Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2266 (RAJ)

Anil Kothari v. S. S. Jain Subodh Shiksha Samiti

2005-08-26

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-Through this appeal under Order 43 Rule 1 CPC, the appellant seeks to quash the order dated 12.08.2005 passed by the learned District Judge, Jaipur City, Jaipur by which the learned Judge has dismissed the application under Order 39 Rule 1 and 2, CPC read with Section 151, CPC filed on behalf of the applicant. 2. Along with suit for declaration and permanent injunction, the appellant filed an application for grant of temporary injunction before the learned District Judge, inter alia, with the prayers that (i) defendant respondent, namely, Shri S.S. Jain Subodh Shiksha Samiti, Jaipur which is registered under the Societies Registration Act be restrained from raising numbers of elected representatives of the executive from 11 to 15; (ii) not to publish the list of the names in this regard on 11.08.2005 or on any other day; (iii) the election of the defendant Samiti be got conducted in terms of the constitution of the defendant Samiti existed prior to amendment; (iv) not to permit any of the members to exercise right of vote for more than one etc. The defendant Samiti filed reply to the application for temporary injunction and also raised preliminary objection to the effect that plaintiff was not legally entitled to file the suit, inasmuch as the election process had already been started and that a writ petition for similar relief was also filed before the High Court and the plaintiff had the knowledge of filing of such writ petition. The learned District Judge, on consideration of material available before it and after hearing the Counsel for the parties concluded that plaintiff appellant has been able to make out a prima facie case but according to the learned Judge, neither the balance of convenience existed in favour of the plaintiff nor he was put to suffer irreparable loss in case temporary injunction is not granted. 3. The main thrust of the argument of Mr. Bhandari, appearing for the plaintiff is that the bedrock/very foundation to hold the election is missing. 3. The main thrust of the argument of Mr. Bhandari, appearing for the plaintiff is that the bedrock/very foundation to hold the election is missing. According to the learned Counsel for the plaintiff appellant, Clause 19 (TA) of the Constitution of the defendant respondent provides that amendment in the constitution can be made in accordance with Section 12 of the Societies Registration Act, which lays down that the proposition should be delivered or sent by post to every member of the society ten days previous to the special general meeting convened by the governing body for the consideration thereof and such proposition should be agreed to by the votes of two thirds of the members delivered in person or by proxy and confirmed by the votes of two thirds of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting. But in the case at hand, notice to hold emergency meeting on 12.06.2005 was published on 08.06.2005 and further, out of the total number of members i.e., 7485, only 394 members had voted. Another special meeting was not convened for confirmation of the decision taken in previous meeting. Therefore, the alleged amendment in the Constitution of the Samiti was perse illegal. On this strength, learned Counsel submitted that preperation and publication of electoral roll in breach of the provisions of fundamental character and conducting of election on the basis of such electoral roll would certainly entitle the plaintiff appellant to get temporary injunction, thereby restraining the defendant to hold elections. 4. Lastly, Mr. Bhandari contended that the Election Officer could not have issued election programme before 11.08.2005 because the final voter list had to be forwarded to him only on 10.08.2005 and only thereafter he could have issued the election programme. 5. So far as impugned order is concerned, learned Counsel submitted that application of the plaintiff for grant of temporary injunction has been dismissed only on the ground that election process has already started. Replying upon a decision of Full Bench of this Court in Atma Singh vs. State of Rajasthan, 1967 RLW 275, learned Counsel submitted that the Court in appropriate cases has power to issue temporary injunction restraining holding of elections. 6. Mr. Bhandari then submitted that S.B. Civil Misc. Replying upon a decision of Full Bench of this Court in Atma Singh vs. State of Rajasthan, 1967 RLW 275, learned Counsel submitted that the Court in appropriate cases has power to issue temporary injunction restraining holding of elections. 6. Mr. Bhandari then submitted that S.B. Civil Misc. Stay Application No. 5117/2005 in S.B. Civil Writ Petition No. 6058/2005 filed by one Anil Kumar Bumb and another seeking relief to stay the election was dismissed by the Coordinate Bench without considering the ratio in Atma Singhs cases (Supra). The Co-ordinate Bench refused to grant interim order staying the election process only on the ground that election process had already started and that being so, the order refusing to grant interim order is per incuriam. In support of his argument, learned Counsel has relied upon General Manager, Telecom vs. A. Srinivasa Rao & Ors., 1997 (8) SCC 767 , and Government of West Bengal vs. Tarun K. Roy, 2004 (1) SCC 347 . 7. Per contra, Mr. Mahendra Singh, learned Counsel for the defendant respondent has argued that the procedure laid down in Section 12 of the Societies Act has to be followed when the governing body of any registered society proposes to alter, extend or abridge the purpose or purposes for which the society has been established or to amalgmate the society with any other society. Therefore, for the alleged amendment in the constitution, procedure embodied in Section 12 of the Societies Registration was not followed in letter and spirit. 8. Mr. Singh further argued that the Returning Officer has notified the programme of the election on 10.08.2005, by which nomination papers were required to be filled in on or before 16.08.2005, list or valid nomination papers was required to be published on 16.08.2005 and 18.08.2005 was fixed as the last date for withdrawal of nomination. The list of eligible candidates was to be published on 18.08.2005 and election is to be held on 28.08.2005. According to him, the election process is now complete to the extent of publication of final list of eligible candidates. In this back-ground, learned Counsel for the defendant submitted that no interference can be made with the election process at an intermediate stage. In support of his argument, learned Counsel has relied upon Ram Pratap vs. State of Rajasthan, 1971 RLW 523 and S.T. Muthusami vs. K. Natarajan, AIR 1988 SC 616 . 9. In this back-ground, learned Counsel for the defendant submitted that no interference can be made with the election process at an intermediate stage. In support of his argument, learned Counsel has relied upon Ram Pratap vs. State of Rajasthan, 1971 RLW 523 and S.T. Muthusami vs. K. Natarajan, AIR 1988 SC 616 . 9. I have given my anxious consideration to the rival submissions. As to when the election commences has been made clear in Atma Rams case (Supra), wherein it has been laid down that process of election starts by issuing a notification calling to elect a member or members. In the case at hand, the election programme has been notified on 10.08.2005 and according to the said programme, the final list of eligible candidates has already been published on 18.08.2005 and the elections are to be held on 28.08.2005. The decision in Atma Singhs case (Supra), relied upon by the Counsel for the appellant was consideration in Ram Prataps case (Supra), and it was held that any matter which has the effect of vitiating election can be brought up at appropriate stage in an appropriate manner and not at an inter mediate stage. 10. In S.T. Muthusami vs. K. Natarajan (Supra), their Lordships of the Supreme Court noticed the view expressed by the Full Bench of Madhya Pradesh in Malam Singh vs. The Collector, Sehore, M.P., AIR 1971 (MP) 195 . The view expressed by the Full Bench was that effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. The following observation in Sanngram Singh vs. Election Tribunal Kottah, AIR 1955 SC 425 , were also referred to: - "....though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases." 11. Therefore, writ petitions should not be lightly entertained in this class of cases." 11. Having accepted the above view which laid down a salutary principle, their Lordships of the Apex Court held as under:-"Taking into consideration all the aspects of the present case including the fact that the person who filed the writ petition before the High Court was not one of the candidates nominated by the Indian National Congress (I) and the fact that the President of the Tamil Nadu Congress (I) Committee had written that he had authorised the appellant to contest as the candidate on behalf of his party and he had not given his approval to respondent No. 6 contesting as a candidate on behalf of party, we feel that the exercise of the jurisdiction by the High Court in this case under Article 226 of the Constitution cannot be supported. The parties who are aggrieved by the result of the election can question the validity of election by an election petition which is an effective alternative remedy". 12. It is thus emphatically clear that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner and should not be brought up at an intermediate stage before any Court. 13. In the case at hand, keeping in view the legal position as stated above, the legal issues raised by the respective parties cannot be gone into at this intermediate stage and the same shall be decided by the trial Court and hence expressing any opinion may influence the trial Court in deciding the legal issues involved in the case. 13. In the case at hand, keeping in view the legal position as stated above, the legal issues raised by the respective parties cannot be gone into at this intermediate stage and the same shall be decided by the trial Court and hence expressing any opinion may influence the trial Court in deciding the legal issues involved in the case. In this view of the matter, without commenting on the legal issues, but taking into account the facts that (i) appellant is not one of the contesting candidates in the elections, (ii) any party who may be aggrieved by the result of the election can question the validity of the election (iii) the Co-ordinate Bench in a writ petition filed in the same matter has refused to grant interim order to stay the election process (iv) the election process has already been started (v) the plaintiff appellant has not come before the Court with clean hand inasmuch as he supressed the fact of filing of writ petition which was within his knowledge, in my firm view disentitles the plaintiff appellant to get relief as prayed for in this appeal and in the application filed by him under Order 39 Rule 1 and 2, CPC, for grant of temporary injunction in his favour restraining the respondents from holding elections. 14. Resultantly, this appeal fails and is hereby dismissed in limine.