Patna High Court - Orders
Bihar Rajya Sahkarita Vikash Samanway ... vs The State Of Bihar & Ors on 25 August, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.10527 of 2014
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1. Bihar Rajya Sahkarita Vikash Samanway Samiti, Patna ( Bihar) having
its office At- G-1, Kanti Palace, Shastri Nagar Bailey Road, Patna- 800027,
through its General Secretary- cum- Convenor, Dr. Sunil Kumar Singh Son
of Shri Maharana Pratap Singh Resident of Village- Dumari Bujurg, Police
Station- Nayagawon, District- Saran, Chapra.
2. Dr. Sunil Kumar Singh Son of Shri Maharan Pratap Singh Resident of
Village- Dumari Bujurg, Police Station- Nayagawon, District- Saran,
Chapra.
.... .... Petitioner/s
Versus
1. The State of Bihar through its Principal Secretary, Co-Operative
Department, Govt. of Bihar, Patna.
2. The Registrar, Co- Operative Societies, Bihar, Patna.
3. The Bihar State Election Authority 32, Harding Road, Patna- 1, through
its Chief Election, Officer.
4. The Chief Election Officer, Bihar State Election Authority, 32, Harding
Road, Patna- 1
.... .... Respondent/s
======================================================
With
Civil Writ Jurisdiction Case No.13001 of 2014
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1. Bande Lal Yadav S/o Late Dana Lal Yadav Resident of Village Dwalakh,
P.S. Bheja, P.O. Dwalakh, District Madhubani at present Chairman,
Dwalakh Primary Agriculture Society, Panchayat Raj Dwalakh, District
Madhubani.
.... .... Petitioner/s
Versus
1. The State of Bihar through its Principal Secretary, Co-operative
Department, Govt. of Bihar, Patna.
2. The Registrar, Co-operative Societies, Bihar, Patna.
3. The District Magistrate, Madhubani.
4. The District Co-operative Officer, Madhubani.
5. Development Officer, Madhepur, District Madhubani.
6. The Assistant Registrar, Co-operative Society Department, Jhanjharpur,
District Madhubani.
7. The Bihar State Election Authority, 32, Harding Road, Patna through its
Chief Election Officer.
8. The Chief Election Officer, Bihar State Election Authority, 32, Harding
Road, Patna.
.... .... Respondent/s
======================================================
Appearance :
(In CWJC No.10527 of 2014)
For the Petitioner/s : Mr. Y.V.Giri, Sr. Adv
2 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014
P2 / 17
Mr. Ishwari Singh, Adv.
: Mr. Manish Kumar Singh, Adv.
For the State Election Authority : Mr. Mukesh Kumar Thakur, Adv.
For the State : Mr. Anisul Haque, A.C. to AAG 9
(In CWJC No.13001 of 2014)
For the Petitioner/s : Mr. Vikash Kumar, Adv.
For the State Election Authority : Mr. Mukesh Kumar Thakur, Adv.
For the State : Mr. S.A.Alam- S.C. III
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
6 25-08-2014Since the issues raised in the two writ petitions are the same hence at the request of the parties they have been heard analogous and are being disposed of at the stage of admission itself.
The two writ petitioners seek to question the power of the Bihar State Election Authority constituted under the Bihar State Election Authority Act, 2008(hereinafter referred to as the 'the Election Authority Act') and the rules framed thereunder to fix the cut of date for enrollment of members/voters for the ensuing election of the Primary Agricultural Credit Societies to be held later this year.
Since the issues raised in the two writ petitions are the same hence I shall be referring to the pleadings and the annexures as occurring in C.W.J.C.No.10527 of 2014 unless clarified with specific reference to the other writ petition.
The petitioner in this writ petition is an association formed for the betterment of co-operative societies in the State. All types of cooperative societies in the State including the primary, central 3 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P3 / 17 and apex societies are stated to be its members. The petitioner initially prayed for quashing of the letter bearing No. 406 dated 12.6.2014 as contained in Annexure-1 to the writ petition whereby the cut of date for preparation of a voter list of the Primary Agricultural Credit Societies (hereinafter referred to as 'the PACS') was fixed as 30.6.2014. While the matter was pending consideration an interlocutory application bearing I.A.No.4763 of 2014 was filed seeking to add a relief for commanding the respondent Nos. 3 and 4 i.e. the Bihar State Election Authority (hereinafter referred to as 'the Election Authority') and the Chief Election Officer to hold the PACS election 2014 on the basis of the voters list prepared on 31.3.2014 and not on the basis of the voters list existing as on 30.6.2014 in terms of the directives contained in Annexure-1. A second interlocutory application bearing I.A.No.5028 of 2014 has been filed questioning the letter No.3593 dated 4.7.2014 as contained in Annexure-5 and the letter of the Chief Election Officer bearing No.488 dated 7.7.2014 issued pursuant thereto extending the cut of date for preparation of the voters list to 31.7.2014.
Since these are the developments which have taken place during the pendency of the writ petition and are connected with the main relief hence the interlocutory applications are allowed in terms of the prayer made thereunder.
4 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014
P4 / 17 Mr. Y.V. Giri learned Senior counsel has appeared on behalf of the petitioner- association while Mr. Vikash Kumar has appeared for the petitioner in the second writ petition. The State is represented by learned State counsel and the Election authority is in the two writ petitions is represented by Mr. Mukesh Kumar Thakur.
A preliminary objection was raised by Mr. Thakur appearing for the election authority as to the maintainability of the writ petition on grounds that since the election has been notified vide notification bearing No.597 dated 12.8.2014 placed on record in the counter affidavit filed on 19.8.2014 by the respondent Nos.3 and 4, the issue raised by the petitioners has been rendered academic and this Court would not interfere with the election process so initiated in exercise of discretionary jurisdiction under Article 226 of the Constitution of India. Learned counsel in support of his submissions has relied upon some orders passed by the Division Bench of this Court in L.P.A. No. 1028 of 2009 (Lalan Kumar Vs. State of Bihar and Ors.) dismissed on 10.8.2009 and C.W.J.C.No.13965 of 2012 (Gopal Giri Vs. State of Bihar and Ors.) dismissed on 2.8.2012. Referring to the two orders learned counsel for the election authority submitted that the Division Bench taking note of the fact that the election had been notified did not chose to interfere with the election process. 5 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014
P5 / 17 Responding to the preliminary objection raised by the election authority, Mr. Giri relying upon a Bench decision of this Court in C.W.J.C. No. 5857 of 2010 (Umesh Kumar Singh Vs. State) and analogous cases whereby a learned Single Judge of this Court finding gross infirmities with the voters list, had quashed the notification announcing election to the District Level Central Cooperative Bank submits that the jurisdiction of this Court is not fettered and in appropriate cases the notification of election have been interfered with and thus the present case has to be decided on its own merits. Mr. Giri in support of his submission has also relied upon a judgment of the Supreme Court reported in (2000)8 SCC 216 (Election Commission Vs. Ashok Kumar).
In the opinion of this Court, the preliminary objection is not sustainable and in appropriate cases there can be interference with the election process provided the circumstances warrant as such. Even the two orders relied upon by Mr. Thakur, the Division Bench did not find it an appropriate case for interference with the election process and it is on such count that the prayer was rejected and not on grounds of any restrictions in exercise of jurisdiction under Article 226 of the Constitution of India. In fact the Division Bench in the case of Lalan Kumar Singh (supra) has referred to about the self imposed restrictions by the Courts in election matters and not on exclusion of jurisdiction in such 6 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P6 / 17 matters. This Court thus proceeds to consider the issues raised by the writ petitioners on their own merits.
Mr. Giri learned Senior counsel for the petitioner has referred to the 97th Amendment to the Constitution of India whereuner several incorporations were made in the Constitution of India. With reference to Article 43B it was submitted that an obligation has been cast on the State to promote and maintain the autonomy of the Co-operative Societies. With reference to part IXB of the Constitution of India it was submitted that several provisions have been added under this part to promote the cooperative movement and Article 243ZK mandates an election of the Co-operative Society to be conducted before the expiry of the term. It was submitted that an obligation having been cast on the State Election Authority, it was their bounden duty to ensure that the election of the Co-operative societies whose term were to expire this year, should be held before the expiry of such term. He submits that the action complained of in the writ petition reflects the callous attitude of the election authority in delaying the election under the refuge of preparation of voter list even when the Co-operative Societies Act, 1935 (hereinafter referred to as 'the Cooperative Societies Act') in its Section 2(bb) defines the co- operative year to mean a year beginning on 1st April and ending on 31st March of the following year. He thus submits that it is on this 7 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P7 / 17 account that Rule 21-I of the Bihar Cooperative Societies Rules, 1959 framed under Section 66 of the Act provides for a preparation of a list of Co-operative Societies in which election is due in the succeeding year, before the close of the co-operative year and a further obligation is cast upon the concerned society to submit a voter list as existing on the last date of the preceding co- operative year i.e. on 31st March, on or before the 30th of April of the succeeding co-operative year. With reference to Rule 21-I(3) it is stated that it is only in circumstances where the society fails to submit the voter list that the election officer either himself or through a person authorized have been empowered to prepare the list. It was thus submitted that the action of the election authority in initially fixing the cut of date as 30.6.2014 vide letter dated 12.6.2014 as contained in Annexure-1 and its extension to 31.7.2014 vide letter dated 7.7.2014 as contained in Annexure-4 in the light of the letter dated 4.7.2014 of the Cooperative Department is patently illegal and cannot be upheld.
Conscious about the jurisdiction vested in the Election Authority under 'the Election Authority Act' and the Rules framed thereunder, it was submitted that since the body has been constituted to effectuate the legislative intendment in connection with co-operative election as found under the Co-operative Societies Act hence the election authority ought to have ensured 8 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P8 / 17 that the elections were held before the expiry of the term of the Co-operative Societies and should not have played into the hands of Co-operative Department whose sole motive is the supersession of the Co-operative Societies. It was thus submitted that for the laches on the part of the Election Authority to abide by the constitutional mandate and the obligation created thereunder as well as under the provisions of the Co-operative Societies Act, the adversities cannot be extended to the Cooperative Societies and the present Board should not be permitted to be superseded rather they should be allowed to function on ad hoc basis until a new Board is constituted.
Questioning the validity of the letter dated 7.7.2014 of the Chief Election Officer it was submitted that the extension of the cut of date from 30.6.2014 to 31.7.2014 is not an independent exercise of statutory duty by the authority concerned rather it is at the dictates of the co-operative department and thus is fit to be set aside. Learned counsel has referred to a judgment of the Supreme Court reported in 2013(4) PLJR479 (SC) (Thalappalam Ser. Cooperative Bank Vs. State of Kerala) to submit that the Supreme Court with reference to the 97th Constitutional Amendment has held that even if the Co-operative Societies are under the control of the Cooperative department but they do not exercise any such direct or indirect control over the affairs of the society which is 9 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P9 / 17 deep and all pervasive. Learned counsel has also referred to the judgment of the Special Bench rendered in the case of the Organizer Dehri C.D. and C.M Union Ltd. reported in 2014 (1) PLJR 695 for the proposition. Questioning the extension of the cut of date by the Chief Election Officer at the instance of the Co- operative Department, learned counsel has referred to a judgment of the Supreme Court reported in (2010)11SCC 557 (Manohar Lal Vs. Ugrasen and Ors.) and with particular reference to paragraph 17 to 23 it was submitted that no statutory authority is to surrender to any authority superior in hierarchy or any other authority and any such order passed would be unenforceable. With reference to paragraph 6 of the counter affidavit filed on behalf of the Registrar, Co-operative Societies it was submitted that there is a conscious and deliberate attempt by the Registrar to ensure the supersession of the co-operative societies and which would not be sustainable. The alternative argument advanced by Mr. Giri is that even if the power of the Election authority to fix up a cut of date is to be upheld in the light of the statutory provisions conferring such powers, once the State Election Authority has fixed a cut of date on 30.6.2014, it had no reason to extend the said date at the instance of the Co-operative Department.
Mr. Vikash Kumar appearing for the petitioner in the second writ petition has seconded the arguments of Mr. Giri to 10 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P10 / 17 submit that where there is a conscious attempt by the department to ensure the supersession of the co-operative society and the Election Authority has acted at their behest, it was about time for the Courts to step in and correct the irregularities so committed.
The argument of Mr. Giri and Mr. Vikash Kumar has been contested by learned counsel for the respondents. With reference to the provisions underlying Section 14A of the Cooperative Societies Act it was submitted that the power to conduct election has been vested in the State Election Authority constituted under the Election Authority Act and the Rules framed thereunder read with the provisions of the Co-operative Societies Act and the Rules framed thereunder. With particular reference to Rule 21-Y of the Cooperative Societies Rules it was submitted that not only the election is to be held under the supervision and control of the election authority but even the duty of preparation of voter list and to decide the cut of date for preparation of such list has been vested in the State Election Authority and which is an overriding provision. Adverting to the provisions of the State Election Authority Act it was submitted that the preparation of electoral rolls has been vested in the election authority and Section 17 of the Act has an overriding effect on the provisions of the Cooperative Societies Act, 1935 and the Rules framed thereunder. On the strength of the statutory provisions it was submitted by 11 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P11 / 17 learned counsel for the Election Authority that there is absolutely no infirmity in exercise of power by the State Election Authority which is within the para meters of law. He submits that the only exception to such exercise is that, it should not be more than 120 days of the date of election fixed and which in the present case is within such period. He thus submits that the issues raised by the petitioners are in complete teeth of the statutory provisions and merely that the enrollment of members does not suit the Societies concerned that even while advocating the independence of the societies, their endeavour is to keep out eligible members. In so far as the letter of the Registrar, Co-operative Department dated 4.7.2014 as contained in Annexure-5 is concerned, it is submitted that a request was made by the Registrar for extending the cut of date in view of the complaints being received as regarding the voters list and the irregularities committed in the same. It was submitted that the request cannot be treated as a directive by the Registrar as painted by Mr. Giri. He thus submits that since the request was made on genuine grounds, that the Chief Election Officer vide letter dated 7.7.2014 as contained in Annexue-4 refixed the cut of date on 31.7.2014 and which has lapsed and thus practically the issue has become academic.
Learned counsel for the State in defence of the communication of the letter of the Co-operative Registrar has 12 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P12 / 17 submitted that since complaints were being received by the Registrar as regarding the infirmities in the voters list and which was consuming time that a request in this regard was made by him and which in no circumstance can be termed as an unjust action.
I have heard learned counsel for the parties and I have perused the materials on record.
While extensive arguments have been advanced on behalf of the contesting parties but the issue that falls for consideration is whether or not the Election Authority constituted under the Election Authority Act has power to fix a cut of date beyond the co-operative year and whether the action of the Chief Election Officer in extending the cut of date at the request of the Registrar, Co-operative Societies vide letter dated 7.7.2014 as contained in Annexure-4 suffers from the vice of lack of independent discretion.
Under the 97th Constitutional amendment a large number of amendments have been incorporated in the Constitution of India with a view to promote the cooperative movement while recognizing its autonomy as well as its regulatory control by the department concerned and the authorities constituted for conduct elections of the co-operative societies. Mr. Giri had rightly relied upon the provisions of Article 243ZK to submit that a mandate has been issued to conduct the election of a Board before the expiry 13 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P13 / 17 of the term but the provisions does not stop at that and Clause 2 of Article 243ZK vests power in an authority provided by a State Legislature for the superintendence, directions and control in the matter of preparation of electoral rolls as well as conduct of co- operative elections. The eventualities of an election not being held before the expiry of the term of the Board has also been taken care of by Article 243ZL(1)(v) which amongst others provides for supersession of a Board in circumstances where the body provided by the State legislature to hold elections under Article 243ZK(2), has failed to conduct elections in accordance with the provisions of the State Act.
Thus a mere eventuality of supersession faced by the Co- operative Societies, would not persuade this Court to interfere with the election process at this stage nor this Court is persuaded to order for continuance of the Board until the constitution of a new Board for that would be contrary to the constitutional mandate provided under Article 243ZL of the Constitution of India. The eventualities have been taken care of in the constitution itself and thus it can be safely held that even while the authority constituted for holding elections should endeavour to conduct the election before the expiry of the term of the board but in case it is not able to do so, it has to be held without undue delay since it cannot keep a Board in supersession or under suspension for a 14 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P14 / 17 period exceeding six months. That is not the circumstance existing in the present case for the elections have already been notified by Notification dated 12.8.2014 placed at Annexure-A to the counter affidavit of the State Election authority.
Adverting to the second challenge regarding the fixation of cut of date, again the legal position is no different. Section 14A of the Cooperative Societies Act was substituted under Act 3 of 2012 and vests power in the Bihar State Election Authority constituted under the State Election Authority Act to conduct Election of the Managing Committee of the Cooperative Societies in the manner prescribed under the Bihar State Election Authority Act, 2008 read with Bihar Cooperative Societies Act, 1935 and the Rules framed thereunder. Section 2(bb) defines Cooperative year to mean a year beginning on 1st of April and ending on 31st of March of the following year. Rule 21-I of the Cooperative Societies Rules requires the concerned society to submit the voter list and upon its failure to do so vests the election officer to get the same prepared but the rules were amended in 2008 and Rule 21Y was added vesting exclusive power in the Election Authority in preparation of a voter list and of deciding the cut of date for preparation of such list. The provision empowering the election authority to prepare the voters list and fix the cut of date begins with a non obstante clause and thus has an overriding effect over 15 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P15 / 17 other provisions in the Act and the Rules framed thereunder. Section 17 of the Election Authority Act gives an overriding effect to the enactment over the Cooperative Societies Act and Section 4(1) thereof vests exclusive jurisdiction in the State Election Authority in preparation of electoral rolls. There is thus absolutely no dispute as to the legal position that the State Election Authority is vested with an exclusive powers to prepare the voter list and fix up a cut of date.
In the circumstances, the attack by Mr. Giri, learned Senior counsel appearing for the petitioner and Mr. Kumar as to the exercise of power by the State Election Authority in fixing the cut of date and preparing a voter list requires no interference as their actions are saved under the constitutional mandate as well as the statutory provision.
This would bring this Court to the third and the alternative issue raised by Mr. Giri and that is whether the request made by the Registrar in his letter dated 4.7.2014 as contained in Annexue- 5 which has persuaded the State Election Authority to re-fix the cut of date on 31.7.2014 suffers from undue influence and is not an independent exercise of statutory power. The answer has to be in the negative. Apart from the fact that by virtue of amendment incorporated in the Cooperative Societies Rules whereby Rule 7(4) was added empowering the statutory authorities named 16 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P16 / 17 therein to enroll members, any such complaint received in this regard by the Registrar obviously could not be ignored and in fact where the exercise has been undertaken to remove the infirmities in a voter list and to rectify the errors, no complaint can be registered by the petitioners. The acceptance of request of the Registrar by the State Election Authority in these circumstances cannot be termed as tainted with directives or lacking in independent exercise.
The argument of Mr. Giri that since the Cooperative Societies Act has defined the Cooperative year to end on 31st of March in a year in which an election is to be held and hence the voter list should only include such members who were on the rolls as until the said date and any person enrolled thereafter, even if can be made a member of the society but would have no voting rights, is again difficult to uphold for the only circumstance which debars a member of the Co-operative Society to vote can be found under Section 27 of the Cooperative Societies Act and while conferring rights on a member, it has been clarified that his right to vote can only be curtailed if there are rules prescribed to that effect or bye laws made by a society requiring a minimum attendance by such member in the meetings of the society. Nothing was brought on record to demonstrate that there is any rule which prescribes for a minimum attendance in a meeting by a 17 Patna High Court CWJC No.10527 of 2014 (6) dt.25-08-2014 P17 / 17 member to entitle him to vote nor the byelaws provide as such. Thus the attempt by Mr. Giri to persuade this Court to hold that the members enrolled since after 1st of April this year even if can be granted membership, they would not be entitled to vote has no legs to support.
For my conclusions drawn hereinabove, it is only a formality to hold that the writ petitions do not raise any such issues which warrant indulgence by this Court in exercise of extraordinary jurisdiction and the two writ petitions as well as the interlocutory applications are dismissed accordingly.
Bibhash/- (Jyoti Saran, J) U