Ram Singh vs State of Haryana etc.

Prem Chand Jain, J.—Ram Singh has filed this petition under Articles 226 and 227 of the Constitution of India for the issuance of an appropriate writ, order or direction quashing the order of the Assistant Registrar Co-operative Societies, respondent No. 3, dated December 29, 1976, copy Annexure P. 2 to the petition by which the nomination paper of the petitioner for the election of the managing committee of the Bhogpur Jattan Cooperative Credit Service Society Ltd. (hereinafter referred to as the ''Co-operative Society'') was rejected, and for the striking down bye-law 36, clause (1) of the Bye-laws of the Cooperative Society being ultra vires of the Punjab Co-operative Societies Act (hereinafter referred to as the Act) and the Rules framed thereunder. The facts of the case, as given in the petition, may briefly be stated thus:--

The Co-operative Society had been registered under the Act. Earlier the Cooperative Society used to be called the Agricultural Service Society but after the amalgamation of some other societies u/s 13 of the Act, a new society by the name of Bhogpur Jattan Cooperative Credit Service Society has come into being. It is stated in the petition that the Assistant Registrar, respondent No. 3, issued election programme of the Co-operative Society in respect of election scheduled to be held on January 7, 1977. Copy of the election programme is attached to the petition as Annexure P. 1. The petitioner filed his nomination paper for contesting the election of the managing committee of the Cooperative Society on December, 28, 1976. On the date of security, the Assistant Registrar, respondent No. 3, rejected the nomination paper of the petitioner on the ground that he did not fulfil the condition as laid down in bye-laws 36(1). It is in this situation that the petitioner has challenged the legality of the aforesaid order of the Assistant Registrar rejecting his nomination paper and also has called in question in the validity of bye-law 36(1).

Initially, the petition was filed against respondents Nos. 1 to 4 only, but latter on, on the filing of Civil Miscellaneous No. 47 of 1977, respondents Nos. 5 to 11 were also impleaded as respondents. Separate written statements have been filed on behalf of respondents No. 3, respondent No. 4 and respondents Nos. 5 to 11 in which the material allegations made in the petition have been controverted and the action of the Assistant Registrar in rejecting the nomination paper of the petitioner is sought to be supported. In all the three written statements a preliminary objection has been raised to the effect that the present petition is not maintainable as the petitioner has not exhausted the statutory remedy of filing a reference u/s 55 of the Act.

The petition came up for motion hearing before a Division Bench on January 6, 1977, when notice of motion was issued to the respondents. On February 9, 1977, the Division Bench directed that the petition be placed for hearing before a Bench of five Hon''ble Judges as vires of the bye-law had been challenged. On March 22, 1977, the petition was admitted and was ordered to be heared on April 12, 1977 when the petition was taken up for hearing, it transpired that constitutional validity of no state law had been questioned in the petition, with the result that it was ordered that the petition be heard by a Division Bench. That is how, the petition has come up for hearing before us.

Mr. Sandhu, Learned Counsel for the petitioner, raised three contentions which reads as under: --

(i) That respondent No. 3, Assistant Registrar Co-operative Societies could not act as the returning officer for the election in question as he had not been authorised by the Registrar:

(ii) that no election could legally be held on January 7, 1977, as no general meeting had been called either by the Co-operative Society or by the Assistant Registrar for the date on which the election was sought to be held as required under rule 34 of the Rules of Election to the Committees of Co-operative Societies (Haryana) (hereinafter called the Election Rules) ; and

(iii) that bye-law 36(1) of the Bye-laws of the Co-operative Society is ultra vires the act and the Rules framed thereunder.

On the first point, it was submitted by Mr. Sandhu, Learned Counsel for the petitioner, that the Assistant Registrar, respondent No. 3, has not been authorised by the Registrar to act as ''returning officer'' by a special or general order and hence, he had no jurisdiction to act as returning officer for the purpose of the election of the committee to be held on January 7, 1977. On the other hand it was submitted by Mr. Mehtani Senior Deputy Advocate General, Haryana, whose contention was adopted by Mr. Prem Singh appearing for the private respondents that the Assistant Registrar could legally act as returning officer and that the nomination paper of the petitioner was validly rejected.

After giving my thoughtful consideration to the entire matter, I Of the view that there is considerable force in the contention of the Learned Counsel for the petitioner. In rule 1 of the Election Rules, the ''returning officer'' has been defined as follows:--

''Returning officer'' means the Registrar or any other officer not below the rank of Assistant Registrar of Co-operative Societies, authorised by him in this behalf by a special or general order:

From the bare reading of the aforesaid definition, it is clear that tie Assistant Registrar could be returning officer only if he had been authorised by the registrar to act as such by a special or general order. It was fairly conceded at the bar by Mr. Mehtani, Learned Counsel for the State, that respondent No. 3 was not authorised by the Registrar to act as a returning officer by a special or general order. Thus in view of the definition of ''returning officer'' as it exists under the Election Rules, the Assistant Registrar could not act as the returning officer without there being a special or general order in this behalf by the Registrar. Under sub-rule (4) of the rule 34 of the Election Rules, the election has to be conducted by the returning officer. In the instant case, the election admittedly was conducted by the Assistant Registrar.

Undisputedly, the nomination paper of the petitioner was rejected by the Assistant Registrar who had no jurisdiction to act as returning officer.

What was sought to be argued by Mr. Prem Singh, Learned Counsel appearing for the private respondents, was that the bare reading of rule 34 of the Election Rules did not evisage the issuance of any special or general order for the appointment of the Assistant Registrar to act as returning officer by the Registrar and that the Assistant Registrar Could act as the returning officer. The rule, on which reliance has been placed reads as under:--

Fixatian of date for election and voting--(1) Notwithstanding anything contained in the bye-laws of the co-operative society concerned no zones for election of the committee of the Primary Cooperative Societies shall be constituted. The election shall be held by secret ballot, and each voter shall have a right to exercise the vote for a candidate of his choice from amongst all the candidates at the election in a general body meeting of the co-operative society called for the purpose of election.

(2) The Manager of every co-operative society shall, at least sixty days before the expiration of the tenure of the committee, intimate to the Assistant Registrar of Co-operative Societies (hereinafter called as the ''Assistant Registrar'') in whose jurisdiction the cooperative society concerned falls, the date on which the tenure of the committee expires.

(3) The election shall be held on the date fixed by the Assistant Registrar. In case the Manager fails to intimate the date as required under sub-rule (2), the Assistant Registrar shall fix the date of election within a week when it comes to notice that the tenure of the committee has expired or is likely to expire. The date of election fixed by the Assistant Registrar shall be communicated to the Manager of the Co-operative Society concerned.

(4) The election shall be conducted by the ''Returning Officer.''

I am afraid, I am unable to agree with the aforesaid contention of the Learned Counsel. Sub-rules (1), (2) and (3) only prescribe a procedure as to how and in what manner a date of election has to be fixed when the tenure of the committee is about to expire. Undoubtedly, under these sub-rules this is to be done by the Assistant Registrar. But thereafter, he becomes functus officio asunder sub-rule (4) the election is to be conducted by the returning officer as defined in rule 1. If the intention of the rule making authority was to have given power to the Assistant Registrar also to conduct the election, then the definition of returning officers'' would not have been in the language in which it is so couched. If the Assistant Registrar, without being authorised by the Registrar could act as a returning officer, then the words, "authorized by him in this behalf by a special or general order" occurring in the definition of returning officers'' would become redundant. To my mind, there this no warrant for the contention of the Learned Counsel for the petitioner that the election could be conducted by the Assistant Registrar under rule 34. A detailed and specific procedure has been prescribed in rule 34 and its here with the help of the definition of ''returning officer'' leads only to one irresistible conclusion that the Assistant Registrar could not conduct the election unless he had been so authorised by a special or general order to do so by the Registrar. Registrar. In this view of matter, I hold that that the Assistant Registrar, respondent No. 3, had no jurisdiction reject the nomination paper of the petitioner and the impugned order rejecting the nomination paper of the petitioner is illegal.

In view of the definite finding I have given above on the first paint agitated before us by the Learned Counsel for the petitioner. I do not find it necessary to deal with the other two points, nor do I find any substance in the preliminary objection by the Learned Counsel for the respondents that the petition is not maintainable as the matter could be referred to arbitration u/s 55 of the Act. Even if such a dispute could legally be so referred (which proposition was stoutly contested by the Learned Counsel for the petitioner) I fail to understand how could such a reference be made between an unauthorised returning officer and the aggrieved candidate (the petitioner). Even otherwise, as rightly argued by Mr. Sandhu, Learned Counsel for the petitioner, the present dispute could not be referred to arbitration as the petitioner has challenged the vires of bye-law 36 (1). The Assistant Registrar acting as returning officer (though in the instant case, held by me, he had no authority to act as such) could only look at the provisions of the Act, the Rules and the Bye-laws and if he found that any candidate suffered from any disqualification prescribed in the Rules and the Bye-laws, then he had no other alternative but to reject the nomination paper. Faced with the situation, it was contended by Mr. Prem Singh that u/s 10-A the Registrar had ample authority to direct the amendment of any bye-law of the Cooperative Society if the same was not in conformity with any provision of the Act or rules made thereunder and in this situation the petitioner could approach the Registrar for the amendment of the bye-law, the same being contrary to the rules. I am afraid, I find this plea also untenable. The mischief being complete, the nomination paper of the petitioner rejected, the election conducted, what useful purpose it could have served for the petitioner to have adopted the course suggested by the Learned Counsel for the respondents. Even if the Registrar on having been approached would have amended the bye-law, then also the petitioner could not have got the relief claimed as mere amendment of the bye-law would not have forthwith given the relief claimed in the petition. It may be observed at this stage that this discussion has proceeded on the premises that alternate remedy u/s 10-A could have been resorted to, though the proposition was contested by the Learned Counsel for the petitioner that a private person has no locus standi to approach the Registrar u/s 10-A for the amendment of the bye-law. Thus viewed from any angle, the preliminary objection raised by the Learned Counsel for the respondents has no merit.

No other point was urged on either side.

For the reasons recorded above, I allow this petition with costs, set aside the order of the Assistant Registrar, respondent No. 3, rejecting the nomination paper of the petitioner and directing the Registrar, to proceed to hold the election of the committee afresh in accordance with law and in the light of the observations made in the judgment. Counsel''s fee Rs. 250/-

R.S. Narula, C.J.

I agree