Anand Kumar Sharma vs State Of Madhya Pradesh And Others

J.K. Maheshwari, J

This intra-court appeal under Section 2(1) of Madhya Pradesh Uccha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 has been

preferred assailing the order dated 01.03.2018 passed by the learned Single Bench in Writ Petition No.1301/2017 allowing the petition filed by the

petitioners (respondents No.4 and 5 herein), setting aside the order dated 7.2.2017 of the Returning Officer by which he has instructed that the Board

of Directors of the Vipnan Sahkari Sanstha, Ater is consist of twelve members, out of which only five members are elected, however, the meeting of

the Special General Body of the committee cannot be held for want of quorum without election of the remaining members.

The Single Bench while considering the legality and propriety of the said order observed that Returning Officer ought to have decide the quorum

from the persons already elected not from the total members of the committee, however, relying upon the judgment of the Division Bench in the case

of Sukhendra Singh Vs. State of M.P. and others reported in 2008 RN 353 and also referring another Division Bench decision in the case of Ram

Kumar Sharma Vs. State of M.P. and others : WP No. 2203/2014 decided on 7.4.2014 came to the conclusion that the order of the Returning Officer

deferring the meeting of the General Body for want of quorum is against the anvil of the law laid down in the said case and directed him to convene

the meeting deciding the quorum from the elected members.

Shri N.K. Gupta, learned Senior Counsel representing appellant submits that the order of Sukhendra Singh (supra) relied by the learned Single

Bench is an interim order passed in the Public Interest Litigation, though the said writ petition was dismissed on 9.11.2010 as not maintainable on the

ground of having efficacious alternative remedy and the petitioners were directed to avail the remedy under the law. It is further contended that the

judgment rendered in Ram Kumar Sharma (supra) do not apply to the attending facts of the case. Rule 41(13) and 49(E)(g) of the Madhya Pradesh

Co-operative Societies Rules, 1962 (for brevity 'the Rules') contemplates fresh election for the remaining directors. The appellants being the members

of the Vipanan Sahkari Sanstha (Seva Sahkari Sanstha Maryadit), Ater may have right to participate and contest the election of the Directors.

Petitioners did not wish that other members like appellant should contest the election; and by the order impugned their right to contest the election is

going to be adversely affected, therefore, the order passed by learned Single Bench may beset aside, affirming the order of the Returning Officer.

Shri RBS Tomar, learned counsel appearing on behalf of the original petitioners has filed an application IA No. 1925/2018 for dismissal of the writ

appeal inter alia contending, the appellant does not have any right to file this appeal challenging the order of the Single Bench, because they were not

the party in the writ petition. In addition, referring Rule 43(6) of the Rules and the judgments rendered in Sukhendra Singh (supra) and Ram Kumar

Sharma (supra) submits that the Single Bench has rightly interpreted the said rule in the light of these two judgments of the Division Bench, therefore,

interference in this appeal is not warranted.

Shri Vivek Jain, learned Government Advocate, assisting the Court submits that the issue involved in the present case require consideration in the

context of Rule 41(13) (old) and also 43(1) and (6) of the Rules,inter alia, contending that the order passed in the case of Sukhendra Singh (supra)

relied by the Single Bench is an interim order passed in the writ petition (PIL), which was dismissed, therefore, the judgment of Sukhendra Singh

(supra) cannot be treated to be precedent, and the ratio of the said order is contrary to the spirit of the Rules, however, the order passed by the Single

Bench may be set aside.

Shri MPS Raghuvanshi, learned counsel representing respondents No.2 and 3 submits that the judgment of Sukhendra Singh (supra) relied by the

learned Single Bench is an interim order of the Division Bench in a Writ Petition (PIL) which was dismissed for want of efficacious alternative

remedy. It is informed that against the said interim order, Special Leave Petition No.4706/2008 filed was also dismissed vide order dated 07.03.2008

because it had arisen out of an interim order of the High Court. It is his contention that the interim orders passed in a writ petition merges into the final

order and once the petition is dismissed without adjudicating the issue on merit the order of Sukhendra Singh (supra) cannot be treated to be a

precedent and the judgment of Ram Kumar Sharma (supra) is distinguishable on facts. It is explained that in the said case compliance of Rule 43(6) of

the Rules was there on availability of more than 50% members present in the meeting as per bye-laws, therefore, the said judgment is of no help. The

learned Single Bench has also not relied upon the same except to refer it in the order. In view of the said submission, it is urged that the order passed

by the learned Single Bench may be set aside.

After having heard the rival submissions of the counsel for the parties, and in the light of the facts of the case, the question involved for answer are

as under:

(1) Whether the Writ Appeal filed by the appellants challenging the order impugned can be maintained, granting leave, allowing IA No. 1641/2018 or it

may be dismissed considering IA No. 1925/2018?

(2) Whether interim order passed in writ petition of Sukhendra Singh (supra) ceases its effect on dismissal of the case, and can it be treated to be the

precedent?

(3) What may be the quorum to the meeting of the committee consist of 12 members as per bye-laws in view of the provisions of Rule 43(1)

(6) of the Rules?

(4) Whether order passed by the returning officer dated 07.02.2017 is justified looking to the provisions of the Rules?

First of all the question No.1 which relates to the maintainability of the appeal may come to the root of the matter requires consideration first. In the

present case the election of Vipnan Sahkari Sanstha, Ater was directed to be held for remaining Directors by order dated 7.2.2017. The appellants are

the members of the primary society (Seva Sahkari Sanstha Maryadit, Ater) and they are having right to contest the election of the Board of Directors

from the specific group and class. In case the order impugned passed by the learned Single Bench is allowed to stand, their right to participate in

further election for remaining members of the Board of Directors shall be adversely affected, therefore, leave has been sought by filing IA No.

1641/2018 to challenge the order of the Single Bench. The said fact has not been rebutted by the original petitioner by filing the reply to the

application. In this regard in the facts it is to observe, if any person may be adversely affected by the order of the Single Bench, they may have right

to challenge the same by filing an appeal, therefore, in view of the judgment rendered by the Apex Court in the case of “Daman Singh & others

Vs. State of Punjab & others â€" AIR 1985 SC 973, this Court finds that it is a fit case wherein leave to file appeal to the appellant may be granted.

In such circumstances, the application IA No. 1925/2018 filed by the original petitioners for dismissal of the appeal is hereby rejected. IA No.

1641/2018 filed by the appellants is hereby allowed. Thus, question No.1 is answered accordingly.

Now looking to the facts and the arguments advanced by the parties, the question Nos. 3 and 4 are required to be adverted to jointly prior to

deciding the question No.2. In this regard the relevant provision of Rule 43(1) and (6), which deals the appointment of the committee, is required to be

quoted for ready reference:

Appointment of Committee.- (1) the number of members in the committee shall be specified in the bye-laws, but the number of elected members

shall in no case be less than five.

43(6). The quorum for the meeting of the committee shall be, as provided in the byelaws, but in any case it shall be more than fifty per cent of the total

number of the members.

On perusal both the said Rules consist of two parts, the first part of sub-rule (1) specify the number of members in the committee which shall be

as per the bye-laws, while second part make it clear that out of the number of the members as specified the elected members shall not be less then

five. Sub-rule (6) of Rule 43 deals with quorum for the meeting. Previous part states the quorum shall be as per bye-laws while later part make it

obligatory that more than fifty percent of the total number of members shall complete the quorum. The words used in first part of Rule 43(1) refers

“The number of the members in the committee shall be as per bye-lawsâ€and in later part of Rule 43(6) “in any case, it shall be more than fifty

percent of the total number of the membersâ€. Thus, by a conjoint reading of first part of sub-rule (1) and later part of sub-rule (6) of Rule 43 make it

abundantly clear that to complete the quorum of the meeting of the committee more than fifty percent members are required, therefore, the word

“totalâ€number of the members has been used. Thus, the words so used do not give any solace that fifty percent of the elected members present

shall complete quorum out of the members so elected for the meeting of the committee. Meaning thereby, out of the total number of members

specified by the bye-laws, more than fifty percent of the said members in total shall complete the quorum to the meeting. The number of the members,

as used in the later part of Rule 43(6) of the Rules do not denote the elected members.

In the facts of the present case, election notice (Annexure P-4) was issued on 24.01.2017 for the twelve members of the committee as specified

for the group and class-wise by the Returning Officer. In furtherance to it, vide Annexure P-5 dated 7.2.2017 the Returning Officer, declared five

members elected from different group and class. The Returning Officer found that requirement of Rule 43(1) to elect not less than five members is

complete but as per bye-laws the members of the committee are twelve and for convening the meeting of the committee more than fifty percent of

the total number of members are required to complete the quorum, however, from the elected five members, the quorum is not complete, therefore,

instructed that the meeting of the General Body cannot be held for want of quorum. Looking to the discussion of the Rules, in our considered opinion,

the Returning Officer was justified in passing the order dated 7.2.2017. Therefore, it can safely be concluded that returning officer has acted as per

the spirit of Rule 43(1) and (6), therefore, interference to the order of Returning Officer was not warranted in exercise of powers under Article 226 of

the Constitution of India. In this view of the matter, the Questions No.3 and 4 posed for determination are answered against the original writ

petitioners.

So far as the question No.2 is concerned, in this regard the background of the case of Sukhendra Singh (supra) is required to be noted. One

Sukhendra Singh had filed Writ Petition No. 15264/2007 (PIL) at Principal Seat, Jabalpur inter-alia contending that the cooperatives can be joined as

members by co-option, but, they would have no right of voting nor such cooperatives or its representatives can be appointed as Directors, however,

the question of quorum to hold the meeting of General Body was considered in the said case. The Principal Seat of this Court at Jabalpur on

2.2008 passed an interim order, which is reported as Sukhendra Singh Vs. State of M.P and others [2008 RN 353], relied by

learned Single Bench; the said order is relevant, which is reproduced as under:

ORDER

Shri Shukla informs the Court that respondents No.1 to 4 have already filed their reply. It is submitted by Shri Shukla that in accordance with the

bye-laws, the cooperatives can be joined as members but they would have no right of voting nor such cooperative or its representatives can be

appointed as a Director. Undisputedly, the respondents No.5 and 6 fall under category C.

Shri Manikant Sharma, learned counsel for respondent No.5 submits that the respondent No.5 has been nominated as Chairman and as assumption

of the charge by respondent No.5 is not subject-matter of this writ petition, this Court is not required to consider that aspect of the matter. He

however fairly concedes that if the cooperative falls within Clause C then its representative would have no right to represent in the management or

contest the election.

Shri Agrawal submits that taking an unrealistic interpretation of the provisions contained in Sub-rule 6 of Rule 43 of Madhya Pradesh Cooperative

Societies Rules, 1962, the State and its officers are observing that the Quorum for the meeting shall be 50% of the total strength and not 50% of the

strength of the elected persons leaving aside the seats which remained vacant.

Shri Shukla, learned Deputy Advocate General for the State submits that in the case like present if the Court takes the view that the Quorum is to

be taken on the basis of the elected members who have been really elected then Rule 41(13) must be taken into consideration and the Society should

be asked to nominate persons to fill-up the remaining seats.

After hearing learned counsel for the parties, we are of the considered opinion that the Quorum is to be considered on the basis of the persons

already elected and not on the basis of the total strength to be elected.

In the present case, out of twelve, nine have already been elected and if the other three have not been nominated by convening a meeting then the

constitution would be by nine persons and the Quorum for a meeting shall be five.

It is expected from the respondents that within ten days from today, they shall issue necessary notices for convening the meeting and they would

also direct that the Chairman and the other office bearers be elected, selected or nominated.

That matter be listed after four weeks with the report.

Challenging the said interim order, Special Leave to Appeal (Civil) No.(s).4706/2008 was filed which was dismissed on 07.03.2008 by passing the

following order:

UPON hearing counsel the Court made the following order:

ORDER

We find no reason to interfere in the matter as the special leave petition is against an interim order by the High Court. The special leave petition is

dismissed.

However, the High Court is requested to endeavor to dispose of the writ petition pending before it at an early date.

On a bare perusal of the order of the Supreme Court, it is clear that the interference in the order of High Court was declined because it has arisen out

of the interim order and the direction to decide the petition at an early date was issued.

In the light of the order passed by the Apex Court, the writ petition came up for hearing before the Division Bench, and finally decided on

09.11.2010 wherein the Division Bench held as under:

“11. We have considered the submissions made by learned counsel for the parties. In B. Srinivasa Reddy v. Karnataka Urban Water Supply &

Drainage Board Employees’ Association & Others, AIR 2006 SC 3106, the Supreme Court has held that a petition praying for a Writ of Quo

Warranto being in the nature of public interest litigation, is not maintainable at the instance of a person who is not unbiased. From the averments made

in the petition we find that petitioner is a member of Sewa Sahkari Sanstha Maryadit, Banna, and has been elected as representative of the said

society in the District Central Cooperative Bank Limited, Rewa. Therefore, the petitioner cannot be said to be a person who is unbiased as he hasÂ

been elected as representative of the District Central Cooperative Bank Limited, Rewa in the same election in which respondents 5 and 6 have been

elected. Therefore, at the instance of petitioner, the present writ petition is not maintainable as public interest litigation. Apart from this respondent

No.5 has taken a categorical stand that he has been nominated as chairman of the Bank in the capacity of representative of Prathamik Upbhokta

Sahakari Bhandar Ward No.1 and not in the capacity of representative from Pradhan Beej Utpadak Swayatt Shakh Sahakarita Maryadit, Ajgarha.

Aforesaid stand has not been controverted by the petitioner by filing rejoinder. In view of the interim order passed by this Court on 15.02.2008

elections have already been held on 20.03.2007.

It is well settled in law that it is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitution byâ€"passing the

machinery designated by the Act for determination of the election dispute. In this connection, reference may be made to the decisions of the Supreme

Court in Gujarat University v. N.U. Rajguru, AIR 1988 SC 66 and United Bank of India v. Satyawati Tandon, (2010) 8 SCC 110. Now, the petitioner

has the efficacious alternative remedy under Section 64(2)(v) of the 1960 Act as elections have already been held. Besides that Supreme Court in

Guruvayoor Devaswom Managing Committee vs. C.K. Rajan, (2003) 7 SCC 546 held that principle of exhaustion of alternative remedy applies to

public interest litigation as well. The forum created under the Act for ventilation of grievance of the affected persons should be moved at the first

instance. Therefore, no interference in the matter is called for.

Accordingly, the writ petition, being bereft of any substance, deserves to and is hereby dismissed.â€​

On perusal of the aforesaid, the writ petition (PIL) filed by Sukhendra Singh was finally dismissed by the High Court on the ground that the

petitioner is not an unbiased person, on his instance the public interest litigation is not maintainable and the principle of exhaustion of the alternative

remedy applies to the public interest litigation also, however, the forum created under the Madhya Pradesh Cooperative Societies Act, 1960 (for

brevity 'Act of 1960â€) to ventilate the grievance may be moved by the petitioners at the first instance. On the said basis the writ petition was found

bereft of any substance which deserves to and is hereby dismissed. In addition to the aforesaid, in the said writ petition the reply was filed by the

parties, but the question of law posed for answer has not been decided adjudicating the rival contentions even for grant of interim relief recording

prima-facie findings vide order dated 15.2.2008, therefore, the order passed in the case of Sukhendra Singh (Supra) was interim in nature and finally

the said writ petition was dismissed on 9.11.2010 by the Division Bench.

Now it is to be examined as to what would be the effect of interim order passed in the writ petition of Sukhendra Singh (supra), though it was

finally dismissed; whether the interim order would merge into the final order and ceases its effect? In this regard, the legal position can be seen by

various pronouncements of the Apex Court. In the case of Jaipur Municipal Corpn. Vs. C.L. Mishra reported in (2005) 8 SCC 423 , the Hon'ble Apex

Court has explained the survival of the interim orders and only during pendency or upto passing the final order. In para 9, the Apex Court has held as

thus:

“9. We have heard learned counsel for the parties. It is important to note that while disposing of the main D.B. Civil Writ Petition No.6051 of 1997,

the High Court did not record any positive finding on the question as to whether any encroachment has been made on public land. The High Court left

it to the Jaipur Municipal Corporation to take a decision in that regard within six months and if it came to a finding that public land had been

encroached upon, it was directed to take action for removal of the encroachment after issuing notice to the parties and in accordance with law. The

Commissioner of the Municipal Corporation, Jaipur, gave a report on 14.9.2000 that there was encroachment over the land by Sindhi Panchayat.

However, the Committee for Regulations and Bye-Laws of the Jaipur Municipal Corporation re-considered the matter and after a detailed discussion

held in its report dated 15.2.2001 that there was a public temple and the same had not been constructed over any park and there was no

encroachment over public land. It was further held that a garden had been developed in front of the temple by the members of the public. It was

thereafter that the writ petitioner, C.L. Mishra, filed D.B. Civil Contempt Petition No. 3 of 2001 wherein the High Court after making an observation

that ""normally the satisfaction of the Commissioner as to whether the occupation is an encroachment or not is final and matter is not referred to a

Committee"" passed an order granting one month's time to comply with the order in its true letter and spirit. It is important to note here that while

deciding the main writ petition, the High Court had not recorded any finding that there had been encroachment over public land by the construction of

a temple nor it gave any specific direction for its removal. On the contrary, the matter had been left to be decided by the Jaipur Municipal Corporation

within six months and if the Corporation came to a finding that there was any encroachment, the same was to be removed. The important feature of

the case is that when the contempt petition came up for hearing on 28.1.2002, the counsel for the writ petitioner made a prayer to withdraw the

contempt petition with liberty to file a fresh petition, if need be. The contempt petition was accordingly dismissed as withdrawn with liberty reserved to

the writ petitioner to file a fresh petition. Normally, contempt is a matter between the Court and the alleged contemnor. The applicant who files the

contempt petition does so only for the purpose of bringing it to the notice of the Court that the order passed by it has not been complied by it.

However, in the present case, the counsel for the writ petitioner (petitioner in the contempt petition) made a prayer for withdrawing the contempt

petition and the High Court passed a specific order on 28.1.2002 by which D.B. Civil Contempt Petition No.3 of 2001 was dismissed as withdrawn

with liberty to file a fresh contempt petition. Once the contempt petition was dismissed as withdrawn, the earlier order passed in the said petition on

24.7.2001, wherein one month's time was given to comply with the order, ceased to be operative as all interim orders passed in a case ultimately get

merged with the final order. The order dated 24.7.2001 cannot have any independent existence and cannot survive once the contempt petition itself

was withdrawn and was dismissed. The Jaipur Municipal Corporation was ill- advised to file a review petition seeking review of the order dated

24.7.2001 when the main contempt petition itself had been dismissed on the prayer made by the writ petitioner (petitioner in the contempt petition). As

such there is no occasion for review of the said order.â€​

In the case of Shiv Shankar and others Versus Board of directors, UPSRTC and another reported in 1995 Supp (2) SCC 726 the object to grant

the interim relief in exercise of the power under Article 226 of the Constitution of India came for consideration before the Apex Court. In the said

case, the interim direction was issued to absorb the appellants. In furtherance thereto they were absorbed and finally the said petition was dismissed

as not pressed. The Apex Court observed that once the petition was dismissed without any adjudication on merit, the effect of dismissal was that the

interim order stood merged in the final order and order of absorption of the appellants stood nullified. However, in the peculiar facts of the case, the

Court remitted back the matter for adjudication on merit because while issuing direction for absorption, the merit of the case was not considered. In

the case of Abhimanyoo Ram V. State of Uttar Pradesh and another reported in (2008) 17 SCC 73, the Apex Court clarified that after granting

interim relief, if the petition is dismissed as withdrawn, the interim order stands cancelled or vacated. The Apex Court clarified that since the litigants

do not know about this legal position, however, they should be informed of the consequence by the Court so that they may take an informed decision

about withdrawal or abandoning the petition as not pressed. The Apex Court in the case of Amarjeet Singh and others Vs. Devi Ratan and others

reported in 2010(1) SCC 417 reiterated the same principle inter alia holding that interim order always merge in the final order to be passed in a case

and if the writ petition is ultimately dismissed, the interim order automatically nullifies.

In view of the foregoing discussion to the legal position and applying the ratio of the said cases, it can safely be concluded that the interim order

passed on 15. 2.2008 in the case of Sukhendra Singh (supra) was merged into the final order of dismissal of the writ petition passed on 9.11.2010 and

ceases to its effect. Therefore, the interim order of Sukhendra Singh would be of no use to rely upon by the other parties or even to the parties of the

petition. In such circumstances, it can safely be concluded that the interim order, which is relied by learned Single Bench in the order impugned was

ceased to be in force because of the dismissal of the writ petition of Sukhendra Singh (supra). Therefore, the order impugned cannot get existence,

relying upon non-existing order of Sukhendra Singh (supra).

Hon'ble the Supreme Court in the case of State of Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha reported in (2009) 5 SCC 694 has

considered the issue that what is “Precedent†in the context of interim order. The Apex Court, in para 21 and 22, interpreting the judgments

rendered in Kapila Hingorani (I) (2003) 6 SCC 1 and Kapila Hingorani (II) (2005) 2 SCC 262 has crystallized the issue which is reproduced as under:

“21. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order

which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order

containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements

to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the

final hearing.

The observations and directions in Kapila Hingorani (I) (2003) 6 SCC 1 and Kapila Hingorani (II) (2005) 2 SCC 262 being interim directions based

on tentative reasons, restricted to the peculiar facts of that case involving an extraordinary situation of human rights violation resulting in starvation

deaths and suicides by reason of non -payment of salaries to the employees of a large number of public sector undertakings for several years, have no

value as precedents. The interim directions were also clearly in exercise of extra-ordinary power under Article 142 of the Constitution. It is not

possible to read such tentative reasons, as final conclusions, as contended by the respondent. If those observations are taken to be a final decision, it

may lead to every disadvantaged group or every citizen or every unemployed person, facing extreme hardship, approaching this Court or the High

Court alleging human right violations and seeking a mandamus requiring the state, to provide him or them an allowance for meeting food, shelter,

clothing, salary, medical treatment, and education, if not more. Surely that was not the intention of Kapila Hingorani (I) (2003) 6 SCC 1 and Kapila

Hingorani (II) (2005) 2 SCC 262.

On perusal of the aforesaid, a judgment which may be treated to be precedent is a judicial decision containing a principle forming an authoritative

opinion termed as ratio decidendi. An interim order cannot be a precedent until it determines a principle of law. The Court further clarified that the

interim orders are passed on the basis of prima facie findings by way of temporary arrangements to ensure that the matter does not become either

infructuous or a fait accompli before final hearing. The interim directions are based on tentative reasons restricted to peculiar facts of a case involving

an extraordinary situation. In view of the aforesaid, the reliance placed by learned Single Bench on the case of Sukhendra Singh (supra) cannot be

also treated to be precedent to follow in other cases and it got no value to treat as precedent. Thus, question No.2 so post is answered accordingly.

In consequence to the discussion made herein above, it is held that the order passed by the Returning Officer dated 7.2.2017 directing the parties

that due to having only five elected members out of total twelve members of the committee as per bye-laws the meeting cannot be organized for want

of quorum and said to hold the fresh election for remaining members of the Vipnan Sahkari Sanstha, Ater is just and proper, therefore, it is hereby

upheld.

Accordingly, the writ appeal filed by the appellant is allowed. The order of learned Single Bench stands set aside. The order passed by the

Returning Officer dated 7.2.2017 is just and proper, which is hereby affirmed. The Returning Officer is directed to take appropriate steps for holding

the election of the remaining Directors of the Vipnan Sahkari Sanstha, Ater as expeditiously as possible.