Nathu Ram Jain vs Akhil Bhartiya Agrawal Sammelan Through National General Secretary Gopal Goyal & Ors.
- Court
- Delhi High Court
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Delivered on: 24.04.2026
+ ARB.P. 738/2026
NATHU RAM JAIN .....Petitioner
Through: Mr. Vinod Dahiya, Ms. Shreya Garg
and Ms. Vandana Dahiya, Advs.
versus
AKHIL BHARTIYA AGRAWAL SAMMELAN THROUGH
NATIONAL GENERAL SECRETARY GOPAL GOYAL & ORS.
.....Respondents
Through: Mr. Thakur Sumit and Mr. Gaurav
Rathod, Advs. for R-1 & 2 with R-2
in person.
Mr. Kumar Mukesh and Ms. Chetna
Goyal, Advs. for R-3.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J (ORAL)
I.A. 11218/2026 (under Section 151 CPC seeking exemption from filing
the true typed copies and translated copies of dim orders and
annexures)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
ARB.P. 738/2026 & I.A. 11217/2026 (under Section 151 CPC read with
Section 9 of Arbitration and Conciliation Act, 1996)
3. The present petition has been filed under the provisions of Section
11(6) of the Arbitration and Conciliation Act, 1996 [hereinafter, „the Act‟]
for the appointment of a Sole Arbitrator in terms of Clause 43 of the
Constitution (as amended in 2024) of the “Akhil Bhartiya Agrawal
Sammelan /respondent no. 1, [hereinafter referred to as, „ Sammelan ‟], which
is a registered society under the provisions of the Registration of Societies
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Act, 1860 vide registration no. 7953 of 1976 and is governed by its own
Constitution, Rules and Regulations.
4. Petitioner herein is aggrieved by the election notification dated
16.03.2026, which proposes to conduct elections on 25.04.2026 for the
National Office Bearers of All India Agrawal Sammelan /Conference for the
upcoming five year tenure 2026-2031, allegedly in complete violation of the
Constitution of the Sammelan and the Rules and Regulations governing the
registered society. Along with the present petition, the petitioner has also
filed an application, being I.A. No. 11217/2026 under Section 9 of the Act
praying for interim measures seeking to stay the elections.
5. The case set out in the present petition is that the petitioner is a
responsible member of the Sammelan and is aggrieved by the illegal,
arbitrary and non-transparent manner in which the affairs of the said society,
particularly the election process scheduled to be held on 25.04.2026, are
being conducted by the management/few officers bearers, including the
National President Sh. Gopal Sharan Garg/respondent no.2 of the
Sammelan.
6. Mr. Vinod Dahiya, learned counsel for the petitioner primarily
submits that the impugned election notice dated 16.03.2026 was issued on
the basis of an alleged Annual General Meeting conducted on 15.03.2026;
however, the said meeting was held without issuing any proper notice or
communication to a substantial number of members, approximately 1,20,000
in number, in gross violation of Clause 13(4) of the Sammelan’s
Constitution. By referring to the said clause, he submits that before
conducting an AGM, a notice of 30 days should be given to the members of
the Sammelan , which was not given by the respondents.
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7. He further submits that as per Clause 19(4) of the Sammelan’s
Constitution, the election notice is required to be published in the official
magazine of the society and duly circulated amongst the members at least 21
days prior to the date of election, but in the present case, the alleged
publication of the election notification dated 16.03.2026 in the
Magazine/Patrika is highly doubtful and lacks authenticity, as the said
Magazine/Patrika appears to have been printed only on 17.03.2026.
8. He submits that appointment of the Chief Election Officer, namely,
Bhupinder Kansal/respondent no. 3, has been made without any authority of
law and in a wholly non-transparent manner, without any resolution or
approval from the competent body, thereby being in clear violation of
Clause 19 of the Constitution of Sammelan.
9. He further submits that respondents have directly nominated
candidates for the 25.04.2026 election without conducting the mandatory
Regional Elections required under Clause 19(18)(i) of the Constitution.
10. Moreover he submits that the voter list prepared and relied upon by
the respondents is incomplete and defective as it does not contain essential
particulars such as postal addresses, mobile numbers, and email IDs of the
members, thereby rendering any meaningful verification and canvassing by
the candidates impossible, thus, compromising the integrity, fairness, and
transparency of the election process.
11. Lastly, he made a submission, though not pleaded in the petition, that
the unamended Clause 19(9) of the Sammelan’s Constitution states that the
term of office of elected office bearers shall be of three years, and that an
office bearer will not hold the office for more than two consecutively terms.
He further states that this clause was amended in the year 2024 to extend the
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term of the office bearers from three years to five years. Further, a person
could become an office bearer for consecutive two terms under the
unamended constitution, but by way of amendment it was made three terms.
In this regard, he submits that the said amendment to the Constitution was
illegal, and further, in spite of the same, respondent nos. 1 and 2 are
contesting for the third time.
12. Being aggrieved by the aforementioned anomalies, Mr. Dahiya draws
the attention of the Court to the arbitration clause, namely Clause 43 of the
Constitution of the Sammelan. He submits that in the background of such
irregularities, the present dispute ought to be referred to arbitration, and an
interim relief as prayed may be granted.
13. The constitution of Sammelan and Clause 43 is in Hindi, the English
translation of which has been given in para 4 of the petition, and reads thus:
“4. That as per clause 43 of the Constitution of the Akhil Bhartiya
Agrawal Sammelan, 2024, it is provided that any disputes or
differences arising between the parties shall be referred to arbitration.
The Petitioner, therefore, invoked the said clause for adjudication of
the present disputes through arbitration. Clause 43 is reproduced
below:
“43. Arbitration
Sadasyo aur sammelan ke aapsi vivad athva sammelan ki
gatividhyon jaise sadasyta ya kisi bhi prakar ke any vivad ka
niptara Arbitration and Conciliation Act, 1996 ke anatrgat
arbitration ke dwara hi niptaya jaayegaa”
(“43. Arbitration: Any mutual disputes between members and the
Conference, or disputes concerning the activities of the
Conference—such as membership or any other matters of
dispute—shall be resolved exclusively through arbitration in
accordance with the Arbitration and Conciliation Act, 1996.”)
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14. To buttress his contention, he has relied upon the following decisions
– (i) Union Territory of Ladakh and Ors. vs. Jammu and Kashmir
national conference, through its general secretary, (2024) 18 SCC 643 ; (ii)
Pradeepsinh Chandrasinh Solanki and Anr. vs. Board of control for
cricket in India and Ors., 2026 SCC Online Guj 2079; (iii) Gautam Das vs.
High Powered Election Committee and Ors., 2026 SCC Online Cal 1473;
(iv) Big Charter Private Limited vs. Ezen Aviation Pty.Ltd. and Ors., 2020
SCC Online Del 1713.
15. Per contra , Mr. Thakur Sumit, learned counsel appearing on behalf of
respondent nos. 1 and 2, vehemently opposes the petitioner‟s submissions.
He contends that the present petition is essentially under section 11 of the
Act and the petitioner cannot be permitted to seek interim reliefs in terms of
section 9, nor a petition under section 11 can be treated as a petition under
section 9, as prayed, since such a request is legally and procedurally
untenable. Elaborating on this aspect, Mr. Sumit submits that the statutory
requirements and the very nature of pleadings under said provisions are
fundamentally distinct. If the matter is to be legitimately adjudicated under
Section 9, the pleadings would necessarily have been far more elaborate,
comprehensive, and specifically tailored to establish the grounds for interim
protection, whereas, a petition under Section 11 has limited scope of
appointing an arbitrator, and cannot be treated as Section 9 petition without
there being the requisite standard of pleadings, satisfying particularly the
triple test of – prima facie case, balance of convenience and irreparable loss.
16. Further, drawing attention of the Court to the arbitration clause,
namely Clause 43 of Sammelan’s Constitution, he submits that a plain
reading of the said clause clearly indicates that disputes pertaining to the
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election process are not subject to the arbitration mechanism. He further
highlights that the term “election process” is conspicuously absent from the
ambit of the arbitral clause.
17. He vehemently contends that election matters are inherently non-
arbitrable as they involve rights and actions that are in rem . Substantiating
on this proposition, he submits that a dispute regarding an election is not
mere private dispute in personam between two individuals. Rather, the
outcome of an election dispute affects the rights of the entire electorate, and
any adjudication thereon binds one and all who are involved in the
institution. Therefore, given the collective nature of the rights involved and
the specific boundaries of Clause 43, the present dispute is fundamentally
non-arbitrable and cannot, under any circumstances, be referred to an
arbitral tribunal.
18. Additionally, he submits that an alternative and efficacious forum is
already in place for the adjudication of the present dispute. In this regard, he
refers to sub-clauses (14) and (15) of Clause 19 [identically worded in pre
and post amendment of the Constitution of Sammelan ], which states that
after the election process begins, any complaint regarding the election must
be made in writing to the Election Officer, and if the complainant is not
satisfied with the decision, then he can file an appeal to the Tribunal of the
Sammelan /Conference after the elections. Sub-clauses (14) and (15) of
Clause 19 from the constitution ( Hindi version ) of Sammelan has been
reproduced below in Extenso in Hindi, alongwith its English
translation:
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19. Election of Office Bearers
14. After the commencement of the election process, any
complaint related to the election shall be made in writing to the
Election Officer. If the complainant is not satisfied with their
decision, an appeal can be made to the Tribunal of the
Conference after the election.
15. A three-member Tribunal shall be formed by the President, in
consultation with the General Secretary, from among the members
of the Executive Committee of the Conference at the same time as
the appointment of the Election Officer.
(emphasis supplied)
19. He submits that a specific Tribunal has been constituted in terms of
above quoted sub-clauses of Clause 19, exclusively to address and resolve
grievances pertaining to the election process. Consequently, any such
dispute must, in the first instance, be brought before the said Tribunal before
approaching this Court. In support of this contention, the respondents place
strong reliance on three official notifications of even date 28.01.2026, which
were handed over in the Court, to establish appointment of three members
who would constitute the Tribunal. Illustratively, one such notification dated
28.01.2026 is reproduced below in extenso:
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20. Mr. Sumit further contends that the election process has already been
set into motion with the issuance of the formal notification and Programme
of Election has been notified by the Chief Election Officer on 16.03.2026. In
this backdrop, it is submitted that once the election machinery has been
activated, this Court ought to refrain from exercising its jurisdiction to
interfere with the ongoing election process.
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21. He submits that this established legal embargo on judicial interference
after the election process has commenced, is not merely confined to
statutory or constitutional elections, but applies with equal force and vigour
to the elections of governing bodies of societies registered under the
Societies Registration Act.
22. He further contends that the petitioner himself is an active participant
and a contesting candidate in the impugned election, as evidenced by the
fact that he formally filed his nomination on 28.03.2026. He submits that
having voluntarily submitted to the election machinery by filing his
nomination, and thereafter having waited for 25 days before approaching the
Court, the petitioner has acquiesced to the process. Consequently, the
petitioner is now legally estopped from turning around and challenging the
validity of the election process at this belated stage.
23. To buttress his contentions, he has placed reliance on the following
decisions – (i) Utkarsh vs. Delhi bar Association, 2014 SCC Online Del
878; (ii) Booz Allen and Hamilton Inc. vs. SBI Home Finance Limited
and Ors., (2011) 5 SCC 532; (iii) The Yachting Association of India vs.
Boardsailing Association of India & ors., 2013 SCC OnLine Del 3235; (iv)
Supreme Court Bar Association and ors. vs. B.D Kaushik, (2011) 13 SCC
774; (v) Jyoti Basu and Ors. vs. Debi Ghosal and Ors., (1982) 1 SCC 691;
(vi) Kiran and Anr. vs. Shantilal Bhagchand Kocheta Jain & Ors., 2017
SCC Online Del 6883.
24. In rejoinder, Mr. Dahiya, learned counsel for the petitioner, clarifies
that the petitioner is not presently pressing for an absolute stay on the
ongoing election process. However, he vehemently urges that, as an interim
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measure to protect the petitioner‟s interests, the opening of the ballot boxes
and the subsequent counting of votes ought to be stayed, and any final
declaration of results must be made strictly subject to the final outcome of
the present petition.
25. Having heard the learned counsel for the respective parties at length,
and having carefully perused the pleadings and material placed on record,
this Court is of the considered view that before delving into the merits of the
alleged irregularities in the election process, the threshold issue of the
maintainability of the present petition must first be determined.
26. A plain reading of the arbitration clause i.e. clause 43 of the
Constitution of the Sammelan , reveals that it strictly contemplates the
resolution of mutual disputes between members and the
Sammelan/Conference, or disputes concerning the “activities” of the
Sammelan/Conference, such as membership etc. through arbitration. There
is no specific mention of “election disputes” in the arbitration clause,
suggesting that such disputes are non-arbitrable.
27. Even if one were to attempt a broadest interpretation of Clause 43, the
fundamental nature of the dispute presents an insurmountable barrier to
arbitrability. It is a well-settled legal proposition that arbitration is inherently
a private dispute resolution mechanism designed to adjudicate rights in
personam . An election of a society comprising approximately 1,20,000
members involves collective rights. A challenge to the election process, the
appointment of a Chief Election Officer, or the validity of the voter list is
not a private dispute between two individuals; it is an action in rem . The
outcome of such a challenge affects the democratic rights of the entire
electorate and the governing structure of the society as a whole. To put it
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differently, the disputes pertaining to election, which bind not only the
contesting candidates but all those in the electoral roll, are inherently non-
arbitrable.
28. At this stage reference may beneficially be had to the decision of the
Hon‟ble Supreme Court Booz Allen (supra), wherein the Court expounded
on the three facets of arbitrability, relating to the jurisdiction of the Arbitral
Tribunal. The relevant extract from the decision reads thus:
| “34. The term “arbitrability” has different meanings in different | ||
| contexts. The three facets of arbitrability, relating to the jurisdiction | ||
| of the Arbitral Tribunal, are as under: | ||
| (i) Whether the disputes are capable of adjudication and | ||
| settlement by arbitration? That is, whether the disputes, having | ||
| regard to their nature, could be resolved by a private forum | ||
| chosen by the parties (the Arbitral Tribunal) or whether they | ||
| would exclusively fall within the domain of public fora (courts). | ||
| (ii) Whether the disputes are covered by the arbitration | ||
| agreement? That is, whether the disputes are enumerated or | ||
| described in the arbitration agreement as matters to be decided | ||
| by arbitration or whether the disputes fall under the “excepted | ||
| matters” excluded from the purview of the arbitration agreement. | ||
| (iii) Whether the parties have referred the disputes to | ||
| arbitration? That is, whether the disputes fall under the scope of | ||
| the submission to the Arbitral Tribunal, or whether they do not | ||
| arise out of the statement of claim and the counterclaim filed | ||
| before the Arbitral Tribunal. A dispute, even if it is capable of | ||
| being decided by arbitration and falling within the scope of | ||
| arbitration agreement, will not be “arbitrable” if it is not | ||
| enumerated in the joint list of disputes referred to arbitration, or | ||
| in the absence of such joint list of disputes, does not form part of | ||
| the disputes raised in the pleadings before the Arbitral Tribunal. |
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| 35. The Arbitral Tribunals are private fora chosen voluntarily by the | |
|---|---|
| parties to the dispute, to adjudicate their disputes in place of courts | |
| and tribunals which are public fora constituted under the laws of the | |
| country. Every civil or commercial dispute, either contractual or | |
| non-contractual, which can be decided by a court, is in principle | |
| capable of being adjudicated and resolved by arbitration unless the | |
| jurisdiction of the Arbitral Tribunals is excluded either expressly or | |
| by necessary implication. Adjudication of certain categories of | |
| proceedings are reserved by the legislature exclusively for public | |
| fora as a matter of public policy. Certain other categories of cases, | |
| though not expressly reserved for adjudication by public fora (courts | |
| and tribunals), may by necessary implication stand excluded from the | |
| purview of private fora. Consequently, where the cause/dispute is | |
| inarbitrable, the court where a suit is pending, will refuse to refer the | |
| parties to arbitration, under Section 8 of the Act, even if the parties | |
| might have agreed upon arbitration as the forum for settlement of | |
| such disputes. |
XXX XXX XXX XXX
| 37. It may be noticed that the cases referred to above relate to | |
|---|---|
| actions in rem. A right in rem is a right exercisable against the | |
| world at large, as contrasted from a right in personam which is an | |
| interest protected solely against specific individuals. Actions in | |
| personam refer to actions determining the rights and interests of the | |
| parties themselves in the subject-matter of the case, whereas actions | |
| in rem refer to actions determining the title to property and the | |
| rights of the parties, not merely among themselves but also against | |
| all persons at any time claiming an interest in that property. | |
| Correspondingly, a judgment in personam refers to a judgment | |
| against a person as distinguished from a judgment against a thing, | |
| right or status and a judgment in rem refers to a judgment that | |
| determines the status or condition of property which operates | |
| directly on the property itself. (Vide Black's Law Dictionary.) |
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| 38. Generally and traditionally all disputes relating to rights in | |
|---|---|
| personam are considered to be amenable to arbitration; and all | |
| disputes relating to rights in rem are required to be adjudicated by | |
| courts and public tribunals, being unsuited for private arbitration. | |
| This is not however a rigid or inflexible rule. Disputes relating to | |
| subordinate rights in personam arising from rights in rem have | |
| always been considered to be arbitrable. |
| 39. The Act does not specifically exclude any category of disputes as | |
|---|---|
| being not arbitrable. Sections 34(2)(b) and 48(2) of the Act however | |
| make it clear that an arbitral award will be set aside if the court | |
| finds that “the subject-matter of the dispute is not capable of | |
| settlement by arbitration under the law for the time being in force”. |
(emphasis supplied)
29. Likewise, in Vidya Drolia and Ors. vs. Durga Trading Corporation,
(2021) 2 SCC 1 , it was noted as under:
| “76. | In view of the above discussion, we would like to propound a | |
|---|---|---|
| fourfold test for determining when the subject-matter of a dispute in | ||
| an arbitration agreement is not arbitrable: |
| 76.1. (1) When cause of action and subject-matter of the | |
|---|---|
| dispute relates to actions in rem, that do not pertain to | |
| subordinate rights in personam that arise from rights in rem. |
| 76.2. (2) When cause of action and subject-matter of the dispute | |
| affects third-party rights; have erga omnes effect; require | |
| centralised adjudication, and mutual adjudication would not be | |
| appropriate and enforceable. |
76.3. (3) When cause of action and subject-matter of the dispute
relates to inalienable sovereign and public interest functions of
the State and hence mutual adjudication would be unenforceable.
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| 76.4. (4) When the subject-matter of the dispute is expressly or | |
|---|---|
| by necessary implication non-arbitrable as per mandatory | |
| statute(s).” |
(emphasis supplied)
30. Similar view has been taken by the High Court of Madras in Madras
Sporting Youngsters Football Club v. Tamil Nadu Football Association,
2022 SCC OnLine Mad 460 . In this case as well, the Court was considering
an application filed under Section 11(6) seeking appointment of an arbitrator
as well as a separate petition under Section 9 of the Act praying for interim
measures. The question with which the Court was confronted was that
whether a dispute pertaining to election of office bearers of a Society in
terms of its bye laws is arbitrable. The Court after examining the decisions
in Booz Allen (supra) and Vidya Drolia (supra) held that election dispute is
non arbitrable, and resultantly both the petitions were dismissed.
31. Besides above noted inherent non-arbitrability of election disputes,
this Court also notes that sub-clauses (14) and (15) of Clause 19 provides an
alternative efficacious internal mechanism for the redressal of election-
related grievances. Sub-clause (14) states that after the commencement of
the election process, any complaint related to the election shall be made in
writing to the Election Officer. If the complainant feels aggrieved with the
decision of the Election Officer, an appeal may be preferred to the Tribunal
of the Sammelan after the election. Sub-clause (15) of Clause 19 mentions
that a three-member Tribunal shall be formed by the President, in
consultation with the General Secretary, from amongst the members of the
Executive Committee of the Sammelan , while making an appointment of the
Election Officer.
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32. As noted above, by way of notification dated 28.01.2026 a three-
member Tribunal, exclusively empowered to adjudicate upon election
disputes, has already been constituted and is in place. As argued by Mr.
Dahiya the petitioner has already approached the Election Officer by way of
representation dated 10.04.2026. In case the petitioner‟s grievance has not
been redressed, as claimed, he has unhindered right to approach the Tribunal
after the elections are over.
33. Conjoint reading of Clause 43 and sub-clauses (14) and (15) of Clause
19 clearly shows that the dispute challenging the election of the office
bearers of the Sammelan have been kept outside the purview of arbitration
clause, and separate mechanism has been provided for the same, therefore,
for this reason as well, the election dispute is non arbitrable.
34. Reference in this regard may be had to the decision in Utkarsh
(supra), wherein a coordinate bench of this Court while dealing with
clause 35 in the bye laws of Delhi Bar Association [ DBA ], which provided
for arbitration to adjudicate the disputes and differences between members
and members; members & association , held that the election dispute is not
covered within the sweep Clause 35, hence, not arbitrable. The Court also
held that the bye laws/constitution of the DBA is a complete code and it
separately provides for mechanism for election process and such disputes
are to be treated distinctly from that of all other disputes and they would not
fall within the ambit of the arbitration clause provided in the constitution.
“28. It is thus clear that the constitution of the defendant is a
complete code in itself providing for the mechanism for functioning
of association, committee, election process etc. As I have observed
on prima facie basis while discussing the effect of the reading of the
clauses of the constitution that the dispute by a members assailing or
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| raising voice against the functioning of the committee is not covered | |
|---|---|
| within the ambit of the clause 35 of the constitution. The said | |
| dispute prima facie is not arbitrable in nature as it is not covered | |
| within the sweep of the arbitration clause. Consequently, no useful | |
| purpose will be served by referring the said dispute to the arbitrator | |
| as per Section 8 of the Act. Thus, the application filed by the | |
| defendant seeking reference to the arbitration in the instant case is not | |
| maintainable nor it can be said that the suit is barred under the | |
| provisions of Section 5 of the Act. None of the decisions referred by | |
| the defendant is applicable to the facts and circumstances of the | |
| present case. |
29. The matter can also be seen from another angle which is that
even assuming that there exists any ambiguity between the overlap
of the duties of the association and that of the committee under the
constitution so far as the applicability of the arbitration clause in
relation to the acts of the executive committee are concerned. Still,
one thing is pretty clear which is that the disputes relating to the
election process are to be treated distinctly from that of all other
disputes and they would not fall within the ambit of the arbitration
clause provided in the constitution. This is clear from the intent of
framers of the rule when the rules provide that the role of holding
the election vests with the independent functionary which is election
commission to be appointed by the committee. The election disputes
of the candidates shall be entertained by the election commission
and the challenge of the result shall be entertained by the election
tribunal. All this would mean for the purposes of holding of election
and conducting the same uptil declaration of result, the process of
election has been intended by the framers of the constitution to be
kept separate from that of the business of committee or executive
already functioning so that free and fair elections are conducted
unprejudiced by the working of the governing body. Therefore, the
dispute challenging or seeking to challenge the initiation process of
the election of the defendant's association as per the intendment of
the framers are specifically enacted as domain of the election
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commission and thus would not fall with the general provision
contained in the arbitration clause as per clause 35. In the interim, if
the election commission is not appointed due to the failure to observe
the rules and the disputes relating of the elections are intended to be
kept separate from the other business of the association, the suit of the
present nature is maintainable at the instance of the affected parties
like members etc which can bridge the gap between the time of failure
to observe rules uptil appointment of the election commission by
setting the machinery into motion and calling upon the defendant
through the executive to set up election commission and take the
election process further. This view is prima facie in nature
considering the overall reading of the clauses of the constitution of the
defendant and is independent reasoning to my prima facie finding that
the dispute of a member vis-à-vis committee is distinct from a dispute
vis-à-vis association as whole.”
(emphasis supplied)
35. There is another crucial facet of the controversy. Undisputedly, the
election machinery was set into motion with the issuance of the formal
notification and programme of election on 16.03.2026. The law is well
settled that once the election process has commenced, courts should exercise
strict judicial restraint and normally decline to pass any orders that would
stall or interdict the election. This principle applies with equal force to the
elections of governing bodies of societies registered under the Societies
Registration Act. Reference may usefully be made to a recent decision of the
Hon‟ble Supreme Court in Mandeep Singh and Anr. vs. Collector and Ors.
dated 06.11.2024 [SLP No. 26170/2024], wherein the Hon‟ble Court while
dealing the challenge to the elections of a Society registered under M.P.
Society Registration Act, 1973, made following pertinent observations:
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“The law is settled in such cases in view of judgments of this Court in
“N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency
And Others” reported in (1952)S.C.R.218 and Mohinder Singh Gill &
Anr. Vs. The Chief Election Commissioner, New Delhi & Ors.
reported in (1978)1 SCC 405, which is that when the election process
has begun, no order should normally be passed by the courts
interfering with the election. The logic being that, if in such election
matters, an interference is made by the Courts, then in all likelihood,
no election can take place ever. The remedy, which is always
available to the other side, is by way of an Election Petition or a
Civil Suit, whatever the case may be, after the elections are over.
In the present case also, we are of the opinion that both the writ
petition and the writ appeal have been disposed of in accordance with
law, as the logic of the court being that, once the elections have been
notified, the Courts should not interfere with the matter. In these
circumstances, we see absolutely no reasons to interfere in the
matter . ”
(emphasis supplied)
36. Furthermore, it must be borne in mind that in any institution governed
by democratic principles, no individual member possesses an absolute right
to seek an injunction that would effectively stall the formation of the
governing body. The collective democratic will of the electorate and the
smooth functioning of the association cannot be held to ransom by the
grievances of a few individuals. Rather, the prudent approach is to leave the
internal electoral machinery to be strictly governed by the established Rules
and Regulations of the Association. Any judicial intervention at an
intermediate stage would not only defeat the very purpose of the democratic
exercise but also cause undue administrative paralysis within the society. In
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this context, reference may be had to the decision of the Hon‟ble Supreme
Court in B.D Kaushik (Supra), wherein it was observed as under:
| “43. It hardly needs to be emphasised that in any body governed by | |
| democratic principles, no member has a right to claim an injunction | |
| so as to stall the formation of the governing body of the Association. | |
| No such right exists in election matters since exercise of a right | |
| conferred by a rule is always subject to the qualifications prescribed | |
| and limitations imposed thereunder. The contention of the | |
| respondents that the amendment to the Rule whereunder the right to | |
| be eligible to contest for any post for the Association or the eligibility | |
| to cast the vote at the election, takes away the right completely, is | |
| misconceived since by the amendment the right is not taken away but | |
| is preserved subject to certain restrictions on its exercise and this | |
| could always be done. |
XXXX XXX XXX XXXX
| 52. In matters of internal management of an association, the courts | |
|---|---|
| normally do not interfere, leaving it open to the association and its | |
| members to frame a particular bye-law, rule or regulation which | |
| may provide for eligibility and or qualification for the membership | |
| and/or providing for limitations/restrictions on the exercise of any | |
| right by and as a member of the said association. It is well-settled | |
| legal proposition that once a person becomes a member of the | |
| association, such a person loses his individuality qua the association | |
| and he has no individual rights except those given to him by the rules | |
| and regulations and/or bye-laws of the association. |
XXXX XXX XXX XXXX
60. Further, the appellants had rightly pointed out to the learned
Judge that election process had already started and, therefore,
injunction, as claimed, should not be granted. Since 1952 this Court
has authoritatively laid down that once election process has started
the courts should not ordinarily interfere with the said process by
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| way of granting injunction. The argument advanced by the appellants | |
|---|---|
| that election process having started, the injunction should not be | |
| granted is dealt with by the learned Judge by holding that in the | |
| present case the plaintiffs have not prayed for injunction against the | |
| election process.” |
(emphasis supplied)
37. Similarly, in Jyoti Basu (supra) the Hon‟ble Supreme Court observed
that right to elect or to be elected is a statutory right, and outside of statute,
there is no right to elect, no right to be elected and no right to dispute an
election. Therefore, statutory creations are subject to statutory limitation.
These observations are equally applicable to the elections of a Society, and
the same have to held, and challenge thereto has to be entertained, strictly in
terms of the provisions provided in that behalf in its bye laws or the
constitution. The relevant observations from said decision reads thus:
“8. A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a common
law right. It is pure and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside of statute,
there is no right to elect, no right to be elected and no right to
dispute an election. Statutory creations they are, and therefore,
subject to statutory limitation. An election petition is not an action at
common law, nor in equity. It is a statutory proceeding to which
neither the common law nor the principles of equity apply but only
those rules which the statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always to be exercised in
accordance with the statute creating it. Concepts familiar to
common law and equity must remain strangers to election law
unless statutorily embodied. A court has no right to resort to them on
considerations of alleged policy because policy in such matters as
those, relating to the trial of election disputes, is what the statute lays
down. In the trial of election disputes, court is put in a strait-jacket.
Thus the entire election process commencing from the issuance of
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| the notification calling upon a constituency to elect a member or | |
|---|---|
| members right up to the final resolution of the dispute, if any, | |
| concerning the election is regulated by the Representation of the | |
| People Act, 1951, different stages of the process being dealt with by | |
| different provisions of the Act. There can be no election to | |
| Parliament or the State Legislature except as provided by the | |
| Representation of the People Act, 1951 and again, no such election | |
| may be questioned except in the manner provided by the | |
| Representation of the People Act. So the Representation of the People | |
| Act has been held to be a complete and self-contained code within | |
| which must be found any rights claimed in relation to an election or | |
| an election dispute. We are concerned with an election dispute. The | |
| question is who are parties to an election dispute and who may be | |
| impleaded as parties to an election petition. We have already referred | |
| to the scheme of the Act. We have noticed the necessity to rid | |
| ourselves of notions based on common law or equity. We see that we | |
| must seek an answer to the question within the four corners of the | |
| statute. What does the Act say?” |
(emphasis supplied)
38. Moreover, the conduct of the petitioner warrants strict scrutiny on the
touchstone of the doctrine of estoppel by conduct and acquiescence. It is an
admitted position that the petitioner actively participated in the ongoing
electoral process by formally filing his nomination on 28.03.2026. Having
voluntarily submitted to the election machinery and having taken a
calculated chance to contest the elections under the impugned notification,
the petitioner has unequivocally acquiesced to the process. Now just when
the election is going to be held, this court does not find it to be justified to
entertain the petitioner‟s prayer for stay of election or other events incidental
thereto. The petitioner is legally estopped by his own conduct from turning
around and challenging the validity of the election process at such a highly
belated stage, especially considering that he chose to approach this Court
only on 23.04.2026, a mere two days prior to the scheduled elections.
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39. The reliance placed by the petitioner on various judicial
pronouncements is entirely misplaced, as the said decisions are clearly
distinguishable on respective facts and do not come to the aid of the
petitioner. The decisions relied upon by the petitioner are distinguishable
for the following reasons:
(a) The reliance on Gautam (Supra) is misplaced. Pertinently, the said
case did not pertain to an individual grievance, and crucially, the
matter proceeded on an expressly admitted position by the
respondents therein that the names of certain advocates appeared on
the electoral rolls of more than one Bar Association. It is in this
factual backdrop, the Court interfered with the election process.
(b) Likewise, reliance placed on Big Charter (Supra) is also
misconceived, as the said judgment deals with a purely contractual
dispute and has no bearing whatsoever on the present controversy.
(c) The decision in Pradeepsinh Chandrasinh (Supra) is equally
inapplicable. In that case, the overarching election process was never
stalled or interdicted by the Court; rather, the judicial intervention was
strictly limited to restraining a few specific respondents from
participating in the elections.
(d) Lastly, the decision in Jammu and Kashmir National Conference
(Supra) pertained to an allotment of symbol. The learned Single
Judge vide an interim order had directed for notifying a reserved
symbol for the writ petitioner-party and allow candidates set up by it
to contest on the said reserved symbol. The said interim order was
assailed by the UT of Ladakh and the Hon‟ble Division Bench
dismissed the appeal, against which UT of Ladakh carried the
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challenge to the Supreme Court. However, despite Courts‟ order the
said symbol was not allotted to the writ petitioner. In meanwhile
elections were held. It is in this backdrop the Hon‟ble Supreme Court
set aside the entire election inter alia on the ground that the courts‟
orders ought to have been complied with by the UT of Ladakh. It was
not a case where the Court stayed the election process, rather in the
said decision there is a specific observation to the effect that Courts
have usually maintained a hands-off approach with the sole salutary
objective of ensuring that the elections, which are a manifestation of
the will of the people, are taken to their logical conclusion, without
delay or dilution thereof.
40. In view of the comprehensive analysis undertaken hereinabove, this
Court inevitably concludes that the present petition is fundamentally
misconceived and fails at the very threshold of maintainability, therefore,
there is no occasion to examine the merits of the petitioner‟s allegations.
41. In view of the aforesaid findings, the present petition under Section
11(6) of the Arbitration and Conciliation Act, 1996, is held to be not
maintainable and is accordingly dismissed. Consequently, the accompanying
application for interim relief, I.A. 11217/2026 under Section 9 of the Act,
also fails and stands disposed of.
42. Order dasti under the signatures of the Court Master.
VIKAS MAHAJAN, J
APRIL 24, 2026/dss
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