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Judgment
Heard learned counsel for the petitioner; State and State
Election Authority.
The petitioner has moved the Court for the following
reliefs:
"(i) For issuance of an order, direction or writ in the nature of Certiorari quashing the amended election schedule dated 25.08.2017 issued by the respondent no. 7 for the purposes of holding the election of the Barauni Cooperative Cold Storage Limited.
(ii) For issuance of an appropriate declaration that the respondent no. 7 has no jurisdiction to abolish any post of the managing committee of any cooperative society as enumerated/indicated in its bye-laws.
(iii) For issuance of an order, direction or writ in the nature of Mandamus commanding the respondent authorities to issue a fresh election schedule of all the posts as enumerated in the bye- laws of the cooperative society in question.
(iv) For granting any other relief or reliefs to which the petitioner may be found entitled to in the facts and circumstances of this case."
In sum and substance, the contention is that the
respondent no. 7 has notified the schedule for election of the
respondent no. 8 Society but has simultaneously and suo motu
abolished the post of Treasurer and instead has added the post of a
General Member of the Managing Committee.
Learned counsel for the petitioner submitted that such
act is totally beyond jurisdiction for the reason that the Returning
Officer is only to conduct the election of the post which already
stood at the time of issuance of the notification. It was submitted that
the jurisdiction and power with regard to the creating and abolishing
posts rests with the Managing Committee of the Society, which has
then to be duly incorporated in the bye-laws. Learned counsel
further submitted that the impugned decision of the respondent no. 7
was without any application or complaint to such effect, either by the
Society itself or by any of the members.
Learned counsel for the State and State Election
Commission do no dispute the stand taken by learned counsel for the
petitioner.
Having considered the facts and circumstances of the
case and submissions of learned counsel for the parties, the Court
finds that the impugned order cannot be sustained. The decision of
the respondent no. 7 to replace the post of Treasurer with that of a
member of the Managing Committee is totally beyond jurisdiction.
At this stage, learned counsel for the petitioner
submitted that after he had served a copy of the writ petition on
learned counsel for the State on 6th September, 2017, by ante dating,
the respondent no. 7 has pasted an order on 7 th September, 2017,
modifying the impugned order to the extent that one post was re-
designated as Treasurer, but in effect, the exercise was to frustrate
any person, especially the petitioner to file nomination for the said
post for the reason that the last date for nomination was 8th
September, 2017.
Having regard to the aforesaid, and in view of the
uncertainty and confusion created by the impugned order and the
subsequent act of modifying the order by the respondent no. 7
himself, leading to a situation where effectively it may not be
practical for persons to fill their nomination paper, the Court deems it
appropriate that the election scheduled for 15 th September, 2017 be
postponed for a later date. All nomination papers already filled shall
be valid for the subsequent election, the dates for which shall be
announced by the State Election Authority. Further, the date of
filing the nomination shall also be extended by the State Election
Authority so that persons eligible may get reasonable opportunity for
filling up the nomination paper.
It goes without saying that this order is restricted with
regard to the respondent no. 8 Society only.
The writ petition stands disposed off in the
aforementioned terms.
Learned counsel for the State and State Election
Commission shall communicate the order to the authorities concerned.