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2018 DIGILAW 831 (ALL)

Nandita Singh v. State of U. P.

2018-04-05

ABDUL MOIN, VIKRAM NATH

body2018
JUDGMENT : 1. This petition under Article 226 of the Constitution of India has been filed praying for quashing of the order dated 30.3.2018 (Annexure-1 to the petition) passed by the Election Officer (respondent No. 3) whereby the nomination of the petitioner for election of Members of the Committee of Management of Thok Kendriya Upbhokta Sahkari Bhandar Ltd. from Constituency No. 7, namely, Haidergarh-Fatehpur-Ram Nagar, has been rejected. A perusal of the impugned order indicates that the nomination has been rejected for the reason that the nomination papers did not contain the name of the Seconder nor did it bear the signature of the Seconder. 2. The Chief Election Commissioner notified the election schedule vide order dated 16.1.2018 (Annexure - 3 to the petition) for electing the members of the Committee of Management of Thok Kendriya Upbhokta Sahkari Bhandar Limited. According to the election schedule, the provisional electoral roll was to be published on 23.3.2018. Objections to the electoral roll could be filed till 26.3.2018. Thereafter, 27.3.2018 was fixed for disposal of the objections on the electoral roll and on the same day, the final electoral roll was to be published. 28.3.2018 was fixed for filing of nomination papers. Scrutiny was to be carried out on 30.3.2018 and the list of valid nominations was to be published on the same day. The candidates were free to withdraw their nomination till 31.3.2018 and on the same day final list of valid nominations was to be published. If required, the polling was scheduled for 4.4.2018 and the counting and declaration of result was also to be done on the same day. 3. In the Constituency No. 7, namely, Haidergarh-Fatehpur-Ram Nagar, the electoral roll for electing representative consisted of two members, namely, Sri Ashish Kumar Maurya and Smt. Nandita Singh (petitioner). A photocopy of the voter list issued by the Election Officer has been filed as Annexure - 2 to the petition. The said Constituency was a reserved Constituency for Other Backward Classes (OBC). The petitioner claims herself to be belonging to OBC and accordingly filed her nomination papers and the other member Sri Ashish Kumar Singh signed the nomination papers as Proposer. By the impugned order dated 30.3.2018, the nomination paper has been rejected for the reason that neither the name of the Seconder was disclosed nor the nomination papers contain the signature of the Seconder. 4. By the impugned order dated 30.3.2018, the nomination paper has been rejected for the reason that neither the name of the Seconder was disclosed nor the nomination papers contain the signature of the Seconder. 4. We have heard Sri Anil K. Tripathi and Sri Nishant Shukla, learned Counsel for the petitioner, Sri Manish Mishra, learned Standing Counsel for the State-respondents and Sri Gaurav Mehrotra, learned Counsel representing respondent No. 3. 5. Learned Counsel for the petitioner submitted that as there were only two voters in the electoral roll for Constituency No. 7, the petitioner being the candidate, the only other voter available was Sri Ashish Kumar Singh, who had proposed her name and had also put his signatures. The petitioner could not get any Seconder as there was no third member in the electoral roll. It is also submitted by the learned counsel for the petitioner that under Rule 40(3) of the U.P. State Co-operative Societies Election Rules, 2014, the Proposer and the Seconder to the nomination have to be the voters other than the candidate himself of the same Constituency. Since there were only two voters in the said Constituency and the candidate herself could not be either Proposer or Seconder, there was no justification for rejection of the nomination paper as it was an impossibility to produce a Seconder. 6. Learned Counsel for the petitioner further submitted that applying the doctrine of impossibility or as it may be worded doctrine of necessity, there could not have been a Seconder, as such the Election Officer committed grave illegality apparent on the face of record in rejecting her nomination paper which was completely valid and in order. There was no way under which the petitioner could have got a Seconder to her nomination. It is also the submission of the learned Counsel for petitioner that in fact on 31.03.2018 the Election Officer ought to have declared the petitioner as elected member from Constituency No. 7, under the relevant provisions. 7. In reply Sri Gaurav Mehrotra submitted that if the averments made in the petition and as supported by the documents therein are correct, apparently the submission of the petitioner can not be said to be without basis. 7. In reply Sri Gaurav Mehrotra submitted that if the averments made in the petition and as supported by the documents therein are correct, apparently the submission of the petitioner can not be said to be without basis. Upon instructions Sri Mehrotra further submitted that the Chief Election Commissioner vide order dated 3.4.2018 invoking the powers conferred under the proviso to Section 29 (3) of the U.P. Co-operative Societies Act, 1965 has stayed the election process of the Society in question and has further provided that a fresh programme for the election would be declared later. A copy of the order dated 3.4.2018 has been placed before us. A perusal of the same indicates that on account of some faulty calculation of the Constituencies of the Society for which elections were to be held having been noticed, it has become necessary to re-visit the determination of Constituencies and only thereafter the elections could be held. In view of this order dated 3.4.2018, Sri Mehrotra submitted that the present petition has been rendered infructuous. According to him, as and when the fresh election schedule is notified, the petitioner can apply afresh. 8. Having considered the above submissions, we have no hesitation to hold that for the present, the petition may have been rendered infructuous as the election programme itself has been suspended and stayed and a fresh election schedule is to be published but nevertheless we are of the view that the rejection of the petitioner's nomination for the reason that there was no Seconder mentioned in the nomination paper nor did the nomination paper bear the signature of the Seconder could not be legally sustained until and unless there are three or more voters in the electoral roll and in the light of the provisions contained in Rule 40(3) of the 2014 Rules there could not have been a Seconder. The provisions of the Rules 2014, are to be read, understood and applied in the facts of the case after due application of mind and by taking a pragmatic approach in order to advance the cause rather than scuttle the whole exercise without understanding the impossibility of the situation. The nomination papers of the petitioner was otherwise valid considering the category of reservation and other requirements to be fulfilled as no other objection has been indicated by the Election Officer. The nomination papers of the petitioner was otherwise valid considering the category of reservation and other requirements to be fulfilled as no other objection has been indicated by the Election Officer. The order of the Election Officer impugned in the petition was therefore liable to be quashed. 9. We also feel that the Election Commission should carryout a refresher course or a short duration training course for all the Election Officers and the officials involved in the process of election for conducting it about the relevant provisions so that such faulty orders on the face of it may not be passed which create not only unnecessary harassment to the parties but also takes away the valuable time of the Court in dealing with such patently illegal orders not based on record. The Election Officer apparently did not care to examine the strength of the voters in the electoral roll of the Constituency No. 7 otherwise would not have taken such a view. 10. In view of above, the petition although is dismissed as having been rendered infructuous but in the interest of the cause espoused, we direct the State Election Commission to consider the observations made in the order and train the officials involved in the process of election for conducting it to take pragmatic approach to the issues and not simply take hyper-technical approach without even verifying the facts.