JUDGMENT
S.S. Byas, J.
1. In this petition under Article 226 of the Constitution, the petitioner prays for (1) quashing Annexure P/8 and Annexure P/9, by which the election of the members of the Committee of Kray Vikray Sahkari Samiti, Deedwana was postponed and (2) directions to the respondents to declare the ten persons mentioned in Annexure P/10 as duly elected members of the Committee.
2. As per averments disclosed in the petition, respondent No. 6 Hanuman Singh was appointed as the Election Officer to conduct the election for the constitution of the Committee of Kray Vikraya Sahkari Samiti, Deedwana. The Election Officer published the notice-cum-programme of the election vide Annexure 1 dated January 27, 1987. The final lists of voters (Annexure 4 and Annexure 5) were published on January 31, 1987. The nomination papers were to be presented between 11.00 a.m. to 4.00 p.m. on February 3, 1987 for eleven vacancies. In all, ten nomination papers were filed. The names of the ten candidates who had filed the nomination papers, were notified on February 3, 1987 by Annexure 10. The scrutiny of the nomination papers was to take place between 10.00 a.m. to 5.00 p.m. on February 4, 1987. The Election Officer postponed the election by this order Annexure 9, which he issued at 6.10 p.m. on February 3, 1987. The election as per reason mentioned in Annexure-9, was postponed on account of some order of the Assistant Registrar, Co-operative Societies, Nagaur. Annexure-8 is the copy of the telegram issued by the Assistant Registrar to the Election Officer directing him to postpone the election. It was averred-by the petitioner that he is one of those ten candidates who had filed the nomination papers. Once the process of election had started, the election could not be averted or postponed by the Assistant Registrar or the Election Officer. The election was postponed on extraneous considerations. Since the vacancies were eleven and only ten persons had filed their nomination papers, they were deemed to be duly elected. The rival group led by the local M.L.A. Mr. Bhanwara Ram (respondent No. 4) was not happy due to the unopposed election of the ten persons. Mr. Bhanwara Ram misused his political weight and succeeded in getting the election postponed. The Registrar, Co-operative Societies, Rajas-than, Jaipur, issued the original order for postponing the election, in sequence of which were passed orders Annexure-8 and Annexure 9. The Registrar too had no powers to postpone the election. Allegations of malice were made against Mr. Ramdeo Singh Mahariya, Minister, Co-operative Department, Rajasthan.
3. The respondents filed the return and admitted virtually all the averments of the petitioner except those relating to malice, extraneous reasons and the want of authority in the Registrar to postpone the election. It was submitted that on January 29, 1987, the local M.L.A. Mr. Bhanwara Ram, the Chairman of Block Congress Committee, Deedwana and the Ex-Chairman Koliya Mahaveer Gram Sewa Sahkari Samiti, Deedwana submitted an application before the Minister, Co-operative Department, alleging some irregularities in the preparation of voters lists. The Minister passed the following order:
this may be examined and immediate action be taken. I may be informed of the action taken
On February 1, 1987 and sent it to the Registrar, Co-operative Societies. The Registrar, Co-operative Societies initiated an inquiry into the matter and since then inquiry was likely to take some time, he thought it proper to postpone the election. He, therefore, passed order Annexure R/1 on January 30, 1987 postponing the election. It was submitted that the Registrar had powers and authority to postpone the election on the ground that the voters lists were not correctly prepared.
4. We have heard the learned Counsel for the parties and examined the various orders passed by the Election Officer, the Assistant Registrar and the Registrar, Co-operative Societies.
5. At the fore-front of his arguments, it was contended by the learned Counsel for the petitioner that once the process of election has started under Rule 32 of the Rajasthan Co-operative Societies Rules, 1966 (for short ‘the Rules’) the election cannot be averted or postponed by the Registrar. Reliance in support of the contention was placed on Kuldeep Srivastava v. State of Rajasthan D.B. Civil Writ Petition No. 1172/1987 decided by a Division Bench of this Court at Jaipur. It was on the other hand, contended by the learned Additional Advocate General that under Section 75 of the Rajasthan Co-operative Societies Act, 1965 (here in after to be referred to as “the Act’), any dispute arising in connection with the election of any officer of the society is to be decided by the Registrar. Our attention was drawn to Clause (c) of Sub-section (2) of Section 75 of the Act.
6. The clinching issue before us is: whether the Registrar has power and authority under the Act or the Rules to postpone the election of the society when the process for election has taken place, voters lists have been published, nomination papers have been invited and filed and the date of scrutiny of the nomination papers and the date of polling have been fixed. In Kuldeep’s case (supra), the learned Judges took the view, that the State Government or the Registrar have no powers under Sections 75 or 128 of the Act to stay the election process after the same has commenced. We are in complete agreement with the view expressed in Kuldeep’s case. How ever, we may add a few additional reasons other than those mentioned in Kuldeep’s case.
7. Rule 32 speaks about the election of Members of a Committee by the General Body. It would be useful to re-produce Sub-rules (2) to (10) of Rule 32, which have a direct bearing on the controversy involved:
(2) The election shall be held at a general meeting of the Society of which not less than seven clear days notice shall be given to the members. The Election Officer shall commence and conduct the election; provided that at the commencement of the meeting there shall be the quorum specified in the rules or the bye-laws;
(3) (i) The notice of the general meeting shall be sent by the Election Officer to the members by one or more of the following modes, namely:
(a) by local delivery;
(b) by post under certificate of posting;
(c) by circulation among the members;
(d) by publication through beat of drum; or
(d) by publication through press.
Notices of the general meeting shall be affixed to the notice board of the Society and published at such public place of importance as may be decided by the Election Officer.
(ii) the notice shall contain information regarding;
(a) the number of vacancies to be filled up by election;
(b) any area or constituency that is specified in the bye-laws from which the members are to be elected;
(c) the qualification if any prescribed in the bye-laws for eligibility for membership of the committee;
(d) the date on which the place at which and the hours between which nomination papers shall be filed by member, such date being not less than three clear days before the date fixed for election, or if that day is a public holiday the next succeeding day which is not a public holiday;
Explanation–In this clause “public holiday” means any day which is a public holiday for the purpose of Section 25 of the Negotiable Instruments Act, 1981 (Central Act XXVI of 1981) or any day which has been notified by the Government to be holiday for the Government Offices in the State.
(e) the date on which, the place at which and the hours when the nomination papers will be scrutinized; and
(f) the date on which the place at which and the hours between which the polling will take place.
(4) The Election Officer shall prepare a list, as it stood thirty days prior to the date fixed for the poll of members who are qualified in accordance with the provisions of the Act, rules and the bye-laws framed thereunder to vote at the election and publish copies of the list by affixing them to the notice board at the head office of the Society and all its branches not less than ten days prior to the date fixed for election. The list shall specify the admission number and name of the eligible member, and in case of individual members, the name of the father or husband and the address of such member. A copy of the list shall be supplied by the Election Officer to any member or payment of fifteen paise per folio.
(5) (i) The nomination of a candidate for election shall be made in Form No. “G”. The form shall on application, be supplied to a member on payment of such fee as may be specified by the Election Officer;
(ii) Every nomination paper shall be signed by two members whose names are included in the list referred to in Sub-rule (4). One of the members shall sign the Form as proposer and the other as seconder for the nomination. The nomination paper shall also contain a declaration signed by the candidate proposed for election to the effect that he is willing to stand for election
(iii) Every nomination paper shall be presented in person to the Election Officer by the candidate himself or by his proposer or seconder, before the date and hour specified in the notice referred to in Sub-rule (3).
(iv) (a) The Election Officer shall enter on the nomination paper its serial number and certify the date and hour at which the nomination paper is received by him and also immediately acknowledge receipt of the nomination paper.
(b) Nomination papers received after the date and hours fixed under clause (ii) of Sub-rule (3) shall be rejected.
(6) (i)(a) On the day following the date fixed for the receipt of nomination papers, the Election Officer shall take up the scrutiny of the nomination papers at the time fixed under clause (ii) of Sub-rule (3). The candidates for election, their proposers or seconders may present themselves at the time of scrutiny;
(b) The Election Officer shall examine the nomination papers and shall decide all objections which may be made at the time of the scrunity and may either on such objection on his own motion after such summary enquiry, if any, as he thinks necessary, reject any nomination for valid reasons;
Provided that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of his name or of the name of his proposer or seconder or of any other particulars relating to the candidate or his proposer or seconder, as entered in the list of members referred in Sub-rule (4), if the identity of the candidate, proposer or seconder, as the case may be, is established beyond reasonable doubt.
(ii) The Election Officer shall give all reasonable facilities to the contesting candidate or their representatives to examine all the nomination papers.
(iii) The Election Officer shall endorse on each nomination paper, his decision accepting or rejecting the same and, if the nomination paper is rejected, he shall record in writing a brief statement of his reasons for such rejection.
(7) The list of valid nominations, shall be published on the notice board of the Society on the same day on which the scrutiny is completed.
(8) (i) Any candidate may withdraw his candidature by notice in writing signed by him and delivered at any time after the presentation of his nomination paper but before 5 p.m. on the day following the day on which the valid nominations published under Sub-rule (7) to the election officer by such candidate in person. A notice of withdrawal of candidature once given shall be final.
(ii) The list of contesting candidates shall be published on the notice board of the society after the time of withdrawal is over, on the same day.
(9) If for any area or constituency for which election is to be held the number of candidates in respect of whom valid nomination papers have been filed does not exceed the number of candidates to be elected for that area or constituency, the candidates for whom valid nomination have been received shall be deemed to have been duly elected for the area or constituency as the case may be and the names of such candidates shall be published on the notice board of the society, after the date and time fixed for withdrawal under Sub-rule (8).
(10) If the number of candidates for any area of constituency for which valid nominations have been received exceeds the number to be elected, the Election Officer shall arrange for taking a poll on the date fixed for the purpose and he may appoint one or more polling officers, as may be necessary.
8. Rule 27 of the Rules lays down that every Co-operative Society shall prepare a list of its members at the last date of each co-operative year.
The list can be seen and inspected by any of the members of the Society. This list of members must be revised thirty days prior to the date of meeting fixed for the election of the committee of the society. Section 19 of the Act lays down as to who can be admitted as a member of the co-operative society. Sub-section (3) of Section 19 lays down the remedy of appeal to the Registrar by a person whose application has been refused for admission as a member. As such, if any body has a grievance in respect of his membership on the cooperative society, he has a remedy by way of appeal to the Registrar. The list of members under Rule 24 is prepared of the persons who are members of the society. The Registrar, therefore, can interfere in the list of the members of co-operative society only when the matter reaches him under Section 19 of the Act by way of an appeal. The Registrar is not competent, as the scheme of the Rules and the Act show, to make an interference otherwise than by way of an appeal in the voters list prepared under Rule 24 of the Rules. Simply because somebody approaches him and makes a grievance about the incorrect preparation of the voters list, the Registrar cannot make any interference. It is interesting to note that no person approached the Minister or the Registrar that his name has not been wrongly shown in the voters list. A vague grievance of the voters list being not correctly prepared, does not authorise the Registrar to stay and stall the election of the committee of the society.
9. Sub-rule (4) of Rule 32 of the Rules speaks about the preparation of the electoral roll. The electoral roll is to be prepared as it stood thirty days prior to the date fixed for the poll of members of the committee. The fixing of the date of poll is a condition precedent for the preparation of the electoral roll. The electoral roll is to be prepared by the Election Officer and objections against it must be filed within a week. Sub-clause (ii) of Sub-rule (4) of Rule 32 authorises the Election Officer to hear the objections and thereafter to finalize the voters list. In the instant case, Annexure-1 shows that voters list was published on January 24, 1987, the date for inviting objections was fixed on January 31, 1987 and the final voters list was published thereafter on the same day. We could not lay our hands on any provision in the Act and the Rules nor was any such brought to our notice by the learned Additional Advocate General that the Registrar can make any interference in this electoral roll after it had become final on January 31, 1987.
10. We may refer to Clause (c) to Sub-section (2) of Section 75 of the Act, which authorises the Registrar to decide any dispute arising in connection with the election of any officer of the society. Whether the voters list under Rule 32(4) of the Rules was correctly prepared or not, is a dispute arising in connection with the election of the members of the committee. If anybody feels aggrieved by the incorrect preparation of the voters list, he can raise a dispute challenging the election under Section 75(2) of the Act. The Registrar, in such a case, can decide whether the voters list was or was not correctly prepared. But he can decide so only after the election had taken place and not prior to it He cannot stay or stall the election of the members of the committee on the ground that certain irregularities have been committed in the preparation of the voters list. The Registrar’s order Annexure-R/1 and orders Annexure-8 and Annexure-9 (which are based on Annexure-R/1) were thus, passed in contravention of the provisions of the Act and the Rules. They are illegal and inoperative and should therefore, be quashed.
11. Order Annexure-9 was passed at 6.10 p.m. on February 3, 1987. The time for filing the nomination papers was from 11.00 a.m. to 4.00 p.m. on February 3, 1987. The nomination papers were filed within this time on February 3, 1987 and Annexure-10, which is the list of the candidates who had filed the nomination papers, was published at 5.00 p.m. that is to say, before order Annexure-9 was passed. The Election Officer has, thus, completed the stage of election of inviting the nomination papers and publishing the list of the candidates. He was thereafter to do the scrutiny of the nomination papers on February 4, 1987. The effect of the order Annexure 9 was that the election got stayed from the stage of scrutiny of the nomination papers. The Election Officer should, therefore, be directed to proceed with the election from the stage of the scrutiny of the nomination papers.
12. The question that the ten candidates, who had filed their nomination papers, should be declared duly elected because the vacancies were eleven, cannot be decided in this petition because scrutiny of the nomination papers has not taken place. The contingency under Sub-rule (9) of Rule 32 of the Rules arises only after the scrutiny of the nomination papers and the withdrawal from candidature, if any.
13. In the result, we allow the writ petition and set-aside the orders Annexure R/1 of the Registrar dated January 30, 1987, order Annexure 8 dated February 2, 1987 of the Assistant Registrar, Nagaur and order Annexure-9 dated February 3, 1987 of the Election Officer. The Election Officer, who is respondent No. 6 (Mr. Hanuman Singh) is here by directed to conduct the election of the Members of the Committee of Kray Vikray Sahkari Samiti, Deedwana (District Nagaur) and will proceed from the stage of the scrutiny of the nomination papers. No order as to costs.
