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2014 DIGILAW 723 (MP)

Umrao Singh v. State of M. P.

2014-06-25

A.M.KHANWILKAR, SHANTANU KEMKAR

body2014
Judgment: 1. Heard counsel for the parties. 2. This appeal takes exception to the decision of learned Single Judge dated 6.1.2014 in W.P. No. 5642/2013. That writ petition was filed by the Respondent No. 4 seeking direction against Respondents No. 1 to 4 to take action and declare that the appellant was disqualified from holding the post of Chairman and/or declare to have ceased to hold the post of Chairman of ISDSM. The learned Single Judge has disposed of the writ petition by directing the Registrar to consider the representation made by the Respondent No. 4 in that behalf. 3. The argument of the appellant (Respondent No. 4 in the writ petition), is that, the learned Single Judge has glossed over the crucial question that the election to the post of Chairman could be challenged only by way of election dispute. More so, in the fact situation of the present case, election dispute was the only remedy available to the Respondent No. 4 as he had taken objection to the nomination form submitted by the appellant and that objection was rejected by the Returning Officer. Further, the election dispute is required to be filed within 45 days from the date of declaration of the results of the election and not thereafter. According to the appellant the Respondent No. 4 has not filed any representation before the Registrar much less within 45 days from the date of declaration of the result. In any case, the Registrar could not have assumed the authority to declare the election as illegal and void as that issue could have been tested only by way of election dispute, which is a statutory remedy provided under the Act. 4. It is further submitted that the learned Single Judge completely overlooked the fact that there is no averment in the writ petition filed by Respondent No. 4 that he had made representation to the Registrar. In other words, the fact recorded by the learned Single Judge in the order dated 6.1.2014 that Respondent No. 4 (writ petitioner) later on submitted a detailed representation to the Registrar, Cooperative Society is factually incorrect and error apparent on the face of the record. 5. Although all these submissions may appear to be attractive at the first blush, we are not inclined to entertain the same in exercise of writ appeal jurisdiction. 5. Although all these submissions may appear to be attractive at the first blush, we are not inclined to entertain the same in exercise of writ appeal jurisdiction. Inasmuch as, the operative order passed by the learned Single Judge is only to direct the Registrar to consider the representation filed by the Respondent No. 4, if any. 6. It will be open to the appellant to raise all available contentions and including the objection regarding maintainability of proceedings by way of representation, before the Registrar in respect of election to the post of Chairman. We direct the Registrar to examine all those contentions on its own merits in accordance with law. We agree with the submission of appellant that if issue regarding jurisdiction of the Registrar to entertain the representation and, more particularly, raising issue of validity of election, and as that issue would go to the root of the matter, must be considered as preliminary issue and answered in the first place. 7. The question as to whether the alleged disqualification incurred by the appellant was before the date of election or subsequent to the election also may be a relevant question to be examined by the Registrar, as it is well established position that the Registrar can proceed against the office bearers of the Cooperative Society in connection with disqualification incurred by the office bearers after being elected to the office. Depending on the finding to be arrived on that question, he may examine the controversy further or dispose of the representation at the threshold on that ground. 8. We make it clear that neither the observations contained in order dated 6.1.2014 nor anything stated in our order, may be construed as opinion either way on the merits of the objection that may be taken by the appellant about the maintainability of the said representation of Respondent No. 4 or for that matter to the contents thereof. All questions in that behalf are left open. 9. Appeal disposed of, accordingly.