MARKANDEY CHAND v. CANE COMMISSIONER — 1995 DIGILAW 212 (ALL)

R. A. SHARMA, J. ( 1 ) PETITIONERS, who are members of a co-operative society, known as Dhuriyapar Kisan Sahkari Chini Mills Ltd. Karpur Gajpur, gorakhpur (hereinafier referred to an the Society) and have been elected as members of its Committee of Management, have filed this writ petition for writ of mandamus directing the respondents to conduct the election of the vice Chanman of the sociesy in accordance with Co-operative Societies Act and rules framed theunderr (hereinafter referred to as the Act and the Rules respectively ). Fuurtr prayer diecung the respondents not to postpone the election of Vice Chanman any more, has also been made. ( 2 ) RESPONDENTS have filed counter-affidavits and the petitioners have filed rejoinder-affidavits in reply thereto. We have heard learned counsel for the petitioners, learned counsel tor respondent Nos. 2, 3 and 4 and the learned standing Counsel. ( 3 ) IN view of provisions of sub-section (3) of Section 29 of the Act management of a co-operative society vests in its Committee of Management, elected and constituted in accordance with the Act, Rules and the Bye-laws; superintendence, directions, control and conduct of election of the members, chairman and Vice Chairman of the Committee of Management of those co-operative societies which have been notified under the proviso to sub-section (3) of Section 29 vest in the Registrar, The said proviso is reproduced below :"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 Registrar and such selection may be held otherwise than in any meeting notwithstanding anything contained in clause (b) of Section 32. " ( 4 ) SOCIETY is one of those societies which have been notified under the above proviso with the result that superindence, direction, control and cocduct of elections of members and Chairman and Vice Chairman of its committee of Management vest in the Registrar. Under sub-rule (1) of rule 439, the District Magistrate of the district in which headquarter of the society is situate, is to "take steps to hold election on the appointed date". Under sul-rule (2 ). Under sub-rule (1) of rule 439, the District Magistrate of the district in which headquarter of the society is situate, is to "take steps to hold election on the appointed date". Under sul-rule (2 ). the Registrnr has to fix a date for "holding the election," and the District Magistrate concerned shall on such date being so fixed"appoint bv order, one or more election officers" for holding the election and as enjoined by sub-rule (1), the District Magistrate and the Election Officer have to hold the election on the date so appointed by the Registrar Rule 440 requires the District Magisfrae to arrange the holding of the election of the co-operative societies, "subject to the order of the Registrar. " ( 5 ) IN exercise of the power conferred on him under the proviso to subsection (3) of Section 29 and sub-rule (2) of Rule 439, the Registrar Cane commissioner, vide order dated 2-11-1994 directed for holding of the election of the Committee of Management of the society and its Vice Chairman upto november 30, 1994. Respondent No. 3 who was appointed as Election officer by the District Magistrate, notified the election programme under rule 441 for electing members of the Committee of Management and its Vice chairman, As the Chairman of the society was not to be elected in view of the legislative amendment, no date was fixed for electing Chairman, accoidnig to this programme 29-11-1994 was the date fixed for election of the members of the Committee of Management and 30-11-1994 was the date for eltction of the Vice-Chainman. As per programme, election of the members of the Committee of Management was held on 29-11-1994, but the election fixed lor 30-11-1994 for Vice Chanman was cancelled by the Election Officer on the ground that no election of the Chairman has to be held in view of an order ot the Cane Commissioner Registrar. On 30-11-1994, the election of chainman was not fixed. What was fixed on that date, was the election of the Vice Chairman and there was no order from the Registrar or any other authorily for cancelling or postponing the election of the Vice Chairman. Ihe Election Officer cancelled the election without any justification. ( 6 ) PETITIONERS thereafter made representation to the Registrar Cane commissioner, against cancelling, the election of the Vice Chairman. Ihe Election Officer cancelled the election without any justification. ( 6 ) PETITIONERS thereafter made representation to the Registrar Cane commissioner, against cancelling, the election of the Vice Chairman. The registrar, vide order dated 9-12-1994 directed the District Magistrate to complete the election of the Vice Chairman till 18-12-1994 In pursuance of the above directions of the Registrar, the District Cane Officer, Gorakpur, also, vide letter doted 11-12-1994, required the election to be held in accodance with the above letfer of the Registrar dated 9 12-1994. The Flection Officer thereafter fixed 15-12-1994 as the date for holding the election, but the election was not held and was postponed to 18-12-1994. Again a notice was publihed by the election officer on 8-12-1994 postponing the election Again there was no justification for postponing the election The Election Officer informed the Registrar that he has postponed the election at the instance of the District Magistrate The Registrar. therefore, again directed the District magistrate to hold the election of the the Vice Chairman and the delegates till 23-12-1994. The E!ec! on Officer although held the election of delegates on 2-12-1994, but the election of the Vice Chairman was again not held. Thereupon then Directors of the society made representation to the Deputy cane Commissioner for holding the election of the Vice Chairman, Deputy cane Commissioner, vide letter dated 31-12-1994 directed the respondent No. 4 to hold the election before 31-12-1994 Thereupon 4-l-1995 was fixed for election of Vice Chairman Again on 3-1-1995. the Election Officer passed an order postponing the election on the ground that he is having pain in his chest If there was pain in the chest, instead of cancelling the election he should have requested the District Magistrate to appoint another Election officer in his place, but he did not do so Petitioners thereafter filed this writ petition before this court tor writ of mandamus directing the respondents to hold the election of the Vice Chairman This Court vide order dated 3-1-1995 issued an interim mandamus directing the respondents to hold election of Vice chairman within two wewks from the date a certified copy of the order is served, or show-cause by filing counter-affidavit within the same period. Certified copy of this order was served on the respondents, in pursuance of which the Registrar Cane Commissioner, in exercise of its power under subsection (8) of Section 29 and Kules 439 to 444, directed the District Magitrate to hold the election before 5 2-1995 The Election Officer, however, fixed the elfciion on 5-2-l994. But he again postponed it vide order dated 4-2-1995 till further order. ( 7 ) FROM persual of the pleadings of the parties, some of which have been narrated above, and the facts and circumstances of the case, it is quite clear that the District Magistrate and the Election Officer right from the beginning did not hold the election of tbe Vice Chairman without any plausible justification The Act and the Rules framed thereunder vest superintendance. direction, control and conduct of election of the members and Vice Chairman of the Committee of Management, in the Registrar The registrar under Rule 439 has to fix a date for holding the election and the district Magistrate is bound to hold tbe election on the date or dates so fixed and it is not open to the District Magistrate or the Election Officer not to hold the election on those dates. Act and the Kules do not confer any such power on them. ( 8 ) IN this connection, a plea has been raised on behalf of tbe respondents that whatever mav be the position earlier, election fixed for 5-2-1995 was postponed due to fax message received on 2-2-1995 from Secretary of the government of U P. requiring the District Magistrate for taking up the election matter after the pending representations have been decided. In this connection, in para 9 of the counter-affidavit filed by respondenr No 4 it has been stated that as the election of the petitioners to the Committee of management is under challenge before Arbitrator, no election of the Vice chairman could take place as per letter of the Cane Commissioner/registrar, has not been placed before this Court. In fact, during the course of argument learned counsel for the respondents could only point out to the Fax message of the Government referred to above, on the basis of which the election fixed for 5-2-1995 was postponed. It is clear that there was no letter of the registrar for postponing the election of 5-2-1995. In fact, during the course of argument learned counsel for the respondents could only point out to the Fax message of the Government referred to above, on the basis of which the election fixed for 5-2-1995 was postponed. It is clear that there was no letter of the registrar for postponing the election of 5-2-1995. Election of Vice Chairman cannot be postponed or cancelled on the ground that some representarioos are pending. ( 9 ) UNDER the Act and the Rules, the only competent authority, who is entitled to issue direction regarding election of the Committee of Management, is the Registrar Cane Commissioner and the District Magistrate and the election Officer are bound by this orders and directions. No proviso of law under which the Government can direct postponement of the election of the co-operative society, has been placed before us The Government does not come in the picture at all in the malter relating to the election of the co-operative society. If a person or an authority exercises statutory powers in defiance of the statutory provisions at the instance of the Government, it is that person or the authority who will be responsible for illegal action and they cannot seek protection under the Government order. That apart, law does not contemplate interference with the election process at the intermediate stage by any authority. The election process once started has to he taken to the logical conclusion and if any person is aggrieved by the result of the election, it is open to him to chellenge it before arbitrator under the Act and the Rules framed thereunder. ( 10 ) IT is apparent that the District Magistrate and the Election Officer have nut only flouted the directions and the orders issued by the Registrar from time to time, but have also acted contrary to the provisions of the Act and the rules. Although they are bound to hold the election on the date by the Registrar and have no jmisdiction to post pons or cancel it, but they have done so without regard to the statutory provisions. They have done what they could not have done under the law. Petitioners have stated in their writ petition that the District Magistrate was not holding the election of the Vice Chairman deliberately and in this connetion he has already written a letter dated 8-7-1994 for not holding the election of the society. They have done what they could not have done under the law. Petitioners have stated in their writ petition that the District Magistrate was not holding the election of the Vice Chairman deliberately and in this connetion he has already written a letter dated 8-7-1994 for not holding the election of the society. Inspite of his letter, the Registrar issued order for holding the election, but his orders have been flouted. It has been stated that as the District magistrate was appointed under Section 29 of the Act Administrator of the Sugar mill of the society, his whole at tempt was not to hold the election and continue as Administrator/chairman without any interference and control of the Committee of Management. ln this connection, the allegation of mala fide/oblique motive against the District Magistrate are contained in paragraphs 17 to 20 of the writ petition. The District Magistrate himself has not filed any counter-affidavit, although he has been impleaded as respondent No. 2 and another person named Sri Avadhesh Tripathi has filed counter-affidavit on his behalf. Mr. Tripathi is the C. D. O of the Sugar Mill of the society of which the District magistrate is the Administrator. The allegations of mala fide made against the District Magistrate in the writ petition have not been rebutted by him. ( 11 ) WE do not rind any justification for not holding the election of the vice Chairman. The actions of the District Magistrate and the Election officer in postponing and cancelling the election of the Vice Chairman from time to time, are absolutely without jurisdiction. ( 12 ) THIS writ petition is accordingly allowed with costs. Respondent nos. 2 and 3 are directed to hold the election of Vice Chairman of the society within a period of ten days from the date of presenation of certified copy of this order before them. ID view of the facts and circumstances of the case, it is a fit case where soecul cost be awarded, whicii we assesed at Rs. 10. 000/- (Runces ten thousaad), half of which shall be paid by the District Magistrate and the remaining half by the Election Officer, to the petitioners within a period of one month from the date of presentation of certified, copy of this judgment before them. Petition allowed. .