Hon'ble Devendra Kumar Upadhyaya,J.
1. We have heard Shri L.P. Mishra, Senior Advocate assisted by Shri S.M. Royekwar, and Shri B.R. Singh, Advocates for the petitioners. Shri D.K. Pathak, Additional Chief Standing Counsel appears for the State respondents. Shri Raghvendra Kumar Singh, Senior Advocate appears for the respondent-bank.
2. In Misc. Bench No.759 of 2013 the petitioners have challenged the final determination of constituencies published in Hindi daily "Amar Ujala' on 8.1.2013 by the Deputy Commissioner/Deputy Registrar (Cooperative) U.P. Allahabad Division, Allahabad and the consequent election programme published by the Additional District Magistrate/Election Officer (District Cooperative Bank, Pratapgarh), Pratapgarh for holding elections to constitute the Committee of Management of the District Cooperative Bank, Pratapgarh. The polling was scheduled on 29.1.2013 and 30.1.2013 vide notification issued on 6.10.2012. They have also prayed for a direction not to give effect to the final determination of the constituencies published on 8.1.2013 and the consequent election programme published on 9.1.2013. The petitioners have also prayed for directions to determine the constituencies for the purposes of election in accordance with Section 29 (8) of U.P. Cooperative Societies Act, 1965 and Rule 85-A of U.P. Cooperative Societies Rules, 1968.
3. The term of the Committee of Management of District Cooperative Bank, Pratapgarh, which is a Central Cooperative Society and of which Primary Societies including Primary Agricultural Cooperative Credit Societies are member societies expired on 6.10.2012 and an Administrator was appointed under Section 29 (5) of the Act.
4. The Registrar, Cooperative Societies, U.P., Lucknow issued an election schedule for holding the election of Committees of Managements of various level Cooperative Societies vide Circular dated 1.6.2012 wherein it was provided that the elctions of the Cooperative Societies were to be held from Primary level Cooperative Societies to the Central level Cooperative Societies during the period 20.7.2012 to 5.11.2012. However, this schedule for election of Primary Cooperative Societies and Central Cooperative Societies was re-scheduled from time to time for the period 13.8.2012 to 30.12.2012 and later on for the period 1.10.2012 to 30.1.2013. The election schedule of various level Cooperative Societies as circulated by the Registrar for all over the State of U.P. vide order dated 30.8.2012, the election was re-scheduled to be held between 5.11.2012 to 28.2.2013 vide order dated 3.10.2012 so passed by the Registrar. The Registrar again cancelled the order dated 3.10.2012 and thereafter proceeded to pass an order dated 4.10.2012 and 6.10.2012 where under the election for constituting the Committee of Management for Central Cooperative Societies was scheduled for 29.1.2013 and 30.1.2013.
5. The election for Primary Agricultural Cooperative Credit Societies of District Pratapgarh which are member societies of District Cooperative Bank, Pratapgarh including the election of the delegates to be sent to the said Central Society were held on 17th and 18th of October, 2012 pursuant to the final determination of constituencies by 22.8.2012.
6. During the course of hearing of the writ petition, an amendment application was filed and was allowed. By this amendment the petitioners have prayed for a direction to quash the election of delegates from Primary Agricultural Credit Societies of District Pratapgarh, which are member Societies of District Cooperative Bank, Pratapgarh in so far as it relates to election of professional delegates from such societies to District Cooperative Bank, Pratapgarh and the consequential inclusion in the final voter list dated 16.1.2013. They have also prayed to determine the constituency for professional member in each Primary Agricultural Credit Societies of District Pratapgarh and thereafter to hold election of professional delegate to District Cooperative Bank, Pratapgarh either by reading down such procedure in Rule 85-A of the U.P. Cooperative Societies Rules, 1968 or by taking the requisite Rule making exercise and thereafter to hold the election for constituting the Committee of Management of District Cooperative Bank, Pratapgarh. In alternative the petitioners have prayed for a writ of mandamus commanding the opposite parties to hold of the elections of the Committee of Management of District Cooperative Bank, Pratapgarh in accordance with the prescription made under Part IX-B of the Constitution, in particular Article 243-ZJ as inserted by Constitution (97th Amendment) Act, 2011 in view of Article 243-ZT of the Constitution of India. In the alternative the petitioners have also prayed for deleting the second proviso attached to clause (a) of Article 85-A of the U.P. Cooperative Societies Rules, 1968 as amended vide U.P. Cooperative Societies (47th Amendment) Rules, 2011 as illegal, arbitrary and ultra vires to the Constitution of India being wholly unfounded, uncontrolled and un-guided on one hand and on the other hand not capable of securing the object of Section 29 (8) of UP Cooperative Societies Act, 1965.
7. By an interim order dated 28.1.2013 a Division Bench of this Court prima facie found that there is a force in the submission that the election of a professional delegate be held by the electoral college of professionals, who have to be the members of Primary Cooperative Societies. The Bench found that the matter requires hearing and hence while granting four weeks' time to complete the pleadings and also providing that the election process may continue, restrain the result to be declared till the next date of hearing. The interim order has been extended from time to time and is continuing.
8. A preliminary objection has been taken by the State respondents in the affidavit of Shri Vinod Kumar Singh, Assistant Commissioner and Assistant Registrar, Cooperative, Pratapgarh stating therein that in accordance with the election schedule for District Cooperative Bank, Pratapgarh, 10 out of 14 members of the Management Committee stood elected unopposed on 21.1.2013 and it was voting for only the remaining 4 contested posts of members of Committee of Management, was scheduled for 29.1.2013. Rule 443 (1) of U.P. Cooperative Societies Rules, 1968 provides that where the number of valid nominations does not exceed the number of persons to be elected, the Election Officer shall declare them to have been validly elected provided that where the number of valid nominations for any particular constituency is equal to the number of persons to be elected from that constituency and in other constituencies the number of valid nominations exceeds the number of persons to be elected, the Election Officer shall declare the result of that constituency which receives the nomination equal to the number to be elected. The voting on the 4 contested posts of members of Committee of Management has taken place on 29.1.2013 in compliance with the interim order of the Court. The State of UP filed a Special Leave to Appeal (Civil) No.34493 of 2012 (State of U.P. & ors vs. Committee of Management, Zila Sahkari Bank Ltd & ors) against the judgment of the High Court dated 4.9.2012 in Writ Petition No.7400 of 2012, in which on 30.11.2012 the Supreme Court passed an order as follows:-
"We have heard Dr. Abhishek Manu Singhvi and Mr. P.N. Mishra, learned senior counsel for the petitioners, and Mr. Pravin H. Parekh, learned senior counsel for respondent No.1.
It appears that Division Bench of the Allahabad High Court in some other matter has referred the question " Whether the High Court may issue Writ, Order or Direction in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India for continuance of Committee of Management of a Cooperative Society even though the term of such Co-operative Society has come to an end in accordance with the provisions of Section 29 of the U.P. Co-operative Societies Act, 1965? for decision to a larger bench.
Having regard to the above, we request the Chief Justice/Acting Chief Justice of the Allahabad High Court to constitute a larger Bench to decide the above issue as expeditiously as may be possible.
In so far as present special leave petition is concerned, we are satisfied that for the present, interest of justice shall be sub-served if the order passed by the High Court is modified by directing that the present Committee shall continue to manage the affairs under the control and supervision of the Administrator to be appointed by the Registrar, Cooperative Societies, State of Uttar Pradesh until the elections for the new Committee are held. Obviously, as directed by the High Court, the existing Committee shall not exercise any financial power nor take any policy decision.
The concerned authorities shall ensure that the elections are completed positively by February 12, 2013 and that no further extension for completion of the elections are given.
With the above modification, special leave petition is disposed of."
9. We are informed that a larger bench was constituted and has decided the matter. However, the decision of the larger bench does not have relevance to the issues raised in this batch of writ petitions.
10. The impleadment application of Shri Vijay Raj Singh, who was elected unopposed Director, Kalakankar Constituency, District Cooperative Bank Ltd, Pratapgarh was allowed on 6.1.2014. Similarly the impleadment of Shri Raj Kumar Yadav was allowed on 14.2.2014. In this application it is stated that out of 4 members, who are still to be elected, 2 have to be elected from professional constituency i.e. constituency no.9 and 1 from Mandhata constituency i.e. constituency no.6 and 1 from Sandawa Chandrika constituency i.e. constituency no.11.
11. Shri L.P. Misra leading the arguments for the petitioners submits that the elections have been held in violation of the provisions of Section 29 (8) of the Act. The entire exercise is violative of Rule 85-A of UP Cooperative Societies Rules, which provides for elections of the delegates from professional constituency. Section 29 (8) was amended as per recommendation of the Vaidyanathan Committee, which was accepted by the State Government as recommended in the Circular dated 31.3.2009 and which provides for election of professional members. Section 29 (8) as inserted by an amendment, is quoted below:-
"29 (8) Notwithstanding anything to the contrary contained in any other provision of this Act, there shall be at least three professionals with full voting rights on the committee of Uttar Pradesh Co-operative Bank or a Central Co-operative Bank having special knowledge or experience in the field of accounting, law, banking, management, agriculture or rural economy as stipulated by the Reserve Bank of India. In case such professionals do not get elected, they shall be co-opted by the Committee of Management of the Bank as aforesaid."
12. Rule 85-A of the U.P. Cooperative Societies Rules, 1968 as amended provides as follows:-
"85-A. The following societies may have delegates as follows:-
(a) The District/Central Co-operative Bank may have delegates in general body from each member as follows:-
13. It is submitted that in the professional voter's list published on 16.1.2013 certain PACS have been shown as comprising of delegates from professional constituencies. These delegates were not elected from professional constituency as there was no such constituencies at that level of PACS. They have been elected as delegates in their individual general capacity and not as representative of their respective professional field to which they belong. It is the matter of chance that they belong to some profession, which is within the ambit of professional as mentioned in Section 29 (8) of the Act, though does not fulfil the requirement of law. The election of said professionals by default will not cure the defect. Further it is submitted that in the finalised voter's list dated 18.1.2013 the PACS, which did not have any professionals as delegates amongst themselves and were shown as such in the professional voter's list, have been excluded from the final voter's list and the delegates of such PACS have been excluded. The opposite parties taking benefit of their wrong, which is not permissible were trying to conclude the elections arbitrarily. The professional constituencies ought to have been determined at the PACS level without there being any corresponding determination at the stage of PACS, the determination of constituency for professional is illegal.
14. It is further submitted that the PACS, to which petitioners belong and from which they have been elected as delegates, has not been excluded from the final voter list. By default one professional has been elected from each PACS as delegate. The exclusion of the PACS, in which there is no professional delegate from the final voter's list, is also subject matter of Writ Petition No.645 (MB) of 2013. Shri L.P. Mishra submits that there were 172 societies in District Pratapgarh as validly existing PACS as member Societies of Central Cooperative Bank, Pratapgarh. While holding the elections for constituting the Committee of Management of PACS no constituency for professional members was carved out which resulted into absence of professional members. The nomination forms provided but delegates did not mention any specification as professional. The results does not indicate that any person was elected as professional delegate. Without there being any determination of constituency of professional at PACS level and without indicating any nomination of delegates with regard to professional category, the voter list professional and final both was prepared arbitrarily indicating 110 delegates as belonging to professional without indicating as to what category of profession as mentioned in Section 29 (8) of the Act i.e. accounting, law, banking, management, agriculture or rural economy a particular delegate belongs to.
15. It is submitted that the insertion of Section 29 (8) vide UP Act No.47/2007 and Rule 85-A (a) vide notification dated 24.3.2011 presently out of 6 delegates from PACS to District Cooperative Bank, one shall be professional delegate. The procedure for carving out the separate constituency for professional and election of professional delegate is necessarily to be read down under Rule 85-A failing which said rule stands rendered as discriminatory, unguided, uncontrolled and not capable of attending purpose and object under Section 29 (8) of the Act. Presently out of 6 delegates from PACS from cooperative, one shall be a professional delegate. The procedure of carving out a separate constituencies for professional and the election of professional delegate is necessarily to be read down under Section 85-A, failing which the said rule shall stand rendered as discriminatory and not capable of attaining the purpose and object under Section 29 (8) of the Act.
16. It is submitted that neither Rule 85-A makes any statutory prescription for such contingency nor the Circular dated 27.8.2012 so issued by the Registrar made any stipulation in order to meet out such contingency. Resultantly, approximately 62 Primary Agricultural Credit Societies out of total 172 Primary Agricultural Credit Societies as member societies of District Cooperative Bank, Pratapgarh though sent six delegates each after electing them but did not specify any professional category candidate and, thus out of 1032 total delegates (172x6 = 1032) 372 delegates (62x6 = 372) were such out of whom no belonged to professional category delegate. Consequently, when the final voter list was prepared all these 372 delegates of 62 Societies out of total 1032 delegates from total 172 Primary Agricultural Credit Societies were ousted from being member of electoral college. A perusal of the contents of these paragraphs of the supplementary affidavit makes it clear that out of total 62 Primary Agricultural Credit Societies ousted from being member of the electoral college of the Central Society, 9 Cooperative Societies i.e. 54 delegates were such who did not have any disqualification except that from their societies no professional category delegates was indicated in the list of the elected delegates so sent to the Central Society. Rest 53 societies were such who did not send the professional category delegates as also were shown to be from the defaulter societies and who could have overcome that disqualification of being defaulter by the last date of finalization of the voter list as provided under Explanation-III (i) attached to Section 20 of the Act.
17. Shri L.P. Mishra has cited a number of decisions on the proposition that unless a proviso to Rule 85-A is read down and that a provision is made for election of professional delegates from PACS, the entire election stand vitiated. He also submits that in the alternative the Court may provide guidelines which may fill in the gap for the purpose of interpreting the rules and which may provide a wholesome provision for electing professional delegates for holding elections.
18. The petitioner Laxmi Kant Dwivedi of Writ Petition No.645 (M/B) of 2013 as also of Writ Petition No.759 (M/B) of 2013 was elected as one of the six delegates from Primary Agricultural Credit Society, Kadipur, District Pratapgarh but in the said society without there being any determination of professional constituency towards elections for sending professional delegate and without there being any election, one Shiv Prakash was shown as professional delegate out of total six delegates. Besides, this society was also shown as defaulter society and in order to remove the said disqualification it is claimed that the total default amount was tendered through account payee cheque before the last day of publication of final voter list but the said amount was not accepted. This issue stands raised in Writ Petition No.645 (M/B) of 2013.
19. In Writ Petition No.717 (M/B) of 2013 filed by 71 Primary Level Cooperative Societies, the petitioners have prayed for a writ of mandamus commanding the opposite parties to allow the petitioners to deposit the enhanced value of share vide clause 8 (1) (kha) of the amended bye laws dated 21.12.2012 of the District Cooperative Bank Ltd in easy instalments and commanding the opposite parties to allow the petitioners to exercise its right to vote in the upcoming election of Committee of Management of District Cooperative Bank Ltd, Pratapgarh scheduled on 29.1.2013.
20. It is stated that ordinary membership of the Central Cooperative Society is open to Primary Cooperative Society with voting rights. A resolution was passed on 24.2.2009 enhancing the value of the share held by the Primary Cooperative Societies. A letter was written by the District Cooperative Bank on 13.6.2011 to ensure that the necessary amendments are made in the bye laws in line with the U.P. Cooperative Societies (47th Amendment) Rules, 2011. The bye laws were not amended. The Deputy Commissioner/Deputy Registrar, Cooperative Societies, Allahabad Division, Allahabad in purported exercise of powers under Section 14 (2) of the Act registered the amendments on 21.12.2012 in clause 8 (1) (kha) of the bye laws of District Cooperative Bank increasing the value of the share from Rs.100/- to Rs.5000/-. The elections for constituting the Committee of Management was scheduled on 29.1.2013 and in the circumstances since no effective communication was made to the member societies to deposit the enhanced value, a request was made to deposit the enhanced value in instalments.
21. In para 18 of the writ petition it is stated that the petitioners/societies are willing to make payments towards enhanced value of the shares but the elections are proceeding unabated. Once one of the societies namely Zila Sahkari Awas Samiti Ltd, Pratapgarh preferred a Writ Petition No.427 (M/B) of 2013 in which an interim order was passed on 18.1.2013 to accept the deposits towards payment of enhanced value and further a direction to include the names of the petitioners in the voter's list.
22. In Writ Petition No.735 (M/B) of 2013 same 71 Primary Cooperative Societies have prayed for quashing the order dated 17.10.2012 passed by Commissioner/Registrar (cooperative Societies) U.P. Lucknow. All those members, who were enrolled by the Administrator of Committee of Administration were directed to be kept out of the electoral list for the purpose of holding elections. The order has been challenged on the ground that the members enrolled by the Committee of Administrators were not allowed to participate in the elections. They were valid voters and were enrolled during the Committee of Management was under supersession for more than two and half years. Once the Administrator or the Committee of Administrator is appointed under Section 29 (5) of the Act then for all purpose it is deemed to be Committee of Management of the Society. The exclusion of these members has vitiated the entire elections. In Writ Petition No.7679 (MB) of 2009 (Vijay Shanker Rai vs. State of UP and ors) decided on 2.9.2009 it was held that the deeming clause in sub-clause (6) of Section 29 does not enlarge the scope of powers and functions of the Administrator/Committee of Administrators, as against the one interpreted by the Supreme Court in the cases of Joint Registrar of Cooperative Societies and K. Shantharaj and thus, would not empower the Administrator or Committee of Administrators, to enrol new members. This Court held that even otherwise, enrolment of new members on the eve of election, cannot be justified in any manner. An appeal against the judgment has been admitted and notices were issued by the Supreme Court. The Special Leave to Appeal (Civil) No.24873 of 2009 (Sheoji Verma vs. Vijay Shanker Rai & ors) is still pending.
23. A Division Bench of this Court at Allahabad, in Writ C No.45749 of 2009 (Brij Lal vs. State of UP & others) relying upon K. Shantharaj & another vs. M.L. Nagaraja & ors JT 1997 (5) SC 680 and Joint Registrar of Cooperative Societies Kerala (2000) 6 SCC 127 while observing that the Administrator has changed the entire composition of the general body after the elections were announced, the Administrator did not have any authority at all to enrol new members. The entire attempt was to strike the elections. By an interim order the newly enrolled members were not allowed to participate in the elections.
24. Shri L.P. Mishra has tried to distinguish the judgment and interim orders on the ground that in the present case where the Committee of Management could be superseded for two and half years, the absence of the societies should not come to standstill. The Administrator/Committee of Administrator can be filled powers to carry on the affairs of the society which includes enrolment of members and that in the circumstances the judgment and orders passed by this Court are distinguishable. He submits that depriving such members to vote has vitiated the entire elections.
25. In Writ Petition No.645 (M/B) of 2013 reliefs have been sought to quash the final voter's list published on 18.1.2013 for election to Committee of Management, District Cooperative Bank Ltd, Pratapgarh in so far as the same relates to Sadar constituency to the extent the same does not include the same of the delegates of Sadhan Sahkari Samiti Ltd, Pratapgarh and to include the names of delegates of Sadhan Sahkari Samiti Ltd, Kadipur Sadar Pratapgarh as voters in the final voters' list and to allow them to cast their votes in the election of Committee of Management, District Cooperative Bank Ltd, Pratapgarh scheduled on 29.1.2013.
26. In the short counter affidavit of Shri Alok Kumar Saxena filed on behalf of District Cooperative Bank Limited, Pratapgarh it is stated that full opportunity was given to all the petitioner societies to deposit the enhanced value of shares vide amended bye laws dated 21.12.2012 published in Hindi newspaper "Amar Ujala' on 6.1.2013. Only Pratapgarh Sahkari Awas Samiti Ltd-the petitioner no.1 opened a bank account no.3232 in Branch Sadar with a balance of Rs.1717/- and that the petitioners no.2 to 71 have never opened a bank account in District Cooperative Bank, Pratapgarh or in any branches of the bank.
27. In the counter affidavit of Shri Uma Shanker Yadav, Additional District Cooperative Officer, Pratapgarh it is stated that Sadhan Sahkari Samiti ltd, Kadipur, Sadar, Pratapgarh was a defaulter inasmuch as they had not cleared the dues upto the extent of 75% as is statutory required under the provisions of Section 20 (aa) of UP Cooperative Societies Act, 1965. Section 20 of the Act prohibits the defaulter to be included in the voters list for elections of the Committee of Management of the Central Cooperative Societies. It is further submitted that on 15.1.2013, seven cheques totalling Rs.1,20,289/- issued in favour of District Cooperative Bank Ltd, Pratapgarh were attempted to be deposited with the evening branch of District Cooperative Bank, Pratapgarh. No details were submitted as to on what account the said amount was being sought to be deposited. The cheques were not in the name of District Cooperative Bank, Pratapgarh, Branch Sadar. There was no detailing as to against what head, the said amount have been recovered from the members and as to whether it was by way of repayment of loan or security amount. Consequently the Branch Manager, District Cooperative Bank Limited, Pratapgarh, Evening Branch was unable to figure out in any manner the deposits and returned the cheques by registered post. Till date only 53.3% of the loan amount has been cleared by the society whereas under Section 20 (aa) the requirement is re-payment of 75% of the loan amount. The Society is thus not qualified to be included in the voter list.
28. In Writ Petition No.384 (M/S) of 2013 the final determination of constituencies as published in Hindi daily "Amar Ujala' dated 8.1.2013 has been challenged on the ground that no professional delegates were elected under Section 29 (8) of the Act read with Rule 85-A of the Rules. The grounds of challenge are the same as in case of Writ Petition No.759 (M/B) of 2013 discussed as above.
29. In Writ Petition No.308 (M/B) of 2013 the order dated 17.10.2012 excluding those members, who were enrolled by the Administrator/Committee of Administrator is under challenge on the same grounds as in Writ Petition No.735 (M/B) of 2013.
30. In Writ Petition No.427 (M/B) of 2013 the petitioner has prayed to deposit the enhanced value of share vide clause 8 (I) (kha) of the amened bye laws dated 21.12.2012 of District Cooperative Bank Limited, Pratapgarh in easy instalments. The grounds of challenge are the same as in Writ Petition No.717 (M/B) of 2013.
31. Shri L.P. Mishra submits that in view of absence of any provision under the Act or in the Rules or by any circular or order issued by any competent authority, in the event of a PACS having not sent one professional member out of six persons as delegate to a District Cooperative Bank then all the six delegates so sent by the society shall stand debarred from being member of the electoral college. That being so the petitioner society or other 61 PACS, the list of whose six such elected delegates did not indicate one professional member from each such society could not have been ousted from participating in the fray of elections as members of the electoral college for holding elections. The entire exercise is thus illegal and arbitrary.
32. Shri L.P. Mishra further submits that the professional determination of constituencies made it clear that three separate constituencies were proposed for each of the three seats in the Committee of Management of the District Cooperative Bank and all the categories of the professionals mentioned under sub-section (8) of Section 29 of the Act were bifurcated separately in three separate constituencies. None of them were subject to reservation but while determining the constituencies finally all the three sets mentioned in one constituency which is not permissible as each constituency has its exclusive electoral college and voters of one constituency cannot cast vote in another constituency.
33. Shri D.K. Pathak, Additional Chief Standing Counsel submits that no election for delegates from PACS to Central Cooperative Society is to be held. Instead such delegate is to be appointed. He has pointed out to the provisions of Rule 2 (kk) of the Rules of 1968. In reply Shri L.P. Misra submits that the word 'appointed' in Rule 2 (kk) of the Rules of 1968 has been used in its wider sense which includes the appointment through election or appointment through nomination or appointment through co-option. He submits that this Court must resolve the issue of a lacuna, which has crept in while framing Rule 85-A and apply the settled rule of interpretation 'reading down' and that of causus omissus. The UP Act No.13 of 2013 has been promulgated in furtherance to the 97th Constitutional Amendment of 2011. After the amending Act of 2013 there is no stipulation for appointment of any Administrator. Sub-section (6) of Section 29 provides that every Cooperative Society, which means a Cooperative Society other than the Societies covered by sub-section (8) of Section 29 necessarily has to co-opt at least two professional persons on its Committee of Management having special knowledge or experience in the field of accounting, law, banking, management, agriculture or rural economy. The second proviso attached to the section contemplates that the co-opted members shall have no right to vote in any election or in any no-confidence motion moved in the society in the capacity of their being as such co-opted members.
34. Shri L.P. Mishra has relied upon the judgments in Vishakha vs. State of Rajasthan (1997) 6 SCC 241; Vineet Narain vs. Union of India (1998) 1 SCC 226; Supreme Court Advocates' on Records Association vs. Union of India (1993) 4 SCC 441 and other cases to submit that the Court may either declare the Rule 85-A to be ultra vires the provisions of the Act or to fill up the gap by providing guidelines as it was done by the Supreme Court in the aforesaid cases.
35. Shri Raghvendra Kumar Singh, learned counsel appearing for District Cooperative Bank Ltd, Pratapgarh states that the elections of the cooperative societies once notified should be allowed to be conducted and completed without interference unless there are strong exceptions, which have vitiated the entire elections. Section 70 of the Cooperative Societies Act provides for arbitration in case of any dispute and Rule 443 of Rules provides for the election petition to be filed as the remedy at the first instance for challenging the election. He submits that it was open to the petitioners to wait for declaration of results and thereafter to challenge the election on any of the grounds on merit, which were open to them in law. The petitioners have filed misconceived writ petitions challenging the election, which have also delayed the remedy of election petition as the limitation for filing the election petition has exhausted defeating the entire cause in accordance with Lachhman Das Arora vs. Ganeshi Lal and others (1999) 8 SCC 532. He has also relied upon a Division Bench judgment of this Court in Gajadhar Singh vs. State of UP and others 2009 (27) LCD 1495 and various orders passed by this Court in which in all such cases where elections are notified, the Courts have relegated the petitioners to the alternative remedy of filing elections petitions.
36. We have gone through the provisions of Section 29 (8) and Rule 85-A and do not find that there is any violation of Rules or that there is any such error in the drafting of Rule 85-A after the amendments, which may vitiate the entire elections as per Rule 85-A. There is a provision of sending at least one professional member out of six delegates to fulfil the requirement of Section 29 (8) of the Act. The word "delegate" has been defined under Rule 2 (kk) to mean an individual appointed in accordance with the Rules by the members of the Committee of Management of a co-operative society to represent it in the general body of another co-operative society to which such society is a member. The delegate is appointed by the members of the Committee of Management of the Society to represent it in the general body of another cooperative society. Such delegate is not elected by the general elections of the cooperative society. The requirement of law in appointment is in accordance with the Rules by the members of the Committee of Management of a Cooperative Society. Since no constituency is being created for election of any of the delegate, there is no question of creation of a constituency for a professional member to be sent as delegate along with other delegates to fulfil the requirements of sub-section (8) of Section 29 of the Act.
37. Rule 85 provides that a person can be appointed as a delegate subject to his membership of the general house of the society having requisite qualifications. In case the general body of District Cooperative Bank does not have professional members as delegates then the professional members having due requisite qualification can be appointed as delegates. In case such delegates are not available then such persons can be co-opted by the Committee of Management of District Cooperative Bank. The District Cooperative Bank is provided to have three professionals. Since the delegate is appointed by the Committee of Management of a Primary Agricultural Cooperative Society there is no question of carving out any constituency for professional members at the end of the Primary Agricultural Society. There is no requirement in law that any professional member shall be member of the Primary Agricultural Society. The requirement is that there should be at least three professional members as member of District Cooperative Bank. Since there is a provision for appointment of a delegate by the Primary Agricultural Cooperative Society from its general elections, any member of Primary Agricultural Society having due requisite qualifications to become a professional delegate can be sent as a delegate. There is no provision for election of professional delegates by a Primary Agricultural Cooperative Society.
38. Rule 440 (4) and Rule 440 (5) specifically lays down the procedures for conducting the election and carving out the constituencies of Primary Agricultural Cooperative Societies. It does not deal with the election of a delegate to be sent to the Central Cooperative Society. There is no requirement in law that a Primary Agricultural Cooperative Society must have a professional member as provided under Section 29-A. It is provided that a District Cooperative Bank as a Central Society and UP Cooperative Bank as Apex Bank shall have at least three members in their Committee of Management as professionals. There is thus no question of violation of Section 29-A of the Act, and Rule 85-A of the Rule at the time of election of Primary Agricultural Cooperative Society.
39. The entire argument of learned counsel appearing for the petitioners, that the constituency of delegates and professional members should have been carved out and in the absence of such constituency and the delegates elected by such constituencies, the entire election is thus fallacious, and misplaced.
40. There has to be no election of any professional members in terms of Section 29 (8) of the Act during the election of Committee of Management of Primary Agricultural Cooperative Societies.
41. For the aforesaid reasons, we do not find any good ground to go into the submission that either Rule 85-A may be declared as ultra vires the provisions of the Act or the Court may apply the principle of reading down to make the provisions of Rule 85-A workable or in the alternative provide for guidelines to make it workable.
42. So far other questions raised at the bar are concerned all such questions are not required to be decided by the Writ Court at the threshold of the elections. All such questions can be gone into in an election petition to be filed after the results are declared.
43. The questions with regard to disqualification of PACS in permitting them to cast their vote, and the validity of their membership on being enrolled by the Administrator/Committee of Administrators, are also not to be gone into by this Court, until the alternative remedies as provided under the Act and Rule are exhausted.
44. We do not find any substance in the contention of Shri L.P. Mishra that an election on such grounds can be challenged directly by filing a writ petition under Article 226 of Constitution of India. The judgment of Supreme Court in K. Venkatachalam vs. A. Swamickan (1999) 4 SCC 526 and a judgment of this Court in Vishwa Bandhu Gupta vs. Returning Officer 1990 (Vol.VIII) LCD 553 are entirely off the mark. In K. Venkatachalam vs. A. Swamickan (supra) the election set up by a person impersonating himself for another person was set aside in exercise of powers under Article 226 of Constitution of India. The Supreme Court upheld the judgement. In Vishwa Bandhu Gupta vs. Returning Officer (supra) the election to the office of Chairman of a Municipal Board was rejected to facilitate free, fair and proper election in accordance with the law. In the present case the issues raised do not form any exception. Rule 444-C provides for challenging the elections by arbitration or otherwise on various grounds including corrupt practice, bribery, undue influence, improper acceptance or rejection of any nomination or by improper reception, refusal or rejection of voters, or by gross failure to comply with the provisions of the Act, the rules or the bye laws of the society. The petitioners can always challenge the elections after the results are declared on any of the grounds. We are of the view that the grounds raised in these writ petitions may succeed, if they are so established, under Rule 444-C (1) (b) (ii) of the Rules of 1968. The dispute under sub-rule (2), however, has to be referred by the aggrieved party within 45 days of the declaration of the result. This limitation is not subject to any relaxation or the applicability of Section 5 of Limitation Act. The legislature has consciously provided the limitation of only 45 days to bring in certainty to the affairs in the functioning of the Cooperative Societies.
45. We also do not find any substance in the contention that this Court should have allowed the instalments to be fixed for the defaulters PACS in payment of dues to the bank to qualify them for voting. Where the Rules specifically provide that defaulter PACS are not entitled to vote, the Courts do not ordinarily, until any exceptional circumstances are shown, provide for payment of defaulted amount in instalments and make them eligible for voting.
46. For the aforesaid reasons all the writ petitions are dismissed. The result of the elections withhold since January, 2013 shall be announced forthwith. Any person aggrieved by the result may file an election petition in accordance with the law for deciding the questions except those, which have been considered and decided by us in this judgement. The election petitions will be entertained subject to the limitation prescribed under the Act and the Rule for filing such petition. There shall be no orders to cost.
Order Date :- 29.5.2014 RKP