IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05..12..2008. CORAM HON’BLE Mr.A.K.GANGULY, CHIEF JUSTICE and HON’BLE Mr.JUSTICE K.CHANDRU W.A.Nos.1304 & 1372 of 2008 and 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/ Petitioner Vs. 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 & 2 PRAYER: Appeals filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 23.10.2008 passed in W.P.No.25005 of 2008.Writ petition filed under Article 226 of the Constitution of india to issue a writ of Mandamus directing the respondents to furnish separate Voters List for each Category and conduct election respectively for five vacancies of Syndicate Members of Bharathiar University,Coimbatore to be held on 30.10.2008 as per the notification dated 16.9.2008 issued of the second respondent. Mr.R.Viduthalai, Senior Counsel for Ms.N.Kavitha :: For the appellants in W.A.1304/2008 Mrs.G.Thilagavathi :: For the appellant in W.A.1372/2008 Mr.C.Selvaraju, :: For the respondent in W.A.1304/2008 Senior Counsel for Respondent 1 in WA.1372/08 Mr.S.Mani COMMON 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 dated 23.10.2008 passed by a learned Judge of the writ Court, whereby the learned Judge by the judgment under appeal was pleased to allow the writ petition filed by the first respondent. Of the two appeals one was filed by the University and the other one was by an aggrieved party. Since common questions are involved and both the appeals are directed against the same judgment, both the appeals are decided by this judgment. 3. As a result of the judgment delivered by the learned Judge the respondents i.e., the University Authorities were directed to furnish a separate voters list for “other category” constituencies and also directed to conduct elections for the same. 4. Pursuant to the said direction given by the learned Judge of the writ 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 the judgment of the learned Judge. 5. The dispute which has been raised in the writ petition, on the basis of which the aforesaid judgment was delivered, was a dispute relating to an election to the members of the Syndicate from the Senate Constituency. Such election is controlled by the provisions of a statute namely the Bharathiar University Act, 1981 (herein after referred to as the “said Act”). Reference may be made to the Constitution of the Syndicate which is provided under Section 24 of the said Act. The relevant provision is Section 24(b)Class II which relates to election of “Other Members”, and here we are concerned with one member, which is provided 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 electing five members to the Syndicate i.e., two from the principals of affiliated colleges, two from the lecturers of the affiliated colleges and one from the category of “Other Members”. It is the contention of the writ petitioner that the Syndicate consists of a total of 247 members, and each category has separate members, and unless separate voters list for separate categories are published the election will not be properly held. It is specifically stated that “if all the members are allowed to vote as happened in the earlier election, the persons who are ineligible may be voting to other categories also which may ultimately 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’ under Section 17 of the said Act. Therefore, the petitioner is virtually impugning in the said writ petition a dispute, which is falling within the provisions of Section 50 of the said Act. Section 50 of the said Act provides as under:- “50. Dispute as to constitution of University authorities and bodies. - If any question arises whether any person has been duly elected or nominated as, or is entitled to be, a member of any authority of the University or other body of the University, the question shall be referred to the Chancellor whose decision thereon shall be final.” 8. It is clear that the said Section is very widely worded and makes it clear that even if any question arises about (a) whether any person is duly elected or nominated; or (b) is entitled to be a member of any authority of the University or other body of the University, the question shall be referred to the Chancellor whose decision thereon shall be final. Therefore, on the pleading in the petition the dispute falls within the categories of disputes enumerated under Section 50 of the 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 is raised in the writ petition. 9. But, the writ petition has been filed without exhausting the remedy, which is statutorily provided under the said Act namely., the remedy under Section 50. It is open to the writ petitioner to raise a dispute under the said Section before the Vice Chancellor with a prayer to refer it to the Chancellor of the University for a decision. Without doing the same the writ petition has been filed, the same has been entertained, 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 remedy does not oust the jurisdiction of this Court under Article 226 of the Constitution. Existence of such a remedy merely operates as a restraint on the exercise of discretion by the Court in granting remedy under Article 226. The Hon’ble Supreme Court has carved out several situations where despite the existence of a statutory remedy a writ petition can be entertained. Broadly speaking those situations are namely., where there is a violation of a fundamental right of the applicant; or where there is total violation of the principles of natural justice; or where the authorities are acting under an invalid law; or where the parties are acting in flagrant abuse of their authority and in total violation of the statutory provisions. In those situations, the Hon’ble Supreme Court has held that a writ Court can entertain a petition, even if the petitioner has not exhausted his statutory remedy. Admittedly, the aforesaid situations are not available here. 11. The learned counsel for the petitioner submitted that the point of alternative remedy was not raised by the respondents before the learned single Judge. It may be true, but since the remedy is available in the statute itself, this Court cannot shut its eyes to the provisions of the statute. When there is a clear provision in the statute, the Court can always take that into account while exercising its jurisdiction. 12. It has been repeatedly held by the Hon’ble Supreme Court that the power under Article 226 is to be exercised to ensure that the statutory regime is followed, and the same is not abrogated. Reference can be made to the decision of the Constitution Bench of the Supreme Court in the case of Mafatlal Industries Ltd. And Others Vs. Union of India reported in (1997) 5 SCC 536, where speaking for the majority Justice Jeevan Reddy formulated the following proposition at page 635 of the report – “This is for the reason that the power under Article 226 has to be exercised to effectuate the regime of law and not for abrogating it. Even while acting in exercise of the said constitutional power, the High Court cannot ignore the law nor can it override it. The power under Article 226 is conceived to 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 in matters relating to election, the statutory remedy must be followed. Here the remedy, which is created namely., the right to seek election is a statutory remedy and the right to enforce it in the case of infringement is also provided in the statute namely., Section 50. That is certainly a special remedy, since the appeal is to the Chancellor, the Governor of the State, which is the highest executive authority in the State. In such a situation the Courts have always insisted that the special remedy must be availed of. 14. In Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa reported in AIR 1983 SC 603 the learned Judges of the Hon’ble Supreme Court after taking into consideration the laws laid down in various decisions have come to the following conclusion in paragraph 11 at page 607 of the report: “…..It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. Vs. Hawkesford, (1859) 6 CBNS 336 at p.356 in the following passage: ‘There are three classes of cases in which a liability may be established founded upon statute. * * * * * * * * * * * * * * * * * * * * But there is a third calss, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.’ The rule laid down in this passage was approved by the House of Lords in Neville Vs. London Express Newspaper Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago Vs. Gordon Grant & Co., 1935 AC 532 and Secretary of State Vs. Mask & Co., AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.” 15. In this connection, it may relevant to mention a decision of the Supreme Court in the case of Gujarat University Vs. N.U.Rajgru and Others 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 Gujarat University Act, 1949, which is almost identically worded as Section 50 of the said Act, of course, with slight modification. The Hon’ble Supreme Court held in paragraph – 6 as follows:- “6. It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute. While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental nor a common law right, instead it is a statutory right regulated by the statutory provisions. It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution bypassing the machinery designated by the Act for determination of the election dispute. Ordinarily the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify bypassing the alternative remedies. In the instant case, there existed no circumstance justifying departure from the normal rule as even the challenge to the validity of Statute 10 was not pressed by the respondents before the High Court.” 16. In paragraph – 5 of the Gujarat University the learned Judges have totally disapproved that despite the statutory remedy being available before the State Government under Section 58 of the Act, the writ petition was filed (See paragraphs 5 & 8). In paragraph – 7 also the learned Judges discussed the matter of exhaustion of alternative remedy especially in a case relating to election. In that case also the Gujarat High Court struck down the election, and in the appeal before the Hon’ble Supreme Court the decision of the Gujarat High Court was reversed on the ground of alternative remedy. This judgment, therefore, shows that the question of alternative remedy can be taken into consideration by the courts even at the appellate stage as has been done by the Supreme Court in the said case. 17. The learned counsel for the petitioner has cited two judgments to show that in the facts and circumstances of the present case, the presence of alternative remedy is not a bar to approach the High Court under Article 226 of the Constitution. 18. Reliance was first placed on the judgment of the Supreme Court in 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 learned Judges held that except in rare cases the appellate court should not interfere with the decision of the lower court on the ground of existence of alternative remedy. We are of the opinion that the case on hand falls within the category of rare case. In this case none of the well 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 is purely controlled by statute. Therefore, this case clearly falls within the category of rare case, where this Court can interfere even at the appellate stage on the question of alternative remedy. Similarly, the Hon’ble Supreme Court interfered at the appellate stage in the case of Gujarat University (supra). 19. The other decision, which was cited by the learned counsel for the 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 challenging the election of the appellant a year after the date of election praying for declaration that the appellant was not qualified to be a Member of the Legislative Assembly as he was not an elector on the Electoral Roll of the Constituency, and that he impersonated another person’s name in the Electoral Roll of that Constituency, and that he has sworn to a false affidavit that he was an elector of that constituency. On those facts the writ petition was entertained, and ultimately it went to the Supreme Court, and the Hon’ble Supreme Court on the peculiar facts of that case held that the writ petition is maintainable especially when a writ of Quo Warranto was prayed for. In the instant case, those facts are not at all present. 20. In the facts and circumstances of the present case, we are of the opinion that Section 50 of the said Act provides a complete remedy and that the same should have been exhausted first before coming to the High Court for filing a writ petition especially when the writ petition was moved by the petitioner after the issuance of election notification. 21. It has been repeatedly held by the courts that once an election notification has been issued, for the disputes arising with respect to such election, first the remedy which is provided under the Act should be resorted to. 22. For the reasons aforesaid, we are of the opinion that the learned Judge of the writ Court should not have entertained the writ petition and by entertaining the writ petition, the judgment which was delivered by the learned Judge was not done on a proper exercise of jurisdiction under Article 226, in the facts and circumstances of the case. As such the judgment of the learned Judge is set aside. The appeals are allowed. It is now open to the University to take steps for holding elections in accordance with law. There will be no order as to costs. 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.68593 1 cc to Ms.N.Kavitha,Advocate, SR.68535 1 cc to Ms.G.Thilakavathi, Advocate, SR.68580 W.A.Nos.1304 & 1372 of 2008 VM(CO) EM/12.12.08 https://hcservices.ecourts.gov.in/hcservices/