Maghar Singh and another vs State of Punjab

S.S. Kang, J.

Whether the State Government or the Registrar of the Cooperative Societies have the powers to interfere with the process of or postpone the elections to a Cooperative Society when the process of election is underway, is the prime question raised in this writ petition.

On the expiration of the term of Administrator of the Nabha Primary Cooperative Land Mortgage Bank Limited, Nabha (hereinafter called ''the Society''), its Manager framed the programme of election together with the zonal lists exhibited at the registered office of the Society and other conspicuous places within the area of its operation. He also issued the requisite notices intimating the programme of election. The petitioners filed nomination papers for zones of Babarpur and Sadhoheri. The Manager of the Society was also appointed the Returning Officer. Other candidates filed nomination papers from the various zones on November 21, 1984. Scrutiny of the nomination papers took place on November 22, 1984, and the nomination papers were found to be in order and were accepted. In all the six zones, the candidates were pitted against each other. They were allotted election symbols on November 23, 1984. The polling was fixed for November 30, 1984. By November 28, 1984, all the stages in the election except the polling and declaration of the results were completed. On November 28, 1984, the Deputy Secretary of Government, Punjab, addressed a communication to the Registrar, Punjab Cooperative Societies, Chandigarh, which read as under :

"Subject : Elections in the Cooperative Sector.

In view of the prevailing situation Government desire that elections in the Cooperative Sector may be postponed immediately."

In pursuance of these directions of the Registrar, Cooperative Societies issued necessary instructions to the field staff to postpone the elections to the Cooperative Societies in the State. This order was received by the Manager of the Society on November 29, 1984. Consequently he postponed the elections to the Society on that very day and issued a certificate to that effect (a copy of the same is attached as Annexure P.1). Aggrieved by the action of the State Government, the Registrar and the Manager of the Society, the petitioners have filed this writ petition and have impleaded these Authorities as Respondents 1 to 3 respectively.

The writ petition has been resisted by the respondents. Shri B.R. Tanwar, Deputy Secretary to Government, Punjab, has filed written statement on behalf of the Staterespondent No. 1 a separate but identical written statement has been filed by the Manager of the Societyrespondent No.3. It has been pleaded inter alia that after the assassination of late Prime Minister of India Shrimati Indira Gandhi on October 31, 1984, disturbances took place in certain parts of the country. In the second week of November 1984, the Election Commissioner of India ordered that elections to the Parliament be held from all States and Union Territories except the States of Punjab and Assam. This was done in view of the disturbed conditions of law and order in these States. Keeping in view the law and order situation in the State, the Punjab Government also decided to postpone the elections in the Cooperative Sector. The decision was conveyed by the Government to the concerned quarters for postponing the elections. It was further averred that the Government was anxious that Cooperative Societies be governed by their elected representatives and as soon as the normalcy is returned in the State and peaceful conditions prevailed, the elections would be held. In was admitted that elections to the Primary Cooperative Land Mortgage Bank, Sirhand and Samana in District Patiala were held. However, these were completed by October 31, 1984.

The Society was constituted under the Punjab Cooperative Societies Act (for short ''the Act''). It contains provisions for the constitution and management of Societies ; election to the Managing Committees to the Societies ; for the settlement of disputes and the powers of various Authorities and Officers. Rules regarding elections are contained in Appendix C of the Punjab Cooperative Societies Rules, 1973 (`the Rules'' for short). It contains detailed provisions relating to the preparation and publication of election programme ; appointment of Presiding Officer ; qualification of candidates ; filing of nomination papers, their scrutiny withdrawal, procedure for voting and counting and declaration of results. The election programme was framed by the Manager in accordance with rule 4 of the Rules. It was approved by the Registrar. Zones were created. Nomination papers were filed, scrutinized and accepted; election symbols were allotted and the candidates were canvassing. It may be mentioned that membership of this Society mainly consists of Primary Cooperative Societies. The representatives of the Societies are the Electoral College for the election of the members of the Managing Committee of the Society. All the citizens within the area of operation of the Society are not voters.

In the Act or the Rules, there is no provision authorizing the Government or the Registrar to interfere with the process of elections which has been set in motion. They have no authority to postpone the elections. Within this jurisdiction this matter stands concluded by two Division Bench judgment. In Sardar Mohammad v. The State of Haryana and others, 1977 PLJ 12 : 1984 R.R.R. 493, it has been held :

"Under subrule (4) of Rule 4 of the objection could only be filed before the Returning Officer and not the Registrar. The election process is a democratic process and it cannot be stayed or postponed arbitrarily. In democracy there is Government of laws and not of men. Each authority, however high it may be, is enjoined upon to perform its duty in accordance with law. If a certain thing is required to be dealt with in a certain manner under the Rules, it must be done in that manner alone and not otherwise." This view had earlier been taken in Narinder Singh v. The State of Punjab and others, 1973 PLJ 720. I had also an occasion to deal with this very question in Nand Singh and another v. The State of Haryana and other, 1984 PLJ 298 : 1984 R.R.R. 113. Respectfully following these two Division Bench judgments, I had also held that the Registrar of the Cooperative Societies could not interfere with the process of elections. It there was any dispute, it could be resolved only after the completion of the election and declaration of the result. The Registrar had no powers to postpone the elections.

Shri H.S. Riar, the learned Deputy AdvocateGeneral, Punjab, appearing for Respondents 1 and 2 and Shri B.S. Khoji, Advocate, representing Respondent No. 3, argued that the abovementioned cases related to the State of Haryana. The rules which came for construction were different. Appendix C to the Rules as applicable to State of Haryana is different. In these rules, there is no power with the Registrar to interfere with the elections of the Primary Cooperative Societies. In the present case, the Society is not a primary society. It is governed by a rules contained in Part I of Appendix C and not Part II. Under rule 4 of the Rules, the Manager draws the election programme but the same is approved by the Registrar. Under Rule 12 of the rules, the Registrar has been authorised to issue instructions for the purposes of drawing of election programme, filing of nomination papers et cetera and other relevant matters to facilitate the holding of elections. So, the matter is not covered by the decided cases.

The learned counsel further argued that a Division Bench of this Court is The State of Punjab and others v Anant Ram and others, AIR 1977 P&H 15, had upheld the powers of the Deputy Commissioner or the SubDivisional Officer to postpone the elections to a panchayat. It will be appropriate to read rules 4 and 12 of Part I of Appendix C at this stage :

"R. 4. Election programme. (1) The Manager shall draw a detailed programme of elections and sent the same to the Registrar for approval and for the appointment of Returning Officer for conducting the election.

(2) The Zonal list of voters shall be prepared, if necessary, by the Manager in accordance with the directions issued by the Registrar from time to time.

(3) The notice indicating the election programme together with the zones constituted if any, shall be exhibited by the Manager at the registered office of the cooperative society and at some common places in the area of operation of the cooperative society. This would be in addition to any other mode of notice which may be laid down either in the byelaws or in the resolution of the committee or may be specified by the Registrar by a general or special order.

R.12. General. (1) The Registrar may issue such instructions as may be necessary for the purpose of drawing of election programme, filing of nomination papers, withdrawal of nomination papers, allotment of symbols, manner of voting, counting and other relevant matters to facilitate the holding elections in respect of a society or a class of societies.

(2) If any dispute arises in connection with the election of any officer of the society, it shall be referred within 90 days of the date of declaration of the result of such election to the Registrar in the same manner as provided in rule 51 of the Rules."

Before anything else, the Manager draws under rule 4 of the Rules an election programme which is sent for approval to the Registrar. The Registrar may at that stage approve/disapprove or make certain modifications therein. This rule or other rules does/do not, however, empower, the Registrar to vary, modify or rescind the election programme once approved by him and published by the Manager. This power cannot be spelled out from the provisions of section 21 of the General Clauses Act. It has been so held in Sardar Mohammad''s case (supra).

Rule 12 of the Rules only invests the Registrar with the power to issue instructions for the purpose of drawing election programme, filing of nomination papers withdrawal of nomination papers, allotment of symbols, manner of voting, counting and other relevant matter to facilitate the holding of elections. It is clear from the language employed in rule 12 that the instructions enumerated therein can be issued which facilitate the holding of elections. This will not include instructions to interfere with, or to stop or postpone the elections. The words, "other relevant matters" in the rule are to be read ejusdem generis to the expressions preceding these words. These matters can be similar and of the nature of things mentioned in the earlier part. This expression cannot clothe the Registrar with the authority to postpone or cancel the poll.

In the scheme of the Act and the Rules, the State Government does not figure anywhere. It cannot issue directions to Authorities exercising jurisdiction under the Act or the Rules to postpone or cancel the elections. As the law stands the State Government or the Registrar could not issue the impugned instructions. If the respondents so feel that such a power is necessary for the smooth working of the Act and the Cooperative Institutions, then the remedy lies in making necessary and proper amendments in the Act or the Rules.

The decision in Anant Ram''s case (supra) does not help the respondents. In that case challenge was raised to the validity of rule 3(3) of the Gram Panchayat Election Rules, 1960. The learned Single Judge had held that this rule was ultra vires of section 13B of the Act. The relevant portion of rule 3(3) reads as under :

"R. 3(3). The Government of the Deputy Commissioner may, by an order in writing, amend, vary or modify the election programme at any time : Provided that, unless the State Government otherwise directs, no such order shall be deemed to invalidate any proceedings taken before the date of the order."

The Letters Patent Bench overruled the view of the learned Single Judge and held that this rule was valid. While construing rule 3(3), it was held that the Deputy Commissioner and the Government had the power to alter the election programme to meet the exigencies of the situation. The Government had been given the power even to invalidate the election. Rule 12 of the Rules is not pari materia with Rule 3 of the Gram Panchayat Election Rules. There is no such rule or other provisions in the Rules or the Act, conferring similar powers on the Registrar or the Government.

For the foregoing reasons, I allow this writ petition, quash the orders of the State Government dated November 22, 1984, and of the Registrar dated November 29, 1984, and the Manager postponing the election for the Society. I direct the respondents to hold the elections to the Committee of the Society within two months from today. A copy of this order be immediately given to Shri H.S. Riar, Deputy Advocate General, Punjab, for compliance. The respondents shall pay the costs of the petitioners. Counsel fee is assessed at Rs. 200/.