In this batch of writ petitions preferred under Articles 226 and 227 of the Constitution of India the challenge is to the process of election to the Committee of Management at initial stage and in some cases after first round of election of different Co-operative Societies on various grounds, namely, illegal rejection of nomination papers of some individuals or invalid appointment of the Returning Officer or mass rejection of nomination forms on untenable grounds or mass rejection of nomination papers exhibiting palpable illegality to confer favour on certain contestants or non-supply of nomination forms to the aspiring candidates thereby debarring them from participating in the election or further non-availability of Returning Officer at the notified places and such other ancillary factors. Thus, in essence, the prayer has been made for quashment of whole election process as the entire action of the Returning Officers luminously manifests complete arbitrariness and abuse exercise of powers.
2. At the very outset I would like to make it clear that it is not necessary to state the facts of each case in detail. However, I will refer to the nature of challenge in each case to show what compelled the petitioners to visit this Court invoking its extraordinary jurisdiction.
3. In W. P. No. 1174/2001 the nomination papers of the petitioners have been rejected on the ground that they are disqualified as per section 50-A (1-A) of M. P. Co-operative Societies Act, 1960 (hereinafter referred to as 'the Act') which stipulates that no person shall be qualified to be a candidate for election as a member of the Committee, representative or a delegate if he has more than two living children one of whom is born on or after 26-1-2001. It is putforth in the petition that nomination form is issued under sub-rule (1) of Rule 41 of M. P. Cooperative Societies Rules, 1962 (hereinafter referred to as the 'Rules') but the said form did not provide any column to be filled up in that regard. The Additional Registrar vide Annexure-P-5 has directed that if a declaration was not in consonance with the provisions incorporated under section SO-A(1-A), the same may be looked into at the time of scrutiny and a declaration can be sought at that juncture and nomination form should not be rejected on that score but the said direction was not paid heed to by the Returning Officer.
In this case a return has been filed by the respondents No. 1, 2, 5, 6, 7 and 8, the State of Madhya Pradesh and its functionaries, contending, inter alia, that the scrutiny had taken place before the instructions were given. It is further pleaded that as process of election has commenced the petitioners have their effective and efficacious statutory remedy under the provisions of section 64(V) of the Act.
A return has also been filed by the respondent No. 3 stating therein that the nomination forms of petitioners were rejected on the ground of disqualification as per rule 44 of the Rules. Maintainability of the writ petition has also been highlighted. Though various aspects have been urged in the counter affidavit, they need not be stated in detail.
4. In W. P. No. 1601/2001 the allegation is that the voters' list prepared by the competent authority was apparently defective. The further allegation is that the Returning Officer was required to attend the Office of the Society for scrutiny of the nomination forms on 16-3-2001 at noon but he reached office at 2 p.m. and no scrutiny was held in the presence of the candidates. It has been further putforth that the post of the President of the Society in question is reserved for Scheduled Tribes but the respondent No. 6 has been elected unopposed from the Scheduled Tribe category as no scrutiny was held at the time and place mentioned in the election programme.
5. In W. P. No. 1490/2001 the allegation is that there was change of Returning Officer who accepted the nomination papers of number of persons after treating the nomination forms to be invalid. It is pleaded that in absence of provision of review the order of acceptance is totally untenable. Various Rules have been referred to in the writ petitions in support of the stand. It is relevant to state here that a singular person has filed the writ petition.
6. In W. P. No. 1831/2001 the main ground of attack is that the appointment of Returning Officer is contrary to the provisions of the Act and the Rules framed thereunder and further there has been mass rejection of nomination papers. There is similar challenge in Writ Petitions Nos. 1507/2001, 1455/2001, 1412/2001, 1230/2001, and 1383/2001.
7. In Writ Petitions Nos. 1795/2001, 1813/2001, 1807/2001 and 1612/2001 the attack relates to the mass rejection of nomination forms on various grounds.
8. In W. P. No. 1597/2001 the grievance is with regard to the scrutiny of nomination forms and preparation of voters' list.
9. In W. P. No. 1505/2001 it has been putforth that the action of the returning officer was totally undemocratic inasmuch as he was not available on the date and time fixed for scrutiny and the petitioner is not aware whether his nomination forms was accepted or rejected.
10. In W. P. No. 1673/2001 the prayer is for quashment of the order by which the nomination papers of the petitioners have been rejected.
11. In W. P. No. 1647/2001 challenge is to the election of respondents Nos. 4 to 7 to the office of the Board of Directors.
12. In W. P. No. 1500/2001 the petitioners therein have called in question the propriety of the action of the respondent No. 3 in rejecting the nomination papers of the petitioners for the post of Director.
13. In W. P. No. 1600/2001 challenge is to the interpolation made in the voters' list by the Returning Officer by which the election has been materially affected.
14. In W. P. No. 1768/2001 the grievance of. the petitioner relates to absence of returning officer who was not present on the place of scrutiny and received nomination papers of other persons at his residence by which the process of election has been vitiated.
15. In W. P. No. 1664/2001 the petitioners have called in question the defensibility of the action of the Returning Officer whereby certain candidates have been illegally elected.
16. In W. P. No. 1506/2001 prayer is to quash the election programme and to declare the process of election held in pursuance of the Election Programme dated 5-3-2001 as illegal and invalid.
17. In W. P. No. 1413/2001 the grievance of the petitioners relates to the non supply of nomination forms to them.
18. I have heard learned counsel for the petitioners and Mr. P. D. Gupta, learned Deputy Advocate General. In certain cases where notices had been issued and pursuant to which preliminary objections or returns have been filed I have also heard the learned counsel appearing for the private respondents.
19. It is submitted by the learned counsel for the petitioners that in a democratic set up holding of election in proper and fair manner is very essential and if the same is not done the sacrosanctity of election is lost. It is further canvassed by them that the factual canvass as has been portrayed clearly exposes that an adroit and ingenious attempt has been made to sabotage the sanguinity of election in regard to the Co-operative Societies at various levels and such an action should not be countenanced by the Court of law, and therefore, there should be interference for lanceting such quixotic action of the authorities. Learned counsel for the petitioners have urged with vehemence that illegal appointment of the Returning Officer, absence of Returning Officer at the places of scrutiny, illegal preparation of the voter's list, non availability of nomination forms, non granting of opportunity to rectify the mistakes at the time of scrutiny, non adherence to the instructions given by the Additional Registrar of Cooperative Societies, acceptance of nomination forms of certain persons in violation of statutory Rules and bye-laws, mass rejection of nomination papers to favour a particular group and non-acceptance of nomination papers of certain individuals by capricious interpretation of the provisions speak eloquently about the manner and method of conducting the election which vitiate the whole process of election warranting interference of this Court in exercise of extraordinary jurisdiction in spite of alternative remedy available to the aggrieved persons under section 64 of the Act. It is further putforth that there is no bar for axing such an action of the authorities as such a step would legally be a legitimate one for keeping the backbone of democracy erect and upright at the grass root level. It is urged with vehemence that if purity of election is not maintained, the basic concept of democracy is crucified and rodomontade to save democracy would be a sisyphean labour. It is also canvassed that if fairness in election is allowed to take the backseat, there would eventually be exiguous respect for Rule of law.
20. Resisting the aforesaid submissions it is contended by Mr. P. D. Gupta, learned Dy. Advocate General, and other counsel for the private respondents that when there is an alternative and efficacious remedy available to the petitioners they should take recourse to the same and be not permitted to knock at the doors of this Court invoking its equitable jurisdiction once the process of election has commenced. Learned counsel for the respondents have studiedly proponed that the allegations made in each of the writ petitions are founded on certain factual base and the same cannot be gone into in the writ petitions and that apart if there is illegality at any level which ultimately culminates in illegal acceptance or rejection of nomination papers the same can be properly agitated before the Registrar who can efficaciously deal with the same. Their further submission is that the allegations relating to the mala fide attributed to the Returning Officer are relatable to the rejection of the nomination forms should be thrashed out by production of proper' material and adducing of oral evidence before the adjudicating authority and should not be putforth as a monumental controversy in an application under Article 226 of the Constitution of India. It is their submission that it is not the case of petitioners that their grievance cannot be effectively agitated before the statutory authority. Thus, in essence, the stand of respondents is that this Court should not interfere at this stage and should leave the aggrieved parties to raise election disputes as stipulated in law.
21. The Madhya Pradesh Co-operative Societies Act, 1960 (No. 17 of 1961) was enacted to organise and develop co-operatives as democratic instruments and people's institutions based on self help, mutual aid, and for curbing exploitation and ensuring socio-economic development of people with particular emphasis on weaker sections of society. The Act defines various types of societies and provides procedure for registration and deals with the members, their rights, liabilities and privileges. The Act also provides for votes of members, Manner of exercising votes of members, Management of societies, supersession of committee, Powers of Registrar under certain circumstances and Disputes and Arbitration. The core question that falls for determination is whether this Court at this stage should interfere in the matter of election or leave the parties to resolve their disputes before the Registrar of the Co-operative Societies. At this juncture, it is apposite to reproduce relevant part of section 64 :
"64. Disputes. - (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, liquidation of a codiety shall be referred to the Registrar by any of the parties to the dispute if the parties thereto are among the following :-
xxx xxx xxx xxx
(2) For the purpose of sub-section (1), a dispute shall include -
xxx xxx xxx xxx
(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."
22. The terms "Member" and "Officer" have been defined under section 2(r) and 2(t-i) respectively. On comprehensive reading of the aforesaid provisions there remains no scintilla of doubt that any dispute relating to election can be raised before the Registrar but the said authority is prohibited by the statute to entertain any dispute during the period commencing from the announcement of the election programme till the declaration of the results. Thus, it is luminously clear that the Registrar can assume jurisdiction to decide the election controversy after election is over.
23. As has been indicated above, it is highlighted at the Bar that in view of the enormous illegalities and incurable deficiencies the whole election process has become a mockery of democracy, and therefore, this Court should interfere.
24. To appreciate the rival submissions raised at the Bar it is apposite to refer to the decision rendered in the case of N. P. Ponnuswami vs. Returning Officer, Namakkal and others, AIR 1952 SC 64 wherein their Lordships after referring to certain observations made by Lord Chancellor in Theberge vs. Laudry, (1876) 2 A.C. 102 came to hold as under:-
"18. The points which emerges from this decision may be stated as follows. - (1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. (2) Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it."
25. In the case of Nanhoo Mai and others vs. Him Mai and others, AIR 1975 SC 2140, a three Judge Bench of Apex Court referred to the case of Ponnuswami (supra) and came to hold as under:-
"5. It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the
U. P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. These conclusions follows from the decision of this Court in Ponnuswami's case, AIR 1952 SC 64 (supra) in its application to the facts of this case. But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The provisions of Article 329 are relevant only to the extent that even the remedy under
Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above setforth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in exercise of their powers under
Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power under Article 226 in relation to elections it is not now necessary to consider."
26. In this context I may profitably refer to the decision rendered in the case of jyoti Basu vs. Debt Ghosal, (1982) 1 SCC 691 wherein it has been held as under:
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute creating it. Concepts familiar to law and equity must remain strangers to election law unless statutory embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a strait-jacket."
27. In the case of Gajanan Krishnaji Bapat and another vs. Dattaji Raghobaji Meghe and others, (1995) 5 SCC 347 the Apex Court has ruled thus :
"12. The right to elect and the right to be elected are statutory rights. These rights do not inhere in a citizen as such and in order to exercise the right certain formalities as provided by the Act and the Rules made thereunder are required to be strictly complied with. The statutory requirements of election law are to be strictly observed because the election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law. The Act is a complete code in itself for challenging an election and an election must be challenged only in the manner provided for by the Act."
Thus, in view of the aforesaid enunciation of law it is absolutely clear that a right to elect or right to be elected is purely a statutory right.
28. The heart of the matter is whether jurisdiction under Article 226 of the Constitution should be invoked at this stage to protect the said statutory right. Almost three decades back a Full Bench of this Court in the case of Malan Singh vs. Collector, Sehore and others, 1971 MPLJ 531, while dealing with the provisions of Madhya Pradesh Gram Panchayat Act (7 of 1962) and Madhya Pradesh Gram Panchayat Rules, 1962 expressed the view in paragraphs 12 and 16 of the decision in the following terms :-
"12. There is no constitutional bar to the exercise of writ jurisdiction in respect of elections to Local Bodies such as, Municipalities, Panchayats and the like. However, as it is, desirable to resolve election disputes speedily through the machinery of election petitions, the Court in the exercise of its discretion should always decline to invoke its jurisdiction in an election dispute, if the alternative remedy of an election petition is available. Say, their Lordships of the Supreme Court in Sangram Singh vs. Election Tribunal, Kotah :
".............Though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case."
16. In view of the provisions of the Madhya Pradesh Panchayats Act, 1962, which provides for an adequate remedy, namely, the remedy of an election petition to be presented after the election is over, for all grievances whether grounded on the ultimate result of the election or upon any interlocutory order passed in the process of election, we are of the view that, where that remedy is available, it would not be proper for the High Court to exercise its undoubted powers under Articles 226 and 227 of the Constitution of interfering with an interlocutory order passed during the process of election, save in very exceptional circumstances."
29. At this juncture I think it apposite to state that Parliament has inserted Article 243-O by the Constitution (73rd Amendment) Act, 1992. Article 243-O(b) reads as under :-
"243-O(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
I have referred to the aforesaid provision of the Constitution to indicate that as far as election of Gram Panchayat is concerned a bar under the Constitution has been created. Before the existence of the bar the Full Bench has taken the view that this Court can exercise the power under Article 226 of the Constitution in exceptional circumstances. It is apposite to refer to state here that the Full Bench in the case of Malan Singh (supra) did not interfere with regard to the rejection of nomination paper and opined that action can be questioned by an election petition when election is over. At present this Court is not concerned with the election of any Panchayat, and hence, I need not dilate on the same.
30. In this context I think it appropriate to refer to another three Judge Bench decision of the Apex Court rendered in the case of K. K. Shrivastava vs. Bhupendra Kumar Jain and others, AIR 1977 SC 1703, wherein V. R. Krishna Iyer, J speaking for the Court laid down as under :-
"It is well settled law that while Art. 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms. While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore, a writ petition will lie, is a fallacious argument. It is important to notice what the High Court has overlooked is that the period of limitation prescribed by the rules is 15 days and if writ petitions are to be entertained long afterwards it will stultify the statutory provision. Again in the present case an election petition covering the same subject matter is actually pending. There is no foundation, whatever for thinking that where the challenge is to an 'entire election' then the writ jurisdiction springs into action. On the other hand the circumstances of this case convince us that exercise of the power under Article 226 may be described as mis-exercise. It is unfortunate that an election petition, which probably might have been disposed of long ago, is still pending because the writ petition was pending in the High Court and later on spedfial leave having been granted these appeals have been pending in this Court. How injurious something writ petitions are where they should not be is illustrated by this very case."
31. At this stage I may refer to a Division Bench decision of this Court rendered in the case of Radhey Shyam Sharma vs. Chairman, Sewa/Virha Sahakari Samiti, 1989 MPLJ 208, wherein after referring to the provisions engrafted under section 64 of the Act the Bench proceeded to rule as under :-
"The non obstante clause which crowns the provision, makes the legislative intent clear beyond dispute. We have no doubt that for the matter enumerated in section 64 of the Legislature provided special forum and the Legislature intended that those matter have to be dealt with in accordance with the provisions prescribed by it. The object of the proviso, in our, opinion, is not at all ambiguous and no amount of reliance thereon would avail the petitioners. It is not the purport of the proviso that any "dispute" in connection with any "election" to the cooperative society even if proposed beyond the time frame envisaged under the proviso; cannot be entertained and decided by the Registrar. What the Legislature intended by enacting the proviso is to ensure that the election process is completed unhindered and no candidate is allowed to stall or stagger the process by filing "disputes". When results are declared, if any candidate has any grievance with respect to the conduct of the election, he shall have the right to file an election petition for the redressal of that grievance by Registrar in accordance with the provisions of section 64 of the Act and other provisions of the Act and Rules, Recently, in the case of Prem Narain Tiwari (M. P. No. 1230 of 1988) decided on 4-11-1988, this Court has expressed similar view while interpreting section on 64(2)(v) and its proviso. It was observed that Legislature deliberately meant election disputes to be raised, heard and decided after the democratic process was over and that to judicially defeat that object would be sacrilegious."
32. At this juncture I feel obliged to refer to paragraph 6 of the aforesaid decision as Mr. R. P. Jain, learned counsel for some of the petitioners, placed heavy reliance on said paragraph. It reads as under:-
"6. We do not think if we would be justified in entertaining-any writ petition and deciding any "dispute" during the intervening period, as respects which Registrar's jurisdiction is barred by Legislature, on the ground that, the petitioners have no alternative and efficacious remedy. We are of the view that we cannot interfere in such matters unless and until it is shown to is that the election process is so vitiated that it cannot be said to be an "election" held in accordance with the law prescribed therefor and it will not be a case of our deciding a "dispute" in any particular case but of upholding and maintaining the democratic structure of the institution in accordance with the Directive Principles of the Constitution by ensuring purity of the election process. It is only when we are satisfied that the Election Officer has done any act which is not contemplated under the Act and the Rules and he has exercised powers for which the Act does not authorise him or he acts mala fide to defeat the provisions of the Act and he thereby acts without jurisdiction by exercising powers not envisaged under the Act and the Rules, then, it may be possible for us to exercise our extraordinary jurisdiction under Article 226 of the Constitution, notwithstanding the remedy provided under section 64 of the Act. Under ordinary circumstances that statutory remedy has to be availed when any 'dispute' arises and a grievance is made in any particular case by one or more individual candidates that their nomination papers were illegally rejected. Reasons for rejection of nomination papers in each case can be challenged by raising a 'dispute' in accordance with section 64 which the Registrar has to decide; such a 'dispute' is not decided by this Court under Article 226 of the Constitution."
I will be adverting to the aforesaid aspect at a later stage.
33. Mr. R. P. Jain, one of the learned counsel for the petitioners, has also drawn the attention of this Court to a Division Bench decision of this Court rendered in the case of Thaneshwar Shyam Bihari Mishra vs. Jila Sahakari Kendriya Bank Maryadit Mandla and others, 1986 MPLJ 329, wherein this Court interfered in the election being of the view that the Returning Officer was not appointed as per the prevalent rules. In that case the Registrar appointed District Collector or an Officer nominated by him who was not to be below the rank of Deputy Collector to be the Returning Officer for holding election to the District Co-operative Bank. The Collector, Mandla had nominated another officer as the Returning Officer. It was putforth before this Court that the appointment of Collector might be justified but further authorising the Collector to nominate another officer was violative of mandatory provisions as envisaged under Rule 41(26) of the Rules. This Court came to the conclusion that as there has been breach of the Rules it would invalidate the entire exercise taken up by him. Heavy reliance has been placed on this decision by the learned counsel for the petitioners who have challenged the appointment of Returning Officer. The contention, in essence, is that such an officer could not have accepted or rejected the nomination forms or, in fact, could not have taken part in the election process. The learned counsel for the parties referred to various provisions to point out the illegality in the appointment of Returning Officer. The learned Deputy Advocate General relied on schedule to the Rules and certain circulars.
34. The heart of the matter is whether this Court should adjudicate this factual controversy? In the case of Thaneshwar Shyam Bihari Mishra (supra) it was a patent illegality on the face of it and the Division Bench though it appropriate to interfere as the writ petitions were already admitted. The distinctive features of the present case will be adverted to by me at a later stage to distinguish the aforesaid decision.
35. At this juncture I may profitably "refer to another decision rendered in the case of Anant Singh and another vs. The Registrar, Co-operative Societies, Bhopal and others, AIR 1985 MP 65 wherein this Court held that the dispute regarding election of Directors and President of Society wherein disputed question of fact as to whether certain parties were defaulters or certain persons had completed two terms as President being involved, dispute should be referred to the Registrar of Co-operative Societies.
36. In this regard it is worthwhile to refer to the decision rendered in the case of S.T. Muthusami vs. K. Natarajan and others, AIR 1988 SC 516, wherein their Lordships held as under :-
"It is not appropriate for the High Court to interfere with an election process at an intermediate stage after the commencement of the election process and before the declaration of the result of the election held for the purpose of filing a vacancy in the office of the Chairman of a Panchayat Union Panchayats Act, 1958 on the ground that there was an error in the matter of allotment of symbols to the candidates contesting at such election. The parties who are aggrieved by the the result of the election can question the validity of election by an election petition which is an effective alternative remedy."
37. In this context I may usefully refer to the decision rendered in the case of Bar Council of Delhi and another vs. Surjeet Singh and others, AIR 1980 SC 1612, wherein the Apex Court came to hold that the election may be interfered with under Article 226 of the Constitution when the electoral roll was prepared ori the basis of a rule which was ultra vires and invalid. I may profitably quote paragraph 9:-
"9. We, therefore, hold that the impugned proviso to R. 3(j) to the Delhi Bar Council Election Rules is ultra vires and invalid and the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2,000 advocates from the said roll was not valid in law. We are further of the opinion that the whole election was invalid on that account and it could be challenged as such in a writ petition. It was not a case of challenging the preparation of the electoral role on the factual basis of wrong exclusion of a few names. For the said purpose R. 4 occurring in Chapter I of the Bar Council of India Rules could come into play. But here because of the invalidity of the Rules itself, the preparation of the electoral roll was completely vitiated -a matter which cannot be put within the narrow limit of the said rule."
38. In the case of Umesh Shivappa Ambi and others vs. Angadi Shekara Basappaand others, JT 1988 (5) SC 347 the Apex Court in paragraph 4 held as under:-
"4. It is now well settled that once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and this (sic High) Court will not ordinarily interfere with the elections under
Article 226 of the Constitution. (See in this connection para 3 in K. K. Shrivastava vs. Bhupendra Kumar Jain, AIR 1977 SC 1703. The Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes. In the present case, under
section 70(2)(C) of the Karnataka Co-operative Societies Act, 1959 any dispute arising in connection with the election of a President, Vice-President, Chairman, Vice-Chairman, Secretary, Treasurer or member of Committee of the Society has to be referred to the Registrar by raising a dispute before him. The Registrar is required to decide this in accordance with law."
The Apex Court while so holding in the aforesaid case in paragraph 5 opined that it was not a fit case for intervention under
Article 226 of the Constitution.
39. Mr. R. P. Jain, learned counsel for some of the petitioners, has placed reliance on the decision rendered in the case of United India Insurance Co. Ltd. vs. Rajendra Singh and others, 2000 AIR SCW 835 to highlight that if a fraud has been committed the writ Court can interfere to advance the cause of justice. In the aforesaid case the Apex Court was dealing with an award passed by the Motor Accidents Claims Tribunal which was obtained by fraud. Their Lordships observed as under:-
"For a High Court in India to say that it has no power even to consider the contentions that the awards secured are by byproducts of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become mirage and people's faith in the efficacy of the High Courts would corrode. We would have appreciated if the Tribunal or at least the High Court had considered the plea and found them unsustainable on merits, if they are meritless. But when the Courts pre-empted the Insurance Company by slamming the doors against them, this Court has to step in and salvage the situation."
40. The seminal question that falls for consideration is whether this Court should interfere in this batch of writ petitions? As I have stated earlier I will be adverting to ratio of some decisions at later stage, I proceed to deal with the same. In the case of Thaneshwar Shyam Bihari Mishra (supra) this Court interfered because there was violation of mandatory rules. In the case of Radhye Shyam Sharma (supra) this Court opined that if an authority acted without jurisdiction this Court can interfere under Article 226 of the Constitution. But in almost all the cases there has been refusal to interfere on the ground that there is an alternative and efficacious remedy. In the case of S. T. Muthusami (supra) the Apex Court held particular rule to be ultra vires and interfered.
41. Mr. R. P. Jain, learned counsel, has also commended me to another decision rendered in the case of Ram Kinkar Pandey vs. Registrar and another (Misc. Petition No. (3745/88) wherein a Division Bench took note of the fact that there was mass rejection of the nomination papers on flimsy grounds inasmuch as the Returning Officer had validated only nominations equal to the number of candidates to be elected and rejected the rest. In that backdrop their Lordships quashed the election programme and directed the Registrar to hold fresh elections. Submission of learned counsel for the petitioners is that in number of cases the Returning Officer has so done, and therefore, this Court should interfere and direct for fresh election.
42. At this juncture I may refer to a decision of Division Bench of High Court of Orissa tendered in the case of Maheshwar Tripathy vs. State of Orissa and others, 1992 (II) OLR 90 wherein their Lordships came to hold that election of Member or Sarpanch or Naib Sarpanch in Gram Panchayat is to be called in question in the forums provided under the provisions of the Act but cannot be challenged in High Court under Articles 226 and 227 of the Constitution of India except in extraordinary circumstances. The Court expressed the view that no strait jacket formula can be devised to find out exceptional circumstance. The Court came to hold that improper acceptance or rejection of nomination papers normally does not come under exceptional extraordinary circumstance. It was further opined that there can be challenge by way of writ in case of vires of provision connected with the election.
43. The core question is whether this Court should entertain the writ petition in view of the language employed under section 64 of the Act. True it is, on certain occasions this Court had interfered where there had been violation of the mandatory rules or mass rejection of the nomination forms. The learned counsel for the petitioners endeavoured hard to show that some of the cases are similar to the cases wherein this Court had interfered. With regard to valid appointment of Returning Officer the cases which have been come before tins Court at present are quite different than that of Thaneshwar Shyam Bihari Mishra (supra). In that case the appointment was vitiated being hit by the principle "delegatus non potest delegate" and it was manifest on the face of it but the cases at hand require reference to various circulars and can be adjudicated by the Registrar. As far as the rejection of nomination papers in mass scale is concerned, as has been noticed earlier, in some cases singular petitioner his approached this Court. Quite apart from the above, in all circumstances it cannot be said that mass scale rejection of nomination papers would entitle the aggrieved persons to invoke the extraordinary jurisdiction of this Court. There may be justification for such rejection. To give a hypothetical example if a declaration is to be given under the Act but the same is not given by many a candidate whether fault can be found with the Returning Officer in law in rejecting the nomination papers. Whether opportunity was given to the candidates at the time of scrutiny or not is another aspect altogether and remains in the realm of facts which can be adjudicated by the Registrar. Thus, in my considered opinion, the decisions wherein there was interference are of not much assistance to the petitioners. As has been indicated in number of cases in very exceptional case interference by this Court under Article 226 may be warranted but in the present batch of cases facts and circumstances do not so warrant and the petitioners can very well agitate their grievances before the Registrar of the Co-operative Societies.
44. Before I part with the case I may quote two quotations one of Benjamin Disraeli and another of Sir Winston Churchill as they have been produced in the case of Mohinder Singh Gill and another vs. Chief Election Commissioner, New Delhi and anothers, AIR 1978 SC 851. Thus spoke Sir Minston Churchill :-
"At the bottom of all tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point."
Benjamin Disraeli expressed as under:-
"I repeat ..... that all power is a trust-that we are accountable for its exercise - that, from the people and for the people, all springs, and all must exist."
At this stage I may profitably reproduce the view of the Apex Court by the Constitution Bench in the aforesaid case. V. R. Krishna Iyer, J. speaking for the Court in his inimitable style expressed thus :-
"If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men 'dressed in little, brief authority'. For be you ever so high, the law is above you'."
The purpose of referring to the aforesaid is that though this Court has declined to exercise the extraordinary jurisdiction under Article 226 of the Constitution of interfere in the election process as well as election already held it is expected that the statutory authority must make all efforts to do justice by analysing the facts and circumstances of each case because justice must be felt to be just by the community if democratic legality is to animate the rule of law. At this stage I may reproduce the warning given by John Adams :-
" 'Remember', said John Adams, 'remember', democracy never lasts long. It soon wastes, exhausts and murders itself. There never was democracy that did not commit suicide."
45. The Registrar shall keep himself alive to the aforesaid aspects and would do justice to undo illegality and injustice, if any, and do complete justice within the parameters fixed by the Act and the Rules. It is expected when the disputes are raised before the Registrar he shall act in quite promptitude and deal with the grievances as expeditiously as possible preferably within six months, so that the rights of a little man walking to the little booth claiming 'my vote, my life' is not affected and the person seeking to be elected that my right to contest is a step towards purity of democracy is not frustrated or diminished.
46. Resultantly, the writ petitions are disposed of without any order as to costs.
Order accordingly.