Delhi High Court
Sanadhan Swimming Club And Ors. vs Union Of India & Ors on 4 March, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* 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
W.P.(C) No.2777/2015 Page 1 of 19
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.
W.P.(C) No.2777/2015 Page 2 of 19
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
W.P.(C) No.2777/2015 Page 3 of 19
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.
W.P.(C) No.2777/2015 Page 4 of 19
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
W.P.(C) No.2777/2015 Page 5 of 19
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
W.P.(C) No.2777/2015 Page 6 of 19
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
W.P.(C) No.2777/2015 Page 7 of 19
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.
W.P.(C) No.2777/2015 Page 8 of 19
(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
W.P.(C) No.2777/2015 Page 9 of 19
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
W.P.(C) No.2777/2015 Page 10 of 19
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.
W.P.(C) No.2777/2015 Page 11 of 19
(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.
W.P.(C) No.2777/2015 Page 12 of 19
(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
W.P.(C) No.2777/2015 Page 13 of 19
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;
W.P.(C) No.2777/2015 Page 14 of 19
(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.
W.P.(C) No.2777/2015 Page 15 of 19
(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
W.P.(C) No.2777/2015 Page 16 of 19
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
W.P.(C) No.2777/2015 Page 17 of 19
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
W.P.(C) No.2777/2015 Page 18 of 19
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.
15. The petition is thus dismissed as not maintainable.
No costs.
RAJIV SAHAI ENDLAW, J.
MARCH 04, 2016 „gsr/bs‟ (corrected & released on 16th June, 2016) W.P.(C) No.2777/2015 Page 19 of 19