Judgment:
ORDER
Rajendra Menon, J.
1. Challenging the order, Annexure P-1, dated 16th March, 2007 passed by the Commissioner cum Registrar, Co-operative Societies, Bhopal (hereinafter referred to as 'the Registrar') cancelling the entire election to the Primary Agricultural Credit Co-operative Society Maryadit, Hastinapur, Tehsil Gwalior, petitioner has filed this petition. It is the case of the petitioner that the election programme for conducting the election to the Co-operative Society in question was published under Rule 41 (2) of the Madhya Pradesh Co-operative Societies Rules, 1962 (hereinafter referred to as 'the Rules, 1962') vide Annexure P-4. The last date for submission of nomination paper was 12th February, 2007, the nomination papers were to be scrutinized on 13th February, 2007, withdrawal of the nomination was to be done on 14th February, 2007 and the election was to be held on 22nd February, 2007. Thereafter, further election to the Executive Committee for the post of the President, Vice President and representatives of the Executive Committee was to be held on 23rd February, 2007 and 24th February, 2007. It is stated in this petition that in all 38 nomination papers were received, after scrutiny of nomination papers, 14 were found to be valid and 24 nominations were found to be invalid, therefore, these have been rejected and out of the 14 nominations, 3 persons withdrew their nomination papers and 11 nomination papers were left. According to the petitioner after 11 nomination papers were found to be valid, the names of these 11 candidates were notified under Rule 14 (11) of the Rules, 1962 vide Annexure P-5 and for the declaration as required under Rule 41 (12) of the Rules, 1962 was made vide Annexure P-l6. However, further proceedings were suspended vide Annexure P-7, dated 25th February, 2007 due to Lok Sabha elections and subsequently after the Lok Sabha Elections are over, the remaining election process started for electing the President, Vice President and representatives of the Executive Committee on 16th March, 2007 and 21st March, 2007 for various societies. In the meanwhile, it is stated that on the basis of some complaint said to have been received, the entire election has been cancelled by the impugned order. Inter alia contending that once the election process to the primary society has been completed, the Registrar does not have any power to cancel the election already concluded and the aggrieved person has to file an election petition and interference into the matter at that stage by the Registrar is uncalled called for and without jurisdiction, petitioner has filed this petition. Shri Raghavendra Dixit, learned Counsel appearing for the petitioner inviting my attention to the provisions of Section 64 of the Madhya Pradesh Co-operative Societies Act, 1960 (hereinafter referred to as 'the Act') pointed out that once the process of election is concluded, the Registrar does not have any authority, jurisdiction or power to interfere in the election and cancel the same. It is stated that an election process already commenced as per the notified programme has to be completed and any person aggrieved is required to challenge the same after the election is completed by filing an election petition. It is pointed out by Shri Dixit that in this case, intervener, Siyaram Sharma challenged the process of election in W.P. No. 956/2007 before this Court and vide order dated 23rd February, 2007 this Court refused to interfere in the matter and it was held that the petitioner. Siyaram Sharma has remedy of filing an election petition. Inter alia contending that in spite of the same, the complaint of Siyaram Sharma was entertained, inquiry was conducted behind the back of the petitioner and on the basis of the inquiry report, the election was cancelled. In support of the contention that once election process has commenced, the same cannot be cancelled or interfered with by the Registrar, Shri Dixit, learned Counsel for the petitioner has placed reliance on the principle laid down in the cases of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahkari Dugdhaa Utpadak Sanstha and Anr. v. State of Maharashtra and Ors. : AIR2001SC3982 , Bhopal-Co-operative Wholesale Consumer Stores Ltd., Bhopal v. M.P. Co-operative Tribunal and Ors. 2002(2) MPLJ 542 and K.G. Ansari v. S.P. Agarwal, Advocate, President, Bilaspur Grah Nirman Sahkari Maryadit, Bilaspur 1989 RN 106, Shri Raghavendra Dixit, learned Counsel for the petitioner submitted that in the facts and circumstances of the case as the election process had commenced and intervention by the Registrar at the intermediate stage is unsustainable, he is not empowered to take such an action.
2. Smt. Ami Prabal, learned Deputy Advocate General has produced the original record of the inquiry conducted and it is submitted that when election to various Co-operative Societies were initiated in the State of Madhya Pradesh, series of Public Interest Litigations were filed before the Principal Seat at Jabalpur and in most of the cases, allegations levelled were that the Returning Officers have indulged in en-mass rejection of the nomination papers, that being so, most of the candidates were declared as elected unopposed, it was pointed out that when number of complaints were received by the Registrar, the same were looked into and in many cases it was found large scale irregularity is committed and in cases where such irregularities were detected, the Registrar exercised the jurisdiction under Section 80-A of the Act and cancelled the election. In this case, it is submitted by Smt. Ami Prabal that as per election programme, nomination papers were to be scrutinized on 13th February, 2007. On 13th February, 2007, telephonic complaint was received by the Competent Authority that the Returning Officer has not reported at Hastinapur for scrutiny of the nomination papers. When the aforesaid information was received, one Shri J.L. Chaudhary, Zonal Officer immediately went to Hastinapur and found that neither the Returning Officer nor the manager of the society had reported at the office of the society to conduct scrutiny of the nomination papers up to 3.00 P.M., and they were not present in the office on 13th February, 2007, but 27 nomination papers were illegally rejected without giving any reason and without complying with the statutory provisions as contemplated under Rule 41 of the Rules, 1962. It was stated in this regard when a written complaint was received, inquiry was ordered and the Inquiry Officer submitted a report vide Annexure R-2 wherein the complaints with regard to absence of the Returning Officer and Manager of the society on 13th February, 2007 at the time of scrutiny of the nomination papers was found to be correct, the matter was placed before the Registrar and the Registrar exercising the powers conferred under Section 80-A of the Act thought it proper to cancel the entire election. It was emphasised by Smt. Ami Prabal that a Division Bench of this Court in the case of Radheshyam Sharma v. Chairman, Sewa/Griha Sahakari Samiti Lashkar, Gwalior and Ors. 1989 MPLJ 208, has held that normally in election process High Court or any other authority should not interfere. However, exception to the general rule is carved out by the Division Bench and it is held that if the High Court and the Competent Authority comes to the conclusion that the election held is a 'sham' and there is no election in the eye of law even if the election process has started interference can be made. In the facts and circumstances of the present case as the election was found to be a total sham and was done in a illegal manner, the action of the Registrar is argued to be proper and justified warranting no interference in this petition.
3. Even though objections have been raised with regard to right of intervention to intervene in the matter. Shri M.P.S. Raghuwanshi, learned Counsel for the intervener, Siya Ram Sharma submitted that the complaint was made by the intervener, therefore, he has to be given an opportunity to submit his say as the inquiry in the matter vide Annexure R-2 was made on the basis of the intervenor's compliant and the final decision is taken. Shri Raghuwanshi, learned Counsel appearing for the intervener and Smt. Ami Prabal, learned Deputy Advocate General contend that a Division Bench at the Principal Seat of this Court in Ramswaroop Yadav v. State of M.P. and Ors. W.P. No. 2090/2007, vide order on 13-3-2007, in similar circumstances has interfered with the matter and after cancelling the election had directed for holding fresh election. It is argued that in view of the aforesaid, no case is made out for interference. In support of their contention with regard to exercise of jurisdiction by the Registrar, they invites my attention to the principles laid down by the Supreme Court in the case of K.G. Ansari v. S.P. Agarwal, Advocate Vice President, Bilaspur Grah Nirman Sahkari Samiti Maryadit, Bilaspur 1989 RN 106.
4. Refuting the aforesaid contention raised by Shri M.P.S. Raghuwanshi, learned Counsel for the Intervener and Smt. Ami Prabal, learned Deputy Advocate General with regard to powers of the Registrar to interfere in the matter exercising the jurisdiction under Section 80-A of the Act, Shri Raghavendra Dixit, learned Counsel for the petitioner submits that the power under this section is a power of revision, therefore, as per proviso to this section, the Registrar can take action only after giving notice to show cause and giving opportunity of hearing. Inviting my attention to certain principles laid down by a Bench of this Court in the case of Lokendra Singh Bhadoriya and Anr. v. Board of Revenue and Ors. 1996 RN 393, argued that the word 'proceeding' used in Section 80 of the Act does not relate to and include an election petition. It is submitted by Shri Raghavendra Dixit that publication of election programme and the action taken in an election programme is not a proceeding within the meaning of Section 80-A of the Act, and therefore, jurisdiction and power cannot be exercised by the Registrar for interfering in an election proceeding. Accordingly, he submits that in view of the principle laid down in the case of Lokendra Singh Bhadoriya and Anr. (supra), the argument of the learned Counsel for the respondents cannot be accepted and no interference in the matter can be made by the Registrar and prays for quashing the order, Annexure P-1.
5. I have heard learned Counsel for the parties at length and perused the record.
6. Before adverting to decide the question on merit with regard to cancellation of the election in question, the power of the Registrar to interfere in the matter after part of the election process is concluded requires consideration. As this is the legal question warranting adjudication in this petition.
7. Section 80-A of the Act was incorporated with effect from 7th August, 1999, vide, amending Act No. 20/99. The aforesaid section contemplates that the Registrar may at any time on his own motion or on the application made by any party, call for and examine the records of any enquiry or proceedings held by a Subordinate Officer or a decision by a committee of a society, etc., can examine the legality, propriety and validity of the order passed or action taken and the Registrar in case it appears to him that any decision taken or any order passed or a proceeding held is illegal then the Registrar is empowered to pass such orders as he deems fit in the facts and circumstances that have come on record. The question, therefore, is as to whether the Election Officer or the Returning Officer can be terms as an 'officer subordinate' to the Registrar and whether a proceeding held for conducting an election can be a 'proceeding' as contemplated in Section 80-A of the Act.
8. Even though placing reliance on a judgment by a Bench of this Court in the case of Lokendra Singh Bhadoriya and Anr. (supra), Shri Raghavendra Dixit has emphasised that the 'proceeding' of an election is not a proceeding within the meaning of Section 80 of the Act. I am afraid the contention of Shri Dixit is incorrect. In the case of Lokendra Singh Bhadoriya and Anr. (supra), the learned Court has held in Paragraph 5 after considering the provisions of Section 80 that the preparation of voters list and publication of election programme cannot be a proceeding within Section 80 of the Act but the entire election conducted and the final decision is a 'proceeding' within the meaning of Section 80 of the Act. The learned Judge after considering the provisions of Section 80 of the Act and after taking note of the provisions of Rule 41 of the Rules of 1962 has emphasised that the proceedings will mean actual action taken in pursuance to the notification for election. Publication of a notification for election, it is held cannot be a proceeding by the officer subordinate to the Registrar. It is illustrated as an example that when a notice for no-confidence motion is issued, it cannot be said to be a proceeding but when the motion is discussed and a resolution is passed it becomes a proceeding. Similarly, it is held that the publication of election programme is nothing but the notice of election and manner in which the election has to be held, that is, filing of nomination papers, withdrawal of nomination papers, scrutiny, co-option and election of the members. The election alone shall be the proceeding by the Subordinate Officer. Thereafter taking note of the meaning of the word 'proceeding' as defined in the Shorter Oxford Dictionary, it is held that the entire election proceeding which include declaration of result is a proceeding held before the officer subordinate to the Registrar. It is held by the learned Judge in this case that the proceeding will mean where actual action in pursuance of notification taken place. This observation by the learned Judge is based on the principles laid down by a Bench of this Court in the case of Rustom Singh and Anr. v. Election Officer, Vipnan Sahkari Samiti Ltd., Lahar and Ors. 1990 RN 324, wherein after considering the provisions of Section 80 and Section 64 (2)(v) of the Act, it has been held by the Division Bench that an Election Officer is a Subordinate Officer to the Registrar and the election proceeding is a 'proceeding' in which the Registrar can interfere exercising jurisdiction under Section 80 of the Act of 1960, that being so, I find no substance in the argument advanced by Shri Raghavendra Dixit to the effect that the Registrar has no power to quash the process of election. Accordingly, it is to be held that the Returning Officer conducting election is a 'Subordinate Officer' as contemplated under Section 80-A of the Act and the election process as per the notified election programme is a 'proceeding' as contemplated under Section 80-A of the Act and the said view expressed by this Court is clearly established from the principle laid down in the cases of Lokendra Singh Bhadoriya and Anr. (supra) and Rustom Singh and Anr. (supra). Accordingly, the first contention of Shri Raghavendra Dixit with regard to power and jurisdiction of the Registrar to pass the impugned order is unsustainable and has to be and is hereby rejected.
9. The next question which requires consideration is once the election programme has commenced and in fact part of the election is held whether the Registrar was entitled to interfere in the matter or it was only in a dispute under Section 64 (5) of the Act that the Registrar could interfere. In this regard, the judgments relied upon by Shri Raghavendra Dixit do lay down the principle that once the election programme is commenced, the same should be allowed to be completed without any interference in any form, the principle is well settled from the judgments relied upon by Shri Raghavendra Dixit but at the same time a Division Bench of this Court in the case of Radheshyam Sharma (supra), has laid down the principle that under normal rule interference in a dispute relating to the election to the Co-operative Societies once the election programme is commenced will not apply, however, in a case where the facts and circumstances that have come on record indicate that the election process is a sham, it is not an election in the eye of law and the entire process stands vitiated, then interference can be made. This principle is reiterated recently by a Division Bench of this Court in the recent election held in the case of Ramswaroop Yadav (supra) and after taking note of the principle laid down in the case of Radheshyam Sharma (supra) has cancelled an election where en mass nomination papers were rejected and thereafter candidates were declared as elected unopposed. Now what is required to be considered by this Court is as to whether the facts and circumstances of the case that have come on record in the present case do indicate that the election process was empty formality warranting interference and cancellation of the election as has been done by the Registrar.
10. Smt. Ami Prabal, Deputy Advocate General has produced the original record for scrutiny to demonstrate before this Court that the entire election was an empty formality and it was not an election democratically held as contemplated under law.
11. As indicated hereinabove, the election programme was published vide notification, Annexure P-4 nomination papers were to be submitted by 12th February, 2007, scrutiny was to be held on 13th February, 2007 and last date for withdrawal of the nomination was 14th February, 2007. In the election programme, Annexure P-4, the date, time and place where the nomination papers are to be accepted is indicated as the office of the society at Hastinapur. Similarly, the date, time and place where the Returning Officer was to conduct scrutiny of the nomination papers is indicated as the office of the society at Hastinapur between 11 A.M. to 3.00 P.M., on 13th February, 2007. The record indicate that a telephonic communication was made to the Competent Authority on 13th February, 2007 that the Returning Officer has not come to the office of the society at Hastinapur to conduct scrutiny of the nomination papers as indicated in Annexure P-4. It is also indicated in the record so also in the return that the aforesaid complaint was received sometime in the after noon on 13th February, 2007. Thereafter, the Zonal Officer, M.P. Co-operative Societies visited Hastinapur and on his visit it was found that neither the Returning Officer nor the Manager of the society have come to the office on 13th February, 2007. Even though, scrutiny of nomination papers were to be held on the said date by the Returning Officer at Hastinapur. Consequently, an inquiry was ordered and the Inquiry Officer has submitted report vide Annexure R-2. The Inquiry Officer has found that in all 11 persons are to be elected in the entire election process. Upto 12th February, 2007, 38 nominations were received, the Returning Officer held 14 nomination papers to be in order and valid, rejected 24 nomination papers. Thereafter, out of the validly received 14 nomination papers, 3 persons withdrew their nomination papers, and therefore, 11 nominations were remaining and they have been declared to be as elected unopposed. During the inquiry it was established that the Returning Officer has not scrutinized the nomination papers in the office of the society as notified in the election programme. A finding has been recorded to the effect that for rejecting 24 nomination papers, no reason is given and the nomination papers have not been properly scrutinized after complying with the mandatory requirement. In the light of the facts that have come on record and the findings recorded in the report, Annexure R-2, it is to be held that the entire process of election was an empty formality, there was no election in the eye of law as held by a Division Bench of this Court in the case of Rustom Singh and Anr. (supra), under similar circumstances recently a Division Bench of this Court in the case of Ramswaroop Yadav (supra), interfered with a election held by acceptance of nomination papers to the extent of seats available and where improper rejection of large number of nomination papers was established, that being so, I am of the considered view that in the present case also, the Registrar has not committed any illegality in taking action as prima facie the material available on record indicates the election process in the present case was an empty formality and no election in the eye of law.
12. Even though, Shri Raghavendra Dixit, learned Counsel for the petitioner argued that the inquiry conducted and the report submitted vide Annexure R-2 is behind back of the petitioner and in fact, Shri J.S. Chaudhary, Zonal Officer did not visit the office of the society on 13th February, 2007 and that the facts stated in the said report are not correct, I see no reason to disbelieve the findings recorded in the report. There is no material available on record nor is there any pleading to suggest that J.S. Chaudhary, or the Inquiry Officer who had submitted the report, Annexure R-2 or the Registrar are personally biased with the petitioner or have any malice.
13. Under such circumstances, it has to be held that the State Government or the officials of the State Government will not file a wrong or incorrect affidavit before this Court, that being so, prima facie on the basis of the averments made in the return, the same are accepted. That apart, available on record is a panchnama prepared at 5.30 P.M., on 13th February, 2007 indicating that the Returning Officer did not visit the office of the society for scrutiny of the nomination papers as mentioned in the time schedule of the election programme, Annexure P-4.
14. Taking into consideration the findings recorded in the inquiry report and the time schedule fixed in the election programme, I see no reason to disbelieve the submissions made by the respondents in the return so also the original record produced. The contention of Shri Raghavendra Dixit to the effect that no opportunity of hearing was given to the petitioner for giving his say in the matter of inquiry is of no consequence.
15. Once it is found that the election conducted is an empty formality merely because the petitioner is not granted any opportunity to give his say in the inquiry report, the inquiry report cannot be discarded by this Court. This Court has gone through the original record produced and on going through the same, it is seen that various complaints have been received including the fact with regard to non-visit of the Returning Officer as per election programme for scrutiny of nomination papers at the office of the society.
16. Accordingly, in the facts and circumstances of the case as the Registrar has taken the action in the matter after considering the totality of the facts and circumstances of the case and after being satisfied that the so called election held was nothing but an empty formality, I see no reason to interfere in the matter as the order passed by the Registrar to conduct fresh election is only to ensure a proper, fair and free election.
17. Accordingly, finding no case made out for interference, petition stands dismissed with a direction to the Registrar to proceed with conducting fresh elections in accordance with law.