Ramesh Kumar Singh v. State of U. P — 1990 DIGILAW 263 (ALL)

ORDER S.H.A. Raza, J. - The main question involved in the aforesaid writ petitions is as to whether the election officer can refix the dates of the election which was disrupted, at the stage of date of withdrawal, i. e. after the withdrawal of the candidates in the election of the Co-operative Society and thus can set at naught the election of the delegates elected unopposed by the revised schedule of the election process ? If no, then whether the revised election process would thus be vitiated. The Registrar of the Cooperative Societies had issued an order for the election of the General Body and Managing Committee of the Co-operative Societies for holding the election of the delegates, election of the members of the Managing Committee an election of the President, Vice President etc. on various dates. 2. The aforesaid order was issued in compliance of the order passed by this Court on 25-10-1989 in Writ Petition No. 5393 of 1982 in re : Balak Ram v. Registrar, U.P. Co-operative Societies, Lucknow and another, which reads as under : "By means of this writ petition the petitioner has prayed for a writ in the nature of mandamus commanding the opposite parties to notify the entire election process afresh. Under the interim orders passed by this court on 9-11-1982 it was provided that the election will take place but its result shall not be declared. The term of elected candidate is only three years but by afflux of time the election proceedings which had already taken place, have before infructuous. In view of the interim order of this court the election could not take place and the authorities concerned are misusing the authority of law in this manner. Accordingly, the writ petition is allowed and the mandamus is issued directing the opposite parties to notify the entire election process afresh within one week from the date of production of a certified copy of this order by the petitioner. The election process shall be concluded within one 3nd half month from the date the same is notified. The interim order passed earlier is discharged." 3. In pursuance of the aforesaid orders the District Magistrate, Unnao appointed S.D.M., Hasanganj, District Unnao as Election Officer for conducting the election of delegates in the Bank of Hasanganj Branch, District Unnao. The election process shall be concluded within one 3nd half month from the date the same is notified. The interim order passed earlier is discharged." 3. In pursuance of the aforesaid orders the District Magistrate, Unnao appointed S.D.M., Hasanganj, District Unnao as Election Officer for conducting the election of delegates in the Bank of Hasanganj Branch, District Unnao. The opposite party No. 4 announced the following election programme beginning from 1-1-1990 to 16-1-1990 according to the announced election programme : Particulars Date 1. Display of Provisional voters list. 01-01-1990 2. Filing of objections and their disposal 04-01-1990 3. Display of final voters list 06-01-1990 4. Filing of nomination papers 08-01-1990 5. Scrutiny of nomination papers 09-01-1990 6. Withdrawal of the nomination papers. 10-01-1990 7. Allotment of election symbols and display of final nomination papers. 10-01-1990 8. Voting, if necessary 16-01-1990 9. Counting of votes and declaration of results 16-01-1990 4. The petitioner filed his nomination paper on 8-1-1990 for the post of delegate and necessary fee was deposited by him. On 8-1-1990, five nomination papers including of the petitioner were filed. On the date of withdrawal i.e. 10-1-1990 two candidates withdrew their nomination papers while two nomination papers were rejected leaving the petitioner as the only candidate for the post of delegate. Thus according to the petitioner the election process in respect of the election for the post of the delegate in the Hasanganj Branch of the Bank was completed upto 10-1-1990 and the election Officer/S.D.M. Hasanganj, District Unnao announced that the result will be declared on 16-1-1990 as per programme already announced. 5. Thereafter on 11-1-1990 the Registrar, Co-operative Societies, U. P. issued an order changing the date of election of delegates and the Managing Committee of the Branch according to which he fixed 25th February, 1990 as the date for the election of delegates, 34-3-1990 the dale for the election of the members of the Managing Committee, 15-3-1990 as the date for the election of President, Vice-President and the election of delegates to other Samities. Thereafter on 25-1-1990 U.P. Rajya Sahkari Krishi Evam Gram Vikas Bank Limited issued a letter to the District Managers of the Bank, District, Unnao, for holding the election afresh for the post of delegates. Thereafter on 25-1-1990 U.P. Rajya Sahkari Krishi Evam Gram Vikas Bank Limited issued a letter to the District Managers of the Bank, District, Unnao, for holding the election afresh for the post of delegates. On the basis of the said letter the Election Officer/S.D.M., Hasanganj, District Unnao had started making arrangement, for holding the election afresh and intended to release a fresh election programme for the said post in supersession of the earlier programme and ignoring the election process which had taken place in pursuance of the earlier programme. The petitioner, who claims to be elected unopposed aggrieved against the said revised election programme has approached this Court on the ground that the election process once started cannot be disrupted and the election process has to be started from the stage from where it was disrupted, i.e. from the date of the withdrawal of the nomination paper for the post of delegate. 6. Similar question arises in other writ petitions as to whether the election process can be started denovo, setting at naught the election of those persons who alleged to have been elected unopposed. 7. A Division Bench of this Court in Shiv Mangal Singh v. Registrar, Co-operative Societies, U.P. Lucknow and others, 1982 UPLBEC 46 held as under "Under sub-rule (1) of Rule 439 the election is to be organised under the superintendence direction and control of the Registrar. The power conferred on the Registrar is of a very wide nature. Sub-rule (2) of Rule 439 says that the election in a co-operative society shall be held on such date or dates as the Registrar may by order fix. Taking these two provisions together, the Registrar has ample authority under these rules to not only change the date of the poll but also to lay down the manner in accordance with which the elections have to take place. The expression "control" has to be given a wide meaning so that it achieves the purpose for which the power had been conferred upon the Registrar. The Registrar is overall incharge of the Co-operative Societies. This was the reason that sub-rule (1) of Rule 439 provides that election of a Co-operative Society would be held under the Superintendence, direction and control of the Registrar. The Registrar is overall incharge of the Co-operative Societies. This was the reason that sub-rule (1) of Rule 439 provides that election of a Co-operative Society would be held under the Superintendence, direction and control of the Registrar. The expression "election" has been used in this sub-rule of Rule 439 in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate. It covers the whole procedure whereby an elected member is returned whether or not it be found necessary to take a poll Doubt less, in its ordinary meaning it implies some act of choosing. But this term has not been used in the narrow sense. The word "election" used in this rule bears the wide meaning referring to the entire process which consists of several stages and embraces many steps." "The second proviso to sub-rule 440 empowers the Registrar to allow extension in time schedule. A time schedule of an election does not only consist of the poll. It requires many other things to be done to hold an election to be mentioned therein. It was wrong to suggest that the power of extension granted by the Proviso could be exercised by the Registrar only for changing the date of the poll and not of the entire schedule preceding it. The power conferred is for extension of the time schedule. The time schedule does not only talk of the poll. It implies within itself the entire process commencing from the date of filing of the nomination paper to the date of the final election. The expression "extension" has been deliberately used to bring within its hold the lengthening out of time previously fixed for holding of the elections. This expression lends itself to variety of meanings which must in each case be gathered from the context. It means enlarge than the original limit. If the power conferred by the Proviso is interpreted in the context, one would lead to the conclusion that a restricted meaning, if given, is likely to defeat the object and purpose for which the power has been conferred on the Registrar. It means enlarge than the original limit. If the power conferred by the Proviso is interpreted in the context, one would lead to the conclusion that a restricted meaning, if given, is likely to defeat the object and purpose for which the power has been conferred on the Registrar. The only restriction placed is that the time schedule fixed should not travel beyond the period for which the Administrator has been appointed under Section 29." "Existence of special circumstances is a condition Precedent for exercise of power by a Registrar under the said proviso. Unless there are special circumstances time schedule of an election cannot be postponed. The words "special circumstance" are wide, comprehensive and flexible and the rule making authority intended them to be so and no court can or ought to lay down any exhaustive definition of these. Circumstance which may be special in one case, in another would not be such. The circumstances stated as special in an order of the Registrar have to be considered as a whole. If they are taken piecemeal it would be easy to find that each separate element is insufficient by itself and to conclude therefore that the sum total must also be insufficient. But a factor which, standing alone, would be insufficient may have altogether a different value when found in combination with some other factor or factors. As to what is special circumstance is to be decided by the Registrar and not by this Court." 8. In Hazari Lal Sonkar v. State of U.P. and others, 1985 UPLBEC 234 Division Beach of this court indicated as under "Normally whenever any election is to be held by a democratic process under statutory provisions, the election schedule once started should not be disrupted and the election should take place according to the schedule. Section 32 merely says that the election should be held by the general body of a Society in annual meeting and Rule 407 says that the election of the members of the Committee of Management of a Co-operative Society should be held as the last item of the agenda in the annual general meeting of the Society. In the instant case, where an Administrator is running the Society under Section 29, it is his duty to arrange for the reconstitution of the Committee of Management within time provided under Section 29 (6) of the Act. In the instant case, where an Administrator is running the Society under Section 29, it is his duty to arrange for the reconstitution of the Committee of Management within time provided under Section 29 (6) of the Act. It is, therefore, wrong to say that the holding of elections in accordance with the programme would be a breach of aforesaid provisions of Section 32 and Rule 407 of the Act. Those provisions cannot literally apply to a case where the Society is run by an Administrator." 9. In Civil Misc. Writ Petition No. 6619 of 1988, Sunder Lal and another v. Registrar Co-operative Societies, Lucknow and others, as well as several other writ petitions, controversy centred round over the election of the members of the Committee of Management and President and the Vice-President of the District Co-operative Banks. In all those petitions the Registrar of U. P. Co-operative Societies in purported exercise of powers under sub-section (3) of Section 29 of the U. P. Co-operative Societies Act, 1965 on 23rd June, 1988 issued a notification fixing 31st July, 1988 as the date of the poll for the election of the members of the Committee of Management of the District Co-operative Banks in the State. He also fixed 1st August, 1988, as the date of the poll for the election of the President and the Vice-President of the District Co-operative Banks. In pursuance of this notification the District Magistrates concerned appointed the election officers, who in turn duly published the election schedule. Before the polling could take place, the Registrar, on 23rd July, 1988, while purporting to exercise the power under sub-section (3) of Section 29 of the Act issued a fresh notification, fixing 12th September, 1988 as the date of poll for the election of the members of the Committee of Management of the District Co-operative Bank and 13th September, 1988 as the date of the poll for the election of the President and the Vice-President of the District Co-operative Banks. Thereafter, the Election Officers concerned in some cases notified a fresh election schedule and in some cases the allegation is that there is a threat of a fresh election schedule being published. In these petitions three prayers have been made. Firstly, the notification, dated 23id July, 1988 issued by the Registrar may be quashed. Secondly, the fresh election schedule published subsequent to 23rd July, 1988 may be quashed. In these petitions three prayers have been made. Firstly, the notification, dated 23id July, 1988 issued by the Registrar may be quashed. Secondly, the fresh election schedule published subsequent to 23rd July, 1988 may be quashed. Thirdly, a direction or order in the nature of mandamus may be issued commanding the respondents to hold the elections in accordance with the election schedule published immediately after the notification, dated 23rd June, 1988. 10. In the aforesaid writ petition reliance was placed by the petitioners upon a decision of the Division Bench of this Court in Ram Pal Singh v. Registrar, U. P. Co-operative Societies, Lucknow decided on 29-8-1988 Writ Petition No. 13921 of 1988 and the connected writ petitions decided on 29th August, 1988, wherein it was held that by the notification dated 23rd July, 1988 the Registrar merely changed the date of poll and, therefore, the Election Officers concerned had no jurisdiction to frame a fresh election schedule. This Court also directed the respondents of those petitions to hold the elections in accordance with the election schedule framed and published subsequent to the notification dated 23rd June, 1988. Hon'ble S. K. Dhaon, J., in the aforesaid writ petition held as under : "The conclusion, therefore, is irresistible that once a date of poll has been fixed by the Registrar, the District Magistrate has to take steps to arrange the elections, he has to appoint the election officer and the election officer too has to act under the Superintendence, direction, control and subject to the orders of the Registrar. As a natural corollary it flows that once the election officer acts under sub-rule (3j of Rule 441, frames a programme of election and displays the same at the notice board, he cannot change the programme of election unless he is directed to do so by the Registrar." Hon'ble S.K. Dhaon, J. further held as under : "As I have taken the view that the Election Officer had no jurisdiction to change the election programme duly published by him subsequent to 23rd June, 1988, it is really not necessary to examine the second contention of the petitioners that the notification dated 23rd July, 1988, issued by the Registrar suffered from a legal infirmity. It is nobody's case nor can it be that the Registrar did not possess the power of issuing fresh notifications under the provisions of the proviso to sub-section (3) of Section 29 of the Act and Rule 440 of the Rules. This Court has taken the consistent view that the Legislature has clothed the Registrar with such a power. See Shiv Mangal Singh v. Registrar Cooperative Societies, U.P. Lucknow, 1982 UPLBEC 46 and Itwari v. Registrar, Co-operative Societies, Lucknow, 1988 ALJ 393 as also the decision of a Division Bench of this Court in Writ Petition No. 13921 of 1988 (supra)." 11. Hon'ble Rajeshwar Singh, J. was, in the aforesaid writ petition, unable to take the view that the Election Officer cannot refix the dates in the time schedule of election process where Registrar has only postponed the date of the poll. Differing with Hon'ble S. K. Dhaon, J., Hon'ble Rajeshwar Singh, J. in the aforesaid writ petitions held as under : "The expression "election has been used in sub-rule (2) of Rule 439 in the wide sense, that is to say to connote the entire procedure to be gone through to return a candidate. A time schedule of an election does not only consists of a poll, it requires many other things to be done to hold an election to be mentioned therein. It is wrong to suggest that the power of extension granted by the proviso can be exercised by the Registrar only for changing the date of poll and not the entire schedule preceding it. This power is available to the Registrar right upto the point of time of declaration of the result the elections. The power to allow the extension of time schedule includes the power to extend the entire schedule and not only a part of it. A candidate may be the only person validly nominated for election but his right to be declared elected arises only after the date of poll. It is not a vested civil right. No claim could hence be founded on the mere circumstance that the petitioner was the only candidate in the field. The right to stand as a candidate and contest an election is not a common law right but it is a special right created by statute and can be exercised only on the conditions laid down in the statute. No claim could hence be founded on the mere circumstance that the petitioner was the only candidate in the field. The right to stand as a candidate and contest an election is not a common law right but it is a special right created by statute and can be exercised only on the conditions laid down in the statute. Itwari v. Registrar Co-operative Societies and others, 1988 SCD page 104. Thus it is the power of the Registrar to extend the entire time schedule and nobody can insist that the time schedule already undergone should be adhered and postponement of the election process should be only from the stage upto which it has already undergone Hon'ble Rajeshwar Singh, J. indicated as under "In the case of Ram Pal Singh v. Registrar Co-operative Societies, U. P., Lucknow, Civil Misc. Writ Petition No. 13921 of 1988, decided at Allahabad on August 29, 1988 by a Division Bench of this Court a different view was taken. It is because it was not pointed out to their Lordships that Election Officer has to give notice of not more than thirty days from the date of poll intimating the programme of election. So the argument that time schedule could not be changed by the Election Officer when only date of poll has been changed by the Registrar and his notification was silent as regards the fact whether the election should be held denovo does not appear sound. So the case of Ram Pal Singh referred to earlier wherein Rule 441 (2) has not been taken into account seems to require reconsideration and the under noted question needs to be answered by a larger Bench. It is only thereafter that this case can be decided. "Whether Election Officer can refix rest of the dates in the time schedule of election process where Registrar has only postponed the date of poll and his order is silent regarding the dates of the election process ?" Hon'ble Rajeshwar Singh, J. in his order indicated that the case seems to require a decision by a larger Bench and the Hon'ble Chief Justice was requested to constitute a Bench under Rule 6 of the Chapter 5 of the Allahabad High Court Rules, i952. 12. 12. In view of dissenting judgments delivered by Hon'ble S. K. Dhaon J. and Hon'ble Rajeshwar Singh, J. in the aforesaid writ petitions the papers of these cases were ordered to be laid before the Hon'ble Chief Justice for passing appropriate orders but keeping in view of the fact that the democratic process may not be arrested, the Division Bench directed that the result of election already held should be declared but the same would be subject to the decision in these writ petitions. 13. In Shiv Mangal Singh's (supra) it was clearly laid down that the expression "election" has been used in this sub-rule of Rule 439 in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate. It covers the whole procedure whereby an elected member is returned whether or not it be found necessary to take a poll. Doubtless, in its ordinary meaning it implies some act of choosing. But this term has not been used in the narrow sense. The word "election" used in this rule bears the wide meaning referring to the entire process which consists of several stages and embraces many steps. But in the case Huzari Lal Sonkar (supra) a Division Bench of this Court was of the view that the election schedule once started should not be disrupted and election should take place according to the schedule. 14. While allowing the writ petition, the Division Bench, directed the issue of a writ in the nature of mandamus commanding the opposite parties to complete the process of election from the stage where it was disrupted, that is to say, the stage after the filing of the objections against the provisional electoral roll and the order of the Registrar referred to in Assistant Registrar's letter dated November 5, 1984 (Annexure-9) was quashed. The District Registrar was directed to ask the election officer to complete the process of election as aforesaid by the middle of February, 1985. 15. The District Registrar was directed to ask the election officer to complete the process of election as aforesaid by the middle of February, 1985. 15. In Itwari's case (supra) the case of Hazari Lal Sonkar (supra) was not considered inasmuch as to whether the election schedule once started must not be disrupted and the election must take place according to the schedule but it was indicated that the power of extension which vests in the Registrar is subject to the outer limit imposed to Section 29 (6) of the Act as it was conceded that the powers exercised by the Registrar were still within the time limit prescribed under sub-section (6) of Section 29. 16. In Civil Misc. Writ Petition No. 6619 of 1988 Sunder Lal and another v. Registrar, Co-operative Societies, U.P. Lucknow and others, Hon'ble Rajeshwar Singh, J. indicated that the power to allow the extension of time schedule includes the power to extend the entire schedule and not only a part of it. A candidate may be the only person validly nominated for election but his right to be declared elected arises only after the date of poll. It is not a vested civil right. No claim could hence be founded on the mere circumstance that the petitioner was the only candidate in the field. The right to stand as a candidate and contest an election is not a common law right but it is a special right created by statute and can be exercised only on the conditions laid down in the statute. 17. The dissenting judgment of Hon'ble Rajeshwar Singh, J. finds support with the view which was taken in Itwari's case (supra) and Shiv Mangal Singh's case (supra) but is in conflict with the view which was taken in Hazari Lal Sonkar's case (supra). The dissenting judgment of Hon'ble S. K. Dhaon, J. also going out that legislature has clothed such powers to Registrar to revise the election schedule. 18. The dissenting judgment of Hon'ble S. K. Dhaon, J. also going out that legislature has clothed such powers to Registrar to revise the election schedule. 18. The question as to whether the Registrar, Co-operative Societies, U.P. or District Magistrate/Election Officer appointed, may revise the election process in such a way to set at naught the election of the person who remained the only candidate after the rejection or withdrawal of nomination paper of other candidates may be declared elected after the poll or the declaration of the result, by a revised schedule of the election process or the election if postponed are held again on different dates should start from the disrupted stage, that is, after withdrawal of the nomination papers, in respect of the election, requires reconsideration because after the date of withdrawal if only one person remains in the field, he has a vested right to become a delegate or a member of the Society. If the power of Registrar under Rules 439 and 440 (1) and 341 which authorise him to alter or extend the time schedule, in special circumstances, after recording reasons is stretched, then he can set at naught the entire election process. The question as to whether the aforesaid rules give unbridled and un-canalised power to the Registrar to set at naught the election of a person who was elected unopposed deserves to be reconsidered by a Larger Bench. This power is against the democratic norms as prevail in this Country. In this regard assistance may be taken from some of the provisions of the Representation of people Act, 1991. Sections 37, 38 and 53 of Representation of People Act, 1951 are reproduced hereinunder : "37. Withdrawal of candidature.(1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three o'clock in the afternoon on the day fixed under Clause (c) of Section 30 to the returning officer either by such candidate in person or by his proposer, or election agent who has been authorised in this behalf in writing by such candidate. (2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice. (2) No person who has given a notice of withdrawal of his candidature under sub-section (1) shall be allowed to cancel the notice. (3) The returning officer shall, one being satisfied as to the genuineness of a notice of withdrawal and the identity of the person delivering it under sub-section (1), cause the notice to be affixed in some conspicuous place in his office." 38. Publication of list of contesting candidates.Immediately after the expiry of the period within which candidatures may be withdrawn under sub-section (1) of Section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period. (2) The said list shall contain the names in alphabetical order and the addresses of the contesting candidates as given in the nomination papers together with such other particulars as may be prescribed. 53. Procedure in contested and uncontested elections.(1) If the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken. (2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill these seats. (2) If the number of such candidates is equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill these seats. (3) If the number of such candidates is less than the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be elected and the Election Commission shall, by notification in the Official Gazette, call upon the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college concerned, as the case may be, to elect a person or persons to fill the remaining seat or seats: Provided that where the constituency or the elected members or the members of the State Legislative Assembly or the members of the electoral college having already been called upon under this subsection, has or have failed to elect a person or the requisite number of persons as the case may be, to fill the vacancy or vacancies, the Election Commission shall not be bound to call again upon the constituency, or such members to elect a person or persons until it is satisfied that if called upon again, there will be no such failure on the part of the constituency of such members". 19. In view of the above the question as to whether either the Registrar or an election Officer can refix the schedule of the election process devono setting at naught the election of persons who remained the only candidate after withdrawal and may be elected after the poll or at the time of declaration of result as delegates, if no, and whether the entire election process, started denovo by a revised time schedule of the election process would become vitiated. The question as to whether Rules 439, 440 and 441 of Cooperative Societies Rules cloth with the Registrar unbridled and un-canalised powers and the same are arbitrar also deserves to be decided by a Larger Bench. The Hon'ble Chief Justice may be retested to constitute a Larger Bench under Rule 6 of Chapter 5 of the Allahabad High Court Rules, 1952. 20. The Hon'ble Chief Justice may be retested to constitute a Larger Bench under Rule 6 of Chapter 5 of the Allahabad High Court Rules, 1952. 20. Keeping in view the fact that the democratic process should not be arrested, we are of the opinion, that till the question referred to above to the Larger Bench, is not decided, the interim orders, if any, granted earlier in the aforementioned writ petitions shall continue to remain in operation. 21. In view of the fact that the elections be completed expeditiously we earnestly hope and expect that if Hon'ble Chief Justice is of the opinion that the question deserves to be decided by a Larger Bench, the constitution of the Bench be done expeditiously.