Patna High Court - Orders
Ram Sanjivan Prasad Yadav vs The State Of Bihar & Ors on 18 September, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12098 of 2014
With
I.A. No.5906 of 2014
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Ram Sanjivan Prasad Yadav, S/o Late Basudeo Rai, R/o Village- Punarwara, P.S. -
Runni Saidpur, Dist. - Sitamarhi.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The Principal Secretary, Co-operative Dept. Govt. of Bihar, Patna.
3. The Registrar, Co-operative Societies, Bihar, Patna.
4. The Principal Secretary, Dept. of Animal Husbandry, Govt. of Bihar, Patna -
cum- Chairman, Co-operative Milk Federation Ltd. (COMFED), Patna.
5. Managing Director, Co-operative Milk Federation Ltd. (COMFED), Patna.
6. The Managing Director, Tirhut Dugdh Utpadak Sahkari Sahyog Sangh Ltd.
(TIMUL), Muzaffarpur.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Chandra Bhushan Das
Mr. Kamalakant Upadhayay
For the Respondent-State : Mr. Amish Jha, AC to AAG14
For the Respondent-COMFED : Mr. Rajeev Ranjan Prasad
Mr. Nillanjan Chatterjee
Mr. Kumaresh Singh
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
3 18-09-2014Heard learned counsel for the petitioner, Mr. Amish Jha, learned Assisting Counsel to Additional Advocate General No.14 for the State and Mr. Rajeev Ranjan Prasad, learned counsel appearing for the respondent nos.5 and 6.
The petitioner is aggrieved by the order passed by the respondent Managing Director, Cooperative Milk Federation Limited as contained in Memo No.2380 dated 14.5.2014, whereby the election of the petitioner to the post of Chairman, Punarwara Dugdh Utpadak Sahyog Samiti Limited, Block- Runni Patna High Court CWJC No.12098 of 2014 (3) dt.18-09-2014 2 Saidpur in the district of Sitamarhi has been cancelled.
It is not in dispute that following an election notified for electing Chairman of the Society in question under the provisions of the Bihar Co-operative Societies Act, 1935 (hereinafter referred to as 'the Act') read with the Rules framed thereunder and the provisions of the Bihar Election Authority Act, 2008 and the Rules framed thereunder that the petitioner was elected to the said post.
The only issue that requires consideration by this Court is whether the respondent-Managing Director has a jurisdiction to unseat an elected Chairman.
The facts of the case briefly stated is that election of the Co-operative Societies in question was initially notified in May,2013 and when the nomination filed by the petitioner for contesting the election to the post of Chairman was rejected by the Returning Officer on 29.5.2013 vide order as contained in Annexure-8. The petitioner moved this Court through CWJC No.11357 of 2013 and vide order passed on 24.6.2013 the order of rejection of his nomination passed on 29.5.2013 was stayed and the authority concerned was directed to accept the surcharge amount as well as to grant him no dues certificate as also to consider his nomination. It is a matter of record that the election Patna High Court CWJC No.12098 of 2014 (3) dt.18-09-2014 3 so notified in absence of a contest was withdrawn and whereafter a fresh election was notified on 1.8.2013 by the Bihar State Election Authority, a copy whereof is placed at Annexure-9. The petitioner filed his nomination afresh on 12.8.2013 and contested the election and was successful therein vide results declared on 22.8.2013. There is no dispute on these facts. Following his election the petitioner withdrew the writ petition and the Writ Court while permitting such withdrawal vide order passed on 24.9.2013 placed on record as Annexure-D clarified that if the petitioner had gained any advantage by way of interim order the same would also be treated to be withdrawn.
It is the case of the petitioner that he has gained no advantage of the interim order rather the order passed on 29.5.2013 whereby his nomination stood rejected lost its relevance on the commencement of fresh election and in which the petitioner filed his nomination which was accepted without objection and thus there is no infirmity to his election on the post of Chairman.
These arguments have been contested by Mr. Prasad on the anvil that deposit of surcharge and obtaining no objection certificate was by virtue of interim order passed by this Court in CWJC No.11357 of 2013 on 24.6.2013. According to Mr. Prasad Patna High Court CWJC No.12098 of 2014 (3) dt.18-09-2014 4 by virtue of withdrawal of such benefit by this Court in its order dated 24.9.2013 placed at Annexure-D the advantages gained by the petitioner stood withdrawn and since the basis for acceptance of deposit of surcharge and issuance of no objection certificate was the interim order passed on 24.6.2013, which stood withdrawn, his initial disqualification would revive and would disentitle him to contest the election.
It is contended by Mr. Prasad that there is no infirmity in the order passed by the Managing Director as impugned in the writ petition, which merely clarifies the legal position that the election of the petitioner is a nullity for he contested the election as a disqualified candidate.
I have heard learned counsel for the parties and I have perused the materials on record.
As I have observed at the outset, the only issue that arises in the present contest is whether even if it is assumed that the election of the petitioner suffers some infirmity, the Managing Director who could have exercised powers of Registrar vested under section 48 of 'the Act'. The answer has to be in the negative for the Managing Director exercises no such powers.
Whether or not the petitioner has drawn advantage of Patna High Court CWJC No.12098 of 2014 (3) dt.18-09-2014 5 the interim order passed by this Court on 24.6.2013 in CWJC No.11357 of 2013 while filing his nomination on 12.8.2013, is an issue to be deliberated in an appropriate proceedings before the proper forum. Whereas it is the opinion of the Managing Director that he has derived such advantage, this position is rebutted by the petitioner and the answer to such contest only lies with the Registrar under section 48 of 'the Act' and could not have been usurped by the Managing Director while passing the impugned order which apparently suffers from the vice of 'Corum non judice'.
Section 10 read with section 11(b) of the Bihar State Election Authority Act, 2008 as well as section 14A (6) of the Bihar Cooperative Societies Act, 1935 leaves no room for doubt that any challenge to an elected representative can only be done by means of election petition before the prescribed authority which, in the present case, would be the Registrar under section 48 of 'the Act'. The rival contentions advanced by the parties before this Court are matters which needs adjudication by the statutory authority and thus this Court would refrain from expressing any opinion for the remedy lies elsewhere.
In the circumstances discussed this Court is in no doubt that the order impugned dated 14.5.2014 passed by the Patna High Court CWJC No.12098 of 2014 (3) dt.18-09-2014 6 respondent Managing Director placed at Annexure-2 to the writ petition is patently illegal and having been passed in exercise of jurisdiction not vested in him, cannot be upheld and is accordingly set aside.
The writ petition is allowed. The interlocutory application is disposed of. .
The order passed in the present writ petition would however not preclude the respondent-Managing Director to take recourse to such remedy as may be available to him in law.
(Jyoti Saran, J) SKPathak/-
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