Gaurav Sharma vs State Of Himachal Pradesh And Others

Sandeep Sharma, J

By way of instant petition filed under Art. 226 of Constitution of India, petitioner has prayed for following main reliefs:

“i) That a writ in the nature of certiorari may kindly be issued for quashing and setting the impugned order dated 19.07.2023 (Annexure P-1) issued by Respondent No.3, whereby the Nomination of the Petitioner has been rejected; and

ii) That a write in the nature of mandamus may kindly be issued and appropriate directions may kindly be issued to the respondents for accepting the Nomination Form of the petitioner i.e., Annexure P-4 and to allow the petitioner to participate as a candidate in the election to be held on 31.07.2023.”

Precisely, the facts of the case, as emerge from the record, are that the respondent No.2 issued a notice dated 30.6.2023 (Annexure P-2) declaring the schedule of elections to The Kailash District Cooperative Marketing and Consumer Federation Limited. Petitioner also filed his nomination for the post of Director (Annexure P-4). Since nomination of petitioner came to be rejected on the ground that his seconder/proposer himself is a candidate for the post of Director, petitioner has approached this court in the instant proceedings, praying therein for the reliefs, as have been reproduced hereinabove.

Having taken note of fact that as per election schedule, symbols are to be allotted on 20.7.2023, this court, instead of directing respondents to file reply, called upon learned Additional Advocate General to have instructions to the effect, “whether there is any bar under the relevant Rules for a candidate to be a proposer/seconder of another candidate?”

Pursuant to aforesaid direction, learned Additional Advocate General, besides having instructions, has summoned Shri Gaurav Chauhan, Deputy Registrar Co-operative Societies, who stated before the Court, that though there is no bar under the Rules for a candidate to be a proposer/seconder in the nomination submitted by another candidate, but such practice has been discouraged for the reason that it may not only lead to confusion but it would also raise question with regard to credibility of candidates contesting against each other.

Mr. Vikrant Thakur, learned counsel for the petitioner, while making this court peruse copy of order dated 4.9.2018 passed by Deputy Registrar (Consumer) Co-operative Societies, Himachal Pradesh stated that in similar facts, order of rejection of nomination paper by Returning Officer-cum-Block Inspector, Co-operative Socieites, Basantpur, Tehsil Suni, District Shimla, was set aside on the ground that there is no such Rule. He states that since it has been already held by this court that revision petition under S.94(2)of Co -operative Societies Act, 1968 is not maintainable by a private party, rather such power is to be exercised suo motu by the authority concerned, petitioner had no option but to approach this court in the instant proceedings.

Having heard learned counsel for the parties and perused material available on record, this court finds that there is no dispute that nomination of the petitioner has been rejected solely on the ground that his proposer/seconder is also one of the candidates for the post of Director. As has been fairly admitted by the Deputy Registrar Co-operative Societies present in court, that there is no Rule, which prohibits one candidate to be a proposer/seconder for another candidate, action of respondent No.2 in cancelling nomination of the petitioner cannot be said to be in conformity with the Rules.

Leaving everything aside, this court finds that the Returning Officer is only to scrutinize the nomination papers of a candidate with a view to hear any objection, which may be presented to him with regard to eligibility of a candidate, but in the case at hand, neither such objections ever came to be raised by opposite party nor Rule, if any, is in force, thereby justifying the action of Returning Officer qua his having rejected nomination of the petitioner. In similar facts, deputy Registrar Co-operative Societies, Himachal Pradesh vide order dated 4.9.2018 quashed and set aside order of Returning Officer, rejecting nomination papers on similar grounds as has been done in the present case.

Though there appears to be merit in the contention of the Deputy Registrar Co-operative Societies present in court that such a practice, if allowed, would not only create confusion but also encourage connivance inter se candidates, but till the time, such provision is made in the Rules, thereby prohibiting a candidate to be proposer/seconder of another candidate, action of respondent No.2 in cancelling the nomination of petitioner cannot be said to be justified.

Nonetheless, it has been brought to the notice of this court that proposer Shri Diwan Chand Sharma, proposer/seconder of the present petitioner, has already withdrawn his candidature for the post of Director. If it is so, objection raised by Returning Officer has been rendered infructuous.

Needless to say, Registrar Co-operative Societies, can always make amendment in the Election Rules formulated under Co-operative Societies Act, 1968.

In view of the detailed discussion made hereinabove, this court finds merit in the present petition and the same is allowed. Order dated 19.7.2023 (Annexure P-1) is quashed and set aside. Returning Officer is directed to accept the nomination of the petitioner, for the post of Director, in the Federation, if otherwise in order.

The petition stands disposed of in the afore terms, alongwith all pending applications.