CASE NO.: Appeal (civil) 2084 of 2004 PETITIONER: Deoraj RESPONDENT: State of Maharashtra & Ors. DATE OF JUDGMENT: 06/04/2004 BENCH: R.C. LAHOTI & ASHOK BHAN. JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (C) NO. 2617 OF 2004)
R.C. Lahoti, J.
Leave granted.
Tuljabhavani Zilla 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:-
“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.
Bye-law No.18.11: Out of total number of elected
Directors, if 50 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 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. As the term of the
Chairman 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 as the Returning Officer. The election
programme was notified by Tehsildar-cum-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
12.00 a.m.
Distribution of nomination papers
& acceptance of nomination
papers
11.12.2003
12.00 noon
to 12.15 p.m.
Scrutiny of nomination papers
11.12.2003
12.30 p.m. to
13.00 p.m.
Withdrawal of nomination papers
11.12.2003
14.00 noon
If felt necessary, 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 scheduled to be held at 2 p.m. on
11.12.2003. The election programme was also communicated to all
the Directors.
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 eight Directors of the Sangh were present. The Returning Officer
awaited for the arrival of other Directors for ten minutes. At 10
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 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 + 1 Director. But 4 directors are
present for the meeting, the coram for the meeting
is not completed. 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
communicated 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 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 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 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 moved an application for amendment in the
writ petition seeking setting aside of the election programme declared
on 26.12.2003 and an ad-interim writ seeking suspension of 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 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 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 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 self-imposed discipline.
The Courts and Tribunals seized of the proceedings within their
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 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 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.
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 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. The Court would grant such an interim relief 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 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 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 meeting was
only for the purpose of performing the formality of declaring the
appellant as elected. In 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 difference whether there were eight directors to hear
the declaration 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 which could come in the way of the relief being granted to the
writ petitioner, in the case of such a nature, the 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 given to him by way of relief at the end of the final hearing.
It is pertinent to note that in 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 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
hereinabove is for the purpose of disposing of the prayer for the grant
of ad-interim 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 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.