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2019 DIGILAW 421 (GAU)

Ajoy Kumar Majumder v. State of Assam

2019-04-03

UJJAL BHUYAN

body2019
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. AI Uddin, learned counsel for the petitioners; Dr. B Ahmed, learned Standing counsel, Cooperation Department, Government of Assam; Mr. H. Ali, learned counsel for respondent No. 7; Mr. B K Mahajan, learned counsel for respondent No. 8; and Mr. N. Haque, learned counsel for respondent Nos. 9 to 23. 2. Subject matter of both the writ petitions relate to election of No. 1 Lumding Samabay Samity Limited and, therefore, the two writ petitions were tagged and heard together. 3. No. 1 Lumding Samabay Samity Limited is a cooperative society which was registered under the Assam Cooperative Societies Act, 1949 (1949 Act) and presently governed by the provisions of the successor act, i.e., the Assam Cooperative Societies Act, 2007 (2007 Act). It is stated that No. 1 Lumding Samabay Samity Limited (cooperative society) consists of two parts, i.e., Part-1 and Part-2. There are a total of 5599 number of shareholder members; 3593 in Part-I and 2006 in Part-II. Though the cooperative society has two parts it is managed by a common managing body. As per byelaws of the cooperative society, 12 members are elected to the managing body from Part-I and 4 from Part-II. Last election of the managing body of the cooperative society was held on 25.7.2012, whose term expired on 24.7.2017. 4. Thereafter, notification dated 7.7.2017 was issued for holding Annual General Meeting (AGM) and election to elect a new managing body fixing 24.07.2017. It is stated that out of the 15 members, 8 were to be from Part-I and 4 from Part-II and in addition to two women members and one representing Scheduled Castes/Scheduled Tribes. 5. It is stated that petitioner Nos. 1 to 6 submitted their nominations for election to the managing body from Part-I; petitioner Nos. 7 to 10 from Part-II; petitioner No. 11 from Scheduled Castes/Scheduled Tribes category and petitioner Nos. 12 and 13 representing women candidates. Altogether 30 numbers of candidates had submitted their nominations. 6. It is alleged that the CCTV cameras installed in the election hall of the cooperative society were stolen on the previous day of election. However, on the day of election a new set of CCTV cameras were installed. 7. According to the petitioners, polling commenced from 10 am of 24.07.2017, but around 11:15 am, respondent No. 8 and his supporters entered the election hall and captured the same. However, on the day of election a new set of CCTV cameras were installed. 7. According to the petitioners, polling commenced from 10 am of 24.07.2017, but around 11:15 am, respondent No. 8 and his supporters entered the election hall and captured the same. The genuine shareholders were prevented from casting their votes and there were bogus voting. Though written complaint was lodged before the Presiding Officer, no action was taken. FIR lodged before Lumding Police Station was not registered, whereafter petitioner No. 1 lodged complaint in the Court of Sub- Divisional Judicial Magistrate, Hojai at Sankardev Nagar, which has been registered as C R Case No. 930/2017. 7.1. It is in such circumstances that WP(C) No. 4585 of 2017 has been filed for declaring the election held on 24.07.2017 null and void. Grounds of such challenge are as under:- (a) Out of more than 5500 voters, only around 1800 voters had cast their votes. Therefore, the election did not represent popular participation or popular mandate of the members of the cooperative society. (b) Large scale corrupt practice were resorted to and rigging took place. There was no free and fair election, rather there was booth capturing, which had vitiated the result of the election. 8. Though not expressly stated in the writ petition it appears that respondent Nos. 9 to 23 were elected in the election which took place on 24.07.2017. 9. This Court by order dated 02.08.2017 had issued notice and passed an interim order to the effect that approval as regards constitution of the new committee should be kept in abeyance. Respondent No. 2, i.e., Registrar of Cooperative Societies was directed to make an enquiry. 10. In WP (C) No. 6764 of 2017, the four petitioners claim to be share holder members of the cooperative society. They have also challenged the election held on 24.07.2017 but on somewhat different grounds. According to the petitioners, the cooperative society initially had two parts, which was reflected in the constitution of the managing body in the ratio of 8:4. However, on account of amendment of the byelaws of the cooperative society in the year 2015, both the parts were amalgamated and a 15 member managing body has now been constituted. Grievance of the petitioners is that without taking into account the amendment to the byelaws, election was held on 24.07.2017. However, on account of amendment of the byelaws of the cooperative society in the year 2015, both the parts were amalgamated and a 15 member managing body has now been constituted. Grievance of the petitioners is that without taking into account the amendment to the byelaws, election was held on 24.07.2017. Additionally, it is contended that there were rampant anomalies in the election which took place on 24.07.2017, which vitiated the electoral process and the outcome. 11. This Court by order dated 10.11.2017, had issued notice with the observation that the case should be tagged with WP(C) No. 4585 of 2017. 12. In WP (C) No. 4585 of 2017, affidavit has been filed by respondent No. 2, i.e., the Registrar of Cooperative Societies. He has stated that he had directed the Zonal Joint Registrar of Cooperative Societies to hold an enquiry into the manner of holding the AGM/election of the cooperative society under Hojai Sub-Division of Hojai District. In his preliminary report dated 17.08.2017, Zonal Joint Registrar stated that the allegations were not supported by evidence. Therefore, petitioners were granted further time to prove the allegations. Due to paucity of time, the enquiry could not be proceeded further, but in view of pendency of the writ petition, preliminary report was submitted. 13. Additional Registrar of Cooperative Societies, Assam, thereafter prepared a comprehensive report dated 16.11.2017 as per which petitioner No. 1, Shri Ajoy Kumar Majumder who was earlier member of the managing body of the cooperative society, but in the election held on 24.07.2017, he was defeated. He complained that he and his followers had lost the election due to malpractices committed and unfair means adopted by a group of persons under the instruction of the local MLA. However, the Additional Registrar observed that three numbers of former Directors under the chairmanship of petitioner No. 1, Shri Ajoy Kumar Majumder retained their seats on being re-elected. Shri Ajoy Kumar Majumder could not produce any document to prove his claim at the time of enquiry. Departmental officers who had conducted the enquiry stated that the election of the cooperative society which was held on 24.7.2017 was free and fair. In such circumstances, Registrar after comparing the two reports dated 17.08.2017 and 16.11.2017 concluded that the election of the cooperative society was conducted smoothly on 24.07.2017. 14. Departmental officers who had conducted the enquiry stated that the election of the cooperative society which was held on 24.7.2017 was free and fair. In such circumstances, Registrar after comparing the two reports dated 17.08.2017 and 16.11.2017 concluded that the election of the cooperative society was conducted smoothly on 24.07.2017. 14. In WP(C) No. 6764 of 2017, Joint Registrar of Cooperative Societies in his affidavit has taken the stand that after the 2007 Act came into force w.e.f. 10.02.2012, the cooperative societies were required to get their respective byelaws amended to bring it in conformity with the 2007 Act. 2007 Act was amended in the year 2012 with the objective that byelaws of the cooperative societies should be amended to bring it in conformity with the amended act. Therefore, it is contended that the earlier byelaws of the society became null and void. On that count election of the cooperative society cannot be said to be vitiated. 15. Elaborate submissions were made by learned counsel for the parties. Dr. Ahmed has also produced the record. 16. After hearing learned counsel for the parties and carefully going through the pleadings and record, what is discernible is that the two sets of petitioners have challenged the election of respondent Nos. 9 to 23 in the election of the cooperative society which took place on 24.07.2017. Election of respondent Nos. 9 to 23 have been questioned on the ground of booth capturing, unfair electoral practice and non-conformity with the previous byelaws, in addition to violence and bogus voting. Therefore, in sum and substance, it is basically an electoral dispute between petitioners on the one hand and respondent Nos. 9 to 23 on the other hand. 17. In such circumstances, first question to be considered is when such a dispute as to election in a cooperative society is raised what could be the appropriate forum to adjudicate such dispute? 17.1. To examine this issue, it would be apposite to dwell upon the relevant provisions of the Constitution of India and the 2007 Act. By the Constitution (97th Amendment) Act, 2011, Part-IX - B was inserted in the Constitution of India. Under this part, cooperative societies have been brought within the constitutional framework. Part-IX-B of the Constitution comprises Article 243- ZH to Article 243-ZT. By the Constitution (97th Amendment) Act, 2011, Part-IX - B was inserted in the Constitution of India. Under this part, cooperative societies have been brought within the constitutional framework. Part-IX-B of the Constitution comprises Article 243- ZH to Article 243-ZT. Article 243-ZH (b) defines "board" to mean board of directors or governing body of the cooperative society, which shall be in control of the management of the affairs of the cooperative society; as per Article 243-ZJ (1) board of directors shall consist of such number of directors as may be provided by the Legislature of a State, by law. As per proviso, the maximum number of directors of a cooperative society shall not exceed 21. As per the second proviso, there should be reservation of one seat for the Scheduled Castes or Scheduled Tribes and two seats for women. Sub-Article (2) says that term of office of the elected members of the board of directors shall be five years from the date of election and the term of office bearers shall be co-terminous with the term of the board of directors. 17.2. Election of members of board of directors is dealt under Article 243-ZK. Article 243-ZK says that notwithstanding anything contained in any law made by the Legislature of a State, the election of aboard shall be conducted before expiry of the term of the board of directors. Sub-Article (2) says that superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to a cooperative society shall vest in such an authority or body, as may be provided by the Legislature of a State. As per proviso to Article 243-ZK, Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections. 18. Before adverting to the 2007 Act, it may be useful to refer to the provisions contained in Part-DC of the Constitution comprising Articles 243 to 243-O, which was inserted in the Constitution of India by the Constitution (73rd Amendment) Act, 1992. Part-IX deals with Panchayats. In Part-DC, Article-243-O clearly bars interference by courts in electoral matters. As per Article-243-O(b), no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. 18.1. Part-IX deals with Panchayats. In Part-DC, Article-243-O clearly bars interference by courts in electoral matters. As per Article-243-O(b), no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. 18.1. Following insertion of Article 243 in the Constitution, Assam Panchayat Act, 1994 was enacted, whereunder Section 129 bars interference by courts in electoral matters except by way of election petition. Panchayat Election Tribunal constituted under Section 127 of the Assam Panchayat Act, 1994 is the adjudicatory forum for presentation and adjudication of election petition relatable to Panchayat election. This provision barring interference by courts in electoral matters of Panchayats is akin to the provision of Article 329 of the Constitution, more particularly Article 329 (b), which says that notwithstanding anything in the Constitution, no election to either House of Parliament or to the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for or under any law made by the appropriate Legislature. Representation of the People Act, 1951 was enacted by the Parliament to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. Under Section 80 of the Representation of People Act, 1951, no election shall be called in question except by an election petition and as per Section 80-A, the Court having jurisdiction to try an election petition shall be the jurisdictional High Court. Election of a returned candidate may be challenged on the grounds mentioned in Section 100 of the Representation of the People Act, 1951. 18.2. Therefore, viewed in the context of Article 329 (b) and Article 243-O of the Constitution, omission in Part-IX-B of the Constitution to bar interference by courts in electoral matters of cooperative societies is significant. Parliament in its wisdom has not provided for such provision. 18.2. Therefore, viewed in the context of Article 329 (b) and Article 243-O of the Constitution, omission in Part-IX-B of the Constitution to bar interference by courts in electoral matters of cooperative societies is significant. Parliament in its wisdom has not provided for such provision. On the other hand, as per proviso to Sub-Article (2) of Article 243-ZK, Parliament has provided that Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of elections. 19. Let us now proceed to the 2007 Act. 19.1. As is evident, the 2007 Act was enacted prior to insertion of Part-IX-B in the Constitution. However, subsequent amendments were made to bring the 2007 Act in tune with the constitutional requirement. 19.2. Section 35(1) of the 2007 Act provides that there shall be an elected Board of Directors to manage the affairs of every co-operative society. As per Sub-Section (2), the Board shall consist of 15 number of Directors, provided that there shall be reservation of one seat of Director for the Scheduled Castes or the Scheduled Tribes and two seats for women. Election to the Board of Directors is dealt in Section 41. Sub-Section (1) thereof says that 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 the Registrar. Pausing here for a moment, it is seen that language of Sub-Section (1) of Section 41 is similar to the one employed in Sub-Article -(1) of Article 324. Under Sub-Article- (1) of Article 324 of the Constitution, superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President shall be vested in a commission called Election Commission. 19.3. Under Sub-Section (3) of Section 41, subject to the provisions of the Constitution of India and the provisions of the 2007 Act, the State Government may make rules to provide for the procedure and guidelines for the conduct of elections to the cooperative societies. 19.4. 19.3. Under Sub-Section (3) of Section 41, subject to the provisions of the Constitution of India and the provisions of the 2007 Act, the State Government may make rules to provide for the procedure and guidelines for the conduct of elections to the cooperative societies. 19.4. As per Section 45, the proceedings of general meetings and special meetings of a cooperative society shall be sent to the Registrar within 15 (fifteen) days of such meeting, who shall thereafter, give his approval on the resolutions within 15 (fifteen) days of receipt of the proceedings. If no approval is received within the aforesaid period, the proceeding shall be deemed to have been approved. 19.5. Section 110 of the 2007 Act bars the jurisdiction of civil or revenue courts in respect of four situations, viz.,:- (1) when it is a question of registration of a cooperative society or its bye-laws or amendment of bye-laws; (2) dissolution of a managing or controlling body and the management of the affairs of the cooperative society on dissolution thereof; (3) any dispute referred to the Registrar; (4) any matter in relation to the winding up and dissolution of a registered society. 19.6. Thus, a careful analysis of Section 110 would go to show that there is no absolute bar to jurisdiction of civil or revenue courts. Interference by the civil or revenue courts have been excluded or barred in the four situations enumerated above. 20. Last of the provisions of the 2007 Act which requires to be addressed is the appellate provision under Section 111. Sub-Section (1) thereof says that except where otherwise expressly provided to the contrary an appeal shall he to the Registrar from the decisions made under the 2007 Act or the Rules framed thereunder. Under Sub-Section (3), against an order of the Registrar, no appeal lies to the State Government, except on a question of law. 21. Having regard to the scheme of election of a cooperative society dealt under Article 243-ZK and Section 41 of the 2007 Act, where under entire responsibility for preparation of electoral roll and conduct of election of a cooperative society has been vested in the Registrar of Cooperative Societies, Registrar cannot be the adjudicatory authority under Section 111 in an electoral dispute arising out of election of a cooperative society conducted by himself. If we look at Article 324 of the Constitution, the power of superintendence and conduct of elections to Parliament and Legislature is vested in the Election Commission, but Election Commission has not been made the adjudicatory authority for adjudicating electoral dispute. Parliament has enacted a special law called Representation of the People Act, 1951, where under election disputes are to be adjudicated through election petition by the jurisdictional High Court. The High court under Sections 80 and 80A of the Representation of the People Act, 1951, is the Election Tribunal. Likewise, in respect of Panchayats, under Section 127 of the Assam Panchayat Act, 1994, Special Panchayat Tribunal has been constituted to adjudicate electoral disputes relating to Panchayats in terms of Section 129 (b) of the said Act. 22. Therefore, the moot question begging answer is how and in what manner an electoral dispute relatable to a cooperative society has to be adjudicated. 23. In the context of an electoral dispute under Article 329 (b) of the Constitution of India, a constitution bench of the Supreme Court in N.P. Ponnuswami Vs. Returning Officer; AIR 1952 SC 64 , held that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a Special Tribunal and should not be brought up at an intermediate stage before any Court. N P Ponnuswami (supra) is the leading case on electoral law of the country. Referring to the language of Article 329 (b) Supreme Court held that by necessary implication an election cannot be called in question in any other manner at any other stage and before any other court. Invoking power of judicial review would not be justified. 24. In Shaji K. Joseph Vs. V Viswanath; (2016) 4 SCC 429 , the issue involved was election of a member to the Dental Council of India. Respondent wanted to contest the election, but his name was not in the electoral roll in the register of dentists. Therefore, his nomination was not accepted by the Returning Officer. Non-acceptance of nomination was challenged before the High Court of Kerala in a writ petition. Single Bench of the High Court allowed the writ petition by setting aside the order of the Returning Officer and directing him to conduct the election afresh, permitting the respondent to contest the election. Therefore, his nomination was not accepted by the Returning Officer. Non-acceptance of nomination was challenged before the High Court of Kerala in a writ petition. Single Bench of the High Court allowed the writ petition by setting aside the order of the Returning Officer and directing him to conduct the election afresh, permitting the respondent to contest the election. Appeal filed against such decision of the Single Bench was dismissed by the Division Bench. Thereafter, the matter was taken to the Supreme Court. Supreme Court referring to the decision in N P Ponnuswami (supra) and other subsequent decisions as well as provisions of the Dentist Act, 1948 read with the Dental Council (Election) Regulations, 1952, took the view that High Court should not have interfered with the process of election. Orders of the High Court were set aside and election result was directed to be published. It was observed that if the respondent was aggrieved by the election result, it was open to him to initiate action under the Dentist Act, 1948 read with the Dental Council (Election) Regulations, 1952, which provided for an adjudicatory mechanism for resolution of electoral dispute. 25. From the discussions made above, it can be noticed that unlike under Article 329 (b) or under Article 243-O(b), there is no provision in Part-IX-B of the Constitution saying that election to any cooperative society can be called in question only by an election petition. It is further seen that since the Registrar has been conferred the power of overall superintendence and conduct of elections to cooperative societies, as he is the election conducting authority, he cannot be the adjudicatory forum by invoking the appellate provision under Section 111 of the 2007 Act. In so far elections of cooperative societies are concerned, language of Section 41 clearly indicates a similar position of the Registrar like the Election Commission under Article 324, but as has been discussed above, Election Commission is not the adjudicatory authority for adjudicating electoral disputes, which is the Election Tribunal (High Court) under the Representation of the People Act, 1951. 26. 26. Though proviso to Sub-Article (2) of Article 243-ZK as well as Sub-Section (3) of Section 41 provides that Legislature of a State may, by law provide for the procedure and guidelines for the conduct of election of cooperative societies, nothing has been placed before the Court on behalf of the State to show that any legislation has been enacted providing for the procedure and guidelines for conducting of elections of cooperative societies. In the absence of any statutory adjudicatory authority, question is can the exercise be undertaken by the High Court in exercise of its power of judicial review under Article 226 of the Constitution of India? 27. An electoral dispute by its very nature hinges on proof of facts and allegations. Like in the present case, allegation of capturing of the election room or forcible casting of ballots or resorting to unfair electoral practice are required to be proved by adducing cogent and reliable evidence. These are disputes based on highly contentious facts. Evidence has to be led and proved. Consistent judicial trend in the country is of presumption in favour of a concluded election and it is for the party challenging the election who has to prove that the election was vitiated on the grounds relied upon. This burden is a heavy burden and has to be discharged by adducing cogent and reliable evidence. Election of a returned candidate is not to be tinkered with lightly. Certainly, a writ proceeding under Article 226 of the Constitution of India would not be the appropriate forum for adjudicating such an electoral dispute. 28. A Full Bench of this Court in Abdul Gofur Mondal Vs. State of Assam; 2015 (2) GLT 337 (FB) was considering the following question of law:- "Whether a writ petition is maintainable against a purely privately managed institution, such as, venture school contemplated in Section 2 (s) of the Assam Venture Educational Institutions (Provincialization of Services) Act, 2011?" 28.1. Full bench observed that the remedy by way of a writ petition cannot be relegated to an ordinary or regular remedy. It is an extra-ordinary constitutional remedy. After considering the relevant legal provisions as well as the 11-Bench decision of the Supreme Court in TMA Pai Foundation Vs. Full bench observed that the remedy by way of a writ petition cannot be relegated to an ordinary or regular remedy. It is an extra-ordinary constitutional remedy. After considering the relevant legal provisions as well as the 11-Bench decision of the Supreme Court in TMA Pai Foundation Vs. State of Karnataka; (2002) 8 SCC 481 , whereby direction was issued to constitute educational tribunal in each district of a State to adjudicate disputes between management and staff of educational institutions, issued a writ of mandamus to the State Government to establish Educational Tribunals at the districts to adjudicate disputes relating to the teaching and non-teaching staff of the non-government educational institutions as well as disputes concerning disciplinary action and claim of provincialization. Full Bench directed that till establishment of such Educational Tribunals, the State Government should in consultation with the High Court designate the District Courts as the Educational Tribunals of the respective districts. 29. Having noticed the Full Bench decision in Abdul Gofur Mondal (supra), Section 110 of the 2007 Act may again be adverted to. As already discussed, there is no absolute bar of interference by the civil or revenue courts in matters relating to cooperative societies. The bar of jurisdiction is confined to the four situations enumerated in Section 110, which has already been elaborately discussed. 30. That being the position and on a thorough consideration of the matter, Court is of the view that following directions will meet the ends of justice and are accordingly issued:- 1. State Government may make Rules to provide for the procedure and guidelines for the conduct of elections of cooperative societies as per requirement of Section 41 (3) of the 2007 Act and proviso to Sub-Article (2) of Article 243-ZK of the Constitution. Such Rules may provide for the adjudicatory forum for adjudication of disputes relating to elections of cooperative societies. 2. Till such Rules are framed, Court of District and Sessions Judge of each district in the State of Assam shall be designated by the State Government in the Cooperation Department/Judicial Department in consultation with the Gauhati High Court as the Election Tribunal for adjudicating electoral disputes of cooperative societies. 2.1. This shall be done within a period of 3 (three) months from today. 3. 2.1. This shall be done within a period of 3 (three) months from today. 3. Petitioners in both the writ petitions are at liberty to file appropriate petitions before the Additional District and Sessions Judge, Hojai (since Court of District and Sessions Judge has not been established in the district of Hojai) assailing election of respondent Nos. 9 to 23, within a period of two months from today, if so advised. 4. During this period of two months, interim order passed by this Court on 2.8.2017 shall continue. However, if no election petition is filed within this period of two months the interim order of this Court would cease to have effect after expiry of the said period of two months. Even otherwise, if and when election petitions is filed, it is for the court of Additional District and Sessions Judge, Hojai, to consider the prayer of the petitioners, interim or otherwise, strictly in accordance with law uninfluenced by any order passed by this Court. 31. Writ petitions are disposed of. 32. Record produced is returned back.