Madhya Pradesh High Court
Vivek Dixit vs The State Of Madhya Pradesh on 27 November, 2019
Author: Chief Justice
Bench: Ajay Kumar Mittal, Chief Justice
W.A. No.1834/2019
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HIGH COURT OF MADHYA PRADESH : JABALPUR
(Coram: Hon'ble Shri Justice Ajay Kumar Mittal, Chief Justice
Hon'ble Shri Justice Vishnu Pratap Singh Chouhan, Judge)
W. A. No.1834/2019
Vivek Dixit .................Appellant
Vs.
State of M.P. and others ........... Respondents
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Appearance:
Shri Anil Lala, Advocate for the appellant.
Shri H. K. Upadhyay, Govt. Advocate for the respondents/State.
Shri Lalji Kushwaha, Advocate for Respondent No.5.
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O R D E R (Oral)
(27.11.2019) Per : Ajay Kumar Mittal, Chief Justice In this intra Court appeal filed under Section 2(1) of the Madhya Pradesh Uchchya Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 challenge has been made to an order passed by the learned Single Judge in W.P. No.551/2019 on 12.9.2019 whereby the writ petition filed by the appellant/petitioner has been dismissed.
2. Briefly stated, the facts of the case are that the petitioner- appellant is a founder member of the Cooperative Housing Society known as Gaurav Grih Nirman Sahkari Samiti Maryadit', Bhopal (hereinafter referred to as "the Society") registered under the M.P. Cooperative Societies Act, 1960 (hereinafter referred to as "the Act of 1960"). The election of the Board of Directors of the Society was conducted and requisite formalities as required under Rule 49 of the M.P. Cooperative Societies Rules, 1962 (for W.A. No.1834/2019
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short "the Rules of 1962") were being completed. In compliance of sub-rule (3) of Rule 49 of the Rules of 1962, Respondent No.3 published a tentative voter list of the members of the Society and objections were invited. The petitioner-appellant raised objections as the voter list was found faulty because it contained the names of the persons who were not the members of the Society. The objection was also raised before the Respondent No.3 but in vain. Thereafter, the petitioner-appellant approached the Respondent No.2 for invoking powers under Section 80-A of the Act of 1960. Since no action was taken on the complaint made by the petitioner--appellant, he preferred a writ petition before this Court bearing W.P. No.1623/2018 which was disposed of on 24.1.2018. The learned Single Judge disposed of said writ petition directing the respondents to decide the objection raised by the petitioner-appellant before the election takes place. In compliance thereto the Respondent No.2 conducted an enquiry and submitted its report. As per the said report certain irregularities were found in the preparation of the voter list and also in the election of the Respondent No.5 as Chairman. Thereafter, Respondent No.2 passed an order on 29.6.2018. A revision was preferred before the Cooperative Tribunal, Bhopal against the order dated 29.6.2018 who, in turn, vide order dated 26.11.2018 decided the revision holding that the order passed by the Respondent No.2 was without jurisdiction and partly allowed the revision setting aside the order of Respondent No.2 and directing the parties to appear before the Election Officer where the said officer after giving opportunity of hearing to them and scrutinizing the list of members and holding enquiry was to take decision in respect of conducting the election. The Election Officer, after hearing the parties observed that all W.A. No.1834/2019
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proceedings regarding registration of election were over and final list of the members had been published and the administrator had been appointed. It was also observed that the Election Officer had no authority to determine the validity of the members' list and also the members of the Society as the same was beyond his jurisdiction. Being aggrieved by the said order, the appellant preferred writ petition bearing W.P. No.551/2019 which was dismissed vide order dated 12.9.2019 holding that since the order passed by the Registration Officer dated 22.12.2018 had not been assailed by the petitioner-appellant, the writ Court under Article 226 of the Constitution of India will not interfere in the matter and, therefore, declined to quash the decision of the Tribunal. Further, in view of availability of the statutory remedy of appeal to the petitioner-appellant and when the election process was almost completed and certificate for declaration of result was required to be issued, the learned Single Judge refused to interfere and dismissed the writ petition. Hence, the present appeal has been filed by the appellant.
3. Learned counsel for the appellant submitted that the learned single Judge has erred in recording the finding that this Court while disposing of W.P. No.1623/2018 has not directed the Joint Registrar to initiate the enquiry but the directions were issued to the authority which is competent to do so. It was further submitted that Section 80-A of the Act empowers the Registrar to initiate the inquiry and in terms of the third proviso thereof, such powers of the Registrar shall not be delegated to an officer not below the rank of the Joint Registrar. Therefore, the finding recorded in this regard that the Registration Officer was competent to hold the inquiry, cannot be allowed to be sustained. It was argued that the fact that W.A. No.1834/2019
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the jurisdiction of the Registrar under Section 80-A of the Act was invoked only after finding that the illegality was being permitted by the Registration Officer but the learned single Judge misunderstood the second order passed by the Respondent No.4 to be an order passed by the Registration Officer and referred to Rule 49-C(5) (e) of the Rules. Learned single Judge ought to have appreciated that it is in pursuance and compliance of the order passed by this Court in W.P. No.1623/2018 that the enquiry was to be completed wherein it was found that Respondent No.5 in illegal manner was trying to take control over the Society. Accordingly, it was prayed that this appeal may be allowed by setting aside the order impugned in this appeal.
4. On the other hand, learned counsel for the respondents submitted that the writ petition had been rendered infructuous because after completion of the entire process, the Board of Directors have been declared elected. Therefore, there is no illegality in the order passed by the learned Single Judge in dismissing the writ petition. In support of his contention, learned counsel has placed heavy reliance upon the decisions of the Supreme Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others (2001) 8 SCC 509; Prakash Motiram Chavan and others v. Harichand and others (2015) 16 SCC 448; and also a decision of this Court reported in 2018 (1) Revenue Order 233 (Prathmik Krishi Sakh Sahakari Samiti Maryadit Jigna, Datia Vs. State of M.P. and others.
W.A. No.1834/2019
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5. Having heard learned counsel for the parties, we are of the considered opinion the present appeal deserve to be dismissed.
6. The learned Single Judge while dealing with the argument of learned counsel for the appellant regarding the powers of the Registration Officer has concurred with the findings of the Tribunal and concluded as under:-
"7. The petitioner, by the instant petition, has challenged the order Annexure-P/6 dated 26.11.2018 passed by the Cooperative Tribunal whereby, the order passed on 29.06.2018 (Annexure- P/5 by the Joint Registrar has been held without jurisdiction. The learned counsel for the petitioner submits that the respondent No.5 participated in the proceedings initiated by the Joint Registrar in pursuance to the direction issued by the High Court in W.P. No.1623/2018 and, therefore, he could not have challenged the order before the Tribunal. However, the arguments advanced by the learned counsel for the petitioner is not acceptable for the reason that the High Court has not directed the Joint Registrar to initiate the enquiry but it was impliedly a direction for the authority which is competent to initiate the enquiry. As per the Tribunal, it is the respondent No.3, i.e., the Registration Officer who can initiate the enquiry under Section 80-A of the Act, 1960. Therefore, instead of Joint Registrar, the Registration Officer should have initiated the enquiry but in absence of the same it is an officer who is subordinate to the Registrar who can proceed under Section 80- A of the Act of 1960 though, he did not have any jurisdiction to do so. Accordingly, the order passed by the Tribunal does not suffer from any infirmity. The Tribunal has also observed that before the Joint Registrar the respondent No.4 has raised an objection regarding maintainability of the proceedings but that was rejected by the authority saying that in pursuance to the direction of the High Court he was conducting the enquiry whereas there was no specific direction for a particular authority to conduct the enquiry but it is implied that enquiry had to be conducted by an authority competent to do so. In view of the W.A. No.1834/2019
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same, I do not find any illegality and infirmity in the order passed by the Tribunal therefore, that order is not liable to be set aside as the contention raised by the learned counsel for the petitioner has no substance......."
No illegality could be shown in the aforesaid conclusion of the learned Single Judge. Therefore, this contention of the appellant has rightly been rejected by the learned Single Judge.
7. Next, the argument of the appellant that learned Single Judge has committed mistake in holding that the second order passed by the Respondent No.4 is the order passed by the Registration Officer and referred to Rule 49-C(5) (e) of the Rules to hold that the petition is not maintainable is stated to be rejected. The learned Single Judge further observed that the Registration Officer has refused to interfere in the voter list prepared for the reason that the same has attained finality. The order passed by the Registration officer is an appealable order and the appeal can be filed within a period of three days from the decision of the Registration Officer and if the said appeal is not decided by the appellate Authority within a period of seven days then the voter list finalized by the said Officer shall be binding and absolute.
8. The Supreme Court in the case of Shri Sant Sadguru Janardan Swami (supra) has held as under -
"12. In view of the our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll.W.A. No.1834/2019
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It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the Election Tribunal."
In the case of Prakash Motiram Chavan (supra) the Supreme Court has observed that the election process already commenced, continued and the elections were over, if any party is aggrieved by the outcome of the election, it will be open to the parties to pursue the same before the appropriate forum.
9. Having thus considered, we are not inclined to interfere with the findings recorded by the learned Single Judge holding that no writ shall be issued for quashing the order of Registration Officer in absence of any challenge to it when the election process was complete. Further, the petitioner in case occasion so arises, would be at liberty to call in question the election by invoking Section 64(2)(v) of the 1960 Act. In the event thereon, any observation made herein above will not come in the way of decision of election petition on merit.
10. In view of the aforesaid, the present appeal is devoid of any merit and the same is hereby dismissed.
(Ajay Kumar Mittal) (Vishnu Pratap Singh Chouhan)
Chief Justice Judge
Anchal
Digitally signed by
ANCHAL KHARE
Date: 2019.12.12
11:50:31 +05'30'