HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc. Application No. 149554 of 2010. In Civil Misc. Writ Petition No. 61505 of 2009. Rajendra Singh. ......... Petitioner. Versus State of U.P. and others. .......... Respondents. ----------
Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Sanjay Misra) Appearance:
For the Applicant : Mr. H.R. Misra, Sr. Advocate.
Mr. K.M. Misra.
For the Respondents : Mr. R.N. Singh, Sr. Advocate, Mr. N.K. Maurya.
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Amitava Lala, J.-- In the instant case, on 12th November, 2009 the applicant/petitioner had filed the aforesaid writ petition, being Civil Misc. Writ Petition No. 61505 of 2009 (Rajendra Singh Vs. State of U.P. and others), praying for the following reliefs:
"(i) issue a writ, order or direction in the nature of Certiorari quashing the final determination of constituencies published by the Respondent No. 3 in daily newspaper ''Amar Ujala, Varanasi' dated 04.11.2009 (Annexure No. ''5' to this writ petition);
(ii) issue a writ, order or direction in the nature of Mandamus commanding the Respondents to hold the elections of the District Cooperative Bank Ltd., Mau ''A' as per the final determination of constituencies made in the previous elections held in the year 2005;
(iii) issue such other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case;
(iv) award cost of the petition in favour of the petitioner."
In the aforesaid writ petition on 13th November, 2009 a Division Bench of this Court was pleased to grant interim order staying the election scheduled to be held in pursuance of the order dated 04th November, 2009. The interim order dated 13th November, 2009 is as follows:
"Heard Sri H.R. Misra, learned Senior Counsel, assisted by Sri Abhishek Misra, for the petitioner, learned Standing Counsel appearing for respondents No.1 to 3 and Sri Awadhesh Narain Srivastava, learned counsel appearing for respondents No. 5 and 6.
The point involved in this writ petition is whether the Constituency reserved in the last election can again be reserved this year and whether the Constituency Mau 'A' and 'B', where the District Cooperative Bank itself is situated, could be clubbed with other Constituencies.
From the facts stated in the writ petition, it is clear that in the last elections notified on 22nd March 2005, Doharighat 'B' was reserved for Scheduled Caste and Scheduled Tribes, Constituency No.5-Pardaha was reserved for other Backward Classes and Constituency No.6 Fatehpur Mandav 'A' was reserved for Women. In the present determination of the Constituencies on 4th November 2009, again Constituency No. 4-Pardaha has been reserved for Scheduled Caste and Scheduled Tribes, Fatehpur Mandav 'Ka' has been reserved for Backward Classes though in the last elections it was described as Fatehpur Mandav 'A' and Constituency No.3 Fatehpur Mandav 'Kha' has been reserved for Women candidates, though it was reserved in the last year as Fatehpur Mandav 'B'.
As per Rule 444-A (3) read with Rule 440 (6) of the U.P. Cooperative Societies Rules, 1968, the reserved Constituencies has to be rotated in Hindi alphabetical order. Circular of the Registrar, Cooperative Societies, U.P. Lucknow dated 18th May 2009 (Annexure No.2 to the writ petition) provided that the name of the Constituencies shall not be chanced nor the rotation system in Hindi alphabetical order shall be disturbed.
Learned counsel for the petitioner has made another submission relying on paragraph No.11 of the writ petition that the present Vice Chairman of the Administrative Committee of District Cooperative Bank Ltd, Mau, namely, Sri Kanhaiya Lal Maurya, is likely to contest from reserved Constituency Fatehpur Mandav 'Ka' reserved for Backward Class and wife of Sri Kanhaiya Lal Maurya, is likely to contest from Fatehpur Mandav 'Kha, however, this is a factual matter which can only be decided after exchange of affidavits.
The argument of learned counsel for the respondents that the election process has started, therefore, this Court should not interfere under Article 226 of the Constitution of India, prima facie, appears to be mis-placed as the principle laid down by the Apex Court in Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, AIR 1978, SC 851 that the Court should not interfere where the election process has started, was based on the provision of Article 329 of the Constitution of India, whereas in this case there is no Constitutional inhibition or bar to entertain writ petitions challenging de-limination in respect of the elections of District Cooperative Banks held under the provisions of U.P. Cooperative Societies Act, 1965 and the Rules framed thereunder. Therefore, the argument of learned counsel for the respondents, prama facie, cannot be accepted.
So far the point raised by the leaned counsel for the petitioner, prima facie we are satisfied that the Constituencies which were reserved last year have again been reserved this year which is in violation of Rule 444-A (3) of the Act. The respondent cannot be permitted to hold the elections in flagrant violation of Rules and reservation policy by illegally determining the Constituency, therefore, the petitioner is entitled for interim order.
List/put up on 17th November 2009 for admission/final disposal. Since the Registrar, U.P. Cooperative Societies, U.P. has to appear in number of cases, therefore, he may also file his personal counter affidavit in this matter also before this Court on 17th November 2009 and explain how the Constituencies have been determined illegally in violation of the Rules.
Until further orders of this Court, election which is scheduled to be held in pursuance of the order dated 4th November 2009 passed by the Election Officer with regard to District Cooperative Bank Mau' A' shall remain stayed.
Office is directed to hand over a copy of this order to Sri Habib Ahmad, learned Standing Counsel, for information and ensuring compliance of the order today free of costs. Parties shall also be issued a certified copy of this order on payment of usual charges today."
Ultimately, after exchange of affidavits and hearing the parties, the Division Bench of this Court was pleased to allow the writ petition by order dated 23rd November, 2009, which is as under:
"We have heard learned counsel for the parties.
Sri Neeraj Upadhyaya, learned Additional Chief Standing Counsel has very fairly stated that in this matter there were serious discrepancies and fresh guidelines have been issued by the Registrar, U.P. Cooperative Societies, Lucknow to the effect that now these guidelines shall be followed in all the matters of cooperative societies. The Registrar, Cooperative Societies is present in court. He says that mistakes which were committed in demarcation and determination of constituencies, reservation made by the District Assistant Registrars/Joint Registrars and merging one society to another in a constituency have been taken care of and hopefully now no mistakes will be committed by the District Assistant Registrars/ Joint Registrar, Cooperative Societies in view of the circular issued by the Registrar. Learned Additional Chief Standing Counsel has very fairly stated that since the impugned order in the writ petition is illegal and has been passed by the District Assistant Registrar/Joint Registrar, that should be quashed to which the counsel for the petitioner has no objection.
Sri Neeraj Upadhyaya, learned Additional Chief Standing Counsel on the basis of the instructions, says that no counter affidavit is required to be filed in view of the circular issued by the Registrar on 20.11.2009.
In view of the aforesaid, the writ petition is allowed on the consent given by the Additional Chief Standing Counsel and direct that the circular issued by the Registrar, Cooperative Societies, U.P., Lucknow dated 20.11.2009 shall strictly be followed by the District Assistant Registrars/ Joint Registrars, Cooperative Societies. The Registrar is further directed that where elections have yet not taken place, he shall also issue a circular to the effect that circular letter dated 20.11.2009 would be binding and delimitation, reservation and merger of constituencies shall take place according to circular issued by the Registrar dated 20.11.2009 and the dates of fresh elections shall be fixed for such constituencies. The necessary circular shall be issued by the Registrar by 24.11.2009.
Let certified copy of this order be issued to learned counsel for the parties on payment of usual charges today."
In compliance of aforesaid order, the earlier determination of constituencies dated 16th September, 2009 was set aside and on 15th April, 2010 respondent no. 3/ Joint Registrar, Cooperative Societies, U.P., Azamgarh Mandal, Azamgarh published the provisional determination of constituencies in daily newspaper ''Amar Ujala', wherein once again the name of Mau did not find place as constituency, to which the petitioner filed a detailed objection. Considering the objections raised by petitioner, the respondent no. 3 while finally determining the constituencies by its order dated 28th April, 2010 although made Mau as a separate constituency but its nomenclature has been changed as ''Mau Nagriya Kshetra' and it has been reserved for Other Backward Classes. Election programme for holding the elections of the bank on 21st/22nd May, 2010 was published by the Election Officer showing that provisional voter list will be published on 11th May, 2010 and the same will be finalised on 14th May, 2010. Challenging the final determination of constituencies dated 28th April, 2010 the applicant/petitioner filed another writ petition, being Civil Misc. Writ Petition No. 26965 of 2010 (Rajendra Singh Vs. State of U.P. and others), for the following reliefs:
"(i) issue a writ, order or direction in the nature of Certiorari quashing the final determination of constituencies published by the Respondent No. 3 in daily newspaper ''Amar Ujala' dated 28.04.2010 (Annexure No. ''10' to this writ petition);
(ii) issue a writ, order or direction in the nature of Mandamus commanding the Respondents to hold the elections of the District Cooperative Bank Ltd., Mau ''A' as per the final determination of constituencies made in the previous elections held in the year 1999 and 2005;
(iii) issue such other and further writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case;
(iv) award cost of the petition in favour of the petitioner."
Such writ petition was disposed of by other Division Bench of this Court by order dated 17th May, 2010, which is quoted below:
"Heard Sri Mishra, learned Senior Advocate in support of this petition.
Submission of learned counsel for the petitioner is that in spite of directions given by this Court in writ petition no. 61505 of 2009 dated 23.11.2009 the election officials are not following the circular issued by the Registrar dated 18.5.2009 and there is major change in the constituency from the previous one besides other mistakes which are being committed.
Submission is that this is something in violation to the orders of this Court in the writ petition referred above.
In the last grievance is that directions is to be issued to the Registrar for doing the needful in terms of the circular.
After hearing, we are of the view that if once an order has been passed by this Court then for execution and for giving effect as being argued by Sri Mishra, the second writ petition is not maintainable and the remedy available, if any, is by way of moving application in that writ petition but in no case the second writ petition is maintainable.
In view of the aforesaid, with the liberty so available to the petitioner we are not to issue the writ as prayed as that will amount to just multiplying the order as is claimed to have been passed on the subject.
With the aforesaid observation this petition stands disposed of."
Taking advantage of the order dated 17th May, 2010, the applicant/petitioner on 17th May, 2010 itself has filed the present application in the nature of application under Section 151 of the Code of Civil Procedure in a disposed of writ petition, being Writ Petition No. 61505 of 2009, before the same Bench. The prayer made in the application is as follows:
"It is, therefore, MOST RESPECTFULLY PRAYED that this Hon'ble Court may graciously be pleased to stay the election of the District Cooperative Bank Ltd., Mau ''A' on the basis of the final determination of constituencies published by the respondent no. 3 in daily newspaper ''Amar Ujala' dated 28.04.2010 (Annexure No. ''10' to this writ petition); and/or, to take suitable action against the Respondent Authorities for not complying with the directions contained in the judgement of this Hon'ble Court dated 23.11.2009 as well as the Circulars of the Registrar, Cooperative Societies, U.P., Lucknow dated 20.11.2009 and 24.11.2009, otherwise petitioner/ applicant shall suffer irreparable loss and injury."
In the aforesaid application, on 18th May, 2010 a Division Bench of this Court was pleased to grant the following interim order:
"Heard the learned counsel for the applicant and Shri Neeraj Upadhyaya, Additional Chief Standing Counsel for respondent Nos. 1 to 3 and Shri Satish Chandra Mishra for respondent Nos. 4 and 5.
Learned counsel for the petitioner has urged that after the judgment was passed by this Court on 23.11.2009 allowing Civil Misc. writ petition No. 61505 of 2009 with a direction that the circular issued by the Registrar, Cooperative Societies, U.P. Lucknow dated 20.11.2009 shall strictly be followed by the Joint Registrar, Cooperative Societies. After the writ petition was allowed, according to the petitioner the Joint Registrar has again flouted the circular issued by the Registrar, Cooperative Societies on 20.11.2009 and the Joint Registrar, Cooperative Societies has not complied with the guidelines for determination of constituencies and the three constituencies which were there in the last election had been deleted. This could not be done. Unless there was some special circumstances. But no special circumstances has been disclosed. The Act of the Joint Registrar Cooperative societies is in violation of circular as well as the Act and the Rules.
In paragraph No. 24 of the application it is stated that applicant had filed Civil Misc. Writ Petition No. 26965 of 2010 which was taken up by a Division Bench of Hon. S.K. Singh and Hon. Rakesh Chandra. According to counsel for the applicant the Bench observed that the petitioner should move an appropriate application in writ petition No. 61505 of 2009 and the writ petition of the petitioner was dismissed as not maintainable with liberty to petitioner to file an application in the instant writ petition. Learned counsel for the applicant further submitted that he could not get the copy of the order as it is under signature and that the election of Cooperative Societies Mau is scheduled to be held on 21 and 22 May 2010. The election of the members of the committee of management of the Bank is to be held on 21.5.2010 and its Chairman and Vice Chairman and other delegates of the District Co-operative Bank, Mau 'A' 22.5.2010.
Until further orders of this Court the election of the committee of management of District Cooperative Bank Ltd., Mau 'A' on the basis of the final determination of Constituencies published by the respondent No.3 in daily news paper 'Amar Ujala' dated 28.4.2010 shall remain stayed.
Let certified copy of this order be issued to learned counsel for the parties on payment of usual charges within 24 hours."
According to the applicant, on account of change of nomenclature as ''Mau Nagariya Kshetra' it has been reserved for ''Other Backward Classes', although as per Rule 444-A(3) of the U.P. Cooperative Societies Rules, 1968 read with circulars of the Registrar, the name of constituency could not be legally changed in such a way that alphabetical sequence of reservation gets disturbed. In the circular of the Registrar dated 20th November, 2009 it was clearly provided that if it is necessary to change the nomenclature or constitution of a constituency, the Joint Registrars/ District Assistant Registrars will have to record reasons for the same and by means of circular dated 24th November, 2009 issued pursuant to the judgement of this Court dated 23rd November, 2009 it was provided that the circular dated 20th November, 2009 shall be strictly followed by the Joint Registrars/District Assistant Registrars. However, in the instant case absolutely no reason whatsoever has been assigned by the Joint Registrar for clubbing Mau ''A' and Mau ''B' together and making it a single constituency in the name of ''Mau Nagariya Kshetra'. Therefore, the action of the authority in changing the nomenclature and reserving it for Other Backward Classes is wholly illegal, arbitrary and without jurisdiction.
By filing affidavit to the application the respondents have contended before this Court that once a writ petition has been disposed of, no application is maintainable unless it is a review or recall application, as has been held by the Supreme Court and High Court. Therefore, the application moved by the petitioner for staying the impugned order dated 28th April, 2010 is not at all maintainable. That apart, if the order passed by this Court was not complied with by the respondents by passing impugned orders, then the proper course open for the petitioner was to move a contempt application. Moreover, it is well settled that once the election process has been set in motion, the Court will not interfere with the said process and the only remedy available is to file the election petition after the elections are held. In the present case, the application, which was moved by the petitioner on 18th May, 2010, on which an interim order was passed by this Court on the same date, was not at all maintainable. The Division Bench while passing the order dated 17th May, 2010 in Writ Petition No. 26965 of 2010 has not issued any direction to the petitioner to move application in the disposed of writ petition. Against this background, the respondents prayed for vacating the interim order granted in the present application on 18th May, 2010 on the ground that the application itself for grant of interim order was not maintainable as the petition has already been disposed of. In support of their contentions the respondents have relied upon the judgements reported in AIR 1987 SC 943 (State of Uttar Pradesh Vs. Shri Brahm Datt Sharma and another) and 2002 (5) AWC 4321 (LB) (Rakesh Chandra Srivastava Vs. Sri Santosh Kumar Mishra and other).
In Shri Brahm Datt Sharma (supra) the Supreme Court has held that when proceedings stand terminated by final disposal of writ petition, it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed, there would be confusion and chaos and the finality of proceedings would cease to have any meaning. Relying upon such judgement a Division Bench of this Court in Rakesh Chandra Srivastava (supra) has held that it is well settled that after the disposal of the writ petition, only on application for review or clarification can be made but no further relief can be prayed for.
We have carefully gone through the facts of this case as well as the aforesaid judgements. We find that the prayer made in the instant application has two parts; one for stay of the election pursuant to the order dated 28th April, 2010 and another for taking suitable action against the respondent authorities for not complying with the order dated 23rd November, 2009. Therefore, this application is substantive one. So far as the relief for staying election pursuant to the order dated 28th April, 2010 is concerned, it is totally independent relief as the order dated 28th April, 2010 has been passed after disposal of the writ petition. Against such order a separate proceeding can be initiated challenging legality and validity of such order but the same can not be examined in a disposed of writ petition by means of a stay application. Thus, the applicant is not entitled for any relief on the basis of such application in a disposed of writ petition.
So far as other part is concerned, compliance of the order can be sought either by making an application under the Contempt of Courts Act, 1971 or under Article 215 of the Constitution of India. Here, it is not an application under Article 215 wherein this Bench can take cognizance of the matter. It appears that the applicant has moved this application taking advantage of the word ''execution' used in the order dated 17th May, 2010, but since there is no provision for execution of the order arising out of writ jurisdiction, the benefit of such ''word' can not be taken by the petitioner. With regard to scope of execution a Division Bench of this Court, presided over by one of us (Amitava Lala, J.), has already delivered a judgement dated 23rd May, 2011 in Special Appeal Defective No. 1154 of 2010 (U.P. Madhyamik Shikshak Sangh, Ballia and another Vs. State of U.P. and others) making observations and giving certain modalities in that regard. Therefore, for getting execution of the order, the only course open to the applicant is by way of contempt application and not by means of a substantive miscellaneous application made under Section 151 of the Code of Civil Procedure in the disposed of writ petition.
Thus, in totality we find that this application is wholly misconceived, which should not have been entertained in the manner as proposed. Hence, the application is rejected with cost assessed as Rs.50,000/- not only for wasting precious time of the Court but also for abusing the process of the Court of law. Interim order granted earlier stands vacated.
(Justice Amitava Lala) I agree.
(Justice Sanjay Misra) Dated: 19th October, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble Sanjay Misra, J.
Under the authority of the Hon'ble Chief Justice cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 03.45 P.M. in the Court upon notice to the parties.
The application is rejected with cost.
Dt./- 19.10.2011.
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For judgement and order, see order of the date passed on the separate sheets (ten pages).
Dt./-19.10.2011.
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