Dr Saravana Kodandapani and Dr Ladi Jeevan Sitaram v. The All India Ophthalmological Society

2) Promoting clinical, experimental, community and operational research in ophthalmology.

3) Instituting awards, Orations, Prizes, Fellowships, Studentships, and Research grants.

4) Promoting, teaching, training and continuing education in ophthalmology by establishing and maintaining reference library, publishing journals and proceedings of the Society and other such materials.

5) Organising exhibitions of machinery, implements, tools, appliances etc., pertaining to ophthalmology with a view to encourage and improve the manufacture of such instruments and appliances in India, and also to promote and advise quality control in the manufacture of the aforesaid instruments and appliances.

6) Encouraging formation and affiliation of State Ophthalmological Societies.

7) Co-operating with other Medical Societies/Associations.

8) Promotion of social contact and creation of goodwill amongst the Ophthalmologists.

9) Ensuring ethical practice, and professional conduct of its members as laid down by the society from time to time.

10) Advising on legislation affecting ophthalmic practice and science of ophthalmology.

11) Maintaining liaison with the Central Government, State Governments and various appropriate Bodies regarding matters concerning teaching and practice of Ophthalmology and rationalisation of ophthalmic fitness and standards for various jobs.

12) Raising finances through subscriptions, contributions, donations from members and non-members and creating Special Funds to run the activities of the Society.

13) Develop Academic and Scientific Research Fund.

14) Acquiring and disposing movable and immovable property and assets by purchasing, constructing, altering, maintaining, selling or mortgaging properties that may be necessary for the aforesaid objectives.

15) Framing bye-laws, rules and regulations and to amend, add, alter or delete the same as and when necessary.

16) Undertake health education to prevent visual impairment and control blindness.

17) Doing all such other things as may be incidental to or conducive to the attainment of the aims and objectives of the Society.

18) All the acts/activities/programs shall be Non Profitable and shall be done on 'No Profit-No Loss' basis.

19) Society will invest its money/funds according to the Sec. 11(5) of the I.T. Act, 1961.

20) All the incomes, earnings, movable/or immovable properties of the society shall be solely utilized and applied towards the promotion of its aims and objects only as set forth in the Memorandum of the society and no profit thereof shall be paid or transferred directly or indirectly by way of dividends, bonus, profits or in any manner whatsoever to the present or the past members of the society or to any person claiming through any one or more of the present or the past members. No member of the society shall have any personal claim on any movable or immovable properties of the society or make any profits, whatsoever, by virtue of this membership.”

11. In addition to the Memorandum of Society, there are certain Rules and Regulations which are the guidelines for all administrative purposes and functions of AIOS.

12. Rule 2 of the said Rules and Regulations of the Society prescribes rules qua the membership and types of membership, which stipulates that the regular membership of the Society is to be decided by General Body Meeting from time to time, however, the same is open to any medical practitioner holding allopathic qualification recognized under Schedule I or III of the Indian Medical Council Act, 1956 and the person concerned is interested in the science and art of Ophthalmology, but subject to the approval of the General Body of the Society. The General Body also has the power to expel/terminate a member from the Society,

13. As per Rule 11, the management and administration of all affairs of the Society is vested in the Managing Committee, which is also elected by the General Body. Various office bearers constitute the Managing Committee such as President, President Elect, Vice President, General Secretary, Treasurer and Executive Members.

14. Rule 15 provides for the election of its members subject to the procedure laid down in Article VIII of the Bye Laws.

15. The Bye-Laws are stated to have been framed under Section 9 of the Act of 1860 and under Clause 3(15) of the Memorandum of Society. The relevant extract of Article VIII of the Bye-Laws, which deals with the election procedure, reads as under:- “Article VIII. Election Procedures a) In pursuance of Article 15(2) of the Rules & Regulations of the Society the Election of the following Office Bearers will be held at the time of the Meeting of the General Body for a period of 3 years or at the end of the 3rd Annual Conference whichever is longer, at the end of which period they will be eligible for reelection for not more than one more term: i) Hony. General Secretary ii) Hony. Joint Secretary iii) Hony. Treasurer iv) Hony. Joint Treasurer v) Editor of the Indian Journal of Ophthalmology vi) Editor of the Proceedings of the Society vii) Chairman, Scientific Committee viii) Chairman, Academic & Research Committee ix) Seven(7) Members of the Scientific Committee x) Five (5) Members of the Academic & Research Committee i.e. one member from each of the Zones viz. North, South, East, West & Central Zones. b) The Election will be held online and through EVM at the Venue as per sub Article (q) below. c) The commencement of the Conference referred to in article 15(4) of the Rules & Regulations of the Society will mean the inauguration of the Conference i.e. the President-Elect of the Previous year will become President from the inaugural ceremony of the Conference and will continue in office till he/she hands over charge at the inaugural ceremony of the next conference. d) The Hony. General Secretary shall invite nominations for posts for Election six months before the conference date along with preliminary notice of the conference. The proposals must be received on or before a date specified by him. e) For posts of Nominated members of the Managing Committee representing each State, names of members elected/nominated at their respective State Society should be received through affiliated branches wherever they exist. In case nominations are not received by the due date a reminder may be sent by Hony. General Secretary to the Societies to send the nominations at least one month before the conference. f) Only ratified members and ratified eligible overseas members will be allowed to vote (see Note below Article 1(a)). Hony. Treasurer will, therefore, keep ready an up- to-date list of such members during the election period. g) As per article 16(c) of the Rules & Regulations one member can contest only for one Office Bearer post. He may, however also contest for other posts of Members of Committee. h) No member, already holding an elected position m)ay contest for another elected position during his tenure(except in the last year of his tenure) unless he/she first resigns from the present position before filing his nomination for election to another post. i) Hony. General Secretary and Hony. Treasurer will be from the same city/town. The candidate for Hony. General Secretary / Hony. Treasurer will have to select their running mate from the same city/town. Both will file their Nominations together as a team. They will also fight Election together as a team. The names of both the candidates i.e. Hony. General Secretary and Hony.Treasurer will be printed together against one box in the Ballot Paper and voters will have an option to cast only one vote for one team. j) The President will constitute an Election Commission consisting of

3 Members from amongst the Past Presidents with one of them as Chief Election Officer who will also be the Returning Officer. Other Members of the Commission will be known as Election officers. An aggrieved candidate may represent within 15 days of the declaration of the results, to the Appellate Election Commission. This Commission will consist of Four Members, in addition to the President, to be announced by the President each year in April. The representation will be considered by this Appellate Commission, within 15 days, and the decision of the said Commission shall be final, binding and irrevocable. k) In case of a tie, the casting vote of the President (in addition to his regular vote) of the meeting will decide the result.

16. The specific Clause (i) of Article VIII of the Bye-Laws requires that the Honorary General Secretary and Honorary Treasurer will be from the same city/town and is one of the aspects under challenge in the instant writ petition and the same is claimed to be in violation of Rule 16(B) of the Rules and Regulations.

17. Rule 16(B) of the Rules and Regulations, which prescribes the eligibility for various offices, reads as under:- B) Honorary General Secretary & Honorary Treasurer: a) Hon. General Secretary and Hon. Treasurer should be from the same city/town. b) Must have been a member of good standing of the Society for 10 years. c) Must have been a member of the Managing Committee for atleast one term and attended at least two meetings of the Managing Committee. d) Should have actively participated in the scientific/ organisational activities of the society.

18. The Hon’ble Division Bench of this court in the case of S.D. Siddiqui v. University Of Delhi23, while considering the aspect in relation to the election of the Delhi University Teachers Association has considered various earlier pronouncements of the Hon’ble Supreme Court and in paragraph nos. 29 and 30, it has been held that assuming that the function of the Board of Delhi University Teachers Association does amount to discharging a public duty or carrying out public functions, the question which requires to be considered is whether the same would be sufficient to hold the Board to be a ‘State’ for the purpose of Article 12 of the Constitution of India.

19. The Hon’ble Division Bench of this court, in unequivocal terms, has held that when the actions of the Board are not the actions as an authorized representative of the State, the answer should be in the negative. Paragraph nos. 29 and 30 of the said decision are reproduced as under:- “29. In view of the above discussion, we are clearly of the opinion that the DUTA is not a State or an instrumentality of the State under Article 12 of the Constitution of India and it does not also perform any public functions. It is a purely private body working for the welfare of teachers of the University and affiliated colleges. There is no deep or pervasive control of the State over it. There is no averment that it is largely financed by the State. Hence, in our opinion, no writ lies against DUTA.

30. Apart from the above, we are further of the opinion that if one wishes to challenge an election, he should file an election petition, if that is provided under the relevant statute or rules, and if there is no such provision in any statute or rule for election petition, then one has to file a civil suit for this purpose and not a writ petition.”

20. What has been observed therein is that if the petitioners wish to 2005 SCC OnLine Del 1226 challenge the election, they should file an election petition if that is provided under the relevant statute or rules and if there is no such provision in any statute or rules providing for an election petition, then one has to file a civil suit for the aforesaid purpose and not a writ petition.

21. This court in its decision dated 07.03.2023 in the case of P. Padmanabha Rao v. Union of India and Ors.24, while considering the challenge to the election process of the Governing Council of the Institute of Electronics and Telecommunication Engineers has held that in order to be considered a ‘State’ under Article 12 of the Constitution of India, the authority in question should be under the control of the Government. The ambit of ‘other authorities’ under Article 12 of the Constitution is well settled which undoubtedly includes the private institutions and societies which perform public functions. However, under the facts of that case, it was found that the Society in question was not under the pervasive control of the State and, therefore, while placing reliance on the decision of the Hon’ble Division Bench in the case of Dr. Jitarani Udgata v. Union of India and Anr.25, it was held that the Society was not a ‘Government Company’ or a ‘Public Sector Undertaking’ and since the same was also not created by the State for carrying on any activity of the State, therefore, in absence of the same being governed by any statute for the purpose of administering its functioning, the writ petition was held to be not maintainable.

22. Paragraph nos.21 to 24 of the case of P. Padmanabha Rao (supra) are reproduced as under:- “21. The status of the respondent No.3-IETE as has been seen, is not of a „Government Company‟ or „public sector undertaking‟. The same 2023/DHC/001770 2022 SCC OnLine Del 3449 is not created by the „State‟ for carrying on its activities. It is not governed byany statute for the purposes of administrating its functioning. It is thus a private body having no statutory power and is not supported by a State Act. A private organisation can also discharge a public duty to maintain high professional standards or to set up unique example in the society but that itself is not sufficient to bring it within the folds of the expression„State‟ under Article 12 of the Constitution of India.

22. It is thus held that respondent No. 3-IETE does not fall within the ambit of „State‟ or „other authorities‟ under Article 12 of the Constitution of India and, therefore, no writ petition would be maintainable against the respondent No. 3.

23. The petition is accordingly, dismissed alongwith pending applications.

24. Needless to state that the petitioner is at liberty to avail any other alternate remedy, in accordance with law. Nothing expressed in the instant order would be construed to be an expression on the merits of the case.”

23. A similar view has been taken in the case of Deepak Dwivedi vs. Foreign Correspondents Club of South Asia26 vide order dated 15.03.2023, where, the directions were sought against the Government to decide a representation with respect to an election dispute of the Foreign Correspondents Club of South Asia. While placing reliance on various decisions, it was held that when the dispute relates to conduct of elections and violation of the conditions in the Memorandum of Association, a writ petition under Article 226 of the Constitution of India would not be the appropriate remedy.

24. In the present case, it is seen that the election process does not have any Government influence nor is the Society answerable to the Government for any of its functions. Rule 20 of the Rules and Regulations lays down the sources of income of the Society; a majority of which is derived from the 2023:DHC:1958 admission and subscription fee of the members, in addition to funds received from conferences, exhibitions etc. Hence, there is no material to show any Government control over the functioning of the Society, whether financial or administrative.

25. It is also seen that the Society does not carry out any State function nor is it associated with any government body. It only works to promote and endorse the field of Ophthalmology. It does not carry out any policy decisions or perform any function as an instrumentality of the State, hence cannot be said to fall within the ambit of ‘State’ or ‘other authorities’ under Article 12 of the Constitution of India.

26. What has been argued by the learned counsel appearing on behalf of the petitioners is that the vires of the Bye-Laws is under challenge, therefore, the same cannot be examined by any other court. The said argument is not acceptable for the simple reason that the Bye-Laws of respondent No.1- Society are not statutory in nature. There is no reason to believe that if any challenge to the Bye-Laws in question is laid before the appropriate court, the same would not be decided in accordance with law.

27. It is also to be noted that the petitioners have relied upon a plethora of decisions which indicate the nature of public function that falls under the scope and ambit of power under Article 226 of the Constitution of India which can be exercised by the High Court but in none of the cases, a dispute with respect to the election of a society per se is considered.

28. So far as the decisions with respect to the Bar Councils/Associations are concerned, the courts have dealt with those aspects keeping in mind the occupation of advocacy, specifically, which has been held to involve the element of public function and various attendant circumstances, such as, the applicability of the provisions of the Advocates Act, 1961 and other statutory provisions. In no case, the dispute simpliciter with respect to the election of a society is decided by the High Court directly under Article 226 of the Constitution of India.

29. In view of the aforesaid, this court does not find any substance to entertain the instant petition. The same is accordingly dismissed alongwith the pending applications.

30. Needless to state that nothing stated hereinabove shall amount to any expression on the merits or demerits of the case.

31. The petitioners are at liberty to take recourse to the appropriate remedy, in accordance with law.

PURUSHAINDRA KUMAR KAURAV, J APRIL 27, 2023 nc