Parkash Singh v. Shiv Dev Singh, Lt.Col.

Per Bhawani Singh. Chief justice (oral):

Oral prayer of Shri B. S. Manhas learned counsel for the appellants for filing the appeal is allowed, since the appellants are aggrieved by the impugned order.

Admit

Notice. Accepted by Shri A. Kapoor, Addl. Advocate General for the official respondents and Shri B. S. Salathia for respondent-1.

Heard finally.

This appeal is directed against an order of Single Judge dated 27.01.1999.

The election programme for Sainik Co-Operative House Building Society Ltd., Jammu was announced by Registrar, Co­ operative Societies published in “Daily Excelsior” dated January 8,1999. Sequel to this schedule, number of candidates filed their nomination papers. Petitioner was one of them. Scrutiny of nomination papers was fixed on 15.01.1999 at 11 a.m. Nomination papers of petitioner was rejected by Returning Officer on the ground that his seconder Shri Sohan Singh, Plot holder, Registration No. 554 was a defaulter. Feeling aggrieved by this order, petitioner preferred writ petition in this Court. On January 27,1999, it was fixed for motion heaving and Single Judge stayed the election. It is against this order that the present appeal has been filed.

Shri B. S. Man has learned counsel appearing for the appellants submits that Single Judge ought not to have stayed the process of election, it is also contended that the impugned order has gone beyond the relief sought by the petitioner in the Civil Misc. Application in which the impugned order has been passed.

In support of his first point, learned counsel for the appellants has placed reliance on Apex Court decision reported as N. P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and others (1952 SCR, 218), Election Commission of India Vs. State of Haryana (AIR 1984 SC 1406), Karnataka High Court decision reported as Jagdish Patil Vs. The State of Karnataka (AIR 1979 Karnataka, page 4), Madhya Pradesh High Court decision reported as Sewa Sahakari Sanstha Mahagarh and others Vs. R. N. Kokil and others. (AIR 1974 M . P. page-164) and decision of this court in the case titled Balbir Singh vs. Sainik Colony Members Association and others, in LPA (W) No. 459 of 1998. On the second question, reference was made to the Civil Misc. Application.

Shri B. S. Salathia learned counsel appearing for respondent No. 1 submits that the Returning Officer rejected the nomination papers of respondent No.1 erroneously, although Shri Sohan Singh was not a defaulter. It was in the interest of justice that in case any dispute existed despite production of no default certificate/document same could be ascertained by giving an opportunity to the parties of being heard. Respondent No.1 is interested to contest the election and not in delaying it, but that should be done in accordance with law.

After giving our consideration to the facts of the case, documents before us and the submissions advanced by the learned counsel for the parties, we are of the opinion that the election should not be stayed once process for the same has been issued. Matters of dispute can be agitated by recourse to the remedies available under the Act and Rules framed there under, otherwise, the functioning of Democratic Institutions is likely to be effected and unduly delay the holding of the election such Institutions.

While dealing with the second question, Shri B. S. Manhas learned counsel appearing for the appellants suggests that he has no objection in case the respondent No. 1 is allowed to participate in the election. Shri B. S. Salathia learned counsel appearing for respondent No.1 agrees to his suggestion. We, are of the opinion that suggestion is quite reasonable and justified, therefore, the question remains from which stage election schedule already announced, should become operative and who should announce the further schedule for holding election and complete the process. Shri B. S. Manhas learned counsel for the appellants submits that this Court may do so by issuing the date of poll (item-6) followed by (item-7) of the election schedule. Shri B. S. Salathia submits that this may be done by the Single Judge who is dealing with the matter

Since, we have considered the whole matter, we are of the opinion that it is desirable in the interest of justice that election is held as early as possible. Therefore, we direct the Registrar, Jammu and Kashmir Co-Operative Societies, Jammu to proceed from (item-6) onwards of election schedule already notified in the News-paper referred to above dated January 8,1999 and complete the election to the Managing Committee of Sainik Co­ operative House Building Society Ltd. Jammu within a period of one month from today.

The result of this order would be that the petitioner Lt. Col. Shiv Dev Singh (Retd.) in Writ Petition No. 58 of 1999, Smt. Santosh Sharma petitioner in Writ Petition No. 57 of 1999 and Shri Sohan Singh petitioner in Writ Petition No. 59 of 1999 may be permitted to contest the election and all the questions relating to the election may be decided by the Authority mentioned in the Act and the Rules where the matter may be taken by any party, in case it may so choose.

14. This appeal as well as Writ Petition No. 58/1999, Writ Petition No. 57/1999 and Writ Petition No. 59/1999 shall stand disposed of in aforesaid terms and stay orders passed in all cases shall stand vacated.