Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9051 of 2012 ====================================================== 1. Prabhakar Mishra S/O Late Brahmdeo Mishra R/O Village- Dumari Bujurg, P.S.- Nayagaon, District- Saran At Chapra 2. Laljee Mahto S/O Sri Ram Ayodhya Mahto R/O Village- Dumari Bujurg, P.S.- Nayagaon, District- Saran At Chapra 3. Amrendra Kumar Singh S/O Sri Jitendra Prasad Singh R/O Village- Dumari Bujurg, P.S.- Nayagaon, District- Saran At Chapra 4. Ganesh Kumar Singh S/O Late Kedar Singh R/O Village- Dumari Bujurg, P.S.- Nayagaon, District- Saran At Chapra 5. Renu Devi W/O Sri Lalit Singh R/O Village- Dumari Bujurg, P.S.- Nayagaon, District- Saran At Chapra 6. Meera Devi W/O Sri Mithilesh Kumar Singh R/O Village- Dumari Bujurg, P.S.- Nayagaon, District- Saran At Chapra .... .... Petitioner/s Versus 1. The State Of Bihar through Its Secretary Co-Operative Department, Govt. Of Bihar, Patna 2. The Registrar, Co-Operative Societies, Bihar, Patna 3. The Joint Registrar Co-Operative Societies, Saran Division, Chapra 4. Dumari Bujurg Primary Agriculture Credit Co-Operative Societies Ltd. (Dumari Bujurg Pacs) Under Sonepur Block in the District Of Saran, Chapra 5. Block Development Officer, Sonepur-Cum-Election Officer Dumari Bujurg Pacs, District- Saran, Chapra 6. Ram Sahay Singh S/O Late Sukhdeo Singh R/O Village + P.O.- Dumari Bujurg, P.S.- Nayagaon, District- Saran, Chapra 7. Mr. M.P. Singh, Loan Recovery Officer Bihar State Co-Operative Land Development Bank Ltd., Budhmarg, Patna-1 .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.10289 of 2012 ====================================================== Sunil Kumar Singh S/O Sri Maharana Pratap Singh R/O Vill& P.O.-Dumari Bujurg, P.S.- Nayagaon, Distt-Saran, Chapra .... .... Petitioner/s Versus 1. The State Of Bihar through Its Secretary, Co-Operative Department Govt. Of Bihar, Patna 2. Mr. Ramadhar Singh,Minister , Co-Operative Department Govt. Of Bihar, Patna 3. The Registrar, Co-Operative Societies Bihar, Patna 4. Joint Registrar, Co-Operative Societies Saran Division, Chapra 5. Dumari Bujurg Primary Agriculture Credit Co-Operative Society Ltd (Dumari Bujurg Pacs) Under Sonepur Block in the District Of Saran, Chapra 6. Block Development Officer, Sonepur-Cum-Election Officer Dumari Bujurg Pacs, District-Saran, Chapra 7. Mr. M.P.Singh, Loan Recovery Officer, Bihar State Co-Operative Land Development Bank Ltd. Budh Marg, Patna-1 8. Ram Sahays Singh S/O Late Sukhdeo Singh R/O Vill+P.O.-Dumari Bujurg, P.S.- Nayagaon, Distt-Saran, Chapra 9. Uday Kumar Singh S/O Late Mastana Singh R/O Vill+P.O.-Dumari Bujurg, P.S.- Nayagaon, Distt-Saran, Chapra 10. Thakur Singh S/O Late Nageshwar Singh R/O Vill+P.O.-Dumari Bujurg, P.S.- Nayagaon, Distt-Saran, Chapra 11. Sanjay Kumar Singh S/O Sri Akhileshwar Singh R/O Vill+P.O.-Dumari Bujurg, P.S.- Nayagaon, Distt-Saran, Chapra .... .... Respondent/s ====================================================== Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 2 Appearance : For the Petitioner/s : For respondent no. 2 For respondent no. 8 For respondent no. 7 For the State (In CWJC No. 9051/12) : : : : Mr. Y.V.Giri, Sr. Advocate with Mr. Ishwari Singh & Mr. Manish Kr. Singh, Advocates Mr. Bindhyachal Rai, Advocate Mr. Yogendra Mishra, Mr. Mukesh Kumar, Advocates Mr. Rajesh Prasad Choudhary, Advocate Mr. Manoj Priyadarshi, SC 17 Mr. Tej Pratap Singh, AC to SC 17 For the State (In CWJC No.10289/12) ====================================================== Mr. Kundan Kumar, AC to SC 1 : CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA C.A.V. ORDER 9 16-05-2013 Both the writ applications have been heard together with the consent of the parties as the impugned order is common. Petitioners of CWJC No. 9051 of 2012 have
Legal Reasoning
challenged the order, whereby the Election of Dumri Bujurg Primary Agriculture Credit Society Limited (Dumri Bujurg PACS) under Sonepur Block in the district of Saran at Chapra held on 16.10.2009, was set aside by the order of the Joint Registrar, Cooperative Societies, Saran Division, Chapra in Election Dispute Case No. 135 of 2009. Petitioners of the above writ application were the elected members of the aforesaid PACS. Another writ application vide CWJC No. 10289 of 2012 is filed on behalf of the petitioner, who was elected Chairman of the said PACS of the same election. The election of the aforesaid PACS was set aside as per the order dated 04.04.2012 vide Annexure-6. Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 3 Petitioners of CWJC No. 9051 challenged the impugned order on the ground that in the aforesaid election dispute case neither the petitioners were party nor their election was challenged in the said election petition filed by the respondent no. 6. As such, entire election of PACS including the election of these petitioners could not have been set aside. Petitioner of CWJC No. 10289 of 2012, who was elected Chairman of the said PACS, challenged the impugned order firstly on the ground that Joint Registrar (respondent no. 4) was lacking inherent jurisdiction since under the provisions of Bihar State Election Authority Act, 2008 (hereinafter referred to as the “Act of 2008”), the respondent no. 4 was not the Prescribed Authority to entertain the election petition. The
Decision
other ground for assailing the impugned order is that the order has been passed on hearing on the date for which the petitioner had no notice. Besides, the order is passed without application of mind since the irrelevant factors were taken into consideration whereas relevant facts were not taken into consideration. Petitioner also assailed the order alleging malice on the part of the respondent no. 4 since according to the petitioner the impugned order was passed at the behest of respondent no. 2, the Minister Incharge, Co-operative Department, Government of Bihar. Shortly stated, the relevant facts are that as per the election programme in the election of aforesaid PACS, the Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 4 petitioner as also respondent no. 8, 10 & 11 filed nominations for election to the post of Chairman of the Society. The filing of nomination of respondent no. 8 was objected by respondent no. 9 on the ground that the respondent no. 9 is the defaulter loanee of Bihar State Cooperative Land Development Bank, Dighwara Branch, Saran (in short “Bank”) and in support of the same submits the certificate of Recovery Officer of Bank (respondent no. 7). The District Magistrate, Saran, who happened to be the District Election Officer for PACS Election in question, got the matter enquired in which it was found that respondent no. 8 is a defaulter of Bank loan availed by him. The Election Officer, upon hearing respondent no. 8 as also respondent no. 9, who filed his objection, concluded that respondent no. 8 is defaulter, and as such, not eligible to contest the election and rejected his nomination for election to the post of Chairman. Thereafter, petitioner and the remaining two candidates, namely, respondent nos. 10 & 11 contested the election in which petitioner was declared elected. The respondent no. 8 challenged the election of the aforesaid PACS before respondent no. 3 under section 48 of the Bihar Co-operative Societies Act, 1935 (hereinafter referred to as the “Act of 1935”) read with section 10 of the Act of 2008 vide Election Case No. 135 of 2009, as contained in Annexure-4. The Election petition was admitted, which was firstly transferred to the Assistant Registrar, and later on, finally Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 5 transferred to the Joint Registrar, Co-operative Societies (respondent no. 4). On the said election petition, the election of PACCS was set aside. Respondent No. 4 found that the objection filed by respondent no. 9 to the nomination of respondent no. 8 was on basis of the certificate of respondent no. 7, the Recovery Officer of the Bank, in a letter addressed to the respondent no. 9, who himself was also a loanee. The irregular loans of the said Branch were under enquiry. The respondent no. 4 also observed that despite giving sufficient opportunity to the Bank, neither any written statement nor any letters were provided with respect to outstanding loan dues against the loanee in which the respondent no. 8 was also said to be a defaulter loanee. The respondent no. 4, accordingly, held that the nomination paper of respondent no. 8 was rejected by the Election Officer without making proper enquiry in the matter and in absence of cogent material to substantiate that respondent no. 8 was the defaulter loanee vide order dated 04.04.2012 (Annexure-7). Mr. Y.V. Giri, learned Senior Counsel appearing for the petitioner (CWJC No. 10289 of 2012) contended that respondent no. 4 had no jurisdiction under the Act of 2008 to adjudicate the election dispute since he was not the prescribed authority to hear and dispose of the election petition under the provisions of Section 10 read with section 11 (b) as also rules under the aforesaid Act. It is submitted that under the Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 6 aforesaid Act of 2008 since no prescribed authority is designated, the election petition could be filed only before the Munsif in the Civil Court of the concerned area under Rule 11 made under Act of 2008, and as such, the impugned order passed by respondent no. 4 for having no authority in law deserves to be quashed on this score alone. Mr. Giri further contended that the impugned order is otherwise also bad in law since the aforesaid order was passed without hearing the petitioner that that too at the dictate of respondent no.2. Besides the above, it is submitted that relevant materials were not taken into considered. Mr. Yogendra Mishra, learned counsel appearing for the respondent no. 8, however, submits that on conjoint reading of section 10(I) with its proviso as also the provisions of section 11 (b) of the Act of 2008, it is clear that election petition shall be presented before such authority under the relevant Act or the Rules regulating such body and in absence of any statutory provision regulating the administrative functioning, in such case, election petition would be presented before the authority which may be prescribed by the State Government by issuing a notification to such effect. From perusal of the aforesaid provisions it would appear that the Registrar/ Joint Registrar or as the case may be as per the notification of the State Government would be the prescribed authority under the Act of 2008. In the instant case election petition was filed Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 7 before the Registrar under the provisions of Section 48 of Bihar Co-operative Societies Act, 1935 read with section 10 (I) of the Act of 2008, and as such, the Joint Registrar was absolutely competent in law to decide the election petition on being transferred by the Registrar. As regards the hearing being ex- parte, it is submitted that on perusal of the order-sheet of the aforesaid election petition, it would appear that petitioner had appeared all along and took steps in the said case in opposing the election petition. It was further contended that the allegation of passing the impugned order at the dictate of respondent no. 2 is without any foundational facts on the record. It is, however, submitted that the impugned order cannot be taken to have set aside the election of member of PACS as well. It is only confined to the election of Chairman. Learned counsel for the respondent no. 1 has not filed any written statement in the election case nor has filed any counter affidavit in this case, however, submits that respondent no. 8 was a defaulter against the loan of the Bank granted in his favour. Considering the rival submissions of the parties and their respective pleadings, the relevant provision of Section 10, 11(b) and Rule 11 of the Bihar State Election Authority Rules, 2008 made by the State Government under sub-section (1) of section 16 of the Act of 2008 are quoted below : “Section 10. Election Petition- 1(i) The election to any office of a body shall not be called in question Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 8 except by an election petition as prescribed: Provided that if an election to any office of a body is under dispute, the election petition shall lie before such authority as is prescribed under the Act or Rule regulating such body or where administration and functioning of such body is not regulated by any statutory provision, before such Authority, which the State Government may prescribe by issuance of notification. (2) Parties to the petition- A petitioner shall join as a respondent to this petition- (a) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) Any other candidate against whom allegations of any corrupt practice are made in the petition. Section 11 (b)- No election to any body shall be called in question except by an election petition presented to the Prescribed Authority under this Act. Rule 11. Election Petitons.- No election to a post of a body shall be called in question except by an election petition: Provided that if an election to any office of a body is under dispute, the election petition shall lie before such authority as is prescribed under the Act and/or Rules regulating such body or where administration and functioning of such body is not regulated by any statutory provision, before the Munsif in whose jurisdiction such institution or establishment or organization or body is situated. Sub-section (1) of Section 16 -Without prejudice to the power of State Government to make Rules, generally for the purpose of carrying out object of this Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 9 Act, the State Government may by issuance of notifications in the gazette, make rules for the following purposes- (a) Regulating procedure of functioning of the election authority ; (b) Appointment, discipline and appeal and condition of service of employees and staff of the authority ; (c) Appointment, power and jurisdiction of observers ; (d) Prescribing authority before whom election petition may lie ; (e) Procedure including fee for filing election petition ; (f) Any other matter, which is necessary or incidental for carrying out of the duties and responsibilities of the Authority. The provisions of Bihar State Election Authority Act, 2008 is enacted exclusively for the purpose of conducting the election of various bodies including the co-operative societies and also remedies for resolving the election disputes by filing election petition. Section 10(I) is clear that election of any office of a body shall not be called in question except by an election petition as prescribed (underline is mine). The word “prescribed” has been clarified by the proviso to section 10(I). It is clarified that election petition shall be presented or lie only before such authority as is prescribed under the Act or the rules regulating such body. Now in this case the body i.e. Dumri Bujurg Primary Agriculture Credit Society ( Dumri Bujurg PACS) is a society under the Act of 1935 and conducts its business in accordance with the provisions of said Act, rules framed thereunder and its registered bye-laws. The Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 10 above fact is not in dispute rather the same is an admitted position as reiterated in paragraph 3 of the writ application. Therefore, it is manifest that the election petition would lie before such authority (underline is mine) as prescribed under the Bihar Co-operative Societies Act, 1935 and rules thereunder. Admittedly, the Registrar, Co-operative Societies Bihar (respondent No. 3) is competent to entertain the election dispute, and as such, the Registrar would be the authority before whom election petition can lie under the provisions of section 10(I) of the Act of 2008. In other words Registrar Co- operative Societies is the Prescribed Authority under the Act of 2008 within the meaning of the aforesaid provisions of section 10 of Act of 2008. The election petition was filed before the Registrar (respondent no. 3) vide Annexure-4, and as such, the same was valid in law. The said election petition was subsequently transferred to which the Registrar was competent, a fact not in dispute, for hearing and disposal by the respondent no. 4, who has passed the impugned order. Besides the above, petitioner appeared in the said election case no. 135 of 2009 and took steps. Petitioner also filed petition for transfer of the case for having some grudge against the then Joint Registrar vide Transfer Case No. 198 of 2010. The order- sheet of the date 02.12.2011 of the aforesaid election dispute case would reveal the appearance of the petitioner. For example, admittedly petitioner was appearing in the said case Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 11 on 02.12.2011 fixing 09.12.2011 when petitioner did not appear and subsequent dates were fixed. A party having once appeared in a proceeding and if the dates in the said case is fixed regularly, then on subsequent dates it was the duty of the party to appear and take steps, if any, on subsequent dates, and in case party fails to appear and order is passed the same cannot be said to be an order passed behind his back. The principle of violation of nature justice is not attracted in such a situation. The direction to inform the parties in the order dated 24.02.2012 (Annexure-6) will not give the cause to hold that the hearing took place on the next date can be termed as a hearing without notice. Moreover, there is no pleading that no notice was issued or petitioner had no notice of the hearing. With respect to materials attributed against respondent no. 4 for passing the order at the dictate of respondent no. 2 as also the fact as to whether respondent no. 8 was defaulter or not, are the matters to be adjudicated by the authority deciding the election dispute or the appellate authority in case any appeal is filed against the order passed on such election petition. Petitioner submits that even in absence of the documents provided by the respondent-Bank with respect to the fact of loan dues against respondent no. 8 although standing in the name of respondent no. 9 given by the Bank in which he himself was also said to be defaulter loanee as also the facts revealed in the enquiry got done by the District Magistrate, the Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 12 District Election Officer had sufficient material to hold that respondent no. 8 was a defaulter. In my opinion, sufficiency or insufficiency of the material to hold a finding of fact is a matter within the domain of the authority deciding the election dispute. The appreciation of document and its reliability are equally within the domain of said authority and that cannot be subjected to the judicial scrutiny on a petition under Article 226 of the Constitution of India. The respondent-Bank has also not filed any counter affidavit either denying or accepting the allegation that respondent no. 8 was having loan dues which has serious bearing on its eligibility to contest the election. Having held that the Joint Registrar (respondent no. 4) is the prescribed authority within the meaning of section 10(I) read with the provisions of section 11 (b) of the Act of 2008. since the respondent no. 4 is the prescribed authority, the applicability of rule 11 made under the aforesaid Act prescribing the forum before the concerned Munsif does not come into play as the authority is already prescribed under the Act. In view of the admitted position and agreement at the bar that the election of members who are the writ petitioners of CWJC No. 9051 of 2012 were not subject matter of election dispute in question, and as such, the impugned order could be confined only to the election of the writ petitioner Sunil Kumar Singh of CWJC No. 10289 of 2012 as neither they were party not any prayer was made for setting aside their election. The Patna High Court CWJC No.9051 of 2012 (9) dt.16-05-2013 13 other grounds of the petitioner for assailing the impugned order revolves around the facts which are either disputed or needs examination of relevant records, and as such, in my opinion, since statutory remedy of appeal is available before the respondent no. 3, the Registrar, Co-operative Socities, Bihar Patna, against the orders passed by the Joint Registrar (respondent no. 4), it will be open for the petitioner to avail the statutory remedy of appeal. In case petitioner files an appeal before the appellate authority within a period of six weeks, the appeal be disposed of on merits in accordance with law expeditiously preferably within a period of four months on filing of such appeal. The question of limitation, if any, may not come into the way in deciding the appeal. Both the writ applications are accordingly disposed of with the above observations/directions. Manish/- (Shailesh Kumar Sinha, J)