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Madhya Pradesh High Court · body

2020 DIGILAW 1241 (MP)

Sayyed Akhtar Mustaq v. State of M. P.

2020-12-01

VISHAL DHAGAT

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ORDER : Vishal Dhagat, J. 1. Petitioner has filed this writ petition taking exception to order dated 04.03.2020 passed by respondent No. 5 by which election programme of Board of Directors of Anantpur Grah Nirman Shahkari Samiti Maryadit, District Rewa was declared and election dated 11.09.2019 of Board of Directors of said society was cancelled. 2. Counsel appearing for petitioner has raised the question of law that election officer cannot cancel a concluded election and only remedy for cancellation of election is to file election petition under Section 64 of M.P. Cooperative Societies Act, 1960. 3. Respondent No. 5 had filed its reply and stated therein that complaint was received by answering respondent as well as by office of Deputy Registrar Cooperative Society, Rewa on 10.10.2019. Enquiry was conducted and a report was submitted that it is necessary to stop election process of society to ensure credibility of election process and there was serious doubts regarding manner in which election was conducted. As per the report dated 19.11.2019 entire election process of society was corrupted. Order to cancel election was passed under section 49-D of Cooperative Societies Rules 1962. It is further submitted that as per Section 57(f) of M.P. Cooperative Societies Act 1960, it was duty of Election Authority to see that free, fair and impartial elections are conducted. In view of above, it has been submitted that order dated 04.03.2020 does not suffers from any illegality. 4. Heard learned counsel for the parties. 5. On 11.09.2019, Election Authority had appointed S.N. Singh Senior Cooperative Inspector as Returning Officer of Anantapur Grah Nirman Shahkari Samiti Maryadit added District Rewa. Election programme was declared. Counting of votes was to be done in Special General Meeting of Society on 10.10.2019 and vacant post was to be filled up by 11.10.2019 and thereafter election of President and Vice President was to be completed by 14.10.2019. On 04.10.2019, valid nominations were total 19 in number. Thereafter, on 5.10.2019, list of 11 valid candidates were declared after withdrawal of nomination forms by some of the candidates. Since there were 11 posts, therefore, Returning Officer on 05.10.2019, declared that election is not necessary as valid candidates were only 11 in number. Returning Officer declared the result in General Meeting of Society on 10.10.2019. Thereafter, on 5.10.2019, list of 11 valid candidates were declared after withdrawal of nomination forms by some of the candidates. Since there were 11 posts, therefore, Returning Officer on 05.10.2019, declared that election is not necessary as valid candidates were only 11 in number. Returning Officer declared the result in General Meeting of Society on 10.10.2019. Deputy Commissioner, Cooperative Society had sent a report to Election Authority that on inspection of General Meeting on 10.10.2019, Returning Officer nor Manager of Society was found there. No application of Returning Officer for remaining absent in General Meeting was found. Society manager was called with all the documents, but he did not appear in the office of Deputy Commissioner and also switched off his cell phone. Election was not completed as per election programme on 10.10.2019 and there was break in continuity of election procedure. Members of society were not informed and elections conducted were suspicious. Joint Commissioner has sent his opinion along with the enquiry report that returning officer S.N. Singh has not conducted elections as per the procedures and election process has vitiated. On basis of said report, impugned order dated 04.03.2020 was passed and election was cancelled. 6. Question before the Court is whether Election Authority has jurisdiction to cancel the election and declare fresh election programme for elections? 7. As per rule 49 G(3) (a) of M.P Cooperative Societies Rules, 1962, election authority on receipt of a report and after taking all material circumstances into account can declare the poll at polling booth to be void and appoint a day and fix hour for taking fresh Poll at polling booth and direct Returning Officer to notify the day so appointed and hour so fixed in such manner as it may deem fit. If there is a irregularity in procedure as is likely to vitiate the poll, Election Authority can give direction to Returning Officer to conduct fresh Poll. In the order dated 04.03.2020, Election Authority had called for the report. From the enquiry report received by Election Authority, it was found that there was gross negligence, due to which whole election procedure is vitiated. It is the duty of Election Officer to see that elections conducted are free, fair and impartial. Rule 49G(3) of Cooperative Societies Rules, 1962 gives power to Election Authority to declare fresh election due to irregularity in procedure which vitiates election. It is the duty of Election Officer to see that elections conducted are free, fair and impartial. Rule 49G(3) of Cooperative Societies Rules, 1962 gives power to Election Authority to declare fresh election due to irregularity in procedure which vitiates election. In enquiry report, there was a specific finding that Members of society were not given notice as per the procedure prescribed and Returning Officer and Society Manager was not present in General Meeting. Society Manager was asked to submit the records, but he did not appear in the Office of Commissioner, Cooperative Society with records and also switched off his mobile phone. There was no application of Returning Officer that due to ill health, he was not present in General Meeting or he left General meeting due to ill health. In such condition, no illegality has been committed by Electoral Authority in declaring fresh elections. Election Authority was within its jurisdiction to order fresh elections under Section 49G of M.P. Cooperative Societies Rules, 1962. There is bar as per proviso of Section 64 of M.P. Cooperative Societies Act, 1960 to entertain any dispute under Section 64 from date of commencement of election programme till declaration of results. Disputed is referred to in Section 64 (2)(v) "any dispute arising in connection with election of any officer of the Society or representative of the Society or of Composite Society." 8. Aforesaid dispute does not cover illegality, irregularity, riot or violence at polling which vitiates the election. In such cases, decision to declare polling or election void and to order fresh poll is to be made by Election authority and there is no bar under proviso to Section 64 to declare election void and order fresh poll. 9. In view of aforesaid facts and circumstances of the case, petition filed by petitioner is dismissed.