Babu Lal vs The State of Rajasthan and Others

Milap Chandra Jain, J.—This appeal has been filed against the order of the learned Single Judge dated October 28, 1992 by which he has dismissed the writ petition of the appellant on the preliminary point that the petitioner has adequate and equally efficacious remedy before the Registrar, Cooperative societies, Rajasthan, Jaipur under Sections 75 and 77, Rajasthan Cooperative Societies Act (hereinafter to be called ''the Act'') as election has already taken place and result is only to be announced. The facts of the case giving rise to this special appeal may be summarised thus.

The election programme of the Raipur Marketing Cooperative Society, Raipur (Pali) was announced and the election was scheduled to be held on August 6, 1992. The non-petitioner No. 5 Amar Singh Chouhan also filed his nomination. After hearing the objections, his nomination was rejected. List Annexure 5 of candidates whose nominations were accepted/rejected was duly published at 5 P.M. on August 1, 1992. On the direction of the Deputy Registrar of the Cooperative Societies, the Election Officer accepted the nomination paper of the respondent No. 5 Amar Singh Chouhan and issued fresh list Annexure 7. The petition filed writ petition challenging the order Annexure 6 of the Deputy Registrar directing the Election Officer to reconsider the nomination of the respondent No. 5 afresh, acceptance of the nomination paper of the respondent No. 5 Amar Singh Chouhan and revised list Annexure 7.

The respondents No. 5 filed his caveat. His learned Counsel seriously opposed admission of the writ petition. After hearing his preliminary objection, it was rejected and the writ petition was admitted.

The respondents filed their reply, seriously opposing the writ petition. After hearing the learned Counsel for the parties, the learned Single Judge dismissed the writ petition as said above.

It has been contended by the learned Counsel for the petitioner-appellant that the learned Single Judge was not justified to dismiss the writ petition on the said preliminary objection which has earlier been decided in favour of the petitioner at the time of its admission. He also contended that the Act and Rules have no provision enabling the Election Officer to review his earlier order and the Deputy Registrar had no jurisdiction to direct the Election Officer to reconsider the nomination paper of respondent No. 5 Amar Singh Chouhan after it had duly been rejected. He lastly contended that it is well settled law that under Article 226, Constitution of India Court can invoke its jurisdiction if the impugned order is without jurisdiction even if there is an alternate remedy for challenging it. He relied upon Ajit Kumar and Ors. v. State of Rajasthan and Ors. 1989 (2) RLR 616.

In reply, it has been contended by the learned Counsel for the respondents and the learned Government Advocate that the respondent No. 5 Amar Singh Chouhan only filed his caveat, his counsel was only heard, notice was not issued to other respondents and they are not estopped from submitting that the petitioner has an alternative and efficacious remedy u/s 75 of the Act to challenge the said orders. He also contended that it is well settled principle of election law that election should not be held up and the persons aggrieved should not be permitted to ventilate individual interest. He further contended that the petitioner has an alternative efficacious remedy u/s 75 of the Act and the court in exercise of its jurisdiction always decline to invoke its jurisdiction in an election dispute if the alternative remedy of election petition is available and the learned Single Judge has rightly exercised his jurisdiction ins dismissing the writ petition on the said preliminary objection. They also contended that the Election Officer was justified to correct the error which he committed by illegally rejecting the nomination-paper of the respondent No. 5. He lastly contended that the writ petition involves disputed questions of fact, namely, whether the respondent No. 5 owed debt of the Marketing Society on the date of the nomination paper and whether the list Annexure 7 was prepared the same day i.e. on August 1, 1992 or August 2, 1992.

Admittedly, the dispute in between the parties is covered u/s 75(2) (c) of the Act read with Rules 32(7) and (8) of the Rajasthan Cooperative Societies Rules (hereinafter to be called ''the Rules''). This dispute can be settled under Chapter VIII of the Rules. The remedy provided thereunder is equally efficacious and speedy. It is well settled law that the High Court should not invoke its extra-ordinary jurisdiction under Article 226 of the Constitution of India for settling election disputes when an alternate remedy is available to an aggrieved party.

It has been observed in Narayan Bhaskar Khare Vs. The Election Commission of India, as follows:

The well recognised principle of election law, Indian and English, is that election should not be held up and that the person aggrieved should not be permitted to ventilate his individual interest in derogation of the general interest of the people, which requires that election should be gone through according to the time schedule.

It has been observed in K.K. Shrivastava and Others Vs. Bhupendra Kumar Jain and Others, as follows:

It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court. There are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.

It has been observed in Laxmi Charan Sen v. A.K. Hassan AIR 1985 SC 1233 at page 1245 para 25, as follows:

In Rampakavi Rayappa Belagali Vs. B.D. Jatti and Others, , ii was held that the scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an electoral roll of a constituency can only be challenged in accordance with the machinery provided by the Act and not in any other manner or before any other forum unless, some question of violation of the provisions of the Constitution is involved.

It has been held in Election Commission of India v. State of Harayana 1984 (Supp) SCC 104 at page 109 para 7, as follows:

As stated earlier, notifications setting the election process in motion were to be issued on April 18. One day before that, the State Government approached the High Court in a hurry, asking it to stay the election process, which the High Court has done. This Court held in the West Bengal Poll case, A.K.M. Hassan Uzzaman and Others Vs. Union of India (UOI) and Others, that the imminence of the electoral process is an important factor which must guide and govern the passing of orders in the exercise of the High Court''s writ jurisdiction and that, the more imminent such process, the greater ought to be the reluctance of the High Court to take any step which will result in the postponement of the elections. We regret to find that far from showing any reluctance to interfere with the programme of the proposed election the High Court has only too readily passed the interim order which would have had the effect of postponing the election indefinitely. Considering that the election process was just round the corner, the High Court ought not to have interfered with it. The non-speaking order passed by it affords no assistance on the question whether there were exceptional circumstances to justify that order.

In S.T. Muthusami Vs. K. Natarajan and Others, , it has been observed as follows:

In the above passage this Court clarified that the conclusions in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, had been arrived at without taking the provisions of Article 329 of the Constitution into account and that the provisions of Article 329 of the Constitution were relevant only to the extent that even the remedy under Article 226 of the Constitution was barred as a result of the provisions. Earlier in the course of the decision in Nanhoo Mal and Others Vs. Hira Mal and Others, this Court observed at page 811 (of SCR):(at p.2141 of AIR):

After the decision of this Court in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, there is hardly any room for courts to entertain applications under Article 226 of the Constitution in matters relating to elections.

It has further been observed in para No. 13 as follows:

In the ultimate analysis, the Full Bench laid down:

There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. So, their Lordships of the Supreme Court in Sangram Singh Vs. Election Tribunal, Kotah, Bhurey Lal Baya, stated:

....though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of cases.

It has been observed in Bhural Lal Dugal v. The Registrar, Shahakari Samities 1987 (1) RLR 730 at page 734 para 11, as follows:

We have considered the rival submissions of the learned Counsel for the parties. In the present case the dispute raised by the petitioner relates to the legality of the voters'' list issued by the Respondent No. 3. The preparation of the voters'' list is a part of the election process and a dispute relating to the legality of the voters'' list is, therefore, a dispute arising in connection with the election of the members of the managing committee. Moreover, there is a serious dispute on questions of fact which can only be determined on the basis of evidence and the said dispute can be properly adjudicated in proceedings u/s 75 of the Act. In our opinion the remedy u/s 75 of the Act is an efficacious remedy for decision of the dispute raised by the petitioner in this writ petition and in the circumstances we are of the opinion that this writ petition cannot be entertained.

It has been observed in Sheopat Ram v. The State of Rajasthan 1992(1) RLR 665 at page 669 para 12, as follows:

However, normally a court does not interfere with election process, once it has commenced and an election petition is the proper remedy. This is the ratio of the Ram Rake''s case (supra) which is based on certain D.B. decisions of this Court viz.--Bharat Lal Dugal v. The Registrar Sahkari Samities, Rajasthan, Jaipur and Ors. Kanwar Pal v. State of Raj and Ors. 1987(2) RLR 128 and Raju Ram v. Gram Sahkari Samiti Mamser and Ors. D.B. Civil writ petition No. 2412/86 decided on 15.10.87 and Ram Niwas v. State of Raj and Ors. D.B. Civil writ petition No. 2903/88 decided on 5.9.88. Therefore, we may accept it as a settled proposition of law that once the election process has started, this Court would not interfere with the same and the election dispute can be resolved under the provisions of Section 75 of the Act, which is an adequate and equally speedy and efficacious remedy under the law. We respectfully agree with the views propounded in the aforesaid decisions.

As the matter is not being decided on merit, it is not necessary to decide whether the Election Officer has power of review and whether he could accept the nomination paper of the respondent No. 5 after it has been rejected by him particularly on the direction of the Deputy Registrar, Rajasthan Cooperative Societies. The learned Single Judge was perfectly justified to dismiss the writ petition on the aforesaid preliminary objection.

Accordingly, the special appeal is dismissed with costs.