Hukum Dutt Singh vs State of U.P.and Others

Dharam Veer Sharma, J.

Every significant case has an unwritten legend and indelible lesson. This writ petition is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections, which Sir Winsten Churchill vivified in matchless words:

�At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper, no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.�

If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men ''dressed in little, brief authority''. For ''be you ever so high, the law is above you''.

The moral may be stated with telling terseness in the words of William Pitt: ''Where laws end, tyranny begins''. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics of Power best expressed by Benjamin Disraeli:

�I repeat�..that all power is trustthat we are accountable for its exercisethat, from the people and for the people, all springs and all must exist.�

Aside from these is yet another, bearing on the play of natural justice, its nuances, nonapplications, contours, colour and content. Natural justice is no mystic testament of judgemade juristics but the pragmatic, yet principled, requirement of fairplay in action as the norm of a Civilized justice system and minimum of good governance crystallized clearly in our jurisprudence by a catena of cases here and elsewhere.

When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and can not be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds, later brought out.

The conspectus of facts are as under:

The instant writ petition has been preferred for quashing of the order dated 6.3.2006 (Annexure No.1) passed by respondent No.5, whereby he has cancelled the election programme of the delegates as well as Committee of Management of the Sahkari Ganna Vikas Samiti Ltd., Nawabganj, District Gonda, without having any jurisdiction to cancel the same, Sahkari Ganna Vikas Samiti Ltd., Nawabganj, district Gonda is a Society registered under the U.P. Cooperative Societies Registration Act, 1965 (hereinafter referred as the ''Act'') and the provisions contained in the U.P. Cooperative Societies Act, 1965 as well as U.P. Cooperative Societies Rules, 1968 apply upon the above Samiti.

Section 29 (3) of the U.P. Cooperative Societies Act, 1965 provides that it is statutory duty of the Registrar, Cooperative Societies, Uttar Pradesh to complete the election of the Committee of Management of the Cooperative Societies at least 15 days before the expiry of the term of such Committee of Management and the responsibility has been placed upon the Secretary of the Cooperative Society to send requisition for holding the election to the Registrar, Cooperative Societies four months before the expiry of the term of the Society. U.P. Cooperative Societies Act, 1968 holds the field in this matter. Rule 407 provides the statutory duty upon the Registrar to constitute new Committee of Management of the Society before its term expire.

Since the election of the Sahkari Ganna Vikas Samiti Ltd., Nawabganj, District Gonda, hereinafter referred to as ''Society'' as well as other Cane Societies was due and accordingly Cane Commissioner/Registrar, Cooperative Societies issued an order dated 6.2.2006 directing all the District Magistrates concerned to ensure the election of delegates of different Societies and also to ensure the constitution of Committee of Management of such Societies by 7th April, 2006. In compliance of the aforesaid direction as Annexure No.2 to the writ petition, Deputy Cane Commissioner/Deputy Registrar, Cooperative Cane/Sugar Mills Societies, Devi Patan Mandal, Gonda (Opp. Party No.3) published a notice in daily newspaper ''Dainik Jagaran'' by which tentative constituencies were determined and the objections were invited from the public (Annexure No.3).

Sri Ranvir Singh, Block Development Officer, Jhanjhari (Gonda) was appointed as Returning Officer for conducting elections of the Sahkari Ganna Vikas Samiti Ltd., Nawabganj, District Gonda and as per rules he published the election programme in daily newspaper dated 21st February, 2006 and 24th February, 2006 was fixed for objections and disposal of objections. 28.2.2006 was fixed for publication of final voter list, 2.3.2006 was fixed for filing of nomination papers, 3.3.2006 was fixed for scrutiny and objections 4.3.2006 for disposal of objections, 6.3.2006 for allotment of symbol and 11.3.2006 was fixed for polling (Annexure No.4).

In pursuance to the notification (Annexure No.4), the election process commenced and thereafter 367 nominations were filed and at the time of scrutiny 35 nominations were found to be invalid and Rs.70,000/ were deposited for filing nomination at the rate of Rs.200/ per nomination. To the best of the knowledge of the petitioner, no complaint was made regarding illegal offence or for illegal acceptance or refusal of nomination papers, but surprisingly Election Officer (Opp. Party No.5) passed an order dated 6.3.2006 (Annexure No.1) cancelling the election programme without any authority of law or any justification.

It is further averred that Block Development Officer, Jhanjhar, Gonda was appointed as Election Officer, but the impugned order dated 6.3.2006 was passed by the Block Development Officer, Nawabganj, Gonda, it reflects ulterior motive as there was no justification to change the Returning Officer. The reason assigned for cancelling the election programme were enumerated as under;

(1) No Assistant Returning Officer has been appointed to assist the Election Officer;

(2) There was some confusion in the thumb impression and signature of proposers and seconders;

(3) Till the date of the scrutiny of the nomination papers, proper security arrangement was not made and as such it was not possible for him to conduct fair and vaid election.

It is alleged that the impugned order was passed in violation of principles of natural justice, arbitrary and unreasonable and in defiance of provision of Section 29(3) of U.P. Cooperative Societies Act, 1965 through which if the State Govt. is satisfied that the 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 all the proceedings with reference to the election shall be commenced afresh in all respect.

In view of the proviso of Section 29(3) of the U.P. Cooperative Societies Act, 1965, the power to postpone the election is vested only in the State Government and the grounds are enumerated in Section 29(3) and the Registrar, Cooperative Societies has power to postpone the election on the direction of the State Government. Otherwise there is no authority or jurisdiction to postpone or cancel the election of the Samiti or Sahkari Ganna Vikas Samiti Ltd., Nawabganj, District Gonda. The grounds for postponing the election, have been provided under Rules 418 and 432 of the U.P. Cooperative Societies Rules, 1968, but none of the reasons has been mentioned in the impugned order (Annexure No.1).

It is further mentioned that no one made any complaint regarding accepting or refusal of the nominations or objections regarding the publication of voter list. Such disputes are subject to reference by the aggrieved party under Rule 444C (II) of the Act, 1968. The Hon''ble Apex Court held that the election process starts, it can not be stayed and if the process is polluted then the proper remedy is to challenge the same by filing election petition. Consequently, the impugned order was passed in gross violation of the Rules to start the election process afresh from 31.3.2006. The jurisdiction of the State Govt. was illegally usurped beyond the illegal competence by opp. Party No.2 and opp. Party No.5, which has vitiated the order dated 10.3.2006 (Annexure No.5).

In the surrounding circumstances when beyond the legal competence a new election programme was published on 13.3.2006 in daily newspaper along with the notification. Hence the instant petition was filed. Opposite parties are making endeavour to start the process of election afresh from the date of publication of the voter list which is not permissible under law.

The State Govt. can not postpone the election of the Cooperative Societies and the p�nper remedy under Rule 444C is to challenge the election. The election notification dated 21.2.2006 was not at any point of time cancelled or revoked by the State Govt. or by the Registrar, as such the opposite parties were not justified to cancel the election programme fixed by the notification dated 21.2.2006. Thus, the order passed by opposite party No.5 as well as by opposite party No.2 on 6.2.2006 and 10.3.2006 are arbitrary, illegal and contrary to the Rules. The Returning Officer has not been vested with the power to postpone or cancel the election. The State Govt. or the Registrar can not confer any power on the Returning Officer to postpone the election. Thus, on the point of irregularities in the nomination, the procedure is available under Rule 444C of U.P. Cooperative Societies Rules, 1968 and the Returning Officer himself is not competent to cancel the election. Registrar can issue order for holding fresh election only after receiving direction from the State Govt. and he himself can not take a decision in the matter. The order passed by the Block Development Officer, Nawabganj, District Gonda without affording any opportunity of hearing to the candidates and without any showcause with ulterior motive have been passed in flagrant violation of principles of natural justice infringing the provision of Article 14 of the Constitution.

On behalf of respondents No.1, 2, 3, 4 and 5, a short counteraffidavit was filed by the Returning Officer Sri Ranveer Singh stating that he has been authorized on behalf of the respondents to swear affidavit. Sahkari Ganna Vikas Samiti Ltd., Nawabganj, District Gonda (herein after referred as ''Society'') is a Cooperative Society, whose organization, management and administration is governed under the provisions of the U.P. Cooperative Societies Act, 1965, U.P. Cooperative Societies Rules, 1968 as well as the rules and byelaws framed by the Cooperative Society itself. Vide circular letter dated 6.2.2006, the Cane Commissioner and Registrar, Sahkari Ganna/Chini Mills Samitiyan, U.P. Lucknow, issued notification for conducting the elections of the Sahkari Ganna/Chini Mills Samitiyan and directed to all the District Magistrates concerned to proceed in the matter and respondent No.5 was directed to work as Election Officer for the Samiti. Accordingly notification dated 21.2.2006 along with programme of election was published by the Election Officer after invoking his power under Rule 441 of the U.P. Cooperative Societies Rules, 1968. During the proceedings of the election process, the Election Officer of the Society found several shortcomings. At the time of verification of the nomination papers it was observed that the signatures of contestants and their proposers were not verified at the time of deposition of papers for nominations as there was problem for law and order and it was not possible to conduct fair election. Accordingly, the recommendation for reelections were made to District Magistrate, Gonda. It is further submitted that under the provisions of Rule 229(2) of 1968 the District Magistrate of the district to which the society belongs is empowered to take reference, where the dispute relates to the constitution of the Committee of Management of the Society or election or appointment of any office bearer or a delegate of the Cooperative Society.

Rule 432 provides that after the nomination has been finalized and symbols have been allotted the process of election shall continue and poll shall be held on such date as the Registrar may fix.

Section 29(3) of the U.P. Cooperative Societies Act enable that the election to reconstitute the Committee of the Cooperative Societies shall be completed in the prescribed manner under the direction of the Registrar at least 15 days before expiry of the term of the Committee of Management and the member so elected shall replace the Committee of Management whose terms expire under Subsection (2) of the Act. The proviso to the Section 29(3) of the Act provides that where the State Govt. is satisfied that the 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 the reference to the election, and the same shall be commenced afresh in all respects.

Accordingly, notification was issued on 10.3.2006 (Annexure No.5 to the petition) for conducting of the State Election which was cancelled vide aforesaid order dated 6.3.2006. District Magistrate, Gonda appointed respondent No.5 as Election Officer (Annexure No.C.A1) and the programme in accordance with Rule 441 was published (Annexure No.C.A2). After going through the process of election, the election proceedings have been completed in accordance with the provisions of law till 31.3.2006 at 2.20 p.m. and the result of election has been declared on 31.3.2006. The certificate to the elected winning candidates and delegates are also issued. Consequently, the petition is devoid of any merit and is liable to be dismissed.

On behalf of Respondent No.6, Sri Janardan a separate counteraffidavit has been filed. He has averred that in pursuance of the order passed by the Cane Commissioner/Registrar, Cane Cooperative Society, Devi Patan Mandal, Gonda on 6.2.2005, a detailed programme for election of the delegates for Cane Cooperative Society, Devi Patan Mandal, Gonda was published by the Deputy Cane Commissioner/U.P. Cane Cooperative Society, Devi Patan Mandal. The scheduled programme of the election of the delegates for Cane Cooperative Society, Devi Patan Mandal, Gonda was also published under the authority of Section 29(3) read with Rule 440(4) of U.P. Cooperative Societies Act, 1968. Vide order dated 6.3.2006, the Election Officer has postponed the election under Rule 432 of U.P. Cooperative Societies Act, 1968. After the postponement of the election, the Registrar, Cane Cooperative Society has exercised his power and had started the election de novo and has also rescheduled the election under Rule 439(2). It is noteworthy to mention here that the schedule was published for the election as per under Section 439(2). It is further averred that Section 20 of U.P. Cooperative Society Act, 1965 provides the Vote of Members and Explanation1 defines the defaulter while the ExplanationIII of Section 20 provides that a member shall cease to be treated as defaulter if he pays the sum for nonpayment of which such member became defaulter(1) in the case of an election, on or before the date fixed under the rules for deciding objections against the provisional voters list. It is further submitted that 72 persons whose names were added, were not the defaulters but as the membership fees has been increased, they deposited their increased share under Section 20 of the said Act. The petitioner has an alternative remedy to challenge the election by way of filing election petition as provided under the Act and Rule under Section 444C. Hence, the petition is devoid of merit and is liable to be dismissed.

The conspectus of provisions bearing on the subject of elections clearly express the rule that there is a remedy for every wrong done during the election.

Before we consider the rival contention, it may be appropriate to set up relevant provision as contained in the Acts and Rules.

U.P. Cooperative Societies Act, 1965

Registrar, Rules and State Government have been defined as under:

�2(r): ''Registrar'' means the person for the time being appointed as Registrar of Cooperative Societies under subsection (1) of Section 3 and includes any person appointed under subsection (2) of that section when exercising all or any of the powers of the Registrar;

2(s): ''Rules'' means rules made under this Act;

2(t): ''State Government'' means the Government of Uttar Pradesh;

Section 20 deals with the vote of member which is reproduced as under:

�20. Vote of members A member of a Cooperative Society shall, notwithstanding the quantum of his interest in the capital of the Society, have one vote in the affairs of the Society:

Provided that

(a) no nominal or associate member shall have the right of vote;

(aa) a member shall have no right of vote if

(i) he is defaulter and has been a defaulter for a period of not less than six months; or

(ii) he is a delegate of a Society which is such defaulter as is referred to in subclause (i).

Explanation (1): For the purposes of this clause, the word ''defaulter'' means:

(i) a member (whether individual or body corporate) who has failed to pay any dues of the Society concerned on the due date or

(ii) a member Cooperative Society which had failed to pay not less than 75 per cent of the total dues on the due date.

Explanation II In the case of a transaction between a Society and its members where there is no document evidencing the transaction in which the due date is specified the expression ''due date'', for the purposes of the preceding explanation shall mean the date of expiration of six months from the date of transaction.

Explanation III A member shall cease to be treated as defaulter if he pays the sum for nonpayment of which such member became defaulter

(i) in the case of an election, on or before the date fixed under the rules for deciding objections against the provisional voters'' list;

(ii) in any other case, before the commencement of the meeting.�

(b) where a Cooperative Society, the State Warehousing Corporation or body corporate is a member of such Society, each delegate of such Cooperative Society, State Warehousing Corporation or Body Corporate, (appointed in the prescribed manner) to the general body of such Society shall have one vote;

(c) where the State Government or the Central Government is a member of such Society, each person nominated according to the byelaws by the State Government or the Central Government on the Committee of Management or the general body of the Cooperative Society shall have one vote;

(d) the rules or the byelaws may provide for a group of members or any class of members partaking in the affairs of the Society through a delegate or delegates, such delegate having one vote.

Section 29 deals with the Committee of Management which reads as under;

�29. Committee of Management (1) The management of every Cooperative Society shall vest in a Committee of Management constituted in accordance with this Act, the rules and the byelaws which exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the byelaws.

(2)(a) The term of every Committee of Management shall be (five) years and the term of the elected members of the Committee of Management shall be coterminus with the term of such Committee.

(b) The provisions of clause (a) shall apply also to a Committee of Management in existence on the date of the commencement of the Uttar Pradesh Cooperative Societies [(Amendment) Act, 2002] and to the elected members of such Committee.

(c) The term of a Committee of Management, which has completed, on or before the date of the commencement of the Act referred to in clause (b), the period of three years from the date of its constitution, and the term of its elected members, shall expire on such commencement.

(3) Election to reconstitute the Committee of Management of a Cooperative Society shall be completed in the prescribed manner under the superintendence, control and direction of the Registrar at least fifteen days before the expiry of the term of the Committee of Management and the members so elected shall replace the Committee of Management whose term expires under subsection (2);

[Provided that notwithstanding anything in this Act, the Administrator or the Committee of Administrators appointed under this section, as it stood before the commencement of the Uttar Pradesh Cooperative Societies (Second Amendment) Act, 1994 shall continue to exercise the powers and perform the duties of the Committee of Management till the Committee of Management is reconstituted under this Act or till [December 31, 2000] whichever is earlier;

[Provided further 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 which reference to the election shall be commenced afresh in all respects.]

Uttar Pradesh Cooperative Societies Rules, 1968

Rule2 provide definition;

Rule 2[(ii) defined election;

(i) delegates, or

(ii) members of the Committee of Management, or

(iii) Chairman, ViceChairman of a Cooperative Society;]

Rule 2[(mm) ''Election Officer'' means an officer of the State Government, whom the District Magistrate may appoint as Election Officer for a Cooperative Society or a class or classes of Cooperative Societies or for an area or areas in this behalf;]

Chapter XXIX relates to the Rules for election in Cooperative Societies. PartI deals with the post registration meeting and election, whereas Part II deals with the election Rules in respect of the Societies. They are quoted as below:

(1) Within a period of ninety days from the date of the registration of a Cooperative Society or within such extended period as may be permitted in writing by the Registrar, the Society shall hold its first general meeting wherein only such persons as had joined in the application for registration of the Society shall be entitled to participate.

(2) For the purposes of the meeting referred to in subrule (I) at least fifteen days'' notice mentioning the date, time, place and agenda of the meeting shall be given by the person who signed the application for the registration as the first signatory (referred to in Rule 5).]

Where in the first signatory is not available to convene the meeting or he fails to convene the meeting as aforesaid it shall be convened by the Registrar or any person authorized by the Registrar by a general or special order.

At the first general meeting referred to in Rule 402, the following business shall be transacted in the order given below:

(i) election of the person to preside over the meeting (election to be held by show of hands);

(ii) consideration of the statement of accounts, since the organization of the Society of the date of meeting;

(iii) constitution of a provisional Committee of Management from out of the persons entitled to participate in the meeting as provided in subrule (1) of Rule 402;

(iv) Election of Chairman and Vice Chairman of the Society from amongst the members of the provisional Committee.

(v) Fixation of maximum liability to be incurred by the Society till the first annual general meeting of the Society.

(vi) Admission of new members; and

(vii) Any other matter which may be necessary in view of the byelaws of the Society.

The procedure laid down in Rule 444B shall mutatis mutandis apply for purpose of election under clause (iii) or clause (iv) of Rule 404.

The provisional Committee of Management constituted under clause (iii) of Rule 404 and the Chairman and the Vice Chairman elected under subrule (iv) of that Rule shall hold office till the Committee of Management is duly constituted and the Chairman and Vice Chairman are duly elected respectively.

It shall be the duty of the Registrar to reconstitute the new Committee of Management in accordance with the provisions of the Act, Rules and byelaws before the expiry of the term of elected Committee of Management of any Cooperative Society. It shall be the duty of the Secretary or the Managing Director of the Society to inform four months prior to the date of expiry of the term of elected Committee of Management to the District Assistant Registrar, Cooperative Societies of the District, in which the registered Head Quarters of the Society are situated or the Officer authorized by the Registrar for such purpose for a class or classes of societies, in writing about the date on which the term of the elected Committee of Management of the Society is to expire and he shall make request to determine the constituencies, provided that in case of Primary Cooperative Societies, the District Assistant Registrar, Cooperative Societies or authorized Officer shall determine the constituencies shall be determined by the Joint Registrar or Deputy Registrar, Cooperative Societies of the Division or the authorized Officer in whose jurisdiction the headquarters of the Society is situate.

For the determination of the constituencies the Secretary of the Society or the Managing Director, as the case may be, shall make available all such informations or facts which are required by the District Assistant Registrar or Divisional Joint Registrar or Divisional Deputy Registrar, Cooperative Societies or the authorized Officer.

The Secretary or the Managing Director of the Society shall in accordance with directions given by the Registrar from time to time or the provisions for time being in force prepare a list of all the voters against whose name the disqualification, if any, as discribed in the Act, Rules or byelaws shall be mentioned in the list and the members, ordinary or sympathizers, duly enrolled 45 days before the date of election, shall only be included, provided in case of the societies where general body is constituted by individual members and the delegates of the societies or only by the delegates of the societies, the voter list shall be prepared under Rule 80 and the voter list, so prepared, shall be called the provisional voter list which will bear the signature and seal of the Secretary or the Managing Director and the Chairman of the Committee of Management.]

The Registrar has no power to interpret Rule 409 of the U.P. Cooperative Societies Rules, 1968. He has equally no power to express views with regard to conduct of the election and regulate the voting rights by giving more than one vote. At an election of members of the Committee of Management, one member will have only one vote for the constituency to which he belongs.

[410. The provisional voter list prepared in accordance with Rule 409 shall be displayed by the Election Officer on the date and time and place as notified in the election programme.]

The annual general meeting shall be presided over by the Chairman or in his absence, by the ViceChairman. In the absence of both the Chairman and ViceChairman the members present may elect any other member of the general body to preside over the meeting.

The annual general meeting adjourned for want of quorum or for any other reasons provided in the byelaws shall be held on the 26th day (counted from the date of adjournment included), at the time and place given in the agenda notice of the original meeting and shall take up only the agenda items left unfinished at the original meeting.

[413. The District Assistant Registrar or the authorized Officer shall make available to the District Magistrate of the district, the list of societies the term of the Committee of Management or which is due to expire, one hundred and twenty days before the expiry of term and shall request to appoint Election Officer for election in the concerned societies.]

[414. The District Magistrate of the district where the headquarters of the Society is situate, shall on the request of the District Assistant Registrar or the authorized Officer, appoint a government servant (not being an officer of the Department which is concerned with the supervision and administration of the Society concerned) as Election Officer to hold election of the members of the Committee of Management, Chairman, ViceChairman and delegates to other societies, on the dates fixed for election. It shall be the duty of the Election Officer to hold and conduct election in the manner laid down in the Act, these rules and the byelaws of the Society;

Provided that such election shall be held and results thereof shall be declared at least fifteen days before the expiry of the term of the outgoing Committee of Management, so that the newly elected Committee of Management should replace the outgoing Committee of Management immediately after the expiry of the term. The Election Officer shall exercise all such powers and perform all such duties as may be necessary for the conduct of election. Under unavoidable circumstances and for cogent reasons, the District Magistrate may change the Election Officer during the course of election, and in that case, the person who succeeds as election Officer shall conduct the election as per election programme.]

The Committee of Management and every Officer of the Cooperative Society concerned shall be bound to render every assistance to the election Officer in the conduct of the elections and shall make available every record that may be required by the election Officer for this purpose.

[416. (a) For the purposes of election under these rules, the District Magistrate may appoint a Polling Officer or Polling Officers to assist the Election Officer;

(b) The Committee of Management, the Secretary and every Officer of the Society concerned shall be bound to render such assistance and give such information to the Election Officer and Polling Officer in discharge of their duties as may be required for the purpose.]

[417. If a candidate whose nomination is found valid under Rule 444 and 444B and, who has not withdrawn his candidature, and the information of his death has reached before the polling, then the Election Officer, after satisfying himself about the facts of the death of the candidate, shall countermand the poll of the constituency concerned and shall inform the District Magistrate and the Registrar and the nominations for that constituency or post shall be filled de novo but it shall not be necessary to file additional nomination for the person who was the candidate for the election at the time of countermanding of the poll and such person who had withdrawn his candidature before such countermand shall not be disqualified to file nomination after such countermand, and the polling after such countermand, shall be held on the date as fixed by the Registrar.]

If polling or any proceeding of election gets disrupted due to riots or open violence at the place of polling or holding election is not possible at any place due to any natural calamity or any other cogent reasons, the Election Officer appointed for such election, shall declare postponement of election till next date to the notified later. The information of such postponement shall be given to the District Magistrate and the Registrar immediately on which the Registrar shall fix the new date for the election.]

A candidate shall not be eligible to contest simultaneously for more than one office of the Committee of Management. If nomination papers for more than one office are found to be valid, he shall opt only for one office and withdraw his nomination, for the rest. If he fails to exercise his option before the date fixed for the withdrawal, his nomination papers shall become invalid.

[421. Each polling shall be held by secret ballotpaper and any officer, staff or person who had been appointed for conduct of polling or counting of votes shall not give any such information to such person or persons who are not legally authorized to receive it or he shall do not such act which may affect the secrecy of the polling.]

[422. Any act done or any information imparted or divulged in contravention of Rule 421 shall be deemed to be an offence and any person or persons against whom such offence is proved shall be punished with imprisonment which may extend to six months or with a fine which may extend to rupees one thousand or with both.]

[423. (1) No person who is an Election Officer or has been appointed to conduct an election or is an officer of a Society or a police officer appointed to assist conducting of the election, shall during the election process commit any such act or influence any voter or candidate in such manner as may enhance or diminish the change of the candidate''s success in the election.

(2) Any conduct or act in contravention of subrule (1) shall, if proved, be deemed to be an offence punishable with fine which may extend to rupees one thousand.]

[426. In every election after the close of the poll counting of votes shall be held by the Election Officer in the manner prescribed in Rule 444 and every candidate, his election agent and his counting agent shall have the right to be present at such counting.]

[429. The provisions of the Act and the Rules or orders issued under the Act shall be applicable to every repoll in the same manner as they are applicable for the original poll.]

[430. If the number of elected members to the Committee of Management of any society after election is found to be less than the quorum prescribed, the election shall be held for the vacant seats as early as possible.

Provided further that if no valid nominations are received for any one or more seats other than those reserved under subrule (11 of Rule 393), such vacancy shall be filled by cooption in the manner laid down under Rules 450 and 451.]

[432. If for any reason the election of any Society has been disrupted by the District Magistrate, or the Election Officer, the process of election shall commence from the stage at which it is disrupted or from a stage prior to that or de novo as the Registrar may decide:

Provided that if nominations have been finalized and symbols have been allotted the process of election shall continue and poll shall be held on such date as the Registrar may fix.

444C. (1) The election in a Cooperative 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 byelaws 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 the People Act, 1951.

(2) A dispute relating to election shall be referred by the aggrieved party within fortyfive days of the declaration of the result.]

We have heard the parties at length and perused the record. After going through the relevant provision of U.P. Cooperative Societies Act, 1965 and the Rules, it appears that complete scheme for holding election has been provided and no variation is possible. Learned counsel for the petitioner has contended that opposite party No.5 was not invested with the power to cancel the election vide Annexure No.1 and the Cane Commissioner was also not invested with the power to start the process of election afresh through Annexure No.5. Consequently, both the orders are liable to be quashed.

It transpires from Annexure No.1 that the election in question has been cancelled by the Returning Officer. The relevant extract is reproduced here as under:

(English translation of above)

�In view of apprehension of the security of nomination papers the election process completed till today is hereby concelled.�

We further find that in pursuance of the impugned order Annexure No.5, the Cane Commissioner/Registrar started the process of election afresh and fixed the date for election. The relevant extract of the order is reproduced as below:

(English translation of above)

����in exercise of power under Section 29(3) and its proviso read with the provision of Rule 439 (2) to 244 the date for completing the election process are hereby rescheduled.�

On behalf of the respondents, it is urged that the Returning Officer has properly passed the order (Annexure No.1) and thereafter Registrar was competent to fix another date for election vide Annexure No.5. It is not disputed between the parties that the State Government in exercise of the power under Section 29(3) of the Act and further the power are available under Rules 418 and 439.

After going through the aforesaid provisions which have already been referred to above (supra), we find that in these provisions which has been specifically mentioned that only election can be postponed and thereafter they can be rescheduled by the Registrar in some cases with the approval of the Government. Thus, the election can be postponed either by the Government or by the Returning Officer. Annexures No.1 and 5 leave no room for doubt that the election was not postponed, but was cancelled. We do not find any power with the Returning Officer or with the Registrar to cancel the election. Respondents have failed to point out any specific provision under which the Returning Officer or Registrar or the Government has the power to cancel the election. We further find that under the Acts and Rules with respect to election is rescheduled. In that event the Returning Officer again questioned the validity or the propriety of any list and under no event at his behest the election can be cancelled. On behalf of the respondents, it is submitted that in this case the word ''cancellation'' is synonymous to the word ''postponement''. Consequently the cancellation of the election is permissible.

After hearing the rival submissions of the parties and pondering over the whole issue, we have to understand the meaning of the word ''postponement''. Unfortunately, the word ''postponement'' or ''cancellation'' could not be defined under the Act. The Rules are also silent in this regard. Thus, we have to go for the dictionary meaning of the word ''postponement''. In view of the Chamber Dictionary the word ''postponement'' means to put off; to defer to a future or later time; to delay. This has been defined in permanent edition Vol.33 on the basis of a decision Pelly v. Waldo, I Haw. 50.

Judicial dictionary defines that ''postponement'' means ''adjournment''.

Having regard to the aforesaid meaning of the word ''postponement'', it transpires that it is synonymous to adjournment and not synonymous to cancellation.

In Premier Automobiles Ltd. v. K.S. Wadle, AIR 1975 Supreme Court 2238, the Hon''ble Apex Court at para10 approved the following passages:

�Where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance can not be enforced in any other manner.�

This passage was cited with approval by the Earl of Halsbury, L.C. in Pasmore v. The Oswaldtwistle Urban District Council, 1898 AC 387 and by Lord Simonds at p.407 in the case of Cutler v. Wandsworth Stadium Ltd., 1949 AC 398. Classic enunciation of the law and classification of the cases in three classes was done by Willes, J. �with the precision which distinguished the utterances of that most accomplished lawyer, in the case of Wolverhampton New Waterworks Co. v. Hawkesford� (1859) 6 C.B. (NS) 336 (Vde the speech of Viscount Haldane at page 391 in the case of Neville v. London �Express� Newspaper, Ltd., 1919 AC 368 (III). The classes are enumerated thus:

�There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law and which is only reenacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third common law to enforce it. The third class is where the statute creates a liability not existing at common law and gives also a particular remedy for enforcing it��With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute.�

Considering the aforesaid view, we find that U.P. Cooperative Societies Act, 1965 has created an obligation to enforce the performance under Section 29(3) in a specified manner.

At the cost of repetition, we may refer that Section 29(3) of the Act and Rule 418 confer the power to adjourn the election. Thus, Section 29(3) of U.P. Cooperative Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance can be enforced in the manner provided under law.

We further find that the discretion vested in the Registrar and Returning Officer under Section 29(3) and Rule 418 have been conferred upon them for public reason involving the convenience, safety, morality and welfare of the public in large to ensure impartial election and enabling power to postpone the election conferred for the public reason and for public benefit.

We are unable to agree with the contention of the learned counsel for the respondents that some way or the other the cancellation of the election is not going to affect the process of election materially.

On the contrary, we find force in the argument of the learned counsel for the petitioner that the opposite party No.5 acted maliciously in passing the impugned order Annexure No.1 and at the cost of repetition we find that neither under the Act nor under the Rules he was invested with the power to cancel the election. Consequently, his action for cancelling the election is not warranted under the Rules or under the Acts.

In this context, we would like to quote the following view which has been approved by the Hon''ble Apex Court in Smt. S.R. Venkatraman v. Union of India, AIR 1979 SC, page 49.

Viscount Haldane described malice as follows in Shearer v. Shields, (1914) AC 808 at p.813:

�A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly and in that sense innocently.�

�Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.�

It is, however, not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorized purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C.J., in Pilling v. Abergele Urban District Council, (1950) 1 KB 636 where a duty to determine a question is conferred on an authority which state their reasons for the decision, �and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the Courts to which an appeal lies can and ought to adjudicate on the matter�.

The principle which is applicable in such cases has thus been stated by Lord Esher M.R. in the Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras, (1890) 24 QBD 371 at p.375:

�If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.�

This view has been followed in Sedler v. Sheffield Corporation, (1924) 1 Ch 483.

Again we find that the cancellation of election was not done in good faith. It appears that the action was malafide and for want of good faith, the administrative action must be done in good faith bonafidely and not for improper motive or ulterior motive or contrary to the requirements of the statute. In the given circumstances, we find that the order was passed not in contemplation by law and the discretion was improperly exercised. The action of the respondent No.5 is contrary to the objects, requirements and conditions of a valid exercise of statutory power. It appears that the impugned order Annexure No.1 has been passed by committing fraud on the powers.

It is a settled proposition of law that fraud and collusion vitiate even the most solemn proceedings in any Civilized system of jurisprudence. Fraud arises out of deliberate active role of representator about a fact which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. But fraud in public law is not the same as fraud in private law. Not can the ingredients which establish fraud in commercial transaction be of assistance in determining fraud in Administrative Law. Present day concept of fraud on statute has veered round abuse of power or mala fide exercise of power. It may arise due to overstepping the limits of power or defeating the provision of statute by adopting subterfuge or the power may be exercised for extraneous or irrelevant considerations.

We also find that the impugned order was wrongly passed willfully without reasonable and probable cause and constitute legal malice. At this juncture, it would be pertinent to refer the celebrated judgment of the Hon''ble Apex Court in Express Newspapers Pvt. Ltd. v. Union of India, AIR 1986 page 872 considered the scope of fraud on powers and the relevant extract is reproduced as below:

�118. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab, (1964) 4 SCR 733: (AIR 1964 SC 733). A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an ''alien'' purpose other than the one for which the power is conferred is malafide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in ''General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515, ''that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred''. It was said by Warrington, C.J. in Short v. Poole Corporation, (1926) 1 Ch 66 that:

�No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.�

�No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.�

See also, in Lazarus case at p.722 per Lord Parker, C.J.:

�''Fraud'' vitiates all transactions known to the law of however high a degree of solemnity.�

All these three English decisions have been cited with approval by this Court in Pratap Singh''s case.�

�126. The Court in Pratap Singh''s case (AIR 1964 SC 733) observed that the Constitution enshrines and guarantees the rule of law and the power of the High Courts under Art. 226 (which is equally true of Art.32) is designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the limits of its powers and that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual. The Court further observed that in such an event the fact that the authority concerned denies the charge of mala fide, or asserts the absence of oblique motives, or of its having taken into consideration improper or irrelevant matter, does not preclude the Court from inquiring into the truth of the allegations made against the authority and affording appropriate relief to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out.�

We further find that Section 20 of U.P. Cooperative Societies Act, 1965 provides as to how the members can vote. Proviso (a) speaks that a member shall have no right of vote if he is defaulter and has been a defaulter for a period of not less than six months or if he is a delegate of a Society which is such defaulter as is referred in subclause (i). Explanation III provides that a member shall cease to be treated as defaulter if he pays the sum for nonpayment of which such member became defaulter. In the case of an election, on or before the date fixed under the rules for deciding objections against the provisional voters'' list and also in any other case, before the commencement of meeting. Learned counsel for respondent No.6 has urged that opposite party No.5 was justified in including the name of 72 defaulters after cancelling the election and the delegates thereafter rightly participated in the election.

On behalf of the petitioner, it is submitted that after passing the impugned order (Annexure No.1) the election was cancelled with the ends in view to provide voting rights to the defaulters in defiance of rules.

A bare reading of Section 20 and specially of explanation III leaves no room for doubt that a defaulter can make the payment shall cease to be as defaulter if pays the sum for nonpayment on or before the date fixed under the rule for deciding objection against the provisional voter list. While in this case the process of election started, the date for election was fixed and in that event no defaulter should be allowed to make payment and the cancellation of the election provided avenues to defaulter to make payment after fixation of the date of the election and after deciding the objection against the provisional voter list. Thus, Annexure No.1, the order of cancellation of election appears to have provided avenues to defaulter to participate in the election in flagrant violation of provision of Section 20 and its explanation.

At the cost of repetition, it is pertinent to refer that Section 20 provides that:

(aa), a member shall have no right of vote if

(i) he is defaulter and has been a defaulter for a period of not less than six months; or

(ii) he is a delegate of a society which is such defaulter as is referred in subclause (i).

Explanation III A member shall cease to be treated as defaulter if he pays the sum for nonpayment of which such member became defaulter

(i) in the case of an election, on or before the date fixed under the rules for deciding objections against the provisional voters list;

(ii) in any other case, before the commencement of the meeting.

After going through the relevant provisions and explanation III, we find that impugned order (Annexure No.1) was purposely passed to provide right of vote to the defaulters and to enable them to make the payment which was otherwise not possible. The purpose of cancellation of election was further to increase the number of voters through the abuse of power and in flagrant violation of Acts and Rules. It leave no room for doubt that the action of Returning Officer was illegal, unjust and not within the parameters of rules. Consequently, although there is no specific averments in the petition about the voting rights of 72 defaulters, but in view of the counteraffidavit of respondent No.6, we are of the view that the voting rights to 72 persons could only be provided after passing the impugned order and thus the wrong was done. Election was cancelled to help the defaulters with jaundiced eyes. Thus, the impugned action of the respondents No.5 appears to have shaken the hasic principle of fair election and is not sustainable in the eyes of law.

Thus, considering the totality of the circumstances, we are of the view that the order of cancellation of the election vide Annexure No.1 and thereafter the order to reschedule the election by Registrar through Annexure No.5 were not warranted under the Act. Returning Officer was not invested with the power to cancel the election. Accordingly, the impugned order Annexures No.1 and 5 were passed in total defiance of Rules arbitrarily and mala fidely by committing fraud on the power of the authorities. Consequently, they are not sustainable.

We have already concluded that postponement of election does not mean cancellation of the election, even the Government under Section 29(3) of the Act has no power to cancel the election. If State Government is satisfied that the 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. Rule 418 provides that the Returning Officer can also exercise the power to postpone the election, if polling or any proceeding of election gets disrupted due to riots or open violence at the place of polling and holding of election is not possible at any place due to any natural calamity or any other cogent reasons. Thus the Election Officer appointed for such election, shall declare postponement of the election till next date to be notified. However, in the present scenario it appears that the Returning Officer was not faced with the situation referred in the Rule and he opted for a novel method to cancel the election for which he was not authorized under the Rule. Even if, for argument sake, he had the power to cancel the election in that case, he ought to have taken recourse of providing the opportunity of being heard to petitioner, but the same was not done.

Yet there is another aspect in this case. Returning Officer (respondent No.5) passed the impugned order dated 6.3.2006 on one of the grounds that there was some confusion in the thumb impression and signature of proposers and seconders. In this regard, no opportunity was given to the petitioner to repel confusion. The valuable right of the petitioner appears to have been snatched in a cursory manner. There is inbuilt guarantee under the Constitution as well as under the laws that the valuable right should not be taken away without affording opportunity of being heard.

We are of the opinion that neither under the law nor under the Constitution such an unbridled arbitrary power has been conferred on the Returning Officer who is responsible to conduct fair election. Even for the argument sake, it is presumed that he had the power to cancel the election even then it was incumbent upon the Returning Officer to adhere the principle of natural justice. It appears that in total disregard to the Constitutional mandate and in violation of the provisions of the Acts and Rules, the Returning Officer proceeded in a arbitrary manner. He has not been invested with a power to cancel the election as per his choice without adhering the principle of natural justice. The choice of the Returning Officer cannot surpass or averages the rule of law. It is sad to say that being legal functionary, the Returning Officer has not even proceeded in accordance with law.

In this case we find that the principle of natural justice has been violated. What is the scope of natural justice has to be seen in the present context.

The doctrine of natural justice is not only to secure justice but also prevents miscarriage of justice. The doctrine is incapable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances.

Although over the years there has been a steady refinement as regards the doctrine of natural justice but no attempt has been made and, in fact, cannot be made, to define the doctrine in a specific manner or method. Straitjacket formula cannot be made applicable but compliance with the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of noncomplaince with the doctrine, the law Courts ought to set right the wrong inflicted upon the person concerned and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a Government action.

It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence. The judicial process itself embraces a fair and reasonable opportunity to defend though the same is dependent upon the facts and circumstances of each individual case. The facts in the present matter under consideration are singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste.

Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons, however, at times it is equated to. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations, which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice, which has to determine its form.

The expressions ''natural justice'' and ''legal justice'' do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, pedantry or logical prevarication. It brush aside the technicalities. It supplies the omissions of a formulated law. The adherence to principles of natural justice as recognized by all Civilized States is of supreme importance when a quasijudicial body embarks on determining disputes between the parties, or any administrative action involving Civil consequences is in issue or depriving somebody from his/her valuable rights. In that case the principle of natural justice is attracted. Needless to say that by lapse of time the principles of natural justice are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case they have to meet (while in this case these basic ingredients is wanting). Time given for the purpose should be adequate so as to enable him to make his representation (in this case no opportunity was afforded to the petitioner). In the absence of a notice of this kind and such reasonable opportunity, the order passed becomes wholly vitiated (which is contended by the petitioner). Thus, it is but essential that the parties should be put on notice of the case before any adverse order is passed against him. Surprisingly no notice was given to the petitioner by Returning Officer. Thus the foremost principle of natural justice appears to have been flouted in this case as Returning Officer has not proceeded in accordance with the approved rule of fair play.

We find that the concept of natural justice has gained significance and shades with the time. The Principles of natural justice are those rules which have been admittedly laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasijudicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves Civil consequences must be consistent with the rules of natural justice. Thus, the impugned order Annexure No.1 was passed in violation of the principles of natural justice.

It has been contended on behalf of petitioner that the petition under Article 226 is maintainable for the reason that the Returning Officer who was not invested with the power to cancel scheduled election has exercised his power maliciously and to add certain defaulters in the list of voters to help the person of his choice. It is further submitted that this Hon''ble Court has jurisdiction to entertain the writ petition to check the arbitrary and malicious action of Returning Officer who was invested with the power to conduct the election fairly but instead of conducting the election he deteriorated the functioning of the election and arbitrarily proceeded beyond the rules to help Others. On behalf of respondents, it is urged that in the election matters the jurisdiction under Article 226 of the Constitution of India can not be invoked. Now we propose to consider the scope of writ jurisdiction in such types of matter.

A very ''unusual'' and substantial question of ''public importance'' has come before the Division Bench of Madras High Court in A. Swamickan v. K. Venkatachalam, AIR 1987 Mad. 60, whether the High Court under Article 226 is powerless to prevent a person who is lacking the basic qualifications prescribed under the election law from performing functions as a member of the legislative assembly, merely on the plea that no one has earlier chosen to challenge his election by filing an election petition under the Act of 1951.

In the general elections to the Legislative Assembly in Tamil Nadu, held in December, 1984, the respondent was the returned candidate. Almost a year after, on November 22, 1985, a person who was a candidate for the election but was defeated, filed a petition under Article 226 alleging that the name of the returned candidate was not to be found as voter in the electoral roll for the general elections for any assembly constituency, and that he had willfully and fraudulently made a false representation both in the nomination paper and during the scrutiny. Respondent asserted that in view of Article 329(b), the Court was barred to go into the question of validity of his election under Article 226. The Division Bench of the Madras High Court by resorting to the principle of harmonious construction of Articles 193 and 329 (b) held that:

�Any proceeding taken to give effect to Article 193 for a declaration that a person is not qualified for membership of the Legislative Assembly did not under the Constitution amount to calling in question an election as contemplated by Article 329 (b). Therefore, the fact that a declaration in Form 21C of the Rules has been granted can not be constituted as a bar when a declaration is sought from this Court that the person is not qualified as contemplated by Article 173 to be elected as a member of a State Legislative Assembly.�

The Hon''ble Apex Court in K. Venkatachalam v. A. Swamickan and another, (1999) 4 SCC 526 considered the scope of Article 226, vis a vis the election matters. Their Lordships considered following pronouncements:

N.P. Ponnuswami v. Returning Officer, Namakhul Constituency, AIR 1952 SC 64, Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520, Brundaban Nayak v. Election Commission of India, AIR 1965 SC 1892, Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405, Krishna Ballabh Prasad Singh v. SubDivisional Officer, HilsocumReturning Officer, (1935) 4 SCC 194, Election Commisison of India v. Shivaji, (1988) 2 SCC 277, Hari Kishna Kamath v. Ahmad Ishaque, AIR 1955 SC 233 and held as under;

�Article 226 of the Constitution is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief.�

Their Lordships further held:

�We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraint order on him from functioning as a Member of the Legislative Assembly. The net effect is that the appellant ceases to be a Member of Tamil Nadu Legislative Assembly.�

We have already referred the peculiar circumstances in which the Returning Officer (respondent No.5) cancelled the election without any authority. In such type of cases definitely the High Court does not lack the jurisdiction to entertain the writ petition and has to issue appropriate direction therein.

Considering the totality of the circumstances of the case, we are of the view that in this case the valuable rights of the petitioner have been snatched away and the order of cancellation (Annexure No.1) was passed maliciously, without any power under any rule and law. It would be warranted to exercise the jurisdiction under Article 226 of the Constitution of India to ensure the compliance of the Rules and to ask the authority to work within the framework of the Rules and the Act governing the election of the delegates of the societies. We are conscious of the law laid by the Apex Court in the cases, referred to hereinabove and the fact that the High Court should not exercise its power under Article 226 and should not pass any order interim or otherwise, which has the tendency or the effect of postponing the election or cancelling the election. But keeping in mind the proposition enunciated in (1999) 4 SCC 526 and the facts of the present case, where fraud on power is apparent, the High Court must insist that the provision of Cooperative Society Act and Rules made thereunder for holding the election are strictly complied with and in no case any authority under the garb of election should function arbitrarily. Thus, High Court can take the cognizance of the issue, under Article 226 of the Constitution of India, accordingly the contention of the respondents are unfounded that the petition is not maintainable. We hold that the High Court does not lack jurisdiction to issue appropriate writ to check the arbitrary, mala fide action which tantamounts to abuse of the process of law.

We do not agree with the contention of the learned counsel for the respondent No.6 that in the given circumstances the jurisdiction under Article 226 should not be invoked and the petition should be directed to avail the alternative remedy by filing the election petition. In this context, we find that the election officer ought to have exercised and performed all such duties as is warranted under the Act and Rules. The same was not done. He has not proceeded in accordance with the Rules and it is incumbent upon this Court to exercise the discretion under Article 226 to ensure that the process of election after its initiation is conducted within the parameters of Rules. No authority can be permitted to go beyond the ambit of the rules or to destroy the basic fabric of the fair election. The petitioner has rightly invoked the jurisdiction under Article 226 and the petition is thus cognizable by this Court.

After giving the matter our anxious consideration, we are satisfied that this is a case in which the Court must feel obliged to exercise the jurisdiction under Article 226 of the Constitution and give a declaration that respondent No.5 was not authorized to pass impugned order Annexure No.1 and also respondent No.2 wrongly rescheduled the election vide Annexure No.5 and further respondent No.5 wrongly issued notification dated 13.3.2006, Annexure No.6. Consequently, the same are liable to be quashed.

In the result, the impugned orders dated 6.3.2006 (Annexure No.1), 10.3.2006 (Annexure No.5) and notification dated 13.3.2006 (Annexure No.6) are hereby quashed and the respondents are directed to proceed in accordance with law.

The writ petition is allowed with costs.

(Petition allowed)