JAYADEV Vs. SECRETARY K L E SOCIETY

JUDGEMENT

(1.) In this petition the petitioners have challenged the validity of the elections held for electing the Members of the Board of Management of the 1st respondent/Society known as Karnataka Liberal Education Society. The 1st petitioner had contested the elections held on 28-1-1989 and on 29-1-1989 and he was not successful in the contest. The 2nd petitioner is an ordinary member as also a voter. They have filed this joint petition challenging the results of the elections to the Office bearers of the Society held on the aforesaid dates at Hubli and Belgaum respectively and have sought for a writ in the nature of mandamus to Respondents 3 to 19 who are elected as Members, directing them not to attend the meeting and not to call for any meeting of the Society till the disposal of the writ petition and for other incidental reliefs. They have also sought for a declaration that the election rules of the Society, viz., Clause 1, sub-clause (5) is null and void as it is contrary to law.

(2.) When this petition came up for preliminary hearing, caveat was entered by Respondents 2 and 12 and the learned counsel Mr. G.P. Shivaprakash took notice and opposed the grant of interim relief. Subsequently Respondent-1 also entered appearance through its learned counsel Mr. Shivaraj Patil. Both the learned counsel raised a preliminary objection as to the maintainability of the petition on the ground that the 1st respondent/Society being a Society registered under the Societies Registration Act, 1960, and under the Bombay Public Trust Act, 1950, the Society is not an Authority under Article 12 of the Constitution and hence this Court at the threshold itself should dismiss the petition as not maintainable. This question whether the Society is an Authority within the scope of Article 12 of the Constitution was argued for a considerable length of time by both parties and the learned counsel for the petitioners in the course of his arguments submitted that he would be in a better position to meet the preliminary objection raised by the contesting respondents, if they filed their statement of objections. With a view to facilitate the learned counsel for the petitioners to argue on this point in a more convincing manner, I directed the contesting respondents, viz., Respondents 1, 2 and 12 to file their statement of objections. Accordingly, they have filed their objections and the petitioners have filed an elaborate rejoinder meeting the various averments in the statement of objections.

(3.) On the pleadings of the parties, the first question that has to be determined is whether the Society is an Authority within, the scope of Article 12 of the Constitution. The law that governs the tests for determining whether the Society registered under the Societies Registration Act or registered under any other statutory enactment comes within the scope of Article 12 of the Constitution is laid down by the Supreme Court in Ajay Hasia Etc. V Khalid Mujib Sehravardi and Others Etc. (A.I.R. 1981 S.C. 487). That was a case in which admission to a certain educational institution was challenged on the ground that the procedure adopted by that society which was an educational institution in granting admission to certain students was arbitrary and, therefore, violative of Article 14 of the Constitution. A preliminary objection, as in this case, as regards maintainability was raised in that case. The Society is an educational society like the one before this Court and the same was registered under the Societies Registration Act. The Supreme Court on the facts pleaded and proved came to the conclusion that the society in question was an authority within the scope of Article 12 of the Constitution and accordingly, the preliminary objection raised was overruled. We are not concerned with the facts therein or the final result in that case. But, we are concerned now with the tests prescribed by the Supreme Court for determining whether a society registered under the Societies Registration Act would come within the ambit of Article 12 of the Constitution. In para 9 of the judgment, the Supreme Court observed as follows : "The tests for determining as to when a corporation can be said to be an instrumentality or agency of Government may now be culled out from the judgment in the International Airport Authority's case (AIR 1979 SC 1628). These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression 'other authorities', it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the Government with the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority's case as follows :