Civil Revision No. 1144 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 1144 of 2009 Date of decision: 26.08.2009 Mahender Singh Malik and another ....Petitioners versus Haryana Olympic Association and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Ashok Aggarwal, Sr. Advocate, with Mr. N.S. Shekhawat, Advocate, and Mr. Vipul Aggarwal, Advocate, for the petitioners. None for the respondents. *** VINOD K. SHARMA, J. (ORAL)
The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the orders dated 24.12.2008 and 22.1.2009, passed by the learned Courts below, on an application moved under Order 39 Rules 1 and 2 of the Code of Civil Procedure.
The facts, which are not in dispute, are that Haryana Olympic Association was registered as a Society, under the Societies Registration Act. On 23.6.2004, in the general meeting of the Society, the constitution was amended, by making Sh. Abhey Singh Chautala as lifetime President. This act of the general body caused unrest amongst the affiliated units of the Society, which led to calling of special general meeting on 6.5.2006, in which the amendment made in the constitution Civil Revision No. 1144 of 2009 -2- on 23.6.2004, making Sh. Abhey Singh Chautala as lifetime President, was deleted, and 'No Confidence Motion' was passed against Sh. Abhey Singh Chautala and the vice-President of the Society. In the said special general meeting, Sh. Navin Jindal was unanimously elected as the President of the Haryana Olympic Association for a period of four years, as per its constitution. In spite of amendment, Sh. Abhey Singh Chautala kept on asserting himself as President of the Society, which resulted in a host of litigation amongst two rival factions i.e. one led by Navin Jindal and other by defendant No. 2.
The litigation adversely affected the sports promotion in the State of Haryana, and resultantly representations were made to Director, Sports and Youth Welfare, Haryana, for his intervention and settling the issue as to the governing body of the Society.
The Director, Sports, Haryana, referred the matter to Registrar, Societies, for intervention, as the Society was registered under the Societies Registration Act. The Registrar, Societies, after hearing both the factions, recommended to the Government for appointment of an Administrator for conducting the elections of the office-bearers.
The Government of Haryana, in pursuance to the reference made by the Registrar, and in exercise of powers conferred under Section 30 of the Societies Registration Act, appointed Mr. Justice G.C. Garg (Retd.) as returning officer to hold elections.
After being appointed as Returning Officer, Justice G.C. Garg (Retd.) initiated process of elections in accordance with law, and after finalisation of electoral college, fixed elections for 7.9.2008.
The District Rural Games, Sirsa, filed a suit for permanent injunction, restraining the Returning Officer from conducting the elections of the office-bearers of the Society on the plea that the Civil Revision No. 1144 of 2009 -3- elections had already taken place on 2.9.2007.
The learned trial Court, Sirsa, restrained the Returning Officer from proceeding further with the election program vide order dated 2.9.2008.
The appeal filed against the said order was dismissed on 8.9.2008.
In revision petition No. 5034 of 2008, this Court was pleased to stay the impugned orders of injunction.
After the stay by this Court on 25.9.2008, election to the governing body of the Society was held, in which Sh. P.V. Rathee was elected as President, Sh. Ramesh Gupta, MLA, as vice-President, Sh. Mehtab Singh, IAS, as Joint Secretary, Sh. J.P. Nautiyal as Treasurer, Sh. Shyam Lal Tyagi and Sh. Raghbir Singh Sandhu as the members of the Executive Committee of the governing body of the Society. In spite of this, the petitioners continued asserting themselves to the President and Secretary General of the Society.
The Society is affiliated to the Indian Olympic Association, and is member of the electoral college, which elects its governing body. The election of the Indian Olympic Association i.e. defendant No. 3 were scheduled to be held on 10.10.2008 at Pune, but the petitioners herein threatened to participate in the aforesaid governing body election as representatives of the Haryana Olympic Association. The plaintiff claimed, this this was without any legal right.
The petitioners filed joint reply, wherein it was asserted that Sh. P.V. Rathee was not the President of the Haryana Olympic Association, nor he was authorised to file the present suit. It was asserted, that it was defendants No. 1 and 2, who were duly elected Secretary General and President of the Haryana Olympic Association since 2.10.2007. The election held on 2.10.2007 had not been Civil Revision No. 1144 of 2009 -4- challenged by anybody till date. It was also the case set up, that Sh. P.V. Rathee was mis-using the name and banner of the Haryana Olympic Association since 25.9.2008, on the basis of illegal election conducted by the Administrator of the Haryana Olympic Association. The decision taken in the special general body meeting on 6.5.2006 was also denied. The election of Sh. Navin Jindal as President was also disputed. It was pleaded case of the petitioners, that proceedings dated 6.5.2006 were illegal and in violation of mandatory procedure of the constitution of the Haryana Olympic Association. It was claimed, that in the year 2003, Sh. Abhey Singh Chautala was elected as President of the Haryana Olympic Association for a period of four years and, therefore, there was no question of Navin Jindal being elected as President in the meeting held on 6.5.2006. It was further asserted, that Sh. Navin Jindal himself played under the Presidentship of Sh. Abhey Singh Chautala in the national games held at Guwahati (Assam) in the month of February, 2007. It was further asserted that the petitioners with recognition and affiliation of the Indian Olympic Association continued the sports activities at State level, national level and international level from 6.5.2006. The matter referred to the Director, Sports and the decision taken by the Registrar, Societies, was also disputed. The appointment of Justice G.C. Garg (Retd.) was said to be null and void and, therefore, necessity arose to file the suit at Sirsa, as referred to above. It was further pleaded that in spite of stay orders, Justrice G.C. Garg (Retd.) did not chose to hold elections and the same was held by the Administrator. Election dated 25.9.2008 was also said to have been stayed by civil Court, Sirsa, in civil suit titled Haryana Archery Association Vs. R.R. Jowel. The receipt of notice of election was denied. The defendants denied that the governing body under the Presidentship of Sh. P.V. Rathee was functioning. It was further Civil Revision No. 1144 of 2009 -5- pleaded that the Indian Olympic Association has been recognising the petitioners as office-bearers of Haryana Olympic Association and, therefore, there was no question of plaintiffs' suffering any irreparable loss or injury.
The learned trial Court, on appreciation of pleadings and documents placed on record, came to the conclusion that the plaintiff/respondents had a prima facie case, and that the balance of convenience was also in their favour. It was further held, that in case petitioners were not restrained from acting as office-bearers of Haryana Olympic Association, then the plaintiff was to suffer irreparable loss and injury, which could not be compensated in terms of money. The learned trial Court held, that it was not in dispute that there is only one Haryana Olympic Association and that two factions were claiming to be at the helm of the affairs. One was claiming to represent the Society in pursuance to the elections held on 25.9.2008, whereas the petitioners were claiming their right in view of the elections held on 2.10.2007. The learned trial Court held, that the orders passed by the Registrar, Societies, were flowing from Section 30 of the Societies Registration Act, and the question, that the orders passed by the Registrar were legal or not, was not to be decided by the civil Court. The learned trial Court held, that as the orders passed by the Registrar were not under challenge, the proceedings qua appointment of Administrator and Returning Officer were prima facie legal and valid. The learned trial Court held, that as per provisions of Section 30(4) of the Societies Registration Act, the action of the Registrar is to be final and no appeal is competent in any Court against such action. Thus, the learned Court found prima facie case in favour of the plaintiff, holding that Sh. P.V. Rathee was the President of the Society and, therefore, had the power to hold and participate in the games at the State, National and Civil Revision No. 1144 of 2009 -6- International level. In view of the finding recorded above, injunction, as referred to above, was passed in favour of the plaintiff and against the petitioner/defendants.
The order passed by the learned trial Court was challenged in appeal, primarily on the grounds: -
1. That the petitioners herein were duly elected Secretary General and President of the Haryana Olympic Association, as their election has not been set aside and, therefore, they could not be restrained from functioning as such.
2. That the Returning Officer has not given notice for holding elections on 25.9.2008, and that the notice was given by the Administrator, which did not meet with the requirements of the Haryana Olympic Association constitution, which required at least 15 days notice.
3. That the election could only be held not only general meeting or special meeting after 15 days of notice. It was contended, that the Executive Committee could not be elected in the special general emergency meeting.
4. That the learned trial Court granted relief beyond the pleadings in restraining the petitioners from participating in the meeting of the Indian Olympic Association.
5. That the Indian Olympic Association never recognised Administrator nor had any correspondence with them.
The respondents, however, supported the judgment passed by the learned trial Court.
The learned lower appellate Court held that in view of the provisions of Section 30 of the Societies Registration Act, on appointment of Administrator, the petitioner cease to exercise any power and perform or discharge any functions or duties, as office- bearers. It was, therefore, held, that it was not open to petitioner No. 2 to convene a meeting after appointment of the Administrator and, therefore, general body meeting held on 2.10.2007 was held to be not in Civil Revision No. 1144 of 2009 -7- consonance with law. The plea that 15 days notice was not given, was not accepted, by observing that that election process could not be initiated because of interim injunction granted by the learned Civil Judge. The operation of which was stayed by this Court on 18.9.2008. The most important factor taken into consideration was, that the petitioners had not challenged the election of Sh. P.V. Rathee, by way of appropriate petition and merely attempted to stall the election by obtaining injunction from the learned Civil Judge, Sirsa. The findings of the learned trial Court were, therefore, affirmed.
Mr. Ashok Aggarwal, learned senior counsel, appearing on behalf of the petitioners, vehemently challenged the order passed by the learned Courts below. Firstly, on the ground, that there was no resolution in favour of the plaintiff to maintain the suit on behalf of the Society. This plea was raised on the basis of the fact, that in the proceedings-book, no such resolution was passed.
This contention deserves to be rejected. It cannot be prima facie said, that suit was not filed by a competent person, merely because in the proceedings-book, retained by the petitioners, no such resolution was there.
Learned senior counsel thereafter contended, that the election in which Sh. P.V. Rathee and others were elected as office-bearers were conducted in violation of Article 11 of the constitution of the Society and, therefore, was on the face of it illegal.
This plea cannot be accepted, as admittedly the petitioners chose not to challenge the said election, and asserted themselves to be the President and Secretary General in pursuance to the elections said to have been held by ignoring the appointment of Administrator and the steps taken by him to hold fresh elections.
It was next contended by the learned senior counsel, that the Civil Revision No. 1144 of 2009 -8- learned Courts below failed to notice, that the plaintiff was to stand on his own legs and could not take any benefit of the weakness of the case of the defendants.
The contention raised is, that it was for the plaintiff to have proved that valid election was held, and having failed to do so, the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, deserved to be rejected.
This plea again is mis-conceived. Once, it is not disputed that the Administrator was appointed and elections were held, the prima facie case was proved. The plaintiff would prove its case in evidence, but for deciding an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, the Court was required to see only prima facie case on the basis of the pleadings and material. The stand taken by the petitioners, in view of the facts and circumstances of the case, was on the face of it devoid of any merit, in view of the fact that the executive body of the plaintiff/respondent was elected in pursuance to the appointment of the Administrator by exercise of statutory powers.
It was next contention of the learned senior counsel, that after the stay by this Court, no notice was issued, is also devoid of any force or in any case is a question to be determined after the parties had led evidence. The petitioners have tried their best to stall the election of the plaintiff/respondent and after the election was held, chose not to challenge it in accordance with law, but are asserting their status of President and Secretary General, on the basis of election said to be held, which was not recognised by the Registrar, Societies.
The learned Courts below, therefore, were right in coming to the conclusion, that the respondent/plaintiff had a prima facie case and that balance of convenience was also in favour of the plaintiff. It was also right held, that the plaintiff was to suffer irreparable loss, in case Civil Revision No. 1144 of 2009 -9- injunction prayed for was not granted. The relief to which the plaintiff was not entitled i.e. mandatory injunction, already stand declined.
(Vinod K. Sharma) Judge August 26, 2009 R.S.