive Committee.

17. I am afraid the petitioner is not entitled to do so. The petitioner could

have challenged the election only if had been an aspirant thereto and not

otherwise. None can be permitted to perpetuate his / her term of elected

office by contending that the result of the next election is vitiated - without

participating in that election. If the same were to be permitted, it would vest

a right in each and every member of outgoing elected body to challenge the

election and may lead to multiple challenges indefinitely delaying the taking

over of reigns by the newly elected body. A Division Bench of the High

Court of Allahabad in Dr. P.P. Rastogi Vs. Meerut University

MANU/UP/0648/1997 also held that to permit individual members of

Committee of Management to seek review of the order in a petition filed by

the Committee of Management would create a lot of problems because any

individual member or several members may file applications at any time

resulting in confusion. Following the same, a learned Single Judge of the

High Court of Allahabad in Committee of Management, Sri Kachcha Baba

Inter College Vs. Regional Committee Pancham Mandal

MANU/UP/2165/2007 held that members of society have no right to agitate

the result of elections.

18. At this stage, some further arguments have taken place and the senior

counsel for the respondent no.1 University has also drawn attention to

paragraph 30 of S.D. Siddiqui supra where it has been held that if one wishes

to challenge an election, he has to file an election petition if that is provided

under the relevant statute or Rules, and if there is no such provision in any

statute or Rule for election petition, then one has to file a civil suit for this

purpose and not a writ petition.

19. Faced therewith the counsel for the petitioner states that the petitioner

would be satisfied with a direction to the respondent no.1 University not to

interfere in future with the affairs of respondent no.2 DUWA.

20. In this view of the matter, need is not felt to record certain other

arguments earlier made by the counsel for the petitioner or to deal therewith.

21. On being asked as to what is the interference of respondent no.1

University, the counsel for the petitioner states that on 25 th November, 2015

the wife of the acting VC of the respondent no.1 University took over as the

President of the respondent no.2 DUWA and in her capacity as President,

issued an additional agenda item for the GBM, with respect to elections

scheduled on 28th December, 2015 and which did not satisfy the requirement

of the minimum notice to be given of the election.

22. However, I find that the Memorandum of Association of the

respondent no.2 DUWA provides for the VC to be the ex officio patron of the

Association and the wife of the VC of the respondent no.1 University to be

the ex officio President of the respondent no.2 DUWA and only in the event

of the VC at the relevant time being a woman, provides for the President to

be elected from amongst the members of respondent no.2 DUWA.

23. The counsel for the petitioner states that the provision is with respect

to VC and not with respect to acting VC.

On enquiry whether in the University Ordinance and Statutes there is

any difference between powers of the VC and the acting VC while the

counsel for the petitioner is unable to answer, the counsel for the respondent

No.1 University states that there is no distinction.

24. The counsel for the petitioner then contends that the Minutes of the

GBM do not truly record what transpired at the GBM.

25. However this again amounts to entering into the arena of affairs of

respondent no.2 DUWA and qua which the counsel for the petitioner has not

pressed the writ petition in view of the judgment supra.

26. The petition is thus dismissed with liberty however to the petitioner to

avail of the suit remedy with respect to the affairs of the respondent no.2

DUWA.

No costs.

RAJIV SAHAI ENDLAW, J.

JANUARY 15, 2016 'gsr/bs'