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Madhya Pradesh High Court · body

2013 DIGILAW 1528 (MP)

A. K. Dubey v. Indian Medical Association

2013-12-05

RAJENDRA MENON

body2013
JUDGMENT Petitioner a practicing Orthopaedic Surgeon from Gwalior has filed this writ petition purportedly under Article 227 of the Constitution and calls in question the elections held to the M.P. Branch of the Indian Medical Association. It is said that the election held is illegal as certain irregularities and illegalities have been committed, matter came to this Court at the instance of certain parties including the petitioner in W.P. No. 10181/13 and, thereafter, in W.A. No. 568/13. The Writ Court and the Writ Appellate Court took note of various aspects of the matter and finally as a remedy of raising the election dispute before the Election Tribunal by way of an election petition was available under Clause 35 (C) (3) and in terms of the Article of Association and the Memorandum, Rules and Bye-laws of the Indian Medical Association, M.P. State Branch, the petitions and the writ appeals were disposed of relegating the parties to take recourse to the remedy available of approaching the Tribunal. 2. It is stated that petitioner has raised the dispute before the Election Tribunal and now the grievance of the petitioner seems to be that the Election Tribunal is not proceeding in the matter and is insisting upon the petitioner to deposit Rs. 1,00,000/- towards expenses for travelling and other expenses for the members of the Tribunal conducting the proceedings. Seeking a direction to the Election Tribunal to decide the election dispute raised by the petitioner in accordance with the Bye-laws of the association at an earlier date, petitioner has approached this Court. 3. On notice being issued, respondents have filed the return and apart from raising various objections and questions with regard to the right of the petitioner to invoke the jurisdiction of this Court, respondents have stated that petitioner has not complied with certain directions issued by the Tribunal and, therefore, the petition be dismissed. 4. During the course of hearing of this writ petition on 11-11-13, a question with regard to jurisdiction of this Court to interfere in a writ petition under Article 226/227 of the Constitution was raised. It was submitted by Shri R.K. Sanghi, learned Counsel for the respondents Association and Shri Sanjay K. Agrawal that the Indian Medical Association and the M.P. State Branch of the Indian Medical Association is nothing, but an Association of private individuals and doctors. It was submitted by Shri R.K. Sanghi, learned Counsel for the respondents Association and Shri Sanjay K. Agrawal that the Indian Medical Association and the M.P. State Branch of the Indian Medical Association is nothing, but an Association of private individuals and doctors. It is not an authority or a State within the meaning of Article 12 of the Constitution. It does not perform any public duties or Governmental activities and, therefore, it was argued that it is neither a State nor an authority amenable to the writ jurisdiction of this Court. 5. Per contra Shri Sankalp Kochar submitted that this is a petition under Article 227 of the Constitution and petitioner is seeking a certiorari to the Election Tribunal to conduct its proceedings in accordance with the provisions of Bye-laws and, therefore, for issuing a direction to the Tribunal, the power of certiorari available to this Court in a petition under Article 227 of the Constitution can be exercised. 6. Shri Sankalp Kochar invited my attention to the Bye-laws and the objects of the memorandum formulated by the Indian Medical Association, M.P. State Branch and tried to emphasise that if these objects are taken note of, it would be seen that the association is acting towards promotion of health in the State of M.P. and, therefore, it discharges public/Government functions and is amenable to the writ jurisdiction of this Court. 7. That apart, it is submitted by him that when an Election Tribunal is created, the Tribunal has to discharge its functions in accordance to law and if that is not done, then the jurisdiction available to this Court under Article 227 of the Constitution can be exercised. He invites my attention to the following judgment in support of his contentions Virendra Kumar Shrivastava Vs. U.P. Rajya Karmachari Kalyan Nigam and another, (2005) 1 SCC 149 , to say that in this case, the U.P. Rajya Karmachari Kalyan Nigam, a Society registered under the Society Registration Adhiniyam was treated to be a State or other authority within the meaning of Article 12 of the Constitution and, therefore, the present association also, a Society registered under the Societies Registration Act can be construed to be a State or other authority. He also invited my attention to a judgment rendered in the case of State of Uttar Pradesh and another Vs. He also invited my attention to a judgment rendered in the case of State of Uttar Pradesh and another Vs. Radhey Shyam Rai, (2009) 5 SCC 577 , wherein it was held that the U.P. Ganna Kishan Sansthan, a Society registered under the Society Registration Act, was construed to be a State or other authority within the meaning of Article 12 of the Constitution and finally, a judgment rendered in the case of Madhya Pradesh State Corperative Dairy Federation Ltd. and another Vs. Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221 , wherein the Dairy Federation Corporation, a Society registered under the M.P. Co-operative Societies Act, was held to be a State or other authority. 8. It is emphasised by Shri Sankalp Kochar that in the present case, apart from the fact that the Indian Medical Association is discharging public duties for improving the health and medical facility for the citizens of the State, it is an association registered under the Society Registration Act and is amenable to the writ jurisdiction of this Court. It is further emphasised by him that when an Election Tribunal is created and the Tribunal has to function in accordance with the Rules and Regulations, a certiorari can be issued to the Tribunal to discharge its functions properly. 9. Respondents have refuted the aforesaid and Shri R.K. Sanghi argued that the Indian Medical Association is a private association of practicing doctors and it carries various private activities for advancing the cause of the medical professionals by holding conferences, seminars, lectures etc. It is not controlled or financed by the State Govt. or Central Govt. The Government does not exercise any administrative or financial control. It is purely a body of individuals carrying out activities in accordance with the requirement of its Bye-law. The Tribunal is also a non-statutory Tribunal. It is established under the Bye-laws and is not a permanent Tribunal. The Tribunal is constituted as and when required. The Association nominates its members, who are elected office bearers and, therefore, submitting that neither the Indian Medical Association is a State within the meaning of Article 12 of the Constitution nor does it come within the purview of any society, the objection is raised. 10. The Tribunal is constituted as and when required. The Association nominates its members, who are elected office bearers and, therefore, submitting that neither the Indian Medical Association is a State within the meaning of Article 12 of the Constitution nor does it come within the purview of any society, the objection is raised. 10. Shri Sanjay K. Agrawal, learned Counsel appearing for respondent No. 5 apart from advancing arguments as submitted by Shri R.K Sanghi brings to the notice of this Court a judgment in the case of Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others, (2002) 5 SCC 111 , and points out that if the facts laid down in the aforesaid case are applied to the present case, it would be clear that neither the Indian Medical Association is a State or any other authority as contemplated under Article 12 of the Constitution nor is the Tribunal deciding the election dispute under the supervisory control of this Court under Article 227 of the Constitution. 11. I have heard learned Counsel for the parties at length and perused the record. Two questions arise for consideration in this writ petition. The first question is as to whether the Indian Medical Association can be termed as a State or any other authority or person to come within the jurisdiction of this Court under Article 226 of the Constitution. The second question would be that even if the Indian Medical Association is not a State, whether the Tribunal constituted under the Article and Memorandum of the Association can be said to be under the supervisory jurisdiction of this Court under Article 227 of the Constitution and a writ of certiorari for correcting any error committed by the Tribunal can be issued. 12. As far as the question of the Indian Medical Association and its M.P. State Branch under the State or other authority is concerned, the objects of the association available in the memorandum of association in Part II to contemplate that the association shall act in furtherance of any Medical Health Service and improve the medical education, there is nothing available in the Memorandum of Association or Bye-laws to say that the association discharges any function, which is normally discharged by the State or any other authority under the control of the State. Neither any administrative control or financial aid is granted by the State Govt. Neither any administrative control or financial aid is granted by the State Govt. nor is anything available on record to say that any Government or Statutory Authority exercises any control in the day-to-day functioning of the Indian Medical Association. In the case of Pradeep Kumar Biswas (supra), the question as to whether the Council of Scientific and Industrial Research, a Society registered under the Society Registration Act is a State or not was under consideration. The majority judgment in the aforesaid goes to show that it took note of the test laid down by the Supreme Court in the case of Ajay Hasia Vs. Khalid Mujib Sehravardi, (1981) 1 SCC 722 , and came to the conclusion that no rigid separate principles can be laid down to say if a body falls within the ambit of a State or other authority. The question in each case has to be decided in the light of the cumulative facts available with regard to establishment of the body, its financial and administrative function and the control if any exercised by the Government or any Statutory Authority. 13. It has been held in Para 40 of the aforesaid judgment as under : -- "40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia (supra), are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be -- whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found, then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." 14. Thereafter, based on the aforesaid, it has been held that the Council is not a State within the meaning Article 12 of the Constitution. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." 14. Thereafter, based on the aforesaid, it has been held that the Council is not a State within the meaning Article 12 of the Constitution. The majority judgment in the case of Pradeep Kumar Biswas (supra), has summed up its conclusion and in Para 98, it is said that simply because a body holds a legal entity, it would not be a instrumental or agency of the State. It is held that to be an authority or an entity, the body should be created by a statute or under the statute and its functioning and liability should be an obligation to the public at large and the public interest tests fulfilled. The law is laid down in the aforesaid case to say that a body or an association can be termed as instrumentality of the State or any authority based on financial control, administrative control and the public function obligates discharged by the body, these are the determining factors. It is held that the Council for Indian Scientific Research does not discharge any Government function nor is it vested with any power to discharge the duties of a State. It was found that the Government does not exercise any administrative control nor is it having any control over the Council. On such an evaluation, it is held that the Council for Scientific and Indian Research is not a State or other authority. 15. If the aforesaid principle is applied into the facts and circumstances of the present case, it would be seen that the Indian Medical Association is nothing, but an Association of Doctors, practicing throughout the country and in different States, a separate State Unit/Branch has been created. The main functioning of the Association as is made out from the documents available on record goes to show that it is an Association to conduct research and by holding conferences, workshops etc. conducts research in the field of Medicine and allied sciences. It does not discharge any function, which is primarily undertaken by the State. No control of the State is exercised upon the association nor is any statutory obligation discharged by the association. conducts research in the field of Medicine and allied sciences. It does not discharge any function, which is primarily undertaken by the State. No control of the State is exercised upon the association nor is any statutory obligation discharged by the association. It does not discharge any statutory function nor does any Government or any Statutory Authority exercises any control over the functioning of the association. The entire functions of the association and the management of the association are done by the elected private individuals, who are members of the association and no financial aid or support is given by the Government. In fact, the Government or any other authority of the State does not exercise any control on the day-to-day functioning of the association. 16. On the contrary, the association has its own Bye-laws, which are non-statutory in nature and the entire functioning of the association is done on the basis of these Bye-laws and the management of the association is done by the elected office bearers of the association, who are none other than the practicing doctors, i.e., members of the association. There is no delegate or nominee of the State or any Statutory Authority participating in the administrative activities of the association. 17. That being so, if the test laid down by the Supreme Court in the cases of Ajay Hasia (supra) and Pradeep Kumar Biswas (supra) is applied to the functioning of the Indian Medical Association, I have no hesitation to hold that the association does not fulfil the requirement as laid down to say that it is a Statutory Authority, a State or an authority discharging its duties within the meaning of the Article 12 of the Constitution. 18. As far as the judgment relied upon by Shri Sankalp Kochar is concerned, in each case, the factual scenario is different. In all the three cases relied upon by Shri Sankalp Kochar, the association or the body, which was held to be amenable to the writ jurisdiction was functioning under the direct control of the State Govt. or under the control of some Statutory Authority. 19. In the case of Radhey Shyam Rai (supra), the body was the U.P. Ganna Kishan Sansthan. The functions which are being performed by Sansthan were used to be performed by Government directly. or under the control of some Statutory Authority. 19. In the case of Radhey Shyam Rai (supra), the body was the U.P. Ganna Kishan Sansthan. The functions which are being performed by Sansthan were used to be performed by Government directly. The main purpose of this Sansthan was to provide scientific advice for sugarcane cultivation in the State of U.P. The entire function was earlier undertaken by a Government Department. Thereafter, the Government itself formed the U.P. Ganna Kishan Sansthan and the entire infrastructure of the Government including its functioning were transferred to this Sansthan and the Cane Commissioner was made incharge to look after the affairs of the Sansthan and its day-to-day activities. 20. Apart from the Cane Commissioner, various other officers of the Government were carrying out the day-to-day functioning of the Sansthan and the entire administrative control of the Sansthan was by these officers. The Accounts Officer and certain officials were Government servants on deputation. The funds to the Sansthan was provided by the Government, under such circumstances, this Sansthan is held to be a State within the meaning of Article 12 of the Constitution as it was controlled by the U.P. Government financially and administratively. This case does not help the petitioner. In the case of U.P. Rajya Karmachari Kalyan Nigam (supra), also, identical situation was existing. The Nigam, a society registered under the Society Registration Act was a Corporation consisting of Executive Officers representing various departments in the State of U.P. The officers were sent on deputation to work in this Nigam and the entire financial control of this Corporation is vested with the State of U.P. The overwhelming material was produced in this case to say that Nigam was nothing but an instrumentality of the State functioning through the officers of the State and funds and aid was granted by the State. That was the reason why the said Nigam was held to be a State or Authority within the meaning of Article 12 of the Constitution. 21. In the case of Madhya Pradesh State Cooperative Dairy Federation Ltd. (supra), even though the Federation was a Society registered under the Society Registration Act, but the entire financial and administrative control of the State Govt. was available and the Managing Director and other officers of the Government were sent on deputation to the Federation. The Federation was being provided financial aid by the State Govt. was available and the Managing Director and other officers of the Government were sent on deputation to the Federation. The Federation was being provided financial aid by the State Govt. from time to time and as the functioning of the Federation was controlled by the Government, the society was held to be an instrumentality of the State. 22. In the present case, the entire scenario is different. Neither any material is available to show that any Government control is exercised nor any Government officers are associated with the day-to-day activities of the Indian Medical Association nor is any financial aid or grant made available to the Indian Medical Association in the matter of discharge of its day to day functioning. 23. Apart from the aforesaid cases, there are various other judgments of the Supreme Court wherein the question with regard to an establishment being a 'State' or other authority within the meaning of Article 12 of the Constitution has been considered and a decision taken. In the case of Chander Mohan Khanna Vs. National Council of Educational Research & Training and others, AIR 1992 SC 76 , the National Council for Educational Research and Training was held not to be a State on the ground that it is not subjected to any administrative or financial control of the Government or any Statutory Authority. 24. Similar views have been taken in the case of Army School Vs. Smt. Shilpi Paul, 2005 (1) ESC 342, an Educational Institute established by the Army Authorities was held not amenable to the writ jurisdiction on the ground that the administration of the school by the personnels working in the Appropriate Army Regiment and the functions performed by the Army Officials for managing the affairs of the institute did not form part of their officials and statutory duties accordingly, it was held that it is not 'State'. 25. A catena of judgments are available with regard to various establishments wherein the same principle, as indicated hereinabove, have been followed. 26. That being so, the first question as formulated is answered by holding that the Indian Medical Association is not a State or other authority within the meaning of Article 12 of the Constitution and, therefore, it is not amenable to the writ jurisdiction of this Court. 27. 26. That being so, the first question as formulated is answered by holding that the Indian Medical Association is not a State or other authority within the meaning of Article 12 of the Constitution and, therefore, it is not amenable to the writ jurisdiction of this Court. 27. Having held so, the second question as to whether the Election Tribunal where the dispute is said to have been raised by the petitioner is under the administrative or supervisory jurisdiction of this Court as envisaged under Article 227 of the Constitution. 28. Under Article 227 of the Constitution, it is stipulated that every High Court shall have the power of superintendence over the Courts and Tribunals functioning within its territorial jurisdiction. The Courts and the Tribunal referred to in Article 227 of the Constitution will have to be interpreted to mean such Statutory Tribunals or Authorities which are vested with quasi-judicial power by whatever name they are called and are creation of a statute. 29. If an association of individuals create an independent body consisting of certain members of the association for the purpose of resolution of some dispute inter se between the members and if the bodies so created for resolution of the dispute is termed as a Court or a Tribunal, the mere terming or calling of the dispute resolution mechanism as a Court or a Tribunal will not by itself make the Tribunal amenable to the supervisory jurisdiction under Article 227. To make it so, the body termed as a Court or a Tribunal should not only discharge the statutory duties but the duties and the procedure to be followed by the Tribunal should be of a quasi-judicial in nature and it must be the creation under the statute. 30. A private dispute redressal mechanism created by certain individuals cannot be subjected to the supervisory jurisdiction of this Court. If the Memorandum of Association and the Bye-laws of the Indian Medical Association are perused, it would be seen that under Bye-law 35 under the Chapter, Election and other Disputes, it is contemplated that all disputes pertaining to the said Branch of the association shall be decided by a Tribunal, which shall comprise of the National President of the Indian Medical Association and two immediate Past National Presidents of the association. Various eventualities are contemplated therein and it is indicated that the Tribunal shall function and the parties to the dispute will have to bear the expenses, which would be made by the members of the Tribunal for discharging their duties including expenses for travel from one place to another. 31. It is, therefore, clear that a Dispute Redressal Mechanism provided in the Bye-laws indicates that a mechanism has been created in the form of a Tribunal and this Tribunal is not creation of a statute nor any statutory duties or functions are performed by it. In fact, even though, termed as a Tribunal, it is nothing, but a body of private Arbitrators for resolution of a election dispute. The Tribunal so created for resolution of the election dispute is not a creation of any statute. It is only a mechanism created by private individuals, who are members of the association, as per their Bye-laws for resolution of the inter se dispute between them, the Tribunal before whom the dispute pertaining to present election is pending does not have the tappings of the quasi-judicial Authority as are necessary to hold it to be a Court or a Tribunal within the meaning of Article 12 of the Constitution. 32. A dispute redressal mechanism created by certain private individuals cannot be termed as a Court or a Tribunal to be brought within the supervisory jurisdiction of this Court in a petition under Article 227 of the Constitution. 33. As far as the question of adjudicating mechanism being a 'Tribunal' or not within the meaning of Articles 136 and 227 of the Constitution is concerned, the question was considered by the Supreme Court in the case of Associated Cement Companies Ltd. Vs. P.N. Sharma and another, 1965 AIR SCW 1595. In the said case, it has been held by the Supreme Court that while considering the question as to whether a body or authority is a Tribunal the consideration about presence of all or some of the trappings of Court is not decisive, the meaning and basic test is whether any adjudicative power, which a particular authority is empowered to exercise has been conferred by a statute and further it can be described as a part of State inherent power exercised in the discharge of its judicial function. 34. 34. In various other cases also, this question has been considered and reference may be made to the following cases : -- (1) Durga Shankar Mehta Vs. Raghuraj Singh, AIR 1954 SC 520 , (2) All Party Hill Leaders Conference, Shillong Vs. Captain W.A. Sangma, (1977) 4 SCC 161 , (3) Bharat Bank Ltd. Vs. Employees of Bharat Bank Ltd., AIR.1959 SC 188. 35. A complete reading of all these judgments goes to show that to be a Tribunal amenable to the supervisory jurisdiction of this Court under Article 227 of the Constitution the body or authority should not only exercise quasi-judicial function, but it should be a creation of statute and should be discharging judicial functions, which is normally to be discharged by the State or its instrumentality. If the aforesaid principles are applied to the Election Tribunal in question, it is clear that it is neither a creation of the statute nor does it perform any judicial function, which is inherent to be performed by the State Government nor are the members of the so called Election Tribunal clothed with any statutory powers or functions. 36. Accordingly, I am of the considered view that even a writ of certiorari cannot be issued to this Tribunal as it is neither a Statutory Tribunal nor a quasi-judicial Authority discharging any functions, which can be controlled by this Court, It is nothing but a creation of certain individuals for the purpose of deciding their inter se dispute. 37. Under such circumstances, I am of the considered view that in the facts and circumstances of the case, a writ petition is not maintainable. If the petitioner has any grievance in the matter, he has to take recourse to the common law remedy available. 38. Even though, on two previous occasions, certain directions have been issued by this Court, but on a perusal of the orders passed, it is seen that the question of jurisdiction was not considered or decided under the apprehension that the matter can be interfered in a petition under Article 227 of the Constitution and the matter was disposed of without adverting to consider all these questions. 39. Accordingly, having found the petition itself not maintainable, relegating the petitioner to take recourse to the common law remedy available, this petition stands dismissed.