Delhi High Court
Narender Kumar Jain vs Govt. Of Nct Of Delhi on 21 October, 2008
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)6955/2007 & CM Nos. 13208/2007, 13714/2007
# NARENDER KUMAR JAIN ...Petitioner through
! Mr. Jayant Bhushan, Sr. Adv.
with Mr. Amit Gupta, Adv.
-versus-
$ GOVT. OF NCT OF DELHI ...Respondent through
^ Mr. V.K. Tandon, Adv. for RCS
Mr. R.N. Bhardwaj, Adv. for
Respondent No.3
WITH
W.P.(C)6956/2007 & CM Nos.13209/2007, 14385/2007
NARENDER KUMAR JAIN ...Petitioner through
Mr. Jayant Bhushan, Sr. Adv.
with Mr. Amit Gupta, Adv.
-versus-
GOVT. OF NCT OF DELHI ...Respondent through
Mr.V.K. Tandon, Adv. for
RCS
Mr. R.N. Bhardwaj, Adv.
for Respondent No.3
Mr. K.C. Mittal, Mr. Anil
Kumar & Mr. Saurabh
Sharma, Advs. for
Respondent Nos.5 & 7
Date of Hearing : 18th September, 2008
% Date of Decision : 21st October, 2008
CORAM:
* HON‟BLE MR. JUSTICE VIKRAMAJIT SEN
HON‟BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may
be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be
reported in the Digest? Yes
WP(C)6955/2007 Page 1 of 33
VIKRAMAJIT SEN, J.
JUDGMENT
1. Learned counsel for the parties submit that the pleadings
are complete and on their request we have heard Final
Arguments. Therefore, we shall proceed to deliver the
Judgment.
2. These Writ Petitions have been filed by nine persons, all of
whom were declared elected to the Board of Directors of
Respondent No.3, namely, Jain Cooperative Bank Ltd. („Bank‟
for short) in the Elections held in December, 2006. The
Petitioners have assailed the Order dated 3.8.2007 passed by
the Delhi Cooperative Tribunal („Tribunal‟ for short) which
declared the elections to the Board of Directors of the Bank as
void ab initio and set it aside. These Orders were passed in
Appeal No.171/2006 filed by Respondents 4-6, and in Appeal
No.158/N/2006 filed by Respondent No.7. On 21.9.2007 the
Division Bench comprising Mukul Mudgal and Reva Khetrapal,
JJ. in WP(C) No.6956/2007 had stayed the operation of the said
Order dated 3.8.2007. Writ Petition No.6955/2007 assails the
Order dated 28.8.2007 of the Registrar of Cooperative Societies
appointing an Administrator for the Bank. The same Division
Bench had stayed the operation of that Order on the same date,
that is, 21.9.2007.
3. Virtually at the end of the arguments an important
question has cropped up which we propose to tackle at the very
threshold. This conundrum is whether an appeal under Section
112 of the Delhi Cooperative Societies Act, 2003 („DCS‟ Act for
short) is maintainable; or whether the aggrieved parties ought
to have taken recourse to Section 70 of the DCS Act in terms of
which ventilation of grievances has been provided for through
the aegis of arbitration.
4. Section 112 is found in Chapter-XII which is a pandect
comprising Sections 112-117 dealing with "Appeal, Revision and
Review". Section 112(1) enumerates the incidents against which
an Appeal is maintainable. Sub-Section (d) speaks of "disputes
relating to election under section 35"; sub-section (i) refers to
"any decision made under section 70". The enumeration
covered by Section 112 (a) to (q) are 17 in number, all of which,
excepting for sub-sections (d) & (i), refer to decisions/orders
that may have been taken under the sundry sections of the
statute. Section 70 falls in Chapter-VIII which is a fasciculus
dealing with „Settlement of Disputes‟. Section 70(1) commences
with a non obstante clause and covers any dispute touching the
constitution, management or the business of a cooperative
society. The generality of this Section is abundantly clear from
the fact that the only exception thereto, catered for in the
Section itself, pertains to disputes regarding disciplinary action
taken by the cooperative society or its committee against its
paid employee. The general application of this Section is not
circumscribed by sub-clauses (a) to (d) and is, therefore,
illustrative in character. Nevertheless, disputes relating to
elections of the officers would be covered by sub-clause (b)
which refers to disputes "between a member, past member or
person claiming through a member, past member or deceased
member and the cooperative society, its committee or any
officer, agent or employee of the cooperative society or
liquidator past or present; ....." Election disputes would also
clearly fall in sub-clause (a) being controversies "among
members". Sub-section 4 (a) (iv) of Section 70 prescribes that
"when the dispute is in respect of an election of an officer of a
cooperative society be thirty days from the date of the
declaration of the result of the election". This is also indicative
of the position that election disputes are governed by
Section 70.
5. Section 35 of the DCS Act covers „election and nomination
of members of committee‟ and lays down in its first sub-section
that - "the superintendence, direction and control of the
preparation of the electoral rolls for, and the conduct of
elections of the members of the committee of a cooperative
society shall be vested in the committee which shall appoint
returning officer who shall not be a member or an employee of
the society". Sub-Section (3) mandates that elections must be
held every three years. Sub-section(6) stipulates that - "no
person shall be eligible to be elected as a member of the
committee of a cooperative society unless he is a shareholder of
the cooperative society". Conspicuously, the Section itself
requires that the shareholder seeking election shall not be a
defaulter.
6. Section 25(d) prescribes that "if a member is in default of
payment of the sum demanded by the cooperative society ... he
shall have no voting right in the General Body Meeting of the
Cooperative Society". Explanation I thereto clarifies that the
term „default‟ means any default in payment of loan instalment,
land money, construction money and annual subscription
payable as provided in the bye-laws of a cooperative society for
which due notice for payment has been served on the member
or an award has been passed for recovery of such sum. This
Explanation, as will become manifest, has generated
considerable debate before us.
7. Having given the controversy careful cogitation, our
conclusion is that matters relating to the elections would stand
covered by Section 70 of the DCS Act. Disputes of this category
must, therefore, be decided through arbitration. On a perusal of
the entire gamut of Section 35 disputes arising therefrom would
relate to secret ballots, term of office of the elected members,
holding or failure to hold elections, eligibility or disqualification
for sending for elections and representation on behalf of the
Government if it has subscribed to the share capital of
cooperative society. This confusion could have been avoided if
care had been taken in drafting of Sections 35 and 70. Since it
has not been the case of the Petitioners before us at any stage
that the Appeal decided by the Tribunal was not maintainable,
we think it inexpedient to set aside the impugned Order on this
technical ground. It is obvious that all the parties proceeded on
the assumption that the Appeal before the Tribunal was
maintainable. There can be no gainsaying that it is only in an
exceptional case that evidence is recorded by the Appellate
Forum. Disputes pertaining to elections invariably raise
disputed questions of fact which cannot conveniently be decided
in appellate proceedings. This is another reason which has
persuaded us to hold that election disputes, under the DCS Act,
must be decided through arbitration, as per Section 70 of the
DCS Act and against the decision or Award published thereon,
an appeal would lie under Section 112. We are fortified in this
view by the decision in New Friends Cooperative House
Building Society Ltd. -vs- Rajesh Chawla, (2004) 5 SCC 795
where it has been observed that "separate forums are available
in the statutory governing and functioning of cooperative
society.....Assuming without accepting that the stand taken for
the alleged defaulters can be entertained and gone into in the
course of conduct of election, it could, if at all, be only for the
limited purpose of election and the right of the Society or the
member for having their rights and liabilities finally and
effectively get adjudicated by arbitration proceedings statutorily
provided for under the statute in lieu of proceedings before the
civil court, and the conclusions arrived at or recorded in the
course of election proceedings shall be only without prejudice to
and ultimately subject to all or any such proceedings and
decisions by such statutory forums".
8. This brings us to the debate, the fulcrum of which is the
electoral rolls. The Tribunal has dwelt in detail on this
contentious issue. Appeals were filed before the Tribunal by
Respondent No.7, and jointly by Respondents 4-6. In the
proceedings before us, although a Vakalatnama has been filed
on behalf of S/Shri J.K. Jain and Sanjay Jain, Respondents 4-6
respectively, no representation or argument has been made on
their behalf. Respondents 5-7 have been represented by
Mr. K.C. Mittal, Mr. Anil Kumar and Mr. Saurabh Sharma,
Advocates. Respondent No.4, who was the erstwhile Chairman
of the Society, has obviously discontinued representation in
these proceedings for tactical reasons. These reasons palpably
are that the Petitioners, of whom Petitioner Nos.2, 5, 8 and 9
were members of the previous Board of Directors, have sought
to fasten blame on the previous Management, which included
Respondent No.4 as the Chairman, for failure to draw up a
proper List of Members. Respondents 5-7, in their own turn,
have vociferously attacked the previous Management for these
very alleged transgressions and it would have been inconvenient
and incongruent for them to do so if Respondent No.4, who had
jointly filed the Appeal before the Tribunal with them, was
present in these proceedings. In our opinion, neither side can
derive any benefit from the actions or inactions of the previous
Board of Directors. Malafides, therefore, weigh equally on both
sides. Regardless of the fact that Petitioners 1, 3, 4, 6 and 7
were not part of the previous Management, they have now
decided to align themselves with Petitioners 2,5,8 and 9. It is
indeed ironical that vicissitudes of elections can so quickly
transform inveterate bedfellows into strangers, if not virulent
adversaries.
9. Mr. K.C. Mittal contends that the widespread errors in the
electoral rolls and the fact that Defaulter Members were
permitted by the Returning Officer to cast their votes vitiates
the elections so substantially and completely that the Writ Court
has no alternative but to countermand them. Mr. Bhushan,
learned Senior Counsel for the Petitioners, however, submits
that this was not the grievance of the contesting Respondent
Nos.5-7 in the Appellate proceedings and could not have been
legitimately agitated by Respondent No.4 since he was most
intimately and influentially involved in the affairs of the Society
at the relevant time. It is for this reason, according to him, that
Respondent No.4 has chosen to absent himself from the present
proceedings since otherwise he would be guilty of simultaneous
approbation and reprobation. The decision in J.H. Patel -vs-
Subhan Khan, (1996) 5 SCC 312 persuades us to ignore the
complaint of Respondent No.4 before the Tribunal, pertaining to
so-called Defaulters casting their vote, on the simple premise
that he was instrumental more than any other person in this
malady since he was at the helm of the management of the
Society at the relevant time.
10. Two Constitution Benches have delivered Judgments
within a month of each other on this interesting issue, namely,
Jabar Singh -vs- Genda Lal, AIR 1964 SC 1200 and Ram Sewak
Yadav -vs- Hussain Kamil Kidwai, AIR 1964 SC 1249. On a
perusal of both the Judgments, it is evident that they are of the
same opinion. For the purposes of the present Petition the
gravamen of these decisions is that a petition for setting aside
an election must contain an adequate narration of the material
facts which the Petitioner relies on to make good his case. It is
only when precise pleadings are present that the Tribunal, if
prima facie satisfied that an inspection of the ballot papers is
necessary, should proceed to do so. Flowing from the first
proposition, it is palpable that an order of inspection of ballot
papers should not be granted to support vague pleas made in
the petition not supported by material facts; inspection should
not be carried out where the petition is merely a fishing or
roving inquiry. As a logical corollary, the onus is always on the
petitioner to show that the result of the election has been
materially affected as a result of improperly cast votes in favour
of the returned candidate or incorrectly refused or illegally
rejected votes with regard to any other candidate. Ram Sewak
was followed in Sumitra Devi -vs- Shri Sheo Shanker Prasad
Yadav, AIR 1973 SC 215. It was reiterated by the Three-Judge
Bench that if the allegations in a petition are vague, and the
evidence adduced by the petitioner is found unreliable, it would
be inappropriate to inspect the ballot papers. Furthermore, this
case lays down that a recount will not be granted as a matter of
right. In Charan Dass -vs- Surinder Kumar, 1995 Supp (3) SCC
318, also predicated on Ram Sewak, the Petitions were
rejected on the ground that even after considering the entire
material the allegations were very vague. In P.T. Rajan -vs-
T.P.M. Sahir, AIR 2003 SC 460 a Three-Judge Bench observed
that for obtaining the relief of declaring the election as void it
was imperative "to show that amendment, addition, or deletion
in electoral roll after 3:00 P.M. on 23.4.2001 had indeed
materially affected the result of the election". The second
grievance that counting agents were kept away was also turned
down. T.A. Ahammed Kabeer -vs- A.A. Azeez, AIR 2003 SC 2271
follows Ram Sewak.
11. In Santosh Yadav -vs- Narender Singh, (2002) 1 SCC 160
their Lordships have cautioned against jural interference in the
result of an election unless it is pleaded and proved that the
result was materially affected by the impropriety complained of.
In Virender Nath Gautam -vs- Satpal Singh, AIR 2007 SC 581
their Lordships drew a distinction between material facts and
particulars. The Petitioner had pleaded by reference to the
electoral rolls firstly that persons who had already died had
mysteriously cast votes and secondly that there were sixty
instances of double votes. It was in these circumstances that
the case was remitted back to the High Court for a fresh
decision. Most significantly, so far as the case in hand is
concerned, Respondent No.4 had not recorded any objection to
the electoral rolls at any previous point in time. We have given
careful consideration to the aspect of the proper time to voice
objections to any aspect of the election process, and especially
to the proper legal remedy in this regard.
12. This brings to the fore what appears to us to be the vexed
question of the stage at which the electoral process commences
and to the role of Courts in entertaining grievances pertaining
to the elections. It is now firmly entrenched in our
jurisprudence relating to elections to Parliament and/or to the
Legislatures that it is wholly inappropriate and improper for any
Court to interdict or impede the completion of the electoral
process once it has commenced. The leading authority on this
aspect of the law is N.P. Ponnuswami -vs- Returning Officer,
Namakkal Constituency, AIR 1952 SC 64 : [1952] 1 SCR 218.
The Constitution Bench had given full effect to Article 329 of the
Constitution of India which proscribes interference at any
intermediate stage of elections. This was even in the face of the
following pithy passage from Sarvothama Rao -vs- Chairman
Municipal Council, Saidapet, (1924) ILR 47 Mad. 585 AT 600,
which also admirably articulates the reservations which we had
entertained:
I am quite clear that any post election remedy is
wholly inadequate to afford the relief which the
petitioner seeks, namely, that this election, now
published be stayed, until it can be held with himself
as a candidate. It is no consolation to tell him that he
can stand for some other election. It is no remedy to
tell him that he must let the election go on and then
have it set aside by petition and have a fresh election
ordered. The fresh election may be under altogether
different conditions and may bring forward an array
of fresh candidate. The petitioner can only have his
proper relief if the proposed election without him is
stayed until his rejected nomination is restored, and
hence an injunction staying this election was
absolutely necessary, unless the relief asked for was
to be denied him altogether in limine. In most cases
of this kind no doubt there will be difficulty for the
aggrieved party to get in his suit in time before the
threatened wrong is committed; but when he has
succeeded in so doing, the Court cannot stultify itself
by allowing the wrong which it is asked to prevent to
be actually consummated while it is engaged in trying
the suit.
13. Ponnuswami has been favourably received in several
subsequent decisions of the Supreme Court of India, including
Dr. Narayan Bhaskar Khare -vs- Election Commission of India,
AIR 1957 SC 694, Mohinder Singh Gill -vs- Chief Election
Commissioner, (1978) 1 SCC 405, The Election Commission of
India -vs- Shivaji, AIR 1988 SC 61, Ram Phal Kundu -vs- Kamal
Sharma, (2004) 2 SCC 759 and Manda Jaganath -vs- K.S.
Rathnam, (2004) 7 SCC 492. We have harboured some doubts
as to whether this exposition of the law would apply to elections
of societies and bodies other than Parliament and Legislatures
for two reasons - (a) because the constitutional provision, such
as Article 329, do not apply, (b) because the remedy is not
legally circumscribed by a statute such as the Representation of
the People Act, 1951 and (c) because the electoral rolls are not
finalised before the Notification or Declaration of the Elections.
Our study, however, discloses that neither of these points is
relevant. The conclusions found in Paragraph 25 of
Ponnuswami indicates that their Lordships have not found any
distinction between elections to Parliament and Legislatures
and other elections, and because it is their opinion that if a
statute provides that a remedy shall be before a special Tribunal
by means of an election petition, legal recourse should be taken
to that remedy alone. This is evident from the following
passage:-
25 (2) In conformity with this principle, the scheme of
the election law in this country as well as in England is
that no significance should be attached to anything
which does not affect the "election:" and if any
irregularities are committed while it is in progress and
they belong to the category or class which, under the
law by which elections are governed, would have
the affect of vitiating the "election" and enable the
person affected to call it in question, they should be
brought up before a special tribunal by means of an
election petition and not be made the subject of a
dispute before any court while the election is in
progress.
14. The decision in Shri Sant Sadguru Janardan Swami
(Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha -vs-
State of Maharashtra, AIR 2001 SC 3982 was rendered in the
context of the Maharashtra Cooperative Societies Act, 1960 and
the several decisions pronounced on the subject by the Bombay
High Court. The Apex Court had observed that the "preparation
of the electoral rolls is an intermediate stage in the process of
election of the Management Committee of a specified society
and the election process having been set in motion, it is well-
settled that the High Court would not stay the continuance of
the election process even though there may be some alleged
irregularity or breach of rules while preparing the electoral
rolls". These observations, however, stand subsequently
clarified by their Lordships in Pundik -vs- State of Maharashtra,
AIR 2005 SC 3746, the facts of which case were that the
Managing Committee had decided to send the name of the
Appellant instead of Respondent as the delegate to the election
of the apex Society, strictly in conformity with the Rules and
Regulations. The Collector, however, refused to recognise the
change of the delegate. The High Court took the view that the
preparation of the electoral rolls or voters‟ list, being an integral
process of election, precluded the Court from interfering at that
stage. After adverting to Sant Sadguru their Lordships in
Pundik noted that "normally the High Court would not interfere
in exercise of powers under Article 226 of the Constitution at
the stage of preparation of list of voters but such action must be
in accordance with law". Sant Sadguru was distinguished and
the decision of the High Court declining to exercise jurisdiction
under Article 226 of the Constitution of India was set aside. So
far as the election of cooperative societies in Delhi are
concerned, Schedule-II of the repealed legislation as well as the
extant statute and Rules, postulates the preparation of the
electoral rolls or voters‟ list together with the defaulters‟ list are
required to be forwarded to the Registrar, thirty days prior to
the elections. This is obviously so ordained in order that
remedial action that can be taken by any aggrieved party. This
hiatus or interregnum is not a meaningless one. The position in
Maharashtra and Delhi is different in essential respects. Since
none of the learned counsel for the parties have argued that an
infraction of Schedule-II has occurred in that the List(s) had not
been forwarded to the Registrar within the stipulated period, we
do not think it proper to apply these observations to the case in
hand.
15. Manda Jagnath was also delivered by the Apex Court in
the context of Article 329 of the Constitution of India and the
Representation of the People Act, 1951 in a factual matrix
where the Returning Officer had declined to permit the use of
an election symbol to one of the candidates who had to stand as
an independent and not as the official party candidate. Their
Lordships opined that the Returning Officer had exercised the
discretion vested in him in a proper and sound manner, and
accordingly the High Court was not justified in interfering with
his decision. The Court‟s analysis was that both Ponnuswami
and Gill had not totally prohibited any intervention by the High
Court under Article 226 of the Constitution. Their Lordships
thereafter succinctly enunciated the law in these words:-
18. Of course, what is stated by this Court hereinabove
is not exhaustive of a Returning Officer‟s possible
erroneous actions which are amenable to correction in
the writ jurisdiction of the courts. But the fact remains
that such errors should have the effect of interfering in
the free flow of the scheduled election or hinder the
progress of the election which is the paramount
consideration. If by an erroneous order conduct of the
election is not hindered then the courts under Article
226 of the Constitution should not interfere with the
orders of the Returning Officers, remedy for which lies
in an election petition only.
What is significant is that if the Supreme Court proscribed all
and every interference by the Writ Court in the election process
a fortiori, where there is no statutory embargo prescribed
against the conduct of elections jural interference as a
consequence of an intercession by a candidate in any other
election should not be rejected or repulsed by the Court
especially where it appears that the election would eventually
be nullified. Large scale irregularities in the Electoral Rolls
would certainly call for injunctory relief.
16. Shutting out of interference by a Writ Court at an
intermediate stage of elections to Parliament or the Legislatures
is predicated on pragmatism and therefore the Court should be
circumspect in impeding the conclusion or culmination of the
election process even to other bodies. The Court must
constantly be vigilant not to entertain frivolous or malafide
litigation. There is no gainsaying that the endeavour of persons
in power is to perpetuate their tenures by idle and disguised
jural challenges to the conduct of the elections. In L. Chandra
Kumar -vs- Union of India, AIR 1997 SC 1125, a Seven-Judge
Bench, the Supreme Court has struck down statutory restraints
to writ petitions reiterating that the extraordinary jurisdiction of
the High Courts under Article 226 of the Constitution of India is
the repository of judicial conscience and therefore brooks no
suppression. However, this extraordinary jurisdiction should not
be trivialized or made mundane. So far as elections to bodies,
other than Parliament and the Legislatures are concerned, it
would be salutary and in public interest to ignore trivial
infractions and concentrate on serious violations which have the
effect of completely frustrating the object of the elections. Run
of the mill complaints can completely and comprehensively be
considered by the Court after the conclusion of the elections.
However, if it is patently clear that the process adhered to by
the Returning Officer is likely to prevent and not promote an
election, judicial review would facilitate the flow rather than
stopping the stream. Refusing to intervene may, in such cases,
result in there effectively being no elections at all. We are really
making no departure or deviation from the law declared by the
Supreme Court in directing that in the context of election of
societies or bodies other than Parliament and the Legislatures,
the electoral process should be seen to commence only after the
finalisation of the electoral rolls. There must be a hiatus
between this exercise and declaration or notification of the
schedule of elections. At the second stage the Writ Court or the
Civil Court would interfere with the election process in very rare
or extraordinary situations. Since there are no statutory
constraints in the exercise of jurisdiction of the Writ or Civil
Courts so far as elections to societies and other bodies are
concerned and keeping in perspective the fact that post the
declaration of the result of election the aggrieved party must
show that the act complained of has materially affected the
outcome of the election, curial concern is not completely
curtailed. A challenge to the electoral rolls should properly be
brought within the hiatus between the completion of the
electoral rolls and the declaration of the schedule of elections.
There may still be circumstances in which Courts may interdict
the elections, for example, where the Returning Officer has
erroneously permitted a voter to cast more than one vote since
this erroneous decision or practice may not have manifested
itself only after the schedule of elections has been publicised.
However, this would be one of the extreme, extraordinary or
rare instances where the Court would be competent to redress
the grievance, even though it may have the consequence of
delaying the election for a short period. After all, there is no
purpose in punctiliously conducting or going through the
motions of an election, if it is ultimately found that a legally
proper, sustainable and meaningful election has not been held.
A reading of DCS Act, 2003, as well as its precursor, shows that
a hiatus between the preparation of the electoral rolls and the
Notification of the elections has been preserved. Section 35 of
the DCS Act, 2003 clarifies that the superintendence, direction
and control of the preparation of the electoral rolls vests in the
Committee. For the present purposes, Schedule-II which
prescribes the procedure for the conduct of elections of the
Committee, inter alia envisages that it is the Committee that
shall prepare a List of Members as it stood on thirty days before
the date fixed for the inviting of nominations and shall publish
this List not less than ten days prior to the date fixed for inviting
nominations. The repealed Rules are substantially similar except
that the time allotted earlier was forty-five days for publishing
the List. It is our opinion that the repealed as well as extant
statues and rules consciously place a bifurcation between the
preparation of the Lists and the commencement of the electoral
process. The electoral process starts with the invitation of
nominations, appointment of a Returning Officer and the
notifying of the schedule of elections. Although this is not one of
the points raised before us in these proceedings, we direct that
the above analysed provisions of the Act and the Rules must be
meticulously maintained in all elections of cooperative societies
to which the DCS Act applies.
17. We would like to emphasise that an aggrieved party must
record its objections to any perceived irregularities in the
elections; nay it must reduce its remonstrations into writing
before the Returning Officer as a pre-condition for challenging
the elections after their culmination. This is what has not
happened in the case in hand obviously because the persons
who were in control of or responsible for the management of the
Society were themselves in default. Indeed, the erstwhile office-
bearers are now on either side of the watershed of the array of
parties because some have succeeded whilst others have failed.
18. There are two other factors which have weighed heavily
on our minds. The first of them is that none of the parties before
us have even faintly touched upon the aspect of whether the
persons on the Defaulters‟ List had or had not paid their dues in
response to the opportunity afforded for this purpose by the
Returning Officer and thereafter had exercised their right of
franchise. It is not in controversy that the Returning Officer, in
the Agenda Notice dated 17.10.2006, had informed all
concerned that if the defaulter members "make the payment of
their amount in default before the date of the filing of
nomination to the bank and produce the proof thereof before the
Returning Officer, they will not be treated as defaulters and
shall be allowed to contest the election and/or cast their vote. It
is notified that the Bank has supplied a list of defaulter
members which is available with the Returning Officer and
displayed at Notice Board of Bank and/or of the Returning
Officer and can be inspected by members before filing of
nominations". In writ proceedings it would not be proper for us
to go into this question on our own initiative and especially so,
since it has not been dealt with in the pleadings. The other
aspect is that there are hundreds of members on the Defaulters‟
List against whom arbitration proceedings are not pending, or
an Award had not been pronounced, or execution proceedings
had not been initiated, or complaints under Section 138 of the
Negotiable Instruments Act, 1881 („NI Act‟ for short) were not
pending, or any other civil action had been initiated. The
interpretation of Explanation I, which commends itself to us, is
that these persons would have been eligible to participate in the
elections in any capacity. The number of members falling in this
category are indeterminate and, therefore, we ought not to walk
down this avenue in writ proceedings.
19. Mr. Mittal has drawn our attention to a Single Bench
decision of Punjab & Haryana High Court in The Batala, Wood
Works Co-operative Industrial Society Limited -vs- The
Registrar Co-operative Societies, Punjab, Chandigarh, 1978
P.L.J. 344. It does not advance the case of the Petitioners even a
whit for the simple reason that none of the contesting
Respondents had recorded their objections to the preparation of
the electoral rolls or to the factum of defaulting members being
allowed to cast their votes. Although the decision in Election
Commission of India -vs- Ashok Kumar, AIR 2000 SC 2977 is
included in the cases cited on behalf of the contesting
Respondents, Mr. Mittal has obviously not adverted to it since
the ratio militates against the interests of the Respondents.
Their Lordships had reiterated that it was improper for the High
Court to direct suspension of the Notification amidst progress of
election proceedings. The same opinion has been expressed in
Madhukar Ganpatrao Somvanshi -vs- Sheshrao Narayanrao
Biradar, [(3) Co-op. Cases 293] where it has been observed by
the Division Bench that it is "very vital for the public
administration that elections are held in time according to the
schedule notified and that they are not delayed on account of
individual grievances of a candidate".
20. Although Bar Council of Delhi -vs- Surjeet Singh, AIR
1980 1612 has been relied upon by Mr. Mittal, Mr. Bhushan, in
Rejoinder, has justifiably contended that it is actually in favour
of the contentions of the Petitioners. Mr. Mittal had argued that
principles of estoppel cannot be applied against the
Respondents on the strength of this decision since it was held
that merely because the petitioner had stood as a candidate or
had exercised his franchise, he would not automatically be
precluded from challenging the election which had been held on
the basis of what was found to be an illegally prepared electoral
rolls. The distinguishing feature of the Bar Council of Delhi is
that that case was not one "of challenging the preparation of the
electoral rolls on the factual basis of wrong exclusion of a few
names.....The illegal preparation of the electoral rolls by the
Delhi Bar Council on the basis of the invalid proviso to Rule 3(j)
goes to the very root of the matter and no election held on the
basis of such an infirmity can be upheld.....The contesting
respondents could not be defeated in their writ petitions on the
ground of estoppel or the principle that one cannot approbate or
reprobate or that they were guilty of laches". So far as the
present case is concerned, none of the Respondents had
objected to the preparation of the electoral rolls or to the
Returning Officer allowing so-called Defaulters to cast their
votes. Entertaining this plea, post the declaration of the
Elections at the instance of the defeated candidates, would
amount to approbation or reprobation which Courts have always
looked at askance. We, therefore, find no merit in the arguments
raised by the Respondents. The grievance of Respondent No.7,
who lost by two votes, is, therefore, devoid of merit.
21. We think it important to clarify Explanation I to Section
25(d) of the DCS Act. Reference to the existence of an Award
poses no problem. The rather nebulous phrase "due notice of
payment", however, leads legitimately to debate. The necessity
for issuing a notice to the affected member for payment of dues,
being an incidence of the audi alteram partem rule, brooks no
dissent. The format of legal notices, however, is amorphous. In
the present case, learned counsel for the Respondents have
contended that several members were issued notices under
Section 138 of the NI Act and legal proceedings had also been
initiated thereafter, much before the present elections.
Wherever this is so, or if litigation of any nature has
commenced, we think that the audi alteram partem rule stands
satiated and satisfied since the member defending such legal
action would be fully aware that so far as he is concerned, the
Society considers him to be a Defaulter. We clarify that these
observations have been made as a general clarification of the
said Explanation even though it could not be applied to the
present controversy since this is not one of the principal or
original grounds on which the election had been challenged
before the Tribunal. The question of failure to issue notices to
the Defaulters was raked up only in the Rejoinder filed before
the Tribunal, thereby frustrating, if not foreclosing any
opportunity that the Petitioners may have had to completely
controvert the accusations. Jeet Mohinder Singh -vs- Harminder
Singh Jassi, 1999(9) SCC 386 is an authority deprecating the
introduction of fresh grounds at the Rejoinder stage. In any
event, it would be speculative and presumptuous for any person
to contend that the whole or the majority of persons erroneously
included in the electoral rolls would have voted in a particular
manner or for a particular candidate. In Paokai Haokip -vs-
Rishang, AIR 1969 SC 663 there was not merely a change of the
venue but also disturbance and firing in the Constituency. The
Court repulsed and rejected the argument that the voters who
could not exercise their franchises would have voted for a
particular candidate. It was opined that - "it is not possible for
anyone to predicate how many or which proportion of votes will
go to one or the other of the candidates". Similar views have
been expressed in Shyamdeo Pd. Singh -vs- Nawal Kishore
Yadav, AIR 2000 SC 3000 in these words:
24. To sum up we are of the opinion that inclusion
of person or persons in the electoral roll by an
authority empowered in law to prepare the electoral
rolls though they were not qualified to be so
enrolled cannot be a ground for setting aside an
election of a returned candidate under sub-clause
(iii) or (iv) of clause (d) of sub-section (1) of Section
100 of the Representation of the People Act, 1951.
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.
22. There is no inflexible rule that a recount must be
ordered in every case where the margin of success or
defeat is slender and extremely narrow. The discretion to do
so is vested in the Returning Officer. 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. This is absent in the case in hand. No further
discussion is necessary in the light of R. Narayanan -vs- S.
Semmalai, (1980) 2 SCC 537. Their Lordships opined first that
"recount should be ordered not on possibility of error but when
the matter is proved with absolute certainty" and second that a
narrow margin "would not by itself vitiate the counting of votes
or justify recounting of the votes".
23. Reliance has also been placed on the decision of the
Constitution Bench in Kirpal Singh -vs- Uttam Singh, (1985) 4
SCC 621 where it has been opined that an election may be
set aside if the fault is ascribable to the winning candidate
and no contributory fault can be laid at the door of the
losing candidate. As we have repeatedly noted, Respondent
No.4 was the Chairman of the Society and it was his
responsibility to ensure that a true electoral roll was
prepared. This was also the responsibility of half the
Petitioners (who have again succeeded in the election). So
far as these parties are concerned, they were equally
blameworthy and cannot be heard to complain against each
other. Half the Petitioners, however, have legitimately
succeeded in the elections and if these are countermanded,
newly elected members would suffer for no fault of their
own. This is also an important factor which has persuaded us
in allowing the Writ Petitions. So far as the Tribunal is
concerned, it has returned a finding which is not entirely
correct to the effect that both sides were well aware of the
irregularities but had chosen not to object in the hope that
they would win the elections.
24. Finally, we must consider the complaint of misconduct
in the manner in which the Ballot Boxes were handled and
the counting of ballots was completed. As has already been
noted above, pleadings must be precise and should
unambiguously articulate and spell out the grounds that are
sufficiently significant to countermand the elections. These
writ proceedings have been actively and properly contested
by Respondents Nos. 5 and 7 only. We may reiterate that
Respondent No.7 was essentially aggrieved by the fact that a
recount had not been allowed by the Returning Officer. The
legal regime governing a demand for a recount has already
been dealt with by us above. We also think it necessary to
reiterate the fact that Respondent No.4 has not contested
these proceedings after filing his Counter Affidavit.
Respondent No.6 chose the same course of conduct as
Respondent No.4. That leaves us with Respondent No.5 who
pleaded before the Tribunal that "no proper account of the
ballot paper used and found in the boxes was kept by the Ld.
Presiding Officer when the counting was over, one of the
agents of the appellants observed that number of used and
stamped ballot papers were lying in a corner......This
material irregularity has vitiated the election and there is
reason to believe that other papers may have not been
accounted for similarly......That the Ld. Presiding Officer
postponed the counting of the votes which was resented by the
appellants and other contestants for the reason that the same
left scope for manipulations.....It was observed that the
identification slips were issued in bulk by the interested
elements and the same were misused for casting bogus votes in
connivance with certain employees of the bank". These
pleadings are far too vague to persuade us to set aside
the elections. For example, the name of the agent should
surely have been mentioned. Furthermore, it is not that the
mishappenings had not been taken heed of by the
Returning Officer. He has himself mentioned that these
disturbances had occurred when counting had commenced
on 3.12.2006. He has stated that it was for this reason
that he postponed counting, even in the face of the
opposition of some of the Petitioners and Respondents No.4-7.
The Returning Officer has been vehemently and
categorically assertive in stating that after the counting had
resumed on the following day, that is, 4.12.2006, it was
concluded to his satisfaction. There is no material before
us which would have us hold that the certification of the
Returning Officer is flawed. On the contrary, the manner
in which he has conducted the elections has been found
fault with only by the defeated candidates who obviously have
not been able to swallow their defeat.
25. The opinion of the Supreme Court that the results of
an election should be interfered with only on a firm
foundation should not be overlooked. That there is
insufficient material available before us is fortified by the
simple fact that those who were responsible for the conduct
of the elections, had the responsibility of drawing up the
Defaulters‟ List; and that those who had recorded objections
before the said Returning Officer are no longer fellow
travellers. Support and opposition to the legitimacy of the
impugned elections hangs in balance. It underscores the
reality that the manner in which a voter casts his franchise
is always uncertain and unpredictable. Half the Petitioners
themselves had complained against the conduct of the
elections, possibly on their prognosis of the result. The result
has surprised them and now they predicate that no error,
whatsoever, had occurred. The erstwhile Chairman, having
lost the elections, has joined the bandwagon of other
defeated candidates to cry that elections were foul. In these
nebulous circumstances, we are of the opinion that the
Tribunal erred in coming to a conclusion that the elections
were void ab initio. The Tribunal obviously did not have the
benefit of the wisdom of the Supreme Court.
26. In these circumstances, the Writ Petitions are allowed.
The Order of the Tribunal is set aside. The appointment of
the Administrator is set aside. The interim arrangement made
by the previous Division Bench vide Orders dated 21.9.2007 is
made absolute. We uphold the declaration of the results of
the elections held on 3.12.2006. These results must be given
effect to.
27. Writ Petitions are allowed in the above terms, leaving the
parties to bear their individual costs.
( VIKRAMAJIT SEN )
JUDGE
October 21, 2008 ( S. L. BHAYANA )
tp JUDGE
