Pankaj Kumar Singh vs U.P. State Cooperative Societies ...
2018 Latest Caselaw 4132 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 

 
Court No. - 2
 

 
Case :- MISC. BENCH No. - 34538 of 2018
 

 
Petitioner :- Pankaj Kumar Singh
 
Respondent :- U.P. State Cooperative Societies U.P.Lko.Thru. C.E.C. & Ors.
 
Counsel for Petitioner :- Ashish Kumar Pathak,Sandeep Yadav
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra
 

 
Hon'ble Shabihul Hasnain,J.

Hon'ble Saurabh Lavania,J.

Heard Sri Ashish Kumar Pathak, learned counsel for the petitioner as well as Sri Gaurav Mehrotra, learned counsel for the opposite parties no. 1 and 3 and learned Standing Counsel appears for the opposite party no. 2, the State of U.P.

For the reasons given in the body of the judgment, we dispense with the notices to be issued to private respondent-opposite party no. 4.

The petitioner has challenged the orders dated 31.10.2018 and 01.11.2018 passed by opposite party no. 1 which has been annexed as Annexures No. 1 and 2 to the writ petition.

By the order dated 31st October, 2018, the election of the petitioner for the post of Member of the Committee of Cooperative Society of Telecom Engineering Cooperative Credit and Thrift Society-I, Rani Laxmi Bai Marg, Lucknow was cancelled. This election was held on 1st of August, 2018. Simultaneously, the election on the post of Chairman/Vice-Chairman of the aforesaid Society which was held on 2nd of August, 2018 and in the said election the petitioner was declared elected for the post of Vice-Chairman of the Society. Both the results after having been declared have been set-aside and fresh election has been notified by the orders of the opposite party no. 1. The petitioner has challenged the Orders impugned dated 31.10.2018 and 01.11.2018 primarily on the ground that once the petitioner was declared elected by the Returning Officer, the election could not have been cancelled by an executive order under any law of the elections.

It is necessary to mention that the present election was conducted under the Uttar Pradesh State Cooperative Societies Election Rules, 2014 (in short "Rules of 2014"). The petitioner was declared elected on the post of the aforesaid Society and the result of which was declared by the Nirvachan Adhikari and the same has been annexed as Annexure No. 5, page-64 to the writ petition. Simultaneously, the petitioner was declared as Vice-Chairman and the result has been shown as Annexure No. 6, page-65 to the writ petition. The certificate has also been issued which is available on page-66 to the writ petition.

Learned counsel for the petitioner says that the order of the opposite party no. 1 are absolutely without jurisdiction and it should be set-aside.

Learned counsel for the petitioners pointed out and referred Chapter-VII of the Rules of 2014 and submitted that election can be questioned in the mode and manner prescribed under Chapter-VII and only the authority mentioned therein can decided the dispute pertaining to election held under the Rules of 2014. The relevant portion of the Rules of 2014 i.e. Chapter-VII is quoted below:-

"50.(1) The parties aggrieved by the election of any official or representative of any Co-operative society can file an election suit under section 70, which shall be referred to,-

To the concerned District Magistrate in the case of Primary and Central/District level Co-operative societies, who shall himself decide the dispute or may appoint any of the Sub Divisional Magistrate under him as Arbitrator or the Chairman or the Arbitration Board as the case may be, in the case of Primary Co-operative Society and in the case of Central/District level Co-operative Societies decide the dispute himself or may appoint any of the Additional District Magistrate under him as Arbitrator or as the Chairman of the Board as the case may be.

The Commission in the case of any State level/ Apex Co-operative Society which may decide the dispute himself or may appoint any Election Commissioner as Arbitrator or as the Chairman of Arbitration Board.

50.(2) In regards to election of any Co-operative Society no objection shall be raised by arbitration or otherwise except on the ground that-

the election has not been fair by reason that corrupt practice, bribery or undue influence prevailed at the election, or the result of election has been materially affected,- by improper acceptance or rejection of any nomination. or by improper acceptance or refusal or rejection of votes or by gross failure to comply with the provisions of the Act, the rules or the bye-laws of the Co-operative Society.

Explanation- For the purpose of this rule, corruption, bribery or undue influence shall have the same meaning as assigned to them under section- 123 of the Representation of Peoples Act, 1951.

50.(3) A dispute relating to election shall be referred by the aggrieved party within forty five days of the declaration of the result.

50.(4) Notwithstanding anything in these rules, the applicant filing the election shit shall deposit the fees as follows in the head of account fixed by the State Government and shall enclose the original receipt with the plaint:-

in case of primary cooperative societies- Rs. one thousand.

in case of District/Central cooperative societies- Rs. two thousand.

in case of State Level/ Apex Co-operative Societies- Rs. five thousand.

Provided that, the suit shall not be accepted if the receipt of fees is not submitted."

Sri Gaurav Mehrotra, learned counsel for the Election Commission was granted time to seek instructions as to under what circumstances, these extraordinary orders have been passed which are normally not seen having been passed by the authorities.

Sri Gaurav Mehrotra, learned counsel for the Election Commission has very persuasively tried to argue that it was in the extraordinary and peculiar circumstances of the case that such extraordinary step was taken. He has further submitted that the motive behind passing such an order was to bring up equitable justice. The facts submitted by Sri Gaurav Malhotra, need to be reproduced :-

"The election which was held on 2nd of August, 2018 for the post of Vice-Chairman of the aforesaid Cooperative Society ended up in a tie. Two out of the three contestants, the petitioner and opposite party no. 4 secured 5 votes each while the 3rd person secured only 4 votes. Naturally, the tie was between the petitioner and the opposite party no. 4."

The counsel for Election Commission placed Sub-Rule 5 of Rule 44 of the Rules of 2014 before this Court and said that procedure prescribed therein has to be adopted/followed in case of tie (equality of votes).

The Sub-Rule 5 of Rule 44 is quoted as under:-

"In the event of equality of votes, the matter shall be decided by draw of lots."

'Explanation:- Election Officer shall take equal size and same colour chits and write the name of candidates on it and fold it in such manner so that the name of the candidate cannot be read and shall put the paper in the ballot box and shall cause to put a slip from the ballot box from a person other than the candidate. The candidate whose name is mentioned on the slip shall be declared elected.'

Further submission of Sri Gaurav Mehrotra is that the Returning Officer conducted a draw of lots and when the name was picked up by a stranger to the election, the name of opposite party no. 4 came out in the draw. However, in his wisdom, the Returning Officer decided that whose name has not been picked up, he shall be declared as victorious. He proceeded with this assumption to be correct declared the petitioner as elected. This fact has not been disputed by the counsel for the petitioner also. Later on, a complaint was made and wisdom of the Returning Officer was questioned stating therein that according to law whose name has been picked up ought to have been declared as elected.

Further submission is that, on the complaint an enquiry was conducted wherein it was found that Returning Officer wrongly declared the petitioner as elected. Keeping in view the illegality committed by the Returning Officer the opposite party no. 1 in exercise of power prescribed under Rule 69 of Rules of 2014 passed the impugned Orders. The Rule 69 is quoted is quoted under:-

"If it is brought to the notice of the Commission that any reference is not covered under any provisions of these rules, the Commission shall take proper decision on such subject which shall be final and binding."

Further submission is that on the one hand, the opposite party no. 4 had moved the representation before the opposite party no. 1 and on the other hand, he has filed the election petition before the Sub-Divisional Magistrate, Sadar, Lucknow for cancellation of election in favour of the petitioner but he did not inform the opposite party no. 1 about the institution and pendency of election petition and the opposite party no. 1 bonafidely believing that no election petition is in existence and he has the residual powers under Rule 69 to correct any mistake which has been committed during the election and under the said Rule cancelled the election of the petitioner and notified fresh election.

The reasons given Sri Gaurav Mehrotra may be correct but the law does not allow the opposite party no. 1 or any other authority to cancel an election after the declaration of the result and after the certificates have been issued.

The reason of conclusion is that when under the Rules of 2014 the mode and manner to question an election is provided and that only has to be followed and no other manner or course is permissible. In the present case Chapter-VII provided the mode and manner to question any election conducted/held under the Rules of 2014 and thus, the opposite party No.1 in exercise of power under Rule 69 is not empowered to set-aside or annul the election result.

In this regard, it is relevant to refer the principle that when the Statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It is an uncontroverted legal position that where a Statute requires that a certain thing must be done in a certain way, then the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. (vide: Taylor v. Taylor, (1876) 1 Ch D 426; Nazir Ahmad v. King Emperor, AIR 1936 PC 253; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527; State of Mizoram v. Biakchhawna, (1995) 1 SCC 156; J. N. Ganatra v. Morvi Municipality Morvi, AIR 1996 SC 2520; Babu Verghese and others v. Bar Council of Kerala and others, (1999) 3 SCC 422 and Chandra Kishore Jha v. Mahavir Prasad, JT 1999 (7) SC 256.

The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible. This maxim has consistently been followed, as is evident from the case referred to above.

A similar view has been reiterated in Chandra Kishore Jha v. Mahavir Prasad and others, (1999) 8 SCC 266; Haresh Dayaram Thakur v. State of Maharashtra and others, (2000) 6 SCC 179; Delhi Administration v. Gurdip Singh and others, (2000) 7 SCC 296' Dhanajaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633; Prabha Shankar Dubey v. State of Madhya Pradesh, AIR 2004 SC 486 and Ram Phal Kundu v. Kamal Sharma, AIR 2004 SC 1657. Similarly, in K. Kuppuswami and another v. State of Tamil Nadu and others, (1998) 8 SCC 469, the Apex Court held that the statutory rules cannot be over-ridden by executive orders or executive practice.

Further, it is settled principle that once the result of the election is declared, it can be challenged only before the Election Tribunal. (vide: N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64; Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520; Brundaban Nayak v. Election Commission of India and another, AIR 1965 SC 1892; Mohinder Singh Gill and another v. Chief Election Commissioner, New Dehli and others, AIR 1978 SC 851; Krishna Ballabh Prasad Singh v. Sub-Divisional Officer, Hilsa-cum-Returning Officer and others, AIR 1985 SC 1746 and Election Commission of India v. Shivangi and others, AIR 1988 SC 61).

For the aforesaid reasons, for opposite party No. 4, who lost the election, the election petition was the appropriate remedy and since the election petition has already been filed, accordingly, we feel that the orders passed by the petitioner no. 1 as contained in Annexure Nos. 1 and 2 need to be set-aside. It is, accordingly, quashed.

Since, a question of fact only has to be decided in the election petition on which there appears to be no dispute between the parties and hence, the election petition be decided expeditiously within a maximum period of 6 weeks from the date of production of certified copy of this order.

The petition is allowed in above terms.

Order Date:- 05.12.2018

Arun/-

(Saurabh Lavania, J.)  (Shabihul Hasnain,J.)