SHRAWAN KUMAR Vs. SUB DIVISIONAL MAGISTRATE SADAR PILIBHIT

JUDGEMENT

(1.) The dispute is about the election of the Managing Committee of Co-operative Cane Development Society Ltd., Pilibhit (the Society for short) which is a notified Society within the meaning of the proviso to Section 29 (3) of the U. P. Co-operative Societies Act. The general body of the Society consists of the delegates elected by the members of the Society. The petitioner is an elected delegate of the Society. He is aggrieved by an order dated 4-6-1987 whereby the Sub-Divisional Magistrate, Sadar, Pilibhit acting as the Election Officer upheld the objection filed by one Ramesb Kumar Sharma and directed that the reservation of constituencies ordered by him earlier by his notice dated 26-5-87 be altered in so far as Jahanabad and Jiraunia are concerned. Previously in the notice dated 26-5-1987 the Election Officer had declared Jahanabad as a reserved constituency for scheduled caste and Jiraunia for the weaker section. By the impugned order, he declared Jiraunia to be the reserved constituency for scheduled caste and Jahanabad for the weaker section. The petitioner contends that the Election Officer having once notified the reservation of various constituencies in a particular way, he had no power to make alteration in the reservations.

(2.) Having heard the learned counsel for the parties we find no merit in the above contention. The power to reserve constituency vests in the Election Officer under sub-rule (3) of Rule 444-A. It provides that the Election Officer, shall subject to the provisions of sub-rule (6) of Rule 440 reserve constituencies/areas for weaker section or, as the case may be, of women and such reservation shall be made to the extent of seats reserved by rotation in Hindi alphabetical order of the names of the constituencies/areas from which members of the Committee of Management are to be elected. Sub-rule (6) of Rule 440 lays down the criteria for determiaation of constituency. These are : (i) revenue area or areas, (ii) class or classes of membership; (iii) other rotational basis in relation to area or operation of Society. It was not disputed by the learned counsel for the petitioner that clause (ii) of sub-rule (6) of Rule 440 would also bring in consideration of whether the members in a particular constituency belong to scheduled caste etc. Consequently, while reserving constituencies under Rule 444-A (3) the Election Officer shall have to have regard the class or classes of membership of constituency also. In the present case the petitioner filed his nomination for election as a member of the Committee of Management from Jiraunia constituency which was according to the notice issued by the Election Officer on 26-5-1987 then reserved for the weaker section claiming himself to be one belonging to weaker section. 4th June 1987 was fixed for consideration of the objections filed against the nominations. On 3-6-87, two objections were filed relevant for our purpose one, by the petitioner against the nomination filed by one Khoob Chand and the other by Ramesh Kumar Sharma (the newly impleaded respondent No. 3). The latter objection was filed inter alia on the ground that Jahanabad constituency was wrongly declared by the Election Officer as reserved for the scheduled caste candidates in as much as in that constituency there was only one member belonging to scheduled caste whereas Jiraunia had six members belonging to scheduled caste. The objection further states that the procedure prescribed under Rule 440 for specifying the reservation of various constituencies had not been followed by the Election Officer before the issue of the earlier notice dated 26-5-1987. In both the counter-affidavits filed on behalf of the respondents, it has been asserted that the objections were taken up on 4-6-1987 and were heard ID the presence of the petitioner. We find no reason for disbelieving the assertion made in the counter-affidavit filed on behalf of the Co-operative Case Development Union, Pilibhit as well as that filed by Ramesh Kumar Sharma supporting the version in the other counter-affidavit to the effect that the objections were beard in the presence of the petitioner.

(3.) The question is whether the Election Officer was competent to make alteration in the reservations made by him after the candidates have filed their nomination papers. Having given the matter a careful consideration, we have no hesitation in answering the question in the affirmative where, as here, a grave and patent mistake is discovered by the Election Officer prior to the final voting. The learned counsel for the petitioner did not dispute before the basic fact stated by the Election Officer in support of his order dated 4-6-1987, namely, that the number of scheduled caste members in Jiraunia was much greater than Jahanabad. It was six against one. It would, therefore, have been a grave error and unjust to the members belonging to the scheduled caste of Jiraunia constituency, if the election had been concluded treating Jahanabad constituency as one reserved for the scheduled caste candidate having admittedly only one scheduled caste member and not Jiraunia constituency as a reserved constituency which had as many as six members belonging to the scheduled caste. Such a palpable mistake having been discovered in time, i.e. before the voting actually took place, we see no illegality in the Election Officer attempting to rectify the error and undo the mischief. It was clearly a case of rectification of an obvious mistake and not a review properly so called. Such a limited power must be deemed to be implicit in the power conferred in the Election Officer under Rule 444-A(3) provided of course voting had not taken place and the results declared in which case the mistake could be corrected only by way of an election petition as contemplated under the aforesaid Act and the Rules framed thereunder. The mere filing of nomination papers by itself did not vest any indefeasible rights in the petitioner so as to disable the authorities from correcting the mistake discovered in time.