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CASE NO.:

Appeal (civil) 2084 of 2004

PETITIONER:

Deoraj

RESPONDENT:

State of Maharashtra & Ors.

DATE OF JUDGMENT: 06/04/2004

BENCH:

R.C. LAHOTI & ASHOK BHAN.

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. (C) NO. 2617 OF 2004)

R.C. Lahoti, J.

Leave granted.

Tuljabhavani Zilla Sahakari Doodh Utpadak Va Prakriya Sangh

Maryadit, Osmanabad (hereinafter 'the Sangh', for short) is a

cooperative society falling in one of the categories included in Section

73G of the Maharashtra Cooperative Society Act, 1960 (hereinafter,

'the Act' for short). Section 144Y of the Act makes special provision

for election of officers of such societies. It reads as under:-

"144Y. Special provision for election of

officers of specified societies

(1) This section shall apply only to

election of officers by members of committees of

societies belonging to the categories specified in

section 73-G.

(2) After the election of the members of

the committee and, where necessary, co-option or

appointment, as the case may be, of members to

the reserved seats under section 73-B or whenever

such election is due, the election of the officer or

officers of any such society shall be held as

provided in its bye-laws but any meeting of the

committee for this purpose shall be presided over

by the Collector or an officer nominated by him in

this behalf."

Here itself it would be relevant to reproduce the relevant bye-

laws of the society as under:-

"Bye-law No.18.3: Every year after annual General

Body Meeting, in first meeting

of Board of Directors, as per

provisions of law, Chairman

shall be elected for a period of

one year. Till the new

Chairman is elected, previous

Chairman should continue to

hold the post.

Bye-law No.18.11: Out of total number of elected

Directors, if 50 percent plus one

Directors (including nominated

directors) are present for

meeting then, corum (sic.,

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quorum) for the meeting shall

be complete."

The Sangh has a Board of Directors consisting of eight Directors

to look after the management and working of the Sangh. The present

Board of Directors which includes the appellant also as a Director was

elected on 27.3.2000. The term of the Board is five years but the

Chairman is elected every year for a term of one year each. The

previous three Chairmen were elected respectively in the meetings

held on 12.10.2000, 12.11.2001, 9.12.2002. As the term of the

Chairman previously elected on 9.12.2002 was coming to an end, the

election of new Chairman, was notified to be held on 14.11.2003 so as

to elect the Chairman for the next term of one year. The Collector,

Osmanabad was to preside over the meeting called for the purpose.

Collector, Osmanabad by his order dated 29.11.2003 appointed

Tehsildar, Osmanabad as the Returning Officer. The election

programme was notified by Tehsildar-cum-Returning Officer on

3.12.2003 as under:-

"Election Programme for the post of Chairman schedule

on 11.12.2003

Date

Time

Stages of Election

11.12.2003

11.00 to

12.00 a.m.

Distribution of nomination papers

& acceptance of nomination

papers

11.12.2003

12.00 noon

to 12.15 p.m.

Scrutiny of nomination papers

11.12.2003

12.30 p.m. to

13.00 p.m.

Withdrawal of nomination papers

11.12.2003

14.00 noon

If felt necessary, then voting,

counting & declaration of result

of election.

(underlining by us)

Simultaneously with the notification of the election programme,

the Managing Director of the Sangh issued notices to all the Directors

informing them of the meeting scheduled to be held at 2 p.m. on

11.12.2003. The election programme was also communicated to all

the Directors.

On 11.12.2003, at 11.48 a.m. the appellant filed his nomination

paper the receipt whereof was issued by the Returning Officer. There

was no other nomination filed. On scrutiny the nomination filed by the

appellant was found to be in order. There was no withdrawal.

At 2 p.m. only four Directors, including the appellant, out of the

total eight Directors of the Sangh were present. The Returning Officer

awaited for the arrival of other Directors for ten minutes. At 10

minutes past 2 p.m., the Tehsildar-cum-Returning Officer drew up the

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proceedings of special meeting recording all the facts relating to the

notification of election, the filing of single nomination paper, its

scrutiny and no withdrawal and the fact that only four Directors had

turned up for the meeting. In the concluding paragraphs the

Tehsildar-cum-Returning Officer recorded as under:-

"The Board of Directors of the said society

consist of total 8 directors. The coram for special

meeting is half + 1 Director. But 4 directors are

present for the meeting, the coram for the meeting

is not completed. Therefore, the said special

meeting is stayed. It is declared so.

The Returning Officer has declared that the

said special meeting is being stayed, will be

communicated to the Collector, Osmanabad,

thereafter, further proceedings will be done as per

his orders. After giving vote of thank to the

present Directors, the meeting is declared to be

over.

Date : 11.12.2003"

It appears that the appellant insisted on his being declared as

the duly elected Chairman in view of he only being the duly nominated

candidate for the office of Chairman. But he received no response.

On 17.12.2003, he filed a writ petition in the High Court of Bombay,

Bench at Aurangabad seeking quashing of the order dated 11.12.2003

passed by the Tehsildar-cum-Returning Officer and a command to

complete the election programme as scheduled by resuming the same

from the stage at which it had stopped. In substance the appellant

sought for his being declared the duly elected Chairman of the Sangh.

The appellant also sought for an ad-interim writ to the same effect.

The petition remained pending alongwith the prayer for interim

relief. In the meantime, on 26.12.2003, the Collector announced fresh

election programme convening a meeting to be held on 5.1.2004. The

whole process of election was directed to be commenced from the

beginning. The appellant moved an application for amendment in the

writ petition seeking setting aside of the election programme declared

on 26.12.2003 and an ad-interim writ seeking suspension of the

election proposed to be held afresh. By the impugned order dated

5.1.2004, the Division Bench of the High Court directed rule to issue in

the presence of the Government pleader for the State and its officials

and the counsel for the Society but at the same time directed the

prayer for interim relief to be rejected. Feeling aggrieved therewith

this appeal by special leave has been filed.

Ordinarily, this Court in its exercise of jurisdiction under Article

136 of the Constitution does not interfere with the orders of interim

nature passed by the High Court or Tribunals. This is a rule of

discretion developed by experience, inasmuch as indulgence being

shown by this Court at an interim stage of the proceedings pending

before a competent Court or Tribunal results in duplication of

proceedings; while the main matter is yet to be heard by the Court or

Tribunal seized of the hearing and competent to do so, valuable time

and energy of this Court are consumed in adjudicating upon a

controversy the life of which will be co-terminus with the life of the

main matter itself which is not before it and there is duplication of

pleadings and documents which of necessity shall have to be placed on

the record of this Court as well. However, this rule of discretion

followed in practice is by way of just self-imposed discipline.

The Courts and Tribunals seized of the proceedings within their

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jurisdiction take a reasonable time in disposing of the same. This is on

account of fair procedure requirement which involves delay intervening

between the previous and the next procedural steps leading towards

preparation of case for hearing. Then, the Courts are also over

burdened and their hands are full. As the conclusion of hearing on

merits is likely to take some time, the parties press for interim relief

being granted in the interregnum. An order of interim relief may or

may not be a reasoned one but the factors of prima facie case,

irreparable injury and balance of convenience do work at the back of

the mind of the one who passes an order of interim nature. Ordinarily,

the Court is inclined to maintain status quo as obtaining on the date of

the commencement of the proceedings. However, there are a few

cases which call for the Court's leaning not in favour of maintaining the

status quo and still lesser in percentage are the cases when an order

tantamounting to a mandamus is required to be issued even at an

interim stage. There are matters of significance and of moment posing

themselves as moment of truth. Such cases do cause dilemma and

put the wits of any Judge to test.

Situations emerge where the granting of an interim relief would

tantamount to granting the final relief itself. And then there may be

converse cases where withholding of an interim relief would

tantamount to dismissal of main petition itself; for, by the time the

main matter comes up for hearing there would be nothing left to be

allowed as relief to the petitioner though all the findings may be in his

favour. In such cases the availability of a very strong prima facie case

___ of a standard much higher than just prima facie case, the

considerations of balance of convenience and irreparable injury

forcefully tilting the balance of case totally in favour of the applicant

may persuade the Court to grant an interim relief though it amounts to

granting the final relief itself. Of course, such would be rare and

exceptional cases. The Court would grant such an interim relief only if

satisfied that withholding of it would prick the conscience of the Court

and do violence to the sense of justice, resulting in injustice being

perpetuated throughout the hearing, and at the end the Court would

not be able to vindicate the cause of justice. Obviously such would be

rare cases accompanied by compelling circumstances, where the injury

complained of is immediate and pressing and would cause extreme

hardship. The conduct of the parties shall also have to be seen and

the Court may put the parties on such terms as may be prudent.

The present one is a case where we are fully satisfied that a

foolproof case for the grant of interim relief was made out in favour of

the petitioner in the High Court on the basis of the material available

before the Court. There was only one nomination filed which was

found to be in order and was not withdrawn. The time appointed for

filing nominations, scrutiny and withdrawal was over. There was no

contest. Nothing had remained to be done at the meeting of the

Committee which was to be convened only for the purpose of declaring

the result. Nothing was to be put to vote. Holding of a meeting was

only for the purpose of performing the formality of declaring the

appellant as elected. In fact the election programme, as notified, itself

contemplated the meeting at 1400 hours for voting and counting 'if felt

necessary'. The provision as to quorum lost all its significance. It did

not make any difference whether there were eight directors to hear

the declaration of result or just four or even none. May be the

directors having learnt of there being a single valid nomination and

that too not withdrawn, also knew that the result of the election was a

fait accompli, and therefore, did not want to take the trouble of even

coming to the venue of the meeting. Unless something was brought to

the notice of the Court either by way of material in the shape of

documents or affidavits or even by way of a plea raised before the

Court which could come in the way of the relief being granted to the

writ petitioner, in the case of such a nature, the interim relief ought to

have been granted. The writ petitioner-appellant is right in submitting

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that the election was for a period of one year out of which a little less

than half of the time has already elapsed and in the absence of interim

relief being granted to him there is nothing which would survive for

being given to him by way of relief at the end of the final hearing.

It is pertinent to note that in spite of the respondents having

been noticed by this Court none has made appearance excepting the

State of Maharashtra and the State too has not chosen to file any

counter affidavit.

The appeal is allowed. The impugned order dated 5.1.2004, in

so far as it rejects the prayer for the grant of interim relief, is set

aside. The prayer for the grant of interim relief as made by the writ

petitioner/appellant is allowed. The respondents are directed to

announce the result of election in accordance with the election

programme dated 11.12.2003 post haste and act accordingly.

Before parting we make it clear that whatever has been stated

hereinabove is for the purpose of disposing of the prayer for the grant

of ad-interim relief and that has been done on the basis of material

available on record at this stage. As a very short question of law

arises for decision in the case, the High Court would do well to take up

the main matter itself for hearing at an early date and decide the same

finally. The High Court while deciding the writ petition on merits would

obviously do so on the basis of pleadings and documents produced and

submissions made before it; the High Court need not feel inhibited by

anything said in this order. No order as to the costs.