R D PATEL Vs. N E FREDRICK

JUDGEMENT

(1.) THE appeal arises out of the order of the learned Judge of the Co-operative Court. Bombay, when he confirmed the order of injunction on 23-3-1990 restraining these appellants from holding the particular meeting convened by them for the purpose of election and some other purposes. The said order was stayed by me when the appeal was presented with a notice to other side and the other side was heard and now the appeal is for hearing of the injunction notice which was disposed off by the trial Court and come in Appeal.

(2.) FROM the dispute which was filed before the trial Court it seems that the respondents challenged the meeting convened by the appellants on the grounds that it was not according to law and it declared that the action of the Managing Committee for calling the Special General Body Meeting on 25-3-1990 for the purpose of holding election was illegal, mala fide and liable to be set aside. Pending the hearing and final disposal of the dispute the injunction was sought retraining the respondents from holding that meeting. The grounds for such claims were that the disputant is a member of the co-operative Society of 70 members and the Managing Committee of 9 members. The disputant alleged that the opponents i. e. the appellants 2 to 9 who are also members of the Society were elected members of the managing Committee in the said General Body Meeting held in March, 1987. The dispute related to the Managing Committee of the Society who was trying to hold election prima facie illegally, and in contravention of the election Rules and the Bye-laws of the Society and restraining the Society from holding such election and passing any resolution with regard to the same in the said scheduled meeting of 25-3-1990. He alleged that since the appellants were elected as members of the Managing Committee in 1987 March, for a period of 3 years as provided in the Bye-laws of the Society there were several complaints against them. Therefore, show cause notice was issued by the deputy Registrar of the Co-operative Societies, A-Ward, Bombay on 2-11-1988 for action of supersession under Section 78 (1) of the M. C. S. Act, 1960 and after hearing those members the Deputy Registrar alleged to have passed the order of removal of this Committee and appointed one Rathod, Co-operative Officer as an Administrator to manage the affairs of the Society for a period of 6 months with effect from taking over charge of the management of the Society by the said Administrator and he was also directed to hold elections of the Managing Committee as early as possible. However, that order was challenged by these appellants by filing an Appeal under Section 152 of the Act to the Divisional Joint Registrar, Co-operative Societies, bombay, but the said appeal was dismissed on 22-8-1990. Against the said order of dismissal of the appeal the appellants moved the Government in revision and sought the stay of the order of supersession and appointment of Administrator. The Hon'ble Minister had rejected the application of the appellants for stay on 17-1-1990. Aggrieved by the said order of rejection of their application the appellants moved the High Court by filing a writ petition and, their Lordships in the Bombay High Court stayed the order of appointment of the Administrator, consequently the supersession of the body mentioned above, on 23-1-1990. On 23-2-1990 the Respondents came to know that a notice signed by one R. D. Patel, Secretary of the Society published on the notice board of the Society stating that the tenure of the present Committee would expire on 4-4-1990 and in the meeting held on 22-2-90 it was decided by the Committee to hold election to elect 9 Managing committee members on 25-3-1990. A list of members eligible to vote and the notice was alleged to have been displayed on the Notice Board by the returning Officer. However, the respondents alleged that the terras of the members of the Managing Committee of the Society would expire on 30-6-1990 and not on 4-4-1990 as alleged by the acting Honorary Secretary of the Society and, therefore, no elections could be held for the Co-operative Year ending with 30-6-1989 as the Annual General Meeting was earlier held on 12-4-1989. The Item of election was not shown on the agenda of the said meeting. Therefore, calling this Special General Meeting on 25-3-1990 for electing new committee members is alleged to be illegal as it was not in consonance with the Election Rules of the Society. According to him the elections ought to be held only after 30-6-1990 because the provisional final list of the members are to be displayed only after that date. Entire process of election including inviting nomination appointment of Returning Officer should also be done after 30-6-1990 and, therefore, it is said that the action of the appellants was obviously illegal as it was against the provisions of the Act and Bye-laws of the Society. It is then alleged that these appellants had no right to hold elections as they have been removed under orders of the Co-operative Authorities mentioned above i. e. reference to the supersession order. Therefore, it is said that he was entitled for declaration.

(3.) PENDING this petition there was application for interim relief of injunction restraining the Committee from holding the meeting. On 16-3-1990 the learned Judge of the Co-operative Court No. 1, Bombay passed the order that the Society and the appellants, members of the Society were restrained from holding the said election in the Special General Meeting scheduled on 25-3-1990 or any other date. This order was opposed to after appearance before the lower Court. The learned Judge on 23-3-1990 confirmed the ad-interim injunction granted by him on 16-3-1990. In his opinion the election process would start after the close of the Co-operative Year that is to say, after 30th June, and the final list of voters could be published only after 1st July. It is said that if they were not ready to work and function as members of the Managing Committee they were advised by the learaed judge in this judgment that they could very well resign and walk out as submitted before him by the learned Advocate for the Respondent, which appears to have been accepted by confirming the injunction order. The learned Judge also observed that if the elections are postponed no prejudice would cause to these appellants. The matter could be decided finally in the writ petition filed by the appellants challenging the order of supersession. Therefore, he considered that it was always good for fitness of things that they should not be allowed to hold the Special General Body Meeting and if they would fail in writ petition, in his opinion, the effect would be that unauthorised persons would be considered to have been allowed to carry out the transactions and business of the Society in the Special General Meeting called on 23-3-90 and it will create complications and, therefore, considering all these aspects he confirmed the injunction order, granted by him in ex. pane earlier. Aggrieved by the said order of confirmation of the injunction the appeal is preferred by these appellants.