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1983 DIGILAW 489 (MP)

RAJENDRA KUMAR SHARMA v. THE STATE OF M. P.

1983-11-21

G.G.SOHANI, S.S.SHARMA

body1983
SOHANI, J. ( 1 ) THIS is a petition under Article 226 of the Constitution of india. The petitioner is a member of Gramin Sewa Sahakari Sanstha Maryadit, panpur', Tehsil and District Mandsaur, a co-operative society registered under the Co-operative Societies Act, 1960, (hereinafter referred to as 'the act' ). The society is holding an election to elect members of the society and its delegates for representing the society in other co-operative societies. The petitioner filed nomination forms for being elected as the delegate of the society in the District Central Co-operative Bank Limited, District mandsaur; but on the date fixed for scrutiny of nomination papers, the nomination forms of the petitioner were rejected by respondent No. 4, the returning Officer. It is contended on behalf of the petitioner that the nomination forms filed by the petitioner have been illegally rejected by the returning Officer on political considerations as the petitioner belongs to bhartiya Jama Party and that respondent No. 4 is acting on instructions of respondent No. 3, the Assistant Registrar of Co-operative Societies, to reject the nomination forms of candidates not belonging to Congress (I) party. It is contended that in other elections, which are being held by other societies in Mandsaur and Neemuch tehsils of District Mandsaur, in 44 societies out of 52 societies, the nomination forms of candidates not belonging to the ruling party have been rejected. The petitioner contends that the rejection of his nomination paper and of other nomination papers by Returning Officers of all those societies is mala fide and illegal and he has filed this petition under Article 226 of the Constitution for staying the elections of all the Primary Co-operative Societies in Mandsaur and Neemuch tehsils and for setting aside not only the rejection of his nomination forms but the rejection of all other nomination forms in all the aforesaid co-operative societies ( 2 ) IN reply to the notice to show cause why the petition be not admitted, it is contended on behalf of the respondents that for the grievance of the petitioner arising out of rejection of his nomination form for election as a delegate of the society, the remedy of raising an election dispute under Section 64 of the Act is available to the petitioner and the remedy sought by the petitioner under Article 226 of the Constitution is misconceived. It is further contended that the rejection of the nomination forms is for valid reascns, which are in accordance with the rules prescribed in that behalf and that the allegation of the petitioner that a 1 the nomination forms filed by candidates not belonging to Congress (I) have been rejected in the Mandsaur District for oblique motives, is ill founded, false and malicious. It is further contended that some of the candidates, who have been elected as unopposed on account of rejection of nomination forms of other candidates, do not belong to the congress (I) party and the allegation of the petitioner that the action of the returning Officer is mala fide and malicious, is totally unfounded. ( 3 ) SHRI Kokje, learned counsel for the petitioner, contended that the petitioner was challenging not only the election to be held by his society, but also the elections to be held by all other societies in Mandsaur and neemuch tehsils and hence a petition under Article 226 of the Constitution was the only remedy available to the petitioner. Reliance was placed on the decision of the Supreme Court in Bar Council of Delhi and another v. Surjeet singh and. others [air 1980 S. C. 1612]. It was further contended that the remedy under Section 64 of the Act was illusory as a dispute under Section 64 of the Act could be raised before the Registrar only after the declaration of the results of the elections and that the Registrar of Co-operative Societies, who has to decide disputes under Section 64 of the Act, was bound to act in accordance with the wishes of the ruling party. It was, therefore, urged that the remedy under Section 64 of the Act was not efficacious. ( 4 ) BEFORE we proceed to decide the question as to whether this is a fit case for entertaining a petition under Article 226 of the Constitution, it would be useful to refer to the relevant provisions of the Act and the Rules framed under the Act. Rule 41 prescribes the procedure for election of the members of the Committee of a Co-operative Society and its delegates for representing that society in other society. Sub-rule (9) relating to scrutiny of nomination papers is as follows :"41. Rule 41 prescribes the procedure for election of the members of the Committee of a Co-operative Society and its delegates for representing that society in other society. Sub-rule (9) relating to scrutiny of nomination papers is as follows :"41. Procedure for election of members of the Committee and a elegies for representing the society in other society : ***** (9) Nomination papers duly received shall be scrutinized by the returning Officer on the date fixed for the scrutiny of nomination under clause (c) of sub-rule (2 ). It shall be open to the candidates to be present at the scrutiny. The Returning Officer shall reject a nomination paper which is not in accordance with the preceding sub-rules or if the candidate is disqualified to be chosen to the committee or the proposer or seconder is disqualified to vote under the Act, these rules or the bye-laws of the society. In case of rejection, the Returning Officer shall record the reasons therefor. The Returning Officer shall prepare a list of valid nominations and shall sign it in token of correctness. Such list shall be published on the notice-board of the society. "by virtue of Section 64 (1) of the Act, a dispute relating to elections is required to be referred to the Registrar of Co-operative Societies under the act. Clause (v) of sub-section (2) of Section 64 reads as under !"64. Disputes : **** (2) For the purposes of sub-section (1), a dispute shall include **** (v) any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society : provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of result". In view of the aforesaid provisions of Section 64 of the Act, learned counsel for the petitioner conceded that the dispute arising out of rejection of the nomination paper filed by the petitioner could be referred to the Registrar. It was, however, contended that that remedy was available to the petitioner only after the declaration of the result of the election. It was, therefore, contended that the petitioner would have to wait till the election was held and the result declared. It was, however, contended that that remedy was available to the petitioner only after the declaration of the result of the election. It was, therefore, contended that the petitioner would have to wait till the election was held and the result declared. ( 5 ) THE question as to whether it is proper that the High Court should exercise its jurisdiction under Article 226 of the Constitution in election batters at intermediate stages or should it decline to exercise that power and leave the parties to their remedy of an election petition to be presented after the election is over, came up for consideration before a Full Bench of this court in Malam Singh v. Collector, Sehore, M. P. and others, [1971 M. P. L. J. 531]. The Full Bench held that where the remedy of an election petition was available, it would not be proper for the High Court to exercise its powers under Articles 226 and 227 of the Constitution for interfering with an inter locutory order passed during the process of election, save in very exceptional circumstances. ( 6 ) IT was contended that the exceptional circumstances in the instant case was that the petitioner was challenging the entire election process of all the Primary Co-dperative Societies in Mandsaur and Neemuch tehsils and hence this was a fit case for interference under Article 226 of the Constitution. Reliance was placed on the decision of'the Supreme Court in AIR 1960 sc 1612 (supra ). The decision in AIR 1980 SC 1612 (supra) is distinguishable on facts. In tbat'case, the elections were' assailed on the ground that the proviso to Rule 3 (J) of Bar Council of Delni Election Rules, 196and, was ultra vires the State Bar Council. The Supreme- Court held that the remedy of filing a petition before, the. Eleaion Tribunal in that case was no remedy at all as the Election Tribunal was incompetent to declare any provision of the Election Rules ultra vires and invalid. The Supreme Court, however, did not approve the views -. expressed by some of the high Courts that merely because the whole election had been challenged by a writ petition, the petition would be maintainable inspire of there being any alternative remedy. The Supreme Court, however, did not approve the views -. expressed by some of the high Courts that merely because the whole election had been challenged by a writ petition, the petition would be maintainable inspire of there being any alternative remedy. The Supreme Court held that if the alternative remedy fully covered the challenge to the election, then that remedy and that remedy alone must oe resorted to even though it involved the challenge of the election of all the successful candidates. In the instant case, the challenge to the elections is based on the ground of illegal rejection of the nomination papers filed by the petitioner and other persons. This-question can begone into by the Registrar in a dispute properly raised before him by the affected members. The challenge to the election in this case is not based 0n - invalidity of any relevant rule or other provision of law governing the election. The decision in AIR 1980 SC 1612 (supra) is, therefore, not attracted in this case. ( 7 ) AS regards the contention that for raising a dispute before the registrar, the petitioner would have to wait till the declaration of the result, we have already referred to the decision of the Full Bench of this Court in 1971 M. P. L. J. 531 (supra): We may also usefully refer to the decisioh of the Supreme Court in Nanhoo Mal and others v. Hira Mai and others [ air 1975 SC 2140 ), In-that case petition under Article226 of the Constitution, challenging the validity of the procedure adopted by the District Magistrate for holding an election to the office of the President of the Municipal Board, was filed. That- petition was allowed by the High 'court and the entire election proceedings were set aside. In appeal against the decision of the high Court, the Supreme Court observed as follows :-"we are of the opinion that the whole approach of the learned Judges of the High. Court to this problem was mistaken. After the decision of this Court in N. P. Ponhuswami v. Returning Officer namakkal Constituency [1952 (3) SCR 218 : AIR 1952 SC 64 ] there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating to ejections. Court to this problem was mistaken. After the decision of this Court in N. P. Ponhuswami v. Returning Officer namakkal Constituency [1952 (3) SCR 218 : AIR 1952 SC 64 ] there is hardly any room for Courts to entertain applications under Article 226 of the Constitution in matters relating to ejections. "the Supreme Court further held that in the absence of any express provision in any Act to the contrary, the principles in AIR 1952 SC 64 (supra) were equally applicable to elections to local bodies. The Supreme Court then observed as follows :"all the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over, apply with equal force to elections to local bodies:"the aforesaid decision of the Supreme Court is applicable hi the instant case also, as there is ao provision in the Act indicating that interference at intermediate stages is permissible. On the contrary, the proviso to clause (v) of sub-section (2) at Section 64 of the Act: forbids such interference by the Registrar and indicates thai there should be no interference in the process of election. after its commencement. , ( 8 ) IT was vehemently contended on behalf of the petitioner that the registrar, being an official of the Government, would not act fairly. There is no basis whatsoever for such an assumption. When the Registrar has to act as a 'tribunal' under an Act, it is presumed that he would act fairly and in accordance with law. We cannot presume that he would abdicate his functions and act according to the wishes of the ruling party, as contended by the learned counsel for the petitioner. ( 9 ) FOR all these reasons, this petition must be held to-be misconceived and it is accordingly dismissed. No order as to costs. The interim order passed on 2nd November, 1981, is vecated. ( 10 ) A certified copy of this order be given to the learned counsel tcday, on payment of necessary charges. Petition dismissed. .