Hon'ble Abdul Moin,J.
(Dictated by Hon'ble Abdul Moin, J)
1. Heard Sri Dwijendra Mishra, learned counsel for the petitioner, Sri Shailendra Singh Chauhan, learned Additional Chief Standing counsel for the State-respondents and Sri Gaurav Mehrotra, learned counsel for the respondent-Election Commission.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
" To Issue a writ in the nature of Certiorari to quash the impugned order dated 05.03.2018 passed by the Election Commissioner Co-operative contained as Annexure no. 1 to this writ petition.
To issue a writ, order or direction in the nature of mandamus commanding of the opposite parties to hold the election of the Committee of Management of Sitapur Kray Vikray Sahkari Samiti Ltd, from the stage from where it has been disrupted I.e from the stage of voting,as earlies as possible.
Such other writ, order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case.
To award the cost of the petition in favour of the petitioner."
3. The case set forth by the petitioner is that he is a member of Sitapur Kray Vikray Sahkari Samiti Ltd, district- Sitapur (hereinafter referred to as " Samiti") and has contested on the post of Director from private member constituency. The Samiti is a Central Co-operative society registered under Section 7 of the U.P.Co-operative Societies Act, 1965 (hereinafter referred to as " Act, 1965") and the term of the elected Committee of Management is five years and the term of members of the Committee of Management is co-terminus with the term of such Committee. The election of the outgoing Committee of Management was held in the year 2013 and the election for constituting new Committee of Management was announced vide notification dated 03.02.2018. The Assistant Commissioner, Assistant Registrar, District Co-operative Election Officer vide order dated 15.02.2018 finally determined the limitation of constituencies.
4. As per election schedule, the nomination papers for the post of the members of Committee and Management were filed on 26.02.2018 and after scrutiny of nomination papers, the valid nomination papers were published on 26.02.2018. The Election Officer through notice dated 28.02.2018 allotted the election symbols to the candidates whose nomination papers were found valid. It is contended by the petitioner that for 13 post of the members of Committee of Management, the nomination papers were filed amongst which Godla Mau Director Constituency, which is reserved for general category woman, only one candidate namely Smt. Sarvaina filed her nomination. As regards the private member constituencies for the post of two directors, only two nomination papers were filed one by the petitioner and another by Sri Bhola and it is contended that both the nomination papers for private member constituency were found valid and accordingly, by placing reliance on Rule 43 (1) of Uttar Pradesh Co-operative Society Election Rules, 2014 (hereinafter referred to as " Rules 2014") the petitioner contends that the petitioner Akib Hasmi, Sri Bholu and Smt Sarvaina should be declared elected.
5. The petitioner contends that Rule 43(1) of the Rules, 2014 stipulates that if in any constituency, the number of valid nomination papers do not exceed the number of members of the Committee of Management to be elected from that constituency, in such situation the Returning Officer is duty bound to declare those persons elected whose nomination papers have been found valid. Thus by placing reliance on Rule 43 (1), the petitioner contends that he i.e Akib Hasmi alongwith two others namely Bhola and Smt Sarvaina are duly elected and consequently their election can only be questioned under Rule 444-C of the U.P. Co-operative Societies Rules, 1968 (hereinafter referred to as " Rules, 1968) read with Rule 50 of the Rules, 2014 by way of filing election petition/election suit and the impugned order could not have been passed.
6. However, disregarding the aforesaid, an order dated 05.03.2018 was issued by the Election Commission disrupting the election of the Committee of Management at the stage of voting which was scheduled to be held on 06.03.2018 and where allegedly the three directors i.e the petitioner, Bhola and Smt Sarvaina had already been declared elected. Copy of order dated 05.03.2018 is Annexure No. 1 to the writ petition.
6. The petitioner contends that the power of the Election Commission are circumscribed under Section 29 (3) of the Act, 1965 and the Election Commission, by passing the order dated 05.03.2018, clearly exceeded its jurisdiction and consequently the impugned order would be vitiated. The petitioner also contends that the impugned order dated 05.03.2018 is also against the mandate of Rule 444-C of the Rules, 1968 as well as Rule 43 (1) of the Rules, 2014. It is also contended that a Full Bench of this Court in the case of Ramesh Kumar Vs. State of U.P and others reported in 1992 1 UPLBEC 292 has held that Registrar or the Election Officer can revise the schedule of the election process from the stage when it was disrupted and consequently the action of the Election Commission by passing the impugned order would be vitiated and hence after quashing of the order dated 05.03.2018, this Court may direct the respondents to hold the election of the Committee of Management of the society from the stage where it has been disrupted.
7. On the other hand, Sri Gaurav Mehrotra, leaned counsel for the Election Commission while arguing the matter, has also produced the original records. Sri Mehrotra states that the order dated 05.03.2018 passed by the Election Commission is perfectly legal and valid and has been passed by the Election Commission in pursuance to the power vested in it under the proviso to Section 29 (3) of the Act, 1965. In order to support the impugned order, Sri Mehrotra contends that the proviso to Rule 40(3) of the Rules 2014 categorically provide that the proposer and seconder to the nomination shall be a voter other than the candidate himself of the same constituency. However, in the case of the petitioner, a complaint was received by the District Magistrate, Sitapur dated 28.02.2018 indicating that the said proviso had been flagrantly violated inasmuch as two contestants were having the same proposer and seconder although the seconder was himself a candidate. Upon the said complainant, the District Magistrate, Sitapur required the Assistant Registrar (Co-operative), Sitapur to hold an inquiry vide order dated 28.02.2018. On the basis of the same the Assistant Commissioner and Assistant Registrar (Co-operative), Sitapur vide order dated 03.03.2018 directed the Additional District Co-operative Officer, Tehsil- Sitapur to submit a report. In pursuance thereof, the Returning Officer submitted his version on 05.03.2018. A report was also submitted by the Additional District Co-operative Officer, Tehsil- Sadar, Sitapur on 03.03.2018 to the Assistant Commissioner and Assistant Registrar (Co-operative), Sitapur which so far as it pertains to the petitioner pointed out that the petitioner apart from being a contestant himself was also the proposer of the other contestant Sri Bhola. The said report was forwarded by the District Magistrate/ District Election Officer, Sitapur to the Chief Election Commission, Lucknow on 05.03.2018 and in pursuance thereof, the impugned order dated 05.03.2018 was issued by the Election Commission exercising the power under the proviso to Section 29 (3) of the Act, 1965 and staying the election process.
8. While placing reliance on the aforesaid reports as are available on the original record and as have been indicated by us, Sri Mehrotra has contended that the Election Commission has exercised the power vested in it under the proviso to Section 29 (3) of the Act, 1965 inasmuch as it was satisfied that circumstances existed which would have entailed the election being vitiated and consequently the order dated 05.03.2018 was issued.
9. In support of his contention of the Election Commission being vested with the said powers while passing the impugned order, Sri Mehrotra has placed reliance over the judgments of the Hon'ble Supreme Court in the Case of Mohinder Singh Gill and another Vs. The Chief Election Commissioner reported in (1978) 1 SCC pg 405, Union of India Vs. Association for Democratic Reforms and another reported in (2002) 5 SCC pg 294, Kanhiya Lal Omar Vs. R.K.Trivedi reported in 1985 4 SCC pg 628 as well as a Division Bench judgment of this Court in the case of Kuldeep Bhardwaj Vs. State of U.P reported in 2010 2 UPLBEC page 1040.
10. Having heard the learned counsel appearing for the respective parties what we find is that the order dated 05.03.2018 has been passed by the Election Commission on the ground that upon the report of the In-charge District Magistrate, District- Sitapur dated 05.03.2018, certain nomination papers were found to be in violation of Rule 40(3) of the Rules, 2014 which should have been rejected but were accepted and consequently it has been found that the election process has become vitiated. Accordingly, the Election Commission took a decision to stay the election process of the Samiti. The said order has been passed by the Election Commission by exercising its power under Section 29(3) of the Act, 1965. For the sake of convenience Section 29(3) of the Act, 1965 is reproduced below:-
"Election to reconstitute the Committee of Management of every Co-operative Society shall be completed in the prescribed manner under the superintendence, control and direction of the Election Commission 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 where the Election Commission is satisfied that the circumstances exist which render it difficult for it to hold the election on the date fixed, it may postpone the election and all proceedings with reference to the election shall commence afresh in all respects."
11. Thus the question which arises is that once it came to the knowledge of the Election Commission that the nominations were wrongly accepted taking into consideration the report submitted by the Additional District Co-operative Officer dated 03.03.2018 as well as the version of the Returning Officer dated 05.03.2018 of irregularities having been committed in accepting the nomination papers of the petitioner and certain others, then whether the impugned order could have been issued ?
12. In this regard, Sri Gaurav Mehrotra, learned counsel appearing for the Election Commission has argued that the Election Commission is vested with the power of superintendence, direction and control as well as conduct of all elections in the broadest of the terms. Once an illegality/irregularity in the nomination papers was brought to the knowledge of the Election Commission, it was perfectly empowered to exercise its powers and stay the elections and the said illegality being writ large on the face of irregular acceptance of the nomination papers taking into consideration Rule 40 (3) of the Rules, 2014. For this argument, he has aptly placed reliance on the Constitution bench judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) to contend that Article 324 of the Constitution of India which pertains to the superintendence, direction and control of elections vested in an election commission as have been interpreted by the Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) would also be applicable in the instant case also, so far as the powers of the Election Commission for conduct of co-operative elections are concerned. For this contentioin, Sri Mehrotra has referred to paras 39 to 41 of the said judgment which are reproduced below:-
"39. Even so, situations may arise which enacted law has not provided for Legislators are not prophets but pragmatists. So it is that the Constitution has made comprehensive provision in Article 324 to take care of surprise situations. That power itself has to be exercised, not mindlessly nor malafide, nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. More is not necessary to specify; less is insufficient to leave unsaid. Article 324, in our view, operates in areas left unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms. Myriad maybes, too mystic to be precisely presaged, may call for prompt action to reach the goal of free and fair election. It has been argued that this will create a constitutional despot beyond the pale of accountability; a Frankenstein's monster who may manipulate the system into elected despotism--instances of such phenomena are the tears of history. To that the retort may be that the judicial branch, at the appropriate stage, with the potency of its benignant power and within the leading strings of legal guidelines, can call the bluff, quash the, action and bring order into the process. Whether we make a triumph or travesty of democracy depends on the man as much as on the Great National Parchment. Secondly, When a high functionary like the Commissioner is vested with wide powers the law expects him to act fairly and legally. Article 324 is geared to the accomplishment of free and fair elections expeditiously. Moreover, as held in Virendra(1) and Harishankar(2) discretion vested in a high functionary may be reasonably trusted to be used properly, not. perversely. If it is misused, certainly the Court has power to strike down the act. This is well-established and does not it is useful to remember the warning of Chandrachud, J-
"But the electorate lives in the hope that a sacred power will not so flagrantly be abused and the moving finger of history warns of the consequences that inevitably flow when absolute power has corrupted absolutely. The fear of perversion is no test of power." lndira Nehru Gandhi Vs. Raj Narain (3).
"40.The learned Additional Solicitor General brought to our notice rulings of this Court and of the High Courts which have held that Article 324 was a plenary power which enabled the Commission to act even in the absence of specific legislation though not contrary to valid legislation. Ordering a re-poll for a whole constituency under compulsion of circumstances may be directed for the conduct of elections and can be saved by Aft. 324-provided it is bona fide necessary for the vindication of the free verdict of the electorate and the abandonment of the previous poll was because it failed to achieve that goal. While we repel Sri Rao's broadside attack on Article 324 as confined to what the Act has conferred, we concede that even Article 324 does not exalt the Commission into a law unto itself. Broad authority 3 does not bar scrutiny into specific validity of the particular order."
"41.Our conclusion on this limb of the contention is that Art, 324 is wide enough to supplement the powers under the Act, as here, but subject to the several conditions on its exercise we have set out."
13. Similarly, the Hon'ble Supreme Court in the case of Union of India Vs. Association for Democratic Reforms (supra) has held as under:-
"46. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word elections is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar's case, the Court construed the expressions "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the election commission to issue such orders.
3. The word "elections" includes the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion. As stated earlier, in Common Cause case (supra), the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on affidavit a candidate is required to disclose the assets held by him at the time of election, voter can decide whether he could be re-elected even in case where he has collected tons of money.
14. Likewise the Apex Court in the case of Kanhiya Lal Omar Vs. R.K.Trivedi and others (supra) has held as under:-
"16. Even if for any reason, it is held that any of the provisions contained in the Symbols Order are not traceable to the Act or the Rules, the power of the Commission under Article 324 (1) of the Constitution which is plenary in character can encompass all such provisions, Article 324 of the Constitution operates in areas left unoccupied by legislation and the words 'superintendence', 'direction' and 'control' as well as 'conduct of all elections' are the broadest terms which would include the power to make all such provisions. (See Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and A.C. Jose Vs. Sivan Pillai)."
15. Similarly Sri Mehrotra has argued while placing reliance on the judgment of this Court in the case of Kuldeep Bhardwaj (supra) that in similar circumstances this Court had refused to interfere in an order issued by the Election Officer postponing the co-operative elections on the basis of recommendations made by District Magistrate, Bulandshahr as the order was found to be in exercise of powers under Section 29 (3) of the Act, 1965.
16. On the other hand, the judgment cited by the learned counsel for the petitioner in the case of Sushil Kumar Singh (supra) is distinguishable as the same pertains to a matter where the elections were stayed under the directives issued by the State Government to the Registrar after an election programme had been notified. This Court while quashing the orders issued by the State Government held that the power of State Government to stay or postpone the elections can be exercised only within parameter and the authority given under the Act but not on such subject matters which if found to be correct can be a matter of election dispute. In the case in hand, the power has been exercised by the Election Commission by exercising the powers vested under the proviso to Section 29 (3) of the Act, 1965 on bonafide grounds.
17. As regards the judgment in the case of Pramod Kumar Shrotriya (supra) as cited on behalf of petitioner is concerned, the same is also distinguishable inasmuch as the elections were stayed by the District Magistrate and no jurisdiction of the District Magistrate to pass such an order could be indicated. Hence the said judgment would have no application in facts of the instant case.
18. So far as the full bench judgment of this Court in the case of Ramesh Kumar (supra) is concerned, the same would not be applicable inasmuch as the same pertains to the question as to whether the Registrar or an Election Officer can re-fix the schedule of the election process denovo setting at naught the election of the person who remained as the only candidate after withdrawal and as to whether Rules 439, 440 and 441 of the Rules, 1968 clothe the Registrar with unbriddled and uncanalised powers. In the instant case the Election Commission has exercised the power as vested under the Act under the proviso to Section 29 (3) of the Act, 1965 which would be permissible taking into consideration the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill and Kanhiya Lal Omar (supra), and consequently the Full Bench judgment shall have no applicability.
19. Consequently, keeping in view the discussions made above and the settled proposition of law as laid down by the Hon'ble Supreme Court, we do not find any infirmity or irregularity in the order dated 05.03.2018 passed by the Election Commission and accordingly, the writ petition is dismissed.
Order Date :- 30.3.2018 Pachhere/-