* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: August 13 ,2012
+ I.A. No.5711/2012 and I.A. No.8116/2012 in
CS (OS) No.803 of 2012
SACHIDANANDA SAMAL AND ORS ..... Plaintiffs
Represented by: Mr. J.P. Sengh, Sr. Adv. with
Dr. B.K. Dash & Mr. S.K. Rout,
Advocates
versus
SREE NEELACHAL SEVA SANGHA, DELHI & ORS
..... Defendants
Represented by: Mr. Sanjay Poddar, Sr. Adv. with
Mr. Parmesh Kumar, Adv. for
D-1.
Ms. Pinky Anand, Sr. Adv. with
Mr. Barun Kumar Sinha,
Ms. Pratibha Sinha & Mr. Anil Rai,
Advs. for D-4 to 15.
Mr. Jitendra Mohapatra, Adv. with
Mr. Goutam Gupta, Adv. for
applicants in I.A. No.8861/2012.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order, I propose to decide two pending applications, i.e. I.A. No.5711/2012 under Order XXXIX, Rules 1 & 2 of the Code of Civil Procedure, 1908 (in short, called „CPC‟) filed by the plaintiffs and I.A. No.8116/2012 under Order XXXIX, Rule 4 CPC filed by the defendant Nos.4 to 15.
2. The 56 plaintiffs filed the suit for declaration and mandatory injunction against the three defendants, namely, Sree Neelachal Seva Sangha (in short, called „Sangha‟), Sh. S.C.Nanda, Advocate and Sh. Gyan Prakash Thareja, Advocate (ADJ Retd.). The defendant No.1 is a society CS(OS) No.803/2012 Page 1 of 23 registered in the year 1967-1968 under the provisions of Societies Registration Act, 1860 and its affairs are being managed under the Memorandum of Association and Rules and Regulations. The defendant No.2 is a member of defendant No.1 who was appointed as Election Officer and defendant No.3 is the retired Additional District Judge, who was appointed as observer vide order dated 21st January, 2012 passed by the Civil Judge, Saket Courts, Delhi, for conducting the elections.
3. The plaintiffs claim that they are the donor and life members of defendant No.1, who were validly enrolled in the meeting held on 3rd November, 2011. They seek declaration against the defendants declaring the letter dated 14 th March, 2012 issued by defendant No.2 being illegal, arbitrary and contrary to the rules and regulations of the defendant No.1 and also to declare membership of 81 persons enrolled in the meeting of the Executive Committee of the defendant No.1 held on 3rd November, 2011 as valid. Injunction is also sought permitting the plaintiffs to cast their respective votes in the election scheduled fixed on 31st March, 2012.
4. Along with the suit, the plaintiffs filed an application under Order XXXIX, Rules 1 and 2 CPC, being I.A. No.5711/2012. Both, the suit and the application, were first time listed before Court on 7th March, 2012. While issuing the notice, interim order was passed to the effect that the election be held as per schedule i.e. on 31st March, 2012 under the supervision of defendant No.3. The plaintiffs were allowed to cast their votes in the election. The defendant No.2 shall ensure that there would be separate ballot box with regard to casting of votes of the plaintiffs. The said ballot box shall be kept in the custody of defendant No.3 and the fate of the CS(OS) No.803/2012 Page 2 of 23 election will be considered at the time of considering the interim application. It was also ordered that the result of the election shall not be declared without the leave of the Court. The said order was slightly modified by order dated 28th March, 2012 to the effect that instead of 56 plaintiffs, 81 members were allowed to cast their votes in the election.
5. On 10th April, 2012, an application under Order I, Rule 10 read with Section 151 CPC, being I.A. No.6369/2012, was filed by 12 interveners for impleadment as defendants. Another application, being I.A. No.8861/2012, under the same provision was filed by the three interveners on 8 th May, 2012 for impleadment as defendants in the suit.
6. As regard I.A. No.6369/2012, the same was allowed by order dated 9th May, 2012 with the consent of the plaintiffs and the 12 interveners were impleaded as defendant Nos.4 to 15 in the matter. Similarly, I.A. No.8861/2012 was allowed, though the said applicants subsequently filed another application under Section 151 CPC, being I.A. No.9459/2012, who wanted to withdraw the earlier application. The said application was dismissed by the Joint Registrar in view of the orders passed on 9th May, 2012 allowing the said application with the observation that if they want to withdraw from the proceedings, they may file appropriate application for deletion of their names. No such application was filed by the said applicants in this regard.
7. Prior to disposing of these applications, the notice was also issued in the application under Order XXXIX, Rule 4 CPC, being I.A. No.8116/2012, was filed by the proposed defendants No.4 to 15 and the time was granted to file the reply. The plaintiffs also filed an application under Order XXXIX, Rule 2A CPC in which notice is yet to be issued.
CS(OS) No.803/2012 Page 3 of 238. All the parties have made their respective submissions in two main pending applications, being I.A. No.5711/2011 and I.A. No.8116/2012.
9. Some relevant events and dates are necessary to be referred before any discussion of the parties in respect of their rival submissions.
10. Last three-yearly election of defendant No.1 society was held on 19th August, 2007 and its tenure came to end on 18 th August, 2010. Thereafter no election was held.
11. The defendants No.4 to 15 are also the members of the Executive Committee which was elected on 19th August, 2007. The Executive Committee consists of 25 members including the President and the Secretary. The defendant Nos.4 to 15 who are the part of the Executive Committee on 1st July, 2011 wrote to the President and Secretary of defendant No.1 for holding the annual General Body Meeting and election of office-bearers as per clause 16(c) of the byelaw. According to them, they were not allowed to raise the issue of holding the election in the Executive Committee by the President and Secretary who threatened them for raising the said issue. As no positive response was received by them, they filed the civil suit No.518/2011 on 2nd November, 2011 in the District Court, South, New Delhi, praying for direction to President and Secretary to hold election and also to stay the disciplinary action against them.
12. Admittedly, Meeting of Executive Committee was held on 3rd November, 2011. Serial No.4 of the Minutes of Executive Committee Meeting was the agenda pertaining to General Body Meeting and fixing the date of election of Sangha (D-1). As per the decision taken in the said meeting, the date of election was fixed for 3rd March, 2012 (Saturday). Relevant CS(OS) No.803/2012 Page 4 of 23 extract of the same is reproduced hereinbelow:
"The Committee decided to hold the General Body Meeting and election of the Sangh on 3rd March, 2012 preceded by the last meeting of the present Executive Committee to be held on 2nd March, 2012. The committee further decided that all the steps and formalities relating to the GBM and election should be completed on time in accordance with the byelaw of the Sangh for the purpose."
In the meeting, a decision was also taken on the issue of admission of 19 donor members. Their names are also mentioned in the minutes of the Executive Committee Meeting held on 3rd November, 2011.
13. Further, in the minutes of meeting dated 17th December, 2011, it was decided to the effect that the matters under serial Nos. 5 and 8 i.e. to engage lawyer and approval of donor members, were withdrawn after consideration. In the said Executive Committee Meeting, the agenda No.4 i.e. the decision of election of defendant No.1, was re-discussed and it was resolved that the decision already taken was decided to remain in force and according to the said decision the Annual General Body Meeting and Election was to be held on 3rd March, 2012 (Saturday) preceded by the last Executive Committee meeting to be held a day before i.e. 2 nd March, 2012 (Friday). A complete list of members of the Sangha was to be displayed in the notice Board within two weeks. All the disputes and differences of opinion relating to administrative affairs/activities of Sangha were discussed and the same were unanimously resolved. It was also resolved that the matter pending in the court (Civil Suit No.518/2011) filed by contesting defendants against the Secretary and President of defendant No.1 and others would be withdrawn. All the CS(OS) No.803/2012 Page 5 of 23 issues/disputes in future regarding the administrative affairs of the Sangha will be peacefully resolved by the committee of Sangha.
14. When the matter was listed before Civil Judge, Saket on 3rd January, 2012, the issue of membership list was discussed as appears from the said order. The matter was taken up by the civil judge on 16th January, 2012. The defendant in the said suit filed the documents including the minutes of the Executive Meeting dated 17th December, 2012. The said matter was adjourned to 21st January, 2012 when the following order was passed:
"Present: Sh. Aditya Madan, and Sh. Guatam Gupta, Counsel for the plaintiffs no.1 to 4 and 6 to 11. Plaintiff no.12 in person along with Sh. Jitendra Mahapatra and Ms. Padmini, counsel for plaintiff no.5 and 12.
Sh. Gautam Dass, Counsel for the defendants no.2 to 4.
Def.no.5 and 6 ex parte.
It is jointly stated by the parties that Sh. S C Nanda Member of def.no.2 be appointed s the Election Officer who shall also prepare the list of the eligible voters and thereafter conduct the election process. It is further submitted that consent of Sh. S.C. Nanda has been obtained. Heard.
In view of the joint submission of the parties Sh. S.C. Nand, Member of the Sangh is hereby appointed as the Election Officer who shall file his report along with the election result within 10 days from the date of election.
With the consent of the parties, Sh. G.P. Thareja, Ld. Addl. District Judge (Retd.) is appointed as the Observer for the elections scheduled on 3.3.2012. The report of the Observer be filed within 10 days from the date of election. The fees of the Observer is fixed @50000/- to be borne by the Sangh.CS(OS) No.803/2012 Page 6 of 23
The parties are directed to cooperate with the Election Officer and the Observer to ensure that the election is conducted smoothly. The concerned SHO is directed to provide necessary assistance to the Observer, if so requested by the Observer."
15. In view of the order passed by the Civil Judge, the election officer wrote to the Secretary of defendant No.1 on 6 th February, 2012 to provide list of eligible voters and put the list of members on the Notice Board of the Sangha latest by 8 th February, 2012. The Secretary of defendant No.1 writes to the election officer on 8th February, 2012 that the members list is being prepared and will be forwarded to you after being verified. In the meanwhile, when the matter was listed before the civil court on 21st February, 2012, the review application filed on 10th February, 2012 by the defendant No.1 and others was dismissed.
16. Thereafter, the President and Secretary of defendant No.1 filed the CM (Main) No.243/2012 in the High Court against the order of the Civil Judge dated 21 st February, 2012 of dismissal of the review petition filed against the order dated 21st January, 2012. The said petition was disposed of vide order dated 27th February, 2012 with the direction to reschedule the election for 31st March, 2012 under Sh. S.C. Nanda as Election Officer and Sh. G.P. Thareja, retired Additional District Judge, as Observer. The order dated 27 th February, 2012 reads as under:
"It is not in dispute that the election in terms of the order dated 21.01.2012 had been scheduled for 03.03.2012; Election Officer, Sh. S.C. Nanda had been directed to give his report within 10 days from the date of its decision; Observer for the said election, namely, Sh. G.P. Thareja (Retd.), Additional District Judge, had to be paid a fee of Rs.CS(OS) No.803/2012 Page 7 of 23
50,000/- which was to be borne by the Sangh; cooperation of the parties had been sought in order that the Election Officer and Observer could get the election conducted smoothly. The fee of the Observer has not been paid. Details of the electoral list have also not been furnished to the Election Officer; learned counsel for the petitioner states that the said details will be filed furnished within two days from today and since there is a mandate of 14 days of a notice prior to the schedule of the election, the election is now re-scheduled for 31.03.2012. Election Officer shall ensure that the elections are conducted in accordance with the rules of the election process. After the elections have been carried out smoothly, learned counsel for the respondent under instructions from his client undertakes that the pending suit (irrespective of the result of the election) shall be withdrawn. With these directions, petition is disposed of."
17. After passing the said order, list of members including new enrolled members was delivered in the office of the Election Officer. On 5th March, 2012, the Election Officer writes a letter to the Secretary to have a joint meeting on 10th March, 2012 for verification of the membership list.
18. Thereafter, on 14th March, 2012, a letter was written by defendant No.2/Election Officer to the Secretary with regard to enrolment of 81 newly added members, who, according to him, were ineligible to participate in the election scheduled for 31st March, 2012. Prior to that on 12th March, 2012 the Election Officer pointed out discrepancies about the said membership and asked the Secretary to give him photocopies of the relevant documents. On 16th March, 2012, the Secretary of defendant No.1 writes to the Election Officer raising objections to his decision and alleged that the Election CS(OS) No.803/2012 Page 8 of 23 Officer‟s decision was biased and illegal. He gave his justification about their induction by referring the decision taken by Sangha who enrolled them. The said letter written by the Secretary was received by the Election Officer on 21 st March, 2012, who wrote a letter on the same date to the Secretary by reiterating the same stand about them as mentioned in his letter dated 14th March, 2012. The filing of nominations was closed on 25th March, 2012 as per schedule in the presence of Election Officer and the Observer.
19. The final list of nominations was notified by the Election Officer in the premises of defendant No.1 on 27th March, 2012. However, the plaintiffs on that day filed the present suit who were claiming that they are validly enrolled as members in Executive meeting held on 3rd November, 2012. They are 56 members out of 81 members inducted in the said meeting. It is necessary to mention that at the time of passing the interim order, there was no opposition on behalf of the defendant No.1 who was represented in Court when the matter was listed.
20. On 31st March, 2012, a General Body Meeting was held followed by elections. The election was conducted by the Election Officer. 93 old members and 62 new members cast their votes in separate boxes. Ballot boxes were sealed and kept in the safe custody. On 1st April, 2012, the Election Officer and Observer opened the sealed boxes. The ballot of 62 new members were re-sealed in the presence of everybody and kept with the Observer. The ballots of 93 old members were counted by the Election Officer and Observer in the presence of all the parties. However, the result was not declared in view of the order passed on 27th March, 2012. Later on, on 11th April, 2012 the Election Officer filed his report as per direction passed earlier in civil suit No.518/2011 by the CS(OS) No.803/2012 Page 9 of 23 Civil Judge.
PLAINTIFFS' CASE
21. The election process was not commenced on 3rd November, 2011, as alleged by the defendant No.2 in his letter dated 14th March, 2012. As per plaintiffs, the appointment of the defendant No.2 took place only on 21st January, 2012 and no agenda or notice was issued till such time. Any resolution passed before this date cannot be said to be a part of an election process. The said letter dated 14 th March, 2012 issued by defendant No.2 who started schedule of election/election process by sending a notice, which was to be displayed on the notice Board of the defendant no.1 for filing of nomination for the election scheduled to be held on 31 st March, 2012 without his jurisdiction. Learned Senior counsel appearing on behalf of the plaintiffs has relied upon the case of the Full Bench of this Court in the case of Ber Sarai Co- operative Vegetable and Fruit Growers Marketing Society Vs. Lt. Governor, Delhi, WP(C)No.3916/1997, wherein it was held:
"The election process has to begin as per Schedule II to Rule 58 of the Delhi Co-operative Societies Rules. No steps in pursuance of the said Schedule have been taken so far. Election process would really commence with taking of steps as per Schedule II. The first step envisaged therein is to fix the date, time and place for convening a general body meeting for the conduct of election of the successor committee and intimating the same to the Registrar by registered post. Nothing of this kind has been done. Mere appointment of Election Officer cannot be said to be beginning of the election process. Nor finalisation of lists of voters can be said to be commencement of the election process. Finalisation of list of voters is at best a step in aid of the election process....."
22. Learned Senior counsel argues that the letter dated 14th CS(OS) No.803/2012 Page 10 of 23 March, 2012 of the defendant No.2 was served on the defendant No.1 at 7:30 p.m. asking the defendant No.1 to make all the necessary preparations like sending notices for election to the eligible members by 15th March, 2012. The motive behind sending the said letter by the defendant No.2 was to exclude 81 members and to elect an Executive Committee by way of casting votes of a group of members of his choice. Thus, sending of letter on 14th March, 2012 was not as per law, Rules and Regulations of the defendant No.1. The election to any Managing Committee of any society is required to be conducted in accordance with its bye-laws. Therefore, the defendant No.2 acted on whims and fancies of the defendant Nos.4 to 15. Counsel in support of his submission has referred to the decision of Division Bench of this Court in Narender Kumar Jain Vs. Govt. of NCT of Delhi, W.P. (C) No.6955/2007, decided on 21st October, 2008, wherein it was held:
".........A person enrolled in the electoral list by an authority empowered by law to prepare an electoral roll or to include a name therein is entitled to cast a vote unless disqualified under sub-sections (2) to (5) of Section 62 of the Representation of the People Act, 1951. A person enrolled in the electoral roll cannot be excluded from exercising his right to cast vote on the ground that he did not satisfy the eligibility requirement as laid down in Section 19 or 27(5) of the Representation of the People Act, 1951....."
It was further held:
".......A Writ Court, or even an appellate forum for that matter, would be justified in entertaining such a plea only if malafides or nepotism or favouritism or bias has been attributed to the Returning Officer......."CS(OS) No.803/2012 Page 11 of 23
23. Learned Senior Counsel appearing on behalf of plaintiffs argued that it was also the past practice of Sangha for enrolling members before election, more particularly Sh. B.K.
Dash (defendant No.15 herein) being Vice President of Sangha had enrolled members even before 3 days prior to the date of election/pooling and they cannot oppose the voting rights of the plaintiffs. Plaintiffs have placed the details of such members which were enrolled in past election before few days earlier and were allowed to cast their votes.
24. It is also argued by him that in the past, all the office bearers have also been enrolling their relatives and friends as members of the defendant No.1 (Sangha), as there was/is no bar in the bye-laws of the defendant No.1 for the same. The relatives of the defendant Nos.4 to 15 were also enrolled as members of the defendant no.1 in the past, list of which was handed over by the plaintiffs‟ counsel, who has also referred to Rules in support of his submission with regard to enrollment of members.
25. It is submitted plaintiffs‟ counsel that the defendant No.1 has always been interested in resolution of the dispute and in fact, the decision was taken in the meeting held on 3rd November, 2011 but the defendant No.2 without any valid reason had raised his objection not allowing them to cast their votes. He states that with the resolution of the disputes in the meeting on 17th December, 2011, nothing survived in the suit filed by defendants No.4 to 15 in the Court of Civil Judge. The said resolution was signed by all the members of the executive committee including the defendant Nos.4 to 15 and plaintiffs were to withdraw the suit pending before Civil Judge listed on 3rd January, 2012 but the same was not withdrawn in order to CS(OS) No.803/2012 Page 12 of 23 take advantage of the decisions taken in the meetings held on 3rd November, 2011 and 17th December, 2011 and they were succeeding in securing all the reliefs sought in the said suit without any contest. Rather they demanded a copy of the resolution dated 17th December, 2011 and their request was allowed by the Court directing defendant No.1 to place on record the said resolution. Thus, it was decided to convene another executive meeting to discuss the above situation and to take further decision of routine nature on 7th January, 2012 itself. Agenda and notices were prepared and sent to all the members of the executive committee including the defendant Nos.4 to 14. These agenda notices were duly served upon them. The meeting was duly convened and 12 were personally present and 2 given written consent and it was decided that the decision taken on 17th December, 2011 was not acceptable in view of the conduct of the defendant Nos.4 to 15. They did not attend the meeting and have not challenged the decision so taken in the meeting held on 7 th January, 2012, therefore, they are not entitled for any relief claimed in their application under Order XXXIX, Rule 4 CPC and the plaintiffs have valid reason to challenge the decision taken by the defendant No.2 in his letter dated 14 th March, 2012 wherein defendant No.2 had raised the objection that newly added members as per meeting held on 3rd November, 2011 and 7th January, 2012 are not eligible to participate in the election of the defendant No.1 scheduled to be held on 31 st March, 2012 and he started schedule of election/election process without applying his mind. Thus, it was necessary to file the present suit when the final list of members was prepared.
It was argued that the plaintiff‟s including similarly CS(OS) No.803/2012 Page 13 of 23 placed members have been duly enrolled as per the bye laws of the Sangha. There is no infirmity in such enrollment. All the objectors namely defendant Nos.4 to 15 were fully aware of the factum of enrollment.
26. The case of the defendant No.1 is almost same as that of the plaintiffs. In case the pleadings and written submission are read carefully, it appears that the defendant No.1 is supporting the case of the plaintiffs. Therefore, it is not necessary to repeat the objection taken by the defendant No.1 to the prayer made in the application under Order XXXIX, Rule 4 CPC filed by defendant Nos.4 to 15.
27. Ms. Pinki Anand, learned Senior advocate appearing on behalf of the defendant Nos.4 to 15 argued that the plaintiffs have sought declaration as legally and validly enrolled members. Unless the suit is finally decided, they cannot get voting right by way of interim order after the election process has been set in motion on 3rd November, 2011.
28. It is also the case of defendant Nos.4 to 15 that the plaintiffs and/or 81 members were not enrolled in consonance of law, they cannot be treated as members of the society as the said issue about their enrolment is yet to be decided in the main matter in view of challenge made by them. However, it is not disputed by their counsel that if the court prima facie come to the conclusion that they are properly enrolled and had become members of the society prior to beginning of election process, then they are entitled to cast their votes. As per the Senior counsel, the process of election is already commenced in meeting held on 3rd November, 2011 when the resolution in respect of election is passed and decision was taken with the consultation of the members of executive committee about holding of election. All requisite formalities were also CS(OS) No.803/2012 Page 14 of 23 completed with the consent of all executive members prior to their enrolment in the society. Thus, question of considering their votes in the final result does not arise. The issue with regard to their enrolment whether valid or otherwise contrary to bye-law can be decided at later stage but as far as result is concerned, the same be declared without considering the votes casted by 62 new members as they were enrolled after the commencement of process on 3rd November, 2011.
29. It is argued by her that the plaint is not signed and verified by plaintiffs No.2 to 56 and others (who are not plaintiffs) but were permitted to cast votes in the order dated 28th March, 2012; they have not even applied for becoming party to the present suit. The plaintiff No.1 is acting on their behalf on the basis of Special Power of Attorney. The said SPA contains a stamp of Notary Public but it does not bear signature of the Notary. The said document has no legal value under the General Attorney Act. Hence, there is no valid plaint before Court on behalf of plaintiff Nos.2 to 56 who have not signed pleadings and vakalatnama in favour of plaintiff No.1.
30. It is submitted that most of the plaintiffs are relatives and employees of the Secretary and the outgoing office bearers and the suit has been filed on their behalf on the basis of SPA which contains forged signatures of the plaintiffs and addresses are also incorrect.
31. Admittedly, the plaintiffs‟ case is that they were enrolled as members of defendant No.1 Sangha in the Executive Committee Meeting dated 3rd November, 2011. A perusal of the Minutes of the EC meeting dated 3rd November, 2011 would show that only 19 donor members were enrolled. The said enrollment of 19 members was withdrawn in the CS(OS) No.803/2012 Page 15 of 23 subsequent Executive Committee meeting dated 17 th December, 2011. The plaintiffs have never challenged the EC decision dated 17th December, 2011. Therefore, it is evident that there was no enrolment of any new member in the EC meeting dated 3rd November, 2011 or after that.
32. The plaintiffs have not disclosed in the plaint about the decision of the Executive Committee dated 17th December, 2011 in respect of the withdrawal of the membership of 19 applicants as donor members. Non disclosure of such material facts amounts to fraud.
33. It is not stated in the plaint that as to when the plaintiffs made an application duly proposed and seconded by a life member and the date of communication of the decision of EC meeting dated 3rd November, 2011 in terms of Article 7 of the Constitution of Sangha. In the absence of these material facts, the claim of the plaintiffs lack foundational facts in the plaint.
34. The defendant No.2 Election Officer stated in his letter that the plaintiffs were declared ineligible by the Election Officer on 14th March, 2012 but the plaintiffs neither raised their grievance before the Election Officer nor before the chairman of GBM. It is the Secretary who raised their grievance before the Election Officer through his letter dated 16th March, 2012. The plaintiffs were not the parties to the suit filed before Civil Judge, Saket. The allegation of the defendant Nos.4 to 15 is that when the Secretary did not succeed before the Election Officer, then Shri Duryodhan Pradhan filed the present suit through the plaintiffs otherwise now can they get the copies of proceedings, orders and documents filed in the suit No.518/2011 in Civil Court, Saket filed by them. It must have been provided to the plaintiffs by Shri Duryodhan Pradhan.
CS(OS) No.803/2012 Page 16 of 2335. It is true that in the meeting of the 3rd November, 2011 itself, a decision was also taken on the issue of admission of nineteen donor members only. In the next meeting which was Executive Committee meeting was held in the Sangha office on 17th December, 2011, which was attended by 21 of the 25 Executive Committee members and said decision was taken to the effect that the matters under serial no.5 and 8 of the Minutes dated 3rd November, 2011 were withdrawn. Agenda No.8 was with respect to withdrawal of 19 donor members. In case minutes of both Executive Committee meetings dated 3 rd November, 2011 and 17th December, 2011 are read together, the following situation emerges:
a) To hold the General Body Meeting and election of the Sangha on 3rd March, 2012. All formalities are to be completed on time.
b) A complete list of members of the Sangha was to be displayed in the Notice Board within two weeks.
c) All the disputes and differences were unanimously resolved.
d) Pending suit No.518/2011 to be withdrawn.
e) Further disputes regarding administrative affairs of the Sangha would be peacefully resolved by the Committee of the defendant No.1.
36. It is not in dispute that the suit was not withdrawn by the defendants No.4 to 15 despite of agreeing in the Executive Committee meeting held on 17th December, 2012 but the said issue in my opinion does not go into the root of the case as when parties appeared before Civil Judge on 21 st January, 2012 in their presence and with the consent of parties Sh. S.C. Nanda was appointed as Election Officer and Sh. G.P. Thareja, retired Additional District Judge, as Observer. Similarly, after CS(OS) No.803/2012 Page 17 of 23 the disposal of review petition, the President and Secretary of society i.e. rival group of defendants No.4 to 15 challenged the order dated 10th February, 2012 dismissing the review application by Civil Judge on filing of CM (M) No.243/2012 and the same was dismissed as withdrawn on 27th February, 2012 with the direction that an election would be held on 31st March, 2012 instead of 3rd March, 2012 as there is a mandate of 14 days of a notice prior to the schedule of election.
It is pertinent to mention here that before filing of review petition and CM (M), the Secretary of the society already received the notice from the Election Officer, defendant No.2, dated 6th February, 2012 who communicated him to provide list of eligible voters and put the list of members on the Notice Board.
37. Incase, the decisions taken in the meetings dated 3rd November, 2011 and 17th December, 2011 are read together, it is clear that there is no decision taken in the meetings about the enrollment of 81 members including the plaintiffs. Therefore, the averment made in the plaint is not correct. From the decision dated 17th December, 2011 rather it is evident that the membership of nineteen donor members who were enrolled in the meeting held on 3rd November, 2011 were withdrawn.
38. With regard to Executive Committee meeting held on 7 th January, 2012 the contention of the plaintiffs is that as the defendants failed to withdraw the suit despite of resolution passed on 17th December, 2011, it was decided to convene another Executive Committee meeting to discuss the situation and to take further decision of routine nature on 7 th January, 2012. Notices were sent to all the members but the defendant CS(OS) No.803/2012 Page 18 of 23 Nos.4 to 14 did not attend the meeting and a decision was taken by the majority not to accept the decision taken on 17th December, 2011 and not to hold the election.
There is no whisper in the plaint about the Executive Committee meeting if held on 7th January, 2012. Factum of such meeting was not disclosed in the plaint. The case of the defendant Nos.4 to 15 is that first time, it came in their knowledge only on 12th March, 2012 in the Executive Committee meeting at the time of the verification of records by the Election Officer and it was rightly referred to by Election Officer in his letter dated 14th March, 2012.
39. There is no force in the submission of the plaintiffs‟ counsel that the reference of said meeting held on 7 th January, 2012 was within the knowledge of the defendant Nos.4 to 15 as no material has been placed by the plaintiffs on record when the suit was filed.
40. In case any meeting was held why the factum of meeting dated 7th January, 2012 was not disclosed in the plaint. Learned Senior counsel appearing on behalf of plaintiffs has submitted that the plaintiff has moved the application for amendment of plaint. The justification given by the plaintiffs that there was a valid meeting held on 7 th January, 2012 is without any force as if any decision is taken in the meeting for postponing the election, why the said fact was not mentioned in the plaint. Even after the said date, there were subsequently court proceedings held on 16th January, 2012, 21st January, 2012 before the Civil Judge and before the High Court on 27th February, 2012 where the consent orders were passed in the presence of parties to conduct the election as fixed by the court, no information of any kind was placed before Court to be effect that election has been postponed in CS(OS) No.803/2012 Page 19 of 23 view of meeting held on 7th January, 2012. Even, Secretary of the Committee filed a review petition which was dismissed by the civil judge, there was no averment about the decision taken by the Executive Committee on 7th January, 2012 not to hold election in terms of decision taken on 3rd November, 2011 and 17th December, 2011. Nothing was mentioned before the Election Officer who wrote various letters prior to 14 th March, 2012 which were replied by the Secretary of the society in the entire correspondence, nothing was referred about the same.
41. The contention of the plaintiffs has no force that the letter written by defendant No.2 dated 14th March, 2012 is without his jurisdiction because of the reasons that in the meetings held on 3rd November, 2011 and 17th December, 2011, do not indicate about the induction of plaintiff as members of the society. The factum of enrollment of the plaintiffs appears to come to the knowledge of the defendant No.2 only on 12th March, 2012 after the process of election already begun and he has within his jurisdiction issued the letter dated 14th March, 2012 informing that they are ineligible to participate in the election and plaintiffs themselves did not raise their grievance before the Election Officer at that time. Thus, it is proper on the part of defendant No.2 who has rightly informed the Secretary of the society to declare them ineligible for voting in the election. The question of past practice as alleged by plaintiffs cannot be a right approach in the present circumstances of the case because of reason that it is a matter of 81 members, the previous example given by the plaintiffs are only for very few members.
42. The Full Bench judgment referred to by the plaintiffs in the case of Ber Sarai (supra) does not help the case of the plaintiffs because in the said case, the Full Bench has clearly CS(OS) No.803/2012 Page 20 of 23 come to the conclusion in para 3 of the judgment that no steps pursuant to the schedule were taken nor the steps were taken to fix the date, time and place for convening a General Body Meeting for the conduct of the election of the Successor Committee and nothing was done in this regard. Therefore, the Full Bench of this Court has come to the conclusion that the process has not begun. However, in the present case, all the formalities were completed. The date of election was fixed on 3rd November, 2011 which was reiterated in the resolution dated 17th December, 2011 not only before the Civil Judge as well as before this Court in CM (M) petition. With the consent of the parties, the Election Officer and Observer were appointed in their presence. All the steps were duly taken as per the agreement arrived at between them before Court. Thus, the facts of the present case are materially different. Similarly, the case of Narender Kumar Jain (supra) is not applicable to the facts of the present case.
43. The plaintiffs cannot take advantage in the present case that since the relatives and friends of defendant Nos.4 to 15 were enrolled as members of defendant No.1 in the past, therefore, there is no harm if they are the relatives and friends of Secretary and President of the present Executive Committee. The said example given by the plaintiffs does not help the case of the plaintiffs on merit. Therefore, the said contention is rejected.
44. As regards the relying upon the meeting dated 7 th January, 2012 and decision taken thereon not to held the election in terms of earlier two meetings held on 3 rd November, 2011 and 17th December, 2011, I totally agree with the submission of Ms. Pinki Anand, learned Senior Counsel, that it is a cooked up story and it was done after rejection at CS(OS) No.803/2012 Page 21 of 23 the review application on 21st February, 2012. There is also no cogent evidence placed on record by the plaintiff at the time of filing of suit in order to show that defendant Nos.4 to 15 were validly informed about any meeting held on 7th January, 2012. Therefore, the said contention of the plaintiffs and defendant No.1 prima facie cannot be accepted at this stage. They may prove the same at the time of trial.
45. At present, there is no valid material on record to show that in the meeting held on 3rd November, 2011 the Executive Committee inducted 81 new members as alleged by the plaintiff in the plaint. The present suit has been filed on the basis of said meeting.
46. Thus, balance of convenience does not lie in favour of plaintiffs and they are not entitled for interim order. Therefore, the votes casted by 69 new/added members in the election held on 31st March, 2012 in terms of orders cannot be considered and final result thus to be announced by defendant No.2.
47. Therefore, the plaintiffs‟ application being I.A. No.5711/2012 is liable to be dismissed as the same devoids any merit. The application filed by defendant Nos.4 to 15 is allowed. Ex-parte interim order is vacated. Election Officer is allowed to declare the result.
48. Lastly, it is necessary to mention here that the plaintiffs in their pleadings as well as in the written submissions have raised serious allegations against the defendant Nos.2 and 3. Both are Advocates. They are the Officers appointed by the Court. The defendant No.2 was appointed as an Election Officer. Defendant No.3 was appointed as an Observer. He is retired Additional District and Sessions Judge. It is stated by the plaintiffs that they have abused the privileges granted to CS(OS) No.803/2012 Page 22 of 23 them by the Bar Council to practice law but they have not acted with fair and impartial manner and this Court should initiate contempt proceedings against them.
I have gone through the letters issued by the defendant No.2 as well as report filed by the defendant Nos.2 and 3. I do not find any illegality in the process of conducting the election. Rather it appears that it was done with fair manner. The allegations are in bad taste and these have been made by the plaintiffs with their vested interest. It is not proper on the part of the plaintiffs to use such language in the pleading without any valid basis. On one hand, plaintiffs are claiming that they have immense faith on Lord Jaganath culture and they are devotees of Lord Jaganath and on the other hand, being devotees, they are leveling such type of frivolous allegations without any evidence. Therefore, the plaintiffs are directed to take appropriate steps to delete the same.
Both applications are disposed of.
Copy of this order be given dasti to the parties under the signatures of Court Master.
CS (OS) No.803/2012 List the matter before Roster Bench on 24th September, 2012 for further proceedings.
MANMOHAN SINGH, J.
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