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2014 DIGILAW 250 (JK)

Anchal Singh v. State Of J&K

2014-06-11

TASHI RABSTAN

body2014
1. The challenge in this writ petition is to order dated 06.07.2013 issued by the Returning Officer, the Sainik Cooperative House Building Society Ltd, respondent No. 4 herein, rejecting the nomination papers of petitioner for election to the Managing Committee of the Society. 2. The facts, as averred in the writ petition, are that for conducting election to the Sainik Cooperative House Building Society Ltd., Jammu (hereinafter, for short, the Society), Registrar, Cooperative Societies, respondent No.2 herein, set in motion the electoral process and fixed the date for election as 15.07.2013, while respondent No. 4 was appointed as Returning Officer for conducting the said election. It is averred that as the petitioner being a share holder and permanent member of the Society was also eligible to contest the election, he also filed his nomination papers, but were rejected by respondent No. 4 vide order impugned in terms of Rule 25(1)(u) of Jammu & Kashmir Co-operative Societies Rules, 2001 (hereinafter, for short, Rules of 2001). 3. Objections have been filed on behalf of respondents. Respondents 1, 2 & 4 while maintaining their stand contended that the candidature of petitioner was rejected in terms of Rule 25(1)(u) of the Rules of 2001 as he failed to deposit the developmental charges till the last date of filing of the nomination papers in terms of Clause 3(a)(ii) of the Bye-laws of the Society. It is contended that while entering into lease agreement and taking membership of the Society, the members have to undertake to pay all the charges of the Society from time to time in terms of Clause 1(b) of the Lease Agreement. Further, it is contended that the petitioner deposited the developmental charges on 06.07.2013 only after his nomination papers were rejected and was disqualified to contest the election of the Society. 4. Heard the learned counsel and perused the writ record. 5. It would be relevant to reproduce Rule 25(1)(u) of the Rules of 2001 hereunder. "He has not fulfilled all the obligations laid down in the Act, Rules and Bye-laws." 6. During the pendency of writ petition, petitioner had filed CMA No. 1947/2013 seeking to place on record certain receipts of developmental charges deposited by some members of the Society after the last date of filing of the nomination papers. "He has not fulfilled all the obligations laid down in the Act, Rules and Bye-laws." 6. During the pendency of writ petition, petitioner had filed CMA No. 1947/2013 seeking to place on record certain receipts of developmental charges deposited by some members of the Society after the last date of filing of the nomination papers. The names of these members are Kuldeep Singh, Bharat Singh Jamwal, Davinder Nath Sharma and Parkash Singh Jamwal, who deposited the developmental charges on 06.07.2013. Even one member, namely, R.S. Jasrotia deposited the developmental charges on 08.07.2013. While referring to the list of candidates, whose nomination papers have been accepted/rejected, issued by the respondents, it is contended by learned counsel for petitioner that nomination papers of aforesaid three persons namely, Bharat Singh Jamwal, Davinder Nath Sharma and Parkash Singh Jamwal have been shown to have been rejected in terms of Rule 25 (1)(u) of the Rules of 2001. Learned counsel further contended that it is very surprising that as per Nominal Roll, all the aforesaid five persons, i.e., Kuldeep Singh, Bharat Singh Jamwal, Davinder Nath Sharma, Parkash Singh Jamwal and R.S. Jasrotia have been shown to have contested the election of the Management Committee of the Society held on 15.07.2013. Learned counsel thus argued that how the aforesaid persons were allowed to contest the election when they too deposited the developmental charges after filing of the nomination papers, particularly Bharat Singh Jamwal, Davinder Nath Sharma and Parkash Singh Jamwal, whose nomination papers had already been rejected in terms of Rule 25(1)(u) of the Rules of 2001. Thus, it is pleaded that the petitioner has been treated differently, and discriminatory treatment has been meted out to him as similarly situated persons were allowed to contest the election, but he has been shown the door, which is violative of Articles 14 & 21 of the Constitution of India. 7. Returning Officer, respondent No. 4 herein, though filed response to the aforesaid application, but no cogent reasons have been given regarding how the other defaulters were allowed to contest the election and adopting different yardsticks for different persons. 7. Returning Officer, respondent No. 4 herein, though filed response to the aforesaid application, but no cogent reasons have been given regarding how the other defaulters were allowed to contest the election and adopting different yardsticks for different persons. With regard to Capt R.S. Jasrotia, who deposited the developmental charges on 08.07.2013, it is stated that though he was willing to deposit the developmental charges, but the same were not accepted by respondent No. 5 owing to certain dispute with regard to plots in Khasra No. 272 and 273 and passing of the stay order by this Court. Therefore, there was no fault on his part in not depositing the development charges. However, nothing has been clarified in the objections regarding rest of the four persons, who too though were defaulters in depositing the developmental charges, but were allowed to contest the election. 8. Respondent No. 5 in his objections has stated that his role was very limited as he was to only supply the list of Members of the Society, along with list of eligible Members and List of defaulters to respondent No. 4. And it was respondent No. 4 alone who had to carry out the election process strictly according to the law. To a specific query, learned counsel appearing for respondent No. 5 fairly stated that though some of the Members of the Society have been shown in the list of defaulters, but respondent No.4 accepted their nomination papers for the reasons best known to her. 9. While giving its verdict the Court has to carefully analyze the pleadings the documents placed on record and the arguments addressed during the course of hearing of the matter. Therefore, in order to reach out just conclusion of the case, respondent No. 4 was directed to file reply to CMA No. 1947/2013. Though she filed reply to the application, but she failed to give any reason, muchless sufficient one to show how the defaulters were allowed to contest the election. Once Bharat Singh Jamwal, Davinder Nath Sharma and Parkash Singh Jamwal were disqualified in terms of Rule 25(1)(u) of the Rule of 2001 to hold the office, how were they allowed to contest the election later on is not forthcoming. Once Bharat Singh Jamwal, Davinder Nath Sharma and Parkash Singh Jamwal were disqualified in terms of Rule 25(1)(u) of the Rule of 2001 to hold the office, how were they allowed to contest the election later on is not forthcoming. Whereas, on the other side of the paradigm, petitioner, who, too, was disqualified in terms of the aforesaid Rule, was not allowed to contest the election, though he too deposited the developmental charges on 06.07.2013. For want of concrete and effective reply, the reply filed by respondent No. 4 seems to be evasive one. 10. The Courts time and again have held that if the allegation of fact is not denied specifically, the same is deemed to be admitted. The same view was taken by a Coordinate Bench of this Court in case, titled as, State of J&K v. Amar Chand & anr., 1997 SLJ 117 : JKJ Soft JKJ/11402. 11. In view of what has been observed and discussed hereinabove, it seems that the impugned order is arbitrary and issued without application of mind. In the given circumstances, the writ petition deserves to be allowed. Accordingly, the same is allowed and the order dated 06.07.2013 issued by the Returning Officer, the Sainik Cooperative House Building Society Ltd. is quashed, with a direction to the respondents to allow the petitioner to contest election of the Society, if he is not otherwise ineligible. 12. This Court vide order dated 12.07.2013 while allowing the respondents to hold the election on 15.07.2013 had directed for deferring the counting and declaration of the result till further orders. Thus, in view of this order, neither the counting could commence nor could the result be declared till date. Now, since the petitioner has been held eligible to contest election of the Managing Committee of the Society, the election of the Society held on 15.07.2013 is set aside with a direction to the Deputy Commissioner of the District to issue fresh notification for holding fresh election of the Managing Committee of the Society. 13. Disposed of along with connected CMA(s), if any.