Sh.Y.N.Reddy & Ors. vs Andhra Association, Delhi ...
2010 Latest Caselaw 3314 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) NO.524/2010

                                        Date of Decision : 16.07.2010

SH.Y.N.REDDY & ORS.                                ......Plaintiffs
                                Through:     Mr. Ravinder Sethi, Sr.
                                             Advocate with Mr.B.K.Sood,
                                             Advocate.

                                 Versus

ANDHRA ASSOCIATION, DELHI (REGD.) & ORS.
                                      ...... Defendants
                     Through: Mr.Jayant         Bhushan,
                              Sr.Adv. with Mr.S.K.Pathak,
                              Advocate


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                          YES
2.     To be referred to the Reporter or not ?               NO
3.     Whether the judgment should be reported
       in the Digest ?                                       NO

V.K. SHALI, J. (Oral)

IA 3716/2010 & IA 3718/2010

1. This order shall dispose of IA No. 3716/2010 under order 39

Rules 1 and 2 CPC and IA No. 3718/2010 under Order 40

Rule 1 and/ or under Section 151 CPC.

2. Briefly stated the facts of the case are that the plaintiffs, who

are four in number filed a suit against Andhra

Association/defendant no.1 and its General Secretary

Sh.K.Satyanarayana for permanent prohibitory injunction as

well as for mandatory injunction.

3. Broadly speaking, in the plaint, various allegations with

regard to mal-functioning of the defendant no.1 /Society

which is registered under Societies Registration Act, 1860

have been made. It was alleged that the present Executive

Committee through its General Secretary/defendant no.2 are

trying to perpetuate their hold on the Association by

inducting various Members who are not genuine. Allegations

with regard to financial irregularities, were also made. In the

backdrop of these broad facts, the plaintiff had made the

following two prayers:-

(i) Pass a decree for permanent prohibitory injunction thereby restraining defendants from holding General Body Meeting on 18th July, 2010 as also holding elections on 8th August, 2010 on the terms and conditions set forth in the Pre election public notice dated 7.3.2010.

(ii) To pass a decree of mandatory injunction to hold election in terms of the Constitution of the Association and to take all such steps as may be required in this regard.

4. The defendants filed their written statement. They raised

number of preliminary objections regarding maintainability of

the suit itself on the ground of locus. In addition to this, the

defendants also alleged that the plaintiffs are indulging in

forum shopping. It was alleged that plaintiff nos.1 and 3 and

few others had earlier filed a writ petition bearing WP(C)

No.348/2010, in this Court which was disposed of by the

Court by directing that as 120 members of the Association

had already represented to the Registrar of Societies, they will

approach the said Registrar for disposing of their

representation at an early date in accordance with law.

5. Secondly, it was alleged that a suit bearing no. CS (OS) No.

1346/2005 raising partly the same question, which is sought

to be raised in the present suit, regarding renewal of

membership and the credentials of the newly enrolled

members, including the procedure. It is stated that the

earlier suit was instituted by the plaintiff no.2 and two other

members in the Court of Additional District Judge, Patiala

House Courts where a permanent prohibitory injunction

restraining the defendants from holding extra ordinary

General Body Meeting on 4.10.2009 was prayed for. It is

stated that the learned Additional District Judge vide interim

order dated 03.10.2009 virtually decreed the suit by

restraining the defendants from holding meeting on

4.10.2009. The defendants feeling aggrieved by the said order

chose to file appeal bearing FAO No.355/2009 which is

pending before this Court.

6. It is now alleged that on 7.3.2010 the defendants have issued

a pre-election notice for holding the General body meeting

and the appointment of a Committee for holding elections on

8.8.2010 in order to perpetuate their hold without observing

the Rules, regulations or the bye-laws of the society.

7. The plaintiff has also filed an application under order 39

Rules 1 and 2 Code of Civil Procedure, wherein it was prayed

that defendant no.2 and other office bearers of the

Association should be restrained from operating the bank

account of the defendant no.1 /Association except with the

leave of the Court and secondly, defendant no.2 should be

restrained from taking any further steps in the process of

enrolment/renewal of the membership of the Association

pending decision in the present application and /or taking

any decision in relation to the conduct of the elections.

8. It may be pertinent here to mention that so far as the

restraint against operation of the account was concerned, it

was urged by the learned counsel for the plaintiff that as the

tenure of the present Working Committee has come to an end

in the month of December, 2009, therefore, they should not

be permitted to operate the accounts of the defendant no.1

because they have indulged in financial irregularities. So far

as the second limb of the prayer is concerned, the plaintiff

wanted the entire election process to be stayed during the

pendency of the present suit. In the second application, the

plaintiff wanted the appointment of an independent

Administrator for conducing the elections.

9. I have heard Mr.Ravinder Sethi, learned senior counsel for

the plaintiffs and Mr.Jayant Bhushan, learned senior counsel

for the defendants.

10. At the outset, I must point out that the hearing was done in a

staggered manner on different dates, on account of the fact

that both the learned counsel for the parties had given

suggestions and counter suggestions, so as to find an

amicable solution to the matter which would satisfy both the

parties. As a matter of fact, Mr.Bhushan, learned senior

counsel for the defendants had given two fair suggestions in

order to settle the matter amicably. Although both of these

suggestions were acceptable to the learned counsel for the

plaintiff Mr.Sood, however, he also wanted the list of electors

to be scrutinized by an independent body which was not

accepted to the defendants and consequently, the application

had to be considered on merits. I accordingly deal with the

points which were raised by learned counsel for the plaintiff.

11. The first point which was raised by the learned senior counsel

for the plaintiffs, pertains to the pre-election notice dated

7.3.2010 issued by the defendants. It was contended by the

learned senior counsel that the pre election notice is not

issued in accordance with the election bye-laws of 2004

according to which it is required to be mentioned in the notice

that the persons renewing their membership or seeking fresh

enrolment have to sign the membership register. The

learned senior counsel referred to page no.84 of the list of

documents where the pre elections public notice format is

given along with the election bye-laws. He also drew the

attention of the Court to the various public notices purported

to have been issued by the defendants for conducting

elections in 1997 and 2001 and 2004 where the factum of

signing the membership register by the members seeking

fresh enrolment or renewal is mentioned. Therefore, it was

urged that the notice is not in accordance with the bye-laws

of the society.

12. This point was contested by the learned senior counsel for the

defendants. It was contended that the bye-laws of the

defendant no.1 /Society did not provide for signing of the

register by the members who seek renewal or fresh

enrolment. It is also admitted by him that according to the

election bye-laws the Working Committee had devised a

format in which the factum of the register to be signed by the

members who are seeking renewal or fresh enrolment is

mentioned, but the learned counsel has drawn the attention

of the Court to the minutes of the Working Committee held on

17.1.2010 in which one of the plaintiffs namely plaintiff no.2

Mr. M. Bhaskar Naidu, Branch Secretary, Mayur Vihar

branch was also present, where a decision was taken on the

demand of majority of the members that signing of the

register by the members who were seeking their renewal or

fresh enrolment was dispensed with. It was contended that

the Working Committee was well within its power to devise

such procedure as was required for the effective functioning

of the association.

13. I have carefully considered the submissions of the parties.

There is no dispute about the fact that the constitution of

association does not contain such requirement that the

register is to be signed. The relevant provisions dealing with

the renewal and enrolment of membership of the society are

as under:-

"4. MEMBERSHIP:

a) Membership shall be open to all those above the age 18 years and belonging to the Andhra community and residing in Delhi

b) Any person eligible as a meber of the Association under sub-rule(a) shall on application int eh prescribed form and payment of the admission fee and membership subscription specified in sub- rule (a) of rule 7, be enrolled a member of the Association by the General Secretary.

c) The members of the Association shall, without payment of an additional fee be entitled to take part in all the activities of the Branch situated in the area of their residence.

5. PATRONS:

The Working Committee may enroll any sympathizer who donates a lumpsum amount of Rs.500/- and above to the Association as a patron. The names of all the patrons shall be exhibited prominently in the premises of the Association. Patrons shall be entitled to all the privileges of membership of the Association during their life time.

6. LIFE MEMBERS:

Any person eligible to become a member under sub-rule (a) of rule 4 shall, on payment of Rs.100/- in a lumpsum, be enrolled as a life meber of the Association. This will be effective from 01-04-1982

7. SUBSCRIPTION AND ENTRANCE FEES:

a) The annual subscription for membership shall be Rs.10/- from 01-04-1982.

b) The subscription shall be collected by the Secretary of the Branch concerned and shall hand over the same to the Treasurer of the Association."

14. A perusal of the aforesaid Rules clearly shows that the rules

are silent on this aspect. On 17.1.2010, in the meeting of the

Working Committee, a conscious decision was taken to

dispense with the signing of the register in the light of the

representations made by different members of the Working

Committee, including the branch Secretaries. The decision

was taken because the members seeking renewal or even

fresh enrolment were required to submit their photographs

and fill up a form and attach residence proof, which was

sufficient enough to prevent bogus members getting renewed

or enrolled. It is because of this reason that the pre-election

notice dated 7.3.2010 did not contain such a condition and

the same cannot be said to be arbitrary or in violation of bye-

laws. The Working Committee was well within its power to

devise its own procedure for the effective functioning of the

defendant no.1/Society.

15. The contention of the learned senior counsel for the plaintiff

that such a decision could not have been taken because it

was not a part of agenda or tantamount to amendment of the

format does not convince the Court.

16. A subject need not be a part of agenda yet with the

permission of the chair, decision can be taken. It does not

amount to amendment of the bye-laws also. Moreover, the

minutes of the meeting dated 17.1.2010 do not show that

there was any descent from any descent and not even from

plaintiff no.2. Moreover, all the petitioners are life members.

Not even a single person is before the Court who has or may

have objection to the signing or not signing the register.

Therefore, the present suit cannot be permitted to become a

surrogate suit. This raises a serious doubt about the

bonafides of the plaintiff as well as their locus.

Consequently, I feel that this objection raised by the plaintiffs

now only is with a view to cause delay or stop the holding of

elections or make unreasonable demand to appoint an

Administrator by alleging that there is no compliance of the

provisions of the bye-laws has not merit.

17. The second contention which is raised by the learned counsel

for the plaintiffs is that nearly 250 members who had

purportedly sent their renewal subscription through the

petitioner no.2/ Branch Secretary Mayur Vihar branch on

25.9.2009, without any application or photograph could not

have been refused to be accepted and not treated as renewal

of membership by the defendant no.2/Society. It is

contended by the learned counsel for the plaintiffs that the

defendants had deliberately not accepted the renewal fee of

the said 250 members which was validly collected by the

plaintiff no.2 Branch Secretary of Mayur Vihar branch and

therefore, exclusion of their names from the electoral list is

totally illegal and uncalled for and merits interference by the

Court by stopping their process of election.

18. It was also contended by the learned counsel for the plaintiff

that the defendants had not issued individual notices to all

the members whether their subscription was paid or not and

consequently, no reasonable opportunity was given to all the

members of the Community to renew their membership

whose annual membership had come to an end on account of

non-payment of annual fee. It was urged that the time fixed

till 15.5.2010 for renewal of the membership was also very

short which could be hardly known by anybody. Further

even this was not given wide publicity and therefore, the

prayer for appointment of administrator and stoppage of the

process of election was prayed for. So that wide publicity is

given before the elections are actually held.

19. The learned senior counsel for the defendant has contested

the claim of the plaintiffs on the ground that renewal of

membership fee of 250 members was not refused by the

defendants. It was not accepted on account of the fact that

renewal of membership fee from the Branch Secretary was

not accompanied by a renewal membership form, duly signed

by such a member along with his proof of residence and the

photographs, so as to fix his identity and to avoid registration

of bogus voters.

20. With regard to the sending of individual notices, it was stated

that the individual notice to these 250 members were sent

and nearly 130 envelopes were received back as undelivered

which fortified that their addresses were not correct and

consequently they could not be treated as genuine voters.

21. I find merit in the contention of the learned senior counsel for

the defendants that in order to prevent the enrollment of

bogus voters whether by way of renewal or fresh enrolment

the defendants were well within their right to impose a

condition that the members of the community who wanted

renewal of membership or fresh enrolment were required to

fill up a form and attach their proof of residence and

photographs. No sensible person who wants a democratic

running of an organization by the real representatives of the

community, could have any objection to such a measure

where the Working Committee of the society takes a decision

for renewal of membership fee that it has to be accompanied

with a form duly signed by such member along with the proof

of residence and photographs. The laudable purpose of such

a condition is that there should not be any renewal of

membership done by the prospective candidates who are

likely to contest elections by depositing subscription for and

on their behalf and thereby impede the fair democratic

exercise by a colored or procured mandate of getting bogus

voters to cast votes in their favor. This will be more so in a

case like the present one where the membership fee and the

renewal fee is only a pittance according to the rules of the def.

no. 1. Therefore, I do not find that the plaintiff have any

merit in their contention.

22. The next contention which was sought to be raised by the

plaintiff was on the basis of Section 15 of the Societies

Registration Act , which reads as under:-

"15. Member defined disqualified members.--For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;

but in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months."

23. On the basis of the aforesaid provisions, it was contended

that although a member may not have paid the actual

subscription but on account of mere default to pay the

annual subscription, he does not cease to be a member

though he may not be able to vote.

24. Reliance was placed on the case titled Sarbjit Singh & others

vs. All India Fine Arts & Crafts Society & others 1989 (2)

Delhi Lawyer 360. So far as this judgment is concerned, I

have gone through the same. There is no dispute about the

interpretation of section 15 that it certainly does not lay down

that a defaulter member can be permitted to vote.

25. I do not agree with the contention of the learned counsel for

the plaintiff that Section 15 of the Societies Registration Act is

of any help to the plaintiffs. Section 15 of the said Act lays

down that a member who has not paid his annual

membership does not cease to be a member of the society but

nevertheless, it is stated in the Section itself that in case of

his default in paying subscription amount, he ceases to be a

member. The Working Committee in the instant case

regulated the affairs of the society by laying out that such

members who have not paid their renewal membership fee or

whose membership has come to an end on account of non-

payment of subscription and do not fulfill certain pre

conditions cannot be permitted to exercise their franchise so

as to influence the outcome of the elections. Accordingly, this

plea of the learned senior counsel for the plaintiff is also

without any merit.

26. The next point which was raised by the learned senior

counsel for the plaintiff was with regard to the total number

of members being fair in excess of 9000 while as it was

sought to be urged that in the written statement the

defendants have stated that the total number of members was

not more than 9000. The learned senior counsel for the

plaintiffs had also tried to point out that some of the names

appearing in the list of members given to the learned counsel

for the plaintiff during the course of hearing of arguments

contained the names of certain members of the community

twice over or there was some contradiction in the lists and

therefore, trying to attack fairness of the election process

itself being conducted by the defendants on the basis of such

a list.

27. The Learned counsel for the plaintiff has relied upon the case

titled A.S. Gahlout and others vs. Lt. Governor of Delhi

and others, AIR 1994 Delhi 69 to support his point for

appointment of an administrator for concluding the elections.

28. I have gone through the judgment. The facts of the said case

are wholly different from the facts of the present case and

therefore merely because an administrator was appointed in

the said case does not mean that ipso facto the same should

be done in the present case. In the present case, the

petitioner has failed to show prima facie some serious

illegality or irregularity in the process of conducting the

elections that would warrant interference of the court.

29. Needless to point out that the duplication of names or some

contradictions in the list which was given to the plaintiff

during the course of hearing or for that matter the total

number of members being more than 9000 is neither pleaded

by the plaintiff in the plaint or the application as the ground

of challenge. This argument is only sought to be built by the

plaintiff during the course of hearing which cannot be

permitted to be done. No doubt that there is some

duplication of names in the list but in the exercise of the

functions of a registered society like plaintiff no.1 where the

number of electors is approximately 10,000, some errors are

bound to occur but this should hardly be a ground for staying

the process of elections unless and until it shows it is so

flagrant or at such a large scale that it is going to impede the

trial representative character of the Association. Since this

condition is not available, I therefore, do not find any merit in

this contention of the learned senior counsel for the plaintiff.

30. The learned senior counsel for the plaintiff had also half

heartedly raised the question of alleged financial irregularities

or commercial use of the part of the complex in violation of

the terms and conditions of the lease deed and the factum

that the accounts for the year 2008-2009 and 2009-2010

having not been submitted as a ground for appointment of an

administrator.

31. I feel that non submission of accounts has to be dealt with in

General Body Meeting. So far as the alleged financial

irregularities are concerned which are in the nature of

embezzlement to be left to the decision of the General Body

which can take the Working Committee to ask for any

financial indiscipline or irregularity. This cannot be a ground

especially once no concrete averment much less proof in this

regard is given. Regarding the commercial users, a separate

writ having been filed in the order having been passed it is

not open to take the said issue again and again. I therefore,

feel that this contention of the learned counsel for the plaintiff

is that this is a half hearted attempt by the plaintiffs to

prejudice the Court by making allegations of financial

irregularities without any concrete proof which cannot get

them respite against the holding of elections.

32. Before concluding, I must observe that the plaintiffs have

already filed a suit with regard to the membership issue

which is pending adjudication and in the present suit also I

feel that prima facie the plaintiff had no locus to agitate the

grievance of persons who are not really felt aggrieved on

account of non renewal of their membership or on account of

time for renewal being short for the purpose of enrolment. It

seems that the plaintiffs are only having vested interest to

stall the democratic process and it is for this purpose that

they want the present working committee to suffer

humiliation by appointment of an administrator so that the

elections could not be conducted.

33. I do not find that the plaintiffs have prima facie a good case or

that balance of convenience is in favor of the plaintiff or that

they will suffer an irreparable loss in case injunction is

refused. I accordingly, dismiss their injunction application

bearing IA No.3716/2010 (u/O 39 Rules 1 and 2 CPC) as

well as IA No.3718/2010 for appointment of Administrator for

the purpose of conducting elections.

34. Another application bearing IA No.8499/2010 for

appointment of an administrator for holding election is also

repetitive of the application under Order 40 CPC and the

same is also dismissed.

35. However, before parting, I must say that though the stand

taken by the learned counsel for the plaintiff was very fair and

reasonable and he has also been interested in holding of a fair

and impartial election which is the backbone of any

democratic functioning of an institution and it is with this

intention that he has given the concession by conceding to

the appointment of Sh.K.J.Rao, as the Chief Election Officer

with liberty to further appoint two more election officers to

assist him.

36. In view of the aforesaid concession, I while dismissing all the

aforesaid three applications of the plaintiffs, that the

defendants are permitted to hold the General Body Meeting

on 18.7.2009 and also appoint Sh.K.J.Rao as the Chief

Election Officer for conducting free and fair and impartial

elections on 8.8.2010.

37. The Chief Election Officer is further permitted to appoint two

members of Andhra Community as election Officers for the

purpose of assisting him. After the elections are over, the

defendants shall file the election results in Court.

38. With these observations, all the three applications bearing IA

No.3716/2010 & IA No.3718/2010 & IA No.8499/2010 are

dismissed.

39. Copy of this order be given dasti to the learned counsel for

the parties under the signature of the Court Master.

V.K. SHALI, J.

JULY 16, 2010 RN