Dr.K.Ashok Reddy vs The State Of Telangana
2024 Latest Caselaw 4160 Tel

Telangana High Court

Dr.K.Ashok Reddy vs The State Of Telangana on 24 October, 2024

Author: Nagesh Bheemapaka

Bench: Nagesh Bheemapaka

                                     1
                                                                wp_28574_2024
                                                                        NBK, J


           THE HON' BLE SRI JUSTICE NAGESH BHEEMAPAKA

                    WRIT PETITION No.28574 of 2024

ORDER:

The petitioner is a qualified Medical Practitioner and a Life Member of 3rd respondent-Indian Medical Association, Telangana State. He is currently the Vice President of the 3rd respondent-Association (Zone-3) for the year 2023-24 and his term would be ending on 31.10.2024. While so, in response to the Election Notification dated 26.09.2024 issued by respondent Nos.4 to 6, the petitioner filed his Nomination for the position of State President Elect for the year 2025-26 from Zone-3. The respondents 4 to 6 did not approve the Nomination and passed the impugned order dated 14.10.2024 stating that the petitioner did not fulfill the eligibility criteria as on Scrutiny Date. The petitioner challenges the same under Article 226 of Constitution of India.

2. Mr. M.S. Prasad, learned Senior Counsel appearing on behalf of Ms. A. Satyasri, learned counsel on record for the petitioner, while making submissions on the lines of writ affidavit, would contend that the Election Notification was not signed by respondents 4 to 6 and that Clause (b) and (c) of the Eligibility Criteria specified in the Election Notification dated 26.09.2024 is at variance from the Eligibility Criteria mandated under Part VIII of the Memorandum of Association of 3rd respondent-Association and therefore the Election Notification is contrary to, and violation of, the Association's By-laws. It is also contended that respondents 4 to 6 have no such authority of not approving the petitioner's nomination on such vague ground, and that

wp_28574_2024 NBK, J

the By-Law 'E' of Part VIII categorically states that the Election Commission shall intimate the candidates about Accepted and Valid Nominations, by post/courier and email and further the Final List of valid Nominations shall be communicated to the contestants on or before 30.09.2024. It is contended that the impugned order was not communicated in accordance with By-Laws and the Final List of valid Nominations was published on 11.10.2024, i.e., 3 days prior to the date of impugned order and that the name of 7th respondent alone was shown as the only single valid Nomination for the State President Elect for the year 2025-26 for the obvious reason that the 7th respondent and respondents 4 and 5 are classmates/friends. It is further contended that the very constitution of Election Commission on 08.09.2024 is itself a factually incorrect statement as no such proceedings have been placed in the public domain till date. It is also contended that the petitioner is outgoing Vice President and Member of the State Working Committee and the Working Committee did not appoint the Election Commission as claimed by respondents 4 to 6. It is further contended that some Senior Members of the 3rd respondent-Association, who were past Presidents, filed OOP No.26 of 2024 before the II Additional Chief Judge, City Civil Court, Hyderabad, challenging the Office Order dated 05.03.2024 whereunder the IMA Telangana State Constitution Committee, IMA Telangana State Election Committee, and IMA Telangana State Blood Bank Committee, and the learned Additional Chief Judge suspended the Office Order dated 05.03.2024 and that on 08.09.2024 in the 22nd State Working Committee Meeting, the present Election Commission consisting of respondents 4 to 6 was not constituted by the State

wp_28574_2024 NBK, J

Working Committee nor was there any authorization to the President to appoint the present Election Commission consisting of respondents 4 to

6. It is also contended that respondents 4 to 6, on their own accord, issued the present Election Notification and that the Chairman of Election Commission is Dr. P. Vijay Chander Reddy and member, P.R. Sai Kumar, claim to be appointed as Chairman of Election Commission and Member of Election Commission. It is also contended that the petitioner being a Senior Member of the 3rd respondent-Association did not initially challenge the same, however respondent Nos.4 and 6 are conducting elections for 3rd respondent-Association and therefore the entire election process by respondent Nos.4 to 6 who claim to have been appointed by outgoing President of 3rd respondent-Association, is beset with mala fide, and therefore the petitioner assails the impugned order dated 14.10.2024, and the Election Notification dated 26.09.2024 and also the declaration that 7th respondent is only single candidate for election of State President Elect for the year 2025-2026 for Zone-3 as illegal and arbitrary and seeks a consequential direction for conducting elections to the 3rd respondent-Association by an independent and impartial body constituted in accordance with bye-laws of Association or conduct the same under the supervision of a retired Judge of this Court to maintain the dignity and reputation of the Indian Medical Association.

3. Learned Senior Counsel for the petitioner relied on Maharashtra Chess Association v. Union of India 1, to support his contention that a writ petition can be entertained depending upon nature of threat to rule

(2020) 13 SCC 285

wp_28574_2024 NBK, J

of law, and contended that this Court can entertain a writ petition despite availability of alternative remedy.

4. A counter affidavit is filed by 3rd respondent-Association. The sum and substance of the counter affidavit is that a Writ Petition is not maintainable against the 3rd respondent which is a private entity and the subject matter of litigation being purely contractual in nature, between private parties that does not involve any public service or function. It is contended that the 3rd respondent-Association is neither associated with, nor controlled or funded by the State; and it does not discharge functions with a statutory / regulatory dimension or obligations of public nature; and is not a public utility like a railway or electricity provider. It is also contended that the 3rd respondent is purely a Private Society registered under the Societies Registration Act with Registration No.571/2016, and the 3rd respondent is a voluntary organization formed with the aim of promoting and advancing medical and Allied Sciences in all their different Branches and for promoting Public Health and Medical Education in Telangana State. It is also contended that the 3rd respondent is only a representative, national voluntary organization of Doctors of modern Scientific System of medicine which looks after the interest of doctors as well as the well being of community at large. Placing reliance on the judgment of the Hon' ble Supreme Court in Ajay Hasia v. Khalid Mujib Sehravardi 2, it is contended that the 3rd respondent is not a 'State' or an 'instrumentality/agency' of the Government within the meaning of Article 12 of the Constitution. It is also contended, placing reliance on

(1981) 1 SCC 722

wp_28574_2024 NBK, J

Sanathana Vadla Rajini v. Union of India 3, that even if an organization / Society has trappings of the State within the meaning of Article 12 of Constitution of India, if the grievance agitated in the writ petition has no public law element, then a Writ Petition is not maintainable. It is also contended, by placing reliance on M/s Saket Mithalia Residents Association v. The State of Telangana 4, that this Court held in M/s Saket Mithalia held that the Villa Owners have formed a Society and framed necessary bye-laws for smooth administration of Society and the bye- laws are binding on all owners of Villas including respondent No.4 herein and that this Court held that the Society has no aid, much less financial aid, to the petitioner therein from any Government or its Instrumentality, as defined under Article 12 of the Constitution of India. It is also contended that the subject matter pertains to the Election dispute in relation to the Election of Office bearers and such dispute falls within the ambit of Section 23 of the Telangana Societies Registration Act, 2001.

Placing reliance on the judgment of High Court of Andhra Pradesh in C. Vasudeva Rao v. State of A.P. 5, it is contended that any dispute arising among the Committee or Members of the Society in respect of any matter relating to the affairs of the Society, any Member of the Society may proceed with the dispute under the Arbitration and Conciliation Act, 1996 or may file application in the District Court concerned. It is also contended that the expression "any dispute" is wide enough to cover even the disputes relating to election of members of the Committee and therefore any dispute arising among the Committee

2019 SCC OnLine TS 1845

Writ Petition No.15852 of 2021 (Telangana High Court)

Writ Petition No.8696 of 2022 (High Court of A.P.)

wp_28574_2024 NBK, J

squarely falls within the expression "any matter relating to the affairs of the Society" as has been used in Section 23 of the Act.

It is also contended that alternative remedy is available under Clause-P of Part VIII of the By-Laws of 3rd respondent-Association for adjudication of Election dispute wherein it is unequivocally stipulated that any Election dispute at State Level shall be adjudicated by an Election Tribunal, which shall be constituted, and the Tribunal shall comprise of President of IMA as Chairman and 2 past State Presidents, and the Award passed by the Tribunal shall be binding on the Member who raised the dispute and in case not satisfied with the Award, it can be challenged before the High Court. It is also contended that the petitioner without filing representation before the President of IMA with regard to his grievance of rejection of Election nomination, the petitioner filed this writ petition bypassing the remedy of Election Tribunal.

It is also contended that the writ petition is not maintainable in view of the judgment of this Court in Mohd. Azharuddin v. K. Jhon Manoj 6. It is contended that this Court observed in Mohd. Azharuddin (supra) that when objection has specifically been raised to the maintainability of writ petition, the issue of maintainability has to be adverted to before looking into the merits of the matter including prima facie case.

It is also contended that the grievance of the writ petitioner is that respondents No.4 to 6 have not given any reasons for the rejection of the Nomination filed by the petitioner, however, the letter dated 17.10.2024

Writ Appeal No.476 of 2021 (Telangana High Court)

wp_28574_2024 NBK, J

which is the continuation of the impugned order dated 14.10.2024 furnishes detailed reasons for rejection of Nomination of the petitioner. It is therefore contended that the impugned order does not suffer from any illegality and the writ petition is liable to be dismissed.

5. Heard Mr. M. Ashwin Reddy, learned counsel for respondent Nos.3 and 7; and the learned Government Pleader for Medical, health and Family Welfare appearing for respondent No.1. Learned counsel Mr. M. Ashwin Reddy made submissions on the lines of counter affidavit, and has drawn the attention of the Court to the judgments stated supra.

6. Having considered the respective submissions, and perusing the material on record, including the judgments relied on by the learned counsel, it is pertinent to note that the precise grievance of the petitioner in the instant case is about rejection of his Nomination to the position of State President Elect of 3rd respondent-Association. It is to be noted that it is the specific contention of the 3rd respondent in the counter affidavit, basing on record, that they issued a Letter dated 17.10.2024 which is a continuation of the earlier communication, which is the impugned order, dated 14.10.2024. It is stated under paragraph 2 of the said letter dated 17.10.2024 as follows:

"2. Election Commission notification clearly specifies that one must have completed his term by the time of Scrutiny date. The scrutiny date was on 10th October. On the said date you have not completed your Vice president term. The State President and State Secretary issued a certificate to that effect. Copy enclosed."

7. It is to be noted that the petitioner, even as per his writ affidavit, is currently holding the office of Vice President of 3rd respondent-

wp_28574_2024 NBK, J

Association (Zone-3) for the period 2023-24 and his term would be ending on 31.10.2024. So, therefore, as on the Scrutiny Date which is 10th October as per the letter dated 17.10.2024, the petitioner has not completed the current term.

8. It is stated in the counter affidavit that the Election Tribunal would be constituted for Election disputes, and the Tribunal would comprise of the President of IMA as Chairman, and the 2 past State Presidents as Members, and the petitioner has not represented his grievance before the President of the IMA before filing this writ petition. It is to be noted that the rejection of petitioner's Nomination is basically on the ground that he is currently serving as Vice President and his term will run until 31.10.2024 and that he would be eligible to contest after he completes his term. The same is stated in the letter dated 17.10.2024 which is issued in continuation of the impugned letter dated 14.10.2024. Furthermore, the bone of contention in the present case is also with regard to the alleged variance in Clauses (b) and (c) of the Eligibility Criteria notified in the Election Notification dated 26.09.2024 vis-à-vis the original Clauses (b) and (c) as they exist in Paragraph VIII of the Memorandum of Association relating to Eligibility Criteria for contesting in Elections to the 3rd respondent-Association.

9. Admittedly, the 3rd respondent-Association is neither a Government entity nor an instrumentality of the State under Article 12 of the Constitution of India. Though the petitioner placed reliance on the judgment in Maharashtra Chess Association (supra), it is to be noted that the lis therein is with regard to jurisdiction of the Court, as the 2nd

wp_28574_2024 NBK, J

respondent therein sought to rely on Clause 21 of the Constitution and By-Laws of the 2nd respondent to contend that the jurisdiction of all Courts, except those in Chennai, stands ousted by virtue of the agreement under Clause 21. The Hon' ble Supreme Court held in paragraphs 9 and 10 of the said case that "where several Courts would have jurisdiction to try the subject matter of dispute, they can stipulate that a suit be brought exclusively before one of the several courts, to the exclusion of the others". The contentious issue in Maharashtra Chess Association (supra) is different from the present case.

10. It is relevant to note that the petitioner's grievance is that his Nomination is unduly rejected, and only 7th respondent's Nomination was declared as a valid nomination, allegedly on the ground of being classmates/close friendship. The dispute in the present case is essentially between members with regard to the election process, and therefore the dispute squarely falls within the ambit of Section 23 of the Societies Registration Act, 2001. For the sake of reference, Section 23 of the Societies Registration Act, 2001 is extracted hereunder:

"23. Dispute regarding management - In the event of any dispute arising among the Committee or the members of the society, in respect of any matter relating to the affairs of the society, any member of the society may proceed with the dispute under the provisions of the Arbitration and Conciliation Act, 1996 (Central Act 26 of 1996), or may file an application in the District Court concerned and the said Court shall after necessary inquiry pass such order as it may deem fit."

11. To elucidate further as to whether the election dispute comes under the phrase "any matter relating to the affairs of the society", it

wp_28574_2024 NBK, J

would be relevant to refer C. Vasudeva Rao (supra), wherein the Hon' ble High Court of A.P. held as follows:

"The expression "any dispute" is wide enough to cover even the disputes relating to election of the members of the committee. So, any dispute arising among the committee, albeit, it be a dispute pertaining to the election of office bearers of the Executive Committee, squarely falls within the expression "any matter relating to the affairs of the society"

as has been used in Section 23 of the 2001 Act. The expressions "any dispute" and "any matter relating to the affairs of the society" are too wide enough even to cover the election dispute relating to the election of the office bearers of the Executive Committee or any matter relating to the affairs of the society. Even an election of office bearers of the Executive Committee relates to the affairs of the Society."

12. The Hon' ble Division Bench of this Court in Mrs. Nirmala Kale v. The Society of Trustees of Indigenous Churches 7, upheld that a writ petition against the Society is not maintainable as it does not fall within Article 12 of the Constitution of India and does not perform public duty.

13. In view of the foregoing discussion and the law laid down in similar cases, this writ petition is dismissed as not maintainable in view of the remedy under Section 23 of the Societies Registration Act, 2001. No costs. Miscellaneous petitions, pending if any, shall stand closed.

__________________________ JUSTICE NAGESH BHEEMAPAKA 24th October, 2024 ksm

Writ Appeal No.1551 of 2013 (Telangana High Court)