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Raghunath Dwivedi vs The Vice-Chancellor, University ...

High Court Of Judicature at Allahabad|24 November, 1995


ORDER R.R.K. Trivedi, J.
1. In this Special appeal legality of the order dated 16:5-1995, passed by the learned Single Judge, in Civil Misc. Writ Petition No. 5706 of 1995 has been questioned.
2. Facts, in brief, giving rise to this appeal are that on 31-1 -1995 a notice was given for holding elections to elect the office-bearers of the students Union of Allahabad University. By this notice, 24-2-1995 was fixed for holding election. However, this date was subsequently changed under the order of this Court and 25-2-1995 was fixed for election. Petitioner appellant herein and respondent no. 5 were candidates for the post of Vice President in this election apart from some others. As per schedule, the election took place on 25-2-1995. However, on account of some disturbances in four polling stations, repolling was directed to take place on 26-2-1995. Counting of the votes started in the evening of 26-2-1995, which was completed in the night of 26/27-2-1995. After counting was over, the Returning Officer declared the results. Appellant was declared elected for the post of Vice President. In this counting it was found that the votes polled by the appellant were 1964 and the votes polled by respondent no. 5 were 1947. Thus, the appellant was declared elected by a margin of 17 votes. After declaration of the result all the office-bearers elected were administered oath on 27-2-1995. However, it appears that respondent no. 5 moved an application before the Vice-Chancellor on 27-2-1995 questioning the election of the appellant. On this application the Vice Chancellor passed the following order:--
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3. It is alleged that same day, i.e. on 27-2-1995, meeting of the members of the Judicial Committee took place and considered the appli-
cation of respondent no. 5 and allowed it and gave their decision for recounting of the votes in respect of the office of Vice President. By this order the Judicial Committee also declared the entire oath taking ceremony as illegal. A copy of the decision of the Judicial Committee was sent to the Vice Chancellor who on 28-2-1995 directed the Chairman of the Board of Trustees and the Returning Officer to hold reccounting at 2.00 P.M. same day. In recounting respondent No. 5 was declared elected having polled 1980 votes whereas the appellant has been shown to have polled 1875 votes. Aggrieved by the aforesaid action, the appellant filed Writ Petition No. 5706 of 1995 and prayed that the election result for the post of Vice President declared on 1-3-1995 in favour of respondent no. 5 be quashed and a direction may be issued restraining respondent no. 5 from functioning as Vice President. It was also prayed that respondent authorities may be restrained from interfering in petitioner-appellant's functioning as Vice President from which he was declared elected and was administered oath on 27-2-1995.
4. Respondent No. 5 put in appearance and contested the claim of the appellant. On his behalf a preliminary objection was raised questioning the maintainability of the writ petition on the following three grounds:--
Firstly, that the Students Union is not a statutory body and election of its office-bearers being its internal matter, no writ petition is maintainable challenging the said election.
Second objection was that there is an effective alternative remedy of filing an election petition before the Judicial Committee under Clause 72 of the Constitution of the Students Union of Allahabad University.
Thirdly, that the order of the Vice Chancellor can be challenged before the Chancellor under Section 68 of the U. P. State Universities Act, 1973 (hereinafter referred to as the Act.).
5. The learned Single Judge after hearing both the parties rejected the objection raised on behalf of respondent No. 5 regarding maintainability of the writ petition in view of the alleged alternative remedy available under Clause 72 of the Constitution of the Students Union and under Section 68 of the Act. However, the learned Judge accepted the first contention raised on behalf of respondent No. 5 and took the view that none of the disputes under challenge can be raised in writ petition and the writ petition is not legally maintainable. The Writ Petition filed by the appellant has accordingly been dismissed by order dated 16-5-1995, aggrieved by which the present appeal has been filed.
6. We have heard Shri Shailendra Kumar, learned counsel appearing for the appellant and Shri U. N. Sharma, learned counsel appearing for respondent No. 5 and Shri Ashok Bhushan, learned counsel for respondents Nos. 1 to 4.
7. So far as respondent no. 6 Judicial Committee. Allahabad University Union, is concerned, this Court on 25-5-1995 had taken the view that notice cannot be issued as it was not party before the learned Single Judge nor any order was passed on the application for its impleadment. Learned counsel for the appellant has submitted that Chapter LVI of the Ordinance applicable to the University of Allahabad contains provision about Allahabad University Union, Ordinance no. 3 whereof declares that Allahabad University Union "is an integral part of the University. It also provides that the Executive Council of the University shall lay down the fundamentals of the Constitution by Rules in consultation with representatives of the Union and may amend them in similar manner when necessary. The framing of the Constitution of the Union is subject to this power of the Executive Council. The learned counsel has submitted that from the aforesaid declaration it is clear that the University Union is an integral part of the University and the Constitution of the Union has also been framed as per the fundamentals laid down by the Executive Council and thus it has statutory force and the Union is a statutory body. The relief claimed by the appellant in the writ petition could be granted under Article 226 of the Constitution of India. The learned counsel has further submitted that those Ordinances have been framed under Section 32 (1) of Allahabad University Act, 1921. They are in force since their inception and their legality has never been questioned. Learned counsel has relied on the provisions contained in Sections 13 (4), 51 and 52 (1) of the Act and has submitted that the First Ordinance of the University shall be the Ordinance as in force immediately before the Commencement of the Act. The Allahabad University is an existing University and the Ordinances which were in force on 2-9-1973 when the U. P. State Universities Act, 1973 came into force, became the Ordinances for the University. In view of the provisions contained in the Act and the Ordinances mentioned above, the relief claimed by the appellant could not be legally denied. It has been further submitted that assuming that the University Union of the Students is not a statutory body, the appellant is aggrieved by the orders passed by the Vice Chancellor and the Returning Officer who are statutory authorities and officers of the University and the appellant was entitled for the relief. The activities of the Union of the students are controlled by the University authorities which is clear from the Ordinances. Teachers are members of the Union and entire financing is done by the University. Compulsory fee is realised by the University from the students for the activities of the Union and in these circumstances the union of the students of the University is an instrumentality of the University itself and holds statutory character. The learned Judge has illegally denied the relief to the appellant.
8. So far as the merits of the claim made in the writ petition are concerned, has been submitted that the application was made on 27-2-1995 by one person before the Vice Chancellor. The application was not signed by 200 Students as required under para 72 of the Constitution of the Union of the Students. The application did not contain any ground for interference, No notice was given to the appellant of this application. Oath was already administered to the office-bearers elected and with this the old Judicial Committee ceased to be in existence. The two members who were nominated by the Vice Chancellor in the Judicial Committee were not given notice of the meeting. The alleged Judicial Committee illegally assumed jurisdiction and passed the order for recounting without affording any opportunity of hearing to the appellant. Even the Returning Officer ceased to have any authority over the matter and he illegally directed the recounting. The learned counsel has submitted that the main grievance of the appellant was against the actions of the Vice Chancellor and the Returning Officer who were statutory authorities. It has been further submitted that at the time of the recounting only the students who were favourable to respondent no. 5 were present. Even the teachers who were asked to supervise the recounting were not present. The Returning Officer in his report submitted that the teachers had left the place before the recounting was completed. The learned counsel has submitted that the total votes polled at the first counting on 26-2-1995 were more than 9000. However, on second counting on 28-5-1995 the votes polled had been reduced to around 8000. There is no explanation how the total votes polled had been reduced. The learned counsel has submitted that the entire action was politically motivated and the appellant has been illegally dusted from the office for which he was legally elected. Learned counsel has relied on certain authorities in support of his submission which shall be referred to at the appropriate places.
9. Learned counsel for the respondents, on the other hand, has submitted that under Section 32 of the Allahabad University Act, 1921, the Executive Council could not exercise power to frame Ordinances forming a union for the students of the University and to frame a constitution for such union. The Ordinances framed are beyond the authority of the Executive Council and the Students Union and the Constitution framed by it cannot get the status of a Statute nor the Union can be statutory body. Assuming that the power to frame Ordinances vested with the Executive Council, any action taken under the Constitution framed by the Union cannot be interfered with under Article 226 of the Constitution of India as it cannot have statutory force. The Judicial Committee is not a Statutory body and the order passed by it cannot be questioned under Article 226. The Ordinances relied on behalf of the appellant could not be legally framed either under the old Act or under the new Act. The relief sought could not be granted under Article 226 as the Judicial Committee is not an authority of the University. In this connection the learned counsel has referred to Sections 9 and 19 of the Act. Learned counsel has also referred to the various paragraphs of the constitution of the University Union and has submitted that this Court cannot sit in appeal over the orders passed by the Judicial Committee which is wholly a private body constituted under the Constitution of the students Union by electing members. The Vice Chancellor only carried out the order passed by the Judicial Committee and he has not played any role in arriving at the decision taken by the judicial committee by which the appellant is aggrieved. Thus in the circumstances the relief sought for issuing a writ of mandamus cannot be granted under Article 226 of the Constitution by this Court.
10. Shri Ashok Bhushan, learned counsel appearing for the University submitted that even assuming that the Union is an integral part of the University, the Judicial Committee cannot be treated as part of the University and the same is not amenable to Writ jurisdiction. The Vice Chancellor has only implemented the decision of the Judicial Committee in the capacity of patron and no writ can be issued under Article 226 by this Court against a private body.
11. We have seriously considered the submissions made by the learned counsel for the parties. We have also perused the record produced by Shri Ashok Bhushan, learned counsel appearing for the University. In our opinion, in the present case, for deciding as to whether the relief sought for in the writ petition can be granted under Article 226 of the Constitution or not, it is not necessary to decide whether the Union of the Students is a statutory body or whether the Constitution of Allahabad University Union has statutory effect. Clause 118 of the new Constitution of Allahabad University Union is very relevant for deciding the controversy in the present appeal. Clause 118 is being reproduced below :--
"118 (a) The Vice Chancellor shall be the patron of the Union and as such shall have the right of attending or dissolving any meeting of the general house or the executive committee or the judicial committee and shall have the power to overrule any decision or to send back to the Executive Committee or to the Judicial Committee any of the decisions for reconsideration and shall have all the necessary powers for this purpose as also for the observance of all clauses of the Constitution.
(b) The Vice Chancellor or his representative may attend any meeting of the Union or of the Executive Committee."
12. From a perusal of Clause 118 aforesaid it is clear that the aforesaid bye-laws framed at the General Body meeting of the Union have conferred on the Vice Chancellor who is admittedly an officer of the University with wide powers to do away with any injustice caused to any party. Hon'ble Supreme Court in several cases has made it clear that writ can be issued even in cases of infringement of private right by any person or authority if some statutory authority or officer has passed any order causing such infringement. It has also been held that in such cases it is not necessary as to what is the source of power. The source of power may be from the bye-laws which also have no statutory stature. Hon'ble Supreme Court in case of Sri Anadi Mukta Sadguru Sri Mukta Ji Vandas Ji Swami Suvarna Jayanti Mahotsava Smarak Trust v. V. R. Rudani, reported in AIR 1989 SC 1697 has held as under (at p. 1613 of AIR):--
"The term "Authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied....."
13. To the same effect were the observations of Hon'ble Supreme Court in case of Tika Ram v. Mundi Kota Shikshan Prasaarak Mandal, reported in AIR 1984 SC 1621, which are being reproduced as under (at p. 1622 of AIR):
".....In the writ petition the appellant was not seeking any relief directly against the Management on the basis of the clauses, in the School Code. If the Management does not obey the order passed by the Deputy Director or the Director, it is open to the State Government to take such action under the School Code as may be permissible. In such an event, the recognition accorded to the school may be withdrawn or the grant-in-aid may be stopped. In the instant case the appellant is seeking a relief not against a private body but against an officer of Government who is always amenable to the jurisdiction of the Court. The appellant has merely sought the quashing of the impugned order dated Nov. 26, 1976 passed by the Director on review setting aside the order of the Deputy Director. What consequences follow from the quashing of the abovesaid order in so far as the Management is concerned is an entirely different issue. In the circumstances, the High Court was wrong in holding that a petition under Art. 226 of the Constitution did not lie against the impugned order passed by the Director. We are aware of some of the decisions in which it is observed that no teacher could enforce a right under the School Code which is non-statutory in character against the Management. But since this petition is principally directed against the order passed in a quasi judicial proceeding by the Director, though in a case arising under the School Code and since the Director had assumed a jurisdiction to review his own orders not conferred on him we hold that the appellant was entitled to maintain the petition under Article 226 of the Constitution."
14. If the controversy involved in the present writ petition is considered in the light of the observations made by the Hon'ble Supreme Court in the aforesaid two cases, in our opinion, there could not be any difficulty in deciding the writ petition on merits instead of dismissing it on the ground of non maintainability. However, much has been argued on the question that the Union of the students of Allahabad University is absolutely a private body unconnected with the affairs of the University and the Ordinances framed by the Executive Council to regulate the activities of the Students Union are wholly without authority as they could not be framed either under the Act or the Allahabad University Act, 1921. We have seriously considered this aspect of the matter but, in our opinion, it is difficult to accept that the activities of the Union are wholly independent and have no connection with the object for which the University exists. It should not have been forgotten that the University is not only the place of learning (of the courses and books which are generally prescribed for the students pursuing various studies of different disciplines), but it is also a place where the student joining it, at the tender age after completing pre-graduation studies, is given full opportunity to develop his personality in such a manner that he may success-
fully pursue his activities in future life and may prove a valuable asset to the nation. It is a different matter as to whether this paramount object is being pursued by the Universities truthfully and honestly or not. Section 7 of the Act provides for the powers and duties of the University. Some of the provisions contained therein are relevant to be produced to appreciate as to whether the exercise of power exercised by the Executive Council in framing the Ordinances dealing with the Union of the students of the University was without authority or was it towards fulfilment of the object of the University.
"Section 7(1): to provide for instruction in such branches of learning as the University may think fit, and to make provision for research and for the advancement and dissemination of knowledge;
Section 7 (15) : to supervise and control the residence and to regulate the discipline of students of the University, the Institute and the constituent or affiliated or associated colleges and to make arrangements for promoting their health;
Section 7(17) : to do all such acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University."
15. The Ordinances framed by the Executive Council if considered in the light of the aforesaid provisions, then they establish the necessary nexus of the Union of the Students with the activities of the University and the object for which it has been established.
Ordinance No. 2 of Chapter LVI provides for the objects of the Union which are as under :--
(a) to foster and inculcate among the members patriotism, broad-mindedness, fellow feeling and spirit of discipline;
(b) to hold debates and arrange symposiums and lectures;
(c) to promote, corporate, social and cultural activities in general.
16. Ordinance No. 3 provides for the framing of the Constitution of Allahabad University Union and contains declaratory
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Raghunath Dwivedi vs The Vice-Chancellor, University ...


High Court Of Judicature at Allahabad

24 November, 1995
  • A L Rao
  • R Trivedi