Rajasthan High Court - Jaipur
Dugdh Utpadak Sahakari Samiti Ltd vs The State Of Rajasthan on 17 May, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9754/2021
Dugdh Utpadak Sahakari Samiti Ltd., Kanwarpura Code No.582
Through President Jitaram S/o Shri Narayan Das Aged About 57
Years, Having Office At Kanwarpura, Panchayat Samiti Dhodh,
District Sikar.
----Petitioner
Versus
1. The State Of Rajasthan, Through The Registrar,
Cooperative Societies, Rajasthan, Nehru Sahkar Bhawan,
22 Godown Circle, Jaipur.
2. The Rajasthan State Cooperative Election Authority,
Institutional Area, Jhalana Doongari, Jaipur.
3. The Additional Registrar, Cooperative Societies, Jaipur
Zone, Mini Secretariat, Near Collectorate Circle, Jaipur.
4. Rajasthan Co-Operative Dairy Federation Limited,
Through Its Managing Director, Saras Sankul, Jawahar Lal
Nehru Marg, Jaipur-302017 (Rajasthan)
5. Election Officer, Presently Working As Secretary, Primary
Land Development Cooperative Bank Ltd. Hanumangarh.
6. Sikar Jhunjhunu Zila Dugdh Utpadak Sahkari Sangh
Limited, Palsana, District Sikar Through Its Managing
Director.
7. Sonthaliya Dudgh Utpadak Shakari Samiti Ltd., Sonthaliya
Sikar Through Its Secretary Kan Singh Meel S/o Rupa
Ram Meel Age 54 Years, R/o Village Sonthaliya Post
Bawari, Sikar
----Respondents
Connected With S.B. Civil Writ Petition No. 10095/2021 Parmeshwar Lal Son Of Shri Norang Lal, Aged About 65 Years, Resident Of 55, Brahmano Ki Dhani, Ram Singh Pura, Tehsil Laxman Garh, District Sikar, Chairman, Dharmshala Beri Dugdh Utpadak Sahkari Samiti Limited, Village Dharmshala Beri, Tehsil And District Sikar.
----Petitioner Versus (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 2
1. Rajasthan State Co-Operative Election Authority, 10-B, Industrial Area, RICEM Complex, Jhaalana Dungari, Jaipur.
2. Shri Peeth Dan Charan, Returning Officer, Secretary, Primary Land Development Bank Ltd. Hanumangarh.
3. Shri Harish Siwasiya, Returning Officer And Dy. Registrar, Co-Operative Societies, Ajmer, Returning Officer For Election Of Chairman And Board Of Directors For Sikar And Jhunjhunu District Dugdh Utpadak Sahkari Sangh Ltd. Palsana.(Sikar).
4. Sonthaliya Dugdh Utpadak Sahkari Samiti Limited, Sonthaliya Sikar, Through Its Secretary Kan Singh Meel Son Of Shri Rupa Ram Meel, Aged 54 Years, Resident Of Village Sonthaliya Post Bawri, District Sikar.
----Respondents S.B. Civil Writ Petition No. 10185/2021 Sunil Kumar S/o Shri Mahavir Singh, Aged About 24 Years, R/o Village Mangalpura, Post Banuda, Via Khud, District Sikar, President Ahiro Ka Bas Dugdh Utpadak Sahakari Samiti Ltd. Sikar
----Petitioner Versus
1. Rajasthan State Cooperative Election Authority, Rajasthan State Cooperative Election Tribunal 10-B, Institutional Area, RICEM Bhawan, Jhalana Doongri Jaipur
2. Election Officer, Sikar And Jhunjhunu, District Dugdh Utpadak Sahakari Sangh Ltd. Secretary, Primary Land Development Cooperative Bank Ltd. Hanumangarh (Raj)
3. Election Officer, Dy. Registrar, Cooperative Societies, Ajmer Newly Appointed Election Officer, Sikar And Jhunjhunu District Dugdh Utpadak Sahakari Sangh Ltd Sikar (Raj)
4. Sikar And Jhunjhunu Dugdh Utpadak Sahakari Sangh Ltd Sikar (Raj), Through Managing Director
5. Sonthaliya Dugdh Utpadak Sahkari Samiti Limited, Sonthaliya Sikar, Through Its Secretary Kan Singh Meel Son Of Shri Rupa Ram Meel, Aged 54 Years, Resident Of Village Sonthaliya Post Bawri, District Sikar.
----Respondents (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 3 For Petitioner(s) : Shri Sandeep Singh Shekhawat with Shri David Mehla and Shri Akshay Dutt Sharma Shri R.C. Joshi with Ms. Namita Parihar, Shri Kailash Chand Sharma For Respondent(s) : Shri S.S. Raghav, AAG with Shri Ajay Singh Rajawat, Shri R.B. Mathur, Sr. Adv. with Shri Nikhil Simlote, Shri Amit Kumar Dhawan, Shri Kailash Chand Pareek, Shri Salim Khan Gori HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment 17/05/2022 Since, all these three writ petitions share common facts and question of law, they have been heard together and are being disposed of vide this common order.
For the sake of convenience, S.B. Civil Writ Petition No.9754/2021 is being taken as the lead case.
The petitioner, a Dugdh Utpadak Sahkari Samiti Ltd., Kanwarpura (for brevity-`the petitioner-Samiti') is a Member of Sikar Jhunjhunu Zila Dugdh Utpadak Sahakari Samiti Ltd. (for brevity-`Sangh'). For election of the Board of Directors and Chairman of the Sangh, the State Cooperative Election Authority issued an order dated 6.4.2021 notifying the election process along with appointment of Election Officer. As per the election schedule appended with the order, election process was to be completed by 27.4.2021. The Election Officer vide its letter dated 12.4.2021 invited objections to the proposed voter list appended thereto. As many as 67 objections were received by the Election Officer to the proposed voter list; who, after deciding the (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 4 objections, vide its letter dated 18.4.2021, published final voter list containing 106 names. Before election process could proceed as per the schedule, in the wake of pandemic on account of Covid- 19, vide letter dated 19.4.2021, the Election Officer deferred the election process after the stage of publication of the final voter list. A writ petition no.5242/2021 was filed by one of the disqualified member which came to be decided by this Court vide its order dated 30.4.2021 whereby, the writ petition was dismissed as withdrawn with liberty to raise the grievance before the Rajasthan State Cooperative Election Tribunal which was expected to decide the objections within a period of one month in accordance with law.
The Election Authority has, vide its order dated 27.8.2021 allowed the representation submitted by the writ petitioner. It was held by the Election Authority that publication of the voter list was void ab initio and cancelled the election process from the date 9.4.2021 onwards. Vide its another order dated even, the Election Authority appointed another election officer and notified fresh election schedule. The decision of the Election Authority dated 27.8.2021 as also the order dated even passed by him are subject matter of challenge in the writ petition wherein, it has been further prayed to continue the election process initiated in pursuance of notification dated 6.4.2021 from the stage it was deferred in the wake of Covid-19.
In their reply, the respondents no.4 and 6 have supported the petitioners' case and have submitted that validity of the final voter list could have been assailed only by way of an election dispute under Section 58 of the Rajasthan Cooperative Societies Act, 2001 (for brevity-`the Act of 2001').
(D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 5 The respondent no.5 also submitted that decision dated 27.8.2021 as also the order dated even are not in conformity with the scheme of the Act of 2001 and Rules of 2003 framed thereunder.
The respondent no.7 submitted in its reply that the Election Authority passed the order dated 27.8.2021 in pursuance of the direction of this Court dated 30.4.2021 in S.B. Civil Writ Petition No.5242/2021 and hence, no fault could be found with the same. It is stated that the fresh election process has already been notified and hence, the same cannot be interfered with in view of the provisions of Section 34(6) of the Act of 2001.
The State has, in its reply, submitted that the order dated 27.8.2021 came to be passed in pursuance of the direction of the Hon'ble Court dated 30.4.2021. It is averred that fresh election process has started and in view of the settled proposition of law, it cannot be stopped in the mid way.
Learned counsels for the petitioners drawing attention of this Court towards Section 34(6) of the Act of 2001, canvassed that once the election process starts, it cannot be stopped or postponed for any reason, save for a natural calamity or break down of law and order. They submitted that in the present case, the election process was deferred by the election officer vide its order dated 19.4.2021 in the wake of Covid-19, a natural calamity and the Election Authority did not have jurisdiction to set aside the election process vide its order dated 27.8.2021. They submitted that grievance against the final voter list could only be raised by way of an election dispute under Section 58 of the Act and could not have been entertained by the Election Authority in the garb of order of this Court dated 30.4.2021 wherein, no such direction (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 6 was issued to the authority to entertain the objection dehors the statutory provisions. They submitted that the writ petition was withdrawn by the petitioner as it failed to convince the Court after arguments with liberty to approach the Rajasthan State Cooperative Election Tribunal which was expected to decide the same in accordance with law. They asserted that since the law did not permit entertainment of the objection by the Election Authority during the election process, the same could not have been allowed vide order impugned dated 27.8.2021. They, in support of their submissions, relied upon the judgements of Hon'ble Apex Court of India in the cases of Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha & Ors. vs. State of Maharashtra & Ors.-(2001) 8 SCC 509, Boddula Krishnaiah & Anr. vs. State Election Commissioner, A.P. & Ors.-(1996) 3 SCC 416, Election Commission of India vs. Ashok Kumar-(2000) 8 SCC 216, Bharatiya Janata Party, West Bengal vs. State of West Bengal & Ors.-(2018) 5 SCC 365, S.T. Muthusami vs. K. Natarajan-(1988) 1 SCC 572 and N.P. Ponnuswami & Ors. vs. Returning Officer, Namakkal Constituency & Ors.-AIR 1952 SC
64. They, therefore, prayed that the writ petitions be allowed and the respondents be directed to complete the election process initiated vide notification dated 6.4.2021 from the stage it was deferred.
Per contra, learned counsels for the State and respondent no.7 submitted that the fresh election process has been notified in pursuance of decision of the Election Authority dated 27.8.2021 and hence, the writ petitions for quashing the same are not maintainable. They submitted that under Section 33(3) of the Act of 2001, the Election Authority is vested with the power of (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 7 superintendence and control of the preparation of electoral rolls for, and the conduct of, elections to such cooperative societies as may be prescribed in the Rules. They submitted that exercising its jurisdiction under a direction of this Court dated 30.4.2021, the Election Authority held the preparation of voter list by the earlier Election Officer to be void ab initio which warrants no interference by this Court. They also relied upon the judgements relied upon by the petitioners in support of their submissions. They, therefore, prayed for dismissal of the writ petition.
Heard. Considered.
Chapter-IX-B inserted in the Constitution of India by the Constitution (97th Amendment) Act, 2011 confers a constitutional status upon the cooperative societies. Article 243ZK provides as under:
"(1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board.
(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law."
In pursuance of the aforesaid constitutional provision, the State Legislature enacted Rajasthan Cooperative Societies Act, 2001, Chapter-V of which deals with Election. Section 32 of the Act provides that the Election to the committee of a co-operative society shall be conducted as per the provisions of the Act and the rules and bye-laws made thereunder. Section 33 (3) provides that the superintendence, direction and control of the preparation of electrocal rolls for, and the conduct of, elections to such co-
(D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 8 operative, as may be prescribed in the rules, shall vest in the Authority. Section 34(6) lays down that the process of election of co-operative society, once started shall not be stopped or postponed for any reason, save for a nature calamity or break down of law and order. Section 35 provides that the Authority may appoint an Election Officer to conduct election of the committee of a society. Section 37 of the Act provides that the Authority may issue such instructions, as it may consider reasonable for conducting free, fair and impartial elections, to any society or its committee or members and the instructions so issued, shall be binding. Chapter-X of the Act provides for settlement of disputes. Section 58 provides that if any dispute touching the constitution, management or the business of a cooperative society arises, it shall be referred to the Registrar for decision. Its sub-section (2)
(c) provides that for the purpose of sub-section (1), any dispute arising in connection with the election of any officer of the society shall be deemed to be dispute touching the constitution, management or the business of a cooperative society. Its proviso lays down that no dispute under this clause shall be entertained during the period commencing from the announcement of election programme and ending on the declaration of the results.
Chapter-V of the Rules of 2003 deals with Election. Rule 45 provides that the superintendence, direction and control of the preparation of electoral rolls for and the conduct of elections to the certain class of societies including dairy cooperative society shall vest in the State Co-operative Election Authority. Its sub-rule (2) provides that for the election of members and office bearers of the committee of the cooperative societies mentioned in sub-rule (1), the Authority shall appoint an Election Officer. Rule 45(3) lays (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 9 down that the elections to the members and the office bearers of the committee of a society mentioned in sub-rule (1) shall be conducted as per the provisions of the Act in the manner specified in this rule and in accordance with the bye-laws of the society. Sub-rule (6) of Rule 45 lays down the complete mechanism for preparation of the electoral rolls by the Election Officer. It reads as under:
"Rule 6(i) The Chief Executive Officer shall provide the Election Officer a list of members, as it stood thirty days prior to the date fixed for the poll who are qualified in accordance with the provisions of Act, rules and the bye-laws to vote at the election.
(ii) The Election Officer shall publish such list by affixing it to the notice board at the Head Office of the society and all its branches for inviting objections within a week. The list shall specify the admission number, name of the eligible members and in case of individual member, name of father or husband, as the case may be, and address of such members.
(iii) The Election Officer, after considering the objections received within the period specified aforesaid, shall finalise the electoral rolls and publish the same as above not less than seven days prior to the date fixed for the poll. A copy of the electoral rolls shall be supplied by the Election Officer to any member on payment of Rupees Five per folio.
Chapter-IX of Rules of 2003 deals with the procedure for reference of a dispute, hearing and decision of dispute referred to Registrar under Section 58 of the Act.
Thus, the scheme of the Act and the Rules especially Section 34(6), proviso to sub-Section 2(c) of Section 58 of the Act, provides unequivocally that the election process once started shall not be stopped or postponed for any reason save for a natural calamity or breakdown of law and order and no election dispute (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 10 shall be entertained during the period commencing from the announcement of election programme and ending on the declaration of the results. Rule 45 of the Rules of 2003 deals with the election process and lays down exhaustive list of steps from initiation of election process to its completion.
It is not disputed by any of the parties which otherwise also is a settled legal position that the election process once notified cannot be stopped in the midway and cannot be interfered by the Court save by an election dispute after its conclusion. A three- Judges Bench of the Hon'ble Apex Court has, in the case of Election Commissioner of India (supra) held as under:
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 11 on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the till the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."
The dispute in the present case revolves around the order dated 27.8.2021 passed by the Rajasthan State Cooperative Election Authority whereby, the final electoral rolls prepared by the Election Officer have been quashed and the earlier election process initiated vide notification dated 6.4.2021 has been set aside with issuance of fresh notification for election. A perusal of the order dated 27.8.2021 reveals that it has purportedly been passed in pursuance of direction of this Court dated 30.4.2021 in S.B. Civil Writ Petition No.5242/2021 and other connected matters (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 12 as also in pursuance of powers vested upon the authority under the Act of 2001 for conducting free, fair and impartial election. The order impugned came to be passed at the stage when after publication of the final voter list, the election process was postponed by the Election Officer vide order dated 19.4.2021 in the wake of Covid-19 situation.
The pivotal question is as to whether Election Authority had jurisdiction to intervene in the matter and cancel the election process on the premise that electoral rolls published by the Election Officer were bad in law. As already observed, the Election Authority has drawn its jurisdiction assigning two reasons; firstly, direction of this Court dated 30.4.2021 and secondly, its powers under the Act of 2001 to ensure free, fair and impartial elections.
In so far as, the order of this Court dated 30.4.2021 is concerned, the same reads as under:
"After arguing at some length, learned counsel for the petitioner seeks permission to withdraw the petition and address the grievance raised in this petition before Rajasthan State Co-operative Election Tribunal.
Accordingly, writ petition is dismissed as withdrawn with liberty sought for. If the petitioner applies before Rajasthan State Cooperative Election Tribunal, it is expected from the Tribunal to decide the objections within a period of one month in accordance with law."
Thus, the order reflects that after arguments for some time, the learned counsel for the petitioner could not convince the Court and hence, withdrew the writ petition with liberty to address the grievance before the Rajasthan State Cooperative Election Tribunal whereupon, this Court expected the Tribunal to decide the objections in accordance with law. Firstly, the Election Tribunal (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 13 comes into vogue only on completion of the election process. Secondly, even assuming that by the Election Tribunal, this Court meant the Election Authority, there was no positive direction for it to decide the objections on their merit; but, in accordance with law only. Therefore, the Election Authority proceeded under misconception that it was mandated by this Court vide its order dated 30.4.2020 to decide the objections on merits without appreciating the question of their maintainability in view of statutory provisions contained under Section 34(6) and Section 58 of the Act of 2001 and Rule 45 of the Rules of 2003. The learned counsels for the respondents have supported the order on the anvil of Section 33(3) and Section 37 of the Act. Section 33(3) vests in the Election Authority the power of the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of elections and Section 37 clothes the authority with power to issue such instructions as it may consider reasonable for conducting free, fair and impartial elections.
The question is whether the power vested in the Election Authority is confined to issuance of general directions or whether it is permissible for him to intervene in the ongoing election process in the garb of this power.
The Hon'ble Orissa High Court has, in the case of Narendra Pradhan vs. State Cooperative Election Commission & Ors.- MANU/OR/0731/2016, while interpreting the provisions related to election under the Orissa Cooperative Societies Act, 1962 and Orissa Cooperative Societies (Election to the Committees) Rules, 1965 which are pari materia with the provisions under the Rajasthan Act and Rules framed thereunder, held as under:
(D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 14 "Going through the aforesaid provisions, this Court finds Section 28AA of the Act, 1962 deals with power of superintendence, direction and control of elections to a Society vest in the State Co-operative Election Commission. Sub-Section 10 of Section 28AA of the Act, 1962 mandates the State Co-operative Election Commission may issue directives to ensuring smooth conduct of election free from any corrupt practice, prohibited act, disorderly conduct and misconduct, subject to the provisions of the Act and rules means the Orissa Co-operative Societies Act, 1962 and the Orissa Cooperative Societies (Election to the Committees) Rules, 1965. This is a chapter deals with provisions for dealing with an election to a Society and issuing necessary directives ensuring smooth conduct of election and this exercise of power of the Election Commission comes to an end with the issuing of notification for holding the election for the Committee. Now coming to the provisions contained in Section 28B, this section gave mandates that once an election process of society is started shall not be held up and no matter relating to election of the President of Members of the Committee shall be called in question before any authority under this Act until the declaration of the result of such election. From the pleadings of the respective parties involved in the case, the admitted position is that the election process involving the President of the particular committee had already commenced on 16.2.2015 and looking to the provisions contained in Section 28B of the Odisha Co-operative Societies Act, 1962. Since the voting as well as counting of votes had already commenced, under no circumstance the election would have been held up and no complaint involving it should have been taken up until declaration of the result of such election. For the background involved herein, this Court also does not find application of Schedule-III to the present case. Under the circumstance, since the process of election was already commenced, the authorities passing the impugned orders under Annexures-7 and 8 were not justified in interfering in the election process and preventing the result to be declared."
Thus, while interpreting the similar provisions contained under the Orissa Act and the Rules framed thereunder, the Hon'ble Orissa High Court has held that authority of the Election Commission comes to an end with the issuance of notification for holding the election for the Committee. In the present case also, (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 15 as is apparent from the scheme of the Act of 2001 and the Rules framed thereunder, once the election notification is issued, the Election Officer assumes the jurisdiction to conduct election including preparation and finalisation of the voter list.
The Hon'ble Apex Court has, in the case of Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha & Ors. (supra) while dealing with the election in Godavari Khore Dudh Utpadak Sangh registered under the Maharashtra Cooperative Societies Act, 1960, held as under:
"7. In the light of the aforestated provisions of Chapter XIA of the Act and the Rules, we will examine as to whether preparation of electoral rolls is an intermediate stage in the process of election. The provisions referred to above show that Chapter XIA was enacted and the Rules were framed specially to deal with the election of the specified societies under Section 73G of the Act. Section 144-X provides that various stages of election shall also include preparation of the list of voters. Once the statute provides that the preparation of the voters' list shall be part of the election process, there is no reason to hold that the preparation of the electoral roll is not an intermediate stage in the process of the election of a specified society. This matter can be examined from another angle. A perusal of the Rules discloses that the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of the election. The Rules framed for election of specified societies are a complete code in itself providing for the entire process of election beginning from the stage of preparation of the provisional voters list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of result of the election. In view of the scheme of the Act and Rules, the preparation of voters' list must be held to be part of the election process for constituting the Managing Committee of a specified society. In Someshwar Sahakari Sakhar Karkhana Ltd., Someshwarnagar vs. Shriniwas Patil, Collector, Pune & Ors. - (1992) 1 Mah LJ 883, it was held that in the scheme of the provisions of the Act and the Rules, the preparation of the list of voters for election to the Managing (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 16 Committee of a specified society is an intermediate stage in the process of the election. Similar view was taken in Shivnarayan Amarchand Paliwal vs. Vasantrao Vithalrao Gurjar and Ors.-(1992) 2 Mah LJ 1052. However, in Karbhari Maruti Agawan and Ors. vs. State of Maharashtra and Ors.- (1994) 2 Mah LJ 1527, although it was held that the preparation of the list of voters is an intermediate stage in the process of election, but that does not debar the High Court from entertaining a petition under Article 226 of the Constitution challenging the validity of the electoral roll. It appears that the consistent view of the Bombay High Court on the interpretation of Chapter XI-A of the Act and the Rules framed thereunder is that the preparation of electoral roll is an intermediate stage of the election process of the specified societies. This being the consistent view of the High Court on the interpretation of provisions of a State Act, the same is not required to be disturbed unless it is shown that such a view of the High Court is palpably wrong or ceased to be good law in view of amendment in the Act or any subsequent declaration of law. We are, therefore, of the view that the preparation of the electoral roll for election of the specified society under Chapter XI-A and the Rules framed thereunder, is an intermediate stage in the process of election for constituting the Managing Committee of a specified society."
Thus, their Lordships have held in no uncertain terms that preparation of list of voters is a part of various stages of election and can be assailed by way of election dispute only after conclusion of the election.
In the present case also, as is evident from the scheme of the Act of 2001 and the Rules framed thereunder, the preparation of the electoral rolls is an intermediate step into the election process and the power exclusively rests with the Election Officer to publish the proposed voter list, to notify objections and to finalise the voter list after deciding the objections and the Election Authority is not empowered to interfere with the same in the garb of power vested vide Section 33 or Section 37 of the Act.
(D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 17 Section 34(6) provides that the process of election of a cooperative society once started shall not be stopped or postponed for any reason save for a natural calamity or break down of law and order. Section 58 which starts with non-obstante clause provides that no election dispute shall be entertained during the period commencing from the announcement of election programme and ending on the declaration of the results. Any grievance against the electoral rolls by the aggrieved persons could only have been raised by way of an election petition under Section 58 of the Act and not before the Election Authority.
Their Lordships have held in the case of N.P. Ponnuswami & Ors. (supra) as under:
"9.The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which as I shall point out later, seems to. be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an 'intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to Call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 18 and errors, if any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it."
"12.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxThat being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage."
"16. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."
A Constitution Bench has, in the case of Mohinder Singh Gill & Anr. vs. the Chief Election Commissioner, New Delhi & Ors.-AIR 1978 SC 85 wherein, validity of an order of the Election Commission issuing direction for re-poll in 13-Ferozepore Parliamentary Constituency after cancelling the earlier poll was under question, their lordships held as under:
(D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 19 "29. Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami (AIR 1952 SC 54) is as to whether the order for re-poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding" and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is 'part of election' and challenging it is 'calling it in question'.
30. The plenary bar of Art. 329 (b) rests on two principles: (1) The per-emptory urgency of prompt engineering of the whole election process without intermediate interruptions by way of legal proceedings challenging the steps and stages in between the commencement and the conclusion. (2) The provision of a special jurisdiction which can be invoked by an aggrieved party at the end of the election excludes other form, the right and remedy being creatures of statutes and controlled by the Constitution. Durga Shankar Mehta (1955 (1) SCR 267: AIR 1954 SC 520) has affirmed this position and supplemented it by holding that, once the Election Tribunal has decided, the prohibition is extinguished and the Supreme Court's over-all power to interfere under Art. 136 springs into action. In Hari Vishnu (AIR 1965 SC 233) this Court upheld the rule in Ponnuswami (supra) excluding any proceeding, including one under Art.
226, during the on- going process of election, understood in the comprehensive sense of notification down to declaration. Beyond the declaration comes the election petition, but beyond the decision of the Tribunal the ban of Art. 329(b) does not bind.
31. If 'election' bears the larger connotation, if 'calling in question' possesses a semantic sweep in plain English, if policy and principle are tools for interpretation of statutes, language permitting, the conclusion is irresistible, even though the argument contra may have emotional impact and ingenious appeal, that the catch-all jurisdiction under Art. 226 cannot consider the correctness, legality or otherwise of the direction for cancellation integrated with re-poll. For, the prima facie purpose of such a re-poll was to restore a detailed poll process and to complete it through the salvationary effort of a repoll. Whether, in (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 20 fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz., the Election Tribunal. That aspect will be explained presently. We proceed on the footing that re-poll in one polling station or in many polling stations, for good reasons, is lawful. This shows that re-poll in many or all segments, all pervasive or isolated, can be lawful. We are not considering whether the act was bad for other reasons. We are concerned only to say that if the regular poll, for some reasons, has failed to reach the goal of choosing by plurality the returned candidate and to achieve this object a fresh poll (not a new election) is needed, it may still be a step in the election. The deliverance of Dunkirk is part of the strategy of counter-attack. Wise or valid, is another matter.
32. On the assumption, but leaving the question of the validity of the direction for re-poll open for determination by the Election Tribunal, we hold that a writ petition challenging the cancellation coupled with re-poll amounts to calling in question a step in 'election' and is therefore barred by Art. 329(b). If no re-poll had been directed the legal perspective would have been very different. The mere cancellation would have then thwarted the course of the election and different considerations would have come into play. We need not chase a hypothetical case."
As per the aforesaid judgements, the legal position which emerges is that the Election Commission (the Election Authority in the present case), can interject in the ongoing election process only if it subserves the election or facilitates the completion of election process and not where it creates impediment or obstructs the election process.
In the present case, by the impugned order, the Election Authority has not only cancelled the electoral rolls prepared by the competent authority; but, after cancelling the election process initiated vide notification dated 6.4.2021, notified fresh election which was impermissible in the backdrop of aforesaid judgements.
(D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) 21 From the conspectus of the aforesaid statutory provisions contained in the Act of 2001 and the Rules of 2003 in the backdrop of judgements referred to hereinabove, this Court has no hesitation in holding that the order of the Election Authority dated 27.8.2021 and its order dated even re-notifying the election process were without jurisdiction, amount to `calling in question the election process' which do not subserve or facilitate the completion of the election and deserve to be quashed and set aside.
Resultantly, these writ petitions are allowed. The order dated 27.8.2021 passed by the Rajasthan State Cooperative Election Tribunal as also the order dated even passed by him re-notifying the election process cancelling the earlier election process initiated in pursuance of notification dated 6.4.2021, are quashed and set aside. The respondents are directed to continue with the election process notified vide order dated 6.4.2021 from the stage it was deferred by the Election Officer vide its order dated 19.4.2021 in the wake of Covid-19. The remaining process be completed within a period of three weeks from today.
(MAHENDAR KUMAR GOYAL),J RAVI SHARMA /119 (D.B. SAW/971/2021 has been filed in this matter. Please refer the same for further orders) (Downloaded on 20/05/2022 at 09:14:18 PM) Powered by TCPDF (www.tcpdf.org)