* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 7821/2015 & CM Nos. 15528-15529/2015 % Date of decision : 21 st August, 2015 SANJEEV KUMAR & ORS Through: versus... Petitioner Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Rajesh Srivastava, Adv. REGISTRAR OF CO-OPERATIVE SOCIETIES & ORS.... Respondent Through: Mr. S.K. Tripathi, ASC for R-1 Mr. Vivek Singh, Adv. for R-2/Bank Mr. Anil Kumar, Adv. for Mr. Sandeep Shaukeen, contesting candidate Mr. Anunaya Mehta, Adv. for Mr. Jai Bhagwan, Secretary CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE I.S.MEHTA GITA MITTAL, J (Oral) 1. On 21 st August, 2015 when the matter was listed in court, we had passed the following order :- With the consent of parties, this writ petition is taken up today for consideration. We have heard Mr. Sudhir Nandrajog, learned Senior Counsel appearing on behalf of the petitioner; Mr. Santosh Kumar Tripathi, learned Standing Counsel appearing for GNCT of Delhi/respondent No. 1; Mr. Vivek Singh, learned counsel appearing on behalf of respondent No. 2/Bank at great length; Mr. Anunya Mehta, learned counsel appearing for Mr. Jai Bhagwan and Mr. Anil Kumar, learned counsel on behalf of Mr. Sandeep W.P.(C) No. 7821/2015 Page 1 of 22
Shaukeen are present who contend that their clients have submitted the nominations for participating in the elections whose rights are affected and they may be heard. We have consequently permitted them to make submissions as well. Mr.Nandrajog has been heard in response as well. On a consideration of the entirety of the matter, the writ petition is allowed in terms of prayers (c) and (d) of the writ petition. The Returning Officer shall notify the schedule of elections within a week from today and the elections in any case, shall be conducted within a period of three months from today. Reasons to follow. 2. We hereby pen our reasons for granting prayers c and d in the writ petition. 3. The petitioner filed the present writ petition seeking the above prayers :- a. Record of the case may be summoned. b. to issue an appropriate writ or order/direction whereby to set aside the order dated 0.4.06.2015 for being illegal, arbitrary, unconstitutional, unjust, unreasonable, fabricated, manipulated and against the provisions of Delhi Cooperative Societies Act, Rules and by-laws; c. to issue an appropriate writ or order/direction to set aside the agenda notice of the elections dated 06.08.2015 issued by the Returning Officer for being illegal, arbitrary, unconstitutional, unjust, unreasonable, manipulated and against the provisions of Delhi Cooperative Societies Act, Rules and by-laws; d. to issue appropriate writ or order/direction to respondent no. 1, to hold free and fair elections of the society after preparing the list of the members in fair and transparent manner in accordance with the provisions of the DCS Act. e. to pass ex-parte ad-interim order in terms of the above prayer. W.P.(C) No. 7821/2015 Page 2 of 22
f. Award the cost of the petition in favour of the petitioner. 4. The instant writ petition lays a challenge to the proposal to conduct of the elections to the managing committee of the Delhi Nagrik Sehkari Bank Ltd., pursuant to the agenda notice dated 6 th August, 2015 issued by the returning officer-respondent no. 3 hereunder. The challenge rests primarily on the ground that the requirements of Clause 3 of Schedule II of the Delhi Cooperative Societies Rules, 2007 (DCS Rules hereafter) have not been complied with, and yet the respondents propose to conduct the elections. 5. Our attention is drawn to the following election programme drawn up by the returning officer appointed by the respondent no. 1 as notified in the agenda notice dated 6 th August, 2015. The relevant extract of this schedule notified by this agenda notice relevant for our purpose reads thus :- S.No. Programme Date Time Venue 1. Issue of Nomination Forms (fee of cost) 2 Filing of Nominations 18.08.2015 10 am to 3 pm O/o Returning Officer /A D M (North) GNCT of Delhi-1, Kirpa Narain Marg, Delhi- 110064 20.08.2015 10.00 am As above W.P.(C) No. 7821/2015 Page 3 of 22
3 Scrutiny of nominations to 3.00 pm 21.08.2015 1 pm As above 6. Notice to show cause in the writ petition was accepted on 18 th August, 2015 on behalf of the Registrar of Cooperative Societies and the returning officer-respondent nos. 1 and 3 herein respectively. As the Delhi Nagrik Sehkari Bank Limited-respondent no. 2 bank was not represented, notice was issued to it. 7. On 19 th August, 2015, Sh. Narender Singh, Additional CEO of the respondent no. 2-bank sought an adjournment to file an affidavit to bring on record the dates on which the list of members and default members of the bank were prepared and published in compliance with clause 3 Schedule II of the Delhi Cooperative Societies Rules. Respondent no. 2 has placed before us an affidavit dated 20 th August, 2015 of Sh. Upendra Garg, CEO in compliance thereof. 8. Apart from the representation of parties to the writ petition, Mr. Anunay Mehta, Advocate representing Mr. Jai Bhagwan, Secretary and Mr. Anil Kumar, Advocate representing Mr. Sandeep Shaukeen were present during the hearings and had sought leave to support the legality of the process undertaken. It is submitted that the outcome of the present writ petition would affect Mr. Sandeep Shaukeen who is also pursuing to contest elections. There was no objection from any of the other parties and consequently, in the interests of justice, we have permitted Mr. Anunay Mehta, Advocate as well as Mr. Anil Kumar, W.P.(C) No. 7821/2015 Page 4 of 22
Advocate to make submissions in opposition to the writ petition. 9. In as much as the primary ground of challenge in this writ petition rests on compliance with Clause 3 of Schedule II of the Delhi Cooperative Societies Rules, 2007, for the purposes of convenience, we extract the same hereunder:- 3. The Committee shall prepare a list of members as it stood on thirty days before the date fixed for the inviting nomination, and publish copies of the said list by affixing them upon the Notice Board at the Head Office of the cooperative society and in its branches, if any, not less than ten days prior to the date fixed for inviting nomination. The list shall specify the membership number and the name of the member, the name of the father or husband, as the case may be, and the address of each member. In case of federal co-operative societies or financing institution, in which other cooperative societies are member, Returning officer shall invite nominations of authorized representatives along with resolution of the Committee and specimen signature of authorized representative as well as photo duly attested by the president or secretary or managing Director of the cooperative society giving fifteen days time to them. If any co-operative society has not responded to the notice of the returning officer upto the prescribed date and time, the said primary society shall not be eligible to participate in the election to be conducted thereafter. A list of such authorized representative shall be prepared and displayed by the returning officer fifteen days prior to the date of inviting nomination. It shall be the duty of the Board of Directors in office, or the Administrator, as the case may be, to bring upto-date the register of members and such other registers, as the returning officer may require, and hand over such records, register or registers, to the returning officer thirty days prior to the date fixed for the general body meeting for the purpose of election. A copy of the list shall be supplied by the co-operative society or returning officer including federal society/financial bank W.P.(C) No. 7821/2015 Page 5 of 22
to any member on payment of such fee as specified: PROVIDED that defaulters list shall be prepared thirty days before the date of the election and displayed at the notice board of the co-operative society and a copy shall be sent to the Registrar in duplicate, one for record and the other for display on the notice board in the office of the Registrar. Defaulters shall be allowed to clear their dues before the date of filling nomination only and in case of Federal/Financing society before the date of submission of delegates name. (Emphasis by us) 10. This provision contains two underlying requirements. Firstly, Clause 3 envisages a preparation of the list of members of the Society thirty days before the date fixed for inviting nominations. Secondly, it stipulates affixation of the list upon the notice board at the head office as well as branches of the society not less than 10 days prior to also the date fixed for inviting the nominations. 11. It is contended by Mr. Sudhir Nandrajog, learned senior counsel appearing for the petitioner that the above mandatory requirements have not been complied with. It is further submitted that the defaulters list mandated by the proviso to Clause 3 was to be prepared 30 days before the date of the election and that it also has been neither prepared nor displayed. 12. This agenda notice dated 6 th August, 2015 has been circulated to all branches of the Chief Executive Officer of the respondent no.2 bank under cover of a letter dated 12 th August, 2015 advising the branch managers to whom it was sent, to display the same on the notice board of the branches. It is noteworthy that neither the agenda notice dated W.P.(C) No. 7821/2015 Page 6 of 22
6 th August, 2015 nor the covering letter dated 12 th August, 2015 make any reference to a list of members. 13. It is not disputed that this agenda notice dated 6 th August, 2015 was dispatched only on 14 th August, 2015. 14. The affidavit filed on behalf of the respondent no. 2-society by its Chief Executive Officer also sheds light on the issues pressed before us. We may usefully extract the averments contained in paras 6, 7, 8 and 10 of the affidavit which reads thus :- 6. That a circular dated 09.06.2015 was issued by the deponent to branches of the Respondent No.2 bank enclosing list of members as on 06.06.2015 for verification by the branches. The branch managers were advised to get the draft list checked and returned to the head office latest by 11.06.2015. 7. That the branch managers verified the list and returned the same and consequently final list was prepared, which was sent to the Respondent No.1 vide covering letter dated 20.06.2015. The said letter dated 20.06.2015 along with list of members/voters containing data of 65726 members running in 714 pages and list of defaulters and deceased members running in 74 pages was delivered in the office of Respondent No.1 on 22.06.2015 and copy was given to Respondent No.3. The letter dated 20.06.2015 is annexed herewith as Annexure 1. Simultaneously, soft copy of both the lists (voters list and defaulters list/deceased members list) was placed on the main server of the bank such that it could be accessed by all the branches. 8. I say that, the Respondent Bank is working on Core banking system (CBS) whereby data of all members can be seen on computers in all the branches. The data of eligible members as well as defaulters/deceased members was available on the computers of all the branches. xxx xxx xxx 10. That after filing of the instant writ petition, the W.P.(C) No. 7821/2015 Page 7 of 22
Respondent No.2 bank in order to avoid any technical objections has provided printed copies of lists of eligible members as stood 30 days prior to the date fixed for filing nominations as well as defaulters/deceased members to all the 14 branches on 19.08.2015. 15. The respondent in his affidavit has also stated as follows :- 9. That the lists of eligible members as well as defaulter/deceased members was voluminous (list of eligible members running in 714 pages and list of defaulters and deceased members running in 74 pages, total about 788 pages in A3 size papers). The respondent no. 2 bank has practice of making the soft copy available in every branch. Any member can obtain copy of list of members from the bank on payment of prescribed fee as per Delhi Cooperative Societies Act and Rules which works out to Rs.32,900/- in the present case. 16. It is clear from the above averments that the list of members was not prepared 30 days before the date of 20 th August, 2015 which was fixed for inviting nominations. 17. It has been rightly urged by Mr. Sudhir Nandrajog, learned senior counsel for the petitioner that a valid electoral roll is the sine qua non for elections. The list of members would require a scrutiny of persons who may have been validly enrolled but may not be eligible to vote in the elections for various reasons. A member may have defaulted in payment of the dues of the society or his membership may have been terminated. There may be members who have resigned from their membership or are dead. It is necessary to prune the list of members and prepare a proper list of valid members who are entitled to participate and vote in the elections to the managing committee. W.P.(C) No. 7821/2015 Page 8 of 22
18. Clause 1(i) of Schedule II of the DCS Rules provide that a managing committee of a society has to take the decision to hold elections, 60 clear days before expiry of the term of the managing committee expiring. Let us examine the intendment of the statute in fixing a timeline for taking the decision for holding elections and preparation of the list of members and its publication. 19. The legislature has fixed a time schedule of 30 days prior to the election for preparation of the list and has directed its publication 10 days prior thereto for an important purpose. This is to enable all members to scrutinise the list and ensure its correctness. Such preparation and publication would enable those who have been wrongly excluded to represent for correction of the list of members. It would enable correction of wrong inclusions in the list of members as well. While the act of preparation of the list of members may not be a public act, however, the requirement to publish the list puts the list of members in the public domain. 20. Clause 3 Schedule II of the DCS Rules, 2007 prescribes the mode in which the list has to be published. It unequivocally declares that the copies of the list would be published by affixing them upon the notice board at the head office of the society and in its branches. This affixation has to be effected not less than 10 days prior to the date fixed for inviting nominations. 21. Our attention is drawn to Clause 2 of Schedule II which stipulates that notice of the general body meeting shall be sent to the members by four modes namely- (a) by local delivery; (b) by post under certificate of posting; (c) by circulation among the members; or W.P.(C) No. 7821/2015 Page 9 of 22
(d) by speed post or courier services, duly registered with competent authority. We have noted the above requirements in Clause 2 in order to illustrate that the legislature has carefully carved out a distinction between service of an individual notice (under Clause 2 of the Schedule to the DCR Rules) and the requirements of a public notice in a public place (as mandated under Clause 3). 22. In addition to these individual notices, Clause 2 mandates that notice of the general body meeting shall also be affixed on the notice board of the Cooperative Society and branches as well as on the notice board of the Returning Officer. Contents of the notice are also statutorily prescribed. 23. Mr. Sudhir Nandrajog, learned senior counsel for the petitioner has emphasised the well settled dictum that if a statute prescribes a thing to be done in a particular manner, it has to be done in the same manner or not at all.(ref.: Nazir Ahmed v. Emperor AIR 1936 PC 253). There can be no dispute with this well settled legal position. It binds the present adjudication. 24. Both Mr. Anunaya Mehta as well as Mr. Anil Kumar have vehemently urged that it is not reasonably practicable to affix the list of members on the notice board given the volume of such list. 25. We are informed by Mr. Mehta that the Delhi Nagrik Sehkari Bank Ltd. has a membership of over 60,000 members and that it is not practically possible to display the list of the members on the notice boards as mandated by Clause 3 of the Schedule II to the rules. It is submitted that the list of members is maintained electronically by the Bank and is available for inspection to any member who may be W.P.(C) No. 7821/2015 Page 10 of 22
interested in scrutiny thereof. 26. We are informed in para 9 of the affidavit of the respondent no. 2 that the list of members runs into 714 pages while the list of defaulters and deceased members runs in 74 pages which brings the list of eligible and default members to a total of 788 pages in A-3 size papers. We would agree with learned counsel for the respondents that it is not reasonably practicable to paste 788 pages on the notice board of the head office or the branches of the banks. 27. However, the requirement of Clause 3 of Schedule II is mandatory. It brooks no exception. It first postulates the preparation of the list of members within the stipulated period and thereafter postulates the publication of the list. 28. Looked at from any angle, maintenance of records electronically may be of extreme utility. It enables expeditious transmission and is certainly environmentally beneficial inasmuch as valuable paper is saved. However, it is still not statutorily recognised so far as the Delhi Cooperative Societies Act and Rules, the spirit, object and intendment of the requirement stipulated under Clause 3 does not permit any noncompliance. 29. However, whatever be the difficulty the respondents cannot avoid putting the list of members in the public domain. Such mode or method has to be adopted as would ensure accessibility of the list to every member who wished to examine the list within the four corners of law. 30. Before us, the admitted position is that a list of members/voters containing data of 65726 members and running into 744 pages and the W.P.(C) No. 7821/2015 Page 11 of 22
list of deceased/default members running into 74 pages was delivered in the office of the Registrar of Cooperative Societies on 22 nd June, 2015. It was also furnished to the Returning Officer/respondent no.3. However, so far as publishing the list for the benefit of the members is concerned, only a soft copy of both these lists has been placed on the main server of the bank so that it could be accessed by the branches. It is, therefore, an admitted position that it has till date not been published by affixation upon the notice board at the head office of the respondent no. 2 or its branches. 31. It is also an admitted position that no hard copy of the list is available in the head office or the branches. Only soft copies in the computers of the bank/branches is available for the data of all members. 32. In answer to our oral query, we have been informed that the computers at the head office in the bank or branches of the bank can be accessed only by the employees or authorised personnel of the bank. The same is not accessible by the public. We have been informed by learned counsels appearing for the respondents that no employee of the bank can be its member. It is stated before us that no member of the public can access to server of the bank. The same position would subsist in all the branches as well. Therefore, the data with regard to the members is available only to the bank employees on the computers of the branches. Therefore, it is obvious that no member of the bank can access the data regarding the members which has been installed in the computers of the bank. 33. Furthermore, whereas the list or the notice which is published on the notice board would be freely accessible to any member of the W.P.(C) No. 7821/2015 Page 12 of 22
public, however, in para 9 of the affidavit of the respondent no. 2, we are informed that a copy of the list of members can be obtained from the bank only on payment of prescribed fee under the Delhi Cooperative Societies Act and Rules and that, in the present case, the same works out to Rs.32,900/-. This is not a small sum of money and would be beyond the reach of many interested members. Thereby, the members have been deprived access to the list which law mandated that it should be in public domain. 34. Before we examine the contentions of the rival parties, we may briefly explore the purport, intent and importance of preparation of a list of members as well as its publication. Elections to a committee of any organisation can be conducted only from persons who are valid members thereof and eligible and entitled to vote. 35. The respondent no. 2 has disclosed that on 19 th August, 2015, in order to avoid any technical objections, it has provided printed copies of the list of members to all its 14 branches. This also is certainly not in compliance with the requirement of Clause 3 of the statute. 36. It has been urged by Mr. Anunaya Mehta that the respondent no. 2 has stated that no new members had been inducted after 31 st July, 2014. However, this does not make eligible every person who was a member on or before 31 st July, 2014. Old members can commit default and become ineligible for voting. Therefore, scrutiny of eligibility of every member and the preparation of the list in terms of Clause 3 before an election has to be effected. We are also not informed as to when, if at all, a list of members prior thereto was prepared or published or put in the public domain. W.P.(C) No. 7821/2015 Page 13 of 22
37. The respondents do not state before us that they have issued any public notice that they were posting a soft copy of the list only on the main server of the bank or that it could be seen on computers in the branches. The affidavit filed by the respondent no. 2 before us also, does not disclose that the member of a bank (who would be a member of the public) can access the data on the computers of the bank. It is only stated that a list of members can be obtained on payment of the prescribed fee which has been worked out to Rs.32,900/- in the present case. As a result, the members of the bank have been prevented from scrutinising the list of members. This facility of obtaining the copy of the list of members on payment has also not been publicised by any notice. 38. It has to be, therefore, held that members of the respondent no.2 bank have been deprived the opportunity to scrutinise the list of members. In as much as the respondent no. 2 has failed to publish the list of members as required thereunder, there is, therefore, blatant noncompliance of the requirement of Clause 3 of the Delhi Cooperative Societies Rules, 2007. 39. While it may not be possible to paste 78 pages on the notice board, however there can be substantive compliance with the statutory requirements by preparing hard copies of the list and ensuring availability of at least one hard copy at the head office as well as other branches of the bank in public places. Simultaneously, visible public notices have to be displayed about the availability of the hard and soft copies of the list of members to any person wishing to inspect the same on the at the Head Office as well as branches to the bank. W.P.(C) No. 7821/2015 Page 14 of 22
This is practicable and would meet the requirements of adequate notice to all the members of the bank as envisaged under Clause 3. 40. We may also examine whether the respondent no. 2 complied with the requirement of Clause 2 for preparation of the list of members. The notice of the returning officer as well as the CEO does not show that any list of members was ready or available with the returning officer on the date of the notice. As stipulated in the Schedule, the nominations have to be filed on 20 th August, 2015. The list of all valid members had to be finalised thirty days prior to this date i.e. on or about the 20 th July, 2015. Such list was required to be placed on the notice board not later than 10 th August, 2015. It is obvious that the respondent no.2 has failed to prepare the list in terms of the mandate of Clause 3. 41. It has been vehemently contended on behalf of respondent no. 2 by Mr. Anunaya Mehta and Mr. Anil Kumar that the election process having commenced, the same cannot be interdicted. 42. So far as the importance of the electoral roll is concerned, it was noted by the Supreme Court in the judgment reported at AIR 1980 SC 1612 Bar Council of Delhi & Anr. v. Surjeet Singh & Ors. wherein in para 10, it was held thus :- 10. The illegal preparation of the electoral roll by the Delhi Bar Council on the basis of the invalid proviso to Rule 3(j) goes to the very root of the matter and no election held on the basis of such an infirmity can be upheld. There is no question of the result being materially affected in such a case. 43. In para 15 of Bar Council of Delhi & Anr., the Supreme Court W.P.(C) No. 7821/2015 Page 15 of 22
placed reliance on its precedents reported at AIR 1957 SC 304 Chief Commissioner, Ajmer v. Radhey Shyam Dani in the following terms :- 15. In Chief Commr., Ajmer v. Radhey Shyam Dani [1957 SCR 68 : AIR 1957 SC 304 : 12 ELR 443] the respondent before the Supreme Court had filed a writ petition in the Court of Chief Commissioner of Ajmer challenging the validity of the notification directing the holding of the election of the Ajmer Municipality and the electoral roll. This challenge was made before the election was held. Since the electoral roll prepared was found to be invalid as it was prepared in accordance with some invalid rules, a Constitution Bench of this Court upheld the decision of the Chief Commissioner. At p. 75, Bhagwati, J., speaking for the court said: It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. xxxx The Supreme Court had thus sustained a challenge to the validity of a notification directing holding of elections as well as the electoral roll and approved and upheld the order of the Chief Commissioner who had found the electoral rolls to be invalid. 44. Three things can be discerned from this decision of the Supreme Court. Firstly, an illegal preparation of an electoral roll goes to the W.P.(C) No. 7821/2015 Page 16 of 22
very root of the matter. An election held on the basis of such an infirmity can never be upheld. Secondly, no question of the result of the election being materially effected would arise in such a case. Thirdly, the challenge to the validity of the notification directing holding of the elections tantamounts to a challenge made before the election was held, and such a challenge would be entertained. 45. In the present case as well, the petitioner has challenged the notice directing holding of elections as well as the non-compliance of the applicable statutory provisions for preparation and publication of the electoral rolls. The objection made by Mr. Anunaya Mehta as well as Mr. Anil Kumar that this would tantamount to a challenge after the commencement of the election process which is impermissible in law, is misconceived. 46. We may note at this stage the objection of Mr. Anunaya Mehta resting on Section 101(b) of the Representation of Peoples Act to the effect that the petitioner was required to plead that the error would materially affect the result. It has been objected that the petitioner has not averred that the error as contended by the petitioner in publication of the electoral list would materially affect the result of the elections. 47. We find that Section 100 of the Representation of Peoples Act relates to a challenge to the election. The challenge before us is to a process prior to the actual elections. Elections have not been conducted so far. In any case, as held by the Supreme Court in para 10 of Bar Council of Delhi v. Surjeet Singh, there would be no question of the result being materially effected in such a case (i.e. a case involving illegal preparation of the electoral roll). Therefore, these objections are W.P.(C) No. 7821/2015 Page 17 of 22
also devoid of legal merit. 48. We also find misconceived the submission of Mr. Anil Kumar, Advocate that the act of sending list of members to the Registrar of Cooperative Societies and the Returning Officer was sufficient compliance with the requirement of Clause 3. This submission is noted only for the sake of rejection. Sending the list to the respondent no. 1 or the respondent no. 3 is of no significance in as much as it was the members who had to have notice of the preparation of the list and access thereto. 49. We may borrow the words of the Division Bench of this court in the pronouncement reported at 2008 (10) AD(Delhi) 105 Narender Kumar Jain v. Govt. of NCT of Delhi on the importance of the list of members as well as circumstances in which courts may interdict elections wherein it was stated thus:- 14. xxxxx So far as the election of cooperative societies in Delhi are concerned, Schedule-II of the repealed legislation as well as the extant statute and Rules, postulates the preparation of the electoral rolls or voters list together with the defaulters list are required to be forwarded to the Registrar, thirty days prior to the elections. This is obviously so ordained in order that remedial action that can be taken by any aggrieved party. This hiatus or interregnum is not a meaningless one. 50. Further, the Bench drew attention in para 16 to frivolous and malafide challenges to election process as an endeavour of persons in power to perpetuate tenures by idle and disguised jural challenges thereto. It cautioned that the court must be vigilant not to entertain W.P.(C) No. 7821/2015 Page 18 of 22
frivolous or malafide litigation so that the extra ordinary writ jurisdiction should not be trivialized or made mundane. The court specially expounded on the principles which would guide challenges to electoral rolls in election to bodies other than parliament in the following terms :- 16. xxx So far as elections to bodies, other than Parliament and the Legislatures are concerned, it would be salutary and in public interest to ignore trivial infractions and concentrate on serious violations which have the effect of completely frustrating the object of the elections. Run of the mill complaints can completely and comprehensively be considered by the Court after the conclusion of the elections. However, if it is patently clear that the process adhered to by the Returning Officer is likely to prevent and not promote an election, judicial review would facilitate the flow rather than stopping the stream. Refusing to intervene may, in such cases, result in there effectively being no elections at all. We are really making no departure or deviation from the law declared by the Supreme Court in directing that in the context of election of societies or bodies other than Parliament and the Legislatures, the electoral process should be seen to commence only after the finalisation of the electoral rolls. There must be a hiatus between this exercise and declaration or notification of the schedule of elections. At the second stage the Writ Court or the Civil Court would interfere with the election process in very rare or extraordinary situations. Since there are no statutory constraints in the exercise of jurisdiction of the Writ or Civil Courts so far as elections to societies and other bodies are concerned and keeping in perspective the fact that post the declaration of the result of election the aggrieved party must show that the act complained of has materially affected the outcome of the election, curial concern is not completely curtailed. A challenge to the electoral rolls should properly be brought within the hiatus between the completion of the electoral rolls and the W.P.(C) No. 7821/2015 Page 19 of 22
declaration of the schedule of elections. There may still be circumstances in which Courts may interdict the elections, for example, where the Returning Officer has erroneously permitted a voter to cast more than one vote since this erroneous decision or practice may not have manifested itself only after the schedule of elections has been publicised. However, this would be one of the extreme, extraordinary or rare instances where the Court would be competent to redress the grievance, even though it may have the consequence of delaying the election for a short period. After all, there is no purpose in punctiliously conducting or going through the motions of an election, if it is ultimately found that a legally proper, sustainable and meaningful election has not been held. A reading of DCS Act, 2003, as well as its precursor, shows that a hiatus between the preparation of the electoral rolls and the Notification of the elections has been preserved. Section 35 of the DCS Act, 2003 clarifies that the superintendence, direction and control of the preparation of the electoral rolls vests in the Committee. For the present purposes, Schedule-II which prescribes the procedure for the conduct of elections of the Committee, inter alia envisages that it is the Committee that shall prepare a List of Members as it stood on thirty days before the date fixed for the inviting of nominations and shall publish this List not less than ten days prior to the date fixed for inviting nominations. The repealed Rules are substantially similar except that the time allotted earlier was forty-five days for publishing the List. It is our opinion that the repealed as well as extant statues and rules consciously place a bifurcation between the preparation of the Lists and the commencement of the electoral process. The electoral process starts with the invitation of nominations, appointment of a Returning Officer and the notifying of the schedule of elections. Although this is not one of the points raised before us in these proceedings, we direct that the W.P.(C) No. 7821/2015 Page 20 of 22
above analysed provisions of the Act and the Rules must be meticulously maintained in all elections of cooperative societies to which the DCS Act applies. (Emphasis by us) 51. The Supreme Court has noted that an illegal preparation of the electoral roll goes to the root of the matter and held on this basis cannot be upheld. We have found that the respondents have failed to prepare or publish the electoral rolls in accordance with law. The illegality of either of these acts can be revealed only upon the issuance of the notice by the Returning Officer. Therefore, on application of the principles laid down by this court in para 16 of the Narender Kumar Jain, we find that there is no legal prohibition to the exercise of writ jurisdiction and grant of the prayers made in the writ petition by this court. For all these reasons, the elections to the managing committee of the respondent no. 2 society cannot proceed on the schedule as notified in the agenda notice dated 6 th August, 2015. 52. We, consequently, direct as follows :- (i) (ii) The writ petition is allowed in terms of prayer c and d. The Returning Officer shall notify the schedule of elections within a week from today and the elections in any case, shall be conducted within a period of three months from today. There shall be no orders as to costs. CM Nos. 15528-15529/2015 W.P.(C) No. 7821/2015 Page 21 of 22
In view of the order passed on the writ petition, these applications do not survive for adjudication are hereby dismissed. GITA MITTAL, J AUGUST 21, 2015 kr I.S.MEHTA, J W.P.(C) No. 7821/2015 Page 22 of 22