Shiv Nath v. State of U. P — 1992 DIGILAW 240 (ALL)

JUDGMENT J.K. Mathur, J. - This branch of petitions raise common questions to be determined and they were therefore, heard together. 2. The facts from which the questions of law arose are as follows: "The U. P. State Co-operative Land Development. Rank Limited, Lucknow was established under the U. P. Corporative Land Development Banks Act, 1964. Subsequently its name was changed to U. P. Rajya Sahkari Krishi Evam Gramya Vikas Bank Limited (here-in-after referred to as the 'Bank'). It is one of the apex Co-operative Societies as enumerated in Section 2 (a-4) of the U. P. Co-operative Societies Act. This Bank is also admittedly notified under the proviso to Section 29 (3) of U. P. Co-operative Societies Act thereby vesting the Superintendence, direction, control and conduct of the elections of the Members, Chairman and and Vice-chairman of the committee of management in the Registrar." 3. After a long interval, under the directions issued by the court in writ petition No. 5393 of 1982 elections of the bank was scheduled to be held The delegates were to be elected on 16-1-1990, election of committee of management was to be held on 5-2-1990 and the election of Chairman, Vice-chairman and representatives were stated to be held on 6-2-1990, by an order issued by the Registrar on 30-11-1989. These elections were later postponed to 25-2-1990, 14-3-1990 and 15-3-1990 respectively, la accordant with this schedule elections of the delegates were held but the elections of the committee of management and the office bearers were not held. A writ petition was again moved before a Bench of this court at Allahabad being Writ Petition No. 34272 of 1991, to activate the Registrar into completing the elections. An order was passed in that petition on 30-9-1991 requiring the elections to be completed within three months. Consequently the Registrar again fixed 30-12-1991 for the election of the committee of management and 31-12-1991 for the election of the Chairman, Vice-chairman and representatives. Result of the delegates as elected in February 1990 was published and nominations accepted. At this stage again elections were postponed to 9-1-1992 and 10-1-1992 on the ground that because of terrorism in Tarai area and earthquake in Garhwal region, delegates from those places may not be able to participate in the elections The Registrar also moved for modification of the order passed on 30-9-1991. At this stage again elections were postponed to 9-1-1992 and 10-1-1992 on the ground that because of terrorism in Tarai area and earthquake in Garhwal region, delegates from those places may not be able to participate in the elections The Registrar also moved for modification of the order passed on 30-9-1991. The time was extended so as to complete the elections by 24-2-1992. 4. It was against this background of facts and events that the State of U. P. issued a Notification on 13-1-1992 adding an explanation to Rule 440 (1) of the U. P. Co-operative Societies Rules seeking to clarify that the elections of delegates, committee of management, Chairman and Vice-chairman shall be held in the same year. 5. It was fallowed by an order issued by the Registrar the same day requiring the elections of the delegates also to be held again on 3-2-1992 and fixing 20-2-1992 and 21-2-1992 for the election of committee of Management and the office bearers and representatives respectively. Consequent to this order of the Managing Director of the bank also issued directions for the elections on 15-1-1992. 6. The aforesaid amendment and the two orders purported to have been issued on the basis of the aforesaid amendment have been challenged in this court. A number of writ petitions have been filed both at Allahabad and at Lucknow. In none of the petitions the elections were stayed. However, in eleven petitions the declaration of results alone was stayed. 7. This bunch consists of ten petitions. Nine of these have been filed by the persons who were elected as delegates in January and February, 1990. All these petitioners have asked for quashing of the aforesaid orders requiring the elections of the delegates to be held again and have also sought mandamus to permit the delegates elected in the year, 1990 to elect the committee of management. The petitioner in writ petition No. 645 of 1992 contested the election of delegates held in February, 1992. His result has not been declared because of the orders issued by this court. He has sought a direction to be permitted to participate in the election of the committee of management of the bank. 8. The petitioner in writ petition No. 645 of 1992 contested the election of delegates held in February, 1992. His result has not been declared because of the orders issued by this court. He has sought a direction to be permitted to participate in the election of the committee of management of the bank. 8. The petitioner in writ petition No. 343 of 1992 has claimed that he is the only candidates belonging to the Scheduled Caste community in the whole of the State and is entitled to be elected to the committee of management on that score which has a reservation of two seats while the reservation of seats has been announced only in respect of Agra and Allahabad Mandal, He has sought a direction that the notification reserving seats in alphabetical order be not given effect to and the petitioner be declared as having been elected against the reserved seats. 9. At the stage of admission Sri V.K.S. Chaudhary learned Advocate General appeared for the State of U.P. in each of these petitions while standing Counsel and Sri S. R. Dwivedi appeared on behalf of some of other opposite parties. We have heard Sri Umesh Chandra, Dr. R. K. Srivastava and Sri Y.S. Lohit learned counsel appearing for the petitioner, and learned counsel appearing on behalf of opposite parties at length and with their consent the petitions are being disposed of finality, to the extent they relate to the common questions. 10. On behalf of petitioners the validity of the amendment to Rule 440 of U. P. Co-operative Societies Rules has been challenged on the ground that it is malafide and has been made only to frustrate the orders of this court and to keep out the persons validly elected as delegates. The other ground of attack was that it was also malafide inasmuch as there was no ambiguity in the provision to be cleared by the explanation which in effect seeks to amend the rule, thereby being colourable exercise of power. 11. The orders issued by the Registrar and the Managing Director of the Bank have also been challenged firstly on the ground that the amendment on which they are based is itself invalid for the aforesaid reasons. 11. The orders issued by the Registrar and the Managing Director of the Bank have also been challenged firstly on the ground that the amendment on which they are based is itself invalid for the aforesaid reasons. Additionally if has been urged that even considering the amendment the election of the delegates held in February, 1990 could not be said to be illegal, the amendment being prospective in its application. It was also urged that even if the amendment is applicable, it does not invalidate the elections already held and, therefore, no elections for the delegates could be required to be held again as directed be the Registrar of the Co-operative Societies. In addition, to meet the aforesaid contentions of the petitioners, on behalf of opposite parties the maintainability of the petition was also questioned on the ground of availability of alternative remedy of an election petition. It was also urged that this court should not interfere with the conduct of elections in exercise of it jurisdiction under Article 226 of the Constitution when a remedy is available under the very Act which has given the alleged right to the petitioners to vote for the election of committee of management. 12. In -respect of this contention about maintainability of the writ petition, the learned counsel for the petitioner urged that an alternative remedy does not bar jurisdiction of this court while, if an effective alternative remedy is available, it may not exercise its discretion to grant relief under Article 226 of the Constitution. It was also urged that the grounds as have been taken in this case could not have been taken in the election petition as could be filed under the provisions of the Co-operative Societies Act and a dispute of the nature involved in this case would also not fall within the statutory adjudication provided for under the aforesaid Act. The third point raised on behalf of the petitioners is that it would not be just in the present case where the only questions raised are those of law and in respect of which detailed arguments have been addressed, to refuse to decide the petition and to force the petitioners to protracted litigation under the Cooperative Societies Act. The third point raised on behalf of the petitioners is that it would not be just in the present case where the only questions raised are those of law and in respect of which detailed arguments have been addressed, to refuse to decide the petition and to force the petitioners to protracted litigation under the Cooperative Societies Act. It was also urged that the nature of the dispute involved in the present case was such that the court ought not to refuse to exercise the discretion on the ground of availability of alternative remedy. It was lastly urged that in this case the reference has to be made to the Registrar and it has to be decided by the Additional Registrar while it is, an order of the Registrar himself which is being questioned in this court, thus there is no effective remedy available. 13. Before entering into the merits of this case, it will be necessary to determine the question of maintainability of the writ petition. 14. The relevant provisions relating to the resolution of election disputes under the U. P. Co-operative Societies Act are as follows "70. 13. Before entering into the merits of this case, it will be necessary to determine the question of maintainability of the writ petition. 14. The relevant provisions relating to the resolution of election disputes under the U. P. Co-operative Societies Act are as follows "70. Disputes which may be referred to arbitration.(1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co-operative society other than a dispute regarding disciplinary action taken against a paid servant if a society arises : (a) among members, past members and persons claiming through members, past members and deceased members ; or (b) between a member, past member or any person claiming through a member, past member or deceased member, and the society, its Committee Management or any officer agent or employee of the society, including any past officer, agent or employee ; or (c) between the society or its Committee and any past Committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heir or legal representative of any deceased officer, deceased agent, or deceased employee of the society ; or (d) between a co-operative society and any other co-operative society or societies ; such dispute shall be referred to the Registrar for action in accordance with the provisions of this Act and the rules and no court shall have jurisdiction to entertain any suit or other proceeding in respect of any such dispute : Provided that a dispute relating to an election under the provisions of this Act or rules made thereunder shall not be referred to the Registrar until after the declaration of the result of such election. (2) For the purpose of sub-section (1), the following shall be deemed to be included in dispute relating to the constitution, management or the business of the co-operative society, namely : (a) claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party ; (b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor as a result of the default of the principal debtor, whether such debt or demand is admitted or not ; (c) a claim by a society for any loss caused to it by a member, officer, agent or employee including past or deceased member, officer, agent or employee, whether individually or collectively and whether such less be admitted or not ; and (d) all matter relating to the objects of the society mentioned in the bye-laws as also those relating to the election of office bearers 71 Reference of dispute to arbitration. On receipt of a reference under sub-section (1) of Section 10, the Registrar may, subject to the provisions of the rules, if any (a) decide the dispute himself, or (b) refer it for decision to an arbitrator appointed by him ; or (c) refer it, if the parties so request in writing for decision to a board of arbitrators consisting of three persons to be appointed in the prescribed manner.' ' 15. Rule 444-C of the U P. Co-operative Societies Rules circumscribes the grounds on which a reference under Section 70 can be made : "444-C. (1) The election in a co-operative society shall not be called in question either by arbitration or otherwise accept on the grounds that (a) the election has not been a fair election by reasons that corrupt practice, bribery or undue influence has extensively prevailed at the election, or (b) The result of the election has been material affected (i) by improper acceptance or re-election of any nomination, or (ii) by improper reception, refusal or rejection of votes, or (iii) by gross failure to comply with the provisions of the Act, Rules and the bye-laws of the society. Explanation.For the purpose of this Rule corrupt practice or bribery or undue influence shall be assigned the same meaning as provided in sub-section (2) of Section 12 (c) of the U. P. Panchayat Raj Act, 1S47. (2) A dispute relating to election shall be referred by the aggrieved party within forty-five days from the date of declaration of the result." 16. Rule 229 (2) of the aforesaid Rules provides for hearing of a dispute by the Additional Registrar of the Co-operative society : "229 (2). Where the dispute relates to the constitution of the committee of management or election of appointment of any office bearer or a delegate of a co-operative society, reference shall (a) in the case of an apex co-operative society, be made to the Additional Registrar dealing with the apex society concerned ; (b) in the case of a co-operative society other than an apex society, be made to the District Magistrate of the district to which the society belongs." 17. In support of his contention that the petition involving an election dispute should not be entertained by this court under Article 226 of the Constitution, reliance has been placed on the case of N.P. Ponnuswami v. The Returning Officer, reported in AIR 1952 SC 64 . In this case the nomination of the petitioner in an election to Madras Legislative Assembly was rejected. The petition filed by him was dismissed as barred by Article 329 (b) of the Constitution. 18. In appeal the Supreme Court upheld the order. It referred to a decision in Wolver Hampton New Water Works Co. v. Hawkesford, (1858) 6 CB (NS) 336 and held as follows : "12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolver Hampton New Water Works Co. v. Hawkesford, (1859) 6 CB (US), 336 at p. 356 in the following passage : "There are three classes of cases in which a liability may be established founded upon statute. This rule was stated with great clarity by Willes, J. in Wolver Hampton New Water Works Co. v. Hawkesford, (1859) 6 CB (US), 336 at p. 356 in the following passage : "There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law, then, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy, there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it........ The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Nevile v. London Express Newspaper Ltd., (1919) AC 368, and has been re-affirmed by the Privy Council in Attorney General of Trinidad and Tabago v. Gordon Grant & Co., 1935 AC 532, and Secretary of State v. Mask & Co., 44 Cal WN 709 ; and it has also been held to be equally applicable to enforcement of rights (see Hurdutrai v. Off. Assignee of Calcutta, 52 Cal WN 343 at p. 349. That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate state. 13. That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate state. 13. It was argued that since the Representation of the People Act was enacted subject to the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution. This argument however is completely shut out by reading the Act along with Article 329 (b). It will be noticed that the language used in that article and in Section 80 of the Act is almost identical, with this difference on by that the article is preceded by the words "notwithstanding anything in this Constitution." I think that those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter which may arise while the elections are in progress." In this case it was held that Article 392 (b) would completely bar the jurisdiction under Article 226 of the Constitution to entertain any writ petition in respect of an election to a Legislative Assembly. 19. Another case relied upon on behalf of opposite parties was Nanhoo Mai and others v. Hira Mai and others, reported in AIR 1975 SC 2140 . In this case election of the President of the Municipal Board was challenged on the ground that there was non-compliance of Rule 6. Relying on the case of JV. P. Ponnuswami (supra), the court in this case also held that the writ petition could not be maintained. It was held that the principle of bar of jurisdiction to not flow entirely out of Article 329 of the Constitution. However, the question whether there may be extra-ordinary circumstances in which the High Court may exercise its power under Article 226 was not found necessary to be determined : "It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U. P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusion follow from the decision of this Court in Ponauswami's case ( AIR 1952 SC 64 ) (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. The once the legal effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under Article 226 of the Constitution. Whether there can be any extra-ordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider. All the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the results of the election are over apply with equal force to elections to local bodies." The learned counsel for opposite party also placed reliance on the case of Mohinder Singh Gill v. Chief Election Commissioner, reported in 1978 SC 851. In this case also the election involved was that of Legislative Assembly. The cancellation of the election by the Chief Election Commissioner was challenged. The court after detailed consideration found the order to be a part of the process of election and thereby held Article 329 (b) to bar the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution. The cancellation of the election by the Chief Election Commissioner was challenged. The court after detailed consideration found the order to be a part of the process of election and thereby held Article 329 (b) to bar the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution. "On the assumption, but leaving the question of the validity of the direction for re-poll open for determination by the Election Tribunal, w e hold that a writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is therefore barred by Article 329 (b). If no i.e.-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case." Another case on which reliance was placed by the opposite parties is S.T. Muthuswami v. K. Natarajan and others, 1988 (1) SCC 572 : AIR 1988 SC 616 . In this case the disputes was related to the allotment of symbol of Congress (I) to one of the candidates for the office of the Chairman of the Panchayat Union. The allotment of symbol was governed by certain rules. Those rules also provided that no election held under the T. N. Panchayats Act could be called in question except by a petition presented under those rules. Relying on the case of N. P. Ponnuswami Nanhoo Mai (supra) and Malam Singh v. Collector Sehore, AIR 1971 M.P. 195 , it was held that writ petition could not have been entertained. The opinion of the Full Bench was accepted by the Supreme Court : "In the ultimate analysis, the Full Bench laid down : There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to local bodies such as, Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election, dispute, if the alternative remedy of an election petition is available. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election, dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal Kotah, stated : ......through no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases. We are inclined to accept this view which lays down a salutary principle." 20. On the question of alternative remedy being a bar to the jurisdiction under Article 226 of the Constitution the learned counsel for the petitioner has placed reliance on the case of Bar Council of Delhi v. Surjeet Singh and others, reported in 1980 SC 1612. Before holding elections for the Bar Council of Delhi the rules were amended in 1978. The advocates were required, to give certain declaration forms. Out of 5,000 and odd advocates the electoral roll contained the names of only 3,000 advocates. The election was challenged mainly on the ground that the rule of eligibility was bad and the consequent election was sought to be quashed. The Supreme Court was of the opinion that as the rules did not cover the challenge of the election on the ground on which it was being challenged and also because the election Tribunal could not have gone into the vires of the rule, the petition was maintainable. "There is no substance in the last submission made on behalf of the appellants. The manner of resolving disputes as to the validity of election is provided for in Rule 34 of the Delhi Bar Council Election Rules. This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid. This is not an appropriate and adequate alternative remedy to defeat the writ petitioner on that account. Firstly, no clause of Rule 34 covers the challenging of the election on the ground it has been done in this case. Secondly, the Election Tribunal will not be competent to declare any provision of the Election Rules ultra vires and invalid. Our attention was specifically drawn lo Clause t8) of Rule 34 which says : "No petition shall lie on the ground that any nomination paper was wrongly rejected or the name of any voter was wrongly included in or omitted from the electoral roll or any error or irregularity which is not of a substantial character." As we have said above, it is not a case where the name of any voter was wrongly omitted from the electoral roll but it is a case here the preparations of the whole electoral roll was null and void because of the invalidity of the impugned proviso." 21. A decision by a Division Bench of this court presided over by Sri R. M. Sahai, J, in the case of Vishwabandhu Gupta v. Returning Officer, 1990 LCD 553 was also relied upon by the learned counsel for the petitioner. In this case this court considered the effect of the decision in the case of N. P. Pannuswami and Nanhoo Mai (Supra) and relying on the case of Gujarat University v. N.N. Raj Guru, ATR 1988 SC 66, it was held that ordinarily statutory remedy must be availed but in exceptional cases the alternative remedy may be by passed. In this case in an election to the post of Chairman, Municipal Board, the nomination of the petitioner had been rejected. This order had been challenged in the writ petition. The court held the writ petition to be maintainable : "Thus there is neither any constitutional bar like the one in Article 329 of the Constitution or absolute bar due to availability of remedy to challenge election under the Act to entertain a petition under Article 226 of the Constitution once the election process of a local body has commenced. Except that the circumstances warranting interference should be extra-ordinary. Except that the circumstances warranting interference should be extra-ordinary. From what has been narrated earlier there can be no doubt that the order being manifestly erroneous resulting in depriving petitioner from contesting the election which is sine qua non of democratic process a situation has arsed in which it is just and proper for this court to interfere in exercise of power under Article 226 of the Constitution. By removing the order such as the impugned one the Court shall not be interfering with election process but enabling it to proceed in accordance with law. Although wrong rejection of a nomination paper or incorrect inclusion is specific ground in clause (b) of Section 43-B of Municipal Act in which election petition can be filed but unlike clause (o) the vitiation of election does not depend on its being materially effected as was the case in Nanhoo Mai's (supra). Since improper rejection of nomination nullifies the election the petitioner cannot be debarred from invoking extraordinary jurisdiction of this Court in view of facts stated above because he has an alternative remedy by way of election petition". In another case Ved Pal Singh v. Ganga Sahkari Vikas Samiti Ltd., Daurala, 1981 UPLBEC 58, the election to the co-operative society was involved. This court found that since the real electors had been kept out of the election while those who participated were not so entitled, it was not an election under the Act and Rules and, therefore, the writ could have beep maintained "This is a case in which there was no election at all since the real electors were kept out from participating in the election and those who did participate were not entitled to participate as delegates. It was an election which the Act and the Rules do not envisage. If respondent No. 2 would have come to this court directly invoking its power, we would have had no difficulty in entertaining the petition and even allowing it irrespective of the fact that Rule 444-C does provide for an election being challenged by means of proceedings under that provision, The instant case, in our judgment, is clearly distinguishable from the facts of the decision that come up for decision before the Supreme Court in Nonhoo Mai and. others v. Him Mai and others, AIR 1975 SC 2140 which overruling, the Full Bench decision of our Court held that. others v. Him Mai and others, AIR 1975 SC 2140 which overruling, the Full Bench decision of our Court held that. "Thus the only way by which the election of a President can be called in question is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above... That was a case where an election was in fact held by those entitled to participate therein." 22. The propositions of law which finally emerge from the aforesaid decisions of the court are, firstly that no part of the process of an election to the state legislative assembly or Parliament may be challenged otherwise than by an election petition. Article 329 of the Constitution puts a blanket ban on the exercise of jurisdiction under Article 226 of the Constitution in such matters as has been held in the case of N. P. Ponnuswaml and Mohinder Singh GUI (supra). 23. In disputes relating to other elections there is no such impediment to the availability of the writ jurisdiction, of the High Court but in deciding whether to exercise its discretion under Article 226 of the Constitution the availability of a remedy by way of an election petition would be one of the important factors to be considered by the court and where such an effective alternative remedy is available, the could may not exercise its jurisdiction under Article 226 of the Constitution. This has been laid down in other cases aforesaid, Nanhoo Mai, N. P. Ponnuswami and others. 24. In case, however, the nature of the dispute is such that the election petition would not be an effective remedy or when there are exceptional circumstances warranting interference by the High Court, the court may in appropriate cases entertain petitions under Article 226 of the Constitution, though merely because the remedy would be available only after the elections are over or more than one petitions may have to be filed, may by themselves be not reasons to entertain the petitions under Article 226. 25. In examining the validity of the objection raised on behalf of respondents to the maintainability of this petition, it is all first have to be seen whether an election petition can at all be filed pressing the grounds which have been raised in this petition. 26. 25. In examining the validity of the objection raised on behalf of respondents to the maintainability of this petition, it is all first have to be seen whether an election petition can at all be filed pressing the grounds which have been raised in this petition. 26. It may be pointed out that under Section 70 reproduced above a reference can be made in respect of a dispute only between the members, past members, the committee of management, the office bearers and the society. It may also be seen that Rule 444-C restricts the maintainability of the reference only on the grounds specified in that rule. 27. The grounds taken in the present case are primarily that the amendment brought about to Rule 440 is bad and that the orders passed by the Registrar of the Co-operative Societies and the Managing Director directing the holding of the elections are also void. 28. Neither of these two grounds can be validly taken in a reference made under Section 70. Such ground would not be covered by any of the clauses in Rule 444-C. 29. The nature of the dispute, therefore, is such as does not afford a remedy under the Co-operative Societies Act. 30. Whenever any legislative instrument is challenged for its validity, the State of U. P. would be a necessary party, Whenever an order passed by a particular authority is challenged for its validity, the authority concerned has to be heard after being made a party. 31. Neither the State Government nor the Registrar can be parties to any reference which may be made under Section 70 of the Co-operative Societies Act. 32. For these reasons no reference as provided for by the U. P. Cooperative Societies Act and Rules made under it could have been maintained by the petitioners in this case nor could the grounds of challenge in this petition be raised even if such a petition were to be maintained. Thus, there is no effective alternative remedy at all available to the petitioners and the very foundation of the contention of the opposite parties does not exist. 33. Even if it be assumed rather that a reference under Section 70 can possibly be maintained, there are certain exceptional circumstances in this case as necessitate a judicial intervention under Article 226 of the Constitution. 33. Even if it be assumed rather that a reference under Section 70 can possibly be maintained, there are certain exceptional circumstances in this case as necessitate a judicial intervention under Article 226 of the Constitution. In the present case the main dispute is whether the petitioners along with others who were elected in the year 1990 constitute the electoral college for the election of the committee of management or whether the Registrar can hold the elections again to constitute a fresh electoral college for the election of the committee of management. The holding of the entire election of the delegates itself has been questioned in the present petition. 34. In case this court refuses to interfere on the ground of alternative remedy being available, and leaves the petitioners and other delegates elected in 1990 to seek their remedy by challenging the election of each one of the delegates which may now be elected. It is likely that some of the persons elected in J.990 may not file election petitions while ones filed by some others may be dismissed on technical grounds. In fact one of the writ petitions filed by one of the delegates elected in the year 1990, being a part of this bunch has been withdrawn on the date of hearing. 35. This would lead to a very anomalous situation. In case the present petitioners succeed in the election petitions the election of those delegates alone, chosen in the year 1992 whose election has been challenged would be set aside and there may be a finding that, instead of those delegates petitioners would be entitled to continue as delegates. In case of other persons against whom no election petitions are filed or against whom petitions are dismissed for some technical reasons, there would be no order as may require them not to vote for the election of the committee of management. 36. It will lead to a very confused situation about the election held in the year 1992 being held invalid in some of the cases while the other delegates elected in that very election continue to effectively function as delegates. 37. In these circumstances, this question can be decided effectively only by a writ petition where the entire election repay be found to be valid or otherwise. 37. In these circumstances, this question can be decided effectively only by a writ petition where the entire election repay be found to be valid or otherwise. Still another exceptional circumstance present in the present case for entertaining these writ petitions is the fact that the order passed by the Registrar himself is under challenge, as the very foundation for the holding of the elections in the year 1992 and as pointed out above, a reference under Section 70 of U. P. Co-operative Societies Act is maintainable only before the Registrar and under Rule 229 (2) quoted above under clause (a), this being an election to an apex Co-operative Society, the Additional Registrar would be trying the petition. Again under Section 79 of the Act as given above the Registrar will have the authority to withdraw the reference and try it himself. Thus the order of the Registrar would be subject to challenge before the Registrar himself or the Additional Registrar This cannot be an effective remedy. See Ram and Shyam Co. v. State of Haryana, 1985 SC 1147. 38. Thus for the aforesaid circumstances, it may not be just to refuse to entertain the writ petition on the ground that there is an alternative remedy available. 39. Still another reason is that it is only the legality of an amendment and the interpretation of a rule which is involved in this case and the parties have been fully beard. In case this petition is decided immediately, it will also not dislocate the elections. The interruption of the election is the main reason for not permitting a petition filed against in intermediate stage of process of election. 40. For these reasons we find that the objection raised on behalf of opposite parties about maintainability of the petition does not have any force. 41. The interruption of the election is the main reason for not permitting a petition filed against in intermediate stage of process of election. 40. For these reasons we find that the objection raised on behalf of opposite parties about maintainability of the petition does not have any force. 41. As given above the petitioners have firstly challenged the amendment by which an explanation has been added to Rule 440 of the Co-operative Societies Rules on the ground firstly that this amendment is mala fide inasmuch as it has been made only with a view to set at naught the election of the petitioners and other delegates elected in the year 1990 and secondly on the ground that it has been made with a view to frustrate the consistent orders of this court to continue the election from the stage at which it was disrupted and is, therefore, colourable exercise of power. 42. It was also urged that even if this rule is validly amended, the amendment cannot affect the elections which have already been held but would only guide the holding of the elections in future. Lastly it was urged that in any case this provision is not mandatory and its non-compliance would not entail the consequence of the election of the delegates held in the year 1990 being rendered void only because the election of the committee of management has not been held within a year of that election. 43. The learned Advocate-General on the other hand gave the reason for incorporating the amendment to avoid the challenge of malafides and colourable exercise of power. According to him since the holding of the last elections about 2.90 lacs of members have been added through out the State and in case the elections had in 1990 are given effect to, the persons who have become members subsequently would be deprived the right to elect a delegate. It has also been urged on behalf of the State that the amendment could not be challenged on the ground of mala fide and also that it being an explanation, it would be retrospective in its application and it also requires the elections to be held only within one year, thereby providing that any elections which have been held more than a year before the holding of the elections of the committee of management would cease to be operative and effective. 44. 44. After having heard learned counsel for both the parties, we find that at this stage, it is not necessary to go into the vires of the rule. The courts do normally avoid the consideration of the vires of a piece of legislative instrument of the matter before them can be determined on other issues. We also propose to determine these petitions on other issues on which they can be effectively determined. 45. Before considering the rule, the scheme of election of the delegates and the committee of management may be considered. 46. It is not disputed that the dank has its primary members throughout the state. It is these delegates belonging to different local areas who elect a delegate each for the general body. The delegates then elect the committee of management, which in turn elects the Chairman, Vice-chairman and the representatives to other Co-operative Societies. 47. There is no term fixed for the delegates once elected. He continues to hold that office until, (i) the body he represents has another delegate in his place, or (ii) he incurs any other disqualification mentioned in Rule 87 ; or (iii) he forfeits his right to hold that office by virtue of the provisions of bye-laws of the Co-operative Society which he represents or in which he has represented. These are the provisions of Rule 89 of the Co-operative Societies Rules, Delegates of Bank do not have Rule 87 applicable to them. 48. The managing committee of the bank has a tenure of three years in accordance with Rule 445 of the aforesaid rules. Rule 440 runs as follows "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 case of marketing societies, block unions and central societies other than referred to in Clauses (e), and (d) and ;,e) of this rule, and of the delegates of individual members to the general body in case of societies having area or 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, 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 therefore, 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. Explanation.For removal of doubts it is hereby clarified that the election of delegates to the general body and Committee of Management, Chairman and Vice-Chairman of any Co-operative Society shall be held in the same year." 49. Rule 440 as given above, provides that the year in which the election of the co-operative society is to be held, the District Magistrate of the district in which the branches of the Bank are situate shall arrange the election of the delegates of members to the general body on the dates specified by the Registrar. 50. Rule 440 as given above, provides that the year in which the election of the co-operative society is to be held, the District Magistrate of the district in which the branches of the Bank are situate shall arrange the election of the delegates of members to the general body on the dates specified by the Registrar. 50. A perusal of this rule would show that when the term of the committee of management is to end, the process of election would be started by electing the delegates to the body of the bank. Once such delegates are elected, they will substitute the delegates which bad been elected earlier in accordance with Rule 89 above according to which the delegates continue to hold the office till the body that they represent elects another set of delegates. This ensures perpetuity of the general body necessary for a body corporate. 51. A perusal of this rule would show that the period of one year has been specified only with a view to indicate the time for starting the process of election by election of delegates. This part of rule merely indicates that the time of the election of the committee of management has to be projected and accordingly the election of the delegates has to be held within that year. 52. To this rule the amendment has now been added by way of explanation. This explanation even if lawfully made states that the election of the delegates to the general body and committee of management, Chairman and Vice-Chairman of any co-operative society shall be held in the same year. This explanation merely emphasises that the elections of the delegates should be held in the same year in which the elections of the committee of management and the office-bearers are to be held. No consequences for default are however provided. 53. Neither the main rule nor this explanation can be read to mean that in case the election is not held within a year of the election of delegates, the election of the delegates shall stand invalidated. Had it been the intention of the legislature to mandate the elections to be completed within one year failing which the delegates were not to continue to be the delegates, it could have specifically so provided Such an interpretation would also be against the provisions contained in Rule 89. Had it been the intention of the legislature to mandate the elections to be completed within one year failing which the delegates were not to continue to be the delegates, it could have specifically so provided Such an interpretation would also be against the provisions contained in Rule 89. According to it the delegates continue to hold the office till other delegates are elected in their place. The substituted delegates have to be elected in terms of Rule 440, as the first stage of election of committee of management, within that year. Once the delegates have been elected under Rule 440, this explanation would not provide sufficient reason for re-election. 54. Where-ever a direction is given to an officer or an authority to perform a duty within a specific time, such a direction is always directory and cannot affect the rights of the persons who have no control over the compliance of that direction. 55. This proposition was enunciated in the case of Montreal Street Railway Company v. Normandin, AIR 1917 Privy Council, 142. Relying on Maxwell on Statutes it was held : "When the provisions of a statute relate to the performance of a public duty, and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." In the case of R.V. Urbanowski, 1976 (1) All England Law Reports, 679, the law provided a time limit for the trial to begin while the trial in that specific case had begun much later. It was held that the provision being addressed to the court and its officers was directory and not mandatory. 56. In the case of Remington Rand of India Ltd v. The Workmen, AIR 1968 SC 224 an award which was required to be published within thirty days was not published by the Government and it was urged that the award had become void because of non-publication. It was held that this provision was merely directory and the violation did not invalidate the award. "Mr. It was held that this provision was merely directory and the violation did not invalidate the award. "Mr. Gokhale also referred us to the case of State of Uttar Pradesh v. Babu Ram Upadhya, (1961) 2 SCR 879 at p 710 : AIR 1961 SC 751 at 765 where there is an elaborate discussion as to whether the use of the word "shall" in a statute made the provision mandatory. It was observed by Subbarao, J. (as he then was) speaking for the majority of the Court that : "For ascertaining the real intention of the Legislature the Court may consider inter alia, the nature and the design of the statute, and the consequences which would follow from construing it one way or the other, the impact of other provisions where by the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that for therefrom, and, above all, whether the object of the legislation will be defeated or furthered." Keeping the above principles in mind, we cannot but hold that a provision as to time in Section 17 (1) is merely directory and not mandatory. Section 17 (1) makes it obligatory on the Government to publish the award. The limit of time has been fixed as showing that the publication of the award ought not to be held up. But the fixation of the period of 30 days mentioned therein does not mean that the publication beyond that time will render the award invalid. It is not difficult to think of circumstances when the publication of the award within thirty days may not be possible. For instance, there may be a strike in the press or there may be any other good and sufficient cause by reason of which the publication could not be made within thirty days. If we were to hold that the award would therefore be rendered invalid, it would be attaching undue importance to a provision not in the mind of the legislature. It is well known that it very often takes a long period of time for the reference to be concluded and the award to be made. If we were to hold that the award would therefore be rendered invalid, it would be attaching undue importance to a provision not in the mind of the legislature. It is well known that it very often takes a long period of time for the reference to be concluded and the award to be made. If the award becomes invalid merely on the ground of publication after thirty days, it might entail a fresh reference with needless harassment to the parties. The non-publication of the award within the period of thirty days does not entail any penalty and this is another consideration which has to be kept in mind. What was said in the earlier passage from the judgment in (1964) 2 SCR 448 : AIR 1964 SC 160 (supra) merely shows that it was not open to Government to withhold publication but this Court never meant, to lay down that the period of time fixed for publication was mandatory." Considering this case it is absolutely clear that the explanation even if totally valid cannot in any case be interpreted to mean that the election which have been held but in pursuance of which elections to the committee of management could not be held would be rendered invalid by the operation of this explanation It does not further the purpose of the Act, and no consequences are provided. 57. The reasoning given above show clearly that such directions are merely directory and not mandatory and cannot retroactively invalidate the elections already held. 58. There is still another reason for this provision being so held to be directory. In case it can be attributed to have the potential of rendering the elections held to be invalid, on the subsequent elections not being held within one year of the election of delegates, it will provide a lever to the authorities to go on holding the elections of delegates successively till they find a set of delegates the hue of which is to their liking, to proceed to get the committee of management elected. It would be frustrate of the very spirit of co-operation and democratic principles This court in implementing the laws with a purpose would not interpret them so as to destroy the very fabric to sustain which they have been enacted, 59. It would be frustrate of the very spirit of co-operation and democratic principles This court in implementing the laws with a purpose would not interpret them so as to destroy the very fabric to sustain which they have been enacted, 59. As a result of this discussion find that the adding of the explanation does not in any way invalidate the elections of the delegates which had been held in the year 1990. They continue to be the delegates and do constitute the electoral college competent to elect the committee of management. The power under Rule 440 cannot be successfully used to elect delegates after delegates without the delegates having been elected completing the process of election by electing the committee of management and subsequently the office-bearers and also representatives being elected. 60. Another submission made on behalf of the State is that the Registrar has been empowered to hold elections under Section 29 (3) of the U. P. Co-operative Societies Act, and Rule 440 of the Co-operatives Societies Rules, and that it is for him to hold the election whenever he finds it necessary. On elections of the delegates being so held, it was urged, the existing delegates would cease to act and stand replaced by the newly elected delegates, in terms of Rule 89 of aforesaid rules. 61. Though, it was said, in this case the elections were held because since the last elections in 1990, there has been an increase in membership by 29 lacs which members would have been deprived of the right to vote if elections had not been held. 62. This stance of the executive to snatch the power out of context and claiming to be wiser than the law to substitute self structured alibis for the statutory hedges is the bane of the functioning of our democratic system. In a rule of law polity there is no unbridled power. Each power, in fact a duty, is contextual. It can be operated only when the circumstances explicitly provided or necessarily implied exist. Even when there is total absence of statutory hedges around the power, the exercise of the power cannot be at variance with the provisions and scheme of the Act providing for the power and has to be guided by reasons relevant to its purpose, 63. It can be operated only when the circumstances explicitly provided or necessarily implied exist. Even when there is total absence of statutory hedges around the power, the exercise of the power cannot be at variance with the provisions and scheme of the Act providing for the power and has to be guided by reasons relevant to its purpose, 63. In the present case a reading of Rule 440 with Rule 445 will show that a Committee of Management works for three years. When elections are due again, the elections of the delegates are to be held within one year of the protected time of elections, to reconstitute the general body of the society. 64. The explanation merely emphasises the duty of the authorities concerned to complete the elections within one one year, and holding of repeat elections of delegates before the term of the Committee that they have elected is due to expire at which time the entire set of provisions contained in Pule 440 start being operative. 65. II is this scheme which has to be seen and taken into account, to exercise the so-called power by the Registrar. He cannot innovate reasons however high sounding, if they are not relevant to exercise of power, when the statute spelling out the power clearly gives the set of circumstances in which it is to be exercised. Addition of member, cannot supply a provocation to the Registrar to hold elections again. 66. Shorn of the exquisite forensic packaging, this argument rendered in plain English would mean that if the Registrar in disregard of this duty neglects or intentionally omits to complete the elections within one year after the election of the delegates, he acquires a further liberty to hold the elections at any time and can repeat this exercise any number of times, instead of being held responsible for dereliction. 67. This situation is not phantasmal It is what actually happened in this case. No explanation was even attempted for not holding the elections of the Committee of Management after February. 1990 till date, excepting for one postponement. When the courts insisted this explanation was added, exercising the delegated legislative power and an immunity from a reinforced duty is being claimed at the cost of the rights of the persons who stand validly elected and were no party to the omission. 1990 till date, excepting for one postponement. When the courts insisted this explanation was added, exercising the delegated legislative power and an immunity from a reinforced duty is being claimed at the cost of the rights of the persons who stand validly elected and were no party to the omission. Sins of the authorities cannot visit the delegates duly elected, This argument is not tenable. 68. To sum up, we find that there is no effective alternative remedy available to the petitioners, and that there are exceptional circumstances present in this case and so the petitions cannot be thrown out on the ground of availability of an alternative remedy of a reference. 69. The explanation added to Rule 440 (1) does not either render the election of delegates held void, nor does it empower the Registrar to hold and repeat elections in the circumstances in which they were held in this case. 70. The delegates, who were elected in 1990 continue to hold the office and constitute the electoral college for the election of the Committee of Management 71 It may be pointed out that by a full Bench decision this court, in writ petition No. 1017 of 1990 directed the opposite parties to continue the elections from the stage at which they were disrupted. It was specifically found that the election process cannot be started denovo. Subsequently also directions were issued to the opposite parties to complete the elections in writ petition No 34272 of 1991 and modified at the instance of the Registrar. 72. We have no reason but to reiterate these directions. 73. As a result, of above, the orders passed by the Registrar and the Managing Director on 13-1-i992 and 15-1-1992 respectively are bad in law and hereby quashed. The election of the delegates held in pursuance of these orders also lacks in legality. The opposite parties shall now proceed to get the Committee of management of the bank and all the office-bearers and representatives elected according to law. The delegates elected in the year 1990 who continue to be the delegates shall constitute the electoral college for the election of the Committee of Management. These elections shall be completed by 24th February, 1992 as directed. The petitions excepting writ petition No. 343 of 1992 shall stand disposed of accordingly. The costs shall be easy. The delegates elected in the year 1990 who continue to be the delegates shall constitute the electoral college for the election of the Committee of Management. These elections shall be completed by 24th February, 1992 as directed. The petitions excepting writ petition No. 343 of 1992 shall stand disposed of accordingly. The costs shall be easy. The writ petition No. 343 of 1992 shall be put up separately for orders. 74. Let a copy of this order be given to the Standing Counsel today for necessary compliance by the Registrar.