Karnataka High Court
Franklyn James vs The Karnataka Central Diocese on 17 January, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.21304 OF 2021 (GM - RES)
BETWEEN:
FRANKLYN JAMES
S/O D.JAMES ABRAHAM
AGED ABOUT 68 YEARS
NO.215, BDS GARDEN
GEDDALAHALLI
KOTHNAUR P.O.,
BENGALURU - 560 077.
... PETITIONER
(BY SRI ARUN KUMAR K., SR.ADVOCATE FOR
SRI SUNDARA RAMAN M.V., ADVOCATE)
AND:
1. THE KARNATAKA CENTRAL DIOCESE
NO 20, 3RD CROSS
CSI COMPOUND
BENGLAURU - 560 027
REPRESENTED BY ITS SECRETARY.
2. CHURCH OF SOUTH INDIA
NO 5, WHITES ROAD
ROYAPEETH
CHENNAI - 600 014
REPRESENTED BY ITS
GENERAL SECRETARY.
2
3. RT. REV.DR.P.K. SAMUEL
BISHOP, KARNATAKA CENTRAL DIOCESE
S/O LATE MR.SAMUEL
AGED ABOUT 65 YEARS
KARNATAKA CENTRAL DIOCESE
NO.20, 3RD CROSS
CSI COMPOUND
BENGLAURU - 560 027.
... RESPONDENTS
(BY SRI ARUN B.M., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE RESULTS OF
THE ELECTIONS HELD DURING THE XXV ORDINARY TRIENNIAL
COUNCIL BETWEEN 14.10.2021 TO 17.10.2021;
DIRECT THE R-1 TO RE-CONDUCT THE ELECTIONS IN A FAIR AND
AUTONOMOUS MANNER WHILE ALLOWING THE PETITIONER TO
CONTEST IN THE ELECTIONS FOR THE POST OF SYNOD
REPRESENTATIVE AND MEMBER OF EXECUTIVE COMMITTEE.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.01.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner claiming to be aggrieved by the action of the respondents - the Karnataka Central Diocese, the Church of South India and Bishop of the 1st respondent is before this Court calling in question results of election held during the meeting of 25th Ordinary Triennial Council between 14-10-2021 and 17-10-2021 and seeks 3 re-conduct of election in a fair manner by appointment of a Court Commissioner.
2. Shorn of Unnecessary details, facts in brief, germane for consideration of the lis, are as follows:-
The petitioner during October, 2013 was elected as a lay Member of the Diocese for a period of 2 years. Later, the petitioner was elected as an Associate Treasurer of the Diocese for a period of three years. Elections were held to the Synod in the month of January 2020. It appears that certain pandemonium broke out during the election which was informed to the Moderator of the elections. After conduct of elections on 04-05-2020 it appears that the petitioner has raised an issue with regard to shortage of funds with the Diocese, after which, the petitioner alleges to have been replaced as a signatory for a period of two months which is brought to the notice of the Moderator on 28-05-2020 of the illegal action of the Diocese by removing the petitioner as the signatory of the Treasury and other incidental issues. Certain judicial proceedings were instituted by the petitioner against the Diocese and the Church of South India and the narration of those proceedings would 4 not be necessary at this juncture for the issue that is now being considered. Elections were sought to be conducted for the Executive Committee of the Church of South India. On 06-10-2021 the petitioner files his nomination for the post of Synod Representative, Executive Committee Member and Property Committee Member in the elections that were ensuing to be held in the 25th Triennial Council Meeting. The name of the petitioner was included in the list of posts for which the election were to be conducted i.e., the posts of Property Committee, Synod Representative and Executive Committee of the Diocese. On 14-10-2021 the 25th Triennial elections were held and the respondents herein before the elections could take place prohibited the petitioner from contesting and voting in the elections. It is this action that drives the petitioner to this Court.
3. Heard Sri K. Arun Kumar, learned senior counsel appearing for the petitioner and Sri B.M.Arun, learned counsel appearing for respondents.
4. The learned senior counsel appearing for the petitioner would submit that there has been no election worth the name 5 conducted by the 2nd respondent for the posts to which election were held on 14-10-2021 and, therefore, it is a case where serious irregularities and rigging have taken place in the election and, therefore, seeks conduct of fresh election by appointment of a Court Commissioner to oversee the election so conducted to Church of South India.
5. On the other hand, the learned counsel representing the respondents would seek to contend that the petition itself is not maintainable since what is challenged is an election conducted to a private body. If a person is aggrieved of the elections conducted to a private body he cannot be seen to be knocking at the doors of this Court, as there is no public law element involved in the grievances of the petitioner.
6. In reply to the said submission with regard to maintainability, the learned senior counsel would submit that the writ petition against Church of South India is held to be maintainable by various Courts in the country and even the writ petition against Advocates' Association is also held to be 6 maintainable. Therefore, the petitioner is a part of Church of South India which has large religious impact for the citizens and, therefore, the writ petition would become maintainable. It is his emphatic submission that there are several orders passed by this Court which all followed by the respondents and, therefore, on that score in the least would make the writ petition maintainable at the hands of this Court.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. Since the issue of maintainability forms a threshold bar for consideration of the issue on merits of the matter, I deem it appropriate to decide the said issue at the outset. To consider the same it is germane to notice the prayer that is sought in the writ petition at the hands of this Court. It reads as follows:
"Wherefore, it is most respectfully prayed that this Hon'ble Court may be pleased to:
I. SET ASIDE the results of the elections held during the XXV Ordinary Triennial Council between 14.10.2021 to 17-10-2021.7
II. DIRECT the 1st respondent to re-conduct the election in a fair and autonomous manner, while allowing the petitioner to contest in the elections for the posts of Synod Representative and Member of Executive Committee.
III. APPOINT a Court Commissioner to ensure that the re-
elections are conducted in a fair and autonomous manner, in compliance with the provisions of the Constitutions and Bye-laws of the CSI and KCD.
IV. Pass any such other order/s as this Hon'ble Court may deem fit and proper in the facts of the case in the interest of justice and equity."
The prayer is to set aside an election held in the XXV Ordinary Triennial Council and issue direction to conduct a fresh election in terms of Bye-laws of the Church of South India and Karnataka Central Diocese. It is an admitted fact that the 2nd respondent/ Church of South India is an "unregistered private trust". Therefore, what is sought at the hands of this Court is to the elections conducted to an unregistered private trust. It is for that reason this Court while entertaining the writ petition on 07-12-2021 had passed the following, after hearing the matter at some length:
"Matter having been heard for some time, the short question as to whether the actions of the answering respondents do involve sufficient public law elements warranting indulgence of this Court in its writ jurisdiction, arises; learned senior Advocate appearing for 8 the petitioner wants to come back after making some more research.
Call this matter on 23-12-2021.
In the meanwhile, it is open to the petitioner to work out his remedies elsewhere in accordance with law also."
The Court clearly observed albeit, prima facie, that actions of the answering respondents did not involve sufficient public law element warranting indulgence of this Court in its writ jurisdiction. It was also directed that it was open to the petitioner to work out his remedies elsewhere in accordance with law also, during the pendency of the petition.
9. The petitioner may have been aggrieved by the conduct of elections which according to him was not free and fair. The primary ground of the petitioner in the petition is found at paragraph 36 reading:
"36. Despite the objections, the 3rd respondent proceeded to remove the name of the petitioner from the list of nominees for the Executive Committee and Synod Representative. The conduct of the respondents reflects the inherent bias of the 3rd respondent and the Moderator against the petitioner. It is submitted that the respondents are very evidently usurping their powers and misusing the Constitution to achieve an ulterior motive. At this juncture, it is pertinent to note that attempts are being made to amend the provisions of the Constitutions of the CSI and KCD, and increase the retirement age of the Presbyters, Bishops and the Moderator. The petitioner 9 is considered a threat to this move since he had voiced his opinion against such an amendment. Therefore, all attempts are being made at excluding the petitioner from the administrative functions and governance of the Church."
The ground on which the issue is brought before the Court is that the conduct of the respondents would reflect inherent bias of the Bishop and the Moderator against the petitioner. The issue inter alia is with regard to increase of retirement age of Bishop and the Moderator, the dispute over the issue is purely private between the petitioner and the respondents. The attempt that is made by the learned senior counsel for the petitioner to contend that there are several orders passed by this Court which have all been flouted and, therefore, the writ petition would be maintainable, is noted only to be rejected, as every one of the orders were passed either exercising appellate jurisdiction or considering orders passed by civil Courts in a matter concerning challenging to those orders. Therefore, merely because this Court has passed certain orders either on the appellate side or pursuant to a challenge to orders passed by the civil Court would not by itself clothe the petitioner to contend that a writ petition challenging the conduct of elections of a 10 private body having no public law element would become maintainable.
10. The learned senior counsel strenuously contended and took this Court though plethora of judgments rendered by the Apex Court and other constitutional Courts to buttress his submission with regard to maintainability of the petition. Every one of those judgments is distinguishable without much ado on the facts obtaining in those cases. Much reliance is placed on JIGYA YADAV v. CENTRAL BOARD OF SECONDARY EDUCATION AND OTHERS - (2021) 7 SCC 535. The Apex Court therein was considering certain actions of the Central Board of Secondary Education. The Central Board of Secondary Education ('CBSE') is a State under Article 12 of the Constitution of India and directions were issued to all the institutions, be it private or public, which would come within the ambit of the CBSE. The Bye-laws of the CBSE and all other incidental issues were considered on the touchstone of Article 14 of the Constitution of India and a slew of directions issued by the Apex Court at paragraph 192. They were concerning the education of students in the nation. This cannot by 11 any stretch of imagination be paraphrased to the disputes of a private Trust concerning the petitioner. A private election conducted to an unregistered private Trust cannot be agitated in a writ petition under Article 226 of the Constitution of India.
11. The other judgment that the learned senior counsel would lay emphasis is ANDI MUKTA SADGURU SHREE MUKTAJEE VANDAS SWAMI SUVARNA JAYANTI MAHOTSAV SMARAK TRUST v. V.R. RUDANI - (1989)2 SCC 691. The issue therein was ANDI MUKTA was a public trust running a Science College at Ahmedabad and affiliated to Gujarat University and teachers employed therein were paid pay scale as recommended by the University Grants Commission. The issue was revision of pay scales. Therefore, it was held that a writ petition was maintainable. All incidental issues with regard to termination of teachers in a private aided and affiliated colleges, structure of salary and other service conditions were before the Apex Court. The Apex Court in the cases of ZEE TELEFILMS LIMITED v. UNION OF INDIA - (2005) 4 SCC 649 and BOARD OF CONTROL FOR CRICKET IN INDIA v. CRICKET ASSOCIATION OF BIHAR - (2015)3 SCC 251 12 considered enormity of the impact on the general public through the medium of television or cricket. It was held that cricket was more than just a game. It was the spirit of millions in the part of the world. Therefore, the game of cricket in the country was necessary to be regulated for the BCCI to abide by the rule of law. These judgments cannot be held similar to the issue that is brought before the Court. Same goes with the judgment of either the Madras High Court or the Allahabad High Court notwithstanding the fact that the analysis therein was that the Church of South India did perform certain public functions.
12. Learned senior counsel for the petitioner would submit that the judgment in the case of CHANDRAKANT v. KARNATAKA STATE BAR COUNCIL AND OTHERS1 is his sheet anchor. A Division Bench of this Court was considering the elections to the Managing Committee in terms of Bye-laws of the Association. A learned single Judge had dismissed the writ petition on the sole ground of maintainability without going into the merits of the writ petition. The Division Bench, on appeal, after considering the very 1 W.A.No.100141 of 2020 decided on 30-11-2020 13 judgments on which the learned senior counsel seeks to place reliance upon, holds as follows:
"32. In all the above noted cases, the point of maintainability of the writ petition as against a Bar Association has been specifically contended and the Courts have consistently held that the Bar Association is amenable to the writ jurisdiction and that a writ under Article 226 of the Constitution of India is maintainable against the Bar Association, more so when the issue involved is the sanctity of the elections. We are in complete agreement with the views expressed by the various High Courts."
The Division Bench notices precedents and observes that it has been consistently held that the Bar Association is amenable to writ jurisdiction and that a writ petition under Article 226 of the Constitution of India is maintainable against the Bar Association. The Division Bench further, after referring to the Bye-laws, observes as follows:
"36. The observations of the Hon'ble Apex Court and the various High Courts in the long line of rulings narrated supra, obviates any detail discussion with regard to the maintainability of a writ petition against the Bar Association invoking the provisions of Article 226 of the Constitution of India. That apart, as detailed supra, some of the obligation, the 3rd respondent has cast upon itself, bears a public character. The Advocates are not mere arbiters but officers of the Court who assist the Court in the running of the justice delivery system and it is such officers of the Court who constitute the 3rd respondent Society. That the constituents of the 3rd respondent Society are answerable to the Court and to the 1st respondent with regard to their conduct in the discharge of their professional duties. Both the 1st respondent and the Court can by no stretch of imagination be described as private entities. That apart, if the objects of the 3rd 14 respondent Society are juxtaposed with the observations of the Hon'ble Apex Court in Dwaraka Nath's case and SCBA case, it is apparent that the 3rd respondent discharges obligations of a public character. Hence, the writ petition invoking the provisions of Article 226 of the Constitution of India praying for a relief as against the 3rd respondent is required to be held as maintainable. It is not the case of the 3rd respondent that it is not similarly situated as the Bar Associations as detailed in the long line of rulings. Further, admittedly the 3rd respondent is in receipt of grants and is housed in the court premises and under the all pervasive control of the 1st respondent."
The writ petition is held to be maintainable against the Bar Association as the Advocates Association has cast upon itself a public character. The Advocates are not mere arbiters but Officers of the Court who assist the Court in running the justice delivery system and, therefore, the Court holds that a writ against Advocates Association was maintainable. I fail to understand as to how this would even be applicable to the issue that is brought before this court. To iterate, it is an admitted fact that the respondent is a private unregistered trust which is completely a private body. Reference being made to the judgment of the Apex Court in the case of RAMAKRISHNA MISSION AND ANOTHER v. KAGO KUNYA AND OTHERS2 becomes apposite. The Apex Court, in the said case, has held as follows:
2
(2019) 16 SCC 303 15 "15. Ramakrishna Mission runs a 263 bedded hospital at Itanagar. The grant in aid which is provided by the State Government covers the cost of running 60 beds out of 263 bedded hospital. Relevant factual data in regard to the nature and extent of the grants has been placed on record. About 32.26 per cent of the total income of the hospital for 2014-
2015, 23.33 per cent for 2015-2016 and 22.53 per cent for 2016-2017 was from the grants provided by the State Government. The revenue expenditure, the audited balance sheets and accounts of the hospital indicate that 35.23 per cent of the expenditure for 2014-2015, 23.83 per cent for 2015-2016 and 20.57 per cent for 2016-2017 was borne from the finances provided by the State Government.
... ... ...
30. Thus, even if the body discharges a public function in a wider sense, there is no public law element involved in the enforcement of a private contract of service.
... ... ...
32. Before an organisation can be held to discharge a public function, the function must be of a character that is closely related to functions which are performed by the State in its sovereign capacity. There is nothing on record to indicate that the hospital performs functions which are akin to those solely performed by State authorities. Medical services are provided by private as well as State entities. The character of the organisation as a public authority is dependent on the circumstances of the case. In setting up the hospital, the Mission cannot be construed as having assumed a public function. The hospital has no monopoly status conferred or mandated by law. That it was the first in the State to provide service of a particular dispensation does not make it an "authority" within the meaning of Article 226. State Governments provide concessional terms to a variety of organisations in order to attract them to set up establishments within the territorial jurisdiction of the State. The State may encourage them as an adjunct of its social policy or the imperatives of economic development. The mere fact that land had been provided on a concessional basis to the hospital would not by itself result in the conclusion that the hospital performs a 16 public function. In the present case, the absence of State control in the management of the hospital has a significant bearing on our coming to the conclusion that the hospital does not come within the ambit of a public authority.
... ... ...
34. Thus, contracts of a purely private nature would not be subject to writ jurisdiction merely by reason of the fact that they are structured by statutory provisions. The only exception to this principle arises in a situation where the contract of service is governed or regulated by a statutory provision. Hence, for instance, in K.K. Saksena [K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670 : (2015) 2 SCC (Civ) 654 : (2015) 2 SCC (L&S) 119] this Court held that when an employee is a workman governed by the Industrial Disputes Act, 1947, it constitutes an exception to the general principle that a contract of personal service is not capable of being specifically enforced or performed.
35. It is of relevance to note that the Act was enacted to provide for the regulation and registration of clinical establishments with a view to prescribe minimum standards of facilities and services. The Act, inter alia, stipulates conditions to be satisfied by clinical establishments for registration. However, the Act does not govern contracts of service entered into by the hospital with respect to its employees. These fall within the ambit of purely private contracts, against which writ jurisdiction cannot lie. The sanctity of this distinction must be preserved.
36. For the above reasons, we are of the view that the Division Bench of the High Court was not justified in coming to the conclusion that the appellants are amenable to the writ jurisdiction under Article 226 of the Constitution as an authority within the meaning of the Article.
37. For the reasons that we have adduced above, we hold that neither the Ramakrishna Mission, nor the hospital would constitute an authority within the meaning of Article 226 of the Constitution.
17
38. Before concluding, it would be necessary to also advert to the fact that while the learned Single Judge had come to the conclusion that the appellants are "State" within the meaning of Article 12, the Division Bench has not accepted that finding. The Division Bench ruled, as we have noticed earlier, that the appellants do not fall within the description of "State" under Article 12. This finding has not been challenged before this Court by the State of Arunachal Pradesh.
39. Even otherwise, we are clearly of the view that the tests which have been propounded in the line of authority of this Court in Ajay Hasia v. Khalid Mujib Sehravardi [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : 1981 SCC (L&S) 258] , Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 : 2002 SCC (L&S) 633] and Jatya Pal Singh v. Union of India [Jatya Pal Singh v. Union of India, (2013) 6 SCC 452 : (2013) 2 SCC (L&S) 617] support the conclusion of the High Court that the appellants are not "State" within the meaning of Article 12 of the Constitution of India.
(Emphasis supplied) The Apex Court has held that if a body discharges a public function in a wider sense, there is no public law element in the enforcement of a private contract of service. Merely because the Hospital therein performed public functions and it received funds from the State would not make it an Authority within the meaning of Article 12 of the Constitution for it to be amenable under Article 226 of the Constitution of India albeit, the Apex Court was examining a private contract between the parties therein. The ratio laid down would become applicable to the facts of the case at hand. 18
13. Any effort that is now sought to be made by the learned senior counsel to bring Church of South India to come within 'other authorities' under Article 12 of the Constitution of India are all rendered an exercise in futility. As the remedy under Article 226 of the Constitution of India which is pre-eminently a public law remedy is not generally available against private wrongs. The scope of issuance of a writ at the hands of this Court is limited to enforce a public duty. I fail to understand as to what public duty or public law element that can be projected in the case at hand. The respondent is a private unregistered Trust. The Trust conducts elections as a private affair within itself. There are several issues concerning elections, which according to the petitioner, was not free and fair. Therefore, the remedy for the petitioner would always be before a competent civil Court.
14. The learned counsel for the respondents is right in submitting that the bye-laws itself would take within its sweep the dispute resolution mechanism of any kind, as could be gathered from the Discipline of the Church and Settlement of Disputes which form part of the Constitution of the Church of South India. Clause 19 29 under Settlement of Disputes occurring in Chapter XI is the dispute resolution mechanism. It would always be open to the petitioner to agitate before the appropriate fora or forum - judicial or otherwise, with regard to the grievances that he is seeking to vent out before this Court. Finding no public law element, I decline to accept the petition to remedy a private wrong, strictly of a private action, of an unregistered private Trust, in exercise of jurisdiction under Article 226 of the Constitution of India, which is primarily a jurisdiction for a public law remedy.
15. For the aforesaid reasons, I hold that the writ petition is neither maintainable nor entertainable and is therefore, rejected reserving liberty to the petitioner to approach the appropriate forum for appropriate relief.
Sd/-
JUDGE bkp CT:MJ