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Madhya Pradesh High Court · body

2015 DIGILAW 969 (MP)

Nathuram Sharma v. State of M. P.

2015-09-14

ROHIT ARYA

body2015
ORDER 1. This writ petition under Articles 226 and 227 of the Constitution of India is directed against the communication dated 14.7.2015 addressed to Deputy Commissioner, Cooperative, District Bhind under the signature of Secretary, M.P. State Cooperative Election Authority, Bhopal in the context of election of members of Prathmik Krishi Sakha Sahkari Sanstha, Maryadit, Athar, District Bhind purportedly with the approval of the election authority staying the election with immediate effect. 2. Facts necessary for disposal of writ petition are to the following effect :- Prathmik Krishi Sakha Sahkari Sanstha, Maryadit, Athar, District Bhind (hereinafter referred to as “Society”) is a society registered under the provisions of M.P. Cooperative Societies Act, 1960 (for short “the Act”). For the purposes of election of members of Board of Directors, President/Vice President and representatives to be sent to other societies, M.P. State Cooperative Election Authority, Bhopal (hereinafter referred to as “Authority”) issued the election programme (Annexure P-3). Respondent No. 6 was appointed as Returning Officer vide order dated 16th June, 2015. As per the election programme the date for publication of notice of election programme was fixed as 24.6.2015, for submission of nomination papers the date was fixed as 1.7.2015, for scrutiny of nomination papers and publication of valid nominations the date was fixed as 2.7.2015, for withdrawal of nomination papers and publication of final list of candidates with allotment of election symbols, the date was fixed as 3.7.2015, for polling, the date was fixed as 9.7.2015, for filling the seats through co-option the date was fixed as 10.7.2015, for notice to members to be elected as to the post of President/Vice President and representatives to be sent to other societies, the date was fixed as 11.7.2015 and the date for declaration of name of President/Vice President and representatives to be sent to other societies was fixed as 14.7.2015.On 1.7.2015 in prescribed Form 6 (ii), 31 nomination forms were received. After scrutiny of nomination forms on 2.7.2015, 21 nomination forms were rejected as candidates were found to be ineligible. 10 nomination forms were accepted as found to be eligible. There was no withdrawal of nomination. As per the programme, on 11.7.2015 meeting was called with due notice to all members as regards election of President/Vice President and representatives to be sent to other societies scheduled on 14.7.2015. 10 nomination forms were accepted as found to be eligible. There was no withdrawal of nomination. As per the programme, on 11.7.2015 meeting was called with due notice to all members as regards election of President/Vice President and representatives to be sent to other societies scheduled on 14.7.2015. On 14.7.2015, all elected members were present and election of President/Vice President and representatives to be sent to other societies was held. After election, result was declared. No dispute or any complaint whatsoever was raised by respondent No. 5, who even otherwise was not a candidate in election or by any of the society members before the Returning Officer. Likewise, none of the candidates whose nomination paper was rejected, has filed either any complaint or raised any dispute at any point of time before the Returning Officer. 3. It appears that respondent No. 5 filed a complaint before the Collector, respondent No. 3 on 6.7.2015 hurling serious allegations against Returning Officer in the matter of election including rejection of nominations, scrutiny of nominations and declaration of results etc allegedly under some political pressure. As reflected from the impugned communication, the Collector conducted an enquiry and submitted the enquiry report before the authority and the Authority has stayed the election. 4. Before adverting to respective contentions of learned counsel for the parties, it is considered apposite to refer to relevant provisions incorporated in the M.P. Cooperative Societies Act, 1960 and Rules made thereunder. 5. M.P. Co-operative Societies (Amendment) Act, 2012, Chapter VA has been inserted dealing with conduct of election of Co-operative Societies. Section 57-B deals with Election of Board of Directors and sub-section (2) thereof provides that superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections of co-operative society shall vest in the State Co-operative Election Authority under the provisions of this Act and Rules made thereunder. Section 57-C provides for State Co-operative Election Authority. The State Government shall, by notification, in the Gazette, appoint a person as the Madhya Pradesh State Co-operative Election Authority, hereinafter called the ‘Authority’. Section 57-D deals with functions of Authority. Section 57-F provides for power to issue directions by the Authority for conducting free, fair and RDS impartial elections to any society or its committee or members. 6. The State Government shall, by notification, in the Gazette, appoint a person as the Madhya Pradesh State Co-operative Election Authority, hereinafter called the ‘Authority’. Section 57-D deals with functions of Authority. Section 57-F provides for power to issue directions by the Authority for conducting free, fair and RDS impartial elections to any society or its committee or members. 6. In exercise of powers under sub-sections (1) and (2) of section 95 of the M.P. Cooperative Societies Act, 1960 amendments in the Madhya Pradesh Cooperative Societies Rules, 1962 (for short “the Rules”) have been made vide notification No.F.5.3-2013-15-1 dated 26th June, 2013. Relevant provisions thereunder are as follow:- Chapter VA deals with procedure for conduct of elections in Cooperative Societies; whereunder, Rule 49-C provides for preparation of members list for election. Rule 49-D deals with appointment of Returning Officer. Rule 49-E deals with procedure for election of members of the Board of Directors. Inter alia sub-rule (3) provides for issuing election programme, sub-rule (4) provides for presentation of nomination papers, sub-rule (5) provides for scrutiny of nomination papers and sub-rules (8) provides as under :- “(8) If the number of duly nominated candidates for election as members of Board of Directors is equal to or less than the number of seats to be filled, the Returning Officer shall declare in Form G-17 that there is no need for polling for such members and he shall intimate this fact to the society.” 7. As such, if number of nominated candidates for election is equal to seats to be filled, Returning Officer shall declare in Form G-17 that there is no need for polling for such members and accordingly information shall be furnished to society. Rule 49-F deals with election of chairman, vice chairman and representatives by the members of Board of Directors; whereunder, sub-rule (3) provides for as under:- “(3) Where more than one valid nomination papers are not received for a post, the returning officer shall declare such candidate duly elected with regard to whom valid nomination paper has been received.” 8. Rule 49-F deals with election of chairman, vice chairman and representatives by the members of Board of Directors; whereunder, sub-rule (3) provides for as under:- “(3) Where more than one valid nomination papers are not received for a post, the returning officer shall declare such candidate duly elected with regard to whom valid nomination paper has been received.” 8. Learned counsel for the petitioner contends that since 10 nominations were found eligible and total 10 seats were available in the Society, hence, no further election/polling was required in terms of sub-rule 3 of Rule 47-F. As not more than one valid nomination papers were received for a post, therefore, on 14.7.2015 in the presence of all elected members, the Returning Officer declared such candidates as duly elected and accordingly declared the results under sub-rule (3) of rule 49-F of Rules as per election programme. As such once, results were declared, the Authority had no jurisdiction to stay the election. It is further contended that if any person having locus standi, is aggrieved by the elections, he is always free to file an election dispute under section 64 of the Act. The authority has no jurisdiction to interfere with the results declared by Returning Officer under the Act and Rules framed thereunder. 9. It is further contended that even otherwise, the alleged communication staying the election so held is arbitrary, illegal and de hors facts on record. It is submitted that aforesaid impugned communication is sought to be justified on the basis of an enquiry allegedly held by the Collector on the complaint of respondent No.5 dated 6.7.2015. Respondent No. 5 was not among the candidates having filed the nomination papers. None of the candidates having filed the nominations, have raised any question or dispute in the matter of rejection of nomination papers or declaration of results. None of the candidates, whose nominations were accepted were noticed on complaint and no opportunity was afforded by the Collector. Even the authority while issuing the impugned communication solely acted upon the report of the Collector without notice and without seeing the record of Returning Officer. None of the candidates, whose nominations were accepted were noticed on complaint and no opportunity was afforded by the Collector. Even the authority while issuing the impugned communication solely acted upon the report of the Collector without notice and without seeing the record of Returning Officer. Learned counsel for the petitioner further contended that declaration of valid nominations for election of President/Vice President and representatives to be sent to other societies was in accordance with sub-rule (8) of rule 49-E of the Rules and likewise the elections of President/Vice President and representatives to be sent to other societies on 14.7.2015 was also in accordance with sub-rule (3) of rule 49-F. With aforesaid submissions, it is prayed that impugned communication deserves to be quashed. 10. To bolster his submissions learned counsel for the petitioner has relied on the judgment of this Court in the matter of Radhey Shyam Sharma v. Chairman, Sewa/Vriha Sahahkari Samiti Lashkar, Gwalior and others [1989 RN 99= 1989 MPLJ 208 ], to contend that the controversy involved in the aforesaid case was also similar to one in hand. This Court while rejecting the contention alleging colourable exercise of powers on the part of Returning Officer in the matter of rejection of nomination papers, has held that merely because as a result of acceptance of a particular number of nomination papers and if that number corresponds the number of seats to be filled up, it cannot be said that there was any design behind exercise of his powers by the Election Officer in doing so. 11. Learned counsel for the petitioner has also relied on the decision of this Court in the matter of Ganesh and others v. State of M.P. and others [2001 RN 411], para 43 of which reads as under :- “43. The core question is whether this Court should entertain the writ petition in view of the language employed under section 64 of the Act. True it is, on certain occasions this Court had interfered where there has been violation of the mandatory rules or mass rejection of the nomination forms. The learned counsel for the petitioners endeavoured hard to show that some of the cases are similar to the cases wherein this Court had interfered. True it is, on certain occasions this Court had interfered where there has been violation of the mandatory rules or mass rejection of the nomination forms. The learned counsel for the petitioners endeavoured hard to show that some of the cases are similar to the cases wherein this Court had interfered. With regard to valid appointment of Returning Officer, the cases which have been come before this Court at present are quite different than that of Thaneshwar Shyam Bihari Mishra (supra). In that case the appointment was vitiated being hit by the principle ‘delegatus non protest delegate’ and it was manifest on the face of it but the cases at hand require reference to various circulars and can be adjudicated by the Registrar. As far as the rejection of nomination papers in mass scale is concerned, as has been noticed earlier, in some cases singular petitioner has approached this Court. Quite apart from the above, in all circumstances it cannot be said that mass scale rejection or nomination papers would entitle the aggrieved persons to invoke the extraordinary jurisdiction of this Court. There may be justification for such rejection. To give a hypothetical example if a declaration is to be given under the Act but the same is not given by many a candidate whether fault can be found with the Returning Officer in law in rejecting the nomination papers. Whether opportunity was given tot he candidates at the time of scrutiny or not is another aspect altogether and remains int eh realm of facts which can be adjudicated by the Registrar. Thus, in my considered opinion, the decisions whether in there was interference are of not much assistance to the petitioners. As has been indicated in number of cases, in very exceptional case interference by this Court under Article 226 may be warranted but in the present batch of cases facts and circumstances do not so warrant and the petitioners can very well agitate their grievances before the Registrar of the Cooperative Societies.” 12. Except respondents No.2 and 6, none of the other respondents have filed counter affidavit. 13. Except respondents No.2 and 6, none of the other respondents have filed counter affidavit. 13. Following contentions are advanced by learned counsel for respondent No.2 : In the light of provisions as contained under section 57-B(2), the authority has vide powers of superintendence, direction and control in the matter of election of co-operative society and therefore, authority was fully competent to stay the election results declared on 14.7.2015. it is further contended that the complaint received on 7.7.2015 was duly notified to the Returning Officer for appearance before the Additional Collector on 13.7.2015, but he chose not to appear, therefore, after hearing the complainant, the report was prepared. Various irregularities were found on the part of Returning Officer while rejecting 21 nominations papers and declaring 10 nominations as valid nominations. Learned counsel has made reference to sub-rule (3) of rule 49-G of Rules to contend that the Authority was within its jurisdiction while staying the election by impugned communication. Relevant part whereof reads as under :- “(3) Fresh polling/election because of procedural irregularity- (a) If on any polling booth any error or irregularities in procedure as is likely to vitiate the poll is committed at the polling both, the Returning Officer shall inform the matter immediately to authority and shall also give a copy of the same to coordinator.” With the aforesaid submissions, learned counsel for the respondent prayed for dismissal of the petition. 14. Respondent No. 6 has also filed counter affidavit. It is contended that enquiry report dated 13.7.2015 by the Additional Collector on direction of the Collector vide letter dated 7.7.2015 with reference to the complaint of respondent No.5 was the basis for staying the election declared on 14.7.2015 for which respondent No.6 was never noticed for appearance before the Collector Office to remain present on 13.7.2015 as explained in detail in para 1 of the counter affidavit. As such, the report is prepared without hearing the respondent No.6-Returning Officer and without verifying the record. It is further contended that after appointment of Returning Officer, the election programme was declared. 21 nominations were found ineligible, hence, rejected. 10 nominations were found eligible or valid. Thereafter, notice for meeting was issued on 11.7.2015 and meeting was held on 14.7.2015 for election of President/Vice President and representatives to be sent to other societies and election results were declared. 21 nominations were found ineligible, hence, rejected. 10 nominations were found eligible or valid. Thereafter, notice for meeting was issued on 11.7.2015 and meeting was held on 14.7.2015 for election of President/Vice President and representatives to be sent to other societies and election results were declared. It is further contended that none of the candidates filing nomination papers have raised any dispute at the time of rejection of nomination papers or till completion of elections and issuance of results of election. Even respondent No.5, who otherwise not a candidate to election did not raise any dispute or complaint before respondent No.6 at any point of time. It is further contended that even the veracity of the allegations made in the complaint, if examined, it is crystal clear that there is inherent contradictions and inconsistencies, as it is alleged in the complaint that returning officer was not present in the office of society, by another complaint dated 9.7.2015 (Annexure R-2-4), it is alleged that on 1.7.2015 total 31 forms were received and 21 forms were rejected at home on 2.7.2015 without any reason under political pressure. On 13.7.2015 (Annexure R-2-7) in the statement before the Additional Collector, the complainant admitted that nomination forms were given on 1.7.2015 in office of society but no scrutiny and withdrawal of form proceedings was held on 2nd and 3rd July, 2015. As such, three different statements by complainant are well evident. There is no explanation as to why complaint was not filed on 2nd and 3rd July, 2015 in the context of aforesaid facts and circumstances. 15. Heard learned counsel for the parties. 16. The preliminary question arose for consideration is as regards scope of jurisdiction of this Court under Article 226 of the Constitution of India in the matter of election dispute in the facts and circumstances of the case. 17. Having gone through the judgments cited by learned counsel for the petitioner; this Court is in respectful agreement with the ratio of decisions cited by learned counsel for the petitioner. This Court in aforesaid decisions has referred to and relied upon catena of judgments of Supreme Court and this Court in the context of scope of jurisdiction under Article 226 of the Constitution of India in the matter of election disputes for which statutory remedy is provided for filing an election petition/dispute under the Act. This Court in aforesaid decisions has referred to and relied upon catena of judgments of Supreme Court and this Court in the context of scope of jurisdiction under Article 226 of the Constitution of India in the matter of election disputes for which statutory remedy is provided for filing an election petition/dispute under the Act. However, this Court consider it apposite to refer to one of the judgments of Hon. Supreme Court in the matter of Gajanan Krishnanji Bapat and another v. Dattaji Raghobaji Meghe and others, (1995)5 SCC 347 for exposition of law in the field. Para 12 of the aforesaid decision reads as under :- “12. The right to elect and the right to be elected are statutory rights. These rights do not inhere in a citizen as such and in order to exercise the right certain formalities as provided by the Act and the Rules made thereunder are required to be strictly complied with. The statutory requirements of election law are to be strictly observed because the election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law. The Act is a complete code in itself for challenging an election and an election must be challenged only in the manner provided for by the Act.” 18. Further a Division Bench of this Court in the case of Rajendra Shukla v. A.B.Qureshi, Assistant Registrar, Co-operative Societies, Bilaspur and others [ 1985 JLJ 370 = 1985 MPLJ 140 ], has observed that writ petition cannot be entertained after declaration of election programme in view of proviso to section 64 of the Act. 19. Further section 64 of the Act deals with Disputes and inter alia provides by way of proviso as under:- “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.” 20. Facts on record, reveal that Returning Officer in the process of scrutiny of nominations has rejected 21 nomination papers and found remaining 10 nominations as valid. Thereafter, meeting was convened on 14.7.2015. Facts on record, reveal that Returning Officer in the process of scrutiny of nominations has rejected 21 nomination papers and found remaining 10 nominations as valid. Thereafter, meeting was convened on 14.7.2015. Election of President/Vice President and representatives to be sent to other societies was declared on 14.7.2015 in terms of rule 49-F (3) of Rules, as such once the result has been declared, complaint on the ground of improper rejection of nomination papers, in the opinion of this Court can be made only by an election petition/dispute under section 64 of the Act as one of the grounds in the election petition. As complaint on the aforesaid premise, attributing motives and allegations against Returning Officer for enquiry by the Collector, is not envisaged either under the M.P. Co-operative Societies Act or Rules made thereunder for purpose of setting aside election. Authority in the purported exercise of powers of superintendence, direction and control under Clause (2) of section 57-B of Act cannot exceed its jurisdiction to interfere with the result of elections acting upon report of the Collector and thereby staying the election result already declared. The power under section 57-B(2) relates to the the preparation of electoral rolls and the conduct of all elections of co-operative society and does not extend to set aside the elections held for the reason of improper rejection of nomination papers; subject matter which is covered within the scope of election dispute as provided for under section 64 of the Act. Hon’ble Supreme Court in the case of M.P.Ponnuswami v. The Returning Officer, Manakkal Constituency, Namakkal, Salem, District and others [ AIR 1952 SC 64 ], in para 16 has held as under :- “16. The conclusions which I have arrived at may be summed up briefly as follows : (1) Having regards to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to timeschedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted. (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the ‘election”; and if any irregularities are committed while it is in progress and they belong to the category or class which under the law by which elections are governed, would have the effect of vitiating the “election” and enable the person affected to call it in question, they should be brought up before a special Tribunal by means of an election petition and not be made the subject matter of a dispute before any Court while the election is in progress.” (emphasis supplied) 21. In light of the aforesaid discussion, this Court holds that the authority has acted in excess of its jurisdiction and the same finds support of judgments of this Court and Hon. Supreme Court. The contention of learned counsel for respondent No.2 that issuance of impugned communication (Annexure P-1) by the authority was well within his jurisdiction in exercise of his powers of superintendence, control and direction under sub-section (2) of section 57-B of the M.P. Co-operative Societies Act read with rule 49-G (3) quoted above, in the opinion of this Court, is far-fetched and contrary to the settled legal position. As per the election programme, election of President, Vice President and Representatives to be sent to the other societies was declared on 14.7.2015. The powers under section 57-B(2) is in relation to preparation of electoral rolls and conduct of election of the society and cannot be stretched to intermingle with election results declared with the aid of rule 49-G (3) quoted above, which has no application to such situation. The only remedy available to person aggrieved by the declaration of result is to file election petition or election dispute before the Registrar under section 64 of the Co-operative Societies Act. The reliance on the judgment of the Hon’ble Supreme Court in the case of Mohindeer Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and others [ AIR 1978 SC 851 ], is of no assistance to the petitioner. 22. In view of the aforesaid opinion formed by this Court on jurisdictional issue, this Court does not propose to interfere into the merits and demerits of factual disputes raised by the parties as there are allegations and counter allegations. 22. In view of the aforesaid opinion formed by this Court on jurisdictional issue, this Court does not propose to interfere into the merits and demerits of factual disputes raised by the parties as there are allegations and counter allegations. Even otherwise, the report submitted by Additional Collector dated 13.7.2015 on a complaint of third person, not being a candidate to the election and without notice to Returning Officer and without verifying the record, could not form basis to justify stay of election by authority and thereby restraining elected office bearers to function. 23. Accordingly, writ petition is hereby allowed and impugned communication (Annexure P-1) dated 14.7.2015 is hereby set aside. RDS ...............