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2014 DIGILAW 1267 (MP)

Vijay Tiwari v. M. P. State Cooperative Tribunal

2014-10-07

RAJENDRA MENON, SANJAY YADAV

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ORDER 1. Since the affected party is already represented, the matter is finally heard with the consent of learned counsel for the parties. 2. Order dated 27.9.2014 passed by M.P. State Cooperative Tribunal, Bhopal is being assailed vide this petition under Article 227 of the Constitution of India. 3. Vide impugned order, a revision preferred under section 77(14) of the M.P. Cooperative Societies Act, 1960 (hereinafter referred to as ‘1960 Act’) filed by respondent No.2-Bhopal Cooperative Central Bank Ltd. against the order dated 15.9.2014 passed by Additional Registrar (Judicial), Cooperative Societies Bhopal has been allowed by setting aside the impugned order. 4. That, before Additional Registrar (Judicial), petitioner while invoking powers under 80-A of the 1960 Act sought quashment of order dated 23.8.2014 passed by Registering Officer appointed by the Madhya Pradesh State Cooperative Election Authority under sub-rule (2) of rule 49 C of the 1962 rules for preparation of members list. By impugned order, the objection raised by the petitioner against member list prepared was rejected. 5. The Revisional Authority i.e. the Additional Registrar (Judicial) while overruling the objection raised on behalf of respondent No.2 as to its jurisdiction to entertain the revision under section 80-A of 1996 Act, quashed that list prepared by Registering Officer. It is this order which was assailed before the Tribunal on two grounds. Firstly, that since the election programme was declared, a remedy lie under section 64(2) of the 1960 Act and secondly, that it was beyond the jurisdiction of the Additional Registrar to have exercised power under section 80-A of the 1960 Act against rejection of objection raised by the petitioner against the list members prepared under rule 49-C of the 1962 rules as the Registration Officer was appointed by the Madhya Pradesh State Cooperative Election Authority and being not an officer subordinate to Registrar the rejection order being not amendable to challenge under section 80-A of the 1960 Act. 6. The challenge found favour with the Tribunal which by the impugned order has set aside the order passed by Additional Registrar (Judicial). The order by the Tribunal is assailed on the ground that it fell into patent error in setting aside order passed by the Additional Registrar as it was within his jurisdiction to have quashed the entire voter list as the same was containing the names of certain persons who were not members. The order by the Tribunal is assailed on the ground that it fell into patent error in setting aside order passed by the Additional Registrar as it was within his jurisdiction to have quashed the entire voter list as the same was containing the names of certain persons who were not members. Reliance is placed on the decision in Naresh Sharma v. Commissioner-cum-Registrar, Cooperative Society : 2008(5) MPHT 208 . 7. Counsel for respondent No.2, on his turn, supports the order passed by the Cooperative Tribunal. It is submitted that in furtherance to voter list prepared, under rule 49-C, the election is being held today, wherein the petitioner is also participating. It is further contended that the result will be declared by evening. 8. While supporting the order passed by the Cooperative Tribunal it is urged that the Registration Officer so appointed by the Madhya Pradesh State Cooperative Election Authority is being not an officer appointed under section 3 of 1960 Act and thus not subordinate to Registrar/Additional Registrar who’s order could have been questioned under section 80-A of the 1960 Act as the appointment of Registering Officer was in furtherance to preparation of member list under chapter 5-A which dwell upon the procedure to conduct election in the Cooperative Societies. It is urged that the only remedy with the petitioner for redressal of grievance against preparation of voter list is under sub-section (2)(v) of section 64 of the 1960 Act by way of election petition. It is further submitted that under section 80-A of the 1960 Act, power of Registrar is confined to call for proceedings of subordinate officer or Board of Directors of Societies and to pass orders thereon. Thus, it was beyond jurisdiction of Additional Registrar to have entertained an application under section 80-A of 1960 Act against order passed by Registering Officer rejecting objection against list of members for election. 9. Considered the rival submissions. 10. It being not in dispute that the initiation of procedure for conducing election in Bhopal Cooperative Central Bank Ltd. was at the instance of the resolution passed by the Bank passed on 11.7.2012 for making a request to the Registrar, Cooperative Societies to conduct fresh elections. 9. Considered the rival submissions. 10. It being not in dispute that the initiation of procedure for conducing election in Bhopal Cooperative Central Bank Ltd. was at the instance of the resolution passed by the Bank passed on 11.7.2012 for making a request to the Registrar, Cooperative Societies to conduct fresh elections. That, before Registrar, initiating the proceedings an amendment in the Madhya Pradesh Cooperative Societies Act, 1960 vide the Madhya Pradesh Cooperative Societies (Amendment) Act, 2012 brought into effect from 13.2.2013 whereby new chapter V-A has been incorporated where under section 57-C makes a provision regarding appointment of State Cooperative Election Authority : section 57-D envisages function of the authority. Furthermore section 57-F provides that the authority may issue such directions as may be considered necessary for fair and impartial elections to any society or its committee or members. It further stipulates that the direction issued in this behalf shall be binding. Thereafter, vide notification No.F-5-3-2013-15-1 dated 26 June, 2013 State Government in exercise of powers conferred under sub-section (1) and (2) of section 95 of the 1960 Act effected certain amendments in the Madhya Pradesh Cooperative Societies Rules, 1962; whereby chapter 5-A was incorporated laying down procedure for conducting elections in Cooperative Societies. 11. That, rule 2 (cccc) defines ‘Coordinator’ to mean “a person entrusted by Authority for conducting elections of cooperative societies, who shall be Deputy/Assistant Registrar at District level, and Additional Registrar at Divisional level.” 12. Rule 2(jj) defines ‘Registration Officer’ to mean “an officer appointed by authority to prepare electoral roll to conduct the election of society and shall include Assistant Registration Officer.” 13. Rule 49-C of the 1960 rules lays down procedure for preparation of list of members for election. Sub-rule (2) whereof of provides for appointment of Registering Officer by the authority. Sub-rule (3), (4) and (5) of rule 49-C respectively provides for preparation of list of membership, presentation of objections and disposal of objections. 14. Rule 49-K of the rules envisages administrative control of the Coordinator. Sub-rule (1) whereof provides for that Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and all other persons appointed in accordance with these rules shall work under the administrative control of the Coordinator with overall direction and control of the authority. 14. Rule 49-K of the rules envisages administrative control of the Coordinator. Sub-rule (1) whereof provides for that Returning Officer, Assistant Returning Officer, Presiding Officer, Polling Officer and all other persons appointed in accordance with these rules shall work under the administrative control of the Coordinator with overall direction and control of the authority. The Registration Officer appointed under sub-rule (2) of rule 49-C is not nomenclatured as would bring him under the administrative control of the Coordinator, being an officer directly appointed by the authority i.e. the Madhya Pradesh State Cooperative Election Authority. 15. Furthermore, section 3 of 1960 Act makes a provisions as to the appointed of Registrar and other officers. Sub-section (3) of section 3 envisages that “(3) – “an officer appointed to assist the Registrar shall be subordinate to him and shall work under his general guidance, supervision and control.” 16. Apparently, Registration Officer appointed under rule 49-C of 1962 rules is not appointed by the State Government to assist the Registrar and being not subordinate to Registrar it is beyond the powers of Registrar under section 80-A of 1960 Act to exercise jurisdiction in respect of any decision taken by Registration Officer. 17. Viewed from this angle, the conclusion arrived at by the Cooperative Tribunal as to the Additional Registrar exceeding its jurisdiction by entertaining an application under section 80-A of the 1960 rules against the order passed by Registration Officer rejecting the objection against the list prepared under sub-rule (1) of rule 49-C of the 1962 rules cannot be faulted with. 18. Furthermore, since the procedure drawn by the Madhya Pradesh State Cooperative Election Authority is an furtherance to the resolution by respondent-Bank for holding the elections, the Tribunal, in our considered opinion, is well justified in holding that remedy lies under section 64(2) (v) which stipulates : “64(2)(v) - any dispute arising in connection with the election of any officer of society or representative of the society or of composite society : Provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of the results.” 19. The reliance placed upon by the petitioner on a judgment in Naresh Sharma v. Commissioner-cum-Registrar, Cooperative Society : 2008(5) MPHT 2008 and observation made therein, that the Inquiry Officer has found that in all 11 persons are to be elected in the entire election process. Upto 12th February, 2007, 38 nominations were received, the Returning Officer held 14 nomination papers to be in order and valid, rejected 24 nomination papers. Thereafter, out of the validly received 14 nomination papers, 3 persons withdrew their nomination papers, and therefore, 11 nominations were remaining and they have been declared to be as elected unopposed. During the inquiry it was established that the Returning Officer has not scrutinized the nomination papers in the office of the society as notified in the election programme. A finding has been recorded to the effect that for rejecting 24 nomination papers, no reason is given and the nomination papers have not been properly scrutinized after complying with the mandatory requirement. In the light of the facts that have come on record and the findings recorded in the report, Annexure R-2, it is to be held that the entire process of election was an empty formality, there was no election in the eye of law, in our considered opinion is not of much assistance to the petitioner. 20. Having thus considered, we are not inclined to interfere with the decision taken by the Tribunal. However, taking into consideration that election is scheduled today and result would be declared by evening, petitioner in case occasion so arises, would be at liberty to call in question the election by invoking section 64(2)(v) of the 1960 Act. In the event thereon, any observation made herein above will not come in the way of decision of election petition on merit. 21. With these observations petition stands disposed of finally. No costs. .........................