Judgment:
ORDER
1. Sher Chand and four others through present petition filed by them under Articles 226/227 of the Constitution of India seek writ in the nature of mandamus directing the respondents to hold the postponed election of Thathranwala Co-operative Agricultural Service Society Ltd. after declaring fresh election programme and inviting afresh nomination papers and further to appointanother official in place of respondent No. 3.
2. The relief as indicated above is sought to be made out from the facts which nee'd a necessary mention. It is pleaded that vide Resolution dated 23rd May, 1 993, the general meeting of the society was called on 28th June, 1993, wherein it was resolved to hold election of Committee comprising nine members of the society and election was fixed for 28th June, 1993. The time for filing of nomination papers was up to 9.30 a.m. on the same very date. On the date of election, the Presiding Officer was suddenly transferred at the spot by Assistant Registrar, Co-operative Societies, Ferozepur, respondent No. 2 and in his place Shri Mohinder Singh, Inspector Grade II, Co-operative Societies, Ferozepur was deputed. Besides Mohinder Singh one Shri Lekh Raj, Inspector Grade II, Co-operative Societies, Ferozepur was also deputed as Presiding or Returning Officer. At the time fixed for filing the objections and at the time of scrutiny of nomination papers, an altercation took place between two opposite groups. The bone of contention being that Shri Mohinder Singh respondent No. 3 was accepting nomination papers from only one of the opposite groups and was rejecting the nomination papers of other opposite group. It is pleaded that the entire effort was to declare one group elected unopposed. Twenty four persons filed their nomination papers including the petitioners and inasmuch as only nine members were to be elected, it is pleaded that nomination papers of only nine members of one group were accepted whereas all other nomination papers were rejected. The persons who have been favoured in regard to their nomination papers while accepting the same are stated to be Mehanga Ram, Ram Lal, Satish Kumar, Jagdish Chand, Surain Chand, Hardev Singh, Yodha Ram, Harish Chander and Partap Singh. The other members of the society obviously resented the rejection of their nomination papers and alleged favouritism to one set of group by respondents Nos. 3 and 4. Since the dispute could not be resolved, the election did not take place. Mohinder Singh, Presiding Officer cancelled the election to be held on that day by writing the order in the proceed-ings on 28th June, 1993. The said order is placed on the record of this case as Annexure P-2. The same reads as follows :--
'Dated
Proceeding of Committee, 77
28-6-1993According to the letter NO. 4070-71 R.K./F.P. dated 23-6-1993 of the Assistant Registrar, Co-Operative Societies. Ferozepur.I came for holding election of the Managing Committee of the Thathewala C.A.S.S. Ltd. As per fixed and approved election programme, the general meeting held at 8.00 a.m. of the Sabha Members in which the following were present:-
1. Sat Nam 2. Satpal and so on up to 198.Nomination papers in the General Meeting received During the scrutinty of the nomination papers, the situation being not in control, the further proceedings of election could not be taken. Therefore, the election proceedings are postponed.Sd/- in English
Mohinder Singh
3. Apprehending that Mohinder Singh who had postponed the election was proceeding to declared the election result on the basis of proceedings of 28th June, 1993 itself, the present petition was filed asking for the relief as indicated in the earlier part of the judgment. With a view to secure that direction as mentioned above, it is pleaded that the nomination papers at that time were tampered with and some fresh nomination papers were accepted by Mohinder Singh officially from some other persons from the period 28th June, 1993 till when the petition was filed on 15th July, i993. It is also pleaded that Mohiner Singh was earlier appointed as the Presiding or Returning Officer at the time of election of the,Panchayat of viliagc Mothan-wala, Block Guru Har Saltai, Tehsil and District Ferozepur. In his capacity as the Returning Officer he had accepted the nomi-nation papers of one family and rejected the nomination papers of other candidates and accordingly declared just one family comprising of husband, wife, son and brother-in-law as the elected unopposed members of the Gram Panchayat, Mothanwala. A Civil Writ Petn. No. 1541 of 1993, (reported in AIR 1993 Punj & Har 306) (Nachattar Singh v. State of Punjab) was filed in this Court which was allowed by a Division Bench of this Court with costs of Rs. 1,000/- which was to be recovered from respondent No. 3 alone. On that count it is pleaded that he is inimical towards the petitioners as they were supporters of the petitioners in Civil Writ Petition No. 1541 of 1993. Petitioner No. 1 also filed representation before respondent No. 1 bringing to his notice that Mohinder Singh was moving ahead with the election proceedings ex parte. It is also pleaded that there are no provisions in the Act authorising the Presiding Officer to postpone the election and only provision is for cancellation for which election programme has to be announced. Vide orders dated 23rd July, 1993 passed by the Motion Bench while considering an application under Order 1, Rule 10 of the Code of Civil Procedure for impleading the applicants as respondents to the writ petition as being the necessary party, the Court ordered their being impleaded as respondents. They were the persons whose nomination papers, according to them, were accepted. This case was ultimately admitted on 4th October, 1993.
4. Respondents have opposed the claim of petitioners by filing separate written statements, one by respondents 6 to 10, other by respondent No. 2 and yet another by respondent No. 5. It is pleaded in the written statement filed by respondent No. 2 by way of preliminary objections that the writ has become infructuous as the Deputy Registrar, Co-operative Societies, Ferozepur, has ordered that election which was postponed on June 28, 1993, would be held again from the stage where it was postponed and now election has been held on July 30, 1993. The writ, it is stated, does not lie and if petitioners are aggrieved, they can challenge the election held on July 30, 1993, by way of electionpetition before the Competent Authority. On merits, on the crucial question of postponement and rejection of nomination papers, it is stated that no Presiding Officer/Returning Officer was ever transferred. Mohinder Singh and Lekh Raj were deputed to conduct the election of the Society. In all 24 nominations were file and on scrutiny only nine nomination papers were found in order. Inasmuch as respondent No. 3 ordered adjournment in the matter situation being not under his control, election was to be held on the adjourned date. After the receipt of report from respondent No. 3, it was ordered that election shall be held on July 30, 1993. Respondent No. 5, the Administrator, in the written statement filed by him, has denied the facts by saying, by and large, that he is to say nothing in the matter as the averments made pertained to other respondents. But in paragraph 11A of the written statement he has admitted that as per Rule 23 of the Punjab Co-operative Societies Rules, 1963, election cannot be postponed but can only be cancelled.
5. Insofar as respondents 6 to 10 are concerned, they while contesting the matter plead that the petition has been filed by petitioners with an intention to restrict the electoral process and only motive behind this litigation, it seems, is abuse of the process of Court for material personal gains. Petitioners have not come to this Court with clean hands and have withheld and misstated the facts. Petitioners are members of the Thatheran-wala Agricultural Co-operative Society and they were not eligible to contest the election. They were also defaulters to the Society in share capital and in pursuance of provisions of Section 33H of the Bye-laws of the Agriculture Services Society Limited, they could not be elected as members of the Board of Directors. None of the petitioners was eligible for contesting election as all of them were defaulters in share capital towards the Society. Petitioner No. 1 also remained Committee Member for two terms, each lasting for a period of three years, which too is in contravention of Rule 26(b)(ii) which clearly provides that no person shall be eligible for being elected to the Committee of any Cooperative Society after he has served on theCommittee of that society whether before or after or partly before and partly after the commencement of the Punjab Co-operative Societies (Amendment) Act, 1963, for a continuous period of not less than six years unless a period of not less than three years has expired since he last so served. It is further pleaded that nominations of petitioners were rejected on valid grounds and all nominations which were accepted, were legally accepted. The official respondents have not committed any irregularity in conduct of election. Petitioners have been blamed for starting altercation at the time of elections and it was due to their conduct that remaining election process had to be postponed. Availability of alternative remedy of election petition has also been pressed into service for dismissing this writ, Transfer of Presiding/Returning Officer has been denied and it is further stated that no person was ever deputed as Presiding/Returning Officer for the conduct of elections to the Thatheranwala Co-operative Society and Mohinder Singh was only the person authorised as such in the first instance. 24 persons filed their nomination papers from 9.30 a.m. to 10.30 a.m. The time for objections to nominations was from 10.30 a.m. to 11.30 a.m. No objections were raised against the filing of nomination papers by anybody. Petitioners, thus, at that stage had no cause of grievance. The scrutiny of nomination papers was to be done from 11.00 a.m. to 12.00 noon. On scrutiny of nomination papers, it was found by the Returning Officer that only nine nomination papers were in order as the rest of them were rejected on one ground or the other. The allegation of petitioners that respondent No. 3 was accepting nomination papers of the opposite group only and rejecting that of the other group, has been denied. It is stated that nomination papers were rejected on valid grounds and there was no mala fide in the said action. Petitioners were defaulters and as such they were ineligible to contest the elections and their nominations were rejected on that ground. The altercation which took place was after the nomination papers of petitioners has been rejected on scrutiny. Realising that they were not eligible, they created an unruly situationby starting a fight. Presiding Officer requested them not to disrupt the election process but it was of no avail. The allegation of petitioners that election was cancelled by the Returning Officer, has been denied. As per orders of Mohinder Singh, it is clear that scrutiny of nomination papers had taken place when the situation was said to be not in control and the further proceedings had to be postponed. As the process of election was postponed including withdrawal of nomination papers, allotment of election symbols and voting, if need be, as after scrutiny only nine nomination papers were found to be in order and number of seats in the Committee was also nine, there was no question of allotment of election symbols and voting. The fact that nomination papers of petitioners had been rejected was leaked out to them by one Jaswant Singh, who is real brother-in-law of Sher Chand petitioner. The Presiding Officer requested the petitioners not to disrupt the election process. However, he was forced to postpone the election by the Station House Officer. During enquiry held by the Deputy Registrar, Co-operative Societies, Feroze-pur, it was found that the action of Returning Officer in rejecting the nomination papers was correct. After holding enquiries, the Deputy Registrar issued directions to the Assistant Registrar to proceed with the election programme from the point where it was postponed. The Assistant Registrar, vide his order dated July 28, 1993, appointed Shri Amrik Singh, Inspector, Co-operative Societies, Ferozepur, as new Returning Officer and Ashwani Kumar, Inspector, as Polling Officer and ordered that election process should be resumed from the point where it was postponed on June 28, 1993. Copy of orders of Assistant Registrar has been placed on records as Annexure R-2. The Administrator of the. Co-operative Societies then passed a resolution that further election process would be held on July 30, 1993. The Returning Officer appointed by the Registrar, then procured the records from the Administrator and perused the same. Subsequent to this, election process was taken up from the point where it was postponed i.e. scrutiny of nomination papers. The Returning Officerfound no infirmity with the rejection of nomination papers and, thus, declared the result as no voting was required. The result was forwarded to the office of Assistant Registrar with the records and the same was received there by the afternoon of July 30, 1993. That being the position, Mohinder Singh was not to declare the result but after regular enquiry, Returning Officer was changed and new Returning Officer had completed the election process in accordance with the rules.
6. Petitioners have filed replication by way of affidavit of Sher Chand petitioner to the written statement filed by respondents 6 to 10. It is pleaded therein that petitioners are not defaulters of any loan with respect to the Society which fact is evident from the certificate issued by the Secretary of the Society and duly attested by the Inspector, Cooperative Societies. Copies of these certificates have been placed on records, as Anne-xures P-4 to P-8. That apart, all the petitioners were allowed to participate in the general meeting of the Society and this in itself was indicative of the fact that they were not defaulters of the Society. With regard to eligibility of petitioner No. 1 to contest the election, it is pleaded that the said petitioner had never been the Committee member continuously for six years but the same was in breaks. The Joint Registrar vide his report dated July 22, 1993, had observed that he was fully eligible to contest the election as he had not remained Committee member continuously but with breaks. With regard to alternative remedy to election petition, it has been stated that this petition does not pertain to result of election but it is with regard to wholesale rejection of nomination papers, thus, debarring the petitioners to contest the election itself. Further, out of nine persons, whose nominations were accepted, it is stated, two were defaulters of the Society as is clear from the report of the Joint Registrar dated August 6, 1993. A copy of the report has been annexed with the replication as Annexure P-9. The enquiry mentioned in the written statement was initiated by the Registrar, Cooperative Societies on the representation filed by the petitioners and the Joint Registrar wasappointed as the Enquiry Officer, who submitted his report, Annexure P-9. From the perusal of the enquiry report, it is pointed out that in fact the nomination papers of petitioners were wrongly rejected and they were not defaulters of the Society. Moreover, out of the 15 nomination papers rejected, seven were not the defaulters and their nomination papers were rejected without any ground. It was further mentioned in the report aforesaid that Mohinder Singh, Presiding Officer, had given two contradictory reports and the unruly situation at the time of election was the result of favouritism shown by him (Mohinder Singh).
7. When this matter came up for hearing on November 10, 1993, after hearing the learned counsel for the parties at considerable length, in view of the allegations of bias against the authorities entrusted with the job of election, it was deemed appropriale to have the matter enquired into by the Registrar, Co-operative Societies, Punjab, Chandigarh, with regard to rejection of nominations of petitioners and to find out as to whether such rejection was envisaged under the provisions of the Rules. The parties appeared before.the Registrar in consequence of the orders, referred to above, who has submitted his report dated December 7, 1993. After hearing learned counsel for the parties, the Registrar observed that the main point involved in the present case was whether the nomination papers of the 24 candidates in question were wrongly accepted/rejected and in case there were some persons whose papers were wrongly accepted or wrongly rejected, this shall have the implication of vitiating the entire election. That being so, the Registrar agreed with the learned counsel for the petitioners that a report should be submitted by his office regarding all 24 persons as the same was relevant in the present case. The conclusion arrived at by the Registrar after properly scrutinising the relevant records is that out of nine persons, whose nominations were accepted by the Returning Officer, three persons, namely, Ram Lal, Jodha Ram and Harish Chander, were such whose nominations could not be accepted. Harish Chander was defaulter of share money to the tune of Rs. 50/-. In the case of Ram Lal, the seconderwas defaulter to the tune of Rs. IOO/- and second of Jodha Ram was defaulter of share money to the tune of Rs. 200/-. The nomination papers of these three persons, thus, should have been rejected by the Returning Officer. At Sr. Nos. 15 to 24 of the list, it was found that nomination papers of Balwinder Singh, Thakur Singh, Nanak Chand and Gurmukh Singh were wrongly rejected by the Returning officer whereas papers of others were rightly rejected. In nut shell the report of the Registrar is that the nomination papers of four persons in total were wrongly rejected by the Returning Officer and out of nine, papers of three persons were wrongly accepted. Nominations of six persons were rightly accepted and those of 11 persons were rightly rejected. Out of nine nomination papers held to be valid by the Returning Officer, there were three cases where the papers were wrongly accepted. This report of the Registrar has not been questioned but to the limited extent by the counsel for respondents that the same is not in accordance with the directions issued by this Court. It is argued that this Court directed the Registrar, Co-operative Societies, Punjab, Chandigarh to find out the validity of rejection of nominations of petitioners whereas the Registrar has widened the scope of directions given by this Court by examining and thereafter returning a finding with regard to nomination papers of all the 24 persons, who had filed nomination papers. There appears, to be some substance in the contention of the learned counsel but in the context of the facts of this case, same shall not assume much importance. It shall be seen from the pleadings of the parties that it is not only the rejection of nominations papers which was the only cry of petitioners but it was also alleged that nomination papers of respondents were wrongly accepted. In fact, the basic case of the. petitioners is that whereas, the group led by them was disregarded, the group led by respondents was favoured by respondent No. 3. The result of the case, thus, does hot depend upon recording a finding for of against with regard to illegal rejection of the nominations papers and, therefore, necessarily the matter has to be discussed with regard to other assertions of the petitioners that nomination papers ofrespondents were wrongly accepted. In fact, this Court in the contest of the pleadings of the parties, should have had report with regard to both i.e. illegal acceptance as also illegal rejection of nominations, However, at that stage it was not so suggested to the Court but this point was taken by the petitioners before the Registrar, who, in view of this Court, rightly went into the issue and commented upon illegal acceptance of nominations as well. That apart, simply because the Court did not mention in its order directing the Registrar to opine with regard to illegal acceptance of the nomination papers, no prejudice has been caused to the respondents. As mentioned above, this point is inherently involved in this case and has to be adjudicated upon. The only objection with regard to report of the Registrar, as noticed above, is thus repelled.
8. Coming now to the merits of the case, it is clear from the report of the Registrar, Cooperative Societies, Punjab, that nomination papers of four persons in all were wrongly rejected by resondent No. 3 and that of three persons were wrongly accepted. It is admitted position that in all 24 persons filed nominations. It is also admitted that out of 24 only nine were to be elected. After rejection and acceptance of nomination papers, as was done by the Returning Officer, only 9 were left in the fray and that being so there was to be no election at all the and all nine whose nomination papers were accepted, were to be declared elected unopposed. Had the nominations of four persons not been wrongly rejected and nominations of three persopns not been wrongly accepted, there would have been ten persons in fray and there ought to have been election. This process of election was defeated by simply rejecting four nomination papers, thus, leaving in fray only nine persons. If three nomination papers had been wrongly rejected, thus, once again leaving in all nine persons in the fray, this Court in all probability would have protected the election of those whose nomination papers were rightly accepted but this course now cannot be adopted as in the very nature of things, had the nominations been rightly rejected oraccepted, there would have been election which is the vary essence of the matter. By illegally rejecting four nomination papers, the Returning Officer avoided the election and irrespective of the (fact as) to whether alt these nomination papers were of such persons, who are not petitioners before this Court, shall not make any difference, as, in considered view of this Court, the election which is the very essence of the matter, could not be given a complete go-by in the way and manner it has been done.
9. It is true, that normally such matters should be raked in an election petition but relegting a citizen to a normal remedy under the local or special Acts is not a universal practice and it all depends upon the facts and circumstances of each case. A Division Bench of this Court in Nachhatar Singh v. State of Punjab, (1993) 14 LRS 33 : (AIR 1993 Punj & Har 306) dealing-with an objection to the maintainability of writ petition on account of availability of election petition under the provisions of Gram Panchayat Act held (at p. 310 of AIR) :--
'It is clear that while the remedy for the purpose of challenging the result of the election by way of and election petition under Section 13B of the Act may be available yet in the facts and circumstances of a particular case the High Court, could interfere under Article 226 of the Constitution. The mere availability of an alternative remedy is not the solitary test such remedy must, in addition be adequate and efficacious. It bears repetition that there is no constitutional bar to the maintainability of such a writ petition with respect to local bodies such as Municipal Committees, District Boards of Gram Panchayats in the manner indicated by the Constitution under Article 329(B) with respect to elections held to the State Assemblies or Parliament and in the absence of such a restraint, the scope of Article 226 is all pervasive and wide enough to read and remove an injustice suffered. This Court would not, therefore, throw out the writ petition at the very threshold and compound the sence of injury and injustice inflicted on the petitioners with another one at the hands of the Court by circumscribing artificially the scope of Article 226. The Court in exercising restraint mustnot clip its wings, though interference should be made, to use the repeated words, in the 'rarest of rare', cases. We, therefore, hold that though an alternative remedy by way of election petition is available to the petitioners, yet we find that it is not an efficacious one in the facts and circumstances of the present case.'
10. I followed the view expressed in Nachhatar Singh's case (AIR 1993 Punj & Har 306) (supra) in Civil Writ Petn. No. 1294 of 1993 (Mukhtiar Singh v. State of Punjab) which was decided on 13th September, 1993, but that apart the petitioners basically came complaining against postponement of the. election instead of cancelling the same and fixing a new date for the election whereas the whole procedure was to be abandoned, they had, thus, approached this Court at a time when the results had not been declared. It is during the pendency of the petition that new Presiding/Returning Officer took over the matter and proceeded from a stage from where the election was postponed on 28-6-1993. The matter was admitted to regular hearing on 9th September, 1993 after written statement of the respondents was filed, wherein obviously the objection with regard to non-maintainability of the writ petition on the ground that an alternative remedy was available was obviously taken and noticed by the motion Bench. Relegation petitioners to an election petition at this stage after admitting the petitjon despite of the objection with regard to the maintainability of writ at this stage would be inequitous as also any election petition now filed would be barred by limitation. Considering all the aspects of the matter as have been referred to abqve the contention of the learned counsel appearing for the resppndents that the writ petition is not maintainable on account of availability of the election petition is repelled. Resultantly, this petition is allowed. The elections of respondents which was held partly on 28-6-1993 and the remainingpn the postponed date as members of the society is set aside and a direction is issued t6 respondents Nos. 1 and 2 to hold fresh elections of the Thathranwala Co-operative Agricultural and Service Socie-ties Ltd., Thathranwala, in accordance with law. The procedure for holding the election must commence within 15 days from today and the elections concluded as per the provisions of the Punjab Co-operative Society (Amendment) Act, 1963 and the rules framed thereunder as also the bye-laws to the Thathranwala Co-operative Agricultural and Service Societies Ltd., Thathranwala. There shall, however, be no order as to costs.
11. Petition allowed.