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Judgment
Heard learned counsel for the petitioner, State and the
respondent no. 8.
Despite valid service of notice on respondents no. 5,
6 and 7, nobody is present on their behalf when the matter is taken
up.
The petitioner has moved the Court against the order
dated 03.01.2015/14.01.2015 passed by the Joint Registrar, Co-
operative Societies, Magadh Division, Gaya in Election Case No.
10(Ka) of 2014-15, by which his election as Chairman of Dugal
PACS has been set aside and respondent no. 8 has been declared to
be the elected Chairman in his place.
The petitioner along with others had contested the
election for the post of Chairman of Dugal PACS and having polled
the highest number of votes, was elected to the said post. The
respondent no. 8, who was also a contestant and had secured the
second highest number of votes, moved before the Joint Registrar,
Co-operative Societies, Magadh Division, Gaya in Election Case No.
10(Ka) of 2014-15, with a prayer that the election of the petitioner
be set aside on the ground that he was only a member and had not
taken any share in the concerned PACS, which was a prerequisite for
being eligible to hold any elective post of the society. The case was
heard and by the order impugned dated 03.01.2015/14.01.2015, the
election of the petitioner on the post of Chairman was set aside and
further the respondent no. 8 was declared elected to the post.
Learned counsel for the petitioner submitted that the
ground taken by the Joint Registrar for nullifying the election of the
petitioner is erroneous both on facts as well as on law. He submitted
that the receipt on which the petitioner relies to show that he had
paid the amount for obtaining a share in the PACS in question has
not been accepted only on the ground that the original of the said
receipt could not be produced before him. Learned counsel
submitted that the original is available with him and also produced
the same before this Court. Learned counsel submitted that even
doubting the authenticity of the said receipt was misplaced. It was
submitted that his receipt bore Serial No. 27515 dated 01.12.2007
for Rs. 11/- whereas the receipt submitted by the respondent no. 8
has Serial No. 80942 dated 28.12.2008 for Rs. 1/- and if the issuing
authority of the said receipts had certified that the receipt shown by
the petitioner bearing Serial No. 27515 was issued to another PACS
only on 19.10.2010, then equally the serial number of the receipt
shown by the respondent no. 8 bearing number 80942 could not have
been issued in the year 2008. It was submitted that thus, without
there being an investigation/enquiry on the issue as to whether the
receipt produced by the petitioner or the respondent no. 8 was
genuine, there could not have been a presumption against him.
Coming to the issue of the Joint Registrar exceeding
his jurisdiction while passing the order to declare the respondent no.
8 as the elected Chairman, learned counsel refers to Sections 10(2)
and 13 of the Bihar State Election Authority Act, 2008 (hereinafter
referred to as the ''Act'') which stipulate that where the petitioner of
an election petition, in addition to claiming a declaration that the
election of all or any of the returned candidates is void, claims a
further declaration that he himself or any other candidate has been
duly elected, all the contesting candidates other than the petitioner,
and where no such further declaration is claimed, all the returned
candidates are required to be made a party to the petition, which in
the present case was lacking. Further, only if the person who has
filed an election petition has, in addition to calling in question the
election of the returned candidate, claims a declaration that he
himself or any other candidate has been duly elected, the Prescribed
Authority (Joint Registrar herein) has the power to declare the
petitioner of such election dispute or such other candidate, as the
case may be, to have been duly elected. It was submitted that in the
present case, such prayer to declare the election petitioner
(respondent no. 8) as elected, without any such prayer in the election
petition, the order impugned, at least, to that extent is totally without
jurisdiction and cannot be sustained.
Learned counsel for the respondent no. 8 submitted
that the report by the Authority, who has issued the receipts to
various PACS, states that such receipt was not only issued on
19.10.2010, but the same was also in favour of Ballar PACS and not
the Dugal PACS as claimed by the petitioner. It was submitted that
once the receipt has been found to be not only invalid but patently
fraudulent, for the reason that it has been used more than three years
prior to the date of its issuance and also belonging to another PACS,
the petitioner standing for the election based on such receipt was
itself without any legal sanctity and in fact a fraud and thus, all
subsequent acts based on such fraud, as per the settled law, also have
to go. However, with regard to the contention of learned counsel for
the petitioner that respondent no. 8 should not have been declared to
have been elected as Chairman as no such prayer was there in the
election dispute case, learned counsel for the respondent no. 8 was
not in a position to defend the same.
Learned counsel for the State submitted that the
Joint Registrar, in the background of the petitioner being found
ineligible to contest the election, has rightly set aside his election.
However, he also was not in a position to justify or defend the
portion of the order by which respondent no. 8 has been declared as
the Chairman of the PACS.
Having considered the rival contentions, the Court
does not find any merit in the challenge of the petitioner to the
setting aside of his election as Chairman of Dugal PACS. Though
the issue has not been approached by the Joint Registrar in the
manner in which the Court had looked at it on facts, the ultimate
arrival at the conclusion that the receipt shown by the petitioner in
his favour could not help him to prove that he had bought a share by
paying for the same, is confirmed from the records. Besides the fact
recorded that the series of the receipts, from which Receipt No.
27515 has been taken, was issued after nearly three years from the
date on which it is shown to have been issued in favour of the
petitioner showing him to have paid Rs. 11/-, perusal of the same,
copy of which has been made Annexure-1 to the writ petition, shows
that it contains three columns. The first relates to entry fee, the
second share money and the third membership fee. In column-1, the
entry shows Rs. 1/- and in column-3, it is Rs. 10/- whereas there is
no entry against column-2. Thus, even if it is assumed that the same
is authentic, it clearly establishes that the petitioner had paid only
Rs. 1/- as entry fee and Rs. 10/- as membership fee, but he had not
paid anything as share money. This receipt is the only document on
which the petitioner relies to prove that he had purchased a share in
the PACS in question so as to make him eligible for contesting for
the post of Chairman of the PACS. Section 44AQ (6) stipulates that
to be eligible to hold any elective post of the society, in addition to
paying a membership fee and becoming a full-fledged member of the
society, he had to purchase at least one share of the society. In the
present case, where there is no amount shown to have been paid for purchase of a share and the entry only showing payment of entry fee
and membership fee, the Court has no hesitation to hold that the
petitioner, upon his own showing, had not paid any share money and
thus, could not be said to have purchased even a single share of the
society and so was clearly ineligible to hold any elective post and
thus, could not have even contested for the post of Chairman, to
which he was also elected. Thus, to that extent, the order of the Joint
Registrar cannot be faulted and is upheld.
Coming to the other aspect of whether the Joint
Registrar could have declared respondent no. 8 as the elected
Chairman of the PACS in question, upon bare perusal of Sections
10(2) and 13 of the Act, such claim not having been made in the
election petition filed by the respondent no. 8 before the Joint
Registrar, declaring that the respondent no. 8 (election petitioner)
stood duly elected as Chairman, is clearly unsustainable.
Accordingly, order declaring the respondent no. 8 to be elected as
Chairman of the PACS in question is set aside.
In the result, without interfering in the order
impugned by which election of the petitioner as Chairman of Dugal
PACS has been set aside, the further order declaring respondent no.
8 to be elected, also having been set aside by this order, the post
stands vacated, for which the Election Authority under the Act shall
conduct elections in accordance with law expeditiously.
Let the Registrar, Co-operative Societies, Bihar,
Patna communicate the order to the State Election Authority for the
needful.
The writ petition stands disposed off in the
aforementioned terms.