AI Structured Summary
Not yet generated for this judgment
Judgment
Devendra Kumar Arora, J.—Heard learned counsel for the parties. By means of present writ petition, the petitioners have challenged the order dated 26.09.2012, passed by the Deputy Registrar, Firms Societies and Chits, U.P., Lucknow, by which the Deputy Registrar in exercise of powers conferred u/s 25(2) of the U.P. Societies Registration Act, 1860 (hereinafter referred to as the Act, 1860) issued election programme, which started from 15.10.2012 and tomorrow i.e. 20.10.2012 is the date fixed for polling.
The submission of learned counsel for the petitioners is that petitioner No. 2 is a member of the general body of the Society, namely, Shesh Nath Vidyalaya, Mishrikh, District-Sitapur. The aforesaid Society is a registered Society under the Act, 1860 and has renewal up to 09.10.2015. The Manager of the Institution submitted the list of members of general body in the year 2008. Thereafter, no list of general body or Committee of Management has been submitted. After the year 2008, without holding the fresh election, the affairs of the Committee of Management were run and managed by the then Manager up to 23.06.2011. On 23.06.2011, Shri Krishna Dutt Awasthi, Former Manager died. Earlier the strength of members of general body was 15, out of which, three members have died. The opposite party No. 2 treating the Committee of Management time barred issued election programme without holding the meeting of general body. Being aggrieved against the inaction of opposite party No. 2, the petitioners approached this Court by means of Writ Petition No. 4596 (M/S) of 2011, the Committee of Management & others v. State of U.P. & others. The said writ petition was disposed of by means of judgment and order dated 12.08.2012 with the direction that till the matter is decided by the Deputy Registrar, the single operation will continue and the opposite party No. 6, the alleged Manager shall not exercise any financial or administrative powers. The opposite party No. 2 in pursuance to the Court''s order dated 12.08.2011 treating that the terms of Committee of Management has become time barred, declared the election programme by means of impugned order dated 26.09.2012. Feeling aggrieved against the order dated 26.09.2012, the petitioners have approached this Court by means of instant writ petition.
Further submission of learned counsel for the petitioners is that Section 25(2) of the Act, 1860 provides that if the Registrar is satisfied that any election of office bearer of the Society has not been held within the time specified in the rules of the Society, he may call meeting of the general body of such Society for electing such office bearers, and the meeting shall be presided over and conducted by the Registrar or by any officer authorized by him in this behalf and the provisions in the rules of the Society relating to meeting and elections shall be applied to such meeting and election with necessary modifications, but in this case Registrar has not followed the procedure prescribed u/s 25(2) of the Act, 1860.
Shri Badrul Hasan, learned Additional Chief Standing Counsel while opposing the writ petition submitted that present writ petition is not maintainable in view of the Division Bench judgment of this Court as well as Hon''ble Supreme Court and the writ petition is liable to be dismissed on the ground of statutory remedy of filing an election petition before the appropriate forum.
I have considered the submissions of learned counsel for the parties and gone through the record. I have also examined the various judgments on the issue.
In the case reported in (2004) 13 SCC 574, Tapash Majumder v. Pranab Dasgupta, the Hon''ble Supreme Court held that when the election process is started, the Court should not interfere with such election process.
In the case of The New Friends Co-operative House Building Society Ltd. Vs. Rajesh Chawla and Others, , the Hon''ble Supreme Court has again reiterated the same principle and held that question relating to non payment of dues of the Society should be raised at the appropriate stage and the election process may not be interfered. The relevant para-4 of the same reads as under:--
The question whether a member was a defaulter had to be adjudicated in appropriate proceedings and writ application prima facie was not a proper course. Assuming without accepting that the stand taken for the alleged defaulters can be entertained and gone into the course of conduct of election, it could, if at all, be only for the limited purpose of election and the right of the Society or the member for having their rights and liabilities finally and effectively get adjudicated by arbitration proceedings statutorily provided for under the statute in lieu of proceedings before the civil Court, and the conclusions arrived at or recorded in the course of election proceedings shall be only without prejudice to and ultimately subject to all or any such proceedings and decisions by such statutory forums.
The Hon''ble Apex Court in the case of Umesh Shivappa Ambi and Others Vs. Angadi Shekara Basappa and Others, , held that once the election is over, then the outcome of such election should be considered by preferring an Election petition and not by invoking the extraordinary remedy.
The Hon''ble Apex Court in the case of N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, pleased to hold that whenever a remedy has been provided by an Act or statute to challenge the outcome of the election or illegality committed during the course of the election, then extraordinary remedy of Article 226 should not ordinarily be exercised. The relevant para-2 of the judgment reads as under--
In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election" and if any irregularities are committed which it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect to vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of dispute before any Court while the election is in progress.
In a subsequent judgment in the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, the Hon''ble Apex Court in para-3 pleased to observe that:
The conspectus of provisions bearing on the subject of elections clearly expresses the rule that there is a remedy for every work done during the election in progress although it is postponed to the post election stage and procedure as predicated in Article 329(b) and the 1951 Act. The election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidates if he makes out a case and such processual amplitude of power extends to directions to the election commission or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfillment of the jurisdiction to undo illegality and injustice and do complete justice within the parameters set by the existing law.
In the case of Committee of Management, Sri Radha Krishna Sanskrit Mahavidyalaya and Others Vs. Deputy Director of Education and Others, , the Division Bench of this Court held as follows:
There are large number of educational institution as and the functioning of such institutions are controlled and managed by a Committee of Management. Such Committee is constituted under the rules, regulations or certain Administrative schemes. The term of such Committee of Management is limited by time. The election process inter alia involves the determination of the members who can vote and participate in the election, nomination, preparation and publication of programme, scrutiny and declaration of result. In case, at the intermediate stage of the election process the High Court entertains petitions under Article 226 of the Constitution it will further delay the election process. Secondly, the disputed question of fact as to who are the members and other related matters cannot be decided in the writ jurisdiction. A person who has any grievance can take recourse to the remedy provided under the Statute, Rules or Regulations or by filing suit in the competent Court of law.
In S.T. Muthusami Vs. K. Natarajan and Others, , it has been observed in para-4 that:
...Even if there is any mistake committed by either the election authority or the Returning Officer in the allotment of symbol to the appellant the said mistake can only amount to a non-compliance with the provisions of the Act or the Rules made thereunder. It is clear from clause (c) of Rule 11 of the Rules made for the purpose of providing a machinery for the decision of election disputes relating to panchayat union councils that every action amounting to such non-compliance with the provisions of the Act and the Rules made thereunder would not automatically vitiate an election. It is only when the election court on a consideration of the entire material placed before it at the trial of an election petition comes to the conclusion that the result of the election has been materially affected by such non-compliance with any of the provisions of the Act or the Rules made thereunder the election of the returned candidate can be declared void....
In Hridaya Narain Rai Vs. Deputy Director of Education Vth Region and Others, , it has been held:--
The principles that any matter which has the effect of vitiating election should not be brought up at an intermediate stage before the Court and the person who is interested in challenging the election should wait till the election is over are the principles of general applicability not confined to the election under Representation of People Act. As mentioned above, these principles have been applied by the Supreme Court to the elections to the local bodies. There is nothing in the Intermediate Education Act or the Scheme of Administration, framed thereunder which excludes the applicability of the aforesaid principles to the election of a Committee of Management of an educational institution. In view of the ratio laid down by Supreme Court in the case of Nanhoo Mal the above principles are fully applicable to the instant case also. Hence there cannot be any interference with the electoral process at the intermediate stage, by this Court under Article 226 of the Constitution.
It has been settled by this Court more than once that election of the Committee of Management of an educational institution can be challenged before Civil Court. A dispute with respect to the management of such institution can also be agitated before Deputy Director of Education u/s 16-A(7) of the Intermediate Education Act and the decision of the Deputy Director given under the above provision is subject to the decision of a competent court. Neither Intermediate Education Act nor the Scheme of Administration limits/restricts the ground on which the election of the Committee of Management can be challenged. Election of such a committee, as such, can be challenged, both on merits as well as on the ground that the persons who were not entitled to vote were permitted to vote or the persons who were entitled to vote were excluded. The order of any person or authority limiting the right to vote in the election to certain persons only is liable to be challenged, while challenging the election and competent authority or the Court can set aside the election of the Committee of Management on that ground. Under these circumstances it is not open to challenge any order at the intermediate stage. The position would have been different had the law excluded the challenge to the election on the ground of defective electoral roll. But as mentioned above, this is not the position in the instant case.
In the case of Basant Prasad Srivastava and others Vs. State of U.P. and others, this Court held that:
When once the election process starts, it must come to its logical conclusion. Once it comes to its logical conclusion by declaration of result of the election the aggrieved person may challenge the election by filing election petition or civil suit in accordance with law. In such a proceeding the election may not be set aside if the alleged illegality or irregularity has not materially affected the result of the election. Approach to Court at intermediate stages in the election is bound to result in an office either remaining vacant or being occupied by a person whose entitlement to hold the office has ceased. Neither is a happy situation. It is, therefore, desirable that the election process should end as early as possible and the declaration of result should not be deferred through repeated interim orders passed from time to time.
In the case of Committee of Management, Pt. Jawahar Lal Krishak Inter College Mahuabari, Lar Road, Deoria and Ors. v. Deputy Director of Education and Ors., (1996) 2 UPLBEC 1245 : 1996 All LJ 1038 this Court held as follows:
The question of validity of the election is dependant upon several factors including the validity and genuineness of the members inasmuch the election held with the help of invalid and fake members cannot be said to be valid election. Therefore, in any case, when the question arises as to whether the members who participated in the election were or were not the members of the general body, the Deputy Director of Education is under obligation to decide the said question before recording any finding on the question of validity of the election. The validity of election is to be determined in accordance with the provisions of Scheme of Administration.
In the case of Tribhuwan Prasad at Present Manager Committee of Management, Keshav Ram Arya Adarsh Balika Higher Secondary School, Azamgarh v. Deputy Director of Education 1st, VIIth Region, Gorakhpur and Ors., ((1996) 1 ESC (All) 449), it has been held that:
Representation of contesting parties about correctness of list of members regarding exclusion of certain members from becoming members not to be entertained once election process had already started. Any person, if aggrieved by the election held by the authorised controller, may seek such other legal remedy before the appropriate civil court for adjudication, about the validity of members of the Committee of Management, if so advised. Neither the D.I.O.S. nor the High Court under Article 226 of the Constitution is supposed to enter into the controversy about the genuineness, correctness and validity of list of members.
The said view was further reiterated in the case o Shri Sant Sadguru Janardan Swami (Moingirid Maharaj) Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharashtra and Others, . The relevant para reads as under:--
Thus, this Court has consistently held that once the election process has been started this Court should not interfere. If any party has any grievance about the finalization of the voter list or about the voter list, it is always open to such person to challenge the same in the appropriate proceeding, namely, under the statute, Rules or Regulations or by filing suit in the Competent Court of law.
In the case of Fahim Ahmad Vs. State of U.P. and Others , it has been held by this Court that:
Once the election process is started, which includes the preparation of electoral roll, ordinarily High Court should not invoke extraordinary jurisdiction of Article 226 of the Constitution of India and the aggrieved party shall have a right to challenge the outcome of the election in pursuance to the provisions contained in the Societies Registration Act or any other law time being enforced.
It will be relevant to examine Section 25 of the Societies Registration Act, 1860. For sake of convenience the same reads as under:
Disputes regarding election of office bearers (1) The Prescribed Authority may, on a reference made to it by the Registrar or by at least one fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such Society, and may pass such orders in respect thereof as it deems fit:
(Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied--
(a) that any corrupt practice has been committed by such office-bearer; or
(b) that the nomination of any candidate has been improperly rejected; or
(c) that the result of the election in so far it concerns such office-bearer has been materially affected by the improper acceptance of any nomination, or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any noncompliance with the provisions of any rules of the Society.
Explanation I-A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-
(i) induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election.
(ii) with a view to inducing any elector to give or to refrain from giving a vote in favour of any candidate or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money or valuable consideration, or any place of employment, or holds out any promise of individual advantage or profit to any person.
(iii) abets (within the meaning of the Indian Penal Code) the doing of any of the acts specified in clauses (i) and (ii);
(iv) induces, or attempts to induce, a candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;
(v) canvasses on ground of caste, community, sect or religion;
(vi) commits such other practice as the State Government may prescribe to be a corrupt practice.
Explanation II. A promise of individual advantage or profit to a person includes a promise for the benefit of the person himself, or of any one in whom he is interested.
Explanation III. The State Government may prescribe the procedure for hearing any decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the Society.
(2) Where, by an order made under subsection (1), an election is set aside or an office-bearer is held no longer entitled to continue in office, or where the Registrar is satisfied that any election of office-bearers of a Society has not been held within the time specified in the rules of that Society, he may call meeting of the general body or such Society for electing such office-bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorised by him in this behalf, and the provisions in the rules of the Society relating to meetings and elections shall apply to such meeting and election with necessary modifications.
(3) Where a meeting is called by the Registrar under sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the Society.
Explanation--For the purposes of this section, the expression "prescribed authority'' means an officer or Court authorised in this behalf by the State Government by notification published in the Official Gazette.
A plain reading of Section 25 indicates that almost all the controversies relating to election dispute may be referred to the Registrar of the Society which affects the outcome of the election. The Division Bench of this Court in the case of Basant Prasad Srivastava and others Vs. State of U.P. and others, had considered this aspect of matter and held that the order of any person or authority limiting the right to vote of election by certain person can be challenged before the competent authority or Court. The defective electoral roll can also be challenged before the competent authority or by filing a regular suit. There is no bar under the law to challenge the defective election roll as it affects the outcome of election.
Sub-clause (c) of sub-section (1) of the Section 25 of the Societies Registration Act provides that in case the result of any election is materially affected by the improper refusal or rejection of any vote or by non compliance with the provisions of Rules of the Society, then the dispute can be referred to the Prescribed Authority by the Registrar of the Society. The Explanation 1 of Section 25 of the Act further provides that in case there is fraud, intentional misrepresentation of facts or to do a certain thing which may amount to corrupt practice may also be a ground for dispute before the Registrar. Accordingly, though the complaints submitted by the rival parties against the voter list has been decided by the Deputy Registrar, but it is still open to them to challenge the outcome of the election by representing the Registrar in pursuance to the power conferred by Section 25 of the Societies Registration Act. After the declaration of the result, parties have got alternative remedy to challenge the outcome of the election including the alleged faulty electoral roll.
Sub-section (2) of Section 25 of the Societies Registration Act further provides that in case the election is set aside under sub-section (1) of Section 25 of the Act or in case the office bearers is no longer entitled to continue in office and the election has been not held within the specified time provided under the Rules of the Society, then the Registrar has got power to call a meeting of the General Body of the Society for electing new Office Bearers of the Society.
Sub-section (3) of Section 25 of the Act further creates a bar and prohibits by providing that in case the Registrar proceeds to call for a meeting of the General Body in pursuance to the power conferred by sub-section (2) of Section 25 of the Act, then any other meeting shall not be called for the purpose of election by any other authority or by any person claiming to be an Office Bearer of the Society.
Keeping in view the provisions contained u/s 25 of the Societies Registration Act referred hereinabove, petitioners have got statutory remedy under sub-section (1) of Section 25 of the Act to ventilate their grievance. Accordingly, on account of availability of alternative statutory remedy to approach the competent authority under sub-section (1) of Section 25 of the Act, it cannot be said that the petitioners are the remediless.
From the examination of various pronouncements of Hon''ble Apex Court as well as of this Court, it is now settled position of law that once the election process is started which includes the preparation of electoral roll, then ordinarily High Court should not invoke extraordinary jurisdiction of Article 226 of the Constitution of India and the aggrieved party shall have a right to challenge the outcome of the election in pursuance to the provisions contained in the Societies Registration Act or any other law time being enforced. The outcome of the election may also not be impugned under extraordinary jurisdiction of Article 226 of the Constitution of India in case the remedy to file an election petition or any other remedy under the Act or statute is available to an aggrieved person.
Admittedly, the election process has started on 15.10.2012 and tomorrow i.e. 20.10.2012 is the date fixed for polling. This Court in catena of decisions has held that once the election process starts, it must come to its logical conclusion and the aggrieved person is always at liberty to challenge the result of election by filing election petition in accordance with law. Accordingly, on account of availability of an alternative statutory remedy to approach the competent authority under subsection (1) of Section 25 of the Act, it cannot be said that the petitioners are remediless. Accordingly, the writ petition is misconceived and is hereby dismissed.