Sudhanshu Dhulia, J
1. Petitioners were elected to the general body of the Cooperative Society. The general body of the Cooperative Society elected its Committee of
Management. The Committee of Management had thereafter to elect the Chairman, Vice-Chairman and delegates to the higher level society, for
which the elections had to take place on 23.07.2018. Apart from the members who are part of the general body of the society who are elected to the
Committee of Management, two members are nominated by the State Government. One is a government official and other is a non-government
official. The schedule notified for the elections was as follows:-
2. Admittedly, electoral roll was prepared and put to display and the candidates also filed their nominations. While the election process was going on,
the dispute arose regarding the voting rights of the two nominated members. The Election Officer in his wisdom thought that the further election
proceedings cannot be carried on and consequently vide impugned order dated 23.07.2018, he postponed the further election proceedings till the next
date.
3. The cooperative societies find a place in the Constitution of India in Part IXB by way of 97th Constitutional amendment. The election of members
of the board and the term of the members of the cooperative societies are given in Article 243ZK of the Constitution of India, which reads as under:-
“243ZK. Election of members of board.- (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a
board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office
immediately on the expiry of the term of the office of members of the outgoing board.
(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall
vest in such an authority or body, as may be provided by the Legislature of a State, by law:
Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such election.â€
4. Clause (2) of Article 243ZK of the Constitution of India gives the responsibility of superintendence, direction and control of the preparation of
electoral rolls and the conduct of all elections to the cooperative societies to an authority or a body to be constituted by the Legislature of the State. In
terms of the aforesaid provision, the authority which has been constituted in the State of Uttarakhand is known as “Cooperative Election Authority
of Uttarakhand†which is at Dehradun.
5. Admittedly, the aforesaid authority i.e. Cooperative Election Authority* has now the responsibility, not only to prepare the electoral rolls but for the
entire superintendence, direction and control of these elections. Consequently, the present ongoing elections to the various cooperative societies are
being done under direction, supervision and control of the said authority, which is functional in Uttarakhand, as this Court has been informed.
6. As stated above, in the present case, the general body of the society had already elected its committee of management. Now on the scheduled date
i.e. on 23.07.2018, the elected committee of management had to further elect its office bearers in the form of Chairman, Vice-Chairman and its
delegates to the higher cooperative societies.
7. In Tehri Garhwal, for the entire District there is one returning officer appointed by the authority and thereafter for the conduct of elections to each
cooperative societies, there are separate Election Officers. The present election with which we are presently concerned is under the supervision of an
Election Officer.
*Although in this matter, the Cooperative Election Authority is not being made a party but by the orders of this Court, it is being made a party during
the course of the day. Sri Paresh Tripathi, Advocate has taken notice for the Authority.
The report of the Election Officer states that a dispute arose while election process was on and the Election Officer in his wisdom thought that further
proceedings cannot be carried on and consequently he postponed the elections.
8. The power to postpone and cancel such elections is given to the Election Officer under the Rules framed by the State Government known as
“Uttaranchal Co-operative Societies Rules, 2004â€. The relevant Rules are 440, 441 and 449 which read as under:-
“440. If polling or any proceedings of election get disrupted due to riots or open violence at the place of polling or holding election is not possible at
any place due to any natural calamity or any other cogent reasons, the Election Officer appointed for such election, shall declare postponement of
election till next date to be notified later. The information of such postponement shall be given to the District Magistrate and the Registrar immediately
on which the Registrar shall fix the new date for the election.
441. Where the State Government is satisfied that circumstances exist which render it difficult to hold the election on the date fixed by the Registrar, it
may direct the Registrar to postpone the election and thereupon the Registrar shall postpone the election and all proceedings with reference to election
shall be commenced afresh in all respect:
Provided that if nominations have been finalised and symbols have been allotted, the process of election shall continue and poll shall be held on such
date as the Registrar may fix.
449. If for any reason the election officer of any society has been disrupted by the District Magistrate, or the Election Officer, the process of election
shall commence from the stage at which it is disrupted or from a stage prior to that or de novo as the Registrar may decide:
Provided that if nominations have been finalised and symbols have been allotted, the process of election shall continue and poll shall be held on such
date as the Registrar may fix.â€
9. Since the decision to postpone the elections has been taken in the present case by the Election Officer, what is relevant for our purposes is Rule
449. The aforesaid provision of law has also to be read with the special Rules of 2018 known as the Uttarakhand State Co-operative Societies
Election Rules, 2018 (from hereinafter referred to as the Rules of 2018).
10. Under Rules 17, 18 and 19 of the 2018 Rules, an elaborate procedure has been given as to what is to be done during elections and what is the role
of an Election Officer while postponing or canceling the election. Rules 17, 18 and 19 of the Rules of 2018 read as under:-
“17. Cancellation of polling due to violence riots or Natural calamity:- When the proceeding of election of the Society has started, the election
proceeding shall not be disrupted except due to the reasons mentioned in rule 16:
Provided that if polling or any proceeding of election gets disrupted due to riots or open violence at the place of polling or holding election is not
possible due to any natural calamity, the Election Officer appointed for such election shall declare the postponement of election till next date to be
notified later. The information of such postponement shall be given to the District Co-operative Election Officer and the Authority immediately, on
which the Authority shall fix the new date for election:
Provided further that the election procedure shall be postponed only after narrating the whole sequence of incidents in a chronological order in the
polling diary being used by the Election Officer.
18. Election procedure after cancellation:-If for any reason the election of any Society has been disrupted by the Election Officer, the process of
election shall commence from the stage at which it is disrupted or from a stage prior to that or de novo as the Authority may decide:
Provided that if after the nomination symbols have been allotted on valid nomination papers, the process of election shall continue and poll shall be held
on such date as the Authority may fix:
Provided further that if the election of any society is postponed by the Authority under rule 441 of the cooperative rules all the procedures of Election
shall be commenced de novo.
19. Counting of ballot paper:- In every election after the close of the polling counting of Ballot paper votes shall be held by the Election Officer in the
manner prescribed in rule 44 and under the guidelines of the Authority and every candidate, his election agent and his counting agent shall have the
right to be present at such counting.â€
11. We are presently by and large concerned with Rule 17 of the Rules of 2018 which clearly says that if an election process is disrupted or postponed
for any reason, it will be the duty of the Election Officer to narrate the whole sequence of incidents in a chronological order in his polling dairy being
used by the Election Officer. It is an admitted case that the Election Officer is provided a polling dairy by the authority in which he has to record the
incidents which includes disruption, if any, and shall assign reasons therein. This has to be a detail report explaining under what circumstances
disruption, if any, has taken place.
12. At this stage, it must be stated that in the elections to the next higher level, apart from the members who are part of the general body of the
society who are elected to the Committee of Management, two members are nominated by the State Government for each of these societies. One is a
government official and other is a non-government official. The difference between the two is that the voting right has been given to only the non-
government member under Section 34
(1) of the Uttaranchal Co-operative Societies Act, 2002, which reads as under:-
“34. (1) Where the State Government has-
(a)…
(b)…
(c)…
The State Government shall have the right to nominate on the Committee of Management of such society not more than two persons one of whom
shall be a government servant, (which will include a professional also if nominated by the Govt.) so, however, that the government servant shall not
vote at an election of an office-bearer of the society.â€
(Emphasis provided)
13. This is also provided under Rule 456 (3) of the Rules which have already been referred above, which reads as under:-
“456. (1)….
(2)…
(3) (i) The Chairman and other office bearers shall be elected from amongst the elected and nominated non official members of the Committee of
Management.
(ii) The elected members and nominated non official members of the Committee of Management shall elect delegates to represent the society in the
General Body of another co-operative society of which the society is a member, from amongst the qualified members of the General Body.
Provided that quorum for the election of the Chairman, Vice -Chairman and the Delegates shall be more than half the number of members having
voting rights.â€
14. On the designated day i.e. on 23.07.2018, elections had to take place. However, a dispute arose as to which of the two nominated members has
the right to vote.
Since the members were agitating on this aspect, the Election Officer came to the conclusion that further proceedings cannot be conducted and he
postponed the same to the next date.
15. Generally as a disruption in an election process i.e. disruption in election of even one Primary Agricultural Cooperative Society disrupts the entire
procedure, inasmuch as, the natural consequence of this would be that a particular society where the elections have not taken place, for any reason
whatsoever, will not be in a position to send its delegates for elections to the next higher level. In other words, it disturbs the entire chain. Therefore, it
would be in the fitness of things that if for any reason the elections are ever postponed or cancelled, then on the next day after the postponement or
cancellation, as the case might be, further election schedule must be promptly announced by the authority or the officer concerned.
16. This Court has already been informed by the learned counsel for the authority and it must be put on record that the next date of elections is
20/21.08.2018. Since such a decision for conducting the election has already been taken, therefore, nothing further needs to be done on this aspect.
Let the elections be conducted on 20/21.08.2018 as per schedule notified.
17. The only dispute is as to who among the nominated members, would be entitled to vote i.e. whether the official member has the right to vote or the
non-government official member has the right to vote. There should be no dispute, as the provisions of law referred above, clearly stipulate that only a
non-government official would have such right to vote. Therefore, it is hereby determined that in the election, out of the two nominated members, only
the non-government member would be entitled to vote.
18. A reference has also been given of the letter dated 22.07.2018 of the authority which has in fact clarified this issue that out of the two nominated
members, only the non-government official will have the right to vote.
19. In view of the above, there is no controversy in this matter as to who should have the right to vote. Let the elections be conducted on
20/21.08.2018 and the further election proceedings shall resume from the stage where the disruption had taken place.
20. Writ petition stands disposed of.
