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PETITIONER: RAM PYARE CHAUDHARY & ANR.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT11/02/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1982 AIR  831            1982 SCR  (3) 207  1982 SCC  (1) 671        1982 SCALE  (1)411

ACT:      U.P. Cooperative Societies Act, 1965-S. 29(2) read with r. 445(1)-Election  of members-Poll  held but declaration of result withheld  by injunction-Term  of office  fixed  under statute-How     reckoned-Power     to     remove     elected representatives-Construction of.

HEADNOTE:      The management  of  a  cooperative  society  registered under  the   U.P.  Cooperative  Societies  Act  vests  in  a committee constituted  in accordance  with the provisions of the Act  and the  Rules made thereunder. The term of elected members of  a committee,  according to s. 29(2) read with r. 445(1)  is   three   ’Cooperative   years’   including   the cooperative year  in which  they are  elected.  ’Cooperative year’ means  the year  commencing on the 1st day of July and ending on the 30th day of June next following. Fresh members are to  be elected before the expiry of the term of existing elected  members  failing  which  an  administrator  can  be appointed by  the Deputy Registrar, Cooperative Societies to manage the  affairs of  the  cooperative  society  till  the reconstitution of the committee.      In this  case the  term of  the cooperative  society in question was  drawing to a close and the poll to elect fresh members was  held on  September 11,  1978. The result of the poll  could   not  be   declared  immediately  owing  to  an injunction issued  by a  court in  a suit  filed by  a voter whose name  had not  appeared in  the  electoral  roll.  The result was,  however, declared  ultimately  on  January  28, 1980, and  appellant No.  1  was  elected  Chairman  of  the committee on  January 29,  1980. By  an order  dated July 1, 1981,  made  under  s.  29(4)  (b),  the  Deputy  Registrar, Cooperative Societies  appointed an  administrator to manage the affairs  of the  society on  the ground that the term of members of  the Committee  had expired on June 30, 1981. The appellants challenged  the validity  of the order under Art. 226.      The High  Court upheld the impugned order and dismissed the petition  on the  ground that once the poll was held and even though  the result  of the  election was not announced, the term would commence from the date of the poll.

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    The appellants  submitted that even though the poll was held on  September 11, 1978, the result having been declared for the  first time  on January  28, 1980, the term of three cooperative years  of the  elected members  would expire  on June 30, 1982.      Allowing the appeal, ^      HELD: 1.  (a)  Election  means  the  process  of  being elected and  the term  of office  is of elected members. The term of  office as  member cannot  begin to  run unless  the status of  being a  member is  acquired  on  being  declared elected. 208 The result  of the  election having been declared on January 28, 1980, the term of members commenced from the cooperative year beginning on July 1, 1979 and ending with June 30, 1980 and since  their term  was three cooperative years including the year  of election, it would expire on June 30, 1982. The order appointing the administrator was, therefore illegal.                                 [213 H, 214 H, 215 A, 216 F- G]      (b) The  provision of s. 29(4) (b) was not attracted as the process  of election  had begun  with the holding of the poll before  the expiry  of the  term and, once the poll was held as  a part  of the  programme of  election, it  had  to progress to the statutory end of declaration of result. [216 B-E]      2.  The   various  stages   of  election  were  clearly demarcated in  the Rules.  Mere holding of poll, which means recording  of   votes,  without   anything  more   would  be inconsequential.  It  is  the  counting  of  votes  and  the consequent declaration  of result  which would determine who has become eligible for office by the democratic process. No election process can be said to be complete unless the votes are recorded  and counted  and the  result of  the  election declared and publicised. [212 G-H, 213 E-G]      3. The  election  process  is  sacrosanct  and  members elected must  be permitted  to discharge  their functions as chosen representatives of the electorate for the statutorily prescribed  term   and   therefore   the   plea   that   the administrator should  not be  disturbed as  only four months would  remain   for  the   expiry  of  the  term  cannot  be countenanced.  The   drastic  power   of  removing   elected representatives before the expiry of their term must receive strict and narrow interpretation. [217 A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 478 of 1982      Appeal by  special leave  from the  Judgment and  Order dated the  3rd August,  1981 of  the Allahabad High Court in Civil Misc. Writ No. 7869 of 1981.      S.N. Singh for the Appellants.      G.N. Dikshit and Shoba Dikshit for the Respondents.      The Judgment of the Court was delivered by      DESAI, J.  The District  Co-operative Federation  (Zila Sahakari Federation),  Basti (’Federation’  for short)  is a co-operative society  registered under the U.P. Co-operative Societies Act,  1965  (’Act’  for  short).  As  provided  by section 29  of the  Act, the  management of  the  Federation vests in  a committee designated as Committee of Management. The committee consists of 10 elected members and 1 nominated member. As the term of the Committee was drawing to a close,

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programme for  election of  the new  committee of management was announced  as required  by  Part  VI  of  the  U.P.  Co- operative  Societies   Rules,  1968   (’Rules’  for  short). Pursuant to 209 this programme  poll was  held on  September 11, 1978. It is not made  clear  to  us  when  the  counting  of  the  votes commenced, though  rule 444(1) provides that counting of the votes will  take place  immediately after  the close  of the poll except  when postponed in a given set of circumstances. Sub-rule (4)  of rule  444 provides  that  Election  Officer shall announce  the  result  of  election  as  soon  as  the counting is completed indicating the number of votes secured by each candidate. It appears that one Shri Kashi Nath whose name did  not appear in the voter’s list and who, on account of the  omission, could not contest the election filed Civil Suit No.  291 of  1978 in  the Court  of  Munsif,  Basti  on September 9,  1978 and  asked for and obtained ad interim ex parte injunction restraining the defendants in the suit from conducting the  election of Board of Directors (Committee of Management), President,  Vice-President and the delegates of District Co-operative  Federation, Basti  and/or  announcing the result  of election.  Defendants Nos. 1 to 4 in the suit appeared  and   contested  the   application   for   interim injunction. The  learned Munsif  after  hearing  both  sides confirmed the injunction in the following terms:           "6-C. is allowed and the defendants No. 1 to 4 are      directed not to conduct the election and not to declare      the result,  if any,  of Board of Directors of District      Co-operative Federation,  Basti, till  disposal of  the      suit". This order  was made  on September 21, 1978. It appears that by the  time the  suit was  filed and  ex parte  ad  interim injunction obtained,  the poll  was already  held but by the injunction, the  defendants in the suit were prohibited from declaring the  result and  accordingly the  result  was  not declared. It  now appears  that the  result was  declared on January 28,1980,  and the  election of  the Chairman and the Vice-Chairman took  place on January 29, 1980. Appellant No. 1 was  elected as  Chairman. The  term of the members of the Committee of  Management as  provided by rule 445 as amended on June  30, 1981, is three co-operative years including the year of  election. The  Registrar of  Co-operative Societies pursuant to  the  amended  rule  445  issued  a  teleprinter message to  various authorities  indicating that the term of the committee  of management  has expired  and administrator should be  appointed as  provided by  sub-section (4) (b) of section 29 of the Act. Pursuant to this teleprinter message, the Deputy Registrar, Co-operative Societies, Gorakhpur made an order  on July  1, 1981,  that the term of the members of the committee of management of the Federation has expired on June 210 30, 1981,  and proceeded  to appoint  an administrator.  The appellants questioned the validity and legality of the order of the  Deputy Registrar  in Writ  Petition No. 7869 of 1981 filed in the High Court of Judicature at Allahabad.      The High  Court was  of the  opinion that  even  though under rule 445 the term of the office of the elected members of the  committee of  management of  co-operative society is three co-operative  years including the co-operative year of their election,  once the  poll is  held and even though the result of  the election  is not  announced, the  term  would commence from  the  date  of  the  poll  and  therefore  the decision of  the Deputy  Registrar that  the term expired on

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June 30,  1981,  is  correct.  The  High  Court  accordingly dismissed the  writ petition.  Hence this  appeal by special leave limited  to one  point only,  namely, the commencement and completion  of the  term of office of the members of the committee of management of the second appellant.      Section 29(1) provides that the management of every co- operative society  shall vest  in a  committee of management constituted in  accordance with  the Act,  the rules and the bye-laws. Sub-section  (2) provides  that the  term  of  the elected members of the committee of management shall be such as may  be provided  in the  rules or  the bye-laws  of  the society. Rule  445(1)  provides  that  except  as  otherwise provided in  rules 406,  433, 434  and 435  the term  of the office of the elected members of the committee of management of a  co-operative society shall be three co-operative years including  the   co-operative  year   of   their   election. Explanation appended  to this  Rule clarifies how the period of three  co-operative years is to be computed. In substance the explanation clarifies that:           "For the purpose of determination on the term of a      elected member  the co-operative  year during which the      elections  are   held  shall   count   as   full   year      irrespective of  the period left after such election in      that co-operative year". There is  a proviso to this explanation which is immaterial. The expression  ’co-operative year’  is defined  in  section 2(i) of  the Act  to mean the year commencing on the 1st day of July and ending on the 30th day of June next following.      Part VI of the Rules sets out procedure for holding the election. Election  of members of committee of management of a co-operative society has to be held in accordance with the provisions of  the Act and rules and the District Magistrate of the district in which the 211 headquarter of  the society is situated, shall take steps to organise the  election under  the superintendence, direction and control  of the  Registrar [see  rule 439 (1)]. Sub-rule (1) of rule 439 provides that the election in a co-operative society or  societies or  a class or classes of co-operative societies shall  be held  on such  due date  or dates as the Registrar may  be order  fix  and  the  District  Magistrate concerned shall  on such  dates being  so fixed  appoint  by order one  or more  Election Officers  or different Election Officers for  different class  or classes  of society or for different areas for this purpose. Sub-rule (3) provides that the Election Officer shall perform all such functions as are enjoined upon him by the Rules or as may be incidental to or necessary for the discharge of his duties. Rule 444 provides that the counting of votes will take place immediately after the closing  of the  poll and  in case it is not possible to count votes  immediately after  the close  of the  poll, the ballot boxes  shall be  sealed by  the Election  Officer and kept in the safe custody in the nearest police station. Sub- rule (4)  of rule  444 provides  that the  Election  Officer shall announce  the  result  of  election  as  soon  as  the counting is completed indicating the number of votes secured by each  candidate. Sub-rule  (6) provides that the Election Officer shall  display a  list of  elected candidates on the notice board  of the  society and also at such public places as he may deem fit. Sub-rule (7) provides that a copy of the list prepared  under sub-rule  (6)  shall  be  sent  to  the District  Assistant   Registrar  concerned  or  the  officer authorised under  sub-rule (2)  of  rule  440  and  also  to Secretary/Managing Director of the Society concerned.      Having noticed the conspectus of the provisions bearing

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on the  topic ’election  to  a  co-operative  society’,  the principal point  canvassed in this petition may be examined. According to  the appellant even though the poll was held on September 11,  1978, the result, as required by rule 444(4), was declared  for the  first time  on January  28, 1980, the term of  three co-operative  years of the elected members of the co-operative society will expire on June 30, 1982.      On the other hand, according to the respondents, as the poll was  held on  September 11, 1978, the term of three co- operative years  including  the  co-operative  year  of  the election has  expired on  30th June,  1981 and therefore the order appointing the administrator was legal and valid.      The question that emerges on rival contentions is as to from what  date the  term of  the  elected  members  of  the committee of 212 management shall  commence. The  period of  three  years  as amplified by  the  Explanation  to  rule  445(1)  is  to  be reckoned not  from the  date of  the election  but the  term shall be three co-operative years including the co-operative year of  the election. The co-operative year, as pointed out earlier, commences on July 1 and ends on June 30 of the next succeeding year.  Therefore, if  the term commences from the date of  poll which  happened to  be September 11, 1978, the whole of  co-operative year  commencing from  July  1,  1978 would have to be taken into reckoning for computing the term of three  years and,  therefore, three years would expire on June 30,  1981.  The  question,  however,  is  whether  mere holding of  the poll  constitutes election of the members of committee of  management or  the result being declared after the counting  has been  completed and notified in the manner prescribed by  sub-rules (6)  and  (7)  of  rule  444  would provide the  starting point  for a terminus quo for the term of office  to commence.  If the  term was to commence on the declaration  of   the  result  of  election,  in  this  case admittedly the result was declared on January 28, 1980, that date would  fall within  the co-operative  year from July 1, 1979 to  June 30,  1980, and  the term of three co-operative years would expire on June 30, 1982.      At one  stage,  Mr.  Dixit,  learned  counsel  for  the respondents stated  that there  is no stage like declaration of result  when the election of the members of the committee of management  of a  co-operative society  is held. Sub-rule (4) of  rule 4444  clearly indicates  to the contrary and it casts an  obligation on the Election Officer to announce the result of  election as  soon as the counting is complete and he is  also under  a duty  to indicate  the number  of votes secured by  each candidate.  His duty does not end there. He has to  display a  list of  elected candidates on the notice board of  the society  and also  at such public places as he may deem  fit. He is also under an obligation to send a copy of the  list prepared  under sub-rule  (6) to  the  District Assistant  Registrar   concerned.  it  is,  therefore,  not- possible to accept the submission that there is nothing like a stage  of announcement  of the  result  of  election  when election is  held for  electing members  of the committee of management of  a co-operative  society. In fact, the various stages of  election are  clearly demarcated in the rules. If the poll  has become  necessary and  is held the unavoidable and inescapable  stage of  counting of  votes and  the  next stage of announcement of result and subsequently publicising the result  are part  and parcel  and necessary  adjuncts of conducting poll.  If the  rules provide  for all  the  three stages it  is difficult  to accept  the submission  that  by merely

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213 holding of  the poll, the process of election can be said to have  been  completed  and  the  term  of  members  who  had contested would  commence  from  the  time  of  holding  the election. That  is what  the High Court holds. Says the High Court:           "that the  elections since  were held  on 11.9.78,      mere act  of not declaring the result on account of any      order issued by the Court or a stay order granted by it      which was subsequently vacated could not be taken as if      the term  of the  committee of  the management  has not      commenced". The  High   Court,  at  another  stage,  observed  that  the postponement of  declaration of  the result  did not justify the holding  of the view that elections had not been held in September 1978.  Taken to  the logical  end, the judgment of the High  Court would  imply that  elected  and  non-elected members both  who participated  in the poll would have their term as  members commence since the poll is held. Could this be the  intendment of  rule 445(1)  ? This  approach betrays lack of  knowledge of  the democratic  process of  election. When the  number  of  the  members  to  be  elected  to  the committee of management is fixed and candidates in excess of the  fixed  number  are  desirous  of  seeking  office,  the democratic process  postulates holding  of  elections.  Mere holding of  poll which  means  recording  of  votes  without anything more  would be  inconsequential. It is the counting of votes  and the  consequent declaration  of result showing who amongst  the contesting  candidates has  secured highest number of  votes  or  large  number  of  votes  which  would determine  who   has  become  eligible  for  office  by  the democratic process.  Therefore,  recording  of  votes  is  a preliminary stage,  the counting of votes and declaration of result are  integral and  inseparable  part  of  process  of holding and  completing the process of election. No election process can  be said  to be  complete unless  the votes  are recorded, they  are  counted  and  those  who  have  secured highest number  of votes are declared elected and the result is publicised,  as required  by the relevant provision. Rule 445(1) provides  that the  term of  office  of  the  elected members of  a committee  of  management  of  a  co-operative society shall  be three co-operative years including the co- operative year  of their  election. This provision indicates the terminus  quo for  commencement of  the term, viz., that the term of office of the elected members would be three co- operative  years  including  the  year  of  their  election. Election means  process of  being elected  and the  term  of office is  of the  elected member, not of contesting member. When candidates offer themselves for election, they are 214 called candidates  and  unless  elected  the  term  of  such candidates would  not commence.  Their term  would  commence when etected.  The expression  ’year of their election’ even on literal  and grammatical construction would mean the year in which  the member  concerned whose term is in dispute, is declared elected  meaning thereby  he  became  eligible  for office and  entitled to enter office as a member. Apart from literal construction,  the  completed  process  of  election comprehends nomination,  recording  of  votes,  counting  of votes  and   declaration  of   result  and  publicising  and notifying the  result. There  ends the  process of election. Recording of  votes is  a  mere  stage  in  the  process  of election. Even  when  votes  are  recorded,  the  candidates contesting the  poll do not acquire the status of members of committee of  management. That  status is  acquired on being

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declared elected.  And unless  that status  is acquired  the term of office as member cannot begin to run. Therefore, the expression ’co-operative  year of their election year’, upon true construction can only mean the year in which the member is declared  elected and  not the year in which he contested the poll.      Turning to the facts of this case, undoubtedly the poll was  held  on  September  11,  1978,  but  in  view  of  the injunction granted  by the  learned Munsif  the  respondents were restrained  from declaring  the result. In the counter- affidavit filed  on behalf  of the  respondents in  the High Court, the  fact that the result was declared on January 28, 1980, is admitted. The relevant portion reads as under:           "4.  That   the  election   of  the  committee  of      management of  the Federation  was held  on 11.9.78 and      not on  28.1.80 as  alleged in  the writ  petition:  In      fact, the  election was  actually held  on 11.9.78, but      the declaration  of the  result of  election stayed  in      pursuance of  the order  of learned  Munsif, Basti,  in      Suit No.  291 of  1978 (Kashi  Nath Tripathi  v.  D.M.,      Basti).  Consequent  upon  the  order  of  the  learned      Munsif, the  election officer also passed similar order      on 11.9.78  on which  date the  election was  held. The      result was subsequently declared on 28.1.80". It is  thus an  admitted position  that even though the poll was held on September 11, 1978, on account of the injunction granted by the Court, the result was declared on January 28, 1980. On  the very  next day,  i.e. January  29, 1980, first appellant was elected as Chairman of the Federation. Once it is admitted  that the  result was  declared on  January  28, 1980, the  term of  the members  of  the  committee  of  the management would commence from the co- 215 operative year  July 1, 1979, ending with June 30, 1980, and including this  year the  term  would  be  of  three  years. Therefore, obviously the term would expire on June 30, 1982.      Mr. Dixit,  however, urged  that where  for any  reason whatsoever, election of the elected members of the committee of management  has not  taken place  or could not take place before the  expiry of  the  term  of  elected  members,  the committee of  management shall,  notwithstanding anything to the contrary  in the Act or the Rules or the bye-laws of the society, cease  to exist  on the expiry of the said term. In support of  this submission  he relied  upon sub-section (4) (a) and (b) of section 29. They may be extracted:      "29. Committee of management:                x          x         x         x      (4) (a)   Where, for any reason whatsoever the election                of the  elected members  of the  committee of                management has  not taken  place or could not                take place  before  expiry  of  the  term  of                elected members,  the committee of management                shall,  notwithstanding   anything   to   the                contrary in  this Act  or the  rules, or  the                bye-laws of  the Society,  cease to  exist on                the expiry of such term.           (b)   On or  as soon as may be after the expiry of                such term,  the Registrar  shall  appoint  an                Administrator  for   the  management  of  the                affairs   of    the   society    until    the                reconstitution of the Committee of Management                in accordance  with the  provisions  of  this                Act,  the  rules  and  the  bye-laws  of  the                society, and  the Registrar  shall have power                to change  the  Administrator  from  time  to

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              time:                     Provided   that    so   long    as    no                Administrator is  appointed under  this  sub-                section,  the   Secretary  or   the  Managing                Director, as  the case may be, of the society                shall be in charge only of the current duties                of the committee of management.      Explanation-Where results of the election of members of      the Committee  of Management have not been or could not      be declared,  for any  reason  whatsoever,  before  the      expiry of  the term  of  the  elected  members  of  the      outgoing commit- 216      tee, it  shall be  deemed  that  the  election  of  the      elected members  of the  committee has  not taken place      within the meaning of this sub-section". Sub-section 4(a)  would not be attracted at all in the facts of this  case because  when the  term of  the members of the former committee  of management  expired, poll  was held  on September 11,  1978. Once  poll was  held as  a part  of the programme of  the election it must progress to the statutory end of  declaration of result. Unless the term begins to run it cannot  come to  an end.  Sub-section (4) (a) caters to a situation where  the term  of the  members of a committee of management has  begun and  the election  could not  be  held before the  expiry of the term then, notwithstanding that no election has been held the term of the members of the former committee  would  come  to  an  end  and  the  committee  of management would cease to exist on expiry of said term. Sub- section (4)  (b) would  only by  be attracted  if  the  term expires as  contemplated by sub-section (4) (a). If the term expires and  the  old  managing  committee  whose  term  has expired ceases  to exist  and the election has not been held or could  not be held to elect a new committee of management then in  the interregnum  the Registrar  has  the  power  to appoint an  administrator for  the management of the affairs of the  society. In  the fact  situation as  we have  in the present case,  sub-section (4) (a) and (b) are not attracted and, therefore,  the provision  therein contained  would not assist the respondent in any manner.      As the  term  of  the  committee  of  management  would commence from  the co-operative  year from July 1979 to June 1980, the  same would  expire on  June  30,  1982.  On  this reckoning the  Registrar could  not have  issued teleprinter message declaring  that the  term has come to an end on June 30, 1981.  If the  term had  not expired,  the administrator could not  be appointed  as contemplated  by sub-section (4) (b) of  section 29.  Therefore,  the  order  of  the  Deputy Registrar of  the Co-operative Societies, Gorakhpur Division dated July  1, 1981,  appointing  administrator  is  without jurisdiction and  is clearly illegal and invalid and must be quashed and set aside.      Mr. Dixit lastly urged that even on the view this Court would take,  the term  of the  committee of management would expire on  June 30,  1982, and therefore, hardly a period of four months  remains and  the Court  should not,  therefore, disturb the  administrator. This submission does not commend to us because the Government by executive fiat cannot reduce the term of office statutorily fixed. Further, the elections to panchayats, co-operative societies and 217 smaller local  bodies provide  an apotheosis  or a  training ground for success of our larger experiment of parliamentary democracy. Election  process is  sacrosanct. Members elected must be  permitted to  discharge their  functions as  chosen

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representatives of  the electorate  for the statutory terms. Such a  drastic power  of removing  elected  representatives before the  expiry  of  term  and  substituting  non-elected persons must receive strict and narrow interpretation at the hands of  the courts.  If allowed  to foster it would be the negation of  the democratic  process and  would  engulf  the whole fabric  of democratic institutions which we are trying to build  up. Therefore,  even though  the term would expire roughly after  four months,  we would be perfectly justified in removing  the administrator  and re-instating the elected representatives.      Accordingly, this appeal is allowed and the judgment of the High  Court is  set aside.  A  writ  in  the  nature  of mandamus is issued quashing the impugned order dated July 1, 1981,  of  the  Deputy  Registrar,  Co-operative  Societies, Gorakhpur Division,  Gorakhpur. It is declared that the term of the  committee of  management  of  District  Co-operative Federation Limited,  Basti, and  the 1st  appellant-Chairman has not  expired and  the elected members continue to occupy the office.  The administrator  is hereby  directed to  hand over the  charge forthwith  to the Chairman of the Committee of Management. There will be no order as to costs. H.L.C.                                       Appeal allowed. 218