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Rajendra Kumar Sharma v. The State Of M.P.
Legal Opinion Summary — Sohani, J.
Factual and Procedural Background
The petitioner is a member of "Gramin Sewa Sahakari Sanstha Maryadit, Panpur", a co-operative society registered under the Co-operative Societies Act, 1960, located in tehsil and district Mandsaur. The society was holding elections to elect members of its committee and delegates to represent the society in other co-operative societies. The petitioner filed nomination forms to be elected as a delegate to the District Central Co-operative Bank Limited, District Mandsaur. On the date fixed for scrutiny, respondent no. 4 (the returning officer) rejected the petitioner's nomination forms.
The petitioner alleged that the rejection was mala fide and politically motivated because he belonged to the Bharatiya Jana Party and asserted that respondent no. 4 acted on instructions from respondent no. 3 (the Assistant Registrar of Co-operative Societies) to reject nominations of candidates not belonging to Congress (I). The petitioner further alleged widespread similar rejections in other societies (44 out of 52 societies in Mandsaur and Neemuch tehsils) and sought relief under Article 226 of the Constitution to stay elections of all primary co-operative societies in those tehsils and to set aside the rejection of his and other nomination papers.
In response, the respondents contended that an alternative statutory remedy under section 64 of the Act (referral of election disputes to the Registrar of Co-operative Societies) was available and that the writ petition under Article 226 was therefore misconceived. They maintained that the rejections were valid and in accordance with the rules, and denied mala fides, pointing out that some candidates declared elected unopposed were not members of Congress (I).
The court examined the relevant statutory provisions (Rule 41(9) regarding scrutiny of nomination papers and Section 64(1) and clause (v) of sub-section (2) of Section 64 regarding election disputes and the proviso forbidding registrar intervention between announcement of election programme and declaration of result). The petition was ultimately dismissed and the interim order passed on 2nd November, 1981 was vacated. No order as to costs was made. A certified copy of the order was to be provided on payment of necessary charges.
Legal Issues Presented
- Whether the High Court should entertain a petition under Article 226 of the Constitution challenging the rejection of nomination papers and seeking to stay and set aside elections of multiple primary co-operative societies, when a statutory remedy under section 64 of the Co-operative Societies Act, 1960 exists.
- Whether the remedy under section 64 is efficacious or is rendered illusory by reason of its availability only after declaration of results and by the petitioner's allegation that the Registrar would be biased in favour of the ruling party.
- Whether the facts of this case amount to the "very exceptional circumstances" (if any) that would justify interference by the High Court under Article 226 at an intermediate stage of an election process.
Arguments of the Parties
Petitioner's Arguments (as presented)
- The petition challenged not only the election of the petitioner's society but also the elections of all other primary co-operative societies in Mandsaur and Neemuch tehsils; therefore, a writ petition under Article 226 was the only adequate remedy.
- The nomination papers of the petitioner (and many others) were illegally and mala fide rejected by the returning officers on political grounds because the petitioner belonged to the Bharatiya Jana Party; respondent no. 4 acted on instructions from respondent no. 3 to favour Congress (I).
- The remedy under section 64 of the Act was illusory because a dispute under section 64 could only be raised before the Registrar after declaration of results, forcing affected candidates to wait until after the election; additionally, the Registrar would, according to the petitioner, not act independently but in accordance with the wishes of the ruling party, making that remedy inefficacious.
- Reliance was placed on the Supreme Court decision in Bar Council of Delhi & another v. Surjeet Singh & Others [AIR 1980 SC 1612] to support the proposition that a writ petition could be entertained where the alternative remedy was inadequate.
Respondents' Arguments (as presented)
- The grievance arising from rejection of the petitioner's nomination form is the sort of electoral dispute that is to be raised under section 64 of the Act before the Registrar of Co-operative Societies; hence the petition under Article 226 is misconceived.
- The rejection of nomination forms was for valid reasons in accordance with the rules, and the allegation of political bias and massive, targeted rejections against non-Congress candidates was false, malicious and ill-founded.
- Some candidates who were declared elected unopposed as a result of others' nominations being rejected did not belong to Congress (I), which, the respondents said, undermined the petitioner's claim of systematic partisan discrimination by returning officers.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bar Council of Delhi & another v. Surjeet Singh & Others [AIR 1980 SC 1612] | Where the alternative forum (e.g., an election tribunal) is incompetent to grant the relief sought (for example, to declare a rule ultra vires), the remedy by way of election petition may be ineffectual and a writ may be maintainable. | The court distinguished this authority on the facts: in that case the election tribunal could not declare the impugned rule ultra vires, making the alternative remedy inadequate. In the present case the challenge is to alleged illegal rejection of nominations (not to the validity of any rule), and the registrar can adjudicate such disputes; therefore the Bar Council decision does not attract the present case. |
| Malam Singh v. Collector, Sehore, M.P. & Others [1971 M.P.L.J. 531] (Full Bench) | Where an election petition remedy exists, the High Court should generally refrain from exercising its writ jurisdiction under Articles 226/227 to interfere with interlocutory steps during the election process, except in very exceptional circumstances. | The court relied on this full bench decision to support the proposition that interference at intermediate stages is generally improper when a statutory election remedy exists; the court applied this principle to hold that the present petition should not be entertained at the interim stage. |
| Nanhoo Mal & Others v. Hira Mai & Others [AIR 1975 SC 2140] | The Supreme Court held that, following N.P. Ponnuswami, courts should generally not entertain applications under Article 226 in matters relating to elections; the principles against judicial interference at intermediate stages apply to elections to local bodies as well. | The court applied these observations to the present facts, treating them as authority that interference under Article 226 in election matters (including local body or similar elections) is generally inappropriate in the absence of an express statutory provision to the contrary. |
| N.P. Ponnuswami v. Returning Officer, Namakkal Constituency [1952 (3) SCR 218 : AIR 1952 SC 64] | A foundational precedent establishing the principle that courts should not ordinarily entertain writ petitions under Article 226 to interfere with the election process; post-Ponnuswami, judicial interference in election matters at intermediate stages is very limited. | The court relied on the principle from this case (as cited in Nanhoo Mal) to support the view that the High Court should not intervene by writ at intermediate stages in election matters where alternative statutory remedies exist. |
Court's Reasoning and Analysis
The court proceeded in a structured manner, anchoring its analysis in the relevant statutory scheme and precedent:
- Statutory framework: The court set out Rule 41(9) (procedure for scrutiny of nomination papers) which authorizes the returning officer to reject nomination papers not in accordance with rules or where the candidate, proposer or seconder is disqualified, and requires the returning officer to record reasons and publish a signed list of valid nominations. The court also set out Section 64(1) and clause (v) of sub-section (2) of Section 64 of the Act which requires election disputes to be referred to the Registrar and contains a proviso that the Registrar shall not entertain such disputes between announcement of the election programme and declaration of result.
- Availability of statutory remedy: The court accepted that the petitioner could raise a dispute before the Registrar under Section 64, but noted the petitioner's contention that such remedy is available only after declaration of the result (so that the petitioner would have to wait).
- Precedential limits on writ intervention: The court relied on its full bench decision in Malam Singh to reiterate the general rule that where an election petition or statutory remedy exists, the High Court should not normally exercise writ jurisdiction under Articles 226/227 to interfere with interlocutory steps during the election process, except in very exceptional circumstances.
- Distinguishing Bar Council (Surjeet Singh): The court analyzed the Bar Council decision relied upon by the petitioner and found it distinguishable. In the Bar Council case, the election forum could not declare a rule ultra vires, rendering the alternative remedy inadequate; by contrast, in the present case, the challenge is to alleged illegal rejection of nominations (not to the validity of any rule) and that question can be gone into by the Registrar in a properly raised dispute.
- Reliance on Supreme Court authority: The court invoked Nanhoo Mal (which relied on N.P. Ponnuswami) to support the proposition that courts should not entertain writ petitions in election matters and that the principles against judicial interference at intermediate stages apply equally to local bodies unless an express statutory provision indicates otherwise.
- On the allegation of bias against the Registrar: The petitioner argued that the Registrar (a government official) would not act fairly. The court rejected any presumption of bias, stating there was no basis for the assumption that the Registrar would abdicate functions or act according to political wishes; it is presumed that a statutory tribunal will act fairly and in accordance with law.
- Conclusion from analysis: Applying the statutory provisions and precedents, and finding no exceptional circumstances justifying interlocutory writ relief, the court concluded that the petition was misconceived and should be dismissed.
Holding and Implications
Holding: The petition under Article 226 was held to be misconceived and was DISMISSED.
Direct consequences (as ordered by the court):
- The petition was dismissed.
- No order as to costs was made.
- The interim order passed on 2nd November, 1981 was vacated.
- A certified copy of the order was to be supplied to the learned counsel on payment of necessary charges.
Implications beyond the parties: The opinion applied established precedent (including N.P. Ponnuswami, Nanhoo Mal and the court's own full bench in Malam Singh) to reaffirm the general rule against judicial interference under Article 226 at intermediate stages of elections where a statutory election remedy exists. The opinion did not purport to lay down any novel legal principle; its effect is to direct the petitioner to the statutory remedy under Section 64 of the Act and to decline writ intervention in the absence of exceptional circumstances.
Sohani, J.:-
(1) This is a petition under article 226 of the constitution of india. The petitioner is a member of gramin sewa sahakari sanstha maryadit, panpur', tehsil and district mandsaur, a co - operative society registered under the co - operative societies act, 1960, (hereinafter referred to as 'the act'). The society is holding an election to elect members of the society and its delegates for representing the society in other co - operative societies. The petitioner filed nomination forms for being elected as the delegate of the society in the district central co - operative bank limited, district mandsaur; but on the date fixed for scrutiny of nomination papers, the nomination forms of the petitioner were rejected by respondent no. 4, the returning officer. It is contended on behalf of the petitioner that the nomination forms filed by the petitioner have been illegally rejected by the returning officer on political considerations as the petitioner belongs to bhartiya jama party and that respondent no. 4 is acting on instructions of respondent no. 3, the assistant registrar of co - operative societies, to reject the nomination forms of candidates not belonging to congress (i) party. It is contended that in other elections, which are being held by other societies in mandsaur and neemuch tehsils of district mandsaur, in 44 societies out of 52 societies, the nomination forms of candidates not belonging to the ruling party have been rejected. The petitioner contends that the rejection of his nomination paper and of other nomination papers by returning officers of all those societies is mala fide and illegal and he has filed this petition under article 226 of the constitution for staying the elections of all the primary co - operative societies in mandsaur and neemuch tehsils and for setting aside not only the rejection of his nomination forms but the rejection of all other nomination forms in all the aforesaid co - operative societies.
(2) In reply to the notice to show cause why the petition be not admitted, it is contended on behalf of the respondents that for the grievance of the petitioner arising out of rejection of his nomination form for election as a delegate of the society, the remedy of raising an election dispute under section 64 of the act is available to the petitioner and the remedy sought by the petitioner under article 226 of the constitution is misconceived. It is further contended that the rejection of the nomination forms is for valid reascns, which are in accordance with the rules prescribed in that behalf and that the allegation of the petitioner that a 1 the nomination forms filed by candidates not belonging to congress (i) have been rejected in the mandsaur district for oblique motives, is ill founded, false and malicious. It is further contended that some of the candidates, who have been elected as unopposed on account of rejection of nomination forms of other candidates, do not belong to the congress (i) party and the allegation of the petitioner that the action of the returning officer is mala fide and malicious, is totally unfounded.
(3) Shri kokje, learned counsel for the petitioner, contended that the petitioner was challenging not only the election to be held by his society, but also the elections to be held by all other societies in mandsaur and neemuch tehsils and hence a petition under article 226 of the constitution was the only remedy available to the petitioner. Reliance was placed on the decision of the supreme court in bar council of delhi and another v. Surjeet singh and. Others [air 1980 s. C. 1612]. It was further contended that the remedy under section 64 of the act was illusory as a dispute under section 64 of the act could be raised before the registrar only after the declaration of the results of the elections and that the registrar of co - operative societies, who has to decide disputes under section 64 of the act, was bound to act in accordance with the wishes of the ruling party. It was, therefore, urged that the remedy under section 64 of the act was not efficacious.
(4) Before we proceed to decide the question as to whether this is a fit case for entertaining a petition under article 226 of the constitution, it would be useful to refer to the relevant provisions of the act and the rules framed under the act. Rule 41 prescribes the procedure for election of the members of the committee of a co - operative society and its delegates for representing that society in other society. Sub - rule (9) relating to scrutiny of nomination papers is as follows :
"41. Procedure for election of members of the committee and a elegies for representing the society in other society : ***** (9) nomination papers duly received shall be scrutinized by the returning officer on the date fixed for the scrutiny of nomination under clause (c) of sub - rule (2). It shall be open to the candidates to be present at the scrutiny. The returning officer shall reject a nomination paper which is not in accordance with the preceding sub - rules or if the candidate is disqualified to be chosen to the committee or the proposer or seconder is disqualified to vote under the act, these rules or the bye - laws of the society. In case of rejection, the returning officer shall record the reasons therefor. The returning officer shall prepare a list of valid nominations and shall sign it in token of correctness. Such list shall be published on the notice - board of the society."
By virtue of section 64 (1) of the act, a dispute relating to elections is required to be referred to the registrar of co - operative societies under the act. Clause (v) of sub - section (2) of section 64 reads as under !
"64. Disputes : **** (2) for the purposes of sub - section (1) , a dispute shall include **** (v) any dispute arising in connection with the election of any officer of the society or representative of the society or of composite society : provided that the registrar shall not entertain any dispute under this clause during the period commencing from the announcement of the election programme till the declaration of result".
In view of the aforesaid provisions of section 64 of the act, learned counsel for the petitioner conceded that the dispute arising out of rejection of the nomination paper filed by the petitioner could be referred to the registrar. It was, however, contended that that remedy was available to the petitioner only after the declaration of the result of the election. It was, therefore, contended that the petitioner would have to wait till the election was held and the result declared.
(5) The question as to whether it is proper that the high court should exercise its jurisdiction under article 226 of the constitution in election batters at intermediate stages or should it decline to exercise that power and leave the parties to their remedy of an election petition to be presented after the election is over, came up for consideration before a full bench of this court in malam singh v. Collector, sehore, m. P. And others, [1971 m. P. L. J. 531]. The full bench held that where the remedy of an election petition was available, it would not be proper for the high court to exercise its powers under articles 226 and 227 of the constitution for interfering with an inter locutory order passed during the process of election, save in very exceptional circumstances.
(6) It was contended that the exceptional circumstances in the instant case was that the petitioner was challenging the entire election process of all the primary co - dperative societies in mandsaur and neemuch tehsils and hence this was a fit case for interference under article 226 of the constitution. Reliance was placed on the decision of'the supreme court in air 1960 sc 1612 (supra). The decision in air 1980 sc 1612 (supra) is distinguishable on facts. In tbat'case, the elections were' assailed on the ground that the proviso to rule 3 (j) of bar council of delni election rules, 196and, was ultra vires the state bar council. The supreme - court held that the remedy of filing a petition before, the. Eleaion tribunal in that case was no remedy at all as the election tribunal was incompetent to declare any provision of the election rules ultra vires and invalid. The supreme court, however, did not approve the views -. Expressed by some of the high courts that merely because the whole election had been challenged by a writ petition, the petition would be maintainable inspire of there being any alternative remedy. The supreme court held that if the alternative remedy fully covered the challenge to the election, then that remedy and that remedy alone must oe resorted to even though it involved the challenge of the election of all the successful candidates. In the instant case, the challenge to the elections is based on the ground of illegal rejection of the nomination papers filed by the petitioner and other persons. This - question can begone into by the registrar in a dispute properly raised before him by the affected members. The challenge to the election in this case is not based 0n - invalidity of any relevant rule or other provision of law governing the election. The decision in air 1980 sc 1612 (supra) is, therefore, not attracted in this case.
(7) As regards the contention that for raising a dispute before the registrar, the petitioner would have to wait till the declaration of the result, we have already referred to the decision of the full bench of this court in 1971 m. P. L. J. 531 (supra) : we may also usefully refer to the decisioh of the supreme court in nanhoo mal and others v. Hira mai and others [air 1975 sc 2140) , in - that case petition under article226 of the constitution, challenging the validity of the procedure adopted by the district magistrate for holding an election to the office of the president of the municipal board, was filed. That - petition was allowed by the high 'court and the entire election proceedings were set aside. In appeal against the decision of the high court, the supreme court observed as follows : -
"we are of the opinion that the whole approach of the learned judges of the high. Court to this problem was mistaken. After the decision of this court in n. P. Ponhuswami v. Returning officer namakkal constituency [1952 (3) scr 218 : air 1952 sc 64] there is hardly any room for courts to entertain applications under article 226 of the constitution in matters relating to ejections."
The supreme court further held that in the absence of any express provision in any act to the contrary, the principles in air 1952 sc 64 (supra) were equally applicable to elections to local bodies. The supreme court then observed as follows :
"all the considerations applied in coming to the conclusion that elections to the legislatures should not be delayed or protracted by the interference of courts at any intermediate stage before the results of the election are over, apply with equal force to elections to local bodies:"
The aforesaid decision of the supreme court is applicable hi the instant case also, as there is ao provision in the act indicating that interference at intermediate stages is permissible. On the contrary, the proviso to clause (v) of sub - section (2) at section 64 of the act: forbids such interference by the registrar and indicates thai there should be no interference in the process of election. After its commencement. ,
(8) It was vehemently contended on behalf of the petitioner that the registrar, being an official of the government, would not act fairly. There is no basis whatsoever for such an assumption. When the registrar has to act as a 'tribunal' under an act, it is presumed that he would act fairly and in accordance with law. We cannot presume that he would abdicate his functions and act according to the wishes of the ruling party, as contended by the learned counsel for the petitioner.
(9) For all these reasons, this petition must be held to - be misconceived and it is accordingly dismissed. No order as to costs. The interim order passed on 2nd november, 1981, is vecated.
(10) A certified copy of this order be given to the learned counsel tcday, on payment of necessary charges. Petition dismissed.
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