Delhi High Court

Sanadhan Swimming Club And Ors. vs Union Of India & Ors on 4 March, 2016

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 4th March, 2016.

+                                W.P.(C) 2777/2015

       SANADHAN SWIMMING CLUB AND ORS.          ..... Petitioners
                   Through: Mr. Asutosh Lohia with Ms. Soumya
                            Kumar & Mr. Sagar Chauhan, Advs.

                                    Versus

    UNION OF INDIA AND ORS.                   ..... Respondents

Through: Mr. S. Mukerjee & Mr. Avijit Singh, Advs. for R-3.

Mr. Abhiya with Mr. Abhay Singh Kushwaha, Advs. for R-4&5.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition was filed by 10 private swimming clubs of Delhi and by

their officials impleaded as petitioners no.11 to 13 claiming the relief of i)

stay of the elections to the post of office bearers of the respondent no.3

Delhi Swimming Association (DSA) schedule to be held on 22 nd March,

2015, ii) for setting aside of the fresh list of the electoral college dated 1st

March, 2015 prepared by the Returning Officer (RO) appointed of the said

election, iii) for a direction to the RO to consider favourably the nomination

filed by certain petitioners whose nominations had been rejected for no

plausible reason, and iv) seeking a direction for holding of election of the

respondent no.3 DSA by calling fresh nominations from all concerned

including the petitioner Clubs who had been omitted from the electoral

college in an allegedly illegal and arbitrary manner and as per the official list

submitted by the respondent no.3 DSA of 173 member Clubs.

2. The petition came up first before this Court on 19th March, 2015 when

the application of the petitioners for interim relief seeking stay of the

election was dismissed with the observations "However, it is clarified that

the outcome of the election shall be subject to the further orders that may be

passed in this petition" and notice of the petition was issued.

3. Counter affidavits have been filed by respondent no.3 DSA and

respondents no.4&5 being the Swimming Federation of India (SFI) and the

Ad-hoc Committee in management of respondent no.3 DSA.

4. The petition came up for hearing on 21st July, 2015 when the

following order was passed:

"1. After some hearing the counsel for the petitioners seeks time to satisfy this Court as to how the dispute raised in this petition is not an election dispute and if it is an election dispute then the fora before which the same is to be adjudicated.

2. Pleadings if any remaining by the respondents, be completed before the next date.

3. List on 3rd August, 2015."

5. Thereafter the petition was adjourned from time to time. Hence,

today when the matter came up, the same query has been put to the counsel

for the petitioners, who has been heard. The need to call upon the counsels

for the respondents has not arisen.

6. What emerges is i) that the election of office bearers of the respondent

no.3 DSA, a Society registered under the Societies Registration Act, 1860,

as per its Rules and Regulations are to be held every four years and were

held last on 22nd March, 2011; ii) that the SFI being the National Sports

Federation (NSF) for the sport of swimming, in or about the year 2014 i.e.

even prior to the expiry of the term of the office bearers of the respondent

no.3 (DSA) removed the office bearers elected on 22nd March, 2011 from

the management of respondent no.3 DSA and appointed an Ad-hoc

Committee i.e. respondent no.5 for management of the affairs of respondent

no.3 DSA; iii) W.P.(C) No.3652/2014 was filed by the respondent no.3 DSA

in this regard and when the same was being heard on 29 th October, 2014, all

the counsels agreed / consented to hold fresh elections for all the post of

office bearers and members of the Managing Committee of respondent no.3

DSA in accordance with its Bye-laws / Memorandum / Rules as also the

Model Elections Guideline of National Sports Development Code of India

2011 of Ministry of Sports, Government of India (Sports Code); Justice

(Retd.) Reva Khetrapal was appointed as RO for holding of the election with

the assistance of the Ad-hoc Committee aforesaid and it was further directed

that "complaints / objections, if any, of the member units of DSA for

determining its electoral college be also resolved by the Returning Officer

(RO) after the publication of electoral college and before calling for the

nominations"; the entire electoral process was ordered to be completed

within three months; iv) it is the case of the petitioners that the RO so

appointed published a list of electoral college for the elections and in which

list the names of the petitioners no.1 to 10 Clubs found mention; v) that

some of the petitioners also filed nominations for contesting the posts of

office bearers of the respondent no.3 DSA; however thereafter all of a

sudden a fresh list of electoral college was drawn up and from which the

names of the petitioners no.1 to 10 Clubs were deleted and resultantly the

nominations filed by some of the petitioners also rejected; vi) that though the

petitioners represented to the RO but the RO did not pass any order and

which led to the filing of this petition.

7. I have at the outset enquired from the counsel for the petitioners that

the petitioners having been unsuccessful in obtaining the interim stay of

holding of the election and now that the election has been held and the office

bearers have been elected, whether not even if merit was to be found in the

contentions of the petitioners, the only relief which can be granted is of

setting aside of the result of the election so held on 22nd March, 2015 and

whether all the office bearers who have been elected and whose election

would thereby stand set aside are parties to the present petition.

8. The counsel for the petitioners though replies in the affirmative to the

first part of the question but with respect to the second part states that since

DSA of which all the elected office bearers are now in management of is

before this Court, there is no need for their impleadment individually.

9. I have further enquired from the counsel for the petitioners whether

not, in the absence of any provision for resolution of election disputes in the

Rules and Regulations of respondent no.3 DSA, the only manner in which

an election can be set aside, as held by the Division Bench of this Court in

S.D. Siddiqui Vs. University of Delhi 2006 (3) AD (Delhi) 290 relating to

the challenge to the elections of Delhi University Teachers Associations, is

by filing a civil suit for that purpose and not a writ petition.

10. The counsel for the petitioners states that since the grievance of the

petitioners is with respect to the RO appointed by this Court in W.P.(C)

No.3652/2015 and since this Court while issuing notice of the petition and

denying interim relief has observed / held that the outcome of the election

shall be subject to further orders in the writ petition, this petition would be

maintainable. Reliance is placed on (i) Kanglu Baula Kotwal Vs. Chief

Executive Officer AIR 1955 Nagpur 49 (FB) laying down in relation to an

election dispute that the availability of the alternative remedy is not a bar to

the maintainability of a petition under Article 226 of the Constitution of

India; (ii) Bar Council of Delhi Vs. Surjeet Singh AIR 1980 SC 1612

approving the dicta aforesaid of the Full Bench of the Nagpur High Court

and laying down that the view expressed by some of the High Courts that the

petition would be maintainable in spite of there being an alternative remedy

being available because the whole election has been challenged cannot be

accepted as a right proposition and only if the nature and the ground of the

challenge of the whole election are such that the alternative remedy is no

remedy in the eye of law to cover the challenge or, in any event, is not an

adequate and efficacious remedy, then a writ petition be maintainable; (iii)

K. Venkatachalam Vs. A. Swamickan 1999 (2) SCR 857 but the reliance

whereon the counsel for the petitioner could not justify; and (iv) K.G.

Khanna Vs. Prakash Chand AIR 1959 HP 20 referring to Lekh Raj Vs.

Cantonment Board, Jullunder Cantt. AIR 1958 Punjab 356 laying down

that the powers of the High Court under Article 226 of the Constitution of

India are untrammelled by law providing for a mode of challenge to an

election.

11. Finding that the order in W.P.(C) No.3652/2014 vide which the RO,

with respect to whose actions grievance is made in this petition, was

appointed, did not dispose of that petition, the final outcome of that writ

petition has been enquired.

12. In this regard, it may be noticed that the counsel for the respondent

no.3 DSA had interjected to say that the petitioners did not object to the

report filed by the RO in that writ petition.

13. Though the order disposing of that writ petition is not available but

the counsel for the petitioners in response to the interjection has invited

attention to the order dated 19th January, 2015 in that writ petition

dismissing an application under Order I Rule 10 of the CPC filed by one

Kamal Kishore, Secretary of respondent no.3 DSA for impleadment in that

petition observing that grievance with respect to the election were to be

addressed by the RO appointed by the Court.

14. I am of the view that the present petition is not maintainable for the

following reasons:

(A) The petition, as it stands, does not contain the relief of setting

aside of the election and which relief is now claimed.

(B) Merely because this Court, while dismissing the application for

interim relief of staying of holding of the elections, observed

that the outcome of the election shall be subject to further

orders that may be made in this petition would not entitle the

petitioners to a relief which the petitioners are not entitled to in

the petition. In this regard, it may be noticed that the

petitioners neither thereafter nor after the query was first raised

on 21st July, 2015 chose to amend this petition to seek the relief

of setting aside of the election.

(C) Even if it were to be held that the relief can be modified by the

Court, the relief of setting aside of the election cannot be

granted in the absence of the person(s) whose election is being

set aside. Merely because that person(s) is presently in the

Management of the DSA and which is a party hereto would not

suffice. A challenge to the election has to be made by

impleading the person whose election is sought to be set aside

in his / her individual capacity and not by impleading the body /

entity to office whereof he / she has been elected. DSA is a

juristic person and a corporation sole and a distinct legal entity

from the persons in management thereof.

(D) The RO for holding the election appointed by this Court was in

the nature of a Court Commissioner and any objection to the

actions of the said Commissioner could have been filed only in

the proceeding in which the Court Commissioner was

appointed and if at all permitted to be raised by an independent

proceeding, by an appropriate proceeding in law. Merely

because the RO was appointed vide order in a writ petition

would not entitle challenge to actions of RO by way of a writ

petition, if otherwise in law the same is required to be made by

way of a suit.

(E) Though the counsel for the petitioners took it as given and a

fundamental fact that the electoral college once drawn up could

not have been changed but upon being asked to show the basis

on which it is so assumed drew attention to page 166 of the

Sports Code, being the Model Election Guidelines to be

followed by all NSFs. However upon being asked whether the

respondent no.3 DSA is a NSF, it is admitted that it is not and

that SFI is the NSF. Upon it being further asked that how

would the Model Election Guidelines to be followed by NSFs,

apply to the election to the respondent no.3 DSA which is a

constituent of NSF, the counsel for the petitioners states that

since the order dated 29th October, 2014 in W.P.(C)

No.3652/2014 records the consent of the parties therein for

holding of the elections in accordance with the Model Election

Guidelines of Sports Code, accordingly, the said order dated

29th October, 2014 in W.P.(C) No.3652/2014 makes the Model

Election Guidelines applicable also to constituent of NSF. The

said argument, in my opinion, is totally misconceived. Merely

because the parties then agreed to holding of election besides in

accordance with Bye-laws, Memorandum and Rules of

respondent no.3 DSA as also as per the Model Election

Guidelines of the Sports Code, would not make the provisions

of Sports Code which are not applicable to a constituent of

NSF, applicable to a constituent of NSF. Only that part of the

Model Election Guidelines of Sports Code which as per the

terms of the Code are applicable to a constituent of NSF, are to

be made applicable. The counsel for the petitioners has not

been able to show any provision of the Model Election

Guidelines of Sports Code applicable to constituents of NSF, as

the respondent no.3 DSA is, and which has been violated.

(F) This Bench at least is bound by the dicta aforesaid of the

Division Bench of this Court in S.D. Siddiqui supra and which

has been followed by the undersigned in Sunita Arora Vs.

Delhi University MANU/DE/0119/2016.

(G) The counsel for the petitioners on enquiry, subject to

verification, states that 10 petitioner clubs were ordinary

members of the respondent no.3 DSA. A perusal of the Rules

and Regulations of the respondent no.3 DSA shows that only

those Clubs which had taken active part in at least two

consecutive years in swimming championships organised by the

respondent no.3 DSA are entitled to be made the ordinary

members of the Club. It is the contention of the counsel for the

respondent no.3 DSA that all the petitioners were enrolled as

member surreptitiously on 27th February, 2014, with effect from

6th September, 2013 and it is for this reason only were issued

Membership Certificates on a letterhead different from the

letterhead of the respondent no.3 DSA by the then Secretary Sh.

Kamal Kishore of the respondent no.3 DSA. The said fact is

denied by the counsel for the petitioners. It may however be

mentioned that counsel for Sh. Kamal Kishore, though not a

party to this petition, has been actively assisting the counsel for

the petitioners herein.

(H) I may in this regard notice that two replies / counter affidavits

have been filed on behalf of the respondent No.3 DSA to this

petition. One reply is dated 21st April, 2015 and is supported by

the affidavit of one Sh. Bhanu Sachdeva who has described

himself as Ex-Treasurer of the respondent No.3 DSA. The said

counter affidavit supports the petitioners and in the prayer

paragraph seeks that the petition be allowed.

(I) The other counter affidavit dated 17th July, 2015 has been filed

by Sh. Ram Rattan Singh Tokas elected in the election held on

22nd March, 2015. The said counter affidavit seeks dismissal of

the petition pleading (i) that the RO appointed had submitted a

report running into 225 pages before this Court in W.P.(C)

No.3652/2014 supra and copies of the said report were made

available to all concerned and none assailed the said report

which thus became final; (ii) that the RO in the said report has

reported

(a) that on the date of the last election held on 27th March,

2011, the total affiliated clubs / units of the respondent No.3

DSA were 133 in number and of which 54 units were with

voting rights and 79 units were without voting rights because

they had not fulfilled the eligibility criteria of having minimum

one year old affiliation as on the date of preparation of the

electoral roll, as prescribed in Clause 3(D) of the constitution of

DSA;

(b) that the new affiliations beyond 133 were under a serious

cloud and in fact no affiliation in the eyes of law;

(c) that in September-October, 2013 or thereabout, serious

differences arose between the then President of DSA on the one

hand and the Secretary on the other hand;

(d) that till then also there were only 133 members of DSA;

(e) that however subsequently, the membership of DSA was

inflated to 173 and then to 197 or 198;

(f) that no General Body Meeting of DSA had taken place to

discuss the affiliation of these new units i.e. the units beyond

133 units;

(g) that as a consequence of the inter se disputes, all powers

of Sh. Kamal Kishore, General Secretary of DSA stood

withdrawn by the Managing Committee on 29th December,

2013 and subsequently in the General Body Meeting held on

15th March, 2014, he and the Treasurer were removed from

their respective posts;

(h) that the affiliation granted by Sh. Kamal Kishore, as

General Secretary, under his signatures on 27th February, 2014

i.e. after his powers had been withdrawn were invalid;

(iii) that though Sh. Kamal Kishore had earlier filed W.P.(C)

No.3652/2014 on behalf of DSA but no relief was obtained by

him in relation to the affiliation so made by him; (iv) that the

petitioners also did not claim any relief in those proceedings in

relation to their alleged affiliation carried out on 27 th February,

2014, though were fully aware thereof; (v) that in these

circumstances, the RO after scrutiny, confined the electoral

college to the 133 members only.

(J) While correcting the orders, I had also perused on the website

of this Court for the orders in W.P.(C) No.3652/2014. The

order dated 22nd April, 2015 therein records that the elections as

directed had been concluded and a new Executive Committee

was in position and disposes of the writ petition with a direction

to the previous Executive Committee to hand over the records

to the new Executive Committee. Thereafter, CM

No.7804/2015 is found to have been filed complaining of the

records having not been handed over. The said application

came up before this Court on 1st May, 2015. The subsequent

order dated 25th May, 2015 records that the earlier Executive

Committee had handed over the records to the new Executive

Committee and accordingly the said application also was

disposed of.

(K) I am of the view that if at all, it is open to the petitioners to

challenge the election on the ground of having been deprived of

their right to vote therein and / or on the ground of their

nominations having been illegally rejected, the said

adjudication would entail disputed questions of facts which

cannot be adjudicated by way of a writ petition and which have

to be necessarily adjudicated by way of a suit which has

otherwise also been held to be an appropriate remedy for

challenging an election and / or for seeking setting aside of an

election, when the rules relating to holding of the election do

not provide for a mechanism for settling the disputes with

respect thereto.

(L) As far as the judgments cited by the counsel for the petitioners

are concerned, the Full Bench of the Nagpur High Court in

Kanglu Baula Kotwal supra also though held that the High

Court would not ordinarily interfere under Article 226, where

another remedy which is equally convenient is open to the

petitioner but proceeded to hold that the existence of another

remedy is not in every case a bar to exercise of the powers

under Article 226 and the Court can interfere, if the

circumstances of the case demand interference. In that case, the

Court proceeded to interfere in exercise of powers under Article

226, finding that the point which had been raised was of a

fundamental character, affecting a large number of election

disputes and had already been subject matter of adjudication on

two previous occasions and on which two different views were

taken. It is not so here. The dispute raised by the petitioners is

personal to themselves, as to their membership and adjudication

whereof entails adjudication of, whether the membership

claimed by the petitioners of DSA was granted in accordance

with the constitution of DSA. It cannot be said that the said

disputes are of a fundamental character or likely to arise again

and again or even if arises again and again, any legal question is

required to be adjudicated. In each case, it will have to be

decided, whether the person claiming membership was validly

admitted as a member or not. Similarly, reliance on Bar

Council of Delhi supra is misconceived. The challenge therein

was to the Proviso to Rule 3(j) of the Bar Council of Delhi

Election Rules, 1968. The vires of the Rule could certainly be

gone into in a writ petition and owing to the electoral roll

having been prepared on the basis of such Rule, which was held

to be ultra vires and invalid, the challenge to the election was

also entertained. The counsel for the petitioners certainly

cannot match the facts of his case to the said judgment. In K.G.

Khanna supra also, the election was to the Municipal

Committee, Solan and the petition was entertained because

there was an admission of the electoral roll being defective and

as many as 362 persons who were not qualified to vote having

been permitted to vote. Certainly, there is no admission on the

part of the respondent No.3 DSA in the present case, of the

petitioners, inspite of being members having been deprived of

their rights to vote. Thus, all the judgments cited are without

regard to the riders, subject to which petitions were entertained

in their respective facts and do not come to the rescue of the

petitioners.