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Case Number

Misc. Judicial Cases Nos. 95, 112, 119, 345 and 462 of 1964

Attorney(S)

Kanhaiya Prasad Verma and Jugeshwar Prasad Sinha
Addl. Standing Counsel and Lalnarayan Sinha
Pradyuma Narain Singh and Radha Raman

Judges

V. Ramaswami, C.J
N.L Untwalia, J.

Acts

rule 3 of the Bihar Panchayat Samitis and Zila Parishads (Elections, Co-options and Election Petitions) Rules, 1963, hereinafter failed the Rules,
clause (iii) of section 5 of the Bihar Panchayat Samitis and Zila Parishads Act, 1961 (Bihar Act VI of 1962), hereinafter called the Act
REPRESENTATION OF THE PEOPLE ACT 1950
Orissa Co-operative Societies Act, 1935 (Bihar Act VI
(b) of clause (iii) of sub-section (1) of section 5,
clause (iii) of sub-section (1) of section 5
section 48 of the Bihar Act VI of 1935.
section 48 of Bihar Act VI of 1935. 1
clause (viii) of rule 2 of the Rules
Panchayat Samiti.5. Rules 5
rule 3 of the Rules,
meeting.4. Rule 4
1964, and Rule 3
sub-rule (1)

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Smart Summary

Judicial Opinion Summary — Untwalia, J. (Selected M.J.C. matters, elections under Bihar Panchayat Samitis and Zila Parishads Act, 1961)

Factual and Procedural Background

This opinion concerns five petitions challenging elections, held in 1963, of representatives of various Co-operative Societies to the Panchayat Samitis. The representatives were to be elected under clause (iii) of section 5 of the Bihar Panchayat Samitis and Zila Parishads Act, 1961 ("the Act") by the Secretaries of the Co-operative Societies from amongst themselves.

The challenges advanced in these petitions were directed at: (1) the constitutional validity of rule 3 of the Bihar Panchayat Samitis and Zila Parishads (Elections, Co-options and Election Petitions) Rules, 1963 ("the Rules") which prescribed the manner of the election; and (2) alleged non-compliance with rule 3, in that the Returning Officer did not obtain the list of Secretaries from the Assistant Registrar of Co-operative Societies as required by that rule when convening the election meeting.

The opinion analyzes the Rules as they stood prior to amendments made in 1964, describes the statutory provision in section 5(iii) for the composition of each Panchayat Samiti and sets out the content of rule 3 (as originally framed), rule 4 and related provisions. The court considered petitions including M.J.C. 462 of 1964, M.J.C. 119 of 1964, M.J.C. 345 of 1964 and others, and ultimately allowed the applications in several of these matters, setting aside the elections challenged and granting writs in the nature of certiorari under Article 226 of the Constitution.

Legal Issues Presented

Whether rule 3 of the 1963 Rules (prescribing the procedure for election of Co-operative Society representatives under clause (iii) of section 5) was constitutionally valid as it stood for the 1963 elections.
Whether an election is invalid if the Returning Officer did not obtain the list of Secretaries from the Assistant Registrar of Co-operative Societies as expressly required by rule 3 (i.e., whether non-compliance with the rule in obtaining a properly signed list vitiates the election).

Arguments of the Parties

Petitioners' Arguments

The election of representatives of Co-operative Societies to the Panchayat Samitis was challengeable on two grounds: (a) rule 3 of the 1963 Rules prescribing the manner of such elections was constitutionally invalid; and (b) the Returning Officer did not obtain the list of Secretaries from the Assistant Registrar of Co-operative Societies as required by rule 3, causing irregularity in the election process.
Specific factual claims appear in individual petitions (for example, in M.J.C. 345 of 1964 petitioners claim their names were omitted from the list of Secretaries, preventing them from standing as candidates).

Learned Government Advocate (for respondents 6 to 8, M.J.C. 462 of 1964)

Argued that although the Rules did not expressly provide a mechanism for filing and settling objections to the list of electors supplied by the Assistant Registrar, the Returning Officer could entertain and decide objections at the time of scrutiny of nomination papers or at the poll.
Also relied on an unreported Bench decision (Raghav Jha v. Registrar, Co-operative Societies, J.C. 226 of 1961) as supporting the proposition that certain election disputes touching the business of registered societies can be referred to the Registrar under section 48 of the Co-operative Societies Act (1935), and suggested that disputes regarding the list of Secretaries could be dealt with in that manner.

Counsel for respondents 6 and 7 (Mr. Shankar Kumar)

Contended in M.J.C. 345 of 1964 that the election should have been challenged by following the special machinery provided in rule 148 of the Rules, and that this Court, in exercise of its power under Article 226, should not interfere when a special statutory forum or procedure exists for challenging elections.

Additional Standing Counsel for the State

Did not advance any argument to support the validity of rule 3 of the Rules (as originally framed for the 1963 elections), according to the opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chief Commissioner of Ajmer v. Radhey Shyam Dani, AIR 1957 SC 304	Principle that proper electoral rolls must be prepared with provision for scrutiny, revision, adjudication of claims and objections; rules omitting these safeguards are defective.	The court relied on this Supreme Court authority to hold that rule 3 (as then framed) was defective and invalid because it provided no procedure or forum for objections to the list of electors (the list of Secretaries) before nominations and polling.
Raghav Jha v. Registrar, Co-operative Societies, J.C. 226 of 1961 (unreported, Pat.)	Held (in that Bench decision) that election disputes relating to the election of managing committees or directors of Co-operative Societies are referable to the Registrar under section 48 of the Bihar & Orissa Co-operative Societies Act, 1935.	The court noted this authority where cited by counsel but rejected the argument that disputes regarding the list of Secretaries (the electoral roll for the Panchayat Samiti election) could properly be referred to the Registrar under section 48, explaining that the kinds of disputes arising from the electoral list are different and must be addressed by an authority under the Rules for the election in question.

Court's Reasoning and Analysis

The court's reasoning proceeds in a series of steps tied closely to the text of the Act and the Rules as they existed for the 1963 elections:

Statutory framework: Section 5(iii) required three representatives of different Co-operative Societies in each Block to be elected by the Secretaries thereof from amongst themselves "in the prescribed manner." In exercise of power under section 75, the State framed the 1963 Rules; rule 3 designated the Sub-divisional Officer (or other Collector-appointed officer) as Returning Officer and required that he "after obtaining a list of Secretaries from the Assistant Registrar of Co-operative Societies, convene a meeting for such election."
Identification of the electoral roll: The court emphasized that for the elections in question the whole and sole basis of being an elector was inclusion in the list of Secretaries supplied by the Assistant Registrar — effectively the electoral roll for that election.
Absence of objection procedure: The 1963 Rules provided no procedure or forum for filing objections to or challenging the correctness of the Assistant Registrar's list (for example, disputes about whether a society was included, or whether the person named as Secretary was in fact the Secretary). The court found that such omissions meant there was no mechanism to scrutinize or revise the electoral roll before nominations and polling.
Reliance on Supreme Court authority: Applying the principle from Chief Commissioner of Ajmer v. Radhey Shyam Dani (AIR 1957 SC 304), the court held that it is essential to maintain proper electoral rolls and to provide opportunity for scrutiny, revision and adjudication of claims and objections; where rules omit such provisions they are defective. On this basis the court held rule 3 (as originally framed) to be defective and invalid for the purposes of the 1963 elections.
Rejection of retrospective procedural fixes: The court rejected the argument that the Returning Officer could validly entertain and decide objections only at time of nomination scrutiny or polling; it held that procedures for filing and settling objections must be prescribed before electors are called to file nominations and cast votes.
Rejection of referral to Registrar under section 48: The court rejected the contention that disputes concerning the list of Secretaries could be referred to the Registrar of Co-operative Societies under section 48 of the Bihar & Orissa Co-operative Societies Act, 1935, because disputes about the electoral list for these Panchayat Samiti elections are not the same as election disputes concerning the managing committee or directors of societies which section 48 addresses.
Non-compliance with rule 3's formal requirement: Even assuming rule 3 were valid, the court held that the Returning Officer must obtain the list from the Assistant Registrar in the sense of a list signed by the Assistant Registrar taking responsibility for its accuracy. A list signed by another officer or supplied otherwise was insufficient and amounted to non-compliance rendering the election invalid.
Noting later amendment: The opinion records that rule 3 was amended in 1964 to prescribe a draft list procedure, publication on the Block notice-board, invitation of claims and objections, hearing and finalization — i.e., a procedure that addressed the defect identified by the court. The court used the post-amendment rule text to illustrate the kind of safeguards absent for the 1963 elections.
Application to specific petitions: Applying the above legal conclusions, the court found in multiple petitions (including M.J.C. 462 of 1964, M.J.C. 119 of 1964 and M.J.C. 345 of 1964 as described) that the elections were illegal or void on the grounds stated and allowed the applications, quashing the elections by writ in the nature of certiorari under Article 226.

Holding and Implications

Holding: The court held that rule 3 of the 1963 Rules, as then framed, was defective and invalid for failing to provide a procedure and forum for scrutiny, revision and adjudication of objections to the list of electors (the list of Secretaries supplied by the Assistant Registrar), and that elections held without obtaining the list from the Assistant Registrar in the required form (i.e., a list signed by the Assistant Registrar taking responsibility for its accuracy) were invalid.

Direct consequences applied by the court:

The court set aside and quashed the elections challenged in the petitions discussed (for example, the election of respondents 6 and 7 in M.J.C. 345 of 1964 was set aside), granting writs in the nature of certiorari under Article 226 of the Constitution.
The court made no order as to costs in at least one of the matters (explicitly stated in the opinion).

Broader implications:

The opinion highlights that the 1964 amendments to rule 3 introduced a draft-list procedure, publication and a period for claims and objections with hearings and finalization, thereby addressing the procedural deficiencies identified in the 1963 Rules. The opinion does not purport to lay down an entirely new principle of law beyond applying the Supreme Court's established requirement for adequate procedures governing electoral rolls; it applies that principle to invalidate the 1963-mode elections where procedural safeguards were absent or where mandatory formalities (receipt of a list signed by the Assistant Registrar) were not observed.

Disposition: Application allowed. Chief Justice Ramaswami concurred. (Final short form: "Application allowed.")

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Umakant Singh And Others v. Binda Choudhary And Others

Untwalia, J.:— In all these five cases the election under clause (iii) of section 5 of the Bihar Panchayat Samitis and Zila Parishads Act, 1961 (Bihar Act VI of 1962), hereinafter called the Act of the representatives of the different Co-operative Societies in the different Blocks by the Secretaries thereof from amongst themselves to the various Panchayat Samitis has been challenged on two grounds: (i) that rule 3 of the Bihar Panchayat Samitis and Zila Parishads (Elections, Co-options and Election Petitions) Rules, 1963, hereinafter failed the Rules, prescribing the manner of the election under the said provision of the Act, as it stood at the relevant lime, was constitutionally invalid; and (ii) that the Returning Officer did not obtain a list of Secretaries from the Assistant Registrar of Co-operative Societies as required by the said rule for the purpose of convening a meeting for election of the representatives specified in clause (iii) of section 5 of the Act.

2. There have been many amendments in the Act and the Rules in the year 1964. But since we are concerned in all these five cases with the elections which were held in the year 1963, I shall refer to the relevant provisions of the Act and Rules as they stood prior to the amendments. Section 5 of the Act providing for composition of Panchayat Samitis in various blocks stated:

“Every Panchayat Samiti shall consist of the following members, namely:—

**********

(iii) three representatives of the different co-operative societies in the Block other been a Central Co-operative Bank to be elected by the secretaries thereof from amongst themselves in the prescribed manner;”

3. In exercise of the powers conferred by section 75 of the Act, the State Government made Rules prescribing the manner of the said election, and rule 3 of the Rules read as follows:—

“For election of the members specified in clause (iii) of section 5 by the Secretaries of the different co-operative societies in the Block (hereinafter referred to as ‘electors’ in this chapter) other than a Central Co-operative Bank the Sub divisional Officer or any other officer appointed by the Collector in this behalf shall act as “the Returning Officer” and such Returning Officer shall after obtaining a list of Secretaries from the Assistant Registrar of Co-operative Societies, convene a meeting for such election on such date, time and place as may be fixed by him within the Block and shall preside over such meeting.”

4. Rule 4 said:—

“The Returning Officer shall in the meeting referred to in rule 3, call for nomination papers of candidate desirous of being elected as members of the Panchayat Samiti.”

5. Rules 5 and 6 prescribed the manner of the filing and scrutiny of the nomination papers for election of the members of the Panchayat Samiti by the Secretaries of the different Co-operative Societies in the Block. Rules 7 to 11 provided the procedure of declaring the result of uncontested candidates and, in case of contest, the manner of taking the poll and declaration of the results after the contest. Under clause (viii) of rule 2 of the Rules “‘elector’ means a person who is entitled to vote in a particular election”. It is manifest that for the purposes of electing three representatives of the different Co-operative Societies in the Block to be elected by the Secretaries there from amongst themselves, the whole and sole basis of a person being an elector for the purposes of the said election was the list of Secretaries obtained by the Returning Officer from the Assistant Registrar, Co-operative Societies. No procedure was prescribed for filing of any objection before any authority for the purpose of challenging the correctness of the list supplied by the Assistant Registrar, in respect of which various kinds of disputes could and did crop up, to wit, (i) whether a particular Co-operative Society and its Secretary were included in the list or not; (ii) whether the person mentioned as the Secretary of the particular Co-operative Society was its Secretary or not or whether somebody else was its Secretary; and so on and so forth. No manner and forum were prescribed for the raising of any kind of dispute, which was bound to creep in regard to the list of electors, which, to all intents and purposes, was the electoral roll for the purposes of election of 3 representatives of the different Co-operative Societies in the Block. In such a situation, relying upon the principle of law laid down by the Supreme Court in the case of Chief Commissioner of Ajmer v. Radhey Shyam Dani, (S) AIR 1957 SC 304, it must be held that rule 3 of the Rules, as it was, was defective and invalid. Bhagwati, J., delivering the judgment on behalf of the Court, has said:

“It is of the essence of these elections that proper electoral rolls should he maintained and in order that a proper electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to serutinisc whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also he given for the revision of the electoral roll and for the adjudication of claims to he enrolled therein and entertaining objections to such enrollment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held on such imperfect electoral rolls would acquire no validity and would be liable to he challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these provisions they were defective”

6. Learned Government Advocate appearing for respondents 6 to 8, the elected representatives, in M.J.C 462 of 1964, submitted that, although there was no express provision made in the Rules for the filing and settlement of objections to the elector's list supplied by the Assistant Registrar of Co. operative Societies, the Returning Officer, at the time of the scrutiny of the nomination papers or the taking of the poll, could entertain and decide the objections, if any, in regard to the list of secretaries obtained from the Assistant Registrar. In my opinion, the argument is wrong and cannot be accepted from the practical us well as from the legal point of view, a procedure for the filing of the objections and their settlement in regard to the electors list for any election has got to be prescribed before the electors are called upon to file the nomination papers and to cast their vote at the poll, if necessary. In all kinds of elections parliamentary, municipal or of gram panchayats such procedures were prescribed and to obviate unnecessary expenses and time in preparing duplicate electoral rolls for gram panchayat and municipal elections in Bihar relevant portions of the electoral rolls of the parliamentary constituencies, which are prepared in accordance with the elaborate procedure provided and prescribed in the Representation of the People Act, 1950 and the Rules framed thereunder, have been adopted for the purposes of those elections. It is difficult to imagine of a valid election without prescribing the procedure and the forum for the filing and settlement of objections to the electors list. To say that such steps could be reasonably and validly taken at the time of the filing of the nomination papers or the poll is not correct. I may add the learned Additional Standing Counsel appearing for the State did not advance any such argument to support the validity of rule 3 of the Rules.

7. Reference was also made by the learned Government Advocate during the course of his argument to an unreported decision of this Bench in Raghav Jha v. Registrar, Co-operative Societies, in J.C 226 of 1961 D/- 6-7-1961 (Pat) wherein it has been held that election disputes relating to the election of the Managing Committee or the Directors of Co. operative Societies under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar Act VI of 1935) are disputes referable to the Registrar of Co-operative Societies under section 48 of the said as they touch the business of registered societies. Counsel submitted that disputes in regard to the his of secretaries obtained by the Returning Officer from the Assistant Registrar of Co-operative Societies could be referred to and decided by the Registrar of Co-operative Societies under section 48 of Bihar Act VI of 1935. 1 must confess I could not follow this argument at all. What is referable to the Registrar. Co-operative Societies, under the said provision of law is the election disputes relating to the election of the Managing Committee or the Directors of the Co-operative Societies and that can be determined by the Registrar, but the dispute in regard to the list of secretaries supplied by the Assistant Registrar, Co-operative Societies, will be largely of a different kind if not wholly. As for example, if a question arose as to whether a particular person being the secretary of a particular Co-operative Society was mentioned in I lie list or not obviously this was a matter to be decided by some authority for the purposes of holding the election under the Rules, and could not be referred to the Registrar, Co-operative Societies, under section 48 of the Bihar Act VI of 1935. Similarly, without raising any election dispute, if a person claimed that he was the secretary of a part culm society and not the person who had wrongly been shown as such in the list supp lied by the assistant registrar, the matter again would be subject of decision by the authority under the Rules and that authority for the purposes of holding the election may decide as to who was the secretary of particular society on the materials placed before him. In some cases, a decision of the registrar given on such an election dispute having been raised before him earlier, may be referred to by the objector in support of his claim. I have, therefore, no hesitation in rejecting this argument also put forward by the learned Government Advocate.

8. To lend some support to the view I have expressed above, I may state that the Rules have been amended in 1964, and Rule 3 after the said amendment reads thus—

“(1) for election of the representatives specified in clause (iii) of sub-section (1) of section 5 by the secretaries of the different co-operative societies or the members of the managing committee of the Vyapar Mandal (hereinafter referred to as ‘electors’ in this chapter) in the Block, the Sub-divisional Officer, or any other officer appointed by the Collector in this behalf, shall act as the Returning Officer.

(2) The Returning Officer appointed under sub-rule (1) shall obtain from the Assistant Registrar of Co-operative Societies having jurisdiction over the Block separate lists of the secretaries of the Co-operative Societies, mentioned in items (a) and (b) of clause (iii) of sub-section (1) of section 5, registered up to the 30th day of June preceding the date on which a recruisition is sent by the Returning Officer in this behalf, and members of the managing committee of the Vyapar Mandal in the Block, if any, and each such list shall be called draft list of electors.

(3) The draft lists of electors shall be published on the notice-board of the Block for a period of not less than fifteen days along with a notice inviting claims and objections in respect thereto and mentioning the date on which such claims and objections shall be heard.

(4) The Returning Officer shall, after nearing the claims and objections, pass such orders as he may consider to be suitable and shall, if required, amend the draft lists of electors accordingly the draft lists shall then become final and shall be published on the notice-board of the Block.

(5) The lists of electors shall be prepared in the manner laid down in sub-rules (1) to (4) whenever an election is held under this chapter”

9. In the cases in which the second point arises, it is obvious that even if rule 3 of the Rules could be held to be valid and not defective, the election by the Returning Officer after obtaining a list of secretaries not from the Assistant Registrar of Co-operative Societies, as required by the rule, but on the basis of a list supplied and signed by somebody else has got to be held that the Returning Officer had to obtain the list of secretaries from the Assistant Registrar which meant a list signed by him taking the responsibility of the accuracy and correctness of the list of electors. A list signed by some other officer or somebody else on behalf of the Co-operative, Societies, even assuming it to have been physically supplied by the Assistant Registrar, as is stated to be the fact in some of these cases, was not sufficient and insubstantial compliance with the requirement of the rule. It must, therefore, be held that the election held upon the list of secretaries not obtained from the Assistant Registrar but in some other manner was bad on this ground also.

10. (His Lordship then considered the case in M.J.C 462 of 1964 and M.J.C 119 of 1964, held the election to be illegal and void and allowed the application).

11. M.J.C 345 of 1964. In this case, it is not quite clear on the facts stated in the petition or in the counter-affidavits filed on behalf of the various respondents as to whether three representatives were elected or only two namely, Gurudeyal Mahto and Md. Hemait Ansari respondents 6 and 7 respectively. Petitioner No. 1 claims to he the Secretary of Anandi multipurpose Co-operative Society of Ormanjhi Block in the district of Ranchi, and the claim of petitioner No. 2 is that he is the Secretary of Multipurpose Co-operative Society No. 2 Baridih within the said Block. Petitioner No. 1 wanted to stand as a candidate at the election but his name was not in the list. Therefore he could not do so. The grievance of the petitioners is that the names of some other persons also did not find place in the list, which ought to have been there. Election in this case was held on 12-12-63. The list of Secretaries, of the Co-operative Societies was not supplied by the Assistant Registrar Mr. Shankar Kumar appearing for respondents 6 and 7 submitted that the election ought to have been challenged by following the machinery provided in rule 148 of the rules, and this Court, in exercise of its power under Article 226 of the Constitution, should not interfere with the election when a special machinery was provided for challenging it. I am unable to accept this argument, it is the well settled view of the Court that if the entire election is challenged as having been held under statutes or statutory rules which are invalid or by committing illegalities which make the entire election void, it can be quashed by grant of a writ in the nature of certiorari.

12. In the result, this application is allowed, election of respondents 6 and 7 as representatives of the Co-operative Societies to the Panchayat Samiti in the Ormanjhi Block in the district of Ranchi is set aside by grant of a writ in the nature of certiorari under Article 226 of the Constitution. I would make no order as to cost. (After considering the cases in M.J.C 95 of 1964 and 112 of 1964, his Lordship set aside the elections and allowed the applications).

Ramaswami, C.J:— I agree.

EI/V.S.B/DVC

13. Application allowed.

Umakant Singh And Others v. Binda Choudhary And Others

Judicial Opinion Summary — Untwalia, J. (Selected M.J.C. matters, elections under Bihar Panchayat Samitis and Zila Parishads Act, 1961)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Learned Government Advocate (for respondents 6 to 8, M.J.C. 462 of 1964)

Counsel for respondents 6 and 7 (Mr. Shankar Kumar)

Additional Standing Counsel for the State

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Umakant Singh And Others v. Binda Choudhary And Others

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