(iii) The applications filed by the petitioners and
similarly situated persons for membership shall be
considered within a period of four weeks from today
and necessary voter list shall be prepared thereafter
forthwith and the elections to respondent No.3 shall
be conducted within three months thereafter."
8. It is admitted that as on the date of the said order, there were
membership of the appellant-society. However, it appears that
for membership of the appellant society. And, it is the petitioners'
the governing body of the appellant Society. The learned Single
Judge has, prima facie, accepted the said view.
9. It is trite law that an election process once which has
commenced ought not to be ordinarily interdicted. In N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency,
election petition. In this context, the Supreme Court concluded as
"25. The conclusions which I have arrived at
may be summed up briefly as follows:
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(1) Having regard to the important functions
which the legislatures have to perform in democratic
countries, it has always been recognised to be a
matter of first importance that elections should be
concluded as early as possible according to time
schedule and all controversial matters and all
disputes arising out of elections should be postponed
till after the elections are over, so that the election
proceedings may not be unduly retarded or
protracted.
(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 effect 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.
10. The principle that election once commenced would not be
interdicted was also reiterated by the Supreme Court in several
decisions thereafter including in Mohinder Singh Gill & Anr v.
The Chief Election Commissioner: AIR 1978 SC 851 and
Election Commission of India through Secretary vs. Ashok
Kumar & Ors.: (2000) 8 SCC 216. Although the said decisions
were rendered in the context of Article 329(b) of the Constitution,
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the principle that the courts should ordinarily refrain from interfering
in election process once it has commenced has been extended to
election of various other bodies as well.
11. In the case of Supreme Court Bar Association v. B.D.
Kaushik : (2011) 13 SCC 774. The Supreme Court has observed:
"Since 1952 this court authoritatively laid down that once election
process has started, the court should not ordinarily interfere with
the said process by way of granting injunction".
12. We also consider it apposite to set out the principles as
summarized by the Supreme Court in Election Commission of
India v. Ashok Kumar (supra). The relevant extract is reproduced
below,
"32. For convenience sake we would now
generally sum up our conclusions by partly restating
what the two Constitution Benches have already said
and then adding by clarifying what follows therefrom in
view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely
interpreted so as to include all steps and entire
proceedings commencing from the date of notification
of election till the date of declaration of result) is to be
called in question and which questioning may have the
effect of interrupting, obstructing or protracting the
election proceedings in any manner, the invoking of
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judicial remedy has to be postponed till after the
completing of proceedings in elections.
(2) Any decision sought and rendered will not
amount to "calling in question an election" if it
subserves the progress of the election and facilitates
the completion of the election. Anything done towards
completing or in furtherance of the election
proceedings cannot be described as questioning the
election.
(3) Subject to the above, the action taken or
orders issued by Election Commission are open to
judicial review on the well-settled parameters which
enable judicial review of decisions of statutory bodies
such as on a case of mala fide or arbitrary exercise of
power being made out or the statutory body being
shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying
the progress of the election proceedings, judicial
intervention is available if assistance of the court has
been sought for merely to correct or smoothen the
progress of the election proceedings, to remove the
obstacles therein, or to preserve a vital piece of
evidence if the same would be lost or destroyed or
rendered irretrievable by the time the results are
declared and stage is set for invoking the jurisdiction of
the court.
(5) The court must be very circumspect and act
with caution while entertaining any election dispute
though not hit by the bar of Article 329(b) but brought
to it during the pendency of election proceedings. The
court must guard against any attempt at retarding,
interrupting, protracting or stalling of the election
proceedings. Care has to be taken to see that there is
no attempt to utilise the court's indulgence by filing a
petition outwardly innocuous but essentially a
subterfuge or pretext for achieving an ulterior or hidden
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end. Needless to say that in the very nature of the
things the court would act with reluctance and shall not
act, except on a clear and strong case for its
intervention having been made out by raising the pleas
with particulars and precision and supporting the same
by necessary material."
[ emphasis added]
13. In Shri Sant Sadguru Janardan Swami (Moingiri Maharaj)
SahakariDugdhaUtpadak Sanstha v. State of Maharashtra,
(2001) 8 SCC 509, the Supreme Court has authoritatively held that
the preparation of the electoral roll is an intermediate stage of the
election process. It follows that once such process is commenced,
the election process should not be, ordinarily, be interfered with.
We consider it apposite to refer to the following observations made
by the Supreme Court:
"12. In view of our finding that preparation of the
electoral roll being an intermediate stage in the
process of election of the Managing Committee of a
specified society and the election process having been
set in motion, it is well settled that the High Court
should not stay the continuation of the election process
even though there may be some alleged illegality or
breach of rules while preparing the electoral roll. It is
not disputed that the election in question has already
been held and the result thereof has been stayed by
an order of this Court, and once the result of the
election is declared, it would be open to the appellants
to challenge the election of the returned candidate, if
aggrieved, by means of an election petition before the
Election Tribunal."
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14. In the present case, we do not find any circumstances which
would warrant the election process to be interdicted after it has
commenced. We are also unable to accept that the directions
issued in terms of the order dated 28.05.2025 have been violated
in the present case. We say so because, applications of 161 (one
hundred and sixty-one) applicants, which were pending as on
28.05.2025 plus the application of the petitioners, who were
appellants in the aforesaid appeals, were considered. All of the
said applicants, except three of the petitioners, who the appellant
states did not respond to their communications, were admitted as
members of the appellant-society. It is stated that their names are
mentioned in the electoral roll on the basis of which, the election to
the governing council of the appellant are now being conducted.
We are unable to accept that the directions would also cover
inclusion of other persons who had applied for membership after
the date of the said order, that is after the date of 28.05.2025.
Clearly, preparation of an electoral roll cannot be considered as an
open ended process. Thus, the directions for the appellant society
(arrayed as respondent No.3 in the aforementioned appeals) to
consider the request of the petitioners (respondent Nos.1 to 7 in
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the present appeal) and other similarly placed persons would
necessarily mean the persons who had filed their applications and
thus, were similarly placed as the petitioners as on that date -
28.05.2025.
15. In this view, the impugned order is set aside. The appeal is,
accordingly, disposed of.
16. Pending applications also stand disposed of.
Sd/-
(VIBHU BAKHRU)
CHIEF JUSTICE
Sd/-
(C M JOSHI)
JUDGE
AHB
