Skip to content


Anant Singh and anr. Vs. the Registrar, Co-operative Societies, Bhopal and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. Nos. 1492 and 1575 of 1984
Judge
Reported inAIR1985MP65
ActsConstitution of India - Article 226; Madhya Pradesh Cooperative Societies Act, 1961 - Sections 64
AppellantAnant Singh and anr.
RespondentThe Registrar, Co-operative Societies, Bhopal and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateRajendra Tiwari, ;R.K. Gupta and ;N.C. Jain, Advs.
DispositionPetition dismissed
Cases ReferredBrij Bihari Gupta v. L.L. Khara
Excerpt:
.....bodies such as, municipalities, panchayats and the like, however, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. panchayats act, 1962, which provides for an adequate remedy, namely, the remedy of an election petition to be presented after the election is over, for all grievances whether grounded on the ultimate result of the election or upon any interlocutory order passed in the process of election, where that remedy is available, it would not be proper for the high court to exercise its undoubted powers under articles 226 & 227 of the constitution..........of president including the respondent shri k.b.l. guru. the contest was between the petitioner and shri guru as the other two contestants had withdrawn but the result was not declared in view of the stay granted in the other petition. shri guru was twice elected as president of the bank, the first term being from 1971 to 1974 and the second term from 1974 to 1977 and, as such, he is not entitled to hold the office or get reelected for more than 2 consecutive terms or for a continuous term of 7 years whichever is less till a period equal to one full term has expired under section 48-a (4) of the act. the tenure of the directors elected to the bank is 3 years from the date of their election and an objection was filed before the returning officer that he is disqualified from being.....
Judgment:

C.P. Sen, J.

1. By this Order M.P. No. 1575 of 1984 Pritamsing v. Shri Kunjbihari Lal Guru & others is also disposed of. In the first petition the election of Shri Dharamchand Jain and Shri Kunjbihari Lal Guru as Directors of the District Co-operative Central Bank Ltd is under challenge and also rejection of the nomination paper of petitioner No. 2 Hanuman Prasad Pathak for election as Director while in the second petition eligibility of Kunjbihari Lal Guru as President of the said Bank is under challenge.

2. The District Co-operative Central Bank Ltd. is a Central Co-operative Society as defined by Section 2(c-1) of the M.P. Co-operative Societies Act. I960. Several primary cooperative societies in the Damoh district are the members of the Bank. There are resource Societies of different categories which form group d. There are Marketing societies which form group [k- and there are also one group of other societies which form group x- There are 7 blocks in the Bank and from each block 2 directors from Resource Societies are elected i.e. from group e-. In all 2 Directors are elected from group and one Director from group [k-. The President of the District Cooperative Land Development Bank Ltd. is the ex-officio Director of the Bank. There are other ex-officio Directors, namely. Collector or his nominee. Deputy Director of Agriculture, Assistant Registrar, Co-operative Societies and the Managing Director or the Manager of the Bank, Shri R.K. Dube, Sub-Divisional officer, was appointed the Returning Officer by the Collector for holding election of the Directors. The election was held on 4-6-1984. Petitioner 1 Anantsingh and respondents 8 & 9 Seth Dharmachand Jain and Shri K.B.L. Guru were elected. The result was declared on 5-6-1984. Petitioner 2 Hanuman Prasad Pathak contested but his nomination paper was rejected as he was found to be a defaulter. M.P. 1492/84 has been filed by these two petitioners on 11-6-1984 and the declaration of result of the election of President and Vice-President was stayed by this Court on the same day. However, it appears that elections were held on 13-6-1984 but in view of the stay order declaration of the result was withheld. These two petitioners have challenged, the nomination of Shri Dalchand Rai on the ground that he represented the Large Scale Cooperative Society, Ghatera Banwar in Jabera Block, 92 members of that society were in arrears and Rs. 67,660.75 p. was also outstanding against the Society for more than 12 months and, as such, the Society or its representatives are disqualified under Section 50-A of the Act. The President of the District Cooperative Land Development Bank, Damoh, is also an ex officio Director of the Bank. Since the Board of Directors of the Development Bank stands superseded under Section 53 of the Act and the Registrar has appointed persons to manage the affairs of the Society, Shri Gopaldas Choudhary was appointed President of the Committee. However, only the duly elected President of the Land Development Bank can become ex officio Director and, as such, Shri Choudhary could not have cast his vote in the election of the Director nor he is entitled to participate in the election of the President and Vice-President of the Bank. Petitioner 2 was a representative of the Large Scale Co-operative Marketing Society, Bansatarkheda and he had filed his nomination paper for being elected as one of the Directors of the Bank. His nomination paper was rejected by the Returning Officer on 28-5-1984 on the ground that he was indebted to Damoh Marketing Society and was disqualified under Section 50-A although he had not taken any loan but made certain purchases and the amount outstanding was paid on 28-5-1984 itself. Since his nomination paper has been rejected, Shri Dharmchand Jain and Shri K.B.L. Guru have been declared elected as Directors unopposed from that Block. The petitioners therefore, challenged the election of Dalchand Rai, rejection of nomination of Hanuman Prasad Pathak and consequently election of Seth Dharamchand Jain and Shri K.B.L. Guru, and the competency of Shri Choudhary to participate in the election as ex officio Director of the Land Development Bank. M.P. No. 1575 of 1984 has been filed by Pritamsingh who is one of the contestants for the post of presidentship of the Bank, he is one of the elected Directors of the Bank as per result declared on 5-6-1984. There were, four contestants for the post of President including the respondent Shri K.B.L. Guru. The contest was between the petitioner and Shri Guru as the other two contestants had withdrawn but the result was not declared in view of the stay granted in the other petition. Shri Guru was twice elected as President of the Bank, the first term being from 1971 to 1974 and the second term from 1974 to 1977 and, as such, he is not entitled to hold the office or get reelected for more than 2 consecutive terms or for a continuous term of 7 years whichever is less till a period equal to one full term has expired under Section 48-A (4) of the Act. The tenure of the Directors elected to the Bank is 3 years from the date of their election and an objection was filed before the Returning Officer that he is disqualified from being re-elected as President but the objection was not considered by the Returning Officer and he was permitted to contest the election. Since the elected body of the Bank was superseded by the State Government and was being managed by a body nominated by the Government, the period during which the nominated body functioned has to be overlooked in considering the period of one full term and it has to be held that the term of the President to be elected is in continuation of the last term and, therefore, the petitioner claimed that the nomination of Shri Guru be declared invalid and the petitioner being the only contestant, he be declared to be duly elected President of the Bank. This petition was filed on 19-6-84.

3. One set of return has been filed by the respondents 1 to 3, another set by respondents 5 & 7 and the third set by respondents 8 & 9 while respondents 4, 6 and 10 have filed separate returns. It appears that the respondent No. 11 has not filed his return though he was subsequently joined as a party. More or less their submissions are similar. In M.P. No. 1575/84 separate returns have been filed by each of the three respondents and their pleas are also similar. In both the petitions there is a preliminary objection that there is an alternative remedy under Section 64 of the Act by raising a dispute before the Registrar or his nominee regarding the election. On merits, it is contended that Dalchand Rai has been validly elected, he is not a defaulter. Dalchand Rai was a representative of the Large Scale Co-operative Society and the name of the Society was not included in the voters' list. The Society represented before the Returning Officer that it has taken proceedings under Sections 84 & 85 of the Act against its defaulting members and so the Society is not a defaulter in view of second proviso to Rule 45 (3) and, therefore, the name of the society was included in the list. The certificate which has been issued by the Manager of the Bank showing the society to be a defaulter was unauthorised and he wrongly showed the society to be a defaulter. Shri Gopaldas Choudhary was the ex officio Director of the Development Bank and was entitled to participate in the election and though he was present during the election, he voluntarily did not cast his vote as he was advised not to do so as per instructions from the Registrar. So this question is not of any relevance. Petitioner No. 2 Hanuman Prasad Pathak was a defaulter. Certificate of default was produced before the Returning officer at the time of scrutiny which took place at about 9 a.m.. Nobody appeared on behalf of petitioner No. 2 to show that he was not a defaulter. In fact, the dues were paid by Shri Pathak at about 12.30 p.m. after his nomination paper was already rejected Being a defaulter, his nomination has been rightly rejected under Section 30-A. Seth Dharamchand Jain and K.B.L. Guru were declared unopposed as Directors from Jabera Block. In the second petition, it is contended that Shri Guru did not complete two terms as elected President because his second term was terminated by Government order dt. 26-11-1977 with effect from 28-11-1977, so he having not completed two full terms, he was entitled to stand for re-election for the post of President Besides, as the elected body of the Bank was superseded and a nominated body functioned since Nov. 1977 till the date of election, a full term of 3 years has already lapsed and there is no impediment for Shri Guru to contest the re-election for the post of President. Besides, the provisions of Section 48-A and Section 49 remained stayed by virtue of the order of the State Government under Section 91 of the Act in respect of several societies including the Bank since 1977 (January) to December 1983. Bar of Section 48-A (4) was not applicable to the Bank.

4. It is necessary to decide the preliminary objection first before considering the petitions on merits. According to the learned counsel for the petitioners, the dispute in both these petitions is not covered by Section 64 of the Act inasmuch as the parties to these petitions are not those who are mentioned in Section 64 (1) of the Act though the dispute regarding election of the Directors and the President of the Bank may be covered under Clause (v) of Section 64 (2). The learned counsel for the respondents on the other hand cited several decisions of this Court holding that an election dispute under the Cooperative Societies Act is covered by Section 64 and the remedy is to approach the Registrar by raising a dispute and not by filing a petition under Article 226 of the Constitution. Section 64 (1) provides that notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution, management or business of a society or the liquidation of a society shall be referred to the Registrar by any of the parties to the dispute if the parties thereto are among the following: --

(a) .....

(b) a member, past member or a person claiming through a member, past member or deceased member of a society or of a society which is a member of the society. Sub-section (2) provides that for the purpose of Sub-section (1), a dispute shall include : (v) any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society : provided that the Registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of the results. The question is whether the present disputes are covered under these two clauses of Sub-sections (1) & (2) of Section 64. There can be no doubt that in order to attract Section 64, two conditions have to be fulfilled (1) that the dispute must be touching the constitution, management or business of the society or the liquidation of the society and (2) the parties to the dispute must be those given in Sub-section (1). Admittedly, the petitioners and respondents Seth Dharamchand Jain, Shri Guru and Shri Dalchand Rai are the representatives of the respective societies which societies are the members of the District Co-operative Central Bank Ltd. Damoh. Therefore, it can be said that the dispute is between the members or persons claiming through, the members and comes within the category of persons mentioned in Clause (b) of Section 64 (1). The present dispute regarding election of the Directors or President of the Bank is clearly covered under Section 64 (2) (v) and this, in fact, is not being questioned. Under this clause, any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society is a dispute for the purpose of sub-sec (1). Evidently, Directors and the President of the Bank are officers of the society as they are elected to give direction in regard to the business of the society.

5. It is true that this Court in Indore Z. S.B. Bank v. Dy. Registrar 1971 Jab. LJ 650 had held that election of delegates is not a dispute falling under Section 64 because the delegates are not officers, but since then Clause (v) of Section 64 (2) has been amended and now the dispute regarding election of the representatives of the society is also included in this clause and that decision is no longer a good law. Therefore, the petitioners have got an efficacious alternative remedy of raising a dispute before the Registrar or his nominee. It is true that under the proviso to Clause (v) such a dispute could not be raised till the declaration of the result but this is understandable because the election process having already started, the same has to be allowed to be completed and there should be no interference during election. The remedy would be to raise a dispute after the election is over. So normally a petition under Article 226 is not to be entertained unless there are exceptional circumstances under which the remedy under Section 64 may not be adequate, just as some provision of the enactment or the rules are ultra vires of the. Constitution. A Full Bench of this Court in Malam Singh v. Collector, Sehore 1971 MPLJ 531 : (AIR 1971 Madh Pra 195) while considering the provisions of M.P. Gram Panchayats Act, 1962 held that though there is no constitutional bar for exercise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like, however, as it is desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if the alternative remedy of an election petition is available. Thus, in view of the provisions of the M.P. Panchayats Act, 1962, which provides for an adequate remedy, namely, the remedy of an election petition to be presented after the election is over, for all grievances whether grounded on the ultimate result of the election or upon any interlocutory order passed in the process of election, where that remedy is available, it would not be proper for the High Court to exercise its undoubted powers under Articles 226 & 227 of the Constitution for interfering with an interlocutory order passed during the process of election, save in very exceptional circumstances. The Supreme Court while . considering a case under U.P. Municipalities Act 1916, in Nanhoo Mal v. Hire Mal AIR 1975 SC 2140 held that the election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by the U.P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. An election petition is to be presented after the election is over and there is no remedy provided at any intermediate stage. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances, there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. The Supreme Court in K.K. Shrivastava v. B.K. Jain AIR 1977 SC 1703 held that it is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled, limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition, it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a writ petition will lie, is a fallacious argument. It is true that in Bar Council of Delhi v. Surjeet Singh AIR 1980 SC 1612 the Supreme Court did interfere with the election of the Delhi Bar Council because Rule 3 (j) proviso of the Bar Council of Delhi election Rules was found ultra vires and invalid and the remedy of election petition was not an adequate remedy. The view we are taking finds support from a decision of the Indore Bench of this Court in Rajendra Kumar v. State of M. P. M.P. No. 943/83 decided on 21-11-1983 (reported in 1984 CTJ 232 holding that by virtue of Section 64 (1) a dispute relating to elections is required to be referred to the Registrar of Co-operative Societies under Sub-clause (v) of Sub-section (2) and there should be no interference in the process of election after its commencement It is true that in that case the question as to who should be the parties to the dispute in order to attract Section 64 was neither raised nor considered. Obviously, the dispute was between the members of the society regarding election of representatives and the delegates of the society. This decision finds further support from the recent decision of this Court in Phool Singh v. Assistant Ragistrar, Co-operative Societies, Raisen M.P. No. 2649 of 1983, D/- 6-1-1984, that in view of the decision of the Supreme Court in Nanhoo Mal v. Hira Mal (supra) and the Full Bench decision of this Court in Malam Singh v. Collector, Sehore (supra) as also for the further reason that the present petition involves certain disputed questions of fact, this petition does not deserve to be entertained. The petitioners have a remedy of raising a dispute under Section 64 of the Act In the present case also deputed questions of fact are involved as to whether the petitioner 2 was a defaulter and whether the society represented by respondent 11 was also a defaulter. There is also further disputed question whether Shri Guru had completed two terms as a President. The petitioners have not placed any material to show the exact period for which Shri Guru functioned as a President for his second term out of his full term of 3 years. It is true that this Court in Brij Bihari Gupta v. L.L. Khara 1976 MPLJ 302 : (AIR 1976 Madh Pra 156) did interfere in the election of Director in a Cooperative Society by holding that the nomination paper of the petitioner was wrongly rejected but this Court did observe that it is a different matter that the Court may not entertain such a petition and direct the petitioner to approach the Registrar under Sub-section (1) of Section 64 after the election process is completed and the result declared The Court set aside the election on the ground that the petitioner was already admitted and stay granted. However, the Full Bench of this Court and the Supreme Court have held that only in exceptional and extraordinary circumstances the High Court should interfere under Articles 226/227 of the Constitution in an election matter. In view of the preliminary objection being upheld, it is not necessary to go into the merits of the case.

6. Accordingly, the petitions fail and are dismissed with costs. The ad interim stay granted on 11-6-1984 is vacated. Counsel's fee Rs. 200/-, if certified. The outstanding security amount be refunded to the petitioners.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //