TMI Blog2001 (4) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived by enclosing the procedure indicated for the conduct of the said election as per article 26 of the articles of association of the Club which governs the election of Board of Stewards. Article 26( d ) to ( h ) of the articles of association of the Club clearly indicates that a Member who receives a voting paper shall be entitled to vote for four members by marking a cross mark against the names of members in whose favour he wishes to record his vote and shall deposit the voting paper in a ballot box to be kept at the place of meeting for the said purpose. According to the petitioner, there shall be one ballot box and each member has to vote for four members by marking a cross mark against the names of the candidates. The 7th respondent adopted peculiar and un-imaginable procedure while printing the ballot papers of six candidates who are contesting the election in two rows, i.e., 1 to 3 in one row and 4 to 6 in another row. Besides the same, the 7th respondent got printed the official seal on the face of the ballot papers covering the names of the contesting candidates, which in fact should be on the reverse side of the ballot paper as per rule 38 of the Conduct of Electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub is not discharging any statutory function. The number of members is governed by article 4( a ) of the articles of association of the Club. There are 500 members and the liability of each member is limited to Rs. 100. It is admitted that 7th respondent has issued notice under section 257( 1A ). Printing of the ballot paper has been standardised which was followed for the previous years and names were printed in alphabetical manner and there is no arbitrariness in adopting the method of printing the ballot papers. For the convenience of the members and also to conduct the election in smooth manner 8 ballot boxes were placed. If any voter chose to cast less than four votes, it would not be invalidated. A vote would be invalidated if more than four boxes are marked. Total number of votes polled was 1054 as against the maximum possible votes of 1308. Printing of the letter AGM on the ballot papers does not in any manner make the name less legible or less readable. All the elected candidates got more votes than the petitioner. Counting taken place in the presence of the contestants authorised agents by duly following the procedure as contemplated under the articles of association of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Rules, framed under the Representation of People Act. Only names should be printed on the ballot papers and if any seal be printed, the same should be on the back of the ballot papers. 2. Placing of 8 ballot boxes in a row is irregular and in fact there shall be only one ballot box as per the articles of association of the Club. 3. Supply of intoxicating drinks at the time of election amounts to corrupt practice. Therefore, he prayed to declare that elections are void and elected body cannot function. 6. In order to substantiate the same, the learned counsel contended that article 22 of the articles of association of the Club, provides that the Board shall consist of 12 Stewards, of whom 8 shall be elected from among the Club Members and 3 shall be nominated by the Government of Andhra Pradesh and one shall be the Commander, Andhra (Independent) Sub-Area (Ex-Officio). Article 26 governs the Election of Board of Stewards. Article 26( a ) and ( b ) specifies that the election shall be conducted at the annual general meeting every year and if any member is willing to serve as Steward can participate in the election. As per article 26( d ) if there are more than four ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lish any clubs, hotels or other conveniences in connection with the company s property. In view of the same, the writ petition is maintainable. Apart from the same, all its funds are received from public who participated in the racing. Therefore, the writ petition is maintainable. There is no provision in the articles of association to challenge the elections before any specified authority, hence the petitioner invoked the extra-ordinary jurisdiction of this Court and prayed for allowing of the writ petition. 9. In support of his contentions, he placed reliance on the following decisions : 1. U.P. State Co-op. Land Development Bank Ltd. v. Chandra Bhandubey [1999] 1 SCC 741. 2. Francis John v. Director of Education AIR 1990 SC 423. 10. On the other hand, the learned counsel for the respondents refuted the same and contended that the club is not discharging any public functions and the entire activities carried on are only private activities, after obtaining necessary licence under A.P. Gaming Act. There is no pleading to the effect that how the club is an instrumentality of the State or any other authority amenable to writ jurisdiction under article 226. Apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or agency of a State or other authority for issuance of a writ as prayed for. 12. The pleadings are scanty in arriving at a conclusion that the Hyderabad Race Club is an other authority for the purpose of issuance of a writ. As the petitioner invoked the extra-ordinary jurisdiction for issuance of a writ, it is necessary that he must plead and prove that the Club is an other authority for making it amenable to writ jurisdiction under article 226 and also evidence in proof of such facts have to be annexed to substantiate the same. Except stating that the Club was registered with the Registrar of Companies, Andhra Pradesh, Hyderabad nothing is stated whether the Club is discharging any governmental or statutory functions and the Government exercises deep and pervasive control over the activities of the Club and all necessary funds are borne by the Government for running the Club for making it an instrumentality or agency of the State. The only averment which is made in the writ petition is that as per 29th Annual Report for the year 1999-2000 published and circulated by the Club the net income of the club is Rs. 35,48,84,938 which is a public money and the activities of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an authority within the meaning of article 12, if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression authority in article 12." (p. 737) After summarising the relevant tests, the Supreme Court in para 12 held that "the definition of State in article 12 which includes an authority within the territory of India or under the control of the Government of India is limited in its application only to Part III and by virtue of Article 36, to Part IV, it does not extend to the other provisions of the Constitution." 14. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 5. Imposition of statutory duties by the State. 6. Whether a department of Government is transferred. 18. Article 3 of the articles of association of the Club puts a ceiling on the number of Club members as 1500. Articles 12 and 13 refer to entrance fee under various heads and annual subscriptions for all members. The Management of the Club shall be managed by Board of Stewards as per article 21 which shall consist of 12 Stewards, of whom 8 shall be elected from among the Club Members and 3 shall be nominated by the Government of Andhra Pradesh and one shall be the Commander, Andhra (Independent) Sub-Area and elected members shall hold office only if, and so long as, they are club members. The term of the office of the elected Stewards of the Board shall be two years. The Stewards nominated by the Government of Andhra Pradesh shall hold the office at the pleasure of the Government and entitled to exercise all the rights and privileges of the Club Members except the right to vote at the General Body Meeting (Articles 22 and 23). The procedure for Election of Board of Stewards is provided under article 26. Notice and proceedings at general body meetings as contemplated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that such an activity will amount to public duty. Public duty is owned to the public in general and not specifically to any person or group of persons. In such cases and in view of the nature of the functions that any incorporated company is performing is not amenable to Judicial review under article 226. Except stating that the memorandum of association was registered with the Registrar of Companies and one of its object is to establish institutions, schools, funds and other conveniences for training jockeys and riders, both professional and amateur, no other clause is pointed out by the learned counsel for the petitioner to come to a conclusion that the Club is an instrumentality or agency of the State and is discharging all the functions of the State Government. Unless the petitioner is able to establish that it discharging all functions of the Government, it cannot be said that the Club is an instrumentality of the State or other authority. Equally, the contention of the petitioner that the Government of Andhra Pradesh provided the club with loans at nominal rate of interest to conduct racing and unless necessary licence is given, it cannot carry out the activities of rac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumes considerable time. The question whether by placing 8 ballot boxes causes prejudice to the petitioner and materially affects the election, cannot be decided in a petition under article 226, for which the petitioner has to establish by leading evidence before an appropriate forum. 24. Similarly, the third contention supply of intoxicating drinks amounts to corrupt practice cannot be gone into the writ petition, which again required to be proved by leading evidence and necessary pleadings. In that view of the matter, the application filed by the petitioner permitting him to lead evidence is rejected. 25. This Court in Avanthi Explosives (P.) Ltd. s case ( supra ) clearly held that the jurisdiction of the Civil Court under section 9 of the Code of Civil Procedure, 1908, is preserved unless specifically or by implication excluded by the Companies Act. Therefore, the contention of the learned counsel for the petitioner that he has no other alternative remedy and filing of Civil suit can take long time to decide the matter, hence he can invoke the jurisdiction of this Court under article 226 of the Constitution cannot be sustainable and the same is rejected. 26. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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