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(2004) 4 Supreme Court Cases 697 : 2004 SCC OnLine SC 442
(BEFORE R.C. LAHOTI AND ASHOK BHAN, JJ.)
DEORAJ . . Appellant;
Versus
STATE OF MAHARASHTRA AND OTHERS . .
Respondents.
Civil Appeal No. 2084 of 2004† , decided on April 6, 2004
A. Constitution of India — Art. 226 — Interim relief — Discretion — When
should be granted — Factors to be considered — When order tantamounting
to a mandamus can be issued at the interim stage — Where withholding the
interim relief would amount to dismissal of the main
Page: 698
petition itself, as by the time the main matter comes up for hearing, nothing would
remain to be allowed as relief, court may, having regard to a strong prima facie
case, balance of convenience and irreparable injury, issue an interim writ even
though it would amount to granting the final relief — However, that should be made
in rare cases under compelling circumstances — Maharashtra Cooperative Societies
Act, 1960 (24 of 1961) — Ss. 144-Y & 73-G
B. Constitution of India — Art. 136 — Interference with interim orders —
Supreme Court normally does not interfere with such orders — But this is a
rule of discretion followed by practice
A cooperative society falling in one of the categories included in Section 73-G of
the Maharashtra Cooperative Societies Act had eight Directors, including the
appellant in its Board of Directors at the material time. As the term of the Chairman
previously elected was coming to an end, the date of election of the new Chairman
was notified. The appellant filed his nomination paper which was found to be in
order. There was no withdrawal. At the time of voting only four Directors including
the appellant were present whereas quorum as per relevant bye-law was 50% plus
one Director. After waiting for some time for arrival of other Directors, the
Returning Officer drew up the proceedings of special meeting and after recording all
the facts the Returning Officer declared the meeting as being stayed. The appellant
insisted on his being declared as the duly elected Chairman in view of he being the
only duly nominated candidate for the office of Chairman. But he received no
response. He then filed a writ petition in the High Court seeking quashing of the
order of the Returning Officer and a command to complete the election programme
as scheduled by resuming the same from the stage at which it had stopped. In
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substance the appellant sought for his being declared the duly elected Chairman of
the Society. The appellant also sought for an ad interim writ to the same effect.
During pendency of the petition, fresh election programme was announced. The
appellant moved an application for amendment in the writ petition seeking setting
aside of the election programme and an ad interim writ seeking suspension of the
election proposed to be held afresh. By the impugned order, the High Court directed
rule to issue in the presence of the Government Pleader for the State and its
officials and the counsel for the Society but at the same time directed the prayer for
interim relief to be rejected. Feeling aggrieved therewith this appeal by special leave
has been filed.
Allowing the appeal, the Supreme Court
Held :
An order of interim relief may or may not be a reasoned one but the factors of
prima facie case, irreparable injury and balance of convenience do work at the back
of the mind of the one who passes an order of interim nature. Ordinarily, the court
is inclined to maintain status quo as obtaining on the date of the commencement of
the proceedings. However, there are a few cases which call for the court's leaning
not in favour of maintaining the status quo and still lesser in percentage are the
cases when an order tantamounting to a mandamus is required to be issued even
at an interim stage. There are matters of significance and of
Page: 699
moment posing themselves as moment of truth. Such cases do cause dilemma and
put the wits of any judge to test.
(Para 11)
Situations emerge where the granting of an interim relief would tantamount to
granting the final relief itself. And then there may be converse cases where
withholding of an interim relief would tantamount to dismissal of the main petition
itself; for, by the time the main matter comes up for hearing there would be
nothing left to be allowed as relief to the petitioner though all the findings may be in
his favour. In such cases the availability of a very strong prima facie case — of a
standard much higher than just prima facie case, the considerations of balance of
convenience and irreparable injury forcefully tilting the balance of the case totally in
favour of the applicant may persuade the court to grant an interim relief though it
amounts to granting the final relief itself. Of course, such would be rare and
exceptional cases. The court would grant such an interim relief only if satisfied that
withholding of it would prick the conscience of the court and do violence to the
sense of justice, resulting in injustice being perpetuated throughout the hearing, and
at the end the court would not be able to vindicate the cause of justice. Obviously
such would be rare cases accompanied by compelling circumstances, where the
injury complained of is immediate and pressing and would cause extreme hardship.
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The conduct of the parties shall also have to be seen and the court may put the
parties on such terms as may be prudent.
(Para 12)
In this case, a foolproof case for the grant of interim relief was made out in
favour of the petitioner in the High Court on the basis of the material available
before the Court. There was only one nomination filed which was found to be in
order and was not withdrawn. The time appointed for filing nominations, scrutiny
and withdrawal was over. There was no contest. Nothing had remained to be done
at the meeting of the Committee which was to be convened only for the purpose
of declaring the result. Nothing was to be put to vote. Holding of a meeting was
only for the purpose of performing the formality of declaring the appellant as
elected. In fact the election programme, as notified, itself contemplated the meeting
at 1400 hours for voting and counting “if felt necessary”. The provision as to
quorum lost all its significance. It did not make any difference whether there were
eight Directors to hear the declaration of result or just four or even none. Maybe,
the Directors had learnt of there being a single valid nomination and that too not
withdrawn, and also knew that the result of the election was a fait accompli, and
therefore, did not want to take the trouble of even coming to the venue of the
meeting. Unless something was brought to the notice of the Court either by way of
material in the shape of documents or affidavits or even by way of a plea raised
before the Court which could come in the way of the relief being granted to the writ
petitioner, in a case of such nature, the interim relief ought to have been granted.
The writ petitioner appellant is right in submitting that the election was for a period
of one year out of which a little less than half of the time has already elapsed and in
the absence of interim relief being granted to him there is nothing which would
survive for being given to him by way of relief at the end of the final hearing.
(Para 13)
Therefore, the impugned order, insofar as it rejects the prayer for the grant of
interim relief, is set aside. The prayer for the grant of interim relief as made by the
writ petitioner appellant is allowed. The respondents are directed to announce
Page: 700
the result of election in accordance with the election programme post-haste and act
accordingly.
(Para 15)
R-M/ATZ/29909/C
Advocates who appeared in this case:
Venkateswara Rao Anumolu and Dr. Kailash Chand, Advocates, for
the Appellant;
Manish Kr. Saran, Mukesh K. Giri and Ravindra Kr. Adsure,
Advocates, for the Respondents.
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The Judgment of the Court was delivered by
R.C. LAHOTI, J.— Leave granted.
2. Tuljabhavani Zilla Sahakari Doodh Utpadak Va Prakriya Sangh
Maryadit, Osmanabad (hereinafter “the Sangh” for short) is a
cooperative society falling in one of the categories included in Section
73-G of the Maharashtra Cooperative Societies Act, 1960 (hereinafter
“the Act” for short). Section 144-Y of the Act makes special provision
for election of officers of such societies. It reads as under:
“144-Y. Special provision for election of officers of specified
societies.—(1) This section shall apply only to election of officers by
members of committees of societies belonging to the categories
specified in Section 73-G.
(2) After the election of the members of the committee and,
where necessary, cooption or appointment, as the case may be, of
members to the reserved seats under Section 73-B or whenever such
election is due, the election of the officer or officers of any such
society shall be held as provided in its bye-laws but any meeting of
the committee for this purpose shall be presided over by the
Collector or an officer nominated by him in this behalf.”
3. Here itself it would be relevant to reproduce the relevant bye-laws
of the Society as under:
“18.3. Every year after annual general body meeting, in first
meeting of Board of Directors, as per provisions of law, Chairman
shall be elected for a period of one year. Till the new Chairman is
elected, previous Chairman should continue to hold the post.
18.11. Out of total number of elected Directors, if 50 per cent plus
one Directors (including nominated Directors) are present for
meeting then, corum (sic quorum) for the meeting shall be
complete.”
4. The Sangh has a Board of Directors consisting of eight Directors to
look after the management and working of the Sangh. The present
Board of Directors which includes the appellant also as a Director was
elected on 27-3-2000. The term of the Board is five years but the
Chairman is elected every year for a term of one year each. The
previous three Chairmen were elected in the meetings held on 12-10-
2000, 12-11-2001 and 9-12-2002, respectively. As the term of the
Chairman previously elected on 9-12-2002 was coming to an end, the
election of a new Chairman was notified to be held on 14-11-2003 so as
to elect the Chairman for the next term of one year. The Collector,
Osmanabad was to preside over the meeting called for the purpose.
Page: 701
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The Collector, Osmanabad by his order dated 29-11-2003 appointed
the Tahsildar, Osmanabad as the Returning Officer. The election
programme was notified by the Tahsildar-cum-Returning Officer on 3-
12-2003 as under:
“Election programme for the post of Chairman, scheduled for 11-
12-2003:
Date Time Stages of election
11-12-2003 11.00 to 12.00 Distribution of
p.m. nomination papers
and acceptance of
nomination papers
11-12-2003 12.00 noon to Scrutiny of
12.15 p.m. nomination papers
11-12-2003 12.30 p.m. to Withdrawal of
1 p.m. nomination papers
11-12-2003 2 p.m. If felt necessary, then
voting, counting and
declaration of result of
election.”
(Underlining†† by us)
5. Simultaneously with the notification of the election programme,
the Managing Director of the Sangh issued notices to all the Directors
informing them of the meeting scheduled to be held at 2 p.m. on 11-12
-2003. The election programme was also communicated to all the
Directors.
6. On 11-12-2003, at 11.48 a.m. the appellant filed his nomination
paper, the receipt whereof was issued by the Returning Officer. There
was no other nomination filed. On scrutiny the nomination filed by the
appellant was found to be in order. There was no withdrawal.
7. At 2 p.m. only four Directors, including the appellant, out of the
total eight Directors of the Sangh were present. The Returning Officer
awaited the arrival of other Directors for ten minutes. At 10 minutes
past 2 p.m., the Tahsildar-cum-Returning Officer drew up the
proceedings of special meeting recording all the facts relating to the
notification of election, the filing of single nomination paper, its scrutiny
and no withdrawal and the fact that only four Directors had turned up
for the meeting. In the concluding paragraphs the Tahsildar-cum-
Returning Officer recorded as under:
“The Board of Directors of the said Society consists of total 8
Directors. The quorum for special meeting is half+1 Director. But
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since 4 Directors are present for the meeting, the quorum for the
meeting is not completed. Therefore, the said special meeting is
stayed. It is declared so.
The Returning Officer has declared that the said special meeting is
being stayed, will be communicated to the Collector, Osmanabad,
Page: 702
thereafter, further proceedings will be done as per his orders. After
giving vote of thanks to the present Directors, the meeting is declared
to be over.
Date: 11-12-2003”
8. It appears that the appellant insisted on his being declared as the
duly elected Chairman in view of he being the only duly nominated
candidate for the office of Chairman. But he received no response. On
17-12-2003, he filed a writ petition in the High Court of Bombay, Bench
at Aurangabad seeking quashing of the order dated 11-12-2003 passed
by the Tahsildar-cum-Returning Officer and a command to complete
the election programme as scheduled by resuming the same from the
stage at which it had stopped. In substance the appellant sought for
his being declared the duly elected Chairman of the Sangh. The
appellant also sought for an ad interim writ to the same effect.
9. The petition remained pending along with the prayer for interim
relief. In the meantime, on 26-12-2003, the Collector announced fresh
election programme convening a meeting to be held on 5-1-2004. The
whole process of election was directed to be commenced from the
beginning. The appellant moved an application for amendment in the
writ petition seeking setting aside of the election programme declared
on 26-12-2003 and an ad interim writ seeking suspension of the
election proposed to be held afresh. By the impugned order dated 5-1-
2004, the Division Bench of the High Court directed rule to issue in the
presence of the Government Pleader for the State and its officials and
the counsel for the Society but at the same time directed the prayer for
interim relief to be rejected. Feeling aggrieved therewith this appeal by
special leave has been filed.
10. Ordinarily, this Court in its exercise of jurisdiction under Article
136 of the Constitution does not interfere with the orders of interim
nature passed by the High Court or tribunals. This is a rule of discretion
developed by experience, inasmuch as indulgence being shown by this
Court at an interim stage of the proceedings pending before a
competent court or tribunal results in duplication of proceedings; while
the main matter is yet to be heard by the court or tribunal seized of the
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hearing and competent to do so, valuable time and energy of this Court
are consumed in adjudicating upon a controversy the life of which will
be coterminous with the life of the main matter itself which is not
before it and there is duplication of pleadings and documents which of
necessity shall have to be placed on the record of this Court as well.
However, this rule of discretion followed in practice is by way of just
self-imposed discipline.
11. The courts and tribunals seized of the proceedings within their
jurisdiction take a reasonable time in disposing of the same. This is on
account of fair-procedure requirement which involves delay intervening
Page: 703
between the previous and the next procedural steps leading towards
preparation of case for hearing. Then, the courts are also overburdened
and their hands are full. As the conclusion of hearing on merits is likely
to take some time, the parties press for interim relief being granted in
the interregnum. An order of interim relief may or may not be a
reasoned one but the factors of prima facie case, irreparable injury and
balance of convenience do work at the back of the mind of the one who
passes an order of interim nature. Ordinarily, the court is inclined to
maintain status quo as obtaining on the date of the commencement of
the proceedings. However, there are a few cases which call for the
court's leaning not in favour of maintaining the status quo and still
lesser in percentage are the cases when an order tantamounting to a
mandamus is required to be issued even at an interim stage. There are
matters of significance and of moment posing themselves as moment
of truth. Such cases do cause dilemma and put the wits of any judge to
test.
12. Situations emerge where the granting of an interim relief would
tantamount to granting the final relief itself. And then there may be
converse cases where withholding of an interim relief would tantamount
to dismissal of the main petition itself; for, by the time the main matter
comes up for hearing there would be nothing left to be allowed as relief
to the petitioner though all the findings may be in his favour. In such
cases the availability of a very strong prima facie case — of a standard
much higher than just prima facie case, the considerations of balance of
convenience and irreparable injury forcefully tilting the balance of the
case totally in favour of the applicant may persuade the court to grant
an interim relief though it amounts to granting the final relief itself. Of
course, such would be rare and exceptional cases. The court would
grant such an interim relief only if satisfied that withholding of it would
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prick the conscience of the court and do violence to the sense of justice,
resulting in injustice being perpetuated throughout the hearing, and at
the end the court would not be able to vindicate the cause of justice.
Obviously such would be rare cases accompanied by compelling
circumstances, where the injury complained of is immediate and
pressing and would cause extreme hardship. The conduct of the parties
shall also have to be seen and the court may put the parties on such
terms as may be prudent.
13. The present one is a case where we are fully satisfied that a
foolproof case for the grant of interim relief was made out in favour of
the petitioner in the High Court on the basis of the material available
before the Court. There was only one nomination filed which was found
to be in order and was not withdrawn. The time appointed for filing
nominations, scrutiny and withdrawal was over. There was no contest.
Nothing had remained to be done at the meeting of the Committee
which was to be convened only for the purpose of declaring the result.
Nothing was to be put to vote. Holding of a meeting was only for the
purpose of performing the formality of declaring the appellant as
elected. In fact the election programme, as notified, itself
Page: 704
contemplated the meeting at 1400 hours for voting and counting “if felt
necessary”. The provision as to quorum lost all its significance. It did
not make any difference whether there were eight Directors to hear the
declaration of result or just four or even none. Maybe, the Directors
having learnt of there being a single valid nomination and that too not
withdrawn, and also knew that the result of the election was a fait
accompli, and therefore, did not want to take the trouble of even
coming to the venue of the meeting. Unless something was brought to
the notice of the Court either by way of material in the shape of
documents or affidavits or even by way of a plea raised before the Court
which could come in the way of the relief being granted to the writ
petitioner, in a case of such nature, the interim relief ought to have
been granted. The writ petitioner appellant is right in submitting that
the election was for a period of one year out of which a little less than
half of the time has already elapsed and in the absence of interim relief
being granted to him there is nothing which would survive for being
given to him by way of relief at the end of the final hearing.
14. It is pertinent to note that in spite of the respondents having
been noticed by this Court, none has made appearance excepting the
State of Maharashtra and the State too has not chosen to file any
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counter-affidavit.
15. The appeal is allowed. The impugned order dated 5-1-2004,
insofar as it rejects the prayer for the grant of interim relief, is set
aside. The prayer for the grant of interim relief as made by the writ
petitioner appellant is allowed. The respondents are directed to
announce the result of election in accordance with the election
programme dated 11-12-2003 post-haste and act accordingly.
16. Before parting we make it clear that whatever has been stated
hereinabove is for the purpose of disposing of the prayer for the grant
of ad interim relief and that has been done on the basis of material
available on record at this stage. As a very short question of law arises
for decision in the case, the High Court would do well to take up the
main matter itself for hearing at an early date and decide the same
finally. The High Court while deciding the writ petition on merits would
obviously do so on the basis of pleadings and documents produced and
submissions made before it; the High Court need not feel inhibited by
anything said in this order. No order as to the costs.
———
† Arising out of SLP (C) No. 2617 of 2004. From the Judgment and Order dated 5-1-2004 of
the Bombay High Court in WP No. 5834 of 2003
††
Ed.: Herein italicized
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