Delhi High Court
A.S. Gahlout And Ors. vs Lt. Governor Of Delhi And Ors. on 26 November, 1993
Equivalent citations: AIR1994DELHI69, 53(1994)DLT201, AIR 1994 DELHI 69, 1994 CO-OP TJ 215, (1994) ILR(DEL) 2 DEL 1, (1994) ILR 2 DEL 1, (1994) 53 DLT 201, (1994) 1 RRR 695
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT Arun Kumar, J.
(1) This writ petition challenges the order dated: 16th April, 19.93 passed by the Lt. Governor of Delhi in exercise his powers under section 31(7) of the Delhi Cooperative Societies Act, 1972 (hereinafter referred to as the Act).
(2) The Delhi State Cooperative Bank Limited is a 'financing bank' within .the meaning of Section 2(1) of the Act and is duly registered as a society with the' Registrar of Cooperative Societies, Delhi. It is thus a co-operative society. In a co-operative society the general body of members is supreme and it has the final authority in all matters. However, the day to day functioning of the society is entrusted to delegates of members of the society chosen in accordance with the bye-laws of the society and the law. This smaller body generally known as managing committee or committee exercises the powers of the general body. This concept is statutorily recognised in Section 28 of the Act. The elections of the members of the Committee are normally held in the Annual General Body meeting of the cooperative society as provided in Section 29 of the' Act.
(3) The Delhi State Cooperative Bank Limited falls in a distinct class of cooperative societies. Rule 58A of the Delhi Cooperative Societies Rules, 1973 contains the classification of cooperative societies for the purpose of Section 31 of the Act and the Bank falls in that class being a financing bank. Section 31 .of the Act contains provisions regarding election and nomination of members of committees of this class of co-operative societies. The following provisions of Section 31 of the Act are relevant for purpose of controversy involved in the present writ petition:
(1)The superintendence, direction and control of the preparation of the electoral rolls for and the conduct, of elections - of the members of the committees of such co-operative societies or class of cooperative societies as may be prescribed shall be vested in such returning officers not below the rank of gazetted officers as may be appointed by the Lieutenant Governor in this behalf.
(2)The vote at such elections shall be by secret ballot.
(7)Notwithstanding anything contained in this Act, any dispute relating to election of members of any committee of a cooperative society mentioned in sub-section (1) shall be referred to the Lieutenant Governor whose decision thereon shall be final.
(8)The Lieutenant Governor may make rules generally to provide for or to regulate matters in respect of elections of members of the committees.
(4) The Board of Directors of the Delhi State Cooperative Bank Limited (hereinafter referred to as the Bank) was superseded by the Registrar, Cooperative Societies in exercise of powers vested under Section 32 the Act on 23rd July, 1990. For the purpose of reconstitution of the Board of Directors elections were ordered to be held and Shri P. R, Meena. Deputy Registrar was appointed as. the Returning Officer. Shri P. R. Meena issued an Agenda Notice dated 13th April, 1992 notifying a special General Body meeting of the Bank to be held on 3rd May, 1992 at 8.00 A.M. for conducting the election of the President and the Members of the Board of Directors of the Bank. The election took place in pursuance of the said Agenda Notice on 3rd May, 1992 and the results were declared. The election was challenged through petitions filed under Section 31(7) of the Act before the Lt. Governor of Delhi. Vide order dated 21st September, 1992, the Lt. Governor set aside the election and directed the Registrar, Co-operative Societies to take necessary steps for holding of fresh elections. The Lt. Governor also appointed an .Administrator to look after the a flairs of the Bank till a newly elected Board took over. The said order of the Lt. Governor was challenged by way of a writ petition filed in this Court. On 21st October, 199'2 this Court set aside the order of the Lt. Governor dated 21st September, 1992 and remanded the case for fresh adjudication by the Lt. Governor in accordance with law. Thereafter, the Lt. Governor gave fresh opportunity of hearing to the parties and also examined 'the records and passed a fresh order on 16th April, 1993 reiterating his decision setting aside the election held on 3rd May, 1992 and directed fresh election to be held by the Registrar, Co-operative Societies. In the meanwhile, the Administrator was to continue to look after the affairs of the society. It is the second order of the Lt. Governor dated 16th April, 1993 which is under challenge in the present writ petition.
(5) Before coming to the merits of the case, we may note that there are four petitioners in the present writ petition. Vide an application being C.M. 4345/93 petitioner No. 4 prayed that his name be ordered to be deleted from the array of parties. This application somehow remained pending. In the meanwhile, in pursuance of the order of the Lt. Governor dated 16th April, 1993 the process for holding fresh election to the Board of Directors of the Bank had started. The matter was brought before this Court on 26th May, 1993 when it was ordered that "fresh election process should continue and the election may also be held if the date is prior to the decision of the writ petition but the result will not be announced till the writ petition is decided." The petition came up for final hearing on 19th July, 1993. It appears that by this time fresh election had been held. This Court had directed that result of the fresh election will not be announced until the writ petition is decided. However, parties came to know of the result as the counting of votes had been carried out, though the result was not formally declared. This seems to be the reason for petitioner No. 4 filing yet another application being C.M. 5314/93 whereby he sought liberty to withdraw the previous application by which he had prayed that his name be deleted from the array of parties. On 19th July, 1993, petitioner No. 4 was allowed to withdraw his previous application for deletion of his name from the array of parties. On the said date, statement was made by counsel for the petitioners 1 to 3 that he had instructions from the petitioners 1 to 3 not to press the present writ petition on their behalf. Accordingly, petitioners I to 3 were allowed to withdraw as petitioners and their names were transposed as respondents. This appears to be the outcome of the fact that results of the fresh elections became known to the parties even though they were not formally declared. The net result of this is that Mr. Ramesh Yadav has remained the sole petitioner for the purpose of continuing the writ petition.
(6) If may also be noted at this stage that one Prem Prakash, who is a party to this petition as respondent No. 8, had filed his own independent writ petition in this Court being C.W. 2408/93 challenging the same order of the Lt. Governor and the said writ petition was dismissed in liming by a speaking order by a Division Bench presided over by B. N. Kirpal and A. B. Saharya, JJ. vide order dated 14th May, 1993.
(7) Shri R. P. Bansal, learned counsel for the petitioner while challenging the order of the Lt. Governor dated, 16th April, 1993, has extensively referred to various provisions of the Representation of People Act. Drawing analogy from the various provisions of these statutes and the various decisions of the Courts interpreting those provisions, the learned counsel has raised following propositions to sustain the challenge to the impugned order :
1.No material particulars were furnished, in the election petition filed before the Lt. Governor. Only a roving and fishing enquiry was being sought and the Lt. Governor has acted on the basis of mere allegations,
2. Even if the Lt. Governor believed that no material particulars were required to be given, he should have taken evidence by setting down the petition for trial.
3.The election of the returned candidate must have been materially effected.
(8) As already observed these propositions have been drawn from the provisions of the Representation of People Act and the decisions rendered by the Courts in relation thereto. The Delhi Co-operative Societies Act is a totally different and independent legislation. It deals with co-operative societies. The election to the managing committee of a co-operative society are normally held in the Annual General meeting of the society. No formal procedures as applicable to elections held under the Representation of People Act are prescribed or envisaged. It is only to be ensured that the elections are held in a free and fair manner. In order to ensure that the elections are free and fair, the matter has been left to the final decision of the Lt. Governor. The powers given to the Lt. Governor under sub-section 7 of Section 31 of the Act are very vide. Any dispute regarding election of members of any committee is liable to be referred to the Lt. Governor whose decision thereon is rendered final. The Lt. Governor is a high functionary in the set up and governance of the local administration. He has been endowed with final authority to ensure that free and fair elections are held in co-operative societies falling in the class covered under Section 31 of the Act. Thus, the statute has reposed full faith and confidence in the Lt. Governor in such matters. The orders of the Lt. Governor passed under sub-section (7) of Section 31 of the Act cannot be allowed to be challenged in routine." As already noticed, the main thrust of the argument on behalf of the petitioner challenging the order of the Lt. Governor is based on the decisions rendered in relation to the Representation, of People Act. In the very nature of things and the provisions contained in the Delhi Co-operative Societies Act, 1972, the judgments rendered on the basis of the provisions of the Representation of People Act cannot be applied. The said Act and the Rules framed there under contain elaborate provisions for conduct of elections and also for challenging the elections. The decisions referred to on behalf of the petitioner are based on the statutory provisions. Therefore, those decisions have no relevance for the present purpose. The question for consideration before us is whether the election which was challenged before the Lt. Governor was held in a free and fair manner. The Lt. Governor has taken an overall view of the matter on the basis of submissions made by the learned counsel for the parties appearing before, him and the record of the election which was called for by him. In fact, regarding calling of the, records of election before toe Lt. Governor, all the parties who were represented before the Lt. Governor felt satisfied and they in fact inspected the records in order to make their submissions. Therefore, it is not open at this stage to any party to make a complaint about summoning of record by the Lt. Governor and allowing its inspection to the parties. After allowing the parties to inspect the record and also after hearing detailed arguments of counsel for the parties, the Lt. Governor has passed the order dated 16th April, 1993. He has given reasons for his conclusions which we do not find in any manner to be illegal or irrational.
(9) The Supreme Court in quote with approval the three principles laid down by Lord Diplock in Council of Civil Service Unions and others Vs. Minister for the Civil Service, 1984 (3) All England Reporter 935(1), for the purpose of judicial review of such decisions. These principles are :
(I)Illegality.
(II)Irrationality.
(III)Procedural impropriety.
We find that the impugned order of the Lt. Governor does not suffer from any of these vices. Therefore, we are unable to persuade ourselves to accept the submission made on behalf of the petitioner that said order is liable to be set aside. The Lt. Governor has passed a detailed order. In fact, he has also emphasised that expedition is required in such matters because the term of the elected members of the Board of Directors is three years, while one-third of them have to retire to retire after a year. Therefore, these matters require expeditious disposal. The Lt. Governor has also noted that the election of committee of co-operative of co-operative societies cannot be equated with the elections held under the Representation of People Act. Elections are part of agenda of the Annual General meeting. They can be challenged on any ground on which a General meeting can be challenged challenged, like lack of coarm, insufficient notice etc. Therefore, elections to the committee of co-operative society are on a different pedestal all together and there is no comparson with elections held under the Representation of People Act.
(10) The learned counsel for the petitioner also tried to advance plea based on sub-section (2) of Section 31 of the Act. The submission is that the election has to be held on the basis of secret ballot. By allowing inspection of records, the secrecy of the election was lost. This argument seems to be totally mis-conceived. For one thing, the ballots do not contain any name or number or any other particulars so as to connect a particular ballot to a particular voter. Therefore, there is no question of secrecy being lost. Secondly, the inspection was allowed to the parties, who never objected to it. On the contrary, the parties welcomed inspection of records before the Lt. Governor. Therefore, this argument is not even open to any party at this stage.
(11) We have held that the provisions of the Representation of People Act do not apply in case of elections to the committees of co-operative societies under the Delhi Co-operative Societies Act. Yet on broad principles, we have examined the propositions advanced by the learned counsel for the petitioner to challenge the order of the Lt. Governor in the present case. The Lt. Governor has himself examined the records to arrive at the aforesaid conclusions. Therefore it cannot be said that lie acted on the basis of mere allegations. From the record he found that there were certain irregularities in the conduct of election and, therefore, 'the election could not be said to be a free and fair election. In fact, all the parties who were parties to the petition before the Lt. Governor were allowed to inspect the records.
(12) The second proposition on behalf of the petitioner is that the matter should have been set down for trial. The Lt. Governor has noted that in view of the short tenure of the Board of Directors of the society, the matter had to be disposed of expeditiously. Apart from this it is to be noted that for a trial there has to be a lis and for lis there should be adversaries. In the facts of the case in .hand there were no adversaries as such. Section 32(7) of the Act does not envisage an adversary type of litigation. This is to be contrasted with provisions of the Representation of People Act and Rules which lay down elaborate procedure for an election petition, in the absence of such provisions in the Delhi Co-operative Societies Act & Rules, a trial if held, may become unguided and may turn into an unnecessary and endless fishing and rowing inquiry. If the matter had been set down for trial, expeditious disposal could not have been possible.
(13) The learned counsel for the petitioner further submitted that there should have been strong allegations before the: Lt. Governor could decide to examine them. In this connection, we may only note that the strength of the allegations is established by the fact that the final verdict of the Lt. Governor finds that the allegations are correct.
(14) Lastly, it was submitted on behalf of the petitioner that the irregularity should be such that the election of the returned candidate must have been materially effected. This argument again overlooks the fact that in an election petition under the Representation of People Act the lis is between the victor and the vanquished Whereas in the election petition under Section 31(7) of the Act, all the candidates in the election fray are parties to the petition. It is not a lis between two individuals. Therefore, this argument is really not attracted in the present case. Moreover, under Section 31(7) of the Act, the Lt. Governor has very vide powers and he has to ensure that the election under challenge before him was held in a free and fair manner.
(15) In view of the above discussion we do not consider it necessary to refer to the various decisions cited on behalf of the petitioner. All the decisions are decisions rendered with reference to the provisions of the Representation of People Act.
(16) By the impugned order the Lt. Governor had set aside the elections and ordered fresh elections to be held. By virtue of an interim order passed in the present writ petition on 26th May 1993, fresh election was permitted to be held but its result was withheld till the decision of the writ petition. We learn that the fresh election has been held, though its result has not been formally announced. The interim order dated 26th May 1993 did not contain any specific direction regarding counting of votes. Therefore, counting of votes appears to have taken place and the parties are aware of the count. This is apparent from the events which took place during the pendency of the petition. Parties have shifted their stand after the election. Petitioner No. 4 who earlier wanted his name to be struck off from the petition, applied for withdrawal of his earlier application for deletion of his name. Petitioners 1 to 3 who earlier wanted to pursue the petition, withdrew after the election. From this it is clear that after the election lot of horse trading has taken place. This is a highly condemnable phenomena in any democratic set up and has to be curbed at every cost.
(17) Then we have fresh writ petitions challenging the election held in pursuance of the impugned order dated 16th April 1993. Some of the grounds of challenge are the same which were urged before the Lt. Governor and which were accepted by him while passing the impugned order. In order to put an end to this entire litigation and to remove all the irritants it may be appropriate to order fresh election. In fact during the course of hearing of this petition, possibility of holding fresh election through an independent officer appointed for this purpose was discussed. Most of the parties used to remain present during the course of hearing of the petition. Some of them were represented through counsel. All the counsel appearing in the matter not only agreed but in fact welcomed the idea of holding fresh election to the Board of Directors of the Bank through an independent officer to be appointed by the Court. There was, however, one exception. Respondent No. 12 did not agree to this. As a result of the opposition to the idea of holding fresh election by one party, this matter was not further pursued. However, these facts have been mentioned in order to judge whether in a matter particularly concerning the affairs of a co-operative society where voice of majority must prevail, can a single person thwart the wish of the majority to have fresh election. Apart from the fact that in matters particularly relating to cooperative societies, an individual cannot stall the wish of the majority, we feel that in exercise of our jurisdiction under Article 226 of the Constitution of India this Court has power to mould the relief as considered most appropriate, just and fair in the facts and circumstances of the case. We feel that a direction for holding fresh elections under the superintendence, control and supervision of an officer to be appointed by this Court will be the best and most fair solution.
(18) We appoint Shri J. D. Jain, a retired Judge of this Court to conduct the election in accordance with law and the procedure prescribed under the Act and the Rules. His fee is initiatively fixed at Rs. 20,000 besides other expenses. The election be completed preferably within a period of three months from today. Till the fresh Board to be elected in pursuance of the fresh election ordered by this Court is able to take over, the Administrator appointed by the Lt. Governor vide the impugned order will continue to look after the affairs of the Bank.
(19) In the facts and circumstances of the case the parties are left to bear their respective costs.
(20) A copy of this judgment be sent to Shri J. D. Jain.