Delhi High Court
Mukta Sharma vs Union Of India & Ors. on 23 December, 2023
Author: V. Kameswar Rao
Bench: V. Kameswar Rao, Anoop Kumar Mendiratta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd December, 2023
+ W.P.(C) 16258/2023, CM APPLs. 65412/2023 & 66888/2023
MUKTA SHARMA
..... Petitioner
Through: Mr. Vinay Kumar Garg, Sr. Adv. with
Mr. B.S. Rajesh, Mr. Arun Mishra,
Mr. J.K. Chawla, Mr. Vaibhav Vats,
Mr. Karandeep, Ms. Priya Nagar,
Mr. Siddhant Goswami, Advs. with
petitioner in person.
versus
UNION OF INDIA & ORS.
..... Respondents
Through: Mr. Chetan Sharma, ASG with
Ms. Manisha Agrawal Narain, CGSC
with Mr. Sandeep Singh Somaria,
Ms. Shivangi Gumber, Advs. with
Mr. Vinay Kumar Jindal, ARO/SDM
for R-1 to R-3
Ms. Kumud Lata Das, Adv. for
Mr. Deepak Tyagi, intervener.
Mr. Vibhu Shankar Mishra, and
Ms. Mannu Singh, Advs. for
candidate of the Election.
Dr. Adish C. Aggarwala, Sr. Adv. /
President of SCBA with Ms. Sangita
Malhotra, Adv.
Ms. Preeti Chauhan, ACEO for
R-4/SCBAMSCGHS Ltd.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
Signature Not Verified
Digitally Signed
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 1
Signing Date:23.12.2023
15:34:43
V. KAMESWAR RAO, J. (ORAL)
CM APPL. 66888/2023 (for impleadment)
For the reasons stated in the application, the same is allowed.
The applicant is impleaded as a party respondent.
The application is disposed of.
W.P.(C) 16258/2023
1. This petition has been filed by the petitioner with the following
prayers:-
"It is therefore, most respectfully prayed that this Hon'ble
Court may graciously be pleased to:
a. issue writ, order, directions in Nature of Certiorari to
set aside/quash the election notification dated 23/11/2023
issued by the respondent no. 2;
b. Issue writ, order, directions in Nature of Certiorari to
set aside/quash the election circular dated 8/12/2023 &
12/12/2023 issued by the respondent no. 3:
c. issue writ, order, directions in the nature of Mandamus
directing the respondent no. 2 & 3 to issue a fresh
election notification specifically specifying the exclusive
categories in accordance with Section 41(3) of Multi
State Cooperative Act, 2002;
d. pass such other or further orders as this Hon'ble Court
may deem fit and proper in the interest of justice."
2. On December 18, 2023, this Court had passed the following
order:-
"1. Though this writ petition has been filed with the
following prayers, Mr. Vinay Kumar Garg, learned Senior
Counsel appearing for the petitioner has placed before us
Signature Not Verified
Digitally Signed
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 2
Signing Date:23.12.2023
15:34:43
two documents, including one order dated December 14,
2023 issued by the Ministry of Co-operation, Office of Co-
perative
Election Authority, Govt. of India postponing the election
without prescribing any date and also the undated order
issued by the Returning Officer notifying the 'Revised
Election Program' to be held on January 04, 2024:
"a. issue writ, order, directions in Nature of Certiorari to
set aside/quash the election notification dated 23/11/2023
issued by the respondent no. 2;
b. issue writ, order, directions in Nature of Certiorari to
set aside/quash the election circular dated 8/12/2023 &
2/12/2023 issued by the respondent no. 3; and
c. issue writ, order, directions in the nature of Mandamus
directing the respondent no. 2 & 3 to issue a fresh
election notification specifically specifying the exclusive
categories in
accordance with Section 41(3) of Multi State Cooperative
Act, 2002. "
2. The submission of Mr. Garg is that vide 'Revised
Election Program', the Returning Officer has sought the
nomination for two reserved seats i.e. for women (02) and
for SC/ST (01) category. In other words, it is the
submission that the earlier notification issued on
November 23, 2023 continues to hold the field in the
manner it has been issued.
3. According to Mr. Garg, in view of the 'Revised Election
Program', the earlier notification issued on November 23,
2023 appears to mean that the same shall now be
confined to 12 posts of Director. He submits that the
Returning Officer should have issued a composite
notification for all the 15 posts and not in the manner
sought to be done.
Signature Not Verified
Digitally Signed
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 3
Signing Date:23.12.2023
15:34:43
4. He also submits that the chances of the petitioner, if at
all, she intends to participate in the election, shall get
prejudiced. In other words, it is his submission that the
'Revised Election Program' notification is in violation of
Section 41(3) of the Multi-State Co-operative Act, 2002.
5. Issue notice. Ms. Manisha Agrawal Narain, learned
CGSC appears and as of now accepts notice for
respondent No.l. She also submits, she shall take
instructions whether to appear for respondents No.2 and
3.
6. Notice be issued through all modes, to respondent No.4
i.e.. Supreme Court Bar Association Multi State
Cooperative Group Housing Society Ltd. (Regd.),
returnable on December 21, 2023.
7. Perusal of the 'Revised Election Program', would
reveal that the nominations for the two posts for women
(02) and one post for SC/ST (01), have to be submitted
between December 18, 2023 to December 23, 2023.
8. We direct that till the next date of hearing, the
Returning Officer shall not accept the nominations for the
said posts."
3. Mr. Vinay Garg, learned Senior Counsel appearing for the
petitioner states that the initial notification issued on November 23,
2023, by the Assistant Registrar (Cooperation) notifying the schedule
for election of the Supreme Court Bar Association Multi-State
Cooperative Group Housing Society Limited i.e. respondent No.4
contemplates the appointment to the 15 posts of Director of the Society.
Signature Not Verified
Digitally Signed
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 4
Signing Date:23.12.2023
15:34:43
4. He also submits that a circular dated December 12, 2023 was
issued by the ARO / SDM, Vasant Vihar on behalf of Returning
Officer, wherein, in paragraphs 1 and 2, the following has been stated:-
"(1) As per the direction of the Hon'ble High Court of
Delhi and in the exercise of the powers conferred under
the Multi-State Co-operative Societies (MSCS), Act 2002,
the election schedule dated 29.11.2023 was issued by the
Returning Officer for the election of 15 members of the
board of directors. A total of 44 valid nominations have
been finalized after scrutiny and withdrawal. Out of 44
valid nominations, a total of 07 women members have
filed nominations for the post of the board of directors
and no member belonging to the SC/ST category has
filed nomination for this election. Hence, the election will
be held for the 14 members of the board of directors.
(2) To ensure the provision of Section 41(3) of the Act,
the candidates who secured the highest number of votes
will be elected as members. If the top 12 elected
candidates do not have any women representation then
the two members among the women candidates who
secured the highest number of votes after 12 elected
candidates shall be elected among the final number of
members of the board of directors."
5. Thereafter, an order dated December 14, 2023 was issued by
the ARO, which reads as under:-
ORDER
Whereas, in pursuance to order dated 03.11.2023 of the
Hon'ble High Court of Delhi in matter of W.P.(C) 10589/2023,
CM APPL.A. 411382023 54349/2023 and in exercise of the
powers conferred by section 45K(1) of the Multi State Co-
operative Societies (MSCS) Act 2002 read with rule 19 F(a) of
MSCS Rules, 2002, the Co-operative Election Authority vide
order dated 23.11.2023 has appointed Shri Santosh Kumar Rai,
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 5
District Magistrate, New Delhi as Returning Officer (herein
referred to as 'RO' for the sake of brevity) for conducting
elections of Supreme Court Bar Association Multi-State
Cooperative Group Housing Society Limited, New Delhi.
2. Whereas, in view of rule 19(H)(2) of MSCS Rules, 2002, the
election programme for conducting election of the said society
was also forwarded to the RO along with the aforesaid order
dated 23.11.2023.
3. Whereas, RO vide letter dated 14.12.2023 has informed that
tomorrow (15 Dec. 2023) is the polling day, however, the venue
of the traditional polling station was not made available to him
by the Authorities concerned despite best efforts. Further, the
postponement of the election has been requested by the RO on
the basis that securing an alternate venue and informing the
same to all voters is not practically feasible given the time
constraint.
4. The Authority after having considered the facts and
circumstances of the case, as brought out by the RO in his
request, is of the view that it would not be possible for the RO
to secure an alternate venue and inform all the voters in time
for polling. Therefore, the election of aforesaid MSCS stands
postponed. In order to ensure that members of aforesaid MSCS
are well-informed, the RO shall give sufficient publicity of
postponement of election. The re- scheduled election
programme will be notified shortly.
This issues with the approval of Co-operative Election
Authority."
6. He also draws our attention to 'Revised Election Programme'
issued by the Returning Officer only to the extent of calling for
nomination for reserving the seats for women (2) and SC/ST (1) with
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 6
date of nomination to be submitted between December 18, 2023 to
December 23, 2023 and with date of election as January 04, 2024.
7. The submission of Mr. Vinay Garg, primarily, as noted in the
order dated December 18, 2023, is that vide 'Revised Election Program',
the Returning Officer has sought the nomination for two reserved seats
for women and one for SC/ST category, resulting in the earlier
notification issued on November 23, 2023 to mean that the same shall
now be confined to 12 posts of Director. He submits that the Returning
Officer should have issued a composite notification for all the 15 posts
and not in piecemeal manner of 12+3 posts. He also submits that the
chances of the petitioner, if at all, she intends to participate in the
elections, shall get prejudiced. If all the women, who submitted
nomination against 15 posts, indicate their option for reserved seats,
then the same shall reduce the chances of success:-
"REVISED ELECTION PROGRAM
This is in continuation of the public notice dated
29.11.2023, the revised schedule for the election to the
Board of Directors of the Supreme Court Bar Association
Multi-State Cooperative Group Housing Society Ltd.,
(SCBA MSCGHS Ltd.) is given below. The Conference
Hall, Disaster Management Centre, Humayun Road, New
Delhi - 110003 will be the venue of the polling as well as
an office for the ongoing entire election process including
the nomination.
Election for Board Members
Sl. Particulars Date Time
No.
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 7
1. Nomination for Reserved Seat for 18.12.2023 to 11:00 AM to
Women (two) & SC/ST (One) 23.12.2023 03:00 PM (Every
Category* day)
(Monday to Saturday)
2. Publication of List of Nominations 23.12.2023 (Saturday) 05:00 PM
Received.
3. Scrutiny of Received Nomination 26.12.2023 (Tuesday) 11:00 AM to 3:00
Forms PM
4. Publication of List of Valid 26.12.2023 05:00 PM
Nominations.
(Tuesday)
5. Withdrawal of Nominations 27.12.2023 11:00 AM to
Received. 03:00 PM
(Wednesday)
6. Publication of Complete List of 27.12.2023 05:00 PM
Contesting Candidates (Wednesday)
(General /SC/ST/Women)
7. Date of Polling, if Necessary (for all 04.01.2024 08:00 AM to
categories). (Thursday) 04:00 PM
8. Counting of Votes & Declaration of 04.01.2024 Immediately After
Result. Polling
(Thursday)
In the case of candidates belonging to the Women / SC /
ST category who have already filed their nomination
earlier as per the original election schedule, they may
indicate their option to the RO if seeking to contest from
the reserved seat. They need not to file fresh
nominations.
Nominations from contestants belonging to SC/ST shall
be attached with appropriate documents / certificates.
No fresh nomination for general / non-reserved seats
would be accepted and the final list of the contesting
candidates will be published on 27.12.2023 (Wednesday)
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 8
which would include all contestants, that is, General SC
/ ST / Women for the polling to the conducted on
04.01.2024.
If the stipulated minimum representation of the said
categories in a board is not achieved, such reserved seat
(s) will be kept vacant.
If the stipulated minimum representation of the said
categories in a board is not achieved, such reserved seat
(s) will be kept vacant.
Separate ballot paper will be used for the reserved seats.
Officer Bearer Election
Sl. Particulars Date Time
No.
1. Announcement of Election 04.01.2024 After Declaration
Schedule. (Thursday) of Result of Board
Members' Election
2. Meeting of Newly Constituted 05.01.2024 10:00 AM
Board & Publication of List for (Friday) Onwards
Valid Nominations, Polling (If
required) & Declaration of Result
of Election of Office Bearers.
8. That apart, he submits that there is no provision in the Act and
the Rules, which provides for the issuance of two separate notifications
for the same election i.e., the order dated November 23, 2023 for 12
posts (now) and undated Revised Election Programme for 3 reserved
posts. His only prayer is, that a composite election notification be
issued so that there is a fair opportunity to each and every Member, who
intends to contest by taking a considered decision. He also states, the
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 9
plea of Ms. Das by relying upon the judgment in the case of West
Bengal State Election Commission & Ors. v. Communist Party of
India (Marxist) and others (2018) 18 SCC 141, to state that once the
election Notification has been issued, a petition of this nature shall not
be maintainable and should be dismissed at the threshold, is not tenable
by relying upon the judgment of the Supreme Court in the case of
Union Territory of Ladakh and Others v. Jammu and Kashmir
National Conference and Another, (2023) SCC OnLine SC 1140.
9. On the other hand, Ms. Agrawal, who appears for respondent
Nos.1 to 3 would support the Revised Election Programme issued by
the Returning Officer to the extent of 3 reserved seats i.e. 2 for women
and 1 for SC / ST by stating that the Revised Election Programme
clearly grants opportunity to the women / SC / ST category candidates,
who have already filed the nomination, as per the original election
nomination to indicate their option to the Returning Officer, if they seek
to contest the revised seat. In other words, they are not required to file
a fresh nomination.
10. She also submits that the plea of Mr. Garg that a composite
Notification need to be issued, has no basis, as no prejudice shall cause
to any of the candidates because the reserved seats are meant only for
women / SC / ST, members, who had applied pursuant to earlier
Notification dated November 23, 2023 and can still withdraw their
nomination against the 12 posts and show their inclination to contest the
reserved seats meant for women / SC / ST.
11. She also relies upon the judgment in the case of N.P.
Ponnuswami v. The Returning Officer, Namakhal Constituency,
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 10
Namakkal, Salem Dist., and others AIR 1952 SC 64. She also submits
that it is not an adversarial litigation and the respondents are open to
comply with any order this Court may pass.
12. Ms. Kumud Lata Das, who appears for Mr. Deepak Tyagi (the
impleaded party) would contest the submissions made by Mr.Garg by
stating that the petitioner is not a Member, who had applied under the
earlier Notification of November 23, 2023 and in that sense, she has no
locus-standi to file this petition. She also submits that there is no
infirmity in the Revised
Election Programme issued by the Returning Officer as he has tried to
rectify the mistake, which was earlier committed in not reserving the 3
posts meant for women / SC / ST candidates. That apart, she also
contends that no prejudice shall be caused as the woman candidates
who have filed nominations are at liberty to withdraw their nomination
against the 12 posts and show their inclination to contest for the
reserved seats under the women category, if eligible. She submits, the
petitioner having not submitted her nomination, can still file her
nomination against reserved seat. She has also made a reference to the
issue electoral rolls pending before the Authority.
13. Dr. Adish C. Aggarwala, President of the Supreme Court Bar
Association submits that the Notification issued by the Returning
Officer is totally illegal and the schedule as is required is not being
followed. He vociferously states that the proceedings need to be
quashed and a fresh composite Notification for 15 posts need to be
issued.
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 11
14. Having heard the learned counsel for the parties and perused the
record, we are of the view that the initial Notification, which was issued
on November 23, 2023, did not specify the number of posts for which
election shall be held. It is presumed and as agreed by the counsel for
the parties it was for all 15 posts. The said Notification does not
specify the reserved seats for women / SC / ST candidates. To that
extent, the Notification has not been properly issued. It is this infirmity
in the Notification, which was sought to be corrected by the Returning
Officer by issuing the Revised Election Programme, whereby, he has
called for nominations for reserved seats for women / SC / ST category.
15. The issue which falls for consideration is, whether the
Returning Officer, instead of confining the nominations to 3 seats for
women / SC / ST, should have issued a composite Notification for all
15 posts, so that there is a fair opportunity to all the contestants
including women / SC / ST candidates to take a considered decision as
against which post, they need to contest.
16. It is noted that having issued the Revised Election Programme,
the Returning Officer has himself revised the earlier Notification dated
November 23, 2023.
17. The plea of Mr. Garg is that the candidates (other than women),
who had applied against 15 posts by assessing their chances of success
would now contest against 12 posts, which shall reduce their chances of
success is appealing. In fact, we note they cannot withdraw their
nomination. To that extent, they stand prejudice. The change of
nomination is only for women / SC / ST candidates in view of the
Revised Election Programme, who intend to contest the reserved seats.
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 12
The intent of every candidate is to win election. If the nominations are
called in one lot, and not in piecemeal, then a proposed candidate can
take a considered decision as to the manner in which to contest the
election. In fact, one notification shall give level playing field to all
candidates. It may so happen, in view of the nomination having been
called for reserved seats for women / SC / ST candidates they may like
to contest the other 12 seats as well. In any case, we have not been
shown any provision which stipulates calling for nominations through
more than one notification.
18. The plea of Ms. Manisha Agrawal that since the petitioner has
not applied against the earlier Notification of November 23, 2023 and
as such no prejudice is caused to her, looks appealing on a first blush,
however, now, in terms of the Revised Election Programme,
nominations have been invited from women candidates as well, and the
submission of Mr. Garg that the petitioner may decide to contest the
election, would justify the filing of the petition by her. It is for the
petitioner to take a call once a composite Notification is issued for all
the 15 posts, which includes 2 posts reserved for women.
19. So far as the submissions of Ms. Manisha Agrawal and Ms. Das
by relying upon the judgment in the case of N.P. Ponnuswami (supra)
and West Bengal State Election Commission & Ors. (supra) are
concerned, we are of the view that Mr. Garg is justified in relying upon
the judgment in the case of Union Territory of Ladakh and Others v.
Jammu and Kashmir National Conference and Another 2023 SCC
OnLine SC 1140, wherein the Supreme Court in paragraphs 37, 38, 39
and 40 has held as under:-
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 13
"37. We would indicate that the restraint, self-imposed, by
the Courts as a general principle, laid out in some detail
in some of the decisions supra, in election matters to the
extent that once a notification is issued and the election
process starts, the Constitutional Courts, under normal
circumstances are loath to interfere, is not a contentious
issue. But where issues crop up, indicating unjust
executive action or an attempt to disturb a level-playing
field between candidates and/or political parties with no
justifiable or intelligible basis, the Constitutional Courts
are required, nay they are duty-bound, to step in. The
reason that the Courts have usually maintained a hands-
off approach is with the sole salutary objective of ensuring
that the elections, which are a manifestation of the will of
the people, are taken to their logical conclusion, without
delay or dilution thereof. In the context of providing
appropriate succour to the aggrieved litigant at the
appropriate time10, the learned Single Judge acted rightly.
In all fairness, we must note that the learned ASG, during
the course of arguments, did not contest the power per se of
the High Court to issue the directions it did, except that the
same amounted to denying the Appellants their discretion.
As stated hereinbefore, we are satisfied that in view of the
1968 Order, the Appellants' discretion was not unbridled,
and rather, it was guided by the 1968 Order.
38. The reasoning of the learned Single Judge, further
expounded by the learned Division Bench, leaves no doubt
that the relief sought by R 1 was required to be granted
and, accordingly, the same was granted by the High Court.
The stark factor which stares us in the face is that well
before and well in time, by way of the writ petition, R 1 had
approached the Court of first instance (the learned Single
Judge), for the reliefs, which have been found due to them
ultimately, and upheld by the Appellate Court (the learned
Division Bench). It is the Appellants, who by virtue of sheer
non-compliance of the High Court's orders, be it noted,
without any stay, can alone be labelled responsible for the
present imbroglio. These stark facts cannot be broadly
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 14
equated with other hypothetical scenarios, wherein the facts
may warrant a completely hands-off approach.
39. This case constrains the Court to take note of the
broader aspect of the lurking danger of authorities
concerned using their powers relating to elections
arbitrarily and thereafter, being complacent, rather over-
confident, that the Courts would not interfere. The
misconceived notion being that in the ultimate eventuate,
after elections are over, when such decisions/actions are
challenged, by sheer passage of time, irreversible
consequences would have occurred, and no substantive
relief could be fashioned is just that - misconceived.
However, conduct by authorities as exhibited herein may
seriously compel the Court to have a comprehensive re-
think, as to whether the self-imposed restrictions may need
a more liberal interpretation, to ensure that justice is not
only done but also seen to be done, and done in time to nip
in the bud any attempted misadventure. We refrain from
further comment on the Appellants, noting the pendency of
the contempt proceeding.
40. As made clear by us in the foregoing paragraphs, the
situation emanating herein is, in a manner of speaking,
unprecedented. With a sense of anguish, it would not be
wrong to say that the instant judgment has been invited
upon themselves by the Appellants. The orders of the High
Court, in our considered opinion, were in aid of the
electoral process, and no fault can be found therewith."
20. We are conscious that in the earlier round of litigation, we have
given directions to complete the process of elections in a fixed time.
Noting the said mandate, as an important issue has come up for
consideration in this writ petition, to balance the equities, we are of the
view that the Returning Officer in supersession of earlier Notification /
Programme shall issue a fresh Notification / Programme with regard to
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 15
15 posts including the reserved posts for women / SC / ST within one
week from today by saving 44 nominations which have already been
finalized received in terms of the earlier notification, by giving those
candidates a right to withdraw their nomination and then proceed to
hold elections in accordance with law thereafter.
21. The writ petition and all pending application(s) are disposed of.
No costs.
V. KAMESWAR RAO, J
ANOOP KUMAR MENDIRATTA, J
DECEMBER 23, 2023/ak
By:DHARMENDER SINGH W.P.(C) 16258/2023 Page 16
