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2005 DIGILAW 52 (UTT)

Krishi Yantra Vipran Sehkari Samiti Ltd. , Roorkee v. Registrar, Co-operative Societies, Uttaranchal

2005-02-24

PRAFULLA C.PANT, V.S.SIRPURKAR

body2005
JUDGMENT 1. Heard Mr. Alok Singh, Senior Advocate assisted by Mr. B.S. Bisht, Advocate appearing for the petitioners and Mr. K.P. Upadhyaya, Standing Counsel for the State. 2. This writ petition is on behalf of the four petitioners, first of whom, is a Co-operative Society called Krishi Yantra Vipran Sehkari Samiti Ltd., Roorkee. The other three Writ petitioners c1ained to be the elected members from that Society, itself, for taking part and voting in the election of the Apex Society, namely, Thok Kendriya Upbhokta Sehkari Bhandar Ltd., Devpura, Haridwar through its Secretary. The said petitioner No.1, Co-operative Society, was registered under the U.P. Co-operative Societies Act, 1965 having being registered on 30-10-2000 in erstwhile State of Uttar Pradesh. It was registered as per the U.P. Co-operative Societies Act, 1965 and was registered in division Saharanpur. 3. On 09-11-2000 the State of Uttaranchal came in to being. This Society; which was operating at Roorkee, which was a part of the Saharanpur Division; was included in the newly created State of Uttaranchal and that is how, ordinarily, all the Societies operating in the area of Roorkee became the Co-operative Societies in Uttaranchal, particularly, because of the provisions of Section 129 of Uttaranchal Co-operative Societies Act, 2003. The fact that this Society was operating and was recognised as such by the Uttaranchal authorities would be clear from the fact that earlier the District Magistrate, Haridwar had held the elections of this Society whereby, the petitioner Nos. 2, 3 and 4 were elected as its representatives or delegates, as the case may be, to take part in the election of the Apex Society. It is also seen that there is a communication on record dated 13th December, 2004, whereby the District Assistant Registrar of the Co-operative Societies, Haridwar had, by the communication of even date, directed the petitioner No. 1 Society, to deposit the election dues with that office. So also, it seems from the record before us that this Co-operative Society had paid the amount of Rs. 3,600/towards those dues and had deposited the same in District Co-operative Bank, Haridwar at Roorkee on 22-12-2004. This was done under the intimation to the said authority dated 22-12-2004, a copy of which is available on record. So also, it seems from the record before us that this Co-operative Society had paid the amount of Rs. 3,600/towards those dues and had deposited the same in District Co-operative Bank, Haridwar at Roorkee on 22-12-2004. This was done under the intimation to the said authority dated 22-12-2004, a copy of which is available on record. It seems that earlier there was a Notification dated 19-10-2004 regarding the provisional constituencies, wherein the name of the petitioner No. 1 Society, appeared along with its total number of members and Directors. 4. A further notification was issued on 05-11-2004 for the elections of the different Societies including the petitioner No. 1 Society, for which one Shri Satyapal Singh Chauhan, A.D.O., Social Welfare Development Block, Narsan was appointed as an Election Officer and the programme of election was also got published wherein, the petitioner NO.1 Society, was shown at serial No. 21. This was an election programme for the election of the managing body of the petitioner No.1 Society. It is, then, asserted in the writ petition that on 05-11-2004, one Shri Vinod Kumar was elected as Chairman and Shri Anand Goyal was elected as Vice Chairman and petitioner Nos. 2, 3 and 4 were elected as delegates for the Thok Kendriya Upbhokta Sehkari Bhandar Ltd., Haridwar. This election was held on 22-11-2004 and 23-11-2004 and it is the case of the petitioners that likewise the elections were held in number of such primary Societies. 5. We have already made a reference to the letter dated 13-12-2004, whereby the respondent No. 2 had directed the petitioner No. 1 to deposit the entire fee collected along with the nomination papers for the election of petitioner No.1 and that the said amount of Rs. 3,600/- was deposited. It seems, thereafter, one Notification came to be published for the election programme and by the Notification dated 19-01-2005 the interim voters' list was published and the objections, if any, were invited on 21-01-2005 and the final voters' list was to be published on 22-01-2005, whereas the election was to be held on 03-02-2005. It seems that the names of petitioner Nos. It seems that the names of petitioner Nos. 2, 3 and 4 were to be found at serial numbers 9, 10 and 11 in the interim voters' list and since no objections were taken to their names, their names also appeared in the final voters' list published on 22-01-2005 at serial numbers 9, 10 and 11. It is, here, that the things took a different turn, in as much as, suddenly the elections were postponed by the Election Officer. The petitioner No.1 waited and filed its protest before the respondent No. 3 by a communication dated 03-02-2005 wherein, a complaint was made of the high handed action on the part of the Election Officer to postpone or, as the case may be, to suspend the further election programme. It was alleged by the petitioner No.1 that this was done under the political pressure. 6. It seems that, thereafter, a fresh election programme came to be published on 13-02-2005, wherein, the same elections were declared and this time, the interim voters' list was to be published on 11-02-2005 and the final voters' list was to be published on 15-02-2005. The nominations were to be made on 17-02-2005 and ultimately, the elections were to be held on 24-022005. The petitioners, further, point out that this election programme was in complete breach of Rule 451 of Uttaranchal Co-operative Societies Rules, 2004 (hereinafter referred to as the Rules), which provides that the Election Officer should give minimum 15 days' notice from the date of poll and the said notice should be published in the local newspapers before 15 days of the actual poll. Since the actual poll was to be held on 24-02-2005 and 25-02-2005, it was incumbent upon the Election Officer to publish this programme at least clear 15 days prior to holding of the poll and, thus, the election programme was bound to be published on 9th or 10th of February, 2005, which was not done and instead, an election programme was published in a local newspaper on 13-02-2005. It seems that the petitioners, who were taken aback by this abrupt declaration of election programme without even deciding their objections dated 03-02-2005, however, managed to see the interim voters' list, in which the names of petitioner Nos. 2, 3 and 4 were absent. It seems that the petitioners, who were taken aback by this abrupt declaration of election programme without even deciding their objections dated 03-02-2005, however, managed to see the interim voters' list, in which the names of petitioner Nos. 2, 3 and 4 were absent. It seems that the final voters' list was, then published on 15-02-2005, wherein the petitioners' names were also absent, though an objection was submitted on 14-02-2005 to the interim voters' list wherein the names of the petitioner Nos. 2, 3 and 4 were missing. 7. It is, therefore, that the petitioners have rushed to this Court with a writ petition suggesting that all this is with an object of keeping some Co-operative Societies out of the election process, obviously with political objectives. The learned senior counsel, Shri Alok Singh, therefore, raises two contentions before us. He, firstly, suggests that there is absolutely no justification in exclusion of the petitioner No. 1 and consequently, the names of petitioner Nos. 2, 3 and 4 from the electioneering process. He points out that the elections of the petitioner No. 1 Society, were held under the supervision of an officer appointed by the District Magistrate, Haridwar and elections to the managing body as well as the elections of the petitioner Nos. 2, 3 and 4 have not been, in any manner, challenged nor have they been rendered non est by any authority or by any order. He, therefore, submits that there would be no question of the petitioner No. 1 being kept out of the electioneering area and its representatives being deprived of their right to vote, or as the case may be, to contest the elections. In support of its contention, the learned counsel further points out that the whole attitude on the part of the respondents has been inexplicable in as much as there is absolutely no reason as to why the earlier election programme, wherein the names of the petitioner Nos. 2, 3 and 4 were included in the voters' list, has been suspended, or as the case may be, cancelled. He points out that the objection to this high handed action on the part of the respondents has also not been decided, though it has been filed as early as on 03-02-2005. 2, 3 and 4 were included in the voters' list, has been suspended, or as the case may be, cancelled. He points out that the objection to this high handed action on the part of the respondents has also not been decided, though it has been filed as early as on 03-02-2005. He, therefore, suggests that this election is nothing but a mockery of the whole democratic process and, therefore, this election programme is liable to be set aside. 8. By way of his second contention, the petitioners contend that even if everything is granted in favour of the respondents, the mandatory provision of Rule 451 of the Rules has been breached. He points out that the spirit of Rule 451 of the Rules is mandatory, in as much as it gives an opportunity to the members and to the voters for : (i) taking part in the election process (ii) contesting the election or (iii) raising the objections to the others. 9. He points out that by publishing the elections programme late by three days, or as the case may be, four days, this mandatory Rule has been breached and, therefore, also the election programme is liable to be cancelled or set aside. 10. As against this, the learned Government pleader heavily relies on Rule 457. According to Shri K.P. Upadhyaya, Standing Counsel the election process had already started on 13-02-2005 and, therefore, under the settled law, this Court would not be justified in interfering with the election process, once the election programme had started. The alternative argument of Shri Upadhyaya, Standing Counsel is that even if the petitioners feel aggrieved by all these so called illegalities, the petitioners would have a statutory remedy or an election petition as provided under Rule 457 of the Rules. Shri Upadhyaya had also suggested relying on Rule 459 of the Rules that an Election Officer has the authority and the power to suspend or to postpone the election or even to cancel the election programme at any time as per his discretion. He says that, therefore, the Election Officer was not at fault and was within his powers when he cancelled, or as the case may be, suspended the earlier programme. He says that, therefore, the Election Officer was not at fault and was within his powers when he cancelled, or as the case may be, suspended the earlier programme. He, therefore, suggests that the Court should not interfere in its extra ordinary original jurisdiction under Article 226 of the Constitution of India at this stage because it is the settled law that the High Court does not exercise its power under Article 226 once the election programme has commenced. 11. As regards the first contention raised by the learned senior counsel, Shri Alok Singh, it will have to be seen as to whether this Society exists on the registers of the Uttaranchal State and more particularly, on the register maintained by the District Assistant Registrar of the Co-operative Societies because during the debate Shri Upadhyaya, also, feebly tried to say that the name of this Society did not appear on the registers of the District Assistant Registrar of the Co-operative Societies and that was the reason why the names of the petitioner Nos. 2, 3 and 4 were deleted from the interim voter's list as well as the final list of the voters. 12. We really fail to understand the rationale behind the Government action. It is really a matter of great surprise that a Society, which existed till the second week of December should have suddenly become non est or should have vanished from the registers of the District Assistant Registrar of the Co-operative Societies. We have already referred to the fact that the elections of this primary Society were held by the order of the District Magistrate. The District Magistrate had nominated an Election Officer for this Society and he conducted all the elections and declared certain persons elected as office bearers of the Society as also the delegates of the primary Society. 13. Now, what completely beats us is the towering ignorance on the part of the Societies regarding the provisions of Section 129 of the Uttaranchal Cooperative Societies Act, 2003. Under that provision it is clear that every Society, which was registered under the erstwhile State of Uttar Pradesh and particularly, in the area, which fell ultimately to the State of Uttaranchal, that registration would be deemed to be continued. Under that provision, the registration of the concerned petitioner No.1 Society, was obviously deemed to be continued. Under that provision it is clear that every Society, which was registered under the erstwhile State of Uttar Pradesh and particularly, in the area, which fell ultimately to the State of Uttaranchal, that registration would be deemed to be continued. Under that provision, the registration of the concerned petitioner No.1 Society, was obviously deemed to be continued. The only caveat was that after coming in to effect, the Uttaranchal Co-operative Societies Act, 2003, such Society was bound to again hold the election within one year and elect its new managing committee. The learned senior counsel appearing on behalf of the petitioners points out that even those elections were held within one year. 14. What completely beats us is as to how all of a sudden the election authorities came to realize that the name of the Society was not in the register of the District Assistant Registrar of the Co-operative Societies when that very office had fired notice at the petitioner No. 1 to deposit the election dues and had dealt with the same or interacted with the same by naming the representative as an Election Officer. This, of course, was done by the District Magistrate, but we are sure that the District Magistrate must have done it under the instructions of the District Assistant Registrar of the Co-operative Societies. Once we see all these documents, it is really difficult for us to contribute to or agree with the Government's view that the name of the Society was not in the registers or that it did not exist or that it become non est just because the State of Uttar Pradesh was divided and the State of Uttaranchal was carved out of it. We, however, express our deep anguish at the way the things were done In, firstly, publishing an election programme, in including the name of the petitioner Nos. 2, 3 and 4 and then suddenly taking a decision of suspending the election programme, or as the case may be, cancelling the same and thereafter excluding the names of petitioner Nos. 2, 3 and 4 from the list of voters. All this appears to be extremely high handed. 15. Therefore, we must accept the contention of the petitioners that the petitioners are deliberately kept away from the fray of the elections and that everything was done in an illegal manner. 16. 2, 3 and 4 from the list of voters. All this appears to be extremely high handed. 15. Therefore, we must accept the contention of the petitioners that the petitioners are deliberately kept away from the fray of the elections and that everything was done in an illegal manner. 16. However, the question would still be as to whether we should, at this stage, tinker with or interfere with the election programme because it is, indeed, a settled law that the High Court doesn't interfere in its jurisdiction under Article 226 of the Constitution of India once the election programme has commenced. The election programme, indeed, has commenced. However, there is one caveat to all this. Once the High Court comes to the conclusion that the election programme was not a bonafide programme at all and was full with illegalities so that the general public was deprived of its right because of that election programme, there would be nothing in the way of the High Court from interfering with the election programme. What we see here is the patent illegality in breaching the mandatory provision of Rule 451 of the Rules, wherein 15 days clear notice was required. If we take this thing lightly then a day might come when the electing authorities may not provide any notice to anybody at all and we cannot visualise of that situation. 17. We find, particularly, because of the factual background that such hurried declaration of election programme and the unhealthy haste with which it was being carried out, speaks volumes against the bonafides of the authorities. We would not go beyond this. However, we find that in' this particular case, the election has been reduced to a mockery. Therefore, we are constrained to interfere in our extra ordinary original jurisdiction under Article 226 of the Constitution of India. 18. We, therefore, allow this writ petition, set aside the whole election programme and direct the authorities to hold the election programme do novo in the light of the observations made by us above.