GAUTAM DUTTA vs REGISTRAR OF SOCIETIES & ANR.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 28th March, 2024
+ CM APPL. 16147/2024 in W.P.(C) 6243/2023 & CM APPL. 13790/2024
GAUTAM DUTTA ….. Petitioner
Through: Mr.Ankur Chawla, Mr.Rahul Pratap, Mr.Akshay Ringe, Mr.Gautam Dutta, Mr.Dhananjay and Ms.Prerna Mahajan, Advocates
versus
REGISTRAR OF SOCIETIES & ANR. ….. Respondent
Through: Mr.Satyakam, ASC for GNCTD with Mr.Pradyut Kashyap, Advocate for R-1
Mr.Rakesh Tiku, Sr. Advocate with Mr.Sanjeet Singh, Advocate for R- 2/NSCI
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
CM APPL. 16147/2024 & CM APPL. 13790/2024 in W.P.(C) 6243/2023
1. The application bearing no. 16147/2024 has been filed under Section 151 of the Code of Civil Procedure, 1908 seeking the following reliefs:
“a)??Pass an Ad-Interim order, direction restraining the implementation enforcement or operation of Rule 86 of the supplementary bye-laws of the Respondent No.2, in the forthcoming elections to be held on 07 April 2024.
b)Pass an Ad-Interim order, direction restraining Respondent No 2, from following the procedure of adding votes cast by the Mumbai Region members who are not enrolled in Delhi Region, to declare the winner at Delhi Region Central Council Member, exclusively reserved for the Members of the Region and vis-e-versa.
c)Direct Respondent No 2, to hold elections in strict compliance of its Rules 85 Regulations..
d) Pass any other order, directions which this Hon’ble Court deems fit 85 proper and to uphold the interest of justice, in the conduct of the forthcoming elections to be held on 07 April 2024.”
2. The captioned writ petition in which the instant applications have been filed is related to the issue of mode of election of the office bearers of the respondent no. 2 (respondent Club hereinafter) which is a society bearing no. 394/1949-50 registered under the Societies Registration Act, 1860.
3. The respondent Club was provided with a land admeasuring 8.3 acres by the Union of India in New Delhi and a lease dated 27th June, 1956 was executed for the same.
4. In the year 2023, the Executive Committee of the respondent Club passed a resolution dated 11th February, 2023 for elections of the respondent Club and it was resolved that the elections of both the regions, i.e. Delhi and Mumbai shall happen simultaneously.
5. Thereafter, the election notification dated 14th February, 2023, was published, whereby, various Rules and Regulations governing the club were notified. Aggrieved by the alleged introduction of one particular rule, i.e. Rule 86, the petitioner sent a query vide various emails and subsequently filed an application before the respondent No. 1 (respondent Registrar hereinafter) for inspection of the bye-laws of the respondent Club, however, the said inspection could not be carried out as the file of the respondent Club was untraceable at the office of the respondent Registrar.
6. Pursuant to non-inspection by the respondent Registrar, the petitioner preferred an RTI application seeking all the records related to the respondent Club. In regard to the same, it is alleged by the petitioner that despite filing of the above said application, the complete records related to amendment to the bye-laws were still not shared.
7. Being aggrieved by the same, the petitioner preferred the captioned writ petition.
8. During the pendency of the above said petition, the petitioner filed an application bearing no. 16147/2024 seeking non-implementation of Rule 86 of the supplementary bye-laws in the forthcoming elections to be held on 7th April, 2024. Thereafter, the petitioner preferred another application bearing no. 13790/2024 praying for early hearing of the other application and both the applications are listed today.
9. Before arguing the issue of grant of interim relief on merits qua Rule 86, the learned senior counsel Mr.Tiku, appearing on behalf of the respondent Club raised serious objections to the maintainability of the captioned writ petition and advanced the following arguments with regard to the same.
10. Learned senior counsel submitted that the present petition is nothing but a gross misuse of the process of law as the remedy of issuance of a writ against the respondent Club is not available since the Club is a private entity and does not fall within the definition of a State under Article 12 of the Constitution of India.
11. It is submitted that a suitable and efficacious remedy is available with the petitioner for ventilation of his alleged grievance, however, the petitioner conveniently chose to ignore the same and approached this Court which has no jurisdiction to adjudicate the dispute.
12. It is submitted that the respondent Club is a registered society under the erstwhile Societies Registration Act, 1860 and has its own rules and regulations in place, and therefore, cannot be construed as an instrumentality of the State.
13. It is also submitted that the position of law regarding inclusion of an entity as a State under Article 12 of the Constitution is clear where the deep and pervasive control of the Government is essential and the same not being there in the respondent Club makes it clear that the Club cannot be construed as a State.
14. Learned senior counsel contended that this Court has adjudicated the issue of maintainability of a writ against private entities in numerous cases, whereby, it was categorically held that the entities not meeting the criteria as enshrined and expounded by the various landmark decisions of the Honble Supreme Court cannot be considered as a State.
15. It is submitted that a similar issue came up before the Division Bench of Court in the case of S.D. Siddiqui v. University Of Delhi And Others 2005 SCC OnLine Del 1226, whereby, the maintainability of a writ against a registered association of the professors of Delhi University, i.e. DUTA was decided and it was held that a remedy of writ cannot lie against the said Association as the same is not within the definition of Article 12 of the Constitution of India.
16. It is also submitted that this Court had adjudicated the issue of maintainability of a writ against a private entity vide order dated 31st July, 2023 in the case of Sh. Naresh Kumar and Ors. v. Union of India through Secretary Ministry of Civil Aviation &ors. in W.P. (C) 9224/2018 and held that Air India, now being acquired by a private entity does not hold the status of a State under Article 12 and, therefore, cannot be made subject to a litigation under the writ jurisdiction of the Constitutional Courts.
17. It is further submitted that the question of law raised by the petitioner has already been decided in the suit bearing no. CS(OS) 2556/2008, wherein, in paragraph no. 10 & 11, this Court deemed it appropriate to term the election process fair and did not grant any stay on the procedure established for conducting the elections of the respondent Club, hence, the issue stands settled.
18. Therefore, in light of the foregoing submissions, the learned senior counsel appearing for the respondent Club submitted that the present application, not being under the jurisdiction of this Court may be dismissed and the issue of maintainability of the writ petition may be adjudicated at the outset.
19. Per Contra, the learned counsel appearing for the petitioner vehemently opposed the submissions advanced by the learned senior counsel for the respondent Club and submitted that the respondent Club duly falls under the purview of the writ jurisdiction of this Court.
20. It is submitted that the respondent Club is entrusted to organize sports activities and was established in furtherance of the said objective. It is further submitted that the land admeasuring 8.3 acres was provided by the Union of India with the sole objective of promotion of sports in the region and, the Commissioner of the Delhi region (now Lieutenant Governor) has been empowered to be the deciding authority for any changes in the rules and regulations of the respondent Club, therefore, establishing the direct control of the State.
21. It is also submitted that since the primary objective of the respondent Club is promotion of sports, it is well within the bounds of the writ Court as the said function is of a public importance as also held by the Honble Supreme Court in the case of Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489.
22. It is further submitted that as per Article 12 of the Constitution of India, the term authority means an entity/person empowered to make rules and regulations and the Lieutenant Governor being the authority to make or amend the rules for the respondent Club makes it evident that the respondent Club is well within the scope of State under Article 12. Reliance in this regard, has been placed on the judgment of Honble Supreme Court in Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.
23. Therefore, in light of the foregoing submissions, the learned counsel for the petitioner prays that the petition be deemed to be maintainable and the reliefs prayed for in the present applications may be granted.
24. Heard the learned counsel for the parties and perused the record.
25. The instant application has been filed by the petitioner seeking non-implementation of Rule 86 of the supplementary bye-laws in the forthcoming elections of the respondent Club. It is pertinent to state here that the said rule has been challenged by the petitioner in the captioned writ petition.
26. During the course of arguments, the learned senior counsel appearing on behalf of the respondent Club raised serious objections with respect to the maintainability of the writ petition and advanced arguments to supplement the same. Subsequently, the learned counsel for the petitioner also made submissions regarding the said issue and therefore, submitted that the captioned petition is maintainable and prayed for adjudication of the issue of grant of interim relief qua Rule 86.
27. As evident, only the applications are listed today and not the writ petition, therefore, it is apposite for this Court to determine at the threshold whether any interim order can be passed in an application without prima facie getting satisfied with the maintainability of the writ petition in which the said application has been filed.
28. The position of law as recently discussed by the Honble Supreme Court in the case of Asma Lateef v. Shabbir Ahmad, 2024 SCC OnLine SC 42 is relevant to answer the said question. The relevant parts of the judgment read as under:
“42. Turning to the facts of the present case, Kazmi had challenged the maintainability of the Suit in the written statement filed by him before the Trial Court contending inter alia that the suit property was bhoomidhari land owing to which the Suit was barred by section 331 of UPZA & LR Act as well as it was barred under section 41(h) of the Specific Relief Act and, thus, not maintainable before the civil court. What was required of the Trial Court in such situation was to record a satisfaction, at least prima facie, that the Suit was maintainable and then proceed to pass such orders as it considered proper in the circumstances. A glance at the order dated 5th August, 1991, is sufficient to inform us that the Trial Court, in no words whatsoever, made any decision on whether it was entitled in law to decide the plea before it, prior to decreeing the Suit against Samiullah under Rule 10 of Order VIII, CPC. The question of competence to try the Suit, we have found, was the first of several issues arising for decision in the Suit and despite such looming presence of an important issue before the Trial Court which, if examined and answered in favour of Kazmi, would have ousted jurisdiction, it preferred not to wait and proceeded to decree the same against Samiullah without a whisper on its competency to do the same.
43. The legal and factual position of the present case having been noted above, we hold that a decision rendered by a court on the merits of a controversy in favour of the plaintiff without first adjudicating on its competence to decide such controversy would amount to a decision being rendered on an illegal and erroneous assumption of jurisdiction and, thus, be assailable as lacking in inherent jurisdiction and be treated as a nullity in the eye of law; as a logical corollary, the order dated 5th August, 1991 is held to be ab initio void and the decree drawn up based thereon is inexecutable.
44. There is one other reason which we wish to assign as a ground for upholding the order of the Executing Court and the High Court.
45. Reference may once again be made to Balram Taneja (supra) where the law has been reiterated succinctly, as follows:
41. There is yet another infirmity in the case which relates to the judgment passed by the Single Judge and upheld by the Division Bench.
42. Judgment as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4(2) which says that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.
43. ***
44. ***
45. Learned counsel for Respondent 1 contended that the provisions of Order 20 Rule 4(2) would apply only to contested cases as it is only in those cases that the points for determination as mentioned in this rule will have to be indicated, and not in a case in which the written statement has not been filed by the defendants and the facts set out in the plaint are deemed to have been admitted. We do not agree. Whether it is a case which is contested by the defendants by filing a written statement, or a case which proceeds ex parte and is ultimately decided as an ex parte case, or is a case in which the written statement is not filed and the case is decided under Order 8 Rule 10, the court has to write a judgment which must be in conformity with the provisions of the Code or at least set out the reasoning by which the controversy is resolved.
46. *** Even if the definition were not contained in Section 2(9) or the contents thereof were not indicated in Order 20 Rule 4(2) CPC, the judgment would still mean the process of reasoning by which a Judge decides a case in favour of one party and against the other. In judicial proceedings, there cannot be arbitrary orders. A Judge cannot merely say suit decreed or suit dismissed. The whole process of reasoning has to be set out for deciding the case one way or the other. This infirmity in the present judgment is glaring and for that reason also the judgment cannot be sustained.
(underlining ours, for emphasis)
46. We concur with the observation that a judgment, as envisaged in section 2(9), CPC, should contain the process of reasoning by which the court arrived at its conclusion to resolve the controversy and consequently to decree the suit.
47. It is indubitable that a judgment, if pronounced by a court under Rule 10 of Order VIII, CPC, must satisfy the requirements of Rule 4(2) of Order XX, CPC, and thereby conform to its definition provided in section 2(9) thereof.
48. Further, even a cursory reading of Rule 10 of Order VIII, CPC impresses upon us the fundamental mandate that a decree shall follow a judgment in a case where the court invokes power upon failure of a defendant to file its written statement. It is, therefore, only a judgment conforming to the provisions of the CPC that could lead to a decree being drawn up. As is manifest on the face of the record of the present case, apart from the ipse dixit of the Trial Court that the case is fit for being proceeded against under Rule 10 of Order VIII and that the suit qua Samiullah ought to be decreed with the injunctive order, no ingredients that a judgment should contain as per the CPC appear in the order dated 5th August, 1991.
49. We deem it fit to advert to the fine words of wisdom imparted to us by Hon’ble P.B. Mukharji, CJ., in The New Jurisprudence : The Grammar of Modern Law where the learned author says:
The supreme requirement of a good judgment is reason. Judgment is of value on the strength of its reason. The weight of a judgment, its binding character or its persuasive character depends on the presentation and articulation of reason. Reason, therefore, is the soul and spirit of a good judgment.
50. It is one of the cardinal principles of the justice delivery system that any verdict of a competent judicial forum in the form of a judgment/order, that determines the rights and liabilities of the parties to the proceedings, must inform the parties what is the outcome and why one party has succeeded and not the other – the why constituting the reasons and what the conclusion. Apart from anything else, insistence of the requirement for the reason(s) to support the conclusion guarantees application of mind by the adjudicator to the materials before it as well as provides an avenue to the unsuccessful party to test the reasons before a higher court.”
29. Upon perusal of the above cited paragraphs, it is made out that the Honble Supreme Court categorically held that any issue regarding the maintainability of the case needs to be determined first, and then only the Courts can go into the merits of a case.
30. In view of the principle, this Court is of the considered view that the instant applications cannot be adjudicated before deciding the issue of the maintainability of the captioned writ petition in which the said applications have been filed.
31. Even though the Honble Supreme Court has given the aforesaid ruling with regard to the issue of maintainability of a suit, an essence needs to be drawn with regard to the same, where this Court also needs to determine whether it has the jurisdiction to entertain the writ petition or not.
32. Therefore, at this stage, this Court is prima facie satisfied that the maintainability of the captained writ petition needs to be determined first and only after determining the same, any question regarding the grant of interim relief can be addressed and adjudicated.
33. Since the writ petition is not listed today, this Court deems it appropriate to dispose of the instant applications as the settled position of law does not allow this Court to adjudicate upon the issue of grant of interim relief before deciding the maintainability of the writ petition filed against the respondent Club.
34. Accordingly, the present applications are disposed of.
35. It is also made clear that this Court is not directing stay or postponement of the upcoming elections of the respondent Club, however, the validity of the said elections shall be subject to the outcome of the writ petition.
W.P.(C) 6243/2023
The parties are directed to file their written submissions not exceeding seven pages with regard to the maintainability and merits of the writ petition within one week.
List for final hearing on the date already fixed, i.e. 10th April, 2024. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
MARCH 28, 2024
dy/av/ryp
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CM APPL. 16147/2024 in W.P.(C) 6243/2023 Page 13 of 13