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Rohit Paul vs Union Of India And Ors
2024 Latest Caselaw 19783 P&H

Citation : 2024 Latest Caselaw 19783 P&H
Judgement Date : 8 November, 2024

Punjab-Haryana High Court

Rohit Paul vs Union Of India And Ors on 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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