Delhi District Court
Vidyut Arora vs S-Block Welfare Society on 31 August, 2018
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT, SAKET COURTS
COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Shriya Agrawal, DJS
Suit No 646/2017
In the matter of:-
1.Vidyut Arora
S/o Sh. R.S Aroa
S-211, Second Floor, Greater Kailash,
New Delhi-110048 ..........Plaintiff no.1.
2. Ravi Shankar
R/o S-424, Ground Floor,
Greater Kailash, New Delhi-110048 .......... plaintiff no.2
Vs
1. S-Block Welfare Society,
Greater Kailash, New Delhi,
Through its Secretary
S-473, Basement, Greater Kailash-1,
New Delhi-110048. ........Defendant no.1
2. Birg. Hardev Singh (Retd),
Returning Officer,
S-435, Greater Kailash-1,
New Delhi-110048 ........Defendant no.2
3. Mahesh Kumar Gupta
S-139, Greater Kailash-1,
New Delhi-110048 ........Defendant no.3
4. Gulshan Bir Singh
S-294, Greater Kailash-1,
New Delhi-110048 ........Defendant no.4
5. Inderjit Kehar
S-478, First Floor,
CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 1/21
Greater Kailash-1,
New Delhi-110048 ........Defendant no.5
6. Pankaj Wadhawan
S-170, Second Floor,
Greater Kailash-1,
New Delhi-110048 ........Defendant no.6
7. Ashwani Bawa
S-380, First Floor,
Greater Kailash-1,
New Delhi-110048 ........Defendant no.7
8.Yashwant Pal
S-257, Ground Floor,
Greater Kailash-1,
New Delhi-110048 ........Defendant no.8
9.Sanjeev Gupta
S-164, Ground floor,
Greater Kailash-1,
New Delhi-110048 ........Defendant no.9
10. Mrs. Beena Bawa
S-380, Ground Floor,
Greater Kailash-1,
New Delhi-110048 ........Defendant no.10
Date of institution of Suit : 20.05.2017
Date on which order was reserved : 25.08.2018
Date of pronouncement of the order : 31.08.2018
JUDGEMENT
1. The present suit was instituted by the plaintiffs, members of S-Block Welfare Society Greater Kailash, New Delhi, against the defendant society (defendant no.1) and Returning Officer, defendant no.2 and other officials, defendants no. 3 to 10 for the following reliefs:-
CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 2/21 (1) Decree of declaration of declaring the election held by defendant no.2 for the managing committee of defendant no.1 for the period of 2017-2019, held on 30.04.2017 as null and void.
(2) Decree of perpetual injunction restraining defendant no.3 to 10 from acting, representing and holding office of the elected members of the managing committee.
(3) Decree of mandatory injunction directing recalling of the elections of defendant no.1 for the year 2017-2019.
Case of the Plaintiffs as per teh averments in the Plaint
2. The case of the plaintiffs is that they are members of S-Block Welfare Resident Society (hereinafter referred to as ' the society'), Greater Kailash-I, New Delhi, for the past several years. The receipt of the membership of plaintiff no.1 for the year 2016-2017 has been placed on record. The defendant no.1 is a registered society. As per the Memorandum of Articles of Association of defendant no.1, Annual General Meeting of defendant no.1 is to be held after the close of every financial year but not later than 30th April. One of the purpose of the AGM is also for the election of the office bearers of the managing committee for the next term.
3. The Annual General Meeting was held on 16.04.2017 of the members of defendant no.1 where the elections for the period of 2017-2019 had been announced to be held on 30.04.2017. Defendant no.2 was appointed as a Returning Officer in the said Annual General Meeting. He called for nomination for the elections of the managing committee. Amongst other policies in the notice dated 18.4.2017 issued by defendant no.2, it was notified that the proxy vote would be permitted to be cast by the spouse/daughter/son, if the voter is unable attend the voting, due to health or other valid reason. The proxy voter would be required to carry an authority letter from the voter to vote on his behalf. It is claimed by the plaintiffs that the said condition was opposed to by the candidates. By an undated notice, it was notified by defendant no.2 that the residents who were out of station should also be given an opportunity to exercise their right to vote. Consequently proxy voting was allowed through authority letter to be issued by way of email, addressed to the Returning Officer. Proxy voter in this eventuality was also required to be carried the hard copy of the email for voting. The plaintiffs also filed their nomination for the post of General Secretary and Vice Presidentship alongwith various other posts of managing committee to defendant CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 3/21 society. Nominations were accepted and two teams contested the election under the leadership of Mr. Sunil Goyal, Mr Mahesh K. Gupta for different posts. The contestan was by the teams for the following posts:-
President Sunil Goyal Mahesh K.Gupta
Sr.Vice President Gulshan Bir Singh Ms.Kamini Prasad
Vice President Mr. Ravi Shankar Inderjeet Kaur
Secretary Mr.Pankaj Wadhaan Mr. Upesh Uppal
Treasurer Ms. Anjali Garg Mr. Ashwani Bawa
Joint Secretary Mrs. Beena Pahwa Mr. Sanjeev Gupta
Mr. Chandan Bagga Mr. Rahul Bansal
Mr.Vidyut Arora Mr. Yashwan Pal
4. It has been urged by the Plaintiffs however that, the Constitution of the defendant did not however provided for proxy voting. It is stated that, since it is a settled principle that voting rights should vest only with the members who are present at the time of voting and therefore the elections resorting to proxy voting cannot be permitted as fair. The Returning Officer, defendant no.2 had also asked defendant no.3, the then outgoing Secretary to get the ballot paper printed. The same was also objected to by the candidates. However, the request was rejected by defendant no.2, on the ground that it is the Secretary who gets ballot papers printed. Thus, defendant no.3 has misused his power despite objections raised by the members. It is however averred that on 30.04.2017, when the polling for the elections were to be held, before starting of the poling, the Returning Officer I.e defendant no.2 announced that he has received only one request from one Mr. Rajesh Bhargav for proxy voting through email, which was consequently allowed to be done by his brother. The re-counting of the ballot for the posts of the President was partly done. The ballot paper with the cross voting was not allowed by defendant no.2. The re-counting of the cross voting was refused on the ground that it was prerogative of the Returning Officer. After 30.04.2017, counting of the ballot was done by defendant no.2, who did not allow any representation of the candidates, permitting only one representive from both the teams to be present. Results were subsequently declared and defendants no.3 to 10 were declared as elected for their respective posts. Margin of victory was 'too narrow'. After the results were announced electoral documents were handed over to defendant no.6, newly elected Secretary. On taking over the change by the newly elected Secretary I.e CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 4/21 defendant no.6, it got revealed that there were discrepancies committed by defendant no.2 at the time of the polling such as:-
as:-
(i) Four members exercised their vote twice.
(ii) Ballot papers were neither stamped nor counter signed
` by the Returning Officer.
(iii) Counter file of the ballot paper papers were not signed by the
voter although it stipulated "Signatures of Voter".
(iv) The 72 proxy voting was allowed on the basis of
authorization letter without any reason, much less valid reason.
In few cases letter did not have any house number to identify the voter.
(v) Authorization letter by members who were abroad were allowed.
(vi) One authorization letter did not bear any signature although vote was case on the basis of the said authorization.
5. This proxy voting carried out is contrary per the Plaintiff's case to the very directions issued by the Returning Officer and therefore illegal. Conduct of the Returning Officer is described has not fair. Accordingly, representation was made to the Returning Officer, who sent a message through defendant no.4, President, given explanation for the objections. In the said explanation defendant no.2 admitted that there were lapses on part of the Returning Officer in the conduct of the election. However, he clarified that the same was done in good faith. However, the acts of defendant no.2 were totally illegal and unfair and are stated to have been done to benefit the winning team led by Defendant no.3. Hence, the present suit has been instituted for the abovesaid discussed reliefs.
Case of the Defendants as per their Written Statements
6. Per contra, by way of written statement filed by defendant no.1, no.1, it is stated that there is no cause of action arising in favour of plaintiff against defendant no.1 and the suit is liable to be dismissed, since the former has no locus to file the present suit. The suit is also barred U/s.41 (h) of the Specific Relief Act and does not come in the ambit of sections 37 (2), 38 & 39 of the Specific Relief Act. The plaintiffs had accepted the notification dated 18.04.2017 for proxy voting and after losing the election, they are now disputing the election process. Thus, they cannot take advantage of their own wrong. The suit has been instituted by the plaintiffs in collusion with defendant no.6, who had committed breach of trust, since it was he who had taken the society's CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 5/21 document in his custody after the election. The proxy voting was allowed as per notification dated 18.04.2017 issued by the Returning Officer with the consent of both the teams. The process of proxy voting was allowed in the previous elections as well. The newly elected Secretary is misusing the election ballot papers. The objection to the election procedure if any were required to be raised at the time of polling or at the time of counting. The present Secretary has unauthorizedly taken over the custody of the society's documents and is manipulating the same.
7. In the reply on merits, it is stated that the proxy voting is not permitted under the Memorandum of Society, however it is allowed under the Society's Registration Act and Indian Company Act for electing the office bearers. There is no infirmity in allowing proxy voting. The procedure for the elections and rules of the game were laid out in advance and each of the candidates appointed their election agents as an observer. The elected Secretary, who was handed over the entire record pertaining to the election for safe custody has violated his duty of trust. It is stated that the rules under the Society's Registration Act are applicable to the residents association of Greate Kailash and the same provide for proxy voting. It has been resorted to in the previous election as well and in the election in dispute, the same was allowed with the explicit consent of both the teams. The Returning Officer, defendant no.2 had asked the outgoing Secretary, also the candidate of the post of President to print the ballot papers, which was not objected to. The request to the contrary was turned down by defendant no.2 on the ground that it is the Secretary who gets the ballot papers printed. The allegations with respect to the recounting and the disallowing of the cross voting ballot to be recounted by defendant no.2 have been denied. Since the entire election process in question was under way with two teams led by Mr. Sunil Goyal and Mr. M.K Gupta, there was no point in appointing 16 separate persons to look after the recounting on behalf of all the candidates. Since defendant no.6 had been given the electoral documents by defendant no.2 only for safe custody, he had no authority/right/duty to sift the same and leak the details to the defeated candidates. All the voters were well identified by the election agents and supporters and no objection was raised with respect to the identity of the voters/proxy at the time of the election. After the election, the results were announced by the Returning Officer after recounting and a notification was issued. It has been denied that the election conducted by defendant no.2 was illegal and is liable to set aside and results are liable to declared CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 6/21 as null and void.
8. By way of written statement on behalf of defendant no.2, no.2, it is stated that he was appointed as the Returning Officer unanimously by all parties concerned, whether losing or winning. They had reposed their faith in defendant no.2 and he had conducted the election of the society in a free and fair manner. On one hand plaintiffs had accepted the notification dated d18.04.2004 for proxy voting and on the other hand they have filed the present suit after losing the election, going about disputing the election process. The suit is collusively filed with defendant no.6, who has committed breach of trust and has taken over the society's documents after the election. The proxy voting was allowed by the notification dated 18.04.2017 with the consent of both the teams. The newly elected Secretary is misusing the election ballot papers. The present Secretary can only report to the Managing Committee and he could not have passed on the details to the outsiders. It has been denied that he had asked defendant no.3, the outgoing Secretary and also candidate for the post of Presidential to print the ballot papers. He asserts in the affirmative that the entire procedure resorted to was as per the rules and the norms laid down for the purpose of election and to the atmost satisfaction of the both the teams. It was done in a non partisan way.
9. By way of written statement filed by defendants no.3,5,7,8 &9, &9, the averments in the written statement of the other defendants stand reiterated. Averments in the Replication filed by the Plaintiff
10. By way of replication to the written statement filed by defendant no.1, plaintiffs have stated that the preliminary objection of the defendants are not tenable. It is a settled principle of law that once the process of election has begun, it cannot be challenged, till the final outcome of the same, before any court of law. The mere issuance of the notification dated 18.04.2017 does not amount to its acceptance. An additional notification was issued by the Returning Officer notifying that the residents out of station would be authorized to cast their votes by a proxy who would be authorized by way of an email, with the condition that the proxy voter would carry the copy of the email. The said procedure has not been followed by the Returning officer himself. He has allowed proxy voting on the basis of the letter which did not even carry the signatures of the resident voter. It has been denied that suit has been filed in collusion with defendant no.6. The electoral documents were given by defendant no.6 by defendant no.2 for safe custody. By email dated 01.05.2015 defendant no.3 is CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 7/21 stated to have threatened to defendant no.6. By email dated 04.05.2015 the Returning Officer himself had confirmed that the documents after the election were handed over to defendant no.6 by defendant no/3 in presence of the Returning Officer. It is wrong to state that consent of both the teams was secured before issuing notification dated 18.04.2017. The objection with respect to the proxy voting were duly raised and also with respect to counting of ballot papers. Objections were also raised with regard to the former Secretary who contested for the post of President and also got ballot papers printed. Objections were raised with regard to format of the printing of the ballot papers. It has been denied that proxy voting is permitted under the Society's Registration Act and Company Act just as an case of the company. The procedure adopted by the Returning Officer was not followed by he himself. The defendant no.6 and the plaintiffs in their legal right have the power to scrutinize the election/ballot papers to ascertain any illegality of mischievous in the holding of the election. The record cannot be treated as a private/confidential property of the officer bearers of the society. The members of the society have the right to access the record. Rule 11 (1) of the rules and regulation of defendant no.1 do not prescribe for any proxy voting. When the objection was raised with respect to the printing of the ballot papers by outgoing Secretary, defendant no.2 had brushed aside the same on the ground that it was prerogative of Returning Officer to get the ballot papers printed. The rest of the averments in the plaint stand reiterated.
Issues Vide order dated 11.05.2018 the following issues were framed:-
(1) Whether the plaintiffs have no locus to institute the present suit? OPD.
(2) Whether the proxy voting was permitted as per the rules framed under the Society's Registration Act and the Indian Companies Act?OPD.
(3) Whether the elections were conducted in contravention of the notification issued by the defendant no.2 himself and also in contravention of the rules under the Society's Registration Act and the Indian Companies Act and therefore the results thereof are liable to be declared as void?OPP.
(4) Whether the plaintiff is entitled to the relief of declaration with respect to the elections held for the period of 2017-2019, held on 30.04.2017 and its consequent result to be null and void?OPP.
CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 8/21 (5) Whether the plaintiff are entitled to the relief of perpetual injunction against defendant no.3 to 10 acting/holding the office as duly elected members of the Managing Committee of defendant no.1? OPP.
(6) Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed for direction for fresh election of defendant no.1 to be conducted for the period of 2017-2019?OPP.
(7) Relief.
11. Pursuant to the direction of the Hon'ble High Court of Delhi, the evidence was recorded before a Local Commissioner, Retired Judicial Officer. Plaintiff's Evidence
12. In the evidence recorded before the Ld.LC, plaintiff no.1 stepped into the witness box as PW-1, who has deposed on the strengh of his affidavit Ex.PW1/A, relying upon his receipt of membership Ex.PW1/1, memorandum of association of defendant no.1 (Ex.PW1/2), notice dated 18.04.2017 Ex.PW1/3, Supplementary notification Ex.PW1/4, email dated 29.04.2017 Ex.PW1/5 addressed to the Returning Officer by the Secretary of the defendant no.1 Society, election result Ex.PW1/6, letters of resident for availing proxy voting facility Ex.PW1/7-Ex.PW1/15 (objected to on the ground that these are forged and fabricated documents by plaintiff in connivance with the defendant no.4,6 & 10), Ex.PW1/16 to Ex.PW1/23 I.e the counter foils of the ballot papers (objected to on the ground that these are forged and fabricated documents by plaintiff in connivance with the defendant no.4,6 & 10) It was submitted in the course of the examination by the counsel for plaintiffs and defendant no.6 that despite opportunity to defendants to file an affidavit for admitting or denying these documents, no affidavit was filed, letter dated 04.05.2017 addressed to the residents by defendant no.3 with an email Ex.PW1/25, email dated 14.06.2017 addressed to defendant no.3 and 6 by defendant no.2 Ex.PW1/26 (admitted by the counsel for defendants).
13. In his cross examination, the witness has stated that his subscription uptil 31.03.2018 already stands deposited by him towards membership. He states that he has been a member of the society for the last 25 years, however has never contested an election prior to election for the year 2017. He acknowledged that he had not filed any complaint in writing with the Returning Officer that election was conducted in an unfair manner. He asserts that notification dated 18.04.2018 issued by defendant no.2 was contrary to the constitution of RWA. He clarified that he has no objection with CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 9/21 regard to the appointment of the Returning Officer. He claims that on 30.04.2017 I.e day of election, he had personally made complaint to the Returning Officer that the elections were conducted in an unfair manner. He denied the suggestion that he had lost the election by 15 votes. He stated that he was not aware that one Mr. Manav was contesting the election for the post of Joint Secretary and since he, just before the election withdrew his nomination, and PW-1 instead contested for the post, he lost the election. He stated that he had not moved any application with the Returning Officer for recounting of the ballot papers for the post of Joint Secretary. The witness was again examined on 31.05.2018 by counsel for defendants on.1,3,5,7,8 & 9. In his cross examination recorded on the said date, he stated that it would to be wrong to infer that he was satisfied with the election process, just because he had not filed any complaint with the Returning Officer for the recounting. He acknowledged that he had not sent any email to the Returning Officer after the declaration of the results. He states that he came to know about the bogus voting on 2 nd or 3rd May 2017, when the record of the election came out. He stated that the ballot papers were kept in the safe custody with then Secretary. In April 2017, there was no office of the society. Nonetheless the record of the election was in the custody of the Secretary. He stated that he learnt about the four members of the society had cast the vote twice, when the counter foils of the ballot paper were retrieved. Attention was drawn to Ex.PW1/17 and Ex.PW1/22 and likewise to Ex.PW1/23 and Ex.PW1/DX1, as illustrative to the voting by the same membership number twice. He stated that he had not challenged the notification dated 18.04.2017 before any authority. He clarified that Ex.PW1/7 till Ex.PW1/15 were found in the election record and stated that it would be wrong to suggest that these documents were forged by him alongwith defendant no.6, the defeated candidate for the post of President. He had brought along his original membership receipt for the period April 2017 till March 2018 Ex.PW1/DX1 to show that he was still member of the society.
14. In his cross examination by counsel for defendant no.2, it is stated that though the appointment of defendant no.2 as the Returning Officer cannot be stated to be unanimous, PW-1 acknowledged that he had not written any dissent letter qua the same. He stated that under the then circumstances, he had agreed with the condition of the proxy voting mentioned in supplementary notification Ex.PW1/4, however in the constitution of the defendant no.1 society, proxy voting is not allowed. The constitution of the Greater Kailash Resident Association stood labelled as Ex.PW1/DX2. Despite CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 10/21 opportunity to counsel for defendant no.4,6 and 10, the witness was not cross examined by the counsel.
15. Mr. Vijay Chopra stepped into the witness box as PW-2 who deposed on the strength of his affidavit Ex.PW2/A. He has stated in his affidavit that he is the outgoing Vice President of the managing committee of defendant no.1 and he had also participated and cast his vote in the election held on 30.04.2017. He has stated in his affidavit after the declaration of the results, it was he who had suggested defendant no.2 and defendant no.3 to hand over the records of the election to defendant no.6, the incoming elected Secretary Mr. Pankaj Wadhwan. Acting on the suggestion, defendant no.3 in the presence of defendant no.2 handed over the records to defendant no.6. in his cross examination conducted on 02.07.2018, he has stated that he was the Vice President of defendant no.1 society for the period from 2015 till 2017. Defendant no.2 was the Returning Officer during that period as well. He stated that as far as his knowledge goes, during the election for the period of 2015-2016, proxy voting was not allowed. He has stated that at present he is not the member of defendant no.1 society since 01.04.2018. He clarifies that he has interest in the affairs of the society. He further adds that one another parallel society of S-Block Welfare Community has been formed about 2-3 months back, of which he is the Vice President. He admits that the defeated members are also the executive members in this community. He acknowledged that all the documents are to be kept after the elections by the Secretary in his safe custody and not disclosed the same to anybody. The documents including the ballot papers which are handed over to the Secretary after the election are kept by them at their residence, as there was no office of the society at the relevant time. The plaintiffs closed their evidence in the affirmative on 02.07.2018. Defendant Evidence
16. The witness defendant no.6 Mr. Pankaj Wadhwan has entered the witness box as DW-6, who tendered his affidavit Ex.DW6/A. In his affidavit he has stated he was elected as the Secretary of defendant no.1 society in election held on 30.04.2017. After the declaration at around 04:00 clock on 30.04.2017, the Returning Officer I.e defendant no.2 and the outgoing Secretary I.e defendant no.3 handed over the records of election to defendant no.6. After scrutinizing the records of election he found several irregularities and discrepancies. The authorization for proxy voting were in accordance with the notification issued by the Returning Officer. Four votes were voted twice. The CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 11/21 issues were shared with the plaintiffs, who with other residents met the Returning Officer. The letter admitted the irregularities in the election, which stand confirmed from the emails sent through defendant no.3. In his cross examination recorded on 02.07.2018 by counsel for plaintiffs, witness DW-6 has stated that the original records are in his custody. Other than Ex.PW1/7 to Ex.PW1/15, several other authorization letters also are available on record , which were brought along by the witness and stood labled as Ex.DW6/PX1-60. Upon seeing the authorization letters Ex.DW6/PX1 and Ex.DW6/PX3, he stated that he was correct to say that there appear blanks which are filled in different inks. Ex.DW6/PX9 and Ex.DW6/PX17 are not in the same font of letter nor are they addressed to anyone. Ex.PW1/16 and Ex.PW1/18 reveal that (one person having electoral roll bearing no.168 has cast vote twice). So is the case with Ex.PW1/17 and Ex.PW1/22, both showing the casting of the vote twice by electoral roll no.449. Similarly Ex.PW1/9 and Ex.PW1/20 reveal the casting of the votes twice by electoral roll bearing no.182. Similarly Ex.PW1/DX and Ex.PW1/23 reveals the same with respect to electoral no.557. The cross examination by the counsels for defendants stood deferred on the said date. On 09.07.2018 the Ld.LC moved a request for recusal of the matter, whereupon the new LC was appointed. In the cross examination of DW-6 conducted on 16.07.2018, by counsel for defendants no.1,3,5,7,8 & 9, the witness DW- 6 stated that the concept of proxy voting was not there as per his knowledge for the election for the term 2015-2016. He stated that he was in agreement with the contents of the election notification dated 18.04.2017 and till the declaration of results on 30.04.2017, he had not made any complaint with the Returning Officer. However he stated that after the declaration of the results, he had made a complaint to the Returning Officer, though acknowledging that the same was not placed on the judicial record. He clarified that he had made an oral complaint. He had also not resigned after the declaration of the results. He stated that entire record of the election was handed over to him. He stated that after taking possession of the same, he had taken the record to his residence, since there was no office of the society. He stated that the record when handed over to him was not sealed. He claimed that he himself had checked the record. There is no provision, per the deponent, in the constitution to seek permission before checking the record. He stated that he had not paid the subscription fee for the period of 2017-2018 and he is not the member of society as on date. He being the Secretary, stated the entire record of the election was handed over to him by CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 12/21 the Returning Officer in the presence of Mr.Mahesh Kumar Gupta for being taken to his residence, since there was no office of the society. He stated that he had convened a meeting of the managing committee of RWA after becoming the Secretary and the meeting thereof was also drawn. He was asked if he had been suspended by the managing committee of the society, to which he stated that his powers had been taken away. He stated that he was not present at the time of recounting of the votes. He stated that Mr. Sunil Goyal, had also contested the election for the post of Presidentship and had lost the same and that he is his counsel in the present suit. In the cross examination by counsel for defendant no.2, he stated that he had also participated in the general body meeting held on 16.04.2017. When asked if defendant no.2 had been appointed unanimously as the Returning Officer, he stated that there were objections from some quarters. However himself had not objected to the same. He denied the suggestion that he had committed a breach of trust by revealing the documents to public at large.
17. Defendant no.3 was examined as DW-1 in the present matter, who deposed on the strength of his affidavit Ex.DW1/A. In his affidavit, he has stated that he is deposing on behalf of himself as well as on behalf of defendants no.1,5,7,8 & 9 who have authorized the deponent to depose in the matter by authority letter Ex.DW1/1. He claims in the affidavit that he had requested defendant no.6 not to misuse the record which was taken into custody by him illegally. The proxy voting was well within the knowledge of plaintiffs and the newly elected Secretary is misusing the election ballot papers in collusion with the plaintiffs. Objections if any had to made at the time of polling or the counting. The present Secretary had committed a breach of trust alongwith the plaintiffs in collusion. He states that proxy voting is not permitted under the memorandum of society, however provisions of Societies Registration Act apply to the defendant society under which proxy voting is allowed just as in case of companies. The elected Secretary was handed over the records of election to be kept in safe custody. However he has violated the duty of trust and confidentiality reposed in the office bearers of the society. It is further stated that it is the duty of the Secretary to get ballot papers printed at the time of the election. Defendant no.6 had no right/duty to shift the electoral document to the defeated candidates for their private purpose. The elections have been conducted in a free and fair manner. In his cross examination recorded on 18.07.2018 by the counsel for plaintiffs, he has stated in response to the CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 13/21 specific question put with respect to the written statement filed by him as not being supported by the authorization letter Ex.DW1/1, that Mr. Sanjiv Gupta, Joint Secretary was authorized by the managing committee to represent defendants no.1,3,5,7,8 &
9.Mr. Sanjiv Gupta is defendant no.9. in his favour, the authorization letter was filed. The witness was not able to show the same in his cross examination. When put a specific question with respect to the filing of the written statement on behalf of defendant no.1 without any authorization, he stated that the suggestion would be incorrect. He acknowledged that before resolution dated 05.05.2018 Ex.DW1/1, there was no authorization in his favour to represent to defendants no.1,3,5,7, 8 & 9. He could also not say if any affidavit was filed by Mr. Sanjiv Gupta in support of his written statement. He stated that at the time of the election, he was the Secretary and he got the ballot paper printed on 28 and 29 April, 2017, of which the Returning Officer had been informed.. He denied the suggestion that he got the ballot paper printed without any authorization. He agreed that the election papers were handed over to the Secretary for safe custody. He admitted the notification Ex.PW1/3 and supplementary notification Ex.PW1/4. He could not recollect as to how many proxy votes were cast. He stated that Ex.PW1/7 till Ex.PW1/15 were forged documents. When recalled for further cross examination, he was cross examined by counsel for defendants no.1,6 and 10, when he stated that the written statement filed on behalf of defendants 3,5,7, 8 & 9 bears his signatures. He acknowledged that though he had the authority to depose on behalf of defendant no.7to depose in the matter, the same was not in the file. He also acknowledged that no authorization in Ex.DW1/1 was given to him by defendant no.7. The authorization dated 05.05.2018, on which date the defendant no.7 was not the member of the society. He stated that Mr. Arvind Agrawal was his election agent. He also stated that the observers were appointed by the teams and not by the candidates. He could not point out the specific provision in his cross examination of the Society's Registration Act which provides for proxy voting. When recalled for cross examination on 30.07.2018, the witness stated in his cross examination by counsel for defendants no.4,6 & 10, that he had proposed the name of defendant no.2 as the Returning Officer. He denied the suggestion that he had illegally stripped the defendants no.4,6 and 10 off their powers without following the due process of law. When asked as to whether he could show or point out any specific rules under the Society's Registration Act, applicable to Greater Kailash Residential Association, CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 14/21 permitting proxy voting, he stated that he would show it at the time of final arguments. Even upon perusal of memorandum of association of GK residential association, he could not point the specific rules, which permitted proxy voting. In his remainder cross examination by counsel for plaintiffs, he stated that he admitted the receipt of copy of Ex.PW1/25. He also stated that he had circulated the copy thereof to the residents with his letter.
18. Witness DW-2, defendant no.2 deposed on the strength of his affidavit Ex.DW2/A. In his cross examination by counsel for plaintiffs, the counsel had pointed out that averments in para no. 4,11,12,13,20,21,23 & 26 in affidavit Ex.PW2/A were beyond pleadings. He stated that at the time of preparation of his affidavit for evidence, defendant no.3 was also present. He however was not aware as to whether his affidavit was also prepared on the same date. He admitted the issuance of Ex.PW1/4, owning each and every word of it. He stated that he had only received one email in response to the same. He acknowledged that in Ex.PW1/7 the signatures of the person were not affixed. He explained that the same were overlooked by them. The Secretary elect as per the deponent without his permission had opened the sealed record and had pointed out the deficiencies. All the people from the opposite ground including Mr. Sunil Goyal and plaintiff no.2 had come to his residence to point out the deficiencies and accordingly were incorporated in his letter. He stated that he had questioned the Secretary as to who had given him the authority to open the sealed record. He stated that he could not remember if Mr. Rahul Bansal was also a candidate for the post of Joint Secretary. The witness again stated that as per Ex.PW1/6 Mr. Rahul Bansal was a candidate for the post. The witness refused to authenticate the Ex.PW1/10. When recalled for cross examination on 06.08.2018, he stated in his cross examination by counsel for plaintiffs that he himself had checked the proxy voters or it was the assistant returning officer who had done the same. He could not recollect the exact numbers of the proxy voters checked by him. He has stated that he could not give the name of individuals mentioned by him in Ex.PW1/25 I.e individuals whom he had identified who had cast their vote twice. After the election were over, when the two electoral rolls were shown to him, he admitted that the claim with respect to four persons casting their votes twice was correct. When asked about the verbatim reproduction of the facts averred by defendant no.1 in paras 11 to 23 and in the paras 14 to 26 in the affidavit of DW-2, he stated that it was the matter of record. In his cross CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 15/21 examination by counsel for defendants no.4,6 & 10, he stated that the documents had been sealed and had been handed over to defendant no.6 for safe custody. When asked that in his affidavit he has stated something to the contrary with respect to the taking out of the documents by defendant no.6, he explained that the same were handed over to defendant no.6, though were taken away by him. When asked to go through mark PX-1 and to state that if the same permitted proxy voting, he agreed that Mark PX-1 rule 14 B did not permit proxy voting. However since residents of the block demanded the same, it was permitted.
19. Witness DW-3 Mr. Arvind Aggarwal deposed on the basis of affidavit Ex.DW3/A. In his affidavit he has stated that he has earlier been the treasure and auditor of the society. He was appointed as an observer in the elections in dispute. He stated that there has not been irregularities in the election. In his cross examination by counsel for plaintiffs, he stated that he was present at the polling booth on 13.04.2017 and also knew more or less all the voters who had come to cast their votes. He confirmed that Mr. Rahul Bansal was also present. However, it was his wife who had cast his vote. She was carrying her identity card with her. Despite opportunity given, counsel for defendants no.2 to 6 did not cross examine the witness.
20. The evidence was closed on behalf of the defendants on 07.08.2018. The matter got listed for final arguments. Final arguments were heard on 25.08.2018 when the orders were reserved.
21. The present suit has been instituted by the plaintiffs against the defendant's society and its office bearers for having declared the election held on 30.04.2017 as null and void. The same were conducted under the aegis of defendant no.2, who was appointed as Returning Officer to have the election conducted for the period of 2017-2019. The present suit has also been instituted for the consequential reliefs, in the nature of perpetual injunction to restrain the defendants no.3 to 10 from acting/representing themselves the elected members of the managing committee of defendant no.1 and for mandatory injunction for directing the re-polling to be done for defendant no.1 for the year 2017-19. Plaintiffs have filed the suit in the capacity of members of Resident Welfare Society of Greater Kailash-I, alleging non- adherence to the rules of the game set out by defendant no.2, Returning Officer, himself, with respect to the proxy voting that he had permitted by notification dated CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 16/21 18.04.2017 Ex.PW1/3 and the proxy voting by residents who were out of station, with the authorization being issued by way of email, through supplementary notification Ex.PW1/4. It is urged that the constitution of the defendant no.1 did not provide for proxy voting. Despite objections raised, the same was permitted and the rules thereof were flouted by defendant no.2 I.e Returning Officer himself, by permitting persons not duly authorized to cast their votes. However, the allegations of the plaintiffs are that the Returning Officer had asked outgoing Secretary i.e. defendant no.3 to get ballot papers print, which was an utter abuse of his authority. Only one request through email was received by the Returning Officer that was consequentially allowed for voting. It is further their allegation that the margin of victory was very narrow, essentially because multiple votes were cast by some voters and some were cast without proper authorization by way of proxy voting. It is the same that made all the difference in the results declared as Ex.PW1/6. It is also an allegation that Mr. Rahul Bansal himself has contested election as a candidate and his wife has been permitted to cast vote on his behalf. There are discrepancies alleged with respect to the authorization letter that form part of the electoral record. In the email dated 04.05.2017, Ex.PW1/25, sent by Defendant no.2 through defendant no.4, the Returning Officer has virtually admitted the fact that objections were raised and there were lapses in the conduct of the election. He has only clarified that same was done in good faith. Thus, the present suit has been filed for the prayers discussed.
22. Upon perusal of the evidence that has come on record, it is glaring to note that under the rules/memorandum of association of the S-Block, Welfare Association Ex.PW1/2, Under Rule No.2 (a), it is provided that elections of the office bearers of the managing committee would be done either by show of hands or by secret ballot after appointment of the Returning Officer. The notice dated 18.04.2017 Ex.,PW1/3 issued by the Returning Officer can be construed as having become a part of the dispensation, governing the rules for the conduct of the election on 30.04.2017. As per Ex.PW1/3 I.e notice dated 18.04.2017 by defendant no.2, proxy voting by spouse/daughter/son is stated to be permitted if the voter is unable to attend on account of reasons such as ill health, though with the rider that CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 17/21 the proxy voter would be required to carry an authority letter from the voter to vote himself or herself. Likewise, Ex.PW1/4 provides the residents out of station, an opportunity to cast their votes if they are permitted by the actual voter by way of authority letter issued by email addressed to the Returning Officer. The proxy voter was required to carry hard copy of the email with him or her. The authority letters that have come on record do not seem to be proper very face of it, since some of the authority letters such as Ex.PW1/7, Ex.PW1/8, Ex.PW1/10, Ex.PW1/11, Ex.PW1/12, Ex.PW1/14 did not spell out the reasons for non availability of the actual voter. Ex.PW1/9 is an authority letter which provides for authorization in favour of the concerned voter on the ground that voter himself is out of town and not available. The proper way in view of the notification Ex.PW1/4 was for the voter to send an email to the Returning Officer that has clearly not been brought on record.
23. The Returning Officer I.e defendant no.2 in his cross examination has admitted and has stated that he stands by every word in letter Ex.PW1/25, a clarificatory message sent to the residents through Mr. Mahesh Kumar Gupta. He has stated that in the message that election records were collected and handed over to defendant no.6 for safe custody in good faith. Documents were considered to confidential. It is stated that the same were made public by him which resulted in certain anomalies being raised. One of these was casting of vote by way of four votes. In this respect, the Returning Officer has stated that same is correct. He has been able to identify the concerned individuals but is withholding the their names. Even in his cross examination, DW-2 has acknowledged that the claim with respect to the double casting of the votes was indeed correct. In the second anomaly acknowledged in Ex.PW1/25, he states that one authority letter is not signed. He states that same is also correct 'as it passed' their scrutiny. In his cross examination as DW-2, when asked with respect to the Ex.PW1/7, one of the authority letters on record, he had admitted that the signatures of the concerned voter were not affixed on the authority letter, explaining that the same were overlooked by them. In the third anomaly with respect to the faking of the signature on some authority letters, he could not given confirmatory statement on the same. It was stated in the CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 18/21 clarificatory message that the columns for the voter signatures were provided in the counter-foil, however the same was dispensed with, since the voters had signed electoral roll.
24. Throughout examination and cross examination of the witnesses produced by the defendants, they have essentially questioned the opening of the sealed electoral record by the defendant no.6. The Returning Officer who was at the helm of the affairs himself in Ex.PW1/25 has admitted that the record was handed over to defendant no.6 for safe custody. None of the defendants have been able to explain as to how the authority letters forming a part of the electoral record have been forged and fabricated by the plaintiffs or by defendant no.6. The said allegations remains unproved.
25. It is further glaring to note that Mr. Rahul Bansal, who was one of the contesting candidates had authorized is own wife to cast vote by the authority letter Ex.PW1/10. Same on the very face of it is unethical. The witness DW-3 had confirmed that Mr. Bansal's wife had indeed cast her vote in the election in dispute . Even DW-2 have confirmed in his cross examination that Mr., Rahul Bansal as per Ex.PW1/6 was a candidate for the post of Joint Secretary.
26. Perusal of the results Ex.PW1/6 shows very narrow margin in victory as claimed by the plaintiffs. Clearly the rules of the game were not adhered too by the Officer Incharge of the conduct of the elections, which has affected the sanctity thereof. The claim of the defendants that the record has been illegally misused by defendant no.6 in collusion with the plaintiffs and with ulterior vested motives operating behind institution of the suit, remain unsubstantiated, as nothing has been proven to suggest that record relied upon by the plaintiffs, admittedly in possession/custody of defendant no.6, was tempered with or fabricated. The other issue raised to the effect that the objections with respect to the proxy voting ought to have been raised at the time when notification was issued for the same, is also meritless, since it is a settled principle of the law on elections that once the process is under way, the election cannot be disputed /stalled until results are declared and the process culminates and attains completion. Thus issue wise findings accordingly are as under.
CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 19/21 Issue No.1 Whether the plaintiffs have no locus to institute the present suit?OPD. The defendants have failed to discharge their onus in respect of the issue. The issue accordingly stands decided in favour of the plaintiffs. Issue No.2.
Whether the proxy voting was permitted as per the rules framed under the Society's Registration Act and the Indian Companies Act?OPD . The defendants have failed to discharge their onus in respect of the issue. The issue accordingly stands decided in favour of the plaintiffs.
Issue No.3 Whether the elections were conducted in contravention of the notification issued by the defendant no.2 himself and also in contravention of the rules under the Society's Registration Act and the Indian Companies Act and therefore the results thereof are liable to be declared as void?OPP . The plaintiff have for the above discussed reasons been able to discharge their onus with respect to this issue. The elections in dispute and the results thereof are being declared null and void for the above detailed reasons.
Issues No.4, 5, 6, 7(4)Whether the plaintiff is entitled to the relief of declaration with respect to the elections held for the period of 2017-2019, held on 30.04.2017 and its consequent result to be null and void?OPP.
(5) Whether the plaintiff are entitled to the relief of perpetual injunction against defendant no.3 to 10 acting/holding the office as duly elected members of the Managing Committee of defendant no.1? OPP.
(6) Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed for direction for fresh election of defendant no.1 to be conducted for the period of 2017-2019?OPP.
(7) Relief.
Issue no.4,5,6 & 7 relates to the reliefs sought. They also stand decided in favour of the plaintiffs for the above discussed reasons.
27. Thus, the case stands made out by the plaintiffs for the declaration of the elections conducted on 30.04.2018 to be null and void. Election accordingly stand CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 20/21 so declared as null and void. Defendants no.3 to 10 are accordingly restrained from acting/representing themselves as office elected bearers of managing committee of defendant no.1. The managing committee existing prior to the said election to take control of the affairs of the society as adhoc arrangement, till fresh election are conducted by appointment of the Returning Officer afresh, as per bye laws and the rules governing the defendants society.
Digitally signed by SHRIYA28. Decree sheet be prepared accordingly. SHRIYA AGRAWAL AGRAWAL Date: 2018.09.01
29. File be consigned to Record Room. 20:09:29 +0530 Pronounced in the Open Court (Shriya Agrawal) On 31st August, 2018 CJ/SE/Saket/31.08.2018 CS no.646/17 Vidyut Arora (Senior Citizen) & Anr Vs. S-Block Welfare Society Greater Kailash 21/21