ABHAI KUMAR Vs. CO OPERATIVE TRIBUNAL LUCKNOW

JUDGEMENT

(1.) The nomination of respondent No, 2, a delegate, was concelled by the Election Officer while holding the election of the Committee of Management of the Apex Body, namely, U. P. Co-operative Federation Limited (hereinafter referred to as 'PCF'). Upon such cancellation of the nomination of respondent No. 2, the petitioner, another delegate, was elected as member of the PCF. The respondent No. 2 raised a dispute under Section 70 of the U. P. Co-operative Societies Act (hereinafter referred to as 'the Act'), challenging the said election on the ground of rejection of his nomination. The Additional Registrar (Law), being the Arbitrator, by an order dated 19th August, 1995 (Annexure 4), allowed the said petition and held that cancellation of the nomination was bad and, therefore, he set aside the election of the petitioner. Against the said award, the petitioner preferred an appeal before the Tribunal. The Tribunal, by order dated 3rd November, 1995 (Annexures '10' and '11'), dismissed the appeal. It is against this order the present writ petition has been filed. The Tribunal consisted of three members. One of them passed order in favour of the petitionar while the two others had held against him.

(2.) Mr. A. kumar first assailed the order of the Arbitrator on the ground that it was passed ex parte, Mr K. N. Tripathi appearing of the respondent drew my attention to internal page 7 of the Order dated 3rd November 1995 passed by majority and pointed out that the said dispute case was adjourned on several dates and no written statement was filed and the last application for adjourment was rejected on 24th July, 1995 for seeking adjournment of hearing fixed on 3rd August, 1995. Since the petitioner did not appear on 3rd August, 1995, therefore, the matter was heard ex parte. in view of the facts stated in the relevant paragraph at page 7 of the said order (Annexure 10), the contention of Mr. Kumar ventilating the griavance of the petitioner about the ex paste hearing cannot be accepted. However, Mr. Kumar has very fairly conceded that he would not be disputing the facts since this matter involves pure questions of law.

(3.) It is contended by Mr. Kumar that the nomination of respondent No.2 was rejected by the Election Officer on the basis of a report whereupon it was pointed out that there was no election of respondent No.2 as delegate as disclosed by him inasmuch as according to the report, no election had taken place on the said date. According to Mr. Kumar, the respondent No. 2, by reason of the bye-laws is not eligible to become a member of the Apex Body and, therefore, cannot claim himself to be a delegate. He further contends that the eligibility of respondent No. 2 could be challenged only by means of an election dispute only after the result of the election is declared. He further contends that even if it is held that the Election Officer could not have rejected the nomination, even then, the validity of nomination of respondent No.2 could be gone into by the Arbitrator. He further contends that jurisdiction relating to election dispute contemplated under Rule 444-C of the U.P. Co-operative Societies Rules, 1968 is wider than Section 100 of the Representation of Peoples Act, 1951. Inasmuch as the electoral roll is prepared under the Representation of Peoples Act, 1950, while the election process is conducted under the Representation of Peoples Act, 1951 whereby the preparation of electoral roll and the election has been divided in two separate compartments whereas the election under the present Act and the Rules are processed under the provisions of one and the same Act and the Rules. Therefore, according to him, by reason of sub-clause (iii) of clause (b) of sub-rule (1) of Rule 444-C, the question relating to the inclusion of the name of respondent No.2 as delegate in the electoral roll/college can also he looked into and decided. According to him, the majority judgement holding that the inclusion of the name of respondent No.2 in the electoral college on the basis of his election as delegate is final and cannot be gone into is perverse. He relies on the provisions of Rule 441 (3) and points out that even in the case of election of members of the Apex Body, a provisional votes list is to be displayed and objections are to be invited and disposed of and thereafter final voters list is to be displayed. According to him, the scope of inviting objections and disposal would become meaningles if no question with regard thereto could be raised. Thus he contends that the majority judgment is liable to be set aside. He alternatively argues that assuming but not admitting, event if the election is held to be invalid and fresh election is O'dered, in that even, the whole process of fresh election is to be undergone. It cannot proceed on the basis of the nomination already filed precluding all other persons if they so liked from contesting such an election. He draws my attention to the notice of election published subsequent to the writ petition and translates the relevant portion and contends that fresh election has been sought to be proceeded with from the stage of scrutiny of nomination. According to him, in such event, after lapse of a long time, there might be change in the elctoral college which ought to have been taken into account and, therefore, the whole election process should be undergone.