DEORAJ

STATE OF MAHARASHTRA AND ORS.

APRIL 6, 2004

[R.C. LAHOTI AND ASHOK BHAN, JJ.]

Maharashtra Co-operative Societies Act, 1960-Sections 73G and /44Y- Election of Chairman of the Board-Notification of election programme- C Single nomination paper filed by one of the directors of the Board, on scrutiny nomination filed found in order and not withdrawn-Non declaration of result by returning officer on the date fixed on the ground of incomplete quorum at the Special meeting, staying the Meeting despite the candidate insisting declaration of result-Rejection of interim relief by High Court-On appeal held: Case made out for grant of interim relief-Term of the Chairman being D one year, of which and six months having expired already, Court ought to have granted interim relief Order of High Court set aside-Constitution of India, 1950-Artic/e 136.

The appellant was one of the 8 Directors to look after the management and working of a Co-operative Society. The term of the E Board of Directors is five years but the Chairman is elected every year for a term of one year each. As the term of the Chairman previously elected was coming to an end, the election of new Chairman was to be held. Tehsildar-cum-Returning Officer notified the election programme.

Appellant, one of the Directors of the Board filed his nomination paper.

F No other nomination was filed. On scrutiny of the nomination filed by the appellant, it was found to be in order and also there was no withdrawal of the nomination. On the date fixed for the declaration of the result of the election the Returning Officer did not declare the result as the quorum of the special meeting was incomplete and stayed the special meeting even though the appellant insisted on his being declared as the duly elected G Chairman as he was the only one nominated.

Appellant filed writ petition seeking quashing of the order of the Returning Officer and that he be declared the duly elected Chairman and also sought for an ad-interim writ to the same effect. In the meantime,

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DEORA.I r. STA TE 921

the Collector announced fresh election programme. The whole process of A election was directed to be commenced from the beginning. Appellant filed an application for amendment seeking setting aside of the election programme declared and an ad-interim writ seeking suspension of the election proposed to be held afresh. Division Bench of High Court rejected the prayer for interim relief. Hence the present appca!.

Allowing the appeal, the Court

HELD: 1.1. In the instant case, a foolproof case for the grant of interim relief was made out in favour of the petitioner in the High Court on the basis of the material available before the Court. There was only one nomination filed which was found to be in order and was not withdrawn. There was no contest. Nothing had remained to be done at the meeting of the Committee which was to be convened only for the purpose of declaring the result. Nothing was to be put to vote. Holding of

a meeting was only for the purpose or performing the formality of declaring the appellant as elected. In fact the election programme, as D notified, itself contemplated the meeting for voting and counting if felt necessary. The provision as to quorum lost all its significance. May be the ,.. directors havir.g learnt of there being a single valid nomination and that too not withdrawn, also knew that the result of the election was a fait accompli, therefore, did not want to take the trouble of even coming to the venue of the meeting. 1926-D-GI E

1.2. Unless something was brought to the notice of the Court either by way of material in the shape of documents or affidavits or even by way of a plea raised before the Court which could come in the way of the relief being granted to the writ petitioner, in the .case of such a nature, the F interim relief ought to have been granted. The writ petitioner-appellant is right in submitting that the election was for a period of one year out of which a little less than half of the time has already elapsed and in the absence of interim relief being granted to him there is nothing which would survive for being granted given to him by way of relief at the end of the final hearing. Therefore, the order of High Court rejecting the prayer of G interim relief is set aside. The respondents are directed to announce the result of the election in accordance with the initial election programme dated l l.l2.2003 post haste and act accordingly. 1926-G-H; 927-A, CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2084 of 2004.

A From the Judgment and Order dated 5.1.2004 of the Bombay High Court in W.P. No. 5834 of 2003.

Venkateswara Rao Anumolu and Dr. Kailash Chand for the Appellant.

Manish Kumar Saran, Mukesh K. Giri and Ravindra Kumar Adsure for B the Respondents.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave granted.

C Tuljabhavani Ziila Sahakari Doodh Utpadak Va Prakriya Sangh

Maryadit, Osmanabad (hereinafter 'the Sangh', for short) is a cooperative society falling in one of the categories included in Section 73G of the Maharashtra Cooperative Society Act, 1960 (hereinafter, 'the Act' for short).

Section 144Y of the Act makes special provision for election of officers of such societies. It reads as under:-"

144Y. Special provision for election of officers of specified societies

( 1) This section shall apply only to election of officers by members of committees of societies belonging to the categories specified in section 73-G.

(2) After the election of the members of the committee and, where necessary, co-option or appointment, as the case may be, of members to the reserved seats under section 73-B or whenever such election is due, the election of the officer or officers of any such society shall be held as provided in its bye-laws but any meeting of the committee for this purpose shall be presided over by the Collector or an officer nominated by him in this behalf."

Here itself it would be relevant to reproduce the relevant bye-laws of the society as under:-

G "Bye-law No.18.3: Every year after annual General Body Meeting.

in first meeting of Board of Directors, as per provisions of law, Chairman shall be elected for a period of one year. Till the new Chairman is elected, previous Chairman should continue to hold the post.

DEORAJ v. STATE [LAHOTI. J.] 923

Bye-law No.18.11: Out of total number of elected Directors, if 50 A percent plus one Directors (including nominated directors) are present for meeting then, corum (sic., quorum) for the meeting shall be complete."

The Sangh has a Board of Directors consisting of eight Directors to B

look after the management and working of the Sangh. The present Board of Directors which includes the appellant also as a Director was elected on 27.3.2000. The term of the Board is five years but the Chairman is elected every year for a term of one year each. The previous three Chairmen were elected respectively in the meetings held on 12.10.2000, 12.11.2001, 9.12.2002. C As the term of the Chainnan previously elected on 9.12.2002 was coming to an end, the election of new Chairman, was notified to be held on 14.11.2003 so as to elect the Chairman for the next term of one year. The Collector, Osmanabad was to preside over the meeting called for the purpose. Collector, Osmanabad by his order dated 29.11.2003 appointed Tehsildar, Osmanabad D as the Returning Officer. The election programme was notified by Tehsildarcum-Returning Officer on 3.12.2003 as under:-

"Election Programme for the post of Chairman schedule on 11.12.2003 Date Time Stages of Election

11.12.2003 11.00 to Distribution of nomination papers 12.00 a.m. & acceptance of nomination papers

11.12.2003 12.00 noon Scrutiny of nomination papers to 12.15 p.m.

11.12.2003 12.30 p.m. to Withdrawal of nomination papers 13.00 p.m.

11.12.2003 14.00 noon If felt necessan:, then voting, counting & declaration of result of election. (underlining by us)

Simultaneously with the notification of the election programme, the Managing Director of the Sangh issued notices to all the Directors informing them of the meeting schedulea to be held at 2 p.m. on 11.12.2003. The

election programme was also communicated to all the Directors.

A On 11.12.2003, at 11.48 a.m. the appellant filed his nomination paper the receipt whereof was issued by the Returning Officer. There was no other nomination filed. On scrutiny the nomination filed by the appellant was found to be in order. There was no withdrawal.

At 2 p.m. only four Directors, including the appellant, out of the total B eight Directors of the Sangh were present. The Returning Officer awaited for the arrival of other Directors for ten mintes. At I 0 minutes past 2 p.m., the Tehsildar-cum-Returning Officer drew up the proceedings of special meeting recording all the facts relating to the notification of election, the filing of single nomination paper, its scrutiny and no withdrawal and the fact that only C four Directors had turned up for the meeting. In the concluding paragraphs the Tehsildar-cum-Returning Officer recorded as under:-

"The Board of Directors of the said society consist of total 8 directors.

The coram for special meeting is half + I Director. But 4 directors are present for the meeting, the coram for the meeting is not completed.

D Therefore, the said special meeting is stayed. It is declared so.

The Returning Officer has declared that the said special meeting is being stayed, will be co•nmunicated to the Collector, Osmanabad, thereafter, further proceedings will be done as per his orders. After giving vote of thank to the present Directors, the meeting is declared E to be over.

Date : 11.12.2003"

It appears that the appellant insisted on his being declared as the duly elected Chairman in view of he only being the duly nominated candidate for F the office of Chairman. But he received no response. On 17.12.2003, he filed

a writ petition in the High Court of Bombay, Bench at Aurangabad seeking quashing of the order dated 11.12.2003 passed by the Tehsildar-cum-Returning Officer and a command to complete the election programme as scheduled by resuming the same from the stage at which it had stopped. In substance the appellant sought for his being declared the duly elected Chairman of the G Sangh. The appellant also sought for an ad-interim writ to the same effect.

The petition remained pending alongwith the prayer for interim relief.

In the meantime, on 26.12.2003, the Collector announced fresh election programme convening a meeting to be held on 5.1.2004. The whole process of election was directed to be commenced from the beginning. The appellant H moved an application for amendment in the writ petition seeking setting

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DEORA.I v. STATE (LAHOTI..I.) 925

aside of the election programme declared on 26.12.2003 and an ad-interim A writ seeking suspension or the election proposed to be held afresh. By the impugned order dated 5.1.2004, the Division Bench of the High Court directed rule to issue in the presence of the Government pleader for the State and its officials and the counsel for the Society but at the same time directed the prayer for interim relief to be rejected. Feeling aggrieved therewith this appeal B by special leave has been filed.

Ordinarily, this Court in its exercise of jurisdiction under Article 136 of the Constitution does not interfere with the orders of interim nature passed by the High Court or Tribunals. This is a rule of discretion developed by experience, inasmuch as indulgence being shown by this Court at an interim c stage of the proceedings pending before a competent Court or Tribunal results in duplication of proceedings; while the main matter is yet to be heard by the Court or Tribunal seized of the hearing and competent to do so, valuable time and energy of this Court are consumed in adjudicating upon a controversy the life of which will be co-terminus with the life of the main matter itself which is not before it and there is duplication of pleadings and documents D which of necessity shall have to be placed on the record of this Court as well.

However, this rule of discretion followed in practice is by way of just selfimposed discipline.

The Courts and Tribunals seized of the proceedings within their E jurisdiction take a reasonable time in disposing of the same. This is on account of fair procedure requirement which involves delay intervening between the previous and the next procedural steps leading towards preparation of case for hearing' Then, the Courts are also over burdened and their hands are full.

As the conclusion of hearing on merits is likely to take some time, the parties press for interim relief being granted in the interregnum. An order of interim F relief may or may not be a reasoned one but the factors of prima facie case, irreparable injury and balance of convenience do work at the back of the mind of the one who passes an order of interim nature. Ordinarily, the Court is inclined to maintain status quo as obtaining on the date of the commencement of the proceedings. However, there are a few cases which G call for the Court's leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any Judge to test.

926 SUl'REME COURT REPORTS

[2004] 3 S.C.R.

A Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though B all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases.

C The Court would grant such an interim reiief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice.

Obviously such would be rare cases accompanied by compelling D circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.

The present one is a case where we are fully satisfied that a foolproof case for the grant of interim relief was made out in favour of the petitioner E in the High Court on the basis of the material available before the Court.

There was only one nomination filed which was found to be in order and was not withdrawn. The time appointed for filing nominations, scrutiny and withdrawal was over. There was no contest. Nothing had remained to be done at the meeting of the Committee which was to be convened only for the purpose of declaring the result. Nothing was to be put to vote. Holding of a F meeting was only for the purpose of performing the formality of declaring the appellant as elected. Jn fact the election programme, as notified, itself contemplated the meeting at 1400 hours for voting and counting 'if felt necessary'. The provision as to quorum lost all its significance. It did not make any differencewhether there were eight directors to hear the declaration G of result or just four or even none. May be the directors having learnt of there being a single valid. nomination and that too not withdrawn, also knew that the result of the election was a fait accompli, and therefore, did not want to take the trouble of even coming to the venue of the meeting. Unless something was brought to the notice of the Court either by way of material in the shape of documents or affidavits or even by way of a plea raised before the Court H which could come in the way of the relief being granted to the writ petitioner,

DEORAJ v. STATE [LAHOTl..1.] 927

in the case of such a nature, the interim relief ought to have been granted. A The writ petitioner-appellant is right in submitting that the election was for a period of one year out of which a I ittle less than half of the time has already elapsed and in the absence of interim relief being granted to him there is nothing which would survive for being given to him by way of relief at the end of the final hearing.

It is pertinent to note that i~ spite of the respondents having been noticed by this Court none has made appearance excepting the State of Maharashtra and the State too has not chosen to file any counter affidavit.

The appeal is allowed. The impugned order dated 5.1.2004, in so far as C it rejects the prayer for the grant of interim relief, is set aside. The prayer for the grant of interim relief as made by the writ petitioner/appellant is allowed.

The respondents are directed to announce the result of election in accordance with the election programme dated 11.12.2003 post haste and act accordingly.

Before parting we make it clear that whatever has been stated D hereinabove is for the purpose of disposing of the prayer for the grant of adinterim relief and that has been done on the basis of material available on record at this stage. As a very short question of law arises for decision in the case, the High Court would do well to take up the main matter itself for hearing at an early date and decide the same finally. The High Court while deciding the writ petition on merits would obviously do so on the basis of E pleadings and documents produced and submissions made before it; the High Court need not feel inhibited by anything said in this order. No order as to the costs:

N.J.

Appeal allowed.