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2010 DIGILAW 741 (ALL)

RAJ KUMAR SINGH v. STATE OF U P

2010-02-26

PRADEEP KANT, RITU RAJ AWASTHI

body2010
PRADEEP KANT, J. ( 1 ) HEARD the counsel for the petitioner Sri raghvendra Singh, learned Senior Advocate, assisted by Sri Anurag Kumar Singh, sri Rakesh Bajpai, learned Additional Chief Standing Counsel for the State, Sri raja Vikram Singh and Sri H. S. Tiwari for Dal Singh, opposite party No. 6 and Sri manish Kumar for the applicant Brijesh Kumar, who has moved an application for impleadment. The impleadment application is formally allowed. ( 2 ) THE petition relates to the election of the District Cooperative Bank Ltd. , shahjahanpur, a cooperative society registered under the provisions of Uttar pradesh Cooperative Societies Act, 1965. ( 3 ) IN the State of Uttar Pradesh, the term of existing Committee of Management of the Cooperative Societies was five years but by way of amendment in Section 29 of the Act, it was reduced from five years to two years. On the expiry of the said term, some time in September, 2007, Administrators were appointed replacing the Committee of Management of the Banks, including the present Bank. ( 4 ) THE elections were not held for more than two years after the appointment of the Administrator but as late as on 1. 6. 09, Registrar, Cooperative Societies, u. P. , fixed 5th and 6th October, 2009, as the dates of election for the District cooperative Banks. ( 5 ) THE grievance in the present petition against the election schedule was that while determining the constituencies, the time schedule as prescribed under the Rules, has not been adhered to, and that the constituencies have been determined in violation of the circular issued by the Registrar in a most arbitrary manner. ( 6 ) THE petitioner also approached the Registrar against the determination of constituencies on 14. 9. 09 but to no avail. ( 7 ) ON the plea that the constituencies have been illegally and arbitrarily determined in violation of the Rules, without following the prescribed time schedule, the elections so held would be illegal and bad in law, the learned counsel for the state submitted that constituencies have been rightly determined and that the time schedule given under the Rules, has been followed and in any case the elections cannot be interfered with, at the intermediary stages and if the petitioner is aggrieved, he can file electron petition after the elections are over. ( 8 ) SRI Manish Kumar appearing for Brijesh Kumar, adopting the arguments of the State, further submitted that after being elected as a delegate, Brijesh Kumar contested the election for the post of Director of the Committee of Management of the Bank and the elections of the Director of the Bank was held on 5. 10. 09 and in the said elections, he was elected unopposed and a certificate to this effect has already been issued by the Election Officer. ( 9 ) HIS submission is that the present writ petition has been filed by the petitioner challenging the final determination of the constituencies with a prayer that the elections cannot be held in pursuance of the constituencies determined/ published on 12. 9. 09, whereas Brijesh Kumar has already been elected as Director but he has been stopped from functioning as such because of the interim order passed by this Court on 6. 10. 09 and 9. 10. 09. He has also corroborated the submission of the counsel for the State that the time schedule, as provided under rule 440 of the U. P. Cooperative Societies Rules, 1968 (hereinafter referred to as the Rules of 1968) has been duly followed. ( 10 ) RULE 407 of the Rules of 1968 says that it shall be duty of the Registrar to reconstitute thenew Committee of management in accordance with the provisions of the Act, rules and bye-laws before the expiry of the term of elected Committee of Management of any co-operative society. ( 11 ) SUBMISSION of the petitioner is that when the date was fixed by the Registrar on 1. 6. 09 for holding the elections in the month of October, 2009, the constituencies were to be determined providing reasonable gap in between the dates of the determination of constituencies and publication of election programme, but the registrar has made it a practice to determine the constituencies just before the election and to publish the election programme immediately after determination of the constituencies, just to protect the illegal act of determination of the constituencies. ( 12 ) IN the case of Gajadhar Singh v. State of U. P. and others (Writ Petition no. ( 12 ) IN the case of Gajadhar Singh v. State of U. P. and others (Writ Petition no. 8331 (MB) of 2009) decided on September 17,2009, this Court considered the aforesaid plea regarding the time gap which should be provided by the Registrar from the date of final determination of constituencies and the date of elections, wherein the Court has observed as under: "on interpretation and giving true meaning to the aforesaid rules, no mandamus can be issued prescribing a specified period for determining the constituencies or so to say, for publishing the final constituencies before a particular period from the date of notifying the election programme but we do observe that it is for the Registrar/district Assistant Registrar or the authorised officer and all those who are concerned to ensure that the final determination of the constituencies is done and communicated to the District Magistrate/ election Officer at the earliest and in any case at a point of time which does not curtail the discretion of the Election Officer to fix the election programme by giving 30 days clear notice which is the maximum period prescribed under the rule and not to keep the determination pending till the last moment". ( 13 ) RELYING upon the aforesaid observation, learned counsel for the petitioner submitted that the determination of constituencies should be done in such a manner so that the Election Officer would have a discretion to give thirty days clear notice, which is the maximum period prescribed under the Rules and not to keep the determination pending till the last moment, whereas in the instant case constituencies were determined on 12. 9. 09 and the election programme for the bank was published on 16. 9. 09, where the elections were to be held on 5th/6th october, 2009. ( 14 ) THE provisional determination of constituencies in respect of the Bank was published in the newspapers on 30. 8. 09. Time for filing objections was given up to 5. 9. 09. The objections were to be disposed of on 11. 9. 09 and thereafter final determination of constituencies was published on 12. 9. 09. ( 15 ) RULE 440 sub-clause (5) says that Registrar shall thereupon publish in a local newspaper, the provisional determination made under sub-rule (4) for inviting objections within seven days from the date of such publication. 09. The objections were to be disposed of on 11. 9. 09 and thereafter final determination of constituencies was published on 12. 9. 09. ( 15 ) RULE 440 sub-clause (5) says that Registrar shall thereupon publish in a local newspaper, the provisional determination made under sub-rule (4) for inviting objections within seven days from the date of such publication. ( 16 ) THE argument of the petitioner is that the term within seven days from the date of publication means seven clear days from the date of such publication, namely, when the provisional determination was made on 30. 8. 09 then clear seven days would require that time for filing objections be given upto 6. 9. 09, whereas it was given upto 5. 9. 09, therefore, it is violation of the statutory period. ( 17 ) SUB-CLAUSE (7) of Rule 440 says that the objections and comments received under sub-rule (5) shall be considered by the Registrar on the thirteenth day of such publication and thereafter he shall finally determine the constituencies, total number of seats and the number of seats reserved for the weaker section as referred in clauses (a) to (d) of sub-rule (4 ). ( 18 ) THE argument of the petitioner is that 13 days from the date of publication of provisional constituencies would be 12. 9. 09, as such, clear 13 days were not made available for the said purpose. ( 19 ) SUB-CLAUSE (8) of the aforesaid Rule 440 says that the final determination of the constituencies under sub-rule (7) shall be published in the local news paper on the fourteenth day of such publication and a copy thereof shall be sent to the society concerned and the District Magistrate concerned. ( 20 ) AGAIN the petitioners argument is that 14th day could have been only on 13. 9. 09 and not on 12. 9. 09. The argument is that since the statutory period prescribed was not given or made available to the persons concerned, after the filing of objections and consequently for the consideration of the objections and thereafter publication of the final constituencies, the entire election stands vitiated. 9. 09 and not on 12. 9. 09. The argument is that since the statutory period prescribed was not given or made available to the persons concerned, after the filing of objections and consequently for the consideration of the objections and thereafter publication of the final constituencies, the entire election stands vitiated. ( 21 ) RELIANCE has been placed upon the case of Kashi Nath Pandey v. Shibban lal Saxena and others, AIR 1959 All 54 , wherein a Division Bench of this Court had an occasion to consider the period of limitation prescribed by Section 110 (3) (c)of the Representation of People Act, 1951. The question before the Court was whether in computing the period of 14 days, as provided Under Section 110 (3) (c), the day of publication of the notice of withdrawal has to be excluded or not. ( 22 ) THE plea of limitation was raised in the aforesaid matter where on the date of application of withdrawal being moved by the election petitioner, Kashi Nath pandey, despite objections being filed by the respondents, was allowed and the notice of withdrawal was published in official gazette by the Election Tribunal on 26. 12. 57. On 9. 1. 1958 Shibban Lal Saxena made an application for being substituted as petitioner in the election petition in place of Kapil Deo, whose withdrawal had been published in the gazette. In substance, a plea was taken. that the application was moved not within 14 days but actually on 15th day and, therefore, the same was not maintainable. ( 23 ) THE question arose as to whether the date on which withdrawal was published has to be included or excluded, while counting the period of 14 days. ( 24 ) THE Court observed as under: "there would, of course, have been difficulty at all if, in Section 110 (3) (c)of the Representation of the People Act, the word used had been "from" instead of the word "of. Had the language been that the application for substitution had to be presented within 14 days "from" such date, no argument could at all have been raised as Section 9 of the Central General Clauses Act would have applied under which the day of publication would have been excluded. Aslight confusion has arisen because the Legislature used the word "of instead of the word "from". Aslight confusion has arisen because the Legislature used the word "of instead of the word "from". However, we have also to take into account the principle laid down in Section 12 (1) of the Limitation Act. The principle contained in Section 12 (1) is that "in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. " Under Section 110 (3) (c) of the Representation of the People act, the period of 14 days has to be computed from the date of publication of the notice of withdrawal even though the word "from" is not used and the word "of is used. In computing the period of 14 days under Section 110 (3) (c) of the representation of the People Act, therefore, the day of publication of the notice of withdrawal has to be excluded. That day being excluded, the application presented on 9-1-1958 must be held to have been within 14 days of the publication of the notice of withdrawal so that there is no force in this contention which was raised on behalf of the petitioner. " ( 25 ) THE respondents urged that while interpreting the Rules in question and giving true effect and meaning to the language used therein, the principle of General clauses Act could not be applied as the issue would be governed by the specific Rules. ( 26 ) IN this regard reliance has been placed upon the case of Tarun Prasad chatterjee v. Dina Nath Sharma, (2008) 8 SCC 649. ( 27 ) THE right to file objections against the proposed or provisional determination of the constituencies etc. has been provided to the society as well as to aggrieved persons and the said right being statutory right can be availed by the society as well as by the aggrieved persons and if objections are filed, they have to be considered and decided by the Registrar, keeping in view the rationality of the objections and determination so made in the provisional determination. The significance of the right to file objection in the aforesaid matter is also evident by the fact that the aforesaid provision does not simply allow time to file objection, namely statutory period that is seven days but also prescribes fixed statutory date for consideration of the objections so filed under sub-rule (7) and also the date of publication of the final determination under sub-rule (8 ). ( 28 ) A perusal of sub-rules (5), (7) and (8) of Rule 440 would indicate that the legislation in aforesaid three sub-rules of the same Rule, namely, Rule 440, has used three different languages. In sub-rule (5) the language as used is inviting objections within seven days from the date of such publication, whereas in sub-rule (7) the language used is that on the thirteenth day of such publication and in sub-rule (8), the language used is on the fourteenth day of such publication. ( 29 ) THE Registrar has published the provisional determination of constituencies on 30. 8. 09 and taking the phrase within seven days from the date of application as used in sub-rule (5), he invited objections up to 5. 9. 09. Counting seven days including the date of publication of provisional constituencies i. e. 30. 8. 09 makes 5. 9. 09 as the 7th day, which would fall within seven days of such publication. May be, that 7th day could have been fixed on 6. 9. 09 also but in view of the fact that throughout in the State of Uttar Pradesh not only in this year but also previously, as has been shown in the counter affidavit of the State, i. e. in the elections held in the years 2005 and 2006 or the elections which have taken place in other Societies in the year 2009 the seven days period for inviting objections has been uniformly counted by including the date of publication of the provisional constituencies, we do not find any ground to interfere with the present election on this ground, particularly when no prejudice could be said to have been caused to the petitioner because of the aforesaid fixation of date, which issue, we would discuss later in this judgement. ( 30 ) NORMALLY when a Statute prescribes for doing a particular act or thing and requires a particular time for inviting objections or doing any act, the intention appears to be that the period prescribed must be clearly made available to the persons concerned for doing the act. For example, if the Statute provides that from the date of publication seven clear days should be given for filing objections, then requirement would be to give seven cleaer days excluding the date of publication. ( 31 ) IN the instant case, the provision says that objections will be invited within seven days from the date of publication. Thus, the date of publication of the provisional constituencies can well be excluded, while giving seven days time, but even if the same has not been done, unless prejudice is shown by the petitioner, the Court would not interfere in the elections. It is also to be kept in mind and given due weight that under a clear understanding with no ambiguity, elections in state of U. P. of all cooperative societies have been continuously held by determining the provisional constituencies and inviting objections in the same manner, as has been done in the instant case. No person has objected to that and it being an accepted phenomenon that within seven days would mean and include the date of publication of the provisional constituencies, the determination so made cannot be held to be faulty. Likewise, in the absence of any prejudice being caused to the petitioner, the subsequent dates fixed for consideration of objections and final publication of constituencies, shall not be bad. ( 32 ) A person who files objections against the provisional determination of constituencies has a right, that his objections be considered and this would be done by intimating the date on which the objections are to be considered, therefore, it would hardly of any significance, whether it was fixed as 11. 9. 09 or 12,9. 09, and of course, the final publication of constituencies was done on 12. 9. 09, instead of 13. 9. 09, as claimed by the petitioner will not prejudice any person, because it only declares the results of the objections, so filed. ( 33 ) ON merits, the petitioner feels aggrieved by the determination of Puwayan and Banda constituencies. 09, and of course, the final publication of constituencies was done on 12. 9. 09, instead of 13. 9. 09, as claimed by the petitioner will not prejudice any person, because it only declares the results of the objections, so filed. ( 33 ) ON merits, the petitioner feels aggrieved by the determination of Puwayan and Banda constituencies. His case is that in the provisional determination of constituencies, Puwayan constituency wa shown inclusive of Khutar block but in the final determination Khutar block has been included in Banda constituency and has been taken away from Puwayan. ( 34 ) THE petitioner seems to have not filed any objections against the provisional determination of constituencies, as may be safely concluded, with the following facts. ( 35 ) LEARNED counsel for the petitioner, on the one hand submitted that since the petitioner was not aggrieved by the provisional determination of constituencies with respect to Puwayan and Banda, therefore, there was no occasion for him to file any objections, and emphasized that in the absence of any grievance against the provisional determination of constituencies, the petitioner was not obliged to file any objections but on the other hand a contrary stand has been taken in the writ petition, saying that when the petitioner went to file objections on 6. 10. 09, the objections were not accepted. ( 36 ) THE aforesaid stand of the petitioner cannot be given any credence nor can be taken to be relevant for finding out as to whether the constituencies were rightly determined or not, for the reason that if the petitioner was not aggrieved by the provisional determination of constituencies aforesaid, there was no occasion for him to file any objections and if he was aggrieved with such determination, then what objections he could file, has not been disclosed. ( 37 ) EVEN if it is accepted that the petitioner could not get the opportunity to file objections because according to his calculation 7th day would have been on 6. 9. 09 and that as per his own showing he went to file objections on 6th aforesaid but objections were not taken, then why the petitioner waited upto 14. 9. 09, as on this date, he allegedly sent objections/representation to the Registrar. The conduct of a person of ordinary prudence in such a situation would have been to immediately file objections/representation to the Registrar on 6. 9. 9. 09, as on this date, he allegedly sent objections/representation to the Registrar. The conduct of a person of ordinary prudence in such a situation would have been to immediately file objections/representation to the Registrar on 6. 9. 09 itself, raising the grievance that he has been debarred from filing objections because of the miscalculation or wrong fixation of the period of filing objections and not to wait upto 14. 9,09, which means two days after the date of final determination of constituencies, which was made on 12. 9. 09. ( 38 ) IN case the petitioner was aggrieved by provisional determination of constituencies or was not allowed to file objections, he could have raised his grievance immediately before the Registrar but having not done so, he cannot challenge the determination of constituencies, on the ground that the time schedule as given in Rule 440 was not followed. ( 39 ) IN facts and circumstances of the present case though we have considered the provisions of Rule 440 sub-clause (5), (7) and (8) but it is for the Registrar himself to fix the aforesaid dates in future elections, keeping in mind that the intention of the Rule is to give clear seven days, for filing objections excluding the date of publication and so on and so forth to interpret the rest of the provisions of the Rules, and fix the dates accordingly but as the aforesaid Rule has been interpreted in the same manner as has been done in the elections of District cooperative Bank Ltd. Shahjahanpur in respect of all the societies including the bank in the State of Uttar Pradesh in the present elections, we do not find any merit in the claim raised by the petitioner with respect to determination of constituencies on the plea, that time schedule as per Rule 440 was not adhered to, for interference in the writ petition. ( 40 ) IN regard to the plea that the constituencies have otherwise being illegally and wrongly determined, the petitioner can seek his remedy by challenging the election in the appropriate forum, in view of the dictum of this Court, in the case of gajadhar Singh (supra ). ( 41 ) FOR the aforesaid reasons, the petition being devoid of force, is hereby dismissed. Interim order, if any, stands discharged. .