Ramaswami and Choudhary, JJ.:— In this case the petitioner Sri Sukhdeo Choudhary who is Vice-President of the Jamalpur Arya Samaj has moved this Court for issue of a writ in the nature of a quo warranto against the members of the opposite party calling upon them to show cause under what authority they held their offices in the Bihar Rajya Arya Pratinidhi Sabha. The petitioner has also prayed that a writ should be issued cancelling the election of the Working Committee of the Bihar Rajya Arya Pratinidhi Sabha held on the 9th of August 1953 and also cancelling the order of supersession of the Jamalpur Arya Samaj by the President of the Bihar Rajya Arya Pratinidhi Sabha.
The case of the petitioner is that on the 28th of July 1953 the President of the State Sabha made an order that the Jamalpur branch should be superseded for six months. It appears that the annual convention and the election of office bearers and members of the Working Committee was fixed for the 9th of August 1953. The grievance of the petitioner is that the Jamalpur Arya Samaj could not send its representation at the annual convention or take part in the voting of the election for the members of the Working Committee. It is alleged on behalf of the petitioner in the first place that the order of supersession was passed by the President without giving notice to the Jamalpur branch. It was contended in the second place that no approval of the Working Committee was previously granted to the President for making the order of supersession. It is said that on this ground also the order of supersession dated the 28th of July 1953 is an order without jurisdiction.
A counter-affidavit has been filed on behalf of the opposite parties. In paragraph 10 of the counter-affidavit it is stated that on the 29th of June 1953 the Working Committee had considered the whole matter relating to the affairs of the Jamalpur branch and passed a resolution appointing a Commission to go to Jamalpur and make full enquiry and submit a report to the President within three weeks. The resolution also gave full authority to the President to take such steps in relation to the Jamalpur Arya Samaj as he thought fit after receiving the report of the Commission. In paragraph 12 it is said that the members of the Commission proceeded to. Jamalpur but the opposite party refused to give any opportunity to the Commission to examine the records or the papers of the Jamalpur branch and indeed ordered the member of the Commission to get out of the Arya Samaj premises. The Commission made a report to the President, Dr. Dukhan Ram, on these matters, and upon a consideration of the report the President decided to suspend the Jamalpur branch for a period of six months. In paragraph 14 of the counter-affidavit it is alleged that the Working Committee passed a resolution on the 8th of August 1953 unanimously approving the action of the President. On behalf of the opposite parties, therefore, the contention is that there is no, substance in the application made on behalf of the petitioner and it was pointed out in the first place that opportunity was given to the Jamalpur branch to put forward its claim but the Jamalpur branch rejected this opportunity and asked the members of the Commission to go out of the premises of the Arya Samaj. On the question of the authority of the President to take action with regard to suspension of the Jamalpur branch the petitioner relied upon rule 46 of the Constitution of the Arya Samaj which states—
“In the event of gross and continued disregard of any order or decision of the Provincial Sabba by a local Samaj or in the event of such mismanagement in a local Samaj as would be detrimental to the Samaj in the opinion of the Provincial Society, the President of the Provincial Society with the approval of his Antranga Sabha will be competent to suspend the constitution of such local Samaj for a fixed period and to make proper arrangements for the management of that Samaj and the institutions under the control of that Samaj.”
The complaint of the petitioner was that the previous approval of the Working Committee was not taken by Dr. Dukhan Ram before taking action. But the facts sworn in the counter-affidavit indicate that previous approval was given by the Working Committee to such action as the President may think fit to take upon the report which the Commission may submit. It is also clear from the counter-affidavit that the action of the President was subsequently approved at the meeting of the Working Committee held on the 8th of August 1953.
We do not wish to express any concluded opinion on the merits of the case of the petitioner for it appears from paragraph 16 of the counter-affidavit that the petitioner has filed a suit in the court of the Munsif at Patna on 1st of August 1953 for a declaration that the annual convention of the Bihar Rajya Arya Pratinidhi Sabha and the election of the office bearers and the members of the Working Committee are void and illegal. The petitioner also asked for an injunction restraining the elections to be held at the annual convention but the learned Munsif rejected the prayer by his order dated the 8th of August 1953. It appears from the order-sheet dated the 10th of December 1953 that the issues have been settled and the suit has been adjourned to the 25th of January, 1954 for fixing a date for hearing and for filing documentary evidence. As the questions debated in this case are involved in the issues which would be tried before the Munsif, it is not desirable that we should express any opinion on these matters. But the application must be rejected for several important reasons which we proceed now to state.
The argument of the petitioner in this Case is that the order of the President dated the 28th of July 1953 is an order passed without jurisdiction. The argument is based upon rule 46 of the Constitution of the Arya Samaj which has already been quoted. The case of the petitioner is that he has not been given opportunity to show cause before the President passed the order of suspension. It is further said that the previous approval of the Working Committee was not taken before the President decided to act under rule 46. The petitioner's case is not founded on any breach of any statutory obligation. It is not said on petitioner's behalf that the President of the Bihar Rajya Arya Pratinidhi Sabha has violated any duty imposed under any statute. The argument with regard to the excess of jurisdiction is not founded on violation of any statute. The argument is based upon the rule of the Constitution of the Arya Samaj. The position of the Arya Samaj is similar in its legal character to the position of a domestic tribunal, the rules of which constitute the contract between the members of the Arya Samaj. The argument on behalf of the petitioner is therefore based upon an implied contract between the Jamalpur branch of the Arya Samaj and the Provincial branch. It is manifest that the jurisdiction of the domestic tribunal of the nature of the Arya Samaj is founded upon a contract, implied or expressed, and in such a case the proper procedure for the party aggrieved is to file a suit and not to apply for a writ under article 226 of the Constitution of India. The reason is that the remedy provided under article 226 is a constitutional remedy which is meant for the vindication of a constitutional right. Article 226(1) of the Constitution states—
“Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by part III and for any other purpose”.
The remedy which article 226 contemplates is a, public law remedy for the protection and vindication, of a public right. It is essential in this connection to remember that there is a distinction between jus privatum and jus publicum which is the most fundamental distinction of corpus juris. This Roman distinction has been carried into modern law and the scope of public law in this context embraces all the rights, and duties, of which the State or some individual holding delegated authority under it, is one part and the subject is the other part. The language of the article 226 supports the inference that the remedy is provided only for the assertion of a public law right. Article 226 states that the High Court shall have power to issue to any person or authority, including it appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, man damns, prohibition, quo warranto and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the King's name. These writs were always granted for the protection of public interest and primarily by the Court of the King's Bench. As a matter of history the Court of the King's Bench, was held to be coram rege ipso and was required to perform quasi-governmental functions. The theory of, the English law is that the King himself superintends the due course of justice through his own Court—preventing cases of usurpation of jurisdiction and insisting on vindication of public rights and personal freedom of his subjects. That is the theory of the English law and our Constitution makers have borrowed the conception of prerogative writs from the English law. The interpretation of article 226 must therefore be considered in the background of English law and so interpreted, it is obvious that the remedy provided under article 226 is a remedy for the vindication of a public right.
There are authorities in support of the view that a writ of certiorari does not be to domestic tribunals. In Lee v. The Showmen's Guild of Great Britain, Lord Justice Denning pointed out the distinction with respect to the power of a Court to intervene in the case of a domestic tribunal and in the case of a statutory tribunal. In the case of statutory tribunals, the injured party has a remedy by certiorari, and also a remedy by declaration and injunction. The remedy by certiorari does not be to domestic tribunals. At page 346 Lord Justice Denning states—“Those cases, it is true, concerned statutory tribunals, but I see no reason why the powers of the court to intervene should be any less in the case of domestic tribunals. In each case it is a question of interpretation, in the one of a statute, in the other of the rules, to see whether the tribunal has observed the law. In the case of statutory tribunals, the injured party has a remedy, by certiorari and also a remedy by declaration and in junction. The remedy by certiorari does not be to domestic tribunals, but the remedy by declaration and injunction does lie, and it can be as effective as, if not more effective than, certiorari. It is, indeed, more effective, because it is not subject to the limitation that the error must appear on the face of the record.”
It is clear from the affidavit that in the present case the petitioner has already filed a civil suit in the court of the Munsif of Patna for a declaration that the annual convention of the Bihar Raiya Arya Pratinidhi Sabha and the election of the office bearers and the members of the Working Committee held on the 9th of August 1953 are ultra vires, void and illegal.
It is also well-settled law that a writ of quo warranto only applies to offices of a public and substantive nature which are created by a statute or by a Charter, granted by the Crown. It is pointed out in Halsbury's Laws of England, Volume 9, page 805, that formerly the remedy of quo warranto was confined to cases of usurpation upon the Crown directly but later cases have extended the remedy in respect of offices of a public and substantive nature which are created under a statute or under a Charter granted by the Crown. The duties of the office must also be of public nature; otherwise the writ will be refused. In R. v. Mousley, a writ was refused in respect of the office of a master of a hospital and free school, which institution was a private charitable foundation and the right of appointment to offices therein was vested in governors who were private and not public functionaries. The writ of quo warranto does not for the same reason be for the purpose of examining the validity of an election to a fellowship of a college, nor does it be in respect of the office of a Surgeon or Physician of a hospital founded by private persons, nor in respect, of the office of a committeeman of the Licensed Victuallers' Association [Ex parte Smith Abel]. It is obvious in the present case that the members of the Working Committee of the Bihar Rajya Arya Pratinidhi Sabha do not hold an office of public character and a writ of quo warranto cannot be issued to test the validity of their election.
For all these reasons we think that there is no, case made out for the issue of a writ in the nature of, certiorari or of quo warranto under article 226 of the Constitution against the opposite parties. The application must accordingly be dismissed with costs hearing fee Rs. 50.
K.D
Rule discharged.