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Judgment
The question involved in this case is, whether the final determination of the constituencies of a co-operative society can be set aside on the ground that in view of,
The second proviso to Section 29(3) of the U.P. Co-operative Societies Act, 1965 (the Act), the provisional determination of the constituencies should have been published again on postponement of the elections; and
The second proviso to Article 243ZJ of the Constitution, two constituencies ought to have been reserved for women,.
THE FACTS
The petitioner is a member of Sadhan Sahkari Samiti Limited, Goonda Kunwar, Block Vikram Jot, Tehsil Harraiya, District Basti (the Goonda-Kunwar co-operative society).
The Goonda- Kunwar co-operative society is a primary level co-operative society. The elections, in such primary co-operative societies, were held in the year 2009 and their term is three years. It is coming to an end in 2012.
The Registrar, Co-operative Societies, Lucknow (the Registrar) by notification dated 1.6.2012 published the election schedule for the elections of such co-operative societies.
In pursuance of the election schedule, a provisional determination of the constituencies was published on 30.6.2012 and objections were invited.
However, before the objections could be filed and decided, the elections were postponed by the notification dated 3.7.2012 (the Notification). This was done on the ground that the elections of the local bodies were also being held.
In the notification, a fresh schedule of the elections was also published. In this schedule, 10.9.2012 is fixed for the elections of the delegates of these primary co-operative societies.
It is said that no fresh provisional determination of constituencies was published. However, the same provisional determination of the constituencies was taken and objections were filed against the same. These were decided.
The objections in respect of two primary co-operative societies were accepted but the objections against rest of them (including against the Goonda-Kunwar co-operative society) were dismissed on 12.7.2012.
The aforesaid result of final determination of the of the constituencies was published in the newspaper dated 20.7.2012. Hence, the present writ petition.
POINTS FOR DETERMINATION
We have heard Shri H.R. Mishra and Shri Uma Nath Pandey, counsel for the petitioner; and the Standing Counsel for the respondents. The following points arise for determination in the case:
(i) Whether in the circumstances of the case, provisional determination of the constituencies should have been published again, as the election was adjourned on 3.7.2012;
(ii) Whether in view of second proviso to Article 243ZJ:
(a) Two constituencies for women and one for the Scheduled Caste/Schedule Tribe only should have been reserved; and
(b) No constituency should have been reserved for the backward class.
1st POINT : NO PREJUDICE TO THE PETITIONER
The counsel for the petitioner submits that:
The elections were postponed on 3.7.2012. All proceedings should have commenced afresh in view of the second proviso to Section 29(3) of the Act;
The provisional determination of constituencies should have been published again after 3.7.2012 and then the objections should have been invited.
The standing counsel submits that the submissions of the petitioner should not be considered on the ground that:
The determination of the constituencies is not part of the election process. The second proviso to Section 29(3) is not applicable to it; and
In case determination of the constituencies is part of the election process then the writ petition should not be entertained. The petitioner should be relegated to the election petition after elections are over.
It is not necessary to consider the submission of the respondents as we are not entertaining objection of the petitioner for the reasons mentioned in the succeeding paragraphs.
The 2nd proviso of Section 29(3) of the Act (see below) 1 provides that the Registrar may postpone the elections, where it is difficult to hold the elections on the date fixed. And, in such an event, all proceedings with reference to the election shall commence afresh.
In this case, the elections were postponed on 3.7.2012 and fresh schedule was published. Prior to this date, only provisional determination of constituencies was published on 30.6.2012. It was not final. It could be objected to. And in case, there was any valid objections, then it could be corrected.
In any case, the provisional determination of the constituencies already published could always be taken to be the provisional determination of the constituencies to be published afterwards. After all, it was only provisional or tentative; and not final.
Apart from the above, there are other reasons for not entertaining this objection. They are as follows:
Nothing has been pointed out to show that any prejudice has been caused to the petitioner by not publishing the provisional determination of constituencies again after the election was postponed and fresh schedule was published on 3.7.2012;
The petitioner in the writ petition has stated that he had filed his objections. However, the copy of the objection is not filed alongwith the writ petition. It is not clear whether the objection raised here was taken or not;
No illegality in determination of constituencies has been pointed out on merits.
In case, there is no prejudice, no illegality on merit, there is no justification to entertain the writ petition on this ground.
In our opinion, the petitioner cannot be permitted to raise the aforesaid objection as neither any prejudice was caused, nor any illegality on merits has been pointed out.
2nd POINT : CO-OPERATIVE LAW TO BE AMENDED BY 14.2.2013
Our Constitution has been amended by the Constitution (Ninetyseven Amendment) Act, 2011 with effect from 15.2.2012. It has inserted Part IX B to the Constitution. It contains Articles 243ZH to 243ZT.
The second proviso of Article 243ZJ (see below) 2 provides reservation of one seat for the Schedule Castes or the Scheduled Tribes and two seats for women. It does not provide any reservation for an OBC. However, at present, this Article is not enforced.
Article 243ZT of the Constitution (see below) 3 provides that the law relating to the co-operative societies in force in a State immediately before commencement of Part IX B will continue till it is amended by the competent legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier.
In our opinion, the final determination of constituency cannot be set aside merely on the ground that instead of two constituencies for women only one has been reserved, or reservation for backward class is not in conformity with Part IX B of the Constitution for the reason that:
Our State has not yet amended the Act, though we are informed that a committee has been constituted to recommend suitable amendments in the Act;
One year period has also not expired since insertion of Part IX B. It will expire on 14.2.2013. Therefore, the second proviso to Article 243ZJ is not applicable.
A SUGGESTION
The submission of the counsel for the petitioner in support of the first point was that the provisional determination of the constituencies should have been published again as the election was postponed.
We have neither considered the question whether the determination of constituencies is part of the proceeding with the election process nor the aforesaid submission on merit for the reasons mentioned under the first point. Nevertheless, the objection of the petitioner may be relevant.
There is a committee to suggest changes in the Act. It may consider this aspect also and suggest clarification, in case it is required.
CONCLUSIONS
Our conclusions are as follows :
(a) No prejudice was caused to the petitioner by proceeding with the provisional determination of constituencies already published on 30.6.2012;
(b) In the circumstances of the case, there is no justification to entertain the objection that provisional determination of the constituencies should have been published again after the elections were postponed and fresh election schedule was notified on 3.7.2012;
(c) The reservation in the constituencies cannot be struck down as violative of 2nd proviso to Article 243ZJ as neither the U.P. Co-operative Act, 1965 has been amended nor the grace period of one year for enforcement of Article 243ZJ has expired.
In view of our conclusions, the writ petition has no merits. It is dismissed.
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1.The relevant part of Section 29 is as follows:
Committee of Management.-
......
(3) Election to reconstitute the Committee of Management of a co-operative society shall be completed in the prescribed manner under the superintendence, control and direction of the Registrar at least fifteen days before the expiry of the term of the Committee of Management and the members so elected shall replace the Committee of Management whose term expires under sub-section (2) :
Provided that notwithstanding anything in this Act, the Administrator or the Committee of administrators appointed under this section, as it stood before the commencement of the Uttar Pradesh Co-operative Societies (Second Amendment) Act, 1994 shall continue to exercise the powers and perform the duties of the Committee of Management till the Committee of Management is reconstituted under this Act or till (December 31, 2000) whichever is earlier :
Provided further that where the State Government is satisfied that circumstances exists which render it difficult to hold the election on the date fixed by the Registrar, it may direct the Registrar to postpone the election, and thereupon the Registrar shall postpone the election, and all proceedings with reference to the election shall be commenced afresh in all respect.
The relevant part of the Article 243ZJ, (1) is as follows:
243ZJ. (1) The board shall consist of such number of directors as may be provided by the Legislature of a State, by law:
Provided that the maximum number of directors of a co-operative society shall not exceed twentyone.
Provided further that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class or category of persons.
Article 243ZT is as follows:
243ZT. Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less.