Citation : 2024 Latest Caselaw 19783 P&H
Judgement Date : 8 November, 2024
Neutral Citation No:=2024:PHHC:145628
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
110
CWP-24721-2024 (O&M)
Date of decision: 08.11.2024
Rohit Paul ...Petitioner
VERSUS
Union of India and others ...Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Present :- Mr. Amit Dhawan, Advocate for the petitioner.
Mr. Sudhir Nar, Sr. Panel Counsel for respondent No.1-UOI.
*****
VINOD S. BHARDWAJ, J. (Oral)
CM-16958-CWP-2024
Application is allowed as prayed for subject to all just
exceptions. Annexures P-12 to P-19 are taken on record.
Registry is directed to tag the same at an appropriate place with
its paging.
Main case:
1. Challenge in the present petition is to the election of Diocese of
Chandigarh-Church of North India, CNI Mission Compound, Brown Road,
Ludhiana, stated to have been held on 23rd and 24th August, 2024 at Avalon
Girls Senior Secondary School, Pathankot, on the allegations that the same
was illegal, arbitrary and in violation of the settled provisions of law. A
further prayer is made for issuance of directions to respondent No.6 i.e.
Diocesan Council, Diocese of Chandigarh, not to take any policy decision
until adjudication of the present writ petition. Further direction is also sought
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against respondents No.1 to 5 to conduct a fresh, fair and impartial elections
of the Diocesan Council of Diocese of Chandigarh under the supervision of
respondents No.1 to 3.
2. Summarized factually, the petitioner claims himself to be an ex-
serviceman, who had retired in March-2007 from the post of Sergeant in the
Indian Air Force and a practicing Christian by religion. He further claims to
be involved in the welfare activities for betterment of the followers of
Christianity. He also claims to have served as a Treasurer of CNI Church,
Dhariwal, District Gurdaspur and as Secretary of Church, CNI, Kharar from
2022 onwards. It is averred that on 30.08.2023, the Synod of the Church of
North India i.e. respondent No.4 issued a letter whereby an Adhoc
Committee of Diocese of Chandigarh was formed. It was informed through
the said letter-communication that by a unanimous resolution, the Diocesan
Council of Diocese of Chandigarh had been dissolved with immediate effect
and that a new Adhoc Committee was formed by the Moderator, CNI,
Synod. Respondent No.7-Amit Prakash was appointed as Secretary of the
said Adhoc Committee. Another letter dated 19.04.2024 was later issued by
the Diocese of Chandigarh conveying that its Adhoc Committee had
resolved to hold the 20th Ordinary Diocesan Council Meeting of Diocese of
Chandigarh, CNI. The agenda for the said meeting was circulated vide letter
dated 07.08.2024, informing about the venue of the meeting to be held at
Avalon Girls Senior Secondary School, Pathankot, on the 23rd & 24th August
2024. It is claimed that the said communication did not mention about any
agenda of the meeting pertaining to the election of Chandigarh Diocesan
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Council to be held. It was orally informed in the above said meeting of the
Ordinary Diocesan Council that the election was also to be held. The
petitioner sent a letter dated 20.08.2024 to the Moderator's Episcopal
Commissary, Diocese of Chandigarh requesting to ensure security of
delegates of different pastorates attending the Council from 23rd August till
24th August, 2024, apprehending possibility of disruption of the smooth
functioning of Council by some mischievous persons. The petitioner also
participated in the said election process and submitted his nomination before
the nomination committee.
3. In the 20th Ordinary Diocesan Council Meeting of Diocese of
Chandigarh, CNI held at Avalon Girls Senior Secondary School, Pathankot
on 23rd & 24th August 2024, the Adhoc Executive Committee of the Diocese
of Chandigarh is alleged to have acted in an unfair manner while holding the
elections and it was alleged that there were various irregularities and
illegalities committed in the voting procedure. The petitioner thus failed to
get elected in the said meeting. It is also averred that the election result was
not declared by respondent No.4- the Synod of the Church of North India on
the same date allegedly, for malicious reasons and to ensure that the persons
close to the members of the Adhoc Executive Committee assume control of
the Council.
4. An application dated 10.09.2024 was claimed to have been
submitted by the petitioner to Diocese of Chandigarh for supplying the
election result of 20th Ordinary Meeting of Chandigarh Diocesan Council of
the Church of North India by specifically stating that the petitioner had
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contested for being elected in the said meeting. Despite the representation
having been submitted for being supplied with the election results, the same
have not been forwarded to the petitioner. Alleging that the election had not
been held in a fair and proper manner and that the communication sent by
the petitioner was not being responded indecisively and coupled with failure
to circulate an advance agenda, the petitioner has approached this Court by
way of a writ petition.
5. The principal grounds/allegations of irregularities that have
been set out in the present petition can be crystallized as under:-.
(i) The election had been conducted by the Adhoc Executive
Committee through its Secretary-respondent No.7 even
though he was not competent to be the Secretary of the
Adhoc Executive Committee having been debarred by
the Diocese of Chandigarh-Church of North India for a
period of 06 years on 09.02.2021;
(ii) The result of the election held has been alleged to be
illegal and liable to be quashed since respondent No.7-
Secretary had been debarred from participating in
governance of Church and that the election had been held
under his aegis, being the Secretary of the Adhoc
Executive Committee of the Diocese of Chandigarh;
(iii) Certain objections were raised by members of the Council
against involvement of respondent No.7 in the process of
conducting 20th Ordinary Diocesan Council Meeting of
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Diocese of Chandigarh, CNI, which were not considered
and were brushed aside;
(iv) The Agenda of 20th Ordinary Diocesan Council Meeting
of Diocese of Chandigarh, CNI did not mention about
holding of the election in the said meeting and that the
said fact had been conveyed only orally;
(v) That the voting was not got conducted in a fair manner as
there was no provision for a secret ballot;
(vi) Cultural programs were being conducted at the place of
voting and thus the sanctity of election process could not
be maintained;
(vii) The voting was conducted during late night of 23.08.2024
as well as in the early morning of 24.08.2024 causing
hardship to the women and elderly participants;
(viii) Five ballot papers were found missing during the
counting process although the same were placed in a box
in the presence of witnesses and as such the counting
process was allegedly in violation of the prescribed
procedure;
(ix) The electoral list issued by respondent No.5 had not been
supplied to the petitioner and as such, the election
process had been conducted in an undemocratic manner;
(x) One Sunil, a former Principal of St. Thomas School,
Dhariwal, District Gurdaspur cast his vote despite the
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fact that the said school had been closed by the
authorities;
(xi) No numbering is stated to have been made on the counter
foils while issuing ballots that were infact printed at the
spot using a computer and there was no recording done
by the Secretary or Observer appointed during the
election process;
(xii) That the persons elected were closely associated to the
members of the Adhoc Executive Committee and that a
farce democratic process of election had been undertaken
to wrestle control of the Diocese Council and to hand
over the said management to the favoured individuals.
6. The matter came up for hearing before this Court on 25.09.2024
when it was adjourned to 30.09.2024. On the said date of hearing, a specific
query was put to the learned counsel for the petitioner as regards the
maintainability of the present writ petition considering that the issues
espoused before this Court were in relation to the election to the governing
body of a religious organization which would not fall within the definition of
an agency and instrumentality of the State and thus, would fail to satisfy the
test prescribed under Article 12 of the Constitution of India. Learned
counsel for the petitioner had sought time to search case law and to assist
this Court. The matter was thereafter adjourned to 16.10.2024 when further
time was granted to the petitioner to search case law and to assist this Court
and the matter was fixed for today.
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7. Learned counsel for the petitioner has reiterated the alleged
shortcomings extracted above and has contended that the entire election
process was illegal, un-democratic and was undertaken with a malicious
intent to elect a specific group of people, who were under the patronage of
respondent No.5 i.e. Diocese of Chandigarh-Church of North India, CNI
Mission Compound, Brown Road, Ludhiana. Reliance was placed on a Full
Bench Judgment of Madras High Court in the matter of D. Bright Joseph
Vs. Church of South India (CSI) Synod Secretariat, Chennai and
others, reported as 2024 (1) LW 930 to contend that a writ petition invoking
jurisdiction of High Court under Article 226 of the Constitution of India lies
against the Church of South India which is also a private body, hence the
present petition would be maintainable. The operative part of the same reads
thus:-
"23. From the conspectus of the above principles and
judgments which describe a public duty, it is amply evident
that the respondent apart from its ecclesiastical functions, is
running and managing various schools, colleges and
hospitals. The respondent is definitely discharging the public
function and if any action taken by them which is detrimental
to the discharge of this duty, a writ petition would definitely be
maintainable. Unlike, Article 32 of the Constitution of India
any person even if he is not a person aggrieved can invoke the
jurisdiction of this Court under Article 226 of the Constitution
of India. The petitioner is aggrieved by the fact that
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respondents 1 and 2, by manipulating the electoral process
are nominating persons of questionable character, especially
against whom criminal proceedings have been directed.
Further, an amendment to increase the age of
superannuation has been put in place to ensure that the
persons now in management can continue for a further period
unopposed. The activities of such persons would seriously
impair the standards of education as also the institutions.
Therefore, taking note of the fact that it is these persons who
constitute the educational agency, the writ petition is
maintainable."
8. He contends that the above said Full Bench judgment of the
Madras High Court thus conclusively rules that a private body including
Church are amenable to a writ jurisdiction.
9. No other argument has been raised and no other judgment has
been cited by the learned counsel for the petitioner before this Court.
10. I have heard the learned counsel appearing on behalf of the
petitioner and have gone through the documents available on record and
have also gone through the judgment cited by him.
11. Before proceeding further into the matter, a writ petition is
maintainable against a State or its agencies and instrumentality. A private
body may also be subjected to a writ jurisdiction if it performs any public
duty or discharges a public function.
12. A Public duty can be understood to be imposing obligation on
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an individual that serves the public interest or is for the benefit of the public
at large. The entity thus performs a task mandated by law or delegated by a
Government authority and involves ensuring compliance of legal
obligations, public rights or necessary services.
13. Similarly, a public function relates to the activity that is
essential for public welfare and governance. Such function may be
traditionally performed by the governments but could also be delegated to
private entities and is accountable to public law due to its impact on public
rights or services.
14. Since, the governing body of the religious organisation is not
claimed to be receiving any grant-in-aid from the Government nor the State
exercises any deep and pervasive financial, managerial or supervisory
control, hence, the only test which is left is to determine any public function
or public duty and as to how such public function gets prejudiced or gravely
impacted due to the outcome of election results.
15. The finer nuances of the issue were discussed in a Five Judges
Bench of this Court in the matter of Ravneet Kaur Vs. The Christian
Medical College, Ludhiana reported as 1997 (3) SCT 210. The dispute in
the case pertained to admission in the medical college and an objection
pertaining to the maintainability of writ petition was raised. While dealing
with the issue, this Court held as under:-
"41. It is, thus, clear that the old and the conservative view
regarding the maintainability of writs against the State or its
instrumentalities is giving way to ''a liberal meaning.'' The
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power under Article 226 is no longer confined to the issue of
writs against statutory authorities and instrumentalities of the
State. It covers ''any other person or body performing public
duty.'' Medical Colleges are supplementing the effort of the
State. These cannot survive or subsist without recognitions
and/or affiliation. The bodies which grant recognition are
required to ensure that the institution complies with Article 14
of the Constitution. These decisions represent a quantum jump
from 'the tests' in Ajay Hasia v. Khalid Mujib, AIR 1981
Supreme Court 487 to a liberal meaning to the term 'authority'
in Article 226.
42. A private educational institution receiving aid from State
funds may not be a 'State' as defined in Article 12. Yet, Article
29(2) confers a fundamental right on all citizens not to be
discriminated against in the matter of admission to such an
institution on grounds only of religion, caste, language or any
of them. If a citizen is denied admission by such an institution
on any of the grounds specified in Article 29(2), can it be said
that the aggrieved person cannot seek a writ for the
enforcement of his rights either under Article 32 or 226 on the
ground that it happens to be a private educational institution ?
Certainly not.
43. In view of these conclusions, the view taken by the Full
Bench in Gurpreet Singh's case (supra) wherein it was held that
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''against these institutions, no general fundamental right of
equality of admission on merits can even be evoked....'' is no
longer good law. A citizen can invoke the right to equality in
the matter of admission on merit even against a private medical
college affiliated to a University. This right ''without a remedy
will become a mere adornment.... as writ in water.'' It is not so.
xxxx
50. The above observations clearly show that the issue of
'prerogative writs' is not limited to the authorities having a duty
to act judicially. It can issue when there is an error of law or a
failure to act fairly towards the person who is adversely
affected by the order. Equally, a writ of certiorari can issue
when there is violation of the principles of natural justice.
xxxx
53. In view of the above, it is no longer necessary that an
authority must be under a duty to act judicially before its
actions may be corrected by the issue of a writ of certiorari. Is
the authority required to act fairly Yes. Writ of certiorari can
issue.
xxxx
59. In view of the above, we hold that :-
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(i) Powers of High Courts under Articles 226 of the
Constitution are wider than those of the court of King's
Bench in England.
(ii) The power of the High Courts is not confined to the issue
of prerogative writs as initially understood in England.
The procedural restrictions which had been imposed on
the Courts in England do not bind the High Courts in this
country. The High Courts are empowered to issue not
only writs in the nature of certiorari, mandamus etc. but
also orders and directions to enforce fundamental rights
or for any other purpose.
(iii) The power under Article 226 of the Constitution is not
confined to the enforcement of fundamental rights like
the power under Article 32. Still further, the High Courts
can issue writs, orders or directions even to any person
or authority discharging a public duty for enforcement of
the fundamental rights or for any other purpose.
(iv) The words ''any person or authority'' used in Article 226
do not mean only State as defined in Article 12 or
statutory authorities. These cover any person or body
performing a public duty.
(v) In view of the importance of 'health' to the community,
institutions providing medical education form a distinct
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class. These institutions perform a public duty and
supplement the State's effort. By their affiliation to a
University or any other statutory examining body, they
become partners with the State. They are, thus, subject to
the restrictions contained in Part III. They are bound to
act in conformity with the provisions of the Indian
Medical Council Act, 1956 and the rules/regulations
framed by the appropriate University/body. Whenever
they act unfairly, arbitrarily or violate the prohibitions
contained in part III of the Constitution or the rules and
regulations framed by the University etc., their actions
can be corrected by issue of a writ of certiorari or any
other appropriate writ, direction or order. Similarly, if it
is found that an institution has failed to carry out an
obligation under the Constitution or the rules/regulations
framed by an appropriate body, it can be compelled to
perform its duty by the issue of a writ of mandamus. This
principle shall, however, not be attracted in case of every
private school or college.
(vi) The Full Bench decisions of this Court in Pritam Singh
v. State of Punjab and others, 1982(84) PLR 530 and
Gurpreet Singh Sidhu v. The Punjab University,
Chandigarh and others, 1983(85) PLR 46 (F.B.) do not
contain a correct enunciation of law and are overrulled."
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16. Since healthcare and education were held to be public
functions, hence, the writ jurisdiction was held to be extended to the same.
17. As against the same, in the facts of the present case following
essential aspects arise:-
a. There are no details about any public function being
discharged by the religious body i.e. number of
institutions run, students admitted etc.
b. There is nothing on record as to how the inter se control
and relationship amongst the church and the institute, if
any, operate.
c. There is also nothing to show as to who are the persons
elected and what is their connection to the running of the
institution and as to how their being elected would
impact functioning of the institution.
18. In the absence thereof, the writ jurisdiction would not be an
appropriate remedy merely because of some remote and non-proximate
cascading effect being suggested or alleged by a litigant.
19. Internal affairs of a religious organisation is not a public
function discharged by the government and it does not amount to any public
service as well. On examination of the dispute, it is purely an election
dispute raised on various allegations by a candidate who failed to succeed in
the electoral battle.
20. I further find that the reliance placed by the learned counsel for
the petitioner on the judgment of the Full Bench of Madras High Court is
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misconceived and is based upon an incorrect reading and interpretation of
law canvassed in the said judgment. It is apparent from a perusal of the said
judgment that conspectus of the principles and judgments rendering a private
institution amenable to a writ jurisdiction is borne out from the nature of
function being discharged, which has to be primarily in the form of a "public
duty". Under the circumstances, where the function being discharged may
also be categorized as a public function, such private individual may also be
made amenable to a writ jurisdiction. These exceptions, enlarging the scope
of the writ jurisdiction have been made to ensure that the rights of general
public are not truncated or violated when a public function or a public duty
is being performed by an individual. Public duty has been defined by this
Court in its judgment in CWP-7599-2020 titled as 'Gursharan Singh vs
State of Punjab and others'. The relevant paragraph of the judgment is
extracted hereunder:
"...While a public function is an activity where one performs
and acts for and on behalf of State or its Institutions, public
duty is a duty which the State, public or any community at large
may owe to anyone else, the obligation which any entity owes to
the public whether or not statutory or otherwise, would still
have fallings of a subjugation under the writ jurisdiction,
however, where both the said aspects are missing, their
function becomes a purely private function propelled by profit
orientation...."
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21. For the purposes of understanding the cardinal principles
beyond public duty, the Hohfeldian principles of jurisprudence must be kept
in mind. A public duty entails a corresponding enforceable public right. In
the absence of corresponding public right, an election of a Diocese Church
cannot be held to be a function which may be labelled as being in the nature
of "Public Duty" or a "Public Function". Relevant extract of the judgment
passed by this Court Gursharan Singh (supra) is extracted as under: -
"Existence of a 'public duty' and the functions being a 'pubic
function' is thus a parameter which is required to be
ascertained and satisfied before a writ jurisdiction can be
issued. Such public duties may be statutory or non-statutory
and that failure to perform such duties is an act required to be
ascertained. Thus, where any private party has acted in a
manner which may be illegal and/or which may prejudice the
right of any other person, a writ jurisdiction would not
ordinarily be the remedy available."
22. The cardinal activity which renders institutions/body amenable
to jurisdiction must fulfill the test of being a public duty or public function.
Any indirect remote link by way of a cascading effect on a public function
cannot bring the parent body amenable to a writ jurisdiction for its own
independent acts. I am further strengthened in my aforesaid view by the
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judgment of the Hon'ble Supreme Court in St. Mary's Education Society v.
Rajendra Prasad Bhargava, (2023) 4 SCC 498. The relevant part of the
judgment is extracted hereunder:
"75.1. An application under Article 226 of the Constitution is
maintainable against a person or a body discharging public
duties or public functions. The public duty cast may be either
statutory or otherwise and where it is otherwise, the body or
the person must be shown to owe that duty or obligation to the
public involving the public law element. Similarly, for
ascertaining the discharge of public function, it must be
established that the body or the person was seeking to achieve
the same for the collective benefit of the public or a section of
it and the authority to do so must be accepted by the public.
75.2. Even if it be assumed that an educational institution is
imparting public duty, the act complained of must have a
direct nexus with the discharge of public duty. It is
indisputably a public law action which confers a right upon
the aggrieved to invoke the extraordinary writ jurisdiction
under Article 226 for a prerogative writ. Individual wrongs or
breach of mutual contracts without having any public element
as its integral part cannot be rectified through a writ petition
under Article 226. Wherever Courts have intervened in their
exercise of jurisdiction under Article 226, either the service
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conditions were regulated by the statutory provisions or the
employer had the status of "State" within the expansive
definition under Article 12 or it was found that the action
complained of has public law element.
(emphasis supplied)"
23. When the Madras High Court was dealing with the aspect of
subjecting the Church of South India to writ jurisdiction, it had noticed that a
total of 2300 Schools, 150 Colleges and 104 Hospitals in India were being
run by the said institution and taking into consideration the large public
functions and public duties being performed by the institution, the dispute
which pertained to the management of the educational institutions and
associations was examined. It was stated that the private respondents therein
were attempting to supersede the electoral bodies of the Diocese to change
the composition of the electoral college and by favouring the same in a bid
to take over the educational institutions.
24. In a stark contrast to the facts noticed by that Court and the
overwhelming number of the functions being discharged, there is no such
averment, allegation or suggestion established in the present petition.
25. The grounds of challenge are in fact largely centered around the
appointment of respondent No.7 as the Secretary of the Adhoc Executive
Committee and claiming that the said person could not have been involved
in the process of election or with the affairs of the Council since he had been
debarred from participating in the affairs for a period of 06 years of Diocese
Church. The other allegations levelled are in relation to the voting that had
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continued not only on 23.08.2024 but also in the earlier hours of 24.08.2024
and coupled with the allegations of certain missing votes as well as the
election not being held through secret ballot.
26. All the abovesaid aspects are at best a ground of challenge to
the election on merit since the allegations are yet to be established. The
petitioner has not even made a reference to the governing statute. Hence, the
suggested procedure cannot be ascertained by referring to any law. It is also
not discernible as to what procedural part was mandatory and what was
directory.
27. Further it is also seen by this Court that the petitioner never
raised any challenge to the process of election at any time prior to the
conduct of election even though election was held nearly one year after the
appointment of the Adhoc Committee. The challenge to the process has now
been raised only after he had participated in the election process and lost in
the same. Hence, so far as the objection to the election being held by the
Adhoc Executive Committee, which also comprised of respondent No.7 in
violation of any law, such a decision or communication was never
challenged by the petitioner at the first instance rather, he preferred to
participate in the election process only to be aggrieved later when the results
were not favourable.
28. Insofar as the allegation of the petitioner about the people
having not been informed about the agenda of the 20th Ordinary Diocesan
Council Meeting of Diocese of Chandigarh, CNI is concerned, the petitioner
cannot claim that he is in any manner aggrieved since he was aware about
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the same and also participated in the election process. He has not referred to
any enforceable bye-laws on the touch-stone whereof the procedure could be
tested. No person of the electoral college or a member, who was competent
to cast his vote, has approached this Court about having not been apprised of
the same.
29. The disputes raised herein, in relation to the election process,
are disputed questions of fact that cannot be gone into by a writ Court.
30. A specific question was also posed to the learned Counsel for
the petitioner as to whether respondent No.5 is a registered body and if so,
under what Act the said body is registered, he is not able to respond the
same as well.
31. Hence, on a first brush, the challenge is primarily is in the
nature of an election petition that has been brought up by the petitioner being
dissatisfied with the final results.
32. The counsel for the petitioner has failed to draw the parallel
equating election of the Diocese Council to be a public function or public
duty. Hence, reliance on the Full Bench of Madras High Court does not
come to the rescue of the petitioner.
33. Considering it from any angle, the present writ petition is liable
to be dismissed in limine.
34. Ordered accordingly.
(VINOD S. BHARDWAJ)
08.11.2024 JUDGE
Mangal Singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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