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2017 DIGILAW 331 (MP)

DAYARAM DHEEMAR v. STATE OF MADHYA PRADESH

2017-03-06

VIJAY KUMAR SHUKLA

body2017
ORDER : VIJAY KUMAR SHUKLA, J. 1. In the instant petition filed under Article 226 of the Constitution of India the petitioners have called in question legality and validity of the order dated 8-2-2017 passed by the M.P. State Co-operative Election Authority, Bhopal [hereinafter referred to as 'the Election Authority'] declaring the programme of Laharbandh Matsyudyog Sahkari Samiti Maryadit, Nagara, Tikamgarh, whereby the election of the Board of Directors, Office Bearers and Representatives have been scheduled and commenced from 13-02-2017. 2. Bone of contention of the petitioners is that the election programme has been issued despite an interim order, dated 2-5-2016 passed by the M.P. State Co-operative Tribunal, Bhopal [for short 'the Tribunal'] directing to maintain status-quo in respect of the membership of the petitioner and 14 others. It is contended that the present petitioner and 14 others who were eligible to become Members of the Society had applied for membership but the Chairman due to vested interest, was unable to give membership to the applicants and, therefore, all the 16 persons approached the respondent No.3 - Deputy Registrar, Co-operative Societies, Tikamgarh, District Tikamgarh whereby the respondent No.3 had directed the respondent No.4 to give membership to the petitioners and 14 others, vide order dated 10-11-2015. 3. The Chairman of the Society had challenged the order dated 10-11-2015 before the Joint Registrar, Co-operative Societies, Sagar and the said Authority by order dated 31-01-2016 set aside the order dated 10-11-2015 and allowed the appeal filed by the respondent No.4. It is asserted that the present petitioners and 14 others have assailed the order of the Joint Registrar before the Tribunal by filing a revision under Section 77(14) of the M.P. Cooperative Societies Act, 1960 [hereinafter referred to as 'the Act'] whereby the Tribunal has passed an order of 'status-quo'. 4. Counsel appearing for the petitioners further submits that the election Programme issued by the Election Authority in exercise of power under Rule 49 of the M.P. Co-operative Societies Rules, 1962 [for short 1962 Rules'] is illegal, as the order has been passed during operation of the order of 'status-quo'. 5. In the present case impugned notification of election was issued on 8-02-2017 and the instant writ petition has been preferred on 01-03-2017 after commencement of the election process. 5. In the present case impugned notification of election was issued on 8-02-2017 and the instant writ petition has been preferred on 01-03-2017 after commencement of the election process. The election process has already commenced and the last date of submitting nomination was 01-03-2017 and the list of valid nominations has also been published on 01-3-2017. Contention of the petitioners is that the impugned notification is illegal, as the same has been issued after passing the order of 'status-quo' by the Tribunal. The order of status-quo does not indicate that the same was passed in respect of holding the elections of the Society. The petitioners have not filed any document to show that in pursuance to the order passed by the Deputy Registrar, Co-operative Societies, Tikamgarh their names have already been included in the voters list and the order of status-quo was passed in respect of holding the elections of the Society. 6. On the contrary, in para 7-III of the relief clause the petitioners have also prayed for inclusion of their names and others in the voters list. I am afraid, such a relief cannot be granted in exercise of writ jurisdiction under Article 226 of the Constitution of India. Elections are being conducted in accordance with the provisions of the Act and the Status prescribes a remedy under Section 64, in Chapter VII of the Act. At this juncture, it is apt to reproduce Section 64(2)(v) of the Act. It reads thus: "64. Disputes. Elections are being conducted in accordance with the provisions of the Act and the Status prescribes a remedy under Section 64, in Chapter VII of the Act. At this juncture, it is apt to reproduce Section 64(2)(v) of the Act. It reads thus: "64. Disputes. - (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, management or business, or the liquidation of a society shall be referred to the Registrar by any of the parties to the dispute if the parties thereto are among the following:- (a) xxx xxx xxx (b) xx xx xxx (c) xx xx xx (d) xx xx xx (e) xx xx xx (f) xx xx xx (2) For the purpose of sub-section (1), a dispute shall include- (i) xx xx xx (ii) xx xx xx (iii) xx xx xx (iv) xx xx xx (v) any dispute arising in connection with the election of any officer of the society or representative of the society or opposite 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." 7. In the case of Ram Singh v. State of M.P. and others, 2008(4) MPLJ 353 a Division Bench of this Court considering the statutory bar under Section 64 of the Act held thus: "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 v. State of MP and others, 2002 (2) MPLJ 165. In Shiv Narain Pandey v. 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 v. 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. In Bhawani Shankar Sharma v. 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 v. 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 v. Chairman, Sewa Sahakari Samiti, 1989 MPLJ 208 = 1989 RN 99, Ramdeo Sharma v. Dy. Registrar, Gwalior, 1993 RN 18, Ram Swaroop, Dohare v. Ayukta Sahkarita, AIR 1996 MP 187 , Jagdish Sharma v. State of MP, 1996 RN 60, and Suresh Chandra Jain v. State of MP, 1996 RN 131." 8. It is also useful to refer to the judgment of this Court passed in the case of Bhopal Co-operative Wholesale Consumer Stores Ltd., Bhopal v. M.P. Co-operative Societies, Tribunal Bhopal and others, 2002(2) MPLJ 542 wherein in paras 15 and 16 it is observed thus: "15. This Court has taken the consistent view that election should be allowed to be completed peacefully without any interruption from any forum. In Shiv Narayain Pandey v. Satish Tiwari, 1998 RN 178, this Court laid down that no interference should be made by any form in the process of election. 16. In Radheshyam v. Chairman, Sahkari Samiti AIR 1979 MP 156 (sic) this Court observed that election should be allowed to be completed unhindered. In Radheshyam v. Chairman, Sewa Sahkari Samiti 1989 MPLJ 208 = 1989 RN 99, this Court again emphasized that dispute as to the voter list should be raised in election dispute under Section 64 of the Act of 1960 after election is over and and not in the writ petition. In Ramdeo Sharma v. Dy. Registrar, Gwalior, 1993 RN 18, this Court again cautioned from making interference in the election process before its completion. Similar is the view taken by this Court in Ramswarup Dohare v. Ayukta Sahkarita, AIR 1996 MP 187 ; Jagdish Sharma v. State of M.P., 1996 RN 60 and Suresh Chandra Jain v. State of M.P. 1996 RN 131. Registrar, Gwalior, 1993 RN 18, this Court again cautioned from making interference in the election process before its completion. Similar is the view taken by this Court in Ramswarup Dohare v. Ayukta Sahkarita, AIR 1996 MP 187 ; Jagdish Sharma v. State of M.P., 1996 RN 60 and Suresh Chandra Jain v. State of M.P. 1996 RN 131. In Bhawani Shankar Sharma v. State of M.P. and others, 1998(2) MPLJ 20 this Court emphasized that dispute as to the election should be raised in the dispute under Section 64 of the Act of 1960 after completion of the election. Registrar or Courts are cautioned not to make interference in peaceful completion of process. Dispute has to be raised and settled later on." 9. In a recent judgment rendered in the case of Prakash Motiram Chavan v. Harichand and others, (2015) 16 SCC 448 the Apex Court had laid down the principle that after commencement of the election process, no interference is warranted at that stage. 10. In view of the aforesaid enunciation of law, no interference is called for by this Court in writ jurisdiction. Accordingly, the writ petition is dismissed summarily. However, if so advised, the petitioners may avail the alternative remedy after completion of the election, in accordance with law, especially in the light of the provision envisaged under Section 64 of the Act.