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dgm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 1324 OF 2013
IN
B.C.C.C. NOTICE OF MOTION NO.3745 OF 2013
IN
B.C.C.C. S.C. SUIT NO. 3953 OF 2013
WITH
ig CAA/1583/2013
Mr. Sharad Pawar,
H. No.2, Mun.H. No.45, J-Silver Oks
Bungalow, Bhulabhai Desai Road,
Malabar Hill, Mumbai 400026 .... Appellant
(Original Defendant No.7)
vs
1 Shri Gopinath Munde,
1201, Purna, Worli Sagar C.H.S.,
Pochkhanawala Road, Worli,
Mumbai 400 018
2 Mumbai Cricket Association,
Cricket Centre, Wankhade Stadium,
D Road, Churchgate, Mumbai 400020,
3 Mr. Ravi Sawant,
President, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020
4 Dr. P. V. Shetty,
Jt. Hon. Secretary, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020
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5 Mr. Nitin Dalal,
Jt. Hon. Secretary, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020
6 Sanjeev M. Gorwadkar,
Election Officer, M.C.A for 2013
Elections, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020
7 C. T. Shanghvi,
Vileparle Sports Club,
Hon. Secretary, Chandravihar,
Sarojini Road, Vileparle(W),
Mumbai 400 056 .... Respondents
(No.1- Original Plaintiff and
Nos. 2 to 7 -original Defendant
Nos. 1 to 6.
ALONG WITH
APPEAL FROM ORDER NO. 1356 OF 2013
IN
NOTICE OF MOTION NO. 3745 OF 2013
IN
S.C. SUIT NO. 3953 OF 2013
WITH
CAA/1621/2013
1 Mumbai Cricket Association,
Cricket Centre, Wankhade Stadium,
D Road, Churchgate, Mumbai 400020
Through its President and Joint Secretaries
The Defendant Nos. 2, 3, 4
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2 Mr. Ravi Sawant,
President, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020
3 Dr. P. V. Shetty,
Jt. Hon. Secretary, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020
4 Mr. Nitin Dalal,
Jt. Hon. Secretary, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020 .. Appellants
ig (Ori. Defendant Nos. 1 to 4)
vs.
1 Shri Gopinath Munde,
1201, Purna, Worli Sagar C.H.S.,
Pochkhanawala Road, Worli,
Mumbai 400 018 ... Respondent No.1
(Original Plaintiff )
2 Sanjeev M. Gorwadkar,
Election Officer, M.C.A for 2013
Elections, Mumbai Cricket
Association, Wankhede Stadium,
D Road, Churchgate, Mumbai 400020
3 C. T. Shanghvi,
Vileparle Sports Club,
Hon. Secretary, Chandravihar,
Sarojini Road, Vileparle(W),
Mumbai 400 056
4 Mr. Sharad Pawar,
H. No.2, Mun.H. No.45, J-Silver Oks
Bungalow, Bhulabhai Desai Road,
Malabar Hill, Mumbai 400026 .. Respondents
(Nos. 2 to 4- Original Defendant
Nos. 5 to 7.)
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Mr. Rafique Dada, Senior Advocate with Mr. Abhay S. Khandeparkar,
Advocate i/by Mr. Amogh K. Karandikar for Appellant in AO/1324/13
and for Respondent No.4 in AO/1356/`13.
Mr. V. A.Thorat, Senior Advocate with Mr. Vikas Warerkar and Mr.
Vaibhav Sugdhare i/by M/s. Warerkar and Warerkar for Respondents 2
to 5 in AO/1324/13 and for Appellants in AO/1356/13.
Mr. Niteen Pradhan and Mr. Vivekanand Gupta and Ms. Shubhadha
Khot for Respondent No.1 in both the Appeals.
Mr. N. R. Gandhi for Respondent No.7 in AO/1324/2013 and for
Respondent No.3 in AO/1356/13.
ig CORAM: ANOOP V. MOHTA, J.
DATE : December 16, 2013 ORAL JUDGMENT:-
There is no objection to the Appeals being heard finally by this Court, therefore by consent heard accordingly.
2 Rule returnable forthwith.
3 Both these Appeals are arising out of Order dated 26
November 2013 by the learned Judge, City Civil Court, Greater Bombay. The points/issues raised and argued are common and so also the parties, therefore, this common judgment.
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4 The operative part of the order is as under :
"1 The notice of motion no.3745/2013 is partly
made absolute in terms of prayer clause (a) and defendant no.7 is hereby temporarily restrained from functioning as a president of defendant no.1 till final disposal of the suit.
2 The hearing of suit is expedited and parties are directed to make an endeavor to proceed with the suit so as to finish the same within a period of 3 months from the date of this order, preferably on day to day basis after filing of written statement.
3 Defendants are directed to file their written statement within 15 days from the date of this order and service of writ of summons on them is hereby dispensed with. In the meantime parties shall complete the inspection of documents.
4 Both parties also shall submit to the Court the programme for trial of the suit on next date."
5 The prayers in the Notice of Motion filed by the Plaintiff/Respondent No.1 was as under :
"(a) Pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to grant temporary injunction of this Hon'ble Court restraining the Defendant No.7 from taking post of the President and/or acting and/or in any manner functioning as a President of Defendant No.1;
(b) Ad interim relief in terms of prayer clause (a) be granted."::: Downloaded on - 23/12/2013 20:35:15 :::
6 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 6 From the above, it is clear that the learned trial Judge has granted reliefs partly, in terms of last portion of prayer (a), whereby the Appellant/Defendant No.7 restrained temporarily from functioning as a President of Mumbai Cricket Association (MCA)-the Appellant in Appeal from Order No. 1356/2013, till the final disposal of the Suit. However, while releasing the operative part of the order on 26 November 2013, on submissions of Appellants, the learned Judge has passed the protective order :
"The order only in respect of Clause (1) of the Operative order i.e. in respect of functioning of defendant No.7 is stayed till next date with a note that, this order shall not operate as a stay to the order of filing written statement and time bound programme of the trial of the suit.
Matter adjourned to 3/12/2013 for submitting program."
By this, stayed the impugned order for seven days without staying further part of the order.
7 The copy of reasoned order was not available. The Appellant, therefore, filed an Appeal against the operative part of the order on 2 December 2013. All the contesting parties appeared and made their respective submissions but as the reasoned copy was not ::: Downloaded on - 23/12/2013 20:35:15 ::: 7 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 available, the matter was directed to be placed on board on 13 December 2013 so that, the reasoned order can be annexed and/or placed on record and the matter can be heard. The leave to amend the Appeal was also granted. The protective order granted in favour of the Appellant (Defendant No.7) continued till 17 December 2013.
That has been in force till this date. MCA-appellant in AO/1356/13, after receipt of the reasoned order, also filed the Appeal against impugned order, on 11 December 2013.
8 At this stage, it is necessary to take note of the relevant events which are as under :-
On 19 June 2013, Appellant/Defendant No.7 changed his address to Mumbai i.e. Bungalow No.2, Silver Oak Estates, Bhulabhai Desai Road, Cumballa Hill, Mumbai 400 026 and got himself registered as a voter in the voters list maintained by the Election Commission of India. On 20 June 2013, Parsee Pioneer Cricket Club sent a letter to MCA intimating the Appellant/Defendant No.7 change of residence, qua the proposed elections of the Managing Committee.
On 18 August 2013, approved the Election Programme and the date of Election i.e. 18 October 2013. On 21 August 2013, MCA declared the election programme for the year 2013-2015. 11 October 2013 ::: Downloaded on - 23/12/2013 20:35:15 ::: 8 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 was the last day of filing of nomination till 7.00 pm. On 8 October 2013, the Plaintiff filed the nomination paper. On 12 October 2013, in accordance with the election bye-law No.6 of MCA, scrutiny of nomination forms was scheduled to be held at 6.00 pm. Respondent No.1/Plaintiff did not attend the scrutiny. Respondent No.7 raised an objection with regard to the nomination of Respondent No.1/Plaintiff since he did not qualify the requirements under Rule 17 of the Memorandum of Association of MCA. On verification, the Election Officer-Respondent No.6 held that Respondent No.1/Plaintiff was not a permanent resident of Mumbai or Thane and hence rejected his nomination paper. On 14 October 2013, an intimation regarding rejection of nomination sent to the Plaintiff/Respondent No.1. 15 October 2013, was the last date of withdrawal of the nomination. On 15 October 2013, Respondent No.1 filed an Appeal before the President of MCA as per election rules/bye-laws. Respondent No.3 fixed the hearing of the Appeal on 16 October 2013 and heard accordingly by permitting an Advocate to represent Respondent No.1.
On 17 October 2013, the President dismissed the Appeal and confirmed the decision of the Election Officer. On 18 October 2013, the Elections were held. The Appellant was the sole candidate. There was no contest. The Appellant was elected unopposed. The Annual ::: Downloaded on - 23/12/2013 20:35:15 ::: 9 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 General Meeting of Respondent No.2/MCA was held. The new Managing Committee took charge from the earlier Managing Committee. The Appellant has been acting as the President of MCA since 18 October 2013.
9 On 18 October 2013, the Suit was filed. On 19 October 2013, Respondent No.1 moved an application for ad-interim reliefs.
The learned Judge heard the application at length but not granted any ad interim reliefs. However, fixed the hearing of the Notice of Motion on 24 October 2013. The Defendants had filed caveat and hence notice was waived. From 24 October 2013 to 30 October 2013, the Notice of Motion was heard. The same was adjourned for further hearing on 11 November 2013. The hearing was concluded. On 12 November 2013, the orders were reserved. On 26 November, 2013, the operative part of the order was pronounced in the open Court.
The full order was not available. The learned Judge granted stay and/or protective order for a period of one week, although the Appellant prayed for stay of four weeks. The present Appeal filed on 28 November 2013.
10 There was no ad-interim relief at any point of time even ::: Downloaded on - 23/12/2013 20:35:15 ::: 10 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 during the course of hearing of the Notice of Motion. Hearing was commenced on 24 October 2013. Same was continued till 11 November 2013. On 12 November 2013, the learned Judge reserved the order. On 26 November 2013, though such drastic operative part of the order was pronounced in the open court, the copy of reasoned order was not made available. However, as stay was granted for one week, as recorded above, that has been in force till this date.
11The effect of such protective order is apparent. The Appellant, as the new Managing Committee took charge from the earlier Managing committee, has been performing its functioning as the President of MCA since 18.10.2013, without any interruption till this date.
12 The effect of impugned order, is that though the Appellant is duly elected in the election process, as per the bye-laws, and took charge as President since 18.10.2013, without declaring the election itself bad and/or illegal, has been restrained from functioning as President of MCA. Such type of mandatory order against the unopposed elected President, even though of a private club and/or body like MCA, to what extent falls within the frame work of ::: Downloaded on - 23/12/2013 20:35:15 ::: 11 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 exceptional and urgent case as contemplated at ad-interim stage itself, is the main issue. The Court must come to a conclusion that there is a strong prima facie case and the balance of convenience lies in favour of Plaintiff so also the equity, apart from the irreparable loss and injury. The delay and the conduct are also relevant factors. These principles definitely are applicable and required to be considered from the point of view of other side. It is not only side of plaintiff and/or averments made therein are sufficient to grant such mandatory injunction, the Court needs to struck the balance in every aspect.
13 Both the learned senior counsel appearing for the parties read and referred the Memorandum of Association, Rules and Bye-
laws (as amended on 8.10.2003) of MCA. The relevant clauses are as under :
"1 (f) "Committee shall mean the Managing Committee of the Association.
17 Qualification of office-Bearers & Members of the Managing Committee.
A person who has completed the age of 35 year and who is not suffering from any legal disability may be elected as President or a Vice President.
After a representative of an Ordinary Member is elected to the Managing Committee either as a Member or as an Office bearer the ordinary member shall have ::: Downloaded on - 23/12/2013 20:35:15 ::: 12 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 no right to change its representative without giving him a notice of at least 6 months.
The President, the Vice President, the Hon.Treasurer and the Joint Hon. Secretaries and the Members of the Managing Committee shall be representatives of Ordinary Members. No person who is a minor / or an undischarged insolvent or is convicted of a criminal offence involving moral turpitude or who is not a permanent resident of Greater Mumbai or Thane District shall be eligible for Election either as a President, Vice President, Hon. Treasurer, Joint Honorary Secretary or member of the Managing Committee.
29 Notice.
Notice of the meetings of the Committee shall be given to all its members at least four clear days before the meeting at the last registered address under a certificate of posting or sent through a peon with the agenda fixed for the same. The President or in his absence from Mumbai any one of the Vice Presidents may direct the Jt. Hon. Secretaries to convene an urgent meeting of the Committee on shorter notice.
30 Work done by Circular.
In an emergency, a resolution in writing circulated by the Jt. Hon. Secretaries and agreed to by the majority of the Members of the Committee present in Greater Mumbai, Thane District at that time shall be valid and effectual as if it had been taken at a meeting of the Committee. Such Circular Resolution shall be brought before the next meeting of the Committee.
33 Interpretation of Rules The Committee shall be the sole authority for interpretation of these rules and of the bye-laws and regulations made thereunder and its decisions taken ::: Downloaded on - 23/12/2013 20:35:15 ::: 13 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 under the rules or upon any question or interpretation or upon any matter affecting the Association and not provided for by these rules or the bye-laws or regulations made thereunder shall be final and binding on the members."
There are bye-laws for election of MCA. The detailed procedure is prescribed right from the announcement of election programme till a declaration of election results and Appeal in case of dispute in connection with the election. These rules are not in dispute as both the parties have acted upon and proceeded accordingly. There are other bye-laws covering subjects like Board of Umpires, Bye-laws of Tournament of Sub Committee etc. 14 We are concerned in this matter the election of President of MCA. As per Rule 17, a person who has completed the age of 35 and who is not suffering from any legal disability may be elected as a President or a Vice President. However, that is subject to the restriction/mandatory requirements that the President should be a representative of ordinary member. He should not be minor and/or undischarged insolvent or convicted of a criminal offence or involved in moral turpitude; He should be a "permanent resident of Greater Mumbai or Thane District", to be eligible for election either as a President or for any other post or the Committee. Therefore, no ::: Downloaded on - 23/12/2013 20:35:15 ::: 14 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 person-who is not a permanent resident of Greater Mumbai or Thane District can be eligible for the post of President of MCA. The required qualification binds all.
15 The plain reading of the clause itself revolve around the legally recognized concept of "permanent resident" as the basic element of qualification for the post of President in question.
The Apex Court has elaborated the concept "permanent resident" in the following terms, in Arshad Jamil vs. State of Uttarakhand and others,1. The relevant paragraph 32 reads as under:
"32 Our attention was also drawn to Section 21 of the Representation of People Act, 1950 laying down the procedure and method for the preparation and revision of electoral rolls in a constituency. Our attention was also drawn to Rule 7 of the Registration of Electors Rules, 1960 which prove and establish that an electoral roll is prepared on the basis of enumeration done by the election staff after making a door-to-door verification and on the basis of the information disclosed by the family members and the house they visit. On the said disclosures made, the name of the appellant was included in the voters' list of Muzaffarnagar upto 2003 and therefore, it cannot be said that he was not only ordinarily resident of Muzaffarnagar but a permanent resident thereof."
(emphasis added) 1 (2011) 9 SCC 313.::: Downloaded on - 23/12/2013 20:35:15 :::
15 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 The said phrase "permanent resident" is also discussed in Vinod K.
Wankhede vs. Collector,2 which reads as under:-
"Section 20(1) of the Representation of Peoples Act, 1950 lays down that merely because a person owns or is in possession of residential house, he is not deemed to be ordinary resident of that area. It is therefore, apparent that when the name of respondent No.2 has been added in Badnera Legislative Constituency Assembly, and the documents is not in dispute, then she has to be permanent resident of Amravati and not of Wardha."
There are judgments of other Courts also including of this Court revolving around the same concept.
16 There was no clear description and/or phrase defined under the bye-laws revolving around the concept "permanent resident". Therefore, for all the purposes and basically while considering the qualification as required, the election officer, required to consider and deal with the nomination papers so filed in the present case, in accordance with law. As recorded above, the election officer is the Competent Authority to deal with this aspect of election and as to acceptance and/or rejection of nomination. On 12.10.2013, the election officer rejected the nomination by noting that the Plaintiff cannot be treated as a "'permanent resident" of Greater Mumbai 2 2006 (6) Bom. C.R. 631 ::: Downloaded on - 23/12/2013 20:35:15 ::: 16 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 and/or Thane District, which is the basic condition for such election for the post of President.
17 As the Appeal was contemplated, the Plaintiff on 15.10.2013 preferred an Appeal before the Appellant Court as per the bye-laws. After giving opportunity and hearing, the Appellate Forum (Respondent No.3) maintained the reasoned order passed by the election officer on 17.10.2013. Additional reasons were also provided confirming the order of rejection of nomination paper, based upon the Supreme Court and the judgments of this Court. The Appellant was accordingly declared unopposed on 18.10.2013.
18 The Plaintiff's submissions were throughout, based upon the documents like passport address, electricity bills etc and a earlier decision given by the election officer in the election matter of late Vilasrao Deshmukh and thereby contended and submitted all the time apart from the other grounds that, such rejection of nomination paper was apparently illegal, malafide and against the provisions of law.
19 There was no objection whatsoever, with regard to the eligibility of Appellant and not raised specifically at any point of time.
::: Downloaded on - 23/12/2013 20:35:15 :::17 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 The debate, therefore, revolving around the rejection of nomination paper of Plaintiff. As noted, MCA Byelaws provide the mechanism to decide the disputes with regard to such election also. On the date of hearing before election officer, the Plaintiff was absent. The scrutiny took place on 12.10.2013 and the objection was accepted against the Plaintiff. The nomination was rejected. On 14.10.2013 the rejection was intimated. In view of rule 6 of Bye-laws on 15.10.2013, the Plaintiff/Respondent No.1 preferred an Appeal. It was heard by the President at the relevant time in the presence of Defendant No.6 on 16.10.2013. The Appeal was dismissed and decision was communicated on 17 October 2013. The two Competent Authorities, under the bye-laws, which provides complete Code so far as the election of MCA is concerned, by giving reasons supported by the record and the laws including Supreme Court judgments. The view so expressed by such Authorities though being part of private body/club, all the members including the Plaintiff/Respondent No.1 are bound by the same.
20 If there is a dispute with regard to the aspect of "permanent resident" and basically on the date of the filing of the nomination paper, the election officer was the Authority to consider ::: Downloaded on - 23/12/2013 20:35:15 ::: 18 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 the existing provisions of law, based upon the recognized documents in support of the same. The objection, if raised, with regard to the issue of "permanent resident" against the Plaintiff and as there are disputed facts, the decision required a due trial. The documents so filed, assuming for a moment, that should have been considered in favour of the Plaintiff, but at what stage, in my view, is again a matter of discussion and debate. Both the authorities by giving reasons considered all the submissions of the Plaintiffs and rejected the nomination. The trial Court cannot reversed those finding at interim stage of the proceedings. The learned trial Judge, based upon the affidavits and documents so referred above, wrongly comes to the conclusion that the Plaintiff has made out a case and, therefore, passed the impugned order.
21 The decision, as per the bye-laws is final, therefore, the remedy of Plaintiff/Respondent No.1 is to invoke appropriate proceedings including the Suit in question. However, the scope of Civil Court is quite limited when considering the alleged civil rights of a member in a situation where pursuance to the election programme so declared and the Authorities/bodies having once given decision and as there is no case of breach of principles of natural justice and/or the ::: Downloaded on - 23/12/2013 20:35:15 ::: 19 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 case of perversity and/or total illegality and/or want of jurisdiction and/or Authority, the Court needs to consider all these aspects to pass such order in this background. There is no total bar that the party like the Plaintiff cannot file Suit to challenge the civil rights, if any, but it is for the Court to consider at this stage to pass appropriate order and/or injunction and/or appropriate relief.
22 In view of above, the view so expressed, if, is plausible and/or possible view on the basis of material placed on record by the parties, therefore, at this stage, in the present facts and circumstances, to grant such order which has effect of granting final mandatory relief though in part, in my view, is unacceptable.
23 Both the Authorities, if provide and gave reasons and dismissed the nomination and also by interpreting the bye-laws in question, based upon the citation so referred by the parties including distinguishing the contention so raised by the Plaintiff and the submission of perversity and/or illegality, in no way, supports the case of the Plaintiff/Respondent No.1. The material so placed even by the Plaintiff/Respondent No.1 and as sought to be contended even before this Court, dealt with by both the Authorities. There is no case of ::: Downloaded on - 23/12/2013 20:35:15 ::: 20 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 even any sort of admission by the contesting Appellants. On the contrary, there is a clear dispute raised on each and every aspects.
24 The finding even so given by the learned Judge on this issue is nothing but to sit as an Appellate Court over the concurrent finding by the two Authorities, as per the bye-laws. The scope of Civil Court, in such matter, as recorded above, is limited. The reasoning given by the two Authorities, therefore, by this order is practically overruled and set aside.
25 Another factor in the matter is the main prayers in the Suit of the Plaintiff/Respondent No.1 which are as under :-
"(a) this Hon'ble Court be pleased to declare that the rejection of nomination of the Plaintiff. As we as the Orders dated 12th October 2013 and 17th October 2013 passed by the Defendant Nos. 5 and 2 respectively are bad in law, illegal and malafide and the same be set aside by a decree of this Hon'ble Court;
(b) this Hon'ble Court be pleased to declare that the unopposed election of the Defendant No. 7 is illegal, bad in law and non-est.
(c ) that this Hon'ble Court be pleased to refrain the Defendant No.7 by an order of permanent injunction of this Hon'ble Court from taking post of President of Defendant No.1 and/or in any manner acting and/or functioning as President of the Defendant No.1.::: Downloaded on - 23/12/2013 20:35:15 :::
21 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13
(d) this Hon'ble Court be pleased to declare that the Plaintiff is also entitled for permanent injunction of this Hon'ble Court restraining the Defendant No. 7 from taking post of President and/or acting and/or in any manner functioning as a President of Defendant No.1.
(e ) Pending the hearing and final disposal of this suit, this Hon'ble Court be pleased to grant temporary injunction of this Hon'ble Court restraining the Defendant No. 7 from acting and/or in any manner functioning as a President of Defendant No.1."
26 It is clear from the above prayers itself apart from the averments so made that the Plaintiff has challenged orders dated 12 October 2013 and 17 October 2013 passed by Defendants 5 and 2 respectively. The declaration is also sought only against Appellant/Defendant No.7 and so also injunctive relief as recorded above. There are no other relief sought even in the main Suit. By giving opportunity to all the parties, including the trial, the Court must comes to a conclusion to grant reliefs in terms of prayers (a),
(b), (c ), (d). But the relief in terms of prayer (e), is nothing but granting the main prayers of the Suit at ad-interim stage itself.
27 Strikingly, and as recorded above, the election of Appellant is not yet declared bad in law. Therefore, in view of the clear decision based upon the bye-laws, the Appellant is on record as the elected and ::: Downloaded on - 23/12/2013 20:35:15 ::: 22 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 unopposed President of MCA. The effect of this injunction is that though elected and already taken charge as the President, he is restrained from functioning as a President of MCA. The elected person/President of any body including private body and the functioning of such body including of new Managing Committee just cannot be made defunct in such fashion. The learned Judge, unless comes to a clear conclusion by giving opportunity to all the parties, which will be in due trial, such restraintment order against the Appellant not allowing him to function as a President of MCA, in my view, is impermissible. It causes and hampers the functioning of such bodies basically when the Authorities under the bye-laws by following due procedure so prescribed and by giving full opportunity to all the concerned, have come to the conclusion, therefore, unless it is set aside, any disturbance and/or taking away such rights to function as unopposed President of MCA, would cause great injustice to all the concerned. The balance of convenience, equity are also, lies in favour of permitting all elected candidate/President to continue to function.
This is also for the reason that till the impugned order, there was no interim order and/or injunction passed against the Appellant/Defendant No.7. Since the date of election i.e. 18.10.2013, he has been working as a President in every aspect. Such abrupt ::: Downloaded on - 23/12/2013 20:35:15 ::: 23 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 restraintment order restricting only to the functioning as a President, but not disturbing his President-ship and/or the election so held and conducted, is contrary to the record and the law.
28 It is settled, that the mere averments and/or allegations with regard to the doctrine of malafide, bias, malice in fact and malice in law, are not sufficient. It requires detail pleadings and supporting material and proof. Even after considering the averments so read and the submission made, are not sufficient to accept such case. The judgment so cited and referred by the learned Judge itself makes the position more clear and specially in Ratnagiri Gas and Power Pvt.
Ltd v. RDS Projects Ltd and ors.,3 , the Supreme Court has recently reiterated the law in the following words :
"The law casts a heavy burden on the person alleging malafides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deductible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove malafides on the part of the decision maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the Court to conduct an inquiry into their veracity. As and when allegations of malafides are made, the persons against whom the same are levelled need to be impleaded as parties to the 3 AIR 2013 SC 200 ::: Downloaded on - 23/12/2013 20:35:15 ::: 24 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 proceedings to enable them to answer the charge. In absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. A judicial pronouncement declaring an action to be malafide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts have, therefore, to be slow in drawing conclusions when it comes to holding allegations of malafides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also bars the person who was likely to be affected by such a finding. ...... Between `malice in fact' and `malice in law' there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or in injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the flaw and can only act within the law. He may, therefore, be guilty of `malice in law', although, so far as the state of his mind was concerned he acted ignorantly, and in that sense innocently. `Malice in fact' is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act."
"37 ...... It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and willfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended. " It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing ::: Downloaded on - 23/12/2013 20:35:15 ::: 25 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 an order for unauthorized purpose constitutes malice in law. (See : Addl. Distt. Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207 : Union of India thr.Govt. Of Pandicherry and Anr. v. V. Ramakrishnan and ors., (2005 8 SCC 394 : (AIR 2005 SC 4295; 2005 AIR SCW 5147) ; and Kalabharati Advertising v. Hemant Vimalnath Narichania and ors., AIR 2010 SC 3745)".
The Apex Court also in the case of State of Bihar versus P. P. Sharma in para 50 observed as under :
"......... The determination of a plea of malafide involves two questions, namely (I) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power."
29 The burden, as recorded above, is also on the person alleging the malafides, bias or malice in facts. Vague and general allegations are not sufficient. It is not the case where a case of malafide, bias and malice is apparent on face of record. There are no specific allegations made as sought to be contended before the basic Authorities. The Plaintiff/Respondent No.1 appeared and contested his rejection of nomination papers at the relevant time. The submissions in such case, ought not to have been accepted by the trial Court before granting such order basically when there are no admitted ::: Downloaded on - 23/12/2013 20:35:15 ::: 26 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 facts and circumstances. The learned Judge, based upon the alleged undisputed facts as recorded in para 85 and as the submissions made by the learned counsel appearing for the Plaintiff, wrongly held that this itself amounts to undisputed position of malice in facts, malafide and bad. Those events, as recorded in para 85, itself require detailed scrutiny and inquiry. The other parties require to give opportunity, at the time of trial to support the reason and/or the purpose and/or a situation, as recorded in para 85, which according to the Plaintiff are sufficient to accept their case of malafide and/or bias.
30 There is no dispute with regard to the fact of Appellant/Defendant No.7's name enrolled in Mumbai and Thane Constituency on 19.06.2013. Prior to that the position of Plaintiff/Respondent No.1 as sought to be contended was the same as that of appellant (Defendant No.7). In view of their name in the list of their respective constituencies as a voter - [ Plaintiff - Nathra Constituency in District Beed and Appellant/Defendant No.7-
Baramati Constituency till 19.06.2013 ]. No challenge was raised with regard to the eligibility of Appellant/Defendant No.7. Therefore, there was no question of any comparison in this regard. In such matter, the Court is required to consider facts and circumstances ::: Downloaded on - 23/12/2013 20:35:15 ::: 27 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 revolving around the civil rights of the parties one who invoked the civil Court's jurisdiction. On the date of election, if a member is ineligible as per the bye-laws and for want of specific objection at the relevant time, the Court, cannot have this comparison, specially when the nomination of Plaintiff was rejected in view of the objection so raised by treating him to be not "permanent resident of Mumbai". The rejection, if illegal and/or contrary to the bye-laws and unless two orders are set aside, no case is made out even of malafide, bias and/or malice in fact and/or law.
31 The effect of not considering the case of Plaintiff on the basis of passport and/or election identity card which mentions the address of the Plaintiff/Respondent No.1 at Mumbai but considering the judgments and the citation so referred if both the Authorities come to a conclusion against him, at this stage, therefore, the civil Court ought not to have overlooked the decisions given by the Authorities.
32 A decision given by earlier election officer, treating it to be similarly placed circumstances, of then elected President late Vilasrao Deshmukh is also incorrect. Though averments are made about 80 years practice to accept such nomination, except the decision so ::: Downloaded on - 23/12/2013 20:35:15 ::: 28 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 referred above, no other material placed on record, at least at relevant time before the authorities. The Competent Authority, if, based upon the recent Supreme Court judgments and considering the basic aspect of "permanent resident" rejected the nomination papers, the insistence and/or sub;mission that this was done deliberately and/or with intention to support and/or to give benefits to the Appellant/Defendant No.7 unless proved as alleged specifically, is also unacceptable. There is nothing pointed out and/or even referred that such orders of earlier election officer has a binding force and/or in subsequent election it must be followed. The election officer in question, who is a practicing Advocate, has considered the position of law on the date of passing of order, the earlier decisions so cited, in no way, can be the reason to interfere with the orders so passed by the competent authorities under the bye-laws, basically at this stage of the proceedings.
33 The learned Judge has given importance to Clause 33 of the Bye-laws. In case of dispute and/or difference between the members and/or related to any clauses of any Byelaws, as referred above, the Managing Committee, if issue is raised, at appropriate time, required to adjudicate and/or interpret those clauses. This is not the ::: Downloaded on - 23/12/2013 20:35:15 ::: 29 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 case where such application and/or even submission was raised before the Competent Authorities at the relevant time though the Plaintiff/Respondent No.1 appeared through the Advocate. There was no objection and/or submission raised to refer the matter for interpretation of the rules and the bye-laws.
34 The rules of election so referred above itself provides the mechanism to deal with the situation like this and specially against the rejection of nomination papers. The Plaintiff/Respondent No.1, therefore, challenged the same before the election officer and challenged the order of election officer before the Appellant Authority.
The bye-laws, if provides that the order passed by the Appellate Authority is final, then also there is no question of referring the matter for any interpretation as sought to be contended and as recorded by the learned Judge, by referring to Rule 33. Such procedure, even after reading the relevant bye-laws, as read and referred by the learned senior counsel appearing for the parties, is nowhere contemplated.
The Plaintiff/Respondent No.1 was fully aware of this. Immediately after final decision by the Appellate Court, the Suit is filed. The various clauses of the rules and the bye-laws referred by the parties, in support of their rival contentions, but the finding given by the ::: Downloaded on - 23/12/2013 20:35:15 ::: 30 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 learned Judge, revolving around Rule 33, was, at this interim stage, wrong. The bye-laws if provide a complete election code, the invocation of Rule 33, even if any, in no way, hamper and/or sufficient to disturb the finality given by the Appellate Authority under the election code/bye-laws. Both the Appellants never submitted and/or conceded to the situation to say that this rule 33 is applicable and/or extendable in such situation for interpretation of the Rules. The plaintiff, if wanted the interpretation from the Managing Committee, an appropriate step should have been taken, if permissible in bye-
laws, at the relevant time itself. To put burden upon the election officer and/or Appellate Authority that they ought to have been referred the matter for interpretation, in my view, is also unacceptable submission. The trial Court ought not to have interpreted the rules, by referring to clause 33. The election officer and/or Appellate Authority are bound by the clear provisions of election code of the MCA. By giving full opportunity to all the concerned parties, they have expressed the views including the interpreting the words "permanent resident" which, on the basis of material and the judgments on record, in no way, can be stated to be perverse and/or bad in law. The Plaintiff, therefore, at the relevant time, conceded to the situation and proceeded further as bound to follow the prescribed ::: Downloaded on - 23/12/2013 20:35:15 ::: 31 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 election mode of the MCA. To convene meeting and/or short meeting by giving short notices, for such interpretation as contemplated under Rules 29 and 30, including by calling emergency meeting, in my view, is also unacceptable submission. The finding given by the learned Judge revolving around Rules 29, 30 and 33, by overlooking the basic election Bye-laws 6, 17 and 24 is nothing but a wrong exercise of jurisdiction. The finding is also wrong to say that "None of the Defendants even whispered abut the remedy itself also provided in the Rules". The finding given by the learned Judge that the election officer and the Appellate Authority passed the order in violation of Rule 33 is incorrect. The election officer and the Appellate Authority have stepped within the scope and power as provided under the bye-
laws but not the learned Judge. The power of Managing Committee is not in dispute. But we are concerned at this stage, the orders passed by the election officer and the Appellate Authority. The alleged remedy, as observed, is incorrect way of dealing with the subject of election in question, basically at this stage of the proceedings.
35 The learned Judge wrong in holding that the procedure provided by Rules and bye-laws of the MCA was not followed. The ::: Downloaded on - 23/12/2013 20:35:15 ::: 32 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 learned Judge also wrong in holding that the civil rights of the Plaintiff/Respondent No.1 was not considered properly.
36 There is no force in the contention that the challenge of MCA/Appellant in AO/1356/2013 itself shows that they want to support Appellant/Defendant No.7 and they have accordingly done so since beginning even prior to the declaration of election. These averments and submissions require detail trial as the Plaintiff/Respondent No.1 need to prove bias and/or oblique motive and the alleged strategical late declaration of election itself. The allegations are made that Appellant/Defendant No.7 is highly influential political leader and the Appellant (MCA) and his members were influenced by him and, therefore, they challenged the impugned orders on the grounds of bias, malafide and the principles of natural justice. The time was given to the Appellant/Defendant No.7 to enroll in the electoral roll of Mumbai with effect from 19.6.2013 and thereafter declared and held the election. These averments/allegations not accepted by the contesting Appellants. The facts though not disputed in paragraph 85, as recorded, in no way, sufficient to mean that the allegations are proved. Those disputed facts require a detail scrutiny, inquiry and evidence and, therefore, at ::: Downloaded on - 23/12/2013 20:35:15 ::: 33 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 this stage, just cannot be accepted, as done by the learned Judge.
The Appeal, therefore, so filed by MCA in this background in no way can be overlooked. Even otherwise, being the Defendant in the Suit, they are entitled to challenge the order, if passed against the newly elected Committee including their unopposed elected President. The challenge so raised in no way can be the reason to accept the case of Plaintiff of bias and malafide, as sought to be contended at this interim stage itself.
37 So far as judicial review against such orders passed by the private body is concerned, the submission that the Suit itself is not maintainable, is not acceptable. However, to what extent and under what circumstances the Civil Court can interfere with the orders so passed by such private body is depend upon the facts and circumstances of the case which, the learned Judge is required to consider at the final stage of the proceedings.
38 In T.P. Daver Vs. Lodge Victoria: S.C. Belgaunm4 the Apex Court held as under:-
"(9) THE following principles may be gathered from the above discussion. (1) A member of a masonic 4 1963 AIR (SC) 1144 ::: Downloaded on - 23/12/2013 20:35:15 ::: 34 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 lodge is bound to abide by the rules of lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. (2) The lodge is bound to act strictly according to the rules, whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard. (3) The jurisdiction of civil court is rather limited; it cannot obviously sit as a court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra.
39The learned senior counsel appearing for the Plaintiff/Respondent No.1 has strongly relied upon a draft minutes dated 26 November 2013 in support of the submission that the balance of convenience lies in the favour of continuing the impugned order so passed, as the Appellant/Defendant No.7 has volunteered and permitted the present Vice-President to take charge of MCA - no prejudice would cause to the Managing Committee as they can continue to run the affairs of MCA. This document definitely was not part of the original proceedings, but as reference was made and read and relied upon by the senior counsel appearing for the parties and considering the situation, I have permitted them to make the respective submissions revolving around the same. The contents of the draft minutes were not before the Court when the order was ::: Downloaded on - 23/12/2013 20:35:15 ::: 35 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 passed and even otherwise, just cannot be the reason to overlook the above observation. This, in no way, tilt the balance or any elements which are required to grant such mandatory injunction of this type in favour of the Plaintiff/Respondent No.1. On the contrary, for the reason so recorded above, I am inclined to observe that the Plaintiff/Respondent No.1 has not made out a case for such mandatory order. The balance of convenience, equity, apart from the conduct, lies in favour of the Appellants. The irreparable loss and injury in a situation like this, where the election proceedings though not declared bad in law so also the election process, by this post-
order, the Appellant/Defendant No.7 is restrained from functioning as a President. This, in my view, is totally impermissible. The irreparable loss and/or injury would cause to the Appellants and all the members, who, for various reasons, elected the Appellant/Defendant No.7, unanimously as the President of MCA.
Such election and/or President-ship, therefore, in my view, cannot be disturbed by such interim order on the basis of the prima facie observations as recorded in the impugned order.
40 In Ravi Yashwant Bhoir Vs. Chief Minister & Ors. 5 the
5 (2012) 4 SCC 438
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36 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13
Supreme Court observed that:-
"34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.
36. ..........Not only the elected office-bearer but his constituency/ electoral college is also deprived of representation by the person of their choice."
41 The submission was also made by the senior counsel appearing for the Appellants that tenure of order so passed by the learned Judge create doubt and/or apprehension in the mind that he has pre-judged the issue and will pass such order against them in future also. The learned Judge has passed the order on the basis of material available and even if certain strong observations are made referring to certain other Bye-laws/Rules of MCA that itself cannot be the reason to accept the case of Appellants that the matter should be transferred immediately and/or be heard by other Judge. The Judge, in support of the operative order, give reasons based upon the material available on the record, it is always subject to challenge in Higher Court/forum. But that itself cannot be reason to transfer the ::: Downloaded on - 23/12/2013 20:35:15 ::: 37 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 matter, basically when all such observations are prima facie view of the matter for passing the interim order. The parties are even otherwise can take steps by filing appropriate application, in accordance with law. The Court will pass appropriate order, if case is made out to transfer the matter. Therefore, this submission is not acceptable at this stage of the proceedings.
42 The submission with regard to the doctrine of estoppal and res judicata are also not applicable merely because the election officer and/or even the MCA and/or its officers have not accepted and/or followed the earlier decision given in favour of late Vilasrao Deshmukh. The election officer is not bound by the earlier decisions, even if any. There is no such practice proved and/or recorded. Such decisions are always on facts and circumstances of the case. The parties were not same and similar neither the issue.
43 The power of Appellate Court is also limited, but the decision given by the learned Judge, overlooking the basic provisions of law including grant of mandatory injunction in view of the main prayers of the Suit and the facts and circumstances of the present case which require due trial as unacceptable, being contrary to law and the ::: Downloaded on - 23/12/2013 20:35:15 ::: 38 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13 record, therefore, the impugned order required interference. This, in no way, dis-entitle the parties to raise their appropriate pleas and defences in the trial which is already expedited. For the above reason, I am inclined, therefore, to set aside clause (1) of the order and so also dismissing the Notice of Motion. Rest of the order is maintained/retained. However, I am inclined to maintain the other part of the Order i.e. clauses (2), (3) and (4).
44Resultantly, the following order :-
O R D E R
(i) Clause 1) of Order dated 26 November 2013 is quashed and set aside.
(ii) Notice of Motion No. 3745/2013 is accordingly dismissed.
(iii) Clauses (2), (3) and (4) of the Order dated 26 November 2013 are retained/maintained.
(iv) Both the Appeals are accordingly partly allowed. Rule made absolute accordingly.
(v) There shall be no order as to costs.
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39 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13
45 The learned counsel appearing for the
Plaintiff/Respondent No.1 submitted to stay the order passed by this Court today in open Court. The same request cannot be accepted for simple reason that till this date, the restraintment order even if passed against the Appellant/Defendant No.7 was never implemented, the trial Court granted stay for seven days. This Court has continued and permitted the Appellant to work as President by order dated 2 December 2013 and the position has been continuing till this date.
Having quashed Clause (1) of the impugned order, there is no question of granting stay of this judgment as prayed. It is rejected.
46 In view of disposal of Appeals, Civil Application No. 1583/2013 in AO/1324/2013 and Civil Application No. 1621/2013 in AO/1356/2013 also stand disposed of.
(ANOOP V. MOHTA, J.) ::: Downloaded on - 23/12/2013 20:35:15 :::