Sewa Sahkari Sanstha Maryadit vs State of M.P. and Others

S.S. Jha, J.

These petitions have been preferred under Articles 226 and 227 of the Constitution of India challenging the process of elections of different cooperative societies. At the initial stage objections have been raised regarding elections in the second round of elections of different cooperative societies on various grounds.

Grounds urged in these petitions are improper rejection of nomination papers, invalid appointment of Returning Officer, mass rejection of nomination papers failure to follow rules in declaring the election programme and non-availability of the Returning Officer at the specified place. It has also been urged that model byelaws have not been followed in holding the elections.

Shri R.D. Jain Senior Advocate appearing for the intervenor has raised a preliminary objection and submitted that all these questions have been determined in WRIT PETITION NO. 1174/2001 (Ganesh & others vs. State of M.P. and others) Reported 2001 (2) MPJR SN 38 decided at the Main Seat on 16.4.2001. Counsel for the intervenor submitted that since the questions involved in these petitions have been adjudicated, therefore, these petitions had rendered infructuous and deserve to be dismissed.

Shri N.K. Gupta, Advocate appearing for the petitioner in W.P. No. 347/2001 has submitted that the final voter list was not published as per scheduled programme, therefore, election officer could not proceed further with the elections of petitioner/society. Counsel for the petitioner submitted that election of the petitioner/society was conducted in the year 1996. Election programme for fresh elections in the district Bhind was published by the Deputy Registrar co-operative Societies, District Bhind. Election of petitioner society was scheduled to be held in the second round. List of members ware published on 8.2.2001 and objections were invited which are to be submitted by 15.2.2001. After decision of the objections of electoral rolls, final list was scheduled to be published on 19.2.2001. After publication of final list, reservation of election programme was to be published on 22.2.2001. However, programme was published on 22.2.2001 which is Annexure P/2. Counsel for the petitioner invited attention to this document and submitted that at column no. 2 of election programme, list of members was to be published on 8.2.2001. Last date for receiving objections was 15.2.2001 and 19.2.2001 was the date for publication of final list after decision on the objections. On 22.2.2001 question of reservation was to be declared. After publication of the list on 8.2.2001 one Ravindra Kumar Upadhyaya was appointed to receive objections to the list of members. However, on 12.2.2001 Assistant Registrar, Co-operative Societies has appointed Shri R.S. Bhadoriya as Election Officer in place of Shri R.N. Barua. It is mentioned by the Registrar that till 15.2.2001 no objections were received and the Election Officer has not published the final list. Counsel for the petitioner, therefore, submitted that on failure to publish final list of members, elections could not be proceeded further. Counsel for the petitioner invited attention to the return filed by the respondents wherein, it is mentioned that the petitioner/society has failed to submit relevant records for deciding the objections with regard to preliminary voter list to the Election Officer, therefore, objections could not be decided and final voter list could not be published. Thus it is admitted that final list was not published and elections of the petitioner society have been postponed.

Since, in this case voter list has not been published, no orders in this petition are necessary and it will be appropriate that the respondent shall publish final list and proceed with the elections and conduct the elections of Sewa Saahakari Sanstha Maryadit, Bichholi, as early as possible.

Writ Petition on 523/2001 is filed by Saranam Singh Yadav alleging therein that for holding election of Seva Sahakari Sanstha Maryadit, Bilaw, Branch Umari, proper procedure has not been followed, therefore, the elections are not in accordance with law. Entire election process is contrary to the provisions of Madhya Pradesh Co-operative Societies Rules, 1962 and the byelaws made thereunder. Counsel for the petitioner submitted that the election programme has not been published in conformity with the provisions of Rule 23(3) of the M.P. Co-operative Societies Rules, 1962 (hereinafter, referred to as the ''Rules''). Assistant Registrar vide his order dated 29.1.2001 has appointed Shri D.S. Kushwaha Sub Engineer in Water Resources Department, Bhind as Election Officer. It is further contended that the Assistant Registrar, Co-operative Societies has no authority to appoint Election Officer. Appointment was made vide order dated 29.1.2001 vide order Annexure P/1. Election Programme was published vide Annexure P/2. It is submitted that there are various irregularities in the voter list and model byelaws issued by the Registrar, Co-operative Societies u/s 12 of the M.P. Co-operative Societies Act, 1960 (hereinafter, referred to as the ''Act'') have not been followed. In the elections reservation of the seats is not in accordance with law. Specific time for conducting the election has not been prescribed. Counsel for the petitioner submitted that under Rule 23(3) (d) of the Rules, objections as to electoral roll are to be invited within six days from the date of publication of the list and the date, time and place for hearing objections should be fixed and the members of the society shall be informed by notice. Rule 23(3) (f) provides that the Returning Officer or any person authorised by him shall, after holding such summary enquiry into that claims or objections as he thinks fit, record his decision in writing and shall dispose of all claims and objections within 9 days from the date of publication of the list under clause (d) of sub-rule (3). Counsel for the petitioner submitted that as per programme list was published on 8.2.2001 and objections ought to have been decided within a period of nine days i.e. by 17.2.2001. But in the programme itself, date for decision of the objections is fixed as 19.2.2001. Therefore, election programme for second round deserves to be quashed on this count alone.

In Writ petition No. 492/2001, it is submitted that the Election Officer was kidnapped, therefore, nomination papers could not be filed. Objections have not been accepted by the Deputy Registrar.

In Writ Petition No. 664/2001 counsel for the petitioner submitted that the Election Officer has mentioned that on account of group fighting at the specified place, some persons have snatched the entire records and have destroyed the ballot papers and elections could not be conducted. He proposed fresh elections on 10.4.2001. It is contended that the Election Officer has no right to fix further programme of the election.

In Writ Petition No. 366/2001 Shri Shivendra Singh, Advocate appearing for the petitioner has submitted that model byelaws of the State Government are not being followed in Bhind District, whereas they have been followed in the entire State of Madhya Pradesh. In regard to the objections as to the election programme, it is submitted that the objections ought to have been decided on 17.2.2001 after publication of the list of members on 8.2.2001, but in the programme itself, date of decision on objections is fixed for 19.2.2001.

In Writ Petition No. 488/2001, it is contended that the Election Officer has not reached the destination to conduct the elections, therefore, elections so conducted are bad in law and deserve to be quashed.

In Writ Petition No. 359/2001, petitioner invited attention to the document annexure P/10 and submitted that on the date of election, Election Officer was not present and nobody was available to receive the nomination papers. He submitted that in the absence of submission of nomination papers, elections so held deserve to be quashed.

Counsel for the respondents has raised a preliminary objection that the petitioners have remedy of election petition after declaration of the result of elections, therefore, these petitions are premature and deserve to be dismissed on that count. Counsel for the respondents further submitted that in view of the judgment of this Court in the case of Genesh & others (supra), these petitions deserve to be dismissed. Counsel for the respondents contended that u/s 12 of the Act, model byelaws, unless approved by the society, cannot be enforced.

Full Bench of this Court in the case of The Collective Farming Society Ltd. and Others Vs. State of Madhya Pradesh and Others, was referred and it was submitted that if the procedure is not followed in the elections, elections are invalid. In para 42 of the judgment, it is held as under:

(42) We may now sum up the conclusions;

When the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary of ancillary powers to delegates of their choice for carrying out the policy laid down by the Acts. In view of multifarious activities of a welfare State, they cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or another agency.

The legislature cannot abdicate essential legislative functions in favour of another authority.

The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct.

The power to make subsidiary or ancillary legislation may be entrusted by the legislature to another body of the choice.

While so delegating, the legislature should enunciate, either expressly or by implication the policy, principles or standards for the guidance of the delegate in exercising such delegated power.

Uncontrolled entrustment of power without guidance amounts to excessive delegation of legislative authority.

The legislature cannot delegate to the executive the power to make exemptions from the operation of an Act, without laying down the policy for guidance of the latter.

As a delegated power ''modification'' does not mean or involve any change of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made the judge.

Where unguided discretion is conferred by the statute on the executive the legislation need not be struck down. The Court should examine the principles and policy of the statute. Whether guidance has been given may depend upon the consideration of the provisions of the particular Act with which the Court has to deal including its preamble.

If the delegated authority makes an order in contravention of the standards laid down in the section or contrary to the legislative policy found in the provisions of the Act, as the-case may be, the order of the delegate must be struck down, but not the section. The question is justiciable.

Section 91 of the M.P. Co-operative Societies Act, 1961 confers a delegated power on the State Government. Prima facie, the power appears to be uncontrolled as no standards for its exercise are stated in the section. But the preamble and the provisions of the Act sufficiently indicate the policy, principles and standards for the guidance of the delegate. The State Government must be guided by them while exercising the delegated power. Section 91 does not suffer from the vice of excessive delegation.

In the context of the scheme and object of the legislation and the provisions of the Act as a whole the wide expression employed in S.91 cannot be construed in a subjective sense. The opinion of the Government as to the necessity or expediency of making the order must be reached objectively having regard to the relevant considerations and it must be reasonably tenable in a Court of law.

When power is delegated to an authority by the legislature, such authority cannot, expressly empowered, exercise it with retrospective effect.

The word "person" in Section 53 of the Act includes a corporate body, such as, a co-operative society.

Under S. 91 of the Act, the State Government has the power to relax the outside limit prescribed in the proviso to section 53(3) of the Act and grant sanction to the competent authority to extend the period of supersession beyond three years and to the extent specified in the order.

Members of a co-operative society cannot just assemble and hold an election. An election can be held only as prescribed in the Act and the rules framed thereunder.

It was contended that in view of Full Bench decision the elections deserves to be quashed.

In the case of Babaji Kondaji Garad Vs. Nasik Merchants Co-operative Bank Ltd., Nasik and Others, , it is held that non-following procedure and failure to follow the specified procedure in declaring election programme, election was held to be illegal.

In the case of Brihattar Prathamik Krishl Sahakari Samiti vs. Assistant Registrar (1983 MPWN SN 83), question of amendment of byelaws was considered and while considering the scope of Section 12 of the Act, it has been held that the Registrar can exercise the powers under S. 12 of the Act only when he has come to the conclusion that any particular amendment of byelaws of the society is necessary and desirable in the interest of the society. Satisfaction of the Registrar that proposed amendments are necessary or desirable in the interest of the society is a condition precedent for exercising powers conferred by S. 12 of the Act. Counsel for the petitioners therefore, submitted that once the amendments have been proposed, they are binding upon the society and elections ought to have been held on the proposed byelaws.

Counsel for the respondents referred to the judgment in the case of Ayyappally Mohammed Haji and Others Vs. M.M. Abdulsalam and Others, and submitted that if the ninth day is a holiday, then provisions of General Clauses Act will be applicable and on the next working day, objections could be decided. Applying General Clauses Act, since 17th was holiday and 18th being Sunday, the Election Officer has rightly fixed the date as 19th for deciding the objections to list of members.

In the case of Ramdeo Sharma vs. Deputy Registrar, Co-operative Societies, Gwalior (1993 RN 18), it is held that whenever there is a dispute a to elections and remedy is available u/s 64 of the Act, extra-ordinary jurisdiction under Article 226 and 227 of the Constitution cannot be invoked.

In the case of Madhosingh & others vs. S.D.O. Shujalpur & others (1997 RN 233), it is held that writ petition challenging election shall not be entertained as petitioner has alternative remedy u/s 64 of the Act.

In the case of Umesh Shivappa Ambi and Others Vs. Angadi Shekara Basappa and Others, , it held that once election is over, challenge to the election has to be made by preferring election petition; efficacious remedy being available, High Court should not ordinarily interfere in the matter. It is held that where after completion of election process rejection of the nomination papers could not be challenged in the writ petition under Art. 226 of the Constitution and the High Court was justified in holding that proper remedy was to file election petition.

In the case of Radhey Shyam Sharma vs. Chairman, Sewa/Brihdakar Sahakari Samiti, Gwalior (1989 MPJR 174 = 1989 RN 99) scope of Articles 226 and 227 of the Constitution has been considered and it has been held that after commencement of election process of co-operative societies, dispute relating to election can be filed after completion of election before the Registrar and during intervening period extraordinary powers under writ jurisdiction cannot be exercised. It is only when that the election officer has done any act which is not contemplated under the Act and rules and he had exercised powers for which the Act does not authorise him or he acts malafide to defeat the provisions of the Act and he thereby acts without jurisdiction by exercising powers not envisaged under the Act and the rules, then it may be possible to interfere under Article 226 of the Constitution.

In the case of Surinder Kaur Vs. State of Punjab and others, , question of stay was considered. In this case, candidate was prevented by rival candidate from filing his nomination paper. High Court stayed the election process on the date of poll at 3.00 p.m. and communicated at 3.30 p.m. The Authority even after having knowledge of the stay proceeded with the election. It was held that in the circumstances, conduct of the election officer was not valid and the Court interfered with the election.

In the case of Harikant Joshi Vs. Assistant Registrar and Returning Officer and Others, question of byelaws and number of members was considered.

The question which requires consideration in these petitions is whether model byelaws are applicable. For this purpose, it will be appropriate to consider S. 12 of the Act S. 12 is reproduced below -

Power to Direct Amendment of Bye-laws -(1) Notwithstanding anything contained in this Act, or the rules or byelaws, on the request of more than fifty percent of the members of the society or if the Registrar considers that an amendment of the byelaws of society is necessary or desirable in the interest of such society, he may, by an order in writing to be served on the society in the prescribed manner, require the society to make the amendment within sixty days.

(2) If the society fails to make the amendment within the time specified by the Registrar, the Registrar may after giving the society an opportunity of being heard and after soliciting the opinion of such Apex Federal Society, as may be notified by the State Government, register such amendment and issue a certified copy thereof to such society.

From perusal of sub-section (1) it is clear that the Registrar shall if in the interest of the society thinks it necessary to amend the byelaws, he may pass orders in writing to be served upon the society in the prescribed manner, requiring the society to make amendment within sixty days. Sub-section (2) further provides that if the society fails to make amendment within the period specified by the Registrar, Registrar may after giving the society an opportunity of being heard and after soliciting the opinion of such Apex Federal Society, as may be notified by the State Government, register such amendment and issue a certified copy thereof to such society. Thus two things are necessary u/s 12; that the Registrar must satisfy himself that the amendment of byelaws is necessary in the interest of the society and after satisfying himself, he shall pass orders in writing to be served upon the society in the prescribed manner requiring the society to make amendment within sixty days. Thus, there is nothing on record that orders have been passed by the Registrar which was served upon the society to amend the byelaws. It is also not on record that the societies have failed to carry out the amendment and the orders were passed by the Registrar under sub-section (2) of Section 12 of the Act. In the absence of such determination, it cannot be said that model byelaws are applicable to the societies. Contention of the petitioner is misconceived that the model byelaws are applicable to the societies. Byelaws, unless amended or accepted by the society, cannot be enforced in the elections.

As regards other issues that the programme of second round of election was not fixed properly and objections ought to have been decided within nine days have no force, as 17.2.2001 and 18.2.2001 were holidays. Hence the Authority has not committed any error in fixing the date 19.2.2001 for considering the objections. General Clauses Act will apply in such cases, when the last day falls on holiday, objections should be considered next working day.

In the case of Ganesh and others (supra) other contentions have been considered. If there are some irregularities, which have been disputed by the respondents, it will not be appropriate for this Court to enter into disputed questions of fact in a writ jurisdiction and it will not be appropriate for this to exercise the extra-ordinary jurisdiction under Article 226 of the Constitution to interfere with the election process as well as the elections already held. It will be open to the petitioners to raise their grievance in election petition after declaration of the results. It is expected that the Authority hearing the election petition shall decide the petition expeditiously and shall also dwelve upon the questions whether the Returning Officer was available, whether some irregularities took place in the elections; rules and byelaws were not followed. All these questions shall be decided by the Authority including the question of rejection of nomination papers. Petitioners may raise other questions which are available to them in the election petition.

In the result, petitions fail and are dismissed without any order as to costs.