Bombay High Court
Bungalow vs 7 C. T. Shanghvi on 16 December, 2013
Bench: Anoop V. Mohta
1 1-ao-1324-13 with ao-1356-13 .sxw-18-12-13
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."
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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
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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
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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
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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
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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.
The 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
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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
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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
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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
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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.
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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
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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.
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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
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
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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
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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.
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(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
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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
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
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
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
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
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
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
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
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
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
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
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
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.
The 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
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
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
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
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).
Resultantly, 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.
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.)
