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2014 DIGILAW 1156 (MP)

Ram Kumar Sharma v. State of M. P.

2014-09-16

SUJOY PAUL

body2014
JUDGMENT Sujoy Paul, J. 1. In this petition filed under Article 226 of the Constitution, the petitioner has prayed for direction to decide his representation immediately. In addition, it is prayed that the respondent No. 6 be declared as defaulter and disqualified. The correction be made in column Nos. 7 and 9 of final list of members before election of public programme. 2. Shri Ravindra Dixit, learned counsel for the petitioner submits that petitioner preferred representation, Annexure P-2, dated 21.2.2014 by praying that the respondent No. 6 be declared disqualified because his parent society's registration was cancelled by the Joint Registrar on 19.2.2014, Annexure P/6. Hence, he is disqualified to contest the election under M.P. Cooperative Societies Act, 1960 (for brevity, the 'Act'). He submits that under section 57(F) of the Act, the competent authority may decide the representation to ensure free, fair and impartial election. In support of submissions, he relied on: 1969 JLJ 1016 (Basant Kumar vs. Assistant Registrar, Co-operative Societies, Jabalpur and others); : 2012 (2) MPLJ 237 (Rajiv Kumar Jain vs. Veerendra Narain Mishra (Elected Representative) and others); AIR 2013 MP 181 (Sudama Prasad Dubey vs. State of Madhya Pradesh) and an unreported judgment of WP No. 947/2013 (PIL) (Atar Singh Gurjer and others vs. State of MP and others). 3. Per Contra, Smt. Sangita Pachauri, Shri M.P.S. Raghuvanshi, Shri D.P. Singh and Shri RBS Tomar, learned counsel for the other side/intervenor opposed the same. It is submitted that the election process is set in motion and at this stage, no interference be made. At appropriate stage, the petitioner may file a dispute under the Act. In addition, it is submitted that the petitioner has submitted the objection after the cut of date and, therefore, no interference is warranted. 4. I have heard learned counsel for the parties. 5. A bare perusal of Annexure P-1 shows that last date of filing objection against the voter list was 21.8.2014. As per page 3 of writ petition, the petitioner has admittedly submitted objection on 22.8.2014. Annexure P-1 further shows that against Registration Officer's decision, appeal can be preferred upto 3.9.2014. Admittedly, the objection/appeal is preferred on 6.9.2014 (Annexure P/8). 6. The election process is in full swing. As per page 3 of writ petition, the petitioner has admittedly submitted objection on 22.8.2014. Annexure P-1 further shows that against Registration Officer's decision, appeal can be preferred upto 3.9.2014. Admittedly, the objection/appeal is preferred on 6.9.2014 (Annexure P/8). 6. The election process is in full swing. In (2001) 8 SCC 509 (Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another vs. State of Maharashtra and others), the Apex Court while dealing with the election of cooperative society opined that the High Court has rightly declined to entertain an election petition when elections were in full swing. Para 12 of the said judgment reads as under:- "12. In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll." 7. In : (2011) 13 SCC 774 (Supreme Court Bar Association and others vs. B.D. Kaushik) the Apex Court has taken the same view. 8. Even otherwise, the question of preparation of voter list is a highly disputed question of fact. The question of eligibility of member in the voter list is also a disputed question of fact, which needs to be dealt with as per Section 64 of the Act. A Division Bench of this Court in: 2008 (4) MPLJ 353 (Ram Singh vs. State of MP and others) opined as under:- "11. Coming to the question of eligibility of member in the voter list, it is disputed question of fact whether the voter list was correctly prepared, whether or not it was prepared by the management. These disputed question of fact cannot be gone into in writ petition. Matter of preparation of voter list is subject-matter which has to be raised in election dispute under section 64 of the Act as held by this Court in Akbar Mohd. Khan and another vs. State of MP and others,: 2002 (2) MPLJ 165. In Shiv Narain Pandey vs. Satish Tiwari, 1998 RN 178, this Court held that election should be allowed to be completed peacefully without any interruption from any forum. Khan and another vs. State of MP and others,: 2002 (2) MPLJ 165. In Shiv Narain Pandey vs. Satish Tiwari, 1998 RN 178, this Court held that election should be allowed to be completed peacefully without any interruption from any forum. In Bhawani Shankar Sharma vs. State of MP, : (1998) 2 MPLJ 20 (DB) the dispute related to earmarking of the particular constituency writ was held to not maintainable as remedy lies in filing election dispute. As per proviso to sub-section (2) of section 64 of the Act, legislative intention is clear of completion of election unhindered; it is the view of this Court in Radheshyam vs. Chairman, Sahakari Samiti, : AIR 1976 MP 156 . Dispute as to voter list, nomination paper is to be raised in election dispute under section 64 not in writ petition is consistent view taken in Radheshyam vs. Chairman, Sewa Sahakari Samiti, : 1989 MPLJ 208 : 1989 RN 99, Ramdeo Sharma vs. Dy. Registrar, Gwalior, 1993 RN 18, Ram Swaroop, Dohare vs. Ayukta Sahkarita,: AIR 1996 MP 187 , Jagdish Sharma vs. State of MP, 1996 RN 60, and Suresh Chandra Jain vs. State of MP, 1996 RN 131." 9. Even if as per Section 64(2) (Proviso), if no remedy is available to the petitioner at present to raise a dispute, he can raise the dispute if he is ultimately prejudiced against the election of respondent No. 6. He will not be remediless even after elections are over. 10. Since the petitioner has failed to submit objection before last date, I am not inclined to interfere in the election process. Section 57(F) of the Act is the inherent power for the authority to issue directions which are necessary for conducting free, fair and impartial election. No mandamus needs to be issued directing him to exercise the power in a particular manner. The judgments cited by Shri Ravindra Dixit are based on peculiar facts and circumstances of those cases and have no application in the factual matrix of the present matter. 11. In view of this, I am not inclined to entertain this petition. Petition is disposed of by reserving liberty to the petitioner to avail the remedy under the Act at appropriate stage in accordance with law. It is made clear that this Court has not expressed any opinion on merits.