Supreme Court of India

RAMCHANDRA GANPAT SHINDE AND ANR.versusSTATE OF MAHARASHTRA AND ORS.

Citation: 1993 INSC 267
Decided: 17 August 1993
Disposal: Appeal(s) allowed
Bench: K RAMASWAMY

Holding

An order obtained by collusion and fraud on the court is voidable and may be corrected by the High Court or Supreme Court under Art 226; the election must be conducted on the final voters list of 17 December 1991 and the election held on 27 April 1993 is illegal.

Summary

The dispute concerned the election of the managing committee of Shri Vathal Sakhar Sehakari Karkhana Ltd., a specified cooperative society whose term expired on 3 December 1991. The final list of voters was published on 17 December 1991, but the State Government postponed the election to 30 September 1992. Two members filed writ petitions seeking immediate elections; the society’s chairman, A.K. Patil, allegedly colluded with them to obtain consent orders directing the preparation of a provisional voters list as of 30 June 1992, contrary to Rule 4 of the 1971 election rules which required the list to be based on members as of 30 June 1990 (the year preceding the election due in 1991). The appellants, not parties to the earlier petitions, filed a fresh writ petition to have the election conducted on the original final list of 17 December 1991. The High Court dismissed the petition; the Supreme Court allowed the appeal, holding that an order obtained by collusion and fraud on the court is vitiated and may be corrected by the High Court or Supreme Court under Art 226. The election held on 27 April 1993 was declared illegal, the correct voters list was affirmed, and costs were awarded against the non‑contesting respondents under Art 142.

Issues considered

The power of a court under Art 226 to issue orders contrary to statutory mandates and whether such orders are reviewable in a fresh proceeding under Art 226.
Whether a collusive or fraudulent order obtained in a writ proceeding can be set aside by the High Court or Supreme Court.
The appropriate remedy for election disputes in cooperative societies – writ jurisdiction versus election petition under the Act.
The circumstances in which costs may be awarded against non‑contesting respondents under Art 142.

Legislation cited

Code of Civil Procedure, 1908s. s.151
Constitution of Indias. Art. 136, s. Art. 142, s. Art. 226, s. Art. 32
Maharashtra Co-operative Societies Act, 1960s. s.73-G, s. s.77-IB
Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971s. Rule 16, s. Rule 4, s. Rule 6, s. Rule 7

Subjects

Art 226collusionfraud on the courtcooperative society electionstatutory mandatereview jurisdictionelection petitioncosts under Art 142Rule 4 voters list

Judgment

RAMCHANDRA GANPAT SHINDE AND ANR. A
v.
STATE OF MAHARASHTRA AND ORS.

AUGUST 17, 1993

[K. RAMASWAMY AND R.M. SAHA!, JJ.] B

Constitution of India-Art. 226-0rder obtained by collusion and con-
trary to statutory mandate-Third party to the proceedings approaching High
Court in fresh wlit proceedings-Whether that Cowt can review its own order
in independent proceedings under A it. 226-Held, where the process is abused C
and an order obtained by collusion and fraud on the Cowt, either High Court,
or Suprente Coult, can co"ect such order

Maharashtra Co-operative Societies Act, 196(}-S.73G, Ch.XI-
Maharashtra Specified Co-operative Societies Elections to Committee Rules
1971-R4-Preparation of list of vote1s-Held, shall be prepared by the D
society for the year in which general election is due to be held-Members as
on 30th June of the year immediately preceding the year in which election due
alone to be included-Validity of list approved and published by Collector,
held, not affected by postponement of election;~Ss.77-JB, s.144T, Rr.6, 16..
E
Costs-Where non-contesting respondents set the law in motion, had
the benefit thereon and remained deliberately ex- parte, held, costs may be
awarded-Constitution of India, Art. 142

The term of office of the Committee of Shri Vathal Sakhar Sehakari
Karkhana Ltd. was due to expire on December 3, 1991. The Dt. Collector F
who was the competent authority initiated the election process, and the
final list of voters was pnblished on December 17, 1991.

The Government, in exercise of its powers under s.77-IB of the
Maharashtra Co-operative Societies Act, 1960 postponed the conduct of G
elections to the Committees of all co-operative societies except those
covered by orders of courts, till, September 30, 1992.

On July 13, 1992, two members-More and Mule - filed a writ petition
in the High Court for a mandamus to the Dt. Collector and election officer
to conduct the election forthwith after September 3Q, 1992. By consent of H
589
590 SUPREME COURT REPORTS (1993) SUPP. 1 S.C.R.

A the Society through its Chairman - A.K. Patil - the Division Bench directed
that since the election had been postponed to September 30, 1992 ·by order
of the government, the process of election to the Committee shall com-
mence from October l, 1992. On September 15, 1992, More.and Mule filed
another writ petition for a direction to hold elections on the basis of the
B final list of voters published on December 17, 1991. Again A.K. Patil took
notice, and by consent a fresh list of voters was directed to be drawn up
on the basis of the provisional list of voters as on June 30, 1992, and for
elections thereafter to be held.

On becoming aware of the above order, the appellants, who were not
C parties to the earlier petitions, filed a writ petition to modify the order and
to direct that the elections be l)eld on the basis of the final voters list
published on December 17, 1991.

The Division Bench dismissed the writ petition in limine.

D In this court, the appellants contended that A.K. Patil had got 2000
members enrolled after December 17, 1991. They alleged that fearing he
would lose the elections, he had colluded with More and Mule, abused the
process of the Court and played a fraud ou the court to make the list of
voters to be as ou June 30, 1992 and to conduct elections on that basis.
E
For the Society it was contended that the remedy lay in an election
petition and not in a writ; that the State Government had postponed the
election due to drought and the sugarcane growers who had become
members in the interregnum were entitled to exercise their franchise; and
that "general elections due" meant due according to the law as on the date
F when the elections are to be held. A.K. Patil, it was submitted, had secured
more. than 4-5 thousand votes while the new members enrolled were only
2000, and interference nnder Art. 136 was not warranted. There being no
stay of elections, the election process had been completed by order of this
Court except for the declaration of results.
:
G Allowing the appeal, this Court

HELD: 1. Rule 4 requires that the provisional list of voters shall be
prepared by every society "in the year in which general election is dzie to be
held". S.73-G, provisions in Chapter XIA and the bye-laws read with Rule
H 4 envisage that the election c.to the managing committee should be con-
R.G. SHINDE v. STATE OF MAHARASHTRA 591

ducted before the expiry of the term. The provisional voters list is to A
consist of the members as on June 30th of the year 'immediately preceding
the year' in which such general election is due to be held. The year in which
the general election to the society is due is the date as per the operation
of law i.e. 1991 but not due after the expiry of the period as postponed by
the State Govt. [595-G, 597-C, HJ
B
Black's Law Dictionary, 6th Edn. p. 500, referred to.

2. The allegations of collusion, fraud and abuse of process of the
Court have not been denied. The necessary conclusion would be that a
collusive order obtained by abuse of the process of the court by playing C
fraud on the court, became foundation to conduct elections to the Manag-
ing Committee of the society circumventing the mandate of Rule 4(1) of
the Rules. Collusion is the foundation to pul forward a format of judicial
process and a pretext of contest which is in effect unreal and a farce. A
decree of order obtained on its basis is a mere mask having similitude of
judicial determination with the object of confounding third parties. The D
offending order is vitiated by collusion and formed foundation for election
to the committee of the society. [598-D, F; 599-B)

Nagubai Amma/ v. B. Shamma Rao, [1956] SCR 451 at 463 and Roop
Chand Gupta v. Raghuvanshi Pvt Ltd., [1964) 7 SCR 761 at 763, followed. E
3. The order passed by the High Court under Art. 226 is a judicial
order exercising its constituent power but when its process is abused and
a consent order is obtained by collusion and fraud on the Court and on
the general body of the members of the Society, and the facts are brought
to the notice of the High Court, it is for the High Conrt alone or on appeal F
this Conrt to correct such an order. [600-E)

Naresh Shn"dhar Mirajkar v. State of Maharashtra, [1966) 3 SCK.744,
distinguished.

Mr. Justice Arthur T. Venderbilt, The Change of Law Reform 1955, G
pp. 4 and 5, referred to.

4. The High Court should have exercised its power under i\rt. 226
and modified the order. [601-GJ

N. Venkataramapa Bhat v. The Retuming Officer, C.A. No. 3607 of H
592 SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.

A 1993 decided on July 30, 1993, relied on.
Respect for law is one of the cardinal principles for an effective
operation of the constitution, law and popular Government. The faith of ·
the people in the efficacy of judicial process would be disillusioned, if the
parties are permitted to abuse its process and allowed to go scot free. It
B is but the primary duty and highest responsibility of the court to correct
such orders at the earliest and restore the confidence of the litigant public,
in the purity of fountain of justice; remove stains on the efficacy of judicial
adjudication and respect for rule of law, lest people would lose faith in the
courts and take recourse to extra-constitutional remedies which is a
C death-knell to the rule of law. [601-A-C]

5. Where an alternative remedy of the election petition is provided
by statute, the High Court or this Court, under Articles 226, 32 or 136
would decline to interfere with the election process. When the order of the
court issued under Art. 226 is the foundation for a preparation of electoral
D roll contrary to or dehors the Act or rules and bye-laws and the election
process is founded thereon, it is not during the election process. If the
order is vitiated by an error of law, the tribunal has no power or jurisdic-
tion to go into its legality which is destructive of judicial discipline.
Moreover, that cannot be impngned in an election petition nor the
E tribunal has the power or jnrisdiction to determine the correctness or
otherwise of the orders passed by the High Court or this Court. The only
appropriate forum would, therefore, be the High Court itself or ou appeal
this court, to correct it, if need be and no other forum. (604-C-E]

N.P. Ponnuswami v. Retuming officer, [1952] SCR 218 and S. T.
F Muthusami v. K. Natarajan, [1988] 2 SCR 759, referred to.
When the appellants sought a modilication of the order to bring it
in conformity with Rule 4(1), the High Court should have corrected the
order. [604-E]

G 6. An order obtained by abuse of the process of the Court cannot be
allowed to remain operative. [604-H]

Rashpal Malhotra v. Mrs. Satya Rajput, [1987] 4 SCC 391, referred
to.

H 7. Normally when a respondent is not contesting a case, costs would
R.G.SHINDE v. STATEOFMAHARASHTRA[K.RAMASWAMY,J.] 593

not be awarded. But an exception would be carved out and in a suitable A
case cost should be awarded on persons that set the law in motion; had
benefit thereof and remained obviously ex- parte. Under the plenary power
of the court under Art. 142, A.K. Patil, More and Mule are to pay costs
quantified Rs. 20,000, jointly or severally. [605-D, F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3947 of B
1993.

From the Judgment and Order dated 19.10.92 of the Bombay High
Court in writ petition No. 4400/92.

S.B. Bhasme and P.K. Pillai for the appellants. c
Ashok Desai, U.R. Lalit, A.S. Bhamse, S.M. Jadhav, Mrs. J. Wad
and.Rajan Narain for the respondents.

The Judgment of the Court was delivered by
D
K. RAMASWAMY, J. Leave granted.

Important twin questions of law, namely, whether the court while
exercising its power under Art. 226, could give direction contrary to the
statutory mandate, if so whether such an order is liable to judicial review E
by an independent proceeding under Art. 226 and if so under what cir-
cumstances and to what extent, arise for decision in this appeal. Shri Vithal
Sakhar Sehakari Karkhana Ltd., Venn Nagar, Gurusale in Solapur Dist.,
the 4th respondent, for short "the society" is a specified Cooperative Society
under the Maharashtra Cooperative Societies Act, 1960 (Act 21 of 1961)
for short 'the Act'. Its term of office is 5 years. It was due to expire by
F
December 3, 1991. The Dist. Collector, 2nd respondent is the competent
authority under the Act to initiate election process in accordance with the
Act and the Maharashtra Specified Cooperative Societies Electfons to
Committee Rules, 1971 for short, 'The Rules'. The Dist. Collector accord·
ingly initiated the process· pursuant to which the society submitted to the G
Collector on October 18, 1991 the List of Voters as on June 30, 1991.
Thereon the Collector issued the following programme to finalise the list
of voters. November 12, 1991 was fixed as the date to display on the notice
board of the provisional voters list inviting claims or objections or sugges·
tions for the inclusion or omission from the provisional list. November 20, H
594 SUPREME COURT REPORTS [1993] s'UPP.1 S.C.R.

A 1991 was the last date to present such claims or objections to the Collector
in terms of Rule 6(2) of the Rules. The Collector had to take a decision
therein under Rule 6( 4) on December 7, 1991 and the final list of the voters
should be published under Rule 7 on December 17, 1991. In terms of the
programme the provisional list was published on November 12,1991 and
B after co~sideration of the objection or claims the final list was published
on December 17, 1991.

The Government in exercise of its power under s.77-IB of the Act
postponed the conduct of election to the committees of all Cooperative
C Societies except those covered by orders of the courts till September 30,
1992. Two members by name Narayan Ganpat More and Mahadeo
Bhanudas Mule, filed Writ Petition No. 2970 of 1992 in Bombay High
Court on July 13, 1992 for a mandamus to the Dist. Collector and .election
officer to conduct election to the Committee of the Society forthwith that
is to say after the expiry of 30.9.1992 in accordance with s.73-G and
D Chapter XI-A of the Act and the Rules and to complete the same within
the minimum period as provided under the Act. By consent of the Society,
through its Chairman AK. Patil, the 5th respondent herein, the division
bench passed minutes order that since the Govt. postponed the election
upto September 30, 1992, the process of election to the Society shall
E commence from October 1, 1992 and the Collector shall accordingly take
suitable steps for holding the election. Following its heels More and Mule
again filed another writ petition No. 4107 of 1992 on September 15, 1992
for a direction to hold election on the basis of final voters list published
on December 17, 1991. Again AK. Patil, chairman took notice put forth
F consent minutes and the division bench accepted it and directed by order
dated September 28, 1992 that "respondent No. 4 (Society) shall submit
provisional list of voters as on June 30, 1992 as per Rule 4 of the Rules on
or before October 10, 1992. The Collector thereupon shall complete the
finalisation of the said list under Rule 6 and then shall pronounce election
G programme under Rule 16 for holding the elections of the Committee of
the Society and to complete the same within the prescribed time under the
Rules. Thereafter on October 6, 1992 the election officer asked the Society
to submit fresh provisional list as on June 30, 1992. On becoming aware
of the above order, on October 16, 1992, the appellants filed Writ petition
H No. 4400 of 1992 to modify the order dated September 28; 1992 made in
R.G. SH!NDE v. STATE OF MAHARASHTRA [K. RAMASWAMY, J.] 595

Writ Petition No. 4107 of 1992 and to direct the respondents 1 to 3 the A
State Govt. (Dist. Collector and election officers) to hold election to the
Committee on the basis of the final voters list published on December 17,
1991 and to set aside the consequential orders. The division bench by the
impugned judgment dated October 19, 1992 dismissed the writ petition in
limine. Thus this appeal by special leave. Notice was served on all the
B
respondents in this appeal. A.K. Patil, Chairman, respondent No. 5 was
served on December 23, 1992. More, 6th respondent was served on Decem-
ber 18, 1992 and Mule, 7th respondent was served on December 16, 1992.
They did not appear either in person or through counsel. The Society was
represented by counsel.
c
Rule 4(1) of the Rules provides thus:

"4(1) A provisional list of voters shall be prepared by every society
for the year in which general election is due to be held. Persons
who are members as on the 30th June of the year immediately D
preceding the year in which such election is due shall be included
in the provisional list. If different constituencies are provided in
the. bye-laws, the names of voters shall be arranged constituen-
cywise as laid down in the bye-laws:

Provided that, if any case, the preparation of the provisional E
list of voters falls due after the expiry of a period of six months
from the 30th June, the Collector may, in consultation with the
Registrar in respect of the societies, of the categories mentioned
in clauses (i), (v), (vi) and (vii) of sub-section (l) of section 73G,
and in consultation with the District Deputy Registrar in respect F
of the societies the other categories mentioned in sub-section 1 of
section 73G, by order, change the date of the 30th June and
subsequent dates and fix revised dates for the purpose of these
rules 1
'

Its reading adumberates that the provisional list of voters of society G
shall be prepared by the society for "the year in which general election is
du.e to be held". Persons who are members as on 30th June of the year
immediately preceding the year in which such election is due, shall alone
be included in the provisional list. Thereby; it is clear that the society shall
prepare a provisional list of voters, comprising of all the members of that H
596 SUPREME COURT REPORTS [1993] SUPP.! S.C.R.

A society for the year in which general election is due to be held. But the
persons who are members of the society as on 30th June of the immediately
preceding the year in which such election is due should alone be included
in the provisional list and eligible to vote at the election. Under the proviso,
if the preparation of the provisional list falls due after the expiry of the
B period of six months from 30th June, then the Collector is enjoined to
consult the Registar or th,e Dist. Deputy Registrar as the case may be
based, on the class of society envisaged under s.73-G; he should pass an
order changing the date of 30th June and prescribe a subsequent date; fix
revised date for the purpose of preparing the provisional list and ensure
C the procedure for declaration of the final list.

. It is the case of the appellants that after the final list was published
by the Dist. Collector on December 17, 1991, AK. Patil, the Chairman, got
enrolled 2000 members and made them eligible to exercise franchise in his
favour apprehending that he would be defeated in the general election,
D colluded with More and Mule, i.e. Director and a member of the society
respectively, got filed collusive writ petitions, abused the process of the
court, played fraud on the court and obtained collusive orders to make the
provisional list of voters to be as on June 30, 1992 and to conduct elections
on that basis. The Dist. Collector filed counter-affidavit in this court
E admitting that Rule 4 and the circular issued by the Govt. in this behalf
envisage that the final list of voters in force before the postponement of
the election by the State Govt. shall be v,Jid but since the High Court
issued the direction to treat June 30, 1992 to be·!he date for reckoning the
provisional list of voters to be valid, he had no option but to abide by the
direction and to conduct the election in terms thereof. As stated earlier
F
that though respondents 5 lo 7 were served, they did not file any counter
denying the allegations of the appellants made against them.

We have already noted that under Rule 4 provisional list of voters
shall be prepared by every society 'in the year in which gr.neral election is
1

G due to be held". lt is no! due under law as contended for the Society. What
is the meaning of the above quoted phrase is to be gathered from the
statutory operation of the law. The term of the Managing Committee was
to expire on December 3, 1991. Under the Act the election to the managing
committee, of the society shall be held under s.73-G before the e>-Jliry of L
H the term in accordance with the provision in chapter llA of the Act, the

(
(
. R.G.SHINDE v. STATEOFMAHARASHTRA[K. RAMASWAMY,J.] 597

Rules and the bye-laws of the society. The year in which the general A
election due is, therefore, the year 1991. If the elections were not con-
ducted before its expiry, by operation of sub-s.2B of s.73-G, the members
of the existing committee should cease to hold office on its expiry of
extended term as the case may be and should be deemed to have vacated
their offices. By operation of sub-s.(3) of s.73-G, the general body of the B
members of the society should elect the members of the managing com-
mittee. Therefore, before the expiry of the term of the committee the
general election to the Managing Committee is due. Black's Law Diction-
ary, sixth edition at. p.500, meaning of the words 'due date' has been stated
thus: "In general, the particular day on or before which something must be C
done to comply with law of contractual oblig\ltion". When s.73-G,
provisions in Chapter XIA and the bye-laws read with Rule 4 envisage
that the election to the managing committee should be conducted before ·
the expiry of the term, the Society has been enjoined under Rule 4(1) to
prepare the provisional voters list of the members as on June 30th of the
year "immediately preceding the year' in which such general election is due D
to be held and submit the same to the Dist. Collector. The Legislature,
thereby intended that despite the existence of the members on the admis-
sion r,egister of the society, only those members who were admitted and
valid as members on or before 30th June of the year immediately preceding
the year in which such general election is due alone are eligible to exercise E
the franchise and to be included in the provisional list. Thereafter on
publication in the Notice Board under Rule 6(1) and considering the
objections, suggestions or improvements if any made, the Collector is
enjoined to fmalise the list under Rule 7 and have it published as "fmal list
of voters". The proviso would operate only in case the preparation of the F
provisional list of voters falls due after the expiry of the period of six
months from the 30th June, then only, after consultation with the desig-
nated officer, the Collector, by an order, may change the date of 30th June
and fix a subsequent date as revised date to submit the pravisional list of
voters. In this case the proviso has no application for the reason that the G
provisional list had already been approved and published by the Collector
as per the law on December 17, 1991. It was not challenged. Therefore,
the year in which the general election to the society is due is the date as
per the operation of law i.e. 1991 but not due after the expiry of the period
as postponed by the State Govt. Obviously, for that reason the Govt. also
H
598 SUPREME COURT REPORTS l1993J SUPP. 1 S.C.R.

A had issued instructions on September 28, 1992 that in case the provisional
list was approved and the final list was published prior to the postponement
of the election, the election should be conducted in accordance with the
final list published under rule 7 of the Rules.

It would be obvious that A.K. Patil, Ex-Chairman of the defunct
B committee with a view to get over that impediment and to enable newly
admitted 2000 members after December 17, 1991, set up More, a co-direc-
tor and Mule, alleged to be his friend, got filed the first writ petition and
obtained a direction lo conduct election following its ·heels got filed second
writ petition with a format of legal process but immediately Patil intervened
c and appeared on the very date of admission; put forth consent order and
obtained the order from the court to conduct election as per the
provisional list existing as on June 30, 1992 and got issued the direction to
the Collector with the mandate to conduct election in accordance with that
list. It was specifically alleged that Patil colluded with More and Mule,
0 abused the process of the court, played fraud on the court and obtained
minutes order by consent without knowledge to any member of the society.
In the absence of any denial of the allegations and in the light of the
background of the case the necessary inference to be unerringly deduced
would be that the consent order is a collusive and fraudulent order; made
E format of due process of law but obtained orders contrary to the statutory
. mandate of Rule 4(1) of the Rule. It could thus be seen that none of the
members of the society had any opportunity to know or to oppose the
consent order. Thereby the necessary conclusion would be that a collusive
order obtained by abuse of the process of the court by playing. fraud on
F the court, became foundation to conduct elections to the Managing Com-
mittee of the society circumventing the mand 0 te of Rules 4(1) of the Rules.

In Nagubai Ammal & Ors. v. B. Shamma Rao & Ors., 11956] SCR 451
at 463, this court held that collusion in judicial proceedings is a secret.
arrangem~ntbetween two person that the one should institute a suit against
G the ,0th er in order to obtain the decision of a judicial tribunal for some
sinister purpose. In such a ·proceedings, the claim put forward is fictitious,
I
the contest over it is unreal, and the decree passed therein is a mere mask
having the similitude of a judicial determination and worn by the parties
·with the object of confounding third parties. This was reiterated in Roop
H Chand Gupta v. Raglmvanshi Pvt. Ltd. &Anr., (1964] 7 SCR 761 at 763, in
R.G.SHINDE v. STATEOFMAHARASHTRA[K.RAMASWAMY,J.] 599

which this court held that the collusion is an improper act done by an A
improper refraining from doing an act, for a dishonest purpo.se. In these
two cases this court set aside the collusive decree obtained by the parties.
Collusion, thus, is a foundation to put forward a format of judicial pmcess
and a pretext of contest which in effect is unreal and a force and the decree
or order obtained on its basis is a mere mask having similitude of judicial
B
determination with the object of confounding third parties. The offending
order is vitiated by collusion and formed foundation for election to the
committee of the society.

The question emerges whether the said order is liable to be inter-
fered with and if so in what proceeding and to what extent? The order in c
the second writ petition cannot be reviewed because the appellants are not
parties to the proceedings. Undoubtedly, the order passed by the High
Court under Art. 226 is by the exercise of plenary constituent power and
jurisdiction. It is neither a void nor voidable order. As seen no fault could
be found in the format of legal process in the pleadings and the reliefs D
sought for. But when it came. up for admission, by consent, orders of
minutes were drawn up which have become foundation for ·avoidance '.of
mandate of Rule 4(1) of the Rules. It is not a ·case of irregularity in ihe
exercise of the jurisdiction ·so as to set it right by a review. Since the
petitioners therein, namely, More and Mule being henchmen of" Patil E
cannot be expected to invoke the review jurisdiction of the court. Third
party has no right to file an application for review. Obviously in this
backdrop the order being vitiated by collusion at the behest of Patil, More
and Mule, the appellants, in5tead of filing an appeal under Art. 136 with
leave of the court, appears to have sought the remedy by way of filing a
fresh writ petition under Art.226 and sought modification of the· order so
F
that the order of the ·court· in the second writ petition would be· in
conformity with Rule 4(1) of the Rules.

Obviously finding the piquant situation in which Patil, More and .
Mule have been placed themselves, Sri Ashok Desai the learned Senior G
counsel appearing for Society, sought to salvage their problem placing
reliance on the ratio of this court in Naresh Shridhar Mirajkar Qnd Ots. v.
State of Maharashtra and Anr., [1966] 3 SCR 744. Therein the facts were
that the High Court of Bombay, while trying a suit for defamation against
the editor of a weekly newspaper, exercised its inherent power under s.151 H
600 SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A C.P.C., ·conducted the trial of the suit in camera and prohibited publication
of the evidence and the proceeding so as to prevent business of the editor
of the newspaper being affected. A writ petition was filed under Art. 32 in
this Court challenging the validity of the order of the High Court contend-
ing inter alia that the High Court had no jurisdiction to prohibit publication
B of the news; it affected their rights under Art. 19(1)(a) and it was resisted
on the ground that the writ petition under Art. 32 was not maintainable to
review judicial order of the court. This Court by seven Judges per majority
held that the petitioners had no fundamental right under Art. 19(1)(a). The
Court had inherent power and jurisdiction under s.151 CPC lo conduct in
camera trial and to prohibit publication of its proceeding ot evidence and
C that writ petition under Art. 32 is not maintainable to quash the judicial
order. It is seen that the court, in order to protect the interest of one of
the parties to the suit, exercised inherent power and jurisdiction under
s.151 CPC, passed a judicial order_ prohibiting publication of the proceed-
ing in the suit or the evidence oflthe witness. It being a _judicial order no
D third party has a right to intervene and challenge the same in the proceed-
ings under Art. 32 of the Constitution. The ratio therein has no application
to the facts of this case. Undoubtedly, the order passed by the High Court
under Art. 226 is a judicial order exercising its constituent power but when
• its process is abused and an order of minutes obtained by consent hedged
E with collusion and fraud on the Court and obviously, though not pleaded,
on general body of the members of the society, when the facts were brought
to the notice of the High Court, it is the High Court alone or on appeal
this court which is to correct such and order.

F Mr. Justice Arthur T. Venderbilt in his "The Change of Law Refonn
1955" at pages 4 and 5, slated that:

".......... .it is in the Courts and not in the legislature that our citizens
primarily feel the keen, the cutting edge of the law. If they have
respect for the work of their courts, their respect for law will
G survive the short comings of every other branch of the Government;
but if they lost their respect for the work of the Courts, their
respect for the law and order will vanish with it to the great
detriment of society."

H (vide the Judicial Process by H.J. Abraham, p.3)
R.r..SHINDE v. STATEOFMAHARASHTRA[K.RAMASWAMY,J.] 601
'.
Respect for law is one of the cardinal principles for an effective A
operation of the constitution, law and the popular Oovernrnent. The faith
of the people is the source and succour to invigorate justice intertwined
with the efficacy of law. The principle of justice is ingrained in our
conscience and thou!ih ours is a nancent democracy which has now taken
deep roots in our ethos of adjudication - be it judicial, quasi-judicial or B
administrative as hallmark, the faith of the people in the efficacy of judicial
process would be disillusioned, if the parties are permitted to abuse its
process and allowed to go scot free. It is but the primary duty and highest
responsibility of the court to correct such orders at the earliest and restore
the confidence of _the litigant public, in the purity of fountain of justice;
remove stains on the efficacy of judicial adj)ldication and respect for rule C
of law, lest people would lose faith in the . courts· and take recourse to
extra-constitutional remedies which is a death-knell to the rule of law.

In M. V. Venkataram(llla Bhat v. The Retuming Officer, C.A. No, 3607
of 1993, this court by judgment dated July 30, 1993, set aside the elect10n. D
The fa~ts were that one Jaiprakash Rai filed a writ petition in the High
Court of Karnataka one day prior to the date of election of the Pardhan
of the Samithi; obtained ad interim order and prevented two members to
participate and exercise their franchise in the election of the Pradhan. His
candidate was elected with a margin of one vote. The writ petition was, E
ultimately, dismissed. The writ petition under appeal was filed to declare
the election as illegal, void, etc. The High Court dismissed it. On appeal,
this Court taking notice of the background of these facts and circumstances
_held that ad-interim order was obtained by abuse of the process of the court
to help the successful candidate. Even if the remedy by election petition
F
was available, the tribunal had no jurisdiction to sit over the correctn~ss of
the order passed by the High Court. Therefore, the High Court alone had
to correct it by exercising its power under Art. 226 to prevent such abuse
of judicial process and should exercise its power of high responsibility to ·
undo injusti~e done to the adversary undoing the effect of the order
obtained by abusing the process of the court. The ratio would apply with G
equal force to the facts of this case. Therefore, the High Court should have
exercised its power under Art. 226 and should have modified the .order as
prayed for.

Since there is no stay of election the.5th respondent was alleged to H
'
SUl'Kl,,Mf COURT lffl'OKJ,; I 1\>931SUPP,1 S,C,R,

A have prc\'ailed upon respondent No, 3 to proceed with the conduct of the
election. Accordingly election process \Vas initiated and election \Va:.. In
take place on April 27, 1993, This Court by order dated April 26, 1'!93
directed that the election may go on and every process may be completed
but the result may not be declared till further orders and directed lo post
B the special leave petition for final disposal on May 3, 1993 on which date
this court further clarified that the aforesaid order "does not come in the
way of completing the process of counting being undertaken provided the
resuhs are not announced", S,LP,, was directed to be listed on July 30,
1993, Thus we have heard the S,LP,

C Sri Ashok Desai contended that s, 144T provides remedy of election
petition, The specified officer is empowered to decide the election dispute
expeditiously and his decision shall be final and conclusive, The writ
petition, therefore, is not maintainahlc, It is further contended that every
grower of sugarcane within the area of the operation of the society is
D entilleu LO become a member of the society, The Stale GovL postponed
the election due to drought etc, from time to time upto September 30, 1992,
In the interregnum the growers that became members of the society
become entitled to participate in the democratic process of exercising their
franchise to elect the members to manage the affairs to the committee, The
E Court, therefore, with a view to enable them to participate in the election
process and to elect members of their choice permitted to incorporate their
names in the provisional voters list as on June 30, 1992, since elections were
not held till September 30, 1992, The words "general elections due" should
be construed lo be due according to law as on the date when the elections
ar~ lo be held, Since the results are now know in the counting, the 5th
F respondent had secured more than 4 and 5 thousand votes while new
nicmbers enrolled \Vere only 2 thousand. This case does not \Varrant
interference under ArL 136, Shri Bhasme, the learned Senior counsel
resisted the contentions. We have e-Jvcn our anxious consideration to the
contentions of either side, In NF, Fonnuswami v, Retwning Officer and
,G Ors,, 119521SCR218, the legality and validity of rejection ofthe nomination
of the intending candidate to the Parliamentary election was challenged
by way of a writ petition under Art 226, The High Court held that the Writ
Petition was not maintainable, On appeal, by leave under Art 132, this
Court held that the wider meaning of the word election connotes the entire
H
R.G.SHINDE v. STATEOFMAHARASHTRA[K.RAMASWAMY,J.] 603

process culminating in a candidate being elected. The election should be A
concluded as early as possible according to time schedule and all controver-
sial matters and all disputes arising out of elections should be postponed till
after the elections are over, so that the election proceedings may not be
unduly retarded of.protected. No significance should be attached to anything
which does. not affect the 'election', and if any irregularities are committed B
while, it is in progress and they belong to the category or class which, under
the law by.which electiol!S are governed, would have the effect of vitiating the
election ·and enable the person affected to impugne in question, they should
be brought up before a_special tribunal means of an election petition and not
being made the subject of a dispute before any court while the election is in C
progress. (emphasis supplied). Aecordingly, this Court upheld the view of
In
the Madras High Court. S. T. Muthusami v. K Natarajan and Ors., [1988]
2 SCR 759, in Tarnilnadu wheri elections to the Panchayat Union were
being held, there was a dispute between two candidates as to who is the
official candidate on behalf of the Indian National Congress (1) and
entitled to the allotment of the symbol 'hand'. Both the candidates, appel- D
!ant and the respondent claimed as official candidate but the Returning
Officer on consent allotted different symbols as it was not cleared before
. acceptance of nomination. Later on clarification was issued by the Tarnil-
nadu Congress (I) that the appellant was allotted symbol of 'hand'. The
Returning Officer issued errata accordingly. Calling in question the errata E
the respondent ftled the writ petition which was dismissed by a Single
Judge and on appeal the division bench allowed the writ petition and quash
the Errata. When the matter was brought by special leave under Art.136,
this Court held that T.N. Panchayats Act, 1958 and the ' Rules provided
forum to decide election disputes though alternative forum does not have F
the effect of overriding the powers of the High Court under Art. 226 (emphasis
supplied) but it it may be taken into consideration in determining whether
it would be appropriate for the High Court to exercise its powers under
Art. 226 in a particular case. Taking an overall view of the facls, thi~ Court
held that the exercise of tl;ie jurisdiction under Art. 226 cannot be sup- G
ported and the validity of the election should be decided in the alternative
forum provided under that Act. Accordingly tbe appeal was allowed.
Therefore, this Court held that there is no constitutional bar in the exercise
of the jurisdiction in respect of election to local bodies. It is equally sound
exercise of discretion to bear in mind the policy of the legislature to have
H
604 SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.

A the dispute decided speedily through the machinery of election petition and
decline to exercise its writ jurisdiction in election dispute. Once the elec-
tion process was set in motion according to law any illegality or irregularity
committed while the election process is in progress or the conduct of the
election is vitiated by any illegality to irregularity in its process, the proper
B remedy is to lay the action before the tribunal constituted under that Act
by means of an election petition and have the dispute adjudicated without
the election process being interdicted or retarded mid way. The High
Court or this Court while exercising the constituent plenary power under
Art. 226 or 32 or under 136, as the case may be, would decline to interfere
C with the electicn process and relegate the parties to take recourse to the
alternative remedy of the election petition provided under the statute.
When the order of the court issued under Art. 226 is the foundation for a
pi;cparation for electoral roll contrary to or dchors the Act or Rules and
bye-laws and the election process is founded thereon, it is not during the
election process. If the order is vitiated by an error of law, the tribunal has
D no power or jurisdiction to go into its legality which is destructive of judicial
discipline. Moreover, that cannot be impugned in an election petition nor
the tribunal has the power or jurisdiction to determine the correctness or
otherwise of the orders passed by the High Court or this Court. The only
appropriate forum would, therefore, be the High Court itself or on appeal
E' this court, to correct it, if need be and no other forum. The appellants had
approached the High Court, apprised it of the facts and sought modifica-
-~n of the order so as it be in conformity with the Rule 4(1) of the Rules.
The High Court should have corrected the order but it failed to exercise
that power.
F
It is next contended that this court exercising the power under Art.
136 would be loath to upset the order of the High Court placing reliance
on Rashpal Malhotra v. Mrs. Satya Rajput and Anr., [1987] 4 SCC 391.
Therein the order of ejectment was passed by the court below against the
tenant who was co-nominee, not a party but known to the parties. The
G appellant to be ejected, was the nominee of the company. Jn that back-
ground, this court held that though the order was not legal but being for
bona-fide self-occupation, this Court declined to exercise the power under
Art. 136 and dismissed the appeal. The ratio therein has no application to
the facts of this case. For an order obtaine_d by abuse of the process of the
H court or by playing fraud or collusion, this court should not countenance
R.G.SHINDEv.STAIBOFMAHARASHTRA[K.RAMASWAMY,J.] 605

such an argument and should not allow such an order to remain operative A
for a moment. We are no equally impressed with the argument that the
respondent now became aware that Mr. Patil secured more than 4 to 5
thousand votes though the invalid votes are only of 2 thousand, being of
the members admitted after December 17, 1991, and that should be a factor
for our declining to exercise the power under Art. 136 to set aside the order
of the High Court or the elections conducted pursuant to the permission B
granted by this court. In our view, acceding to it would amount to putting
a premium on fraud, collusion or abuse of the process of the court creating
disbelief and disillusionment of the efficacy of judicial process and rule of
. law and a feeling would be generated that rersons capable to manoeuvre
and abuse the judicial process would reap the benefit thereof and get away C
with the orders. Every endeavour would be made to inculcate respect for
fair judicial process and faith of the people in the efficacy of law. ·

Though normally when a respondent is not contesting its case, costs
would not be awarded. But an exception would be carved out and in a D
suitable case cost should be awarded on persons that set the law in motion;
had benefit thereof and remained obviously ex-parte. This Court under Art.
142 has plenary power "to pass such order as is necessary for doing
complete justice in any cause or matter coming before it". The facts of this
case already established that the respondents Nos. 5 to 7, in particular A.K.
Patil, must be lurking and loftering in the corridors of this court for the E
outcome, though they obviously remained ex-parte. It is a fit case for
exercising our power under Art. 142 to impose cost on the non-contesting
respondents, AK. Patil, More and Mule, jointly or severally. Costs are
•
quantified at Rs. 20,000 and the appellants are entitled to recover the costs
of this appeal against any one of them or all of them. F

It is hereby declared that election process conducted by the third
respondent, Dist. Deputy Registrar, Cooperative Society, Solapur to· the
Society is illegal. The final list of voters published by the Dist. Collector,
Solapur, as on June 30, 1992 is declared illegal. The final voters list G
declared on December 17, 1991 relating to the society is the valid list.
Accordingly the order of the High Court~ Writ Petition No. 4107 of 1992
dated September 15, 1992 is modified. The direction to the Dist. Collector
and the 3rd Respondent, Dist. Deputy Registrar, Coop. Society, Solapur
to proceed as per Rules 4 to 7 and 16 to conduct election to the committee H
606 SUPREME COURT REPORTS [1993] SUPP. l S.C.R.

A of the society in accordance with the Rules is upheld with the above
modification. The election held to the Managing Committee of the society
on April 27, 1993 is declared illegal and invalid. Respondent Nos. 2 & 3
are directed to conduct the election as per Rules consistent with the above
order. The appeal is allowed accordingly with costs as fixed above.

U.R. Appeal allowed.

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