Punjab-Haryana High Court
Kapurthala Jalandhar Cooperative Cold ... vs State Of Punjab And Others on 28 January, 2014
Bench: Jasbir Singh, Harinder Singh Sidhu
LPA No. 1523 of 2013 (O&M) and others connected case -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision: 28.01.2014
1. LPA No. 1523 of 2013 (O&M)
Kapurthala Jalandhar Cooperative Cold Store Limited
...Appellant
Versus
State of Punjab and others
...Respondents
2. LPA No. 1534 of 2013 (O&M)
The Raipur Rasulpur Cooperative Agriculture Multipurpose
Service Society Ltd.
...Appellant
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: - Mr. Ashwani Prashar, Advocate
for the appellant(s).
Mr. K.K. Gupta, DAG, Punjab.
Mr. I.S. Saggu, Advocate for respondent No.5.
Mr. M.S. Bedi, Advocate for respondent No.6.
JASBIR SINGH,J (Oral)
This order shall dispose of two Letters Patent Appeals bearing LPA Nos. 1523 and 1534 of 2013 as these are directed against the order dated 23.07.2013 passed by the learned Single Judge. However, the facts are being taken from LPA No. 1523 of 2013.
The appellant had laid challenge to the election of respondent No.5 as member of the Board of Directors of respondent No.6. Respondent No.6 is a Central Society of which Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -2- primary Societies including respondent No.5 are its members. The term of Board of Directors expired in the month of May, 2010. To elect its members, the election programme was prepared and published, which reads as under:
Date Time Place
1. Last date of send notice 02.07.2010
2. Last date to submit the certified 26.07.10 Till 3:00 PM In the head
copies of the resolutions with the office of the
District Manager of the Bank bank
3. Last date to file the nomination 28.07.10 From 10:00 To the
paper AM in the Returning
morning to Officer in the
1:30 PM head office of
the bank
4. Last date to file objections against 28.07.10 From 2:00 -do-
the nomination papers PM afternoon
to 4:00 PM
5. The date of hearing of the 29.07.10 From 10:00 By the
objections against the nomination AM to 12:30 Returning
papers PM Officer in the
Head Office
6. The date of verification of the 29.07.2010 From 1:30 -do-
nomination papers PM afternoon
to 2:45 PM
7. The date of release of the list of 29.07.2010 From 2:45 -do-
paper found correct PM to 4:30
PM
8. The date to withdraw the 29.07.2010 From 3:00 By the
nomination papers. PM to 4:00 Returning
PM Officer in the
Head Office
9. The date of declaration of the 29.07.2010 From 4:00 By the
candidates elected unopposed PM to 4:30 Returning
PM Officer in the
Head Office
of the Bank
10. The date of issuance of the 29.07.2010 From 4:30 -do-
election symbol where the PM to 5:00
nomination papers are from more PM
than one.
11. The date for casting votes if 06.08.2010 From 10:00 As per the
required AM to 4:00 details given
PM below
12. The declaration of the result of The votes will be counted
the election. immediately after casting the
votes and the result of the
election will be declared by
the Returning Officer after
the counting of the votes.
Atul Kumar Tripathi After filing the nomination papers, a date i.e.
2014.03.18 09:39
I attest to the accuracy and
integrity of this document
Chandigarh
LPA No. 1523 of 2013 (O&M) and others connected case -3-
29.07.2010 was fixed for verification of the nomination papers. Opportunity was given to withdraw the nomination papers on the same date after release of list of nomination papers. It is specifically provided that the candidate who is not opposed by anybody, his result would be declared on 29.07.2010 and thereafter, election symbols were to be issued to others who remained in contest. Voting was to be done on 06.08.2010 and thereafter result was to be announced qua contesting candidates. For the purpose of election, area of Bank was divided in 9 zones. Respondent No. 5 was included in Zone No.
8. It was declared elected unopposed by the Returning Officer on 29.07.2010 as Director from zone No. 8 and result was sent to the Joint Registrar, Cooperative Societies as well as the Bank concerned. The candidates from Zone Nos. 1, 5 and 6 were also declared unopposed like respondent No.5 and their result was also sent to Registrar Cooperative Societies and the Bank on 29.07.2010. The appellant was not a contesting candidate. However, it operational area falls in Zone No. 8.
After declaration of result qua unopposed candidates, some interim stay was granted by this Court in CWP No. 10705 of 2010. That order was vacated on 15.11.2010. After that order, fresh election programme was declared to conduct the election in the remaining zone Nos. 2, 3, 4, 7 and 9. The election process took place on 22.12.2010 and after counting, the result was declared on that very date.
Admittedly, in this case qua unopposed candidates from Zone Nos. 1, 5, 6 and 8, result had already been declared and qua other zones the result was declared on 22.12.2010. In Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -4- terms of provisions of Rule 11(2) of Appendix C Part I of the Punjab Co-opeartive Societies Rules, 1963 (for short 'the Rules'), a consolidated list of those who were declared elected after contest and those, who had already been declared elected unopposed was prepared and it was submitted to the Registrar, Cooperative Societies and the Bank concerned. The appellant laid challenge to election of respondent No.5 from zone No. 8 by filing election petition on 16.03.2011. Right to file election petition is conferred upon a voter under Rule 12(2) of the Rules. The said provision reads thus:
"12. General-(1) xx xx xx (2) If any dispute arises in connection with the election of any officer of the society, it shall be preferred 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."
It is very clear that election petition is to be filed within 90 days from the date of declaration of result and not from the date a consolidated list of the member is submitted to the concerned authority. The election petition was filed by the appellant on 16.03.2011, which was dismissed by the Joint Registrar, Cooperative Societies on 08.08.2011 being time barred. The relevant portion of the order reads thus:
"After examining the documents produced on the case file and after hearing the argument of both the counsel and after carefully reading Atul Kumar Tripathi the judgment of various Courts submitted by 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -5- them, I arrived at the conclusion that Smt. Gurpreet Kaur-Respondent No.2 was declared elected unopposed from zone No. 8 by the Returning Officer on 29.07.2010 as per the approved election programme given by examining. The Returning Officer has sent the election result of this zone to the Bank and in the office of the Joint Registrar, Cooperative Societies, Jalandhar Division, Jalandhar under his signature on the same day. Therefore, the election of this zone was completed on 29.07.2010. The judgment of Hon'ble Punjab & Haryana High Court in case of Surinder Singh Vs. Registrar, Cooperative Societies Haryana (1993 PLJ 294) cited by Sh. K.L. Dua, counsel for the petitioner is not applicable iin the present case. The judgment of Hon'ble Punjab & Haryana High Court in case of Majit Singh Vs. Kabil Singh (1984 Recent Revenue Reports Page 374) cited by Sh. D.K. Gupta, Counsel for Respondent No.2 is fully applicable in the present case. By this way, in this case the date of limitation of 90 days for filing the election petition starts from 29.07.2010. The present election petition has been filed in this office on 16.03.2011 whereas the limitation of 90 days has already expired on 26.10.2010. The judgment of Hon'ble Supreme Court in case of Hukam Dev Narain Yadav Vs. Lalit Naraian Mishra (AIR 1974 SC 480) and Patna High Court in case of Varinder Kumar Vs. State Election Commission and others (reported as 2004 (2) BLJR 1210) and Judgment of Hon'ble High Court in case of Tarlochan Singh Vs. Kashmir Singh (FAO No. 5378 of 2009) cited by Sh. D.K. Gupta, counsel for respondent are fully applicable in the present case as per which the election petition is like a original suit in which Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -6- the delay cannot be condoned. This petition need not to be heard on merit being filed beyond limitation. Keeping in view the above said I feel that his election petition has not been filed within 90 days of limitation as per the provision on para No. 12.2 of Appendix 'C' of the Punjab Cooperative Societies Act, 1961. Therefore, I, Kamaldeep Singh Sangha PCS I, Joint Registrar Cooperative Societies Jalandhar Division, Jalandhar while agreeing with the arguments of Sh. D K Gupta, counsel for respondent No.2, dismissed the present petition filed by the petitioner being time barred."
It was specifically stated that the result qua respondent no.5 was declared on 29.07.2010 and election petition was filed on 16.03.2011 and the same was barred by limitation. The appellant went in appeal, which was allowed on 08.12.2011 and the matter was remitted to competent authority to decide election petition on merits as well as on the question of limitation afresh.
The appellant was not satisfied. He challenged the order dated 08.12.2011 by invoking the provisions of Section 69 of the Punjab Co-operative Societies Act, 1961 (for short 'the Act'). That was allowed on 09.12.2011. It was said that election petition was not barred by limitation as observed in order dated 08.08.2011 by the Joint Registrar, Cooperative Societies when exercising powers under Sections 55 and 56 of the Act. It was said that as the result of election of the Board of the Directors was notified on 22.12.2010, the period of limitation of 90 days would start from the date.
At that stage, respondent No.5 came to this Court by Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -7- filing CWP No. 23396 of 2011, which was allowed by the learned Single Judge on 23.07.2013. Hence this appeal.
By making reference to the provisions of Section 26(1- B) of the Act, it is vehemently contended by counsel for the appellant that the order under challenge is not correct. The limitation to file an election petition would start from the date when term of five years of elected member of the Committee would start i.e. from the date when election result was notified on 22.12.2010. We do not agree with the contention raised. The above said contention was negatived by the learned Single Judge by observing as under:
"It is not in dispute that the Board of Directors are elected. Since the area of operation of the Bank was divided into 9 zones, the Board of Directors were elected from different zones and out of 9 zones, candidates from zone nos.1, 5, 6 and 8 were declared elected unopposed on 29.07.2010, whereas the candidates from the remaining zone nos.2, 3, 4, 7 and 9 were elected on 22.12.2010 and the consolidated election result of the candidates declared elected unopposed and after contest was submitted by the Returning Officer to the Joint Registrar on 22.12.2010 in terms of Section 11 of the Act. The election petition was filed by respondent no.7 on 16.03.2011 to challenge the election of the petitioner who was declared elected unopposed on 29.07.2010. The petitioner is counting the limitation of 90 days w.e.f. 29.07.2010, whereas respondent no.7 is counting the period of 90 days from 22.12.2010 when the Returning Officer Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -8- submitted consolidated list of the names of the Board of Directors elected either unopposed or after contest.
Insofar as the issue of period of limitation is concerned, it is 90 days and cannot be extended.
Counsel for respondent no.7 has fairly conceded that the period of 90 days for filing the election petition cannot be extended in any manner and has not tried to find fault with the law laid down in Tarlochan Singh's case (supra), relied upon by the petitioner.
The only issue involved is, thus, about the date from which the limitation would start.
Before I proceed further, it would be relevant to refer to the following provisions of law which have been referred to by the petitioner as well as respondent no.7:-
"Rule Rule 12 of Appendix C' Part-I
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 of elections in respect of a Co-operative Society or class of Co-operative Societies.
(2) If any dispute arises in connection with the election of any officer of the Co-operative Society, it shall be referred within 90 days of the date of declaration of the result of such election of the Registrar in the same manner as provided in rule 51 of the Rules."
"26. Election and nomination of Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -9- members of Committee:-
(1) The members of the committee of a cooperative society shall be elected in the manner prescribed and no person shall be so elected unless he is a share holder of the society.
(1A) The Committee of any co-operative society may subject to the approval of the Registrar, divide the area of operation of the society into zones for the purpose of election of members of the committee.
(1B) The term of office of a committee elected after the commence of the Punjab Co-
operative Societies (Amendment) Act, 1993, shall be five years from the date of its election:"
Counsel for petitioner has relied upon a Division Bench decision of this Court in the case of Manjit Singh v. Kabul Singh, 1984 RRR 374, to contend that the election of a candidate elected unopposed becomes complete consequent upon its declaration. He has also referred to Section 11 of the Act in this regard to contend that the Returning Officer has to prepare a consolidated list of the elected candidates including those who are declared elected unopposed. It is further submitted that the word "declared unopposed", to be mentioned in the consolidated list to be prepared, means that it would reflect the date on which they were so elected and declared. Insofar Section 26(1B) of the Act is concerned, it only refers to the term of the committee and not the term of the Director which would not start working until and unless the Committee is duly constituted after consolidated election result is notified.Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh
LPA No. 1523 of 2013 (O&M) and others connected case -10- I find force in the argument raised by counsel for the petitioner because the Returning Officer is empowered to declare election of a Director in any zone who gets a walk over on account of lack of opposition and is declared immediately thereafter as duly elected. Similarly, where there is a contest, the declaration is made by the Returning Officer accordingly. Thus, there are two channels of election, namely, the candidates declared elected unopposed and after contest and in a particular case where the candidates were elected unopposed and declared on a particular date then in view of the decision in Manjit Singh's case (supra), their election is complete as soon as the result is declared and the period of 90 days would start running from the said date. Insofar as Section 26(1B) is concerned, it only talks of the term of the Committee which would be of 5 years from the date of its election and it has nothing to do with the period of limitation to file the election petition."
We have perused the provisions of Rule 6(3); 11(2) and 12(2) of the Rules attached with Appendix C, Part I. In Rule 6(3), it is clearly provided that the Returning Officer shall, after scrutiny of nomination papers, prepare and announce a list of validly nominated candidates and it be exhibited as per norms. It is further provided that the Returning Officer after preparing the list of validly nominated candidate shall declare such candidate as elected, if there is no contest about his election and the result be communicated to the Presiding Officer and the Manager of the Cooperative Societies.
Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -11- Rule 11(2) of the Rules, makes it very clear that when result qua contesting candidate is declared, the Returning Officer shall prepare a consolidated list of members elected after contest and those declared elected unopposed and communicate that list to the concerned authority. Reading of the Rule makes it also clear that the declaration of result of candidate who is declared elected after contest is different than the one who was declared elected unopposed as has happened in this case i.e. respondent No.5 was declared elected unopposed on 29.07.2010 and the result was communicated to the authorities as per norms. The second consolidated list was sent to the authorities on 22.12.2010.
It is the contention of the counsel for the appellant that the limitation would start from the date when consolidated list was notified i.e. 22.12.2010. The above view cannot be accepted. Right to file the election petition is conferred under Rule 12(2) of the Rules.
In the present case, admittedly qua zones No. 1, 5, 6 and 8 where there was no contest, the result was declared on 29.07.2010. As such it was rightly said by the learned Single Judge that election petition filed on 16.03.2011, was barred by limitation. As per law laid down by a Division Bench of this Court 374 after in the case of Manjit Singh v. Kabul Singh 1984 RRR 374, discussing the relevant Rules, it was observed as under:
"5. Section 85(1) of the Punjab Co-operative Societies act, 1961 (hereinafter referred to as the Act), provides that the Government may, for any co-operative society or class of such societies, make rules to carry out the purposes Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -12- of the Act. Rule 23 of the Co-perative Societies Rules (hereinafter referred to as the Rules), made under Section 85(1) of the Act , lays down that the members of the committee of a Co-operative Society shall be elected in accordance with the rules given in Appendix C, Sub-clause (3) of clause 6 to Appendix C, which pertains to the scrutiny of the nomination papers, reads as under:
6(3) The Returning Officer shall, after scrutiny of nomination papers, prepare and announce a list of validly nominated candidates and the same shall be exhibited at the registered office of the society and at other common places in the area of operation of the society. The Returning Officer after preparing the list of validly nominated candidates shall declare such candidate as elected if there is no contest about his election and communicate the same to the Presiding Officer and the Manager of the Society."
Clause 11 of Appendix C deals with the declaration of election result and its sub-clause (2) reads thus:
"11(2) When the result of the election has been declared, the Returning Officer, or the Presiding Officer, as the case may be, shall prepare a consolidated list of candidates, including those declared elected unopposed, and communicate the names of persons elected under his signatures to the Assistant Registrar and the Deputy Registrar concerned and in the case of the central and apex societies, such a list shall also be sent to the Registrar, Co-operative Societies. The Returning Officer or the Presiding Officer, as the case may be, shall also direct the Manager Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -13- to exhibit a list of the names of persons elected at some conspicuous place as the registered office of the society for a minimum period of 7 days after a declaration of the result of the election."
6. The contention of the learned counsel for the petitioner is that the election of Zone No. 5 was not complete on December 22, 1977, with the declaration of unopposed election of Harcharan Singh Brar; respondent No.2, because it shall be taken to have completed after the compliance of the provision contained in sub clause (2) of clause 11, reproduced above, which had admitted by not been done till December 24, 1977. This contention is thoroughly misconceived. The election vis-a- vis the declaration of an unopposed candidate under sub-clause (3) of clause 6 of Appendix C becomes complete and it is incorrect to say that it remains inchoate till the completion of formalities provided in sub-clause (2) of clause 11 of Appendix C. The formalities contained in sub-clause (2) of clause 11 being procedural have no bearing on the declaration of unopposed candidates under sub-clause (3) of clause 6. It the contention of the learned counsel for the petitioner were to prevail, then the declaration shall become effective after seven days of the exhibition of a list of the names of the persons elected at some conspicuous place as the registered office after a formal declaration of the result of the election, which can never be. We, therefore, hold that the election of Harcharan Singh Brar, respondent No.2 as unopposed candidate as a Director under sub-clause (3) of clause 6 of Appendix C became complete consequent Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -14- upon its declaration on December 22, 1977.
7. In Shri Amar Singh Dosanjh v. The State of Punjab and others (supra), it was held that it was the intention of the authorities that no objection shall be raised regarding the election till the result of the election had been declared. The same view was reiterated in Narinder Singh v. The State of Punjab and others (supra). The learned counsel for the petitioner meant to take advantage of the ratio of these rulings by treating the election of Zone No.5 having not been declared by December 24, 1977, when the present writ petition was filed. In view of the finding above that the election of Harcharan Singh Brar, respondent No.2 from zone No. 5became complete with his declaration as Director, under sub-clause (3) of clause 6 of the Appendix C, there remains nothing in the two rulings, referred to above, which supports the case of the petitioner."
8. Sub-clause (2) of clause 12 of Appendix C provides that 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. Under section 55(2) of the Act, a dispute arising in connection with the election of any officer of the society is referable to arbitration. It is, therefore, clear that the dispute raised by the petitioner in the manner of election of a Director from Zone No. 5 became referable to arbitration immediately after the declaration of Harcharan Singh Brar as unopposed candidate on December 22, 1977. An alternative remedy Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -15- was, therefore, available to the petitioner on December 24, 1977, when the present writ petition was filed."
The interpretation which has been given to the provisions of the Rules by this Court as above is flowing from the decision of the case in Manjit Singh's case (supra). The contention of the counsel for the appellant is that the above view was taken by the Division Bench judgment in Manjit Singh's case (supra) when amended Section 26(1-B) of the Act had not been incorporated. The said provision reads thus:
"26. xxx xxx xxx 26(1-B) The term of office of a committee elected after the commencement of the Punjab Co-operative Societies (Amendment) Act, 1993, shall be five years from the date of its election."
By the amendment, It is only provided that term of office of elected Committee shall be five years from the date of its election. This provision will not make any difference, in the situation, which has been discussed in the preceding para of the order. In such a case, there would be two dates of declaration of result i.e. one qua zone where there was no contest, which would be after scrutiny of nominations if there is only one candidate and second when there was an election, the result whereof will be declared after completion of process. It is specifically provided in Rule 11(2) of the Rules that after completion of entire election process, a consolidated list of those who were elected after contest and those who were elected Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh LPA No. 1523 of 2013 (O&M) and others connected case -16- unopposed be prepared and sent to the competent authority. It is from that date the term of five years will start. The said provisions will not give any right to the appellant to lay challenge to the election. As per Rule 12(2) of the Rules, the election petition is required to be filed within 90 days from the date of declaration of the result and as per Rule 6(3), it is provided that in case there is no contest, the result be declared in those zones on the date of scrutiny of the papers.
In view of the above, no case for interference is made out in these cases.
Dismissed.
A photocopy of this order be placed on the file of connected case.
(JASBIR SINGH) Judge (HARINDER SINGH SIDHU) Judge January 28, 2014 Atul Atul Kumar Tripathi 2014.03.18 09:39 I attest to the accuracy and integrity of this document Chandigarh