Vinayak Sahkari Avas Samiti Ltd. ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 3459 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 2
 
Case :- WRIT - C No. - 909 of 2023
 
Petitioner :- Vinayak Sahkari Avas Samiti Ltd. Ghaziabad Thru. Secy. Sri Atul Sharma
 
Respondent :- State Of U.P. Thru. Prin. Secy. Cooperative Deptt. Civil Secrt. Lko. And Others
 
Counsel for Petitioner :- Ram Raj,Rishabh Raj
 
Counsel for Respondent :- C.S.C.,Gaurav Mehrotra
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Manish Kumar,J.

1. Heard the learned counsel for the petitioner, Sri Gaurav Mehrotra, who appears on behalf of the respondent nos. 2 & 3, learned Standing Counsel who appears on behalf of respondent nos. 1, 4 & 5 and Sri Rakesh Kumar Chaudhary, who appears on behalf of respondent nos. 6 & 7.

2. This writ petition has been preferred by the petitioner with the following main prayers:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.01.2023, passed by the opposite party no.3/Election Commissioner, Uttar Pradesh State Cooperative Societies Election Commission, Lucknow, contained in Annexure No. 1 to this writ petition.

ii. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 31.01.2023, passed by the opposite party no.4/District Assistant Cooperative Election Officer/Assistant Commissioner and Assistant Registrar, Cooperative Ghaziabad, contained in Annexure no. 2 to this writ petition.

iii. Issue a writ, order or direction in the nature of Mandamus, commanding the opposite parties to not to give effect to the operation and implementation of the impugned order dated 31.01.2023, passed by the opposite party no. 3 and the impugned order dated 31.01.2023, passed by the opposite party no. 4, contained in Annexure nos. 1 and 2 to this writ petition or to create any disruption in the already initiated election process.

iv. Issue a writ, order or direction in the nature of Mandamus, commanding the opposite parties to allow the election officer/returning officer to complete the election procedure already initiated for the petitioner society. "

3. It is the case of the petitioner's Co-operative Housing Society at the primary level that as per the elections that were held on 30.01.2018, the petitioner Management Committee was recognized and it is the outgoing Managing Committee and its term ended on 30.01.2023. Before the conclusion of its term, the petitioner had sent the necessary documents to the District Assistant Registrar which were forwarded to the respondent no. 2 for holding of elections, as per the provisions in the Rules. In compliance of such provisions in theRules, the requisite fee of Rs. 5000/- was also deposited by the petitioner-Committee of Management.

4. The respondent no. 2 notified elections to be held of all housing, fisheries, horticulture and food preservation, handloom and clothing industries, Khadi and village industries, silk and related small industries, primary co-operative Societies through notification dated 03.01.2023. In pursuance of such notification of schedule of election, orders were also issued by the respondent no. 4 on 27.01.2023 appointing Election Officers and Assistant Election Officers. The order dated 27.01.2023 finds the mention of the petitioner Society at Srl. No. 24. After proceeding in pursuance of the notification dated 03.01.2023, all of a sudden, the impugned orders have been issued by the respondent no. 2 by which the elections proposed to be held have been stayed on the frivolous ground of some objections filed regarding dispute of Membership of the petitioner's housing Society.

5. It has been submitted that in pursuance of the order dated 31.01.2023, another order has been passed on the same date, asking the District Assistant Co-operative Registrar/Election Officer to return and deposit all material received for the purpose of holding election of Managing Committee of the petitioner's Society forthwith. Both these orders have been passed in an arbitrary manner and in violation of the provisions of the Rules, 2014, wherein it has been provided under Rule 17 that election proceedings shall not be disrupted except due to the reasons mentioned in Rule 16. Rule 16 relates to the death of a candidate before polling.

6. Learned counsel for the petitioner has also argued that even in the proviso that is part of Rule 17 of the Rules, 2014, it is provided that if polling or any proceeding of election gets disrupted due to riots or open violence at the place of polling or holding of election is not possible due to any natural calamity, the Election Officer appointed for such election shall declare the postponement of election till next date, to be notified later. The election procedure shall be postponed only after narrating the whole sequence of incidents in a chronological order in the polling diary used by the Election Officer.

7. It has been submitted that a perusal of the order impugned dated 31.01.2023 would show that some complaint was made by certain persons regarding names which featured in the voter list. No copy of the complaint was served on the Managing Committee of the Housing Society for it to submit its reply to such complaint. Without giving opportunity of hearing, the respondent no. 2 has passed the order impugned saying that there are only 120 Flats/Houses for which the Managing Committee of the Society ? Vinayak Sahkari Awas Samiti is In-charge of and, therefore, there should be only 120 members in the list of voters. However, nearly 46 members have been added in the voter list which vitiates the determination of Constituencies and the proposed elections.

8. It has been argued by learned counsel for the petitioner that there is no such provision in the by-laws of the Society or in any other Rule or Statute which provides that the number of members in a primary Housing Co-operative Society should correspond with the number of residential units and in 2013 and also in 2018, there were more members than the residential units under the Management of the Co-operative Housing Society. Yet elections were held on the basis of such list of members.

9. It has also been argued by learned counsel for the petitioner on the basis of judgments rendered by the Supreme Court and by this Court that once the election programme is published, there is no power to interject or to postpone or to delay such election programme, moreso where the dispute can be looked into in an election petition to be filed after such elections are over.

10. Learned counsel for the petitioner has placed reliance upon the judgment rendered by Hon'ble Supreme Court in the case of Shri Sant Sadguru Janardan Swami vs State Of Maharashtra And Ors. [(2001) 8 SCC 509] and judgment rendered in the case of Kamlapati Singh vs State Of U.P.and Ors. [(2019) SCC Online All. 4246] and judgment rendered by a co-ordinate Bench of this Court in the case of Sushil Kumar Singh vs. State of U.P. and Ors. [(2006) LCD 234] to say that even in cases where electoral rolls have been wrongly prepared, since preparation of electoral roll is an intermediate stage in the process of election of Management Committee of a specified Society, and the election process has been set in motion, the Courts should not interfere and should not ordinarily stay the election process. Any allegation of voter list being wrongly prepared can be looked into in an election petition.

11. Learned counsel for the respondent nos. 2 & 3 has pointed out Article 243ZK of Part IXB of the Constitution and sub-Clause 2 thereof which refers to the Constitution of Election Commission for Co-operative Societies on the basis of State legislation and Rules framed in this regard. It has been argued that the respondent no. 2 derives its authority to hold election in free and fair manner under the authority given to it by the Constitution under Article 243ZK and also Section 29 (3) of the U.P. Co-operative Societies Act, 1965.

12. The learned counsel for the respondent nos. 2 & 3 has referred to the language of Section 29(3), where a duty has been casted upon the Election Commission to re-constitute theCommittee of Management of a Co-operative Society in accordance with its Rules and by-laws and to ensure that the elections are conducted in a free and fair manner. The said elections should be held under the superintendence, control and direction of the Election Commission and the Election Commission may if it is satisfied that if circumstances exist, which render it difficult to hold election on the date fixed, it may postpone the election and all proceedings with reference to the election shall commence afresh in all respect.

13. It has been submitted by learned counsel for the respondent nos. 2 & 3 that although the Rules have been constituted, under Rule 470 of the Rules, 1968, the Rules of 2014 are in the nature of a subordinate legislation where the Grund Norm would be the Constitution and the Act of 1965, where the Co-operative Election Commission has been granted the plenary power of supervision and control of all elections of Co-operative Societies. Also, if the Rules for example, Rule 16 and 17 of the Rules, 2014 are in derogation of the powers given to the Co-operative Election Commission under Section 29(3) of the Act, 1965, the powers given under Section 29(3) would prevail and not the Rules of 2014 which are in the nature of Regulations only.

14. Learned counsel for the respondent no. 3 has placed before this court judgments rendered by the Supreme Court in Union of India Vs. Association of Democratic Reforms and another reported in (2002) 5 SCC 294 and judgment rendered by a Division Bench of this Court in Writ Petition No. 8132 (M/B) of 2018 decided on 13.03.2018; and in Writ C No. 15304 of 2018 decided on 22.07.2022; to buttress his argument regarding the plenary powers of supervision and control of the Cooperative Election Commission and for conduct of fair and free elections, proper constitution of electoral roll is necessary. It has been argued that the notification issued on 03.01.2023 was a notification for all primary cooperative societies and not specifically for the petitioner's society, and during run up to the elections, it came to the notice of the respondent no. 2 that a complaint was pending regarding the list of members of the petitioner's society which had been referred to Housing Commissioner, respondent nos. 6 and 7 on 14.12.2022. The enquiry was still pending and prima-facie, there was reason to believe that there were only 120 residential units under the management of petitioners society, therefore, there should have been only 120 members in the voter list. It was because of this prima facie conclusion that was reached by the respondent no. 2 that respondent no. 2 and 3 issued the order dated 31.01.2023, which has been impugned in the present writ petition annexed as annexure no. 1 and 2 to the petition.

15. Learned counsel for the respondent nos. 6 and 7 was put a specific query by this Court as to why the enquiry which was instituted way back on 14.12.2022 has yet not been concluded even after passage of more than one and a half months.

16. Shri Rakesh Kumar Chaudhary on the basis of instructions received by him telephonically and on WhatsApp has informed this court that the petitioner's society has not cooperated in the conduct of the enquiry and therefore the membership dispute could not be finalised. If however, the petitioner's society is directed to cooperate in the enquiry that is being conducted by the respondent nos. 6 and 7, all effort shall be made to complete such enquiry within the shortest possible time as provided by this Court.

17. Learned counsel for the petitioner has submitted that the membership of the Society is also the provisional voter list and provisional voter list can be objected to by way of filing objection before the Election Officer concerned. The Election Officer may look into such objections and pass appropriate orders before finalising the voter list and he has referred to the Division Bench judgement of this Court in Sushil Kumar Singh (supra) to say that such a dispute regarding members / voters is not a dispute where the aggrieved person is left without a remedy. The remedy in such cases is under Section 70 of the UP Cooperative Societies Act, 1965 by way of filing an election petition.

18. This Court has considered the judgements cited before us and finds that in an almost similar case where there was a membership dispute, the election process had commenced by way of issuance of notification and the Election Officer was also appointed and the entire time bound programme was notified wherein deadlines were given for various purposes, including for purpose of publication of provisional electoral college, filing objection to such provisional electoral college and publication of final electoral college, the Chief Co-operative Election Commissioner, acting upon a complaint which was being enquired into by ADM (Finance and Revenue) had stayed the elections by the order impugned. The Co-ordinate Bench of this court considered Article 243 Z of the Constitution and sub clause (2) thereof, where it has been provided that the Co-operative Election Commission shall supervise and control holding of elections to cooperative societies and also of preparation of electoral rolls. Conduct of free and fair elections being a plenary power, which is vested in the Cooperative Election Commission would also include the authority/ power/ jurisdiction to postpone election and or even to cancel the election. The condition precedent for exercising such power or authority for the purpose of postponement or cancellation of an election should be to ensure free and fair poll. Such authority since it is all encompassing has to be exercised very sparingly and only to achieve the objective of conducting free and fair elections. Exercise of such power cannot be permitted to resort to in a routine manner. Since there was in existence, some material before the Cooperative Election Commission which led to a prima-facie opinion being formed by it that the electoral roll had not been prepared in a free and fair manner and the elections would therefore not be held in a free and fair manner. The sufficiency of such material could not be gone into under Article 226 of the Constitution.

19. The Court observed that if the Co-operative Election Commissioner comes to a conclusion that permitting the elections on the basis of an illegal or incorrect electoral roll will not be in the interest of free and fair election, then in such a decision should not be interfered with by the Court as the Election Commission is exercising its ancillary powers as given for supervision and control of elections. If certain complaints are made and there was cogent material on the basis of which the Chief Election Commissioner formed an opinion that permitting election would not be in the interest of free and fair election, the Chief Election Commissioner has the authority to take a decision either to postpone or even to cancel the election process. This Court has gone through the pleadings on record. There was a complaint pending since December, 2022 with regard to Membership of the petitioner Society before the Housing Commissioner, who is also Registrar for Housing Co-operative Societies. The petitioner Society did not co-operate in the urgent proceedings. The respondent no. 2 being entrusted with the duty to ensure free and fair election on the basis of correct preparation of electoral rolls did not exceed his jurisdiction when it passed the orders impugned.

20. This Court having considered the arguments raised by the counsel for the parties and also the statements made by Shri Rakesh Kumar Chaudhary, that all efforts shall be made to conclude the enquiry as expeditiously as possible, subject to cooperation of the petitioner, disposes of this petition with a direction to the respondent nos. 6 and 7 to conclude the enquiry regarding the membership of the Society within a period of two weeks from today.

21. The petitioner is directed to extend full cooperation in such enquiry. Once the enquiry report is submitted by the respondent nos. 6 and 7 to the respondent nos. 2 and 3, an appropriate decision shall be taken by the respondent nos. 2 and 3 to hold the election of the petitioner and notify the same within a period of two weeks thereafter.

22. The respondent nos. 6 & 7 are directed to provide a copy of the complaint made against the petitioner within a period of three days from today.

Order Date :- 3.2.2023/Ashish