Delhi High Court
Deepak Tyagi vs Supreme Court Bar Association ... on 22 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: September 22, 2018
+ W.P.(C) 9971/2018 & CM 38855/2018
DEEPAK TYAGI .....Petitioner
Through: Mr. Shamshad and Mr.K.K.
Gautam, Advocates with petitioner
in person
versus
SUPREME COURT BAR ASSOCIATION MULTI-STATE CO-
OPERATIVE GROUP HOUSING SOCIETY LTD. (REGD) &
ORS. .....Respondents
Through: Mr. V.K. Garg, Senior Advocate
with Ms. Noopur Dubey, Mr. R.K.
Rathore and Mr. H.A. Khan, Mr.
Shadab Hussain Khan and Ms.
Nigar Khan, Advocates No.1
Mr. A.K. De, Advocate/President
of respondent No.2-Society
Mr. Rakesh Munjal, Senior
Advocate with Mr. Aditya Pushkar
Khanna and Mr. Sanjay Yadav,
Advocates for respondent No.3
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
(ORAL)
1. Petitioner seeks a mandamus to first respondent to delete his name
from the Email of 26th March, 2018 sent by first respondent to second
respondent. The deletion sought is regarding the name of petitioner being
shown as „Transferee‟. According to petitioner, he is „original allotee‟ of
a flat by second respondent-Society and so, he is not liable to pay the
transferring fee of `1,63,000/-, as demanded by second respondent.
2. This writ petition was entertained with a rider that without
prejudice to his rights, petitioner shall deposit the transferring fee of
`1,63,000/-, with the Registrar General of this Court. Learned counsel for
petitioner submits that the transferring fee of `1,63,000/- has been
deposited Vide Diary No.24652 of 22nd September, 2018.
3. It is the case of petitioner that he is not liable to pay the
transferring fee of `1,63,000/-, as he is the „original allottee‟ of flat by
second respondent-Society. According to petitioner, he had received
intimation about Email of 26th March, 2018 only in the first week of
September, 2018 and he had made a Representation to respondents,
which has not been responded to.
4. Upon notice, learned counsel for respondents have handed over
copy of the Communication of 14th September, 2018, which discloses that
petitioner is not „original member‟ of respondent-Society. During the
course of hearing, it was not disputed that the Voters List for the election
in question was finalized and displayed on 16th September, 2018.
5. Upon hearing and on perusal of material on record, I find that it is
not within the domain of this Court to get into the disputed facts. Whether
petitioner was a „transferee member‟ or as to whether the transferring fee
is to be charged from petitioner or not, is a subject matter of dispute. The
aforesaid dispute is required to be considered by the Registrar of Multi-
State Co-operative Societies, which is located in Delhi. Undisputedly,
petitioner is member of first respondent-Society, who had sent the Email
of 26th March, 2018 to second respondent, which is under dispute and so,
it cannot be said that petitioner cannot invoke the jurisdiction of this
Court.
6. In the facts and circumstances of this case, it is deemed appropriate
to dispose of this petition while permitting petitioner to seek his remedy
against Communication of 14th September, 2018 by approaching the
Registrar of Multi-State Co-operative Societies, within a week from
today.
7. Supreme Court in Shaji K. Joseph v. V. Viswanath & Ors., (2016)
4 SCC 426 has reiterated as under: -
"In our opinion, the High Court was not right in
interfering with the process of election especially when the
process of election had started upon publication of the
election programme on 27-1-2011 and more particularly
when an alternative statutory remedy was available to
Respondent 1 by way of referring the dispute to the Central
Government as per the provisions of Section 5 of the Act
read with Regulation 20 of the Regulations. So far as the
issue with regard to eligibility of Respondent 1 for
contesting the election is concerned, though prima facie it
appears that Respondent 1 could contest the election, we do
not propose to go into the said issue because, in our
opinion, as per the settled law, the High Court should not
have interfered with the election after the process of election
had commenced. The judgments referred to hereinabove
clearly show the settled position of law to the effect that
whenever the process of election starts, normally courts
should not interfere with the process of election for the
simple reason that if the process of election is interfered
with by the courts, possibly no election would be completed
without the court's order. Very often, for frivolous reasons,
candidates or others approach the courts and by virtue of
interim orders passed by courts, the election is delayed or
cancelled and in such a case the basic purpose of having
election and getting an elected body to run the
administration is frustrated. For the aforestated reasons,
this Court has taken a view that all disputes with regard to
election should be dealt with only after completion of the
election."
8. So far as interim relief sought by petitioner is concerned, I find no
justification to put on hold the elections of second respondent-Society,
which is to take place tomorrow i.e. 23rd September, 2018. Restraint is
required to be exercised in halting the election process particularly when
it has begun.
9. Change of petitioner's name in the Voters List from „transferee
member‟ to „original member‟ is an aspect, which is not required to be
gone into the writ jurisdiction. Since petitioner has deposited the
transferring fee of `1,63,000/-, without prejudice to his rights, with the
Registrar General of this Court, therefore, it is deemed appropriate to
direct that the transferring fee of `1,63,000/-, so deposited by petitioner,
be transmitted to the Registrar of Multi-State Co-operative Societies, to
facilitate the resolving of dispute regarding the status of petitioner being
an „original‟ or „transferee member‟.
10. During the course of hearing, it was brought to the notice of this
Court by respondents that after scrutiny of the nomination papers, it was
found that only one candidate had applied for the post of President and
so, no election for the post of President is required to be held. Petitioner's
prayer for contesting the election for the post of President, as recorded in
the last order, springs from the correction sought by petitioner in the
Voters List. In the considered opinion of this Court, there is no
impediment in permitting petitioner to contest the election for the post of
President, as petitioner has already deposited the transferring fee of
`1,63,000/-.
11. It is no longer res integra that concept of fair and free elections is
sine-qua-non for a vibrant democracy. In a democratic process, an
aspirant ought not to be denied an opportunity to participate in the
election of second respondent, which is being conducted in a democratic
way. In the peculiarity of this case, petitioner is permitted to contest the
election for the post of President of second respondent-Society, which is
slated for tomorrow, subject to his depositing the prescribed fee of
`1,000/-. The said fee be transmitted to the Secretary of second
respondent by Real Time Gross Settlement (RTGS) mode. Deposit or
non-deposit of this fee of `1,000/- would not be an impediment in
permitting petitioner to contest the election for the post of President,
which is slated for tomorrow, as this fee of `1,000/- can be deducted from
petitioner's Maintenance Account with second respondent, provided
petitioner volunteers for adoption of such a course. It is made clear that
any observation made in this order shall not be construed as an opinion
on merits by the Registrar of Multi-State Co-operative Societies, while
adjudicating upon the dispute raised by petitioner in this petition.
12. This petition and the pending application are disposed of in
aforesaid terms.
Copy of this order be given dasti under signatures of the Court
Master to learned counsel for the parties.
(SUNIL GAUR)
JUDGE
SEPTEMBER 22, 2018
s
