Billimoria Jehan Bux Tehmuras And ... vs Indian Institute Of Architects ...
2004 Latest Caselaw 1129 Bom

JUDGMENT

V.C. Daga, J.

1. This appeal takes exception to the order of the City Civil Court at Bombay dated 26th August, 2004 passed in Notice of Motion No. 2489 of 2004 in Short Cause Suit No. 2992 of 2004, whereby prayer for interim relief came to be rejected.

The Facts :

2. The facts leading to the present appeal may be stated thus :

The respondent No. 1 is an Indian Institute of Architects registered under the provisions of the Societies Registration Act, 1860. The respondent No. 2 is an Architect by profession. He was holding post of Joint Hon. Secretary of the council of respondent No. 1 for the year 2002-2004. His term with other office bearers has expired on 31st May, 2004.

3. The election programme to elect new council was declared by respondent No. 1. The election to elect new body is to be conducted as per the constitution and byelaws adopted by respondent No. 1. Bye-law No. 22 provides that all the affairs of respondent No. 1 are to be managed by a council which shall be the governing body of respondent No. 1, subject to control by the general body of respondent No. 1. The council holds office for the period of 2 years.

4. The constitution of respondent No. 1 provides for the powers and duties of the President and other office bearers. The procedure for taking election of the Council is provided in byelaw No. 32, which, inter alia; provides that the members of the council shall retire from the office at the end of every two year's term after the last General Body meeting and shall be eligible for re-election unless stated otherwise in the byelaws. That every member offering himself for election as a member of the council, if eligible, is required to be nominated in writing by at least two members of the institute. Every such nomination is required to be sent to the Joint Hon. Secretaries at least 30 clear days before the last General Body meeting accompanied by intimation by the nominee that he will serve, if elected. Byelaw No. 32(e) which is relevant reads as under :

"32. ELECTION OF THE COUNCIL --

(a)      ..... ..... .....
 

(b)     ..... ..... .....
 

(c)     ..... ..... .....
 

(d)     ..... ..... .....
 

(e)      If the number of nomination exceed vacancies, the election shall be conducted as hereinafter prescribed.
 

(i)     The Joint Hon. Secretaries, shall with convenient speed forward a voting paper in the form approved by the Council to every Fellow Associate and Licentiate who has no arrears of subscription to date, at least twenty clear days before the first General Body Meeting. The names of all candidates for election as member of the Council shall be printed in the same type, and in alphabetical order.
 

(ii)     The voting papers duly sealed in accordance with the direction printed thereon, shall reach the Joint Secretaries at least 5 days before the First General Body Meeting and the Joint Hon. Secretaries shall deliver them unopened to the Scrutineers by whom alone them shall be opened and examined."
 

The aforesaid provision would unequivocally go to show that if the number of nomination exceeds vacancies the election is required to be taken.
 

5. The Joint Hon. Secretaries are required to forward voting papers in the form approved by the council to every Fellow Associate and Licentiate as mentioned in Byelaw No. 32(e)(i) of the council. The Joint Hon. Secretaries are also required to receive voting papers duly sealed in accordance with the direction printed thereon and those papers are supposed to reach the Joint Secretaries at least five days before the first General Body meeting and the Joint Hon. Secretaries are required to deliver them unopened to the Scrutineers who alone are empowered to open and examine.

6. The role of the Joint Hon. Secretaries to get the voting papers printed, to forward and receive the same from the voters is the basis of basic challenge to the entire election process since one of the Joint Secretaries i.e. respondent No. 2, is one of the contesting candidates in the said election.

7. At this juncture, it will not be out of place to mention that there are almost approximate 7,000 members of the institute who are voters in the election. Respondent No. 2, the Joint Secretary of the council for the term 2002-2004, is one of the contesting candidates for the post of Hon. Treasurer in the election in question of the council for the year 2004-2006. The voting papers are signed by Joint Hon. Secretary, respondent No. 2 himself. Ballot papers bear his single signature, it is produced on record. The ballot papers were got printed by respondent No. 2 himself. The printed ballot papers, before the same were dispatched to the voters, remained in the custody of respondent No. 2 he being the Joint Hon. Secretary. In this view of the state of affairs, the appellants filed a suit to challenge the elections of the council for the year 2004-2006 and prayed for interim relief in terms of notice of motion which came to be rejected by an order dated 26th August, 2004 by the City Civil Court at Bombay. This order is a subject matter of challenge in this appeal from order.

Consideration :

8. In the factual scenario of the case sketched hereinabove raises a question : Can one expect free and fair election, security and secrecy of the voting papers, especially, when the person contesting election himself gets the ballot papers printed, keeps in his custody, put his own singular signature thereon, forwards it to the voters and receives it from them for being given to the scrutineers for scrutiny. In other words, the issue for consideration is : Will such person, contesting election be not interested in seeing his own bright prospect rather than ensuring purity of election. All these questions need to be considered keeping in mind several instances of rampant malpractices noticed in various elections of societies, clubs and/or various boards or bar councils. The instances of preventing bona fide voters from voting, replacement of and/or tampering with the ballot papers are not uncommon, it is also not unknown that the illegally elected body, most of the time, completes its tenure in the office even before the election dispute is decided on merits because most of the time or invariably the Courts by way of self imposed discipline refuse to interfere with the election process at the interim stage once the same is set in motion. This self imposed discipline of the Courts some times permits the illegal bodies to hold office until the expiry of their tenure. It also results in allowing malpractices in election to stand till the election dispute is resolved finally by the Court, Self imposed discipline not to interfere with the election, process sometimes tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour.

9. The Courts and Tribunals seized of the proceedings within their jurisdiction take a reasonable time in disposing of the same. Our Courts are no longer able to provide solutions in such situation because they are over burdened with cases and their hands are full. As the conclusion of hearing on merits takes considerable time, the parties press for interim relief being granted. Justice delayed is justice denied may sound trite, but definitely has not lost its validity. We have set up number of commissions to go into these issues but problem seems to only expand and grow and no solution seems to be in sight. Under these circumstances, common question which is required to be considered on frequent occasions is : whether the Court would be justified in refusing to grant interim relief in such cases merely because the election process has commenced though illegally.

10. In the case at hand, it is brought to my notice that election dispute of the council of respondent No. 1 for the term 2002-2004 is still pending in the City Civil Court and yet to see final end though the term of the Body has expired on 31st May, 2004.

11. In this case, if the injunction is refused and the trial Court is directed to decide the election dispute the present election dispute will also meet the same fate. The tainted elected body will keep on holding the office of the council until the election dispute in suit is decided. The election dispute in suit will never be decided before expiry of their term. The litigants are getting embolden due to delays in the Courts and indulge in committing rampant illegalities and mal practices just to retain power. This burning problem did receive attention of the Apex Court in the case of Deoraj v. State of Maharashtra, 2004(3) Mh.L.J. (SC) 343 = AIR 2004 SC 7975; wherein the Apex Court observed as under :

"The Courts and Tribunals seized of the proceedings within their jurisdiction take a reasonable time in disposing of the same. This is on account of fair procedure requirement which involves delay intervening between the previous and the next procedural steps leading towards preparation of case for hearing. Then, the Courts are also overburdened and their hands are full. As the conclusion of hearing on merits is likely to take some time, the parties press for interim relief being granted in the interregnum. An order of interim relief may or may not be a reasoned one but the factors of prima facie case, irreparable injury and balance of convenience do work at the back of the mind of the one who passes an order of interim nature. Ordinarily, the Court is inclined to maintain status quo as obtaining on the date of the announcement of the proceedings. However, there are a few cases which call for the Courts leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma, and put the wits of any Judge to test.

Situations emerge where the granting of an interim relief would tantamount to granting final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the consideration of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent.

12. While referring to the above passages of the Apex Court judgment in the case of Deoraj v. State of Maharashtra (supra); I am also conscious of the earlier judgment of the Apex Court in the case of Boddula Krishnaiah v. State Election Commr., A.P., AIR 7996 SC 7595; wherein the Apex Court was dealing with Article 243-O vis-a-vis Article 226 of the Constitution of India. In the said judgment the Apex Court ruled that there is constitutional bar to challenge election process except by an election petition, presented to an Election Tribunal as may be made by or under law by the competent Legislature and in the manner provided thereunder. No such bar is to be found in the case at hand. While observing this, I am also conscious of the law laid down by the Apex Court as well as this Court that unless there is a rare and exceptional case the Court should not grant an interim relief and should not withhold the election process or election result. In the teeth of this legal scenario, the present case is being considered.

13. The trial Court while appreciating legal submissions and while refusing to grant injunction observed as under :

"It can be seen that the entire election exercise is in the hands of Defendant No. 2 who is himself standing for election. The election process is, therefore, likely to be misused by him."

14. In spite of the above finding, the trial Court went on to observe that no specific provision of any bye-law of respondent No. 1 is shown to have been violated and that since the election process has come to fag end no interim relief as prayed could be granted.

15. In my opinion, the trial Court was not justified in observing that no provision of bye-laws of respondent No. 1 has been violated. Under Byelaw No. 32(e)(i) respondent No. 2 is only required to forward ballot papers to the members. He is not authorised to sign or put his signature on the ballot papers. The respondent No. 1, a contesting candidate has put his sole signature on the ballot papers and forwarded it to the voters. This vital aspect and infraction of byelaw have been ignored by the trial Court. As extracted hereinabove the trial Court has recorded finding that entire election process is in the hands of respondent No. 2, who himself was a contesting candidate. A strong prima facie case that the election process is likely to be misused by respondent No. 2 is apparent on the face of record. The appellants cannot be asked to wait till the actual misuse is practised and proved in the Court of law. The elected body would get an opportunity to complete its term without getting the dispute decided before the expiry of its term, if injunction is refused, in my view, there is a strong possibility of misuse of the ballot papers, especially, when the same were got printed by respondent No. 2 himself. The delivery of which, from the printer, is received by him. In particular, he has put his sole signature on the ballot papers and forwarded it to the individual voters under his own signature. He alone is to receive it from the voters. Number of possibilities leading to misuse the authority given to respondent No. 2 cannot be ruled out. The possibility of getting excess identical ballot papers printed and/or replacement of marked ballot papers also cannot be ruled out. It has come on record that ballot papers were sent by Under Posting Certificate (U.P.C.). The mode and manner of dispatch also give sufficient room to play with the ballot papers, especially, when the person incharge of the entire election process himself is one of the candidates contesting the election in question.

16. It is contended that it is the duty of every institute and/or organisation to ensure free and fair election. The question of security of the ballot papers was also pressed into service to ensure the free and fair election. The very absence of security of the ballot papers strikes at the root of the principle of free and fair election. The security and secrecy of the ballot papers is the very basis of free and fair election which provides like blood to parliamentary democracy. If the security of ballot ensuring free and fair election is allowed to be tampered with, it will defeat the public confidence. If it is arrested at the initial stage of the election, it would suppress a wrong and would protect the election process and even to defend the crime, viz. forgery of ballot papers. The principle of security and secrecy of ballot papers ensure free and fair election. In this case, the possibility of fraudulently placed ballot papers purporting to be, but not being ballot papers in ballot boxes cannot be ruled out. In this view of the matter, let me apply the parameters and conditions for grant of interim injunction to the facts of this case.

Parameters for grant of Interim Injunction :

17. The grant or refusal to grant injunction is covered by three well established principles viz. (i) whether the petitioner has made out a prima facie case; (ii) whether the petitioner would suffer irreparable injury; and (iii) whether the balance of convenience lies in his favour. The burden to prove these three necessities lies on the person seeking injunction. Injunction is not granted to a party guilty of delay of who is indulged in suppression of facts. The person seeking injunction must approach the Court with clean hands. The Court has to see whether the claim is bona fide and whether there is a fair and substantial question to be tried.

18. With the above parameters, let me consider what should be the relevant consideration while considering the question as to whether or not prima facie case has been made. The Apex Court in the case of Martin Burn Ltd. v. R. N. Banerjee, AIR 1958 SC 79 held as under :

"..... While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence let it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence........"

The settled uniform judicial opinion derived from various precedents can be summarised in the following words :

"The rule that before the issue of a temporary injunction, the Court must satisfy itself that the plaintiff has a prima facie case, does not mean that the Court should examine the merits of the case closely and come to a conclusion that the plaintiff has a case in which he is likely to be succeed. This would amount to prejudging the case on its merit. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and which is not bound to fail by virtue of some apparent defects. The balance of convenience also has to be looked into." (see AIR 1973 Mad 443 para-12)

19. In arriving at the balance of convenience, the Court has to weigh the mischief likely to be caused to the applicant, if the injunction is refused. At the same time, it has also to compare the prejudice likely to be caused to the other side, if the injunction is granted.

20. Apart from considering prima facie case and balance of convenience, the Court has also to consider as to whether grant or refusal to grant injunction will cause any irreparable injury to the party to the suit. The injury means a legal injury. A lawful exercise of right cannot be described as an injury. So long as the party is acting in the exercise of a right which the law recognizes, it cannot be said that the party is committing any wrong leading to any injury. When as a result of the enquiry in the suit, it is found that the party has not got the particular right, the position would be different, but if on the date of the suit, the party has got the legal right to do a certain act or get a particular act done in a particular manner, then exercise of that right cannot be regarded as a wrong in law nor would its result be regarded as injury.

21. The Court, while considering grant of the interim injunction, has also to keep in mind that temporary injunction is always granted in the aid of final relief. If the final relief is not available to the person seeking interim relief, then no interim relief can be granted in his favour. The Apex Court in the case of Cotton Corporation of India v. United Industrial Bank, AIR 1983 SC 1272 has held :

".... it is indisputable that temporary injunction is granted during the pendency of the proceeding so that while granting final relief the Court is not faced with a situation that the relief becomes infructuous or that during the pendency of the proceeding an unfair advantage is not taken by the party in default or against whom temporary injunction is sought. But power to grant temporary injunction was conferred in aid or as auxiliary to the final relief that may be granted. If the final relief cannot be granted in terms as prayed for, temporary relief in the same terms can hardly if ever be granted. In State of Orissa v. Madan Gopal Rungta, 1952 SCR 28 : (AIR 1952 SC 12) a Constitution Bench of this Court clearly spelt out the contours within which interim relief can be granted. The Court said that an interim relief can be granted only in aid of, and as ancillary to, the main relief which may be available to the party on final determination of his rights in a suit or proceedings. If this be the purpose to achieve which power to grant temporary relief is conferred, it is inconceivable that where the final relief cannot be granted in the terms sought for because the statute bars granting such a relief ipso facto the temporary relief of the same nature cannot be granted ...."

22. It is needless to mention that for a grant of injunction it is not necessary to have a iron cast case. The prima facie case means the case for enquiry. On the aforesaid legal backdrop, I am prima facie of the opinion that the appellants have made out a strong prima facie case and also balance of convenience in their favour. If no injunction is granted and the election, in the manner in which it is being conducted, is allowed to proceed or stand it would do nothing but perpetuate illegality, which is prima facie strongly established.

23. This is rarest of the rare cases wherein a person contesting election himself is the sole incharge of the election process. No one can be a Judge in his own cause. It is, prima facie, difficult to expect free and fair election in such a situation. It is difficult to dislodge the strongly established apprehension of misuse of power which is not only based on prima facie material but on strongly demonstrated evidence. It is also brought on record that respondent No. 2 has not only put his signature on the ballot papers to be used for the elections of the council of respondent No. 1 for the term 2004-2006 but also carried out changes in the instructions given for casting the votes. It is pertinent to note that respondent No. 2 deleted the important instructions as regards the rejection of ballot papers which are as follows :

(a) Entire voting paper will be rejected if the same contains various strokes/tickmarks.

(b) Entire voting paper will be rejected if the voting paper has additional tips then whatever is specified in instruction No. 5.

(c) Entire voting papers will be rejected if any Irregularity is noticed.

(d) Voting is effected by ticking in one type of ink in the box provided, before the name of the contestant.

The appellants have stated that the said changes, by deleting the aforesaid important instructions and mainly as regards use of one type of ink, carried out by respondent No. 2 is nothing but with a view to fulfil his ulterior motives as the said deletion of important instructions which were used to be given to members voters for last several years will certainly lead into easy tampering with the ballot papers. This will consequentially lead into disputes and inevitably to litigations. In my view, such deletion is not without any purpose.

24. The free and fair elections should not only be held but seem to have been conducted to inspire confidence of the voters. Even if respondent No. 2 does not play any mischief with the ballot papers, even then, such election would not inspire confidence of the voters. As a matter of fact, respondent No. 1 is one of the prestigious institutions of the country representing most elite and educated class of the society. It was expected on its part to rise to the occasion by appointing independent person to hold and conduct free and fair election to set good unique example before the country. But they failed to demonstrate high standard independence and impartiality in holding and conducting election to the council.

25. Taking over-all view of the matter, in my considered view, this is a fit case for grant of interim injunction in terms of this order. While granting interim injunction, I make it clear that it would be open for respondent No. 1 to rise to the occasion to hold free and fair election even during the pendency of the suit. Pendency of suit or operation of this interim order shall not come in their way. If they decide to hold fresh election.

26. In the result, the impugned order dated 26th June, 2004 passed in Notice of Motion No. 2489 of 2004 in S.C. Suit No. 2992 of 2004 by the trial Court is set aside. Pending disposal of the suit, defendant/ respondents are restrained from declaring result of the impugned election for the term 2004-2006. However, operation of this order shall not come in the way of the respondents, if they decide to hold fresh elections in accordance with law. Hearing of the suit stands expedited. Trial Court shall treat the observations made herein as prima facie.

Appeal is allowed in terms of this order with no order as to costs.

27. At this stage, learned counsel appearing for the respondents prayed for stay of this order for eight weeks so as to enable them to approach the Apex Court.

Parties were heard on this prayer.

Considering the issues involved, the effect and operation of this order is stayed for a period of eight weeks from today, subject to the operation of earlier ad-interim order of this Court dated 29th June, 2004 during this period.

C.C. expedited.