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2023 DIGILAW 558 (MP)

Arun Khoche v. State of Madhya Pradesh

2023-05-04

PRANAY VERMA

body2023
JUDGMENT 1. Heard. 2. By this petition the petitioners have prayed for the following reliefs :- (i) Issue a writ, direction or order in the nature of CERTIORARI or other appropriate writ, calling for the records of the petitioner's case. (ii) Issue a writ, direction or order in the nature of CERTIORARI / MANDAMUS or other appropriate writ, setting aside impugned order dtd. 04/04/2023 (Annexure P/10) (iii) Issue a writ, direction or order in the nature of CERTIORARI / MANDAMUS or other appropriate writ, directing the respondent no.1 to conduct fresh election process on the basis of new list which has been submitted along with report dtd. 26/8/2022. (iv) Award the cost of the present petition. (v) Grant such other relief or reliefs as this Hon'ble Court deems fit in the facts and circumstances of the case. 3. The grievance of the petitioners is that respondent No.1 by order dtd. 4/4/2023 has declared the elections of respondent No.3 society without considering the report submitted by respondent No.2 in which irregularities committed by the earlier members of the committee have been reported. The primary grievance of the petitioners is that the earlier list of members of the society has been superseded by a new list of members which has been done on the basis of an earlier complaint and the elections ought to be conducted on the basis of the new list whereas the same are being conducted on the basis of the old list which is illegal. 4. Learned counsel for respondent No.3 has raised a preliminary objection as regards maintainability of the petition. It is submitted that against the order dtd. 4/4/2023 the petitioners have alternate and efficacious remedy available to them to approach the competent authority for redressal of their grievances as per Rule 49 (c)(5) of M.P. Cooperative Society Rules, 1962. It is also submitted that the grievance as regards breach of or non-compliance with mandatory provisions of Rules during preparation of electoral role can be challenged only in an Election petition and too after declaration of the result. The petition at this stage is not maintainable as per Sec. 64 (2)(v) of M.P. Cooperative Societies Act, 1960. It is also submitted that the grievance as regards breach of or non-compliance with mandatory provisions of Rules during preparation of electoral role can be challenged only in an Election petition and too after declaration of the result. The petition at this stage is not maintainable as per Sec. 64 (2)(v) of M.P. Cooperative Societies Act, 1960. Reliance has been placed on the decision of the Hon'ble Supreme Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another V/s. State of Maharashtra and Others reported in (2001) 8 Supreme Court Cases 509. 5. I have heard the learned counsel for the parties. 6. Sec. 64(1) and 2(v) of the Act, 1960 are as under :- (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 there to are among the following:- (a) a society, its committee, any past committee, any past or present officer, any past or present agent, any past or present servant or a nominee, heirs or legal representatives of any deceased agent or deceased servant of the society, or the liquidator of the society; (b) a member, past member or a person claiming through a member, past member or deceased member of a society or of a society which is a member of the society; (c) a person other than a member of the society who has been granted a loan by the society or with whom the society has or had business transactions and any person claiming through such a person. (d) a surety of a member, past member of deceased member or a person other than a member who has been granted a loan by the society, whether such a surety is or is not a member of the society. (e) any other society or the liquidator of such a society; and (f) a creditor of a society. (2) For the purposed of sub-sec. (e) any other society or the liquidator of such a society; and (f) a creditor of a society. (2) For the purposed of sub-sec. (1), a dispute shall include- [(v) any dispute arising in connection with the election of any officer of the society or of composite society; Provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programm till the declaration of the results]. 7. As per Sec. 62(2)(v) any dispute arising in connection with election of any officer of the society or representative of the society or the composite society is a dispute within the meaning of Sec. 64(1) of the Act. The proviso thereto stipulates that the Registrar shall not entertain any dispute during the period commencing from announcement of the election program till declaration of the result. 8. In Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another (supra) it has been categorically held by the Hon'ble Supreme Court that preparation of voter list is a part of the election process itself. It has also been held that preparation of electoral role is an intermediate stage in process of election of specified society and the election process having been set in motion its continuation cannot be stayed though there may be some alleged illegality of breach of rules while preparing the electoral roll. It was further held that since the election can be challenged by way of an Election Petition the High Court should not stay the continuation of the election process even though there may be illegality while preparing the electoral roll. It was held in paragraph No.7 and 12 as under :- "7. In the light of the aforestated provisions of Chapter XI-A of the Act and the Rules, we will examine as to whether preparation of electoral rolls is an intermediate stage in the process of election. The provisions referred to above show that Chapter XI-A was enacted and the Rules were framed specially to deal with the election of the specified societies under Sec. 73-G of the Act. Sec. 144-X provides that various stages of election shall also include preparation of the list of voters. The provisions referred to above show that Chapter XI-A was enacted and the Rules were framed specially to deal with the election of the specified societies under Sec. 73-G of the Act. Sec. 144-X provides that various stages of election shall also include preparation of the list of voters. Once the statute provides that the preparation of the voters' list shall be part of the election process, there is no reason to hold that the preparation of the electoral roll is not an intermediate stage in the process of the election of a specified society. This matter can be examined from another angle. A perusal of the Rules discloses that the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of the election. It was further held that since the election can be challenged by way of an Election Petition the High Court should not stay the continuation of the election process even though there may be illegality while preparing the electioral role.In view of the scheme of the Act and the Rules, the preparation of voters' list must be held to be part of the election process for constituting the Managing Committee of a specified society. In Someshwar Sahakari Sakhar Karkhana Ltd. v. Shriniwas Patil, Collector [(1992) 1 Mah LJ 883] it was held that in the scheme of the provisions of the Act and the Rules, the preparation of the list of voters for election to the Managing Committee of a specified society is an intermediate stage in the process of the election. Similar view was taken in Shivnarayan Amarchand Paliwal v. Vasantrao Vithalrao Gurjar [(1992) 2 Mah LJ 1052] . However, in Karbhari Maruti Agawan v. State of Maharashtra [(1994) 2 Mah LJ 1527] although it was held that the preparation of the list of voters is an intermediate stage in the process of election, but that does not debar the High Court from entertaining a petition under Article 226 of the Constitution challenging the validity of the electoral roll. However, in Karbhari Maruti Agawan v. State of Maharashtra [(1994) 2 Mah LJ 1527] although it was held that the preparation of the list of voters is an intermediate stage in the process of election, but that does not debar the High Court from entertaining a petition under Article 226 of the Constitution challenging the validity of the electoral roll. It appears that the consistent view of the Bombay High Court on the interpretation of Chapter XI-A of the Act and the Rules framed thereunder is that the preparation of electoral roll is an intermediate stage of the election process of the specified societies. This being the consistent view of the High Court on the interpretation of provisions of a State Act, the same is not required to be disturbed unless it is shown that such a view of the High Court is palpably wrong or ceased to be good law in view of amendment in the Act or any subsequent declaration of law. We are, therefore, of the view that the preparation of the electoral roll for election of the specified society under Chapter XI-A and the Rules framed thereunder, is an intermediate stage in the process of election for constituting the Managing Committee of a specified society. 12. In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the Election Tribunal." 9. In the present matter the primary grievance of the petitioners is as regards preparation of the electoral roll since their contention is that the election is being held on the basis of old voter list which is incorrect and faulty. In the present matter the primary grievance of the petitioners is as regards preparation of the electoral roll since their contention is that the election is being held on the basis of old voter list which is incorrect and faulty. Thus in view of the grievances as raised by the petitioners in this petition, the provision of Sec. 62(2)(v) of the Act, 1960 and in view of the decision of the Hon'ble Apex Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another (supra) no interference can be made in the election process at this stage. Moreover, as per Rule 49(c)(v) of the Rules, 1962 the petitioners have the remedy of approaching the competent authority against the impugned order dtd. 4/4/2023 which is very much an efficacious remedy for them. 10. Thus in view of aforesaid, the present petition is held to be not maintainable and no interference in the matter can be made. The petition thus stands dismissed.