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2013 DIGILAW 953 (MP)

Sudama Prasad Dubey v. State of Madhya Pradesh

2013-08-13

KRISHN KUMAR LAHOTI, SUBHASH KAKADE

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ORDER This order shall decide WP No.1091/13 and WP No.1875/13 in respect of the election of Sewa Sahkari Samiti Maryadit, Bamnorakala, Tahsil Ghuwara, District-Chhatarpur. The facts are taken from WP No.1091/13 for the convenience. The petitioner was a candidate in the election of aforesaid Society. The Deputy Registrar, Co-operative Society, Chhatarpur vide Order (Annexure P/2) dated 01.12.12 appointed S.R. Awasthy as Election Officer under Rule 41(26) of M.P. Co-operative Societies Rules, 1962 (hereinafter referred to as “the Rules”). The election officer took the charge on 3.12.12 and proceeded with the election process. Vide Order dated 10.12.12, the Returning Officer published a final electoral list. Thereafter, on the same day he had directed Sanjeev Kumar Pathak, Salesman, Bamnorakala to assist him in the election, between 14.12.12 and 10.01.13. On 13.12.12, S.R. Awasthy directed the Board of Directors of the Society to participate in the reservation for women in the election. On 14.12.12, two posts of Director were reserved for women, and under Section 52-B, posts for SC/ST & OBC were also reserved. On 26.12.12, S.R. Awasthy had authorized Hariram Lodhi Assistant Samiti Prabandhak, Bamnorakala to receive nomination papers for the aforesaid election. Hariram Lodhi had received the nomination papers as per list which is filed at page 26 to 29 of the paper book. On 28.12.12, S.R. Awasthy, as a Returning Officer, passed an order that total 14 nomination papers were received which were scrutinized, and out of 14, 11 nomination papers were found in accordance with law and 3 nomination papers were found of the members who were defaulter and those were rejected. The net result was that 11 nomination papers were found in order and a list on 28.12.12 was published by S.R.Awasthy which is on page 31 of paper book. As only 11 persons were to be elected and as per the list dated 28.12.12, 11 nomination papers were found in order, so these persons were declared as elected unopposed. On 29.12.12, vide Annexure P/4, S.R. Awasthy declared these 11 persons as elected un-opposed under Rule 41 sub-rule (12) of the Rules. As only 11 persons were to be elected and as per the list dated 28.12.12, 11 nomination papers were found in order, so these persons were declared as elected unopposed. On 29.12.12, vide Annexure P/4, S.R. Awasthy declared these 11 persons as elected un-opposed under Rule 41 sub-rule (12) of the Rules. The dispute arose when an Order (Annexure P/5) dated 28.12.12 was issued by the Deputy Commissioner, Cooperative Societies, Chhatarpur by which R.K.Sharma, Cooperative Inspector, Cooperative Society, Chhatarpur was intimated that election officer of Sewa Sahkari Samiti Maryadit, Bamnorakala S.R. Awasthy was absent and there was hurdle in the election process, so he was directed to attend in the society and to start the election process. He was also directed to do this work on priority. The endorsement of this letter (Annexure P/5) shows that a copy of this letter was sent to Sriram Awasthy, Election Officer, Bamnora with a direction that because of negligence on his part, he was discharged from the election work. The aforesaid action of the respondent vide Annexure P/5 was protested by the petitioner Sudama Prasad to the Collector, Chhatarpur vide Annexure P/7 dated 2.1.13, and thereafter the present petition was filed. The respondents have filed reply in the matter. As per the return, filed by the State/ respondent no.1, 3 and 4, it is stated that new Returning Officer was appointed as per Annexure P/5 who had continued the process of the election. The previous Returning Officer was changed. The newly appointed Returning Officer had published a different list of the elected persons which is filed along with the return as Annexure R/4 by which 11 persons were declared as elected Directors of the Society. Another set of the elected persons who are impleaded as respondent no. 5 to 15 have opposed the petition. It is submitted by them that they were duly elected by R.K. Sharma and after their election, they are entitled to hold the office of Directors of the Society. However, they have also filed a separate petition which is registered as WP No.1875/13 in which a prayer is made by them for declaring them as returned candidate and for permission to assume the charge of the Society. However, they have also filed a separate petition which is registered as WP No.1875/13 in which a prayer is made by them for declaring them as returned candidate and for permission to assume the charge of the Society. A preliminary objection has also been raised by the respondents that being an election dispute, this PIL is not maintainable, secondly the petitioner is having an efficacious alternative remedy of filing a dispute before the Deputy Registrar, Co-operative Society, Chhatarpur under Section 64 of the M.P. Co-operative Societies Act,1960 (for short “the Act”), so this petition may not be entertained. In reply to the preliminary objection, it was submitted by Shri Rajendra Mishra, learned counsel appearing for the petitioner that so far as the second objection in respect of filing of a dispute under Section 64 of the Act is concerned, it is a futile exercise as the Deputy Registrar who is the Presiding Officer himself has filed return in this case supporting the action by which R.K.Sharma was appointed and the respondent no. 5 to 15 were declared as elected persons by R.K.Sharma, so the dispute which is to be filed and tried by respondent no.3 is a futile exercise and it is not an efficacious alternative remedy available to the petitioner. Apart from this, this petition has been entertained by this Court and has been fixed for final hearing, so the matter may be heard finally. In so far as first objection is concerned, it was submitted by Shri Rajendra Mishra that matter involves election of a society and election of the society was not conducted as per law, so this PIL can be entertained. In reply to it, it was submitted by Shri Jain that one Brijesh Raje had filed a writ petition by way of Public Interest Litigation (WP No. 233/13), but it was dismissed as withdrawn on 10.01.13, so another petition filed as PIL is not maintainable. It is also submitted by him that this Brijesh Raje was shown as returned candidate in the list published by S.R.Awasthy which is filed on page 34 of this petition, and his name is appearing at Sr.No.3 in the said list. To appreciate the aforesaid contention, it would be appropriate to consider some factual aspect. In this case, Sriram Awasthy was appointed as a Returning Officer vide Order dated 1.12.12 (Annexure P/2). To appreciate the aforesaid contention, it would be appropriate to consider some factual aspect. In this case, Sriram Awasthy was appointed as a Returning Officer vide Order dated 1.12.12 (Annexure P/2). It was an order under Rule 41(26) of the Rules. Thereafter there is no order by which he was removed from the said election work. There is also no order under Rule 41(26) of the Rules appointing R.K.Sharma as a Returning officer. Apart from this, Order (P/2) was got approved by the Deputy Registrar from the Collector. Though the Order (Annexure P/5) has been issued by the Deputy Commissioner-cum-Deputy Registrar, Co-operative Societies, Chhatarpur by which R.K.Sharma, a co-operative inspector was directed to proceed with the election process, but there is no specific appointment of R.K.Sharma under Rule 41(26) of the Rules. In absence of which R.K. Sharma was not entitled to conduct the election as a Returning Officer of the said Society, and any action taken by R.K.Sharma in continuation to Annexure P/5 for holding the election of the Society was totally without jurisdiction. For assuming the charge of Returning Officer, a due order as is provided under Rule 41(26) of the Rules was required to be issued by the Deputy Registrar, Co-operative Societies, and until and unless he was appointed as a Returning Officer, he was not entitled to hold the election of co-operative society. In aforesaid circumstances, the entire process conducted by R.K. Sharma is without jurisdiction. Now the question remains whether the election conducted by S.R. Awasthy can be held to be valid is concerned, as per the submission made by Shri Kumaresh Pathak, learned Deputy Advocate General, S.R. Awashty had not filed any list of the returned candidate as is required under Rule 41(23)(d) of the Rules which provides as under :- “41. Procedure for election of members of the committee 23 (a) Soon after the counting of votes if over, the Returning Officer shall prepare and certify a return setting forth- (i) the number of valid votes given to each candidates; and (ii) the number of ballot papers declared to be invalid or rejected. (d) The names of the candidates elected or coopted, as the case may be, under sub-rules (12) and (13) and a copy of the certified return prepared under clause (a) above, shall be submitted by the Returning Officer to the Registrar forthwith. (d) The names of the candidates elected or coopted, as the case may be, under sub-rules (12) and (13) and a copy of the certified return prepared under clause (a) above, shall be submitted by the Returning Officer to the Registrar forthwith. The aforesaid provision specifically provides that names of the candidates elected or co-opted and a copy of certified return prepared under clause (a) above shall be submitted by the Returning Officer to the Registrar forthwith, but it appears that there is no compliance of the aforesaid provision. After passing of the Order (Annexure P/5) dated 28.12.12, he was not entitled to continue with the election process. In these circumstances, the list prepared by S.R. Awasthy was not filed and could not got approval of the Deputy Registrar till date. If such election could have been conducted by S.R. Awasthy, then he was under an obligation to furnish such list to the Deputy Registrar, in absence of which, it cannot be said that he had conducted the election and filed a list of returned candidate to the Deputy Registrar. In this case, the State has also filed a return in which in para 8 it has been stated that R.K. Sharma had conducted scrutiny of the nomination papers on 29.12.12, and thereafter he had published the list of valid nomination papers as per Rule 41(11) of the Rules. Copy of the election programme filed as per Annexure R/7-1 shows that the aforesaid scrutiny was required to be made on 28.12.12, and there was no question of scrutiny of the nomination papers on 29.12.12. Record is available with Shri Pathak, learned Deputy AG, and on being asked specifically whether there is any order on the record showing removal of S.R. Awasthy and appointment of R.K. Sharma as Returning Officer is available or not, it is stated by Shri Pathak that except the availability of copy of Order (Annexure P/5), the record does not contain any order of competent authority by which R.K. Sharma was appointed as Returning Officer and S.R. Awasthy was removed. If any such eventuality could have happened that S.R. Awasthy was not available, then the natural consequence could have been that a due order must have been passed by the Deputy Registrar for removal of S.R. Awasthy from the work of Returning Officer and for appointment of R.K. Sharma as Returning Officer for conduction of the election of the aforesaid Society. It appears that the entire election has been conducted in a very haphazard manner and no seriousness was there in respect of conduction of election. One list was prepared by S.R. Awasthy in respect of 11 returned candidate, and another was prepared by R.K. Sharma of 11 returned candidates. Both show that all the candidates were elected un-opposed while there was rejection/withdrawal of remaining nomination papers. Entire election process appears to be sham and the election of the said Society deserves to be conducted afresh by the Deputy Registrar, Co-operative Society, Chhatarpur. Apart from this none of list filed by any of the Returning Officer has been approved under Rule 41(23)(d) of the Rules. In view of aforesaid, we quash the entire election of the aforesaid Society and direct the Registrar, Co-operative Societies, Chhatarpur to issue a fresh notification in respect of the election of Sewa Sahkari Samiti Maryadit, Bamnorakala, District-Chhatarpur, and the aforesaid election be conducted by the concerned Registrar within a period of three months from the date of communication of the order. It will be appropriate to direct that the Registrar, Co-operative Societies, Chhatarpur shall take care that the entire election is completed fairly, in accordance with the provisions of M.P. Co-operative Societies Act,1960 and the Rules framed thereunder. With the aforesaid directions, both the petitions are disposed of finally with no order as to costs.