ASHOK KUMAR LODHA vs SHRI ALL INDIA SWETHAMBER STHANAKWASI JAIN CONFERENCE & ORS.
$~78
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 4th DECEMBER, 2023
IN THE MATTER OF:
+ W.P.(C) 15546/2023
ASHOK KUMAR LODHA ….. Petitioner
Through: Mr. Akash Kakade, Mr. Swetab Kumar and Mr. Pawan Kaushik, Advocates.
versus
SHRI ALL INDIA SWETHAMBER STHANAKWASI JAIN CONFERENCE & ORS. ….. Respondents
Through: Mr. Jai Ram Garg, Advocate.
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT(ORAL)
CM APPL. 62291/2023 (Exemption)
Allowed, subject to all just exceptions.
W.P.(C) 15546/2023 & CM APPLs. 62290/2023, 62292/2023
1. The Petitioner seeks to challenge the Order dated 06.06.2023 passed by the learned Trial Court allowing an application filed under Section 8 of the Arbitration & Conciliation Act and referring the parties to Arbitration in terms of the bye-laws of the Shri All India Shwetamber Sthanakwasi Jain Conference.
2. The case as borne out from the records reveals that the Petitioner is a lifetime member of the Shri All India Shwetamber Sthanakwasi Jain Conference. It is stated that the Petitioner was the National Vice-President, Youth Wing of the Society from 2014 to 2016.
3. It is stated that Respondent No.1/ Shri All India Shwetamber Sthanakwasi Jain Conference (hereinafter referred to as the Society) is a Society registered under the Societies Registration Act, 1860, formed to spread the spiritual message and the principles of Jainism. It is stated that the aim of the society is also to serve the Sadhus and Sadhvis and help them in their Padyatra. It is stated that the Society has got its own bye-laws and constitution.
4. It is stated that since 2020, no election was conducted for the post of President and the funds of the Society were being misused. It is stated that for conducting Elections for National President, State Presidents, State and National Executive Committee Members, a National Election Committee was formed comprising the National Chief Election Officer and two co-Election Officers. The election process was declared for the tenure years 2021-2023. The process of the election is described as under:-
Step 1: Distribution of Nomination Forms
For National President: From 02.04.2021 to 06.04.2021, 4 pm at Head Office, New Delhi.
For State Presidents & National Executive Committee Members: From 02.04.2021 to 06.04.2021, 4 pm at respective State Branch Offices.
Step 2: Submission of Nomination Forms
For National President: From 09.04.2021 to 14.04.2021 at Head Office, New Delhi.
For State Presidents& National Executive Committee Members: From 09.04.2021 to 14.04.2021 at respective State Branch Offices.
Step 3: Scrutiny & Rejection of Nominations Forms
For both National President, State Presidents & National Executive Committee Members: 15.04.2021 & 16.04.2021.
Step 4: List of Valid Candidates
List of Valid Candidates for the Posts of National President, State Presidents & National Executive Committee Members to be affixed on display board in the Head Office & all the State
Step 5: Listing of Complaints against the Valid Candidates
Inviting the Complaints against the Valid Candidates and affixing those Complaints in the Head Office & all the State Branch Offices by 4 pm of 19.04.2021.
Step 6: Hearing/Enquiry regarding the Complaints received
From 21.04.2021 till 4 pm of 22.04.2021.
Step 7: Withdrawal of Nominations
For National President: From 23.04.2021 till 4 pm of 27.04.2021 at Head Office, New Delhi.
For State Presidents & National Executive Committee Members: From 23.04.2021 till 4 pm of 27.04.2021 at respective State Branch Offices.
Step 8: Final List of Candidates
For National President: 5 pm of 27.04.2021. For State Presidents &National Executive Committee Members: 6 pm of27.04.2021.
Step 9: Conducting/Polling the Election
For National President: 16.05.2021. For State Presidents & National Executive Committee Members:16.05.2021.
Step 10: Counting of Votes
For National President: 16.05.2021. For State Presidents & National Executive Committee Members:16.05.2021.
Step 11: Declaration of Results
For National President: 16.052021
For State Presidents & National Executive Committee Members: 16.05.2021.
5. It is stated that due to COVID-19 pandemic, the National Election Committee declared that since aforesaid Steps 3 to 8 do not involve substantial physical involvements, they would be completed by using virtual meetings etc. and the polling dates would be announced after the COVID-19 situation improves.
6. It is stated that the notification for the process of withdrawal of nomination for election was issued by the National Election Committee on 23.04.2021 but the other steps as detailed above were not completed. The final list of candidates was announced which includes Respondent No. 2.
7. It is stated that the polling, counting of votes, declaration of results was kept on getting postponed stating that the election has been done in violation of the procedure and alleging various malpractices being conducted. The Petitioner filed a suit for declaration, mandatory and permanent injunction during the election in which Respondent No.2 has been elected as President. The Petitioner filed the suit with the following prayers:-
a Pass a decree of declaration thereby declaring that the Notification dated 07.08.2021 of the Defendants No.4, 5 & 6, being members of the National Election Committee, reenacting the Withdrawal of Nomination for the Post of National President to be arbitrary, illegal, unlawful, ultra vires, null & void and against the Provisions & Bye Laws of the Defendants No. 1 Society AND consequentially declaring the announcement of the Defendant No.3 being elected unopposed on 03.10.2021 as the National President (winning certificate handed over on 07.10.2021) to be arbitrary, illegal, unlawful, ultra vires, null & void and against the Provisions & Bye-Laws of the Defendants No. 1 Society;
b. Pass a decree of declaration thereby declaring that the Swearing-in of the Defendant No.3 as National President of the Defendant No.1 Society to be arbitrary, illegal, unlawful, ultra vires, null & void and against the Provisions & Bye-Laws of the Defendants No.1 Society;
c. Pass a decree of Mandatory Injunction for Appointment of a Receiver who may be a Learned Retired District Judge or the Chairman of the Trust of Defendant No. 1 i.e., the Defendant No.2, to conduct and monitor the elections afresh in accordance with the Bye-Laws of the Defendants No. 1 Society; .
d. Pass an ad-interim injunction thereby the Chairman of the Trust Board i.e., the Receiver or Defendant No.2 be handed over the charge to manage the day- to-day business of Defendant No.1 society;
e Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendant No.3, thereby restraining the Defendant No.3 from taking any policy/financial decisions in the capacity of National President of the Defendant No.1 Society;
f. Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendant No.3, thereby restraining the Defendant No.3 from convening any kind of Meetings whatsoever in the name of the Defendant No.1 Society;
g Pass a decree of permanent Injunction restraining the Office-Bearers appointed by the Defendant No.3 in the capacity of the National President of the Defendant No. 1 Society, from interfering in the day-to- day business activities of the Defendant No.1 Society;
h. Pass a decree of permanent Injunction directing the Defendant No.1 to preserve all kinds of Communications, Meetings including Electronic Form, beginning from the announcement of the Election Process i.e., 10.03.2021 till filing of the present suit;
i. Pass a decree of permanent Injunction directing the Defendant No.1 to preserve the Recordings of Zoom Meeting held on 09.01.2022;
j. Cost of the Suit may be awarded in favour of the Plaintiff;
Pass any other or further relief (s) which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case in favour of the plaintiff and against the defendant and/or;
Cost of the suit may also be awarded in favour of the plaintiff.
8. An application under Section 8 of the Arbitration & Conciliation Act was filed by Respondent No.1 in CS SCJ 332/2022 along with written submissions seeking referral of the dispute to Arbitration in view of Clause 20 of the bye-laws of the Society.
9. The said application under Section 8 of the Arbitration & Conciliation Act has been allowed by the learned Judge, Patiala House Courts, New Delhi vide Order dated 06.06.2023 and the parties have been relegated to Arbitration.
10. Learned Counsel for the Petitioner states that since the challenge is to the elections for the National President, the Arbitration clause is not an alternative effective remedy because under the said clause, the complaint should be made to the National President against whom allegations are being made.
11. Heard learned Counsel for the Petitioner and perused the material on record.
12. The contention made by learned Counsel for the Petitioner is not tenable. Clause 20 of the bye-laws of the Society provides for Arbitration, which reads as under:-
20. Arbitration: For any dispute in the Jain Conference, the complainant must first make a complaint to the National President of the Jain Conference. If the complainant is not satisfied with the decision of the National President, they will get their complaint lodged to the National Management Committee. On receipt of the complaint, the National Management Committee will deliberate and form the Arbitration Committee. If they are not satisfied with the decision of the Arbitration Committee, they will be able to go for further legal proceedings.
13. A reading of the bye-laws of the Society shows that it is a two step procedure, the first step is a complaint to the National President and if the decision of the National President is not satisfactory, then the complainant can file a complaint to the National Management Committee and the National Management Committee will deliberate and form an Arbitration Committee.
14. The contention of the Petitioner that the complaint would not be redressed cannot be countenanced. The Petitioner can make a complaint to the National President and since allegations are made against the National President himself, the National President will automatically refer the complaint to the National Management Committee and the National Management Committee will deliberate and form the Arbitration Committee.
15. In any event, it is always open for the Petitioner to approach the Court under Section 11 of the Arbitration & Conciliation Act for getting the Arbitrator appointed in terms of the Arbitration clause.
16. The scope of revisional jurisdiction under Article 227 of the Constitution of India has been succinctly described times without number in various judgments of the Apex Court.
17. It is well settled that exercise of jurisdiction under Article 227 of the Constitution of India should be exercised very sparingly. The power is discretionary and has to be exercised on equitable principle. The purpose of Article 227 of the Constitution of India is to keep strict administrative and judicial control by the High Court within its territory and the object of superintendence is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way that it does not bring in any disrepute.
18. It is also well settled that the power of interference under Article 227 of the Constitution of India should be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the Tribunals and Courts subordinate to the High Court. It has been held that the reserve and exceptional power of judicial intervention is not to be exercised for grant of relief in individual cases but should be directed to promotion of public confidence and public interest. [Refer to:- Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329].
19. The power of superintendence conferred under Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. [Waryam Singh v. Amarnath, 1954 SCC OnLine SC 13].
20. A perusal of the Arbitration clause shows that the bye-laws of the Society cover all the disputes arising out of the functioning of the Society including the elections. It is well settled that the language of Section 8 of the Arbitration & Conciliation Act is preemptory and it is necessary for the Court to refer the parties to Arbitration in terms of the arbitration clause.
21. The Apex Court in Branch Manager, Magma Leasing and Finance Limited & Anr. v. Potluri Madhavilata & Anr., (2009) 10 SCC 103, has observed as under:-
18. Section 8 is in the form of legislative command to the court and once the prerequisite conditions as aforestated are satisfied, the court must refer the parties to arbitration. As a matter of fact, on fulfilment of the conditions of Section 8, no option is left to the court and the court has to refer the parties to arbitration. There is nothing on record that the prerequisite conditions of Section 8 are not fully satisfied in the present case. The trial court, in the circumstances, ought to have referred the parties to arbitration as per arbitration Clause 22.
(emphasis supplied)
22. The decision taken by the learned Judge referring the parties to Arbitration is a plausible view and does not require any interference under Article 227 of the Constitution of India.
23. The petition is dismissed along with pending application(s), if any.
SUBRAMONIUM PRASAD, J
DECEMBER 4, 2023
hsk
W.P.(C) 15546/2023 Page 1 of 10