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2018 DIGILAW 413 (UTT)

ARJUN SINGH v. STATE OF UTTARAKHAND

2018-08-03

SUDHANSHU DHULIA

body2018
JUDGMENT : SUDHANSHU DHULIA, J. 1. Petitioner was elected to the general body of the Cooperative Society. The general body of the Cooperative Society had to elect its Committee of Management and thereafter the Committee of Management had to elect the Chairman, Vice-Chairman and delegates to the higher level society, for which the elections had to take place on 22.07.2018 and 23.07.2018 respectively. The schedules notified for the elections were as follow:- 1. Declaration of election programme 10.07.2018 10 am -- 2. Display of draft final voter list 11.07.2018 10 am Filing of objections to the draft final voter list 4pm 3. Hearing on the objections to the Draft final voter list and disposal of the same 12.07.2018 From 10 am to 2 pm 4. Display of final voter list 12.07.2018 02.30 pm 5. Sale of nomination papers, filing of nomination papers and display of the list of nomination papers 14.07.2018 11 am to 04:30 pm 6. Scrutiny of the nomination papers, filing of objections and disposal of the same and display of the list of valid nomination papers 15.07.2018 10 am to 4.30 pm 7. Withdrawal of nomination papers, display of list of final valid nomination papers and allotment of the election symbols 16.07.2018 11 am to 04:30 pm 8. Voting (if required) 22.07.2018 8 am to 3 pm 9. Counting of ballot papers and Declaration of the election result 22.07.2018 From 3 pm till the election result is declared 1. Sale and receipt of the nomination Papers for election of Chairman, Vice-Chairman and delegates of the committee of management 23.07.2018 From 10 am to 12 noon -- 2. Scrutiny of nomination papers received 23.07.2018 12 noon to 01 pm 3. Filing of objections on nomination papers 23.07.2018 From 01 pm to 02 pm 4. Disposal of objections 23.07.2018 02 pm to 03 pm 5. Withdrawal of nomination 23.07.2018 03 pm to 03:30 pm 6. Display of valid nomination papers 23.07.2018 3:30 pm 7. Allotment of election symbols 23.07.2018 04 pm to 04:30 pm 8. Voting 23.07.2018 04:30 pm to 05:30 pm 9. Counting of votes 23.07.2018 Immediately after polling 10. Declaration of election result 23.07.2018 Immediately after counting 2. Withdrawal of nomination 23.07.2018 03 pm to 03:30 pm 6. Display of valid nomination papers 23.07.2018 3:30 pm 7. Allotment of election symbols 23.07.2018 04 pm to 04:30 pm 8. Voting 23.07.2018 04:30 pm to 05:30 pm 9. Counting of votes 23.07.2018 Immediately after polling 10. Declaration of election result 23.07.2018 Immediately after counting 2. However, as per the report dated 15.7.2018 of the Election Officer, on 15.7.2018, the date on which the scrutiny of the nomination papers was to be made and objections to the same had to be disposed of and the list of valid nomination papers had to be displayed, some anti-social elements entered in the office of the Election Officer and created uproar there and disrupted the proceedings and posed serious threat to the peace and law and order situation and, therefore, the Election Officer, felt himself unable to go ahead with the further election schedule and postponed the elections. The said report of the Election Officer produced before this Court today is made part of the record as Annexure 'A' to the writ petition. Aggrieved with the postponement of elections, the petitioner has filed the present writ petition before this Court. 3. The cooperative societies now find a place in the Constitution of India in Part IXB by way of 97th Constitutional amendment. The election of members of the board and the term of the members of the cooperative societies are given in the Constitution itself in Article 243ZK of the Constitution of India. Article 243ZK of the Constitution of India reads as under:- "243ZK. Election of members of board.- (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board. (2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law: Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such election." 4. Clause (2) of Article 243ZK of the Constitution of India gives the responsibility of superintendence, direction and control of the preparation of electoral rolls and the conduct of all elections to the cooperative societies to an authority or a body to be constituted by the Legislature of the State. In terms of the aforesaid provision in the State of Uttarakhand, the authority which has been constituted is known as "Cooperative Election Authority of Uttarakhand" which is at Dehradun. 5. Admittedly, the aforesaid authority i.e. Cooperative Election Authority has now the responsibility, not only to prepare the electoral rolls but for the entire superintendence, direction and control of these elections. Consequently, the present ongoing elections to the various cooperative societies are being done under direction, supervision and control of the said authority, which is functional in Uttarakhand, as this Court has been informed. 6. In Pauri Garhwal, for the entire District there is one returning officer appointed by the authority and thereafter for the conduct of elections to each cooperative societies, there are separate Election Officers. The present elections with which we are presently concerned are under the supervision of an Election Officer. However, the Election Officer postponed the election, inter alia, as certain unruly elements entered the office and disrupted the proceedings and also torn some nomination papers, thereby disturbing the peace in the election process. As a result of which, he was not able to conduct the election process and consequently postponed the elections exercising his power under the Rules. This Court has also been informed that the next date fixed for the elections is 20/21.08.2018. In view thereof, no interference is liable to be made. 7. The only question before this Court is that from which stage the election is to be held now. 8. The power to postpone and cancel of such elections is given to the election officer under the Rules framed by the State Government known as Uttaranchal Co-operative Societies Rules, 2004. The relevant Rules are 440, 441 and 449 which read as under:- "440. If polling or any proceedings of election get disrupted due to riots or open violence at the place of polling or holding election is not possible at any place due to any natural calamity or any other cogent reasons, the Election Officer appointed for such election, shall declare postponement of election till next date to be notified later. If polling or any proceedings of election get disrupted due to riots or open violence at the place of polling or holding election is not possible at any place due to any natural calamity or any other cogent reasons, the Election Officer appointed for such election, shall declare postponement of election till next date to be notified later. The information of such postponement shall be given to the District Magistrate and the Registrar immediately on which the Registrar shall fix the new date for the election. 441. Where the State Government is satisfied that circumstances exist which render it difficult to hold the election on the date fixed by the Registrar, it may direct the Registrar to postpone the election and thereupon the Registrar shall postpone the election and all proceedings with reference to election shall be commenced afresh in all respect: Provided that if nominations have been finalised and symbols have been allotted, the process of election shall continue and poll shall be held on such date as the Registrar may fix. 449. If for any reason the election officer of any society has been disrupted by the District Magistrate, or the Election Officer, the process of election shall commence from the stage at which it is disrupted or from a stage prior to that or de novo as the Registrar may decide: Provided that if nominations have been finalised and symbols have been allotted, the process of election shall continue and poll shall be held on such date as the Registrar may fix." 9. The proviso to the rule 449 clearly determines that in case where the election symbols have been allotted, the process of election shall continue from the stage where there was a disruption and poll shall be held only from that stage as the Registrar may fix. Meaning thereby that it will not start de novo. 10. Learned counsel for the authority Sri Paresh Tripathi would argue that the powers have been given under the Rules to the Election Authority or the concerned authority which in the present case would be the Election Authority to take a decision whether the election shall be de novo or from the point such a disruption had taken place. Undoubtedly, these decisions have to be taken judicially after taking into consideration all the relevant factors. 11. Undoubtedly, these decisions have to be taken judicially after taking into consideration all the relevant factors. 11. In this case, in my considered view definitely elections cannot proceed de novo as such powers have only been given to the State Government in an emergency condition which is visualized under Rule 441, though even there the proviso clearly stipulates that it will not be de novo but the process shall commence from the point of disruption if the election symbols have already been allotted but the bare reading of Rules 441 and 449 as well the intent and the purpose of the entire election exercise and the Rules and the Act for the purpose show that the primary purpose is to expedite the elections. Therefore, in my considered view in the present case as well, the process of election will not start de novo, but the process of election will only commence from the point of disruption. 12. In this case, prior to the disruption which occurred on 15.07.2018, all procedures which had to be completed by 3.30 PM on 15.07.2018 had already been completed i.e. the scrutiny of the nomination papers was done. But thereafter some unruly elements entered the office of the Election Officer and destroyed the nomination papers which on scrutiny were rejected by the Election Officer. Ultimately, the Election Officer citing law and order problem postponed the elections. 13. Considering the facts and circumstances of the case, I am of a considered view that the elections should resume from the point of disruption i.e. the Election Officer will resume the further election process from the stage of displaying the list of valid nomination papers, and not from the stage of filing the nomination papers afresh. Meaning thereby that the nomination papers of only such candidates will be considered who have been found to be eligible i.e. 20 candidates. Candidature of 5 rejected candidates shall not be considered. 14. District Magistrate, Pauri Garhwal and the Sub-Divisional Magistrate, Pauri Garhwal are hereby directed to ensure that no disturbance takes place in the election process and adequate security be provided for completion of the peaceful elections. 15. With the observations/directions as above, the writ petition stands disposed of finally.