Ishtiyaq vs State Of U.P. And Others
2012 Latest Caselaw 5939 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 21
 

 
Case :- WRIT - C No. - 63723 of 2012
 

 
Petitioner :- Ishtiyaq
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Anil Kumar Aditya
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Satya Poot Mehrotra,J.

Hon'ble Abhinava Upadhya,J.

     The present Writ Petition has been filed under Article 226 of the Constitution of India, interalia, praying for quashing the new election programme, copy whereof has been filed as Annexure-5 to the Writ Petition. It is further prayed that the respondent nos. 4,5 and 6 be restrained from holding the election as per the new election programme.

      We have heard Shri H.R. Mishra, learned Senior Counsel assisted by Shri Anil Kumar Aditya, learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent nos. 1 to 4  and 6 , and perused the record.

     Shri H.R. Mishra, learned Senior Counsel appearing for the petitioner submits that the elections of the Primary Cooperative Societies, including the Cooperative Society in question, in the District Saharanpur, were scheduled to take place on 29.10.2012, but the same were postponed , and thereafter new election programme has been announced according to which the elections are scheduled to take place on 10.12.2012 and 11.12.2012. It is submitted that prior to the first election programme, whereunder the voting was to take place on 29.10.2012, the nomination of the petitioner was accepted and he was allotted symbol. However, when the new election programme was announced and the entire election was started afresh, the name of the petitioner was not in the final voter list thereby depriving the petitioner of opportunity to contest the election.

     It is submitted that after the postponement of the election, scheduled to take place on 29.10.2012, it was not open to the concerned respondents to start the election process afresh, whereunder the provisional voter list and the final voter list were prepared.

      Shri H.R. Mishra, learned Senior Counsel appearing for the petitioner has relied upon the Full Bench decision of this Court in Ramesh Kumar Singh Vs. State of U.P. and others, (1992) 1 UPLBEC 292 (F.B.) (L.B.).

      Learned Standing Counsel appearing for the respondent nos. 1 to 4 and 6 has raised a preliminary objection  that as the election process has already started, no interference is called for  in the matter under Article 226 of the Constitution of India.

     It is further submitted by the learned Standing Counsel that it is open to the petitioner to question the election of the cooperative society after the elections are over by taking appropriate proceedings under Rule 444C of the U.P. Cooperative Societies Rules, 1968 framed under the U.P. Cooperative Societies Act, 1965.

     Learned Standing Counsel submits that proviso to sub-section (3) of Section 29 of the U.P. Societies Act, 1965 lays down that where the State Government is satisfied that circumstances exist which render it difficult to hold the election on the date fixed by the Registrar, it may direct the Registrar to postpone the election, and thereupon the Registrar shall postpone the election, and all proceedings with reference to the election shall be commenced afresh in all respects.

     It is submitted by the learned Standing Counsel that in view of the above proviso, it is open to the Registrar to direct that all proceedings shall be commenced afresh in all respects.

     It is further submitted by the learned Standing Counsel that proviso to sub-section (3) of Section 29 of the U.P. Cooperative Societies Act, 1965 was not considered by the Full Bench of this Court in Ramesh Kumar Singh case (supra).

     In rejoinder, it is submitted by Shri H.R. Mishra, learned Senior Counsel appearing for the petitioner that even though the election process has started, this Court may interfere in the matter in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India. He places reliance on the following decisions:

(1)     Surinder Kaur v. State of Punjab and others,  AIR 1996 SC 1507.

(2)     Neeraj Kamboj and others v. State of U.P. and others, 2001 (3) AWC 2091 (D.B.).

          We have considered the submissions made by the learned counsel for the parties.

     Rule 444 C of the U.P. Cooperative Societies Rules, 1968 framed under the U.P. Cooperative Societies Act, 1965 lays down as under:

"444-C. (1) The election in a co-operative society shall not be called in question either by arbitration or otherwise except on the ground that -

     (a) the election has not been a fair election by reasons that corrupt practice, bribery or undue influence has extensively prevailed at the election, or

     (b) the result of the election has been materially affected -

      (i) by improper acceptance or rejection of any nomination, or

      (ii) by improper reception, refusal or rejection of voters, or

      (iii)by gross failure to comply with the provisions of the Act, the rules or the bye-laws of the society.

      Explanation.- For the purpose of this rule corruption, bribery or undue influence shall have the meaning assigned to each under Section 123 of the Representation of People Act, 1951.

      (2) A dispute relating to election shall be preferred by the aggrieved party within forty-five days of the declaration of the result."

      One of the grounds for challenging the election in a cooperative society, as contained in  sub-clause (ii) of clause (b) of sub-rule (1) of the aforesaid Rule 444C, is  that the  result of the election has been materially affected by improper receiption, refusal or rejection of voters.

     Again, sub-clause (iii) of clause (b) of sub-rule (1) of Rule 444C provides that the election may be questioned on the ground that the result of the election has been materially affected on account of gross failure to comply with the provisions of the U.P. Cooperative Societies Act, 1965 , the rules  framed under the said Act or the bye-laws of the society.

     We are of the view that the grounds, which are sought to be raised by the petitioner in the present Writ Petition, may be raised by the petitioner by taking appropriate proceedings under Rule 444C of the U.P. Cooperative Societies Rules, 1968. As the election process has already commenced and the elections are scheduled to take place on 10.12.2012 and 11.12.2012 ,  it will not be proper for this Court to exercise its Writ Jurisdiction under Article 226 of the Constitution of India so as to hamper the on-going election process.

     As regards the decision of the Supreme Court in Surinder Kaur case (supra), the facts of the case were as follows:

     The appellant (Surinder Kaur)after obtaining no-objection certificates and other certificates  went  on January 17, 1993 at 12.00 noon to submit her nomination papers. Her husband  was wrongfully detained by the Police. It was her case that the 7th respondent, Tara Singh, had forcibly snatched the nomination papers and torn them off. In spite of her complaint to the Police, they did not pay any heed to her protest  nor acted on her complaint. Consequently, she made a complaint to the Sub-Divisional Magistrate, but no action had come through. The election was to take place on January 18, 1993. In the circumstances, the appellant, Surinder Kaur,  approached the Punjab and Haryana High Court by filing the Writ Petition whereupon, the High Court granted Stay Order in favour of the appellant, Surinder Kaur. However, despite the Stay Order granted by the High Court, the Returning Officer closed the Poll and declared 7th respondent as having been duly elected as Sarpanch.

     Their Lordships of the Supreme Court laid down as under (paragraphs 4 and 5 of the said AIR):    

"4.    Though it is denied that the appellant had submitted her nomination papers for contest as a Sarpanch, it would be difficult to believe the statement of the respondents that she had not filed the nomination papers. She had taken all necessary steps to file the nomination papers well within time. She had already been a sitting Sarpanch for over 15 years. Under those circumstances, one would legitimately expect that she have had an intention to contest the election and having secured necessary papers, in normal course she would have filed the nomination papers but for some supervening event. It is her case that the 7th respondent had forcibly taken the nomination papers from her and torn them off since her husband was already under police custody at the relevant time. She was incapable of resisting the high handed action. It is obvious that she was prevented from filing the nomination papers. Under those circumstances, she was constrained to approach the authorities. But when she did not get any tangible result, she had gone to the High Court and filed the writ petition making all the allegations therein. Under these circumstances, we are of the considered view that the conduct of the election in the circumstances was not valid in law.

5.     Though the learned counsel for the appellant seeks to rely upon Rule 14-A of the Punjab Gram Panchayat Election Rules, we do not think that the facts of the case fall in any of the grounds enumerated in that rule. She can not file an election petition equally. However, in view of the facts stated above, it being a case of unlawful prevention of the appellant from contesting the election, the election to the office of Sarpanch held is clearly in violation of the law. Therefore, the election of the 7th respondent as Sarpanch is set aside. He may, however, continue till the re-poll is held. The authorities are directed to conduct the election according to the rules within four weeks from the date of the receipt of this order."

     Thus, their Lordships noted in the above decision that the facts of the case would not fall in any of the grounds enumerated in Rule 14A of the Punjab Gram Panchayat Election Rules. It was further noted that the appellant could not file an election petition.

     Therefore, the Writ Petition in Surinder Kaur case was entertained on account of peculiar facts and circumstances of the case, and also keeping in view that the appellant would not be able to avail post-election remedies.

     The facts of Surinder Kaur case (supra), it will be noticed, were different from the facts of the present case. Further, as noted earlier, the grounds, which are sought to be raised by the petitioner in the present Writ Petition, may be raised by the petitioner  by taking appropriate proceedings under Rule 444 C of the U.P. Cooperative Societies Rules, 1968.

     Hence, the decision in Surinder Kaur case (supra) is not applicable to the present case.

     In Neeraj Kamboj case (supra), the petitioner challenged the Notification dated 18.5.2000 in regard to reservation of seats. The Writ Petition was filed by the petitioner after the election had been held and the result had also been declared. The facts of Neeraj Kamboj case (supra) were thus different from the facts of the present case. In the present case, the petitioner has come-up before this Court prior to holding of  the elections, which are scheduled to take place on 10.12.2012 and 11.12.2012..

     Shri H.R. Mishra, learned Senior Counsel appearing for the petitioner has, however, relied upon  the following observations in the decision in Neeraj Kanboj case (supra) (paragraph 7 of the said AWC):

"In view of these authoritative pronouncements, it is clear that the petitioner could challenge the notification regarding reservation of seats soon after it was issued and before the notification for holding the election had been issued."

     This decision thus lays down that challenge to the reservation of seats may be made by the affected person prior to issuance of notification of holding the election. In the present case, it will be noticed that the election process has already started. Thus, the above-quoted observations are not applicable to the present case.

     In view of the above discussion, we are of the opinion that the Writ Petition is liable to the dismissed, and the same is accordingly dismissed.

Order Date :- 7.12.2012

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