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2010 DIGILAW 2677 (ALL)

ASHRAF ALI v. U. P. CORPERATIVE TRIBUNAL LKO.

2010-09-01

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Heard counsel for the parties. The elections of the office bearers of the Kisan Sewa Sahkari Samiti, Baseda, District Muzaffarnagar were held on 9.7.2009. These elections were upset by the Up-Ziladhikari,S adar, Muzaffarnagar on a reference being made under Section 71 read with Rule 230 clause (2) of the U.P. Cooperative Societies Act, 1965 and Rules framed thereunder only on the ground that before finalising the electoral college for the purpose, appropriate decision with Section 20(aaa) of the U.P. Cooperative Societies Act, 1965 had not been taken. According to the authority concerned in absence of exclusion of persons from electoral college as required under Section 20(aaa)of the U.P. Cooperative Societies Act, the determination of the electoral college is rendered illegal. 2. Not being satisfied with the order so passed by the Arbitrator/Up-Ziladhikari dated 19.3.2010, the private respondent Nos. 7 to 19 preferred an appeal under Section 98(A) of the Cooperative Societies Act. 3. The appeal has been allowed under the impugned order and the matter has been remanded to the Arbitrator for examining from the original records as to what number of persons stand disqualified from exercising their votes as per Section 20(aaa) and to take a fresh decision thereafter. It has been recorded that although the Arbitrator had called for the original records of the Society but absolutely no facts have been recorded in that regard. It has been directed that the original records of the Society must be examined and thereafter opinion be framed in respect of the various factors including the effect of violation of Section 20(aaa) of the Cooperative Societies Act. 4. It is against this order of the appellate authority that the present writ petition has been filed. Two issues have been raised for challenging the order before this Court. (A) Once there has been non-consideration of the exclusion as provided under Section 20(aaa) of the Cooperative Societies Act qua right to exercise the vote in the elections of the office bearers before finalising the electoral college, the same is rendered bad and, therefore, the elections fall automatically. There is no occasion for any order of remand being issued. (B) The appeal itself was not competent as on the plea, that if the order had been passed under Section 71 by an Officer Subordinate to the Registrar, the appeal could be heard by the Registrar. There is no occasion for any order of remand being issued. (B) The appeal itself was not competent as on the plea, that if the order had been passed under Section 71 by an Officer Subordinate to the Registrar, the appeal could be heard by the Registrar. In case, the order under Section 71 had been passed by the Registrar, the appeal could be heard by the State Government. 5. Both the grounds raised do not appeal to the Court. So far as the first ground is concerned, this Court may record that no election can be set aside unless there is specific finding that because of no exclusion of the illegible persons from the electoral college, the election results have been materially affected any defect in the determination of the electoral college would not render the elections as illegal. From the order of the Arbitrator, it is clear that except for noticing the technical defect in preparation of the electoral college qua non-consideration of the exclusion clause as per Section 20(aaa) (whereby certain category of members are disqualified from exercise their franchise) no other facts have been noticed. 6. I am of the considered opinion that not only it is determined from the original records of the society as how many of such persons stood disqualify under Section 20(aaa) and had participated in the elections and further that if their vote are excluded the results be adversely affected or not. In absence of any such finding having been recorded by the Arbitrator, the order passed was illegal and has therefore been rightly set aside in appeal. 7. So far as the second ground raised is concerned, this Court shall not enter into the issue inasmuch as if this Court interferes with the order of the appellate authority whereby the matter has been remanded to Arbitrator for reconsideration, it would result in restoration of an illegal order of the Arbitrator. The Hon’ble Supreme Court has repeatedly held that the High Court shall not exercise its power under Article 226 Constitution of India for up setting an order which has the effect of restoring another illegal order. 8. Writ petition is dismissed. 9. The Hon’ble Supreme Court has repeatedly held that the High Court shall not exercise its power under Article 226 Constitution of India for up setting an order which has the effect of restoring another illegal order. 8. Writ petition is dismissed. 9. However, in the facts of the case, it is provided that the Arbitrator shall examine the matter on remand afresh in right of what been recorded by this Court and by the appellate Court after examining the original records of the Society and after affording opportunity to the parties concerned preferably within two months from date of a certified copy of this order is produced before him. —————