OM PRAKASH v. SUB-DIVISIONAL OFFICER, MAWANA, DISTT. MEERNT
1987-12-16
A.N.VERMA, ALOK KUMAR BASU
body1987
DigiLaw.ai
A. N. VERMA, J. ( 1 ) THE petitioners are challenging the election of the Managing committee of the Mawana Sahkari Ganna Vikas Samiti Ltd. (Respondent no. 3) which is a notified Society under Section 29 (3) of the U. P. Co-operative societies Act. ( 2 ) THE principal contention raised by the learned counsel for the petitioner was that the Election Officer appointed to conduct the aforesaid elections is proceeding to conclude the election for the Committee of Management without making a proper determination of the constituencies as contemplated by Rule 440 of the Rules framed under the aforesaid Act. The impugned elections have already been held on 8th November, 1987. The declaration of the result has, however, been withheld under an interim order granted by this court on 3-11-1987. The affidavits having been exchanged between the parties, we are proceeding to dispose of the petition finally at the stage of admission. ( 3 ) THESE are the assential facts for the determination of the controversy raised by the parties. The term of the last Committee of Management expired in the year 1980. Since then the Secretary of the Society is stated to be discharging the function of the Managing Committee exercising powers under Section 29 (4) (e) of the Act. On noting the phenomenon prevalent throughout the State, namely, of the terms of the Committees of Management of the notified Societies under Section 29 (3) having lapsed long since and no election for the committee of Management having taken place for years together, this Court passed a general order on 1-1-86 in Writ Petn. No. 14960 of 1986, raghubir Singh v. State of U. P,, Reportod in 1938 All LJ 529 directing the Registrar, ill whom the superintendence, direction and control of the elections of such Co-operative societies vests under Rule 439 (1), to ensure that the elections cf the committees of Management of the notified societies were completed within four months. Thereupon, the Registrar issued a notification dated 20-9-1986 direting the District Magistrates concerned to arrange for holding the election of such Societies. Later on in pursuance of the said order, the Sub-Divisional officer, Mawana was appointed to be the Election Officer for the election of the delegates (who constitute the general body for electing the Committee of management of the Society) as well as the Managing Committee.
Later on in pursuance of the said order, the Sub-Divisional officer, Mawana was appointed to be the Election Officer for the election of the delegates (who constitute the general body for electing the Committee of management of the Society) as well as the Managing Committee. ( 4 ) PURSUANT to the aforesaid order of the Registrar, the Sub-Divisional officer, Mawana, as the Election Officer notified the programme for election of the delegates and the Commitee of Management. In accordance with this programme, election of the delegates in 14 constituencies into which the area of operation of this Society was divided by the Registrar under sub-rules (4)to (8) of Rule 440, were held. Om Prakash the petitioner No. 1 fought and was declared elected as a delegate from constituency No. 12. The respondents nos. 4 and 5 were also similarly elected from other constituencies. The results of the election of the delegates were announced on 5-11-86. Thereafter before the election of Committee of Management which was fixed for 29-12-86 could be concluded, the Registrar stayed the elections, ( 5 ) THE petitioner appears to have felt aggrieved by the continued delay in the election for Committee of Management and consequently approached this court by way of a petition Writ Petn. No. 4046 of 1987 in which the prayer was as follows :"to issue a writ, order or direction in the nature cf mandamus commanding respondents to complete the process of election from the stage which has already completed of the Managing Committee of respondent No. 3-Socieiy within the time stipulated by this Honble court". ( 6 ) IT is significant that the consistent plea throughout this petition was that the election of the delegates had already taken place and the voters list for electing the members of the Committee of Management had also been finalised and published according to law on 5-12-86 vide para 33 of that Petn. No. 4046 of 1987. That petition was disaposed of finally by an order of this courtdated 25-3-86 with a direction that the election of the Committee of management be concluded by 30-6-S7.
No. 4046 of 1987. That petition was disaposed of finally by an order of this courtdated 25-3-86 with a direction that the election of the Committee of management be concluded by 30-6-S7. This direction led to the passing of aa order dated 8-9-87 by the Registrar directing the District Magistrate of the concerned districts that where some election processes have already been validly accomplished there was no need to repeat those processes but where the election processes could not be completed elections of Committee of Management should be held de now ( 7 ) FOLLOWING the aforesaid direction of the Registrar, the Election Officer, mawana by this order dated 20-10-87 issued an election programme which proceeded on the assumption that the voters list for the election of, the committee of Management had already been completed in accordance with the notifications declaring the election programme in November, 1986. ( 8 ) ON the aforesaid allegations, Sbri S. P. Gupta, learned counsel for the petitioner contended that the Election Officer ought to have held the entire election de now starting from the determination of constituencies as prescribed under Rule 440 (4) to Rule 440 (8) as the said procedure for finalising the voters list for the Committee of Management had not been followed according to law prior to the Registrars order dated 8-9-1987. ( 9 ) THE above contention was countered by Shri R. C. Srivastava learned counsel for the respondents-Society, by submitting that the voters list for election of the Committee of Management had already been finalised in November-december, 1986 long before the issue of Registrars order dated 8-9-1987. There was hence no need to hold the election de novo. Learned counsel subnitted that the petitioner himself had conceded this position in his earlier petition (No. 4046 of 1987 ). The petitioner, therefore, should not be heard to raise this objection in a petition under Article 226 of the Constitution. ( 10 ) THE objection raised by the learned counsel for the respondents seems justified. Tne entire earlier petition filed by the petitioner proceeds, only on the basis that the processes for election of the Committee of Management were completed in all respects. It was alleged that these constituencies had been carved out and finalised as contemplated by Rule 440 (Vide para 19 of that petition ).
Tne entire earlier petition filed by the petitioner proceeds, only on the basis that the processes for election of the Committee of Management were completed in all respects. It was alleged that these constituencies had been carved out and finalised as contemplated by Rule 440 (Vide para 19 of that petition ). In para 22 it was asserted that the election of the delegates tock place in accordance with law. Learned counsel for the petitioner did not dispute that the election of delegates legally takes place only after the constituencies have been determined and finalised in accordance with Rules 440 (4) to 440 (8 ). We then have para 25 which is very important. It avers :"that voter list of the members entitled to vote for election of the managing Committee was published on 29-11-1986. objections were filed by 2-12-86 and finally voters list after, deciding objection was published by 5-12-86 in accordance with the aforesaid election programme issued by the Election Officer. " ( 11 ) IT is unnecessary to burden this judgment with similar averments made by the petitioner in his earlier petition in which the firm stand taken by him was that the voters list for the Committee of Management had been finalised in accordance with law. Indeed the complaint there was that there was no justification whatever for not going through the subsequent stages of the election and finalising the same. The prayer made in the petition which has already been quoted above also leads to the same inference, ( 12 ) WE are clearly of the view that the petitioner having taken a positive stand in his earlier petition that the constituencies had been determined in accordance with Rule 440 and the voters list for the election cf the Committee of Management having been finalised in accordance with law he ought not to be permitted in a petition under Article 216 to take a stand which is diametrically opposed and repugnant to that taken by him in the earlier petition, particularly when on the basis of that stand he had persuaded the Court to issue a writ of mandamus.
( 13 ) FURTHER, it must be borne in mind that these elections are being held in pursuance of the directions issued both by this Court as well as by their lordships of the Supreme Court thai being lang overdue, they must be held and completed by 31-12-87 (the Supreme Court has also issued a direction to the registrar of the Co-operative Societies of the State to ensure that the elections are completed by 31-12-1987. This was not disputed by the learned counsel for the petitioner ). That being so, it would not be right and proper for this court to stall the process of the election by entertaining a challenge which can undeniably be raised by way of an election petition under the maclinery provided by the U. P. Co-operative Societies Act itself read Rules 444 (c), 229 (2) and Rule 231 etc. ( 14 ) SECONDLY, in regard to disputes relating the elections, the law which seems now to be firmly established is that all challenges to the validity of elections should be postponed until the elections are over and may be raised only before the tribunals created under the statute under which the right to seek election or to vote thereat it selt is conferred. This is based on a consideration of fundamental importance, namely, that the elections should be allowed to be concluded as early as possible according to the time schedule ard consideration of the disputes raised in regard thereto should be deferred till the conclusion of the election. A recent Division Bench decision of this Court in Writ Petition- No. 699 of1987 connected with Writ Petition No. 21130 of 1986, decided on 24-2-87 (Reported in 1987 All U 1420) had occasion to consider an identical problem and this is what it said on the subject ;"the settled principle relating to election is that it should be conducted as early as possible according to the time schedule and all controversial matters and all disputes arising out of election should be postponed till after the elections are over to be brought up before a special tribunal by means of an election petition and not be. made the subject of a dispute before any Court while the election is in progress.
made the subject of a dispute before any Court while the election is in progress. This principle was enunciated in N. P. Ponnuswamis case [ air 1952 SC 64 ] and approved in a number of later case in the context of the provisions of the Representation of the People Act read in the perspective of Article 329 (b) of the Constitution. This has been extended to cases were the validity of election to the municipality or Panchayat or Bar Council was challenged. Nanhoo Mal v. Hira Mal, [ air 1975 SC 2140 ]; K. K. Srivastava v. Bhupendra Kumar jain, [ air 1977 SC 1703 ]; Ahmedabad Cotton Mfg. Co. Ltd. v Union of India, [ air 1977 Guj. 113 (FB)]. The right to vote or stand as a candidate at the election is indisputedly not a civil right but is a creature of a statute or a special law and it must be subject to limitation imposed on it. If the legislature entrusts the determination of matters relating to election to a special tribunal and invests it with special jurisdiction that alone ought to be invoked for enforcement of the right. Where, as in this case, the statute conferring right to vote or and at the election prescribes specific statutory remedy embracing the dispute pertaining to all aspects of the entire process of election, we are not persuaded and find little justification to exercise jurisdiction under Article 226 of the Constitution, efficacious, by taking recourse to Rule 444c read with Section 70 (1) of the u. P. Co-operative Societies Act, 1965, The petitions are consequently dismissed " ( 15 ) WE are in respectful agreement with the above statement of the law.
( 16 ) BOTH, therefore, on the ground that in view of the categorical stand on which the petitioner came to this Court on the previous occasion seeking a direction that the Election Officer be ordered to hold and complete the election for the Committee of Management on the basis of the voters list already finalised, he should not be allowed to take a volte face and contend that the voters list had not been finalised, as well as on a more serious ground that the objection raised by the petitioner should be entertained only after the elections are over and there too by way of an election petition rather than a petition under Article 226 of the Constitution we decline tc interfere and issue the directions prayed for by the petitioner under Article 226 of the Constitution. ( 17 ) SRI S. P. Gupta, learned counsel for the petitioner, however, submitted that there could not be an estoppel against law and if what was done was not sanctioned by law the mere fact that the petitioner had conceded that the voters list had been finalised in accordance with law, would not validate what was illegal. The statement as a proposition of law cannot admit of doubt. The question, however, is whether this Court should exercise its discretionary powers at the instance of a petitioner who has been changing front and interfere with an intermediate stage of the elections by entertaining objections which the petitioner can indubitably take by way of an election petition before machinery provided under the statute. ( 18 ) FOR all these reasons, we decline to interfere. The petition accordingly fails and is dismissed. The interim orders granted by this Court stand discharged with immediate effect. Petition dismissed.