ORDER
A.K. Mathur, C.J.
1. All these writ petitions are inter-connected, therefore, they are disposed of by common order.
In these writ petitions, the primary question to be considered is whether the Boards of the Co-operative Societies all over the State of Madhya Pradesh, which are continuing without elections, can survive or not. In the Writ Petitions 2924 of 1996 and 3342 of 1996, the challenge was by a writ of quo-warranto, whether the Chairman and the elected Boards can survive without elections for an indefinite period or not. It is significant to point out here that last elections for co-operative societies took place in 1984 and thereafter no elections took place and the elected incumbents of the Co-operative Societies are holding the office of Chairman/Presidents and Board of Directors continuously for one reason or the others.
2. In writ petition No. 2924 of 1996, the petitioners have sought a writ of quo-warranto against respondent No.4 Shri Subhash Yadav, President/Chairman of M. P. State Co-operative Bank Limited, Bhopal. The petition was admitted and notices were issued and, thereafter, on hearing both the parties, an interim order was passed by this Court on 17-9-1996 restraining the respondent No. 4 from functioning as the president/chairman of the M. P. State Co-operative Bank Limited, Bhopal. In W.P. No. 3342 of 1996, a similar writ of quo warranto was sought by the petitioner against the respondents 4, 6, 8 and 10 for restraining them from holding offices of chairman of M. P. Rajya Sahakari Bhumi Vikas Bank, Bhopal, M. P. Rajya Sahakari Upbhokta Sangh, Bhopal, M. P. Rajya Sahakari Vipanan Sangh, Bhopal and M. P. Rajya Sahakari Sangh Maryadit, Bhopal. The writ petition was admitted for hearing and the aforesaid respondent is 4, 6, 8 and 10 were restrained from functioning as chairman of their respective societies, by an interim order passed by this Court on 11-10-1996.
3. Subsequently, the Registrar of Co-operative Societies, Madhya Pradesh has issued order dated 22nd November 1996 in exercise of power Under Section 49 (8) of the M. P. Co-operative Societies Act, 1960 (for short the Act of 1960) and resumed the charge of all these co-operative societies. Therefore, as far as Writ Petition Nos. 2924 of 1996 and 3342 of 1996 are concerned, they have already become infructuous as the Registrar of Co-operative Societies, Madhya Pradesh has already taken over the charge of the Societies concerned. This order dated 22nd November 1996 has now been challenged in the following three writ petitions :-
(1) W.P.No. 5143 of 1996,
(2) W.P.No. 5171 of 1996, and
(3) W.P.No. 522 of 1996.
In these writ petitions, the order dated 22-11-1996 has been challenged on the ground that the elections were not held not at the instance of persons who are occupying the office. It is however pointed out that the elections could not be held for various reasons. It has been pointed out by learned counsel that first election was held in 1984 and the duration of the term was three years. Thereafter, the tenure of the Societies was increased by amending the law i.e. Sub-section (7-A) was inserted in Section 49 of the Act of 1960 by Amendment Act No. 25 of 1988. Again in 1990, it was reduced to three years, by M. P. Act No. 14 of 1990. In 1994, once again by Act No. 12/94 in force with effect from 8th May 1994, the period of tenure was extended to five years. It is pointed out that fresh process of election started in 1988 which was challenged before this Court. This Court by its judgment dated 21-6-1993 in M. P. No. 1111 of 1990, Anurudh Prasad Shastri and Ans., v. State of M. P. and Ors. struck down some provisions of the Act of 1960. Operative paragraph 14 of the judgment read thus :
'14. In view of the discussion aforesaid these petitions succeed and are allowed by quashing Section 48(4) and Section 49(8) of the Act, as amended by M. P. Act, No. 1490. As a necessary consequence, provisions of these Section s existing immediately before the aforesaid amendment would be deemed to be continuing legally and validly. As a necessary consequence, the officers of the earlier Managing Committee of the Petitioner Societies will continue to function, till elections are held, in accordance with law. They would be entitled to get charge of the Society, where charge had been taken from them by the Registrar or his nominee, pursuant to this amendment. The petitioners are also held entitled to costs of this petition. Counsel fee Rs. 250/- each. Outstanding amount of security, if any, shall be refunded to the petitioners.'
It is alleged that by virtue of this order, some of the incumbent who had demited offices were inducted.
4. The election process which had started in 1988 came to halt till 1993 when the general elections were ordered. In December 1993, new Government took over and the elections for panchayats were held in May-June, 1994. It is alleged that by Act No. 12/94, which Came into effect from 8-5-1994, certain provisions of the Act of 1960 were amended and Sub-section (7-A) and Sub-section (8) of Section 49 were also amended. It is then alleged that elections to the Municipal Corporations were ordered in 1994-95. It is further alleged that on 22nd July 1995, rules were amended and they were notified. Then on 16th August 1995, elections for 24 thousand primary societies were conducted. Thereafter, elections for other than non-agricultural societies, about 6000 in number, were conducted in March 1996. It is alleged that elections to other societies were postponed because of the monsoon. Then it is pointed out that on 16th September 1996, election process for Marketing Societies started and was completed on 16th October, 19%. It is further pointed out that on 13th September 1996, election for District Co-operative Banks started. The elections at the district level are likely to be over by 5th February 1997.
5. In the above background, it is pointed out that the election process was not deliberately postponed. Shri V. K. Tankha, learned counsel for petitioners submitted that Section 49(8), proviso 1, provides that it is obligatory for the outgoing committee of a Society to hold election prior to the expiration of its term under Sub-section (7-A) or extended term under Sub-section (7-AA) of Section 49 of the Act, 1960. The out-going committee shall apply to the Registrar for appointing of Returning Officer within a reasonable time which shall not be in any case less than three months, before the expiration of the term of the committee. It is further submitted that if the Committee requests the Registrar to hold the election at least three months in advance and the Registrar has failed to conduct election at the request of the Committee, the Registrar shall not assume charge of the Committee and the members of the Committee shall continue to hold the offices. It is further pointed out that in the second proviso, it is laid down that if the Registrar fails to conduct elections of the Committee within the period of 90 days from the date of expiry of the term of the committee, the committee of the Society shall appoint an election officer to conduct election within 180 days of the expiry of the terms. Section 49(8) (ii) further lays down that if the Committee fails to hold elections and has not handed over charge on expiration of the term specified in Sub-section (7-A) or extended term under Sub-section (7-AA) to the Registrar or any officer authorised by him in this behalf, all the members of the Committee shall be deemed to have vacated their seats and the Registrar shall assume charge and hold elections as early as possible. Learned counsel for the petitioners submitted that this provision will not apply in case of the petitioners, for the simple reason that the petitioners are holding office in pursuance of order passed by this Court dated 21-6-1993 in M. P. No. 1111 of 1990 and since election could not take place, therefore, they are continuing under the order of this Court. Alternatively it is submitted that Section 49(7-A) and (7-AA) of the Act of 1960 will not be applicable in the case of the petitioners as they are continuing under the orders of this Court dated 21-6-1993 in M. P. No. 1111/90.
6. We have heard learned counsel for the petitioners and suffice it to say that it is most unfortunate that a democratic country like ours, non-election is being sought to be justified for one reason or the other. All the justifications pleaded by the learned counsel for petitioners are nothing but an attempt to somehow avoid the election. In democracy, election is a must. To avoid election and allowing persons who have no justification to continue beyond their legal term is nothing but a slur on the society. If this state of affair is allowed to continue, then it will give rise to total anarchy which is anti-thesis to democracy. India is wedded to the democracy and founding fathers of the Constitution have envisaged that election is basic structure of our Constitution and frivolous justifications cannot justify non-holding of election. The amendment in Sub-section (8) of Section 49 by amendment Act No. 12 of 1994, which came into effect from 8th May 1994, reads as under:
'(8)(i) It shall be obligatory on the out-going committee of the Society to hold elections prior to the expiration of the term under Sub-section (7-A) or extended term under Sub-section (7-AA). The out-going committee shall apply to the Registrar for holding election within a reasonable time which shall not be in any case less than 90 days before expiration of the term of the Committee;
Provided that if the out-going committee has resolved and requested the Registrar to hold election at least 90 days in advance and the Registrar has failed to conduct elections on its request, the Registrar shall not assume charge of the Committee and the members of the committee shall continue to hold the offices;
Provided further, that if the Registrar fails to conduct elections of the committee within 90 days from the date of expiry of the term of the committee, the committee of the society shall appoint Returning Officer who shall conduct the election of the committee within 180 days from the date of the expiry of the term.
(ii) If the committee fails to hold election and has not handed over the charge on expiration of the term, under Sub-section (7-A) or extended term under Sub-section (7-AA) to the Registrar or any officer authorised by him on his behalf, all the members of the committee shall be deemed to have vacated their seats and the Registrar shall assume charge and hold election as early as possible.'
Second proviso to Section 49(8) (i) of the Act makes it clear that in case within 90 days of expiry of the term of the committee, Registrar does not conduct the election, then the committee of the society shall appoint Returning Officer to conduct election of the committee within 180 days from the date of expiry of the term. Even then if election is not held within the extended period by the committee, then the effect has been given in Sub-clause (ii) of Sub-section (8) of Section 49 of the Act of 1960 that all the members of the Committee shall be deemed to have vacated their seats and the Registrar shall assume charge and hold election as early as possible. Thus, the effect of non-holding of election within 180 days is automatic that all the incumbents shall stand to have vacated the office under Sub-clause (ii) of Sub-section (8) of Section 49 of the Act of 1960. The effect in such a situation being automatic and now the Registrar realising this effect of Section 49(8)(ii) has issued order dated 22-11-1996. Such an order cannot be said to be bad on any count. It was only a declaration which ought to have been given effect to long back. However, it has now been given effect and the election process is on. Hence, we do not find any justification to interfere in this order.
7. Another batch of writ petitions pertains to the prayer that all the District Level Co-operative Societies which are headed by the Chairmen and Members of the Boards all over the State of M. P. should also be restrained from functioning by virtue of Section 49(8)(ii) of the Act of 1960. These writ petitions are W. P. No. 4126/96, W. P. 4473/96, W. P. No. 60/97 and W. P. No. 83/97. An affidavit has been filed by Shri R. C. Ghiya, Joint Registrar, Co-operative Societies, Jabalpur and it has been pointed out there in that the election to the District Co-operative Banks is likely to be over by 5th of February 1997. Since the election process at the district level Co-operative Societies is already in progress and it is likely to be over by 5th February 1997 as per the election programme, therefore, no useful purpose would be served in creating chaos by restraining the chairmen and members of the Boards from functioning. The contention appears to be reasonable. However it is made clear that if the elections are not over by 5th of February, 1997, then all the members of Boards of Directors as well as Chairmen of District Level Co-operative Societies in the whole of the State of M. P. shall be restrained from functioning from 15th February, 1997 and the Registrar/Joint Registrar/Deputy Registrars, as the case may be, shall assume charge of all the societies of Madhya Pradesh.
8. In the result, W. P. No. 2924 of 1996 and W. P. No. 3342 of 1996 are dismissed as infructuous. Writ Petitions Nos. 5143/96, 5171/96 and 5222/96 are dismissed being bereft of merits and Substance. Writ Petition Nos. 4126/96, 4473/96, 60/97 and 83/97 are disposed of in light of aforesaid directions. There shall be no order as to costs.