Full Judgment Text
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PETITIONER:
SHRI SANT SADGURU JANARDAN SWAMI (MOINGIRI MAHARAJ)
Vs.
RESPONDENT:
VS.
DATE OF JUDGMENT: 25/09/2001
BENCH:
V.N. Khare & B.N. Agrawal
JUDGMENT:
V.N. KHARE, J.:
There is a specified Society in the district of Ahmednagar known as
Godavari Khore Dudh Utpadak Sangh (hereinafter referred to as the
Society). The Society is registered under the Maharashtra Cooperative
Societies Act, 1960 (hereinafter referred to as the Act). The society is a
central society and number of other primary cooperative societies are its
members and is governed by the Act and rules framed thereunder. The
management of the society is run by the managing committee, the members
of which are elected by the delegates of the members societies. The
Chairman is elected from amongst the members of the committee of
management. The term of the elected managing committee of the society
was due to expire in the year 1999. The Collector, therefore, took steps for
preparation of the electoral roll of the society. For that purpose, the
Collector announced the programme for finalisation of the electoral roll of
the society. On 4th of June, 1999, the provisional electoral roll was
published. The objections against the provisional voter list were invited till
14th of June, 1999, which were required to be decided by 23rd of June, 1999
and the electoral roll was to be finalised and published on 2nd of July, 1999.
The State Government on 8.6.1999 passed an order under Section 73 (1) (B)
of the Act staying the elections in the cooperative societies in the State on
account of rainy season. It was indicated in the said order that where
nomination papers have not yet been filed the elections shall stand
postponed till 30th September, 1999. In pursuance thereof, wireless message
was sent to all the co-operative societies about the decision taken by the
State Government. It appears that certain objections against the publication
of the provisional electoral roll of the society was filed which allegedly was
considered by the authority on 23rd June, 1999. On 29th June, 1999, the
Collector, Ahmednagar informed that as per the Government order dated
8.6.1999, the election scheduled to be held stands postponed till 30th
September, 1999. It appears in between time some representations were
made to the State Government to exempt the society from the order dated 8th
June, 1999. In pursuance of the said representations the Government of
Maharashtra issued a Notification dated 30th June, 1999 making out a special
case in favour of the present society and deleted its name from the
Notification dated 8th June, 1999, with the result that the election for the
Society which was postponed earlier was now required to take place. In
view of the said Notification issued by the State Government, the authority
on 2.7.1999 published final electoral roll of the members of the society.
The Collector on 21st October, 1999 drew election schedule for holding
election of the society. It is at this stage, the petitioners filed a petition under
Article 226 of the Constitution before the High Court. It was prayed therein
that the order dated 21st October, 1999 be set aside. The said writ petition
was subsequently dismissed by the High Court. The petitioners thereafter
preferred this appeal by means of Special Leave Petition.
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While the appeal was pending, the election for constituting the
managing committee was held but the declaration of the result was stayed by
the order of this Court dated 26.11.1999.
Learned counsel appearing for the appellants urged that the electoral
roll being substratum of the election for constituting the managing
committee and the same having not prepared and finalised in accordance
with the mandatory rules, no election can be held on such electoral roll and
the same is liable to be set aside. Learned counsel appearing on behalf of
the respondents raised an objection regarding the maintainability of the writ
petition on the ground that since the election process has already
commenced and inasmuch as election has already taken place, the
appellants have an alternative remedy to file an election petition under
Section 144-T of the Act before the tribunal. It was further urged that the
High Court has rightly declined to entertain the writ petition under Article
226 of the Constitution and, therefore, this Court is not required to go into
the merits of the appeal. However, this was refuted by the learned counsel
for the appellants. Their case is that the preparation of the voters list not
being part of the election process, the Election Tribunal is not competent to
go into the validity or otherwise of an electoral roll in an election petition.
Therefore, the only remedy available to the appellants is to file writ petition
under Article 226 of the Constitution.
On the arguments raised by the learned counsel for the parties the
questions that arise for consideration are : (1) whether the preparation of the
electoral roll for electing members to the managing committee of a specified
society under the provisions of the Act and rules framed thereunder is an
intermediate stage in the process of election; and (2) If the answer to the first
question is in the affirmative, whether the High Court should interfere with
the preparation of an electoral roll in a petition under Art.226 of the
Constitution or decline to interfere in the matter leaving the parties to get the
matter adjudicated by the tribunal by filing an election petition after
declaration of result of the election.
Before we consider question no. 1, it is necessary to look into the
relevant provisions of the Act and the Rules framed thereunder. Chapter
XIA of the Act deals with the election of committee of management and
officers of certain societies. Section 144A occurring in Chapter XIA
provides that Chapter XIA shall apply only to elections to committees of
management of the society belonging to the category specified in Section
73G. It is not disputed that the present society is one of the specified
societies under Section 73G of the Act. Clause (b) of sub-section (2) thereof
provides for the electoral rolls and the election of members of the managing
committee or of officers of the specified society. Section 144T provides that
any dispute relating to an election shall be referred to a tribunal and that the
tribunal shall have the same powers as were vested in a court in respect of
the matters enumerated therein. Sub-section (4) of Section 144T further
provides that election petition shall be heard and disposed of as
expeditiously as possible or an order passed on such election petition shall
be final and conclusive and shall not be called in question before any court
of law. Section 144X runs as under:
Without prejudice to any other power to make
rules contained elsewhere in this Act, the State
Government may make rules consistent with this
Act generally to provide for and to regulate all or
any of the other matters relating to the various
stages of the elections including preparation of list
of voters.
(emphasis supplied)
The State Government, in exercise of power conferred by sub-section
(2) of Section 144F, sub-section (4) of Section 144T, Section 144X and
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clauses (xi) and (xlv) of sub-section (2) of Section 165 of the Act framed
Rules known as Maharashtra Specified Co-operative Societies Elections to
Commitees Rules, 1971 ( hereinafter referred to as the Rules). The
relevant portion of the Rules runs as under:
4. Provisional List of Voters.
(1) A provisional list of voters shall be prepared
by every society for the year in which general
election is due to be held. Persons who are
members as on the 30th June of the year
immediately preceding the year in which such
election is due shall be included in the
provisional list. If different constituencies are
provided in the bye-laws, the names of voters
shall be arranged constituency-wise as laid
down in the bye-laws: Provided that, if in any
case, the preparation of the provisional list of
voters falls due after the expiry of a period of
six months from the 30th June, the Collector
may, in consultation with the Registrar in
respect of the societies of the categories
mentioned in clauses (i) (v) (vi) and (vii) of
sub-section (1) of Section 73G, and in
consultation with the District Deputy Registrar
in respect of the societies of the other
categories mentioned in sub-section (1) of
Section 73G, by order, change the date of the
30th June and subsequent dates and fix revised
dates for the purposes of these rules.
5. Particulars to be included in provisional list
of voters.
(1) The provisional list of voters, in the case of
individual shareholders shall contain the names,
fathers or husbands name, surname (if any) of
every person entitled to be registered as a voter,
with such other particulars as may be necessary to
identify him.
(2) Where a society is a member of a specified
society, the specified society shall call for the
name of the delegate duly authorised to vote at an
election on behalf of the affiliated society, so as to
reach it by the 2nd July. While communicating the
name of its delegate to the specified society, the
affiliated society shall enclose a copy of the
resolution of the society or its committee under
which the delegate is so authorised. The specified
society shall include in the list of voters the names
of all such delegates as have been communicated
to it before the date fixed for publication of the
provisional list. In addition to the names of the
delegates, the list shall contain the names of the
affiliated societies, their registration numbers and
addresses and the names of constituencies, if any,
to which they belong. A society which has
communicated the name of its delegate shall be
like resolution be permitted to change the name of
its delegate nor later than seven days before the
date appointed by the Collector under Rule 16 of
said rules for making nominations.
6. Claims and objections to provisional list of
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voters.--
(1) When any provisional list of voters is
published for inviting claims and objections, any
omission or error in respect of the name or address
or other particulars in the list may be brought to
the notice of the Collector by any member of
society concerned who is a voter or any delegate
authorised to vote on behalf of such society.
(2) Every person making a claim or raising an
objection shall do so by a separate petition, which
shall be presented to the Collector on or before the
31st July, during office hours.
(3) Every claim or objection shall be preferred
in writing and state the grounds on which the claim
is based or the objection is raised, as the case may
be.
(4) xxx xxx
(5) Notwithstanding anything contained in sub-
rule (4) any person who is a member of the society
as on the 30th day of June of the year immediately
preceding the year in which such election is due or
on such subsequent date as may be fixed by the
Collector under sub-rule (1) of Rule 4 and whose
name is not included in the final list of voters
prepared by the Collector under sub-rule (4) and
who is desirous of being registered as a voter may
apply in writing to the Collector in Form !-A
within a period of fifteen days from the date of
display of the final list of voters under Rule 7.
(6) Every such application received by the
Collector shall be forwarded by him within three
days of the date of receipt by him to the District
Deputy Registrar for enquiry. The District Deputy
Registrar shall cause an enquiry to be made into
the application and submit his report to the
Collector along with his recommendations within
seven days from the date of receipt of the
application by him from the Collector.
(7) The Collector shall after considering the
application and the report of the District Deputy
Registrar give his decision in writing to the
persons concerned, before the first date fixed for
making nominations. If the Collector decides that
the name of the applicant should be registered as a
voter, he shall accordingly modify the list finalised
by him earlier under sub-rule (4) and the list so
modified shall then be treated as the final list of
voters.
(7) Final list of voters.
Copies of the final list of voters of every
society shall be displayed on the notice-board of
offices of the Collector, the District Deputy
Registrar and the society.
(8) Power to Collector to alter dates for list of
voters.--
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Notwithstanding anything contained in the
foregoing rules, the Collector may, in the case of
all or any of the societies of the categories
mentioned in clauses (i), (v), (vi) and (vii) of sub-
section (1) of Section 73G in consultation with the
Registrar, and in the case of all of any of the
societies of the categories mentioned in other
clauses of sub-section (1) of Section 73G in
consultation with the District Deputy Registrar, by
general or special order, alter all or any of the
dates prescribed therein and appoint such revised
dates as he deems fit.
(8) Appointment of Returning Officers.
The Collector shall whenever necessary
appoint a Returning Officer for one or more
constituencies of a society as specified in its bye-
laws:
Provided that, in case where no other person
is appointed as a Returning Officer, the Collector
himself shall be deemed to be the Returning
Officer and shall perform all the functions of a
Returning Officer under these rules.
In the light of the aforestated provisions of Chapter XIA of the Act
and the Rules, we will examine as to whether preparation of electoral rolls is
an intermediate stage in the process of election. The provisions referred to
above shows that Chapter XIA was enacted and the rules were framed
specially to deal with the election of the specified societies under Section
73G of the Act. Section 144X provides that various stages of election shall
also include preparation of the list of voters. Once the statute provides that
the preparation of the voters list shall be part of the election process, there is
no reason to hold that the preparation of the electoral roll is not an
intermediate stage in the process of the election of a specified society. This
matter can be examined from another angle. A perusal of the Rules
discloses that the preparation of provisional list of voters, filing of objection
against the provisional list of voters, consideration of the objection by the
Collector and finalising the list of voters, all occur in the Rules which
cover the entire process of the election. The Rules framed for election of
specified societies are complete code in itself providing for the entire
process of election beginning from the stage of preparation of the
provisional voters list, decision on the objection by the Collector,
finalisation of electoral rolls, holding of election and declaration of result of
the election. In view of the scheme of the Act and Rules, the preparation of
voters list must be held to be part of the election process for constituting
managing committee of a specified society. In Someshwar Sahakari Sakhar
Karkhana Ltd. Someshwarnagar vs. Shriniwas Patil, Collector, Pune & Ors.
1992 Maharashtra Law Journal, 883 , it was held that in the scheme of the
provisions of the Act and the Rules, the preparation of the list of voters for
election to the managing committee of a specified society is an intermediate
stage in the process of the election. Similar view was taken in Shivnarayan
Amarchand Paliwal vs. Vasantrao Vithalrao Gurjar and Ors. 1992 (2)
(vol 30) Maharashtra Law Journal, 1052. However, in Karbhari Maruti
Agawan and Ors. vs. State of Maharashtra and Ors. 1994 (vol 2)
Maharashtra Law Journal, 1527, although it was held that the preparation of
the list of voters is an intermediate stage in the process of election, but that
does not debar the High Court to entertain a petition under Article 226 of the
Constitution challenging the validity of the electoral roll. It appears that the
consistent view of the Bombay High Court on the interpretation of Chapter
XIA of the Act and the Rules framed thereunder is that the preparation of
electoral roll is an intermediate stage of the election process of the specified
societies. This being the consistent view of the High Court on the
interpretation of provisions of a State Act, the same is not required to be
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disturbed unless it is shown that such a view of the High Court is palpably
wrong or ceased to be good law in view of amendment in the Act or any
subsequent declaration of law. We are, therefore, of the view that the
preparation of the electoral roll for election of the specified society under
Chapter XIA and the Rules framed thereunder, is an intermediate stage in
the process of election for constituting managing committee of a specified
society.
It was then urged that the tribunal constituted under the Act has no
power to go behind the preparation of the electoral roll and, therefore, the
writ petition is maintainable. Learned counsel also strongly relied upon the
decisions in the case of Bar Council of India and Ors. vs. Surjeet Singh and
Ors. 1980 (4) SCC, 211 and Ramchandra Ganpat Shinde and Anr. vs. State
of Maharashtra and Ors. 1993 (4) SCC, 216. Learned counsel also
referred to Section 100 of Representation of Peoples Act and a decision in
the case of Shri Shreewant Kumar Choudhary vs. Shri Baidyanath Panjiar -
1973 (1) SCC, 95. In sum and substance, the argument is that since the
breach of rule in preparation of the electoral roll cannot be questioned in an
election petition before the election tribunal, therefore, the writ petition
challenging the preparation of the electoral roll could not have been
dismissed on the ground that the appellant had an alternative remedy of
filing an election petition. In this regard, it is relevant to notice Rule 81 of
the Rules which provides for grounds for declaring election to be void. The
relevant portion of the Rule runs as under:
81. Grounds for declaring election to be void.-
(d) (iv) by any non-compliance with the
provisions of the Act or any rules made
thereunder, the Commissioner shall declare the
election of the returned candidate to be void.
If the contention of the appellant is that there was a breach of rule or
certain mandatory provisions of the rules were not complied with while
preparing of the electoral roll, the same could be challenged under Rule 81
(d) (iv) of the Rules by means of an election petition. In view that, the
preparation of electoral roll is part of the election process and if there is any
breach of the rules in preparing the electoral roll, the same can be called in
question after the declaration of the result of the election by means of an
election petition before the tribunal.
In the case of Bar Council of India & Ors. vs. Surjeet Singh & Ors.
(supra), Untwalia, J. speaking for the Court observed thus:
There is no substance in the last submission made
on behalf of the appellants. The manner of
resolving disputes as to the validity of election is
provided for in Rule 34 of Delhi Council Election
Rules. This is not an appropriate and adequate
alternative remedy to defeat the writ petitioner on
that account. Firstly, no clause of Rule 34 covers
challenging of the election on the ground it has
been done in this case. Secondly, the Election
Tribunal will not be competent to declare any
provision of the Election Rule ultra vires and
invalid.
In the aforesaid case, this Court held that a writ petition under Article
226 of the Constitution should not be rejected on account of an alternative
remedy by way of election petition where, firstly, the challenge is not a
ground under the Act or Rules for filing an election petition and, secondly,
where the validity of a rule is challenged being ultra vires and invalid. It is
true that a tribunal being a creature of an Act or the Rules has a limited
jurisdiction and it is not open to a tribunal to decide the validity of the Act
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and the Rules. But, that is not the case here and, therefore, the decision in
the case of Bar Council of India & Ors. vs. Surjeet Singh & Ors. (supra) is of
no help to the case of the appellant. In the case of Ramchandra Ganpat
Shinde & Anr vs. State of Maharashtra & Ors. (supra), the parties to a writ
petition obtained a collusive order by applying fraud on the court and such
an order was made basis of the election. In that context, it was held that so
long as the order of the High Court continues, the tribunal would be bound
by that order of the High Court and, therefore, the writ petition was
maintainable and the same cannot be thrown out on the ground of an
alternative remedy. Again, that is not the case of the appellant and,
therefore, the same is distinguishable. In Shri Shreewant Kumar Choudhary
vs. Shri Baidyanath Panjiar (supra), it was held that it was not open to the
tribunal to go behind the entry in an electoral roll. This was in the context of
the provisions of Representation of Peoples Act, 1950 and 1951. It may be
borne in mind that there is a distinction between the scheme of the
provisions of the Representation of Peoples Act, 1950 and the
Representation of Peoples Act, 1951. The Representation of Peoples Act,
1950 provides for the delimitation of constituencies and allocation of seats
for purposes of election to, the House of the People and the Legislatures of
States and preparation of the electoral roll, whereas, Representation of
Peoples Act, 1951 provides for conduct of election. Under Section 100 of
the Representation of Peoples Act, 1951 one of the grounds amongst other
is an election can be challenged where there is non-compliance of the
provisions of the Constitution or of the said Act and the rules or orders made
thereunder meaning thereby that breach of the Representation of Peoples Act, 1950
cannot be called in question in an election petition filed under 1951 Act
. In
that view of the matter, the decision replied upon by the appellant is
distinguishable.
In view of our finding that preparation of the electoral roll is 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. 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 appellant to challenge the election of returned
candidate, if aggrieved, by means of an election petition before the election
tribunal.
In that view of the matter, we are in agreement with the view taken
by the High Court that the appellant having an alternative remedy, the writ
petition deserved dismissal.
For the aforesaid reasons, we do not find any merit in the appeal. The
appeal is, accordingly, dismissed. There shall be no order as to costs.
J.
(V. N. Khare)
J.
(B. N. Agrawal)
September 25, 2001