Calcutta High Court
Tapash Majumder And Anr. vs Dr. Pranab Dasgupta And Ors. on 30 August, 2005
Equivalent citations: AIR2006CAL55, AIR 2006 CALCUTTA 55
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
ORDER Kalyan Jyoti Sengupta, J.
1. Both the aforesaid two applications have been made in connection with the aforesaid suit which has been filed by the plaintiffs for the reliefs amongst others of declaration that the purported final voter list prepared at the instance of the present Executive Committee is null and void, illegal, fraudulent and ineffective and not binding on the plaintiffs and the members of the Club; the declaration that the said purported voter list be delivered up and cancelled; preparation and correction of the final voter list by Special Officer or Administrator to be appointed by the Hon'ble Court and inclusion of the names of all eligible members of the voter list and correction of the voter list by correcting address, declaration that the Rule 11(e) of the East Bengal Club Rules is null and void and not binding upon the plaintiffs and other members of the Club and cancellation of the Rules and other consequential reliefs.
2. The first mentioned application being G.A. No. 2392 of 2004 was taken out immediately after filing of the suit for the interlocutory reliefs asking for appointment of Special Officer for the purpose of conducting the election for Executive Committee of the said Club under his supervision in such a manner and on such terms as the Hon'ble Court may seem proper and also other necessary direction upon the Special Officer to be appointed for the purpose of scrutinizing and verifying the purported voter list prepared by the present Executive Committee and to publish a fresh voter list after removing the discrepancies therein. At the interim stage the plaintiffs/petitioners were unsuccessful in obtaining the order of appointment of Special Officer for the purpose as mentioned in the application and also in obtaining order of injunction from holding any election. The Hon'ble Mr. Justice Subhro Kamal Mukherjee was pleased not to pass any interim order interfering with the election. His Lordship was pleased to give direction for filing affidavit and also, made clear that the result of the election shall abide by the result of the instant application. The order of the Hon'ble Mr. Justice Subhro Kamal Mukherjee dated 5th July, 2004 was taken to Appeal Court. The Appeal Court did not interfere with the order of the learned trial Judge rather affirmed the same with reasons and was pleased to dismiss appeal by an order dated 12th July, 2004. The petitioners herein being aggrieved with the order dated 12th July, 2004 of the Division Bench approached the Hon'ble Apex Court. The Hon'ble Supreme Court by an order dated 6th August, 2004 declined to interfere with the election process and refused to grant any relief to the petitioners except granting liberty to the petitioners of filing their objections before the learned single Judge challenging the election. It was made clear by the Apex Court that the objections, which might be raised by the petitioners before the learned single Judge be heard and decided summarily without regard to the nature and scope of the suit. It was clarified by the Hon'ble Apex Court that in the event the learned single Judge feels that the proper elections have not been held and a case for holding elections afresh made out then the learned single Judge will be at liberty to direct elections being held afresh and pass appropriate incidental and consequential orders.
3. Therefore, net result was that the election had been held and that is made subjected to the scrutiny of this Court. Pursuant to the aforesaid leave granted by the Hon'ble Apex Court the petitioners have taken out fresh application being the second mentioned stating the facts and circumstances of the post-election period and prayed in this application for setting aside the election already held for the post of Executive Committee and further newly elected Executive Committee be restrained from conducting the affairs and taking part in the management and administration of the Club, Further, it has been made in the present application for appointment of special Officer for conducting the affairs of the East Bengal Club and its management and administration and for holding fresh election.
4. When the aforesaid orders were passed by this Court, Appeal Court as well as Apex Court there has been no affidavit-in-opposition from the defendants and all those matters were heard and dealt with on the basis of the allegations made in the petition as well as the submissions made by the Learned Counsels from the Bar.
5. In view of the aforesaid facts and circumstances both the applications have been taken up for hearing together. In view of the Supreme Court observation this Court is bound to enquire into the matters involving election both the election process and conducting election in both pre and post election period.
6. From the averment of the petitioner and annexure thereto I find the basic allegation challenging election process is that the electoral rolls were not prepared properly either at the provisional stage or at the final stage. The addresses of large number of voters were mentioned in the voter list differently from those mentioned in the Club Membership Register. One and single address has been given as the place of residence of a group of voters. There has been at least 10,000 members whereas the eligible voters were shown in the voter list about only 3000 and odd. Therefore, a large number of members were left out from this voter list. Even the dead members were included in the voter list. That apart the other allegations in the petitions are that the co-option of the office bearers of the Executive Committee of the Club was made contrary to the Rules of the Club and the Club is being thoroughly mismanaged and there has not been proper accounting and there has been a large scale misappropriation of funds. Of course these allegations are denied and disputed by the defendants contending that no single member has come forward to question the correctness of the preparation and publication of the voter list in spite of public notice under Order 1, Rule 8 of the Code of Civil Procedure having been given. Moreover, "due and proper notice was given through daily newspaper inviting objection to the provisional voter list which was notified to be available at the Club premises at Maidan. None has come forward to raise objection. Elections were duly and lawfully held. There has been no disturbance whatsoever. As such there is no need to interfere with the election process of the Club.
7. Mr. Ashok Banerjee, learned senior counsel submits that upon perusal of the final voter list of the life members it will be found that there are irregularities and infirmity in preparation of the same. The addresses of 89 life members out of 565 have been tampered with. Therefore, there is possibility of tampering and manipulating the addresses of the ordinary members whose numbers are many more than life members. The plaintiffs have been denied access to the Club Membership Register and as such they are unable to verify the anomalies, discrepancies, infirmities and illegalities regarding the final voter list of the ordinary members. Similarly, the plaintiffs were denied access to the provisional voter list. Without having any access to the Club Membership Register detail and fuller irregularities cannot be detected in the voter list. Normal procedures of inviting objections and correction exercises were not followed under the Rules. Mr. Banerjee has pointed out the instances from the averment of the petition whose names were left out. Illegal and improper changing of addresses without reference to the members concerned have created an atmosphere which is not in accordance with the Club Rules. He contends therefore, that the election has been held on the basis of the manipulated voter list. The Executive Committee of the Club constituted by the defendants is threatening to take action under Rule 11(e) of the Rules of the Club. The defendants and each of them have flouted the provision of Rule 39(j) of the Rules of the Club.
8. He submits that at the time of the election there was rampant rigging, manupulation and false voting. The outsiders were allowed to participate in this poll in order to help the defendants. In one word, there has been no fair and free voting. In spite of complaint being made the defendants particularly the Chairman of the Election Committee did not take any action. He contends that although his clients have participated in the election but this does not debar him from challenging the said action. In support of his submission he has relied on a decision of the Supreme Court judgment reported in AIR 1980 SC 1612. He further contends that statement and averment of the petition are that there has been wrongful and illegal exclusion of eligible voters from the final voter list. These allegations have not been denied and dealt with specifically as such these allegations and averments are deemed to have been admitted. Since beginning petitioners have been complaining against the preparation of voter list therefore because of participation, their challenge cannot be thrown out on that ground.
9. Mr. Banerjee further submits that in past almost on each and every occasion of holding election on approach being made this Court invariably appointed Special Officer to ensure free and fair election of the Executive Committee of the members as well as office bearers. On this occasion the situation and circumstances are much worse than the earlier occasion and as such though elections have been held Special Officer should be appointed to find out whether the voter list have been prepared in accordance with law. His next contention against the aforesaid Rule 11(e), which authorizes the Executive Committee to take action against any of the members who approached Court to challenge the election process and affairs of the administration, is bad, unconscionable and contrary to the provision of Section 28 of the Contract Act. The operation of the said rules has to be stayed otherwise the petitioners and each of them would be removed from the membership.
10. Mr. P.C. Sen, learned senior Counsel, appearing with Mr. A.K. Chatterjee, Senior Advocate contends that this application, the suit as well as the application thereunder are harassing exercises. No case has been made out either in the plaint or in the petition of the first mentioned application to interfere with the management of the Club and also preparation of the voter list. Mere allegations are not good enough to take action against the members of the Club or their running of administration. The provisional voter list was prepared in accordance with the law and in the month of April, long before holding the election. All the members were notified through daily newspapers once in Bengali and another in English inviting their objections, if any, to the provisional voter list. A very few negligible members came forward to raise objections and their objections were duly addressed by taking corrective measures. Unfortunately, the plaintiffs' group or their henchmen did not come forward. The change of address was made in the voter list on request being made by the members concerned. He contends that final voter list was prepared after taking a scrutiny exercise.
11. He contends that after the Supreme Court order it is not open for the plaintiff/ petitioner to challenge the election. The Supreme Court has allowed the election to be held and granted liberty to the petitioner to apply afresh to challenge the election. Therefore, it is not open for the petitioner to extend the scope of the enquiry. The petitioner duly participated in the election process unconditionally and having found himself defeated this application has been taken out. This is not permissible under the law and they are estopped from doing so. In support of his contention he has relied on a decision of the Supreme Court judgment reported in 1999 (8) SCC 262 (sic). Proper police arrangement was made at the time of the election. Everybody has come forward to cast his vote. The allegations are vague and devoid of any particular whatsoever. No com-plaint was made to the police officer regarding any illegality of unfair means at the time of holding election. This application, therefore, has to be dismissed.
12. I have heard the contentions of the learned Counsels and have gone through the materials placed before me. Mr. Sen's contention that at this stage the preparation of the electoral rolls should not be scrutinized, and the pre-election dispute cannot be examined by the Court, is not accepted by this Court. Upon careful reading of all the three passed previously in this matter right from the learned Trial Judge up to the Apex Court it appears to me, that the Court at the ad interim stage did not interfere with the election and allowed to be held but that would be subject to the scrutiny by the Court in all respects as it has been made clear by all the Courts. As rightly contended by Mr. Banerjee that the question of estoppel does not arise if the matter is sub judice and further if it is held dehors the relevant Rules of law. Those orders were passed at the ad interim stage and without having any affidavits stating the case of the defendants so much so to ascertain correctness of the petitioners' case. From the statements and averments I find the voter list was prepared provisionally and in my view it was not done secretly or clandestinely. It was done upon proper notice and giving a chance to each and every member to raise the objections, if they wished.
13. In the affidavit-in-opposition the notices issued in the daily newspapers both in Bengali and English in the month of April, 2005 intimating to all the members to examine the provisional voter list. It was open for the plaintiffs or any other members to raise objections. Such objections were not recorded. It is true these lapses or omission are there, but these do not absolve the elections official from explaining about large scale of exclusion. I find there has been serious allegation mentioned in paragraph 11 of the petition (G.A. No. 3721 of 2004) the Club consists of 10,000 members out of which the names of the members as appearing in the final voter list are approximately 3200. It is also mentioned that many eligible members have been deliberately left out from the final voter list through manipulation. Many members were wrongfully refused the identification forms although they approached the Club authorities for the issuance of the identification forms at the appropriate time. These allegations have not been dealt with specifically. No acceptable and plausible explanation has been given in the affidavit-in-opposition as to why the names of the large number of members were left out. In absence of specific denial and explanation of exclusion of the large number of members this Court is unable to uphold the correctness of the same at this stage, because almost two third of the members are alleged to have been kept out from casting these votes.
14. As far as the holding of election is concerned on the basis of the present voter list I think there is no case, far less sufficient case being made out by the petitioners to cancel the same. Of course after making an enquiry into preparation of the voter list if it is found that the large number of eligible members are excluded from the voter list wrongfully and illegally certainly this election has to be examined afresh.
15. The election is based on the true, correct and proper preparation of the voter list followed by lawful casting of votes and counting of valid votes cast. It is true that despite notification there is no evidence to show that members came forward to record their objections. It is common knowledge that the affairs of the club are hardly taken seriously by the majority of the members. But in view of the leave granted by the Hon'ble Supreme Court this Court feels that it has the duty to examine this aspect also, for waiver or abstinence of objection to voter list being finalized cannot defeat truth to prevail or legal provision is defeated.
16. As far as the aforesaid Rule 11(e) is concerned I accept the argument of Mr. Banerjee, of course, prima facie that this Rule is contrary to the Section 28 of the Contract Act and also opposed to public policy. No person can prevent any citizen in our policy from approaching the Court of Law when there is justiciable cause. Therefore, I restrain the defendants and each of them applying the aforesaid Rules till the disposal of the suit.
17. Under these circumstances, I, for the time being without interfering with the administrative affairs of the Club, appoint Mr, Hirak K. Mitra, Sr. Advocate and Mr. Biswanath Sommaddar Advocate, of Bar Library Club Joint Special Officer for undertaking the following tasks : (1) To examine after giving full opportunity of hearing to each and every member by way of notification whether the final voter list was prepared in accordance with the Club Rules; (2) Whether all the eligible members have been included in the final voter list; (3) Number of excluded members and whether the exclusion of the members from the voter list is proper or not under the Rules of the Club. After making an enquiry as aforesaid they shall submit a report before this Court within the period of eight weeks from the date of communication of this order. Costs and expenses for making the enquiry by the Special Officer shall be borne out of the Club fund. Initial remuneration is fixed at Rs. 40,000/- for Mr. Mitra and at Rs. 10,000/- for Mr. Sommaddar to be paid out of the fund of the club.
18. Matter will appear in the list once again as a partly heard matter three months since.