Madhya Pradesh High Court
Akbar Mohd. Khan And Anr. vs State Of M.P. And Ors. on 4 February, 2002
Equivalent citations: AIR2002MP157, 2002(2)MPHT495, AIR 2002 MADHYA PRADESH 157, (2002) 2 MPLJ 165 (2002) 2 MPHT 495, (2002) 2 MPHT 495
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. Petitioners challenge the holding of elections of Board of Directors of M.P. Co-operative Marketing Federation Ltd.
2. Election of the Board of Directors took place for the period of five years which is the statutory period provided under Section 49 (7-A) of M.P. Co-operative Societies Act, 1960 (for short "the Act of 1960"). This period came to an end on 3-1-2002; the period was extended by the State Government exercising the powers under Sub-section (7-AA) of Section 49 of the Act of 1960 by 12 months from the date of expiry of terms of their respective societies.
3. After expiry of five years which is the original statutory period prescribed under Sub-section 7-A of Section 49 of the Act of 1960, procedure of holding the election was started as per document Annexurc A-13. Initial notice was given on 29-1-2001. As per the notified election programme dated 17-1-2001 the election procedure has commenced; the date of submitting the nomination form was 24-1-2002; scrutiny of nomination had to take place on 27-1-2002; withdrawal of nomination was to be done on 28-1-2002 and election was scheduled for 4-2-2002 and the result is also required to be declared on 4-2-2002 i.e., today. It is stated at the Bar that election has taken place and 32 Directors were elected un-opposed.
4. Learned counsel for petitioners Shri Anil Khare strenuously submits that election has to take place within last 90 days of the extended term. It is his further submission that extension has to be given full effect to which was made exercising the power under Sub-section (7-AA) of Section 49 of the Act of 1960. By holding the election at the threshold of the commencement of the extended period virtually the extended period was cut short, thus, election should have been held only in the month of October, November and December, 2002 which is the period statutory supposed to be the period for holding the election. Learned counsel places reliance on a decision of the Supreme Court in Rajendra Prasad Yadav and others v. State of M.P. and others, AIR 1997 SC 3723 paras 18 and 19 thereof which are quoted below ;--
"18. A conjoint reading of the above referred provisions would manifest the legislative intention that it shall be obligatory on the outgoing Committee of the Society to hold elections prior to the expiry of the term under Sub-section (7-A) or before the expiry of the extended time under Sub-section (7-AA). The outgoing Committee shall apply to the Registrar to hold elections witbin a reasonable time "which shall not be in any case less than ninety days before the expiry of the term of the Committee". Thus, it could be seen that it is the duty of the outgoing Managing Committee of the Society to have its elections held prior to the expiration of the term of the Committee not less than ninety days before expiry of the term of the Committee.
19. Under the first proviso, if the outgoing Committee had resolved and requested the Registrar to hold elections and the Registrar had failed to conduct elections on its request, there is a legislative injunction issued against the Registrar that "he shall not assume charge of the Committee and the members of the Committee shall continue to hold the office". Under the second proviso; if the Registrar fails to conduct elections of the Committee within ninety days from the date of the expiry of the term of the Committee, the Committee of the Society shall appoint Returning Officer who shall conduct the election of the Committee within 180 days from the date of expiry of the term. The combined operation of Sub-section (8) (i) and the second proviso is that though the members of the Committee are entitled, by operation of the first proviso, to continue to hold the office, it is equally obligatory on the part of the Committee that, if the Registrar fails to conduct elections as envisaged hereinbefore, the Returning Officer should be appointed whose duty shall be to conduct elections of the Committee within 180 days before the date of the expiry of the term. By operation of Sub-section (8) (ii) if the members of the Committee having continued to hold the office by operation of the first proviso to Sub-section (8) (i), fails to appoint a Returning Officer under the second proviso and, if the Committee thereby, commits default to hold elections and does not hand over the charge, on expiry of the term under Sub-section (7-A) or extended term under Sub-section (7-AA) to the Registrar or any officer authorised by him on his behalf, they all shall be deemed to have vacated their seats and the Registrar shall assume charge and hold elections as early as possible. Thus, the combined reading of the sections envisages that elections to the Managing Committee shall be held by the Registrar, at the request by the Committee, before expiry of the term of the outgoing Committee within the time schedule prescribed therein. If the Registrar fails to perform the said duty, the Managing Committee, while remaining in office, is enjoined to have the elections conducted within 180 days or at least not less than 90 days before the expiry of the term of the Managing Committee. But if the Committee commits default in conducting the elections, the members of the committee are deemed to have vacated their seats. Thereby, by statutory operation, no Managing Committee remains in office. The Registrar, therefore, should assume charge of the Society. On assumption thereof, while conducting the business of the Society simultaneously he should hold elections as expeditiously as possible so that the Managing Committee elected on democratic principle immediately assumes office and conducts the business of the Society in the manner laid down under the Act, Rules and the bye-laws of the Society and achieves the object of the Society and realises the collective aspiration of the members of the Society."
5. Petitioners further submit that it was not brought to the notice of the Registrar that period stood extended, thus, Registrar erroneously directed holding of election. Petitioner further submits that voter list was not properly prepared; his name was not mentioned in the voter list. He raised an objection that his name should have been mentioned in the voter list.
6. After hearing learned counsel for the parties, I am of the opinion that writ petition has no merit and it deserves summarily dismissal.
7. The period prescribed under Sub-section (7-A) of Section 49 of the Act of 1960 is five years. Erstwhile State of M.P. was re-organised and the successors State of M.P. and State of Chhattisgarh were created w.e.f. 1-11-2000; taking into consideration the difficulties which may arise on the basis of division of assets and liabilities, allocation of staff, that period was extended by the State Govt. of respective committees of All Non-Agricultural, Non-Credit Apex Societies exercising powers under Sub-section (7-AA) of Section 49 of the Act of 1960 by notification dated 28th October, 2000 for a period of 12 months from the date of expiry of term. Election has to be held as per clause (i) of Sub-section (8) of Section 49 of the Act of 1960 before expiration of the term under Sub-section (7-AA) or extended term under Sub-section 7-AA. The outgoing committee shall apply to the Registrar for holding election within a reasonable time which shall not be in any case less than ninety days before expiration of the term of the committee. There is no bar under Sub-section (8) of Section 49 on conduct of election any time during extended period. The original period of five years has already expired.
8. Learned counsel submits that last 90 days is the period in which the election is to be held is not acceptable as an election can be held at any time within the extended period. Election is required to be held before expiration of the period extended or the original period in case it has not been extended. Since the Board of Directors have already enjoyed the period which is statutorily fixed of 5 years for which the election was held and fresh election process was started and fresh election has been completed within the extended period, it cannot be said that the election as held is illegal in any manner. Underlying idea of extension was to get rid of difficulties which may arise on reorganisation of State now after 1 year 3 months no such difficulty is pointed out requiring postponement of election. The extension was for the purpose which stand achieved. In a democratic set up election on completion of normal tenure is the rule which has already been achieved by holding election in extended term.
9. With respect to dispute that name should have been included in the voter list, suffice it to say that remedy is available to the petitioner to raise the election dispute before the appropriate authority under Section 64 of the Act of 1960. Petitioners are free to raise all the questions in the election petition and it is settled law that once an election has been held, it should be challenged by way of raising the dispute under Section 64 of the Act of 1960.
10. In Shiv Narain Pandey v. Satish Tiwari, 1998 RN 178, this Court held that election should be allowed to be completed peacefully without any interruption from any forum. In Bhawani Shankar Sharma v. State of M.P., (1998) 2 MPLJ 20 (DB), the dispute related to earmarking of the particular constituency writ was held to not maintainable as remedy lies in filing election dispute.
11. As per proviso to Sub-section (2) of Section 64 of Act, legislative intention is clear of completion of election unhindered; it is the view of this Court in Radheshyam v. Chairman, Sahkari Samiti, AIR 1976 MP 156. Dispute as to voter list, nomination paper is to be raised in election dispute under Section 64 not in writ petition is consistent view taken in Radheshyam v. Chairman, Sewa Sahkari Samiti, 1989 MPLJ 208 :1989 RN 99, Ramdeo Sharma v. Dy. Registrar, Gwalior, 1993 RN 18, Ram Swaroop, Dohare v. Ayukta Sahkarita, AIR 19% M.P. 187, Jagdish Sharma v. State of M.P., 1996 RN 60, and Suresh Chandra Jain v. State ofM.P., 1996 RN 131.
12. Petitioners are free to raise election dispute. I find no merit in the writ petition. It is dismissed. Cost on parties.