Ramesh Kumar Singh v. State of U. P — 1990 DIGILAW 470 (ALL)

JUDGMENT S.H.A. Raza, J. - A Division Bench of this Court has referred the following question to this Bench for decision : "Whether either the Registrar or an Election Officer can be refix the schedule of the election process denovo 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 the Co-operative Societies Rules which clothe the Registrar with unbridled and un-canalised powers and the same are arbitrary." 2. The Division Bench while discussing this question indicated that 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 a different date should start from the disrupted stage, i. e. after the 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, 440 (1) and 441 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. 3. 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. 3. A Division Bench of this Court in Shiv Mangal Singh v. Registrar, Co-operative Societies, U. P., Lucknow and others, 1982 UPLBEC 46, indicated : "Under sub-rule (1) of the 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 election 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 over all incharge of the Cooperative 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. 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." "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. 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. 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." "Extension of special circumstances is a condition precedent for exercise of power by a Registrar under the said provision Unless there are special circumstances time schedule of an election cannot be postponed. The word 'special circumstances' 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. Circumstances 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 piece meal 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 factors. If they are taken piece meal 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 factors. As to what is special circumstance is to be decided by the Registrar and not by this Court." In Hazari Lal Sonkar v. State of U.P. and others, 1985 UPLBEC 234, a Division Bench of this Court held : "Normally whenever any election is to be held by a democratic process under statutory provisions, the election schedule one 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. 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." 4. In the case of Itwari v. Registrar, Co-operative Societies, Lucknow and others, 1988 UPLBEC, 243, a Division Bench of this Court indicated as under& "With respect, we entirely agree with the above statement of the law. The second proviso to Rule 440 conferring power on the Registrar to allow extension in time schedule has been expressed in wide terms being subject only to the provisions of Section 29. It must be read with the over-all power of superintendence, directions and control of the Registrar vested in him under Rule 439. The second proviso to Rule 440 conferring power on the Registrar to allow extension in time schedule has been expressed in wide terms being subject only to the provisions of Section 29. It must be read with the over-all power of superintendence, directions and control of the Registrar vested in him under Rule 439. This power is, in our opinion, available to the Registrar right up to the point of time of the declaration of the result of the elections where after the power to disturb the same belongs to the machinery provided for adjudicating disputes pertaining to the validity of elections. The second proviso to Rule 440 cannot be read in isolation divorced from the general power of superintendence vested in Registrar under Rule 439 (1) So construed, we are clearly of the opinion 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. As held in the case of Shiv Mangal Singh (supra), the expression 'election' used in these rules must connote the entire process of election. Consequently, the power to extend the time schedule vested in the Registrar in the context must carry with it the power to allow extension of the entire schedule from beginning to the end." "The submission is misconceived. The right to be declared elected in the circumstances mentioned under Rule 443 (1) arises only after the date of the poll. It is not, in our considered view, a vested civil right. It is a mere change, a possibility and nothing more. The mere fact, therefore, that a candidates' nomination was the only one accepted by the Election Officer does not by itself vest in him any indefeasible civil right to be declared elected immediately. That right arises only after being declared and only after the date of the poll. There may be a variety of circumstances not difficult to visualise in which the Registrar may be before the results are declared exercising power of superintendence be compelled to intervene and direct that the election be held de-novo in accordance with a fresh time schedule. These circumstances may, for example be famine, floods, fire, riots etc. which may justify the repetition of the process already accomplished towards the final election. These circumstances may, for example be famine, floods, fire, riots etc. which may justify the repetition of the process already accomplished towards the final election. It is for this reason that Rule 443 provides that the person who is the lone candidate in the field shall be entitled to be declared duly elected only after the date of the poll. Admittedly, the date of the poll had not arrived in any of these petitions. No claim could hence be founded on the mere circumstance that the petitioner was the only candidate in the field. 'Further, it is settled law that 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 thereby. This has been recognised time and again by their Lordships of the Supreme Court. Thus in Ram Chand Bhatia v. Hardayal, reported in AIR 1986 SC 717 , their Lordships observed in paragraph 8 at page 720 : "The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be exercised on the conditions laid down by the statute". 5. In Ram Pal Singh v. Registrar, Co-operative Societies, U.P. Lucknow and others, 1988 UPLBEC 753, a Division Bench held : "Therefore, the Registrar can extend the time schedule. But it can be in special circumstances and after recording reasons. Election of Co-operative Societies is stated to have been announced in the State and date of poll was fixed by the Registrar twice or thrice prior to 31st July or 1st August, 1988. But it was extended for one or the other reason before the date for nomination etc. expired. On 23 July, the Registrar once more in exercise of its power under Rule 440 extended the date of poll from 31st July or 1st August to 12th or 13th September as Kharif season was at its peak. Whether the reason or extending the poll is a special circumstance within the meaning of the proviso need not be gone into as the petitioners in these petitions are aggrieved not by extension as much as by announcement of fresh time schedule by the Election Officer including filing of nominations etc. Whether the reason or extending the poll is a special circumstance within the meaning of the proviso need not be gone into as the petitioners in these petitions are aggrieved not by extension as much as by announcement of fresh time schedule by the Election Officer including filing of nominations etc. Rule 441 (3) provides for time-schedule and what it shall contain. It is extracted below : "441 (3). The Election Officer shall display at the notice board of the society the following programme of election (i) the date for display of provisional voter's list, (ii) the date, time and place for filing objections and their disposal, (iii) the date for display of final voter's list, (iv) the date, time and place for filing nominations, (v) the date, time and place of scrutiny of nominations, (vi) the date, time and place for withdrawal of nomination, (vii) the date, time and place for allocation of election symbols and display of final nominations, (viii) the date, time and place of poll : Provided that the place of poll shall be the office headquarter of the society unless for reasons to be recorded by the election officer it may be some public place as near the office/headquarter of the society as may be possible and notified in the programme of notice, (ix) the place at which voters' list can he inspected by any voter, and (x) the names of the constituencies including reserved constituency and the number of persons to be elected." The process mentioned in the rule are in sequence one followed by other. After every process has been completed then the poll takes in the end. The question is if the Registrar extends the date of poll that is the eight process in the order it is mentioned in the rule then does it necessarily mean that the entire process has to be gone afresh. The power under Rule to extend time schedule includes the power to extend the entire schedule or a part of it. For instance, if the Registrar directs that elections shall not be held for one year it may appear reasonable to postpone the entire schedule as the voter list, nomination etc. may require fresh scrutiny. But if the postponement is for few weeks, the Registrar extends a part of time schedule only. For instance, if the Registrar directs that elections shall not be held for one year it may appear reasonable to postpone the entire schedule as the voter list, nomination etc. may require fresh scrutiny. But if the postponement is for few weeks, the Registrar extends a part of time schedule only. Whether the Registrar extended the entire time schedule or part of it shall depend on the order itself. In the order dated 23rd July what has been extended is the date of poll. It is conspicuously silent about any other process mentioned in sub-rule (3) of Rule 441. Even in the counter affidavit it has not been stated that the Registrar directed entire election process to be gone afresh. Reliance has been placed by the learned Standing Counsel on Itwari v. Registrar, Co-operative Society and others, 1988 ALJ 393 : 1988 UPLBEC 243 (DB) and it is argued that the order dated 23rd July 1988, resulted in extension of entire time schedule and the Election Officer is entitled to fix fresh time schedule including display of voters' list filing of nomination etc. It was a case where the Registrar passed two orders one extending the date of poll and other directing the District Magistrate to fix the time schedule afresh. There is no such direction in these petitions. Even in Sheomangal Singh v. Registrar Co-operative Society, 1982 UPLBEC 46, it appears there were two orders. The Bench in Itwari's case observed : "It is wrong to suggest that power of extension granted by the proviso could be exercised by the Registrar only for changing the date of poll and not of the entire schedule preceding it. We respectfully agree with these observations. As observed earlier, the Registrar could extend the entire time schedule but if he exercise the power to extend only a part of time schedule by specifically mentioning it in the order then it is difficult to agree that it should be deemed that it should be read as extending the entire schedule. Under rules when date of poll is fixed, the Election Officer announces the time schedule. But the performs this duty on behalf of the Registrar as it is the Registrar under whose direction and control the elections are held. Under rules when date of poll is fixed, the Election Officer announces the time schedule. But the performs this duty on behalf of the Registrar as it is the Registrar under whose direction and control the elections are held. Therefore, the Registrar, may in his supervisory or controlling power alter to modify the part or whole of the time schedule but it cannot be vice-verse. If the Registrar chose to extend only a part of the time schedule announced by the Election Officer then the Election Officer could not assume power and extend the time schedule in respect of other process. But if in any society the process as indicated in the time schedule had not been completed for one or the other reason and the nominations had not been filed and symbols not allotted then in these societies the Election Officer shall be entitled to fix fresh time schedule from the stage which had been completed earlier." "In absence of any direction or order by the Registrar, the Election Officer cannot, on its own change the schedule. The power of extension is of Registrar and not of Election Officer. Therefore, the Election on 12th and 13th September, 1988 of the Cooperative Societies should be held as directed by the Registrar on election process completed on earlier time schedule." 6. In Civil Misc. Writ Petition No. 6619 of 1988, Sunder Lal and another v. Registrar Co-operative Societies, Lucknow and others, Hon'ble Mr. Therefore, the Election on 12th and 13th September, 1988 of the Cooperative Societies should be held as directed by the Registrar on election process completed on earlier time schedule." 6. In Civil Misc. Writ Petition No. 6619 of 1988, Sunder Lal and another v. Registrar Co-operative Societies, Lucknow and others, Hon'ble Mr. Justice S. K. Dhaon indicated : "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 (3) 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." "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 Co-operative 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)." 7. Hon'ble Mr. Justice Rajeshwar Singh (as he then was) in a dissenting judgment opined that the Election Officer can re-fix the dates in the time schedule of election process where Registrar has only postponed the date of the poll. Differing with Hon'ble Mr. Justice S. K. Dhaon, Hon'ble Mr. Hon'ble Mr. Justice Rajeshwar Singh (as he then was) in a dissenting judgment opined that the Election Officer can re-fix the dates in the time schedule of election process where Registrar has only postponed the date of the poll. Differing with Hon'ble Mr. Justice S. K. Dhaon, Hon'ble Mr. Justice Rajeshwar Singh (as he then was) stated 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 there. 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 of 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 out his tight 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 circumstances 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. 8. Hon'ble Rajeshwar Singh, J. further indicated that : "In 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. 8. Hon'ble Rajeshwar Singh, J. further indicated that : "In 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 then 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 ?" 9. Hon'ble Mr. Justice Rajeshwar Singh, in his order further 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 Chapter 5 of the Allahabad High Court Rules, 1952. 10. In Shiv Mangal's case (supra) it was laid down that the expression 'election' has been used in the sub-rule of Rule 439 in a wide sense, that is to say to connote the entire procedure to be gone through to return a candidate, (t 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 Similar views were expressed in the case of Itwari (supra). 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 Similar views were expressed in the case of Itwari (supra). It was 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. The expression of 'election' used in this rule must connote the entire process of election. Consequently, the power to extend the time schedule vested in the Registrar in the context must carry with it the power to allow extension of the entire schedule from beginning to the end. The Division Bench further opined that the right to stand as a candidate and contest the 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 thereby. 11. Explaining the cases of Shiv Mangal Singh (supra) and Itwari (supra) a Division Bench of this Court, while agreeing with the view that the power under the Proviso to Rule 440 to extend the time schedules the powers to extend the entire schedule. If the Registrar chases to extend only a part of the time schedule announced by the Election Officer then the Election Officer could not assume power and extend the time schedule in respect of other process. But if in any society the process as indicated in the time schedule had not been completed for one of the other reason and the nominations had not been filed and symbols not allotted then in these societies the Election Officer shall be entitled to fix fresh time schedule from the stage which had been completed earlier. In absence of any direction or order by the Registrar the Election Officer cannot, on its own change the time schedule. The power of extension is of Registrar and not Election Officer. 12. Although in the case of Sundar Lal and another (supra) there was a difference of opinion on the power of Election Officer to refix the schedule but Hon'ble Mr. Justice S. K. Dhaon and Hon'ble Mr. The power of extension is of Registrar and not Election Officer. 12. Although in the case of Sundar Lal and another (supra) there was a difference of opinion on the power of Election Officer to refix the schedule but Hon'ble Mr. Justice S. K. Dhaon and Hon'ble Mr. Justic Rajeshwar Singh (as then was) agreed with the view taken in Shiv Mangal's case (supra) and Itwari (supra) that the Registrar possessed the power of issuing fresh notification under the provisions of Proviso to sub-section (3) to Section 29 of the Act and Rule 440 of the Rules. But in the case of Hazari Lal Sonkar v. State of U.P. and others, 1985 UPLBEC 234, altogether a different view was taken by a Division Bench of this Court. The court was of the view that the election schedule once started should not be disrupted and the election should take place according to schedule. 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 from where it was disrupted i.e. the stage of filing objections against the provisional electoral rolls. It seems that in none of the cases cited above, the case of Hazari Lal (supra) was considered inasmuch as to whether the election schedule once started should not be disrupted and the election must take place according to original schedule. 13. While considering this aspect of the matter it is necessary to consider the relevant provisions of U. P. Co-operative Societies Act, 1965 and the Rules framed thereunder. Section 29 of the Act reads as under : "29. Committee of management.(1) The management of every Co-operative society shall vest in a committee of management constituted in accordance with this Act, the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the bye-laws. (2) The term of the elected members of the committee of management shall be such as may be provided in the rules of the bye-laws of the society. (... ... (2) The term of the elected members of the committee of management shall be such as may be provided in the rules of the bye-laws of the society. (... ... ...) (3) It shall be the duty of the Committee of Management to take steps before the expiry of its term for election of members of the Committee of Management as provided in Section 32 at an annual general meeting, and the members so elected shall replace the members whose term expires under sub-section (2). Provided that the State Government may by notification direct that in respect of such class of Co-operative Societies as may be specified, the superintendence, direction, control and conduct of elections of the members and Chairman and Vice Chairman of the committees of management shall vest in the Registrar and such selection may be held otherwise than in any meeting, notwithstanding anything contained in clause (b) of Section 32. (a)... (b)... (c)... (d)... (e)... 14. Chapter XXIX of the U. P. Corporative Societies Rules, 1968 deals with the Rules for Election in Co-operative Societies. Part II of the said Chapter deals with the Election Rules in respect of societies other than those notified under sub-section (3) of Section 29 of the Act, Rule 421 of these rules reads as below : "421 (a). Where the number of valid nominations for any office does not exceed the number of vacancies to be filled, the candidates for whom valid nominations have been received, shall be deemed to have been duly elected, to fill such vacancies and the Presiding Officer may make the announcement accordingly at the commencement of the election meeting. (b) If no valid nominations are received for any one or more seats this fact shall also be announced at the commencement of the election meeting and such vacancies shall be filled by co-option in the manner laid down under Rule 450 or under Rule 451." Rules 429, 430, 431 and 432 deal with the election of Chairman and Vice-Chairman. They are quoted as under : "429. They are quoted as under : "429. (a) As soon as possible after the declaration of the result of election of the members of the committee of management, the Secretary shall, in consultation with the Election Officer, convene the first meeting of the committee of management for election of Chairman, Vice Chairman and such other office bearers of the society as may be provided in the bye-laws of the society. Such meeting shall also be prescribed by the Election Officer. (b) The Chairman and Vice-Chairman shall be elected from amongst the members of the Committee of Management. (c) The elected members of the committee of management shall elect delegates to represent the society in the general body of another co-operative society of which society is a member from amongst the qualified members of the general body. 430. The nomination papers for election under Rule 429 shall be presented to be Presiding Officer at the meeting in Form "K". The Presiding Officer shall decide objections to nominations after making such summary enquiry as he thinks fit and shall announce the name of names of the eligible candidate or candidates. No candidate shall file nomination papers for more than one office. 431. Where there is only one valid nomination for any office, the Presiding Officer shall declare the candidate whose valid nomination paper has been received, duly elected to such office. 432. Where there are more than one valid nominations for an office the Presiding Officer shall forthwith arrange for taking a poll in accordance with provisions of Rules 423, 424, 425, 426, 427 and 428." 15. Part IV of these Rules deals with the election rules in respect of co-operative societies notified under sub-section (3) of Section 29 of the Act. The relevant Rules i. e., Rules 439, 440, 441, 442 and 444, are reproduced below : "439. Part IV of these Rules deals with the election rules in respect of co-operative societies notified under sub-section (3) of Section 29 of the Act. The relevant Rules i. e., Rules 439, 440, 441, 442 and 444, are reproduced below : "439. (i) Notwithstanding anything contained in the bye-laws, tie election of a co-operative society or societies, or class or classes of co-operative societies shall be held in accordance with the provisions of the Act and rules and the District Magistrate of the district in which the headquarter of the society is situated shall take steps to organise the election under the superintendence, direction and control of the Registrar : Provided that the authority to organise election of delegates of members of the branches of the U. P. State Land Development Bank Ltd., Lucknow shall vest in the District Magistrate in which such branches are located ; Provided further that in case of societies of which area of operation extends to more than one district, an authority to organise the election of delegates of a member from the district falling within the areas of operation of such society shall be exercised by the District Magistrate of the district concerned or his nominee. (2) The election in a co-operative society or societies or a class or classes of Co-operative Societies shall be held on such due date or dates as the Registrar may by order fix and the District Magistrate concerned shall, on such dates being so fixed appoint by order, one or more election officers or different election officers for different class or classes of societies or for different areas for this purpose : Provided that no officer of the Department which is concerned with the management and administration of the society shall be appointed as Election Officer. (3) The Election Officer shall perform all such functions as are enjoined upon him by these rules or as may be incidental to or necessary for the discharge of his duties. (4) The Election Officer may appoint polling Officer for each constituency from amongst the Government servants who are not concerned with the a management and administration of the societies for assisting him in conducting election. (4) The Election Officer may appoint polling Officer for each constituency from amongst the Government servants who are not concerned with the a management and administration of the societies for assisting him in conducting election. (5) Election Officer shall arrange such number of polling officers as there are polling stations/booths and provide them with ballot boxes, ballot papers, a copy of the final voters' list and such other accessories which are necessary for the conduct of election. 440. (1) In the year in which election of a co-operative society is to be held the District Magistrate of the District in which the headquarter of the society or societies is situated shall, subject to the order of the Registrar, arrange holding of election in a cooperative society or class or classes of co-operative societies as given below : (a) Committee of Management, Chairman, Vice-chairman and delegates to general body of another society in case of primary society other than those which have area of operation extending to more than one revenue district. (b) Committee of Management, Chairman, Vice-Chairman and delegates to general body of another society in a case of marketing societies, block unions and central societies other than referred to in Clauses (c), (d) and (e) of this rule and of the delegates of individual members to the general body in case of societies having area of operation of more than one revenue district and having membership of individual members. (c) Committee of Management, Chairman, Vice-Chairman and delegates to general body of another society in case of District Co-operative Federation and other district level Societies other than Central/District Co-operative Bank. (d) Committee of Management, Chairman, Vice-Chairman and delegates to general body or another society, in case of District/Central Co-operative Banks and the Committee of Management, Chairman, Vice-Chairman and delegates to the general body of another society in case of societies other than apex societies having area of operation extending to more than one revenue district. (d) Committee of Management, Chairman, Vice-Chairman and delegates to general body or another society, in case of District/Central Co-operative Banks and the Committee of Management, Chairman, Vice-Chairman and delegates to the general body of another society in case of societies other than apex societies having area of operation extending to more than one revenue district. (e) Committee of Management, Chairman, Vice-Chairman and delegates of an apex society to the general body of any other societies including National Level Co-operative Society : Provided that the District Magistrate of the district in which the branch/branches of the U. P. Land Development Bank Ltd. Lucknow or the sub-office of such societies having area of operation extending to more than one revenue district is situated shall arrange the election of delegates of members to the general body of such societies on the date specified by the Registrar : Provided further that the Registrar may, in special circumstances after recording reasons therefor allow extension in time schedule of a co-operative society or class or classes of co-operative societies or of co-operative societies of any area or areas but such extension in time schedule shall be subject to the provisions of Section 29 of the Act. (Emphasis-ems) (2) The District Assistant Registrar or any other gazetted officer subordinate to the Registrar authorised by him shall maintain a register, showing necessary particulars relating to constitution of general body, Committee of Management and delegates of society, in respect of such co-operative societies having headquarters in the district on such form as may be prescribed by the Registrar. (3) It shall be the duty of the Secretary/Managing Director of a cooperative society to furnish all such information and particulars pertaining to the election to the Registrar or Election Officer as may be required by him from time to time. (3) It shall be the duty of the Secretary/Managing Director of a cooperative society to furnish all such information and particulars pertaining to the election to the Registrar or Election Officer as may be required by him from time to time. (4) For purpose of election of members of Committee of Management of a co-operative society, or as the case may be, of delegates to general body of a co-operative society, the Registrar shall, notwithstanding anything contained in the bye-laws of the society, before the issue of notice under sub-rule (2) of Rule 441 for election of a co-operative society or as the case may be of a class of co-operative society determine provisionally (a) the number of constituencies in which the area of operation of the society shall be divided ; (b) the extent of area of each constituency ; (c) the total number of seats allotted to each constituency ; (d) the number of seats reserved for weaker section/women. (5) The Registrar shall thereupon publish in a local newspaper, the provisional determination made under sub-rule (4) for inviting objections within seven days from the date of such publication. A copy thereof shall also be sent to the concerned society for its comments. (6) The criteria or determination of constituency may be any one or more of the following namely : (i) revenue area of areas ; (ii) class or classes of membership ; (iii) other rational basis in relation to area of operation of society : Provided that the of determination in case of primary agricultural credit society shall as far as possible be one or more Gaon Sabhas falling in the area of operation of the society. (7) The objection and comments received under sub-rule (5) shall be considered by the Registrar on the 13th day of such publication and thereafter he shall finally determine the constituencies, total number of seats and the number of seats reserved for the weaker section/women as referred in clauses (a) to (d) of sub-rule (4). (8) The final determination of constituencies under sub-rule (7) shall be published in the local newspaper on the fourteenth day of such publication and a copy thereof shall be sent to the concerned society and the District Magistrate concerned. (8) The final determination of constituencies under sub-rule (7) shall be published in the local newspaper on the fourteenth day of such publication and a copy thereof shall be sent to the concerned society and the District Magistrate concerned. (9) Where by virtue of nomination made by the State Government under the second proviso to sub-section (1) or sub-section (2) of Section 34 of the Act, it becomes necessary to re-determine the constituency, the Registrar shall re-determine the constituency in the manner laid down in this rule at the time when election of elected members of the Committee of Management is to be held. 441. (1) The Election Officer shall notify in the local newspaper the date or dates of election for class or classes of societies of a group or groups of Co-operatives societies of any area or areas of his jurisdiction. (2) The Election Officer shall give notice of not more than thirty days but not less than fifteen days from the date of poll intimating the programme of election as specified in sub-rule (3) to (i) individual members either in the case of election of delegates of individual members to general body or in case of election of the Committee of Management in Co-operative Societies having general body of individual members, (ii) delegates in case of societies of which general body consists of delegates of individual members or society members as the case may be, (iii) individual members and delegates of society members in case of societies of which general body consists of individual members and delegates of society members : in one or more of the following modes, viz, (a) by personal delivery under acknowledgement, (b) by post under certificate of posting, (c) by publication through beat of drum, (d) by publication through local newspaper : Provided that the notice and the programme of election shall also be published in a local newspaper having circulation in the area of operation of the society at least fifteen days before the poll in case of societies covered in Clauses (ii) and (iii). (3) The Election Officer shall display at the notice board of the society the following programmes of election (i) the date for display of provisional voters' list, (ii) the date, time and place for filing objections and their disposal, (iii) the date for display of final voters' list, (iv) the date, time and place for filing nominations, (v) the date, time and place of scrutiny of nominations. (vi) the date, time and place for withdrawal of nominations, (vii) the date, time and place for allocation of election symbols and display of final nominations, (viii) the date, time and place of poll : Provided that the place of poll shall be the office/headquarters of the society unless for reasons to be recorded by the election officer it may be some public place as near the office/headquarter of the society as may he possible and notified in the programme of notice, (ix) the place at which voters list can be inspected by any voter, (x) the names of the constituencies including reserved constituency and the number of persons to be elected. (4) The Secretary/Managing Director of the concerned society shall get a list of individual members prepared (i) in case of societies having individual members in their general body or of societies of which general body consists of delegates of individual members, and, (ii) in case of societies of which general body consists of individual members and society members in triplicate indicating therein the name, parentage, address noted in the books of the society, disqualification, if any (hereinafter referred to as the provisional voters' list) on the date as may be specified by the Registrar and it shall be prepared (a) Gaon sabha-wise in case of primary agricultural credit societies, (b) MoW/u-wise/ward-wise in the case of primary consumers society in urban areas and in areas other than urban, in accordance with the direction of the Registrar, (c) Constituency-wise/area-wise or any other rational basis as may be decided upon by the Registrar in case of other societies and the same shall be submitted to Election Officer in case of society covered under clause (i): Provided that in case of a co-operative society having societies as its member or societies covered under Clause (ii) such list shall be submitted to Election Officer along-with the names of the elected delegates of the society or of the existing delegates if names of elected delegates are not received before the publication of voters' list: Provided further that in case of branches of U. P. Land Development Bank Ltd., Lucknow or sub-offices of societies of which area of operation extends to more than one revenue district and the membership of which consist of individual members, such list shall be prepared by the branch manager of the concerned branch or in charge of sub-offices, as the case may be, and shall be submitted to the Election Officer, (5) The Election Officer shall display the provisional voter's list at the headquarter of the society situated in the district and in other cases at the office of the branches, prior to the date of poll. (6) Objections, if any, to the provision voters' list shall be heard and decided by the Election Office on the date, time and place fixed by him, (7) The voters' list shall be caused to be prepared by the Election Officer and displayed at the place of election and the headquarter of the society if situated in the district and in other cases at the branches of sub-office of the society. A copy of voters' list shall also be sent to the Registrar. The voters' list shall also be made available in the office of the society or branch, as the case may be, for sale on payment of the cost prescribed by the Election Officer. 442. (1) A candidate may obtain nomination form (FORM 'K') from Election Officer on payment of fee as follows : (a) a rupees ten in case of primary society including branches of U. P. Land Development Bank, (b) rupees twenty five in case of Central Societies and Marketing Societies, (c) rupees fifty in case of Apex and Central District Co-operative Bank, (d) rupees twenty five in case of other societies, (2) The fees received under sub-rule (1) shall be deposited in the account of the concerned society with the District Co-operative Bank of the area by Election Officer. (3) No person shall file nomination paper for election to fill a seat if (i) he is ineligible to vote, (ii) he is disqualified under the provisions of the Act, rules or the bye-laws of the society. (4) Proposal for nomination shall be addressed to Election Officer in Form 'K'. Objection to nomination shall also be addressed to him and such objection must be from a voter. (5) The candidate shall present, his nomination the Election Officer in person or through his authorised agent and an entry thereof shall be made by the Election Officer in the register strictly in chronological order and he will also acknowledge receipt, if demanded : Provided that the proposer and seconder to the nomination shall be a voter other than the candidate himself. (6) The register will show (i) the name of the candidates, (ii) the name of the proposer and seconder. (iii) the date and time of receipt of nomination paper and shall be signed by the Election Officer. (6) The register will show (i) the name of the candidates, (ii) the name of the proposer and seconder. (iii) the date and time of receipt of nomination paper and shall be signed by the Election Officer. (7) The Election Officer shall after the expiry of the time for filing nomination papers draw up a horizontal line underneath the entry of the nomination paper in the register, write thereunder in words (nomination closed) and affix his signature with date and time. A list of nomination shall be displayed on the notice board of the society as soon as may be after the expiry of time. (8) The Election Officer shall take up scrutiny of nomination papers in alphabetical order on the date specified and the candidate, his proposer or second may be present at the time of scrutiny. (9) While scrutinising the nominations, the Election Officer may (a) permit any clerical error in the nomination papers in regard to the names or number to be corrected in order to bring them in conformity with the corresponding entries in the voters' list, (b) where necessary direct that any printing error in the said entries may be overlooked. (10) At the time of scouting, the Election Officer shall endorse on each nomination paper the decision regarding acceptance or rejection. In case of rejection he will record in writing a brief statement of his reason for such rejection. The candidate whose nomination is rejected may obtain a copy of the order of rejection on payment of fees of rupees five to the Election Officer, who shall deposit the amount in the society concerned. (11) Application for withdrawal of the nomination shall be made to the Election Officer in person on the prescribed form, only by the candidate concerned. (12) Where the Election Officer finalises the nomination after withdrawal of the nomination he shall also allot a symbol from the list of symbols approved by the Registrar in the same order of the symbol, as is serially indicated in the approved list to each valid nominations and in case the number of valid nominations exceeds the number of symbols approved by the Registrar, the Election Officer may allot any other symbol which may be different but may resemble the symbols approved by the Registrar. The symbols so allotted shall be binding on the candidates concerned. The symbols so allotted shall be binding on the candidates concerned. (13) The list of final nominations containing the names of candidates in Hindi alphabetical order indicating their respective symbols and the address as given in the nomination papers shall be displayed at the headquarters of the society if situated in the district and in other cases at the office of the branch before the date of poll. 443. (1) Where the number of valid nominations does not exceed the number of persons to be elected the Election Officer shall declare them to have been duly elected only after the date of poll ? Provided that where the number of valid nominations for any particular constituency is equal to number of persons to be elected from that constituency is equal to number of persons to be elected from that constituency and in other constituencies the number of valid nominations exceeds the number of persons to be elected, the Election Officer shall declare the result of that constituency which receives the nomination equal to the number to be elected after the poll is taken in other constituencies. (2) Where the number of valid nominations exceeds the number of persons to be elected, the Election Officer shall arrange for taking poll on the date fixed. (3) Every voter shall be given a ballot paper, either printed type-written or cyclostyle or hand written, according to instructions of the Registrar, containing hand-written/stamped names of contesting candidates arranged in Hindi alphabetical order with their respective symbol pasted, printed, stretched with ink or stamped against their respective names. It shall also contain a blank column for the voter to inscribe a mark (x) against the name or names of persons to whom he wants to vote. (4) The ballot paper shall be serially numbered and shall also bear the seal of the society and initials of the Election Officer/Polling Officer of the concerned polling station. (5) The voting shall be by secret ballot, the voter shall put a cross- mark (X) against the name of candidate for whom he desires to vote and then put the ballot paper into the ballot box with secrecy. (6) Every voter shall have as may votes as there are persons to be elect- ed but no voter shall give more than one vote to any one candidate. (6) Every voter shall have as may votes as there are persons to be elect- ed but no voter shall give more than one vote to any one candidate. (7) Any contesting candidate or his authorised agent may challenge the identity of the voter before the issue of the ballot paper on payment of fee of rupee one for each challenge to Election Officer. (8) The Election Officer shall make a summary enquiry of the challenge and if after such enquiry, he is of the opinion that the challenge is not established, he shall give to the person challenged a ballot paper which shall be endorsed on the back with the words "Challenged Vote" by the Election Officer in his own hand-writing and signed by him. (9) Every such person shall before being supplied with ballot paper under sub-rule (3) sign his name or affix his thumb impression if he is illiterate against the entry relating to him in a list in the specified form. (10) One receipt of ballot paper under sub-rule (8) the persons concerned shall record his vote on ballot paper by putting a cross-mark (X) against the name of candidate for whom he wants to vote with secrecy and hand over the ballot paper to Election Officer who shall forthwith place it in a cover specially kept for the purpose. (11) If a person representing himself to be a particular voter named in the voters' list applies for a ballot paper after another person has already voted as such voter, he shall, on satisfying his identity to the Election Officer, be supplied with a ballot paper which shall be endorsed on the back with the word 'tendered ballot paper' by the Election Officer in his own handwriting and signed by him. (12) Every such person shall before being supplied with a tendered ballot paper, sign his name or affix his thumb impression if he is illiterate, against the entry relating to him in a list in the specified form. (13) On receipt of ballot paper under sub-rule (11), the person shall record his vote on the tendered ballot paper by putting a cross mark (X) against the name of candidate for whom he wants to vote with secrecy and hand over the tendered ballot paper to the Election Officer who shall forthwith place it in a cover specially kept for the purpose." 16. A perusal of the scheme of the different rules would indicate that in Rule 421 it has been indicated that where the number of valid nominations for any officer does not exceed the number of vacancies to be filled the candidates for whom valid nominations have been received shall be deemed to have been duly elected to fill such vacancies and the Presiding Officer may make announcement accordingly at the commencement of the election meeting. Similar provision exist in Rule 431 but in Rule 443 a departure has been made. In this rule it has been provided that where number of valid nominations does not exceed the number of persons to be elected the Election Officer shall declare them to have been duly elected only after the date of poll. There appears to be no reason that where the number of valid nominations does not exceed the number of persons to be elected why the Election Officer should not declare the candidates duly elected to such office and why the Election Officer should declare them to have been elected only after the date of poll. The mischief of Rule 443 coupled with the power of the Registrar under Section 29 of the Act as well as proviso to Rule 440 which arms the Registrar with a power to extend the time schedule of a co-operative society or classes of co-operative societies or co-operative societies of any area of areas is against the democratic norms and functioning of democratic institutions. While in the case of cooperative societies falling under Part II of Chapter XXIX of the Co-operative Societies Rules a person or persons shall be deemed to have been duly elected immediately where the number of valid nominations for any office does not exceed the number of vacancies to be filled and the similar provision is contained in the Rule 431. There existed no justification that where number of valid nominations does not exceed the number of persons to be elected, Election Officer shall declare them to have been duly elected only after the date of the poll. Rule 443 gives unbridled, un-canalised, arbitrary and discriminatory power to the Registrar to set at naught the election of a duly elected person or persons. Rule 443 gives unbridled, un-canalised, arbitrary and discriminatory power to the Registrar to set at naught the election of a duly elected person or persons. There is no reason as to why with one class of the co-operative societies where the number of valid nominations for any office does not exceed the number of the vacancies to be filled the candidates for whom valid nominations have been received shall be deemed to have been duly elected to fill such vacancies but in another set of co-operative societies, like the present one, a departure has been made providing that the number of valid nominations does not exceed the number of persons to be elected, the Election Officer shall declare them to have been duly elected only after the date of poll. This Rule (Rule 443) is arbitrary, discriminatory and irrational inasmuch as there existed no nexus to the object sought to be achieved. 17. Rule 443 is also not in conformity with the provisions contained in Sections 37, 38 and 53 of the Representation of the People Act, 1961 reproduced below : "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 after-noon 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. (3) The returning officer shall, on 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 (1) 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 Dumber 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 those 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 sub-section, 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." 18. Thus, it is clear that even according to Representation of the People Act, 1951, it is provided that if the number of contesting 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 those seats. Thus, it is clear that even according to Representation of the People Act, 1951, it is provided that if the number of contesting 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 those seats. Hence, we are of the definite view that Rule 443 of the U. P. Co-operative Societies Rules, 1968, is arbitrary and discriminatory inasmuch as after the rejection of nomination paper and with drawl of the other candidates the number of valid nominations does not exceed the number of the persons to be elected the Election Officer shall declare them to have been duly elected only after the date of poll. The words 'only after the date of poll' is against the aims and object and the scheme of the U. P. Co-operative Societies Act and the Rules framed thereunder as well as the democratic norms. As soon as where the number of valid nominations for any office does not exceed the number of vacancies to be filled, the candidates for whom valid nominations have been received, shall be deemed to have been duly elected to fill such vacancies and the Election Officer shall have no option but to announce the result. Neither the Registrar nor the Election Officer possess the power to revise the election schedule de-novo from the beginning setting at naught the election of elected persons. The Registrar may revise the election process only from the stage from where it was disrupted. 19. We are of the opinion that the view taken in Shiv Mangal Singh (supra) as well as Itwari (supra), Ram Pal Singh (supra) as well as in Sundar Lal (supra) has not laid down correct legal position to the extent that the word 'Election' used in this rule i. e., 439, bears wide meaning referring to entire process which consists of several circumstances and embraces many steps. We are of the view that the power of the Registrar under Rule 440 is confined to extension in time schedule of the election from the disrupted stage and does not vest him with the power to re-schedule the entire election process. We are of the view that the power of the Registrar under Rule 440 is confined to extension in time schedule of the election from the disrupted stage and does not vest him with the power to re-schedule the entire election process. The view taken by the Division Bench of this Court in Hazari Lal (supra) has laid down the correct legal position to the extent that even in revised schedule the process of election should start from the stage from where it was disrupted. The question referred to this court by the Division Bench is replied in the following manner : "The Registrar or the Election Officer can revise the schedule of the election process only from the stage from where it was disrupted, Election of person or persons who remained the only candidate after rejection of nomination papers and withdrawal shall be deemed to have been effected after the date of withdrawal. The election process cannot be started de-novo but only from the stage it was disrupted. Rule 443 of the Co-operative Societies Rules is arbitrary, discriminatory and liable to be struck down only to the extent indicated hereinabove." 20. Let the papers be placed before the appropriate Bench for further orders.