ORDER S.K. Singh, J.
1. Pleadings between the parties is complete and thus, as prayed by learned counsel from both sides, the matter is being heard on merit and is being decided finally.
2. Heard Sri Ravi Kiran Jain, learned Senior Advocate assisted by Sri Pushkar Mehrotra on behalf of the petitioners, Sri Anurag Khanna who appears for respondents No. 1 and 2 and Sri W. H. Khan and Sri A. K. Gaur who appears for respondent No. 3. After hearing arguments from both sides, on the date when the Judgment was reserved, as prayed by learned counsel for the petitioner, time was allowed to file a written note with case law in the light bf the arguments so advanced. Both sides have filed written note which has been perused.
3. At the time when the writ petition was filed, there happened a prayer for quashing the order of respondent No. 2 dated 11-12-2,001 (annexure 10 to the writ petition). By the aforesaid order, election dated 10-11-2000 in which committee of management headed by Anil Kumar Jain as its Secretary and Avinash Kumar Jain as President has been disapproved and further a direction was given that fresh election to constitute valid committee is to be conducted through Ashok Kumar Jain, the present respondent No. 3, within a period of two months. When the writ petition was filed before this Court, as no interim order was granted, the order of the respondent No. 1 operated and fresh elections are said to have taken place. In view of the subsequent developments as took place, on moving amendment application by the petitioners, this Court on 11-1-2002, permitted the amendment in relief clause i.e. for issuance of writ of certiorari quashing the show cause notice dated 18-11-2001 as contained in Annexure 8 to the writ petition and quashing the election to elect 15 members as held on 9-1-2002 and declared on 10-1-2002 as contained in Annexures 1 and 2 to the affidavit, It is thus, now the challenge before this Court is in respect to the show cause notice dated 18-11-2001 annexure 8, the order of the Vice-Chancellor/respondent No. 2 dated 11-12-2001, Annexure 10 to the writ petition and proceedings of the election and declaration of the result dated 9-1-2002 and 10-1-2002 (Annexures 1 and 2 to the affidavit).
4. Learned counsel for the petitioners submits that the show cause notice as has been issued is clearly uncalled for. As there was no complaint against the petitioners' election, the respondent No. 2 was required to approve the election dated 10-11-2000 and thus exercise of issuance of show cause notice is illegal. It is then submitted that the order of respondent No. 2 dated 11-12-2001 suffers from various infirmities namely (I) the order is non-speaking i.e. without assigning any reason (II) petitioners' detail objection/explanation supported by voluminous documents running in 53 pages has not at all been taken into account while passing the impugned order (III) the order of respondent No. 2 is based on incorrect premises as it refers to some objection against the petitioners' election, but so far as election dated 10-11-2000 is concerned, no objection was filed after the date of election (IV) no notice or any opportunity has been given to the elected president namely Avinash Kumar Jain and lastly, the order has been passed by respondent No. 2 without affording any personal hearing to the petitioner which was required in the facts of the present case inasmuch as, on the personal hearing, the petitioners could have satisfied the respondent No. 2 in respect to the various kind of irregularity and the violation of provisions of bye-laws arid the injunction order of the Civil Court, in light of the documents and the legal position in that respect, as is being complained. Besides the aforesaid aspects and the grounds on which the impugned order of respondent No. 2 dated 11-12-2001 and the consequential action of holding election have been challenged, learned counsel has also taken the Court to the detail pleading as is available in the reply as has been submitted by the petitioners before the respondent No, 2, pursuant to the show cause notice and also as set forth in the writ petition, various supplementary affidavits and rejoinders affidavits on the basis of which, holding of election on 10-11-2000 is sought to be justified. In view of the submission as has come from the side of respondents about holding of election on 10-11-2000 in violation of injunction order of Civil Court dated 25-10-2000, learned counsel for the petitioners submits that after the order of Civil Court dated 25-10-2000, all the members were duly informed by the registered post and due notice was published requiring them to participate In the election. It has been argued that In the event of election process having been started, as there has been no direction by the Civil Court for starting of entire process of election de novd, it has to proceed from the stage where it has already reached. In view of this, it has been pointed out that so far as further progress in the election process is concerned, by having publication in the news papers all the members having concern, were duly informed of their rights to participate subject to their rights which may be decided in the litigation. Learned counsel for the petitioner submits that so far election process is concerned, as the relevant Regulation 18 (b) of bye-laws permits the Vice-Chancellor to decide, whether the management is illegally constituted, which means a valid constitution in accordance with the provisions so contained in the Rules and Regulation, and thus it does not permit intervention of the Court and therefore, it was for the respondent No. 2 to address himself to these aspects instead of disapproving election dated 10-11-2000 straightway only by mentioning that the election was not in accordance with the order of the Civil Court and the provisions as contained in the Rules and bye-laws. In respect to the factual aspects, to justify holding of election on 10-11-2000 in a valid manner, pleadings as are contained in paras 10, 11, 12, 16 and 17 have been specifically referred. It is in the light of the aforesaid submission, learned counsel presses that the impugned order passed by respondent No. 2 is liable to be quashed as it is the first concern of respondent No. 2 to deal with the detail objection/reply as has been filed by the petitioners by giving finding and the reasons for not accepting the petitioners' contention and it only then either it may be required to be examined by the Chancellor on plea of alternative remedy as has been argued by learned counsel for the respondents or scrutiny in respect to rival pleadings dealing with factual aspects, by this Court.
5. All the learned counsel for the respondents have Joined in their submissions and has taken same stand. At very outset, Sri Khan, learned Advocate argues that the petitioners' are to be relegated to the alternative remedy to approach the Chancellor as is provided under Section 68 of U.P. State Universities Act. Then it has been submitted that the order of respondent No. 2 contains cogent reasons and the submissions in this respect from the side of the petitioner is totally misconceived. He submits that on a valid ground i.e. election dated 10-11-2000 is in violation of order of Civil Court dated 25-10-2000, it has been rightly disapproved by respondent No. 2. It has been emphasised that by the order dated 25-10-2000, the Civil Court has permitted all the 212 plaintiffs (members) to continue in the list of members and thus they were permitted to participate in the election process which includes their rights of filing of nomination, right of voting, which in the present case, having not been allowed, nothing more is required for holding the election dated 10-11-2000 to be invalid. Learned counsel further points out that the pleadings of the petitioners as has been pointed out about giving of information to all the members by registered post as has been stated in the rejoinder affidavit firstly has come for the first time and in any view of the matter, there is no proof in this respect and therefore, this averment of the petitioners needs rejection. It is pointed out that the notice has been published in the newspaper dated 10-11-2000 and it is on the same day, election has taken place and therefore, submission of the petitioners' side about opportunity to the members, is apparently incorrect. In the light of the aforesaid facts, learned counsel for the respondents submits that the respondent No. 2 keeping in the mind all these aspects, has passed the impugned order which cannot be termed to be a non-speaking, without any reason and arbitrary in any manner and therefore, besides the ground of availability of alternative remedy, the writ petition deserves dismissal on the merit as well.
6. By way of rejoinder to the submission of learned counsel for the respondents, learned counsel for the petitioners submits that the respondent No. 3 has duly participated in the election proceedings. It is pointed out that in the meeting dated 27-9-2000, respondent No. 3 was present in which, holding of election was decided and thereafter, he took chance in the election and it is after having been defeated, he is raising all sorts of frivolous objections. It is further pointed out that after an order of Civil Court dated 25-10-2000, notice was published on 4-11-2000 by which, all 212 plaintiffs/members were duly Informed that they can participate in the election dated 10-11-2000. It is submitted that it is after publi-'cation dated 4-11-2000, another publication took place on 10-11-2000 about which the learned counsel for respondents raises an objection that this publication is on the date of election. Copy of the publication dated 4-11-2000 has been brought on record as Annexure 9 to the rejoinder affidavit. Finally, learned counsel submits that as adjudication of the controversy involves detail finding on various factual aspects and as respondent No. 2 has not dealt with the same, the matter needs remittance to respondent No. 2 for a fresh decision.
7. By means of written note as filed before this Court after serving copy on learned counsel for the respondents, Sri Jain, Learned Senior Advocate narrates the following aspects that the suit as filed before the Civil Court was not maintainable as Section 69 of State Universities Act, creates specific bar. It is further pointed out that even if it is taken that the suit is not expressly barred, it is to be held that there is implied bar as the Apex Court has ruled that where statute gives finality to the order of specified Tribunal, the Civil Court's jurisdiction must be held to be excluded. Reference in this respect, has been made to the decision given by the Apex Court in the case of Dhula Bhai v. State of M.P., AIR 1969 SC 78. It is argued that the aforesaid case has been recently followed by the Apex Court in the case of State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao, AIR 2000 SC 2220. It is argued that as the effective machinery is already provided under the Statutes 13.05 (i) and 18 (b) of bye-laws and Regulation, election can be challenged after it is held. In this respect, reliance has been placed on a decision in the case of N.P. Punnuswamt v. Returning Officer, Namakkal, AIR 1952 SC 64. It has been further argued that even grant of temporary injunction is against the specific bar as created under Order 39, Rule 2 Proviso (c) & (h), as amended in Uttar Pradesh. Lastly, it has been pointed out that the right to vote, right to contest election and challenge to election, is not fundamental right and therefore, suit is clearly barred and any dispute in this respect can be raised only before the authority created under the statute and not in the Civil Court. Reliance has been placed in the case of Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 and Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851.
8. In response to the written note as filed on behalf of the petitioner, Sri Khan learned Advocate has also filed written submission along with details of case laws. It is submitted that the Vice-Chancellor has taken decision, disapproving the election on the ground that it has taken place in clear violation of the injunction so granted by the Civil Court. It is further pointed out that 21-2 life members were not included in the voter list and the suit as was filed in which injunction order was granted, is legally maintainable and on the facts it cannot be said to be barred by any provision of State Universities Act. It is further submitted that the alleged information by way of notice as published In the newspaper is just a show of and nobody could get any information. In support of the submission, that the suit in which injunction has been granted is legally maintainable, reliance has been placed on decision given by this Court in the case of CMP Degree College v. Y.P. Pandey, 1979 (5) All LR 275 : 1979 All LJ 522, decision given by Apex Court in Nagri Pracharini Sabha v. Vth Addl. District & Sessions Judge, 1991 Supp (2) SCC 36 and for the submission that the writ petition is to be dismissed on the ground of alternative remedy, reliance has been placed on a decision given in the case of Committee of Management v. Vice-Chancellor, (2002) 47 All LR 219 ; 2002 All LJ 835,
9. After hearing learned counsel for the parties, there cannot be any dispute about the fact that the controversy as involved in this petition requires adjudication of various factual aspects for adjudicating the issue, either way. The respondent No. 2 has given two reasons in the impugned order i.e. the election to be not in accordance with the order of Civil Court and also not in accordance with the Scheme of the College. A reading of the detailed reply as has been submitted by the petitioner before the respondent No. 2 on 20-12-2000 (Annexure 9) detailing various factual and legal aspects and also the pleadings before thjs Court dealing the factual aspects as argued and provided by way of written notes, it appears to be a matter requiring attention in some more detail about the questions in the light of the submissions and the documents/evidence, before forming an opinion. At one point, both learned counsel i.e. from the side of the petitioner, as well as from the side of the respondents, can be held to be fully justified in their respective submission i.e. (i) arguments from the side of the petitioner, to go into all the details as furnished before respondent No. 2 by way of detail reply and voluminous evidence as contained in 53 pages and then deal various factual aspects about validity of the election, after tasting the argument of the suit being not maintainable or the injunction as has been granted to be void (ii) arguments from the side of the respondents that various factual aspects requiring probe the petitioner is to be relegated to the alternative remedy to approach the Chancellor. Even after holding the arguments from both sides to be correct, on the facts of a particular case, so far the case in hand, needs other way out. The submission of learned counsel for the petitioner that this Court under Article 226 of the Constitution has every power to go into even factual aspects and after examining the detail evidence to take appropriate decision needs rejection for the simple reason that it is only when the concerned authority has applied his mind, referred to the pleadings and the evidence and has then formed opinion, then this Court can have an occasion to test the outcome, in the light of the reasons so contained in the order but take a case where the order of the concerned authority do not refer to any pleadings, evidence and just straightway opinion is formed, then this may not be justified for this Court to place himself in a position of original authority and to record its finding. The same principle applies in respect to the submission of learned counsel for the respondents also inasmuch as in the event, there is a reference to the pleadings and the evidence in any order, it is only then, it can be expected from the higher forum to test the decision of the subordinate authority but in the event, is lacking, it will be too harsh for the higher forum to direct to go into rival pleadings, screen the evidence and to form opinion. In view of the aforesaid, it appears that in the situation like this, where it appears to the Court that particular authority who is competent to take appropriate decision in respect to any claim, is required to at least to refer the pleadings of both sides and if there is evidence in support thereof to examine that and it is only thereafter, to express his opinion, it is lacking, to direct to do the same. No format in this connection for writing the order can be prescribed but perusal of any order, must give a feeling that every aspect has been kept in mind by the authority. This can only appear by giving some details of evidence and reasons in the order. The emphasis on giving reasons has always been insisted with a view to rule out arbitrary, whimsical and perverse exercise by any authority. In the present case, although, two reasons are given in the impugned order but that appears to, be in a shape of forming of the opinion without referring and dealing with lengthy details as has been placed from the side of the petitioner and even the respondent. The Court finds that the petitioner has responded to the show cause notice and has high lighted various factual aspects to explain the validity of the election and in the event, an opportunity of hearing would have been given various legal aspects as has been placed before this Court, as has been submitted by learned counsel for the petitioner could have been demonstrated before the respondent No. 2 and therefore, the decision by respondent No. 2 falls short of the aforesaid requirement. Although in these matters, it is not specifically provided that the parties are to be given opportunity of'personal hearing, but it is always in the ends of justice that after getting the version/counter version if there are two set of claims, if after fixing a date, opportunity is given to both sides, then it is beneficial in two ways (i) it will facilitate the concerned authority in understanding the things which otherwise may be difficult on its own, after reading and verifying the various things from the bulk, (ii) parties having satisfaction that they have placed their version and explained the authorities their view points. It is thereafter, it is for the authority to take a decision after dealing the facts. Although this Court is possessed of every power but at the same time, there is self restraint and therefore, I feel that in view of the voluminous documents as has been filed by the petitioner, as Indicated above along with his reply before the respondent No. 2 and various other kinds of pleadings and details as has been placed before this Court by way of various affidavits and lengthy details as given in written note from both sides, having not been attended, the matter needs remittance to the respondent No. 2 so that on detail analysis of things if a decision comes either way then it may be either for the Chancellor or for this Court to examine the correctness of the decision. As the respondent No. 2 appears to have not applied his mind in the manner it is required as indicated above, impugned decision deserves to be quashed. In the event of quashing of the order of respondent No. 2 dated 11-12-2001, consequential action of holding the election will automatically fall through.
10. In view of the foregoing discussions, this petition succeeds and is allowed. The Impugned order dated 11-12-2001 (Annexure 10 to the writ petition) and consequential steps of holding election are hereby quashed. The matter is being remitted to the respondent No. 2 for taking fresh decision after giving opportunity of hearing to the concerned parties, in accordance with law. Necessary exercise shall be completed within a period of two months from the date of receipt of certified copy of this order.