Anoop Kumar and Others vs The Joint Secretary Cooperation and Others

R.S. Mongia, J.—This judgment will dispose of Civil Writ Petition No. 12536 of 1995 as also Civil Writ Petition No. 11876 of 1995. The facts leading to the filing of the aforesaid writ petitions may be noticed.

The Nakodar Hindu Urban Co-operative Bank Ltd., Nakodar, District Jalandhar, is a Co-operative Society registered under the Punjab Co-operative Societies Act, 1961, (hereinafter referred to as ''the Act'') and the Rules made thereunder. The aforesaid Bank shall hereinafter be referred to as ''the Society.'' The term of the elected Board of Directors of the Society expired in August, 1994, and u/s 26(1-D) of the Act, Assistant Registrar, Co-operative Societies, Nakodar (in short ''A.R.C.S.'') was appointed as an Administrator of the Society on August, 1994, whose term as such was to expire on February 28, 1995. Section 26(1-A) of the Act provides that the Managing Committee of any Co-operative Society may, subject to the approval of the Registrar, divide the area of operation of the Society into Zones for the purpose of the election of the Managing Committee. Rule 27 of the Rules provides that the Registrar of the Co-operative Societies may in such cases as he thinks fit divide the area of operation of Co-operative Society into zones not exceeding in number than the number of members to be elected for the Managing Committee.

Section 26(1-A) of the Act and Rule 27 are reproduced as under:

Section26(1-A) The committee of any co-operative society may subject to the approval of the Registrar, divide the area of operation of the society into zones for the purpose of election of members of the committee)."

"Rule 27. Division of area of society into zones. (Sections 26(i) and 85(2) (x) - The Registrar may, in such cases as he thinks fit, divide the area of operation of a Co-operative Society into zones not exceeding in number than the number of members to be elected for the committee."

One Brij Bhushan (respondent No.2 in the former writ petition and petitioner in the latter writ petition), who is a member of the Society, moved an application for framing zones for holding election to the Managing Committee of the Society. On September 9, 1994, the Administrator of the Society passed a resolution authorising the Manager of the respondent-Society to frame zones. The Manager after framing the zones, submitted the same to the A.R.C.S. (exercising the powers of the Registrar) for approval of the zones. Certain objections were raised by different persons including some of the respondents in the former writ petition to the framing of the zones but the same were rejected and the zones as suggested by the Manager of the Society were approved with some modifications by the A.R.C.S. on January 27, 1995.

As required under Appendix ''C'' to the Rules the Manager of the Society drew a detailed programme of election, which was approved by the A.R.C.S. (exercising the powers of the Registrar). The election programme was duly notified to all the members and was also published in "the Daily Ajit" Newspaper on February 8, 1995. The election programme was as under:

"1. Date of giving notice to the members - 10.2.95

Date of filing nomination papers - 28.2.95 from 10 to 12 noon, place -The Nakodar Hindu Urban Co-Op. Bank Ltd.

Time for objections against nomination papers - 28.2.95 from 12 to 1 PM.

Scrutiny of nomination papers - 28.2.95 from 1 to 2 PM

Declaration validly filed nomination papers: 28.2.95 from 2 to 2.30 PM.

Time for withdrawal of nomination papers - 2.30 to 3 PM.

List of candidates without contest - 28.2.95. 3 to 3.30 PM.

Time of allotting election symbols - 28.2.95. 3.30 to 5 PM.

Date of polling - 5.2.95 at 9.00 to 4 PM.

thereafter votes will be counted and result would be declared."

The respondents in the former writ petition filed a petition u/s 69 of the Act before the Joint Secretary to Government of Punjab, Co-operative Department (exercising the powers of the State Government) in which the order of the A.R.C.S. dated January 27, 1995, was challenged. The revision petition came up for hearing or February 28, 1995, when the following order was passed:

"Heard. Notice to the parties for 22.3.1995. Till then, operation of Annexure P-3 (order dated 27.1.1995 passed by A.R.C.S., Nakodar) is stayed."

The petitioners herein were not initially arrayed as respondents in the petition filed by the respondents before the Joint Secretary but they got themselves impleaded as respondents by moving an application.

It is the case of the petitioners in the former writ petition that on February 28, 1995, all the three petitioners, namely, Anoop Kumar, Jarnail Singh and Prabh Dayal had been declared elected as members of the Managing Committee of the Society, being unopposed. The order dated February 28, 1995, passed by the Joint Secretary was conveyed to the A.R.C.S. on March 1, 1995, and after the receipt of the aforesaid order, the A.R.C.S. passed the order, which when translated into English reads as under: (Annexure P-6)

"In the above revision petition, the Joint Secy. Co-operative, Punjab at Chandigarh has stayed the operation of order dated 27.1.1995 passed by A.R.C.S. Nakodar vide his order dated 28.2.1995. This order was produced on 1.3.95 at 10.30 AM in the office. Implementing these orders, the election programme sent by letter/order of the office Nos. 886/89 dated 6.2.95 is stayed.

Sd/- A.R.C.S. Nakodar."

It may be observed that the order dated February 6, 1995, referred to in the aforesaid order, is the one by which the approval of election programme etc. had been conveyed.

On an application made by the Society before the Joint Secretary to vacate the stay order passed by him on February 28, 1995, and the following order was passed on March 4,1995, by the Joint Secretary:

"Heard. A prayer has been made on 2.3.95 by the Manager, the Nakodar Hindu Urban Co-Op. Bank Ltd., Nakodar, to complete the election process as according to the applicant-Bank, three Directors have already been elected unopposed. The polling schedule for 5.3.95 as stated above have been stopped by the Orders of A.R.C.S. Nakodar is not under challenge before us. In view of this situation, the election process shall start from the stage where it has been abandoned, in case revision petition is dismissed. Announced."

Ultimately, the revision petition filed by the present respondents before the Joint Secretary was dismissed on March 29, 1995, vide order copy Annexure P-9. In the penultimate para, it has been observed as under:

"I have heard the counsel for the parties and perused the record. Although the election of three Directors is after grant of the stay and the same is a nullity but the members having been declared elected their elections can only be set aside by way election petition."

The former writ petition has been filed by Anoop Kumar, Jarnail Singh and Prabh Dayal challenging the aforesaid order only to the extent where it says "that the election of the three Directors is after the grant of stay and the same is nullity." whereas the other writ petition has been filed by five of the respondents in the former writ petition, namely, Brij Bhushan Sharma, Deepak Gupta, Amarjit, Anil Kumar and Davinder Paul. In the latter writ petition, the challenge is to the entire order of the Joint Secretary dated March 29, 1995, whereby their revision petition u/s 69 of the Act has been rejected.

In the former writ petition, learned counsel for the petitioner argued that in fact the election as such had never been stayed by the Joint Secretary vide order dated February 28, 1995, and only the order dated January 27, 1995, by which the approval to the framing of the zones had been granted was stayed and, therefore, the question of observation that the petitioners'' election was after the grant of the stay of election does not arise. Alternatively, he submitted that the respondents (petitioners before the Joint Secretary) did not disclose to the Joint Secretary as to what was the election programme and that on February 28, 1995, those candidates after scrutiny of nomination papers could have been declared elected who were unopposed. In any case, he submitted that the order of stay having been communicated to the A.R.C.S. on March 1, 1995, any process of election which had taken place till that date could not be set at naught and, therefore, the petitioners having been declared elected unopposed on February 28, 1995, their election could only be challenged by way of an election petition. For the sake of analogy, he referred to the provisions of Order 41 Rule 5 of C.P.C. to show that the order of stay becomes effective only when the same is conveyed to the authority concerned. Learned counsel for the petitioners argued that in terms, the Joint Secretary had made contradictory observations as on one side, it has been observed that the petitioners having been declared elected after the grant of stay, the same is nullity but on the other hand, it has been observed that since they have been declared elected, the only way to challenge their election is by way of an election petition. It was further submitted by the learned counsel for the petitioners that there were 10 petitioners before the Joint Secretary who had filed the petition u/s 69 of the Act and the order passed by the Joint Secretary dated March 29, 1995, copy Annexure P-9, has been challenged only by the five petitioners who were before the Joint Secretary. Out of those five, three of them namely, Sarv Shri Deepak Gupta, Devinder Paul and Anil Kumar had in fact filed their nomination papers for election from zone No. 1, zone No. 8 and zone No. 3 respectively and took part in the elections. In these circumstances, learned counsel for the petitioners argued that the petitions were validly declared elected on February 28, 1995, when they remained unopposed and if their election is to be challenged, that can be only by way of an election petition.

Learned counsel for the respondents in the former writ petition argued that once the Joint Secretary had stayed the election, the whole process should have come to a stand still and the question of declaring the petitioners as elected being unopposed could not arise after the order had been passed by the Joint Secretary staying the election on February 28, 1995.

After hearing the learned counsel for the parties, I am of the view that the petitioners'' contention would prevail under the circumstances of this case. The A.R.C.S. in his order dated March 1, 1995, (which has already been reproduced above) has clearly mentioned that the stay order was conveyed on March 1, 1995, at 10.30 AM and he had stayed the election process thereafter meaning thereby that whatever had happened upto 10.30 AM on March 1, 1995, was deemed to have taken place legally. There is nothing on the record to show that the Returning Officer had been conveyed the stay order any time prior to that. Moreover, the Joint Secretary himself passed the order on March 4, 1995, after noticing the order of the A.R.C.S. dated March 1, 1995, that the order passed by the A.R.C.S. was not under challenge before him and in case the revision petition was dismissed, the election process was to start from the stage where it had been abandoned. From the order of the A.R.C.S. dated March 1, 1995, it is clear that the election process had been abandoned on March 1, 1995, at 10.30 AM. Consequently, as per the orders of the Joint Secretary himself dated March 4, 1995, in case of the dismissal of the revision petition, the election process had to start where it was abandoned on March 1, 1995, the petitioners having been declared unopposed on February 28, 1995, their election is not a nullity as that much process had taken place much before the stay order passed by the Joint Secretary had been conveyed.

Apart from what has been observed above, it may further be observed that the petitioners before the Joint Secretary had not stated anything in the petition, the copy of which has been appended as Annexure P-4 with the - - - - writ petition) that in pursuance to the approval of the framing of the zones, election programme had already been issued on February 8, 1995, and that the nomination papers had to be filed on February 28, 1995, on which date scrutiny etc. had to take place. Further since even the revision petition itself had been dismissed by the Joint Secretary (though that is a subject matter of the other writ petition), I am of the view that this writ petition deserves to be allowed to the extent that the Joint Secretary, Co-operative Societies was not right in observing in the order dated March 29, 1995, copy Annexure P-9 that the petitioners'' election was a nullity on the ground that the same was after the grant of stay. The election cannot be said to be nullity on that ground. The Joint Secretary was right in observing that the election of the petitioner can only be challenged by way of an election petition in accordance with law.

Consequently, Civil Writ Petition No. 12536 of 1995 is allowed to the extent indicated above.

Coming to the other writ petition-C.W.P. 11876 of 1995 (Brij Bhushan Shanna and Ors. v. Joint Secretary, Co-operation, Punjab, and Ors.), learned counsel for the petitioners argued that the zones in the area of operation were being framed for the first time and there was lot of disparity in the number of voters in each zone. According to the learned counsel, the nine zones which were framed, had the following number of voters :

Zone No. No. of Members 1. 685 2. 555 3. 753 4. 710 5. 626 6. 511 7. 504 8. 656 9. 550.

According to the learned counsel, the number of voters in each zone should as far as possible be equal. In support of his contention, learned counsel relied upon the Raikot Co-op. Marketing-cum-Processing Society Ltd. v. The State of Punjab and Ors. 1987 P.L.J. 448. He further contended that it is the Committee of the Society which u/s 26(1-A) of the Act has to divide the area of operation of the Society into zones subject to the approval of the Registrar. Since in this case, the A.R.C.S. was the Administrator i.e. the Managing Committee of the Society, he by approving the zones himself, - had become a Judge in his own cause and the approval of the zone by A.R.C.S. is liable to be struck down on that score alone. He relied upon Baldev Singh v. The State of Punjab and Ors. 1975 P.L.J. 507 and Dharampal v. The State of Haryana 1983 P.L.J. 304. It was further argued that certain members had been inducted in the Society which could not have been legally inducted and the Joint Secretary should have gone into that point by seeing the proceedings of the Managing Committee and the register of membership.

Learned counsel for the respondents in the aforesaid writ petition argued that while framing the zones, the administrative convenience has to be seen and so far as possible, the voters in each zone should be equal but it may not be possible with mathematical exactitude. In the present case, the zones were framed as per the wards of the Municipal Committee as it was thought to be of administrative convenience as the wards had already been demarcated by the Municipal Committee. Moreover, learned counsel submitted that a couple of voters being more in one zone would not effect the framing of the zones. So far as the question of being a judge in his own cause is concerned, the learned counsel submitted that the A.R.C.S. had authorised the Manager of the society to put up the proposal of the framing of zones to be approved by him. He further submitted that the question of a judge being in his own cause would not arise in the present case as the A.R.C.S. himself was the Managing Committee being the Administrator and he could have framed the zones himself which would inherently have the approval of the Registrar inasmuch as he himself was exercising the powers of the Registrar. So far as the question of the members having been wrongly inducted, the learned counsel submitted that no petition u/s 69 of the Act lay for removal of the members who were allegedly wrongly inducted and in any case none of them being a party before the Joint Secretary or before this Court, that question cannot be gone into.

After hearing the learned counsel for the parties, I do not find any merit in this writ petition. Though normally, it should be seen that the number of voters, as far as possible, in each zone should be almost equal but while seeing that many other considerations have to be taken note of, like the geographical topography of the area, the administrative convenience in dividing particular area into different zones for the purpose of voting and other allied matters. In the case cited by the learned counsel for the petitioners, in one zone, there were 360 votes and in another, there were 183 voters. This Court did not interfere though it observed that as far as possible each zone should have equal number of voters. As observed above in the present case for purpose of administrative convenience as the zones were being carved for the first time, the Municipal wards were considered as zones for the purpose of election to the Society and this might have resulted in unequal distribution of voters but I do not consider that the inequality is to such an extent that the framing of zones need to be quashed. So far as the second point is concerned, 1 am of the view that if A.R.C.S. exercising the powers of the Registrar is himself the administrator i.e. the Managing Committee of the Society, he can himself frame the zones and it need not have the approval of the Registrar as zones it self would be deemed to have been framed by the Registrar which power is also vested in the Registrar under rule 27 of the Rules. Otherwise also, in this case the Manager had put up the proposal which was approved by the A.R.C.S. (exercising the powers of the Registrar). There was no lis between the parties in which the Administrator could be interested one way or the other. The cases cited by the learned counsel for the petitioners have no relevance as those were the cases of appointment of an Arbitrator where it was observed that nobody can be judge in his own cause. So far as the question whether the particular members had been legally inducted in the Society or not, it is admitted by both sides that the Society in question is not covered by the provisions of Section 15-B of the Act which relates to induction of members. Under the circumstances, I am of the view that the only way that a member can challenge the wrong induction of another member in a! Society as in the present case would be u/s 55 of the Act which envisaged a dispute amongst the members themselves to be referred in an Arbitrator. Moreover, the members allegedly wrongly inducted were neither before the Joint Secretary nor they have been arrayed as respondents in this writ petition.

For the foregoing reasons, I find no merit in Civil Writ Petition No. 11876 of 1995, which is hereby dismissed. The Motion Bench had stayed the declaration of the result of the election of the members of the Committee of the Society. Let that be declared forth with.