Judgment Reserved on 12.03.2019 Judgment Delivered on 26.07.2019
Case :- SPECIAL APPEAL No. - 306 of 2019
Appellant :- Samual P. Prakash And Another Respondent :- District Judge Gorakhpur And 3 Others Counsel for Appellant :- Jitendra Kumar Srivastava, Gajendra Pratap, Senior Advocate Counsel for Respondent :- A.D. Saunders, Manish Goyal, Samarath Singh, Sankalp Narain
Hon'ble Pankaj Mithal,J. Hon'ble Saumitra Dayal Singh,J.
We had heard Sri Gajendra Pratap, Senior Counsel assisted by Sri J.K. Srivastava for the appellant Samual P. Prakash and another, Sri A.D. Saunders for Rev. A.R. Stephen, Bishop, Diocese of Lucknow and Sri G.K. Singh, Senior Counsel assisted by Sri Sankalp Narayan for Peter Baldev, Bishop, Diocese of Lucknow, Church of North India, Ex-officio Chairman of Committee of Management, St. Andrew's Intermediate College, Gorakhpur.
St. Andrew's Intermediate College, Gorakhpur. (hereinafter referred to as “the institution”) is a recognized minority institution governed by the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred as as “the Act”) and the Regulations framed thereunder. It has an approved Scheme of Administration.
The dispute of the Committee of the Management of the aforesaid institution which arose on account of election held on 11.3.2003 and recognized on 29.5.2003 came up for consideration before this Court by means of two special appeals (Special Appeal No.242 of 2006 and 1153 of 2007 arising out of two writ petitions viz. Writ Petition No.437 of 2003 and 30710 of 2003). The said appeals with the agreement of the learned counsel for the parties were disposed of by a common order dated 23.11.2007 with certain directions. The District Judge, Gorakhpur or an Additional District Judge nominated by him was directed to act as an Observer (Court Observer) for holding election of the posts of Vice-President, Assistant Manager and the Manager of the Committee of Management of the institution in accordance with the Scheme of Administration and the Court Observer was given liberty to find out if the Committee of Management is duly constituted and in case there is any vacancy of any Member the concerned body be requested to fill up the said vacancy by nomination or co-option.
In pursuance thereto lists of the Members of the Committee of Management were furnished by the rival groups. The Court Observer vide order dated 29.1.2008 held that Samual P. Prakash, Bishop of Lucknow is the Ex-Officio President of the institution as per the Scheme of Administration and the list of the Members of the Committee of Management or the Committee of Management headed by him is the validly constituted Committee of Management. Accordingly, one Additional District Judge was appointed as Court Observer to oversee the election to the post of Vice-President, Assistant Manager and the Manager of the Committee of Management.
The above order was challenged by the Rev. A.R. Stephen, Bishop, Diocese of Lucknow, Church of North India and the rival Committee of Management of the institution by filing Writ Petition No.8607 of 2008. The said writ petition has been allowed by the learned Single Judge by the impugned judgment and order dated 20.2.2019. The order of the District Judge as Court Observer dated 29.1.2008 has been quashed with direction to conduct the elections to the three posts of Committee of Management within a stipulated period in terms of the decision dated 23.11.2007 of the Division Bench.
The above decision of the learned Single Judge dated 20.2.2019 has been assailed by Samual P. Prakash and the Committee of Management headed by him, primarily on the ground that as the election process was continuing the writ petition was not maintainable. Therefore, the Single Judge acted without jurisdiction in allowing the same.
The moot question, apart from other ancillary issues regarding the correctness of voters' list and whether the Church of North India is the successor of Church of Burma, Pakistan and Ceylon, which arises herein is whether the writ petition against the impugned order dated 29.1.2008 was maintainable when the election process was continuing and the writ Court was justified in entertaining it and quashing the said order.
The law on the subject is no longer res-integra and is well settled.
Right from N.P. Ponnuswami1 till date it has been repeatedly held that once the election process starts it is not proper for the Courts, not even for the High Court to interfere with the election process.
It has also been recognized that the preparation of the electoral roll is an intermediate stage in the process of election of a Committee of Management of a society or institution and
1 N.P. Ponnuswami Vs. Returning Officer AIR 1952 SC 64 that the preparation of the electoral roll sets the election process in motion. In Shri Sant Sadguru Janardan Swami2 it has been held that High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll, if the election process has already been set into motion, as it would always be open for the parties to challenge the election, if aggrieved, by means of an election petition or by taking recourse to any other remedy that may be available in law.
A Division Bench of this Court in Vineet Agnihotri3 in respect of an election dispute regarding the Committee of Management of an institution held that the principle laid down in N.P. Ponnuswami (supra) restraining any interference in the process of election after the elections are notified is equally applicable to the election of the Committee of Management and the Society as well as the Committee of Management required to be elected in accordance with the provisions of the scheme of administration of the institution and that the Court should be conscious that the writ petition challenging the process of election or any intermediate stage thereof should be entertained only when parties have exhausted all alternative remedies.
The same principle that whenever process of election starts normally Court should not interfere with the process of election for the reason that if such a latitude is given possibily no election would be completed was reiterated by the Supreme Court in the case of Shaji K. Joseph4.
2 Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another Vs. State of Maharashtra and others (2001) 8 SCC 509
3 Vineet Agnihotri and another Vs. State of U.P. and others (2014) 4 ADJ 716 (DB)
4 Shaji K. Joseph Vs. Viswanath and others (2016) 4 SCC 429 In Shiv Pujan Tiwari5 this Court held as under:-
“The election is a democratic process and it is well-settled that the election process once initiated should not be interfered. The election officer may verify the voters in respect of whose particulars variation is alleged before allowing them to vote. After the election, if there is any infirmity or illegality, the petitioner may challenge the election in a suit.”
One another Division Bench of this Court presided over by Dr. D.Y. Chandrachud, C.J. (as His Lordship then was) in Committee of Management, Sri Khandeshwari Baba Laghu Madhyamik Vidyalaya6 refused to interfere in the election of the Committee of Management on the ground that the list of Members was incorrect by holding it not maintainable as the dispute involves disputed question of fact and the proper remedy available to the parties is by way of civil suit.
Recently, a three Judges Bench of the Supreme Court in West Bengal State Election Commission7 reiterated the above principles and held that “once the election process has commenced, it is trite law that it should not be interdicted mid stage”.
In view of the aforesaid decisions and the law laid down, it is amply clear that the election process ought not to be disturbed once it has started; that the above principle is applicable even in respect of the election of the Committee of
5 Shiv Pujan Tiwari, Manager, Committee of Management, Junior High School Kashmapur Balupur, Ballia Vs. State of U.P. 2008 AWC 2193
6 Committee of Management, Sri Khandeshwari Baba Laghu Madhyamik Vidyalaya Vs. State of U.P. and 3 others (Special Appeal No.1954 of 2013 decided on 17.12.2013)
7 West Bengal State Election Commission Vs. Communist Party of India (Marxist) and others AIR 2018 Supreme Court 3964 Management of the institutions and societies and that the preparation of the electoral roll is a stage of process of election.
In the instant case, the High Court by its decision dated 23.11.2007, as agreed by the counsel for the parties had disposed of the special appeals with certain directions, inter alia, directing the District Judge, Gorakhpur or an Additional District Judge nominated by him to act as Observer for holding the election on the posts of Vice-President, Assistant Manager and the Manager of the Committee of Management of the Institution after getting any vacancy of the Member existing in the Committee of Management duly filled up. The order impugned in the writ petition was a step in the direction to complete the election process as directed by the High Court for which purpose the Court Observer i.e. the District Judge held that the Committee of Management as submitted by Samual P. Prakash is the validly constituted Committee of Management and accordingly the election to the posts, as directed, are to be held and completed under the supervision of the Observer for which purpose an Additional District Judge was nominated.
Thus, apparently the aforesaid order passed by the Court Observer was a part of the election process which had already commenced. Therefore, in the light of the above decisions the said order was not liable to be disturbed in exercise of writ jurisdiction. The election held in pursuance thereof or the illegality in the voters' list could be challenged by the party aggrieved either by way of election petition or civil suit, as may be advised.
In the aforesaid facts and circumstances, we are not going into the other ancillary questions and set aside the order of the learned Single Judge dated 20.2.2019 on the preliminary issue that the writ petition was not maintainable and it was not justified on the part of the writ court to have interfered with the impugned order passed by the Court Observer during the process of the election.
The special appeal is allowed. No order as to costs.
Order Date :- 26.7.2019 Brijesh