Delhi High Court
Delhi Jan Sudhar Samiti vs Ramesh Chand Gupta And Ors. on 26 April, 2007
Equivalent citations: AIR 2007 (NOC) 2221 (DEL.)
Author: A.K. Sikri
Bench: A.K. Sikri, Aruna Suresh
JUDGMENT A.K. Sikri, J.
1. To recapitulate briefly, the controversy between the parties was with regard to elections of the Executive Committee of Delhi Jan Sudhar Samiti (hereinafter referred to as 'the Samiti'). The suit was filed in the name of the Samiti through one Mr. Subhash Chandra Roongta, claiming to be its General Secretary. In the suit filed by him, he alleged that the elections were held on 19.7.2000 in which he was elected as the General Secretary and various other members were also elected for different posts of the Governing Body of the Samiti. It was alleged that the defendants were not allowing them to function smoothly and were addressing letters to the Registrar of Societies, Samiti's bankers, etc. levelling false and misleading allegations against them. The prayer was, accordingly, made in the suit to declare that they were the true Governing Body entitled to run, administer and control the 18 Jan Suvidha Complexes which were given to the Samiti and prayed for restraining the defendants by permanent injunction from representing themselves as the elected members of the Samiti. Other consequential prayers were also made. The suit was filed on the original side of this Court. An order dated 12.3.2003 was passed by the learned single Judge of this Court appointing Justice Avadh Bihari Rohatgi (Retd.) as the Court Officer to finalize the membership and conduct the elections. The learned Court Officer conducted the elections and submitted his report to the Court. As per the elections conducted, the defendant No. 1 was elected as the President. In the meantime, due to the enhancement of pecuniary jurisdiction of the District Court, the matter was transferred to the District Court. The learned Court Officer submitted his report before the trial court. Mr. Roongta filed objections to this report, which were rejected vide order dated 10.12.2004 and result of the elections was declared. That order was challenged by Mr. Roongta in this Court unsuccessfully as the petition was dismissed vide order dated 3.2.2005. Appeal against that order also met the same fate and the Supreme Court dismissed it on 18.3.2005. In this conspectus, the learned trial court framed the following preliminary issue:
Whether the present suit is still maintainable in view of the elections held on 31.1.2004?
2. Arguments were heard on this preliminary issue and vide impugned judgment dated 20.1.2007 the issue has been decided in favor of the defendants and against the plaintiff resulting into the dismissal of the suit. Challenging this order, the present appeal is filed.
3. When this appeal came up for preliminary hearing on 9.2.2007, notice was issued, which was accepted by the respondents, who appeared on the same day. It may be noted that the counsel for the parties accepted that complete records had been placed in the paper books of the appeal and, therefore, there was no need to summon the trial court record. On 12.3.2007, it was directed that the appeal be taken up for final disposal on 2.4.2007. With reference to the record filed, arguments were heard.
4. Though the reasons given by the learned trial court dismissing the suit shall be taken note of in detail at appropriate places, suffice it to mention, at this stage, that the impugned judgment reveals that the thought process of the trial court was as under:
When the order dated 12.3.2003 was passed by the High Court appointing the Court Officer with direction to finalize the membership and hold the elections, this course was accepted as the said order was not challenged; elections were thereafter held and report submitted by the Court Officer; the plaintiff had filed objection to the said report, which were found to be meritless and rejected; this rejection had attained finality as attempt of the plaintiff to assail the said order rejecting the objection failed up to the highest court; effect of this was that new Governing Body had assumed the charge of the Samiti on the basis of the elections held and, therefore, nothing survived in the suit filed by the plaintiff.
5. The plank of attack to this judgment, as raised by Learned Counsel for the appellant during arguments, can be paraphrased as under:
a) there was a dispute about the membership of the Samiti. According to the appellant, the respondents had inducted certain bogus members and manipulated/forged the records of the Samiti. This issue was essentially to be decided by the Court and could not be delegated to the Court Officer as this was essentially a judicial function and, therefore, inalienable. The Court, therefore, could not abdicate its jurisdiction and was supposed to decide this issue, in any case, in the suit and, thus, the suit had not become infructuous. In support of this, Learned Counsel for the appellant referred to the judgment of the Supreme Court in the case of Jamal Uddin Ahmed v. Abu Saleh Najmuddin and Anr. , and laid particular emphasis on the following portion of the said judgment:
13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the Judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorization. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be "delegation" as also there can be "authorization" in favor of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the Court so as to aid the Judges in discharge of their judicial functioning. Authorization may take the form of formal conferral or sanction or may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times. The Judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions post-decision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength. The Judges rarely receive personally any document required to be presented to the Court. Plaints, petitions, memoranda or other documents required to be presented to the Court are invariably received by the administrative or ministerial staff, who would also carry out a preliminary scrutiny of such documents so as to find that they are in order and then make the documents presentable to the Judge, so that the valuable time of the Judge is not wasted over such matters as do not need to be dealt with personally by the Judge.
14. The judicial function entrusted to a Judge is inalienable and differs from an administrative or ministerial function which can be delegated or performance whereof may be secured through authorization.
The judicial function consists in the interpretation of the law and its application by rule or discretion to the facts of particular cases. This involves the ascertainment of facts in dispute according to the law of evidence. The organs which the State sets up to exercise the judicial function are called courts of law or courts of justice. Administration consists of the operations, whatever their intrinsic nature may be, which are performed by administrators; and administrators are all State officials who are neither legislators nor judges.
(See Constitutional and Administrative Law, Phillips and Jackson, 6th Edn., p.13) P. Ramanatha Aiyar's Law Lexicon defines judicial function as the doing of something in the nature of or in the course of an action in court. (p.1015) The distinction between "judicial" and "ministerial acts" is:
If a Judge dealing with a particular matter has to exercise his discretion in arriving at a decision, he is acting judicially; if on the other hand, he is merely required to do a particular act and is precluded from entering into the merits of the matter, he is said to be acting ministerially. (pp. 1013-14).
Judicial function is exercised under legal authority to decide on the disputes, after hearing the parties, maybe after making an enquiry, and the decision affects the rights and obligations of the parties. There is a duty to act judicially. The Judge may construe the law and apply it to a particular state of facts presented for the determination of the controversy. A ministerial act, on the other hand, may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the act done. (Law Lexicon, ibid, p.1234). In ministerial duty nothing is left to discretion; it is a simple, definite duty.
b) merely because objections to the report of the Court Officer were dismissed, would not mean that the order dismissing those objections would operate as res judicata. The Court was to consider the issue of forgery and wrongful induction of members after the trial for which evidence was required and the report of the Court Officer could, at the best, form a piece of evidence which the respondents could lead. But treating the said report as final, the suit could not have been dismissed. Referring to and relying upon para 9 of the judgment of the Supreme Court in Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy , he submitted that in any case such a report and dismissal of objections to that report could not be treated as res judicata. The said para is extracted below:
A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J., observed in Tarini Charan Bhattacharjee's case 2nd 56 Cal 723 : (AIR 1928 Cal 777) The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided.
A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
c) elections, as held by the Court Officer, were challenged as null and void and the trial court was bound to consider this aspect. The submission was that if an act is null and void for want of jurisdiction, even the consent of the parties would not confer jurisdiction on the said authority, as held by the Supreme Court in Kiran Singh and Ors. v. Chaman Paswan and Ors. . This was the issue which required determination by the Civil Court and had that issue been considered, possibly it could have been decided in favor of the appellant and the Court could have ordered fresh elections. Therefore, there was still a lis between the parties which required adjudication and the suit could not be treated as not maintainable. He also submitted that powers of the Court Commissioner/Officer appointed were limited by the Statute itself, namely, Section 75 and Order XXVI Rule 10 of the Code of Civil Procedure, 1908 (for short, 'CPC'). These provisions are to the following effect:
75. Power of court to issue commissions. - Subject to such conditions and limitations as may be prescribed, the court may issue a commission -
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) to hold a scientific, technical, or expert investigation
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the court pending the determination of the suit;
(g) to perform any ministerial act. Order XXVI Rule 10
10. Procedure of Commissioner. - (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit - Commissioner may be examined in person. - The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Commissioner may be examined in person. - Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
Arguments was that even these provisions send a clear signal that judicial functions are not to be delegated to the Court Commissioner/Officer, who is to perform only ministerial function. Reference was also made to the judgment of the Apex Court in Bombay Municipal Corporation v. Dhondu Narayan Chowdhary , wherein observations are made that judicial power cannot ordinarily be delegated unless law expressly or by clear implication permits it. In the present case Section 75 or Order XXVI Rule 10 of the CPC clearly spell out the powers of the Court Commissioner/Officer and do not authorize delegation of judicial power. His submission was that, in such circumstances, it could not be said that merely because the results were declared rejecting the objections to the report of the Court Officer, that had attained finality. Learned Counsel went to the extent of submitting that as the order dated 12.3.2003 was non-appealable, there was no question of challenging that order at that time, which was challenged in this appeal and it was permissible for the appellant to do so in view of Section 105 of the CPC. He also submitted that the trial court was wrong in holding that order dismissing the objections had attained finality. The Supreme Court had declined to interfere only on the ground that the issue of maintainability of the suit was pending and receiving attention by the trial court, which is clear from the order of the Supreme Court itself, which reads as under:
In spite of the report of the Commissioner having been taken on record and elections having been held, whether the suit would still survive for decision or not, is a matter which is receiving the attention of the trial court and as the trial court has not formed any opinion thereon as yet, we are not inclined to entertain this special leave petition. The special leave petition is dismissed.
(d) he also submitted that there was serious allegation of tampering of the records and induction of bogus members, which had changed the course of elections. He pointed out that the Samiti was formed in the year 1993 with 7 founder members out of which two had resigned and, therefore, only 5 members were left. However, the respondent No. 1 had inducted 10 'bogus' members, which naturally tilted the balance in his favor. It is for this reason that after the Court Officer had submitted his report holding that induction of the said membership was not illegal and they were validly inducted as members of the Samiti, the existing office bearers, who got elected in the elections held in the year 2000, did not even contest the election, fully knowing the obvious results of such elections with the aid of the aforesaid manipulations and chose to raise this issue in the suit. He also submitted that even a criminal complaint was filed by the appellants against the respondents alleging forgery and tampering of the records, including the records in the office of the Registrar of Societies, in collusion with the officials of the Registrar. The Police had obtained the CFSL report which also prima facie indicated commission of forgery. Therefore, matter of forgery of documents was still at large. No issues were framed and no findings were given on this issue and without doing so, the suit could not have been dismissed as not maintainable.
6. Learned Counsel for the respondents, on the other hand, submitted that the impugned judgment was supported by sound and cogent reasons. He argued that the issue sought to be raised now was raised earlier by the appellant, which was decided against the appellant. His submission was that on identical ground, namely, that the Court Officer could not discharge judicial function and such a function could not be alienated, objections were filed which were dismissed by the trial court by a detailed order dated 10.12.2004. In CM (M) No. 106/2005 filed under Articles 226 and 227 of the Constitution of India, this was again a specific ground on the basis of which the appellant sought to challenge the report of the Court Officer, but the challenge was brushed aside as the said CM(M) was also dismissed by the this Court. His further submission was that vide order dated 12.2.2003 passed by this Court in the suit at the time when it was pending in the High Court, the Court had appointed the Court Officer with specific authorization to decide the membership issue and hold the elections. This course of action was accepted by the appellant as this order was never challenged. He was, therefore, not aggrieved by this order and took chance before the Court Officer. Only when the report of the Court Officer on the membership issue went against him, the appellant started challenging the report questioning the jurisdiction, which was clearly an afterthought move on his part. In any case, the objections raising the same grounds were dismissed up to the Supreme court and he wanted another bite in the apple, which was not permissible.
7. We have given our due consideration to the respective submissions and have also gone through the record referred to by Learned Counsel for the parties during the course of arguments. Before adverting to the arguments of the appellant, we may take note of various orders passed, which have been referred to above, to understand their true import.
8. As pointed out in the beginning, the suit filed by the appellant was on the basis of elections purportedly held on 19.7.2000 claiming that Mr. Roongta was unanimously elected as the General Secretary and Mr. Manmohan Gupta was elected as the President and other members elected on different posts of the Governing Body. In this suit, the following prayers were made:
a) Declare that the present Governing Body of the Plaintiff Society is entitled to run, administer and control the 18 Jan Suvidha Complexes more particularly described in SCHEDULE I.
b) Restrain the Defendants by a permanent injunction from representing themselves as the elected members of the Plaintiff Society.
c) Pass order of permanent injunction restraining the Defendants or their agents, their servants, their employees from collecting user charges illegally from the various 18 Complexes of the Jan Suvidha Complexes, (more particularly described in SCHEDULE-I. Thus, the entire suit is founded on purported elections held on 19.7.2000.
9. When the matter came up for hearing, order dated 12.3.2003 was passed directing holding of fresh elections. It is not uncommon in such cases that when there is a dispute as to whether the elections are properly held or not, to give quietus to such disputes, the courts order such fresh elections. When it was done in the present case, by passing order dated 12.3.2003, this was accepted by both the groups. It is for this reason that no challenge was made to this order by filing any kind of proceedings. Even if the order was not appealable, other remedies to challenge such orders were still open. On the contrary, the conduct of the appellant would show that he accepted this order as he participated in the proceedings before the Court Officer. The relevant portion of the order dated 12.3.2003 reads as under:
Side by side it would be appropriate to finalise the membership so as to have early elections in the matter. For the said purpose I appoint Justice Avadh Bihari Retired Judge of this Court, as the Court Officer for conducting elections, on fee (interim) of Rs. 50,000/- to be paid equally by both parties. He will also finalise the membership, for which purpose both parties will place complete records of the society including any minutes and application forms relied upon before the said Court Officer within a period of six weeks from today. There being just a handful of persons to be considered, the Court Officer will finalise the membership after hearing both parties within a period of four weeks from the date he receives the complete record. The actual election will then be conducted within a period of six weeks after the list of members is finalised. Report be submitted to this Court on or before 1.9.2003.
10. There were certain disputes about the membership. Such disputes and as to who would form the electoral roll normally arise in all such cases. It is common knowledge that the Court Commissioners are appointed to go into the membership issues after receiving the objections and finalise the membership as without ascertaining that elections cannot be conducted. It is in this backdrop a retired Judge of this Court was appointed as the Court Officer to finalise the membership and to hold the elections. It is stated at the cost of repetition that both the groups accepted this course of action. In a matter of this nature, had the appellant objected to the finalisation of the membership of the Court Officer, the appellant could not have chewed such an order and would have definitely challenged the same. Instead of taking such a step, on the contrary, he presented his case before the Court Officer with the submission that the newly inducted members were not validly inducted and there were certain forgeries in the documents, the appellant clearly acquisced into the jurisdiction of the Court to decide the said issue.
11. Not only this, after the conducting of the elections, when the Court Officer submitted his report, the appellant filed objections thereto. These objections were dismissed by the learned trial court vide order dated 10.12.2004. Perusal of this order would show that even order dated 12.3.2003 was challenged by raising a specific objection that such an order was not appropriate, as it had diverted the direction of the suit resulting in the change in the nature of the suit and as such the whole proceedings taken before the Court Officer were null and void. This objection was brushed aside observing as under:
21. From the order dated 12.03.2003 it is quite clear that the ld. Court officer was appointed and authorised to decide the dispute about the membership, with a view to shorten litigation between the parties. None of the parties fell aggrieved by the order nor challenged the same at any point of time, particularly the plaintiff, who participated in the proceedings before the ld. Court officer. The ld. Court officer has given the report against the pliantiff. As such the pliantiff cannot take objection to the appointment of ld. Court officer when the report has gone against him, as no such objection having been raised at the time of appointment of the ld. Court officer. Reference with advantage can be had to the decision in Paras Ram v. Municipal Board Aligarh .
This order further shows that the objections to the report also included attack on the findings recorded by the learned Court Officer. These have been dealt with in detail and the learned trial court came to the conclusion that the findings of the Court Officer regarding induction of the members were based on documentary evidence and there was no manipulation in the records. It is these findings which were upheld by this Court while dismissing the CM (M) filed by the appellant vide order dated 3.2.2005 observing that the appellant herein had failed to make out any ground to warrant interference as the order dated 10.12.2004 of the learned ADJ was well reasoned and did not suffer from any jurisdictional error or infirmity. No doubt, the Supreme Court, while dismissing the Special Leave Petition against that order, observed that whether the suit still survives for decision or not is a matter which was receiving the attention of the trial court, but the fact remains that the Supreme Court refused to entertain the SLP, which was dismissed.
12. When we consider the submissions of Learned Counsel for the appellant in the aforesaid factual backdrop, we do not find any merit therein though they appear to be attractive in the first blush. It cannot be doubted that the judicial function is inalienable and, therefore, cannot be delegated. That has to be discharged by the Court. However, for certain purposes the Court Officers/Commissioners can be appointed. In this case, suit was filed on the basis of purported election allegedly held on 19.7.2000. The respondents herein had disputed this. In order to put an end to this controversy the Court considered it appropriate that fresh elections be conducted under the supervision of the Court i.e. by appointing a Court Commissioner. Since there was some dispute about the induction of certain members which needed resolution to finalise the electoral roll, the Court Commissioner was asked to settle that as well to enable him to conduct elections. This course of action was agreed to by all. Not only tenor of order shows this, the conduct of the parties subsequent to passing of this order also proves it. The appellant, far from challenging this order, participated in the proceedings voluntarily. In this backdrop, we are of the opinion that the Court Officer could be asked to decide the dispute of membership of certain members. As already pointed out above, in election matters these are common disputes and it is not uncommon to refer these issues to the Court Officer/Commissioner.
13. Of course, the report of the Court Officer may not be final and it has to be ultimately accepted by the Court. That is precisely what was done in the instant case. The appellant had filed objections to this report, but no substance was found therein and vide a detailed order, the objections were rejected, report accepted and results of the elections declared by the Court. Once this process is gone into, it becomes the order of the Court and, thus, a judicial order came to be passed holding that the concerned persons were validly inducted as the members of the Samiti and also that the elections held by the Court Officer were proper and valid. When we look into the entire matter in this perspective, which is the only proper course, we do not find any substance in the argument of the Learned Counsel for the appellant that the Court abdicated its judicial function and the entire process was null and void. The judgments cited by the appellant, therefore, would not have any applicability to the facts of this case. Learned Counsel for the respondent is right in his submission when he points out that the grounds taken in this appeal are the same which were the basis of objections to the report and did not find favor with either the trial court or the High Court and even the Supreme Court refused to entertain the SLP. The argument that elections were null and void is, therefore, without any merit.
14. When we examine the entire matter from another angle, we would reach the same conclusion. After all, what was the subject matter of the suit and prayer contained therein? It was founded on elections purportedly held in the year 2000. With the orders of the Court fresh elections are held. On the basis of these elections, which has stamp of approval of the Court, new Governing Body has taken over and has assumed the charge of the Samiti. It would also be of importance to bear in mind that there was an interim order also allowing both groups to run, administer and control 18 Suvidha complexes. At that time, 11 complexes were being controlled by the appellant group and 7 by the respondent group. After the declaration of the election, interim order was passed directing handing over of the Suvidha centers to the newly elected Governing Body. The appellant had even challenged this order by filing CM (M) under Article 226 & 227 of the Constitution of India and this petition was also dismissed vide judgment dated 1.3.2006. When new Governing Body has taken over after properly conducted elections, the prayers made by the appellant in the suit, namely, to declare that they are the validly appointed Governing Body on the basis of elections held on 19.7.2000 and have right to run, administer and control the 18 Jan Suvidha Complexes, is clearly rendered infructuous. Therefore, the trial court is right in holding that after the elections held on 31.1.2004, the suit was not maintainable.
15. We, thus, are of the opinion that the appeal is wholly devoid of any merits. The same is, accordingly, dismissed with costs quantified at Rs. 10,000/-.