Rajeev Kumar vs Registrar, Co-operative Societies and Others

R.A Sharma, J.—For electing members and the Chairman of the Committee of Management of Thok Kendrlya Up Bhokta Sahkari Bhandar, Aligarh (hereinafter referred to as the Society) election programme was announced vide order dated 26.3.1995 by the Assistant Registrar, Co-operative Societies according to which 15.4.1995 (from 1 p.m. to 4 p.m.) was the date for filing nominations. On the same date at 5 p.m., the list of names of those who have filed nomination papers was to be published. 19.4.1995 was fixed for scrutiny of the nomination papers and 21.4.1995 was the date for withdrawal of the candidature. 24.4.1995 was the date for declaration of the final list containing the names of candidates. 28.4.1995 was fixed for poll and thereafter the declaration of the result. Petitioner filed his nomination paper for membership of the Committee of Management of the Society on 15.4.1995 and on the same date at about 5 p.m. the Election Officer published the list of the names of the candidates who have filed their nomination papers. In this list, the name of the Petitioner was also there.

This Court on 10.3.1995 in Writ Petition No. 47006 of 1995 has declared certain rules framed under the U.P. Co-operative Societies Act (hereinafter referred to as the Act) providing for reservation for weaker sections of the society, as ultra vires. The Registrar, Co-operative Societies vide order dated 15.4.1995 postponed the election of the Society. The aforesaid decision of this Court was challenged before the Hon''ble Supreme Court, in which an interim stay was granted on 10.5.1995. Thereafter, the Registrar issued an order dated August 4, 1995 for holding the election of the Co-operative Societies again. The Deputy Registrar (Law) Co-operative Societies, U.P. Lucknow vide order dated 2.9.1995 directed for holding of the election of the Society de novo right from the initial stage. The said order was communicated by the Assistant Registrar, Cooperative Societies, to the Election Officer of the Society and the District Magistrate, Aligarh. Being aggrieved by the above orders, the Petitioner has filed this writ petition.

Assistant Registrar, Co-operative Societies, has filed counter-affidavit and the Petitioner has filed rejoinder-affidavit in reply thereto. We have heard the learned Counsel for the parties.

Learned Counsel for the parties have not challenged the power of the Registrar to adjourn/postpone the election process and to allow extension in time schedule of a Co-operative Society. The only dispute between the parties is about the power of the Registrar to start the election process de novo after the adjournment. According to the learned Counsel for Petitioner, the Registrar can restart the election process only from the stage at which it was disrupted. But according to the learned Standing Counsel, it is open to the Registrar to restart the process of the election either from the stage at which it was disrupted or from the stage prior to that or de novo, as the Registrar may think proper.

Section 29(1) of the Act vests the management of a Co-operative Society in its Committee of Management constituted in accordance with the Act, the Rules and the bye-laws. Before the amendment of the Act by U.P. Act No. 17 of 1994, Sub-section (3) of Section 29 provided for holding of election for the members of a Committee of Management of a Society at the annual General Meeting. But proviso added to the said sub-section empowered the Government to direct by a notification that in respect of such class of Co-operative Societies as may be specified, superintendence, direction, control and conduct of the election of the members, Chairman and Vice-Chairman, shall vest in the Registrar and such election may be held otherwise than in any meeting. Chapter XXIX of the Rules framed under the Act (hereinafter referred to as the Rules) contains rules for the election in Co-operative Societies. This Chapter consists of six parts. Part I, consisting of Rules 401 to 406 deals with post Registration Meeting and the election. Part II consisting of Rules 407 to 432, contains the election rules in respect of the Societies other than those notified under Sub-section (3) of Section 29 of the Act. Part III, consisting of Rules 433 to 438, provided for constitution of the Committee of Management in case of amalgamation, division and supersession and other contingencies. Part IV, consisting of Rules 439 to 444D, contains election rules in respect of Cooperative Societies notified under Sub-section (3) of Section 29 of the Act. Rule 444B of the same part deals with election of the Chairman and the Vice Chairman. Part V relates to the terms of office of the Committee of Management; whereas Part VI deals with disqualifications for the membership of the Committee of Management.

According to Rule 439(2) of Part IV of Chapter XXIX of the Rules, election in a Co-operative Society is to be held on the date fixed by the Registrar and District Magistrate of the district concerned is required to hold the election on the date so fixed. Under Rule 440, the District Magistrate has to arrange holding of the election in a Co-operative Society accordingly. Second proviso to Clause (1) of Rule 440, which is reproduced below, empowers the Registrar in special circumstances, to allow extension in time schedule of a Co-operative Society.

Provided further that the Registrar may, in special circumstances after recording reasons therefore, allow extension in time schedule of a Cooperative Society or class or classes of Co-operative societies or of Cooperative societies of any area or areas but such extension in time schedule shall be subject to the provisions of Section 29 of the Act.

Sub-rules (2) to (9) of the Rule 440 and Rules 441 and 442 contain details relating to the election. Rule 443 (1) provides that "where the number of valid nominations does not exceed the number of persons to be elected, the Election Officer shall declare them to have been duly elected only after the date of poll'' (Emphasis supplied). A Full bench of this Court in Ramesh Kumar Singh v. State of U.P. 1992 (1) UPLBEC 292, has held that the Registrar under Rule 440 can revise time schedule of the election from the stage at which it was disrupted, and it does not give him any power to reschedule the entire election process. Full Bench further declared Rule 443 providing for declaration of the result of the candidates where number of valid nominations does not exceed the number of persons to be elected only after the date of poll, as arbitrary and ultra vires. Relevant extract from the decision of Full Bench is as under:

Hence, we are of the definite view that Rule 443 of the U.P. Co-operative Societies Rule, 1968 is arbitrary and discriminatory in-as-much as after the rejection of nomination paper and withdrawal of the other candidates the number of valid nominations does not exceed the number of the persons to be elected the Election Officer shall declare them to have been duly elected only after the date of poll. The words ''only after the date of poll'' is against the aim and object and the scheme of the U.P. Co-operative Societies Act and the Rules framed there under as well as the democratic norms. As soon as where the number of valid nominations for any office does not exceed the number of vacancies to be filled, the candidates for whom valid nominations have been received shall be deemed to have been duly elected to fill such vacancies and the Election Officer shall have no option but to announce the result. Neither the Registrar nor the Election schedule de novo from the beginning setting at naught the election of elected persons. The Registrar may revise the election process only from the stage from where it was disrupted.

The full bench accordingly replied the question referred to it in the following manner:

The Registrar or the Election Officer can revise the schedule of the election process only from the stage from where it was disrupted. Election of person or persons who remained the only candidate after rejection of nomination papers and withdrawal shall be deemed to have been elected after the date of withdrawal. The election process cannot be started de novo but only from the stage it was disrupted. Rule 443 of the Co-operative Societies Rules is arbitrary, discriminatory and liable to be struck down only to the extent indicated hereinabove.

In view of the above decision of full bench, the Registrar has the power to postpone the election and to extend its time schedule, but he has no power to reschedule the entire election process. He has to commence the election process from the stage at which it was disrupted. Another effect of the full bench decision is that where the number of valid nominations does not exceed the number of persons to be elected, the Election Officer has to declare them to be duly elected forthwith.

The Act was amended by U.P. Act No. 17 of 1994. One of the changes introduced by the said amending Act is substitution of Sub-section (3) of Section 29. After the amendment, Sub-section (3) provides for the election to reconstitute the Committee of Management of a Co-operative Society in prescribed manner under the superintendence, control and direction of the Registrar. Now there is no difference between the notified and non-notified societies, and the election to constitute the Committee of Management of every Co-operative Society, has to be held in the prescribed manner under the superintendence, direction and control of the Registrar of the Co-operative Societies U.P. After the aforesaid amendment, rules have also been amended vide notification dated 15.7.1994. By the said amendment, second proviso to Rule 440(1) which had given power to the Registrar to reschedule the election process, has been deleted and a new Rule 432, which is contained in Part II of Chapter XXIX of the Rules, has been introduced. Rule 432 is as under:

If for any reason for 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 finalised and symbols have been allotted the process of election shall continue and poll shall be held on such date as the Registrar may fix.

Rule 432 comes into play only if the election of the society has been disrupted by the District Magistrate or the Election Officer. Rule 418 gives the power to the Election Officer to postpone the election till the next date to be notified later, if the polling or any proceeding of election got disrupted due to riots or open violence or when holding of election is not possible at any place due to natural calamity or for any other cogent reasons. Rule 432 will not be applicable if the election process has been disrupted by the Registrar himself. If Registrar has postponed the election, he has to re-schedule the election process.

In such a case, as held by the Full Bench in Ramesh Kumar Singh v. State of U.P. (supra), he cannot start the election process de novo, but only from the stage at which it was disrupted. The Registrar cannot set at naught the election of persons who were the only candidates and who could have been declared elected under Rule 443(1) but for the postponement/disruption of election by him. Neither the deletion of second proviso to Rule 440 nor addition of new Rule 432 gives power to the Registrar to revise the election schedule de novo in the instant case. Neither any rule nor any provision of the Act has been placed before us as to justify the departure from the law laid down by full bench in Ramesh Kumar Singh v. State of U.P. (supra).

In the instant case in para 3 of the writ petition, it has been stated that for members of the society there are six posts of the Directors (Members) and there were only six nominations including that of the Petitioner and they were declared as the candidates by the Election Officer vide order dated 15.4.1995, according to election programme announced earlier. It is true that 19.4.1995 was fixed for scrutiny of nomination papers. But the fact remains that there were only six candidates against six vacancies and unless their nomination papers are found to be illegal, they were entitled to be declared elected. The Petitioner was, thus, having a reasonable expectation of being declared elected as Member (Director) of the Committee of Management of the Society. Although such an expectation had not yet culminated into a right of being declared elected, but those expectations cannot be set at naught by the Registrar by starting election process de novo. He has no such power as held hereinbefore. Rule 432 on which reliance has been placed by the learned Standing Counsel, does not give any such power to the Registrar where the election process was disrupted by the Registrar himself. That rule will come into play only when election process has been disrupted by the District Magistrate or the Election Officer.

When we heard the writ petition on 25.9.1995, we passed the following interim order:

The election, if held, in pursuance of the impugned order, will be subject to the result of this petition.

According to the said order, the election of the society, if held, shall be subject to the result of this petition. As we are allowing this writ petition, the election held in pursuance of the impugned orders, have to be treated as nullity.

This writ petition is allowed with costs. The impugned orders dated 2.9.1995, 7.9.1995 and 7.9.1995 (Annexures 1, 2 and 3 respectively to the writ petition), are quashed. The order dated 4.8.1995 passed by the Registrar, so far as it provides for re-schedule of the election process de novo, is also quashed. The Respondents are directed to hold the election of the Society from the stage at which it was disrupted.