Supreme Court - Daily Orders
Shashi Kiran vs Union Of India on 9 February, 2024
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO 2712 OF 2024
Shashi Kiran & Anr … Petitioners
Versus
Union of India & Ors … Respondents
ORDER
1 A Writ Petition under Article 226 of the Constitution was instituted before the High Court of Delhi by three individuals, namely, (i) Shri Arun Mishra; (ii) Shri S Madhusudan Babu; and (iii) Shri Umesh Babu Chaurasia. They challenged an order dated 13 January 2024 of the Central Registrar of Cooperative Societies holding that 15 elected members of the outgoing Board of the Supreme Court Bar Association Multi-State Cooperative Group Housing Society Limited stood disqualified and were not eligible to be elected as members of the Board for a period of five years from the date of the order. 2 The principal ground which was urged before the High Court in support of the petition was that a revised election programme was published on 28 December 2023; the final list of candidates was notified by the Returning Officer on 11 January 2024 and since the order of disqualification by the Central Registrar was Signature Not Verified passed only thereafter on 13 January 2024, it would have no bearing on the list Digitally signed by NEETA SAPRA Date: 2024.02.14 16:48:00 IST Reason: 2 of candidates declared eligible to contest the election. The High Court, by its impugned order dated 16 January 2024, held that the order of disqualification will apply prospectively :
“8. … the nominations were scrutinize by the RO and the final list was published on 11.01.2024. The impugned order passed by Respondent No. 2 being a declaration of disqualification after publication of final list of candidates on 11.01.2024 cannot affect the rights of the declared candidates, as the impugned order shall operate prospectively. In view of the statement of the RO i.e., Respondent No. 4, the present petition is disposed of directing that the elections will be conducted as per the final list of candidates published on 11.01.2024 and the Petitioners herein will not be excluded from contesting the scheduled elections.”
3 However, the High Court clarified that this would be subject to the availing of statutory remedies in respect of the order dated 13 January 2024 in accordance with the provisions of the Multi-State Cooperative Societies Act 2002 (as amended on 3 August 2023)1.
4 When these proceedings came up before the Court on 17 January 2024, notice was issued. While this Court did not stay the election programme, it directed that all steps taken in pursuance of the election shall be subject to the final result of these proceedings or subject to such further orders that may be passed by this Court.
5 The order passed by the Central Registrar of Cooperative Societies on 13 January 2024 was in exercise of powers conferred by Section 43(2) of the MCS Act 2002. The order directed that all the 15 elected members of the outgoing Board were 1 “The MCS Act 2002” 3 not eligible for being elected as members of the Board of the Cooperative Society for a period of five years from the date of the order. The names of the persons who were disqualified were tabulated in paragraph 18 of the order of the Central Registrar, which is reproduced below :
“S. No. Name of Directors
1. Sh. Neeraj Kumar Sharma (Chairman)
2., Sh. Umesh Babu Chaurasia (Vice-Chairman)
3. Sh. Vibhu Shankar Mishra
4. Ms. Hema Sahu
5. Sh. Arjun Kumar De
6. Sh. Annam Tirupati Rao
7. Sh. Rohitash Singh Nagar
8. Sh. Arun Kumar Mishra
9. Sh. Shaiiendra Tiwary
10. Sh. S. Madhusudhan Babu
11. Sh. Swetaketu Mishra
12. Sh. P. S. Sharda
13. Sh. Kanwar Anand Singh
14. Sh. Ajay Kumar Sharma
15. Ms. Poonani Parashar”
6 Among other defaults, the Central Registrar held that the outgoing Board since its constitution in 2018 was in default in calling the Annual General Meeting and placing the financial statement before the General Body. 7 The elections to the cooperative society have been held on 18 January 2024 and 4 a 15 member Board has been elected. During the course of the hearing, it is not in dispute that forty-one candidates belonging to the general category, six candidates belonging to the category of women and two candidates from the reserved category contested the election out of whom fifteen have been elected. Of the fifteen members of the outgoing Board who were disqualified by the order of the Central Registrar, four candidates contested the fresh election. Three out of the four candidates lost the election, while one, namely Vibhu Shankar Mishra (serial No 3 in the above tabulation) has been elected. 8 Section 43 of the MCS Act 2002 provides for disqualifications for being a member of the Board. Sub-section (1) of Section 43, inter alia, states that no member of any Multi-State Cooperative Society shall be eligible for being chosen as or for being a member of the Board, if such a member falls in any of the classes defined in clauses (a) to (o). Sub-section (2) similarly provides that a person shall not be eligible for being elected as a member of the Board of a Multi-State Cooperative Society for five years, if there is a default on the part of the Board. Sub-section (2) is extracted below :
“(2) A person shall not be eligible for being elected as member of board of a multi-State co-operative society for a period of five years if the board of such multi- State co-operative society fails--
a) to conduct elections of the board under section 45; or
b) to call the annual general meeting under section 39; or
c) to prepare the financial statement and present the same in the annual general meeting.5
d) to make contribution to the co-operative education fund referred to in clause (b) of sub-
section (1) of section 63 or the Co-operative Rehabilitation, Reconstruction and Development Fund established under section 63A: or
e) to file annual return specified in section 120 within the time specified therein; or
f) to get the audit of the society conducted within six months of the close of the financial year to which such account relate:
PROVIDED that before taking any action under this sub-section, he shall be given an opportunity of being heard by the Central Registrar.” The proviso to sub-section (2) requires an opportunity of being heard being granted by the Central Registrar before taking action under the sub-section.
9 In the present case, the list of candidates who were to contest the elections was released on 11 January 2024 by the Returning Officer. The Central Registrar issued the order of disqualification on 13 January 2024. The High Court, by its impugned order, held that the order of disqualification would operate prospectively and allowed the elections to proceed. 10 Admittedly, four out of the fifteen persons who were held to be disqualified contested the elections. The remaining eleven persons did not enter the electoral fray. Out of the four candidates, three, in fact, have lost the elections. Hence the correctness of the finding of the High Court that the disqualification would apply prospectively does not have any practical impact on those candidates who contested and lost the election. One candidate who has been 6 disqualified by the Central Registrar (Shri Vibhu Shankar Mishra) contested the elections which were held on 18 January 2024 and has been declared to be elected. We will deal with his case separately. 11 Ms Kumud Lata Das, counsel appearing on behalf of the petitioners submits that the other persons who have been declared to be elected have also incurred disqualification including on the ground that they were members for less than a period of one year [thereby incurring a disqualification under Section 43(1)(e)] while there is a conflict of interest in the case of one member, within the meaning of Section 43(1)(i).
12 The above submission cannot be adjudicated upon by this Court in the present proceedings, since such a dispute would have to be raised under the provisions of Section 84 of the MCS Act 2002. In terms of Section 84, any dispute touching the constitution, management or business of a Multi-State Cooperative Society has to be referred to arbitration so long as the dispute falls within any of the categories specified in Clause (a), (b), (c) (d) or (e) of sub-section (1). 13 Section 84(2) specifies certain disputes which are deemed to be disputes touching the constitution, management or business of Multi-State Cooperative Society. Among whom, in clause (c) are disputes arising in connection with an election of any officer of a Multi-State Cooperative Society. Hence, the remedy to challenge the election is under Section 84. 14 The ambit of these proceedings which arise from the order of the Delhi High Court, noted above, cannot be expanded to decide essentially a dispute in 7 regard to the validity of the election.
15 As regards Mr Vibhu Shankar Mishra, however, the order of disqualification dated 13 January 2024 operated against him. Mr. Vibhu Shankar Mishra who is represented in these proceedings submits that he had resigned from the Board nearly five years ago. This is a factual dispute on which this Court does not express any opinion. On the date on which the elections were held, there was an order of disqualification which held the field. In the event that he is aggrieved by the order of disqualification, it would be open to him to pursue his rights and remedies by taking recourse to the remedy provided under Section
84. In the event that he does so, the dispute shall be decided independently of the impugned order of the High Court. All the rights and remedies in that regard are kept open.
16 However, in the meantime, the election of Shri Vibhu Shankar Mishra to the Board of the Multi-State Cooperative Society shall remain in abeyance subject to such final orders as may be passed in the arbitration proceedings. 17 We clarify that any person aggrieved can also pursue his rights and remedies in accordance with law.
18 Subject to an application being filed before the Central Registrar for a reference of the dispute to arbitration, the Central Registrar shall peremptorily take steps no later than within a period of two weeks from the date of receipt of the application to make a reference to an independent arbitrator. The arbitrator shall resolve the dispute within a period of one month of the date of entering 8 upon the reference and in the event that the arbitrator is unable to do so for unavoidable reasons, he shall file an application before this Court for extension of time setting out the clear reasons which led to delay in the disposal of the proceedings.
19 The Special Leave Petition is accordingly disposed of. 20 Pending applications, if any, stand disposed of.
…...…...….......………………....…CJI.
[Dr Dhananjaya Y Chandrachud] .…...…...….......………………....…..J. [Manoj Misra] .…...…...….......………………....…..J. [Satish Chandra Sharma] New Delhi;
February 09, 2024
GKA
9
ITEM NO.23 COURT NO.1 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 2712/2024
(Arising out of impugned final judgment and order dated 16-01-2024 in WPC No. 747/2024 passed by the High Court Of Delhi At New Delhi) SHASHI KIRAN & ANR. Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) Date : 09-02-2024 This petition was called on for hearing today. CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANOJ MISRA HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA For Petitioner(s) Ms. Kumud Lata Das, AOR Ms. Sadhna Sandhu, Adv.
Mr. Arjun Sain, Adv.
Ms. Akanksha Birthare, Adv.
Ms. Pooja Rathore, Adv.
Ms. Shashi Kiran, Adv.
Mr. Deepak Tyagi, Adv.
For Respondent(s) Mr. Amrish Kumar, AOR Mr. Shubhendu Anand, Adv.
Mr. Alabhya Dhamija, Adv.
Mr. Ketan Paul, Adv.
Mr. Purnendu Bajpai, Adv.
Mr. Salman Khurshid, Sr. Adv.
Mr. Gagan Gupta, Sr. Adv.
Mr. Sanjay Kumar Visen, AOR Ms. Roshini W Anand, Adv.
Ms. Mariya Kosser, Adv.
Ms. Himani Bhatnagar, Adv.
Mr. S. Madhusudhan Babu, Adv.
Ms. Archana Sahadeva, AOR 10 Mr. B S Rajesh Agrajit, Adv.
Mr. Shyamal Kumar, AOR Mr. Arun Kumar Mishra, Adv.
Mr. U B Chaurasia, Adv.
Mr. Vibhu Shankar Mishra, Adv.
Ms. Divya Kumari Rai, Adv.
Ms. Priya Nagar, Adv.
Ms. Samta Pushkarma, Adv.
Mr. Siddharth Goswami, Adv.
Mr. Aakash Sharma, Adv.
Mr. Vaibhav Vats, Adv.
Mr. Sunil Kumar Tomar, Adv.
Ms. Surabhi Sanchita, AOR Ms. Aparna Jha, AOR Ms. Priyanka Mathur, Adv.
Mr. Abhishek Yadav, Adv.
Ms. Ipsita Behura, Adv.
Ms. Jessy Kurian, Adv.
Ms. Geeta Verma, Adv.
Ms. Ruby Mohd. Wasim, Adv.
Ms. S. Selvakumari, Adv.
Ms Mahalakshmi Pavani, Sr. Adv.
UPON hearing the counsel the Court made the following O R D E R 1 The Special Leave Petition is disposed of in terms of the signed order. 2 Pending applications, if any, stand disposed of.
(GULSHAN KUMAR ARORA) (SAROJ KUMARI GAUR)
AR-CUM-PS ASSISTANT REGISTRAR
(Signed order is placed on the file)