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Cites 9 docs - [View All]
Article 226 in The Constitution Of India 1949
Bhupendra Kumar Jain vs Y.S. Dharmadhikari And Ors. on 28 November, 1975
Section 51 in The States Reorganisation Act, 1956
Section 115 in The States Reorganisation Act, 1956
Brij Behari Gupta vs L.L. Khare And Anr. on 27 February, 1976
Citedby 1 docs
Neeraj Kumar Sharma And Anr. vs State Of M.P. And Ors. on 12 April, 2007

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Madhya Pradesh High Court
Thaneshwar Mishra vs Jila Sahakari Kendriya Bank ... on 8 October, 1984
Author: G Gupta
Bench: C Sen, G Gupta

JUDGMENT Gulab Gupta, J.

1. Petitioner Thaneshwar Mishra, claiming to be a voter in the election of respondent Zila Sahakari Kendriya Bank Maryadit, Mandla, feels aggrieved by the order of rejection of his nomination paper (Annexure-P-5) by the respondent No. 4 and seeks a writ of certiorari for quashing the said order, together with the election programme (Annexure P-3), by filing this petition under Article 226 of the Constitution of India.

2. The petitioner claims to be a voter in category C (Varga-Ga) and his name appears in the final voter list (Annexure-P.1) at serial No. 123. It appears that the election of the respondent Bank became due in the year 1984. On 20-4-1984, respondent-Registrar requested all Collectors in the State of Madhya Pradesh to nominate Deputy Collectors by name as Returning Officers for holding the said election. On receipt of the aforesaid letter, Collector, Mandla, by his order dated 28-4-1984, nominated the respondent No. 4 as Returning Officer for holding the election of the respondent-Bank. The respondent No. 4, acting on the aforesaid authorization, issued the election programme on 19-5-1984 (Annexure P-3). He also notified that a special general meeting of the members of the respondent-Bank shall be held on 5-6-1984 to hold election of the Directors of the Bank and also of the representatives of the respondent-Bank to represent it in other institutions. The petitioner filed his nomination on 26-5-1984 (Annexure P-4), which was rejected on 28-5-1984 by the impugned order on the ground that the petitioner was a member having contributed Rs. 50/- only to the share capital. It appears that with effect from 8-1-1980, a person to become member of the respondent-Bank, was required to subscribe Rs. 100/- as share capital Following the aforesaid rejection, the petitioner approached this court by filing the present petition on 30-5-1984. By an order dated 4-6-1984, election proceedings were stayed. The said order was, however, modified on 6-7-1984 by directing that election shall not be held for a Director from Class-C members and further election for electing representatives to M.P. Rajya Sahakari Bank Maryadit, Bhopal and M.P. Sahakari Sangh Maryadit. Bhopal. shall remain stayed. Election of Chairman of the Board of Directors of respondent No. 1 was also stayed.

3. The learned Government Advocate appearing for the respondent No. 5 and the learned Advocate appearing for respondent No. 1, have raised a preliminary objection to the tenability of the present petition on the ground that efficacious alternative remedy under Section 64 of the M.P. Co-operative Societies Act, 1961 (hereinafter referred to as the 'Act'), will be available to the petitioner after the elections have been held. Reliance has been placed on a Full Bench decision of this court in Malam Singh v. Collector, Sehore 1971 MPLJ 531 : (AIR 1971 Madh Pra 195). It is true that Section 64(2)(v) of the Act provides that "any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society," can be referred to the Registrar by any of the parties to the dispute and the decision of the Registrar on the said dispute shall be final and not liable to be called in question in any court. Proviso to the aforesaid sub-clause, however, prohibits the Registrar to entertain any dispute "during the period commencing from the announcement of the election programme till the declaration of result." Apparently, therefore, the petitioner could challenge the validity of these elections by filing a dispute under the aforesaid clause after elections have been held. In Malam Singh's case (supra), the Full Bench of this court was considering the provisions of Section 357( 1) of M.P. Gram Panchayats Act, 1962, which provided that "no election under the Act can be called into question except by a petition presented to the prescribed authority." The Full Bench held that though there is no constitutional bar to the exercise of writ jurisdiction in respect of elections, it is desirable to resolve election disputes speedily through the machinery of election petitions, and the Court should not exercise its discretion in the matter. After Malam Singh's case (supra), the matter came to be considered on several occasions by this court and the view taken always was that wherever efficacious alternative remedy of election petition is available, the writ jurisdiction of this court shall not be exercised. The court, however, carved out certain exceptions to this general rule with a view to do justice between the parties. In Sheo Dayal v. K.P. Rawat 1975 MPLJ 243, a Division Bench of this court held that though generally this court will direct the party to take resort to election petition, it can interfere and decide a writ petition in exceptional cases "in order to enable the petitioner to exercise his valuable civil right of contesting an election, which right was denied to him on altogether wrong premises. "This view appears to have been followed in subsequent cases in Bhupendra Kumar v. Y.S. Dharmadhikari 1976 MPLJ 223 : (AIR 1976 Madh Pra 110) and Brij Bihari Gupta v. L.L. Khare (AIR 1976 Madh Pra 156). In Brij Bihari Gupta's case (supra), the Division Bench considered the provisions of Section 64 of the Act and held that once a writ petition has been admitted for hearing and stay granted, it will not be proper to throw the same out on the ground of alternative remedy after the declaration of election results. It is, therefore, clear that the rule of alternative remedy does not create an absolute bar to the exercise of power under Article 226 of the Constitution. It is merely a circumstance enabling the High Court to refuse exercise of this extraordinary and discretionary power, if the facts of the case so require. Considering facts of the case, we do not think it proper to accept the preliminary objection and reject the petition on that score.

4. There is yet another reason why we do not consider it proper to uphold the preliminary objection. The petitioner is challenging the order of the Registrar dated 1-2-1980 (Annexure-P-6) delegating his powers under Rule 41(26) of M.P. Co-operative Societies Rules, 1962 (hereinafter referred to as the 'Rules') to the Collector, Mandla, and the consequential appointment of respondent No. 4 by the said Collector, and, hence, it will not be proper to direct him to approach the same Registrar for deciding the legality or otherwise of his own order, as such an approach is contrary to the settled principles of natural justice that "no one should be the judge of his own cause". Then, the illegality alleged by the petitioner has, according to him, the effect of invalidating the entire election process which cannot be the subject-matter of dispute under Section 64 of the Act. The preliminary objection is, consequently, rejected.

5. The main submission of the learned counsel for the petitioner is that respondent No. 4 has not been appointed Returning Officer by the respondent-registrar, as required by Rule 41(26) of the Rules and, hence, election programme declared by him and all consequential steps are illegal. Rule 41 of the Rules prescribes procedure for election of members of the committee. Admittedly, the present election is being held under this Rule. It is the responsibility of the Returning Officer to hold the election as would be clear from various sub-clauses of the aforesaid Rule. Rule 41(26), which is relevant for our purpose, provides for appointment of a Returning Officer and reads as under : --

"(26) For the purposes of this rule the Returning Officer means an Officer appointed by the Registrar by general or special order for performing the duties of a Returning Officer."

A plain reading of this Rule requires the Registrar to appoint an Officer as Returning Officer by general or special order to perform the duties of a Returning Officer. Use of the words "appointed by the Registrar" leaves no doubt that the act of appointing a Returning Officer has to be done by the Registrar. Subsequent words "for performing the duties of a Returning Officer" clarify that the Officer appointed by the Registrar will perform the duties of a Returning Officer. It is, therefore, clear that a person appointed by the Registrar to perform the duties of a Returning Officer, as envisaged under the Rules, is to be treated as "Regurning Officer" under this Rule. In the instant case, by issuing a general order on 1-2-1980 (Annexure P-6), the respondent-Registrar has appointed various Officers by their designation as Returning Officers for holding election of various categories of co-operative societies. Clause 16 of the aforesaid circular is relevant for our purpose. Under this clause, the respondent-Registrar has appointed District Collector or an Officer nominated by him, who should not be below the rank of the Deputy Collector, to be the Returning Officer for holding the election of the District Cooperative Bank. It is common ground that acting on this authorization, the Collector, Mandla, has nominated the respondent No. 4 as the Returning Officer. The objection of the petitioner is that this order does not satisfy the mandatory requirement of Rule 41(26) of the Rules and clothes the respondent No. 4 with no authority whatsoever to act as the Returning Officer. This order, in so far as it appoints the Collector, Mandla, as Returning Officer, is not being challenged in any manner. However, that part of the order which authorises the Collector to nominate a Deputy Collector to act as Returning Officer is under challenge on the ground that it is in breach of mandatory requirement of Rule 41(26) of the Rules. It is also submitted that the Rules permit the Registrar to appoint any one as a Returning Officer, which obligation has been performed by the respondent Registrar by appointing the Collector, Mandla, by this circular. The Collector, Mandla, being an appointee of the Registrar under the aforesaid Rule, would not be entitled to appoint someone else in the absence of any specific provision in the Rules in this behalf. The action of the respondent-Registrar and consequent appointment of respondent No. 4 is, however, supported by the respondent No. I on the ground that there is no bar to such appointment. It is also submitted that the respondent Registrar had maintained his control over the process of appointment of respondent No. 4 and, hence, Rule 41(26), would be deemed to have been substantially complied with.

6. Importance of appointment of a Returning Officer cannot be denied. It also cannot be denied that the Regurning Officer appointed by the Registrar, who is charged with the responsibility of holding elections, should be a person capable of undertaking the responsibility and, thus, ensure purity of the process of election. The fact that the Registrar has been made responsible for holding elections, only shows the anxiety of the legislature to maintain purity of election process and the importance attached to it. It is. therefore, obvious that appointment of Returning Officer is of utmost importance and has to be done by the Registrar under the Rules. The aforesaid intention would make the provision mandatory. Even otherwise, whenever a statute requires a particular act to be done in a particular manner by a particular agency, the said act has to be done in the manner provided by the statute alone. We have, therefore, no hesitation in holding that provisions contained in Rule 41(26), are mandatory in nature and have to be complied with, with a view to achieve the purpose aforesaid. It must, consequently, be held that a breach of the Rule would invalidale the appointment and all other consequential actions taken by the respondent No. 4.

7. There is yet another reason why we are inclined to hold that the Rule is mandatory in nature. The last part of the Rule "for performing the duties of a Returning Officer" has to be given full meaning in the context of appointment of an officer as Returning Officer and indicates that the Registrar, while considering appointment of an officer, has to take into consideration the Officer's capacity and ability to perform the duties of a Returning Officer. It, consequently, implies conscious application of mind by the Registrar while making the appointment. This purpose would be defeated if the Registrar does not consider the matter himself, but passes on this responsibility to be performed by his nominee. Absence of any rule authorising delegation of this power by the Registrar to anyone else, becomes meaningful in this context. Under the circumstances, we entertain no doubt about the mandatory character of the Rule and hold that breach of this Rule would invalidate the appointment and consequential actions taken by the appointee.

8. The validity of the Circular dated 1-2-1980 and the consequential appointment of respondent No. 4, when considered in the light the aforesaid law, remains doubtful. The Collector, Mandla, while nominating the respondent No. 4 as the Returning Officer, has really exercised powers of the Registrar under Rule 41 (26) of the Rules, which could only be exercised by the Registrar. There is nothing in the Act or the Rules permitting delegation of authority by the Registrar in favour of the Collector. The delegation has, however, been supported by the respondents on general principles said to be contained in the decision of the Supreme Court in Union of India v. P.K. Roy AIR 1968 SC 850. We have gone through the said judgment and find nothing that may support any such submission. The Supreme Court, in the said case, was considering the ambit and scope of Sections 115 and 117 of the States Reorganisation Act, 1956, which authorised the Central Government alone to effect integration of services. The Central Government had fixed principles governing the integration and on the basis of the said principles, the State Government has prepared and published a provisional seniority list. Objections to this provisional list were considered by the Central Government. The final gradation list was prepared and published by the State Government on the basis of those decisions. It was in the context of these facts that the Supreme Court held that there was no delgation of power by the Central Government and taking aid and assistance of the State Government did not violate the principle of "delegatus non potest delegare". The facts of the instant case do not justify application of this principle, as the Registrar has neither framed any principle, nor has retained control over the process of appointment. Indeed, the Registrar has nominated the Collector to do the job in the same manner as the law required him to do it. Under the circumstances, the Rule stands clearly violated in the instant case. It is, however, submitted that since the order of the Collector, appointing the respondent No. 4 as the Returning Officer, was also endorsed to the respondent Registrar and since the respondent-Registrar did not object to the said appointment, the Registrar should be deemed to have consented to the said appointment. Even if the submission was to be accepted, it cannot be overlooked that the respondent-Registrar, at no point of time, consciously considered the appointment of respondent No. 4 as required of him by the Rule. The application of mind by the Registrar, in the context of duties of the Returning Officer under the Rules, remained conspicuously absent. Mere silence on the part of the Registrar cannot be accepted as a good substitute for conscious consideration of facts by him. Indeed, in somewhat similar circumstances, a Single Bench of this Court in Vijay Kumar v. Sunderlal 1983 MPU 762 : (AIR 1984 Madh Pra 40) held that the Registrar has failed to carry on his obligation under the Act. That was a case under Section 53 of the Act, authorising the Registrar to appoint a committee to manage the affairs of the society. The Registrar, instead of exercising this power himself, authorised persons to appoint persons to took after the affairs of the society. This was taken to be delegation of the authority by the Registrar and was held to be illegal in the absence of any provision authorising such delegation. The principles followed in this case fully apply to the facts of the present case and, hence, it must be held that since the appointment of respondent No. 4 as Returning Officer was not made by the respondent-Registrar as required by the Rules, but was made by the Collector, Mandla, to whom the authority could not be delegated the said appointment is illegal. It must, consequently, be held that the election programme notified by the respondent No. 4 vide Annexures P2 and P-3, and all subsequent acts done by him. are illegal.

9. Section 51 of the Act was relied upon by the respondents to cure the aforesaid illegality. This section does not apply to the facts and circumstances of the case. The purpose of this section is to protect an act of a society or of any committee or of any officer of the society from being declared invalid by reason only of a defect in the procedure or in the constitution of the society or of the committee or in the appointment or election of the officer. This section cannot validate an election held by a person not appointed as Election Officer, nor can it be summoned to validate the action of the respondent-Registrar.

10. As a result of discussion aforesaid, the petition succeeds and is allowed by holding that respondent No. 4 was not the legally appointed Returning Officer and, hence, could not hold the election. Election programmes notified by the said respondent vide Annexures-P-2 and P-3 are, therefore, quashed. No order as to costs. The outstanding amount of security deposit, if any, shall be refunded to the petitioner.