Allahabad High Court
Ram Kumar vs Commissioner And Registrar ... on 21 November, 2019
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 3 Case :- MISC. BENCH No. - 32051 of 2019 Petitioner :- Ram Kumar Respondent :- Commissioner And Registrar Co-Operative U.P.Lucknow And Ors. Counsel for Petitioner :- Prashant Kumar,Sarvesh Kumar Tiwari Counsel for Respondent :- C.S.C.,Gaurav Mehrotra Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the petitioner, learned Additional Chief Standing Counsel for opposite parties no.1 and 2 and Sri Gaurav Mehrotra, learned counsel for opposite parties no.3 and 4.
Learned counsel for the petitioner submits that there is a society known as Matsya Jivi Sahkari Samiti, Imli Pur Patseni, Block Kachauna, Disrtrct Hardoi ( herein afer refered as ' Co-operative Society"). The opposite pary no.3/ Chief Election Commissioner, Co-operative Societies,Lucknow issued the election programme and as per the same on 04.11.2019, opposite party no.5/ Election Officer,Matsya Jivi Sahkari Samiti, Imli Pur Patseni, Block Kachauna, Disrtrct Hardoi issued a tentative list of electoral roll/vorter list in order to conduct the election in the society.
Learned counsel for the petitioner submits that petitioner and two other persons have submitted their objection to the tentative list of electoral roll. The opposite party no.5 vide order dated 08.11.2019 rejected the objection of the petitioner by observing that the petitioner was expelled from the membership because he was absent in the meeting dated 10.02.2018 .
It is further submitted by learned counsel for the petitioner that the said action on the part of opposite party no.5 thereby rejecting the petitioner's objection is contrary to the provisions as provided under U.P. Co-operative Societies Act,1965 as well as the rules framed there under. In view of the said factual backgrounds petitioner has approached this Court by filing present writ petition with the prayer that the impugned order dated 08.11.2019 passed by opposite party no.5 may be quashed.
Sri Gaurav Mehrotra, learned counsel for opposite parties no. 3 and 4 has raised a preliminary objection to the effect that in the present case election process has already been started so in view of the laid down by Hon'ble the Apex Court in the case of Sri Sant Sadguru Janardan Swami ( Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another Vs. State of Maharashtra and others (2001) 8 SCC 509 as well as the order dated 1.11.2019 passed by a Division Bench of this Court in Writ Petition No.30103 (MB) of 2019 ( Pratap Singh Gariya Vs. State of U.P. and others), which on reproduction reads as under, the writ petition is liable to be dismissed.
"Notice on behalf of opposite parties no.1, 2 and 4 has been accepted by learned Chief Standing Counsel, whereas Mr. Gaurav Mehrotra, Advocate has accepted notice on behalf of opposite parties no.3, 5 and 6.
Heard learned counsel for parties and perused the records.
The instant writ petition has been filed challenging the election notice dated 18.10.2019 issued by opposite party no.6/District Assistant Cooperative Election Officer/Assistant Commissioner & Assistant Registrar, Cooperative Societies, Lucknow, whereby the election of Central Bank Employees Cooperative Credit Society Ltd., to fill up the existing vacancies, is scheduled to be held.
Learned counsel for the petitioner submits that elections have been notified without carrying out the delimitation/determination of constituencies on the basis of new regions revised by the Central Bank of India in Uttar Pradesh.
A preliminary objection regarding maintainability of writ petition has been raised by Mr. Gaurav Mehrotra, learned counsel for opposite parties no.3, 5 and 6 on the ground that the grievance of the petitioner with respect to the delimitation was raised by him before the authority concerned which was rejected vide order dated 22.8.2019. The said order has been communicated but the same has not been challenged till date. It is also submitted that in view of law laid down by this Court in the case of Mahesh Singh Vs. State of U.P. and others; [2013 (9) ADJ 695 (DB)] as well as Apex Court judgment in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another Vs. State of Maharashtra and others; (2001) 8 SCC 509 the writ petition would not be maintainable after issuance of notification for election. It is also submitted that the petitioner has not disclosed as to how he is aggrieved and what prejudice is being caused to him in case the bye-election is held to fill up the existing vacancies in the society.
We have considered the submissions made by parties' counsel and gone through the records.
In case the petitioner is aggrieved for the reason that without delimitation of the constituencies the election could not be held, then the petitioner could have approached this court prior to issuance of notification, moreover, the order by which his request for delimitation was considered and rejected is not under challenge.
In this view of the matter, we do not find any reason to grant indulgence in the matter at this stage. Writ petition is dismissed."
Sri Gaurav Mehrotra, learned counsel for the petitioner further submits that once the election process has been started then in that circumstances the relief as claimed by the petitioner cannot be granted under Article 226 of the Constitution of India and if the petitioner has any objection he can raised after the election process is finished.
We have heard learned counsel for the parties, who are present today and gone through the record.
Needless to mention herein that once the election process having started, it must come to its logical conclusion by declaration of result of the election, thereafter, the aggrieved person may challenge the election by filing election petition in accordance with law. Thus, approach to Court at intermediate stages in the election is bound to result in an office either remaining vacant or being occupied by a person whose entitlement to hold the office has ceased. Neither is a happy situation. It is, therefore, desirable that the election process should end as early as possible and the declaration of result should not be deferred through interim orders passed. In taking this view I have the support of authorities which may be immediately noticed.
In the case of Basant Prasad Srivastava and Anr. v. State of U.P. and Anr. (1993) 2 UPLBEC 1333, this Court held as follows:
"When once the election process starts, it must come to its logical conclusion. Once it comes to its logical conclusion by declaration of result of the election the aggrieved person may challenge the election by filing election petition or civil suit in accordance with law. In such a proceeding the election may not be set aside if the alleged illegality or irregularity has not materially affected the result of the election. Approach to Court at intermediate stages in the election is bound to result in an office either remaining vacant or being occupied by a person whose entitlement to hold the office has ceased. Neither is a happy situation. It is, therefore, desireable that the election process should end as early as possible and the declaration of result should not be deferred through repeated interim orders passed from time to time."
In the case of Committee of Management, Sri Radha Krishna Sanskrit Mahavidyalaya and Ors. v. Deputy Director of Education, Gorakhpur and Ors., (1950-51) 4 AIE 155 the Division Bench of this Court held as follows:
"There are large number of educational institution as and the functioning of such institutions are controlled and managed by a Committee of Management. Such Committee is constituted under the rules, regulations or certain Administrative schemes. The term of such Committee of Management is limited by time. The election process inter alia involves the determination of the members who can vote and participate in the election, nomination, preparation and publication of programme, scrutiny and declaration of result. In case, at the intermediate stage of the election process the High Court entertains petitions under Article 226 of the Constitution it will further delay the election process. Secondly, the disputed question of fact as to who are the members and other related matters cannot be decided in the writ jurisdiction. A person who has any grievance can take recourse to the remedy provided under the Statute, Rules or Regulations or by filing suit in the competent Court of law."
In the case of Committee of Management, Pt. Jawahar Lal Krishak Inter College Mahuabari, Lar Road, Deoria and Ors. v. Deputy Director of Education and Ors., (1996) 2 UPLBEC 1245 , learned single Judge of this Court held as follows:
"The question of validity of the election is dependant upon several factors including the validity and genuineness of the members inasmuch the election held with the help of invalid and fake members cannot be said to be valid election. Therefore, in any case, when the question arises as to whether the members who participated in the election were or were not the members of the general body, the Deputy Director of Education is under obligation to decide the said question before recording any finding on the question of validity of the election. The validity of election is to be determined in accordance with the provisions of Scheme of Administration."
In the case of Tribhuwan Prasad at Present Manager Committee of Management, Keshav Ram Arya Adarsh Balika Higher Secondary School, Azamgarh v. Deputy Director of Education 1st, VIIth Region, Gorakhpur and Ors., ( (1996) 1 ESC (All) 449 learned single Judge of this Court held as follows:
"List of members given by D.I.O.S. was made basis by authorized controller, concluded election of office bearers of Committee of Management Representation of contesting opposite parties about incorrectness of list of members regarding exclusion of certain persons from becoming members not to be entertained once election process had already started- Held, D.I.O.S. Not justified in passing orders during process of election. D.I.O.S. directed to pass appropriate orders about approval or disapproval of Committee of Management elected in the election conducted by authorised controller.
The O.P. Pramod Gandhi or any other person, if aggrieved by the election held by the authorised controller, may seek such other legal remedy before the appropriate civil court for adjudication, about the validity of members of the Committee of Management, if so advised. Neither the D.I.O.S. nor the High Court under Article 226 of the Constitution is supposed to enter into the controversy about the genuineness, correctness and validity of list of members."
The said view was further reiterated by Division Bench of Court in the case of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and others, AIR 2001 SC 3982.
Keeping in view the above settled proposition of law once the election process has been started then the relief as claimed by the petitioner in the instant case cannot be granted and if the petitioner has any grievance in the matter in question he can approach when the election process is finished.
For the foregoing reasons, the writ petition is dismissed.
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(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 21.11.2019 dk/