Holding

Election disputes under the Gujarat University Act must be referred to the State Government under Section 58, and the High Court cannot entertain a writ petition in such matters where a statutory remedy is available.

Summary

The Gujarat University held elections for 28 of the 42 seats on its Court while the remaining 14 seats were stayed by the High Court. The teachers who were elected to the 28 seats filed a writ petition under Article 226 seeking to set aside their election and to have fresh elections for all 42 seats. The High Court entertained the petition and ordered fresh elections for the entire Court, which the University appealed. The Supreme Court held that the Gujarat University Act, 1949 (as amended) provides a specific mechanism—Section 58—for resolving election disputes, which must be pursued before the State Government. Since the aggrieved teachers had an alternative statutory remedy, the High Court erred in entertaining the writ petition. Consequently, the Supreme Court set aside the High Court's order, dismissed the writ petition, and allowed the appeal.

Issues considered

Whether a writ petition under Article 226 can be entertained for an election dispute when the Gujarat University Act provides a specific statutory remedy under Section 58.
Whether the High Court erred in setting aside the election of 28 members and directing fresh elections for all 42 seats.
Whether the aggrieved teachers were required to approach the State Government under Section 58 before approaching the High Court.

Legislation cited

Gujarat University Act, 1949s. 10(3), s. 15, s. 16, s. 58

Subjects

university electionstatutory remedySection 58Article 226writ petitionstate government jurisdictionelection disputeproportional representationsingle transferable vote

Judgment

GUJARAT UNIVERSITY
A
v.
N.U. RAJGURU AND ORS.

NOVEMBER 10, 1987

[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.] B

Election of teachers to the court of the Gujarat University-
Provisions of the Gujarat University Act-1949, relating thereto.

The University of Gujarat held election of 28 members of the
Court of the University out of 42 members, as the election with regard
to the 14 seats had been stayed by an order of the High Court. The c
respondents-teachers filed a writ petition in the High Court for setting
aside the election of the 28 members and holding fresh election for all
the seats. The High Court set aside the election to the 28 seats and
directed the holding of fresh election for all the 42 seats. Aggrieved by
the decision of the High Court in the writ petition, the appellant D
appealed to this Court.

Allowing the appeal, the Court,

HELD: The High Court committed an error in entertaining the
writ petition and interfering with the election. Election to the member- E
ship of the court of the University and the determination of the disputes
relating thereto, are regulated hy the provisions of the Gujarat Uni-
versity Act, 1949. Under section 58 as substituted by the Gujarat Act 9
of 1983. Under the provisions of the Act, if a dispute arises with regard
inter alia to the election of any member of any authority or other body
of the University, it shall be referred to the State Government, which F
shall decide the matter and the decision of the Government shall be
final. It is well-settled that where a statute provides for an election and a
machinery or forum to determine any dispute arising out of that elec-
tion, the aggrieved person should pursue his remedy before the forum
provided by the statute. It is not permissible to invoke the jurisdiction
of the High Court by a writ petition, by-passing the machinery provided G
by the Act for the determination of the election dispute. The remedy
provided by the statute must be followed except where exceptional,
extraordinary circumstances exist to justify the by-passing of the alter-
native remedies. In the present case, there existed no circumstance,
justifying departure from this rule and the High Court was not right in
entertaining the writ petition. [902B; 903B-C, G-H; 904B] H
899
900 SUPREME COURT REPORTS [1988] 1 S.C.R.

K.K. Shrivastava etc. v. Bhupendra Kumar Jain & Ors., AIR Y
A 1977 SC 1703; Ramjibhai Ukabhai Parmar v. Manila/ Purushottam
Solanki & Anr., Am 1960Gujarat19, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2321
of 1984.
B
From the Judgment and Order dated 7.2.1984 of the Gujarat
High Court in Special Civil Application No. 5985 of 1983.

Dr. Y.S. Chitale, P.H. Parekh, l">. Chandrachud, San jay Bharati,
S.N. Shela! and M.K.S. Menon for the Appellant.

c B.K. Mehta and H.J. Jhaveri forthe Respondents.

The Judgment of the Court was delivered by

SINGH, J. This appeal is directed against the judgment of the
D High Court of Gujarat dated 7th February, 1984 setting aside the
election of 28 teachers to the Court of the Gujarat University and the
consequential order directing the University to hold fresh election for
the 42 members constituency to the court.

Briefly the facts giving rise to this appeal are these. The Gujarat
E University is constituted under the provisions of the Gujarat Univer·
sity Act, 1949. Section 15 of the Act designates the "Court" as an
authority of the University. Section 16 provides for the constitution of
the "Court", it consists of two classes of members, ex-officio, and
elected members. Section 16(1) provides for election to the category of
'ordinary members of court'. Clause (A) (VIII) of Section 16(1) lays
F down that 42 members shall be elected by teachers of affiliated col-
leges (excluding Deans of Faculties and Principals of Colleges) from
amongst themselves in the manner specified in the statutes. Sections
28 and 29 confer power on the Court to frame statutes in respect of
matters which by the Act are required to be prescribed by the statutes.
Statute 10(3) of the University of Gujarat provides for election of 42
G members to the court by teachers excluding Deans of Faculties and
Principals of Colleges in the manner specified therein. It further pro-
vides that 14 members shall be elected to the court by the teachers of
Faculty of Arts and Education, out of which IO members shall be
elected by teachers having teaching experience of IO years or more,
while the remaining 4 shall be elected by the teachers having experi-
H ence of less than 10 years. Statute 10(3) farther provides for election of
. \
GUJARAT UNIVERSITY v. N.U. RAJGURU [SINGH, J.l 901
!
28 members to be elected by the teachers working in various other
· Faculties of the affiliated colleges of the University. The term of the A
office of the elected members of the Court is five years. The Registrar
of the University by a notification dated August 25, 1983 notified
programme for holding the election of 42 members by the teachers of
affiliated colleges from various faculties. According to the notification
election was scheduled to be held on 9th October, 1983. B

Three teachers, two of whom belonged to the Faculty of Educa-
tion and the third belonging to the Faculty of Arts, challenged the
holding of the election by means of a writ petition before the High
Court (Writ Petition No. SCA No. 4682 of 1983) on the ground that in
. view of the separation of the Faculty of Education from the Faculty of C
Arts as a result of the amendment of Section 23 by the Amending
Gujarat Act 10 of 1982, the allotment of 14 seats for the Faculty of
Arts, and Education was illegal. They contended that in view of the
separation of the !Wo Faculties separate seats should be allotted to the
two Faculties for the election of teachers to the court. Petitioners of
that writ petition claimed interim relief for the stay of the election of D
42 representatives of teachers to the Court. The High Court, however,
granted a limited interim relief, staying the process of election with
regard to the fourteen seats of Arts and Education Faculties only, no
stay order was issued with regard to holding of election of the remain-
ing 28 seats. In order to implement the interim order the University
issued notification on 27th September 1983 notifying the stay of elec- E
tion to the 14 seats but it stated that the election with regard to remain-
ing 28 seats in the teachers' constituency shall be held as scheduled.
Election to the 28 seats from the teachers' constituency of other
Faculties was held on 9th October, 1983. The respondent teachers of
the University participated in the election, but before the declaration·
of the result of the election the respondents filed writ petition under F
Article 226 of the Constitution (SCA No. 5085 of 1983) seeking the
relief of setting aside the election of 28 members and for the issue of a
writ of mandamus directing the University to hold fresh election for all
the Faculties in accordance with the system of proportional represen-
tation and single transferable vote. Before the High Court respon·
dents' main grievance was that since the election to 14 seats from the G
teachers' constituency of Faculty of Arts and Education was stayed by
th_e High Court, elections to the remaining 28 seats could not validly be
held on account of the system of proportional representation by single
transferable vote. The High Court accepted the contention raised on
behalf of the respondents, set aside the election to 28 seats and
directed the University to hold fresh election to the court for 42 seats H
902 SUPREME COURT REPORTS I 1988] 1 S.C.R.
A from amongst the teachers of various Faculties. Aggrieved, the
Gujarat University has preferred this appeal.

After hearing learned counsel for the parties at some length we
are of the opinion that the High Court committed an error in entertain-
ing the writ petition and interfering with the election. Election to the
B membership of the court is regulated by the statutory provisions con-
tained in the Act, and it also provides for the determination of election
disputes. Section 58 as substituted by the Gujarat Act 9 of 1983 which
came into force on 25.1.1983 provides for the determination of dis-
putes as to constitution of any University authority. It reads as under:

"58. Disputes as to constitution of University authority or
c body-

Where any question arises as to-(1) the interpretation of
any provision of this Act, or of any Statute, Ordinance,
Regulation or Rules, or
D
(2) whether a person has been duly elected or appointed
as, or is entitled to be or ceases to be entitled to be, a
member of any authority or other body of the University

(a) it may be referred to the State Government if it relates
E to a matter specified in clause (1), and

(b) it shall be referred to the State Government if- ...
(i) it relates to a matter specified in Clause (2), or

F (ii) if twenty members of the court so require irrespective --{_
of whether it relates to a matter specified in clause (1) or
Clause (2), and the State Government shall after making
such inquiry as it deems fit (including giving opportunity of
being heard where necessary) decide the question and its
decision shall be final."
G
Under the aforesaid provision if a dispute arises with regard to
the constitution of any of the authorities of the University, it should be Y·
referred to the State Government for determining the same. It firstly
provides that where any question arises as to the interpretation of any
provision of the Act, or of any Statute, Ordinance, Regulation or
H Rules, it may be referred to the State Government. Secondly, it lays
GUJARAT UNIVERSITY v. N.U. RAJGURU [SINGH, J.] 903

down that if a question arises whether a person has been duly elected A
or appointefi as, or is entitled to be or ceases to be entitled to be, a
member of ~ny authority or other body of the University, it shall be
referred to the State Government. Section 58(2)(a) provides that the
dispute relating to interpretation of any provision of the Act or
Statute, Ordinance, Regulation or Rules may be referred to the
Government while Clause (b) of Sub-section 2 of Section 58 contains a B
mandatory provision that if the dispute relates to the question whether

--
a person has been duly elected or appointed to any authority of the
, University such a dispute shall be referred to the State Government.
There is no option or discretion. If such a dispute arises, it has to be
referred to the State Government for determining the same. If 20
members of the Court raise a dispute relating to a matter specified in C
Clause (I) or Clause II of Section 58 it shall be referred to the State
Government and thereupon the State government shall after making
such enquiry as it may deem fit, decide the question. The legislative
intent is manifestly clear that any dispute relating to the matters
covered by Section 58 should be referred to the State Government for
its decision and such decision shall be final. By enacting Section 58, the D
legislature i)as constituted a forum for the determination of disputes in
respect of nl.atters specified therein. Since the "Court" is an authority
of the Unitersity as declared by Section 15 of the Act, Section 58
provides an effective remedy for challenging the election of a member
to the Court of the University. Any person aggrieved by the election of
any manner to the Court has right to challenge the same before the E

-
State Government by raising a dispute in accordance with Section 58.
In the instant case, the respondents could have availed the alternative
remedy available to them before the State Government under Section
58 of the Act. Instead they challenged the validity of the election
before the High Court under Article 226 of the Constitution. The
respondents had challenged the validity of Statute 10(3) in their writ F
petition but they did not press that question before the High Court as
stated in the judgment under appeal.

It is well settled that where a statute provides for election to an
office, or an authority or institution and if it further provides a machin-
ery or forum for determination of dispute arising out of election, the G
aggrieved p,erson should pursue his remedy before the forum provided
by the statute. While considering an election dispute it must be kept in
mind that /he right to vote, contest or dispute election is neither a
fundament•l or common law right instead it is a statutory right
regulated tjy the statutory provisions. It is not permissible to invoke
the jurisdiction of the High Court under Article 226 of the Constitu- H
904 SUPREME COURT REPORTS [1988] I S.C.R.

A tion by-passing the machinery designated by the AcHor determination
of the election dispute. Ordinarily the remedy provided by the statute
must be followed before the authority designated therein. But there
may be cases where exceptional or extraordinary circumstances may
exist to justify by-passing the alternative remedies. In the instant case,
there existed no circumstances justifying departure from the normal
B rule as even the challenge to the validity of statute 10 was not pressed
by the respondents before the High Court.

We do not consider it necessary to burden the judgment by refer-
ring to decisions of this Court laying down the principle that where a
statute provides a complete machinery for obtaining relief against the
orders passed by the authorities a petitioner cannot be permitted to ~•.
C abandon that machinery and to invoke the jurisdiction of the High
Court under Article 226 of the Constitution. We would however refer
to a decision of this Court in K. K. Shrivastava etc. v. Bhupendra
Kumar Jain and others, AIR 1977 SC 1703 where a defeated candidate
at the election to the membership of the Bar Council of Madhya
D Pradesh moved the High Court under Article 226 of the Constitution
challenging the validity of the election. The High Court was conscious
that equally efficacious remedy was available to the petitioner under
the rules but even thereafter the High Court interfered on the ground
that since the entire election was challenged an election petition could y,
not be an appropriate remedy and the same could not be considered as
E an equally efficacious remedy. This Court set aside the High Court's
Order. Krishna Iyer, J. speaking for the Court observed:

"It is well settled law that while Art. 226 of the Constitu-
tion confers a wide power on the High Court there are
equally well settled limitations which this Court has re-
I
F peatedly pointed out on the exercise of such power. One of )
them which is relevant for the present case is that where
there is an appropriate or equally efficacious remedy the
Court should keep its hands off. This is more particularly
so where the dispute relates to an e1'!ction. Still more so
where there is a statutorily prescribed remedy which almost
•
G reads in mandatory terms. While we need not in this case
go to the extent of stating that if there are exceptional or
extraordinary circumstances the Court should stiII refuse to
entertain a writ petition it is perfectly clear that merely
because the challenge is to a plurality of returns of elec-
tions, therefore a writ petition will lie, is a fallacious
H argument."
GUJARAT UNIVERSITY v. N.U. RAJGURU [SINGH, J.J 905

We have already referred to Section 58 which provides for the A
determination of dispute relating to election to the tnembership of a~x
authority of the University. Since the Court is an authority of the
University, the dispute relating to the validity of the election of 28
members from the teachers' constituency of various faculties of the
affiliated colleges of the University could have been raised before the
State Government. The High Court committed error in entertaining B
·~ the petition and setting aside the election of 28 members of the Court.
I
J
• Learned counsel for the respondent urged that Section 58 does
"' not confer any right on an aggrieved person to have a dispute relating
to election referred to the State Government. He placed reliance on
the oecision of a Division Bench of the High Court in Ramjibhai c
Ukabhai Parmar v. Manila/ Purushottam Solanki and Another, AIR
1960 Gujarat 19. In that case the High Court interpreted Section 58 of
the Gujarat University Act as it existed prior to its amendment in
1983. The High Court held that since a dispute could not be referred to
the State Government unless it was raised by 20 members of the Court,
alternative remedy could not be available to an aggrieved person. D
Section 58 was substituted by the Gujarat Act 9 of 1983 which came
into force with effect from 25.1.1983. Under the amended Section a
dispute raised by an aggrieved person relating to election of a member
to an authority of the University shall be referred to the Government
"--{ for adjudication. Now it is not necessary that the dispute should be
referred to the State Government only when 20 members of the Court E
so require. On the other hand, reference shall be made to the State
Government even if a dispute is raised by a single individual provided
such dispute relates to a matter specified in Section 58(2) of the Act.
The decision in Ramjibhai Ukabhai Parmar' s case does not apply in
view of the amendment of Section 58.

r-
\ In the result we allow the appeal set aside the order of the High
Court and dismiss the writ petition filed by the respondents. There will
be no order to costs.

S.L. Appeal allowed. ,