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Madhya Pradesh High Court · body

1989 DIGILAW 17 (MP)

RADHEY SHYAM SHARMA v. CHAIRMAN, SEWARRIHA SAHAKARI SAMITI LASHKAT, GWALIOR

1989-01-11

B.M.LAL, T.N.SINGH

body1989
T. N. SINGH, J. ( 1 ) BY this Order we propose to dispose of eight petitions. Other seven, besides this, are ; Misc. Petitions Nos. 1293, 1307, 1311, 1312, 1313, 1365 and 1367 of 1988 Indeed, in these several petitions we have taken the view that the preliminary objection to their maintainability has to be upheld. ( 2 ) IN all these matters the common factual premise is that petitioners in each case made bid to be nominated for election in different Co-operative societies. Their nomination papers having been rejected, they have come before us with the common complaint that the election process in each case is vitiated in the particular facts and circumstances of each case. However, the fortuitous circumstance dominating the common complaint to be read in each of these cases is that in each case there was a large number of nomination papers more than the number of seats to be filled up. After scrutiny had taken place, the number of nomination papers which were found valid conformed in number to the seats to be filled up. As a result, the persons whose nomination papers had been found valid were declared elected unopposed. ( 3 ) WHILE entertaining these petitions doubt was entertained about fairness of the election process because of the peculiar circumstances of the cases which apparently projected a case of mass rejection and singular acceptance raising a presumption of oblique motive of the Election Officer in each case. However, in each case return has now come and position on facts is made clear. It is not disputed today in each of these cases that tbe election Officer had passed orders rejecting separately the nomination papers which were found invalid by giving reasons separately in case of each of the nomination paper rejected. ( 4 ) OUR attention is drawn to the relevant statutory provisions bearing on the controversy. We have read Section 64 of the Madhya Pradesh co-operative Societies Act, 1960 (for short the 'act') and we have also read the relevant Rules framed under the Act viz , Madhya Pradesh co-operative Societies Rules, 1962 (for short the 'rules' ). ( 4 ) OUR attention is drawn to the relevant statutory provisions bearing on the controversy. We have read Section 64 of the Madhya Pradesh co-operative Societies Act, 1960 (for short the 'act') and we have also read the relevant Rules framed under the Act viz , Madhya Pradesh co-operative Societies Rules, 1962 (for short the 'rules' ). The contention of the petitioner's counsel is that the proviso to sub-clause (b) of sub-section (2) of Section 64 of the Act ousts Registrar's jurisdiction to deal with an election dispute during the period of commencement and continuation of election process all declaration of the result of the election. Therefore, in each case, the result of the election not having been published and the registrar not having jurisdiction on that account to hear the "dispute", the controvery raised in these petitions has to be decided by this Court. To analyse and dispose of this contention we extract relevant portions of the said provision:"64. Disputes. (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, liquidation of a Society shall be referred to the registrar by any of the parties to the dispute if the parties thereto are among the following : (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 dtspute under this clause during the period commencing from the announcement of the election programme till the declaration of result. " ( 5 ) THE non obstante clause which crowns the provision, makes the legislative intent clear beyond dispute. We have no doubt that for the matters enumerated in Section 64 the Legislature provided special forum and the Legislature intended that those matters have to be dealt with in accordance with the provisions prescribed by it. The object of the proviso, in our opinion, is not at all ambiguous and no amount of reliance thereon would avail the petitioners. It is not the purport of the proviso that any "dispute" in connection with any "election" to the Co-operative Society even if proposed beyond the time frame envisaged under the proviso, cannot be entertained and decided by the Registrar. It is not the purport of the proviso that any "dispute" in connection with any "election" to the Co-operative Society even if proposed beyond the time frame envisaged under the proviso, cannot be entertained and decided by the Registrar. What the Legislature intended by enacting the proviso is to ensure that the election process is completed unhindered and no candidate -is allowed to stall or stagger the process by filing "dispute". When results are declared, if any candidate has any grievance with respect to the conduct of the election, he shall have the right to file an election petition for the redressal of that grievance by Registrar in accordance with the provisions of Section 64 of the Act and other provisions of the Act and Rules. Recently, in the case of Prem Narain Tiwari [m. P. No. 1230 of 1988, decided on 4-11-1988], this Court has expressed similar view while interpreting Section 64 (2) (v) and its proviso. It was observed that Legislature deliberately meant election disputes to be raised, heard and decided after the democratic process was over and that to judicially defeat that object would be sacrilegious. ( 6 ) WE do not think if we would be justified in entertaining any writ petition and deciding any "dispute" during the intervening period, as respects which Registrar's jurisdiction is barred by Legislature, on the ground that the petitioners have no alternative and efficacious remedy. We are of the view that we cannot interfere in such matters unless and until it is shown to us that the election process is so vitiated that it cannot be said to be an "election" held in accordance with the law prescribed therefor and it will not be a case of our deciding a "dispute" in any particular case but of upholding and maintaining the democratic structure of the institution in accordance with the Directive Principles of the Constitution by ensuring purity of the election process. It is only when we a re satisfied that the Election Officer has done any act which is not contemplated under the Act and the Rules and he has exercised powers for Which the Act does not authorise him or he acts mala fide to defeat the provisions of the Act and he thereby acts without jurisdiction by exercising powers not envisaged under the Act and the Rules, then, it may be possible for us to exercise our extraordinary jurisdiction under article 226 of the Constitution, notwithstanding the remedy provided under section 64 of the Act. Under ordinary circumstances, that statutory remedy has to be availed when any 'dispute' arises and a grievance is made in any particular case by one or more individual candidates that their nomination papers were illegally rejected. Reasons for rejection of nomination papers in each case can be challenged by raising a 'dispute' in accordance with section 64 which the Registrar has to decide ; such a 'dispute' is not decided by this Court under Article 226 of the Constitution. ( 7 ) LAW in that regard, in our view, is well settled and decisions cited at the Bar to that effect may be mentioned in this connection. In k. K. Shrivastava etc. v. Bhupendra Kumar Jain and others, [ air 1977 sc 1703 ], which was a case of election of Bar Council of Madhya Pradesh, their Lordships reversed this Court's decision holding that writ jurisdiction would not extend to that case where the Bar Council Act and the Rules prescribed thereunder, had provided a special forum and efficacious remedy. It was observed :"where there is an appropriate or equally efficacious remedy the court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. "the same view was also taken by their Lordships in Nanhoolmal and others v. Hiramal and others, [air 1973 SC 2140] relating to a Municipal election and therein it was observed that an election petition is to be presented after an election is over and there is no remedy provided at an intermediary stage ; and it was held that there was no room for High Court to exercise power under Article 226 of the Constitution to set aside an election during the intervening period. Other decisions cited are of twhis Court of which we may merely make a mention. See Malam Singh v. Collector, Sehore and others, [ 1971 MPLJ 531 : 1971 JLJ 379 ], Anant Singh and another V. Registrar, co-operative Societies, Bhopal and others, [1984 JLJ 7ll], Sunderlal and others v. Sub-Divisional Officer, Kami Murwara and others, [1984 MPLJ 555 ] 1984 JLJ 724 ], Gambhirmal v. The Returning Officer, Adim Jati Sewa sahakari Samiti Maryadit, Sailana, [1971 (II) MPWN 215]. ( 8 ) SHRI Apte appearing for one of the petitioners has, however, relied on Thaneshwar Mishra v. Zila Sahakari Kendriya Bank Maryadit Manilla and others, [ 1986 MPLJ 329 : 1985 JLJ 83 ], cited by Shri M. C. Jain appearing on behalf of the State. It was held therein that if the facts of the case so require, even in a case of election matter of a Co-operative Society, this Court would exercise its extraordinary discretionary powers under Article 226 of the Constitution. Within what principles, there is no dispute as we have ourselves held therein today that under the circumstances enumerated by us, this Court would have jurisdiction to entertain a petition in appropriate cases. In the Thaneshwar Mishra case (supra) provisions of the Act and the Rules were discussed and for default of the authorities, in not acting in accordance with the provisions thereof, relief was given. ( 9 ) IN the instant case, we are also required to refer to the provisions of sub-rules (8) and (9) of Rule 41 of the Rules which deal with problems arising in connection with disposal of nomination papers by the Election officer. It is contemplated that nomination papers can only be accepted upto a particular time and to a particular date and the procedure for scrutinizing papers filed is also indicated in sub-rule (9) of Rule 41 of the rules, which we extract:"41. Procedure for election of members of the Committee. (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. Procedure for election of members of the Committee. (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 or the rules made thereunder. 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. " (Emphasis added ). ( 10 ) IN the instant case, as earlier elucidated, the important fact which has come on record is that the reasons for rejecting each of the nomination papers in each of the cases, were recorded by the Election Officer and no case is made out to satisfy us that the Election Officer had either acted contrary to the provisions thereof in any manner or he had exercised powers be yond that prescribed thereunder. In each of the cases after scrutiny, the election Officer had prepared a list of valid nominations and had published the. same on the notice board of the Society. Merely because as a result of acceptance of a particular number of nomination papers, that number corresponds to the number of seats to be filled up, it cannot be said that there was any design behind exercise of his pawers by the Election Officer in doing so. ( 11 ) IN the circumstances aforesaid, we are of the view that no case has been made out on facts for us to entertain and decide the controversy on factsi raised in each of the petitions. Indeed, it shall be open to the several petitioners who have come before us in these matters to raise "dispute" separately with respect to their grievances, to be decided by the Registrar, in accordance with the provisions of the Act and Rules as mandated by section 64 of the Act, quoted above. ( 12 ) AS a result of the aforesaid discussion, this petition and the other connected Misc. Petitions viz. ( 12 ) AS a result of the aforesaid discussion, this petition and the other connected Misc. Petitions viz. , M. P. Nos. 1293/88, 1307/88, 1311/88, 1312/88, 1313/88, 1365/88 and 1367/88 are dismissed. The interim stay granted in all the petitions is vacated. There shall be no order as to costs. The outstanding security, if any, shall be refunded to the petitioners. .