A.Raja v. B.Markandan

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05..12..2008.CORAMHON’BLE Mr.A.K.GANGULY, CHIEF JUSTICE and HON’BLE Mr.JUSTICE K.CHANDRUW.A.Nos.1304 & 1372 of 2008and M.P.No.1 of 2008 in W.A.No.1304 of 2008 W.A.No.1304 of 2008 1. The Vice Chancellor, Bharathiar University, Coimbatore – 641 046.2. The Registrar-cum-Returning Officer, Bharathiar University, Coimbatore – 641 046...Appellants/Respondent.Vs.B.Markandan,Door No.14/21,Edul Villa,Apple-by-Road,Wellington Bazar Post 643 232,Coonoor Taluk,Nilgiris District,Tamil Nadu. ..Respondent/Petitioner.W.A.No.1372 of 2008 A.Raja,V.R.J. Complex (Opp.to Court),Gobichettipalayam – 638 453,Erode District. ..Appellant/3rd Party/PetitionerVs.1. B.Markandan, Door No.14/21,Edul Villa, Apple-by-Road, Coonoor, Nilgiris -643 232. https://hcservices.ecourts.gov.in/hcservices/

2. The Vice Chancellor, Bharathiar University, Coimbatore – 641 046.2. The Registrar-cum-Returning Officer, Bharathiar University, Coimbatore – 641 046. ..Respondents/Petitioner and Respondent 1 & 2PRAYER: Appeals filed under Clause 15 of the Letters Patent againstthe order of the learned single Judge dated 23.10.2008 passed inW.P.No.25005 of 2008.Writ petition filed under Article 226 of theConstitution of india to issue a writ of Mandamus directing therespondents to furnish separate Voters List for each Category andconduct election respectively for five vacancies of Syndicate Members ofBharathiar University,Coimbatore to be held on 30.10.2008 as per thenotification dated 16.9.2008 issued of the second respondent. Mr.R.Viduthalai,Senior Counsel forMs.N.Kavitha:: For the appellants in W.A.1304/2008Mrs.G.Thilagavathi:: For the appellant in W.A.1372/2008Mr.C.Selvaraju,:: For the respondent in W.A.1304/2008Senior Counsel forRespondent 1 in WA.1372/08Mr.S.ManiCOMMON JUDGMENT(Judgment of the Court was delivered by Hon’ble The Chief Justice)Heard learned counsel for the parties.2. These two appeals have been filed impugning a judgment dated23.10.2008 passed by a learned Judge of the writ Court, whereby thelearned Judge by the judgment under appeal was pleased to allow the writpetition filed by the first respondent. Of the two appeals one was filedby the University and the other one was by an aggrieved party. Sincecommon questions are involved and both the appeals are directed againstthe same judgment, both the appeals are decided by this judgment.3. As a result of the judgment delivered by the learned Judge therespondents i.e., the University Authorities were directed to furnish aseparate voters list for “other category” constituencies and alsodirected to conduct elections for the same.4. Pursuant to the said direction given by the learned Judge of thewrit Court, the University Authorities have not proceeded to take step https://hcservices.ecourts.gov.in/hcservices/ as per the Judgment, in view of the fact that there is a stay of thejudgment of the learned Judge. 5. The dispute which has been raised in the writ petition, on thebasis of which the aforesaid judgment was delivered, was a disputerelating to an election to the members of the Syndicate from the SenateConstituency. Such election is controlled by the provisions of a statutenamely the Bharathiar University Act, 1981 (herein after referred to asthe “said Act”). Reference may be made to the Constitution of theSyndicate which is provided under Section 24 of the said Act. Therelevant provision is Section 24(b)Class II which relates to election of“Other Members”, and here we are concerned with one member, which isprovided under Section 24(b)Clause II (4). 6. The petitioner’s contentions in the writ petition are:- The University has issued a notification on 16.09.2008 for electingfive members to the Syndicate i.e., two from the principals ofaffiliated colleges, two from the lecturers of the affiliated collegesand one from the category of “Other Members”. It is the contention ofthe writ petitioner that the Syndicate consists of a total of 247members, and each category has separate members, and unless separatevoters list for separate categories are published the election will notbe properly held. It is specifically stated that “if all the membersare allowed to vote as happened in the earlier election, the persons whoare ineligible may be voting to other categories also which mayultimately lead to election of unqualified persons to the Syndicate”.This is the exact pleading made in the writ petition. 7. It is not in dispute that the Syndicate is an ‘Authority’ underSection 17 of the said Act. Therefore, the petitioner is virtuallyimpugning in the said writ petition a dispute, which is falling withinthe provisions of Section 50 of the said Act. Section 50 of the said Actprovides as under:-“50. Dispute as to constitution of University authoritiesand bodies. - If any question arises whether any person hasbeen duly elected or nominated as, or is entitled to be, amember of any authority of the University or other body of theUniversity, the question shall be referred to the Chancellorwhose decision thereon shall be final.” 8. It is clear that the said Section is very widely worded andmakes it clear that even if any question arises about (a) whether anyperson is duly elected or nominated; or (b) is entitled to be a memberof any authority of the University or other body of the University, thequestion shall be referred to the Chancellor whose decision thereonshall be final. Therefore, on the pleading in the petition the disputefalls within the categories of disputes enumerated under Section 50 ofthe said Act namely., whether a person is entitled to be a member of any https://hcservices.ecourts.gov.in/hcservices/ authority of the University. It is this precise question, which israised in the writ petition. 9. But, the writ petition has been filed without exhausting theremedy, which is statutorily provided under the said Act namely., theremedy under Section 50. It is open to the writ petitioner to raise adispute under the said Section before the Vice Chancellor with a prayerto refer it to the Chancellor of the University for a decision. Withoutdoing the same the writ petition has been filed, the same has beenentertained, and the impugned judgment has been delivered. Therefore,the specific statutory remedy has not been exhausted in this case. 10. It is no doubt true that the existence of a statutory remedydoes not oust the jurisdiction of this Court under Article 226 of theConstitution. Existence of such a remedy merely operates as a restrainton the exercise of discretion by the Court in granting remedy underArticle 226. The Hon’ble Supreme Court has carved out several situationswhere despite the existence of a statutory remedy a writ petition can beentertained. Broadly speaking those situations are namely., where thereis a violation of a fundamental right of the applicant; or where thereis total violation of the principles of natural justice; or where theauthorities are acting under an invalid law; or where the parties areacting in flagrant abuse of their authority and in total violation ofthe statutory provisions. In those situations, the Hon’ble Supreme Courthas held that a writ Court can entertain a petition, even if thepetitioner has not exhausted his statutory remedy. Admittedly, theaforesaid situations are not available here. 11. The learned counsel for the petitioner submitted that the pointof alternative remedy was not raised by the respondents before thelearned single Judge. It may be true, but since the remedy is availablein the statute itself, this Court cannot shut its eyes to the provisionsof the statute. When there is a clear provision in the statute, theCourt can always take that into account while exercising itsjurisdiction. 12. It has been repeatedly held by the Hon’ble Supreme Court thatthe power under Article 226 is to be exercised to ensure that thestatutory regime is followed, and the same is not abrogated. Referencecan be made to the decision of the Constitution Bench of the SupremeCourt in the case of Mafatlal Industries Ltd. And Others Vs. Union ofIndia reported in (1997) 5 SCC 536, where speaking for the majorityJustice Jeevan Reddy formulated the following proposition at page 635 ofthe report – “This is for the reason that the power under Article 226has to be exercised to effectuate the regime of law and notfor abrogating it. Even while acting in exercise of the saidconstitutional power, the High Court cannot ignore the law norcan it override it. The power under Article 226 is conceivedto serve the ends of law and not to transgress them.” https://hcservices.ecourts.gov.in/hcservices/

13. The Hon’ble Supreme Court in a number of cases held that inmatters relating to election, the statutory remedy must be followed.Here the remedy, which is created namely., the right to seek election isa statutory remedy and the right to enforce it in the case ofinfringement is also provided in the statute namely., Section 50. Thatis certainly a special remedy, since the appeal is to the Chancellor,the Governor of the State, which is the highest executive authority inthe State. In such a situation the Courts have always insisted that thespecial remedy must be availed of.14. In Titaghur Paper Mills Co. Ltd. and Another Vs. State ofOrissa reported in AIR 1983 SC 603 the learned Judges of the Hon’bleSupreme Court after taking into consideration the laws laid down invarious decisions have come to the following conclusion in paragraph 11at page 607 of the report:“…..It is now well recognized that where a right orliability is created by a statute which gives a specialremedy for enforcing it, the remedy provided by that statuteonly must be availed of. This rule was stated with greatclarity by Willes, J. in Wolverhampton New Water Works Co.Vs. Hawkesford, (1859) 6 CBNS 336 at p.356 in the followingpassage: ‘There are three classes of cases in which aliability may be established founded upon statute. ** * * * * * * * * * * * * * * * * * * But there isa third calss, viz., where a liability not existingat common law is created by a statute which at thesame time gives a special and particular remedy forenforcing it * * * * * * * * * * * * * * * * * * * ** * * * * * * * * * * * * * * the remedy provided bythe statute must be followed, and it is notcompetent to the party to pursue the courseapplicable to cases of the second class. The formgiven by the statute must be adopted and adhered to.’The rule laid down in this passage was approved by theHouse of Lords in Neville Vs. London Express Newspaper Ltd.,1919 AC 368 and has been reaffirmed by the Privy Council inAttorney General of Trinidad and Tobago Vs. Gordon Grant &Co., 1935 AC 532 and Secretary of State Vs. Mask & Co., AIR1940 PC 105. It has also been held to be equally applicable toenforcement of rights, and has been followed by this Courtthroughout. The High Court was therefore justified indismissing the writ petitions in limine.” 15. In this connection, it may relevant to mention a decision ofthe Supreme Court in the case of Gujarat University Vs. N.U.Rajgru andOthers reported in 1987 (Supp.) SCC 512. In that case, the Hon’ble https://hcservices.ecourts.gov.in/hcservices/ Supreme Court construed the provisions of Section 58 of the GujaratUniversity Act, 1949, which is almost identically worded as Section 50of the said Act, of course, with slight modification. The Hon’bleSupreme Court held in paragraph – 6 as follows:- “6. It is well settled that where a statute provides forelection to an office, or an authority or institution and ifit further provides a machinery or forum for determination ofdispute arising out of election, the aggrieved person shouldpursue his remedy before the forum provided by the statute.While considering an election dispute it must be kept in mindthat the right to vote, contest or dispute election is neithera fundamental nor a common law right, instead it is astatutory right regulated by the statutory provisions. It isnot permissible to invoke the jurisdiction of the High Courtunder Article 226 of the Constitution bypassing the machinerydesignated by the Act for determination of the electiondispute. Ordinarily the remedy provided by the statute must befollowed before the authority designated therein. But theremay be cases where exceptional or extraordinary circumstancesmay exist to justify bypassing the alternative remedies. Inthe instant case, there existed no circumstance justifyingdeparture from the normal rule as even the challenge to thevalidity of Statute 10 was not pressed by the respondentsbefore the High Court.” 16. In paragraph – 5 of the Gujarat University the learned Judgeshave totally disapproved that despite the statutory remedy beingavailable before the State Government under Section 58 of the Act, thewrit petition was filed (See paragraphs 5 & 8). In paragraph – 7 alsothe learned Judges discussed the matter of exhaustion of alternativeremedy especially in a case relating to election. In that case also theGujarat High Court struck down the election, and in the appeal beforethe Hon’ble Supreme Court the decision of the Gujarat High Court wasreversed on the ground of alternative remedy. This judgment, therefore,shows that the question of alternative remedy can be taken intoconsideration by the courts even at the appellate stage as has been doneby the Supreme Court in the said case. 17. The learned counsel for the petitioner has cited two judgmentsto show that in the facts and circumstances of the present case, thepresence of alternative remedy is not a bar to approach the High Courtunder Article 226 of the Constitution. 18. Reliance was first placed on the judgment of the Supreme Courtin the case of L.K.Verma Vs. H.M.T., Ltd. and another reported in 2006(1) L.L.N. 874. In paragraph – 21 of the said judgment the learnedJudges held that except in rare cases the appellate court should notinterfere with the decision of the lower court on the ground ofexistence of alternative remedy. We are of the opinion that the case onhand falls within the category of rare case. In this case none of thewell known exceptions to the exhaustion of statutory remedy exist and https://hcservices.ecourts.gov.in/hcservices/ especially this is a case relating to an election dispute which ispurely controlled by statute. Therefore, this case clearly falls withinthe category of rare case, where this Court can interfere even at theappellate stage on the question of alternative remedy. Similarly, the Hon’ble Supreme Court interfered at the appellatestage in the case of Gujarat University (supra). 19. The other decision, which was cited by the learned counsel forthe petitioner was the one, rendered in the case of K.Venkatachalam Vs.A.Swamickan and Another reported in 1999 – 3 – LW 23 = AIR 1999 SC 1723.In that case, the writ petition was filed by the respondent challengingthe election of the appellant a year after the date of election prayingfor declaration that the appellant was not qualified to be a Member ofthe Legislative Assembly as he was not an elector on the Electoral Rollof the Constituency, and that he impersonated another person’s name inthe Electoral Roll of that Constituency, and that he has sworn to afalse affidavit that he was an elector of that constituency. On thosefacts the writ petition was entertained, and ultimately it went to theSupreme Court, and the Hon’ble Supreme Court on the peculiar facts ofthat case held that the writ petition is maintainable especially when awrit of Quo Warranto was prayed for. In the instant case, those factsare not at all present. 20. In the facts and circumstances of the present case, we are ofthe opinion that Section 50 of the said Act provides a complete remedyand that the same should have been exhausted first before coming to theHigh Court for filing a writ petition especially when the writ petitionwas moved by the petitioner after the issuance of election notification. 21. It has been repeatedly held by the courts that once an electionnotification has been issued, for the disputes arising with respect tosuch election, first the remedy which is provided under the Act shouldbe resorted to.22. For the reasons aforesaid, we are of the opinion that thelearned Judge of the writ Court should not have entertained the writpetition and by entertaining the writ petition, the judgment which wasdelivered by the learned Judge was not done on a proper exercise ofjurisdiction under Article 226, in the facts and circumstances of thecase. As such the judgment of the learned Judge is set aside. Theappeals are allowed. It is now open to the University to take steps forholding elections in accordance with law. There will be no order as tocosts. Consequently, connected miscellaneous petition is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sm https://hcservices.ecourts.gov.in/hcservices/ To.1.The Vice Chancellor,Bharathiar University,Coimbatore - 641 046.2.The Registrar cum Returning Officer,Bharathiar University,Coimbatore - 641 046.1 cc to Mr.S.Mani, Advocate, SR.685931 cc to Ms.N.Kavitha,Advocate, SR.685351 cc to Ms.G.Thilakavathi, Advocate, SR.68580 W.A.Nos.1304 & 1372 of 2008VM(CO)EM/12.12.08