Gurmel Singh v. Election officer, Majhola Sahkari Ganna Vikas Samiti Ltd — 1987 DIGILAW 206 (ALL)

JUDGMENT B.D. Agarwal, J. - Majhola Cooperative Cane Development Union Limited (hereinafter referred to as the Society) is a Co-operative society registered under the U. P. Co-operative Societies Act, 1965. The society is notified - the notification having been made under the proviso to S. 29(3) of the Act. Last election to the Committee of Management took place in 1978. Since elections did not take place on the expiry of the term of the elected members, the Administrator has been functioning under S. 29(4) (b). In view of the notification under S. 29(3), afore mentioned, the superintendence, direction, control and conduct of elections of the members, Chairman and Vice-Chairman of the Committee of Management of the Society vest in the Registrar Part IV, Comprising of Rules 439 to 444-D of the U.P. Co-operative Societies Rules, 1968, consists of rules relating to the election to the Committee of Management of a notified society. District Magistrate has to take steps to organise the election under the superintendence, direction and control of the Registrar. He appoints Election Officer for the purpose in view of R. 439(2). Under R. 440(4) to (9) the Registrar determines the constituencies. The determination is provisional, in the first place, but it is made final after inviting objections and considering the same. Election Officer notifies the programme of election as required under R. 441. In this case the date for filing the nomination for election to the Committee of Management was December 25, 1986: the poll was to take place on January 11, 1987. Rule 444-A(3), which is material for purpose of the case, reads as follows : - (3) The Election Officer shall, subject to the provisions of sub-r.(b) of R. 440, revers (reserve?) constituencies/areas for weaker section or, as the case may be, of women and such reservation shall be made to the extent of the seats reserved by rotation in Hindi alphabetical order of the names of constituencies/areas from which members of the Committee of Management are to be elected : Provided that where the first alphabet of the names of more than one constituency are the same, the reservation in such cases shall be regulated by the next alphabet of the names of such constituencies. The petitioner in Writ Petition No. 699 of 1987 is a delegate of the Society from village Birahani. The petitioner in Writ Petition No. 699 of 1987 is a delegate of the Society from village Birahani. He was a candidate of the general category for election to the Committee of Management of the Society. Village Birahani is included in the constituency named as Boorha. In the previous election held in 1978 this was in constituency named as Deorania. Upon objection raised by the Petitioner dated November 23,1986, Deorania has come to be included in the constituency known as Boorha. Constituency Boorha has been declared as one of the three reserved constituencies under R. 444-A(3). The nomination filed by the petitioner from this constituency was rejected on ground that he belongs to the general category and was, therefore, ineligible to seek election from a reserved constituency. 2. In the other Writ Petition No. 21130 of 1986 the petitioner is a delegate from village Hardaspur and belongs to weaker section. He was also a candidate for the election of Committee of Management of the Society. Village Hardaspur is included in the constituency known as Kuiara, which has been declared under R. 444-A(3) as a general constituency. On this ground the nomination for seeking election from this constituency was rejected. 3. Contention raised by Sri A. Kumar, learned counsel for the petitioners, before us has been that the provision contained in R. 444-A(3) reproduced above is ultra vires Article 14 of the Constitution being arbitrary in nature and, secondly, that there are no guidelines existing on the point as to how are the constituencies to be named. It was submitted also in this connection that in case the name allotted to a constituency keeps on changing with every succeeding election, there may not be the chance available to candidate of general or reserved category, as the case may be, for seeking election to the Committee of Management. 4. In so far as R. 444-A(3), U. P. Cooperative Societies Rules, 1968, is concerned, the provision made therein is for the reservation of constituencies/areas for weaker section or, as the case may be, of women. The provision also is specific that the reservation shall be to the extent of the seats reserved and further provides that the reservation shall be by rotation in Hindi alphabetic order of the names of the constituencies/areas concerned. It is difficult to agree with the contention raised that the rule is bereft of guidelines. The provision also is specific that the reservation shall be to the extent of the seats reserved and further provides that the reservation shall be by rotation in Hindi alphabetic order of the names of the constituencies/areas concerned. It is difficult to agree with the contention raised that the rule is bereft of guidelines. It is not disputed before us that there may be reservation made for weaker section or women, as the case may be. The question would always arise as to which of the several constituencies/areas be kept reserved. There has to be a criterion prescribed for the same. This is what R. 444 A(3) does by adopting the method of rotation and the mode in which this rotation is to be carried is also spells. Rotation by itself is a mode laid down for fixing up a constituency as reserved in a particular election and as to how this rotation is to work is then denoted by saying that it shall be in Hindi alphabetic order of the names of the constituencies/ areas. No exception may reasonably be taken to rotation. The mode for carrying out this rotation may not be ideal but on that account it may not be discarded as arbitrary or irrational. In the absence of any other alternative suggested, which might be taken to be ideal, the principle adopted, upon executive experience gained from the elections held during a number of years, may not be discarded by the Court as unworkable. There have to be necessarily the elimination of certain areas in the nature of this, but then there remains a chance still through rotation being carried out. We are not persuaded, therefore, to treat R. 444-A(3) as arbitrary or hit by Article 14 of the Constitution. 4.A Sri K. N. Tripathi, learned counsel, arguing on the other side and the Additional Chief Standing Counsel pointed the existent of effective and efficacious alternative remedy for decision of dispute, such as, raised in these petitions. In the light of R. 444-C(2) read with S. 70( 1) (b) of the Act a dispute relating to election may be referred by the aggrieved party within 45 days from the date of declaration of the result. In the light of R. 444-C(2) read with S. 70( 1) (b) of the Act a dispute relating to election may be referred by the aggrieved party within 45 days from the date of declaration of the result. As per sub-r.(l) election may be called in question either by arbitration or otherwise including on the ground that the result of the election has been materially affected by gross failure to comply with the provisions of the Act, rules and the bye-laws of the Society. For the petitioners, as mentioned above, exception is taken to the manner of assigning names to the different constituencies. It was urged that this is unguided. On respondents behalf we have been referred to circular dated October 18, 1978, issued by the Registrar for the purpose, which says that the name given to the constituency be of such of the village which has the largest abadi out of the various villages comprised in the particular constituency. This according to the respondents furnishes a reasonable basis on which name may be assigned to a particular constituency and with successive elections the name may vary depending on the population of various villages comprised therein. Sri A. Kumar argued that the criterion, thus, laid down in the circular dated October 18, 1978, has not been observed in actual practice. This evidently gives rise to mixed question of facts and law. It would stand in need of evidence on the subject being probed and the same is true of the argument that the change in the names given to the constituencies in successive election may retard the chance of candidates of particular category for seeking election. 5. In this connection it may not be overlooked that R. 444-C( l) (b) (iii) requires the election petitioner to establish gross failure to comply with the provisions of the Act, rules and by e-laws of the Societies. Moreover, the petitioners would as well have to make out that the result of the election has been materially affected due to the alleged gross failure. There will have to be the nexus established between the two. Moreover, the petitioners would as well have to make out that the result of the election has been materially affected due to the alleged gross failure. There will have to be the nexus established between the two. As far the result of the election being materially affected, the Supreme Court observed in Chhedi Ram v. Jhilimit Ram (1984) 2 SCC 281 at p. 283 : (1984 I All LJ 114 at pp.116-17) : - "The complication is because of the possibility that a sufficient number of votes actually cast for the candidate whose nomination was improperly accepted might have been cast for the candidate who seen red the highest number of votes next to the successful candidate so as to upset the result of the election, but whether a sufficient number of voters would have so done, would ordinarily remain a speculative possibility only. Question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate. If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate ami the candidate securing the next highest number of votes. It would be next to impossible to conclude that the result of the election has been materially affected. But on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Evidence Act, a fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must, not lay down an impossible standard of proof and hold a fact as not proved. In the present case, the candidate whose nomination was improperly accepted had obtained 6710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that. The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate it was a little over one-third. Surely, in that situation, the result of the election may safely be said to have been affected." Sri A. Kumar submitted also that the determination of the constituencies precedes election and, therefore, R. 444-C may not be invoked. This does not appeal to us. Determination of Constituencies is an integral component of the election process. A dispute or controversy relating to this determination is in essence with respect to the election. Election in the context of R. 444-C(2) also, in our opinion, means the entire process culminating in a candidate being declared elected and does not confine to the final result (Mohinder Singh Gill v. Chief Election Commr., New Delhi (1978) 1 SCC 405 : ( AIR 1978 SC 851 ). 6. 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 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 number of later cases 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 where the validity of election to the municipality or panchayat or Bar Council was challenged (Nanhoo Mai v. H ira Mai, AIR 1975 SC 2140 ); K. K. Shrivatava v. B. K. Jain, AIR 1977 SC 1703 ; (Ahmed abad 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 creation 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 (sic) at the election prescribes specific statutory remedy embracing the disputes 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, (sic) efficacious, by taking re source to Rule 444-C read with S. 70(1) of the U. P. Co-operative Societies Act, 1965. The petitions are consequently dismissed. The interim order made on 5th January, 1987, where under the election was permitted to take place as scheduled, but the declaration of the result was withheld is hereby vacated.